Delhi High Court
Upras Vidyalaya And Anr vs Director Of Education And Anr on 24 December, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6288/2012 & CM.Nos.16809, 19865, 19469/2012,
3152, 3706, 3572/2013 & Crl.M.A.No.8090/2013
% Judgment dated 24th December, 2014
UPRAS VIDYALAYA AND ANR ..... Petitioner
Through: Mr.Mukesh Kher, Mr.Priyank Kher and
Mr.Niraj K. Mishra, Advocates
versus
THE DIRECTOR OF EDUCATION AND ANR..... Respondent
Through: Ms.Ruchi Sindhwani and Ms.Bandana
Shukla, Advs. for respondents.
+ W.P.(C) 4308/2012
UPRAS VIDYALAYA AND ANR ..... Petitioners
Through: Mr.Mukesh Kher, Mr.Priyank Kher and
Mr.Niraj K. Mishra, Advocates
versus
THE DIRECTOR OF EDUCATION AND ANR..... Respondent
Through: Ms.Ruchi Sindhwani and Ms.Bandana
Shukla, Advs. for respondents.
+ W.P.(C) 3643/2013
UPRAS VIDYALAYA AND ANR ..... Petitioners
Through: Mr.Mukesh Kher, Mr.Priyank Kher and
Mr.Niraj K. Mishra, Advocates
versus
THE DIRECTOR OF EDUCATION AND ANR..... Respondent
Through: Ms.Ruchi Sindhwani and Ms.Bandana
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 1 of 56
Shukla, Advs. for respondents.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J.
1. By a common judgment three writ petitions, all pertaining to the petitioner
school, are being decided.
2. W.P.(C)4308/2012 has been filed by the petitioners with a prayer to set
aside the order dated 12.7.2012 passed by respondent no.1 and letter dated
13.7.2012 issued by respondent no.2. By the letter dated 12.7.2012, the
Director of Education has directed that the bank accounts of the school
shall not be operated by anyone without prior permission of the Deputy
Director, South-West-A, and the letter dated 13.7.2012 is a letter
addressed by the bank to the Principal of the School that the Bank would
not permit operation of the bank account by anyone without prior
permission of the Deputy Director.
3. W.P.(C)3643/2013 has been filed by petitioners to quash the letter number
6931 dated 18.2.2013 by which the Additional Director of Education has
informed the petitioners of a special inspection under Section 180(3) of
Delhi School Education Act, 1973.
4. W.P.(C)6288/2012 has been filed by the petitioners seeking to quash the
order dated 26.9.2012 passed under Section 20(3) of Delhi School
Education Act for take-over of the management of the petitioner school.
5. The basic facts in all the three writ petitions are substantially similar and
for the sake of convenience, since the challenge in this writ petition is to
the order of taking over of management of the school, the facts as stated
in WP(C)No.6288/2012, are being noticed. It may also be noticed that the
final order in the WP(C)No.6288/2012 will have a direct bearing on
WP(C)No.4308/2012 and WP(C)No.3643/2013.
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 2 of 56
6. The necessary facts to be noticed for disposal of this writ petition and as
stated in the petition are that petitioner no.1 is a Senior Secondary Private/
Unaided School affiliated to the CBSE up to standard XII. The school
was established in the year 1985 and is governed by the Delhi School
Education Act and Rules 1973.
7. According to the petition, the Uttar Pradesh Samaj is a society registered
under the Societies Registration Act, 1860 bearing registration No.S-752.
The elections of the Kendriya Karya Samiti of Uttar Pradesh Samaj were
held on 25.9.2011 under the supervision of Sh.Kaushal Kishore, SDM
Chankya Puri, New Delhi which is for the term period 2011-2016.
Kendriya Karya Samiti is the supreme body which has been created
through the process of election under the bye laws of the Samaj/ Society.
Prior to the election dated 25.9.2011 the last election of the Executive
Committee was held on 16.7.2006 (for the period of 2006-2011)
whereupon Sh.R.K. Singh was appointed as Executive President of the
Uttar Pradesh Samaj and Mr.Janardan Rai held the post of Manager of
Upras Vidalaya, Vasant Marg, Vasant Vihar, New Delhi-110 057. On the
expiry of the tenure and in accordance with the constitution of the society,
fresh elections of the „Kendriya Karya Samiti‟ / the KKS for the period
2011-2016 was held on 25.9.2011 under the supervision and control of
Sh.Kaushal Kishore SDM Chankya Puri and after the election the
Kendriya Karya Samiti convened a meeting on 13.10.2011 at Upras
Vidalaya, Vasant Marg, Vasant Vihar, New Delhi and formed the new
Management Board for the said school.
8. A copy of the list of office bearers of the Kendriya Karya Samiti duly
appointed in the elections for the period 2011-16 has been extracted in the
writ petition. Certificate issued by the SDM, Chankyapuri of the result of
elections has also been filed along with the writ petition. It is also stated
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 3 of 56
in the writ petition that the Kendriya Karya Samiti formed the new
management board in its meeting held on 13.10.2011. List of the office
bearers has also been extracted in the writ petition. As per the writ
petition on 4.7.2012, the Kendriya Karya Samiti was re-constituted and
the list of members has been filed along with the writ petition.
9. It is also stated that on 27.9.2011, Sh.Janardan Rai, the ex-Manager, who
was removed from the management of the school for his immoral and
unconstitutional activities/ mis-appropriation of funds and against whom
allegations of were also alleged, filed a petition in the Delhi High Court
being writ petition (Civil)No.7187/2011. It is also the case of the
petitioner that in the writ petition it was concealed that the fresh elections
had been held on 25.9.2011; and pursuant to the elections, a fresh board of
management had been formed on 13.10.2011, wherein Sh.Janardan Rai
was replaced by Dr.R.K. Rai, as the Manager. In the aforesaid writ
petition on 13.10.2011, the following order was passed:
"This Court does not wish to express any opinion on the merits of
the rival contentions of the parties. The question of maintainability
of the writ petition is also not being decided at this stage. It is
however necessary to ascertain the factual position, with the
assistance of the DOE, which has a statutory role to perform in
terms of Section 24 DSEA. Accordingly, this Court considers it
appropriate, at the present stage, to direct the DOE in the first
instance to depute at least two senior level officers to visit the
School in question and inspect its records to ascertain whether the
books and accounts of the School are being maintained in
accordance with the provisions of the DSEA and the Delhi School
Education Rules', 1973 (DSER). They will prepare a report, inter
alia, on whether the decisions of the EC of the Society and MC of
the School are being properly minuted in terms of the DSEA and
DSER............."
10. Pursuant to the order dated 13.10.2011 passed by the Delhi High Court
nominees of respondent no.1 visited school on 18.10.2011 and 19.10.2011
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 4 of 56
and subsequent to the same a committee was formed by the Director of
Education nominees wherein serious financial irregularities were
discovered of the ex-manager, Sh.Janardan Rai, and the earlier
management whose term was till 13.10.2011. It is highlighted that the
financial irregularities pertained to the period when the former Managing
Committee in which Sh.Janardan Rai was the Manager and the
Sh.Baleshwar Rai was the Chairman and no financial irregularity related
to the period of the present management.
11. It is the case of the petitioner that the present management has brought
immense development and progress in the school which was brought to
the notice of the respondent. It is also pointed out that the new board of
management took over the charge of the school on 13.10.2011 examined
the records and found that the ex-management under the President-ship of
Sh.R.K. Singh, the ex- Executive President of Uttar Pradesh Samaj and
Sh.Janardan Rai, the Ex-Manager of Upras Vidalaya, Vasant Marg,
Vasant Vihar, New Delhi-110 057 in conspiracy with each other and other
persons misused their position and dishonestly and fraudulently
committed various acts of omissions and commission and mis-
appropriated huge funds of the society and the school; relevant documents
were also stolen by them, so that their misdeeds could not be traced.
12. In the writ petition pending, the Director of Education filed a detailed
report qua the functioning of the ex-management, which would show the
irregularities and mis-appropriation of funds by the ex-management.
Some of the observations of the Committee have been reproduced in the
writ petition and the same read as under:
"Accounts and records of the Upras Vidyalaya, Upras Nursery
School for the year (2010-11) and 2011-12 (up to September
2011) have been test checked and following discrepancies
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 5 of 56
observed:
1. All the payments are released by manager, Principal and
Treasurer and no approval of the Chairman of MC was
obtained for all kind of expenditure incurred during last
two years.
2. Manual Cash Book is not maintained. Account is
maintained in computerized tally system and not print
out of the petty cash book are taken out and not duly
authenticated by the authorized person.
3. Office Assistant handled the cash which is kept in
almirah and safe chest duly imbedded in wall.
4. The Account has not audited by the CA for the year
2010-11.
5. Salary to the staff is being paid upto 07th of the
preceding month whereas it should be paid on last
working day of the month.
6. Facility of re-imbursement of medical claim and LTC is
not provided to the staff.
7. The development fees collected was Rs.16,26,00/-
whereas the depreciation was only Rs.5,64,620/- and the
balance of the development fund as on 31.3.2010 was
Rs.1,96,64,843/-. Thus in excess of the actual
requirement.
8. The balance in bank as on 31.3.2010 was
Rs.2,54,83,228/-, it should be kept in the form of FDR
so that the interest could be earned. Thus it is a
financial mis-management.
9. As per section 10 (1) of DSEA & R 1973 the pay and
allowances of employees of unaided/recognised schools
should be at part with their counterpart in the Govt
Schools but appropriate grade pay has not been allowed
in the following cases as per details below :-
(a) Smt. Mutawali Tiwari, TGT was allowed grade
pay of Rs.4200/- instead of Rs.4600/- admissible
to the post of TGT.
(b) Smt. Annu Bamrara, TGT was also given grade
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 6 of 56
pay of Rs.4200/- instead of Rs.4600/- admissible
to the post of TGT.
(c) Smt Pravati Rath, has been allowed grade pay of
Rs. 2800/- instead of Rs. 4200/- admissible to the
post of primary teacher.
(d) Smt. Amita Dass Gupta, PGT is being paid grade
pay of Rs. 4800/- and she has been granted ACP
wef January 2011 and is entitled to grade pay of
Rs.5400/-. She was allowed ACP wef January
2011 instead of due date July 2007.
(e) Smt. Yashoda Sharma is being paid grade pay of
Rs.4800/- as she has been granted ACP in the scale
of PGT wef Jan 011, she should have been allowed
grade pay of Rs.5400/- and date of grant of ACP
should have been Jul 2004.
(f) Sh. Ranunuj Rai, Peio is a 12th pass and should be
allowed grade pay of Rs.1800/- wef 01st January
2006 whereas he is drawing grade pay of Rs
1300/-.
(g) Sh. Raj Kumar, Sweeper being a non-matriculate
should be sent for training and after the training be
allowed grade pay of Rs.1800/-.
10. Sh.Hari Lal Ex-Security Supervisor was paid
Rs.1,85,049/- vide cheque no.107515 dated 07.06.2011
but not voucher and orders of any competent authority
was provided by the school. It is also not known that on
what account this amount was paid by the manager and
Treasurer without anybody‟s approval."
