W.P.(C) (SH) No. 329/2008 Page 1 of 24

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL

PRADESH)

SHILLONG BENCH

W.P(C) (SH) No. 239/2008 Shri Bindeshwar Roy, S/o. (L) Mahvir Roy, R/o. Lower Risa Colony Shillong, East Khasi Hills District Meghalaya

………PETITIONER

-VERSUS-

1. The State of Meghalaya Represented by the Commissioner Secretary to the Govt. of Meghalaya Department of Higher and Technical Education, Shillong

2. The Director of Higher and Technical Education, Shillong, Meghalaya

3. The Inspector of Schools,

East Khasi Hills District, Shillong, Meghalaya

4. The Managing Committee

Arya Kanya Vidhyalaya Secondary School, Represented by its President, Laitumukhrah, Shillong

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5. Shri Om Prakash Agarwal, Secretary, Managing Committee Arya Kanya Vidhyalaya Secondary School, Laitumukhrah, Shillong, East Khasi Hills District, Meghalaya

…………..RESPONDENTS

BEFORE

THE HON’BLE MR. JUSTICE B.K. SHARMA

For the petitioner : Ms. A. Paul, Advocate For the Respondents : Mr. N. D. Chullai, GA Mr. M.F. Qureshi, Advocate Date of Hearing & Judgment: 31.05.2011

JUDGEMENT & ORDER (ORAL) 1. By means of this writ petition, the petitioner who was the

Headmaster of the school, namely Arya Kanya Vidyalaya Secondary

School, Shillong, has challenged the order dated 19.09.2007

(Annexure-13) by which pursuant to a departmental proceeding he

has been removed from service. As per the impugned order, the

removal of the petitioner from service will not be a disqualification

for future employment and that the period of suspension which

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had preceded the impugned order of removal would be treated as

leave without pay.

2. The petitioner was appointed as Headmaster as well as

Science Teacher of the school, i.e. Arya Kanya Vidyalaya

Secondary School, Shillong, on 06.11.1986 and since then he had

been functioning as such till the impugned order of removal from

service was passed on 19.09.2007. During the course of

employment the petitioner was also appointed as the Secretary of

the Managing Committee by virtue of his office. Thereafter the

respondent No. 5 was appointed as the Secretary of the Managing

Committee in the year 1997. According to the petitioner, after

assumption of the charge of Secretaryship by the respondent No. 5

various irregularities had been committed by him. Allegation of

misappropriation of school fund by the respondent No. 5 has also

been made by the petitioner.

3. According to the petitioner, the respondent No. 5 alongwith

the President of the school lodged an FIR against him on

04.11.2002 in order to harass him. As per the said FIR, the

petitioner had misappropriated some amount of the school. On the

basis of the said FIR, a police case being Laitumkhrah P.S. Case

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No. 103(11)/2002 U/s. 420/403/406/464 IPC was registered.

During the course of hearing it has been submitted by the learned

counsel for the parties that the said criminal case is now pending

trial after framing of the charges against the petitioner.

4. The petitioner was placed under suspension w.e.f.

04.12.2002 by order dated 13.12.2002 as per the resolution of the

Managing Committee. He was placed under suspension pursuant to

arrest by the police. In the writ petition the petitioner has stated

about certain disputes that allegedly arose between the teachers

and the respondent No. 5 making allegations and counter

allegations.

5. The petitioner had occasion to challenge the order of

suspension by filing a writ petition being W.P.(C) No. 128

(SH)/2005. In the writ petition, an affidavit in opposition was filed

by the school managing committee in which it was stated that the

petitioner had already been removed from service. According to

the petitioner till filing of the said affidavit he was not aware of the

order of removal passed against him. Accordingly the writ petition

was withdrawn and thereafter the petitioner filed the instant writ

petition challenging the order of removal.

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6. The grounds on which the petitioner has filed this writ

petition are that the petitioner was not provided with any

reasonable opportunity of being heard to defend his case in the

enquiry proceeding; that the order of removal was not approved by

the competent authority and that the managing committee of the

school being not authorized one, could not have initiated the

departmental proceeding against the petitioner with consequential

order of removal from service.

