LAL BAHADUR GAUTAMversusSTATE OF U.P. AND OTHERS

                          [2019] 7 S.C.R. 389                            389


                     LAL BAHADUR GAUTAM                                  A
                                  v.
                   STATE OF U.P. AND OTHERS
                   (Civil Appeal No. 4794 of 2019)
                                                                         B
                           MAY 08, 2019
          [ARUN MISHRA AND NAVIN SINHA, JJ.]
      Service Law:
       Termination of service – Of a lecturer of a private unaided       C
college, 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 dated
16.7.2016 being violative of s. 35(2) of Universities Act and granting
liberty to the College to initiate departmental proceedings – College
after initiating departmental proceedings passed fresh order of          D
termination without prior approval as per s. 35(2) and Rule No.
16.06 of University Regulations – Writ petition challenging the
termination was dismissed by High Court as not maintainable –
Appeal to Supreme Court – Held: The college being affiliated to the
University was bound by the provisions of the Act with its attendant     E
consequences for non-compliance – As per section 35(2) of the
Universities Act prior approval of the Vice Chancellor was
mandatory before terminating the services of the appellant – The
termination order being in the teeth of s. 35(2) is patently
unsustainable – Uttar Pradesh State Universities Act, 1973 – s. 35(2)
– Chaudhary Charan Singh University Regulations – Rule No.               F
16.06.
      Judiciary:
      Justice delivery system – Reliance on a judgment based on
repealed Act (statute) – Held: Reliance on the judgment based on         G
repealed Act is akin to relying on an overruled judgment – Even if
such action is negligent, could be fatal by misleading the court
leading to erroneous judgment – Such action would also result in


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                                 389
390            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     waste of judicial time of the Court – Failure in that duty is a wrong
      against the justice delivery system – It is duty of the parties and
      their Counsel to double check and verify before making any
      presentation to Court – It is also for the Court to consider whether
      a particular presentation before the Court has occasioned
B     unnecessary waste of court time.
            Advocate/Advocates:
             Role of Advocate – Held: As a responsible officer of the Court
      and an important adjunct of the administration of justice, a higher
C     responsibility goes upon a lawyer representing an institution – He
      owes a duty to the Court as well as to opposite side – He cannot act
      as a mere mouthpiece of his client – He has to be fair to ensure that
      justice is done.
            Disposing of the appeal, the Court
D
             HELD: 1.1 The order of the High Court is cryptic, non-
      speaking and devoid of any consideration of the statutory
      provisions of the Uttar Pradesh State Universities Act, 1973. The
      effect and consequences of the order of the Vice-Chancellor dated
      16.07.2016 has also not been considered. [Para 5] [383-G]
E
            1.2 The college being affiliated to the University was bound
      by the provisions of the Act with its attendant consequences for
      non-compliance. The college having accepted the order of the
      Vice-Chancellor and acted upon the same by holding departmental
F     proceedings cannot urge that it is bound by one part of the order
      and not the other. It cannot have the benefit of the order without
      complying with its obligations under the order. A bare reading of
      the statutory provision i.e. s. 35(2) of the Act makes it manifest
      that prior approval of the Vice-Chancellor was mandatory before
      termination of the appellant. If the management of the college
G
      opined otherwise, it ought to have challenged the order of the
      Vice-Chancellor dated 16.07.2016, if such a challenge was
      maintainable. Having allowed the order to attain finality, it is not
      open for the college management to now urge that it was not

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  LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS                        391


bound to follow the procedure. The order of termination dated           A
24.04.2017 being in teeth of Section 35(2) of the Act is patently
unsustainable. [Para 8] [394-F-H; 395-A]
      1.3 The appellant is held entitled to reinstatement. The
respondent management is not precluded from proceeding afresh
in accordance with law from the stage of irregularity. In that          B
eventuality the Vice-Chancellor shall consider any request for
approval on its own merits in accordance with law without being
influenced by any observation in the present order. The question
of back wages, if any, shall abide by any such decision of the Vice-
Chancellor. [Para 15] [399-A-B]                                         C

