ASHOK KUMAR DAS & ORS. v. UNIVERSITY OF BURDWAN & ORS. [2010] INSC 190 (16 March 2010)
Judgement
A. K. PATNAIK, J.
This is an appeal against the judgment and order dated 08.08.2002 of the Division Bench of the High Court of Calcutta in MAT No.2604 of 2001 and CAN No.1624 of 2001 filed by some members of the non-teaching staff of the University of Burdwan [For short `the University'].
2. The facts very briefly are that promotions to different grades of non-teaching staff of the Burdwan University were 2 being done on the basis of seniority. On 26.06.1995, the Executive Council of the University considered the principle of promotion as enunciated in the Government Order dated 17.10.1985 and resolved that criteria of `Seniority-cum- Efficiency' as enunciated in the aforesaid Government Order dated 17.10.1985 will be followed for promotion to different grades of non-teaching staff of the University. The Executive Council of the University in its meeting on 26.06.1995 also resolved the manner in which the efficiency of a candidate for promotion will be considered along with seniority for promotions to different grades. For the first promotion, efficiency of the employee was to be determined on the basis of recording in his personal file and the report received from the Controlling Officer of the candidate; for the second promotion, 50% weightage will be given to efficiency, out of which 25% would be allotted for work performance and 25% would be allotted to a written test for ascertaining the subject competence of the candidate and for the third promotion, the efficiency was to be determined on the basis of recording in the personal file and the report of the Controlling Officer. The 3 Resolution of the Executive Council of the University taken in its meeting on 26.06.1995 was to be implemented with immediate effect.
3. Aggrieved by the Resolution of the Executive Council of the University, some of the appellants filed the Writ Petition being C.O. No.17139 (W) of 1995 and a learned Single Judge of the High Court of Calcutta allowed the writ petition in part and set aside the Resolution of the Executive Council of the University taken on 26.06.1995 and directed the University to re-frame its guidelines for promotion strictly in accordance with the Government Order dated 17.10.1985 in the light of the observations made in the judgment and to give promotion to the candidates on the basis of the Government Order dated 17.10.1985 after re-framing the guidelines.
4. The University challenged the judgment of the learned Single Judge before the Division Bench of the High Court of Calcutta and the Division Bench held in the impugned judgment and order that under Section 21 (xiii) of the Burdwan University Act, 1981 the Executive Council of the University was empowered to determine, with the approval of 4 the State Government, the terms and conditions of service of non-teaching staff of Colleges other than Government Colleges, but no approval of the State Government had been taken to the Resolution of the Executive Council of the University adopted in its meeting held on 26.06.1995. By the impugned judgment and order, the Division Bench of the High Court of Calcutta directed the University to send the proposal in the Resolution of the Executive Council of the University adopted on 26.06.1995 to the State Government for its approval and further directed that in case the State Government approves the proposal, the University will undertake the exercise of promotion of their staff. Pursuant to the impugned judgment and order of the Division Bench, the proposal was sent to the State Government and the State Government by its order dated 10.10.2002 has approved the Resolution of the Executive Council of the University adopted on 26.06.1995.
5. The contention raised before us by the learned counsel for the appellants was that the Resolution of the Executive Council of the University adopted on 26.06.1995 will be effective only from 10.10.2002 when the State Government 5 approved the Resolution and will not apply to any promotions made prior to 10.10.2002 because under Section 21 (xiii) of the Burdwan University Act, 1981 the Executive Council of the University could determine the terms and conditions of the service of the non-teaching staff of the Colleges other than Government Colleges with the approval of the State Government and not otherwise. Relying on the decisions of this Court in T. R. Kapur & Ors. v. State of Haryana &
Ors. [AIR 1987 SC 415], Prem Kumar Verma & Anr. v.
Union of India & Ors. [(1998) 5 SCC 457], Union of India v.
S. S. Uppal & Anr. [(1996) 2 SCC 168], Kulwant Kumar Sood v. State of H. P. & Anr. [(2005) 10 SCC 670] and High Court of Delhi & Anr., Etc. v. A. K. Mahajan & Ors. [(2009) 12 SCC 62], learned counsel for the appellants submitted that the Resolution of the Executive Council of the University adopted on 26.06.1995 and approved by the State Government on 10.10.2002 cannot, therefore, apply to promotions to vacancies which have occurred prior to 10.10.2002. Learned counsel for the Intervenors supported the aforesaid stand of the appellants.
