SHIV KUMAR RAI Vs. STATE OF U P

JUDGEMENT

(1.) COUNTER affidavit has been filed today. At the very outset Mr.R.K.Ojha counsel for the respondents pointed out that one of the questions which may arise in the case is whether the general body has any power to pass motion of no confidence and he offered to the counsel for the appellant and stated in court that in case he wants to file rejoinder affidavit and bring the scheme of administration or the relevant provision pertaining to no confidence on record he may do so. Counsel for the appellants Sri P.N.Saxena learned Senior Advocate instructed by Sri A.N.Rai states that he does not propose to file any rejoinder affidavit. With the consent of the parties' counsel we have heard this appeal finally. What has been challenged in the present appeal is an order of the learned Single Judge dismissing the writ petition of the appellants on the ground of alternative remedy by way of suit.. The facts which are relevant to decide this appeal are set out as under. It appears that the election to the Committee of Management of the Institution were held on 19.7.05 in which Shiv Kumar Rai was elected as President and Triloki Nath Pandey respondent no.5 was elected as a Manager. It also appears that a motion of no confidence dated 19.10.07 was passed against the Manager Triloki Nath Pandey and the Treasurer Bechan Tewari. The no confidence motion was approved by the Regional Level Committee by its resolution dated 15.12.08. It appears that Bechan Tewari filed a representation against the Regional Level Committee's resolution and the Regional Level Committee by its ex parte order dated 19.1.09 set aside its previous decision dated 15.12.08 and and it was said that it was the general body alone which was competent to pass motion of no confidence and the motion of no confidence actually passed in the case was illegal. This order of the Regional Level Committee was challenged in the writ petition filed by the appellants giving rise to the present appeal. The learned Single Judge found that disputed questions as to whether no confidence motion has been passed or not and if it had not been passed as recorded by the Regional Level Committee as to whether the petitioner was entitled to opportunity of hearing are involved and hence relegated the appellants to the remedy of suit. Sri P.N.Saxena Senior Advocate, counsel for the appellants submitted that after the decision of the Regional Level Committee dated 15.12.08 the District Inspector of Schools had attested the signatures of the appellant Gorakh Nath Rai appellant no.2 as officiating Manager and of Bans Narain Rai as Treasurer and that the District Inspect of Schools had cancelled the attestation without any notice to the appellants. It is also submitted that the order of the Regional Level Committee dated 19.1.09 was an ex parte order without notice to the appellants and the Regional Level Committee had no power to review its order and that the view taken by the Regional Level Committee that no confidence motion had been illegally passed is erroneous and is based on misconception that no confidence motion had not been passed in the general body when in fact it had been so passed. In the counter affidavit filed in the special appeal the stand taken is that the general body has no right to pass no confidence motion and that the papers of no confidence motion are manufactured. Neither the counsel for the appellants nor the counsel for the respondents could however place before us the scheme of administration to demonstrate whether at all there is any provision for motion of no confidence being passed against the office bearers of the committee of Management and in case there are provisions what are the terms. Counsel for the appellants relied upon a recital in the order of the Regional Level Committee dated 19.1.09 that there is a provision for no confidence in the scheme of administration. However the stand in the counter affidavit is that there is no provision for a no confidence motion by the general body against the office bearers. The appellants have not produced the scheme of administration nor have shown any other provision in this regard. In any case it is not clear as to what are the terms and conditions in the provision for no confidence assuming that there is such a provision and it is not clear against whom any motion of no confidence can be passed and what is the procedure for passing a no confidence motion and who are the persons who can vote in the meeting of no confidence. The learned Single Judge has dismissed the writ petition on the ground that disputed questions of fact are involved in the writ petition. In the counter affidavit the stand has been taken that the papers relating to no confidence motion are manufactured. In the circumstances the order passed by the learned Single Judge that the appellants have remedy to file a suit does not require any interference . All the questions, including the question as to whether there is any provision for no confidence motion and whether the procedure prescribed were duly followed and the question whether any motion of no confidence has been passed against the office bearers and all other question which are involved can be raised in the suit. Counsel for the appellants relied upon the Division Bench decision in Mohal Lal Sharma Vs. The District Inspector of Schools, Muzaffar Nagar and Others ( 1982 UPLBEC 213) that an administrative authority has no power to review its order. He also relied upon a decision of Division Bench in Committee of Management, Azamgarh and Deputy Director of Education 7th Region, Gorakhpur and Others ( 1987 UPLBEC 350) that no order can be recalled without opportunity to the parties. In the counter affidavit the stand of the respondent is that the order of the Regional Committee was obtained by concealment and misrepresentation of facts and in such a case the Regional Committee could well have passed the order dated 19.1.09. In this case however two questions have arisen namely whether there is any provision for passing a no confidence motion at all and second is about disputed questions of fact being involved. The burden of proof that there is such a provision is upon the appellants who are relying upon the no confidence motion. The appellants have declined to avail the opportunity of filing the rejoinder affidavit and bringing the scheme of administration or other provision on the record. As such the factual situation involved in this case is different from that in the cases cited. In the circumstances the Single Judge committed no error in relegating the appellants to the remedy of suit. The appeal is dismissed accordingly.