State of U.P. vs Prem Shankar Sharma and others

Dr. B.S. Chauhan, J.—This Special Appeal has been filed against the impugned judgment and order of the learned Single Judge dated 11.8.1999 by which the writ petition filed by the respondent No. 1 employee against the order of termination of his service has been allowed.

The facts and circumstances giving rise to this appeal are that the respondent No. 1, while serving as a Lecturer with the respondent No. 4, was served a chargesheet dated 9.12.1987 leveling various charges, namely absence from duty for a long time without seeking any leave from the Committee of Management and its adverse effect on the education of the children; the Committee of Management could not appoint any other person in his place as was not permitted to do so; his involvement in politics and detention under the provisions of the Maintenance of Internal Security Act (M.I.S.A.) and National Security Act (hereinafter called the ''N.S.A.'') several times. On the date the chargesheet was served, the said employee was under detention for five months under the provisions of N.S.A. and after holding the enquiry, the Inquiry Officer found the charges proved against the petitionerrespondent No. 1. The Committee of Management forwarded the papers relating to inquiry to the U.P. Secondary Education Services Commission (hereinafter called the ''Commission'') and the said Commission approved the report vide order dated 28.7.1989. The Management on 31.8.1989 decided to dismiss the petitionerrespondent No. 1 from service and as a consequence, the order dated 1.9.1989 dismissing the respondent No. 1 employee was issued. The respondent employee challenged the said approval dated 28.7.1989, the resolution of the Committee of Management dated 31.8.1989 and the consequential order dated 1.9.1989. the learned Single Judge allowed the writ petition and quashed all the three orders and a direction to reinstate him in service with entire arrears and all consequential benefits within a period of two months was issued vide judgment and order dated 11.8.1999. Hence this special appeal.

The learned Standing Counsel appearing for the Stateappellant has submitted that undoubtedly, there were large number of charges in the chargesheet but main charges against the said employee were that he was primarily appointed for teaching English subject to the Intermediate classes but as he had regularly indulged in political activities the Government had detained him in Jail for a long time which resulted disruption in teaching work and in his absence, the education department did not permit the Management to appoint any other teacher and as there was no other teacher in the College who could teach English, the students of the College suffered adversely. In the chargesheet his earlier detention for a period of 19 months, i.e., from 14.8.1975 to 30.7.1977 and 10.11.1980 to 18.12.1980 had also been referred. The second charge was that the said employee had never informed about his arrest nor he applied for leave, therefore, he remained absent from the College for a very long period. He was absent continuously for a period of five months without any leave etc. since 11.7.1987. He was released from detention after one year of his detention i.e., in July, 1988, therefore, he was absent from duty for complete one year and even after being released from detention, he did not make any attempt to join the College. The said respondent was habitual in remaining absent from the College, for which he had been warned was in the habit of not applying form leave and used to sign in the attendance register forcibly. Findings of facts recorded by the learned Single Judge that the detention was beyond his control and the Management was not prevented to make an alternative appointment during the period of his detention and students did not suffer at all or the result had not deteriorated and principles of natural justice were violated, are not based on evidence on record, therefore, the judgment and order requires to be set aside.

Shri Yogesh Kumar Saxena''s, learned Counsel appearing for the respondent employee has vehemently submitted that against this very judgment, three other Special Appeals had been filled and all of them stood dismissed, therefore, it is not permissible for this Bench to take a view contrary to the view taken in the said three Special Appeals. No opportunity of hearing was given to the said employee and the order of dismissal had been passed in violation of principles of natural justice. As the Management had condoned the absence of the period of detention earlier twice, the same charges could not be levelled against the employee in the subsequent enquiry. The judgment and order of the learned Single Judge does not require any interference. The appeal is liable to be dismissed.

We have considered the rival submissions made by the learned Counsel for the parties and perused the material on record.

