k IN THE HIGH COURT GF JUDICATURE AT BILASPUR (C-G-) 9 yr vii 1¢¢, f2QQ2 ¢tLUheL uaLO] Dhue E8 Lat h ¢ ? “qvd abmut 6D years Piinc1pai, Gavernment Gajanand AgrawaT'Co%1eg§g BHATAPARA (C.G,) ?. .$ Q; I" ReSpcnden' 1, Govt. of Chhattiqqarh g“ Tuluhgh tue PLI cipa; Secretar $aptt at U¢qher Educat;on, Techrlhal EHucatlmn, Man Hoval 91 nlng & Technology Ha1p1)r (L .Ln) 5. Harish'Mishra / Q/n SunderlaT govt ‘ GdJ4udnd AqLdwcLl Cullege \Lzue1LHu ~Tw R/0 Balbhadra Ward Behind Petrol Pumy Bhatapara (F G.) ‘ v 1 Devi Charan Dubev / Z4 Cuhmu. S$luuei , ‘ Higher Education, ovt. f ChhattiSgarh HAiyuR {0;9.) Secretary t0 the Chie£ Minister Govt. of Chhattisgarh, DKS Bhawan Raipur {C.G.) 4. Shri Shiv Ratan Sharma, S[o Nat Kmown MLA, Bhatapara (C.G.) E" » 97. Ravishankar University 1 Raipur C: Ga Through Lhe RegisLrar. 2etitic-za zer‘Mtiale 22 of the Censttuton eriorari £ Mandamm tc. with ather orders nd ec ‘ ’ a dirtions. ’3 i 1 .g 7 , ( ; J/ uzd/ 5 ii cf india for issuance of aggrgriate writs of Ct e ? J HIGH C %&TOF x JUDICATURE > AT ¥ BIMSPUR £CHHATTI56ARH) Wrif Pe‘l'H'ion No. 1982 of 2002 xf ‘ SaroJ Dubey ‘ J ‘ -Versus- 1‘ Govt of Chhcm‘isgarh and oThers POST FOR ORDER ON 26*“ MARCH, 2004 H Sd/- l L.C.BHADOO ‘ g Judge ‘ ‘ W M i ~—~t ’ k O3 20 k . 9W ‘3 Premm: GARE BILASPUR HIGH COURT OF JUDICATURE CHHATTIS Samaj Dubcy -VcrSus- Govt. of Chhattisgarh and othem Shri Shashank Dubey, Nos. '1 to 3. ORDEg As get L.C. Bhatioo J. (Passed on l LE;March 2004) rking‘ as Principal of Govt. Gajanand 1. The mtitioxler who was WO writ petitioti under Article Coilege, Bhatapara has prefermd this her transfer order passed by the Respondent. {VIP/ HE1200'1 dated y the Respondent No.1 a11d for quashing the 226 of the Constitution of India questioning No. Fl/Sa/HE/2002 datcd 17.92002 No.1 and also the Ordm“ N0. 93/968 8.1.2002 passed b notice dated 18.4.2002. a «L Show cause 2. The brief facts leading to filing of thi petitioner was working as Principal Bhatapara since '21“ October, respondent No.5 namely, the College; he assaulted and Spit Chandrawanshi, Sports Ogicer on 25 made a report about the inc petitioner on the. same. day of the respondent No.5 co respondent No.5 and also requested members of the 3% Council called on ‘2 P/Q. The petitioner to attend the meeting of the 6.9.200 1 Vide Annexure also made a report to the Station H \ s writ petition axe that the of Govt. Gajanand College, 1997. Her case is that the Harish Mishra was a regular student in on the face of one P. C. 3.2001. That Sports Officer ident, which is ‘Annexure P/ 1. The wrote a letter to the father] guardian mplaining about the conduct of the OuS€ Shri Kanak Tiwari, counsel for the petitioner. Deputy Advocate General for the Respondent Shli BM. Rao, Advocate for Respondent No.5. Writ Petition No. 1932 of 2002 Ofiicer, RS. Bhatapara on the same day about the incident, and requested for registration of a case against Sonu Sharma, Sunil Shanna and the mspondsnt No.5. Copy of the. lcttctr to the police is med as Annexure P/ 3. 011 26.9.2001, the mEETing of 1116 StaIT Council was converted under the Chairmanship of the petitioner and the Staff Council unanimously resolved to expel the Respondent No.5 from the college. The attendance of the members of the Staff Council and resolution has been filed as Annexure P/4. In spite ofthe letter Annexure P/2 issued by the petitioner to the father/ gflammn of the Respondent No.5, the father or guardian of the Respondent No.5 did not attend the meeting on 26.9.2001. However the police registered a criminal case against the Respondent No.5 and others for commission of the offences punishable under sections 294, 323, 506 and 448 read with section 34 of the Indian Penal Code. One Dr. Ram Kumar Behar, Principal of Govt. Sanskrit College, Raipur was appointed as Enquiry Officer by the Respondents No. 1 and 2 to enquire into the matter, althgh no formal communication was sent to the petitioner by the respondents. The aforesaid Enquiry Otiicer informed about his arrival on telephone and the said Sports Ohicer submitted his written report to the Enquiry Ofdcer on 13.10.2001 (Annexure P/5). Prior to that the President of the Jan Bhagidari Samiti of the college sent a letter dt. 27.9.2001 (Annexure P/6) to the petitioner'n which the President condemned te behaviour of the Respondent No.5. Since the college is affiliated to the Ravishankar University, aipur, which has been created tuider the M.P. Universities Act, 1973 and Section 37 authorizes the University to frame statutes, ordinances e. accordgly the oinance No.7 has been made by the said University whic is