7. The respondents have filed their counter affidavit enclosing

all the documents pertaining to the departmental proceeding

against the petitioner. After filing the counter affidavit on

09.02.2009, the respondent Nos. 4 and 5 filed another affidavit on

26.08.2010 bringing on record the reply to the second show cause

notice submitted by the petitioner on 07.03.2007. However, the

petitioner in his rejoinder affidavit filed against the said affidavit,

has denied the submission of second show cause reply pursuant to

the show cause notice issued to him on completion of the enquiry

proceeding.

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8. In the counter affidavit, the respondents have stated about

the purported irregularities and illegalities committed by the

petitioner. As regards to non-compliance of the principle of natural

justice in conducting the enquiry against the petitioner, the

respondents have stated in paragraph-22 that due notice(s) were

sent to the petitioner by registered post. In this connection, it will

be pertinent to mention the relevant portion of the said paragraph

which is reproduced below:

“it is pertinent to mention herein that the petitioner was furnished with the Inquiry Report submitted by Inquiry Officer along with the copy of the entire proceeding of Departmental Inquiry including copy of charge sheet, show cause filed by him, orders appointing Inquiry Officer and Presenting Officer, Notices, statements of all the witnesses and the documents exhibited during the course of inquiry. The Second Show Cause Notice was sent Alongwith the copy of the Inquiry Report and entire proceeding of Departmental Inquiry by Registered Post with A/D from Shillong GPO bearing Postal Receipt No. RLAD B 8942 dated 19.02.2007. The petitioner sent is Representation dated 07.03.2007 in response to the Second Show Cause Notice by Speed Post on 12.03.2007 which was received by the Answering Respondent on 12.03.2007 at 1:50 p.m. and the same was carefully examined. Further the Managing Committee of Arya Kanya Vidyalaya Secondary School, Laitumkhrah, Shillong convened a meeting on 15.09.2007 on receipt of Representation dated 07.03.2007 from the petitioner and adopted a Resolution No. 1 dated 15.09.2007 whereby it was resolved to remove the petitioner from service.

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It is absolutely incorrect on the pat of the petitioner to allege and deny that the Removal Order No. AKVSS/MC/2007-08/16-19 dated 19th September 2007 was not communicated to him. In fact the Disciplinary Authority communicated the said removal order to the petitioner Alongwith the copy of the Resolution No. 1 dated 15.09.2007 by sending the same through the Registered Post with A/D from Shillong GPO bearing Postal Receipt No. RLAD B 6393 dated 19.09.2007. On account of typographical error in the Removal Order the Disciplinary Authority sent the Corrigendum vide letter No. AKVSS/MC/2007-08/20-23 dated 20.09.2007 by the Registered Post with A/D bearing Postal Receipt No. RLAD A 8696 dated 20.09.2007. The Department of Posts, Customer Care Centre, O/o. the Sr. Supdt. of Post Offices; Meghalaya Division, Shillong – 793001 vide letter No. CPT/Misc./RL-etc/-7-08 dated 12.11.2007 confirmed that the said RLAD No. B 6393 dated 19.09.2007 and RLAD No. A 8696 dated 20.09.2007 were delivered to the petitioner on 01.10.2007. Further soon after the removal of the petitioner from service and on being apprehended that the said removal order would be challenged before this Hon’ble Court, the School Managing Committee filed caveat petitions before this Hon’ble Court with a copy to the petitioner from time to time as under:- Sl. No.

