Committee of Management, Hindu College, Moradabad and another v. Mahatma Jyotiba Phule Rohilkhand University and
Case Details
Neutral Citation No. - 2024:AHC:114931-DB HIGH COURT OF JUDICATURE AT ALLAHABAD ***** Judgement Reserved on 22.04.2024 Judgement Delivered on 19.07.2024 Court No. 29 Case :- SPECIAL APPEAL No. - 251 of 2024 Appellant :- Dr Sudha Garg Respondent :- The Vice-Chancellor, Mahatma Jyotibha Phule Rohilkhand Univeristy and 8 Others Counsel for Appellant :- In Person Counsel for Respondent :- Adarsh Singh,C.S.C.,Indra Raj Singh,Pramod Kumar Singh,Rohit Pandey Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Anish Kumar Gupta,J. (Per: Anish Kumar Gupta, J.) 1. The instant Special Appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 by the appellant/petitioner being aggrieved by the common judgement and order dated 08.02.2024 passed in Writ A No.20031 of 2023 (Committee of Management, Hindu College, Moradabad and another vs. Mahatma Jyotiba Phule Rohilkhand University and 2 Others) as well as the Writ A No. 18909 of 2023 (Dr. Sudha Garg vs. The Vice-Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareilly and 8 Ors.). Facts of the Case 2. The brief facts of the instant case are that the appellant/petitioner was appointed as Lecturer on 18.01.2000 in the Hindu College, Moradabad (for short, 'the Institution'), which was affiliated to Mahatma Jyotiba Phule Rohilkhand University, Bareilly (hereinafter referred as ‘the University'), after selection by the U.P. Higher Education Commission, Prayagraj. The petitioner possessed excellent and outstanding academic achievements like M.Sc. (Gold Medal), M.Phil (Ist Position), CSIR(JRF) NET, Ph.D (DCFR, Bhimtal and C.C.S University Meerut) with the award on teacher fellowship under (F.I.P.) Scheme of UGC and other meritorious fellowships. Looking at the academic track record of the petitioner/appellant, she was initially appointed as Lecturer in the Institution. Later on she became Head of the Zoology Department in the Institution. It is the case of the petitioner that throughout her service, she discharged the assigned work and duties as teacher. She also supervised the examinations both at the College and the University level with full devotion, discipline, dedication & honesty as well as with due diligence in compliance with codes of conduct and provisions of professional ethics as prescribed in Statutes of the University. 3. The appointment letter of the petitioner was issued initially on 18.01.2000 as Lecturer (Zoology) by the Committee of Management of the Institution (hereinafter referred as ‘the Management’) under Section 14(1) of U.P. Higher Education Commission Act, 1980 (hereinafter referred as ‘the Commission Act, 1980’). The said letter was issued in compliance of the order of Director of Higher Education, U.P. Allahabad, issued under Section 13 of the Commission Act, 1980. After becoming the Head of the Zoology Department of the institution and having found various shortcomings in the laboratory facilities as well as the library facilities in the College, she pointed out the same to the Principal so that the students and teachers both can be benefited with the availability of the better books and the laboratory facilities in the Institution. Annoyed by such shortcomings pointed out by the petitioner, the Management suspended the petitioner vide suspension order-cum- chargesheet dated 18.02.2019, containing eight charges which read as under:- " 1. यह है कि(cid:6) आपने कि(cid:11)ना कि(cid:6)सी पूर्व(cid:17) किर्वधि(cid:19)र्वत् प्राप्त अनुमधित (cid:6)े जन्तु किर्वज्ञान किर्वभाग किहन्दू (cid:6)ॉलेज, गुरादा(cid:11)ाद (cid:6)े नोकि%स प%ल पर दो Branches: Cytogenetics & Entomology एम०एस०सी० अंधितम र्वर्ष(cid:17) (cid:6)े छात्र एर्वं छात्राओं (cid:6)े र्वास्ते सत्र (cid:6)े मध्य में 2 of 29 (cid:11)ंद (cid:6)रने (cid:6)ा आदेश अपने हस्ताक्षरों से चस्पा (cid:6)र किदया ज(cid:11)कि(cid:6) इस प्र(cid:6)ार (cid:6)े किर्वर्षयों (cid:6)ो चलाने या (cid:11)ंद (cid:6)रने (cid:6)ी अनुमधित तो एम.जे.पी. रूहेलखण्ड किर्वश्वकिर्वद्यालय (cid:11)रेली (cid:6)ो ही प्राप्त है। इस प्र(cid:6)ार अपने छात्र एर्वं छात्राओं (cid:6)े भकिर्वष्य से खिखलर्वाड़ (cid:6)रने (cid:6)ा (cid:6)ृत्य कि(cid:6)या है। इस आरोप (cid:6)े सम्(cid:11)न्(cid:19) में नोकि%स (cid:6)ी छायाप्रधित संलग्न(cid:6)-1 है। 2. यह है कि(cid:6) आप(cid:6)े द्वारा अपनी हठ(cid:19)र्मिमता एर्वं मांगों (cid:6)ो मनर्वाने हेतु महाकिर्वद्यालय (cid:6)े प्रागण में जन्तु किर्वज्ञान किर्वभाग (cid:6)े समक्ष अर्वै(cid:19)ाकिन(cid:6) रूप से ए(cid:6) सत्याग्रह कि(cid:11)ना कि(cid:6)सी खिलखिखत पूर्व(cid:17) अनुमधित (cid:6)े कि(cid:6)या जिजससे (cid:6)ी आप(cid:6)े इस (cid:6)ृत्य से पूरे महाकिर्वद्यालय में अराज(cid:6)ता//अनुशासनहीनता (cid:6)ा र्वातार्वरण महाकिर्वद्यालय (cid:6)े शिशक्ष(cid:6)ों एर्वं शिशक्षणेत्तर (cid:6)म(cid:17)चारिरयों (cid:6)े साथ-साथ छात्र एर्वं छात्राओं में भी उत्पन्न हो गया था जिजससे महाकिर्वद्यालय (cid:6)ी गरिरमा एर्वं साख (cid:6)ो अत्यन्त ठेस पहुंची है तथा महाकिर्वद्यालय (cid:6)े छात्रों (cid:6)े पठन-पाठन (cid:6)े र्वातार्वरण में भारी (cid:11)ा(cid:19)ा उत्पन्न हुई थी। जिजस(cid:6)ा सम्पूण(cid:17) दाधियत्र्व आप है। आप(cid:6)े द्वारा सत्याग्रह (cid:6)रने (cid:6)े र्वास्ते किदये गये पत्र (cid:6)ी छायाप्रधित संलग्न(cid:6)-2 है। 3. यह है कि(cid:6) आप(cid:6)े द्वारा एन०एस०सी० प्रथम र्वर्ष(cid:17) एर्वं किद्वतीय र्वर्ष(cid:17) (cid:6)े संस्थागत छात्र एर्वं छात्राओं (cid:6)े र्वार्मिर्ष(cid:6) परीक्षा फॉम(cid:17) किर्वभागाध्यक्ष होने (cid:6)े नाते अग्रसारण / स्र्वी(cid:6)ार (cid:6)रने से इस (cid:6)ारण से मना (cid:6)र किदया कि(cid:6) ज(cid:11) त(cid:6) उन(cid:6)े द्वारा दो हजार रूपये प्रधित छात्र एर्वं छात्रा (cid:6)ी दर से उन(cid:6)ो भ्रमण (Tour) (cid:6)े खिलये जमा न (cid:6)रा दें, एर्वं ए म०एस०सी० किद्वतीय र्वर्ष(cid:17) (cid:6)े छात्र एर्वं छात्राओं (cid:6)े परीक्षा फॉमS (cid:6)ो इसखिलये भी अग्रसारिरत/स्र्वी(cid:6)ार (cid:6)रने से मना (cid:6)र किदया गया कि(cid:6) र्वह अपने परीक्षा फॉमS में (cid:6)ेर्वल किर्वर्षय (Fish & Fisheries) (cid:6)ो ही भर(cid:6)र लायें अन्य कि(cid:6)सी किर्वर्षय (cid:6)े साथ परीक्षा फॉम(cid:17) स्र्वी(cid:6)ार नहीं कि(cid:6)या जोयगा। जो कि(cid:6) आप(cid:6)ी हठ(cid:19)र्मिमता / मनमाने ढंग से (cid:6)ाय(cid:17) (cid:6)रने (cid:6)ा प्रती(cid:6) है क्योंकि(cid:6) ऐसा (cid:6)रने (cid:6)ा न तो आप(cid:6)ो (cid:6)ोई अधि(cid:19)(cid:6)ार ही है और न ही ऐसा (cid:6)ोई आदेश आप(cid:6)ो प्राचाय(cid:17) अथर्वा प्र(cid:11)न्(cid:19)तंत्र (cid:6)ी ओर से किदया गया था। ऐसा आप(cid:6)े द्वारा (cid:6)ृत्य छात्रों (cid:6)े भकिर्वष्य से खिखलर्वाड़ (cid:6)ी श्रेणी में आता है। छात्रों (cid:6)े द्वारा आप(cid:6)े किर्वरूद्ध किदया गया पत्रों (cid:6)ी छायाप्रधित (03 पृष्ठों में) संलग्न(cid:6)-03 है। 4. यह है कि(cid:6) आप(cid:6)े द्वारा अपने ही किर्वभाग (cid:6)े साथी शिशक्ष(cid:6)ों (cid:6)े (cid:6)मरें में कि(cid:11)ना कि(cid:6)सी प्राचाय(cid:17) अथर्वा प्र(cid:11)न्(cid:19)तंत्र (cid:6)ी आज्ञा से ताले डाल किदये गये है जोकि(cid:6) आज त(cid:6) लगे हुये है जिजस(cid:6)े साक्ष्य (cid:6)ी छायाप्रधित फो%ो (cid:6)े रूप में पत्र (cid:6)े साथ संलग्न है ज(cid:11)कि(cid:6) प्राचाय(cid:17) जी (cid:6)े द्वारा इस प्र(cid:6)ार (cid:6)े ताला (cid:11)ंदी (cid:6)ो डुप्ली(cid:6)े% चा(cid:11)ी (cid:11)नर्वा(cid:6)र खुलर्वाने (cid:6)ा भी प्रयास कि(cid:6)या गया तो आपने सारे किनयमों एंर्व (cid:6)ानूनों (cid:6)ी (cid:19)खि^यां उड़ाते हुये प्राचाय(cid:17) (cid:6)े किर्वरूद्ध थाना (cid:6)ोतर्वाली मुरादा(cid:11)ाद में ए(cid:6) तहरीर दे(cid:6)र प्राथकिम(cid:6)ी दज(cid:17) (cid:6)राने (cid:6)ा दुस्साकिह(cid:6) एर्वं अर्वै(cid:19) (cid:6)ृत्य कि(cid:6)या है। डॉ० जे०(cid:6)े० पाठ(cid:6), एसोजिसये% प्रोफेसर, जन्तु किर्वज्ञान किर्वभाग (cid:6)े द्वारा किदये गये पत्र (cid:6)ी छायाप्रधित एर्वं दैकिन(cid:6) जागरण एर्वं किहन्दुस्तान नाम(cid:6) समाचार पत्रों में प्र(cid:6)ाशिशत प्र(cid:6)रण से सम्(cid:11)न्धिन्(cid:19)त पत्रों (cid:6)ी छायाप्रधितयाँ (05 पृष्ठों में) संलग्न(cid:6) - 04 । 5. यह है कि(cid:6) आप(cid:6)े द्वारा अपने किर्वभाग (cid:6)े ही साथी शिशक्ष(cid:6)ों एर्वं (cid:6)म(cid:17)चारिरयों से अच्छा व्यर्वहार न (cid:6)रने (cid:6)ी शिश(cid:6)ायतें लगातार प्राप्त होती रहती है जिजससे (cid:6)ी आप(cid:6)े अमा(cid:17)याकिदत व्यर्वहार (cid:6)ी पुकिc होती है। इसी (cid:11)ात (cid:6)ो दृकिcगत रखते हुये महाकिर्वद्यालय (cid:6)े आठ अन्य किर्वभागाध्यक्षों (cid:6)े द्वारा प्र(cid:11)न्(cid:19)तंत्र से आप(cid:6)े किर्वभाग (cid:6)े प्र(cid:6)रण (cid:6)ो सुलझाने हेतु प्राथ(cid:17)ना (cid:6)ी गई थी जिजस पर कि(cid:6) प्र(cid:11)न्(cid:19)तंत्र (cid:6)े अध्यक्ष एर्वं क्षेत्रीय उच्च शिशक्षा अधि(cid:19)(cid:6)ारी (cid:11)रेली (cid:6)े द्वारा आपसे व्यकिgगत रूप से र्वाता(cid:17) (cid:6)ी गई लेकि(cid:6)न आप(cid:6)े हठ(cid:19)र्मिमता व्यर्वहार (cid:6)े (cid:6)ारण इस 3 of 29 प्र(cid:6)रण (cid:6)ो नही सुलझाया जा स(cid:6)ा और आप(cid:6)े द्वारा इस अमया(cid:17)किदत व्यर्वहार (cid:6)ो आज त(cid:6) यथार्वत् (cid:11)नाये रखा है। चूंकि(cid:6) आप(cid:6)े जन्तु किर्वज्ञान किर्वभाग (cid:6)े समी शिशक्ष(cid:6)ों एर्वं शिशक्षणेत्तर (cid:6)म(cid:17)चारिरयों में आप(cid:6)े व्यर्वहार (cid:6)े (cid:6)ारण सामजस्य न होने (cid:6)ी र्वजह से छात्र एर्वं छात्राओं (cid:6)ी पढ़ाई पर (cid:11)ुरा प्रभार्व पड़ रहा है जिजस(cid:6)ो (cid:6)ी छात्र किहत में (cid:6)तई कि(cid:6)सी भी परिरन्धिस्थधित में (cid:11)दा(cid:17)शत नही कि(cid:6)या जा स(cid:6)ता। जन्तु किर्वज्ञान किर्वभाग (cid:6)े सभी शिशक्ष(cid:6)ों, प्रयोगशाला सहाय(cid:6)ों र्व चतुथ(cid:17) श्रेणी (cid:6)म(cid:17)चारिरयों (cid:6)े द्वारा आप(cid:6)े किर्वरूद्ध दी गई शिश(cid:6)ायती पत्र (cid:6)ी छायाप्रधित (०2 पृष्ठों में) संलग्न(cid:6) ०5 है। 