LAL BAHADUR GAUTAM versus STATE OF U.P. AND OTHERS on 8 May 2019

[2019] 7 S.C.R. 389

LAL BAHADUR GAUTAM

v.

STATE OF U.P. AND OTHERS

(Civil Appeal No. 4794 of 2019)

MAY 08, 2019

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Service Law:

Termination of service – Of a lecturer of a private unaidedcollege, affiliated to an University created under a statute –Propriety of – Service of the appellant initially terminated by a non-speaking order – Set aside by Vice Chancellor’s order dated16.7.2016 being violative of s. 35(2) of Universities Act and grantingliberty to the College to initiate departmental proceedings – Collegeafter initiating departmental proceedings passed fresh order oftermination without prior approval as per s. 35(2) and Rule No.16.06 of University Regulations – Writ petition challenging thetermination was dismissed by High Court as not maintainable –Appeal to Supreme Court – Held: The college being affiliated to theUniversity was bound by the provisions of the Act with its attendantconsequences for non-compliance – As per section 35(2) of theUniversities Act prior approval of the Vice Chancellor wasmandatory before terminating the services of the appellant – Thetermination order being in the teeth of s. 35(2) is patentlyunsustainable – Uttar Pradesh State Universities Act, 1973 – s. 35(2)– Chaudhary Charan Singh University Regulations – Rule No.16.06.

Judiciary:

Justice delivery system – Reliance on a judgment based onrepealed Act (statute) – Held: Reliance on the judgment based onrepealed Act is akin to relying on an overruled judgment – Even ifsuch action is negligent, could be fatal by misleading the courtleading to erroneous judgment – Such action would also result in

389

A

B

CDEF

G

Awaste of judicial time of the Court – Failure in that duty is a wrongagainst the justice delivery system – It is duty of the parties andtheir Counsel to double check and verify before making anypresentation to Court – It is also for the Court to consider whethera particular presentation before the Court has occasionedBunnecessary waste of court time.

Advocate/Advocates:

Role of Advocate – Held: As a responsible officer of the Courtand an important adjunct of the administration of justice, a higherCresponsibility goes upon a lawyer representing an institution – Heowes a duty to the Court as well as to opposite side – He cannot actas a mere mouthpiece of his client – He has to be fair to ensure thatjustice is done.

Disposing of the appeal, the CourtD

HELD: 1.1 The order of the High Court is cryptic, non-speaking and devoid of any consideration of the statutoryprovisions of the Uttar Pradesh State Universities Act, 1973. Theeffect and consequences of the order of the Vice-Chancellor dated16.07.2016 has also not been considered. [Para 5] [383-G]E

1.2 The college being affiliated to the University was boundby the provisions of the Act with its attendant consequences fornon-compliance. The college having accepted the order of theVice-Chancellor and acted upon the same by holding departmentalFproceedings cannot urge that it is bound by one part of the orderand not the other. It cannot have the benefit of the order withoutcomplying with its obligations under the order. A bare reading ofthe statutory provision i.e. s. 35(2) of the Act makes it manifestthat prior approval of the Vice-Chancellor was mandatory beforetermination of the appellant. If the management of the collegeGopined otherwise, it ought to have challenged the order of theVice-Chancellor dated 16.07.2016, if such a challenge wasmaintainable. Having allowed the order to attain finality, it is notopen for the college management to now urge that it was not bound to follow the procedure. The order of termination dated24.04.2017 being in teeth of Section 35(2) of the Act is patentlyunsustainable. [Para 8] [394-F-H; 395-A]

1.3 The appellant is held entitled to reinstatement. Therespondent management is not precluded from proceeding afreshin accordance with law from the stage of irregularity. In thateventuality the Vice-Chancellor shall consider any request forapproval on its own merits in accordance with law without beinginfluenced by any observation in the present order. The questionof back wages, if any, shall abide by any such decision of the Vice-Chancellor. [Para 15] [399-A-B]

2.1 Notwithstanding the easy access to informationtechnology for research today, as compared to the plethora oflegal Digests which had to be studied earlier, reliance was placedby the respondent Management upon a judgment based on anexpressly repealed Act by the present Act, akin to relying on anoverruled judgment. This has only resulted in a waste of judicialtime of the Court, coupled with an onerous duty on the judges todo the necessary research. Though it may be negligence also,but the consequences could have been fatal by misleading theCourt leading to an erroneous judgment. [Para 10] [395-F-H]

