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CASE NO.: Appeal (civil)  8663-8664 of 2003

PETITIONER: Indra Bhanu Gaur                                                 

RESPONDENT: Committee, Management of M.M.Degree College & Ors.                                        

DATE OF JUDGMENT: 07/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 601-602 of 2001)

ARIJIT PASAYAT, J.   

Leave granted.

High Court of Allahabad having dismissed the writ application  filed by the appellant questioning order of termination of his services  by the Committee of Management of Mahamana Malviya Degree College,  Meerut (hereinafter referred to as the ’Managing Committee’) and the  application for review, these two appeals have been filed.  Factual  background sans unnecessary details is as follows:

Appellant was appointed as the Principal of the college in  question in July 1974.  In the year 1977, University Examinations for  graduate classes were held in the college.  University received report  regarding certain irregularities in the examination centre. Vice- Chancellor appointed a Committee to enquire into alleged irregularities.   The inquiry Committee enquired into the matter and found that the  conduct of the examination at the centre where the appellant was acting  as Senior Superintendent of the Examination Centre was not in order.   The inquiry Committee found several gross irregularities committed by  the appellant in the conduct of the examination.  It was noted that the  appellant’s son Rahul was also appearing in the examination.  In the  evening shift of the examination on 29.4.1977, his son appeared at the  examination in Basic Statistics General Course.  After considering the  statements given by several persons, the Committee held that the  appellant helped his son and had replaced the answer book of his son,  signatures of the Invigilator on the alleged answer book were not of the  Invigilator Shri S.K. Sharma.  The inquiry Committee recommended action.   In its meeting held on 19.9.1977, the Managing Committee considered the  report of the inquiry Committee and by resolution of even date resolved  to suspend the appellant and further resolved to hold an inquiry in the  matter.  

Pursuant to the aforesaid resolution, the appellant was issued a  charge sheet on 27.9.1977.  It was specifically mentioned that the  meeting of the inquiry Committee was to be held on 16.10.1977 and the  appellant should be present.  Though appellant received the charge  sheet, he did not submit his reply and on the contrary, asked for 15  days time by his letter dated 13.10.1977.  Considering his request, the  meeting of the inquiry Committee was adjourned to 25.10.1977. Though

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appellant was informed by registered post, he did not appear before the  inquiry Committee. The inquiry Committee considered the materials on  record and found the appellant guilty for irregularities and  illegalities in the conduct of examination.  It was found that he had  changed the answer book of his son with ulterior motive. The inquiry  Committee recommended dismissal of the appellant from service subject to  approval of the Vice-Chancellor.  Notice was given by the Vice- Chancellor to the appellant and the Managing Committee to consider the  matter on 21.12.1977. It was subsequently adjourned to 23.12.1977 when  the Vice-Chancellor heard the appellant and the Managing Committee.   After that the Vice-Chancellor by his letter dated 24.12.1977 directed  the Managing Committee that another opportunity be given to the  appellant to appear before the inquiry Committee and all relevant papers  were to be given to the appellant.  The matter was fixed by the inquiry  Committee on 20.1.1978 and the appellant was informed by registered  post.  But he did not appear before the inquiry Committee. The matter  was again considered by the inquiry Committee, which confirmed its  report dated 25.10.1977 and Managing Committee by its letter dated  23.1.1978 informed the University that the appellant did not appear  before the inquiry Committee.  Vice-Chancellor was requested to accord  approval to the proposal for dismissal of the appellant. All the  documents which were demanded by the appellant had been given on  14.2.1978. The Committee of Management again received a letter from the  University, stating that since all the documents demanded by the  appellant were handed over to him on 24.2.1978, the appellant had been  directed to appear on 24.2.1978.  The Managing Committee was requested  to submit its case after 24.2.1978 for consideration of Vice-Chancellor.  In spite of the said letter of the University, the appellant again did  not appear before the inquiry Committee.  Necessary information in this  regard was given to the Vice-Chancellor. The University again asked the  Managing Committee and the respondent to appear before the Vice- Chancellor on 24.4.1978 and again on 5.6.1978. The matter was heard by  the Vice-Chancellor who was of the view that punishment proposed by the  Managing Committee was harsh and Managing Committee was required to re- consider the same. The Managing Committee again considered the matter  and resolved that appellant’s service should be terminated instead of  dismissal. Thereafter Vice-Chancellor by order dated 1.7.1978 granted  approval to the proposal of the Managing Committee.  Appellant  challenged the said order by preferring a Reference under Section 66 of  the U.P. State Universities Act, 1973 (in short the ’University Act’)  before the Chancellor.  The reference was rejected by order dated  3.8.1979. The Chancellor found that the appellant had been given  adequate opportunities to place his case before the Inquiry Committee,  but he failed to do so. The appellant challenged order of the Vice- Chancellor and Chancellor before the High Court.  According to him  opportunity was not granted before the orders were passed.  This stand  was rebutted by the Managing Committee with reference to the record  which indicated that more than adequate opportunity was granted. High  Court by the impugned judgment dated 16.5.1996 dismissed the writ  petition.

       The appellant questioned correctness of the judgment by filing  special leave petition before this Court in SLP (C) No. 23634 of 1996.  By order dated 12.12.1997 the same was disposed of with certain  observations. The appellant’s primary stand before this Court was that  the judgment was rendered after passage of two years and many of the  contentions canvassed, were not considered in the judgment. This Court  relegated the appellant to review application.  The Review petition was  rejected by order dated 24.2.2002 which is also subject matter of  challenge.  

