# C/M, Gautam Buddha Inter College, & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 1070
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-11
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-gautam-buddha-inter-college-anr-v-state-of-u-p-ors-43962
- **Pages:** 6

## Text

1070 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ C No.- 23529 Of 2016

C/M, Gautam Buddha Inter College, & Anr. ...Petitioners
Versus
State Of U.P. & Ors. . ..Respondents

Counsel for Petitioners:
Sri Bhawesh Pratap Singh, Sri Irshad Ali

Counsel for Respondents:
C.S.C., Sri Mool Chandra Maurya

Education Law -- U.P. Intermediate Education Act, 1921 -- Section 16-D(4) --
Appointment of Authorized Controller -- Opportunity of Show Cause -- Natural Justice --
State Government as Decision-Making Authority -- Committee of Management of Gautam
Buddha Inter College, Aliganj, District Etah challenged the order dated 11 April 2016 passed by the
State Government under Section 16-D(4) of the U.P. Intermediate Education Act, 1921, approving
the appointment of an Authorized Controller to manage the affairs of the institution on a
recommendation by the Director of Education (Madhyamik) -- show cause notices under Section 16D(3) dated 01.10.2015 and 23.11.2015 were issued to the petitioner regarding financial
irregularities, which went unreplied -- Director then recommended appointment of an Authorized
Controller -- short question: whether the State Government before passing an order under Section
16-D(4) is bound to give an opportunity to the Committee of Management to show cause -- Held: a
plain reading of sub-section (4) of Section 16-D is silent regarding the requirement of notice to be
served upon the Committee of Management before the State Government passes its order --
however, it would be incumbent upon the State Government to issue notice to the aggrieved party
before passing the order -- the decision-making authority under Section 16-D(4) is the State
Government and not the Director -- the civil consequence of superseding the Committee of
Management flows from the order of the State Government and not from the recommendation of
the Director -- the aggrieved party has every right to show cause before the State Government
contending that the recommendations made by the Director are either incorrect or per se perverse -
- whether the Committee appeared before the Director in response to the notice under sub-section
(3) or not is immaterial.

Education Law -- Natural Justice -- Audi Alteram Partem -- Principles of Natural Justice
Read Into Statute -- Section 16-D(4) U.P. Intermediate Education Act, 1921 -- Civil
Consequence -- Article 14 of the Constitution -- Held: rules of natural justice are not
embodied rules -- they may be implied from the nature of the duty to be performed under a statute
-- what particular rule of natural justice should be implied depends upon the facts and
circumstances, the framework of the statute and the purpose and effect of the exercise of pow er --
unless a statutory provision either specifically or by necessary implication excludes the application
7 All. C/M, Gautam Buddha Inter College, & Anr. Vs State Of U.P. & Ors.
1071
of principles of natural justice, the requirement of giving reasonable opportunity of being heard
before an order is made is generally read into the provisions of the statute, particularly where the
order has adverse civil consequences -- the principle holds good irrespective of whether the power
conferred is administrative or quasi-judicial -- if the requirement of opportunity to show cause is not
read into Section 16-D(4), it would be open to challenge as being violative of Article 14 of the
Constitution of India on the ground that the power conferred on the competent authority would be
primarily arbitrary.

Writ Petition Allowed -- Order Set Aside -- Direction to Pass Fresh Order After
Opportunity to Show Cause -- Impugned order dated 11 April 2016 passed by the State
Government in exercise of power under Section 16-D(4) of the U.P. Intermediate Education Act,
1921 appointing an Authorized Controller set aside -- State Government directed to pass a fresh
order after giving the petitioner an opportunity to show cause -- petitioners undertook to file
representation/objection within six weeks from the date of the order -- State Government expected
to pass the order within eight weeks thereafter -- any orders passed pursuant to the impugned
order shall abide by the decision of the State Government in pursuance of this order -- no costs.

Case Law Discussed:
1. A.K. Kraipak and others v. Union of India and others, (1969) 2 SCC 262
2. Income Tax Officer and others v. Madnani Engineering Works Ltd., Calcutta, (1979) 2 SCC 455
3. Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I and another, (2008) 14
SCC 151
4. Kesar Enterprises Ltd. v. State of U.P., 2011 (4) AWC 3909 (SC)
5. C.B. Gautam v. Union of India, (1993) 1 SCC 78
6. Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311

(Delivered by Hon'ble Suneet Kumar, J.)

1. Committee of management, Gautam Buddha Inter College, Aliganj, District Etah
has approached this Court assailing the order dated 11 April 2016 passed by the State
Government in exercise of power conferred under Section 16-D (4) of the Uttar Pradesh
Intermediate Education Act, 19211, whereby, appointment of authorized controller to
manage the affairs of the institution was approved.