13. Taking into consideration the acts of omissions and commissions, the
General Secretary of the Samaj/ Society in discharge of its official duties
filed a Criminal Complaint with the Police Station Vasant Vihar against
Sh.Janardan Rai, ex-Manager and the present Members-in-charge, liable
for causing wrongful loss to the petitioner no.1 and the society on
28.10.2011. Since no action was taken, a criminal complaint under
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 7 of 56
Section 156(3) Cr.P.C. was filed before the Additional Chief Metropolitan
Magistrate, Saket, Delhi for registration of the FIR. By an order dated
3.2.2012 the learned Metropolitan Magistrate directed registration of the
FIR (FIR No.47/2012). Sh.Vinod Rai, relative and associate of the ex-
Manager, Sh.Janardan Rai, as a counter-blast to the FIR No.47/2012, filed
a complaint under Section 156(3) Cr.P.C. and pursuant to the orders of the
learned ACMM, FIR No.85/2012 was also registered.
14. On 29.2.2012 the respondent no.1 issued a show cause notice for taking
over the school. It is the case of the petitioner that the show cause notice
contained irregularities committed by the earlier management and no
irregularity was pointed out during the period, the present management
was formed i.e. on 13.10.2011. In response to the show cause notice, the
petitioners pointed out that all defects of the earlier management were
duly removed and rectified; and in the reply of 12.3.2012 the following
points were highlighted:
"The present management committee is maintaining manual
cashbook and other records manually where the concerned
employee is authenticated.
Office Assistant is now handling the cash in Hard cash Box
fixed in the wall of a room which is at very safe place under
heavy locks and key and security supervision.
The accounts have now been audited by C.A. for the year
2010-11 which was not even touched by the ex-manager
Sh.Janardan Rai and his family MC /EC team.
The present management since it taken over i.e. from 13th Oct.,
2011 is paying the salary of staff on the last day of the due
month itself. Not only this, all the dues of the staff which were
not paid by the Ex.-Manager, Janardan Rai and former MC of
school has now been paid.
Facilities of re-imbursement of medical claim and LTC are
now provided by the present management to the staff.
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 8 of 56
The development fund have been used for the developmental
activities of the school.
That due to the financial mismanagement done by the Ex-
Manager Sh.Janardan Rai, an FIR has been lodged by the
present EC of the Samaj and MC of the school vide FIR
No.47/12 of P.S. Vasant Vihar, New Delhi. The amount of
Rs.2,55,11,228/- was accumulated by the former MC
particularly Sh.Janardan Rai, Ex-Manager by not paying the
dues of the staff, illegal deduction salary of staff, no-
infrastructural development, non-payment of security deposit
of the students, etc. which have now been made transparent
and regularized and maintained and expenditure made in their
respective heads in the all-round development of the school
and there is no payment of any kind of dues of the staff or
otherwise.
As per section 10(1) of DSEA&R 1973, the pay and
allowances of employees which was not paid by the ex-
manager Sh.Janardan Rai has now been paid to all namely:
Smt.Muktawali Tiwari, TGT grade pay of Rs.4600/- was
regularized instead of Rs.4200/-
Smt.Annu Bamrara was also paid as TGT Grade of Rs.4600/-
Smt.Pravati Rath has been paid PRT grade of Rs.4200/-.
Smt.Amita Dasgupta, PGT ACP was allowed and paid from
July, 2007.
Smt.Yashoda Sharma, ACP granted with due date.
Sh.Ramanuj Rai grade has been regularized.
The case of Sh.Raj Kumar, Sweeper has been proceeded and
needful has been done.
Sh.Hari Lal, Ex-Security supervisor was paid Rs.1,85,049/-
vide cheque No.107515 dated 7.6.2011 by Sh.Janardan Rai,
Ex-Manager to hushup the case of attempt to rape which he
has committed with the wife of Sh.Hari Lal Yadav which is
under investigation and an FIR is pending registration against
Sh.Janardan Rai and his associates including his real son and
son-in-law.
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 9 of 56
All the seven teachers whose names have been mentioned have
got their dues of 60% the arrears of 6th Pay Commission."
15. It was also brought to the notice of the respondents vide letter dated
12.3.2012 that the staff also expressed their satisfaction with the present
management with regard to salaries, renovation of staff room, new
furniture, water dispenser, oil heaters, new lockers for teachers etc.
Another reply was sent on 24.3.2012 and the petitioner was under the
impression that the respondents were satisfied with the replies and after a
period of six months the impugned order was passed.
16. It is the case of the petitioner that the allegations made in the impugned
order of take over were not part of the show cause notice. It has also been
mentioned in the writ petition that on 28.5.2012 Mr.Vinod Rai, relative of
Sh.Janardan Rai, Ex-Manager of the school filed a suit in the Delhi High
Court being CS(OS)No.1679/2012 for declaration, mandatory and
permanent injunction and rendition of accounts, declaring that the
elections held vide order dated 25.9.2011 are fictitious and bogus.
Together with the suit, two applications for interim relief were filed under
Order 39 Rules 1 and 2 and under Order 40 Rule 1 for appointment of a
receiver being I.A.Nos.10773-04/2012, with the prayer to restrain the
defendants to operate the account, however, no interim orders have been
passed till date.
17. It is also submitted that on 11.7.2012 the Deputy Director of Education
(SW-A) on instructions of respondent no.1 vide letter dated 11.7.2012
informed the petitioner no.1 about an inspection to be conducted on
12.7.2012 at 11:00 a.m. citing baseless reasons including harassment of
employees and financial irregularities. However, without conducting any
inspection, the respondent no.1 passed an order on 12.7.2012 by which it
was ordered that the bank account of the petitioner no.1 would not be
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 10 of 56
operated by anyone without prior permission of the Deputy Director of
Education (SW-A), on the ground of pendency of an FIR No.85/2012
under Sections 406/420/120-B IPC and pendency of Writ Petition bearing
No.7187/2011 in respect of some disputes between the management and
the school. The order also mentions that different parties were staking
claim to the management of the school, hence, relying on section 24(3) of
Act, 1973, read with Rules 43, 181, 182, 185 of the Rules, 1983,
respondent no.1 passed the impugned order.
18. It may be noticed that the challenge to the aforesaid order was made by
filing writ petition No.4308/2012 which is also being decided along with
the present writ petition. It may also be noticed that while issuing notice
in WP(C) 4308/2012, certain interim orders were passed on 20.7.2012.
19. On 16.8.2012 in W.P.(C)7187/2011, filed by Ex. Manager, Sh.Janardan
Rai, a learned Single Judge of this Court passed an order of taking over
the petitioner no.1 school and observed that there are two management
committees which are competing with each other and there are claims and
counter claims, allegations and counter allegations made by the said two
management committees against each other. The learned Single Judge
also took note of certain purported illegalities and irregularities committed
by the Managing Committee, and order dated 16.8.2012 was passed
directing the respondent no.1 to take over the management of the school
till the claims and counter claims of the two management committees are
settled in a civil court/ tribunal, where evidence can be led to prove who is
right and who is wrong.
20. On 28.8.2012 aggrieved by the order dated : 16.8.2012 passed by the
learned Single Judge of this Hon‟ble Court, the petitioners herein, filed an
LPA bearing No.597 of 2012 inter-alia seeking quashing of the order
dated : 16.8.2012 being without jurisdiction and arbitrary. Vide order
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 11 of 56
dated 4.9.2012 the Division Bench-I of this Hon‟ble Court disposed of the
said LPA with observation that " having regard to these facts, the
Director of Education has itself recommended and the Hon'ble Lt.
Governor as an administrator has to take the decision in the matter, it is
not necessary to deal with this appeal. Needless to mention that if the Lt.
Governor passes an order taking over the management of the school, it
would be open to the appellant to challenge the order in accordance with
law. We only expect that the Lt. Governor shall take, whatever decision is
to be taken immediately."
21. It is also the case of the petitioner that despite the statement made before
the Division Bench, the respondents have passed the impugned order by
placing reliance on the order dated 16.8.2012 passed by the learned Single
Judge and without taking into account the order of the Division Bench. It
is also pointed out that after the order dated 4.9.2012 passed by the
Division Bench, the respondent no.1 ordered inspection for 15.10.2012
vide letter dated 18.9.2012. However, no inspection was carried out but
the impugned order was passed.
22. It is contended by Mr.Kher, counsel for the petitioners that the impugned
order passed for taking over the management of the petitioner, school for
three years is unwarranted and uncalled for, it is against all cannons of
justice and principles of natural justice have not been complied with. The
order is arbitrary, bad in law and filed at the behest of the ex-Management
and more particularly a person who has been closely associated with the
Directorate of Education in a very senior position; and it is not in the
interest of justice, nor in the interest of the school. It is contended that the
present management cannot be punished for the irregularities committed
by the earlier management during its tenure which ended on 13.10.2011
and in the inspection carried out on 18.10.2011 and 19.10.2011 there is
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 12 of 56
not even a whisper about the present management which was formed on
13.10.2011.
23. It is submitted that the respondents were fully satisfied with the detailed
replies dated 12.3.2012 and 24.3.2012, which is evident from the fact that
no action was taken for seven months and after seven months without any
cogent reasons passed the impugned order. It is strongly urged before this
court that the grounds raised in the impugned order were not part of the
show cause notice and the order of take-over cannot be passed without
giving an opportunity to show cause and hearing.
24. It is also argued that the impugned order shows non-application of mind,
as the respondents have failed to consider that all the defects and
deficiencies of the earlier management as stated in the show cause notice
dated 29.2.2012 were removed and rectified by the new management and
the respondents were informed of the same. The respondents failed to
take into consideration that the entire staff members (teaching and
non/teaching) expressed their satisfaction with the present management,
who are running the school peacefully and as per the Act and Rules,
salaries are being paid to the staff as per the 6th Pay Commission regularly
and renovations etc., has been carried out.
25. It is further pointed out that the order passed by the respondent No.1
smacks of arbitrariness which is also evident from the fact that in the
order reference is made to FIR No.85/2012, which was registered as a
counter blast to an earlier FIR No. 47/2012 by the petitioners, however,
respondents did not consider that an earlier FIR was registered at the
instance of the petitioners against the complainant of FIR No.85/2012
which is a counter-blast. The respondents also did not detail as to which
parties are staking claim to the management of the school and also did not
consider the pendency of the suit for declaration bearing
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 13 of 56
CS(OS)No.1679/2012, where no interim orders were passed. It is also
contended that the respondents could not have granted relief to certain
disgruntled sections, who were not granted relief even by the High Court.
26. Reliance is placed on section 24 of the Delhi School Education Act, to
show that the Director has the power to conduct the inspection of the
school and also give a direction/opportunity to the management to rectify
any defect or deficiency found at the time of inspection or otherwise in
the working of the school and in case the management fails to comply
with any direction, the Director may take such action as deem fit
including stopping of aid and withdrawal of recognition.
27. It is argued by Mr.Kher, that the impugned order has been passed without
directing any inspection or for non-compliance of any direction to the
Manager. It is also submitted that although an order for inspection dated
18.9.2012 was passed, but before the inspection was fixed, the impugned
order was passed.