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6. Learned counsel for the respondents Nos. 1 to 3, on the other hand, submitted that Section 21 (xiii) used the expression "approval of the State Government" and not "prior approval of the State Government" and it has been held by this Court in U. P. Avas Evam Vikas Parishad & Anr. v. Friends Co-operative Housing Society Ltd. & Anr. [(1995) Supp.(3) SCC 456] and High Court of Judicature for Rajasthan v. P.
P. Singh & Anr. [(2003) 4 SCC 239] that when an approval is required, an action holds good and only if it is disapproved it loses its force. He further submitted that promotions made on the basis of Resolution of the Executive Council of the University adopted on 26.06.1995, therefore, hold good and now that the State Government has approved the Resolution of the Executive Council of the University adopted on 26.06.1995 by order dated 10.10.2002, the promotions made on the basis of the Resolution dated 26.06.1995 of the Executive Council of the University hold good and cannot be set aside by this Court.
7. In Black's Law Dictionary (Fifth Edition), the word "approval" has been explained thus: "the act of confirming, 7 ratifying, assenting, sanctioning, or consenting to some act or thing done by another." Hence, approval to an act or decision can also be subsequent to the act or decision.
8. In U. P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:
"6. This Court in Life Insurance Corpn. of India v.
Escorts Ltd. [(1986) 1 SCC 264], considering the distinction between "special permission" and "general permission", previous approval" or "prior approval" in para 63 held that: "We are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act."
Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1)."
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9. Following the decision in U. P. Avas Evam Vikas Parishad (supra), this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in para 40:
"When an approval is required, an action holds good and only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained.
(See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)."
10. Section 21 (xiii) of the Burdwan University Act, 1981 is quoted herein below:- "21. Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions:
(i) to (xii) ........................
(xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff."
The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of 9 the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise.
11. We, therefore, hold that promotions to different grades of non-teaching staff made by the University on the basis of the principles laid down in the Resolution of the Executive Council of the University adopted on 26.06.1995 are valid as 10 the Resolution has been approved by the State Government on 10.10.2002. This appeal is without any merit and is dismissed with no order as to costs.
..........................J.
(Markandey Katju) ..........................J.
(A. K. Patnaik) New Delhi, March 16, 2010.
L.I.C. OF INDIA & ANR. v. RAM PAL SINGH BISEN [2010] INSC 191 (16 March 2010)
Judgement
Deepak Verma, J.
1.Ignorance is a bliss, especially in the vast field of law, stands established from the narration of facts of this appeal as would fully expose it. Against findings of fact vide judgment and decree recorded by Additional District Judge No.2, Ajmer in Civil Suit No. 93 of 1982 (10/80), decided on 28.5.1993, confirmed in S.B. First appeal No. 178 of 1993 by learned Single Judge of the High Court of Judicature of Rajasthan at Jaipur and further affirmed in Special Appeal (Civil) No. 42 of 1996 by Division Bench of the said Court, decided on 30.9.2005, unsuccessful appellants/ defendants are before us, challenging the same on variety of grounds.
2.Needless to say the facts unfolded before us from the C.A. No.893 of 2007 2 record as well as during the course of hearing reveal a sorry state of affairs as to the manner in which suit had been contested in the trial court by the appellants herein, abutting gross negligence and callous manner, not even adhering to the provisions of the Code of Civil Procedure and the Indian Evidence Act, yet challenging the same before this Court, even after having lost from all courts.
3.Thumb-nail sketch of the facts of the case are as under:
4.Respondent herein original plaintiff was appointed by the appellants/defendants on probation as a Development officer on 5.4.1964. He was confirmed on the said post on 1.4.1966. It is not in dispute that his service conditions were regulated by Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter shall be referred to as "Staff Regulations") framed in exercise of powers conferred under clause (b) of sub-section (2) of Section 49 of Life Insurance Corporation Act, 1956 (hereinafter referred to as the "Act").
5.Charge sheet dated 16.4.1974 imputing six charges was served on him. He was also placed under suspension.
Supplementary charge sheet was also served on him on 21.10.1974. Mr. R.S. Maheshwari was appointed as Inquiry C.A. No.893 of 2007 3 Officer, who after completion of inquiry proceedings furnished his report to Disciplinary Authority on 29.01.1976. On the basis of this, respondent was served with show-cause notice on 23.2.1976 stating inter-alia that in view of the fact that some of the serious charges stood proved against him, why order of dismissal from service be not passed against him.