So far as the dismissal of other three Special Appeals are concerned, one Special Appeal No. 907 of 1999, Secretary, U.P. Secondary Education Service Selection Board v. Prem Shanker Sharma and another, was dismissed by this Court vide order dated 14.9.1999 on the ground mat the appellant therein had no locus standi to prefer the appeal. The other Special Appeal No. 860 of 1999, had been filed by one Sudhir Kumar, who had been appointed in place of the said employee after termination of his service. As the said appellant did not press the said Special Appeal, his Special Appeal was dismissed as not pressed vide order dated 2.4.2004. The other Special Appeal i.e., Special Appeal No. 840 of 1999 was filed by the Committee of Management, which was also dismissed vide order dated 23.11.2004 on the statement of the learned Counsel appearing for the said appellant that the appeal had become in fructuous by efflux of time are he did not want to press the appeal. However, an application for recalling the said order has been filed on the ground that it had been withdrawn under a wrong impression. Thus, as none of the said Special Appeals has been dismissed on merit, we do not find any force in the submissions made by Shri Saxena that this Court cannot decide this appeal on merits.

The complicated rules of Evidence Act and the procedure prescribed in the Code of Civil Procedure do not apply in the domestic enquiry. The law requires a fair hearing and the delinquent must be informed of the nature of accusation. He should be given an opportunity to state his case and the Inquiry Officer must proceed in good faith. If these requirements are satisfied, then it cannot be said that the principle''s of natural justice have been violated. [Vide State of M.P. v. Chintaman S. Waishampayan, AIR 1961 SC 1612; State of Haryana v. Rattan Singh, AIR 1977 SC 1512 and U.P.S.R.T.C. and others v. Ram Chandra Yadav, (2000) 9 SCC 327].

It cannot be doubted that the principles of natural justice cannot be put into a straitjacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Triipathi v. State Bank of India and others, AIR 1984 SC 273; N.K. Prasada v. Government of India and others, (2004) 6 SCC 299; State of Punjab v. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC and another v. S.G. Kotturappa and another, (2005) 3 SCC 409 and in Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.

In State of U.P. v. Om Prakash Guptas, AIR 1970 SC 679, the Hon''ble Apex Court had observed that Courts have to examine whether the nonobservance of any statutory provision or principles of natural justice have resulted in deflecting the course of justice. In S.L. Kapoor v. Jagmohan and others, AIR 1981 SC 136, the Hon''ble Supreme Court has held that where from admitted or undisputed fact, only one conclusion is possible and under the law only one course is permissible to be adopted, the Court should not enforce the observance of principles of natural justice for the reason that it would amount to issuing a futile writ.

In A.K. Kraipak and others v. Union of India and others, AIR 1970 SC 150, the Hon''ble Supreme Court observed as under :

"The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in the areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it..... Whenever a complaint is made before the Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

Therefore, whether the principles of naturals justice should be applied in a given case, depends upon the facts and circumstances of that case. In case the principles have not been applied but if even after their observation result could have been the same, enforcing the observance of such principles would be a futile exercise. [Vide Khem Chand v. Union of India and others, AIR 1958 SC 300 and Laxmi Shankar Pandey v. Union of India and others, AIR 1991 SC 1070].

In Chairman, Board of Mining Examination and Chief Inspector of Mines and another v. Ramjee, AIR 1977 SC 965, the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cureall. If fairness is shown by the decisionmaker to the man proceeded against, the form, features and the fundamentals of such essential procession propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere art fact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

In Union of India v. Tulsiram Paid, AIR 1985 SC 1416, the Hon''ble Supreme Court held :

"Though the two rules of natural justice, namely, nemo judex in casa sue and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."

It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan lal Gupta and others v. Asha Devi Gupta and others, (2003) 7 SCC 492; Mardia Chemicals Ltd. v. Union of India, AIR 2004 SC 2371 and Canara Bank v. Debasis Das, AIR 2003 SC 2041.

In Hira Nath Mishra and others v. Principal Rajendra Medical College, Ranchi and another, AIR 1973 SC 1260, the Hon''ble Supreme Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.

The Constitution Bench of the Supreme Court'' in Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, made reference to its earlier decisions and observed :

"In A.K. Kraipak and others v. Union of India and others, AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasijudicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case, the rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." (Emphasis added)

Validity of an order is to be tested on the touchstone of doctrine of prejudice. [Vide Jankinath Sarangi v. State of Orissa, (1969) 3SCC 392; K.L. Tripathi v. State Bank of India and others, AIR 1984 SC 273; Sunil Kumar Banerjee v. State of West Bengal and others, AIR 1980 SC 1170; Maj. G.S. Sodhi v. Union of India, AIR 1991 SC 1617; Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others, AIR 1994 SC 1074; Krishan lal v. State of J&K, (1994) 4 SCC 422; State Bank of Patiala and others v. S.K. Sharma, AIR 1996 SC 1669; S.K Singh v. Central Bank of India and others, (1996) 6 SCC 415; State of U.P. v. Harendra Arora and another, AIR 2001 SC 2319; Oriental Insurance Co. Ltd. v. S. Balakrishnan, AIR 2001 SC 2400 and Debotosh Pal Choudhury v. Punjab National Bank and others, (2002) 8 SCC 68].