Date of filing Caveat No. Notice sent by Registered Post

1 21.09.2007 Caveat No. 108(SH)2007 Postal receipt No. RLAD B 6643 dt. 21.09.2007

2 10.01.2008 Caveat No. 2 (SH)2008 Postal Receipt No. RLAD B 5145 dt. 10.01.2008

3 04.09.2007 Caveat No. 146(SH)2007 Postal Receipt No. RLAD D 4699 dt. 04.09.2008

4 04.12.2008 Caveat No. 171(SH)2007 Postal Receipt No. RLAD A 9093 dt. 04.12.2008

The petitioner is taking unfair advantage and trying to mislead this Honb’le Court by making a false

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statement that he came to know about the removal order only on receipt of the Affidavit dt. 02.09.2008 which is factually incorrect, in fact he was very much aware about the removal order which was communicated to him and delivery of which was confirmed by the Postal Department. Even the Subsistence Allowance payable to the petitioner was stopped w.e.f. October, 2007 consequent upon his removal from service, interestingly, the petitioner has never made any grievances against the non-payment of the said allowance to him as the petitioner is having full knowledge about the Removal Order right from 1st October, 2007 when he received the Removal Order.”

9. In reply to the said assertion made in paragraph-22 of the

counter affidavit, the petitioner in his rejoinder affidavit has stated

thus:

“that the averments made in paragraph-22 of the Affidavit-in-Opposition being matters on records, the Petitioner does not wish to make any comment.”

10. The charges against the petitioner as quoted in the enquiry

report dated 18.01.2007 are as follows :

“ARTICLE OF CHARGE NO. 1

The said Shri Bindeswar Roy while assuming the charge of the Headmaster, started collection of the following fees with effect from 17.05.1997.

1. Admission Fee, 2. Transfer Certificate fee

The said Shri Bindeswar Roy failed to maintained

the accounts and also failed to produce the same before the Managing Committee inspite of the copy of Resolution No. 8, 11, 12, 14 and 15 dated 11.12.1999

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was furnished to him vide letter No. dated 22.03.2000 and subsequent reminds issued to him vide letter No. AKVHS/Accts/2000-1/3 dated 05.05.2000.

The said Bindeshwar Roy in his reply to show

cause dated 15.05.2000 has admitted that he had spent/ utilized the collected school fees on account of financial difficulties and thereby misappropriated the school fees amounting to Rs. 2,25,000/- (Rupees Two Lakh Twenty Five Thousand) approx. only w.e.f. 17.05.1997 till Nov. 2002.

By his above acts, Shri Bindeswar Roy failed to maintained absolute integrity and exhibited conduct unbecoming of a public servant and this violated the Provisions of Service Conduct Rule 1990, Rule-3(1), (2) and (3).

ARTICLE OF CHARGE NO. II

That while functioning in the school during the

aforesaid period, a regular Managing Committee was constituted and approved by the Inspector of Schools, East Khasi Hills, Shillong vide his Letter Order No. IS/M-4/2001/2547-67 dated 12.03.2001. Thereafter the said Managing Committee was stayed by the Hon’ble High Court in W.P.(C) No. 74(SH) 2001 vide interim order dated 19.04.2001.

The said Bindeshwar Roy taking undue benefits of stay order and in absence of Managing Committee started collecting the following fees.

1) Monthly fee 2) Annual Library fee 3) Annual contingency fee 4) Building fee 5) Development fee 6) Annual Games fee 7) Exam. Fee and 8) Magazine fee The collection was made for the period from

March, 2001 to November, 2002 and illegally amassed a sum of Rs. 2,00,000.00 (Rupees Two Lakhs) approx. only for his personal gain violating the earlier order of

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the Managing Committee when Shri Sashi Kant Thakuri was empowered to collect the aforesaid fee.

By his above acts, Shir Bindeshwar Roy fails to maintain absolute integrity and devotion to duty and in a manner unbecoming a public servant and thus violated the provision of Meghalaya Service Conduct Rule, 1990.

The said Bindeshwar Roy, even on circulation of Notice amongst the students and guardians vide notice dated 18.02.2002 kept continuing the collection of fees. Finally, the Managing Committee has passed further Order/Resolution No. 4 dated 02.06.2002 authorizing Shri Sashi Kant Thakuri and Miss Madhu Rawat to collect the school fees from the students which the direction to deposit the same in School Bank A/c. No. 11563 with Vijaya Bank, Laitumkhrah Branch, Shillong. Accordingly, the student and teacher has also been intimated vide order No. AKVHS/MC/2002/03/37 dated 25.10.2002.

