Allahabad High Court

Iftekhar Ahmad vs State Of U.P. And Others on 15 October, 2012

Bench: Pradeep Kumar Baghel




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 31
 

 
Case :- WRIT - A No. - 18803 of 2008
 

 
Petitioner :- Iftekhar Ahmad
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel: - Sunil Kumar Srivastava, Ashok Khare, R.N.Yadav
 
Respondent Counsel :- C.S.C., I.R.Singh, Pradeep Upadhyay
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner has preferred this writ petition to seek issuance of writ of certiorari for quashing the order dated 2.2.2008 issued by the Manager of an Intermediate College whereby his services have been terminated.

A brief reference to the factual aspects would suffice.

RDM Shia Trust Committee has established Dr. Akhtar Hasan Rizvi Shia Degree College, Meena Rizvi Shia Girls Schools, and RDM Shia Inter College at Jaunpur. These institutions have been established by a Trust and are administered by separate committee of managements.

The present dispute arose in respect of office of the Principal of an Inter College (for short institution). The Management had made an application to the State Government to declare this institution a minority institution within the ambit of Article 30 (1) of the Constitution. The State Government having satisfied that the institution fulfills requisite norms, declared it as a minority institution. The institution had applied for the aid out of the State Fund which has also been accepted by the State Government, thus, it receives aid out of State Fund. It is also recognized by the U.P. High School and Intermediate Education Board.

For the reasons of the aforesaid recognition and declaration the provisions of the U.P. Intermediate Education Act, 1921 and regulations framed there under (as applicable to the minority institutions), U.P. High School and Intermediate Colleges (Payment of Salaries of the Teachers and other Employees) Act, 1971 are applicable. However, the provisions of U.P. Secondary Education (Service Selection Board) Act, 1982 are not applicable in view of Section 30 of the said Act which excludes the applicability of the said Act to the minority institution.

It is stated that petitioner was appointed as a Principal of the College sometime in the year 1988 and ever since he was continuously working in the Institution. It appears that some dispute arose between the Society/Trust which manages affairs of the College on 25.1.2003 when the Deputy Registrar exercising its power under the Societies Registration Act directed co-option of some members of the trustee and a further direction was issued to hold a fresh election.

It is stated that some of the members challenged the order of the Deputy Registrar by means of two separate writ petition namely Writ Petition No. 7399 of 2003 (Dr. Syed Qamar Abbas v. Deputy Registrar, Firms Societies and Chits and others) and Writ Petition No. 51517 of 2003 (Dr. Syed Zafar Abbas v. Deputy Registrar Firms Societies and Chits and others). Both the writ petitions were decided by a common judgment on 26.5.2004. This Court issued certain directions to hold the fresh elections. The order of the learned Single Judge dated 26.5.2004 was challenged by one of the rival group by filing Special Appeal No. 721 of 2004 (Syed Zafar Abbas and others v. Deputy Registrar, Firms Societies and others). This Court initially granted interim order and issued a direction for appointment of an Administrator to look after the financial powers with regard to Society as also of the Institution.

In compliance of the interim order passed in the Special Appeal the S.D.M. Sadar, Jaunpur was appointed as Administrator with all administrative and financial powers. It appears from the records that during the pendency of the Special Appeal the rival groups reached at amicable settlement and an affidavit was filed in the Special Appeal to the said effect. The Special Appeal was disposed of in terms of the settlement between the parties and the order of the learned Single Judge was modified to that extent. It is stated that elections were held in the year 2007 and one Mohd. Hasan Khan was recognized as Manager of the Institution on 10.10.2007. It is further stated that Mohd. Hasan Khan who was recognized on 10.10.2007 as Manager earlier on 29.8.2006 had lodged a complaint under section 156(3) Cr.PC against the petitioner. In compliance of the order of the learned Magistrate First Information Report was registered on 29.8.2006 against the petitioner under section 409/419/420/467/468 IPC. The petitioner has placed the copy of the First Information Report on the record as Annexure-6 to the writ petition. In pursuance thereof the petitioner was arrested on 23.5.2007 and continued to remain in jail till 28.5.2007. Thereafter he was released in pursuance to bail order dated 25.5.2007 passed by the Sessions Judge, Jaunpur. On 8.12.2007 the S.D.M. Sadar, Jaunpur passed an order of suspension on the ground that the petitioner remained in Jail for more than 48 hours.

