Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 6189 OF 2019 (Arising out of SLP (Civil) No.32520 of 2017)

Secretary Managing Committee BSMPG College Roorkee   .... Appellant (s)

Versus

Dr. Samrat Sharma & Others         …. Respondent (s)

J U D G M E N T

L.  NAGESWARA  RAO, J.

Leave granted.  

1.  The  judgment  of  the  High  Court  of  Uttarakhand

allowing the Writ  Petition filed  by Respondent  No.1-  Dr.

Samrat Sharma  and setting aside the order of termination

of the services of Respondent No.1 is in challenge in this

Appeal.   The  High  Court  directed  the  reinstatement  of

Respondent No.1 with all consequential benefits.   

  2. The Appellant is a private aided college, affiliated to

Hemwati  Nandan  Bahuguna  Garhwal  Central  University,

Srinagar, Pauri Garhwal (for short “the HNBG University”).

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Respondent No.1 was an Assistant Professor (Hindi) in the

Department of Hindi in the said College. Respondent No.5-

Dr.  (Smt.)  Kamlesh  Sharma  made  a  complaint  to  the

Principal  of  the  College  on  04.09.2012  alleging

misbehavior  by  Respondent  No.1  on  01.09.2012  during

the  meeting  of  the  teaching  staff  of  the  College.   An

explanation was sought from Respondent No.1 which was

submitted on 12.10.2012.   Not  being satisfied with  the

explanation  given  by  Respondent  No.1,  the  Managing

Committee  of  the  College  decided  to  constitute  a

committee  to  enquire  into  the  charges  levelled  by

Respondent No.5 in her letter dated 04.09.2012.  Dr. I.D.

Kansal  and Mr.  K.S.  Sharma,  Members of  the Managing

Committee were requested to conduct an enquiry.   The

statement of Respondent No.5- and other witnesses were

recorded  by  the  Enquiry  Committee.   In  spite  of  the

opportunity given to Respondent No.1 to defend himself,

he did  not  appear before  the Enquiry  Committee.   The

Enquiry Committee came to a conclusion that Respondent

No.1  used  indecent  language  and  behaved  in  an

aggressive manner  in  the staff meeting  on 01.09.2012.

As  Respondent  No.1  was  found  guilty  of  the  charges

levelled  against  him,  the  Enquiry  Committee

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recommended  initiation  of  action  against  Respondent

No.1.  The Enquiry Committee also recommended criminal

prosecution to be launched against Respondent No.1.   

3. On the basis of the recommendations of the Enquiry

Committee,  three  charges  were  framed  against

Respondent No.1 which are as follows:  

“CHARGE NO.01- PARA 04 OF COMPLAINT LETTER DATED 04.09.2012:-

On  01.09.2012  at  10.00  O’clock  in  the morning, the Principal had called a meeting of his entire teaching staff in the Principal room.  At the very same, in your presence, Dr. Samrat Sharma, Assistant Professor, Hindi Department has leveled allegations  against  me with  regard  to  the  time table and he has used very filthy words to me in a very aggressive manner and thus he has behaved me like that without any reason.  The said time table  had  been  prepared  according  to  his consent.   

CHARGE NO.02- PARA 06 OF COMPLAINT LETTER DATED 04.09.2012:-

“Apart  in  your  room,  he  has  conducted  same indecent behavior in the Staff room also.  He has developed such a habit to behave like this with the female teachers.  Such act is generally done

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by  a  person  who  has  lost  his  mental  balance. There is a clear example that his wife Smt. Jayanti Adjariya alongwith his son has left his house and for which cases are going on between them in the Courts at Roorkee, Jhansi, Nainital and Allahabad.

Charge  No.03-  Para  No.7  of  Complaint  Letter Dated 04.09.2012:-

Due  to  this  continuous  insult  and  mental harassment, I, who is a senior most teacher who has  38  years  of  teaching  experience,  and  who has  been  looking  after/  performing  the administrative  duties  and  responsibilities  of  a Vice President while you go on leave, request you to kindly protect my dignity and seniority.”    

