JUDGMENT
Jawahar Lal Gupta, J.
1. On July 10, 1,992, the petitioner was appointed as the Principal of the Saraswati Mahila Mahavidyalaya, Palwal. On December 15, 1995, she was suspended. On December 16, 1995, a charge-sheet was served. On April 11, 1996, the petitioner requested for the payment of subsistence allowance. She pointed out that without the release of payment, she would not be able to produce her defence. The payment was not made. On April 14, 1996, the petitioner’s defence was struck off. A week later, the Enquiry Officer submitted the report. The petitioner was given a show cause notice as to why she be not dismissed. She showed cause. However, the explanation was not accepted. The management proposed that the petitioner be dismissed. The Director approved the proposal on August 23, 1996. The petitioner was conveyed the decision regarding her dismissal from service on September 14, 1996. She filed a revision petition before the Secretary, Education on September 27, 1996. It was rejected vide order dated December 24, 1997. Hence this petition.
2. The petitioner alleges that in August 1995, respondent No. 4, the President of the Managing Committee had asked her to appoint Smt. Kanchan Mangal as a Peon in the Library. The petitioner could not appoint her as “she had produced a forged matriculation certificate.” Respondent No. 4 was annoyed. Thus, the impugned action had followed. The petitioner maintains that the action is malafide. It is also alleged that the Enquiry Officer (respondent No. 5) is a “close relative” of respondent No. 4. The petitioner further alleges that there was denial of a reasonable opportunity. Thus, the impugned action is vitiated.
3. The writ petition was filed on July 18, 1998. A bench of this Court had directed the issue of notice of motion on July 20, 1998. Respondent Nos. 1, 2 and 5 had been duly served for August 24, 1998. Despite service, they did not put in appearance. They were proceeded against ex parte. Vide order dated August 24, 1998, directions for the issue of fresh notice to respondent Nos. 3 and 4 were given. They were served on September 10, 1998. Despite that, no written statement has been filed on behalf of any of the respondents. The averments in the writ petition have not been controverted by any of the respondents. Thus, the hearing had to proceed on the basis of the averments as made in the writ petition.
4. Mr. Sanjiv Bansal, counsel for the petitioner contended that the charges had been levelled against her on account of wholly extraneous considerations. These were malafide. Secondly, the counsel submitted that the petitioner had not been granted a due and
reasonable opportunity. Her defence had been arbitrarily struck off. She was not afforded an opportunity to produce evidence in defence. Thus, the entire action is vitiated.
5. Mr. M.S. Jain, learned counsel for respondent Nos. 3, 4 and 5 contended that the action was not malafide. The petitioner was given a due and reasonable opportunity. The charges having been proved, the impugned action was absolutely legal, just and fair.
6. After hearing counsel for the parties, the questions that arise for consideration are:
(i) Was the petitioner given a due and reasonable opportunity ? (ii) Is the impugned action just and fair ? (iii) Is the impunged action malafide ? Regulation (i)
7. Mr. Sanjiv Bansal, counsel for the petitioner made a two-fold submission. It was contended that the petitioner had not been paid subsistence allowance for the months of January, February and March, 1996. She had requested that the payment be made so that she may be in a position to produce the evidence in defence. This was not done. The defence was struck off and, thus, the petitioner was denied the opportunity to prove her case. Secondly, it was contended that the Enquiry Officer was related to respondent No. 4. He had, thus, proceeded in a biased way against the petitioner. Initially, it was also contended that the copy of the enquiry report had not been supplied at the opportune time. However, later on, this contention was not pressed. On behalf of the respondents, the factual position was not disputed. However, it was contended that reasonable opportunity had been granted. Is it so?
8. Admittedly, the conditions of service in so far as disciplinary matters are concerned, are governed by the provisions of the Haryana Affiliated Colleges (Security of Service) Act, 1979. The relevant provisions are contained in Section 7. It reads as under:
“7. Procedure to be observed before dismissal, removal, reduction in rank or withholding of annual increment of pay with cumulative effect- (1) No employee shall be dismissed, removed, reduced in rank or no annual increment or increments of pay of any employee shall be withheld with cumulative effect except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that this section shall not apply where an employee is dismissed, removed, reduced in rank or where the annual increment or increments of pay of any employee is or are withheld with cumulative effect on the ground of conduct which has led to his conviction on a criminal charge.