The petitioner filed a Writ Petition No. 27830 of 2007 challenging the order of suspension. The said writ petition was disposed of on 20.6.2007 with a direction to the respondents that in case the petitioner files a representation it may be decided expeditiously. The petitioner states that he filed a representation before the Administrator, the S.D.M.Sadar, Jaunpur on the ground that the election of the committee of management was already held and as such only the newly elected committee of management can decide his representation. The petitioner thereafter filed a fresh representation dated 16.8.2007 before the District Inspector of Schools wherein he took the plea that in terms of section 60 (G) (7) of the Intermediate Education Act, 1921 the suspension order stood lapsed. However, no order was passed by the District Inspector of Schools. The petitioner filed another representation before the newly elected Manager also 11.10.2007. The said representation also did not find any favour. The petitioner further states that inspite of the fact that suspension order stood lapsed he was not paid subsistence allowance only for the period 13.6.2007 to 31.10.2007 and after November, 2007 his subsistence allowance was also not paid. His salary for the period 1.5.2007 to 12.6.2007 was also withheld.

Ultimately on 4.1.2008 after petitioner was served charge sheet issued by three member Committee namely Bismillah Khan, Syed Najmul Hasan Nazami and Mirja Hyder Hussain as member of the enquiry committee. Petitioner has placed a copy of the charge sheet as Annexure-15 to the writ petition. Petitioner's case is that the charge sheet was not accompanied by any other documents in support of the charges. The petitioner made representation for the documents. However, it is submitted that not a single document was supplied to him. The petitioner further states that the enquiry committee did not intimate any date for conducting an enquiry nor he was required to be present before the Inquiry Committee. The petitioner alleged that in fact no enquiry was held at all. He was also not given copy of the enquiry report.

It is stated that on 28.1.2008 meeting the Committee considered the enquiry report and it resolved to dismiss the petitioner from service. The Manager of the institution has served a copy of the dismissal dated 2.2.2008 to the petitioner and the petitioner was asked to represent either in writing or orally before the Manager within two weeks. The said communication has been brought by the petitioner on record as Annexure-19 to the writ petition. The petitioner further states that in the communication dated 2.2.2008 there is a incorrect recital that it accompanied the copy of the charge sheet, enquiry report and other related documents. The petitioner had made a representation on 28.3.2008 wherein he has stated that he personally met the Manager of the Institution and requested that supply of the relevant document referred in the communication dated 2.2.2008 including the copy of the enquiry report were not supplied to him.

The respondent no.4 has filed a counter affidavit. The stand of the respondent no.4 in the counter affidavit is that the Assistant Director Local Fund Audit, State of U.P. Allahabad audited the account of the institution and found various financial irregularities including defalcation of fund of the institution committed by the petitioner while he was holding the post of Principal. A Criminal proceedings as mentioned in the writ petition is also stated to be pending. It is further stated that the charge sheet was sent under the registered cover but it was not received thereafter a notice was published in the local newspaper 'Tarun Mitra' on 17.10.2007 wherein the petitioner was informed that he may file reply to the charge sheet. It is further stated in the counter affidavit that the petitioner preferred not to file any reply and as such the enquiry was completed and copy of the enquiry report has been annexed along with the counter affidavit as Annexure-CA-10 to the counter affidavit.

I have heard Sri Ashok Khare learned Senior Counsel assisted by Sri Sunil Kumar Srivastava, Advocate and Sri Indraj Singh learned counsel for the committee of management at length.

