Court No. - 58
Case :- WRIT - A No. - 26936 of 2017 Petitioner :- C/M Of Baba Laxman Das Dwaba Rashtriya Inter College & Anr.
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Anand Kumar Pandey Counsel for Respondent :- C.S.C.,Pradeep Singh Sengar WITH Case :- WRIT - A No. - 12488 of 2018 Petitioner :- Shyam Sundar Upadhyay Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ashok Kumar Pandey Counsel for Respondent :- C.S.C.
WITH Case :- WRIT - A No. - 18204 of 2018 Petitioner :- Shyam Sundar Upadhyay Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Ashok Kumar Pandey Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
These writ petitions relate to disciplinary action resulting in an order of termination passed against Shri Shyam Sundar Upadhyay, who was a Head Clerk in Baba Laxman Das Dwaba Rashtriya Inter College, Bairia, District - Ballia. It transpires that an order of suspension was passed against him on 14.03.2015. This order of suspension was approved by the District Inspector of Schools on 15.09.2015. It is, however, alleged that even before the suspension order could be approved, the Committee of Management passed a resolution on 14.07.2015 for dismissing Shri Upadhyay from service. This order of dismissal was disapproved by the District Inspector of Schools on 06.02.2016. The order dated 06.02.2016 was challenged before this Court by filing Writ A No. 14986 of 2016 by the Committee of Management and the said writ petition was allowed on the ground that an opportunity of hearing had not been afforded to the Committee of Management. This Court further found that no reasons had been assigned for disapproving the decision of the Committee of Management. Consequent upon the order passed by this Court, the District Inspector of Schools has proceeded to examine the issue of approval by exercising his jurisdiction under Regulation 31 framed under Chapter III of the U.P. Intermediate Education Act, 1921 and the prayer for grant of approval has again been declined vide order dated 31.03.2017. This order has been challenged by the Committee of Management by filing Writ A No. 26936 of 2017 (the leading writ petition herein). Shri Shyam Sundar Upadhyay is respondent no. 5 in this petition. It appears that during the pendency of the writ petition of the year 2017, the payment of salary to Shri Shyam Sundar Upadhyay was stopped by the District Inspector of Schools on 30.10.2017 relying upon an order passed previously on 25.07.2016; whereby, approval is said to have been granted to the resolution of the Committee of Management to dismiss respondent no. 5 (Shri Shyam Sundar Upadhyay) on 14.07.2015. The order dated 30.10.2017, stopping the salary of Shri Shyam Sundar Upadhyay, has been challenged by him by filing Writ A No. 18204 of 2018 (the connected writ petition herein). In Writ A No. 18204, the alleged order of approval dated 25.07.2016 has also been assailed.
All these writ petitions have been clubbed together and are being disposed of by this common order.
Perusal of the record would go to show that following two charges were levelled against the respondent no. 5:
"vkjksi la[;k&1 izcU/k ds i= fnukad 26-12-2014] 15-01-2015 ,oa 04-02-2015 ,oa lekpkj&i= esa foKkfir uksfVl fnukad 20-02-2015 ds vuqikyu esa okafNr lwpuk miyC/k u djkdj vuq'kkluhurk djuk] fo|ky;h; deZpkfj;ksa dks izcU/k lfefr ds fOk:) HkM+dkuk rFkk Jh jkek/kkj ik.Ms; dks vlalnh;
Hkk"kk dk iz;ksx djukA vkjksi la[;k&2 fo|ky;h; f'k{kd ,oa f'k{k.ksRrj deZpkfj;ksa dh bZ&isesUV dh QhfMax esa vius uke ds vkxs l0fyfid ds LFkku ij l0v0 vafdr djkuk rFkk nks lky lsok vfHkys[k c<+k;s tkus dk iz;Ru dj jktdh; /kujkf'k dk xcu fd;s tkus dk iz;kl djukA"
So far as the first charge is concerned, the District Inspector of Schools has found that charges were levelled on the basis of a complaint made by one Ram Adhar Pandey, the Assistant Teacher. The complainant, Shri Ram Adhar Pandey, was also made the Inquiry Officer and his one-man inquiry report was relied upon for the purposes of imposing punishment of removal from service. The District Inspector of Schools has observed that the complainant, in the facts of the present case, has also functioned as the Inquiry Officer, which contravenes the principles of natural justice, according to which, a complainant cannot be a judge of his own cause.
