Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 4794 OF 2019
(arising out of SLP (Civil) No(s). 9527 of 2018)
LAL BAHADUR GAUTAM ...APPELLANT
VERSUS
STATE OF U.P. AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Delay condoned. Leave granted.
2. The appellant, a lecturer in a private unaided college affiliated
to the Chaudhary Charan Singh University (hereinafter referred to
as ‘the CCS University’), Meerut under the Uttar Pradesh State
Universities Act, 1973 (hereinafter referred to as “the Act”), assails
his termination dated 24.04.2017 as being contrary to the
provisions of the Act.
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2019.05.08
19:25:30 IST
Reason:
3. Learned counsel for the appellant submits that the termination
was in violation of Section 35(2) of the Act as no prior approval had
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been taken. The High Court erred in holding that the writ petition
was not maintainable. The earlier order of termination dated
04.06.2015 had been set aside by the ViceChancellor on
16.07.2016 for that reason and as also being in violation of Rule No.
16.06 of the University Regulations. The order had attained finality
in absence of any challenge by the respondent management.
4. Learned counsel for the respondent management submitted
that the writ petition was not maintainable against a private
unaided college as it was not “State” within the meaning of Article
12 of the Constitution. The order of the High Court does not call for
any interference. There can be no enforcement of a contract of
personal service. There was a simple relationship of master and
servant. The departmental proceedings were held in accordance
with law. The managing committee of the college was not a
statutory body. Reliance was placed on Executive Committee of
Vaish Degree College, Shamli and others vs. Lakshmi Narain
and others , (1976) 2 SCC 58.
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5. We have considered the submissions on behalf of the parties.
The High Court held that merely because of affiliation to the CCS
University, the writ petition was not maintainable against a private
unaided college. The order is cryptic, nonspeaking and devoid of
any consideration of the statutory provisions of the Act. The effect
and consequences of the order of the ViceChancellor dated
16.07.2016 has also not been considered.
6. The respondent college terminated the services of the appellant
on 04.06.2015 by a nonspeaking order with immediate effect. The
appellant approached the ViceChancellor who after hearing the
college, held that prior approval not having been obtained under
Section 35(2) of the Act read with Rule No. 16.06 of the University
Regulations, the termination was bad and set it aside. But, because
there were serious allegations of financial misappropriation, liberty
was granted to the management to hold departmental proceedings.
The management accepted the order and initiated departmental
proceedings culminating in a fresh order of termination dated
24.04.2017. The fresh order of termination was again in violation of
the provisions of the Act and the Regulations of the CCS University.
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7. Section 35(2) of the Act in its relevant extract reads as:
| “ | 35. Conditions of service of teachers of | ||||||
|---|---|---|---|---|---|---|---|
| affiliated or associated colleges other than those | |||||||
| maintained by Government or local authority | . | ||||||
| (1) Every teacher in an affiliated or associated | |||||||
| college (other than a college maintained exclusively | |||||||
| by the State Government) | shall be appointed under | ||||||
| a written contract which shall contain such terms | |||||||
| and conditions as may be prescribed. The contract | |||||||
| shall be lodged with the University and a copy | |||||||
| thereof shall be given to the teacher concerned, and | |||||||
| another copy thereof shall be retained by the | |||||||
| college concerned. | |||||||
| (2) 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 ViceChancellor and shall not take effect | |||||||
| unless it has been approved by the ViceChancellor. | |||||||
| XXXXX” |
8. The college being affiliated to the University was bound by the
provisions of the Act with its attendant consequences for non
compliance. The college having accepted the order of the Vice
Chancellor and acted upon the same by holding departmental
proceedings cannot urge that it is bound by one part of the order
and not the other. It cannot have the benefit of the order without
complying with its obligations under the order. A bare reading of the
statutory provision makes it manifest that prior approval of the
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ViceChancellor was mandatory before termination of the appellant.
If the management of the college opined otherwise, it ought to have
challenged the order of the ViceChancellor dated 16.07.2016, if
such a challenge was maintainable. Having allowed the order to
attain finality, it is not open for the college management to now urge
that it was not bound to follow the procedure. The order of
termination dated 24.04.2017 being in teeth of Section 35(2) of the
Act is patently unsustainable.