28. Mr.Kher further contends that the respondent no.1 in the impugned order
dated 26.9.2012 alleged that the money is being withdrawn illegally even
without the approval of the Principal of the school. It is pertinent to
mention that the petitioner no.1 apprised the bank vide letter dated
3.10.2011 about the provision/Rule 174 of the Delhi School Education
Rules 1973 that according to the said provision, it is mandatory that no
withdrawal from the school fund can be made without the joint signatures
of the head of the school i.e. Principal and Manager of such school /
authorized member of the managing committee. However, the Bank vide
letter dated 13.10.2011 informed the petitioner no.1 that operation of the
bank account shall be allowed only as per the old mandate / scheme of
management approved by the Director of Education. The signature of
Principal is not mandatory as per scheme of management however
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 14 of 56
signature of treasurer is mandatory as per scheme of management. Even
though the petitioner no.1 vide letter dated 10.12.2011 requested the
respondent no.1 for necessary amendment in the approved scheme of
management of the petitioner no.1 in the meeting of Kendriya Karya
Samiti of the Samaj held on 13.10.2011 however, the respondent no.1 has
not replied the abovesaid letter till date.
29. Counsel for the petitioner contends that though merely because different
parties are staking claims to the management of the school cannot be a
ground for taking over, as the school is a private un-aided school and the
Director of Education cannot interfere, nor perform the duties of the Court
in deciding disputed questions of fact and side with anyone group;
moreover, when a civil suit was pending in the Delhi High Court, wherein
no interim orders were passed in favour of the said plaintiff.
30. It is submitted that even otherwise, the impugned order could not have
been passed, as the High Court was seized of the matter in the Writ
Petition No.4308/2012 and the High Court had declined to pass any
interim order in favour of the petitioner, but a working arrangement was
made.
31. Reply affidavit has been filed by respondent no.1. In the reply, a
preliminary objection has been raised with regard to the maintainability of
the writ petition on the ground that against the order passed under Section
20 of Delhi School Education Act for taking over the management of the
school a remedy under Section 20(4) of the Delhi School Education Act is
provided by means of filing an appeal to the Lieutenant Governor. Having
failed to exhaust the alternate remedy available, it is contended by learned
counsel for respondent no.1 that the writ petition should be dismissed.
32. It is further contended by learned counsel for respondent no.1 that in the
year 2011, Sh.Janardan Rai, Manager of Upras Vidyalaya, had filed
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 15 of 56
W.P.(C)7187/2011, inter alia, challenging the Office Order of the
Chairman of the Managing Committee dated 10.9.2011 wherein the said
Sh.Janardan Rai was asked not to continue functioning as a Manager,
pending a proposed inquiry on charges of irregularities. In the aforesaid
writ petition, vide Order dated 13.10.2011, the Director of Education was
directed in the first instance to depute at least two senior level officers to
visit the school, in question, and inspect its records to ascertain whether
the books and accounts of the school were being maintained in
accordance with the provisions of Delhi School Education Act and Rules.
It was further directed that a report, inter alia, on whether the decision of
the EC of the society and MC of the school are properly minuted in terms
of Delhi School Education and Rules. Officers were directed to visit the
school between 15.10.2011 and 27.10.2011. Thereafter the report was to
be placed on record by way of an affidavit. Reliance is placed on paras 7
to 10 of the Order dated 16.8.2011 passed in W.P.(C) 7187/2011, which
read as under:
"7. At present there are two Management Committees. There are
claims and counter-claims, allegations and counter-allegations,
which can be adjudicated in a Civil Court/Tribunal, where evidence
can be led to prove, who is right and who is wrong. Therefore,
instant petition cannot be adjudicated under Article 226.
8. The main concern of the Court is that education of the
children should not be disturbed and this could be possible only if
the Management of the School is running smoothly. In view of the
report mentioned above, the School is not functioning smoothly.
9. In these circumstances, Director of Education is directed to
take over the Management of the School till the claims and counter-
claims of the petitioners/respondents are settled.
10. I here make it clear that the Director of Education shall take
over the administration of the School as per the Delhi Education
School Act and Rules."
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 16 of 56
33. LPA No.597/2012 filed by the petitioners herein was also disposed of on
4.9.2012 wherein the following order was passed:
"4. When this appeal came up for hearing on 31.8.2012, we were
informed that de hors the direction of the learned Single Judge, in
any case, the Directorate of Education had already issued show
cause notice to the Management Committee and the Management
Committee had given its reply as well.
5. In view of this, we had directed the learned counsel for the
Directorate of Education to find out what further action is taken on
the said show cause notice. Today, Ms. Zubeda Begum, appearing
for the Directorate of Education, informs that reply was considered
by the Department who found the same to be unsatisfactory and
there is a proposal already mooted to take over the Management of
the School and file has been put up before the Hon ble Lt.
Governor, GNCTD for passing appropriate orders thereupon.
6. Having regard to these facts, when the Directorate of Education
has itself recommended and the Hon‟ble Lt.Governor as an
Administrator has to take the decision in the matter, it is not
necessary to deal with this appeal. Needless to mention that if the
Lt. Governor passes an order taking over the Management of the
School, it would be open to the appellant to challenge that order in
accordance with law. We only expect that the Lt. Governor shall
take, whatever decision is to be taken, immediately.
The appeal stands disposed of."
34. Ms.Sindhwani, learned counsel for respondent no.1, contends that a show
cause notice dated 29.2.2012 was issued to the School Management under
Section 20 of the Delhi School Education Act whereby the school was
asked to show cause as to why the school should not be taken over under
the Delhi School Education Act. Reply dated 12.3.2012 was received
wherein the Principal had detailed the improvements made by the present
management. It was also informed that the election of the parent body of
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 17 of 56
Uttar Pradesh Samaj was held on 25.9.2011 and a new Managing
Committee of the school was constituted on 13.10.2011. The reply
received was not found to be satisfactory. Another reply was received on
24.3.2012 addressed to the Director of Education. Meanwhile,
letters/complaints were received by the Director of Education signed by
two Managers i.e. Sh.Janardan Rai and Sh. R.K. Rai. Complaints were
received with regard to misappropriation of school funds, which were
placed before the Director of Education. The Director of Education
issued directions for inspection of the school, which was conveyed to the
school vide letter dated 11.7.2012. On the same day, the Principal of the
school informed the Deputy Director that the Manager of the School was
out of station and would be available after ten days. Thirty days‟ time was
sought to prepare for the inspection. Hence the inspection could not be
conducted. It is clarified in the counter affidavit that routine annual
inspections are carried out at least once a year and as per the order dated
7.9.2012 the school was to be inspected and the letter dated 19.9.2012 in
respect of the inspection had no connection with the process of taking
over of the school for which show cause notice had already been issued
on 29.2.2012.
35. It is also the case of respondent no.1 that despite the stand of the
petitioner that a new managing committee had been appointed the
disputes between the two groups continued, which were affecting the
working of the school, students and staff. The Director of Education was
also not given any intimation about the proposed elections. It is also
pointed out that dispute with regard to the management of the school still
remains unresolved and a suit has been filed by Sh.Vinod Rai challenging
the elections. There are complaints between the management, teachers
and employees and also complaints with regard to rustication of one
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 18 of 56
Master Abhishek Kumar Singh of Class IX on the ground that his mother
had misbehaved with the Principal of the school. The said Master
Abhishek Kumar Singh is the son of the lab assistant, who is working in
the school, although he has been suspended. In view of the complaints
regarding embezzlement of funds and misuse/siphoning of crores of
rupees from the bank accounts of the school, the respondent no.1 issued
an order dated 12.12.2012 directing that the bank account of the school
shall not be operated by anyone without prior approval of Deputy Director
(SW-A). The aforesaid order was challenged by filing W.P.(C)
4308/2012. While issuing notice in the said writ petition, interim
directions were also issued by this Court.
36. It is further the case of respondent no.1 that considering the various
complaints received against the management of Upras Vidyalaya alleging
mismanagement, embezzlement of funds and misuse/siphoning of crores
of rupees from the bank accounts of the school, various irregularities
observed during the inspection of the school and in view of the fact that
different parties were staking claim for management of the school, the
Lieutenant Governor in exercise of powers conferred under Section 20 of
Delhi School Education Act was pleased to order the Director of
Education to take over the management of the school for a period of three
years.
37. An application [CM.No.18263/2012] has been filed under Order 1 Rule
10 CPC by the Ex-Manager, Sh.Janardan Rai, seeking intervention in this
writ petition.
38. Although, Mr.Khanna, counsel appearing for the applicant was heard, but
no formal order of impleadement was passed in favour of the appellant. It
may be noticed that the applicant has filed a substantive Civil Suit, which
is pending adjudication on the original side of this court. It may be
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 19 of 56
noticed that this civil suit was instituted as far back as in the year 2012.
File of this suit was called and it revealed that the plaintiffs have shown
little or no interest in pursuing said matter, which was evident from the
fact that since the year 2012 till date the matter remains pending before
the Joint Registrar and no efforts have been made even to argue the
application under Order 39 Rules 1 and 2 CPC.
39. Counsel for the applicant has supported the arguments raised by
Ms.Sindhwani, counsel appearing on behalf of the Directorate of
Education. While relying on Central Academy Sr. Secondary School Vs.
Lieutenant Governor and Ors., reported at 66 (1997) DLT 25 (DB), it
has been urged before this court that the High Court is not a court of
appeal and moreover there is no legal infirmity in the impugned order of
taking over of the school. It has also been argued that the department has
followed the principles of natural justice, as a show cause notice was
issued to the school and the reply filed by the school was considered.
40. It is also the case of the respondents as also the applicant that the
petitioner has not availed of an alternate remedy of appeal provided under
Section 20(4) of the Act.
41. In the case of Central Academy Sr. Secondary School (supra), a request
was made by the school for closing down. The department did not deem
it appropriate to accept the same, but issued a show cause notice for
taking over. The Division Bench observed that it was for the authorities
to consider having regard to the locality where the school is functioning
and the needs of the residents of the area or having regard to the plight of
the children and teachers to decide whether the management could be
permitted to close down the school. The Division Bench has also noticed
the result of the inspection which was carried out and also that the school
was directed to remove the defects and furnish a compliance report. The
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 20 of 56
Division Bench considered the response of the school, which had denied
most of the accusations. A second inspection was carried out to verify the
facts in reply to the show cause notice and it was noticed that the
deficiencies had not been cured. It was also found that the enrolment of
the students had been drastically gone down, new admissions had been
deliberately avoided, resultantly the final order was passed.
42. There is no quarrel with regard to the proposition laid down by the
Division Bench in Central Academy Sr. Secondary School (Supra)). No
doubt in proceedings under Article 226 of the Constitution of India the
Court cannot sit over the order as if it was a court of appeal, although,
when an order of taking over which is a drastic order and which entails
serious consequences, is to be passed, grant of personal hearing would
surely be in the interest of the staff and the children more particularly in a
private unaided school. But merely because no personal hearing was
granted, cannot by itself be a ground to set aside the impugned order, if
other principles of natural justice have been followed and if the court or in
this case the Lieutenant Governor is satisfied on the basis of the material
placed on record that the school was required to be taken over.