In spite of the above arrangement by the Managing Committee, the said Shri Bindeshwar Roy got printed false receipts illegally for collection of fees. Constant failure on the part of Shri Bindeshwar Roy to comply with the order passed by the Managing Committee and on being compelled, lodged a complaint with the Officer-in-Charge of Laitujkhrah P.S. Shillong which was registered as Laitumkhrah P.S. Case No. 103(11)02 u/s. 420/403/406/464 IPC.

This fraudulent act of the said Shri Bindeshwar Roy shows that he has acted in a manner unbecoming a public servant and failed to maintained absolutely integrity and devotion to duty thus violated the service rule.”

11. On perusal of the charges against the petitioner it is seen

that the basic charge against the petitioner was misappropriation

of fund of the school to the extent indicated in the charges. In the

enquiry proceeding, although the petitioner was provided with the

opportunity of being heard with due service of notice, but as

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recorded in the enquiry report he did not respond to the enquiry

proceeding. However, it is stand of the petitioner that he did not

receive any notice from the enquiry officer and thus could not

appear in the enquiry proceeding.

12. It is on record that pursuant to the charge sheet dated

08.03.2006, the petitioner had submitted his reply on 10.03.2006.

In the reply he did not deal with the charges specifically, but

made a general denial stating that the Memorandum of charge

sheet was false and fabricated. After the aforesaid charge sheet

and the reply thereof the disciplinary authority by its order dated

05.04.2006 appointed the enquiry officer to enquire into the

charges. Thereafter notice(s) were sent to the petitioner under

registered post. The enquiry officer also sent notice to the

petitioner asking him to appear in the enquiry proceeding. In this

connection, the respondents have enclosed the copies of the

letters addressed to the petitioner on 28.04.2006, 15.06.2006,

05.07.2006 and 11.07.2006 by the enquiry officer. All the letters

were sent under registered post. However, there was no response

from the petitioner.

13. In view of the above, the enquiry officer had no option then

to proceed ex parte against the petitioner.

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14. At this stage, it will be appropriate to mention about the

order dated 05.07.2006 in the enquiry proceeding a copy of which

has been annexed to the counter affidavit. In the proceeding held

on 05.07.2006, it was recorded that the petitioner was absent

without intimation in spite of receipt of notice on 15.06.2006

issued to him. The order further speaks of non-appearance of the

petitioner on 15.05.2006 in spite of notice dated 28.04.2006 which

was received by him on 02.05.2006. The order further reveals that

the petitioner vide his letter dated 12.05.2006 had raised the some

points which were clarified to him by letter dated 15.06.2006 and

he was asked to appear before the enquiry officer on 05.07.2006

at 11:00 am. However, the petitioner did not do so. But in the writ

petition the statement made is that he was not aware of the

enquiry proceeding.

15. On conclusion of the enquiry proceeding, the enquiry officer

has held the petitioner guilty of the charges. For a ready reference,

the conclusion recorded by the enquiry officer is reproduced below:

“CONCLUSION On careful analysation of evidence and

documentary adduced during the inquiry and by

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application of mind to assume at the final conclusion, I the Inquiry Officer give my independent opinion basing in the following facts and circumstances.

1. In my opinion, the non-appearance of Delinquent Officer, before the Inquiry Officer, despite several notices/requests has got reasoned to believe that the Delinquent Officer has misappropriated the funds. 2. In my opinion, the admission of guilt by the Delinquent officer by his representation dated 15.05.2000 is clear and unambiguous and in best form of proof against him. So the charges found against him is correctly established by him own statement, hence can’t be denied. 3. In my opinion, the Delinquent Officer is not entitled to collect the school fees from the students on false printed receipts without any authority of the Managing Committee and it has also been found that fees collected by the Delinquent Officer from the students has been utilized for his personal gain without rendering any account to the Managing Committee. While concluding the inquiry against Shri Bindeshwar Roy, Headmaster (Under Suspension), I hereby offered by independent opinion of the inquiry that Shri Bindeshwar Roy, Headmaster (Under Suspension) is not free from charges framed against him and it has been fully established from the above facts and circumstances that he has misappropriated the schools fund amounting to Rs. 2,50,000/- approx. w.e.f. 17.05.1997 and thereafter further he misappropriated a sum of Rs. 2,00,000.00 approx. w.e.f. March, 2001 to Nov. 2002 which Delinquent Officer has collected illegally from the students of Arya Kanya Vidyalaya High School, Laitumkhrah, Shillong and the same was neither deposited in the Schools Bank account nor he has handed over the same to the Managing Committee till today. Now, it is the Disciplinary Authority to take necessary steps as deem fit and proper”.