annexed as Annexure P/7. The petitioner after careful and well considered deliberation ove the matter ordered the expulsion of the Respondent No.5 from the College, which became eEective. After the expulsion of Reondent No. from the College he started complaining against the petitioner in the general public, \ ou d h R tc in rd h r sp 5 9/ educational world, the student community of the College and most appropriately the politicians having clout on the Respondent No.1, and false, fn'volous and fictitious complaints were made against the petitioner to the Respondents No. 1 and 2 by the Respondents No. 4 and 5 to exert pressure on the petitioner to readmit the Respondent No.5. As if nothing untoward had happened with regard to the afonesaid incident the petitioner received letter dt. 13.11.2001 (Annexure P/8) and letter dated 8. 1.2002 (Annexure P/ 9) fmm the Joint Secretary of it" The respondent No.4 approached the State Government that: is why the Respondent No. l wrote a letter dated 13. 11.2001 to the petitioner by which the Govt. communicated its decision to the petitioner holding interalia that the expulsion order of the Respondent No.5 may be cancelled after obtaining unqualified apologz and undertaking for not committing any indiscipline in future. The petitioner replied to the aforesaid letter on 29. 11.2001 and quoted the aforesaid provisions of the aforesaid Ordmance Vide Clause 6 wherein the powers of the Head of Institution i.e. the petitioner being the Principal have been described and that it was not possible for the petitioner to have condoned the aforesaid respondent No.5. In the meantime, on account of the pressure of the Respondents No. 4 and 5 the respondent No.1 on 7.1.2002 amended clause 13 of the Ordinance No.7 by adding sub—clause (7) to the Clause 13 made underpSection 37 of the Madhya Pradesh Universities Act. 1973 whereby a provision for appeal to the State Government against the decision‘of the Principal] Head of the Institution was inserted and immediately thereafter vide order dated 8.1.2002 in View of the amendment considered the case of the Respondent No.5 and communicated to the petitioner that the State Govt. has decided to annul the order of the petitioner of expulsion of the Respondent No.5. But that amendment was not approved by the Co~ordination Committee (Executive Committee) of the University, and neither the Respondent No.5 had submitted unqualified apolog and undertaking nor that earlier direction communicated to the petitioner on 13.11.2001 was set aside it. the Respondent No. 1. t a the respondents. The petitioner informed the respondent No.1 that as per the instructions no letter of apolog or undertakmg was furnished by the Respondent No.5, therefore, there was 110 question to Ie—admit him. However, in spite of the petitioner‘s sticking to the RuleS with regard to the conduct of mspondent No.5, the Reepondent No. 1 State proceeded against the petitioner invokirig Rule 14 of the MP. (Chhattisgarh) Civil Services (Classificaijon, Control and Appeal Rules) 1966 and gave a Show cause notice dt. 18.4.2002 (Annexure P/ 12) and the pegtioner was chaiged with msubordination of The ordeigf Vof the respondent] State quoting therein that the petitioner did not obey the contents of the letter dt. 13.11.2001. Alongwith the charge- sheet/ Show cause notice a letter dated 216.2002 written by the Respondent No.5 was also Sent in which he made complaint against. the petitioner but did not. explain his conduct about non- tendering of the unqualified apologr or undertaking. That all of a sudden the peh‘tioner was transferred against the policy and principles by the Respondents No. 1 and 2 vide order dated 17.9.2002 (Annexum P/ 16), even though there was no administrative exigency but it was actuated due to the malice and acute malafide of the. respondent No.4 in the aid and assistance of the respondent No. 5 ultimately pextolating in the decision making process of the State. The transfer of the petitioner was due to the extraneous considerations, which tantamount a punishment to the petitioner and is illegally impennissihle as stipulated in the C.C.A. Rules. Return has been med on behalf of the Respondents No. 1 to 3 in which it has been mentioned that the transfer was on the gouncl of administrative exigency, the petitioner was working since last five years in the college and moreover, the petitioner has already been relieved, therefore, the petition has become infructuous. There were complaints against the petitioner, therefore, she was transferred on the ground of administrative exigency. As far as quashing