43. Ms.Sindhwani and Mr.Khanna are also right in their submissions that
administrative authorities are not required to record reasons as elaborately
as in an order passed by a court. But surely what is required upon reading
of the order must show application of mind to the relevant facts and
reasons howsoever short they may be, should have to be recorded. The
case of Central Academy Sr. Secondary School (Supra) sought to be
relied upon by the counsel for the Directorate of Education and the
applicant, in my view is not applicable at all to the facts of the present
case.
44. It may be noticed that in the present case, in reply to the show cause
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 21 of 56
notice the petitioners made categorical assertions that the deficiencies
which were pointed out pertained to the period of the earlier
management. With regard to the deficiencies and the issues raised in the
show cause notice of the non-payment of dues, non-payment of salaries as
per the 6th Pay Commissioner and other complaints of the staff, the
present management of the school in response to the show cause notice
categorically stated that all deficiencies stand cured, all payments made
and action taken against the previous management, including by filing an
FIR against the Manager, to show the seriousness and the effort to run the
school smoothly. Statements of all the teachers were also enclosed with
the reply to the show cause notice, all of which it seems was not taken
note of, as it is not reflected in the final order.
45. The final order refers to an FIR which was in fact registered subsequently
against the present management by the earlier management, but the order
has not referred to an FIR registered earlier in point of time by the present
management against the Ex-Manager, which is a surprising factor.
During the course of argument, a pointed question was asked to the
counsel for the Directorate of Education, as to who was paying the salary
to the staff, who was operating the bank accounts and carrying out the
day-to-day functioning of the school. It was not denied that it is only the
present management, who is carrying out the day-to-day functioning of
the school and the teachers and staff are being paid by the present
management. The bank account is also being operated by the present
management.To say that the school should be taken over on account of
disputes between the two managements is a statement which may be
factually correct because no doubt there is a dispute [a suit is pending],
but what the ex management could not achieve directly cannot be
permitted to be achieved indirectly and that also through an independent
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 22 of 56
body, being the Directorate of Education, also the dispute seems to be
now only on paper, as is evident from the fact that the ex-management,
who have instituted a suit in the Delhi High Court have taken no steps to
pursue the same.
46. It may be noticed that the dispute between the two managements is to be
resolved in a civil suit upon evidence, neither it can be resolved in writ
proceedings, much less by the Directorate of Education, who has no
power to do so. In fact the Directorate of Education should have taken
note of the fact that despite the former management having approached
the High Court they were unable to obtain any order of injunction or any
favourable order.
47. It has been repeatedly held that wherever an alternate remedy is available,
a writ petition should not be entertained. It has also been repeatedly held
that this is not an absolute rule, whenever the order so impugned is illegal,
perverse and there is error apparent on the face of the order, there is no
absolute bar against entertaining a writ petition.
48. In the case of U.P. State Cooperative Land Development Bank Vs.
Chandra Bhan Dubey & Ors., reported at (1999) 1 SCC 741 a question
came up for consideration as to whether the U.P. State Cooperative Land
Development Bank would be amenable to writ jurisdiction of the High
Court under Article 226 of the Constitution, wherein it was held that the
power of the High Court under Article 226 is wide and vast and the High
Court would be well within its rights to grant protection be it a wrong
done by the State, an instrumentality of the State, a company or a
cooperative society, or association or body of individuals, whether
incorporated or not, or even an individual. Right that is infringed may be
under Part III of the Constitution or any other right which the law validly
made might confer upon him. But then the power conferred upon the
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 23 of 56
High Courts under Article 226 of the Constitution is so vast, this Court
has laid down certain guidelines and self-imposed limitations have been
put there subject to which the High Courts would exercise jurisdictions. In
my view, the present case falls well in the exception where a writ petition
would be maintainable.
49. Copies of the inspection held on 18.10.2011 and 19.10.2011 have been
placed on record. The inspection report comprises of various columns
under different heads, which include office procedure, management of
school, academics, facilities in school, financial and miscellaneous. It may
be noticed that with regard to 20 columns pertaining to the academics of
the school no infirmity or irregularity was found in the inspection under
this heading. With regard to the management of the school out of the six
columns the infirmity pointed out was primarily that a stationery shop was
being run in the premises of the school and also that the managing
committee was interfering in the day-to-day functioning of the school.
Some lapses were found in the office procedure, however, in the column
with regard to the facilities of the school all conditions were found to be
satisfactory. Since one of the main reasons for taking over of the school
was financial irregularities the entire report with regard to the columns
titled „Financial‟ is being reproduced verbatim:
FINANCIAL
1. Whether the school has Yes, Rs.1904623/-. RS
transferred any fund to Nineteen Lakhs four thousand
any Society or Trust, and six hundred three only, has
if so, the details along illegally transferred from school
with the name of funds to society details
Society/Trust, amount, mentioned in P.No.-123-126
date, etc. during the month of June 2011.
As per inspection report dated
28/10/12, Sh. Hari Lal Ex.
Security supervisor was paid
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 24 of 56
RS185049/- vide cheque no-
107515 dated 07/06/11 but no
voucher and orders of any
competent authority was
provided by the school. In this
the school authority intimate
letter dated 16/11/12 the said
cheque was issued in favour of
Sh. Hari Lal by the Ex Manager
towards compensation for
molesting and an attempt to
rape. A copy is enclosed. P.No.-
120-122.
2. Whether the school is Maintained and found in
maintaining all vouchers satisfactory condition and same
of major expenditure were incorporated into Audit
items may be physically Report, Audited by Chartered
checked to find whether Accountant.
expenditure items were
justified and geniuses of
vouchers are looked into.
3. Whether school has No, It is also certified by the
given any school authority vide letter
loans/advances to dated 16/11/12 P.No.-119
society/any other
institution?
4. Whether the school has As per rule with prior approval
raised/charged fee and of PTA Association Copy
other dues from students P.No.-112-118
which are not consistent
with the deptt.
Instructions and the
provisions contained in
the DSEAR 1973?
(Refer Order dated
16/4/2010).
5. Whether the school Maintained and found in
management has satisfactory condition school
maintained its accounts account operated by the
as per provisions of Principal and Manager, as per
Rules of Rules 173 & P.No.-110-111.
175 of DSEAR, 1973?
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 25 of 56
6. Whether the school is Yes, enclosed with the annual
regularity fling the return P.No.-30-109
statement of the fees to
be levied by such school
during the ensuring
academic session as per
the provision of Section
17 of DSEAR, 1973
since the date of its
recognition? (Copy of
acknowledgement of the
same for the last three
years be also furnished
along with the inspection
report).
7. Whether the school is Yes, copy annexed as P.No.-30-
regular filling the annual 109
return under section
180(i) of DSEAR 1973,
Since date of its
recognition? (Financial
returns for last three year
be also furnished along
with the Inspection
report?
8. Whether the school Yes, But in some case the pay
management is paying fixation of the school staff is
salary to the teachers and seems to be incorrect due to
staff as per the wrong rounding of the amount.
recommendations of 6th However the grade pay in
Pay Commission or respect of employees mentioned
whether it is violating in Report dated 28/10/11 vide
provision of section para 9 has been rectified. 60%
10(1) of DSEAR, 1973? arrear of VICPC has been paid
13/03/12 by the present
management in r/0 left out (7
cases) according to last
inspection report i.e. 28/10/11.
9. Whether money Yes, certified by the School
collected by the school is Authority P.No.-11/29, but does
utilized for the not seems to be justified and
development activities needs verification by the
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 26 of 56
and/or for augmenting District authorities.
the existing facilities,
providing safely (sic.
Safety) measures , etc. of
the school.
10. Whether the managing Yes
committee of the school
is financially viable to
manage affairs of the
school?
11. Whether donations in No
any form are demanded
by the school
management at the time
of admissions to the
school or when results
are declared by the
school?
50. The genesis of these writ petitions [WP(C)No.6288/2012,
WP(C)No.4308/2012 and WP(C)No.3643/2013] is a dispute with the ex-
Manager of the school (Mr.Janardan Rai). As per the writ petitions
[WP(C)No.6288/2012, WP(C)No.4308/2012 and WP(C)No.3643/2013],
Mr.Janardan Rai was removed from the management of the school on
account of immoral, unconstitutional activities, misappropriate of funds
and allegations of attempt to rape. A writ petition was filed by
Mr.Janardan Rai being WP(C)No.7187/2011. In the aforesaid writ
petition on 13.10.2011 a Single Judge of this Court directed the
Directorate of Education, to depute two senior level offices, to visit the
school, inspect its record to ascertain whether the books of accounts of the
school were being maintained in accordance with the provisions of Delhi
School Education Act. It was also directed that a report be prepared on
the followings:
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 27 of 56
"(i) Whether the books and accounts of the school are being
maintained in accordance with the provisions of DSEA and DSER,
1973.
(ii) Whether the decision of the EC of the society and the MC of
the school are being properly minuted in terms of DSEA and
DSER, 1973.
(iii) Whether any decision was taken by the EC of the society or
MC of the School concerning the petitioner continuing as the
Manager of the School.
(iv) Whether the letter dated 9th September, 2011 written by the
respondent No.4 to the petitioner was as a result of such decision of
the EC of the society or the MC of the school.
(v) Whether the decision was purportedly taken by the EC of the
society on 9th October, 2011 removing respondent no.4 as the
Chairman of the MC and whether such decision was properly
minuted; and
(vi) Whether the affairs of the school are being run in accordance
with the scheme of the Management of the school."
51. The report of the Committee was placed before the Court. By an order
dated 16.8.2012 the writ petition was disposed of. The Single Judge
directed the Directorate of Education to take over the management of the
school till the claims and counter claims of the petitioners and
respondents are settled. While passing the order, the Court extracted the
observations made by the Committee.
52. Aggrieved by the order dated 16.8.2012 the management of the school,
petitioner herein filed an LPA No.597/2012, which was disposed of by an
order dated 4.9.2012. The Division Bench while disposing of the LPA
had passed the following orders:
"1. The respondent no.1 who was working as Manager of
the appellant School has filed WP(C) 7187/2011 seeking
various reliefs which include relief relating to issuance of
mandamus directing the appellant School not to restrain him
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 28 of 56
from discharging statutory duties as Manager of the School
and to quash the show cause notice issued to him proposing
to terminate his services.
2. During the hearing of the said writ petition, the learned
Single Judge found that there are two Management
Committees which are competing with each other and there
are claims and counter claims, allegations and counter
allegations made by the said two Management Committees
against each other. The learned Single Judge also took note
of certain purported illegalities and irregularities committed
by the Managing Committees and influenced by these
considerations, order dated 16.8.2012 was passed directing
the Directorate of Education to take over the Management of
the School till the claims and counter claims of the two
Management
Committees are settled in a Civil Court/Tribunal, where
evidence can be led to prove who is right and who is wrong.
3. Challenging this order, present appeal is filed and it is
the contention of the learned counsel for the appellant that
there are no two Management Committees and the appellant
Committee, duly constituted, has the right to run the school.
It is further contended that in any case the learned Single
Judge had no jurisdiction to issue such direction to the
Directorate of Education to take over the Management of the
School.
4. When this appeal came up for hearing on 31.8.2012,
we were informed that de hors the direction of the learned
Single Judge, in any case, the Directorate of Education had
already issued show cause notice to the Management
Committee and the Management Committee had given its
reply as well.