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16. In the rejoinder affidavit filed by the petitioner it has been

stated that the petitioner was not aware of the enquiry proceeding

as he did not receive any notice. It is in this context, the

respondents have brought on record the reply furnished by the

petitioner to the second show cause notice which is dated

07.03.2007. In the said second show cause notice none of the

pleas raised in this writ petition was raised. Rather, in paragraph-

18, it was admitted by the petitioner that he had spent some

amount of the school fund for his personal use. For a ready

reference, paragraph-18 of the said reply is reproduced below:

“18. That Sir, I did not keep any kind of amount with me and whatever money realized that was used up in specially school purposes such as conveyance, postage clerical work stationery, telephone bill, question paper, Municipal rent, teas official & visitor and remaining a few amount may be spent by me because during yours tenure in 10 years neither you gave my proper salary in time nor even a single penny has not been provided by the School Managing to run the office of the Headmaster right the dated of 1st March, 1997 to 4th December, 2002. Although suggestion was given by Smt. B. Lamare Asst. Inspector of the Schools to demand requirement of the office expenditure and I also did it but all the correspondences were useless or in vain. So far you have been blaming and propagating to me for longtime that is your nature to tell lie and down the prestige to the Headmaster”.

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17. Apart from the above, the petitioner had also admitted that

he had misappropriated some amount from the school fund. Such

admission was by his letter dated 15.05.2000 which was exhibited

as Exbt. 4 in the enquiry proceeding. The relevant portion of the

said letter dated 15.05.2000 is reproduced below:

“Sir, that whatever the amount received by me as an admission fees etc. had spent by me as I was facing great financial difficulties. However, I am stated that whatever the due payable from the Managing Committee to me. After getting said amount I will be able to give you the clear account of the schools more.

For this act of kindness I shall be very grateful to you.”

18. The petitioner had denied the submission of the reply to the

second show cause notice. In this connection he has stated in the

rejoinder affidavit dated 01.03.2011 that the purported reply to the

second show cause notice is a manufactured document inasmuch

as the petitioner never made any such reply to the second show

cause notice.

19. To quell any doubt, I have verified the signatures of the

petitioner appearing in the proceedings in various documents as

well as the signatures appearing in the said reply to the second

show cause notice. This particular exercise has been carried out as

provided for under Section 73 of the Indian Evidence Act, 1872.

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Irrespective of the said provision, on the face of it, the signature of

the petitioner appearing in the reply to the second show cause

notice when compared with other signatures appearing in the

other documents available in this proceeding leave no manner of

doubt that the second show cause reply was submitted by none

other than the petitioner.

20. Ms. Paul, learned counsel for the petitioner submits that the

enquiry proceeding initiated against the petitioner being perverse

and based on mala fide exercise of power at the behest of the

respondent No. 5, same should be interfered with. She further

submits that in the proceeding undertaken by the enquiry officer

the petitioner was not given any opportunity of being heard. She

also submits that the notice(s) stated to have been served on the

petitioner in fact, were not served on him.

21. Countering the above argument, Mr. M.F. Qureshi, learned

counsel appearing for the school managing committee submits that

although the petitioner was provided with all opportunities of being

heard, he did not avail the same and now coming to the writ court

has blamed the respondents for alleged non-compliance of the

principles of natural justice. Mr. N.D. Chullai, learned State counsel

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has submitted that the fact that the petitioner duly received notice

is amply evident from the order passed on 05.07.2006 in the

enquiry proceeding in which it was clearly recorded that the

petitioner had made certain queries, but did not respond to the

proceeding by appearing before the enquiry officer.