4.   Respondent  No.1  was  informed  that  he  should

submit his written statement by 14.02.2014.  Respondent

No.1 was also given an opportunity to produce witnesses

in his defense.  He was also informed that he can cross-

examine the witnesses during the fact-finding enquiry by

a  committee  consisting  of  Dr.  Dushyant  Kumar,  Vice

President  of  the  Managing  Committee  and  Mr.  Vikash

Sharma, Advocate.  The Fact Finding Committee submitted

its report on 14.02.2014 holding Respondent No.1 guilty of

all the three charges.  The Committee recommended the

termination of the services of Respondent No.1 as he was

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found guilty of Sub-Section 17.04 of Section 49(j) of the

First  Statute  of  the  University  of  Hemwati  Nandan

Bahuguna, Garhwal, 1978 (for short “the First Statutes”).   

5. Thereafter,  a  supplementary  charge  sheet  was

issued on 02.07.2014. The following charges were framed

and communicated to Respondent No.1:

“CHARGE NO.1:- You  are  posted  in  this  Non-Governmental

College on the post of Associate Professor and this College  is  affiliated  to  the  H.N.B.  Garhwal University,  Srinagar.   You  have  acted insubordinately and made false complaints against the  Chairman/  Secretary  of  the  Managing Committee  and  also  against  the  Principal,  have written  following  letters  directly  to  the  Director, Higher Education, Uttarakhand, Haldwani:-

1) First Letter dated 04.01.2014 2) Second Letter dated 31.01.2014 3) Third Letter dated 06.02.2014 4) Fourth Letter dated 28.02.2014 5) Fifth Letter dated 01.03.2014 6) Sixth Letter dated 12.04.2014   

The  aforesaid  letters  having  been  sent  by  you directly without any proper channel and the same is in  clear  violation  of  the  Point  No.05  of  the Agreement having been given in Appendix “Gha” of

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the  Garhwal  University  Srinagar  Regulation.   You have  written  letter  to  the  Director  of  Education, Higher  Education,  Haldwani  intentionally,  in  clear disobedience  and  in  violation  of  the  Degree Arth/8(21)/1671/2011-12 dated 05.05.2011 (which contained your signature also) and of which there are  adequate  proof  against  you.   The  Inquiry Committee,  after  perusing  the  entire correspondences, has found you guilty for sending letters directly and without any proper channel to the Director, Higher Education, Uttarakhand.   

CHARGE NO.02:- You  after  hearing  of  the  Appeal  bearing

No.A(HR.)/12074  119(3)/2013  filed  before  the Hon’ble  Information  Commission,  Uttarakhand, Dehradun,  the  Hon’ble  Commissioner  of  the Information Commission Shri Vinod Nautiyal in his disposal order dated 16.09.2013 has found you to be  guilty  for  forging  in  the  bills  towards  the educational  equipments  having  been  purchased from the  grant  amount  received  from the  U.G.C. and  has  directed  the  Public  Information  Officer/ Principal  to  register  a  First  Information  Report against  you  in  the  nearest  Police  Station.   The Public Information Officer/ Principal in compliance of the  directions  of  the  Hon’ble  Information Commissioner,  has  got  registered  a  First Information Report against you with the Kotwali P.S. Gangnahar Roorkee on 12.10.2013 for the offence under Sections 467, 468, 469 and 471 of the Indian