of the charge~sheet dated 18.4.2002 is concerned, the facts which have been narrated in support of this relief, would be available 'to the petitioner in the enquiry against her. She can raise these points before the Enquiiy Officer. It is wrong to say r mil.” new. / w.» aw @ that the amendment has not been carried out by following fhe procedure. It was approved by the Clo—ordination Committee of the University. As far a3 allegatians regarding assault 011 the sports omcer are matter of records and the police has registered some oifences. It is memioned that the petitioner has given opportunity to the guardian of respondent No.5, but Brajesh Mishra elder brother of respondent No.5 was not allowed to participate in the proceeding of the Stad‘ Council Meeting, Mishra or his brother were not heard before his expulsion. The allegations against respondent No.4 are denied, as thel'same are not hased on records. There are allegations and counter allegations as far as assault is concerned. The important consideration for re-adruission of the student was only to the extent that he is able to complete last year’s studies. When the petitioner was asked to obtain an unqualified apology from respondent No.5 and allow him to attend his classes, the petitioner rather than complying with the directions of the Government and His Excellencv the Governor, flouted it and questioned the authorities. The way the petitioner acted in questioning the authorities after improperly issuing the expulsion order justified the action of issuing show cause notice against her. Therefore, the petition be dismissed. Further the respondents denied all the allegations mentioned in the petition. Similar return has been hled on behalf of respondent No.5 and he has also denied the allegations of any assault or spit on the face of the Sports Ofticer and he has said that he has been falsely implicated in the criminal case. The resolution of the Staff Council to expel the petitioner was not unanimous. Prior to this an enquiry committee constituted by the petitioner to enquire into the conduct of respondent No.5, but that committee could not take any decision and did not make any recommendation, respondent No.5 was expelled from the College, without any opportunity of healing to the Respondent no.5 or his guardian. He has further denied the fact that the M.L.A. supported respondent No.5. The respondent No.5 was ready to apologize to the petitioner unconditionally. But, she refused to see or to talk to respondent or to receive apology letter. Therefore, respondent "/ tkv ‘ ; ¢ e hati sent his apalogy letters to the petitioner by regi$tered post. Copies of apology letters are AnnexureSvR/ 2 and. R] 3. 10. I have heard Shri Kallak Tiwari, leaxned counSel for the petiiioncr, Shri Shashank Dubcy, Deputy Advccatc General for the Statefrespondents 1 to 3 and Shri B. M. Rao, learned counsel for respondent No.5. 1 1. Mr. Kanak Tiwari argued that the petitioner was transferred by a malaflde order due to pressure exerted by respondent No.4 who \ was a sitting M.L.A., as respondent No.5 assaulted andf‘sbit on the face of Mr. P.C. Chandrawanshi, the Sports Oil'xcer, on 25-9— 2001 as a result of which respondent No.5 was expelled from the College. A criminal case was also registered against him. Thereafter, respondent No.5 approached the State Government from where the Joint Secretary of the State Government issued a communication dated 13—11—2001 whereby the petitioner was asked to recall the order of expulsion and to re-admit respondent No.5 after taking an apology and an undertaking from him that in future he shall not indulge in any indiscipline. As respondent No.5 did not tender any apology or submit any undertaking, therefore, the order of expulsion could not be mealled‘ Respondent No.4, who was the sitting M.L.A., in connivance with respondent No.5 started exerting pressure on the Government and respondent No.4 also raised the question against the petitioner in the Assembly as a result of which the State without following the legal procedure amended Clause—13 of Ordinance No.7 and "I‘sub—clause (7) was added to Clause-13 of the Ordinance 7 empowering the State Government to take decision as an Appellate Authority and the said amendment was canied out on 7—1-2002 and the appeal of respondent No.5 was allowed whereby the expulsion order of respondent No.5 was set-aside without heating the petitioner. As respondent No.5 did not tender apologl or submit an undertaking, therefore, expulsion order was not recalled and ultimately, as a result of which by malande action and bias the respondent] State transferred the petitioner by the impugned order dated 17—9-2002, as at that time the transfer season was over and after obtaining approval from the \ Chief Minister, the petitioner was transferredW manner. The transfer was not on the ground of administrative exigency. 