6. यह है कि(cid:6) आप(cid:6)ो आप(cid:6)े व्यर्वहार में (cid:11)दलार्व लाने तथा आप(cid:6)े मनमाने ढ़ग से रुहेलखण्ड किर्वश्वकिर्वद्यालय (cid:11)रेली (cid:6)े द्वारा एम०एस०सी० प्रथम एर्वं किद्वतीय से एम.जे.पी. र्वर्ष(cid:17) (cid:6)े छात्रों (cid:6)ी आयोजिजत प्रैन्धिक्%(cid:6)ल परीक्षा (cid:6)ो (cid:6)राने हेतु (cid:6)ई (cid:11)ार पत्र प्रेकिर्षत कि(cid:6)ये गये जिजस(cid:6)ो (cid:6)ी आप(cid:6)े द्वारा न(cid:6)ार किदया गया जिजस(cid:6)े (cid:6)ारण महाकिर्वद्यालय (cid:6)ी छकिर्व भूकिमल हो रही है जिजससे यह भी प्रतीत होता है कि(cid:6) आप(cid:6)ो छात्र एर्वं छात्रों (cid:6)े भकिर्वष्य (cid:6)ी (cid:6)ोई धिचन्ता नहीं है। आप(cid:6)े द्वारा प्राचाय(cid:17) (cid:6)ो प्रेकिर्षत पत्र किदनां(cid:6) 29.01.2019 (cid:6)े पत्र (cid:6)ी छायाप्रधित (02 पृष्ठों में) संलग्न(cid:6)-06 एर्वं प्राचाय(cid:17) (cid:6)े द्वारा माननीय (cid:6)ुलपधित, एम.जे.पी. रूहेलखण्ड किर्वश्वकिर्वद्यालय (cid:11)रेली (cid:6)ो आप(cid:6)े इस (cid:6)ृत्य (cid:6)े सम्(cid:11)न्(cid:19) में दी गई खिलखिखत जान(cid:6)ारी (cid:6)े पत्र (cid:6)ी छायाप्रधित (01 पृष्ठ में) संलग्न(cid:6)-06 है। 7. यह है कि(cid:6) महाकिर्वद्यालय (cid:6)े पूर्व(cid:17) प्राचाय(cid:17) डॉ० आर०(cid:6)े० (cid:11)ंसल (cid:6)े द्वारा भी आप(cid:6)ो चेतार्वनी खिलखिखत रूप में दी गई थी कि(cid:6) आप छात्र एर्वं छात्राओं (cid:6)े किहतों (cid:6)े किर्वपरीत अपने (cid:6)ाय(cid:17) (cid:6)रने से (cid:11)ाज आये, लेकि(cid:6)न आप लगातार प्राचाय(cid:17) एर्वं प्र(cid:11)न्(cid:19)तंत्र (cid:6)े आदेशों (cid:6)ी अर्वहेलना (cid:6)रते हुये अपने पद (cid:6)ी गरिरमा (cid:6)े किर्वपरीत प्रधित(cid:6)ूल (cid:6)ाय(cid:17) (cid:6)रने पर अमादा है और (cid:6)रती चली आ रही है। पूर्व(cid:17) प्राचाय(cid:17) डॉ० आर०(cid:6)े० (cid:11)ंसल (cid:6)े द्वारा आप(cid:6)ो किदये गये चेतार्वनी पत्र (cid:6)ी छायाप्रधित संलग्न(cid:6)-07 है। 8. यह है कि(cid:6) आप(cid:6)े इस (cid:6)ृत्यों से व्यशिथत एर्वं परेशान हो(cid:6)र महाकिर्वद्यालय (cid:6)े प्राचाय(cid:17) (cid:6)े द्वारा किदनां(cid:6) 14.12.2018 (cid:6)ो आप(cid:6)े किर्वरूद्ध ए(cid:6) शिश(cid:6)ायती पत्र महामकिहम (cid:6)ुलाधि(cid:19)पधित / राज्यपाल उ०.प्र०. शासन लखनऊ (cid:6)ो प्रेकिर्षत कि(cid:6)या जिजस(cid:6)ा संज्ञान लेते हुये क्षेत्रीय उच्च शिशक्षा अधि(cid:19)(cid:6)ारी (cid:11)रेली (cid:6)े द्वारा ए(cid:6) तीन सदस्यीय जांच सकिमधित (cid:6)ा गठन (cid:6)रा(cid:6)र आप(cid:6)े आचरण (cid:6)ी जांच महाकिर्वद्यालय में किदनां(cid:6) 05.01.2019 (cid:6)ो (cid:6)राई गई थी जिजस(cid:6)ी जांच आख्या (cid:6)ी छायाप्रधित आप(cid:6)ो प्र(cid:11)न्(cid:19)(cid:6) प्र(cid:11)न्(cid:19) सकिमधित (cid:6)े द्वारा उपलब्(cid:19) (cid:6)राते हुये आपसे किर्वभाग में सभी शिशक्ष(cid:6)ों एर्वं शिशक्षणेत्तर (cid:6)म(cid:17)चारिरयों से सांमजस्य (cid:11)ैठाने तथा अपने व्यर्वहार में सु(cid:19)ार लाने तथा प्राचाय(cid:17) (cid:6)े आदेशों (cid:6)ा सम्य(cid:6)् रूप से अनुपालन सुकिनधिnत (cid:6)रने हेतु पांच किदन (cid:6)ा समय किदनां(cid:6) 05.02.2019 (cid:6)ो प्रदान कि(cid:6)या गया था जिजस(cid:6)े प्रधित उत्तर में आप(cid:6)े द्वारा भ्राम(cid:6) एर्वं किमथ्या तथ्यो (cid:6)े आ(cid:19)ार पर जो दो पत्र प्रेकिर्षत कि(cid:6)ये गये थे उनसे यह साफ प्रतीत होता है कि(cid:6) आप इस प्र(cid:6)रण (cid:6)ो गुमराह (cid:6)र लन्धिम्(cid:11)त् रखना चाहती है और आप अपने आचरण तथा (cid:6)ृत्यों में (cid:6)ोई सु(cid:19)ार नहीं लाना चाहती है जिजससे (cid:6)ी किर्वद्यार्थिथयों (cid:6)े ऊपर आप(cid:6)े इन (cid:6)ृत्यों (cid:6)ा किर्वपरीत प्रभार्व पड़ रहा है जिजससे (cid:6)ी महाकिर्वद्यालय में भी अनुशासनहीनता एर्वं अराज(cid:6)ता (cid:6)ो (cid:11)ढ़ार्वा किमल रहा है और महाकिर्वद्यालय (cid:6)ी प्रधितष्ठा एर्वं ख्याधित भी (cid:19)ूकिमल हो रही है। प्राचाय(cid:17) (cid:6)े द्वारा माननीय (cid:6)ुलाधि(cid:19)पधित / राज्यपाल महोदय, (cid:6)ो आप(cid:6)े किर्वरूद्ध किदये गये शिश(cid:6)ायती पत्र (cid:6)ी छायाप्रधित 08 संलग्न(cid:6)ों सकिहत (10 पृष्ठों में) एर्वं 4 of 29 आप(cid:6)े किर्वरूद्ध क्षेत्रीय उच्च शिशक्षा अधि(cid:19)(cid:6)ारी (cid:11)रेली (cid:6)े द्वारा (cid:6)राई गई जांच आख्या (cid:6)ी रिरपो%(cid:17) (02 पृष्ठों) में संलग्न(cid:6)-08 है।" 4.
Legal Reasoning
The petitioner being aggrieved by the said suspension order-cum- charge-sheet challenged the authority of the Management to initiate any disciplinary proceedings or the competence of the Management to issue her the suspension order, as she claimed that the Management was not entitled to initiate any disciplinary proceeding against her in absence of any such approval by the Competent Authority as she has been appointed on the recommendation of the Higher Education Commission. Therefore, if any disciplinary proceedings was required to be initiated against the petitioner that can only be initiated at the instance of the State Government through the Director of Higher Education. The Management has no authority to suspend or to initiate the disciplinary proceedings without due permission from the Competent Authority against the petitioner herein. The petitioner had challenged the suspension order before the Vice-Chancellor under Section 35 (4) and 68-A of the U.P. State Universities Act, 1973 (for short, 'the University Act, 1973') by filing an appeal dated 22.04.2019. 5. Simultaneously, she has also submitted her reply to the charge-sheet on 10.04.2019 against all the eight charges but the said Inquiry Committee, consisting of two Advocates and one Teacher of the institution, returned the findings to the effect that all eight charges against the petitioner stood proved. The said Inquiry Committee submitted its report on 30.07.2019 alongwith a recommendation that the petitioner be removed from the services of the institution. Thereafter, on 03.08.2019, a show cause notice was issued to the petitioner alongwith the copy of the Inquiry Report. The petitioner submitted her reply to the show cause notice on 14.08.2019. Thereafter, vide resolution dated 27.08.2019 the Management had passed the resolution and dispensed the services of the petitioner, subject to the approval of the Vice-Chancellor and the said decision was forwarded to the Vice-Chancellor of the University for 5 of 29 approval, the said termination order was to come into effect after due approval of the Vice-Chancellor. 6. Against the aforesaid termination order, the petitioner/appellant had moved representations dated 17.10.2019 and 31.10.2019 to the Vice- Chancellor against the illegal action of the management. Thereafter, the Vice-Chancellor vide order dated 25.08.2022 has allowed the appeal of the petitioner and while setting aside the termination order dated 27.08.2019, further directed the reinstatement of the petitioner as Associate Professor of the Zoology Department in the Institution. 7. The said order dated 25.08.2022 was challenged by the Management by filing the Writ A No. 14616 of 2022 (C/M Hindu College Moradabad and another vs. Vice Chancellor Mahatma Jyotiba Phule and 3 others), on three grounds, firstly that the hearing took place before the Vice-Chancellor on 05.02.2021 and after inordinate delay the impugned order (in writ petition) was passed. Secondly, the order impugned was non-speaking, unreasoned and was passed without touching the core issues qua the propriety and legality of the inquiry proceedings. Thirdly, in view of the provisions contained under Section 35(2) of the University Act, 1973, it is statutory obligation upon the Vice-Chancellor to consider the decision of the Committee of Management on merits, which has not been done by the Vice-Chancellor, therefore, the entire proceedings were vitiated. 8. Similarly, the said order dated 25.08.2022 was also challenged by the petitioner in Writ A No. 19389 of 2022 (Dr Sudha Garg vs. Vice-Chancellor, M. J. P. Rohilkhand University, Bareilly and 4 others) alleging that though she has raised various contentions with regard to the mala fide and vindictive attitude of the Management towards the petitioner, the Management was not only harassing her but unnecessarily she was subjected to departmental proceedings on the basis of alleged charges, even though it does not constitute any misconduct. She has also taken ground in her petition that even though the case was decided by the 6 of 29 Vice-chancellor on merits, but on facts she was liable to be exonerated from all the charges. 9. Both the aforesaid Writ Petitions being Writ A No. 19389 of 2022 (Dr. Sudha Garg vs. Vice-Chancellor, M. J. P. Rohilkhand University, Bareilly and 4 others) and Writ A No. 14616 of 2022 (C/M Hindu College Moradabad and another vs. Vice Chancellor Mahatma Jyotiba Phule and 3
Decision