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Penal  Code.   On  12.10.2013,  the  P.S.  Kotwali Gangnahar, Roorkee has registered a case against you  bearing  Crime  Case  No.269/  13  at  Serial No.276/13  under  the  aforesaid  Sections.   The Investigation Officer in the aforesaid criminal case, after recording the statements of the Principal Dr. Vipin  Pratap  Gautam,  Member  of  the  Purchasing Committee Dr. Surjeet Singh, Dr. Vijay Kumar, Shri Vijendra  Singh,  Shri  Sandeep  Poswal,  Shri  Amit Sharma, (Assistant Accountant) and after recording your  statements  also  and obtaining  signatures  of all,  has  filed  charge  sheet  in  the  Court  on 31.10.2013 which is  pending consideration before the said Hon’ble Court.  You in order to save from the  charges  leveled  against  you  with  regard  to forgery  after  having conspired,  the  details  of  the letters which you have written against the Principal, Chairman Managing Committee and the Secretary of the Managing Committee and against me directly to  the  Police  Administration  as  also  to  the Government of Uttarakhand, is given below:- *** ***

Charge  No.3:-  As  per  directions  of  the  Hon’ble Commissioner  of  Information  Shri  Vinod  Nautiyal, after getting registered an FIR against you before the  P.S.  Kotwali  Gangnahar  Roorkee  dated 12.10.2013 against you and on the basis of the said FIR, the police registered a Crime Case No.296/13 and after conducting investigation in respect of the

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said case, charge sheet has been filed before Court on 31.10.2013.   

The case in which you are an accused, against the same  sections  and  with  regard  to  the  same charges,  you  have  been  given  an  application  on 13.5.2014 before the Court of Additional Civil Judge/ S.D./J.M. Roorkee for filing a false case against Shri Manohar  Lal  Sharma,  Chairman,  Managing Committee, Dr. Vipin Pratap Gautam, Principal.  The Members of the Purchasing Committee namely Dr. Surjeet Singh, Dr. Vijay Kumar, Shri Vijendra Singh, Shri Sandeep Poswal, Shri Amit Sharma (Assistant Accountant)  for  making them an accused for  the purpose of registering an FIR under section 156(3) of the Cr.P.C. with P.S. Kotwali Gangnahar, Roorkee. After  receiving  the  report  of  the  Investigating Officer of the P.S. Gangnahar Kotwali, Roorkee, the learned  Judge  i.e.  Additional  Civil  Judge/  S.D.J.M. Roorkee finding the allegations as leveled by you in your  application  filed  before  the  learned  judge, Additional  Civil  Judge/  S.D./JH.M.  Roorkee,  has rejected  your  application  vide  order  dated 26.05.2014.   The  Hon’ble  Judge  has  clearly mentioned/ written in its judgment and order dated 26.05.2014  that  the  report  is  received  from  the concerned Police Station.  According to the report received  from  the  concerned  Police  Station,  in respect  of  the  aforesaid  case,  Crime  Case No.296/2013  under  Sections  467/468/469/471  of the  Indian  Penal  Code  has  been  registered  in

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respect of the aforesaid case in which the applicant Samrat Sharma is an accused and the respondents in  the aforesaid  case are  the complainant  of  the case,  in  which  Charge  Sheet  No.180/2013  dated 31.10.2013 has been sent.”  

6. Respondent No.1 was directed to appear before the

Enquiry Committee, failing which an ex parte decision will

be taken against him.  Responding to the supplementary

charge  sheet  dated  02.07.2014,  Respondent  No.1

submitted  his  explanation  on  04.07.2014.   Respondent

No.1  did  not  appear  before  the  Enquiry  Committee  on

12.07.2014.   The  Enquiry  Committee  found  that  the

charges  levelled  against  Respondent  No.1  were  proved.

The  Enquiry  Committee  recommended  stern  action

against  Respondent  No.1  for  indulging  in  the  acts  of

insubordination,  indiscipline  and  violation  of  the  First

Statutes and the provisions of the U.P. State Universities

Act, 1973 (for short “Universities Act”).  The services of

Respondent  No.1  were  terminated  by  an  order  dated

13.07.2014.  The approval of the Vice Chancellor, HNBGC

University, Srinagar was sought by the BSM (PG) College,

Roorkee (Haridwar)- Appellant herein, which was granted

on 16.09.2014.   

