Sunil Ambwani, J.
1. Heard Sri Ashok Khare, senior advocate assisted by Sri V. K. Singh for petitioner and Sri A. P. Srivastava for respondents.
2. This writ petition was nominated for hearing to this Court by the then Hon'ble the Chief Justice on 7.11.2001. After exchange of counter and rejoinder-affidavits between 24.4.2003 to 14.5.2004. when the writ petition was finally heard, the matter was adjourned almost for eighteen dates to enable senior counsel, for the respondents to address the Court. He, however, did not choose to appear even on the date of hearing and thus the Court proceeded to hear Sri A.P. Srivastava for the respondents.
3. The petitioner has prayed for quashing of an order dated 2.9.2001, passed by Committee of Management and the order of same date issued by the Manager, D.B. Santokh Singh Khalsa Inter College Partab Pura Agra (hereinafter referred to as the college) and for quashing the entire proceedings including the resolution dated 2.9.2001, claimed to have been passed by Committee of Management of the college, to permit petitioner to function as Principal of the college and to pay his regular salary.
4. Brief facts giving rise to this case are that the college is a minority institution run and managed by Sikh Minority Community, and consequently the provisions of U. P. Secondary Education Services Selection Board Act, 1982 are not applicable to the institution. The institution is receiving grant-in-aid up to high school level and is governed by provisions of U. P. Intermediate Education Act, 1921, and the U. P. High School and Intermediate Colleges (Payment of Salaries to Teachers and Other Employees) Act, 1971, and is recognised up to the Intermediate level.
5. The petitioner was appointed as Assistant Teacher in C.T. grade in the college on 1.1.1975. By the order of the District Inspector of Schools, Agra dated 31.8.1977, the petitioner was sanctioned L.T. grade with effect from 1.11.1975. The Committee of Management vide its resolution dated 18.4.1993 appointed the petitioner as officiating Principal on the resignation of the outgoing Principal. The District Inspector of Schools, Agra, attested petitioners' signature as officiating Principal on 21.7.1993. Thereafter selection proceedings were held by the Committee of Management and that the petitioner was selected by the Committee as the best suitable candidate for appointment and was given regular and permanent appointment as Principal of the college, on 5.7.1995, which received approval of the Deputy Director of Education, Agra.
6. The Management of the institution suspended petitioner on 24.9.2000. The suspension order was not approved by the District Inspector of Schools, Agra under Section 16G (7) of the U. P. Act No. 2 of 1921. The suspension order lapsed on the expiry of 60 days from 25.9.2000. Instead of reinstating petitioner the Manager passed repeated suspension orders dated 26.11.2000, 27.1.2001 and on 22.4.2001. A three member enquiry Sub-committee was appointed on 21.10.2000. A charge-sheet dated 21.11.2000 was issued to the petitioner levelling several allegations with regard to financial irregularities and embezzlement. The petitioner filed his representation on 28.11.2000 before the enquiry committee for supplying original and legible documents as most of the documents with the charge-sheet were not legible. It is stated in the writ petition that the petitioner was permitted to make inspection of some of the documents on 8.12.2000 and thereafter having no option in the matter he submitted his reply on 20.12.2000 on the basis of inspections on the limited number of documents permitted to him. Some more documents were given on 5.1.2001 and the inspection was permitted on 12.1.2001. An additional charge-sheet was issued on 6.4.2001. The petitioner again made a request on 6.4.2001 for inspection of documents and was not permitted for inspection nor was given a copy of these documents. He was compelled to give reply, dated 1.5.2001, to the supplementary charge-sheet which was not accepted and was sent by him by registered post. An enquiry report was submitted on 10.8.2001 on which the Committee of Management fixed the matter on 2.9.2001, to hear the petitioner personally at Amar Hotel at 6.00 p.m. When the petitioner reached there he was not heard and handed over a termination order on the same date dated 2.9.2001. The petitioner submitted a representation before the President of the Committee of Management on 3.9.2001 alleging that he was not supplied with all the documents, no enquiry has been held and he was not given opportunity to defend himself. Aggrieved the petitioner has filed this writ petition.