2.2 Simply, failure in that duty is a wrong against the justicedelivery system in the country. Over the years, responsibilityand care on this score has shown a decline. It is time that theCourt takes note of the problem, and considers such steps toremedy the problem. It is duty of the parties and their Counsel,at all levels, to double check and verify before making anypresentation to the Court. Time has come for these issues to beconsidered so that the citizen’s faith in the justice system is notlost. It is also for the Courts at all levels to consider whether aparticular presentation by a party or conduct by a party hasoccasioned unnecessary waste of court time, and if that be so,pass appropriate orders in that regard. After all court time is to A

B

C

D

E

F

G

Abe utilized for justice delivery and in the adversarial system, isnot a licence for waste. [Para 11] [396-A-C]

2.3 As a responsible officer of the Court and an importantadjunct of the administration of justice, the lawyer undoubtedlyowes a duty to the Court as well as to the opposite side. He hasBto be fair to ensure that justice is done. He demeans himself ifhe acts merely as a mouthpiece of his client. A higherresponsibility goes upon a lawyer representing an institution.[Paras 12 and 14] [396-D; 398-E]

CExecutive Committee of Vaish Degree College, Shamliand others v. Lakshmi Narain and others (1976) 2 SCC58 : [1976] 2 SCR 1006 ; State of Punjab & Ors. v.Brijeshwar Singh Chahal & Ors., (2016) 6 SCC 1 :[2016] 4 SCR 685 ; D.P. Chadha v. Triyugi NarainMishra and others, (2001) 2 SCC 221 : [2000] 5 Suppl.DSCR 345 ; State of Rajasthan and another v. SurendraMohnot and others, (2014) 14 SCC 77 : [2014] 6 SCR191 – relied on.

From the Judgment and Order dated 31.05.2017 of the High Courtof Allahabad in C.M.W.P. No. 25599 of 2017.G

Braj Kishor Mishra, Vikram Patralekh, Raj Kishor Choudhary,Advs. for the Appellant.

Konark Tyagi, Sanjay Kumar Tyagi, Ajay Kumar Pandey, Advs.for the Respondents.H

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. Delay condoned. Leave granted.

2. The appellant, a lecturer in a private unaided college affiliatedto the Chaudhary Charan Singh University (hereinafter referred to as‘the CCS University’), Meerut under the Uttar Pradesh State UniversitiesAct, 1973 (hereinafter referred to as “the Act”), assails his terminationdated 24.04.2017 as being contrary to the provisions of the Act.

3. Learned counsel for the appellant submits that the terminationwas in violation of Section 35(2) of the Act as no prior approval hadbeen taken. The High Court erred in holding that the writ petition wasnot maintainable. The earlier order of termination dated 04.06.2015 hadbeen set aside by the Vice-Chancellor on 16.07.2016 for that reason andas also being in violation of Rule No. 16.06 of the University Regulations.The order had attained finality in absence of any challenge by therespondent management.

4. Learned counsel for the respondent management submittedthat the writ petition was not maintainable against a private unaidedcollege as it was not “State” within the meaning of Article 12 of theConstitution. The order of the High Court does not call for anyinterference. There can be no enforcement of a contract of personalservice. There was a simple relationship of master and servant. Thedepartmental proceedings were held in accordance with law. Themanaging committee of the college was not a statutory body. Reliancewas placed on Executive Committee of Vaish Degree College, Shamliand others vs. Lakshmi Narain and others, (1976) 2 SCC 58.

5. We have considered the submissions on behalf of the parties.The High Court held that merely because of affiliation to the CCSUniversity, the writ petition was not maintainable against a private unaidedcollege. The order is cryptic, non-speaking and devoid of any considerationof the statutory provisions of the Act. The effect and consequences ofthe order of the Vice-Chancellor dated 16.07.2016 has also not beenconsidered.

6. The respondent college terminated the services of the appellanton 04.06.2015 by a non-speaking order with immediate effect. Theappellant approached the Vice-Chancellor who after hearing the college, A

B

CD

E

F

G

H

Aheld that prior approval not having been obtained under Section 35(2) ofthe Act read with Rule No. 16.06 of the University Regulations, thetermination was bad and set it aside. But, because there were seriousallegations of financial misappropriation, liberty was granted to themanagement to hold departmental proceedings. The managementaccepted the order and initiated departmental proceedings culminatingBin a fresh order of termination dated 24.04.2017. The fresh order oftermination was again in violation of the provisions of the Act and theRegulations of the CCS University.

7. Section 35(2) of the Act in its relevant extract reads as:

C“35. Conditions of service of teachers of affiliated orassociated colleges other than those maintained byGovernment or local authority. - (1) Every teacher in anaffiliated or associated college (other than a college maintainedexclusively by the State Government) shall be appointed under awritten contract which shall contain such terms and conditions asDmay be prescribed. The contract shall be lodged with theUniversity and a copy thereof shall be given to the teacherconcerned, and another copy thereof shall be retained by thecollege concerned.

