Rajan Roy, J. - (1.) CHALLENGE herein is to the order of the Vice Chancellor, Chhatrapati Sahuji Maharaj University, Kanpur passed under the proviso to section 35(2) of the State Universities Act, 1973 rejecting the proposal of the petitioner for removal of the respondents No. 2 and 3 from its service. The Vice Chancellor had earlier rejected the proposal vide his order dated 22.3.2010, which was challenged by the petitioner in Writ Petition No. 16350 of 2010, which was decided vide judgment and order dated 16.4.2010. The said judgment was challenged before the Supreme Court by the Vice Chancellor but the special leave petition was dismissed on 16.8.2010 leaving the legal issue open for consideration, if raised. As a consequence, the judgment dated 16.4.2010 passed in the aforesaid writ petition has attained finality between the parries subject to the above.
(2.) PARAGRAPHS -23, 28, 29 and 30 of the judgment dated 16.4.2010 are as under: "23. Keeping in view of the fundamental rights given to the minority institutions, section 35(2) of the U.P. State Universities Act, 1953 provides for a limited enquiry in the matter of approval of the orders of punishment passed by the Committee of Management of minority institutions. This enquiry is confined only to the satisfaction, that the procedure prescribed for holding enquiry has been followed. The Vice Chancellor has a very limited discretion in the matter. Unless he is satisfied, that the procedure prescribed in the Statutes or in the Regulations for prescribing punishment has been followed, he will not enter into the other issue such as the validity of the Committee of Management, the nature of the charges, proportionality etc. In such cases, the Vice Chancellor must remind himself that he has limited powers of approval and must allow the minority institutions to regulate its own administration and should be free to exercise the discretionary powers to regulate the conduct of the teachers. The word 'recognition' is defined in the Law Lexicon by P. Ramanatha Aiyar II Edn. Reprint 2007 (1627) to imply something more than acquiescence, something done by the Government as for instance by expeditious of service, Jodi etc. Mere collection of road cess is not recognition. Section 78(4) of the Indian Evidence Act uses the word recognition to the proof of official documents and which means formal acknowledgement as conveying approval or sanction. 28. On the aforesaid opinion, we are of the view that the Vice Chancellor has not only acted illegally and has erred in exercise of his statutory powers in refusing to exercise his powers under section 35(2) of the U.P. State Universities Act, 1973, but that he has also violated the fundamental rights of the Christ Church College Society, Kanpur, a Christian Minority Society, to establish and administer the educational institution guaranteed under Article 30(1) of the Constitution of India. 29. The petitioners have made out the grounds taken in the writ petition and have established that the present case is an exception to the general rule of relegating the petitioner to avail alternative remedies provided under the Act. 30. The writ petition is allowed. The order of the Vice Chancellor, Chhatrapati Sahu Ji Maharaj University, Kanpur dated 22.3.2010 is set aside. The order shall not be given effect to. The Vice Chancellor will reconsider the report of the Governing Body of the Christ Church College, Kanpur vide its proposal dated 25.2.2010 alongwith material produced therewith for approval of the termination order strictly in accordance with the powers vested in him under section 35(2) of the U.P. State Universities Act, 1973. He will consider the matter afresh in accordance with the observations and directions made by us preferably within six weeks from the date a certified copy of this order is produced before him." The relevant extract of the order of the Supreme Court dated 16.8.2010 referred above is being quoted hereinbelow : "After hearing learned Counsel appearing for the petitioner as also learned Counsel appearing for respondent No. 1, we are not inclined to interfere with the impugned order particularly in view of the actions taken by the respondent No. 1 against their own teachers. But the legal issue which is decided by the High Court is, kept open and if at any point of time, any such issue is raised again, the same shall be considered by the appropriate Court, in accordance with law. With the aforesaid observations and directions, the Special Leave Petition is disposed of."
