R. M. Sahai, J. - (1.) -Principal of a Degree College, who was Vice-Chancellor as well for sometime of another University, has assailed correctness of order dated 25th August, 1981 passed by the Chancellor allowing two references u/Section 68 of State Universities Act, against the orders of Vice Chancellor one disapproving resolution of the Committee of Management accepting petitioner's resignation and the other dismissing him from service after enquiry etc.
(2.) IN point of time disciplinary proceedings were initiated first with suspension of petitioner in October, 1977, its revocation by the Vice Chancellor on 7th November, 1977, submission of charge-sheet and appointment of INquiry Officer by the Management on the day the order was revoked, stay of disciplinary proceedings by the Vice Chancellor on 28th August, 1978, setting aside of the order of revocation of Vice Chancellor by the Chancellor on 29th August, 1978, and direction to decide if suspension was valid and in accordance with law, fresh suspension of petitioner on 3rd September, 1978 and the order dated 7th October, 1978 passed by the Vice Chancellor on representation against second suspension order to decide the proceedings within two months resulting in resolution dated 28th January, 1979 dismissing petitioner from service its non approval by the Vice Chancellor on 2nd May, 1979 and direction to reinstate petitioner with immediate effect, as none of the thirty charges established misconduct, embezzlement, wilful neglect of duty or mismanagement. While these proceedings were going on and the petitioner and management were fighting tooth and nail the petitioner was alleged to have resigned on 24th April, 1978 by a letter addressed to President of Managing Committee, who sent the same to the Secretary who accepted it on 3rd May, with effect from forenoon of 4th May, even though he had sent a letter on same day refusing to sanction leave from 2nd May to 5th May, and informed petitioner that matter of his incompetency, lack of interest in college working and disobedience of orders of Secretary shall be put up for necessary action. When the petitioner received the communication about his resignation on 4th May, he immediately sent a telegram to the President that resignation was false and fabricated. He sent a letter to the President and Vice Chancellor as well reiterating that he did not resign and no action may be taken on it. It was also .mentioned that if for some reason it was treated as resignation letter then he was withdrawing it. On next day Registrar of University intimated the Secretary that he was requested to see the Vice Chancellor on 6th May in respect of petitioner's claim that he never resigned. But the Management Committee which was scheduled to meet on 7th May, accepted the resignation even though the item was not on agenda. Against this acceptance petitioner made a representation to the Vice Chancellor who had in the meantime received an application from the Management seeking approval of new Principal. Both the representation of petitioner and application of Management were disposed of by the Vice Chancellor on 18th May, 1978. It was found that the Management Committee failed to produce the original letter of petitioner's resignation even though various opportunities were afforded to it. Therefore, presumption arose that the resignation was forged. It was also held that Secretary could not be held to be appointing authority of a teacher, which included Principal, therefore, he was not competent to accept the resignation. And so far the resolution of Committee of Management was concerned the petitioner having withdrawn the resignation on 5th May it could not be accepted on 7th May. Consequently the orders dated 3rd May and 7th May, passed by Secretary and Management were set aside and the application seeking approval of new Principal was rejected. In reference against the two orders the Chancellor compared the signature of petitioner on photostat copy of the resignation letter with that on representation of petitioner and found that prima-facie both tallied. And as petitioner had not denied his signatures on the resignation letter and had even withdrawn it had to be believed that he tendered his resignation. Having recorded this finding it was held that since resignation was not termination the provision of Section 35 (2) or (3) of the State Universities Act did not apply and the Vice Chancellor was not empowered to interfere. Remedy of petitioner was to approach Tribunal or Arbitrator or Civil Court. It was further held that even though the Secretary had no right to accept the resignation but it could not be withdrawn as the request was to relieve petitioner at earliest and not from a future date. A fresh aspect based on clause (3) of Statute 17.04 was also noticed and it was held that in absence of any provisions for tendering resignation the letter could be considered as notice for terminating contract of service after three months' which was waived by the Management. Therefore, the order of Vice Chancellor was set aside. As regards the disciplinary proceedings the Chancellor found that petitioner did not submit any written statement except denying the charge levelled against him. And since a criminal case had been filed by petitioner against Inquiry officer he should not have been entrusted with inquiry. It was also found that non supply of report and certain documents demanded by petitioner reflected upon fairness and impartiality of inquiry. Therefore, the order of dismissal was liable to be quashed as had been done by the Vice Chancellor but the Management may proceed with fresh inquiry if it so desired in accordance with Statute 17.06 after giving adequate opportunity to petitioner.