5. In view of this, we had directed the learned counsel for
the Directorate of Education to find out what further action is
taken on the said show cause notice. Today, Ms. Zubeda
Begum, appearing for the Directorate of Education, informs
that reply was considered by the Department who found the
same to be unsatisfactory and there is a proposal already
mooted to take over the Management of the School and file
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 29 of 56
has been put up before the Hon‟ble Lt. Governor, GNCTD
for passing appropriate orders thereupon.
6. Having regard to these facts, when the Directorate of
Education has itself recommended and the Hon‟ble Lt.
Governor as an Administrator has to take the decision in the
matter, it is not necessary to deal with this appeal. Needless
to mention that if the Lt. Governor passes an order taking
over the Management of the School, it would be open to the
appellant to challenge that order in accordance with law. We
only expect that the Lt. Governor shall take, whatever
decision is to be taken, immediately. The appeal stands
disposed of."
53. In this backdrop, a detailed show cause notice as to why the school be not
taken over by the Directorate of Education, was issued to the petitioner,
school on 29.2.2012, after the committee had inspected the school on
18.10.2011 and 19.10.2011. In the show cause notice the directions
passed in the writ petition No.7187/2011 were referred to, and reference
was also made to the inspection conducted on 18.10.2011 and 19.10.2011.
A detailed reply to the show cause notice was given on 12.3.2012 by the
school. The school pointed out that the principal body /Uttar Pradesh
Samaj and Board of Management of Upras Vidalaya had been constituted
on 25.9.2011 and 13.10.2011. Sh.Janardan Rai had been removed and
moreover, all the illegalities, financial irregularities, misuse of power
were only due to him.
54. It was also informed that after the formation of new Board of
Management on 13.9.2011 the picture of the school had completely
changed. All employees, teaching and non-teaching staff were being paid
salary, grades had been fixed legally, all staff members were being paid
salary as per law within time, arrears of 6th Pay Commission had been
paid and the financial issues were in conformity with the provisions of
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 30 of 56
Delhi School Education Act and Rules 1973. Statements of staff
members to the effect that they had no grievance left with the
management, were annexed. Regarding accounts and records it was
explained that they were mis-managed by the Mr.Janardan Rai, Ex
Manager and were now being regularized and maintained by the present
management. Accounts had been audited for the year 2010-2011. A full
explanation with regard to the teachers, who had not been paid, as detailed
in the show cause notice, were given in the reply running into 21 pages;
an additional reply was also issued thereafter on 24.3.2012 that all defects,
deficiencies pointed out in the show cause notice had been removed and
rectified. After the reply to the show cause notice there was complete
silence on the part of the respondent till a final order was passed on
26.9.2012 for taking over of the school. This order of taking over is the
subject matter of the writ petition No.6288/2012. This order has been
assailed as being illegal, as the grounds of taking over did not form part of
the show cause notice. Mr.Kher submits that the order so passed is against
all cannons of justice and without following the principles of natural
justice. It is contended that the order is bad in law and moreover, the
present management and the children of the school cannot be punished for
the irregularities committed by the earlier management during their
tenure.
55. It is also the case of the petitioner that no opportunity of hearing was
granted and there is not even a whisper as to why the reply to the show
cause notice was not found to be satisfactory, as defects and irregularities,
if any, stood cured and rectified and details were furnished to the
respondent in reply to the show cause notice. Statement of the employees
and teachers were submitted to the authorities to show that all
irregularities stood rectified and the teachers and staff had no grievance
W.P.(C)NOS.6288/2012, 4308/2012 & 3643/2013 Page 31 of 56
against the present management. Mala fides have been alleged against
department to the extent that reference has been made to a later FIR filed
at the instance of Janardan Rai, however, in the order dated 26.9.2012, no
reference to an earlier FIR registered at the instance of the petitioner
against Janardan Rai was made and without taking into consideration that
the FIR sought to be relied upon was a mere counter blast to the FIR filed
by the petitioner herein against Sh.Janardan Rai. The order of 26.9.2012
is also assailed on the ground that a categorical statement was made
before the Division Bench that de hors the directions of the Single Judge,
the Directorate of Education had already issued a show cause notice to the
Management Committee and the Management Committee had taken its
reply which was found to be unsatisfactory and the Directorate of
Education has itself recommended taking over of the school. In view
thereof LPA was disposed of.
56. It is worthwhile to notice that before the Division Bench in LPA
No.597/2012 the challenge was that there are no two management
committees and only the appellant had the right to run the school. It was
also submitted before the Division Bench that the Single Judge had no
jurisdiction to issue a direction to the Directorate of Education, to take
over the management of the school. Since the entire issue revolves
around the order dated 26.9.2012, I deem it appropriate to reproduce the
order :
"GOVERNMENT OF NCT OF DELHI
DIRECTORATE OF EDUCAITON
OLD SECTT, DELHI-54
No.F.DE/54/DDE/SWA/2011-12/4653 Date: 26.09.2012
ORDER
Whereas various complaints were received against the management
of Upras Vidyalaya, a recognized school functioning in Vasant
Vihar, New Delhi alleging mismanagement, embezzlement of funds
and misuse/siphoning of crores rupees from the bank account of the
school etc.
Whereas, it is observed that a court case bearing No.WPC
7187/2011 titled as Sh. Janardan Rai Vs. Director of Education &
Ors. was also filed by the Manager of the school against the
Chairman of the school and the Hon‟ble High Court vide order
dated 13.10.2011 in the aforementioned case gave directions to the
Directorate of Education to depute at least two senior officers to
visit Upras Vidyalaya, Vasant Vihar and inspect its record to
ascertain the following:
1. Whether the books and accounts of the school are being
maintained in accordance with the provisions of DSEA and
DSER 1973.
2. Whether the decision of the EC of the society and the MC of
the school are being properly minuted in terms of DSEA and
DSER, 1973.
3. Whether any decision was taken by the EC of the society or
MC of the school concerning the petitioner counting as the
Manager of the school.
4. Whether the letter dated 9th September, 2011 written by the
respondent No.4 to the petitioner was as a result of such
decision of the EC of the society or the MC of the school.
5. Whether the decision was purportedly taken by the EC of the
society on 9th October, 2011 removing respondent No.4 as the
Chairman of the MC and whether such decision was properly
minuted.
6. Whether the affairs of the school are being run in accordance
with the Scheme of the Management of the school.
Whereas, as per the directions of the Hon‟ble High Court a
Committee of senior officers was constituted which after inspecting
the records of the school found the following irregularities-
1. There are financial issues which are not in conformity with the
provisions of DSEA and DSER,1973.
2. No decision was taken by the EC of the society or MC of the
school concerning the petitioner continuing as the Manager of
the school. It is only the decision of the Chairman of the MC
of the school.
3. The letter dated 09.10.2011 written by the respondent No.4 to
the petitioner was not as a result of such decision of the EC of
the society of MC of the school.
4. No decision was purportedly taken by the EC or the General
Body of the Society on 9.10.2011 removing respondent no.4 as
the Chairman of the MC.
5. The affairs of the school are not being run in accordance with
the Scheme of Management of the school.
Whereas, the report of the Committee was examined and a
Show Cause Notice was issued to the school on 29.02.2012 as to
why the Upras Vidyalaya should not be taken over by the
Directorate of Education in view of the serious irregularities
pointed out.
Whereas, the school authorities submitted as reply vide letter
dated 12.03.2012 which has been considered and not found
satisfactory by the department.
Whereas, this Directorate was in receipt of a number of
complaints from different corners in respect of alleged
embezzlement of funds and misuse/siphoning of crores of rupees
from bank accounts of the school. It was alleged that the money is
being withdrawn illegally even without the approval of the
Principal of the school. It was also reported that an FIR being
No.85/2012 under Section 420/406/120B of I.P.C. was lodged in
P.S. Vasant Vihar in this regard.
Whereas, in view of the alleged serious complaints regarding
financial irregularities and in view of the facts that different parties
were staking claim to the management of the school, the Director
(Education) in exercise of powers conferred under Section 24(3) of
the DSEAR, 1973 read with Rules 43, 181, 182 and 185 passed an
order dated 12.7.2012 barring the school management from
operating the bank accounts of the school without prior permission
of Deputy Director, District (South West A) until the outcome of
the Court case or till further orders, whichever is earlier.
Whereas, the Hon‟ble High Court in WPC. No.7187/2011 vide
order dated 16.08.2012 directed the Director of Education to take
over the management of school till the claims and counter claims of
the petitioners / respondents are settled.
Whereas, the facts and records of the matter and the reply
submitted by the school authorities vide letter dated 12.3.2012 has
been duly considered by the Lt. Governor, Delhi.
Now, therefore, in exercises of the powers conferred under sub
section (1) of section 20 of the Delhi School Education Act, 1973,
the Lt. Governor is pleased to order the Dte. of Eduction to take
over the management of Upras Vidyalaya, Vasant Vihar for a
period of three years with immediate effect.
The Lt. Governor of NCT of Delhi is also pleased to direct
under sub Section (3) of Section 20 of the Act that the school shall
be managed through the Director of Education or by an officer duly
authorized by him. Hence, DDE (South West -A) is hereby
appointed as authorized officer of the school. The managing
committee / manager of the school shall deliver possession of the
entire school properties, equipment, school funds, records and other
related documents etc. to the DDE (South West- A) immediately."
57. A perusal of the order shows that the first paragraph refers to various
complaints received leading mis-management, embezzlement of funds,
misuse, siphoning of crores of rupees from the bank account of the
school; second paragraph refers to observations of the Single Judge in
Writ Petition No.7187/2011 and the irregularities pointed out by the
Committee appointed by the High Court. The second and third paragraph
of this order clearly relies on the order of the Single Judge and the
observations of the Committee, thus for the respondent to say that they
issued a show cause notice uninfluenced by the order of the Single Judge
is factually incorrect.
58. The next paragraph in the order refers to the show cause notice issued to
the school on 29.2.2012, while the next paragraph reads as under:
"Whereas, the school authorities submitted as reply
vide letter dated 12.03.2012 which has been considered and
not found satisfactory by the department."
59. It may be noticed that the show cause notice issued to the school runs into
six pages; one reply filed by the school runs in 21 pages and the second
reply which has also not even been considered also runs into six pages.
60. The impugned order finds the reply unsatisfactory but no reasons at all are
mentioned in the order. It was important for the Directorate of Education
to at least give some reasons, may be not in detail, which would show
application of mind on his part as to why the response was unsatisfactory,
as firstly the management had been changed, and the school had
categorically given replies with respect to each irregularity pointed out
including books of accounts, installation of cash box, accounts having
been audited for the year 2010- 2011, paying of salary on time, re-
imbursement of medical claim, LTC being provided, development fund
for being used for the development activities; for previous financial
irregularities, FIR had been lodged, pay and allowances of the employees
which was not paid had not been paid to the persons named in the show
cause notice i.e. Smt.Muktawali Tiwari, Smt.Annu Bamrara, Smt.Pravati
Rath, Smt.Amita Dasgupta, Smt.Yasoda Sharma, Sh.Ramanuj Rai, Sh.Raj
Kumar (sweeper), Sh.Hari Lal (Ex-security supervisor). All seven
teachers, who had not got of 60% arrears of 6th Pay Commissioner had
been paid; all other details were also furnished in the reply as also in the
additional reply dated 24.3.2012. The order further goes on to state that
the Director of Education had received a number of complaints, alleging
embezzlement of funds, money being illegally withdrawn and FIR having
been lodged and in view of serious complaints, Director of Education by
an order dated 12.7.2012 barred the school management from operating
the bank account. Thereafter this order dated 26.9.2012 goes on to state:
"Whereas, the Hon‟ble High Court in WPC
No.7187/2011 vide order dated 16.08.2012 directed the
Director of Education to take over the management of school
till the claims and counter claims of the petitioners/
respondents are settled."