So far as the second allegation is concerned, a further finding has been returned that the charge itself is not substantiated in view of the letter of the Finance & Accounts Officer dated 29.04.2015, according to which there was a typographical error and in place of "Head Clerk", "Assistant Teacher" was, inadvertently, typed. The mistake has been found to be inadvertent in view of the fact that in the original payment of salary bill, the status of the respondent no. 5 is shown as Head Clerk and merely because salary has been paid to the clerical staff, no illegality has been found.
So far as the order dated 25.07.2016 is concerned, which is heavily relied upon by the Committee of Management to hold that the approval has already been granted, this Court finds that apart from mentioning the charges, the approval has been granted without referring to the materials placed on record before the authority or without affording any opportunity of hearing to him. The order dated 25.07.2016 is reproduced in its entirety:-
^^ckck y{e.k nkl }kck jk"Vªh; b0dk0 cSfj;k] cfy;k vuqnkfur fo|ky; gS tks ek/;fed f'k{kk ifj"kn ds vf/kfu;e 1921 ds vUrxZr lapkfyr gS ,oa osru forj.k vf/kfu;e 1971 ls iw.kZr;k vkPNkfnr gSA izca/kd Jh Hkksyk ik.Ms; }kjk fo|ky; ds ofj"B fyfid Jh ';ke lqUnj mik/;k; dks fuEu vkjksikas esa fuyafcr fd;k x;kA vkjksi la[;k 1& izcU/k ds i= fnukad 26-12-2014] 15-01-2006 ,oa 04-02-2015 ds vuqikyu esa okafNr lwpuk miyC/k u djkdj vuq'kklughurk djuk] fo| ky; deZpkfj;ksa dks izcU/k lfefr ds fOk:) HkM+dkuk rFkk Jh jkek/kkj ik.Ms; dks vlalnh; Hkk"kk dk iz;ksx djukA vkjksi la[;k2& fo|ky; ds f'k{kd@f'k{k.ksRrj deZpkfj;kas dh bZ&isesUV dh QhfMax esa vius uke ds vkxs fyfid ds LFkku ij l0v0 vafdr djuk rFkk nks lky lsok vfHkys[k c<+k;s tkus dk iz;kl djukA buds fuyacu ds i'pkr~ lsok ls inP;qr djus gsrq vuqeksnu dh ekax izca/k ra= }kjk dh x;h gSA mDr vkjksikas ds ftls n`f"Vxr j[krs gq, izca/kd ds izLrko dh ekax ds vuq:i ';ke lqUnj mik/;k; dks lsok ls inP;qr djus ds izLrko dks vuqeksfnr fd;k tkrk gSA"
It is admitted that the provisions of Regulation 31, Chapter III framed under the U.P. Intermediate Education Act, 1921 are applicable in the facts of the present case, which reads as under:-
"31. Punishment to employees for which prior sanction from Inspector or Regional Inspectress would be essential may be any one of the following:
(1) Discharge,
(2) Removal or Termination,
(3) Demotion in grade,
(4) Reduction in emoluments.
Principal or Headmaster would be competent to give above punishment to Fourth class employees. In case of punishment awarded by competent officer, the Fourth class employee may appeal to Management Committee. This appeal must be preferred within one month of the date of intimation of the punishment and Management Committee on receipt of appeal will decide the matter within six weeks. On consideration of all necessary records and after giving an opportunity of hearing to the employee, if he wants to appear before the Management Committee, it will give its decision.
