Gaur Vs. M.M. Degree College & Ors  Insc 557 (7 November 2003)
Raju & Arijit Pasayat
out of SLP (C) Nos. 601-602 of 2001) ARIJIT PASAYAT, J.
Court of Allahabad having dismissed the writ application filed by the appellant
questioning order of termination of his services by the Committee of Management
of Mahamana Malviya Degree College, Meerut (hereinafter referred to as the
'Managing Committee') and the application for review, these two appeals have
been filed. Factual background sans unnecessary details is as follows:
was appointed as the Principal of the college in question in July 1974. In the
year 1977, University Examinations for graduate classes were held in the
college. University received report regarding certain irregularities in the
examination centre. Vice- Chancellor appointed a Committee to enquire into
inquiry Committee enquired into the matter and found that the conduct of the
examination at the centre where the appellant was acting as Senior
Superintendent of the Examination Centre was not in order.
inquiry Committee found several gross irregularities committed by the appellant
in the conduct of the examination. It was noted that the appellant's son Rahul
was also appearing in the examination. In the evening shift of the examination
on 29.4.1977, his son appeared at the examination in Basic Statistics General
Course. After considering the statements given by several persons, the
Committee held that the appellant helped his son and had replaced the answer
book of his son, signatures of the Invigilator on the alleged answer book were
not of the Invigilator Shri S.K. Sharma. The inquiry Committee recommended
meeting held on 19.9.1977, the Managing Committee considered the report of the
inquiry Committee and by resolution of even date resolved to suspend the
appellant and further resolved to hold an inquiry in the matter.
to the aforesaid resolution, the appellant was issued a charge sheet on
27.9.1977. It was specifically mentioned that the meeting of the inquiry
Committee was to be held on 16.10.1977 and the appellant should be present.
Though appellant received the charge sheet, he did not submit his reply and on
the contrary, asked for 15 days time by his letter dated 13.10.1977.
Considering his request, the meeting of the inquiry Committee was adjourned to
25.10.1977. Though appellant was informed by registered post, he did not appear
before the inquiry Committee. The inquiry Committee considered the materials on
record and found the appellant guilty for irregularities and illegalities in
the conduct of examination. It was found that he had changed the answer book of
his son with ulterior motive. The inquiry Committee recommended dismissal of
the appellant from service subject to approval of the Vice-Chancellor. Notice
was given by the Vice- Chancellor to the appellant and the Managing Committee
to consider the matter on 21.12.1977. It was subsequently adjourned to
23.12.1977 when the Vice-Chancellor heard the appellant and the Managing
that the Vice-Chancellor by his letter dated 24.12.1977 directed the Managing
Committee that another opportunity be given to the appellant to appear before
the inquiry Committee and all relevant papers were to be given to the
appellant. The matter was fixed by the inquiry Committee on 20.1.1978 and the
appellant was informed by registered post. But he did not appear before the
inquiry Committee. The matter was again considered by the inquiry Committee,
which confirmed its report dated 25.10.1977 and Managing Committee by its
letter dated 23.1.1978 informed the University that the appellant did not
appear before the inquiry Committee. Vice-Chancellor was requested to accord
approval to the proposal for dismissal of the appellant. All the documents
which were demanded by the appellant had been given on 14.2.1978. The Committee
of Management again received a letter from the University, stating that since
all the documents demanded by the appellant were handed over to him on
24.2.1978, the appellant had been directed to appear on 24.2.1978. The Managing
Committee was requested to submit its case after 24.2.1978 for consideration of
spite of the said letter of the University, the appellant again did not appear
before the inquiry Committee. Necessary information in this regard was given to
the Vice-Chancellor. The University again asked the Managing Committee and the
respondent to appear before the Vice- Chancellor on 24.4.1978 and again on
5.6.1978. The matter was heard by the Vice-Chancellor who was of the view that
punishment proposed by the Managing Committee was harsh and Managing Committee
was required to re- consider the same. The Managing Committee again considered
the matter and resolved that appellant's service should be terminated instead
of dismissal. Thereafter Vice-Chancellor by order dated 1.7.1978 granted
approval to the proposal of the Managing Committee. Appellant challenged the
said order by preferring a Reference under Section 66 of the U.P. State
Universities Act, 1973 (in short the 'University Act') before the Chancellor.
The reference was rejected by order dated 3.8.1979. The Chancellor found that
the appellant had been given adequate opportunities to place his case before
the Inquiry Committee, but he failed to do so. The appellant challenged order
of the Vice- Chancellor and Chancellor before the High Court. According to him
opportunity was not granted before the orders were passed. This stand was rebutted
by the Managing Committee with reference to the record which indicated that
more than adequate opportunity was granted. High Court by the impugned judgment
dated 16.5.1996 dismissed the writ petition.
appellant questioned correctness of the judgment by filing special leave
petition before this Court in SLP (C) No. 23634 of 1996.
order dated 12.12.1997 the same was disposed of with certain observations. The
appellant's primary stand before this Court was that the judgment was rendered
after passage of two years and many of the contentions canvassed, were not
considered in the judgment. This Court relegated the appellant to review
application. The Review petition was rejected by order dated 24.2.2002 which is
also subject matter of challenge.