61. What can be understood upon reading of this order is that the management
of the school had been taken over on the basis of inspection carried out
under the Order of the High Court. But the inspection report does not
show embezzlement of funds or siphoning of crores of rupees from the
bank account of the school. The observations of the inspection committee
relied upon in the order itself does not mention the same. No such show
cause notice was issued that crores of rupees have been embezzled and
there is not a whisper in the order as to how such a finding had been
reached.
62. The short question which comes up for consideration, at this stage, would
be whether the order which has far reaching consequences with regard to
the taking over of a private unaided school, can be termed as a reasoned
order.
63. In the case of Kranti Associates Private Limpid and Others v. Masood
Ahmed Khaan and Others, reported at (2010) 9 SCC 496, the Apex
Court has highlighted the necessity of giving reasons by a body or
authority in support of its decision. The Supreme Court also took into
account that initially the Court recognised a somewhat demarcation
between the administrative orders and quasi judicial orders but with the
passage of time the Supreme Court recognised the fact that the distinction
between the two got blur and almost vanished. The Supreme Court also
held that an order passed by a quasi judicial body or even an
administrative authority affecting the rights of the parties must be a
speaking order.
64. Para 14 to 47 of the Kranti Associates Private Limpid and Others (supra)
read as under:
"14. The expression „speaking order‟ was first coined by Lord
Chancellor Earl Cairns in a rather strange context. The Lord
Chancellor, while explaining the ambit of Writ of Certiorari,
referred to orders with errors on the face of the record and pointed
out that an order with errors on its face, is a speaking order. (See
1878-97 Vol. 4 Appeal Cases 30 at 40 of the report).
15. This Court always opined that the face of an order passed by
a quasi-judicial authority or even an administrative authority
affecting the rights of parties, must speak. It must not be like the
„inscrutable face of a Sphinx‟.
16. In the case of Harinagar Sugar Mills Ltd. vs. Shyam Sunder
Jhunjhunwala and others, AIR 1961 SC 1669, the question of
recording reasons came up for consideration in the context of a
refusal by Harinagar to transfer, without giving reasons, shares held
by Shyam Sunder. Challenging such refusal, the transferee moved
the High Court contending, inter alia, that the refusal is mala fide,
arbitrary and capricious. The High Court rejected such pleas and
the transferee was asked to file a suit. The transferee filed an appeal
to the Central Government under Section 111 Clause (3) of Indian
Companies Act, 1956 which was dismissed. Thereafter, the son of
the original transferee filed another application for transfer of his
shares which was similarly refused by the Company. On appeal, the
Central Government quashed the resolution passed by the Company
and directed the Company to register the transfer. However, in
passing the said order, Government did not give any reason. The
company challenged the said decision before this Court.
17. The other question which arose in Harinagar (supra) was
whether the Central Government, in passing the appellate order
acted as a tribunal and is amenable to Article 136 jurisdiction of
this Court.
18. Even though in Harinagar (supra) the decision was
administrative, this Court insisted on the requirement of recording
reason and further held that in exercising appellate powers, the
Central Government acted as a tribunal in exercising judicial
powers of the State and such exercise is subject to Article 136
jurisdiction of this Court. Such powers, this Court held, cannot be
effectively exercised if reasons are not given by the Central
Government in support of the order (AIR pp. 1678-79, Para 23).
19. Again in the case of Bhagat Raja vs. Union of India and
others, AIR 1967 SC 1606, the Constitution Bench of this Court
examined the question whether the Central Government was bound
to pass a speaking order while dismissing a revision and confirming
the order of the State Government in the context of Mines and
Minerals (Regulation and Development) Act, 1957, and having
regard to the provision of Rule 55 of Mineral and Concessions
Rules. The Constitution Bench held that in exercising its power of
revision under the aforesaid Rule the Central Government acts in a
quasi-judicial capacity (See para 8 page 1610). Where the State
Government gives a number of reasons some of which are good and
some are not, and the Central Government merely endorses the
order of the State Government without specifying any reason, this
Court, exercising its jurisdiction under Article 136, may find it
difficult to ascertain which are the grounds on which Central
Government upheld the order of the State Government (See para 9
page 1610). Therefore, this Court insisted on reasons being given
for the order.
20. In Mahabir Prasad Santosh Kumar vs. State of U.P and
others, AIR 1970 SC 1302, while dealing with U.P. Sugar Dealers
License Order under which the license was cancelled, this Court
held that such an order of cancellation is quasi-judicial and must be
a speaking one. This Court further held that merely giving an
opportunity of hearing is not enough and further pointed out where
the order is subject to appeal, the necessity to record reason is even
greater. The learned Judges held that the recording of reasons in
support of a decision on a disputed claim ensures that the decision
is not a result of caprice, whim or fancy but was arrived at after
considering the relevant law and that the decision was just. (See
SCC . 768, para 7 : AIR p. 1304, para 7).
21. In the case of M/s. Travancore Rayons Ltd. vs. The Union of
India and others, AIR 1971 SC 862, the Court, dealing with the
revisional jurisdiction of the Central Government under the then
Section 36 of the Central Excise and Salt Act, 1944, held that the
Central Government was actually exercising judicial power of the
State and in exercising judicial power reasons in support of the
order must be disclosed on two grounds. The first is that the person
aggrieved gets an opportunity to demonstrate that the reasons are
erroneous and secondly, the obligation to record reasons operates as
a deterrent against possible arbitrary action by the executive
authority invested with the judicial power (See SCC p. 874, para 11
: AIR pp. 865-66, para 11).
22. In Woolcombers of India Ltd. vs. Woolcombers Workers
Union and another, AIR 1973 SC 2758, this Court while
considering an award under Section 11 of Industrial Disputes Act
insisted on the need of giving reasons in support of conclusions in
the Award. The Court held that the very requirement of giving
reason is to prevent unfairness or arbitrariness in reaching
conclusions. The second principle is based on the jurisprudential
doctrine that justice should not only be done, it should also appear
to be done as well. The learned Judges said that a just but
unreasoned conclusion does not appear to be just to those who read
the same. Reasoned and just conclusion on the other hand will also
have the appearance of justice. The third ground is that such awards
are subject to Article 136 jurisdiction of this Court and in the
absence of reasons, it is difficult for this Court to ascertain whether
the decision is right or wrong (See SCC pp. 320-2, para 5 : AIR p.
2761, para 5).
23. In Union of India vs. Mohan Lal Capoor and others, AIR
1974 SC 87, this Court while dealing with the question of selection
under Indian Administrative Service/Indian Police Service
(Appointment by Promotion Regulation) held that the expression
"reasons for the proposed supersession" should not be mere rubber
stamp reasons. Such reasons must disclose how mind was applied
to the subject matter for a decision regardless of the fact whether
such a decision is purely administrative or quasi-judicial. This
Court held that the reasons in such context would mean the link
between materials which are considered and the conclusions which
are reached. Reasons must reveal a rational nexus between the two
(See SCC pp. 853-54, paras 27-28 : AIR pp. 97-98, paras 27-28).
24. In Siemens Engineering and Manufacturing Co. of India Ltd.
vs. The Union of India and another, AIR 1976 SC 1785, this Court
held that it is far too well settled that an authority in making an
order in exercise of its quasi-judicial function, must record reasons
in support of the order it makes. The learned Judges emphatically
said that every quasi- judicial order must be supported by reasons.
The rule requiring reasons in support of a quasi- judicial order is,
this Court held, as basic as following the principles of natural
justice. And the rule must be observed in its proper spirit. A mere
pretence of compliance would not satisfy the requirement of law
(See SCC . 986, para 6 : AIR p. 1789, para 6).
25. In Smt. Maneka Gandhi vs. Union of India and Anr.,
AIR 1978 SC 597, which is a decision of great jurisprudence
significance in our Constitutional law, Chief Justice Beg, in a
concurring but different opinion held that an order impounding a
passport is a quasi-judicial decision (Para 34, page 612). The
learned Chief Justice also held when an administrative action
involving any deprivation of or restriction on fundamental rights is
taken, the authorities must see that justice is not only done but
manifestly appears to be done as well. This principle would
obviously demand disclosure of reasons for the decision.
26. Y.V. Chandrachud J (as His Lordship then was) in a
concurring but a separate opinion also held that refusal to disclose
reasons for impounding a passport is an exercise of an exceptional
nature and is to be done very sparingly and only when it is fully
justified by the exigencies of an uncommon situation. The learned
Judge further held that law cannot permit any exercise of power by
an executive to keep the reasons undisclosed if the only motive for
doing so is to keep the reasons away from judicial scrutiny. (See
para 39 page 613).
27. In Rama Varma Bharathan Thampuran vs. State of Kerala
and Ors., AIR 1979 SC 1918, Justice V.R. Krishna Iyer speaking
for a three-Judge Bench held that the functioning of the Board was
quasi-judicial in character. One of the attributes of quasi- judicial
functioning is the recording of reasons in support of decisions taken
and the other requirement is following the principles of natural
justice. Learned Judge held that natural justice requires reasons to
be written for the conclusions made (See para 14 page 1922).
28. In Gurdial Singh Fijji vs. State of Punjab and Ors., (1979) 2
SCC 368, this Court, dealing with a service matter, relying on the
ratio in Capoor (supra), held that "rubber-stamp reason" is not
enough and virtually quoted the observation in Capoor (supra) to
the extent that reasons "are the links between the materials on
which certain conclusions are based and the actual conclusions."
(See para 18 page 377).
29. In a Constitution Bench decision of this Court in Shri
Swamiji of Shri Admar Mutt etc. etc. vs. The Commissioner, Hindu
Religious and Charitable Endowments Dept. and Ors., AIR 1980
SC 1, while giving the majority judgment Chief Justice Y.V.
Chandrachud referred to Broom's Legal Maxims (1939 Edition,
page 97) where the principle in Latin runs as follows:
"Ces-sante Ratione Legis Cessat Ipsa Lex"
30. The English version of the said principle given by the Chief
Justice is that: (H.H. Shri Swamiji case (1979) 4 SCC 642)
"Reason is the soul of the law, and when the reason of any
particular law ceases, so does the law itself."
31. In M/s. Bombay Oil Industries Pvt. Ltd. vs. Union of India
and Others, AIR 1984 SC 160, this Court held that while disposing
of applications under Monopolies and Restrictive Trade Practices
Act the duty of the Government is to give reasons for its order. This
court made it very clear that the faith of the people in
administrative tribunals can be sustained only if the tribunals act
fairly and dispose of the matters before them by well considered
orders. In saying so, this Court relied on its previous decisions in
Capoor (supra) and Siemens Engineering (supra), discussed above.