7. Sri Ashok Khare appearing for petitioner submits that the Supreme Court in T. M. A. Pai Foundation v. State of Karnataka : AIR2003SC355 , while answering the question No. 5 (c) in para 161 of the report, has approved the proposition that regulations can be framed governing service conditions for teaching and other staff in which aid is provided by the State, without interfering with the overall administrative control of the management over the staff. In para 124 of the report the majority judgment referred to Lilly Kurian v. Sr. Liwina : [1979]1SCR820 ; Christian Government Medical College Hospital Association v. Employees Union, (1997) 4 SCC 691 ; All Saints High School v. Government of A. P. : [1980]2SCR924 and Frank Anthony Public School Employees Association v. Union of India : [1987]1SCR238 and held that the regulatory measure of control over the majority institution should be minimal and the conditions of recognition as well as the conditions of affiliation to a University or Board have to be complied with, but in the matter of day-to-day management like the appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, right procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
8. Sri Ashok Khare submits that the procedure provided in Regulations 35, 36 and 37 of Chapter ill of the Regulations under U. P. Intermediate Education Act, 1921 is fair and reasonable and does not violate Article 30(1) of the Constitution of India. The procedure provided in these regulations serves the principle of natural justice in respect of teachers or principals receiving salary from the State exchequer. In Committee of Management, St. John Inter College v. Girdhari Singh and Ors. : [2001]2SCR945 , the Supreme Court held that the statutory requirement of prior approval of Inspector to terminate the services of employees under Section 16G (3) (a) is violative of Article 30 of the Constitution of India. This power according to Supreme Court was uncanalised power of the Inspector and will tantamount to inroad into power of disciplinary control of the Managing Committee. The Supreme Court upheld the power of approval of suspension order. The Supreme Court, however, while holding the power of prior approval of the competent authority in case of order of termination to be violative of Article 30(1) of the Constitution of India, did not find the Regulations which serves the interest of the students, and the interest of the teachers for administrative appellate as held in St. Xavior College Society v. State of Gujarat : [1979]1SCR820 ; Lily Kurian (supra) and Frank Anthony Public School Employees Association (supra) as violative of Article 30. The ratio of the aforesaid decision is that the regulations prescribing procedure for imposing punishment and the requirement of approval of suspension order have been upheld, however, Section 16G (3) (a) of the Act have been found to be without appropriate guidelines, and has been held to be violative to Article 30 of the Constitution of India.
9. Sri Ashok Khare has challenged the termination order both on the grounds of mala fides, as well as procedural unfairness. He submits that all the charges levelled in the charge-sheet as well as the supplementary charge-sheet are with regard to financial irregularities in maintaining proper accounts. None of these charges lead even to an inference that the amount stated was embezzled. The procedure provided under Regulations 35, 36 and 37 of Chapter III of the Act, was not followed inasmuch as Sardar Tarlok Singh Oberai, was an outsider and his inclusion in the Sub-committee during the pendency of enquiry was violative of Regulation 35, the petitioner was not given the copies of the documents and was not given any opportunity to lead evidence in his defence. His explanation was not considered, that in the enquiry report the manager himself appeared as witness. The petitioner was never informed of the dates fixed in the enquiry. The employees of the institution was sent to serve notice which was returned undelivered. The management did not make any effort to serve the petitioner either by registered post or by publication. The members of the enquiry committee were members of the Management Committee, who took decision to terminate petitioner and that the petitioner was not given any opportunity of hearing even at a private hotel where he was called at 6.00 p.m. in a totally hostile atmosphere. He has relied upon Division Bench judgment of this Court in Ramesh Chandra Misra v. U. P. Secondary Education Services Commission, Allahabad and others, 1990 (1) UPLBEC 488 in which it was held that the Sub-committee should consist of members of Managing Committee and not members who are outsider. Lastly, it was contended that the punishment is grossly disproportionate to the charges.