      2.1 Notwithstanding the easy access to information
technology for research today, as compared to the plethora of
legal Digests which had to be studied earlier, reliance was placed
by the respondent Management upon a judgment based on an
                                                                        D
expressly repealed Act by the present Act, akin to relying on an
overruled judgment. This has only resulted in a waste of judicial
time of the Court, coupled with an onerous duty on the judges to
do the necessary research. Though it may be negligence also,
but the consequences could have been fatal by misleading the
Court leading to an erroneous judgment. [Para 10] [395-F-H]             E

      2.2 Simply, failure in that duty is a wrong against the justice
delivery system in the country. Over the years, responsibility
and care on this score has shown a decline. It is time that the
Court takes note of the problem, and considers such steps to            F
remedy the problem. It is duty of the parties and their Counsel,
at all levels, to double check and verify before making any
presentation to the Court. Time has come for these issues to be
considered so that the citizen’s faith in the justice system is not
lost. It is also for the Courts at all levels to consider whether a
                                                                        G
particular presentation by a party or conduct by a party has
occasioned unnecessary waste of court time, and if that be so,
pass appropriate orders in that regard. After all court time is to


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392            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     be utilized for justice delivery and in the adversarial system, is
      not a licence for waste. [Para 11] [396-A-C]
            2.3 As a responsible officer of the Court and an important
      adjunct of the administration of justice, the lawyer undoubtedly
      owes a duty to the Court as well as to the opposite side. He has
B     to be fair to ensure that justice is done. He demeans himself if
      he acts merely as a mouthpiece of his client. A higher
      responsibility goes upon a lawyer representing an institution.
      [Paras 12 and 14] [396-D; 398-E]

C           Executive Committee of Vaish Degree College, Shamli
            and others v. Lakshmi Narain and others (1976) 2 SCC
            58 : [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 Narain
            Mishra and others, (2001) 2 SCC 221 : [2000] 5 Suppl.
D
            SCR 345 ; State of Rajasthan and another v. Surendra
            Mohnot and others, (2014) 14 SCC 77 : [2014] 6 SCR
            191 – relied on.
                             Case Law Reference
E     [1976] 2 SCR 1006              relied on               Para 4
      [2016] 4 SCR 685               relied on               Para 12
      [2000] 5 Suppl. SCR 345        relied on               Para 13

F     [2014] 6 SCR 191               relied on               Para 14
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4794
      of 2019.
             From the Judgment and Order dated 31.05.2017 of the High Court
G     of Allahabad in C.M.W.P. No. 25599 of 2017.
            Braj Kishor Mishra, Vikram Patralekh, Raj Kishor Choudhary,
      Advs. for the Appellant.
             Konark Tyagi, Sanjay Kumar Tyagi, Ajay Kumar Pandey, Advs.
      for the Respondents.
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  LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS                               393


      The Judgment of the Court was delivered by                               A
      NAVIN SINHA, J.
      1. Delay condoned. Leave granted.
       2. The appellant, a lecturer in a private unaided college affiliated
to the Chaudhary Charan Singh University (hereinafter referred to as           B
‘the CCS University’), Meerut under the Uttar Pradesh State Universities
Act, 1973 (hereinafter referred to as “the Act”), assails his termination
dated 24.04.2017 as being contrary to the provisions of the Act.
       3. Learned counsel for the appellant submits that the termination
was in violation of Section 35(2) of the Act as no prior approval had          C
been taken. The High Court erred in holding that the writ petition was
not maintainable. The earlier order of termination dated 04.06.2015 had
been set aside by the Vice-Chancellor on 16.07.2016 for that reason and
as also being in violation of Rule No. 16.06 of the University Regulations.
The order had attained finality in absence of any challenge by the
respondent management.                                                         D