6.Respondent submitted his reply to the show cause notice on 02.04.1976, pointing out irregularities committed during the course of inquiry by the Inquiry Officer. His categorical case in reply was that he has not been given adequate, proper, reasonable and sufficient opportunity of hearing during the domestic inquiry.
Therefore, the whole inquiry stood vitiated on the principles of natural justice. It deserves to be quashed and no action on such an inquiry report can be taken against him.
7.However, without taking note of the submissions of the respondent, appellants by non speaking order and further without disclosing any opinion, on the basis of which respondent was held guilty of charges levelled against him, arrived at a conclusion for his dismissal from service vide order dated 11.5.1976.
8.Feeling aggrieved and dissatisfied, the respondent was C.A. No.893 of 2007 4 constrained to prefer a departmental appeal under Regulation 40 of Staff Regulations but that too met the fate of dismissal vide order dated 20.12.1976.
9.He then submitted further mercy appeal before the Chairman of LIC but without any favourable result as the same came to be dismissed on 12.10.1977.
10.Feeling aggrieved by the aforesaid orders passed by appellants herein, respondent as plaintiff was constrained to file a suit, as an indigent person before Additional District Judge No.2, Ajmer, for declaration that the departmental inquiry proceedings culminating in order of dismissal from service, the appellate order, and further order passed by the Chairman of the appellant- Corporation as null and void. Consequently, he be held entitled for reinstatement in service with all consequential benefits. The learned trial Judge was pleased to grant permission to respondent-plaintiff to contest the suit as an indigent person.
11.Appellants herein as defendants, filed written statement, inter alia, denying that no proper or sufficient opportunity was afforded to the respondent.
They further contended that despite grant of sufficient opportunity, respondent took undue adjournments on various earlier dates or had remained absent, and C.A. No.893 of 2007 5 thereafter deliberately remained absent from the inquiry on 5.1.1976, thereby compelling the Inquiry Officer to proceed ex-parte against him. Thus, even after grant of several opportunities, he cannot legitimately contend that inquiry was hit by the principles of natural justice.
12.Thus, in general, they have denied averments of the plaint in toto and submitted that the suit being mis- conceived deserves to be dismissed with costs.
13.On the strength of the pleadings of the parties, trial court was pleased to frame six issues. The main and pertinent issue was with regard to the fact whether action of the appellants resulting in respondent's dismissal from service, rejection of appeal and further representation, was in violation of the principles of natural justice, if so, then to what reliefs respondent was entitled to.
14.Before proceeding further, it is pertinent to mention here that neither copy of Inquiry Report was made available to respondent nor it was disclosed in the show cause notice as to on what premise finding of guilt was recorded by Inquiry Officer or by the Disciplinary Authority while order of dismissal came to be passed against him.
C.A. No.893 of 2007 6 15.To prove his averments in the suit, respondent- plaintiff tendered himself in the witness box and proved his case as also documents filed in support thereof.
Surprisingly enough, appellants herein did not lead any oral evidence, yet some of the documents filed by appellants were exhibited, probably under misconception of law that they were not disputed in Court by respondent. It is also necessary to mention here that appellants had also not served any notice of admission or denial of documents on the respondent during trial as contemplated under Order XII Rule 2 of the Code of Civil Procedure (for short,`CPC').
16.After appreciating the evidence available on record, trial court was pleased to decide the issues in favour of the respondent-plaintiff, holding therein that there was complete violation of principles of natural justice inasmuch as no reasonable, proper and sufficient opportunity was afforded to him to defend himself in the departmental enquiry. Similarly, the appellate order was passed in a mechanical manner as also the order on representation of the respondent by Chairman. In the result, the Trial Court passed a decree in favour of respondent, quashing and setting aside order of dismissal from service with further direction to reinstate him C.A. No.893 of 2007 7 alongwith all consequential benefits including payment of salary for the intervening period.
17.Against this judgment and decree pronounced by trial court, appellants were constrained to file regular first appeal before learned single judge of the High Court which also came to be dismissed by him on 28.5.1993. Not being satisfied with the same, appellants carried Special Appeal before the Division Bench of the said High Court which also came to be dismissed on 30.9.2005. Hence, this appeal after grant of leave, by the defendants, having lost from all the three courts.
18.We have accordingly heard Mr. P.S. Patwalia, Mr. K.