(3.) ISSUE of resignation may be examined first as if the finding of the Chancellor in this regard is well founded and petitioner ceased to be Principal of the College with effect from 7th May, 1978 then it may be academic to decide if the direction to Committee of Management to continue disciplinary proceedings it so desired is sustainable in law. Conditions of service of teachers of affiliated Colleges is governed by Section 35 of State Universities Act, 1973. Its subsection (2) provides that, every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice Chancellor and shall not effect unless it has been approved by the Vice Chancellor. The procedure provided for approval which has been construed as a salutary check on the powers of management to dispense with service of a teacher has been applied to, ' to any decision to terminate the service of a teacher, whether by way of punishment or otherwise, ' by sub-section (3) of the same Section. The word ' otherwise ' has been held to be wide enough to include ceasure of employment by resignation in P. K. Mukerji v. Committee of Management, 1984 UP LB EC 183. It was held that resignation also required approval as it was termination within meaning of sub-section (3) of Section 35. The objective of provisions of approval in enactments or rules dealing with educational institutions to protect the interest of teacher has been emphasised by the Courts time and again. Such provisions have been held to act as to check on arbitrary exercise of power by Management. Since they are incorporated for benefit of the teachers who are weaker in the bargain they have been construed liberally so as to advance purpose of their enactment. The construction of sub-section (3) by the bench in Mukerji's case and its extension to resignation as well was in consonance with principle of interpretation. The submission of learned counsel for Management, therefore, to refer it to larger bench to examine the correctness of Mukerji's case is devoid of any merit. Even otherwise the finding appears to be infirm. It is trite saying that man may but circumstances do not lie. It has been mentioned earlier that every step of Management to take action against petitioner was challenged by him and he was leaving no stone unturned to get it revoked and set aside. Yet he is stated to have resigned on 28th April, 1978. This letter in original did not see the light of day either before the Vice Chancellor or Chancellor even though petitioner had been crying hoarse right from the day he was informed by the Secretary that his resignation has been accepted that he never resigned and if there was any document it was fabricated. And yet the Chancellor set aside the presumption drawn by the Vice Chancellor due to non production of letter of resignation by comparing signature of petitioner on photostat copy of resignation letter with signature of petitioner on representation. In absence of original letter the authenticity of which was challenged the procedure adopted by the Chancellor cannot be said to be warranted by law. Even the circumstances did not warrant such finding. The letter of resignation is said to have been sent on 28th April, 1978. It was accepted by the Secretary on 3rd May without any authority. On the every next day the petitioner on receiving its intimation challenged. A day earlier that is, 2nd May he had applied for leave. While rejecting this application the Secretary did not mention a word about resignation by petitioner. In this back ground the production of original letter was a must to allay any doubt about its genuineness. If it was withheld by the Management an adverse inference could be validly drawn against it. Principle of drawing presumption as a matter of law that attaches probative value to specific facts is well established. Where evidence which could have been but was not produced a presumption could be drawn that if it would have been produced it would have been intavourable to the person who withheld it. In absence of any material to rebut the presumption which arose against the Management and was drawn by the Vice Chancellor the Chancellor could not have interfered and set aside the finding on this issue by comparing signature on a photostat copy. It was a procedure contrary to law.;