32. In Ram Chander vs. Union of India and others, AIR 1986 SC
1173, this Court was dealing with the appellate provisions under the
Railway Servants (Discipline and Appeal) Rules, 1968 condemned
the mechanical way of dismissal of appeal in the context of
requirement of Rule 22(2) of the aforesaid Rule. This Court held
that the word "consider" occurring to the Rule 22(2) must mean the
Railway Board shall duly apply its mind and give reasons for its
decision. The learned Judges held that the duty to give reason is an
incident of the judicial process and emphasized that in discharging
quasi-judicial functions the appellate authority must act in
accordance with natural justice and give reasons for its decision
(Para 4, page 1176).
33. In M/s. Star Enterprises and others vs. City and Industrial
Development Corporation of Maharashtra Ltd. and others, (1990) 3
SCC 280, a three-Judge Bench of this Court held that in the present
day set up judicial review of administrative action has become
expansive and is becoming wider day by day and the State has to
justify its action in various field of public law. All these necessitate
recording of reason for executive actions including the rejection of
the highest offer. This Court held that disclosure of reasons in
matters of such rejection provides an opportunity for an objective
review both by superior administrative heads and for judicial
process and opined that such reasons should be communicated
unless there are specific justification for not doing so (see Para 10,
page 284-285).
34. In Maharashtra State Board of Secondary and Higher
Secondary Education vs. K.S. Gandhi and others, (1991) 2 SCC
716, this Court held that even in domestic enquiry if the facts are
not in dispute non-recording of reason may not be violative of the
principles of natural justice but where facts are disputed necessarily
the authority or the enquiry officer, on consideration of the
materials on record, should record reasons in support of the
conclusion reached (see para 22, pages 738-739).
35. In the case of M.L. Jaggi vs. Mahanagar Telephones Nigam
Limited and others, (1996) 3 SCC 119, this Court dealt with an
award under Section 7 of the Telegraph Act and held that since the
said award affects public interest, reasons must be recorded in the
award. It was also held that such reasons are to be recorded so that
it enables the High Court to exercise its power of judicial review on
the validity of the award. (see para 8, page 123).
36. In Charan Singh vs. Healing Touch Hospital and others, AIR
2000 SC 3138, a three-Judge Bench of this Court, dealing with a
grievance under CP Act, held that the authorities under the Act
exercise quasi-judicial powers for redressal of consumer disputes
and it is, therefore, imperative that such a body should arrive at
conclusions based on reasons. This Court held that the said Act,
being one of the benevolent pieces of legislation, is intended to
protect a large body of consumers from exploitation as the said Act
provides for an alternative mode for consumer justice by the
process of a summary trial. The powers which are exercised are
definitely quasi-judicial in nature and in such a situation the
conclusions must be based on reasons and held that requirement of
recording reasons is "too obvious to be reiterated and needs no
emphasizing". (See Para 11, page 3141 of the report).
37. Only in cases of Court Martial, this Court struck a different
note in two of its Constitution Bench decisions, the first of which
was rendered in the case of Som Datt Datta vs. Union of India and
others, AIR 1969 SC 414, Mr. Justice Ramaswami delivering the
judgment for the unanimous Constitution Bench held that
provisions of Sections 164 and 165 of the Army Act do not require
an order confirming proceedings of Court Martial to be supported
by reasons. The Court held that an order confirming such
proceedings does not become illegal if it does not record reasons.
(Para 10, page 421- 422 of the report).
38. About two decades thereafter, a similar question cropped up
before this Court in the case of S.N. Mukherjee vs. Union of India,
AIR 1990 SC 1984. A unanimous Constitution Bench speaking
through Justice S.C. Agrawal confirmed its earlier decision in Som
Datt (supra) in para 47 at page 2000 of the report and held reasons
are not required to be recorded for an order confirming the finding
and sentence recorded by the Court Martial.
39. It must be remembered in this connection that the Court
Martial as a proceeding is sui generis in nature and the Court of
Court Martial is different, being called a Court of Honour and the
proceeding therein are slightly different from other proceedings.
About the nature of Court Martial and its proceedings the
observations of Winthrop in Military Law and Precedents are very
pertinent and are extracted herein below:
"Not belonging to the judicial branch of the Government, it
follows that courts-martial must pertain to the executive
department; and they are in fact simply instrumentalities of
the executive power, provided by Congress for the President
as Commander-in-Chief, to aid him in properly commanding
the Army and Navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives."
40. Our Constitution also deals with Court Martial proceedings
differently as is clear from Articles 33, 136(2) and 227(4) of the
Constitution.
41. In England there was no common law duty of recording of
reasons. In Marta Stefan vs. General Medical Council, (1999) 1
WLR 1293, it has been held, "the established position of the
common law is that there is no general duty imposed on our
decision makers to record reasons". It has been acknowledged in
the Justice Report, Administration Under Law (1971) at page 23
that "No single factor has inhibited the development of English
administrative law as seriously as the absence of any general
obligation upon public authorities to give reasons for their
decisions".
42. Even then in the case of R vs. Civil Service Appeal Board, ex
parte Cunningham reported in (1991) 4 All ER 310, Lord
Donaldson, Master of Rolls, opined very strongly in favour of
disclosing of reasons in a case where the Court is acting in its
discretion. The learned Master of Rolls said: (All ER p. 317)
"... „ ... It is a corollary of the discretion conferred
upon the board that it is their duty to set out their
reasoning in sufficient form to show the principles on
which they have proceeded. Adopting Lord Lane CJ's
observations (in R vs. Immigration Appeal Tribunal,
ex p Khan (Mahmud) [1983] 2 All ER 420 at 423,
(1983) QB 790 at 794-795), the reasons for the lower
amount is not obvious. Mr. Cunningham is entitled to
know, either expressly or inferentially stated, what it
was to which the board were addressing their mind in
arriving at their conclusion. It must be obvious to the
board that Mr. Cunningham is left with a burning
sense of grievance. They should be sensitive to the fact
that he is left with a real feeling of injustice, that
having been found to have been unfairly dismissed, he
has been deprived of his just desserts (as he sees
them)".
43. The learned Master of Rolls further clarified by saying:
"..thus, in the particular circumstances of this case, and
without wishing to establish any precedent
whatsoever, I am prepared to spell out an obligation on
this board to give succinct reasons, if only to put the
mind of Mr. Cunningham at rest. I would therefore
allow this application."
44. But, however, the present trend of the law has been towards an
increasing recognition of the duty of Court to give reasons (See
North Range Shipping Limited vs. Seatrans Shipping Corporation,
(2002) 1 WLR 2397). It has been acknowledged that this trend is
consistent with the development towards openness in Government
and judicial administration.
45. In English vs. Emery Reimbold and Strick Limited, (2002) 1
WLR 2409, it has been held that justice will not be done if it is not
apparent to the parties why one has won and the other has lost. The
House of Lords in Cullen vs. Chief Constable of the Royal Ulster
Constabulary, (2003) 1 WLR 1763, Lord Bingham of Cornhill and
Lord Steyn, on the requirement of reason held : (WLR p. 1769, para
7)
"7. ... First, they impose a discipline ... which may
contribute to such decisions being considered with care.
Secondly, reasons encourage transparency ... Thirdly, they
assist the Courts in performing their supervisory function if
judicial review proceedings are launched."
46. The position in the United States has been indicated by this
Court in S.N. Mukherjee (supra) in paragraph 11 at page 1988 of
the judgment. This Court held that in the United States the Courts
have always insisted on the recording of reasons by administrative
authorities in exercise of their powers. It was further held that such
recording of reasons is required as "the Court cannot exercise their
duty of review unless they are advised of the considerations
underlying the action under review". In S.N. Mukherjee (supra) this
court relied on the decisions of the U.S. Court in Securities and
Exchange Commission vs. Chenery Corporation, (1942) 87 Law Ed
626 and John T. Dunlop vs. Walter Bachowski, (1975) 44 Law Ed
377 in support of its opinion discussed above.
47. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record
reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in
support of its conclusions.
c. Insistence on recording of reasons is meant to serve
the wider principle of justice that justice must not
only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
e. Reasons reassure that discretion has been exercised
by the decision maker on relevant grounds and by
disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a
component of a decision making process as
observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.g.
Reasons facilitate the process of judicial review by
superior Courts.
g. Reasons facilitate the process of judicial review by
superior courts.
h. The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions based
on relevant facts. This is virtually the life blood of
judicial decision making justifying the principle
that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days
can be as different as the judges and authorities
who deliver them. All these decisions serve one
common purpose which is to demonstrate by reason
that the relevant factors have been objectively
considered. This is important for sustaining the
litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both
judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid
enough about his/her decision making process then
it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or
to principles of incrementalism.
l. Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or
`rubber-stamp reasons' is not to be equated with a
valid decision making process.
m. It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision making not only makes
the judges and decision makers less prone to errors
but also makes them subject to broader scrutiny.
(See David Shapiro in Defence of Judicial Candor
(1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision
making, the said requirement is now virtually a
component of human rights and was considered
part of Strasbourg Jurisprudence. See (1994) 19
EHRR 553, at 562 para 29 and Anya vs. University
of Oxford, 2001 EWCA Civ 405, wherein the
Court referred to Article 6 of European Convention
of Human Rights which requires, "adequate and
intelligent reasons must be given for judicial
decisions".
o. In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and
is virtually a part of "Due Process".
65. I have quoted in detail the judgment passed by the Supreme Court of India
as the Supreme Court has taken into consideration various judgments
passed from time to time, which have explained in detail the purpose, aim
and objective of passing of speaking orders.
66. In the absence of any reasons in the order of taking over a private unaided
school by the respondents, in my view, has far reaching consequences not
only on the management but even on the staff and the students of the
school. Besides, the petitioner school, which is being run by the present
Management, who claims that all the shortcomings stand removed and
cured by them, and remedial steps taken with supporting documents
including acknowledgement by the staff and the teachers was placed
before the respondents but the speaking order does not show that the
respondent either verified these facts and found the same not to be in
order. The so called order does not show application of mind. More so,
when after reply to the show cause notice there was a silence on the part
of respondents for seven months. What prompted the Department to take
this action after seven months is also unclear, though learned counsel for
the petitioner has made a strong allegation against the Department that the
order has been passed at the behest of the former management, which
comprised of a person, who was associated closely with the Directorate of
Education. I reserve my comments on the same.
67. Another ground, which has persuaded me to set aside the impugned order,
is that the impugned order, which has been passed, was founded on the
grounds, which were at variance from the show cause notice. It is well-
settled that one of the requirements of the principles of natural justice is
that a person should be informed the reasons for the proposed action to be
taken and he should be aware of the precise charge, which he is required
to meet.