others), were finally disposed of by learned Single Judge by a common judgement and order dated 17.07.2023. The relevant portion of the judgement is reproduced herein under:- "Since a joint statement has been made before this court by Sri Indra Raj Singh, learned counsel for the petitioner Committee of Management and Dr. Sudha Garg in person that the order dated 25.08.2022 passed by the first respondent, Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareily be set aside and the matter be remitted back to it for passing fresh order since the order dated 25.08.2022 is bereft of any valid reasons, thus this Court has no option but to set aside the order dated 25.08.2022 passed by the first respondent, Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University, while remitting the matter back to it for taking decision in the matter affording opportunity to petitioner Committee of Management Institution and Dr. Sudha Garg. Since all the parties are present before this Court in present proceedings thus, following directions are also being issued: (a) The petitioner committee of management as well as Dr. Sudha Garg shall appear before the respondent no.1, Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University on 05.08.2023. (b) In case the Committee of Management in question or Dr. Sudha Garg seeks furnishing of any document then they shall demand the same in writing and the first respondent, Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University shall provide the said documents. (c) 11.08.2023 is date wherein a hearing would be conducted either in the presence of parties or their representatives. The Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University, Bareily after hearing the parties shall pass order within a period of three weeks therefrom. (d) In case Dr. Sudha Garg has not been paid subsistence allowance then she shall approach the Committee of Management, Hindu college Moradabad who shall make payment of subsistence allowance within a period of one week, as per the rules governing the subject. With the aforesaid observations Writ petition stands partly allowed. So far as the connected writ petition Writ A no. 19389 of 2022 is concerned, the reliefs sought cannot be granted at this stage as so far as the joining, payment of salary etc. is concerned the same will be dependent upon the fresh exercises undertaken by the Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University. " 7 of 29 10. In terms of the aforesaid order, the appellant/petitioner herein submitted a detailed representation dated 05.08.2023 before the Vice- Chancellor of the University alongwith relevant documents in support of her contentions and the same were based upon her previous conduct, which were solely for the larger interest of the institution as well as of the students. On the same day, she has also made a request vide letter dated 05.08.2023 requesting to provide her various documents relied upon by the Management in the inquiry report. Despite the opportunities granted by the Vice-Chancellor, the Management did not provide the documents demanded by the petitioner herein. 11. Thereupon, the Vice-Chancellor passed a fresh order dated 04.10.2023 holding that the petitioner was not found guilty of any of the charges as levelled by the management. Thereafter, he declined to accord approval to the termination order as proposed by the Management. The Vice- Chancellor had returned the findings in favour of the petitioner and held that she is entitled for reinstatement in service with all consequential benefits. While deciding the case, the Vice-Chancellor had framed following four issues for determination:- "1. whether the principle of natural justice was complied with before passing the impugned order? 2. whether there are sufficient grounds for passing the conditional order of termination? 3. whether the proposed punishment order was commemorated to the alleged offence? 4. whether Dr. Sudha Garg was unduly discriminated and punished for acting as a whistle blower against the shortcomings in the College" 12. Findings have been returned by the Vice-Chancellor that all the four issues are unsustainable against the appellant/petitoner herein and it has been found that the inquiry committee constituted by the Management was a biased Committee as the same consisted two Advocates, who were representing the Management in various capacities and defending the Management in Court of law and has also represented before the Vice- Chancellor, as representative of the Management. Therefore, it was held that the Inquiry Committee was biased against the petitioner. It was 8 of 29 further held that the petitioner was not granted sufficient opportunity of hearing and she was not allowed to cross-examine various witnesses despite her request for cross-examination of the witnesses. Therefore, no sufficient opportunity of hearing was granted to the petitioner. The Vice- Chancellor has also examined each and every charges levelled against the petitioner and finding of facts were recorded in her favour. 13. Being aggrieved by the aforesaid order dated 04.10.2023, passed by the Vice-Chancellor, the Committee of Management once again challanged the same in Writ A No. 20031 of 2023 (Committee of Management Hindu College Moradabad and another vs. Mahatma Jyotiba Phule Rohilkhand University and 2 Others). Being aggrieved with the limited part of the said order wherein the Vice-Chancellor has sustained the charges nos.1 and 6 against her, the appellant herein has also filed Writ A No. 18909 of 2023 (Dr. Sudha Garg, Associate Professor and Head of Department of Zoology at Hindu College Moradabad). Both the aforesaid petitions were disposed of by the common impugned judgment and order dated 08.02.2024. While deciding the aforesaid writ petitions, the learned Single Judge has framed the following three questions for determination:- "(a) Whether a recognized Committee of Management of recognized/affiliated degree College of University is empowered to institute disciplinary proceedings and hold departmental enquiry against teachers of the college who are appointed on recommendations of the Higher Education Service Commission; (b) Whether the departmental enquiry held by the enquiry committee and consequential decision taken by the disciplinary authority has been as per procedure prescribed for and principles laid down in various authorities of the Supreme Court and this Court that govern departmental enquiries; and (c) Whether Vice Chancellor is justified in holding that no charges have been proved to entitle Dr. Sudha Garg reinstatement even while sustaining charge no. 1 and 6 as per his own findings. " 14. Learned Single Judge has answered the question (a) in affirmative and question (b) in negative. With regard to the question (c), learned Single Judge found that the Vice-Chancellor has erroneously recorded in the final part of the order that petitioner was not guilty of any charges 9 of 29 despite recording his finding that charge nos. 1 and 6 are sustained against the petitioner and therefore, learned Single Judge has quashed the inquiry report as well as the order passed by the Vice-Chancellor and relying upon judgement passed by the Apex Court in ECIL v. B. Karunakar, (1993) 4 SCC 727 as well as the judgement of the Coordinate Bench of this Court in Committee of Management, Muslim Inter College and Another v. State of U.P. and Others, 2023 (1) ADJ 308 (DB). The relevant portions of the judgement are reproduced herein under:- "67. In view of above, while I am quashing the order of Vice Chancellor dated 4.10.2022 reinstating the petitioner, I am also quashing the enquiry report dated 30th July, 2019 with following further directions: i). Petitioner shall be restored to the status of the suspended teacher as she had been at the time of initiation of departmental enquiry and shall be paid subsistence allowance regularly including arrears, if any, due. ii). The Committee of Management shall constitute enquiry committee afresh within three weeks from the date of presentation of certified copy of this order. However, this time, it will endeavour, as far as possible, to include teachers of the college and of the University, if possible, who are senior to Dr. Garg also as members of enquiry committee. iii). The Committee of Management shall immediately supply all the documents that were available with earlier enquiry committee including affidavits of teachers and students to the petitioner within two weeks from the date of production of certified copy of the order and petitioner shall within two weeks thereafter submit her additional reply with reference to the documents so supplied. iv). The enquiry committee shall fix a date and notify all those witnesses who were examined by the enquiry committee earlier to appear before it fixing a date, time and place and shall give opportunity to Dr. Garg to cross examine each of the witnesses but not more than 2 or 3 dates shall be fixed for this purpose. v). After cross-examination procedure is completed, the enquiry committee shall submit report afresh to the Committee of Management within three months of its constitution who shall then proceed in accordance with and as per procedure prescribed meeting the requirements of second show cause notice, if enquiry committee held her guilty of charges, in the light of the judgment in Managing Director ECIL, Hyderabad (supra). Final decision shall be taken by Committee of Management within next one month’s time of submission of enquiry report. 