(2) The penalty of dismissal, removal from service, reduction in rank and withholding of annual increment or increments of pay with cumulative effect shall not be imposed unless the same is approved by the Director.
(3) Where after the enquiry referred to in Sub-section (1) it is proposed to impose the penalty of dismissal, removal from service, reduction in rank or withholding of annual increment or increments of pay with cumulative effect, the proposal along with the relevant record shall be referred to the Director and the employee concerned shall be informed.
(4) The employee may, within a period of thirty days of the receipt of the
intimation referred to in Sub-section (3) make a representation against the proposed penalty to the Director who may, after examining the record and giving the parties an opportunity of being heard, by an order in writing, approve the proposed penalty or reduce it or refuse to approve it, if the proposal is found to be mala fide or by way of victimisation or not warranted by the facts and circumstances of the case.”
A perusal of the above provision would show that an employee is entitled to the grant of a reasonable opportunity before he/she is dismissed from service. The penalty can be imposed only with the approval of the Director. On February 27, 1996, the petitioner had requested the President, respondent No. 4 to allow payment of the subsistence allowance. A copy of this letter is on record as Annexure P.23 with the writ petition. When nothing was done, she submitted an application dated April 4, 1996, a copy of which has been produced as Annexure P.25. She had informed the Enquiry Officer, respondent No. 5 that subsistence allowance had not been paid for the months of January, February and March, 1996. She alleged that tbe delay was “meant to cause undue harassment”. She requested that the President may be asked to make the payment failing which she “will not be able to attend the enquiry on 14.4.1996…” This letter, the petitioner alleges, was sent by registered post. Thereafter, the petitioner sent an application dated April 11, 1996 to the Director, Higher Education. She prayed that subsistence allowance for the months of January, February and March, 1996 be disbursed before the next date of hearing failing which “it may be presumed that I am being denied the reasonable facilities for the conduct of my defence deliberately. “A copy of this letter is at Annexure P.24 with the writ petition. On the same day, she sent a similar request to the Enquiry Officer. A copy of the communication is at Annexure P. 26 with the writ petition.
9. The enquiry proceedings were fixed for April 14, 1996. On that day, the petitioner appeared before the Enquiry Officer. Respondent No. 4, the President of the Managing Committee was also present. At the outset, the petitioner submitted that since the subsistence allowance had not been paid, she will “produce her defence” only after the payment had been made. During the proceedings, it was revealed that the payment for the months of January and February had already been received from the Directorate. For the month of March, the bill was said to have been sent. Despite this factual position, the Enquiry Officer passed the following order:
“Since the plea of Mrs. Mehta for not producing defence is tenuous, I am not in a position to appreciate her stand. The defence is struck off. The enquiry report will be sent to the College authorities shortly.
Sd/-
M.P. Gupta,
Enquiry Officer Camp,
Palwal.
14.4.1996
Admittedly, the petitioner is a salaried person. Subsistence allowance is a meagre amount which is essential for the subsistence of an employee. It becomes all the more important in a case where the employee is facing disciplinary proceedings. It also deserves notice that when a person is asked to produce evidence in defence, he/she has to incur some expenses in the travel etc. of the witnesses. In view of this factual position, the petitioner had been making repeated requests to the respondents for the release of her subsistence allowance.