(3.) THE factual matrix of the case is as under : The respondents No. 2 and 3 were teachers in the petitioner college, which is a minority institution. The respondent No. 2 was Head of the Department of Urdu, whereas the respondent No. 3 was Head of the Department of Sociology in the same college. A charge -sheet was issued to the said respondents on 13.8.2009 inter alia communicating the decision of the Governing Body to initiate departmental proceedings against them under Chapter XVIII of the Statutes of Kanpur University read with section 49(o) of State Universities Act, relating to certain acts of misbehaviour and misconduct committed on 2.4.2009 and onwards, whereby the said respondents alongwith certain outside elements were alleged to have been a party to unauthorised and unlawful acts of disgruntled outside elements against the Christ Church College Society, Kanpur and Christ Church College, Kanpur thereby unlawfully interfering in the affairs of institution. It is said that a mob of 10 -15 persons alongwith the said respondents (for short 'delinquents') forcefully entered the college threatening other employees, who were present in the college campus, for dire consequences and shouted slogans against the established authorities of the college. The delinquents broke open locks of the Principal office, the accountant office, teacher -staff room etc. and replaced them with their own locks. Again on 13.7.2009, delinquent respondent No. 3 entered the college campus and went inside the Principal office, where the Principal, City Magistrate and CO. Kotwali, Kanpur were present, and used unparliamentary language against the Principal. Respondent No. 2, on the same date, instigated certain persons, which resulted in a lot of chaos outside the Principal office and acted in an undisciplined manner. On 17.7.2009, the respondent No. 3 held a press conference and issued press notes maligning the college authorities, certain other allegations were also mentioned in the charge -sheet. Such conduct was not expected of them against the college, in which they were themselves serving. The delinquents were required to reply to the charge -sheet, either jointly or separately, by 25.8.2009, to the Supervisor of the Departmental Disciplinary Committee, (for short 'disciplinary committee') constituted by the college Governing Body and also to indicate, if they wanted to be heard in person and to call any witnesses for examination in their defence. The delinquents were further required to appear before the disciplinary committee on the dates, which were to be intimated to them and when they may put up any other requirement, they need for affording them opportunity to defend themselves. It was categorically mentioned that if the two charged teachers did not submit any reply against the charges, it would be presumed that they had nothing to say in writing at that stage, however, they may put in their oral defence or even written submission of defence subsequently, if the disciplinary committee permitted. The receipt of the charge -sheet is not disputed by the delinquents. On 24.8.2009, the delinquents wrote to the Chairman of the disciplinary committee raising objections with regard to the right of the Governing Body headed by Dr. Pervez E. Deen to manage the college. The documents and list of witnesses with reference to the charges contained in the charge -sheet were also demanded, so that they may submit an effective reply. However, there was no specific denial by them of any of the charges levelled against them, though, it was said that it was a bald charge -sheet, therefore, it was void ab initio. On 25.8.2009, the Secretary of the Governing Body communicated the date for holding the inquiry by disciplinary committee, i.e., 30.8.2009, to the delinquents and asked them to appear before the Committee on the said date. The delinquents submitted another letter alleged to be dated 25.8.2009, by which, they, inter alia challenged the constitution of disciplinary committee as also the right of the Governing Body to manage the college and also demanded documents and list of witnesses, which, according to them, had not been supplied to them with the charge -sheet. It is alleged by the delinquents that on 26.8.2009 they submitted a letter addressed to Principal/Secretary of the College raising serious objections regarding the constitution of the disciplinary committee and the inclusion therein of Sri S.P. Lal, Sri Daniel Singh and Sri Vijay Kumar. On 30.8.2009, the meeting of the disciplinary committee took place but the delinquents did not appear before it in spite having been intimated about the said date. The disciplinary committee conducted the inquiry on the said date, examined the evidence, documentary as well as oral. On 30.8.2009 itself, the delinquents were informed by the convener of the disciplinary committee that as they had not appeared before it on 30.8.2009, the Committee after recording evidence and taking on its record, the charge -sheet, the written statement of defence and the other papers received from the Secretary of the college, had adjourned the meeting to 1.9.2009. The delinquents were requested to appear before the Committee on the said date. On 1.9.2009, the Secretary of the Governing Body informed the Chairman of the disciplinary committee that Sri Daniel Singh had expressed his inability to participate in the proceedings on account of his ill health, therefore, Dr. Balwant Singh, Reader, Department of Chemistry had been nominated in his place as a member of the said Committee. Thereafter, on 17.9.2009 again the meeting of the disciplinary committee took place, but the delinquents did not appear