In Syndicate Bank and others v. Venkatesh Gururao Kurati, JT 2006 (2) SC 73, the Apex Court held as under :

"To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for nonobservance of principles of natural justice."

Thus, in view of the above, law can be summarised that principles of natural justice are not embodied rules. No straitjacket formula can be laid down in this regard as it depends upon the facts and circumstances of each case. In a particular case where the facts remain undisputed and undeniable, observation of these principles would render a futile exercise or useless/empty formality. In the application of the concept of fair play there has to be real flexibility. There is no such thing as a mere technical infringement of the said principles. Application of the said principles has to be in conformity with the statutory provisions and subject matter of the case. However, one who alleges violation of these principles, must further establish that prejudice has been caused to him for nonobservance of principles of natural justice.

In view of the above, as the fact of his absence from duty remained undeniable, the finding recorded by the learned Single Judge that the principles of natural justice had not been complied with while holding enquiry, cannot be sustained in the eyes of law. The further finding of fact recorded by the learned Single Judge that his detention did not hamper the studies in the Institution is also not correct in view of the fact that the Management was not permitted to make another appointment unless die services of the said employee was terminated or was put under suspension and there was no other teacher who could teach the English subject.

The parameters of the Court''s power of judicial review have been analysed by the Hon''ble Supreme Court in Commissioner of Incometax, Bombay and others v. Mahindra and Mahindra Ltd. and others, AIR 1984 SC 1182 and held that by now, the parameters of the Court''s power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals and another v. Company Law Board and others, AIR 1967 SC 295, case on the point. "It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same".

In Smt. Shalini Soni v. Union of India, AIR 1981 SC 431, wherein it had been held that whenever a decisionmaking function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

In State of N.C.T. of Delhi and another v. Sanjeev alias Bittoo, (2005) 5 SCC 181, the Hon''ble Supreme Court held that judicial review of an administrative action is permissible only on the grounds of illegality, irrationality and procedural impropriety.

The principles applied in judicial review of administrative decisions have also been considered by the Hon''ble Supreme Court in Tata Cellular v. Union of India, AIR 1996 SC 11, held that in such a case the Court should keep in mind that the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made; the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible; and quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

In Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others, AIR 2000 SC 2272, it was held by the Hon''ble Supreme Court:

"Broadly stated, the Courts would not interfere with the matter of administrative action or changes made therein, unless the Government''s action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide."

In Air India Ltd. v. Cochin International Airport Ltd. and others, AIR 2000 SC 801, the Hon''ble Supreme Court held as follows :

"Even when some defect is found in the decisionmaking process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene."

In Zora Singh v. J.M. Tandon and others, AIR 1971 SC 1537, the Hon''ble Apex Court while dealing with the issue of scope of judicial review, held as under :

"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a Superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case, where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a Superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the Superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."

(Emphasis added)

In Government of Andhra Pradesh and others v. Mohd. Nasrullah Khan, JT 2006 (2) SC 82, the Hon''ble Apex Court held that judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority.

In State of Orissa and others v. Md. Illiyas, (2006) 1 SCC 275, the Hon''ble Apex Court held that where a Statutory Authority had reached a subjective satisfaction that an office bearer has fully abused the powers, rights and privilege vested in him and had acted in a manner prejudicial of the interest of the inhabitants of public at large, the Court should be very slow in interfering with such orders.

Regarding reappreciation of evidence by the High Court, the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar v. Udaysingh s/o Ganpatrao Naik Nimbalkar and others, JT 1997 (5) SC 298, clearly held as follows :

".... In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court."

(Emphasis added).

The Supreme Court in Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and others, (1997) 3 SCC 657, held as follows :

"Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority. The High Court, in the proceedings under Article 226 does not act as an Appellate Authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a Court of first appeal and reversed the finding of fact recorded by the Enquiry Officer and accepted by Disciplinary Authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a First Appellate Court, is wholly illegal and cannot be sustained."