The first request had been made by her as far back as February 27, 1996. Thereafter, the requests were made to the President of the Managing Committee, the Director, Higher Education and the Enquiry Officer himself. Surprisingly, all the requests fell on totally deaf ears. Nothing was done. In this situation, the petitioner’s complaint that the management was using the economic pressure to break her defences, cannot be said to be unfounded. This becomes all the more apparent in view of the fact that the subsistence allowance for the months of January and February was not paid to the petitioner despite the fact that the amount had already been received by the Institution from the Directorate. At her insistence for payment, it was promised to be paid on the next date viz. April 15, 1996. It may also be mentioned that it was not even suggested on behalf of the respondents that the petitioner had any other source of income. In fact, it is the admitted position that she was unable to engage any counsel. Admittedly, her husband was assisting her during the proceedings. Thus, it is clear that the petitioner’s request for payment of subsistence allowance was bonafide. The action of the respondents in not releasing the payment to her was not fair. The case falls squarely within the ratio of the decision of their Lordships of the Supreme court in Ghanshyam Dass Srivastava v. State of Madhya Pradesh, 1973(1) SCC 656= 1973 SLJ 356 (SC). In this case, it was held that the enquiry proceedings were vitiated as the employee had been unable to attend the proceedings on account of non-payment of subsistence allowance. The position in the present case is identical.
10. There is another aspect of the matter. It is the admitted position that the petitioner had sent a communication well before the date of hearing to the President, the Director, Higher Education and the Enquiry Officer that in case, the subsistence allowance is not released, she would not be in a position to produce her defence. Despite these three communications, none of the respondents had sent any reply. Still further, during the course of the proceedings on April 14, 1996, it was established that the petitioner had not been paid the subsistence allowance for the months of January, February and March. On behalf of the management, it was stated that the payment for the months of January and February had been received and shall be released on the next day. In this situation, the Enquiry Officer could have adjourned the proceedings for a few days so as to enable the petitioner to collect the amount of subsistence allowance and to produce her defence. He did not do so. He was being more loyal to the King than the King himself. He decided to strike off the petitioner’s defence. This was grossly unfair.
11. Mr. M.S. Jain was at pains to point out that the Enquiry Officer is a retired member of the Indian Administrative Service. Not only the counsel but even the Enquiry Officer has paid glowing tributes to himself. He opens the enquiry report with the following observations:
“Striking a personal note after graduation in law with distinction from the Punjab University, practiced law in the High Court, walked into Civil Services way back in the year 1964 and served on important administrative and Judicial posts such as SDM, Collector, Administrator HUDA, Director Employment, Director Consolidation, Joint Secretary Revenue, Deputy Commissioner and Chief Settlement Commissioner, Haryana. After an impeccable Civil Service of more than 30 years, I retired recently to practice law at the Supreme Court of India.
The Relevance of this preliminary note is to inspire confidence in the parties reg. my competence as Inquiry Officer to do justice to the assignment.
The President of the College addressed me a letter No. SMP 5929 dated 15th
February, 1996 to the effect that the governing body of the college has appointed me as an Inquiry Officer in this case. I was asked to go into the veracity of departmental acts of omission and commission against Mrs. Mehta and to return a finding thereafter. In order to live up to the trust reposed in me, I could not say no to the job.”
12. The words of self-glorification are self-defeating. Despite claims of administrative and judicial experience, the Enquiry Officer failed to abide by the basic principle of a fair opportunity to the delinquent employee. The least that he could have done was to adjourn the proceedings for a few days so as to grant one opportunity to the petitioner to adduce her evidence in defence. His failure to do so was unfair.
13. In view of the above, we are of the view that the action of the Enquiry Officer in striking off the petitioner’s defence, in the circumstances of this case, was wholly unfair. She was deprived of the opportunity to lead her defence. There was violation of a valuable right available to a delinquent employee. This would vitiate the proceedings.
14. It also deserves mention that under the provisions of the Act, the management of an aided college cannot dismiss an employee without the approval of the Director of Education. The employee has been given the right to represent. The petitioner had submitted her representation dated June 20, 1996. A copy thereof is at Annexure P.30. In a detailed representation of 10 pages, the petitioner had inter alia raised the following plea:
“The Inquiry Officer has failed to provide reasonable opportunity for the conduct of my defence by striking off my defence on flimsy grounds on the very first date fixed for producing my defence viz. 14.4.1996.”