68. In the case of Tarlochan Dev Sharma v. State of Punjab, reported at
(2001) 6 Supreme Court Cases 260, the Supreme Court of India has held
that there is a clear violation of the principles of natural justice where the
impugned order was founded on the grounds which were at variance from
the one in the show cause notice. Para 13 of the judgment reads as under:
"13. The show-cause notice alleged only this much that the
Municipal Council had purchased a fogging machine of which
payment was to be made but the appellant (as President of the
Municipality) instructed the Executive Officer not to make the
payment and this resulted in the working of the Municipal Council
having been obstructed. The finding arrived at in the impugned
order dated 1.10.1999 is different. There is no finding arrived at
that the working of the Municipal Council was in any manner
obstructed by the appellant having instructed the Executive Officer
not to make the payment. The specific stand taken by the appellant
in his reply was that the machine had certain inherent defects and
was not working properly and hence it was on the advice of the
Municipal Council that the appellant had desired the payment not to
be made. The finding as to abuse of power is based mainly on the
fact that the Executive Officer had prepared a cheque and signed
the same on 20.11.1998 and yet the cheque was not presented to the
bank resulting in delayed payment to the supplier of the fogging
machine. The impugned order also states that the cheque was kept
by the appellant in his custody for over two months. These events
are subsequent to the date of the show cause notice, i.e. 19.8.1998
as also to the date of appellants reply i.e. 8.9.1998. Thus, briefly
stated, the content of abuse of power, as stated in the notice dated
19.8.1998 was-asking the Executive Officer not to make payment
while the order dated 1.10.1999 is founded on a subsequent event
that in spite of the Executive Officer having prepared and signed
the cheque on 20.11.1998, the appellant detained the cheque in his
custody for about two months resulting payment being delayed and
this amounted to abuse of power. There is no finding recorded in
the impugned order that the explanation furnished by the appellant
was factually incorrect. A President is supposed to act in the best
interests of the Municipality which he is heading. In spite of
fogging machine worth lakhs having been found by the Executive
Officer to be okay in its trial run, if the President was informed of
the machine having certain inherent defects, there was nothing
wrong in his asking the Executive Officer not to make the payment
unless he was satisfied that the machine was fit for the purpose for
which it was being purchased, all the more, when the funds for
purchasing the machine were made available to the Municipality by
the District Planning Board. Even accepting the allegations made
against the appellant, as contained in the show cause notice, to be
correct, his decision to withhold the payment may be said to be an
erroneous or unjust decision. For this reason alone the appellant
cannot be said to be guilty of an abuse of his powers. If any one
suffered by delay in payment it was the supplier and not the
Municipality. There is nothing in the show cause notice or the
ultimate order to hold how the act of appellant had obstructed the
working of Municipal Council or was against the interest of
council. We are, therefore, clearly of the opinion that not only the
principles of natural justice were violated by the factum of the
impugned order having been founded on grounds at variance from
the one in the show cause notice, of which the appellant was not
even made aware of let alone provided an opportunity to offer his
explanation, the allegations made against the appellant did not even
prima facie make out a case of abuse of powers of the President.
The High Court was not right in forming an opinion that the
appellant was persuading the High Court to judicially review like
an appellate court the finding arrived at by the competent authority.
The present one is a case where the impugned order is vitiated by
perversity. A conclusion of abuse of powers has been drawn from
such facts wherefrom such conclusion does not even prima facie
flow. The impugned order is based on non-existent grounds. It is
vitiated by colourable exercise of power and hence liable to be
struck down within the well settled parameters of judicial review of
administrative action."
69. Further in the case of Saci Allied Products Ltd. U.P. V. Commissioner of
Central Excise, Meerut, reported at (2005) 7 Supreme Court Cases 159,
The Apex Court has held in paras 16 an 17 as under:
"16. Thus according to the appellate Tribunal, since the dealers in
Uttar Pradesh who purchased the goods from Syndet, and
independent dealers in other parts of the country to whom the
appellants directly sold the goods are different class of buyers, the
appellants' price to the independent dealers cannot be taken as the
basis for assessing the appellants' sales to Syndet in Uttar Pradesh.
This finding of the appellate Tribunal is based on first proviso to
Section 4(1)(a) of the Act. While the show cause notice and the
order of the Collector proceeded on the basis of the invocation of
third proviso to Section 4(1)(a) of the Act, the appellate Tribunal
for the first time in the impugned order has sustained the
proceedings on the basis of first proviso to Section 4(1)(a) of the
Act. It was argued that the first proviso to Section 4(1)(a) of the Act
was never invoked by the Department either in the show cause
notice or in the impugned order and it was for the first time that the
appellate Tribunal in the impugned order has sought to sustain the
impugned order by invoking the first proviso to Section 4(1)(a) of
the Act. It is thus seen that the Tribunal has gone totally beyond the
show cause notice and the order of the Collector, which is
impermissible. The appellate Tribunal cannot sustain the case of the
Revenue against the appellants on a ground not raised by the
Revenue either in the show cause notice or in the order.
17. In this context, we may usefully refer to the judgment of this
Court in the case of Reckitt & Colman of India Ltd. vs. CCE, 1996
(88) ELT 641(SC). This Court held that it is beyond the
competence of the Tribunal to make out in favour of the Revenue a
case which the Revenue had never convassed and which the
appellants had never been required to meet."
70. Another ground raised by learned counsel for the petitioner is that
respondent no.1 has failed to comply with Section 24 (3) of Delhi School
Education Act. It has been contended that under Section 24 of the Act, the
Director has the power to conduct inspection of the school and also to
give a direction to the Manager to rectify any defect or deficiency found
at the time of inspection or otherwise in the working of the school and if
the manager failes to comply with any direction, the Director may take
such action as deem fit including stoppage of aid or withdrawal of
recognition of a school. It is, thus, contended that under Section 20 the
Administrator has power to take over the management of the school after
giving reasonable opportunity to the Managing Committee.
71. In response to this submission of counsel for the petitioner, counsel for
respondent no.1 has submitted that the power of Administrator/Lieutenant
Governor under Section 20 of the Act are distinct from the power of the
Director of Education under Section 24 of the Act. It is further contended
that compliance of Section 24(3) is not mandatory before issuance of
show cause notice under Section 20 of the Act.
72. In support of this submission, learned counsel for respondent no.1 has
placed reliance on Managing Committee Vidya Bhawan Girls Sr. Sec.
School Vs. Director of Education & Anr., reported at 198 (2013) DLT
355 (DB), more particularly para 14, which reads as under:
"14. This takes us to the challenge to the order of taking over on
merits. It is true that on an earlier occasion, this Court vide orders
dated 20.7.2010 directed the respondent to pass a detailed order. It
is the contention of the petitioner that in spite of the said direction,
an order without reason has been passed. Further, it is the
contention that the order relies upon certain
irregularities/malpractices on the basis of subsequent events for
which the petitioner school was not given any opportunity. It is the
further contention that in any event, the irregularities/malpractices
are not supported by any inspection under Section 24 of the Act.
Since the challenge is on the basis of violation of principles of
natural justice and failure of the Director to conduct inspection, the
scope of inspection under Section 20(4) of the Act and the
consequence thereof could be mentioned once again. As already
observed that one should not mix up the power of administrator
with the management enshrined under Section 20 of the Act with
the power of the Director to stop the aid, withdrawing the
recognition or taking over the management of the school under
Section 24 of the Act. Section 24(1) of the Act relates to inspection
of a school. In the event, either on the basis of inspection carried on
under Section 24(1) or a special inspection is carried under Section
24(2) of the Act, any defects or deficiencies are noted, the Manager
of the school is entitled for an opportunity to rectify such defects or
deficiencies. In the case of failure to rectify the defects or the
deficiencies, the Direction is not complies with, the Director may
stop the aid or withdraw the recognition of the school. We are
concerned about the taking over of the school under Section 20 of
the Act. It is true that Clause (c) of sub-Section (4) of Section 24 of
the Act contemplates taking over of the school. As against the
power to order stoppage of the aid and withdrawal of the
recognition, the Director cannot pass order taking over the school
invoking Clause (c) of sub-Section (4) of Section 24 of the Act,
since such order could be passed only in terms of Section 20 of the
Act by the administrator. The inspection contemplated under
Section 24 of the Act is also relevant for the purpose of making a
report to the administrator as to the failure on the part of the
Manager to rectify any defects or deficiencies found at the time of
inspection. The report shall be the basis for the administrator to
satisfy himself as to whether provisions of Section 20(1) of the Act
should be invoked or not. For the purpose of violation of principles
of natural justice, it is to be noticed that after the inspection was
carried on and in case of deficiency or defect was noticed, an
opportunity is contemplated to the school as the Director will give
opportunity to the Manager to rectify deficiency or defect under
sub-Section (3) of Section 24 of the Act. In this context, we refer
that a show cause notice dated 23.7.2010 was issued to the school
earlier with regard to certain irregularities and on the said date,
there was no inspection as the inspection was carried on only on
26.7.2010. Nevertheless, deficiency/defect noted in the inspection
was communicated to the school on 31.7.2010. The school also
replied to the said show cause notice dated 07.8.2010. The school
had an opportunity to explain the irregularities/malpractices. The
report was made available to the administrator and the same has
been referred to by him in the impugned order dated 07.9.2012
wherein the administrator had applied his mind to the earlier show
cause notice dated 23.7.2010 and the reply of the school dated
07.8.2010. The administrator has also referred to the subsequent
reply of school dated 07.10.2010 as well. As against an opportunity
provided under Section 24 of the Act, we do not find any
opportunity is contemplated under Section 20 of the Act. Of course,
the provision of sub-Section (1) of Section 20 of the Act requires
the administrator to satisfy himself that the Managing Committee or
the Manager or school has failed to perform any of the duties
imposed on it by or under this Act or any rule made thereunder and
such satisfaction should be supported by materials. On the date
when the first show cause notice dated 23.7.2010 was issued, there
were irregularities as could be seen from the very show cause
notice itself. Relevant materials were available before the
Administrator as to the various irregularities referred to in the said
show cause notice, which were vital and serious. To this extent,
there is no controversy. In fact, the petitioner school had the
opportunity to send a reply dated 07.8.2010. Hence, the petitioner
school cannot have any grievance as to non-compliance of
principles of natural justice."
73. I find force in the submission made by learned counsel for respondent
no.1 that the powers of the Administrator/Lieutenant Governor under
Section 20 of Delhi School Education Act are distinct from the power of
the Director of Education under Section 24 of the Act. Section 24 of the
Act relates to the inspection of the school and if during the inspection
carried out under Section 24(1) or any special inspection carried out under
Section 24(2) of the Act any defects or deficiencies are noted opportunity
to rectify such defects is liable to be given and in the absence of
compliance either the recognition may be withdrawn or the aid may be
stopped.
74. In my view the judgment of the Division Bench, relied upon by learned
counsel for respondent no.1, is applicable to the facts of this case on all
force.
75. In view of the above discussion (i) order dated 26.9.2012 passed by
respondents no.1 and 2, directing to take over the management of the
school, is quashed; (ii) order dated 12.7.2012 passed by respondents no.1,
by which respondent no.1 stayed operation of the Bank account of the
petitioner no.1 by anyone without prior permission of Dy. Director
Education (SW-A); and letter dated 13.7.2012 issued by respondent No.2,
by which respondent no.2 intimated the petitioner no.1 about the order
passed on 12.7.2012, are quashed; and (iii) letter no.6931 dated 18.2.2013
issued by respondents, by which request for conducting special
investigation under Rule 180(3) of Delhi School Education Rules, 1973 in
respect of Upras Vidyalaya, Vasant Vihar, District South West-A, was
made, is also quashed. Rule is made absolute.
G.S.SISTANI, J
th
DECEMBER 24 , 2014
msr /ssn