Learned counsel for the petitioner submitted that the entire enquiry has been held in utter disregard to the principles of natural justice. The regulation 35 and 36 of Chapter III of the U.P. Intermediate Education Act, 1921 have been complied in breach. The Management chose to by pass the said regulation completely. He further urged that no documents were supplied to him neither any date time and place of the enquiry was intimated to him. The Manager was biased as prior to his election and subsequent recognition in the year 2007 he had filed a complaint against the petitioner under section 156 (3) Cr.PC. Thus the initiation of the disciplinary proceedings itself was the result of the personal bias and malafide. Sri Khare has drawn the attention of the Court to paragraph 8 of the counter affidavit wherein it is stated that last notice dated 31.12.2007 was sent calling upon the petitioner to submit his reply within a week. In the same paragraph it is further stated that Inquiry Committee completed its enquiry on 7.1.2008 and submitted its report which is Annexure-CA-10 to the counter affidavit. On the basis of the aforesaid averments made in the counter affidavit Sri Khare tried to demonstrate that the entire disciplinary proceeding was merely an eye wash and empty formality which is evident from the pleadings and supporting documents.

It is further urged by learned counsel for the petitioner that inspite of repeated request by the petitioner for providing the relevant document no document was supplied to him. Sri Khare has relied on the judgment of Sher Bahadur v. Union of India and others (2002)7 SCC 142; Har Dev Singh v. Committee of Management D.B.Santokh Singh Khalsa Inter College, Pratab Pura, Agra and another 2204(3) AWC 2770 and unreported judgment of this Court in the case of Tariq Ayyub v. State of U.P. and others in Civil Misc.Writ Petition No. 30642 of 2010.

Learned counsel for the respondent no.4 Sri Indraj Singh submitted that the institution is minority institution, therefore, Regulation 35 and 36 is not applicable. The petitioner was given full opportunity as the charge sheet was sent to him under the registered cover twice but he evaded its service. The committee of management thereafter published the notice in 'Tarun Mitra' local newspaper. He further submitted that the petitioner did not cooperate in the enquiry proceedings and as such the exparte enquiry was held. He has placed reliance on the various paragraph of the counter affidavit in support of his contention. Sri Singh has relied on the judgment of Supreme Court in the case of State of Punjab and others v. Dr. Harbhajan Singh Greasy JT 1996 (5) 403.

I have considered the submission made by the learned counsels of respective parties and have also perused the record.

The only question which begs determination in this case is to as to what extent the provision of Intermediate Education Act and the relevant Regulations which deals with the disciplinary proceedings are applicable to the minority institution.

Before proceeding further I deem it appropriate to notice the judgments of Supreme Court in the matter of Minority Institutions.

Article 29 and 30 have increasingly engaged the attention of the Supreme court. A survey of the law on this subject would be necessary and can start with Kerala Education Bill,1957, Re v.,1959 SCR 995. In the said case a question arose whether State maintained, State aided and State recognized educational institution can be dealt with differently and if minority institution within the meaning of Article 30 of the Constitution should have a fundamental right in the matter of recognition of their educational institution. The Supreme Court answered the said query in following terms:-

"Para 36, .....The right which the minorities now claim is something more. They want not merely freedom to manage their own affairs, but they demand that the State should actively intervene and give to their educational institutions the imprimatur of State recognition.That, in my opinion, is not within Article 30(1). The true intention of that article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions. It should be noted in this connection that the Constitution has laid on the States various obligations in relation to the minorities apart from what is involved in Article 30(1). Thus, Article 30(2) provides that a State shall not, when it chooses to grant aid to educational institutions, discriminate against institutions of minorities based on language or religion. Likewise, if the State frames regulations for recognition of educational institutions, it has to treat all of them alike, without discriminating against any institution on the ground of language or religion. The result of the constitutional provisions bearing on the question may thus be summed up:

(1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of the minorities, religious or linguistic.

(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration."

After a decade Supreme court was again called upon to answer similar question in in slightly different context in the case of State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, the Supreme court while considering the rights of Minorities to establish the institutions of their choice, was concerned with the standard of education, it held thus: at page 421 :

"10. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish the syllabi for examinations they must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others."

A constitution bench of 9-judges in the case of Ahmedabad St. Xavier's College Society v. State of Gujrat, (1974) 1 SCC 717, highlighted the need for maintaining high standard of excellence in education in the miniority institution. And it opined that some state made regulations can be applied to achieve the said objective.The relevant observations of the Supreme Court are as under :-

at page 745 :

"20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J., in the Kerala Education Bill case summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer."