15. Surprisingly, the Director has not even noticed this submission while granting approval vide orders dated August 20, 1996. The petitioner had raised the issue again before the Secretary, Education. A copy of her appeal-petition has been produced as Annexure P. 33 with the writ petition. She had inter alia averred as under :
“The Enquiry Officer has gone wrong in closing the evidence of the appellant on the very first date of hearing i.e. on 14.4.1996 as subsistence allowance was not paid. Thereafter, a request was made to the E.O. that the management be directed to pay subsistence allowance to the appellant so that the appellant may become able to adduce evidence and may become able to summon her witness. The Enquiry Officer in a hurried manner closed the evidence of the appellant on the very first date i.e. 14.4.1996 on which the case was fixed for the (evidence of) the appellant. Even the statement of the appellant was not recorded by the E.O. even though the appellant was present on that day. The order of closure of evidence by the E.O. is illegal, invalid and violative of the principles of natural justice and due to the closure of evidence by the E.O. the appellant has been seriously prejudiced.”
16. Besides this petition of appeal, the petitioner had also filed written submissions before the Secretary to the Government. In the written arguments, the petitioner again raised the following specific plea in paras 13 and 14:
“That the enquiry officer who retired from Civil Services, Haryana and presently practicing as an Advocate in the Supreme Court of India and the president Shri Lakhan Pal Mangla is also an advocate whereas the appellant is far away from the legal terminology. The enquiry officer as well as the president denied the opportunity to the appellant which is clear from the fact
that the defence of the appellant was struck off on 14.4.1996 on the very first date and the request of the appellant regarding payment of subsistence allowance which was not paid to the appellant has not been considered, rather the enquiry officer struck off the defence evidence of the appellant without any basis and in view of the law laid down by the Hon’ble Supreme Court in a judgment reported as 1971 Vol. II SLR 239 suspension pending departmental enquiry, Civil Servant appearing before the enquiry officer on the grievance that he was not paid subsistence allowance and request for personal hearing denied by the punishing authority, dismissal on ex-parte report of the enquiry officer is illegal.
That the aforesaid judgment was again followed by Hon’ble Supreme Court in case titled as Ghansham Dass Srivastva v. State of Madhya Pradesh reported as AIR 1973 SC 1183 holding that Supreme Court took a serious view of the delay in payment of subsistence allowance to an employee under suspension. The Court observed that such delays create financial difficulties for the employee and hamper his defence and the Court set aside the ex-parte proceedings taken against him which he failed to attend due to non payment of subsistence allowance.
In view of the aforesaid view taken by the Hon’ ble Supreme Court the case of the appellant is rather on solid footing as the enquiry officer has himself admitted that the subsistence allowance has not been paid to the appellant which has further been supported by the dealing clerk who also deposed before the enquiry officer that payment will be made after receipt of sanction from the Director, Higher Education, Haryana.”
17. The Financial Commissioner and Secretary to Government Haryana, has noticed this submission in para 2 of the order. However, he disposes of the whole case with the following observations:
“I have gone through the record of this case, the report of the Enquiry Officer and heard both the parties as well. After careful consideration, I find that the charges proved by the Enquiry Officer are duly substantiated on the basis of the evidence on the record and thus, there is no reason for me to interfere in the matter as proper procedure has been followed in this case and she was also allowed a personal hearing. Accordingly, I reject the appeal dated 27.9.1996 of Smt. Mehta and the subsequent application dated 24.11.1997 in this regard submitted by Mrs. Mehta and uphold the orders passed by Director, Higher Education in this behalf vide this order dated 20.8.1996.
18. The petitioner’s specific plea was not even considered.
19. In view of the above, we are satisfied that there was denial of a reasonable opportunity. The petitioner had been denied opportunity to lead her defence. The action of the Enquiry Officer in striking off the petitioner’s defence was wholly illegal. The Director and the Secretary, respondent Nos. 1 and 2 had not even considered the petitioner’s submission. Consequently, the enquiry proceedings as also the impugned orders of dismissal as approved by the Director and affirmed by the Secretary are vitiated.
20. In view of the above conclusion, it is not necessary to go into the other two questions in detail. However, we shall only briefly notice the factual position in respect of these contentions.