Ramamoorthy, learned Senior Counsel with Mrs. Indra Sawhney, learned counsel for the appellants and Ms.
Chandan Ramamurthi, learned counsel for respondent and have critically examined the records.
19.It is pertinent to mention here that even though oral evidence lead by respondent plaintiff is not on record, but on certified copy thereof, being supplied to us by learned counsel for appellants, we have categorically gone through the same. It may be mentioned herein that in the same, there was not even a whisper of suggestion made to the plaintiff that he had appeared in the office on 5.1.1976 to collect his suspension allowance yet on C.A. No.893 of 2007 8 being informed by the inquiry officer, that his inquiry too was fixed for the said date, therefore, he should come to attend it, on which respondent had informed the Inquiry Officer that he would appear, after some time along with his witnesses. In other words, even the defence that has been pleaded and set up by the appellants in their written statement was not put forth to the respondent, while he was in the witness box.
20.Thus, the question that arises for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits.
21.Despite our persistent requests made to the learned counsel appearing for the appellants they have not been able to show compliance of Order XII Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof.
22.Order XII, Rules 1 and 2 appearing in the Code of Civil Procedure reads as thus:
"ORDER XII ADMISSIONS C.A. No.893 of 2007 9
1. Notice of admission of case. - Any party to a suit may give notice, by his pleading, or othewise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents. - Either party may call upon the other party to admit, within seven days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, what- ever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense."
23.It is also necessary to mention here that Rule 2A of Order XII of the CPC deals with the situation where notice of admission as contemplated in Order XII Rule 2 of the CPC has been served but is not denied then the same shall be deemed to have been admitted. Similarly, Rule 3A of the aforesaid Order grants power to the Court to admit any document in evidence, even if no notice has been served. The aforesaid provisions of law have been brought in the Code vide Amendment by Act No. 104 of 1976, w.e.f. 1.2.1977.
24.Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits. Thus, no advantage thereof could be accrued C.A. No.893 of 2007 10 to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked.
25.No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do. Appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus looking to the matter from any angle, it is fully established that appellants had miserably failed to prove and establish their defence in the case.
26.We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry C.A. No.893 of 2007 11 the case of the appellants any further and much to the prejudice of the respondent.
27.It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law.
Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law.
That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.
28.It is also worthwhile to mention here that one of the complainant Rattan Lal who was examined as witness during the departmental Inquiry was not cross-examined by respondent as he was not afforded proper opportunity in this regard.
29.Learned counsel for the appellants has strenuously submitted before us that on 5.1.1976, respondent deliberately, intentionally and with oblique motives remained absent from the Departmental Inquiry proceedings as on the same very day he had come to the office to collect his dues, was then informed about the proceedings fixed for the same day but he still remained absent. The said order sheet is neither signed by the respondent nor was this defence put up to him when he was C.A. No.893 of 2007 12 in the witness box in cross-examination.
30.From the narration of aforesaid facts and law, we are of the considered opinion that the courts have committed no error in coming to the conclusion that respondent was denied opportunity of hearing, that being so, whole proceedings stand vitiated by non-adherence to the principles of natural justice.
31.Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.
32.Learned counsel for the appellants Mr. P.S. Patwalia in his usual, polite yet firm vehemence contended that looking to the serious allegations levelled against him, the order of the Trial Court directing reinstatement with full back wages, which stood confirmed by Appellate Courts, would amount to rewarding a dishonest officer.
But looking to the manner in which the case was conducted in the Trial Court, nothing can be done to grant any relief to the appellants. Respondent has been able to C.A. No.893 of 2007 13 successfully prove that there was denial of opportunity to him in the Departmental Enquiry. In this view of the matter, all subsequent actions taken thereto, would automatically fail.
33.In this view of the matter, we are of the opinion that the courts below committed no error in decreeing the suit of the respondent.
34.It may further be noted that respondent has now retired in the year 2000, after having attained age of superannuation. Thus, the question of his re- instatement does not arise. It could only be a case of some monetary benefit to him. In view of his superannuation, it will neither be fit nor proper to direct a fresh inquiry to be conducted against him.
35.Thus, the appeal being devoid of any merit and substance is dismissed. Appellants to bear the cost of the litigation throughout.
36. Counsel's fee Rs.10,000/-.
......................J.
[B.SUDERSHAN REDDY] ......................J.
[DEEPAK VERMA] March 16, 2010, C.A. No.893 of 2007 14 New Delhi.