       4. Learned counsel for the respondent management submitted
that the writ petition was not maintainable against a private unaided
college as it was not “State” within the meaning of Article 12 of the
Constitution. The order of the High Court does not call for any
interference. There can be no enforcement of a contract of personal            E
service. There was a simple relationship of master and servant. The
departmental proceedings were held in accordance with law. The
managing committee of the college was not a statutory body. Reliance
was placed on Executive Committee of Vaish Degree College, Shamli
and others vs. Lakshmi Narain and others, (1976) 2 SCC 58.                     F
       5. We have considered the submissions on behalf of the parties.
The High Court held that merely because of affiliation to the CCS
University, the writ petition was not maintainable against a private unaided
college. The order is cryptic, non-speaking and devoid of any consideration
of the statutory provisions of the Act. The effect and consequences of         G
the order of the Vice-Chancellor dated 16.07.2016 has also not been
considered.
      6. The respondent college terminated the services of the appellant
on 04.06.2015 by a non-speaking order with immediate effect. The
appellant approached the Vice-Chancellor who after hearing the college,
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394            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A     held that prior approval not having been obtained under Section 35(2) of
      the Act read with Rule No. 16.06 of the University Regulations, the
      termination was bad and set it aside. But, because there were serious
      allegations of financial misappropriation, liberty was granted to the
      management to hold departmental proceedings. The management
      accepted the order and initiated departmental proceedings culminating
B
      in a fresh order of termination dated 24.04.2017. The fresh order of
      termination was again in violation of the provisions of the Act and the
      Regulations 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 or
            associated colleges other than those maintained by
            Government or local authority. - (1) Every teacher in an
            affiliated or associated college (other than a college maintained
            exclusively by the State Government) shall be appointed under a
            written contract which shall contain such terms and conditions as
D           may be prescribed. The contract shall be lodged with the
            University and a copy thereof shall be given to the teacher
            concerned, and another copy thereof shall be retained by the
            college concerned.
            (2) Every decision of the Management of such college to dismiss
E           or remove a teacher or to reduce him in rank or to punish him in
            any other manner shall before it is communicated to him, be
            reported to the Vice-Chancellor and shall not take effect unless it
            has been approved by the Vice-Chancellor.
                                     XXXXX”
F
             8. The college being affiliated to the University was bound by the
      provisions of the Act with its attendant consequences for non-compliance.
      The college having accepted the order of the Vice-Chancellor and acted
      upon the same by holding departmental proceedings cannot urge that it
      is bound by one part of the order and not the other. It cannot have the
G     benefit of the order without complying with its obligations under the
      order. A bare reading of the statutory provision makes it manifest that
      prior approval of the Vice-Chancellor was mandatory before termination
      of the appellant. If the management of the college opined otherwise, it
      ought to have challenged the order of the Vice-Chancellor dated
      16.07.2016, if such a challenge was maintainable. Having allowed the
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  LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS                                395
                [NAVIN SINHA, J.]

