Managing Committee, Alok Bharti ... vs Union Of India And Ors.
1993 Latest Caselaw 393 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition is brought under Article 226 of the Constitution of India seeking quashment of the order dated April 28, 1984, issued by respondents 2 & 3 by which the management of the School, namely, Alok Bharti Secondary School, functioning at Khureji Khas, Delhi, has been taken over for a period of three years under Section 20 of the Delhi School Education Act, 1973 (for short 'the Act'). Petitioner No.2 is a registered society and had established a middle class school in 1971. It is a recognized school and is Government aided school. The Management of the School was earlier taken over by the Administrator under Section 20 of the Act on July 15, 1976. The management of the school was restored to the Managing Committee of the School on April 24,1982. It was pleaded in the Writ Petition that one Sh. O.P. Sharma who was functioning as in charge of the school, was found guilty of certain financial irregularities and management of the school was taken over in1976on account of such financial irregularities being committed and strangely after the management of the school was taken over in 1976 the same Sh. 0.P. Sharma was made in charge of the School. It was pleaded that Sh. O.P. Sharma was suspended by respondents 2 & 3 on February !5, 1982. Just two months or so prior to handing over the management of the school to the Managing Committee. Before passing the impugned order under Section 20 of the Act, a show-cause notice dated September 26, 1983, was issued to the school wherein certain grounds were mentioned which amounted to mis-management of the school. Reply was given by the Managing Committee to the said show-cause notice which is dated February 21,1984 (Annexures 'N' & 'Q').

(2) In this reply all the grounds mentioned in the show-cause notice were controverter. Thereafter the impugned order was made which is a non-speaking order and it does not depict as to, in fact, what grounds mentioned in the show-cause notice were actually relied upon for issuing the impugned order.

(3) One of the grounds mentioned was that the Managing Committee had failed to deposit its 5% share towards the arrears of 4th Installment of additional dearness allowance which was liable to be deposited in the Provident Fund Account of the employee with the administrator of Union Territory of Delhi. In the reply it was mentioned that liability in respect of said additional dearness allowance was of the Administrator in as much as this liability accrued during the period the management of the school was with the Adminstrator. In reply a reference was made to decisions of this Court in C.W. 527/78 decided on August 7,1979andC.W.2509/81 decidedonNovember2,1983,inrespectofthisplea.Evenduring the course of arguments before me it is not explained by Mr. Mahajan that this liability actually was not of the Administrator in view of the aforesaid judgments mentioned in the reply. Unfortunately the impugned order is totally silent as to what decision or opinion was formed by the Administrator in respect of this particular ground.

(4) Another ground mentioned in this show-cause notice was that the Managing Committee had failed to disburse a sum ofRs.5200.00 on account of Leave Travel Concession to its three employees and thus, the Managing Committee had violated the provisions of subsection (2) of Section 10 of the Act. In reply the School mentioned that the amount had been disbursed which could be self-evident from the records. Again it is not even made clear in the counter filed to the Writ Petition as 'to whether this averment made by the Managing Committee of the School is incorrect. It was incumbent upon the Administrator before passing any order under Section 20 of the Act to have applied its mind to the facts mentioned in the reply in order to form the opinion as to whether a particular ground mentioned in the show-cause notice stands established or not. It is only where the Managing Committee of the School fails to give any satisfactory explanations in respect of the lapses highlighted in the show-cause notice that Administrator could with any justification pass an order for taking over the management of the school.

(5) The third ground mentioned in the show-cause notice was that the Managing Committee has failed to deposit its 5% share of the arrears of payment of salary to the employees of the school during the period the said school remained under the management of the Goverrtment. In reply it was again reiterated that this liability was of the Administrator and reference was made to the decisions of the High Court taking the similar view. Again the Administration in the impugned order has not at all mentioned as to why this explanation given by the Managing Committee of the School was not satisfactory. Even during the course of arguments before me it is not explained as to why this explanation of the Managing Committee should not be considered in consonance with law as laid down by the court that as long as the management of the school remained with the Administrator the liability regarding the salary occurring during the said period was of the Administrator.

(6) The next ground mentioned in the show-cause notice is that the Managing Committee had deposited Rs.20,000.00 as reserved fund in shape of three Fixed Deposit Receipts of Rs.5,000.00 dated January 30,1971 and again Rs.5,000.00 dated January 30,1976 and of Rs. 10.000.00 dated January 2,1975 and the first two receipts has been cancelled and only one Fixed Deposit Receipt of Rs. 10.000.00 remains and in this way the Managing Committee has violated the provisions of Rule 65(c) of the said Rules. In reply to the show-cause notice it was clarified that these receipts matured during the period the Delhi Administration was managing the School and no steps had been taken by the Administrator in getting the FDRs renewed and after the management of the school had been restored back to the Managing Committee the Managing Committee had been able to get renewed the Fdr of Rs. 10,000.00 and the value of the same amounted to Rs. 18,75 2.00 at the time of the reply and efforts were being made to get renewed the other two FDRs.