(2) Every decision of the Management of such college to dismissEor remove a teacher or to reduce him in rank or to punish him inany other manner shall before it is communicated to him, bereported to the Vice-Chancellor and shall not take effect unless ithas been approved by the Vice-Chancellor.

XXXXX”

F

8. The college being affiliated to the University was bound by theprovisions of the Act with its attendant consequences for non-compliance.The college having accepted the order of the Vice-Chancellor and actedupon the same by holding departmental proceedings cannot urge that itis bound by one part of the order and not the other. It cannot have theGbenefit of the order without complying with its obligations under theorder. A bare reading of the statutory provision makes it manifest thatprior approval of the Vice-Chancellor was mandatory before terminationof the appellant. If the management of the college opined otherwise, itought to have challenged the order of the Vice-Chancellor dated16.07.2016, if such a challenge was maintainable. Having allowed theH

order to attain finality, it is not open for the college management to nowurge that it was not bound to follow the procedure. The order oftermination dated 24.04.2017 being in teeth of Section 35(2) of the Actis patently unsustainable.

9. Reliance on Lakshmi Narain (supra) is completely misplaced.It has no application whatsoever to the present case either on facts or inlaw. The order of termination in the said case was dated 29.03.1967 andwas made under the provisions of the Agra Universities Act, 1926 whichhad no similar provisions as Section 35(2) of the Act. Additionally, theAgra Universities Act, 1926 has been repealed by Section 74(1)(c) ofthe Act. It is indeed unfortunate that the learned counsel for the respondentmanagement has sought to rely upon a judgment under the repealedAct. The admitted position in Lakshmi Narain (supra) was that themanagement of the college was not bound by the statutes and theprovisions of the Agra Universities Act, 1926 but was merely followingthe same as a matter of convention. Statute 14(A) of the Agra UniversityHand Book also did not contain any provisions like Section 35(2) of theAct.

“Statute 14(A): Each college, already affiliated or when affiliated,which is not maintained exclusively by government must be underthe management of a regularly constituted governing body (whichincludes managing committee) on which the staff of the collegeshall be represented by the principal of the college and at leastone representative of the teachers of the college to be appointedby rotation in order of seniority determined by length of service inthe college, who shall hold office for one academic year.”

10. Before parting with the order, we are constrained to observeregarding the manner of assistance rendered to us on behalf of therespondent management of the private college. Notwithstanding theeasy access to information technology for research today, as comparedto the plethora of legal Digests which had to be studied earlier, reliancewas placed upon a judgment based on an expressly repealed Act by thepresent Act, akin to relying on an overruled judgment. This has onlyresulted in a waste of judicial time of the Court, coupled with an onerousduty on the judges to do the necessary research. We would not becompletely wrong in opining that though it may be negligence also, butthe consequences could have been fatal by misleading the Court leadingto an erroneous judgment.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A11. Simply, failure in that duty is a wrong against the justice deliverysystem in the country. Considering that over the years, responsibility andcare on this score has shown a decline, and so despite the fact thatjustice is so important for the Society, it is time that we took note of theproblem, and considered such steps to remedy the problem. We reiteratethe duty of the parties and their Counsel, at all levels, to double checkBand verify before making any presentation to the Court. The messagemust be sent out that everyone has to be responsible and careful in whatthey present to the Court. Time has come for these issues to beconsidered so that the citizen’s faith in the justice system is not lost. It isalso for the Courts at all levels to consider whether a particularCpresentation by a party or conduct by a party has occasioned unnecessarywaste of court time, and if that be so, pass appropriate orders in thatregard. After all court time is to be utilized for justice delivery and in theadversarial system, is not a licence for waste.

12. As a responsible officer of the Court and an important adjunctDof the administration of justice, the lawyer undoubtedly owes a duty tothe Court as well as to the opposite side. He has to be fair to ensure thatjustice is done. He demeans himself if he acts merely as a mouthpieceof his client as observed in State of Punjab & Ors. vs. BrijeshwarSingh Chahal & Ors., (2016) 6 SCC 1: - E“34.…relationship between the lawyer and his client is one oftrust and confidence. As a responsible officer of the court and animportant adjunct of the administration of justice, the lawyer alsoowes a duty to the court as well as to the opposite side. He has tobe fair to ensure that justice is done. He demeans himself if heacts merely as mouthpiece of his client…..”F13. The observations with regard to the duty of a counsel and thehigh degree of fairness and probity required was noticed in D.P. Chadhavs. Triyugi Narain Mishra and others, (2001) 2 SCC 221: - “22. A mere error of judgment or expression of a reasonable opinionGor taking a stand on a doubtful or debatable issue of law is not amisconduct; the term takes its colour from the underlying intention.But at the same time misconduct is not necessarily somethinginvolving moral turpitude. It is a relative term to be construed byreference to the subject-matter and the context wherein the termis called upon to be employed. A lawyer in discharging his H