9. Reliance on Lakshmi Narain (supra) is completely misplaced.
It has no application whatsoever to the present case either on facts
or in law. The order of termination in the said case was dated
29.03.1967 and was made under the provisions of the Agra
Universities Act, 1926 which had no similar provisions as Section
35(2) of the Act. Additionally, the Agra Universities Act, 1926 has
been repealed by Section 74(1)(c) of the Act. It is indeed
unfortunate that the learned counsel for the respondent
management has sought to rely upon a judgment under the
repealed Act. The admitted position in Lakshmi Narain (supra) was
that the management of the college was not bound by the statutes
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and the provisions of the Agra Universities Act, 1926 but was merely
following the same as a matter of convention. Statute 14(A) of the
Agra University Hand Book also did not contain any provisions like
Section 35(2) of the Act.
“Statute 14(A): Each college, already affiliated or
when affiliated, which is not maintained
exclusively by government must be under the
management of a regularly constituted governing
body (which includes managing committee) on
which the staff of the college shall be represented
by the principal of the college and at least one
representative of the teachers of the college to be
appointed by rotation in order of seniority
determined by length of service in the college,
who shall hold office for one academic year.”
10. Before parting with the order, we are constrained to observe
regarding the manner of assistance rendered to us on behalf of the
respondent management of the private college. Notwithstanding the
easy access to information technology for research today, as
compared to the plethora of legal Digests which had to be studied
earlier, reliance was placed upon a judgment based on an expressly
repealed Act by the present Act, akin to relying on an overruled
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judgment. This has only resulted in a waste of judicial time of the
Court, coupled with an onerous duty on the judges to do the
necessary research. We would not be completely wrong in opining
that though it may be negligence also, but the consequences could
have been fatal by misleading the Court leading to an erroneous
judgment.
11. Simply, failure in that duty is a wrong against the justice
delivery system in the country. Considering that over the years,
responsibility and care on this score has shown a decline, and so
despite the fact that justice is so important for the Society, it is time
that we took note of the problem, and considered such steps to
remedy the problem. We reiterate the duty of the parties and their
Counsel, at all levels, to double check and verify before making any
presentation to the Court. The message must be sent out that
everyone has to be responsible and careful in what they present to
the Court. Time has come for these issues to be considered so that
the citizen’s faith in the justice system is not lost. It is also for the
Courts at all levels to consider whether a particular presentation by
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a party or conduct by a party has occasioned unnecessary waste of
court time, and if that be so, pass appropriate orders in that regard.
After all court time is to be utilized for justice delivery and in the
adversarial system, is not a licence for waste.
12. As a responsible officer of the Court and an important adjunct
of the administration of justice, the lawyer undoubtedly owes a duty
to the Court as well as to the opposite side. He has to be fair to
ensure that justice is done. He demeans himself if he acts merely
as a mouthpiece of his client as observed in State of Punjab &
(2016) 6 SCC 1:
Ors. vs. Brijeshwar Singh Chahal & Ors.,
“34.…relationship between the lawyer and his client
is one of trust and confidence. As a responsible
officer of the court and an important adjunct of the
administration of justice, the lawyer also owes a
duty to the court as well as to the opposite side. He
has to be fair to ensure that justice is done. He
demeans himself if he acts merely as mouthpiece of
his client…..”
13. The observations with regard to the duty of a counsel and the
high degree of fairness and probity required was noticed in D.P.
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(2001) 2 SCC
Chadha vs. Triyugi Narain Mishra and others,
221:
“22. A mere error of judgment or expression of a
reasonable opinion or taking a stand on a
doubtful or debatable issue of law is not a
misconduct; the term takes its colour from the
underlying intention. But at the same time
misconduct is not necessarily something
involving moral turpitude. It is a relative term to
be construed by reference to the subjectmatter
and the context wherein the term is called upon
to be employed. A lawyer in discharging his
professional assignment has a duty to his client,
a duty to his opponent, a duty to the court, a
duty to the society at large and a duty to himself.