Regulation (ii)
21. Have the respondents acted farily in imposing the extreme penalty of dismissal against the petitioner?
22. The Enquiry Officer had found that Charge Nos. 1-A, 1-B, 1-C, 2 and 6 were proved against the petitioner. These charges as delineated in the charge sheet were described as under:
"(a) Mrs. Pushp Lata Mehta, Principal Saraswati Mahila Mahavidyalaya, Palwal committed a fraud on the student funds of the college that she collected a sum of Rs. 17862/- in the college during Jan., Feb. 95 on account of absent fine from the students which belongs to the Govt. and had to be deposited in the account of Director. Higher Education, Haryana, Chandigarh qua the account of Director, Higher Education in the College. She collected the above said amount from students without issuing receipt to them and without maintaining regular account. (b) She also collected during the said period a sum of Rs. 1800/- from the Rehri Walas who were allowed by her to do their business in the college premises as the licence fee. This amount was collected by her from the Rehriwalas without issuing any receipt to them and in respect this amount she failed to maintain regular account and further fails to deposit in the Management Fund. (c) That she donated the said amount deposits in para No. (a) (b) above in the tune of Rs. 20000/- after adding Rs. 338/- from her pocket to Saraswati Shishu Mandi Prabandh Samiti in the month of March, 1995 through receipt No. 2551, 2552, 2553 and 2554 of Rs. 5400/-, 6000/-, 4000/- and 6600/-respectively dated 01.03.1995, 15.3.1995, 22.3.1995 and 28.3.1995 respectively in her own name and wrote the said receipts in her own hand writing and the said receipts were got signed by Smt. Savitri Makhija, clerk of this college. These receipts were got prepared and brought with a motive to use them for Income Tax rebate a facility of which was available to the Saraswati Shishu Mandi Prabandh Samiti, Palwal of which the High School is situated near the College.
2. That Mrs. Pushp Lata Mehta never kept her Head quarter at Palwal since her joining as Principal in the college. She had claimed and recovered HRA of Rs. 1900/- from July 92 to Jan. 1993 fraudulently knowingly that she has not been residing at Palwal. She produced a false affidavit dated 27.1.1993 duly attested by oath Commissioner at Palwal. She had mentioned H. No. 192, Ward No. 4 New Colony, which, in fact, not traceable in New Colony Palwal. Apart from this she did not mention the name of Landlord even. She also failed to produce receipts in support of her claim.
6. That Mrs. Pushp Lata Mehta was appointed as principal on 10.7.1992 and she had been making her presence in the attendance register maintained in the college for the attendance of all employees and accordingly she marked her presence in the register from 10.7.1992 to 31.3.1995 and 19.1.1995 she absented herself and the president visited the college on 19.1.1995 and marked her absent in said register and Smt. Pushp Lata Mehta discontinued to mark her presence in this register from 31.3.1995. Whereby she was absent from her duty on 19.1.1995 as well as 29.8.1995, 31.8.1995, 6.9.1995,
7.9.1995, 9.9.1995 and 22.8.1995. This act of the Principal is wilful absence from duties without seeking any permission from the competent authority.”
23. According to Charge (a), the petitioner had collected an amount of Rs. 17862/- on account of “absent fine” without “issuing receipts to them and without maintaining regular account.” She had, thus, committed the fraud. According to charge (b), she collected an amount of Rs. 1800/- from rehriwalas without issuing any receipt. As per charge (c), the amounts as mentioned in paras (a) and (b) of the charge sheet, were Prabandh Samiti….’ It is acknowledged that she had contributed Rs. 338/- from her own pocket. However, the charge was that the donations were “in her own name. These receipts were got prepared and brought with a motive to use them for income tax rebate…” According to the Enquiry Officer, all the three parts of the first charge viz, (a), (b) and (c) (wrongly described as 1-A, 1-B and 1-C), were fully proved. On receipt of the enquiry report, the managing committee had considered the matter in the meeting held on May 19, 1996. A copy of the proceedings has been produced alongwith the show cause notice as Annexure P. 28. The copy is at Page 135 of the paper book. The relevant portion of the minutes reads as under:
“The Inquiry Report against Mrs. P.L. Mehta which was received has been discussed in the meeting today dated 19.5.1996. The Governing Body has accepted the report of the Inquiry Officer unanimously except that the charge 1-C discussed in Col. No. 8 to the extent that the money which was invested by Mrs. P.L. Mehta, Principal (under suspension) to avail Income Tax Rebate for personal interest.