R.K. Jain, Learned Senior Counsel, for the appellant submitted that the High
Court's order suffers from vulnerability on more counts than one. It is
submitted that the appellant was placed under suspension on 19.9.77 and was
removed on 19.6.1978. During the period of suspension no subsistence allowance
was paid. That vitiated the proceedings. Secondly, the basic ground on which
the proceedings were initiated related to alleged adoption of corrupt practices
by the appellant for the benefit of his son, both joining together. Questioning
the action taken by the authorities against him, the appellant's son had filed
writ petition which was allowed and the Vice-Chancellor had accepted the order
of High Court, quashing the action taken against him and had directed
declaration of his result. According to Mr. Jain, there is complete absence of
any substratum of the charge of alleged irregularities for taking any action
against the appellant. Finally it was submitted that several documents placed
on record before the High Court established that there was bias on part of the
two of the persons who were part of the Committee which took decision stated
about the bias.
response, learned counsel for the Managing Committee submitted that in order to
get subsistence allowance the particular procedure was to be followed, which
was not done by the appellant and subsistence allowance thereafter has been
subsequently paid. So far as the son's case is concerned, the action against
him was set aside because of non- compliance with the requirements of
principles of natural justice and not on account of any specific finding
objectively recorded that no irregularities as such took place or that the
petitioner was innocent as well. In fact, the High Court had directed the
authorities to proceed afresh after grant of opportunity. The University
thought otherwise, and the Vice-Chancellor directed declaration of the result.
That per se does not take away the right to proceed against the appellant.
Finally the order goes to show that 8 of the 11 members agreed for action
against the appellant in the manner done. There was no question of any bias,
and there was a collective decision. The appellant was granted adequate
opportunity as the factual scenario would go to show and he having failed to
avail them, cannot make a grievance.
the judgment of the High Court, in the writ petition it appears that there is
no reference to the alleged infirmity on account of subsistence allowance
having not been paid. There was also no specific finding recorded for the
question of bias as alleged presently.
find that there was total lack of cooperation from the appellant as the factual
background highlighted above would go to show. Ample opportunity was granted to
the appellant to place his case. He did not choose to do so. It is only a
person who was ready and willing to avail of opportunity given can make a
grievance about denial of any opportunity and not a person like the appellant
who despite repeated opportunities given and indulgence shown exhibited
defiance and total indifference in extending cooperation. Therefore, on that
score the appellant cannot have any grievance. So far as the effect of not
paying the subsistence allowance is concerned, before the authorities no stand
was taken that because of non-payment of subsistence allowance, he was not in a
position to participate in the proceedings, or that any other prejudice in
effectively defending the proceedings was caused to him.
appellant could not plead or substantiate also that the non-payment was either
deliberate or to spite him and not due to his own fault. It is ultimately a
question of prejudice. Unless prejudice is shown and established, mere
non-payment of subsistence allowance cannot ipso facto be a ground to vitiate
the proceedings in every case. It has to be specifically pleaded and
established as to in what way the affected employee is handicapped because of
non-receipt of subsistence allowance.
that is done, it cannot be held as absolute proposal in law that non-payment of
subsistence allowance amounts to denial of opportunity and vitiates
as case of bias is concerned, we find that Chancellor has elaborately dealt
with this aspect and has found that 8 of the 11 members had accorded approval
to the proposed action. The discordant note by the others who did not,
apparently was obliging the appellant.
itself takes away the sting of appellant's case relating to alleged bias.
residuary question is whether the appellant's son having been exonerated, the
substratum of the accusations vanished as claimed on behalf of the appellant.
The High Court's judgment is dated 11.1.1979, whereby appellant's son writ
petition was allowed on the ground that order of University was passed in
violation of principles of natural justice. The University by letter dated
14.6.1983 had directed declaration of the appellant's son's result. This aspect
does not appear to have been considered by the High Court though in the review
application specific stand has been taken. That may not be the finally
determinative factor, but needs consideration. The High Court shall consider
all relevant materials and arrive at its conclusion in accordance with law.
the High Court had taken note of certain other factors which were not part of
charges against the appellant i.e. the alleged irregularities in admitting the
appellant's son in BA class when he had not passed the intermediate class.
Though the High Court has referred to the same, no opportunity was granted in
this matter. We feel it would be proper if the High Court hears the matter
afresh to consider the effect only of declaration of result of appellant's son,
and also the allegations regarding admission of his son improperly and illegally.
the appellant knows that this is one of the allegations against him which would
justify his termination de hors the proceedings already initiated. The
appellant shall be permitted to place material in that regard. Similar shall be
the position so far as the respondent's son is concerned.
we are remitting the matter for fresh adjudication it shall be open to place
such material as would be necessary for the purpose of adjudication of
afore-noted two aspects. We have not expressed any opinion on the merits. We
request the High Court to make an effort to dispose of the matter by the end of
June, 2004 after due notice to the parties. Civil Misc. writ petition No.
8804/1979 shall be restored to its original number and file.
appeals are accordingly disposed of. No costs.