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   7. Respondent  No.1  filed  a  Writ  Petition  in  the  High

Court of Uttarakhand challenging the order of termination

of his services dated 13.07.2014 and the approval granted

by  the  Vice  Chancellor  on  16.09.2014.   During  the

pendency of the departmental enquiry, Respondent No.1

was placed under suspension on 31.01.2014.  The order of

suspension was also assailed by Respondent No.1 in the

Writ Petition.  The High Court allowed the Writ Petition and

set  aside  the  order  of  termination  and  directed

reinstatement of Respondent No.1 and the Management

of  the  College  was  directed  to  pay  the  salary  for  the

period during which he was placed under suspension.  The

High Court was convinced that Respondent No.1 did not

get  sufficient  opportunity  to  defend  himself  in  the

departmental enquiry.  Commenting on the merits of the

allegations against Respondent No.1, the High Court was

of the opinion that sufficient evidence was not available to

hold Respondent No.1 guilty of the charges.  In any event,

the  High  Court  held  that  the  imposition  of  penalty  of

termination  of  service  was  not  commensurate  with  the

allegations made against Respondent No.1.   

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8. Mr. Ajay Veer Pundir, learned counsel appearing for

the  Appellant-  College  submitted  that  the  procedure

prescribed  under  the  Universities  Act  and  the  First

Statutes made thereunder were scrupulously followed by

the  Management  in  conducting  the  enquiry  against

Respondent No.1.  He argued that the High Court ought

not  to  have  interfered with  the  order  of  termination of

services  of  Respondent  No.1  by  re-appreciating  the

evidence which was subject matter of the departmental

enquiry.   He  submitted  that  serious  allegations  of

harassment  were  made  by  Respondent  No.5  against

Respondent  No.1  which  amounted  to  misconduct  under

the  First  Statutes  and  no  lenience  can  be  shown  to

Respondent No.1.  Mr. V.K. Shukla, learned Senior Counsel

appearing for  Respondent No.1 argued that the enquiry

that  was  conducted  against  Respondent  No.1  was  in

contravention of the First Statutes that were framed under

the Universities Act.  According to him, no opportunity was

given  to  Respondent  No.1  to  defend  himself  in  the

enquiry, especially regarding the supplementary charges.

He  submitted  that  within  ten  days  of  making

supplementary  charges  against  Respondent  No.1,  the

order  of  termination  of  his  services  was  passed.  He

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further submitted that the decision of the Management is

vitiated by bias as Respondent No.5 and the Principal of

the Management Committee have conspired to get rid of

Respondent No.1 from the College.     

     9. The  First  Statutes  were  framed  in  exercise  of  the

powers conferred by sub-section (1) of Section 50 of the

Uttar Pradesh State Universities Act, 1973.  Chapter XVII

Part  I  of  the First  Statutes deals  with the Conditions of

Services of Teachers of Affiliated Colleges.  Clause 17.04

of the First Statutes is as follows :  

“17.04. (1) A teacher of an affiliated college (other than a Principal) may be dismissed or removed or his services terminated on one or more of the following grounds: (a) wilful neglect of duty;

(b) misconduct, including disobedience to the orders of the Principal; (c) breach of any of the terms of contract of service; (d)dishonesty  connected  with  the  University  or college examinations; (e) scandalous conduct or conviction for an offence involving moral turpitude; (f) physical or mental unfitness; (g) incompetence; (h) abolition of the post with the prior approval of the Vice-Chancellor.

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(2)  A  Principal  of  an  affiliated  college  may  be dismissed or removed or his services terminated on grounds mentioned in Clause (1) or on the ground of continued mismanagement of the college.   