order to attain finality, it is not open for the college management to now      A
urge that it was not bound to follow the procedure. The order of
termination dated 24.04.2017 being in teeth of Section 35(2) of the Act
is patently unsustainable.
       9. Reliance on Lakshmi Narain (supra) is completely misplaced.
It has no application whatsoever to the present case either on facts or in      B
law. The order of termination in the said case was dated 29.03.1967 and
was made under the provisions of the Agra Universities Act, 1926 which
had no similar provisions as Section 35(2) of the Act. Additionally, the
Agra Universities Act, 1926 has been repealed by Section 74(1)(c) of
the Act. It is indeed unfortunate that the learned counsel for the respondent
management has sought to rely upon a judgment under the repealed                C
Act. The admitted position in Lakshmi Narain (supra) was that the
management of the college was not bound by the statutes and the
provisions of the Agra Universities Act, 1926 but was merely following
the same as a matter of convention. Statute 14(A) of the Agra University
Hand Book also did not contain any provisions like Section 35(2) of the         D
Act.
      “Statute 14(A): Each college, already affiliated or when affiliated,
      which is not maintained exclusively by government must be under
      the management of a regularly constituted governing body (which
      includes managing committee) on which the staff of the college            E
      shall be represented by the principal of the college and at least
      one representative of the teachers of the college to be appointed
      by rotation in order of seniority determined by length of service in
      the college, who shall hold office for one academic year.”
       10. Before parting with the order, we are constrained to observe         F
regarding the manner of assistance rendered to us on behalf of the
respondent management of the private college. Notwithstanding the
easy access to information technology for research today, as compared
to the plethora of legal Digests which had to be studied earlier, reliance
was placed upon a judgment based on an expressly repealed Act by the
present Act, akin to relying on an overruled judgment. This has only            G
resulted in a waste of judicial time of the Court, coupled with an onerous
duty on the judges to do the necessary research. We would not be
completely wrong in opining that though it may be negligence also, but
the consequences could have been fatal by misleading the Court leading
to an erroneous judgment.                                                       H
396             SUPREME COURT REPORTS                             [2019] 7 S.C.R.


A            11. Simply, failure in that duty is a wrong against the justice delivery
      system in the country. Considering that over the years, responsibility and
      care on this score has shown a decline, and so despite the fact that
      justice is so important for the Society, it is time that we took note of the
      problem, and considered such steps to remedy the problem. We reiterate
      the duty of the parties and their Counsel, at all levels, to double check
B
      and verify before making any presentation to the Court. The message
      must be sent out that everyone has to be responsible and careful in what
      they present to the Court. Time has come for these issues to be
      considered so that the citizen’s faith in the justice system is not lost. It is
      also for the Courts at all levels to consider whether a particular
C     presentation by a party or conduct by a party has occasioned unnecessary
      waste of court time, and if that be so, pass appropriate orders in that
      regard. After all court time is to be utilized for justice delivery and in the
      adversarial system, is not a licence for waste.
             12. As a responsible officer of the Court and an important adjunct
D     of the administration of justice, the lawyer undoubtedly owes a duty to
      the Court as well as to the opposite side. He has to be fair to ensure that
      justice is done. He demeans himself if he acts merely as a mouthpiece
      of his client as observed in State of Punjab & Ors. vs. Brijeshwar
      Singh Chahal & Ors., (2016) 6 SCC 1: -
E            “34.…relationship between the lawyer and his client is one of
             trust and confidence. As a responsible officer of the court and an
             important adjunct of the administration of justice, the lawyer also
             owes a duty to the court as well as to the opposite side. He has to
             be fair to ensure that justice is done. He demeans himself if he
             acts merely as mouthpiece of his client…..”
F
             13. The observations with regard to the duty of a counsel and the
      high degree of fairness and probity required was noticed in D.P. Chadha
      vs. Triyugi Narain Mishra and others, (2001) 2 SCC 221: -
             “22. A mere error of judgment or expression of a reasonable opinion
G            or taking a stand on a doubtful or debatable issue of law is not a
             misconduct; the term takes its colour from the underlying intention.
             But at the same time misconduct is not necessarily something
             involving moral turpitude. It is a relative term to be construed by
             reference to the subject-matter and the context wherein the term
             is called upon to be employed. A lawyer in discharging his
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LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS                           397
              [NAVIN SINHA, J.]

