1991 Supreme(Bom) 141

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Deshpande M.S. Wahane B.U., JJ.
Chanda Shikshan Prasarak Mandal .... Petitioner.
Versus
Director of Education, Maharashtra State, Pune others.... Respondents.
Writ Petition No. 2239 of 1988, decided on 28-2-1991.
Advocates appeared :
K.H. Deshpande, for petitioner.
P.M. Gundawar, A.G.P., for respondents Nos. 1 to 3.
S.M. Jain, for respondent No. 4.
T.D. Khade, for intervenors.

Headnote:Order 40, Rule 1.

       See Maharashtra Educational Institution (Management) Act, 1976 Section 3 (1).

       MAHARASHTRA EDUCATIONAL INSTITUTION MANAGEMENT ACT, 1976.

       Section 3(1) & Civil Procedure Code, Order, 40, Rule 1-Proceedings against management of School run by petitioner pending in High Court-High Court making arrangement for management and administration of School-Director of Education without leave of High Court taking over management of Institution Challenged-Held-Action of Director of Education without leave of Court amounted to direct Interference with arrangement made by High Court-Action of Director liable to be struck down.

       A Division Bench of the Andhra Pradesh High Court in D. Jones Shield V. N. Ramesam, AIR 1955 Andhra Pradesh 156. endorsed the view in King v. Parmanand, AIR 1949 Patna 222. that any enquiry with regard to a matter which is subjudice is bound to interfere with the even and ordinary course of justice, and it is a cardinal principle that when a matter is pending for decision before a Court of justice, nothing should be done which might disturb the free course of justice and to usurp the functions of the Court which has got seisin of the case.

       In Jai Prakash Beni Pershad v. Ram Sarup, AIR 1958 Punjab 471, it was held that when a Court having jurisdiction in the matter, appoints a receiver to take charge of the property forming subject ma tier of the litigation, then no other Court of co-ordinate jurisdiction has any power or authority to interfere or meddle with the property in the hands of the receiver. The Court appointing the receiver must be left untrammelled in its administration of the property regardless of the fact whether the original appoint of the receiver was erroneous or improvident, for otherwise orderly administration of justice cannot proceed.

       This Court in the Letters Patent Appeal had made elaborate arrangement regarding administration of the property and it was open to the Director of Education, respondent No. 1, to apply to this Court for obtaining leave to take action under the Act. We have no doubt that the prohibition which applies to lay litigants would also extend to the statutory authorities, once the property comes under custodia legis. In fact, as we have pointed out earlier, the State Government bad, on 16th April, 1986, itself taken this view while considering the request of Principal Band and bad asked Principal Band to approach the District Judge who was empowered to supervise the functioning of the petitioner Mandal, and since the action in taking over the management of the institutions amounted to direct interference with the manner in which the management was directed by the Court, that action cannot be supported and must be struck down.

       Section 3 (1) & Continuation of India-Article 226-Management of School run by petitioner taken over by Director of Education under Section 3 (1) after issuing show cause notice-Challenged-Held show cause notice vague-It did not spell out any particulars no basis of which it would have been possible for petitioner to understand allegations against it-Even reply to show cause notice sent by petitioner was not considered-Reasonable opportunity not accorded to petitioner-Action of Director in taking over management of Institution liable to be struck down.

       Returning to the statutory requirements of a reasonable opportunity of showing cause against the proposed action obviously, the opportunity has to be a real and reasonable opportunity. It was observed a. far bank as in M/s. Fedco (P) Ltd v. S. N Bilgrami, AIR 1960 SC 415, that the requirement of reasonable opportunity of being heard bas two elements. The first is that an opportunity of being beard must be given, the second is that this opportunity must be reasonable. Both these matters are justifiable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable.

       In M/s New Samundri Transport Co. (P) Ltd v. The State of Punjab, AIR 1976 SC 57, in which the requirement of Section 61l of the Motor Vehicles Act, 1939, fell for consideration, it was held that either a bald notice making no reference to any particular permit for cancellation or suspension of which action had been taken, it was as if all the 33 permits were going to be suspended or cancelled, and though for each permit, the permit-holder was responsible, the proposed penal action had to be particularized with reference to each permit detailing the particular conditions for breach of which action was sought to be taken in connection with a particular permit, and this was held to be a minimum requirement of Section to. Here, as 12 grounds had been catalogued, without furnishing any particulars as to the institution, time and place or the person, or the amount which was involved. Even in respect of an administrative order it was held in State of Orissa v. Dr (Miss) Binapani Dei, AIR 1967 SC 1269, that if it involves civil consequences, it must be made consistently with the rules of natural justice, after informing the case of the State, the evidence in support thereof and after giving an opportunity of being heard and meeting or explaining the evidence. Though Surath Chandra Chakravary v. The State of West Bengal, AIR 1971 SC 752, dealt with Rule 55 of the Civil Services (Classification Control and Appeal) Rules, it was pointed out that Rule 55 thereof embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.

       The contention that the petitioner had not asked for particulars or complained of vagueness has no-basis, because in the reply to the show cause notice as well as in the memo of appeal, the petitioner had stated that the charges could not the answered because of their vagueness and absence of particulars. According to the learned Counsel for the respondents Nos. 1 to 4 the petitioner should have asked for those particulars. A similar argument was repelled in Sawai Singh v. State of Rajasthan. AIR 1926 SC 995, where though the appellant had particular participated in the enquiry, as the petitioner did in the present case, it was pointed out that, that by itself dill not exonerate the department from bringing home the charges, and it was held that the charges were so vague that it was difficult to meet them fairly and the evidence adduced was perfunctory and did not bring home the guilt of the accused.

       On behalf of the respondents it was urged that a contradictory proposition was laid down in The Kesava Mills Co. Ltd v Union of India. AIR 1973 SC 389. The Chairman, Board of Mining Examination and Chief Inspector of Mines v Ramjet, AIR 1977 SC 965 and R. S. Dass v. Union of India, AIR 1987 SC 593. This not correct, because in Kesava Mills case, the Government had appointed an investigating body under Section 15 of the Industries (Development and Regulation) Act, 1951, for the purpose of making full and complete investigation into the facts and circumstances of the case and the appellants there had not made any grievance against the investigating committee regarding the manner in which he carried out the investigation, and they has been heard and a full opportunity of being heard and adducing evidence had been given. In the Board of Mining Examinations case, the respondent had in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board, and it was held that he had, thus, been heard and compliance with regulation 26 was complete, the Court observing that if fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential procession propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. R. S Desais case related to preparation of selection list for promotion to the Indian Administrative Services and when primacy was to be given to merit, recording of reasons was held not to be necessary, for including the name of junior member of State service in preference to senior member in the select list. On the other hand, it was held that the scheme contained under the regulations excluded the applicability of audi alteram partem rule by implication. It is, therefore, not correct to say that the type of action which we are considering did not require anything more than sending a show-cause notice, allowing time to file a reply and disposing of the manner by written order. As we have already pointed out, the show cause-notice did not spell out any particulars on the basis of which it would have been possible for the petitioner to understand what the allegations against it were and though the petitioner did attempt to send the reply, even that reply was not considered, and a verbatim reproduction of the grounds in the show cause notice was made in the order of taking over the management Having regard to the content of the right of having a reasonable opportunity, which has been settled by the judicial pronouncements Held that the petitioner had not been accorded a reasonable opportunity and a mere exercise, at the appellate stage, of calling upon the Director of Education to spell out the allegations and confronting them to the petitioner, could not take place of the nature of the opportunity which is contemplated by Section 3 of the Act. The action of the respondents in taking over the management cannot, therefore, be sustained and must be struck down.