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Judgment
Rajiv Sharma, Judge
Since common questions of law and facts are involved in these two writ petitions, these are being disposed of by this common judgment. These petitions were ordered to be clubbed by the Division Bench on 18.10.2011. Petitioner, namely, Amita Badiyal was selected as Lecturer in the subject of English by the Parent Teachers Association and the appointment letter was issued to her on 30.08.2006. She joined her duties at Government Senior Secondary School, Kangar on 31.08.2006. Petitioner, namely, Shri Amit Kumar, who was also selected as Lecturer in the subject of Economics by the Parent Teachers Association, has joined his duties in Government Senior Secondary School, Kangar on 06.10.2006. It appears from the record that two students of 9th standard, namely, Rohit Kumar and Avinash have seen the petitioners kissing each other in the common room. This fact was brought to the notice of respondents No. 4 and 5 by them on 14th September, 2011. Thereafter, the School Management Committee, i.e., respondent No. 4 has passed a resolution on 15.09.2011 that the matter be brought to the notice of District Education Officer for further action and SHO, Haroli may also be informed. It was also decided that the petitioners may not be allowed to come to the School till normalcy is restored. In sequel to the resolution dated 15th September, 2011, the Deputy Director of Higher Education, Una, District Una also proceeded to hold preliminary inquiry of the incident dated 14.09.2011. He has recorded the statements of Principal, Lecturer and two students, namely, Rohit Kumar and Avinash. However, without waiting for the out come of the preliminary report of the Deputy Director of Higher Education, Una, a fresh resolution was passed by the respondent No. 4 on 20th September, 2011, whereby the services of the petitioners were terminated immediately. Consequently, the petitioners vide Annexure P-5 were informed by the President of S.M.C. that their services have been terminated and their entry to the School premises was baned.
Mr. Sunil Mohan Goel and Mr. Neeraj K. Sharma, learned counsel for the peitioners have strenuously argued that respondent No. 4 has violated the principles of natural justice. According to them, the petitioners have neither been heard nor issued any show cause notice before the resolutions were passed on 15.09.2011 and 20.09.2011 and the termination order dated 22.09.2011. They have also contended that the decision to terminate the services of petitioners has been taken in the meeting held on 20.09.2011 by the respondent No. 4 without waiting for the report of the Deputy Director, Higher Education, dated 19.11.2011. They have also contended that the Deputy Director of Higher Education has categorically held that the matter requires further investigation by the higher authority/proper agency. According to them, the termination of services of the petitioners is actuated with legal malafides.
Mr. Rajender Dogra, learned Additional Advocate General, Mr. Sandeep Chauhan and Mr. C.S. Thakur have supported the resolutions and termination orders.
I heard the learned counsel for the parties and gone through the pleadings carefully. Petitioners have been appointed as Lecturers in the subjects of English and Economics as per the Grant-in-Aid Rules to Parent Teachers Association Rules, 2006, notified on 29th June, 2006. Their appointments have been made after their suitability was adjudged as per rules. The incident dated 14th September, 2011 has been reported by the students, namely, Rohit Kumar and Avinash to respondents No. 4 to 6. Thereafter, respondent No. 4, School Management Committee passed resolution on 15.09.2011, whereby it has decided to bring the incident dated 14.09.2011 to the notice of District Education Officer. The decision was also taken that the teachers may not be allowed to come to the School. Respondent No. 4-Committee has not issued any show cause notice to the petitioners before and after the resolution was passed on 15.09.2011. The allegation made by the students against the teachers was very serious. The statements made by the students ought to have been supplied to the petitioners to enable them to rebut the same. Since the Principal was also seized of the matter, he ought to have permitted the petitioners to give their explanation about the incident dated 14.09.2011. The School Management Committee has treated the statements of Rohit Kumar and Avinash as gospel truth and has decided to bring this incident to the notice of District Education Officer.