22. Another point urged by Ms. Paul, learned counsel for the

petitioner is that the impugned order of removal passed against

the petitioner is nonest inasmuch as the said order was not

approved by the competent authority. She submits that such

approval of the order of removal being not there, same cannot be

given effect to and consequently it is liable to be interfered with.

23. As regards the aforesaid submission, both Mr. N.D. Chullai,

as well as Mr. M.F. Qureshi, learned counsel appearing for the

respondents, upon reference to the decision of this Court reported

in 2000 (3) GLT 656 (Aryasamaj & anr. Vs. State of

Meghalaya & ors.) submit that the school being a minority

institution, there is no requirement of obtaining any prior approval

from the competent authority. In the said decision when the

question arose as to whether the Govt. was competent to take

over the management of the minority school, it was held that the

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school in question was entitled to minority status in the State of

Meghalaya and consequently its management could not have been

taken over by the Govt.

24. As regards to the admission of defalcation of some amount

of the school fund by Exbt. 4 letter dated 15.05.2000, Ms. Paul,

learned counsel for the petitioner has submitted that the same

being prior to issuance of the charge sheet and initiation of the

proceeding, could not have been placed reliance by the enquiry

officer and the disciplinary authority. I am not impressed with this

argument inasmuch as in a departmental proceeding the

disciplinary authority is competent to exhibit the documents in

support of its case. In fact, alongwith the chargesheet a list of

documents was also furnished in which the Article of Charge No. 1

clearly mentioned about the admission of misappropriation of

school fund by the petitioner vide his reply letter dated 15.05.2000

(Exbt. 4).

25. The impugned order of removal passed against the petitioner

was preceded by the resolution adopted by the managing

committee of the school in its meeting held on 15.09.2007 a copy

of which has been annexed to the counter affidavit. On perusal of

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the said resolution, what is found is that in the meeting the matter

was discussed in detail and all the relevant materials were referred

to towards arriving at a decision to remove the petitioner from

service. As regards to second show cause notice representation

dated 07.03.2007, the managing committee made its discussion in

the impugned resolution which is reproduced below:

“The Delinquent Officer Shri B. Roy sent his Representation dt. 07.03.2007 in response to the Second Show Cause by Speed Post on 12.03.2007 which was received by the Secretary on 12.03.2007 at 1:50 p.m. The Representation dt. 07.03.2007 submitted by the Delinquent Officer was carefully examined found to have been vague as vagueness while he was found negligent and deliberately did not take part in the Departmental Enquiry to defend himself and to prove his innocence. Shri Bindeshwar Roy was given a fair opportunity by the Disciplinary Authority to submit written statement in his defence and deny or admit each Articles of Charge but Shri Bindeshwar Roy although filed his written statement in defence but did not deny the allegations specifically save and except the general denial. The Representation filed by Shri Bindeshwar Roy in response to the second Show Cause notice has been taken into account wherein he admitted with regard to the collection of school fees and spending the same for his personal use without rendering any accounts to the Managing Committee”.

26. On the basis of the entire evidence on record, the school

managing committee was of the opinion that the penalty of

removal from service should be imposed on the petitioner.

Accordingly the said resolution was adopted pursuant to which the

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disciplinary authority passed the impugned order dated

19.09.2007.