It needs a high degree of probity and poise to
strike a balance and arrive at the place of
righteous stand, more so, when there are
conflicting claims. While discharging duty to the
court, a lawyer should never knowingly be a
party to any deception, design or fraud. While
placing the law before the court a lawyer is at
liberty to put forth a proposition and canvass the
same to the best of his wits and ability so as to
persuade an exposition which would serve the
interest of his client so long as the issue is
capable of that resolution by adopting a process
of reasoning. However, a point of law well settled
or admitting of no controversy must not be
dragged into doubt solely with a view to confuse
or mislead the Judge and thereby gaining an
undue advantage to the client to which he may
not be entitled. Such conduct of an advocate
becomes worse when a view of the law canvassed
by him is not only unsupportable in law but if
accepted would damage the interest of the client
and confer an illegitimate advantage on the
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opponent. In such a situation the wrong of the
intention and impropriety of the conduct is more
than apparent. Professional misconduct is grave
when it consists of betraying the confidence of a
client and is gravest when it is a deliberate
attempt at misleading the court or an attempt at
practicing deception or fraud on the court. The
client places his faith and fortune in the hands of
the counsel for the purpose of that case; the
court places its confidence in the counsel in case
after case and day after day. A client dissatisfied
with his counsel may change him but the same
is not with the court. And so the bondage of
trust between the court and the counsel admits
of no breaking.
xxx xxx xxx
24. It has been a saying as old as the profession
itself that the court and counsel are two wheels
of the chariot of justice. In the adversarial
system, it will be more appropriate to say that
while the Judge holds the reigns, the two
opponent counsel are the wheels of the chariot.
While the direction of the movement is controlled
by the Judge holding the reigns, the movement
itself is facilitated by the wheels without which
the chariot of justice may not move and may
even collapse. Mutual confidence in the
discharge of duties and cordial relations between
Bench and Bar smoothen the movement of the
chariot. As responsible officers of the court, as
they are called – and rightly, the counsel have an
overall obligation of assisting the courts in a just
and proper manner in the just and proper
administration of justice. Zeal and enthusiasm
are the traits of success in profession but
overzealousness and misguided enthusiasm have
no place in the personality of a professional.
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xxx xxx xxx
26. A lawyer must not hesitate in telling the
court the correct position of law when it is
undisputed and admits of no exception. A view
of the law settled by the ruling of a superior
court or a binding precedent even if it does not
serve the cause of his client, must be brought to
the notice of court unhesitatingly. This
obligation of a counsel flows from the confidence
reposed by the court in the counsel appearing for
any of the two sides. A counsel, being an officer
of court, shall apprise the Judge with the correct
position of law whether for or against either
party.”
14. That a higher responsibility goes upon a lawyer representing
an institution was noticed in State of Rajasthan and another vs.
(2014) 14 SCC 77:
Surendra Mohnot and others,
“33. As far as the counsel for the State is
concerned, it can be decidedly stated that he has
a high responsibility. A counsel who represents
the State is required to state the facts in a
correct and honest manner. He has to discharge
his duty with immense responsibility and each of
his action has to be sensible. He is expected to
have higher standard of conduct. He has a
special duty towards the court in rendering
assistance. It is because he has access to the
public records and is also obliged to protect the
public interest. That apart, he has a moral
responsibility to the court. When these values
corrode, one can say “things fall apart”. He
should always remind himself that an advocate,
while not being insensible to ambition and
achievement, should feel the sense of ethicality
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and nobility of the legal profession in his bones.
We hope, that there would be response towards
duty; the hallowed and honoured duty.”
15. In view of the conclusion that the termination is in teeth of the
provisions of the Act, it is set aside. The appellant is held entitled to
reinstatement. The respondent management is not precluded from
proceeding afresh in accordance with law from the stage of
irregularity. In that eventuality the ViceChancellor shall consider
any request for approval on its own merits in accordance with law
without being influenced by any observation in the present order.
The question of back wages, if any, shall abide by any such decision
of the ViceChancellor.
16. The appeal stands disposed of.
.……………………….J.
(Arun Mishra)
………………………..J.
(Navin Sinha)
New Delhi,
May 08, 2019.
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