10. Sri A.P. Srivsatava appearing for the respondents submits that the enquiry Sub-committee was rightly constituted and held its meetings on 1.11.2000, 8.11.2000, 12.11.2000, 15.11.2000, 17.11.2000 and 21.11.2000, which had finally framed a charge-sheet on 21.11.2000 and issued it to the petitioner. The petitioner was supplied with all the document along with charge-sheet. Sardar Tarlok Singh Oberai is not a stranger to the institution. He is a life member of the general body of the institution, Sardar Satwant Singh Bhasin was appointed member of the Sub-Enquiry Committee and as he suffered heart attack, Sardar Tarlok Singh Oberai was engaged as member of the Sub-Committee. He had deposited Rs. 500 towards life membership vide receipt No. 519 dated 14.7.2000. The petitioner inspected original records on 7.12.2000 and submitted his reply on 20.12.2000. Document required by the petitioner were also supplied to him on 5.1.2001 and he was allowed inspection of records on 12.1.2001. The petitioner availed the opportunity and submitted his reply. The document supporting the charges were also filed along with supplementary-affidavit dated 6.4.2001. Letters were sent to the petitioner on 30.7.2001 to attend the college premises on 2.5.2001 to inspect the documents. Enquiry committee also sent telegram on 20.4.2001 but the petitioner did not appear. Thereafter on 7.5.2001 the petitioner inspected all the documents but he did not give any endorsement. The letters dated 20.5.2001 and 5.6.2001 were sent by a messenger Sri Kamal Singh but the petitioner refused to accept the same. Thereafter the letter was sent under certificate of posting. The enquiry Sub-committee fixed several dates but the petitioner did not choose to appear in the proceedings. The charges of embezzlement of school fund and other charges were duly proved and the disciplinary action was properly conducted under Regulations 34, 35, 36 and 37 of Chapter III of the Regulations made under the Act. The petitioner has embezzled a sum of Rs. 3.52 lakhs which was proved by the enquiry committee.
11. In the present case, the suspension order dated 24.9.2000 was not approved within 60 days but the Committee of Management did not allow petitioner to join and issued repeated orders after expiry of 60 days, i.e., 26.11.2000, 27.1.2001 and 22.4.2001 and kept petitioner under suspension. A perusal of the charge-sheet dated 21.11.2000 and 6.4.2001 shows that all the 16 charges in first charge-sheet and the charges of supplementary charge-sheet relate to irregularities in maintenance of accounts. It appears that the charge-sheets have been prepared by a professional accountant, The substance of each charge is that the corresponding entry has not been made either in the cash book or in the ledger. For example the first charge against the petitioner is with regard to maintenance of accounts. It is alleged that a cheque of Rs. 3,510 on 20.7.1992 was shown as received from the manager in the maintenance accounts and has been shown as expenditure on the same date on 20.7.1992. This cheque was issued for maintenance account. In the same manner a cheque of Rs. 2100 dated 1.9.992 was given from the management account to the maintenance account of the college. These amounts have been shown to be given to the manager in cash whereas it was ever returned to manager. The second charge is with regard to maintenance of cash book of March, 1995, it is alleged that the petitioner kept an amount of Rs. 6,697.40 in cash whereas this amount should have been deposited in maintenance account. The petitioner has shown an amount of Rs. 5,610 to be paid to the manager whereas this amount has not been paid to him. The charge Nos. 3 and 4 are similar charges for Rs. 4,000 and Rs. 1,508.80 for the period February, 1993 and March, 1994. Charge Nos. 5, 6, 7 and 8 relate to making over payments and false payments to the part time teachers in 1993. One Sri Kamal Singh, part time teacher made a complaint in the year 2000 after seven years, with regard to payment made to him in 1993. Charge No. 7 in this reference relates to preparation of vouchers in favour of Gurpreet Singh, Dinesh Chandra Bahadur Singh and Sanjay Sharma in 1993. These teachers it is alleged made complaint that the entries were fraudulent and they had not received any amount from the petitioner. The complaints were made after seven years. With regard to poor boys fund the petitioner has been charged in charge No. 9 for non-disclosing the name of the student for making payment and not maintaining the receipt for the same. These charges relate to the year 1994 to February, 1998. The charges for library relate to preparation of forged vouchers for purchase of news paper from 1994 to 1997. With regard to charges relating to Science fund, home examination account and refreshment account, allegations are relating to nonavailability of receipts for making payments to the manager. With regard to refreshment account, the charge relates to the period from 1994-1999, in which Sri Hariveer Singh denied in making signatures and receiving the amounts. In this manner the petitioner was charged for embezzlement of Rs. 1,53,065.09.