In R.S. Sami v. State of Punjab, (1999) 8 SCC 90, the Supreme Court observed as follows :

"Before adverting to the first contention of the appellant regarding want of material to establish the charge and of nonapplication of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.

A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth; by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as ether being perverse or not based on any material nor is it a case where there has been any nonapplication of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the Enquiry Officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

In the case of Lalit Popli v. Canara Bank and others, (2003) 3 SCC 583, the Supreme Court observed as follows :

"While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an Appellate Authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority."

The decisions referred to by us clearly highlight the parameters of the Court''s power of judicial review of administrative action or decision. The jurisdiction of the Courts in such a matter is very limited. The order can be setaside if it is based on extraneous grounds or there are no grounds at all for passing it or the grounds are such that no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonestly or corrupt practice. In other words the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined nor the question of reappreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is permissible against the decision making process and not against the decision itself. This apart, even when some defect is found in the decisionmaking process, the Court must exercise its discretionary power under Article 226 of the Constitution with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference that the Court should intervene.

Undoubtedly, in the chargesheet, a large number of charges have been levelled against the respondent employee and some of them also related to his indulgence in power politics and its consequences but the gist of the charge was that he was absent from duty without leave and he did not inform the Committee of Management about his arrest, the detention for a long period adversely affected the education of the students. We are not inclined to deal with the other charges particularly relating to his political activities or reasons for his detention. However, it remains undisputed that the respondent No. 1 had been arrested and detained in Jail for 19 months i.e., from 14.8.1975 to 30.3.1977 and again for a period of one month, i.e., from 10th November, 1980 to 18th December, 1980 and again with effect from 11.7.1987 to 10.7.1988. It also remains undisputed that the petitionerrespondent No. 1 was served with the chargesheet and was heard in detention. On the charge made in this regard, there could be no answer for the reason that even today, Mr. Saxena is not in a position to dispute the charge relating to his detention. More so, there was no denial to the effect that the Management was not permitted to make alternative appointment.

The gist of the charges is as under :

The delinquent employee was appointed in Ambika Prasad Inter College, Moradabad as a full time Lecture for teaching English to Intermediate Classes. He had not been permitted to indulge in any other profession and he was not given permission to indulge in activity other than the teaching work, which might cause hindrance in teaching but he was involved in such activities because of which he had been kept under detention for a long period and because of his detention, the students of the College had been deprived from education. The Education Department did not permit the Institution to make any appointment in his absence. No other teacher in the College was eligible to teach English. In such a situation, serious disruption had been caused in the teaching of the students and it had adversely affected the result of the examinations in English language, as a consequence of which the result of the whole college was adversely affected. He had been detained in Jail from 14.8.1975 to 30.3.1977, 10.11.1980 to 18.12.1980, and since 11.7.1987. On earlier two occasions, he had been paid full salary for his absence because of his detention and he had also been given the annual grade increments as well as the selection grade. It was expected that he would improve himself in future but he remained completely unchanged. Thus, his conduct was of a very serious kind of misconduct and because of his activities, the students were deprived of proper teaching.

In support of the aforesaid charges, in order to prove allegations made in the chargesheet as many as eight documents had been enclosed with the chargesheet which included the chart showing the result of English language from 1979 to 1987.

The other important charge related to not furnishing any information about his arrest and not applying for leave. In support of this charge, large number of letters had also been enclosed.

The respondent employee vide letter dated 2.1.1988 asked the Inquiry Officer to meet him in Jail, which was not accepted and the Inquiry Officer sent another letter on 13.1.1988 to him giving fresh opportunity to submit his reply to the chargesheet, which was replied by him on 23.1.1988 and the employee made a request to the Manager of the College to meet him in Jail. The Inquiry Officer met him in Jail on 15.2.1988 and heard him. He had given the reply in the form of questionanswer, according to which he had accepted his detention on all the occasions but further stated that he did not inform the Management about his arrest considering that the Principal Shri Sita Ram must have received the information. With regard to not filing any application for grant of leave, he replied that he was not aware as what kind of leave counsel be sanctioned to him, therefore, he did not submit any application.