(3) Except as provided by Clause (4), not less than three months notice or where notice is  given after the month of October, then three months notice or notice  ending  with  the  close  of  the  session (whichever is  longer)  shall  be given on either  side terminating the contract of service or in lieu of such notice, salary for three months (or longer period as aforesaid) shall be paid or refunded, as the case may be: Provided that  where the Management  dismisses  or removes  or  terminates  the  services  of  a  teacher, under Clause (1) or Clause (2) or when the teacher terminates the contract for breach of any of its terms by  the  Management,  no  such  notice  shall  be necessary:

Provided further that the parties will be free to waive the condition of notice, in whole or, in part by mutual agreement.  

(4) In the case of any other teacher appointed in a temporary or officiating capacity his service shall be terminable, by one month’s notice or on payment of salary in lieu thereof, on either side.”

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10. Clause 17.06 of  the First Statutes provides for the

procedure  to  be followed before  a  member  of  teaching

staff of an affiliated College is either dismissed, removed

or  terminated  from  service.   After  a  charge  has  been

framed and communicated to the teacher and action is

proposed to be taken against him, the teacher is entitled

for  an  adequate  opportunity  of  submitting  a  written

statement of his defense, of being heard in-person if he so

desires and of calling and examining such witnesses in his

defense as he may desire.   

11. The only  point  that  arises  for  our  consideration is

whether  the  enquiry  that  was  conducted  against

Respondent No.1 was in conformity with the First Statutes

mentioned above.  A careful examination of the material

on record would disclose that Respondent No.1 was not

given  sufficient  opportunity  to  defend  himself.   The

enquiry  was  conducted  in  three  stages.   Initially,  a

committee  was  constituted  to  conduct  a  preliminary

enquiry into three charges.  On the basis of the report of

the  said  committee,  a  fact-finding  enquiry  was  held

regarding the said three charges.  Later, a supplementary

charge  sheet  was  issued  in  which  fresh  charges  were

communicated to Respondent No.1 on 02.07.2014.  Within

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ten days thereafter, a final report was submitted regarding

the  supplementary  charges  and  an  order  was  passed

terminating  the  services  of  Respondent  No.1  on

13.04.2014.  Though, Respondent No.1 was also guilty in

not utilizing the opportunity that was given to him, the

manner  in  which  the  enquiry  was  conducted  by  the

Management  is  in  clear  violation  of  the  procedure

prescribed under the First Statutes.   

12. We are in agreement with the contentions made by

Mr. Pundir that the High Court committed an error in re-

appreciating  evidence  in  coming  to  the  conclusion  that

the  charges  against  Respondent  No.1  were  not

established.  It is well settled law that it is the decision

making process and not the decision itself which can be

the subject matter of judicial review.  Interference by the

courts can only be in cases where there is no evidence.

Sufficiency of evidence for proof of the charges against

delinquent officers is completely within the domain of the

administrative authority.  Courts cannot re-appreciate the

evidence to come to a different conclusion.  We are afraid

that  the  High  Court  has  transgressed  the  permissible

limits of  judicial  review in holding that  the evidence on

record  did  not  warrant  an  order  of  termination.

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Interference  with  the  penalty  imposed  on  delinquent

officers is permissible only when it shocks the conscience

of  the  court.   We  are  not  dealing  with  any  of  the

submissions made on behalf of the parties relating to the

truth  or  otherwise  of  the  allegations  made  against

Respondent  No.1  as  we  have  held  that  the  procedure

prescribed  under  the  First  Statutes  was  violated  while

conducting the departmental enquiry against Respondent

No.1.   Accordingly,  we affirm the judgment  of  the High

Court by which the order of termination of the services of

Respondent  No.1  was  set  aside.   We  also  uphold  the

direction relating to the entitlement of Respondent No.1 to

claim salary for the period of his suspension.  However,

we are of the opinion that the Appellant- College should

be permitted to conduct a fresh enquiry into the charges

that have been communicated to Respondent No.1, if they

so wish.   

13. The Appeal is disposed of accordingly.              

               ………....................................J.

                                                  [ L.  NAGESWARA  RAO ]

………….................................J. [ HEMANT  GUPTA ]

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New Delhi, August 08, 2019.

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