JUDGMENT Arun Tandon, J.
1. Heard Sri Ashok Khare Senior Advocate assisted by Sri V.K. Singh Advocate on behalf of the petitioner, Sri C.K. Parekh Advocate on behalf of respondent no. 5 and Standing Counsel on behalf of respondents 1, 2 and 3.
2. Faiz-e-Aam Intermediate College, city and district Meerut is a minority institution recognized and aided under the provisions of the U. P. Intermediate Education Act, 1921. The provisions of the U.P. Intermediate Education Act, Regulations framed thereunder and also those of High School and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971 are fully applicable to the teachers and staff of the said institution. Petitioner, Afzal Ali, was employed as Class IV employee in the said institution. He was served with a show cause notice dated 12.07.2003 by the Principal of the institution whereunder he was placed under suspension and an opportunity to furnish his explanation in respect of allegations as mentioned in the notice was also afforded.
3. One Sri Afroz Ahmad, Lecturer, was appointed as the Enquiry Officer in the matter. The petitioner submitted reply to the show cause notice and denied the allegations made against him in the show cause n6tice. The Principal of the institution, however, passed an order dated 11.08.2003 imposing the punishment of dismissal from, service upon the; petitioner. Against the said order of the Principal of the institution the petitioner preferred an appeal before the Committee of Management on 23.09.2003. Since the appeal was not decided within the period provided for under the Regulations, the petitioner preferred an appeal before the District Inspector of Schools dated 04.11.2003. The District Inspector of Schools by means of order dated 01.03.2004 has rejected the appeal of the petitioner in view of the judgment of this Court in the case of Saint Joseph High School, Meerut v. Ravi Skankar Sharma, 1996 A.L.J. 1070 on the ground that he has no jurisdiction to take any decision on the appeal and the petitioner may get his rights decided by a competent court of law.
4. In the present writ petition the petitioner has not challenged the order passed by the District Inspector of Schools dated 04.11.2003 and he has acquiesced to order of the District Inspector of Schools holding that the District Inspector of Schools has no jurisdiction to pass any order on the appeal in view of the judgment of this Court in the case of Saint Joseph High School, Meerut v. Ravi Shanker Sharma (supra). It is, therefore; not necessary for this Court to adjudicate upon the merits of the order passed by the District Inspector of Schools, thus no opinion is being expressed as to whether the appeal in the facts of the case as filed by the petitioner could have been decided by the District Inspector of Schools or not in view of the provisions of the Regulations framed under the U.P. Intermediate Education Act, 1921.
5. The petitioner, however, has Challenged the basic order of the Principal of the Minority Institution dated 11.08.2003 and it is contended that this Court may adjudicate upon the legality or otherwise of the order passed by the Principal, on merits.
6. The order of the Principal of the institution is being questioned basically on the ground that the enquiry in respect of the alleged misconduct of the petitioner has not been held as per the provisions contained in Regulation 35 to 39 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act. It is submitted that the enquiry committee did not fix any date for hearing/consideration or recording of the evidence of the witnesses nor any date was fixed for the purpose of affording opportunity to the petitioner to lead his evidence or to cross-examine the witnesses which may have been produced by the employer for bringing home the charge. It is, therefore, contended that the order has been passed without holding any proper enquiry as per Regulations 35, 36 and 37 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act. In support of the said assertion the petitioner has placed reliance upon paras 27, 28, 29, 30, 31 and 32 of the writ petition.
7. Lastly it has been contended on behalf of the petitioner that the Principal of the institution before passing the impugned order of punishment dated 11.08.2003 did not afford! any opportunity of hearing to the petitioner nor a copy of the enquiry report was supplied to the petitioner. Therefore, the order passed against the petitioner is in violation of the principles of natural justice and is legally not justified (reference para 36 of the writ petition).
8. On behalf of respondents it is contended that the enquiry has been conducted in accordance with the principles of natural justice and in accordance with the regulations referred to above. The petitioner has been afforded full opportunity of hearing. In the alternative it is contended that having regard to the seriousness of the charges as have been leveled against the petitioner this Court may not interfere under Article 226 of the Constitution of India.
9. The contents of paras 20 and 21 of the writ petition have been denied by means of para 12 of the counter affidavit and it has been stated that the Principal of the institution in accordance with the regulations applicable appointed Sri Afroz Ahmad as the enquiry officer who issued notice to the petitioner granting time to submit reply to the charges. The petitioner submitted a short reply. From the reply so submitted by the petitioner it is apparent that the petitioner did not deny the allegations. The explanation furnished was to the, effect that he was not at his residence on the relevant date and had returned only after the date of the incident; further that no incident has thereafter taken place at the residence of the petitioner. However, the petitioner stated that whatever has happened at his residence in absence of the petitioner is regretted and the petitioner may be, pardoned. He undertakes to ensure that future such complaints shall hot be received by the management.