, at page 748 :

"Para 30..."An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character.

31. Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.

32. Education should be a great cohesive force in developing integrity of the nation. Education develops the ethos of the nation. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in administration."

at page 784 :

"95. It has not been disputed on behalf of the petitioners that if the State or other statutory authorities make reasonable regulations for educational institutions, those regulations would not violate the right of a minority to administer educational institutions. We agree with the stand taken by the petitioners in this respect. It would be wrong to assume that an unrestricted right as in Article 30 postulates absence of regulations. Regulations can be prescribed in spite of the unrestricted nature of the right. The unrestricted nature of the right connotes freedom in the exercise of the right. Even the words "freedom" and "free" have certain limitations. In James v. Commonwealth16 the Privy Council dealt with the meaning of the words "absolutely free" in Section 92 of the Constitution of Australia. It was said:

" ''Free' in itself is vague and indeterminate. It must take its colour from the context. Compare for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law...."

The Supreme Court further considered this issue in Lily Kurian v. Lewina (1979) 2 SCC 124. It followed the Kerala Education Bill in paragraph 28 of this report which is extracted here under below :-

"We have already observed that Article 30(1) gives two rights to the minorities, (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided."

at page 135 :

"29. Thus, a contention based on the absolute freedom from State control of the minorities' right to administer their educational institutions was expressly negatived in this case. The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed."

In the case of Frank Antohony Public School Employees' Assocation v. Union of India, (1986) 4 SCC 707, the Court observed as under :-

"The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.

The Constitution Bench of Eleven Hon'ble Judges again considered this issue along with the admission in the professional colleges in T.M.A. Foundation v. State of Karnataka, (2002) 8 SCC 481. The following paragraphs are relevant in the present controversy:-

"The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions."

"Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government."

Subsequently the Supreme Court again considered the same issue in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537. Paragraph 103 is relevant in the present case which is extracted here under below:-

"To establish an educational institution is a fundamental right. Several educational institutions have come up. In Kerala Education Bill "minority educational institutions" came to be classified into three categories, namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition."

In Secretary, Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386, the Supreme Court reiterated the earlier law in following terms:-

"The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-à-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."

"Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff."

" We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."

In a recent judgment in Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi, (2010) 8 SCC 49 the Supreme Court observed as under :-

"Last of the judgments, which has some bearing on the subject in question, is on the principle reiterated by a Bench of this Court in Malankara Syrian Catholic College,where the Court again dealt with the aided minority educational institutions and terms and conditions of services of employees. The Court in para 12 of the judgment framed the following two questions: (SCC p. 393)

"12. The rival contentions give rise to the following questions:

(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State?

(ii) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, would Section 57(3) of the Act violate Article 30(1) of the Constitution of India?"

The answer to Question (i) was provided in para 21 while Question (ii) was answered in paras 27 and 28 of the judgment which read as under: (SCC pp. 400 & 404)

"21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

Principal of law emanates from the above judgements are that Article 29 and 30 of the Constitution is under the head of Cultural and Educational Rights. Article 29 is in two parts 29 (1) provides that any section of citizen have a fundamental right to conserve its language, script or culture. Any section society can get its protection irrespective of their religion.

In Punjab Hindus got its protection because Gurumukhi is there language of majority.

Article 29 (2) provides that no citizen shall be denied admission into any education institution maintained by the State or receiving aid out of State Fund on the ground only of relegion, race, caste, language or any of them.

But Article 30 (1) of the Constitution provides that all religious or lignuistic minorities have the right to establish and administer educational institution of their choice. A combined reading of Article 29 and 30 of the Constitution makes it clear that there are four distinct rights:-

(1) any section of citizen has a fundamental right to conserve its language or culture;

(2) all the religious and linguistic minorities have fundamental right to establish and administer education institution of their choice in terms of Article 30 (1) of the Constitution;

(3) the State shall not discriminate any education institution while sanctioning financial grant to it on the basis of religion, race or caste and

(4) the citizen of any religion will not be denied admission into any State maintained or aided education institution on the ground of religion, caste race or language.