Since the other charges No, 1-Aand 1-B have been approved,the charge No. 1-C is hereby dropped. The charges 1-A, 1-B, No. 2 and No. 6 have been proved by the Inquiry Officer dated 21.4.1996. The Governing Body is of the considered view that Mrs. P.L. Mehta Principal (under suspension) is liable for major punishment and therefore, the Governing Body unanimously recommends her dismissal from the service of this college. Necessary action as required by Rules may be taken up in the matter.”
24. A perusal of the above shows that charge contained in part (c) (which has been described as 1-C by the management) was dropped.
25. The position that emerges is that the petitioner had collected Rs. 17862/- from the students on account of their absence by imposing fine. She had collected another amount of Rs. 1800/- from the Rehriwalas. These amounts total upto Rs. 19662/-. The petitioner had contributed Rs. 338/- from her own pocket and donated an amount of Rs. 20000/- to the Saraswati Shishu Mandi Prabandh Samiti, Palwal which is admittedly managed by respondent Nos. 3 and 4. The gravamen of the charge against the petitioner was that she had made the donations in her own name with the oblique objective of deriving benefit in the payment of income tax. In the enquiry report, it was observed that “I am fully convinced that Mrs. Mehta managed donation receipts for her personal use by using college money. This charge is very serious and is fully proved against Mrs. Mehta without a shadow of doubt.” However, the college managing committee, on examination of the matter, has found that charge 1-C which related to the taking of advantage in income tax is not proved. It has been dropped. So far as charges (a) and (b) are concerned, it is clear that the amounts collected had been actually donated to the Samiti fund. It is no body’s case that the petitioner had kept any money. Can it still be said that the petitioner was guilty of committing fraud as alleged in charge No. 1 or of not depositing the amount despite the fact
that she had in fact deposited the full amount by adding Rs. 338/- from her own pocket? The answer is obvious. Without even going into the evidence and on an examination of the charge sheet itself as also the decision of the managing committee with regard to charge No. 1-C, it is clear that the charge cannot be said to have been proved. Despite that, respondent Nos. 1 and 2 have held that serious charges have been proved.
26. The second charge was that the petitioner had claimed and recovered an amount of Rs. 1900/- from July, 1992 to January, 1993 by way of House Rent Allowance despite the fact that she was not residing at Palwal. The other charge which is said to have been proved was that she was absent from duty on January 19, 1995, August 29, 1995, August, 31, 1995, September 6, 1995, September 7, 1995, September 9, 1995 and August 22, 1995. The petitioner had denied these charges. If her defence had not been struck off, she could have proved the factual position. Still further, the petitioner’s version as given in her reply to the charge sheet and noticed by the enquiry officer was plausible. In any event, even if these charges are held to have been proved, these may not warrant the extreme penalty of dismissal from service. All in all, we feel that the respondents had not afforded a due and reasonable opportunity to the petitioner and had erred in awarding the extreme penalty to her.
27. It is true that the writ Court does not normally examine the factual position in a case. This is the province of the authorities under the relevant rules and regulations. In the present case, we have done so to satisfy our judicial conscience and to ensure that an undeserving person is not foisted as a Principal on the college.
Regulation: (iii) :
28. The petitioner has made specific allegations against the fourth respondent. She has alleged that he had wanted her to appoint an ineligible person as a peon in the college. It is only on her refusal to appoint her that the proceedings against her were initiated. She has also alleged that respondent No. 5 is related to respondent No. 4. Despite opportunity, the allegations have not been controverted.
29. In the circumstances of the case, we do not consider it necessary to go into this matter in view of the fact that we have found in favour of the petitioner on the first two questions.
30. Resultantly, the writ petition is allowed. The impugned action of the respondents in ordering the petitioner’s dismissal is set aside. She will be deemed to have continued in service (sic) entitled to the consequential benefits. The petitioner shall also get her costs.