The Inquiry Officer submitted the report and a second show cause was served upon him furnishing the copy of the enquiry report and he was asked to appear, if he so desired, before the Committee of Management on 22.7.1988. The respondentemployee after being released from Jail on 11.7.1988, appeared before the Committee of Management on 22.7.1988 but did not plead his case properly nor he raised any grievance of not giving proper opportunity of defence. The matter was referred to the Commission and the Commission again gave him an opportunity of hearing. Before the SubCommittee of the Commission, he accepted the charge of detention being involved in politics as he had full faith in Rashtriya Swayamsewak Sangh (R.S.S.) and the Bhartiya Janata Party. The Commission considered the whole case and also took note of the falling result in English language in the said Institution, as the result in 1985 was 88 percent, however, in 1986 it was only 9.5 percent and in 1987, it was only 20 percent. The Commission accepted the report submitted by the Management taking note of the admission made by the respondent employee. Before the Commission, he submitted that neither the information regarding detention was necessary to be given nor any application was required to be given in this regard. The Management did not suggest the said employee as to what kind of leave application could have been given by him. The Commission, after considering all the materials on record, recorded the following findings :

(1) Mr. Sharma had been detained in Jail several times because of his activities;

(2) Due to indulgence of Mr. Sharma in other activities, there was no proper teaching in the Institution and the result adversely affected;

(3) Mr. Sharma did not submit any application for sanction of leave nor he was aware as to what kind of leave could have been granted to him;

(4) Mr. Sharma used to mark his attendance over the ''cross'' made in the attendance register showing his absence and for that he had tendered apology to the Committee of Management;

(5) Mr. Sharma, instead of submitting reply to the charges levelled against him, asked the Manager to meet him in Jail and did not submit any application even from Jail.

After recording the aforesaid findings, approval was accorded by the Commission and he was dismissed from service.

The learned Single Judge, while deciding the case, recorded the following findings:

(I) There is no provision either in the Act or the Regulations of the Commission, Act or Rules, which prohibit a teacher to become a member of a political party. Section 16G (5)(c) of the U.P. Intermediate Education Act, 1921, Regulation 32 of Chapter III of the Regulations and Rule 6 of the Uttar Pradesh Secondary Education Services Commission Rules, 1995, provide for termination of service of a teacher on conviction for a crime or an offence involving moral turpitude;

(II) Unless the Government frames a Rule laying down observance of certain Code of Conduct necessary for proper discharge of function of a teacher in private aided Institutions and a reasonable code is designed to promote discipline and efficiency by the teachers in private colleges debarring him from being a member of political party, till then a teacher in a private recognised Institution can enjoy political affinity with political party and can take part actively in politics as he is not holding the office of profit. The fundamental rights guaranteed to the petitioner under Article 19 of the Constitution, cannot be curtailed and the petitioner could not be dismissed on the ground of taking part in politics;

(III) The Inquiry Officer and the respondent No. 2 have considered the arrest of the petitioner under the provisions of Maintenance of Internal Security Act from 14.8.1975 to 30.3.1977 and under the National Security Act from 1.11.1980, though for these charges the petitioner had been exonerated earlier by the Management and he was also paid salary. The only charge, which could survive was with regard to arrest of the petitioner under the National Security Act from 11.7.1987 to 11.7.1988;

(IV) The finding recorded by the Commission that the result of the Institution went down on figures of certain years without any further evidence, is unsustainable; and

(V) The Commission has not referred to any material as there was none but has imagined that since the petitioner indulged in such activities, he was guilty of spreading indiscipline. The finding of insubordination, misconduct, and doubtful integrity are based on no material.

We have perused the entire material available on record. So far as the finding No. 4 recorded by the Commission in respect of making signature in the attendance register is concerned, it cannot be taken into account as it was not the charge against him. So far as the first finding recorded by the learned Single Judge on dismissal from service on the ground of absence from duty without any leave is concerned, there is no prohibition under any Statute for holding enquiry on such charges and imposing such punishment. The Rules and Regulations involved herein have not been read in proper perspective, as the same also provided for imposing punishment after holding the enquiry. Regulation 32 of Chapter III of the Regulations framed under the Act 1921 reads as under :

(1) An employee may be dismissed from service on grounds, such as gross insubordination, deliberate or serious neglect to duty, gross misconduct or Commission of an act which constitutes a criminal offence, dishonesty, corruption, misappropriation of funds, sexperversity or moral turpitude.