68. In the circumstances, impugned order dated 4.10.2023 passed by respondent Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University Bareilly as well as resolution of the Committee of Management dated 27.08.2019 are quashed. " (emphasize supplied) 10 of 29 15. Being aggrieved by the aforesaid common judgment and order dated 08.02.2024, the present special appeal has been filed by the appellant/petitioner. ARGUMENTS OF THE APPELLANT 16. The appellant/petitioner has appeared in person and has submitted that since she was appointed as Lecturer in the affiliated College/University by the State Government through the Director of Higher Education, therefore, the State Government is the appointing authority and the Management cannot be an appointing authority merely because the Management has issued the appointment letter as per the directions issued by the Director of Higher Education. It was submitted that after the recommendation of the Director Higher Education, the Management does not have any discretion with regard to issuance of appointment letter, which is just a formality and the Management is legally bound to issue the appointment letter after the recommendation of the Higher Education Commission and thereafter due placement order issued by the Director, Higher Education, as per the scheme of the Commission Act, 1980. 17. While placing reliance upon Chapter III (Section 11 to 18) of the Commission Act, 1980, the petitioner assertively submitted that the recommendation of the Higher Education Commission followed by placement order issued by the Director, Higher Education, is binding on the Management with regard to the appointment of teachers in higher educational institutions. She further contended that the Vice-Chancellor is, in fact, a Disciplinary Authority and in the instant case, no disciplinary proceedings could have been initiated in absence of any approval accorded by the Vice-Chancellor against the petitioner, rather, the Vice- Chancellor has repeatedly found that Management did not have authority to proceed the disciplinary proceedings in the fact of the case, which were uncalled for. In fact, the petitioner was a whistleblower, who has pointed out certain shortcomings in the institution. 11 of 29 18. The petitioner vehemently submitted that she has been unnecessaily victimised by the Management which is writ large from the fact that she was malafidely placed under suspension and thereafter unfair Enquiry Committee was deliberately constituted by the Management with nefarious intention to hold the petitioner guilty and eventually termination order was passed. Even though the said termination order was disapproved by the Vice-Chancellor and while setting aside the same, she was directed to be re-instated. 19. The appellant/petitioner further submitted with deep regard to the learned Single Judge, that the learned Single Judge erred in law in placing reliance upon the judgement in B. Karunakar (supra) as well as the judgement of the Division Bench of this Court in Committee of Management, Muslim Inter College (supra) and has wrongly and errorneously remitted the matter back to the Management for holding a fresh inquiry. She elaborated that she is immensely suffering due to uncalled and biased action on the part of the Management despite none of the charges have been approved by the Vice-Chancellor against her. 20. She submitted that the learned Single has even though found that the inquiry has not been conducted in proper manner rather the same was conducted in a biased manner and also held that without granting her sufficient opportunity of hearing and without according her any opportunity to cross-examine the witnesses, the inquiry proceeded and despite her repeated requests, neither any opportunity was accorded nor the documents were provided to her. Once, such a findings of fact were recorded by the learned Single Judge, then the natural consequence would have been to direct the Management to reinstate the petitioner with all consequential benefits. But surprisingly the matter had again been remitted back to the Management, which will result in further harassment of the petitioner which she has been already subjected to since, 2019. 21. She submitted that the judgement of Managing Director, ECIL (supra) is not at all applicable in the instant case as in the said case the 12 of 29 inquiry report was not supplied before passing an order of termination. Even though the same was mandatory requirement and the same was only a technical defect in the proceedings, therefore, Hon'ble Apex Court had remitted the matter to the stage of providing the copy of the inquiry report and granting opportunity to show cause to the delinquent in that case before passing the final order. However, in the instant case the Vice- Chancellor as well as the learned Single Judge has categorically found that the entire inquiry against the petitioner was mala fide and was against all principles of natural justice as the inquiry committee was found to be biased against the petitioner and has neither supplied the relevant documents to her nor given any opportunity to cross-examine various witnesses, despite her repeated request. Therefore, the facts of the instant case are entirely different from the case of the Managing Director, ECIL (supra). 22. In this backdrop, she has prayed for quashing of the entire inquiry proceedings against her and reinstatement forthwith, with all consequential benefits without any further leverage to the Management to initiate the proceedings as the Management is biased against her and further relegation would only be an eye-wash. 23. The appellant lastly submitted that even on merit the charges are not so serious, which may warrant major punishment. In this regard she relied upon decision of the Apex Court A.N.D. Silva v. Union of India, 1961 SCC OnLine SC 81 and has submitted that it is beyond the authority of Inquiry Committee to propose punishment while submitting the enquiry report. In the instant case the Inquiry Committee has not only given report with regard to the charges but has also made a recommendation for the termination of services of the petitioner which categorically indicates the mind of the Inquiry Committee being biased against the petitioner. 13 of 29 ARGUMENTS OF THE OPPOSITE PARTY- MANAGEMENT 24. Per contra, learned counsel for the Management, Sri Indra Raj Singh has submitted that even if the Court finds that the inquiry was not conducted in proper manner then natural consequence is not at all to reinstate the petitioner to the services directly but the matter has to be remitted back to the stage from where the inquiry proceedings were found to be vitiated. Therefore, the learned Single Judge has not committed any error while remitting the matter back with the aforesaid directions for initiating the fresh proceedings by constituting another Inquiry Committee and has kept the petitioner under suspension in the interest of Institution. Therefore, there is no error in the judgement and order passed by the learned Single Judge, thus, no interference is called for. 25. He further submitted that with the direction of constituting another Inquiry Committee afresh with new members therein, the alleged defect in the enquiry proceedings stood cured and the matter requires to be re-inquired against the the petitioner, obviously, from the stage of suspension. 26. He lastly submitted that the learned Single Judge has rightly passed the impugned judgement in accordance with the provisions of law and the charges are required to be examined by the fresh Inquiry Committee. Therefore, there is no error in the judgement an order passed by the learned Single Judge and no interference, therefore, is called for by the Appellate Bench. ANALYSIS BY THE COURT 27. Having heard the rival submissions made by learned counsel for the parties, we have carefully gone through the records of the case. From the aforesaid arguments advanced by the appellant as well as learned counsel for the respondent Management, the following issues emerged for determination of this Court:- 14 of 29 I) Whether in case of appointment of the teachers in the affiliated Degree College of the University where the appointment letters have been issued by the recognized Committee of Management on the recommendation of the Director, Higher Education, pursuant to selection by the Commission, who will be the Competent Authority to initiate the disciplinary proceedings against the teachers, so appointed; II) Whether the departmental inquiry conducted by the Inquiry Committee appointed by the Management and the consequential decision taken by the disciplinary authority was in accordance with procedure prescribed and in compliance of the principles of natural justice laid down by various authorities of the Apex Court as well as this Court, qua the Departmental inquiries. III) Once if it is found that the departmental inquiry was not conducted in accordance with the procedure prescribed and was conducted in violation of principles of natural justice, what relief can be granted to the delinquent employee. 