(7) In the counter nothing has been mentioned as to how the explanation given by the Managing Committee in respect of the these three FDRs is not satisfactory. The Administrator, who had received this reply to the show-cause notice, in my opinion, was duty bound to have gone into this question and if some evidence was required in support of the pleas taken by the Managing Committee he could have required the Managing Committee to furnish necessary evidence. Without following any procedure the Administrator was not correct in arbitrarily issuing the impugned order without indication as to how and in what manner a particular ground mentioned in the show-cause notice stood unexplained by the Managing Committee satisfactorily.

(8) The next ground mentioned in the show-cause notice is the non-payment of dues of Rs.35,000.00 to the Municipal Corporation of Delhi. This amount pertains to the house-tax. In reply it was mentioned that this liability was of a long period even including the period when the management was with the Administrator and thus, the Managing Committee of the School is not responsible for accumulation of such arrears of house-tax. It was also mentioned in the reply that there is no material to show that such arrears are due to the Municipal Corporation. It is not explained even in the counter as to of what period these arrears of house-tax were and why they could not be cleared if they pertained to the period prior to handing over the management of the school to the Managing Committee by the Administrator.

(9) Another ground taken was that Acquittance Registers for the period from November 1981 to December 1981 and July 1982 were not made available by the Managing Committee to the Enquiry Committee for verifying whether proper payments had been made and signatures of the employees had been obtained in those registers. In the reply it was mentioned that register was lost by Shri Santosh Sharma, the dealing clerk and a police report was also lodged and an intimation was also given to the departmental authority regarding the loss of such register. So, it was pleaded that how could the Enquiry Committee come to the conclusion that there was no proper entry in such a register which was obviously not available when the Enquiry Committee enquired into the matter. It is not understood how such aground could be raised in the show-cause notice when the Managing Committee had already intimated that such a register was lost. It is significant to mention that register pertained to the period November 1981 onwards when the school was under the management of the Administrator and if there had been any lapses in making entries in such register they could have been of the period even prior to restoration of the management to the Managing Committee. Be that as it may, the Administrator ought to have looked into the matter and give some reasons as to when he thought that the explanation given by the school was unsatisfactory on this account. As a matter of fact, when no reasons had been given in the order it is not possible to know as to what prevailed in the mind of the Administrator with regard to particular grounds mentioned in the show-cause notice as to whether he passed the impugned order on one or on all the grounds and whether he found explanations of the Managing Committee in respect of some grounds as satisfactory and in respect of other grounds as unsatisfactory.

(10) Another significant fact which must be highlighted at this stage is that according to the respondents the Enquiry Committee was constituted before issuance of the show-cause notice and some report had been made by the said Enquiry Committee on the basis of which the grounds were culled out in the show-cause notice. It is admitted case that the copy of such report of the Enquiry Committee was not at all sent to the Managing Committee of the School at any time. In my view, in case the facts have been taken out from the report of the Enquiry Committee which is the basis for issuing the show-cause notice, it was incumbent upon the Administrator to have sent a copy of the report of the Enquiry Committee to the Managing Committee of the School so that the Managing Committee could know the facts which were the basis for issuance of the show-cause notice. The rules of natural justice, in my opinion, did require that a copy of the report of such an Enquiry Committee ought to have been made available to the petitioner Along with the show-cause notice.

(11) Another ground taken in the show-cause notice is that the Managing Committee had suspended Sh. Sripal Sharma, Head clerk and Smt. Sarla Sharma, U.D.C. of the School on May 15,1982 without obtaining the prior approval of the Directorate of Education as required under sub-section (4) and sub-section (5) of Section 8 of the Act and they were subsequently taken on duty without assigning any work which is in violation of the provisions of sub-section (4) and sub-section (5) of Section 8 of the Act. In the reply it was asserted that the Managing Committee under Section 8 (4) of the Act can put an employee under suspension for a period of 15 days without the approval of the Director of Education. So. it cannot be said that they suspended the said two employees in violation of the any provisions of the said statute. It was reiterated that after revocation of their suspension both the employees had been given work and the same would be self-evident from the record which can be produced before the Administrator for satisfaction. It is evident that if the Administrator was not satisfied with the reply on this account he ought to have asked the School to produce the record in support of the plea that those employees had been given their duties. It is not clear as to what evidence was available with the Administrator in having this ground mentioned in the show-cause notice. It may be that in the Enquiry Committee report some facts might have been mentioned in this regard but those facts ought to have been made available to the Managing Committee of the School so that a proper reply could be given by the said Managing Committee of the School.