Thus a minority has two choices they can establish an educational institution in terms of Article 29 (1) of the Constitution to conserve its language and culture. The second option is to come out from the ambit of Article 29 (1) of the Constitution and opt for a secular education under Article 30 (1) of the Constitution.

A common thread running through all these judgements are that under the umbrella of Article 30 (1) the minority Institutions do not have absolute right .The state may regulate service condition of teaching staff.

In absence of job security, talented teachers, even of their own religion will not like to serve in an institution where Damascus sword is always hanging over their head.

A minority institution which receives aid out of the State Fund owes a greater responsibility to the society as the children of the minority are entitled to get same standard of education like in the State run or other private institution, otherwise the students belonging to minority would not be able to compete with other students who are fortunate enough to get quality education in the other institutions. If the law gives free hand to the management of a minority institution to appoint and remove the teachers in an autocratic way then it will tend to adopt hire and fire policy under the protection of Article 30 (1) of the Constitution. In such situation the ultimate sufferer would be the students of their own religion. If a sizeable section of society is left behind and they are unable to join the mainstream of the country. The task of the nation building which was envisaged by the founding fathers of the Constitution will remain a mirage.

Therefore, it must be prime concern of the state to apply the regulations to minority institution to achieve the objectives discussed in above noted decisions of the Supreme Court. Only then we can build a modern, progressive and secular Country.

I may now advert to the next issue as to whether regulations made under the Intermediate Education Act would offend the Article 30 (1) if they are made applicable to the minority Institutions.

Section 16 E of the Act 1921 lays down detail procedure for appointment of head of institution and teachers. Section F provides the constitution of the selection committee. Section 16 FF is specially designed for minority institutions to give them freedom from 16 E and section 16 F. A different selection committee is provided, where they can even choose an expert of their choice from the list prepared by the Director. Section 16 FF further provides that though it is necessary to get the approval from the appropriate authority but a rider is put on the power of the authority by providing that the authority shall not withhold the approval of selected person if he/she possesses minimum qualification.

Under section 16 G service conditions of headmasters, principal and teachers of recognised institutions have been framed under Chapter III of regulations.

Under the sub head of Punishment, Inquiry and suspension detail procedure is provided from regulation 31 to regulations 45. Regulation 35 and 36 provides a detailed procedure for the disciplinary proceedings against the Principal and teachers. The relevant Regulations read as under:

"35 On receipt of adverse report regarding complaint or charges of serious nature, the Committee shall appoint the Principal or Headmaster as Enquiry Officer in respect of teachers and other employees ( or Manager himself would enquire into if he has been delegated with the rights under the rules by Committee) and in case of Principal or Head Master a small sub-committee be appointed which will have instructions to present the report as soon as possible.

In respect of Fourth class employees Principal/Headmaster may appoint a senior teacher as Enquiry Officer.

36 The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as that inquiring authority considers necessary. 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 enquiry authority conducting the enquiry may for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee.

Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.

All or any of the provisions of Clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to be person charged."

A plain reading the regulations brings out that the Principal of natural justice is ingrained in the Regulations. The importance of the natural justice need not be elaborated as it is well settled that denial of natural justice in a modern society is not acceptable. India has a progressive society and a modern constitution. Natural justice is a parameter of all the modern constitution of the world.

It is difficult to define natural justice. I find that Black J has most aptly described it as" Natural justice understandably meant no more than justice without the adjective" ( Green V Blake,[1948]IR 242 ). Justice Krishna Iyer in Mohinder Singh Gill v The Chief Election Commissioner: (1978) 1 SCC 405 has traced its root in Kautilya's Arthasastra in following terms,

at page 433 :

"Indeed, from the legendary days of Adam -- and of Kautilya's Arthasastra -- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

Considered from this angle there would be no difficulty in holding that the provisions of Regulation 35 and 36 would be applicable in the case of minority institutions if they are recognised institution. Thus the denial of the natural justice to a teacher who is employed in a minority institution cannot be accepted under the garb of the protection of Article 30 (1) of the Constitution.