Mr. R.K. Jain, Learned Senior Counsel, for the appellant submitted  that the High Court’s order suffers from vulnerability on more counts  than one.  It is submitted that the appellant was placed under  suspension on 19.9.77 and was removed on 19.6.1978.  During the period

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of suspension no subsistence allowance was paid. That vitiated the  proceedings.  Secondly, the basic ground on which the proceedings were  initiated related to alleged adoption of corrupt practices by the  appellant for the benefit of his son, both joining together. Questioning  the action taken by the authorities against him, the appellant’s son had  filed writ petition which was allowed and the Vice-Chancellor had  accepted the order of High Court, quashing the action taken against him  and had directed declaration of his result. According to Mr. Jain, there  is complete absence of any substratum of the charge of alleged  irregularities for taking any action against the appellant. Finally it  was submitted that several documents placed on record before the High  Court established that there was bias on part of the Managing Committee.  Even two of the persons who were part of the Committee which took  decision stated about the bias.  

In response, learned counsel for the Managing Committee submitted  that in order to get subsistence allowance the particular procedure was  to be followed, which was not done by the appellant and subsistence  allowance thereafter has been subsequently paid.  So far as the son’s  case is concerned, the action against him was set aside because of non- compliance with the requirements of principles of natural justice and  not on account of any specific finding objectively recorded that no  irregularities as such took place or that the petitioner was innocent as  well.  In fact, the High Court had directed the authorities to proceed  afresh after grant of opportunity. The University thought otherwise, and  the Vice-Chancellor directed declaration of the result.  That per se  does not take away the right to proceed against the appellant.  Finally  the order goes to show that 8 of the 11 members agreed for action  against the appellant in the manner done.  There was no question of any  bias, and there was a collective decision.  The appellant was granted  adequate opportunity as the factual scenario would go to show and he  having failed to avail them, cannot make a grievance.  

From the judgment of the High Court, in the writ petition it  appears that there is no reference to the alleged infirmity on account  of subsistence allowance having not been paid.  There was also no  specific finding recorded for the question of bias as alleged presently.   We find that there was total lack of cooperation from the appellant as  the factual background highlighted above would go to show. Ample  opportunity was granted to the appellant to place his case.  He did not  choose to do so.  It is only a person who was ready and willing to avail  of opportunity given can make a grievance about denial of any  opportunity and not a person like the appellant who despite repeated  opportunities given and indulgence shown exhibited defiance and total  indifference in extending cooperation.    Therefore, on that score the  appellant cannot have any grievance.  So far as the effect of not paying  the subsistence allowance is concerned, before the authorities no stand  was taken that because of non-payment of subsistence allowance, he was  not in a position to participate in the proceedings, or that any other  prejudice in effectively defending the proceedings was caused to him.   The appellant could not plead or substantiate also that the non-payment  was either deliberate or to spite him and not due to his own fault.  It  is ultimately a question of prejudice.  Unless prejudice is shown and  established, mere non-payment of subsistence allowance cannot ipso facto  be a ground to vitiate the proceedings in every case. It has to be  specifically pleaded and established as to in what way the affected  employee is handicapped because of non-receipt of subsistence allowance.   Unless that is done, it cannot be held as absolute proposal in law that  non-payment of subsistence allowance amounts to denial of opportunity  and vitiates departmental proceedings.  

So far as case of bias is concerned, we find that Chancellor has  elaborately dealt with this aspect and has found that 8 of the 11  members had accorded approval to the proposed action. The discordant  note by the others who did not, apparently was obliging the appellant.

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That itself takes away the sting of appellant’s case relating to alleged  bias.  

The residuary question is whether the appellant’s son   having  been exonerated, the substratum of the accusations vanished as claimed  on behalf of the appellant. The High Court’s judgment is dated  11.1.1979, whereby appellant’s son writ petition was allowed on the  ground that order of University was passed in violation of principles of  natural justice. The University by letter dated 14.6.1983 had directed  declaration of the appellant’s son’s result.  This aspect does not  appear to have been considered by the High Court though in the review  application specific stand has been taken. That may not be the finally  determinative factor, but needs consideration. The High Court shall  consider all relevant materials and arrive at its conclusion in  accordance with law.

Further the High Court had taken note of certain other factors  which were not part of charges against the appellant i.e. the alleged  irregularities in admitting the appellant’s son in BA class when he had  not passed the intermediate class.  Though the High Court has referred  to the same, no opportunity was granted in this matter. We feel it would  be proper if the High Court hears the matter afresh to consider the  effect only of declaration of result of appellant’s son, and also the  allegations regarding admission of his son improperly and illegally.   Now, the appellant knows that this is one of the allegations against him  which would justify his termination de hors the proceedings already  initiated. The appellant shall be permitted to place material in that  regard.  Similar shall be the position so far as the respondent’s son is  concerned.  

Since we are remitting the matter for fresh adjudication it shall  be open to place such material as would be necessary for the purpose of  adjudication of afore-noted two aspects. We have not expressed any  opinion on the merits. We request the High Court to make an effort to  dispose of the matter by the end of June, 2004 after due notice to the  parties.  Civil Misc. writ petition No. 8804/1979 shall be restored to  its original number and file.  

The appeals are accordingly disposed of. No costs.