12. Similarly, the petitioner was served with Show cause nou’ce with charge sheet dated 18-4-2002 which was alsu igsucd on account of malatide and bias, and also on account of the pressure exerted by respondents 4 and 5 and the amendment was carried out even without seeking approval of the Co-ordinah'on Committee of the University and all above exercise was colourable exercise. Since, above actions of respondents are arbitrary, issuec§7fwith bias and malande intention, therefore, they are liable to be quashed. However, Mr. ’Tiwaii did not press rest of the prayers of the petih'on. On the other hand, Mr. Dubey learned Deputy Advocate General argued that the charge of malice, bias and malafide is Without any basis. The petitioner was transferred on the ground of administrative exigency and the amendment in the Ordinance No.7 of Madhya Pradesh Vishwavidyalaya Adhiniyam was carried out after following the procedure and only after getting the approval nnm His Excellency the Governor. Even Co—ordination Committee of Pandit Ravishankar Shukla University also approved the same amendment. The charge sheet dated 18-4— 2002 was served upon her on account of her act of insubordination and not complying with the Government’s order. Leained counsel for respondent No.5 argued that the petitioner levelled false allegations against him and the order was passed Without giving'an opportunity of hearing. In response to the notice issued by the petitioner (Annexure-P/ 2) his elder brother namely, Brajesh Mishra came to the Colllege to meet the Principal. Neither Brajesh Mishra was allowed to attend the Stan Council meeting nor the Principal met him. He further argued that respondent No.5 tried to meet the Principal and submit his unconditional apology and undertaking, but the Principal did not meet him. Respondent No.5 had to send his unconditional apology and undertaking by the registered post. 15. It is settled , law that the judicial review lies against the administrative action of an authority of the State only when the v @ action under chnHFnge was taken on account of bias, malaikie and malice or on extraneous considerations, and if the u‘ansfer of an employee is based on malaflde or contlaly to the statutory rules only raising the grounds in the petition would not be sufiicient, but the petitioner has to establish those grounds by some documentary evidence, 16. As has been held by the Hon’ble Apex Court in the matter of STATE OF PUNJAB Versus V. K. KHANNA AND OTHERS mported in (2001) 2 Supreme Court Cases 330 that: “The concept of fairness in administrative action has it” been the subject—matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the court and no strait—jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness and on the issue of ascertainment. of meaning of reasonableness, common English parlance referred to as What is in contemplation of an ordinary man of prudence similarly placed it is l i“ L the appreciation of this common man’s perception in its proper perspective which would prompt the court to determine the situation as to whether the saine is otherwise reasonable or not.” It has been further held that: “Whereas fairness is synonymous with reasonableness bias stands included within the attributes and broader purview of the word “malice” which in common acceptation means and implies “spi " or “ill will”. Mere general statements will not be suhicient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was a bias or a mala fide move which resulted in the miscarriage ofjustice.” It was further held that: - “The test of bias is as to Whether there is a mere apprehension of bias or them is a real danger of bias and it is on this score that the surrounding circumstances must and ought t0 be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias, administxative action cannot be sustained. If on the other hand allegations” pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore, would not arise,” PARTHABARATHI Versus STATE OF ANDHRA PRADESH reported in (1974) 3 SUPREME COURT CASES 459 the Hon‘ble Apex Court has held that: In the matter of S. “The tests of “real likelihood” and “reasonable suspicion” are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle thatjustice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiiy; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring onicer will be prejudiced against the delinquent. The Court will not inquire whether he was ‘really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is suKmient to quash the decision.” Therefore, in View of the above law laid down by the Hon’ble Apex Court before quaehing of any administrative action of the State i.e. transfer order or issuance of the charge sheet to the petitioner the real tests for exercising the power of judicial review is that the Court is required to take a decision as to whether in the facts and circumstances of the case the petitioner has been able to plead and establish that the impugned mders were passed on account of bias, malaiide, ill will or malice or for extraneous considerations. 19. Now, coming to the facts of the present case, as per the admitted case, the petitioner was working as Principal, Govt. Gajanand Agrawal College, Bhatapara since 21% October 1997 and on 25th September 2001 some incident took place in the office room of Mr. P.C. Chandrawanshi, Sports Officer of the college and against which Mr. Chandrawanshi made a complaint to the petitioner regarding misconduct and misbehaviour of respondent No.5 and in turn the petitioner, on the same day, lodged the report of the incident with the police station and the police registered the case against the respondent No.5 along with two other associates for commission of the offence under Sections 294, 323, 506 and 448 read with Section 34 of the I.P.C.. The petitioner also gave notice to the father] guardian of respondent No.5 to come and explain the conduct of respondent No.5 on 26- 9—2001. ’Fhe contention of the petitioner is that in response to that notice guardian/father of respondent No.5 did not appear before he; whereas, the defence of respondent No.5 is that on the next day i.e. 26-9-2001 his elder brother namely, Brajesh Mishra went to school to meet the Principal, but the principal did not meet him nor his brother was allowed to participate in the Staff Council meeting. 20. On the other hand, the Government’s stand is that since the petitioner had already completed 5 years as a Principal of the College, therefore, on the administrative exigency she was transferred and moreover, there were complaints against the )4 petitioner. Therefore, after getting the appral from the Education Minister and the Chief Minister the petitioner was transfelred on the ground of adminisative exigency. They have further denied that the petitioner was transferred on account of malaiide. In this onnection Shri S.P. Trivedi, Secretary/Commissioner, Government of Chhattisgarh, Higher Edcation Department, D.K.S. Bhawan, Mantrayala, Raipur and Shri K. K. Chakravarli, Principal Secretary, Government of Chhattisgarh, Higher Education Department, D.K.S. Bhavan, Mantralaya, Raipur, have tiled their atiidavits wherein the-7'have caegorically stated that the petitioner was working as a Principal since last five years and there were more than one complaint agt her that is why she was transfened. Allegations of malafide against the authority are false. The respondents in support of their return have fid one of the complaints (Annexure-R/ 1) in which one Arun Kumar, President, Block Congress Committee, sent a comp to the Education Minister regarding the conduct of the petitioner i which it was written that on 24-7-2002 a meeting of members of Janbhagidaii Samiti and the principal was called in connection with the plantation and during the meeting some discussions took place regarding encroachment in which the principal did not behave properly. In this connection, if we look into the petition and the documents annexed therewith, the petitioner in the petition has mentioned that respondent No.5 not only abused the Sports fficer but he also spit o he face of Sports Oilicerjwhereas, if we look into the comp made by the Sports Ofhcer (Annexure—P/ 1), it has been mentioned in the complaint that respondent no.5 used filthy and abusive languge and. after chewing the ‘Gutkha’, he spit in the cher. It has nowhre been mentioned in the comaint that respondent No.5 spit on the face of Mr. P.C. Chandrawanshi, Sprts Onicer, therefore, this fact has been mentioned in the petition in an exaggerated manner. It has further been mentioned in the petition that the father/guardian of respondent No.5 was invited on 26-9-2001 but they did’not meet the Principal whereas, respondent No.5 in his return has specifically stated that in response to the not ov tr c u z 3' t ains le laint n O n t laint a amb e pl o ic, h1$ brother Bmjesh Mishm came to meet the Principal, but the