Therefore, if a minority institution chose to impart a secular education under Article 30 (1) and it is recognized by the statutory authority / the Board of High school and Intermediate Education, it has to comply the principles of natural justice while dealing with its teachers or the employee irrespective of the fact whether it is receiving aid out of State Fund or not.

I may also beneficially refer to some of the judgements of this court where similar views have been taken: Tariq Ayyub V. State Of U.P. Civil Misc. Writ Petition No. 30642 Of 2010: Mohammad Ateeq Siddique V. State of U.P. (2011)3 UPLBEC 2547: Committee of management, Rehbar-E-Aam Muslim Inter College V. District Inspector of Schools(2008)70 ALR 687, Faheem Haider v. State of U.P.:(2011) 84 ALR 27.

Pertinently, in the case of Tariq Ayyub (Supra) and Faheem Haider (Supra) the judgement of Supreme Court in Committee of management Saint John inter College V Girdhari Singh; (2001)4 SCC 296 has been considered.

Supreme Court in St. John's case (supra) had occasion to deal with the issue whether in case of termination of a teacher of minority Institution will require approval of Inspector of School.

Keeping in view the aforesaid law now I advert to the case in hand. It is not disputed that inquiry against the petitioner was an exparte inquiry. The last notice was sent to the petitioner on 31.12.2007 and he was asked to submit his reply within a week. Without waiting his reply the inquiry was completed and within a week i.e. on 7.1.2008 Enquiry report was submitted to the management. Looking at the charges against the petitioner it is inconceivable that the inquiry was completed within a week and a report has also been submitted. Such a hot haste shown by the Inquiry Officer inspire little confidence with regard to fairness of the inquiry.

Supreme court in case of S.P. Kapoor (Dr) v. State of U.P.,(1981) 4 SCC 716, has held that when a thing is done in post haste manner - Malafide would be presumed.

The submissions of Sri Khare, learned counsel for the petitioner that no date, time and place was fixed by the Inquiry Officer is evident from the speed of the inquiry made in the matter. It is trite law that even if an employee does not participate in an inquiry the employer/management has to prove the charges.

In paragraph 34 to 42 of the writ petition details of the fact has been given that petitioner was not intimated date for the inquiry nor he was given copy of the inquiry report. The documents he sought were never supplied to him. These paragraphs have been replied in paragraph 8 of the counter affidavit and there is no denial that inquiry report was not supplied to the petitioner.

The issue what would be the effect, if the date, time and place is not fixed and what procedure should be adopted if the employee refused to participate in the inquiry has been considered by a Division Bench of this Court in Writ A 43331 of 2000 (Sohan Lal v. U.P.Cooperative Federation Ltd. And Another) decided on 11.01.2013, wherein a large number of cases of the Supreme Court and of this Court has been considered. The Division Bench has also considered the effect of not adducing any oral enquiry. It has relied on the judgment of the Supreme Court in State of U.P. v. Saroj Kumar Sinha reported (2010)2 SCC 772; Roop Singh Negi v. Punjab National Bank,(2209) 2 SCC 570; Subhash Chandra Sharma v. Managing Director and Another reported 2000 (1) UPLBEC 541; Subhash Chandra Sharma v. U. P. Cooperative Spinning Mills and others reported 2001(2) UPLBEC 1475.

In the present case no oral evidence has been adduced in the inquiry. Day, date, time and place was not fixed by the Enquiry Officer and the entire inquiry was concluded as mentioned above within a week.

After careful consideration of law mentioned above and the totality of the facts and circumstances of this case in my view the inquiry against the petitioner stood vitiated on the ground mentioned herein above and the order of termination dated 2.2.2008 (Annexure -129 to the writ petition) needs to be set aside, accordingly it is set aside.

The management is at liberty to give opportunity to the petitioner and conduct enquiry after giving opportunity to him to submit reply to the charge sheet and conduct the enquiry in terms of the Regulations 35 and 36 of the Chapter III of the U.P. Intermediate Education Act, 1921. The inquiry may be concluded as expeditiously as possible. The petitioner is directed to cooperate in the enquiry.

Writ petition succeeds and is allowed.

Parties shall bear their own cost.

Order Date: - 15.10.2012

ssm