27. As regards to the plea of non service of notice, the kind of

submission made by the petitioner in the specific reply to the

respondents have been noted above. In paragraph-22 of the

counter affidavit, the respondents categorically stated about the

service of notice on the petitioner to which the reply of the

petitioner was that the averments being based on records, he

would not wish to make any comment. Further, service of notice

on the petitioner and acknowledgment thereof by him is amply

demonstrated in the order dated 05.07.2006 passed in the enquiry

proceeding about which discussions have been made above. For a

ready reference, the said order (relevant portion) is quoted below:

“Shri A.B. Dutta, Presenting Officer on behalf of the School Authority is present. Shri Bindeshwar Roy (Headmaster, Under Suspension) is absent without intimation inspite of the fact that he did receive the notice dated 15.06.2006 issued to him. Shri Bindeshar Roy was also not present on 15.05.2006 in spite of the Notice dated 28.04.2006 which he received on 02.05.2006 though he raised some points vide his letter dated 12.05.2006 which were clarified to him vide letter dated 15.06.2006 and he was asked to appear before me on 05.07.2006 at 11 AM for preliminary inquiry.”

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28. When a point which is ostensibly the point of law is required

to be substantiated by facts, the party raising the point, if he is the

writ petitioner, must plead and prove such facts by evidence which

must appear from the writ petition and if he is the respondents,

from the counter affidavit. In this connection, the observation

made by the Apex Court in Bharat Singh and ors. Vs. State of

Haryana and ors. Reported in AIR 1988 SC 2181 is reproduced

below:

“13. … In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to pint out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.”

29. In the instant case, the respondents in their counter affidavit

made the above quoted specific averments regarding service of

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notice to the petitioner and reply of the petitioner to the same has

been noted above, which amounts to admission of service of

notice. As has been held by the Apex Court in Gujarat

Elecrtricity Board and anr. Vs. Atmaram Sungomal Poshani

reported in (1989) 2 SCC 602, there is always a presumption of

service of a letter sent under registered cover. The presumption is

rebuttable and it is open to the party concerned to place evidence

before the court to rebut the presumption by showing that the

address mentioned on the cover was incorrect or that the postal

authorities never tendered the registered letter to him or that there

was no occasion for him to refuse the same. The burden to rebut

the presumption lies on the party, challenging the factum of

service.

30. In the instant case, the petitioner failed to discharge his

burden as he failed to place the materials that the notice was not

served on him or that same was returned because of wrong

address. Apart from the above, it is evident from the materials on

record that the petitioner had in fact, received the notices issued to

him by the enquiry officer. This is precisely the reason as to why

he had communicated with the enquiry officer seeking certain

clarifications. This aspect of the matter has been discussed in the

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order dated 05.07.2006 passed by the enquiry officer. The

clarifications sought from the petitioner were replied to, but there

after the petitioner did not respond to the proceeding.

31. As has been held by the Apex Court in Channabasappa

Basappa Happali vs. State of Myore reported in AIR 1972

SC 32 , admission of fact alleged in the charges implies admission

of guilt. In the instant case, the charge against the petitioner was

defalcation of fund of the school. In his aforesaid reply dated

15.05.2000 (Exbt. 4) as well as the reply to the second show cause

notice, the petitioner had admitted the fact of defalcation of some

amount of the managing committee and thereby he had admitted

his guilt.

32. Ms. Paul, learned counsel for the petitioner has raised certain

disputes regarding minority status of the school. She has also

raised question of jurisdiction of the school managing committee

which according to her is not authorized to take any decision in the

matter. In this connection, she has referred to the rejoinder

affidavit filed on 24.02.2011 in which certain disputed question of

fact has been raised as to the minority status of the school.

However, the fact of the matter is that the petitioner never raised

W.P.(C) (SH) No. 329/2008 Page 24 of 24

any such question before the disciplinary authority or questioned

its competence to initiate departmental proceeding against the

petitioner.

33. As regards the minority status of the school in question, the

petitioner never agitated the same by making any specific

averments in the writ petition. The petitioner being in the service

of the school and he having admitted the authority of the

managing committee of the school, cannot now resile back from

that position so as to contend that the managing committee of the

school was not competent to initiate the departmental proceeding

against him. As regards the minority status of the institution, the

respondents have placed reliance on the decision in Aryasamaj &

anr. (supra). The said judgment has attained its finality.

34. For all the aforesaid reasons, I do not find any merit in the

writ petition. Accordingly, it is dismissed.

JUDGE

Kborah