10. The reply submitted by the petitioner has been enclosed as Annexure-3 to the writ petition. From the letter it is further apparently clear that the petitioner did not deny the allegations as were leveled against him. He only claimed that he was not present on the relevant date at his residence. Further he did not seek any opportunity of hearing in the matter before the enquiry officer nor did he propose to lead any evidence in support of his case. The enquiry officer forwarded a notice dated 29.07.2003 requiring the petitioner to make his submissions. The petitioner even after receipt of the letter did not appear before the enquiry officer nor did he avail the opportunity so afforded to him. The enquiry officer conducted the enquiry in accordance with the regulations and thereafter submitted his report. On receipt of the enquiry report the Principal of the institution passed the order dated 11.08.2003 dismissing the petitioner from service.
11. With regard to the contention of the petitioner in para 36 of the writ petition that the Principal of the institution did not afford opportunity of hearing to the petitioner before relying upon the report of the enquiry officer in passing the impugned order, the counsel for the respondents has referred to para 21 of the counter affidavit wherein it has been stated that full opportunity of hearing was given to the petitioner.
12. I have heard learned counsel for the parties and gone through the record of the writ petition.
13. So far as the objection raised by the petitioner with regard to the manner in which the enquiry has been conducted, from the records it is established that the petitioner was issued a notice by the enquiry officer dated 29,07.2003. The petitioner failed to avail the opportunity so afforded to him. As a matter of fact the petitioner did not ask for opportunity of personal hearing. The petitioner as such has no right to object to the i procedure, in accordance whereof the enquiry has been conducted. This Court has no hesitation to hold that the petitioner has not been able to substantiate his allegation that the enquiry proceedings have been conducted in violation of Regulations 35, 36 and 37 as contained in Chapter-III of the Regulations framed under the U.P. Intermediate Education Act.
14. The second contention of the petitioner that the, Principal of the institution did not afford opportunity of hearing before relying upon the report of the enquiry officer and before passing the impugned order of punishment, is correct. In para 36 of the writ petition the petitioner has specifically averred that the Principal of the institution did not afford any opportunity of hearing nor the enquiry officer's report was forwarded to the petitioner before passing the impugned order of punishment. No specific reply to the said allegation has been given in para 21 of the counter affidavit. The respondents have deliberately avoided . to give! specific reply to the allegation made in para 36 of the writ petition. Therefore, it is held that the contention of the petitioner to the extent that the Principal of the institution (disciplinary authority) did not afford opportunity of hearing to the petitioner and did not forward the enquiry report to the petitioner before passing the impugned order of punishment, is fully established.
15. The Hon'ble Supreme Court in the case of Union of India and Ors. v. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588, has specifically held that the report of the enquiry officer is only a piece of evidence which is to be taken into consideration by the disciplinary authority for the purposes of passing the order of punishment. Such a material cannot be taken into consideration by the disciplinary authority Without forwarding a copy of the report and affording opportunity of hearing to the delinquent employee to have his say in the matter. Any procedure to the contrary would be in violation of the principles of natural justice, arbitrary and violative of Article 14 of the Constitution of India.
16. In view of the aforesaid legal position non furnishing of the enquiry report to the petitioner and denial of opportunity of Hearing , by the disciplinary authority before passing the impugned order vitiates the order of punishment. Such an order cannot be permitted to stand on record. Accordingly the order dated, 11.08.2003 haying been parsed in violation of the principles of natural justice is hereby quashed.
17. However, this Court cannot loose sight of the nature of allegations which have been leveled against the petitioner who was working in an educational institution. Institutions are temples of learning. Even if remotely the petitioner is found to be involved in an activity as has been alleged in the charge leveled against the petitioner and which has been found proved by the enquiry officer, it would practically ruin the entire teaching atmosphere of the institution. In such circumstances this Court in order to maintain purity of the temples of learning pass the following consequential order:-
(a) The petitioner shall be reinstated in service within two weeks from the date he produces a certified copy of this order before the Principal of the institution.
(b) The petitioner shall be paid his future salary from the date of reinstatement
(c)The Principal of the institution shall afford opportunity of hearing to the petitioner after forwarding a copy of the enquiry report strictly in accordance with the principles of natural justice and shall pass a reasoned speaking order after taking into consideration the explanation furnished by the petitioner within one month.
(d) The payment of arrears of salary shall depend upon the final order to be passed by the Principal. If the Principal of the institution again confirms the order of punishment which has been passed against the petitioner, the petitioner will not be entitled to arreas of salary for the period he was out of employment.
18. Writ petition is partly allowed subject to the conditions mentioned above.