28. Before dealing with the first issue, it will be relevant to note the relevant provisions of the University Act, 1973 as well the first statute of the University and the relevant provisions of the Commission Act, 1980. 29. Sections 31(1), 49(d) and 21(1)(XVII) of the University Act, 1973 reads as under:- 31. Appointment of Teachers.— (1) Subject to the provisions of this Act, the teachers of the University and the teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government, 3[* * *]) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided 1[the Selection Committee shall meet as often as necessary.] 49. Statutes (d) the classification and recruitment (including minimum qualifications and experience) of Principals and other teachers of the University and of affiliated and associated colleges, the maintenance by them of their annual academic progress report, the rules of conduct to be observed by them and their emoluments and other conditions of service (including provisions relating to compulsory retirement); 21 Powers and duties of Executive Council. (1) The Executive Council shall be the principal executive body of the University and subject to the provisions of this Act, have the following powers, namely— (xvii) to regulate and determine all other matters concerning the University as well as Institutes, constituent, affiliated and associated colleges and in accordance with this Act, the Statues and the Ordinances. 15 of 29 30. The relevant provisions as contained in first statute of the University 14.02-A, 14.03-A, 14.04-A, 14.05-A and 14.07-A are reproduced hereunder:- “14.02-A A teacher of the University shall at all times maintain absolute integrity and devotion to duty and shall observe the Code of Conduct professional ethics mentioned in Statute 14.34 and the code of conduct as set out in Appendix ‘C, which shall form part of the agreement to be signed by the teacher at the time of appointment. (Section 49) (d) 14.03-A- A breach of any of the provisions of the Code of Professional ethics mentioned in statute 14.34 and code of conduct as set out in Appendix ‘C’ shall be deemed to be a misconduct within the meaning of Statute 14.04-A(1). (Section 49) (d) 14.04A- (1) A teacher of the University may be dismissed or removed or his services terminated on one or more of the following grounds: (a) wilful neglect of duty; (b) misconduct, (c) breach of any of the terms of contract of service; (d) dishonesty connected with the University examinations; (e) scandalous conduct or conviction for an offence involving moral turpitude; (f) physical or mental unfitness; (g) incompetence; (h) abolition of the post. (2) Except as provided by Section 31(2), not less than three months notice (or where notice is given after the month of October, then three months’ notice or notice ending with the close of the session whichever is longer) shall be given on either side for terminating the contract of service or in lieu of such notice, salary for three months (or such longer period as aforesaid) shall be paid or refunded, as the case may be: Provided that where the University dismisses or removes or terminates the services of a teacher, under clause (1) or when the teacher terminates the contract for breach of any of its terms by the University, no such notice shall be necessary: Provided further that the parties will be free to waive the condition of notice, in whole or in part by mutual agreement. 14.07-A(1) The disciplinary committee referred to in statute 8.01 may recommend the suspension of a teacher during the pendency or in contemplation of an inquiry into charges against him/here, on the ground mentioned in sub-clause (a) to (e) of Clause (1) of Statute 14.04. The order of suspension, if in operation on the expiry of four weeks unless the teacher has in the mean time been communicated the charges on which the inquiry was contemplated. (2) A teacher of University shall be deemed to have been placed under suspension- 16 of 29 (a) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding 48 hours and is not forth with dismissed or removed consequent to such conviction; (b) In any other case, for the duration of his detention, if he is detained in custody, whether the detention is for any criminal charge or otherwise.” 31. The provisions of Clause 14.02, 14.03, 14.04, 14.05 and 14.07 of the first Statue of the University read as under:- “14.02. Except in the case of an appointment under Section 31(3) in a vacancy caused by the grant of leave to a teacher for a period not exceeding 10 months, teachers of an affiliated college shall be appointed on a written contract in form (1) or form (2) set out in Appendix ‘C’ as the case may be. (Section 49) (o) 14.03. (1) A teacher of the a College shall at all times maintain absolute integrity and devotion to duty and shall observe the Code of Professional Ethics mentioned in statute 14.34-A and Code of Conduct as set out in Appendix C, which shall form part of the agreement to be signed by the teacher at the time of appointment. (2) A breach of any of the provisions of the Code of Professional Ethics mentioned in statute 14.34-A and Code of Conduct as set out in Appendix C shall be deemed to be misconduct within the meaning of Statute 14.04 (1). (Section 49) (o) 14.04(1) teacher of an affiliated college (other than a Principal) may be dismissed or removed or his services terminated on one or more of the following grounds:- (a) wilful neglect of duty; (b) misconduct, including disobedience to the order of the Principal; (c) breach of any of the terms of contract of service; (d) dishonesty connected with the University or College examinations; (e) scandalous conduct or conviction for an offence involving moral turpitude; (f) physical or mental unfitness; (g) incompetence; (h) abolition of the post (2) A principal of an affiliated college may be dismissed or removed, or his services terminated on grounds mentioned in clause (1) or on the ground of continuous mismanagement of the college. (3) Except as provided by clause (4), not less than three months’ notice (or where notice is given after the month of October, then three months’ notice or notice ending with the close of the session whichever is longer)shall be given on either side for terminating the contract of service or in lieu of such notice, salary for three months (or longer period as aforesaid) shall be paid or refunded, as the case may be: Provided that where the Management dismisses or removes or terminates the services of a teacher, under clause (1) or clause (2) or when the teacher 17 of 29 terminates the contract for breach of any of its terms by the Management, no such notice shall be necessary: Provided further that the parties will be free to waive the condition of notice, in whole or in part by mutual agreement. (4) In the case of any other teacher appointed in a temporary or officiating capacity services shall be terminable, by one month’s notice or on payment of salary in lieu thereof, on either side. 14.07. The Management shall have the power to suspend a teacher during the pendency or in contemplation of an inquiry into charge against him, on the grounds mentioned in subclass (a) to (e) of clauses (1) of Statute 14.04. In an emergency, (in the case of teacher other than principal) this power may be exercised by the principal in anticipation of the approval of the Management. The Principal shall immediately report such case to the Management. The order of suspension if passed in contemplation of an inquiry shall cease at the end of four weeks of its operation unless the teacher has in the mean time being communicated the charge of the charges on which the inquiry was contemplated.” (emphasis added) 32. The provisions as contained in Sections 11, 12, 13, 14, 15, 16, 17, 18, 25, 26, 27, 28, 29 and 30 of the Commission Act, 1980 reads as under: "Functions of the Commission 11. Powers and duties - The Commission shall have the following powers and duties, namely- (a) to prepare guidelines on matters relating to the method of recruitment of teachers in Colleges ; (b) to conduct examinations where considered necessary, hold interviews and make selection of candidates for being appointed, as such teachers ; (c) to select and invite experts and to appoint examiners for the purposes specified in clause (b) ; (d) to make recommendation to the management regarding the appointment of selected candidates; (e) to obtain periodical returns or other information from colleges regarding strength of the teaching staff and the appointment, dismissal, removal, termination or reduction in rank of teachers therein; (f) to fix the emoluments and travelling and other allowance of the experts and examiners; (g) to administer the funds placed at the disposal of the Commission; (h) to perform such other duties and exercise such other powers as may be prescribed or as may be incidental or conducive to the discharge of the above functions. 