before it on the said date also. On 5.10.2009, a letter was issued to the delinquents by the Secretary of the Governing Body mentioning that as they had not appeared before the Committee on the date fixed for inquiry, in spite of notice, the inquiry committee completed its proceedings of examination of witnesses, admission of documents and other relevant documents in this connection, which were produced before the inquiry committee and marked as exhibits and annexures, pages 1 to 404, given in the index of the contents of the proceedings, a copy of which was being sent to them so that whatever defence they may intend to submit in respect of disproving the charges levelled against them should be submitted latest by 12.10.2009 or earlier. The letter also mentioned that if nothing was received from them till 12.10.2009, it would be presumed that they had nothing to say and the proceedings alongwith finding would be submitted to the Governing Body for its action. In response thereto, the delinquents submitted a letter dated 12.10.2009 to the Secretary stating therein that one week's time for submission of reply to the inquiry proceedings running into 405 pages was wholly inadequate and as they had been able to study only 167 pages of the said proceedings, two weeks' further time may be granted to go through the documents and submit their reply by 28.10.2009. Thereafter, no formal communication was received by the delinquents from the petitioner but the fact is that till 28.10.2009, no action was taken against them and on 28.10.2009, a letter was served upon them, which reads as under: "The undersigned has received communication from the Chairman, Departmental Disciplinary Enquiry Committee, that the adjourned meeting of the Enquiry Committee shall take place on October 30, 2009, at 3.00 p.m. in the Principal's Office. The Chairman has indicated that the entire developments to date, right from the date of the receiving of the copy of the Proceedings by the two charged teacher -employees named above, with the requirement that they may use the statements of the witnesses to state anything further to what they have submitted in their written statements earlier, shall be considered. The Committee shall proceed further in the light of the developments from the date of the issue of the letter dated October 5, 2009, sent with a copy of each of the entire Proceedings to the two charged teacher -employees. The Chairman has desired that the two charged teacher -employees named above, be given notice to be present before the Enquiry Committee to assist it and make written/verbal submission in their defence, if they wish to, for the consideration of the Committee. The Chairman has also desired that if they still continue to be absent, the Enquiry Committee shall submit its Findings to the charged teacher -employees and the entire Proceedings including the Findings to the College Governing Body." On 29.10.2009, delinquents submitted a letter to the Secretary of the Governing Body, for the first time, denying the charges levelled against them and contending that they had raised preliminary objections, vide their letter/reply dated 24.8.2009, which had not been considered and decided till then, therefore, the entire proceedings were vitiated. It was also contended that they had been deprived of the right to cross -examine the prosecution witnesses and produce the defence witnesses apart from adducing the written and oral evidence, it was submitted that after disposal of the preliminary objections, they might be granted opportunity to cross -examine the prosecution witnesses and lead their documentary and oral evidence. Apart from the above, no submission was made in the said letter/reply with regard to the charges levelled against them, the evidence collected and supplied to them, both documentary as well as oral. On 30.10.2009, the disciplinary committee again met and conducted inquiry proceedings. As mentioned in the finding submitted to the Governing Body, on the said date, the committee arranged for the presence of all the witnesses to be cross -examined, only with a view to ascertain if both the charged teachers/employees had any valid defence to the charges levelled against them, but they did not appear to avail this opportunity to cross -examine the witnesses also. Therefore, further evidence was closed on the said date. The charged employees did not appear despite having been given several notices through peon book, postal and telephonic communication to attend the proceedings. On 23.11.2009, the disciplinary committee met and examined the entire evidence including all the statements of witnesses, documents produced and exhibits and annexures placed before it and recorded its findings. The said findings were submitted before the Governing Body. On 21.12.2009, a show cause notice was issued to the delinquents alongwith findings/inquiry report so as to enable them to represent against the same. In response thereto, the delinquents submitted their reply on 10.1.2010 making wild allegations without pointing out any perversity in the findings of the disciplinary committee. On 22.2.2010, the Governing Body passed the resolution to terminate the services of the delinquents employees with immediate effect. The said resolution was reported to the Vice Chancellor for further action under proviso to section 35(2). On 25.2.2010, the Secretary of the Governing Body responded to the letter of the delinquents dated 10.1.2010 that despite being given due notice of the proceedings of the disciplinary committee through peon book, speed post and phone to defend themselves, they never availed the opportunity granted to them.;