(12) At any rate, after the show-cause notice had been served and reply had been received, it was,in my opinion, incumbent upon the Administrator to at least give some opportunity of hearing to the Managing Committee in which the Managing Committee could be asked to produce the records or any other evidence in support of their pleas mentioned in the reply to the show-cause notice. Taking over the management of the school is a drastic measure which should not be resorted to except on very sound grounds and before resorting to such drastic measure it is necessary that a proper opportunity of hearing ought to be given to the Managing Committee of a particular school. As to what should be the opportunity of hearing in a particular case would depend on the facts of each particular case. Broadly speaking if the reply to the show-cause notice gives out certain facts which could be verified from the records the opportunity of hearing would involve requiring Managing Committee to produce the record i.e. giving an opportunity to the Managing Committee to produce such record and if despite such opportunity the record was not produced obviously an adverse inference could be drawn by the Administrator and the Administrator could come to the conclusion that the reply given by a particular Managing Committee in support of particular ground mentioned in the show-cause notice is not satifactory.

(13) In the present case after receiving the reply to the show-cause notice no other procedure has been followed to give any opportunity to the Managing Committee of the School to either produce the record or evidence in support of its pleas taken in the reply to the show-cause notice.

(14) In St. Michael's Education Foundation & Ors Vs Lt. Governor & Ors. 23(1983) Delhi Law Times 359, the provisions of Section 20 of the Delhi School Education Act came up for consideration. In the said case also no material, which-was the basis of the ground mentioned in the show-cause notice, had been supplied Along with the show-cause notice. The court held that the same violated the principles of natural justice.

(15) In C.W.No. 1344/80. St. Michael's Educational Foundation & Another Vs. The Administrator, Delhi & Ors. decided on July 13,1981, the question which arose for decision was whether an order made under Section 20 of the Act should contain the reasons for passing the order or not. It was hold by a Single Bench of this Court that proceedings under Section 20 of the Act are quasi-judicial in nature and any order which is made for taking over the management of the school under Section 20 of the Act must contain the reasons.

(16) In the present case the impugned order does not contain any reasons whatsoever. Even otherwise, as discussed above it appears that no proper procedure, which was required to be furnished before passing the impugned order of giving a reasonable opportunity of hearing to the Managing Committee of the School has been resorted to. Even the report of the Enquiry Committee which which was required to be furnished to the Managing Committee of the School Along with the show-cause notice, had not been furnished. So. in view of these lapses it must be held that the impugned order is illegal and arbitrary and is liable to be quashed.

(17) Before parting with the case I may mention that soon after the management of the school was restored to the Managing Committee on April 24, 1982, the Managing Committee of the School had repeatedly sent requests and letters to respondents 2 & 3 requiring them to furnish the File pertaining to Sh. O.P. Sharma, Teacher, who was in charge of the School during the period the School was being managed by the Administrator, pertaining to his suspension, but what to sending the said file to the Managing Committee no reply was even sent to such communications. That really speaks for itself and rather the correspondence which has been sent from the side of the respondents was that as the suspension order has been revoked Sh. 0.P. Sharma should be put back as in charge of the School. It is surprising that a Teacher who had been suspended when the School was under the management of the Administration and for reasons unknown the pertaining to his suspension was not being made available to the Managing Committee, still Ins suspension was revoked on the ground that the charge-sheet had not been served on the said official by the Managing Committee within one year and then it was being insisted in various letters, which have been produced on record, by the Administrator that he should be put back as in charge of the School. I am not being shown any provision of the statute or Rules which require that the Managing Committee could be forced to put a Teacher as in charge of the School. The in charge of the School is not a promotion post. If a particular Principal or Vice Principal is not available in the School the Managing Committee can depute any Teacher to look after the management of the School and perform the duties of a Principal or Vice Principal till a proper Principal or Vice Principal is appointed. As it does not amount to promotion of a particular teacher, there is no necessity of the Managing Committee to seek any prior approval of the Directorate of Education for putting any teacher as in charge of the School. It is not understood why the Education Department of the Delhi Administration was insisting again and again in letters written to the School that Sh. O.P.Sharma should be put as in charge of the School. I hope the Administrator would look into the matter and hold some sort of inquiry to find out as to who is responsible for disappearance of the file pertaining to the disciplinary action which was being taken against Sh.O.P. Sharma and why no reply was being sent to the Managing Committee of the School regarding the said file. Disciplinary action should be taken if any lapse is found on the part of any officer/official of the Delhi Administration. If the file had become untraceable for one reason or the other the file should be reconstructed and made available to the Managing Committee of the School so that if there are any charges against Sh.O.P. Sharma the same should be inquired into in a proper way.

(18) The petitioners have also challenged the vires of Section 20 of the Act but as the impugned order is being quashed for reasons mentioned above, this Court need not go into the said question.

(19) With these observations I allow this writ petition, make the rule absolute and quash the impugned order. The petitioners shall have costs quantified atRs.2,000.00 from the respondents.