The District Education Officer was seized of the matter and has recorded the statements of Rohit Kumar, Avinash, teachers and the Principal to ascertain the veracity of the allegations made against the petitioners. It was expected from the School Management Committee to wait for the out come of the preliminary inquiry, which was being conducted by the District Education Officer. The School Management Committee without waiting for the out come of the preliminary inquiry conducted by the District Education Officer, Una, has passed the resolution dated 20.09.2011, whereby the decision was taken to terminate the services of the petitioners. The petitioners have not been issued any show cause notice before the decision was taken by the School Management Committee to terminate their services vide resolution dated 20.09.2011. Petitioners have not been heard even at the time of issuance of termination letter dated 22.09.2011, Annexure P-5. They have suffered civil and evil consequences and there is violation of the principles of natural justice by the School Management Committee. The students have made serious allegations against the character of the petitioners. The matter was required to be looked into with all seriousness by the School Management Committee by associating the petitioners. The report of the Deputy Director of Higher Education, Una, District Una, H.P. is dated 19.11.2011. The copy of the report has been placed on record alongwith the reply filed by respondents No. 1, 2 and 5 in CWP No. 9038 of 2011. There is detailed reference to the statements made by the students, teachers and the Principal. It has also come in the report that the students have also resiled from their earlier statements. The operative portion of the report reads thus:
Some statements given by the Principal GSSS Kangar in the matter appear to be contrary to the statements given by the alleged teachers and the teachers & students of the school. The said two students of 9th class Sh. Rohit Kumar, Class 9th Section-A and Sh. Avinash, Class-9th -A have also been found to be changing their statements in the matter time and again which also raises suspicion about the trueness of their statements. Since the matter is related to the behaviour & character of the alleged teachers and further their dismissal from their services in the school under GIA to PTA policy 2006 solely on the resolution of the SMC and further Civil Writ petitions have been filed on the issue against their dismissal, therefore, the matter requires further investigation by the higher authority/proper agency.
The Deputy Director of Higher Education has recommended that since the matter related to the character of the petitioners, their dismissal from service could not be based solely on the resolution of the School Management Committee and, therefore, the matter requires further investigation by the higher authority/proper agency.
Mr. Rajender Dogra, learned Additional Advocate General has submitted that the inquiry has gone against the petitioners. The concluding lines of the report refer to the contradictions in the statement of Principal, Government Senior Secondary School, Kanger. These are not the conclusions of the inquiry officer. The conclusions are at second last paragraph of the report. The inquiry officer has come to the right conclusion that the students have resiled from their statements, which raises suspicion about the truthfulness of their statements.
What emerges from the discussions and the analysis made hereinabove, is that the petitioners have not been heard at the time of passing of resolutions dated 15.09.2011 and 20.09.2011 and termination order dated 22.09.2011. The School Management Committee ought to have waited for the out come of the preliminary inquiry being conducted by the Deputy Director of Higher Education, Una, Distt. Una, H.P. The resolutions have been passed in utter haste by the School Management Committee. The School Management Committee has decided to terminate the services of the petitioners in an arbitrary and unreasonable manner. The termination of the petitioners without hearing them by the S.M.C. is void abinitio. The resolution passed by the S.M.C., besides terminating the services of the petitioners, casts stigma on their carrier.
Their Lordships of the Hon''ble Supreme Court in Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 2 SCC 115 have held that the right to be heard in order to be effective must be preceded by notice as to the exact charge which a delinquent is called upon to meet. A delinquent must be given an opportunity of presenting his case in such a way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice.
Their lordships of the Hon''ble Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 SCC 259 have held that there can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. Their lordships have further held that the rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice.
Their lordships of the Hon''ble Supreme Court in Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, (1993) 4 SCC 10 have held that in Administrative law, rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures and are also applicable to the administrative bodies, in its decision -making process having civil consequences.
Their Lordships of the Hon''ble Supreme Court in Ashwin S. Mehta and another Vs. Union of India and others (2012) 1 Supreme Court Cases 83 have held that the underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or tribunal is administrative or quasi-judicial. Their Lordships have further held that the concept of "natural justice" implies a duty an act fairly, i.e., fair play in action. Their Lordships have held as under:
It is true that the rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or tribunal is administrative or quasi-judicial. The concept of "natural justice" implies a duty to act fairly i.e. fair play in action. As observed in A.K. Kraipak V. Union of India the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice.
42.It is true, trite the requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi-judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the altar of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a straitjacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected.
Their Lordships of the Hon''ble Supreme Court in Sanchit Bansal and another Vs. Joint Admission Board and others, (2012) 1 Supreme Court Cases 157 have held that an action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. Their Lordships have held as under:
An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non�discriminatory, it cannot be described as arbitrary or capricious or mala fide.
Accordingly, in view of the observations and discussions made hereinabove, the petitions are allowed. Annexure P-3, resolution dated 15.09.2011, Annexure P-4, resolution dated 20.09.2011 and Annexure P-5, termination order dated 22.09.2011 are quashed and set aside. The respondent No. 2 is directed to depute an Officer not below the rank of Joint Director (Education) to hold an inquiry into the incident dated 14th September, 2011 and complete the same within a period of three months from today. The respondents No. 3, 4 and 6 in CWP No. 8616 of 2011-B and respondents No. 2, 3 and 5 in CWP No. 9038 of 2011-D are directed to permit the petitioners in both the petitions to resume their duties in Government Senior Secondary School, Kangar as Lecturers in the subjects of English and Economics forthwith. The pending application(s), if any, are also disposed of. No costs.