12. In his reply the petitioner dented that he had nothing to do with maintenance of accounts, which was done by the manager along with the clerk. The petitioner denied that he was responsible for making the entries and that some of the entries alleged are prior to date when he took over charge as Principal. By a detailed denial in respect pf each of the charges the petitioner explained the entries which related to the period in which he was not functioning as Principal. He denied that these entries were made by him or that he had received any amount in cash when he joined as Principal on 1.5.1993.
13. A supplementary charge-sheet dated 6.4.2001 related to maintenance of science account, development account of the sports account. Here again the charges relate only to proper maintenance of accounts. The entire emphasis is on the failure in making entries in the cash book and maintenance of vouchers and receipts. The petitioner denied and stated that these accounts were maintained by the manager. The fact that these amounts were not credited and corresponding entries were not made cannot be the basis of allegations that these amounts were embezzled.
14. A reading of these charges individually or all of the charges together does not establish the allegation of either keeping the amount temporarily or using it for personal gain. There is no allegation that the petitioner had over spent the amount or that the articles purchased were not received by the college. Some of the allegations with regard to payment of part time teacher relates to the years 1993, 1994 and 1995 whereas the charge-sheet was given in the year 2000. It is apparent that these allegations were levelled against the petitioner only to make out a case of financial irregularities and to establish the charge of embezzlement whereas no such inference can be drawn from these charges.
15. The enquiry report dated 10.8.2001 shows that the notices of the every date fixed in the enquiry were sent to the petitioner through the employees of the college Sri Kamal Singh and Sri Dilip Kumar, and that an endorsement has been made by these employees that the petitioner did not accept these notices. All these notices dated 25.1.2001, 10.2.2001, 2.3.2001 and 28.3.2001 were served by refusal, through these employees. The enquiry committee did not make any effort to send these notices either by registered post, or to inform him by publication. The Manager, officiating Principal and Clerk were examined on 10.4.2001 in petitioner's absence. A letter was sent to him on 15.4.2001, about the cross-examination on 28.4.2001 and once again it was deemed to have been served by refusal on the note made by Sri Dilip Singh, Clerk. Sardar Satwant Singh Bhasin suffered heart attack and he was relieved from the Sub-committee and Sri Tarlok Singh Oberai was appointed as member of the committee of which it is alleged that information has been given to the petitioner on 30.4.2001. On 28.4.2001, once again in the absence of petitioner Sri Guruvinder Kaur and Dilip Singh were examined. Once again notices were sought to be served through the employees dated 30.4.2001 and 15.5.2001 and endorsement of refusal was made and thus the proceedings were held and concluded in the absence of petitioner.
16. In the entire enquiry report the reply given by the petitioner has not been considered and that the charges have been assumed to be proved in his absence.
17. It is rather surprising that the Committee of Management fixed a meeting to consider the reports of the enquiry proceedings and the recommendations of punishment under Regulation 37 on 22.7.2001 at 6.00 p.m. at a local private Hotel. On the same day a resolution was passed and the petitioner was given a termination order of the same date issued under the signatures of the manager of the institution. The petitioner was also required to pay an amount of Rs. 3,52,173.64. The petitioner in his representation, dated 2.9.2001 gave the entire details of events and made a strong protest that the enquiry was held in his absence. He denied that the notices detailed as above were received by him and that any charge of embezzlement was established. One of the member of the Sub-committee who was not member of the Committee of Management was included mid way and that the manager himself is alleged to have been deposed against the petitioner and thereafter participated in deliberations of Management Committee. He protested that he was not heard on 2.9.2001 and that the Committee of Management had already resolved to terminate his services.
18. I find substance on the submissions of Sri Ashok Khare that the small Sub-committee referred to in Regulation 35 must consist of members of the Committee of Management. Sardar Tarlok Singh Oberai was not a member of Committee of Management and as such he could not have been included in the Sub-committee for enquiring into the charges against the petitioner. In Ramesh Chandra Misra v. U. P. Secondary Education Services Commission. Allahabad, 1990 (1) UPLBEC 488, this Court considered the object and purpose and the meaning of the Sub-committee and came to a conclusion, in paras 23 and 24, that the Sub-committee derives its origin from the main committee, and can only act within the powers conferred by that body. The Sub-Committee must be constituted of the members of the Management of Committee and not of members who are not member of the Committee of Management. The composition of the Sub-committee, therefore, was not in accordance with Regulation 35, and thus the entire enquiry proceedings held by Sub-Committee are vitiated.