(2) An employee may be removed from service on the grounds mentioned above as also on the grounds of inefficiency in administration or Institutional work or unauthorised tuition or employment.

(3) An employee may be reduced in rank or subjected to diminution in emoluments on grounds such as deficiency in administration, unsatisfactory work or conduct, lack of interest in cocurricular activities or discharge of examination duties or doubtful integrity. Reduction may be to a lower post or timescale or to lower stage in the timescale."

Therefore, the first finding cannot be sustained, as it runs contrary to the Statutory provisions.

The second finding recorded by the learned Single Judge is totally irrelevant for the reason that main reason for his dismissal from service was for remaining absent from duty without any leave, which adversely affected the teaching in the Institution and not his involvement in political activities. Had it been so, the respondent employee could have been removed from service on his first detention in 1975 but on earlier two occasions, not only his absence was regularised granting him leave but he has also been paid salary etc.

So far as the third finding is concerned, it is not in accordance with the law for the reason that the employer has every right to take into consideration the past bad conduct of an employee but the only requirement of law is that it should be a part of the chargesheet. If the past conduct of the respondent employee is considered without including it in the chargesheet, the finding on such issue would be violative of principles of natural justice but in the instant case, he was charged for habitual absents, his past conduct was necessary to be examined. This view stands fortified by the Apex Court judgment in Bharat Forge Co. Ltd. v. Uttivn Manohnr Nakate, AIR 2005 SC 947. In the said case punishment of dismissal from service on the proved charge of sleeping on duty was not found to be disproportionate tasking into account his past bad conduct.

Thus, in view of the above, finding so recorded by the learned Single Judge that the Inquiry Officer should have only considered his detention on 3rd time is not in consonance with law.

So far as the 4th finding is concerned, it was very much based on evidence and the documents furnished to the respondent employee along with the chargesheet clearly show the downward trend in the result of the English language in the College. Therefore, the finding recorded by the learned Single Judge that it was based on no evidence is not factually correct.

So far as the finding No. 5 is concerned, the case related to his continuous absence without any leave which seriously affected the teaching and hi substance, the charge of his involvement in politics was not there. Therefore, this finding does not require to be dealt with. Such an employee may have a right to have a faith in any political party and may have active participation in its activities. [Vide State of Madhya Pradesh v. Rama Shankar Raghuvanshi and another, AIR 1983 SC 374 and M.H. Devendrappa v. Karnataka State Small Industries Development Corporation, AIR 1998 SC 1064].

Even if it is assumed that his involvement in political activities was also the part of charge No. 1, and it could not have been framed at all, it would not tilt the balance in favour of the respondent employee as other proved charges were enough to pass the order of dismissal from service. [Vide State of Orissa v. Vidyabhushan Mohapatra, AIR 1963 SC 779 and State of U.P. v. Om Prakash Gupta (supra)].

We also find no force in the submission made by Shri Saxena that the detention of the said employee earlier and his absence for that period had been condoned by the Committee of Management and the said period of absence stood regularised, therefore, there could be no allegation in the chargesheet at a later stage in those respects for the reason that such a course was necessary to avoid the break in service of the respondent No. 1 and such a regularisation did not debar the employer to take such absence, from consideration in the later enquiry, as held by the Hon''ble Supreme Court in State of Madhya Pradesh v. Harihar Gopal, (1969) SLR 274; Mann Singh v. Union of India and others, (2003) 3 SCC 464 and State of Punjab v. Charanjit Singh, (2003) 8 SCC 458.

The charge in substance was not in respect of his indulgence in political activities. The charge was specifically regarding his absence for a long time because of his detention, which caused deterioration in the standard of education and secondly he never informed the Management about his detention nor applied for leave. Even after being released from detention, he made no attempt to join the services, therefore, such a person should not have been given any indulgence in an equitable writ jurisdiction.

In view of the above, appeal deserves to be allowed and the judgment and order of the learned Single Judge is liable to be set aside.

The appeal succeeds and is allowed. The judgment and order dated 11.8.1999 of the learned Single Judge is hereby set aside. In the facts and circumstances of the case, there shall be no order as to costs.

Special appeal allowed.