professional assignment has a duty to his client, a duty to hisopponent, a duty to the court, a duty to the society at large and aduty to himself. It needs a high degree of probity and poise tostrike a balance and arrive at the place of righteous stand, moreso, when there are conflicting claims. While discharging duty tothe court, a lawyer should never knowingly be a party to anydeception, design or fraud. While placing the law before the courta lawyer is at liberty to put forth a proposition and canvass thesame to the best of his wits and ability so as to persuade anexposition which would serve the interest of his client so long asthe issue is capable of that resolution by adopting a process ofreasoning. However, a point of law well settled or admitting of nocontroversy must not be dragged into doubt solely with a view toconfuse or mislead the Judge and thereby gaining an undueadvantage to the client to which he may not be entitled. Suchconduct of an advocate becomes worse when a view of the lawcanvassed by him is not only unsupportable in law but if acceptedwould damage the interest of the client and confer an illegitimateadvantage on the opponent. In such a situation the wrong of theintention and impropriety of the conduct is more than apparent.Professional misconduct is grave when it consists of betrayingthe confidence of a client and is gravest when it is a deliberateattempt at misleading the court or an attempt at practicingdeception or fraud on the court. The client places his faith andfortune in the hands of the counsel for the purpose of that case;the court places its confidence in the counsel in case after caseand day after day. A client dissatisfied with his counsel may changehim but the same is not with the court. And so the bondage oftrust between the court and the counsel admits of no breaking.

xxx

xxxxxx

24. It has been a saying as old as the profession itself that thecourt and counsel are two wheels of the chariot of justice. In theadversarial system, it will be more appropriate to say that whilethe Judge holds the reigns, the two opponent counsel are the wheelsof the chariot. While the direction of the movement is controlledby the Judge holding the reigns, the movement itself is facilitatedby the wheels without which the chariot of justice may not moveand may even collapse. Mutual confidence in the discharge of AB

C

D

EF

G

H

A

B

C

D

E

F

G

H

duties and cordial relations between Bench and Bar smoothenthe movement of the chariot. As responsible officers of the court,as they are called – and rightly, the counsel have an overallobligation of assisting the courts in a just and proper manner in thejust and proper administration of justice. Zeal and enthusiasm arethe traits of success in profession but overzealousness andmisguided enthusiasm have no place in the personality of aprofessional.

xxx

xxxxxx

26. A lawyer must not hesitate in telling the court the correctposition 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 abinding precedent even if it does not serve the cause of his client,must be brought to the notice of court unhesitatingly. This obligationof a counsel flows from the confidence reposed by the court inthe counsel appearing for any of the two sides. A counsel, beingan officer of court, shall apprise the Judge with the correct positionof law whether for or against either party.”

14. That a higher responsibility goes upon a lawyer representingan institution was noticed in State of Rajasthan and another vs.Surendra Mohnot and others, (2014) 14 SCC 77: - “33. As far as the counsel for the State is concerned, it can bedecidedly stated that he has a high responsibility. A counsel whorepresents the State is required to state the facts in a correct andhonest manner. He has to discharge his duty with immenseresponsibility and each of his action has to be sensible. He isexpected to have higher standard of conduct. He has a specialduty towards the court in rendering assistance. It is because hehas access to the public records and is also obliged to protect thepublic interest. That apart, he has a moral responsibility to thecourt. When these values corrode, one can say “things fall apart”.He should always remind himself that an advocate, while not beinginsensible to ambition and achievement, should feel the sense ofethicality and nobility of the legal profession in his bones. Wehope, that there would be response towards duty; the hallowedand honoured duty.”

LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS[NAVIN SINHA, J.]

15. In view of the conclusion that the termination is in teeth of theprovisions of the Act, it is set aside. The appellant is held entitled toreinstatement. The respondent management is not precluded fromproceeding afresh in accordance with law from the stage of irregularity.In that eventuality the Vice-Chancellor shall consider any request forapproval on its own merits in accordance with law without beinginfluenced by any observation in the present order. The question of backwages, if any, shall abide by any such decision of the Vice-Chancellor.

16. The appeal stands disposed of.

Kalpana K. Tripathy

Appeal disposed of.

A

B

C

D

E

F

G

H