19. The record testifies that no attempt was made to intimate petitioner with a date fixed by the Sub-committee for examination of the witnesses and giving him opportunity to lead evidence in his defence. Regulation 36 provides that the person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish, provided that the enquiring authority conducted the enquiry may for sufficient reasons to be recorded in writing refuse to call a witness. Sub-clause (2) provides that Clause (1) shall not apply where the person concerned has absconded and where it is for other reasons impracticable to communicate with him. In the present case, the petitioner did not appear for cross-examination of the witnesses and for giving his defence. I find from the record that he was never allowed such an opportunity. All the notices fixing dates in enquiry were sought to be served through the employees of the college. Not a single notice was sent to through registered post nor any effort was made to inform him with the date by publication in newspaper. The service of summons through the employees of the college who are under the administrative control of the manager and officiating Principal, by refusal cannot be considered to be sufficient service on the petitioner.
20. Regulation 37 provides that the Committee of Management shall after noticing to employee need to consider the report of the proceedings and recommendation made and take decision on the case. The employee shall be allowed, if he so desires to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all communicated papers to the Inspector and Regional Inspectress as the case may be for approval of the action proposed by it. In this case, the meeting was not called in the college. It was called in the evening at 6.00 p.m. at a local hotel which was not desirable at all. In para 15 of the counter-affidavit it is stated that the petitioner presented himself on 2.9.2001 before the managing committee and placed his version before sub-committee. Members of the Managing Committee asked some questions to the petitioner but the petitioner refused to answer the said question and thereafter the entire matter was discussed seriously and deeply and after making deep discussion the Managing Committee passed a resolution of termination of his services of the petitioner and accordingly the termination order was prepared on the same date and it was served upon the petitioner on 3.9.2001, a copy of the resolution has been annexed as Annexure-C.A. 1, to the counter-affidavit. The resolution nowhere states that the petitioner appeared before the Management Committee and was heard by the Committee on 2.9.2001. The resolution refers to the recommendation of the Enquiry Committee for terminating his services. The petitioner made a protest on the very next day on 3.9.2001 and stated that he was not heard either during the enquiry or by the Managing Committee. The admission of the receipt of the letter on 3.9.2001, by the management gives credence to petitioner's case.
21. From the aforesaid discussion, I find that the enquiry Sub-committee was not constituted properly and included a member who was not a member of the Managing Committee. The petitioner was not informed with the dates fixed in the enquiry. He was not allowed to cross-examine the witnesses and to lead his own witnesses. The enquiry sub-committee did not consider it proper to, send him notices by any means other than through the employees of the college. The petitioner was not heard by the Committee of Management and that a strange procedure was followed by summoning him at a local hotel at 6.00 p.m. and on the same day, a resolution was passed and termination letter was prepared. The management did not follow the procedure under Regulations 35, 36 and 37 and violated principle of natural justice. I also find that all the charges relate to irregularities in maintenance of accounts and that these charges neither infer to nor establish embezzlement against the petitioner. The Manager of the institution and the officiating Principal appeared against the petitioner as witnesses in his absence and that the entire proceedings suffered from mala fides. The Committee of Management was prejudiced and biased against the petitioner and that the whole proceedings were set up, against him to ease him out of the college.
22. For the aforesaid reasons, the Writ Petition No. 34916 of 2001 is allowed. The impugned order dated 2.9.2001 passed by the Committee of Management and the order of the same day dated 2.9.2001 passed by Manager, D.B. Santokh Singh Khalsa Inter College Partab Pura, Agra, terminating petitioners services are set aside. The petitioner shall be allowed to function as Principal of the college and shall be given all consequential reliefs to which he was entitled in services. The Writ Petition No. 10080 of 2003 for nomination of expert for selection of Principal by fresh appointment is dismissed.