2. The short question for determination is as to whether the State Government
before passing the order under Section 16-D(4) is bound to give an opportunity to the
Committee to show cause.

3. In the facts of the present case, a show cause notice dated 1 October 2015 was
issued purportedly under Section 16-D(3) by the Director of Education (Madhyamik),
Allahabad2 to the second petitioner to show cause regarding financial irregularities.

4. It appears that the petitioner Committee failed to submit reply, therefore, another
notice dated 23 November 2015 was issued which also went unreplied, consequently, the
Director recommended to the State Government that an authorized controller be appointed
to manage the institution vide communication dated 18 February 2016. Pursuant thereof,
1072 INDIAN LAW REPORTS ALLAHABAD SERIES

State Government by the impugned order dated 11 February 2016, passed under Section
16-D(4) appointed an authorized controller for a period of six months.

5. It is sought to be urged by the learned counsel for the petitioner that it would be
mandatory for the State to have put the Committee of Management to notice before passing
an order under Section 16D(4), as it eventually entails civil consequence.

6. Sri Ashish Singh, learned counsel appearing for the caveator and the Standing
Counsel would contend that sub-clause (4) of 16-D does not provide for any notice to the
Committee of Management. The State Government is required to merely pass an order on
the recommendation of the Director.

7. Rival submissions fall for consideration.

8. The facts are not in dispute, the scheme of the provision contained in Section 16D(1) provides that Director may cause a recognized institution to be inspected from time to
time, sub-clause (2) would provide that the Director may direct the management to remove
any defect or deficiency found during the inspection or otherwise, whereas, sub-clause (3)
provides the eventualities upon which the Director may refer the case of the institution to
the Board for withdrawal of recognition of such institution or issue notice to the
Committee of Management to show cause within thirty days from the date of receipt of
such notice why an order under sub-section (4) should not be made. Sub-section (4) would
provide that where the Committee of Management of an institution fails to show cause
within the time allowed under sub-section (3) or within such extended time as the Director
may from time to time allow, or where the Director, after considering the cause shown by
the Committee of Management, is satisfied that any of the grounds mentioned in subsection (3) exists, he may, recommend to the State Government to appoint an Authorized
Controller for that institution. Thereupon, the State Government may, "by order, for
reasons to be recorded, authorise any person (hereinafter referred to as the
Authorized Controller) to take over, for such period not exceeding two years, as may
be specified, the Management of such institution and its property."

9. On plain reading, sub-section (4) is silent regarding requirement of notice to be
served upon the Committee of Management before any order is passed by the State
Government.

10. In my opinion, it would be incumbent upon the State Government to issue
notice to the aggrieved party to show cause before passing an order on the recommendation
of the Director. The decision making authority is the State Government and not the
Director. Aggrieved party would have every right to show cause before the State
Government, contending that the recommendations made by the Director are either
incorrect or per se perverse. It would, therefore, be incumbent upon the State Government
to pass suitable order considering the objections. It is immaterial whether the Committee of
7 All. C/M, Gautam Buddha Inter College, & Anr. Vs State Of U.P. & Ors.
1073
Management has appeared before the Director pursuant to the show cause notice under subsection (3). Principle of natural justice would have to be read into sub-section (4) to uphold
the vires of the section.

11. Rules of "natural justice" are not embodied rules. The phrase "natural justice" is
also not capable of a precise definition. The underlying principle of natural justice, evolved
under the common law, is to check arbitrary exercise of power by the State or its
functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action.

12. In A.K. Kraipak and others. v. Union of India and Ors.3, the Apex Court
observed that the aim of rules of natural justice is to secure justice or to put it negatively to
prevent miscarriage of justice. These rules can operate only in areas not covered by any
law validly made. They do not supplant the law but supplement it. (Also see Income Tax
Officer and Ors. v. Madnani Engineering Works Ltd. Calcutta 4.

13. Concept of natural justice has undergone a great deal of change in recent years.
Rules of natural justice are not rules embodied always expressly in a statute or in rules
framed there under. They may be implied from the nature of the duty to be performed
under a statute. What particular rule of natural justice should be implied and what its
context should be in a given case must depend to a great extent on the fact and
circumstances of that case, the framework of the statute under which the enquiry is held.

14. The question with regard to the requirement of an opportunity of being heard in
a particular case, even in the absence of provisions for such hearing, has been considered
by the Supreme Court in a catena of cases.