11A. Additional Powers and duties of the Commission-The Commission shall also have Powers and duties of the Selection of Candidates for appointment to the Posts of librarians of the College and with respect to the selection of Candidates for appointment to the Post of librarians of the Colleges the 18 of 29 provisions of Section 11, sub-section(1) (excluding the proviso), sub-sections (2), (3) and (4) of Section 12, Section 13, Section 14, Section 15, Section 17, and Section 18 shall mutatis mutandis apply.] 12. Procedure for appointment of teachers (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation — The expression “academic year” means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject wise consolidated list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations : Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3) : Provided further that the candidates shall be required to indicate their order of preference for the various colleges, vacancies wherein have been advertised. 13. Recommendation of Commission- (1) The Commission shall, as soon as possible, after the notification of vacancies to it under sub-section (3) of section 12, hold interview (with or without written examination) of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so for as practicable, twenty-five per cent more than the number of vacancies in that subject such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held. (2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission. (3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to sub- section (4) of section 12, intimate to the management the name of a candidate from the list referred to in sub-section (1), for being appointed in the vacancy intimated under sub-section (2) of section 12. (4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2), and such vacancy has not been notified to the Commission under sub-section (3) of section 12, the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated, the State Government may make suitable order for his appointment in suitable vacancy, whether notified under sub- section (3) of section 12 or not, in any other college, and thereupon the Director shall intimate to the management accordingly. 19 of 29 (6) The Director shall send a copy of the intimation made under sub-section (3) or sub-section (4) or sub-section (5) to the candidate concerned.] 14. Duty of Management (1) The management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub- section (4) or sub-section (5) of section 13, issue appointment letter to the person whose name has been intimated. (2) Where the person referred to in sub-section (1) fails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such person is otherwise not available for appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the Commission under sub-section (1) of section 13 in the manner prescribed.] 15. Inquiry by Director (1) Where any person is entitled to be appointed as a teacher in any college in accordance with sections 12 to 14, but he is not so appointed by the management within the time provided therefore, he may apply to the Director for a direction under sub-section (2). (2) On receipt of an application under sub-section (1), the Director may hold an inquiry, and if he is satisfied that the management has failed to appoint the applicant as a teacher in contravention of the provisions of this Act, he may by order, require- (a) the management to appoint the applicant as a teacher forthwith, and to pay him salary from the date specified in the order; and (b) the principal of the College concerned to take work from him as a teacher. (3) The amount of salary, if any due to such teacher shall, on a certificate issued by the Director, be recoverable by the Collector as arrears of land revenue. 16. [ * * * ] 17. Power to call for information- The Commission may require the management of any college to submit such information or return regarding the matters referred to in section 11 as it thinks fit, and the management shall be bound to comply with the same. 18. Power to inspect records, register etc.- The Secretary or any other officer authorized by the Commission shall have access to every record, register or document in possession of the management and he may enter at any reasonable time, any premises where he believes such record, register or document to be, and may inspect and take copies of relevant records or documents. 25. Punishment for contravention of the provisions of the Act- Any person who fails to comply with the recommendations of the Commission or with the orders of the Director made in accordance with the provisions of this Act, or appoints a teacher in contravention of the provisions of this Act, shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both. 26. Punishment for failure to furnish information or wilful obstruction- If any person- (a) wilfully withholds or fails to furnish any return or information lawfully required by the Commission within the time allowed therefor : 20 of 29 (b) wilfully obstructs any person from duly carrying out all or any of the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. 27. Offences by societies (1) If the person committing the offence under section 25 or section 26 is a society registered under the Societies Registration Act, 1860, the society as well as every person incharge of and responsible to the society for the conduct of its business at the time of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a registered society and it is proved that the offence has been committed with the consent or connivance of, or that the commission of offence is attributable to any neglect on the part of any member of the society, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 28. Bar against prosecution- No prosecution for the offence under this Act shall be instituted except with the previous sanction of the Director or such officer or authority as the State Government may, by general or special orders, specify in this behalf. 29. Protection of action taken in good faith- No suit, prosecution or other proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act. 30. Act to have overriding effect- The provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder." (emphasize supplied) 33. So far as the question, which relates to appointing authority, is concerned, it has been elaborately considered by the learned Single Judge from paragraphs 13 to 41 of the impugned judgment. Learned Single Judge considered various provisions of the First Statute of the University as well as the relevant provisions of the University Act, 1973 as well as the provisions contained in Sections 13 to 18 of the Commission Act, 1980 and after considering all the provisions and relying upon the judgments of the Apex Court in P.V. Srinivasa Sastry vs. Controller and Auditor General (1993) 1 SCC 419 and Jai Jai Ram vs. U.P. State Road Transport Corporation (1996) 4 SCC 727, the learned Single Judge, has held that since the First Statute of the University itself provides that the 21 of 29 Committee of Management shall be the Disciplinary Authority, therefore, the Committee of Management shall be the appointing authority and would be competent to initiate disciplinary proceedings. 34. Learned Single Judge has, therefore, concluded that the Committee of Management would be the disciplinary authority and while drawing such conclusion learned Single Judge has referred to the recommendations of the Uttar Pradesh Public Service Commission, which are not binding on the State Government, which is the Competent Authority. However, learned Single Judge has lost sight of the fact that in case of Uttar Pradesh Public Service Commission, the recommendation of the Uttar Pradesh Public Service Commission is not binding on the appointing authority. Unlike that, here the recommendations issued by the Director of Higher Education in terms of the Section 13 of the Commission Act, 1980 and as per the mandate of Sections 14, 15, 25 & 26 of the Commission Act, 1980 the Management of an affiliated college has no discretion regarding the appointment of any teacher, so selected and recommended by the Commission. Section 15 of the Commission Act, 1980 empowers the Director to get such recommendation complied with through the Management Committee of the affiliated college. Non- compliance of direction and recommendation of the Commission is an offence under Sections 25 and 26 of the Commission Act, 1980. Thus, the Management has no discretion or choice in the matter of selection of a teacher for an affiliated college. The Management is bound to comply with the recommendations issued by the Director of Higher Education. Section 31 of the Act, 1973, which deals with the appointment of teachers, is no more in operation with regard to the selection and appointment of teachers in the affiliated college of University after the enactment of Commission Act, 1980. Now, the selection and appointment of the teachers in the affiliated colleges is governed by Chapter III of the Commission Act, 1980 and the Management has no discretion with regard to the appointment of the teachers in the affiliated colleges of the 22 of 29 University, which is evidently clear by the provisions of Section 30 of the Commission Act, 1980 which states that this Act will have the overriding effect notwithstanding anything to the contrary contained in the Act, 1973 or the statutes or the ordinances made thereunder. 