Fourth class employee would also have a right to represent against the decision of the Management Committee on his appeal to the District Inspector of Schools/Regional Inspectress of Girls Schools within one month of the date of intimation of the decision:
Provided that if Management Committee does not give its decision on above appeal within stipulated period of six weeks, the concerned employee after the expiry of above six weeks may represent directly to District Inspector of Schools/Regional Inspectress of Girls School.
District Inspector of Schools/Regional Inspectess of Girls School would give its decision within three months from the date of receipt of the representation and his decision would be final.
Regulations 86 to 98 of this Chapter would apply to presentation, consideration and decision of the representation with necessary changes."
The Inspector, therefore, has to specifically approve the resolution passed against a Class III employee and only with prior approval, the order of punishment specified in Regulation 31 could have been passed. The resolution, which has been passed against the respondent no. 5, proceeds upon the report of Shri Ram Adhar Pandey, who is also the complainant and on the basis of his report, the entire proceedings have been initiated. Finding contained in the order of the District Inspector of Schools dated 31.03.2017, in that regard, that the complainant is also the Inquiry Officer, is not shown to be perverse or erroneous nor there is any serious challenge to it. The Inspector, therefore, has rightly disapproved the punishment after recording a specific finding that principles of natural justice had been breached in the award of punishment to respondent no. 5. The second finding returned by the District Inspector of Schools on charge no. 2 is also not shown to be perverse or erroneous. Although it is stated that certain first information reports have been lodged in the matter, but that would not be material; in as much as, the disciplinary proceedings and order passed therein would have to be sustained on the basis of material placed on record during the course of the disciplinary action itself. Once that has not been done, not much will turn on mere lodging of first information reports. This, otherwise, would not affect the criminal proceedings, which can be taken to its logical end, in accordance with law.
Coming next to the order of disapproval dated 25.07.2016, this Court finds that the order neither has been passed after affording an opportunity of hearing to respondent no. 5, nor it refers to the seriousness of allegations or materials, which have been relied upon for the purposes of returning a finding by the disciplinary authority that charges are established. The exercise of jurisdiction under Regulation 31 is not an empty formality. The Inspector, while passing the order, is expected to examine the merits of the charges levelled and found proved and only after affording an opportunity of hearing, such an order could have been passed. The order dated 25.07.2016, therefore, fails to meet the requirement of a valid order and consequently, cannot be sustained.
For the reasons, discussed above, this Court finds that the order dated 25.07.2016 cannot be sustained and is quashed. The order itself cannot be treated to be a valid order for the purposes of approving punishment upon the respondent no. 5. As against this, the reasons assigned by the Inspector to disapprove the order of punishment vide order dated 31.03.2017 is found to be a reasoned order, which contains relevant discussions and findings, which have not been shown to be illegal or perverse.
In such view of the matter, WRIT - A No. - 26936 of 2017 (C/M Of Baba Laxman Das Dwaba Rashtriya Inter College & Anr. Vs. State Of U.P. And 4 Ors.) fails and is dismissed; while, WRIT - A No. - 12488 of 2018 (Shyam Sundar Upadhyay Vs. State Of U.P. & 5 Others) and WRIT - A No. - 18204 of 2018 (Shyam Sundar Upadhyay Vs. State Of U P & 5 Others) stand allowed.
Ordinarily, this Court would have remitted the matter with an opportunity to the Committee of Management to conduct a fresh inquiry in the matter. However, this Court is informed that respondent no. 5 has already attained the age of superannuation on 28.02.2018. In such circumstances, no useful purpose would be served in allowing the Committee of Management to proceed with the inquiry afresh, particularly, as the motive for initiating disciplinary proceedings itself has, otherwise, been questioned. This Court would not like to express any final opinion on that aspect of the matter, yet, in the totality of the circumstances, an opportunity to the Committee of Management to initiate fresh action, particularly, when respondent no. 5 has superannuated, is not warranted and therefore, denied.
The authorities concerned shall process and release the retiral benefits, admissible to the respondent no. 5, by passing an appropriate order, within a period of three months from the date of production of certified copy of this order.
Order Date :- 29.11.2018 Amit Mishra