15. In Sahara India (Firm), Lucknow v. Commissioner of Income Tax, CentralI and Anr.5, the question for adjudication was whether in the absence of a provision in the
Income Tax Act, 1961, an opportunity of hearing was required to be given to an Assessee
before an order under Section 142(2A) of the said Act, directing special audit of his
accounts was passed? A Bench of three Judges explaining the concept of "natural justice"
and the principles governing its application, summed up the legal position as under:

 "Thus, it is trite that unless a statutory provision either specifically or by
necessary implication excludes the application of principles of natural justice, because in
that event the court would not ignore the legislative mandate, the requirement of giving
reasonable opportunity of being heard before an order is made, is generally read into the
provisions of a statute, particularly when the order has adverse civil consequences for the
party affected. The principle will hold good irrespective of whether the power conferred on
a statutory body or tribunal is administrative or quasi-judicial."
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

16. I may, however, hasten to add that no general rule of universal application can
be laid down as to the applicability of the principle audi alteram partem, in addition to the
language of the provision. Undoubtedly, there can be exceptions to the said doctrine.

17. The question whether the principle has to be applied or not is to be considered
bearing in mind the express language and the basic scheme of the provision conferring the
power; the nature of the power conferred and the purpose for which the power is conferred
and the final effect of the exercise of that power.

18. Notwithstanding, the fact that the sub-section (4) does not contain any express
provision for the affected party being given an opportunity of being heard. Undoubtedly,
action under the said sub section is a function which involves due application of mind to
the facts as well as to the requirements of law. Therefore, it is plain that before acting upon
the recommendation of the Director, State is bound to put the aggrieved party to notice.
Civil consequence of superseding the Committee of Management follows the decision of
the State Government and not of the Director.

19. In my view, therefore, if the requirement of opportunity to show-cause is not
read into sub-section (4) of Section 16-D it would be open to challenge being violative of
Article 14 of the Constitution of India on the ground that power conferred on the
competent authority primarily being arbitrary.

20. The Supreme Court in Kesar Enterprises Ltd. Versus State of U.P.6, was
considering the issue as to whether Sub-rule (7) of Rule 633 of the Excise Manual
postulates the requirement of hearing before steps for recovery of penalty under the said
Rule are initiated. The Court was of the opinion that though there was no specific provision
under the rule to issue show cause notice or to provide opportunity of hearing before the
penalty is imposed, the Court, however, was of the view that the order having civil
consequence would require necessarily an opportunity of hearing. (Refer- C.B. Gautam
Versus Union of India7 and Mardia Chemicals Ltd. Versus Union of India8.

21. It is evident from the statement of law that the decision making authority under
sub Section (4) is the State Government not the Director, therefore, civil consequence
flows from the order of the State Government and not from the recommendation of the
Director. Therefore, before any order is passed by the State Government it would
necessarily have to put the Committee of Management to notice. As to whether the
Committee of Management had responded to the show cause issued by the Director under
sub-section (3) or not would have no bearing.

22. The impugned order dated 11 April 2016 passed by the State Government in
exercise of power conferred under Section 16-D (4) of the Uttar Pradesh Intermediate
Education Act, 1921 is set aside. It is provided that the State Government shall pass a fresh
order after giving opportunity to the petitioner to show cause. The petitioner undertakes to
7 All. Iqbal Vs State Of U.P.
1075
 file representation/objection within six weeks from date and it is expected that the State
Government shall pass the order within next eight weeks thereafter.

23. Subject to the above, the writ petition is allowed.

24. Any orders passed pursuant to the impugned order shall abide by the decision of
the State Government in pursuance of this order.

25. No costs.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE HARSH KUMAR, J.

Criminal Misc. Bail Application No.- 26038 Of 2015

Iqbal ...Applicant
Versus
State Of U.P. ...Opposite Party

Counsel for the Applicant:
Sunil Singh, Avinash Chandra Srivastav

Counsel for the Opposite Party:
Govt. Advocate, Vikas Chand Tiwari

Headnote:
Bail - Kidnapping for ransom - Sections 364-A & 120-B IPC - Alleged recovery of
kidnapped child and ransom amount - Defence of false implication on account of
business rivalry - Plea of prior agreement for sale to explain possession of Rs.7 lakhs -
Alleged forged documents - Applicant not coming with clean hands - Bail refused.
Where the applicant was accused of kidnapping for ransom and recovery of the kidnapped child
along with ransom money was allegedly made from the car in which he was arrested, and the
prosecution asserted that the ransom currency notes bore identification marks of the informant, the
plea of false implication on account of business rivalry and explanation regarding possession of
money based on alleged agreement for sale executed on the same date appeared doubtful.

The Court observed that the applicant had not approached the Court with clean hands and had
attempted to justify possession of the ransom amount through documents which prima facie
appeared fabricated. Considering the gravity of offence under Section 364-A IPC and the totality of
facts and circumstances, the case was not found fit for grant of bail.

Bail Application Rejected.