35. Considering the entire scheme of the Commission Act, 1980 the Management of the affiliated college has no discretion at all with regard to the appointment of teachers in the affiliated colleges rather they are bound to issue the appointment letters in terms of the directions issued by the Director of Higher Education. If such directions are not complied with, the Director of Higher Education has been empowered to get such recommendations enforced. Therefore, in our considered view, after the enactment of the Commission Act, 1980 the Management has no discretion to deviate from the recommendation of appointment of teachers in the affiliated college. It is further more relevant to take note of Section 25 of the Commission Act, which provides for punishment in case of failure to comply with the recommendation of the Commission or the orders or the directions issued in accordance with the provisions of the Commission Act, 1980 or any appointment of a teacher in contravention of this Act. Therefore, the Management has no option but to comply with the recommendations of the Commission as well as the Director of Higher Education with regard to appointment of the teachers. Unlike the Higher Education Commission, the U.P. Public Service Commission, which has been referred by learned Single Judge, has no such power to punish the appointing authority for non-compliance of its recommendation and directions. 36. Thus, as per the scheme of the Commission Act, 1980, specifically Section 30 of the Commission Act, 1980 though the Management continued to be the appointing authority, however, it has no discretion with regard to the appointment of teachers recommended by the Higher Education Commission through its Director. However, with regard to the initiation of the disciplinary 23 of 29 proceedings, against the teachers so appointed, the Commission Act, 1980 is silent. Therefore, the provisions of the University Act, 1973 as well as the First Statute of the University shall be applicable with regard to the teachers, appointed in the affiliated colleges of the University. Thus, we are of the considered opinion that with regard to the suspension of such teachers and initiation of the disciplinary proceedings against them, the provisions of the University Act, 1973 as well as the Statute of the University are applicable. Thus, we answer the first issue to the effect that the Management is competent to initiate the disciplinary proceedings against such teachers appointed in the affiliated college of a University on recommendation of Director of Higher Education. 37. With regard to the second issue learned Single Judge has dealt with the same in detail and the observations of the learned Single Judge in paragraphs nos. 46, 47, 50, 52, 57, 58 and 59 are of much relevance, which are reproduced herein under: "46. The argument advanced by Dr. Garg has been that she was not given any copy of the statements submitted before enquiry report whereas findings in the enquiry report are to the effect that two teachers gave their statement on 26.4.2019 and students had appeared before enquiry committee and gave their statements in presence of Dr. Garg and Dr. Garg refused to cross examine them. This argument of no opportunity to meet various affidavits and cross examine witnesses is contrary to what is recorded in the enquiry report, and therefore, it becomes necessary now to examine this aspect and go through the documents to that count brought on record. There is one such document appended to the writ petition filed by Dr. Garg and which formed part of her reply submitted to the Vice Chancellor. This is of 21st May, 2019 which records that Committee was fixing a date on the request of Dr. Garg for furnishing her evidence but this also records that Dr. Garg pleaded before the enquiry committee that she was not given any opportunity to cross examine witnesses and that she had demanded copies of the statements and evidence collected by the enquiry committee, and therefore, all these documents should be supplied to her. Relevant document dated 21st May, 2019 which appears to be ordersheet of the enquiry report, is reproduced hereunder: आजकिदनां(cid:6)21.05.2019 " (cid:6)ोजाँच(cid:6)मे%ी(cid:6)े द्वाराडॉ०सु(cid:19)ागग(cid:17)(cid:6)े किनलम्(cid:11)न(cid:6)े प्र(cid:6)रणमेंमहाकिर्वद्यालय(cid:6)े प्रागणमेंआ(cid:6)रडॉ०जे०(cid:6)े०पाठ(cid:6)(cid:6)े खिलखिखतब्यानखिलयेगये जिजसपरडॉ०सु(cid:19)ागग(cid:17) (cid:6)े द्वाराजिजरह(cid:6)रनेसेइन्(cid:6)ारकि(cid:6)या।डॉ०सु(cid:19)ागग(cid:17) सेसम्(cid:11)न्धिन्(cid:19)त सभीपत्राचार/ प्रपत्रप्राचाय(cid:17) (cid:6)े द्वाराजाँच(cid:6)मे%ी(cid:6)ोकिदयेगये।डॉ०सु(cid:19)ागग(cid:17) (cid:6)े द्वाराअपना साक्ष्य देने हेतु समय मांगा उन(cid:6)ी सहमधित से जाँच (cid:6)मे%ी (cid:6)े द्वारा किदनां(cid:6) 01.06.2019 (शकिनर्वार) (cid:11)जे(cid:6)ीअगलीतारीखकिनयत(cid:6)ीजारहीहै। (cid:6)ोदोपहर12:00 ह०अपठनीय कि(cid:6)शनस्र्वरूपभ%नागर) ( ह०अपठनीय डॉ०र्वी०(cid:6)े०त्यागी) ह०अपठनीय किर्वनीत(cid:6)ुमारगौड़) ( 24 of 29 अध्यक्षसदस्यसदस्य " “Sir, 1. I never provided any opportunity of cross-examination of any of the witnesses who have submitted their statements & evidence till date. 2. I have the right to have true copies of all the statements/evidences collected so far by the Inquiry Committee in this matter. 3. I again submit to provide me the true copy of all collected statements/ evidences so that can cross-examine all the things & or submit my statement further in the matter. I highly object this unfair proceedings of the Inquiry Committee.” Applicant Sudha Garg Signature 21.05.2019 47. The enquiry report is absolutely silent about this request letter made by the petitioner on 21st May, 2019 which is obviously subsequent to the recording of the statements of various students, as claimed, on 26.4.2019. It becomes, therefore, difficult to justify findings in the enquiry report that all the statements were read out to Dr. Garg and yet she refused to cross examine the witnesses. Had it been a correct fact that Dr. Garg was apprised with statements or the statements were made before her then all that the enquiry committee was required to record was that this request demanding various affidavits and documents and 21st May, 2019 was only with an intention to delay the enquiry. The ordersheet dated 21st May, 2019 only refers to the fact that Dr. Garg refused to even examine Dr. J.K.Pathak and no other witness has been named. Regarding 2nd July, 2019 as discussed in the enquiry report ordersheet is absolutely silent as to any opportunity being afforded to the petitioner to cross examine teachers and the students and Dr. J.K.Pathak after they submitted reply in between 21st May, 2019 and 22nd July, 2019. It is therefore, clearly established that in the matter of oral enquiry held by the enquiry committee, petitioner though might have been given an opportunity to appear but she was never supplied with requisite documents that formed material evidence against her, nor was afforded any opportunity to cross- examine such witnesses. The finding part of the enquiry report to the contrary is based upon no evidence more especially in the face of there being no discussion as to ordersheet dated 21st May, 2019 that reflected that all those affidavits and documents furnished by teachers and students were required by the petitioner in order to to meet them. 50. On the finding part of the enquiry report, I find, there are about eight charges levelled against Dr. Garg and what is interesting to notice is that basic charge was in respect of closing admission in the two optional subjects of Cytology and Entomology of the Zoology subject and that practical examinations were not held as per schedule. While enquiry report discusses the statement of students that they were forced not to take admission in these two optional subjects but as to the charge that practical examination of first and second year zoology students was unnecessarily delayed and were deferred against the schedule of the University, no evidence has been discussed. All the 25 of 29 testimonies were of students of M.Sc. third year and not M.Sc. 1st and 2nd year in whose respect the charge was that their practical examination was delayed. Dr. Garg’s reply to this above charge was that students were duly informed by affixing notice on 30th January, 2019 and then on 31st January, 2019 that practical will be held between 11th February, 2019 and 22nd February, 2019 and that practicals were so held but this reply has not been at all referred to. 52. The other charges were regarding taking of Rs. 2,000/- etc. vide charge no. 3 but reply by Dr. Garg vide Point No. 3 to the above charge has also not been discussed except allegation of teachers whose testimonies/ statements were not supplied to the petitioner, and they were also not permitted to be cross examined. Cahrge Nos. 4 and 5 were not serious charges and except for the affidavit of J.K.Pathak whose affidavit was not supplied to the petitioner there was no further evidence. As far as charge nos. 7 and 8 are concerned, I do not find there to be any discussion except for the statement of certain teachers that because of the conduct of the Dr. Garg the atmosphere got spoilt and was not conducive to the academic activities on campus. 