  professional assignment has a duty to his client, a duty to his        A
  opponent, a duty to the court, a duty to the society at large and a
  duty to himself. It needs a high degree of probity and poise to
  strike a balance and arrive at the place of righteous stand, more
  so, when there are conflicting claims. While discharging duty to
  the court, a lawyer should never knowingly be a party to any
                                                                         B
  deception, design or fraud. While placing the law before the court
  a lawyer is at liberty to put forth a proposition and canvass the
  same to the best of his wits and ability so as to persuade an
  exposition which would serve the interest of his client so long as
  the issue is capable of that resolution by adopting a process of
  reasoning. However, a point of law well settled or admitting of no     C
  controversy must not be dragged into doubt solely with a view to
  confuse or mislead the Judge and thereby gaining an undue
  advantage to the client to which he may not be entitled. Such
  conduct of an advocate becomes worse when a view of the law
  canvassed by him is not only unsupportable in law but if accepted
                                                                         D
  would damage the interest of the client and confer an illegitimate
  advantage on the opponent. In such a situation the wrong of the
  intention and impropriety of the conduct is more than apparent.
  Professional misconduct is grave when it consists of betraying
  the confidence of a client and is gravest when it is a deliberate
  attempt at misleading the court or an attempt at practicing            E
  deception or fraud on the court. The client places his faith and
  fortune in the hands of the counsel for the purpose of that case;
  the court places its confidence in the counsel in case after case
  and day after day. A client dissatisfied with his counsel may change
  him but the same is not with the court. And so the bondage of
                                                                         F
  trust between the court and the counsel admits of no breaking.
            xxx                       xxx                       xxx
  24. It has been a saying as old as the profession itself that the
  court and counsel are two wheels of the chariot of justice. In the
  adversarial system, it will be more appropriate to say that while      G
  the Judge holds the reigns, the two opponent counsel are the wheels
  of the chariot. While the direction of the movement is controlled
  by the Judge holding the reigns, the movement itself is facilitated
  by the wheels without which the chariot of justice may not move
  and may even collapse. Mutual confidence in the discharge of
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398            SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A           duties and cordial relations between Bench and Bar smoothen
            the movement of the chariot. As responsible officers of the court,
            as they are called – and rightly, the counsel have an overall
            obligation of assisting the courts in a just and proper manner in the
            just and proper administration of justice. Zeal and enthusiasm are
            the traits of success in profession but overzealousness and
B
            misguided enthusiasm have no place in the personality of a
            professional.
                      xxx                        xxx                        xxx
            26. A lawyer must not hesitate in telling the court the correct
C           position 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 a
            binding precedent even if it does not serve the cause of his client,
            must be brought to the notice of court unhesitatingly. This obligation
            of a counsel flows from the confidence reposed by the court in
            the counsel appearing for any of the two sides. A counsel, being
D           an officer of court, shall apprise the Judge with the correct position
            of law whether for or against either party.”
            14. That a higher responsibility goes upon a lawyer representing
      an institution was noticed in State of Rajasthan and another vs.
      Surendra Mohnot and others, (2014) 14 SCC 77: -
E
            “33. As far as the counsel for the State is concerned, it can be
            decidedly stated that he has a high responsibility. A counsel who
            represents the State is required to state the facts in a correct and
            honest manner. He has to discharge his duty with immense
            responsibility and each of his action has to be sensible. He is
F           expected to have higher standard of conduct. He has a special
            duty towards the court in rendering assistance. It is because he
            has access to the public records and is also obliged to protect the
            public interest. That apart, he has a moral responsibility to the
            court. When these values corrode, one can say “things fall apart”.
G           He should always remind himself that an advocate, while not being
            insensible to ambition and achievement, should feel the sense of
            ethicality and nobility of the legal profession in his bones. We
            hope, that there would be response towards duty; the hallowed
            and honoured duty.”

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  LAL BAHADUR GAUTAM v. STATE OF U.P. AND OTHERS                                 399
                [NAVIN SINHA, J.]

       15. In view of the conclusion that the termination is in teeth of the     A
provisions of the Act, it is set aside. The appellant is held entitled to
reinstatement. The respondent management is not precluded from
proceeding afresh in accordance with law from the stage of irregularity.
In that eventuality the Vice-Chancellor shall consider any request for
approval on its own merits in accordance with law without being
                                                                                 B
influenced by any observation in the present order. The question of back
wages, if any, shall abide by any such decision of the Vice-Chancellor.
       16. The appeal stands disposed of.

Kalpana K. Tripathy                                        Appeal disposed of.   C




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