57. But question remains to be answered as in the case in hand, as to whether there was an enquiry conducted in consonance with the rules of procedure so as to close the doors of Court to interfere with final award of punishment and further the finding of bona fide loss of confidence and trust is vitiated for lack of transparency and fairness in procedure adopted to conduct enquiry. The case in hand is one such case where from the enquiry report it is apparent on the face of record that enquiry committee just referred to two basic events that oral evidence was accepted in presence of Dr. Garg and yet she refused to cross examine and then she also supplied written submissions, a large number of documents and a compact disc, but as I have discussed above, there is no reference to the order-sheet dated 1.6.2019, inasmuch as there is no discussion on any documents furnished by her including the compact disc. This shows that the enquiry committee did not consider it appropriate to give Dr. Garg a reasonable opportunity by supplying documents required by her and to permit her to cross examine the departmental witnesses. 58. This in my considered view, therefore, is not a fair procedure and, thus, it becomes a case ‘singularly singular’, an expression used by the Supreme Court in Kumaon Mandal Vikas Nigam Ltd. (supra) case to interfere with. It is well said that each case is to be tested on its own facts and looking to the facts of the case in hand, I come to conclude that there is definite lack of transparency in terms of reasonable opportunity to delinquent employee to defend her case. There are departmental evidence utilized by the enquiry committee in bringing home the charges but opportunity of rebuttal by supplying those documents to the petitioner and opportunity of cross examination of the departmental witnesses were not provided inasmuch as the documentary and other material evidence submitted by petitioner in rebuttal, were not discussed at all. 59. In the resolution passed by the Committee of Management to terminate petitioner, I find only findings returned by enquiry committee to have been relied upon and so also in the entire order passed by the Manager of the college. Any subsequent opportunity by way of second show cause notice to delinquent employee would not fill up inherent lacunae on the part of the enquiry committee in conducting the enquiry. Thus, merely because Dr. Garg was given opportunity by way of second show cause notice would not make deficient enquiry good. Thus second point ‘(b)’ stands answered in favour of 26 of 29 Dr. Garg and against the Committee of Management to effect that entire enquiry conducted by enquiry committee was a farce. " 38. The aforesaid observations and findings have not been challenged by the Management before the Division Bench. Therefore, the same did not require any re-appreciation and the same are affirmed. Since, the Vice-Chancellor in its order dated 04.10.2023 as well as the learned Single Judge in the impugned order has categorically found that the Inquiry Committee constituted by the Management was biased towards the appellant/petitioner as the members of the Committee were in fact the counsels for the Management, who are representing the Management not only in the other cases but have also represented the Management before the Vice Chancellor. Thus, the Inquiry Committee itself was found biased against the appellant and during the inquiry proceedings, the appellant was not provided the relevant documents nor she was given any opportunity to cross-examine the witnesses who were produced by the Management. Thus, the entire disciplinary proceedings has been found to be vitiated. Accordingly, learned Single Judge has observed in para 64, which reads as under:- "64. In my considered view if the Vice Chancellor was of the view that 1st and 6th charges were sustainable then he was certainly not justified in holding that Dr. Sudha Garg was not guilty of any of the charges. However, it appears that Vice Chancellor since found there to be non compliance of natural justice, therefore, he proceeded to pass this kind of order reinstating the petitioner. In my considered view if there has been violation of principles of natural justice, then best course would have been to remit the matter to the authority concerned to re-hear the matter and pass order afresh in accordance with law. " 39. Learned Single Judge has found that there was violation of principles of natural justice by the Inquiry Committee, therefore, the entire proceedings conducted were set-aside and the inquiry report dated 30.07.2019 was quashed by the learned Single Judge. We also find that the findings returned by learned Single Judge warrant no interference as per the record. More so, the Management has not assailed the finding of fact which is recorded by the learned Single judge which in fact stand admitted. 27 of 29 40. With regard to the third and last question as to what relief the appellant is entitled for? Though, the learned Single Judge has quashed the Inquiry Report in toto, however, relying upon the judgement and order of the Apex Court in Managing Director, ECIL (supra) and the judgement of Division Bench of this court Committee of Management, Muslim Inter College and Another (supra) has referred the matter back to the Management for reconstituting the fresh Inquiry Committee while keeping the appellant herein under suspension. Conclusion 41. In our considered opinion, learned Single Judge has misconstrued the aforesaid judgement of the Apex Court as well as the Division Bench as in those judgements it has been held that if a disciplinary proceedings was found defective for any technical lapse during the inquiry which vitiates the proceedings then the matter is required to be remitted back to the inquiry for completing the disciplinary proceedings by removing the said defect. However, in the instant case from the inception of the disciplinary proceedings it has been found that the Management was annoyed with the shortcomings pointed out by the appellant in the library as well as in the laboratory of the institution and due to which the instant disciplinary proceedings have been initiated in a biased manner against the appellant. The biased approach of the Inquiry Committee is also reflected by the fact that while submitting its report the Inquiry Committee itself has recommended for termination of the services of the appellant, which was beyond the scope of the Inquiry Committee. Since, the appellant has already suffered for more than five years due to unwarranted proceedings initiated by the Management, the Management cannot be allowed to further harass the appellant by initiating the fresh proceedings for the same cause of action, which has been found to be biased and in gross violation of the principles of natural justice. In Managing Director, ECIL (supra), which has been relied upon by learned Single Judge that was a case where, while issuing 28 of 29 show cause notice, copy of the inquiry report was not given to the delinquent officer, therefore, the matter was remitted back. At that stage, it was directed to supply the copy of the inquiry report to the delinquent officer and after his reply the final order should be passed. 42. In the instant case, the proceedings from the very beginning have been found to be biased and in violation of principles of natural justice, therefore, entire inquiry report as well as the resolution with regard to termination have been quashed by learned Single Judge, therefore, it is not open for permitting a fresh inquiry to continue against the appellant, which has been found biased since its inception on the part of the Management against the appellant herein. Therefore, such biased disciplinary proceedings initiated by the Management cannot be allowed to continue any further and in the aforesaid backdrop it is held that the entire disciplinary proceedings initiated against the appellant was uncalled under the facts and circumstances and was also biased proceedings and the same is accordingly set-aside in toto. Thus, the resolution of the Committee of Management dated 27.08.2019 as well as the impugned order dated 04.10.2023 passed by the Vice Chancellor are quashed and the appellant is directed to be reinstated in service forthwith with all consequential benefits. Accordingly, learned Single Judge's judgement is modified to the aforesaid extent. The instant appeal is partially allowed, with no orders as to costs. Order Date :- 19.07.2024 Shubham Arya (Anish Kumar Gupta, J.) (M.C. Tripathi,J.) 29 of 29