RESERVED :29.03.2018
DELIVERED : 24.04.2018
Case :- WRIT - A No. - 6485 of 2018
Petitioner :- C/M Mahatma Gandhi Gopi Nath Singh, Higher Secondary School, And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Alok Dwivedi
Counsel for Respondent :- C.S.C.,Subhash Chandra Yadav
Hon'ble Siddharth,J.
Heard Sri Alok Dwivedi, learned counsel of the petitioner and Sri Subhash Chandra Yadav, learned counsel for the respondent no.3 and learned Standing Counsel for the State-respondents.
This writ petition has been filed by the petitioners, Committee of Management of Mahatama Gandhi Gopi Nath Singh Higher Secondary School, Kanpur Nagar, through its Manager and another, praying for quashing of the order dated 02.02.2018, passed by respondent no.2, District Inspector of Schools, Kanpur Nagar, disapproving the suspension of respondent no.3 from service on the post of Assistant Teacher.
The brief facts of the case are that the petitioner no.1, Committee of Management of the Institution convened a meeting dated 31.05.2018 and suspended the respondent no.3 from service and enquiry was ordered against him, placing him under suspension w.e.f., 01.06.2017. The papers were forwarded to the respondent no.2, District Inspector of Schools, Kanpur Nagar, for approval of the suspension of respondent no.3 and by the order dated 06.09.2017, the same was disapproved by the respondent no.2. The petitioner assailed the order dated 06.09.2017, passed by respondent no.2 in Writ-A No.46220 of 2017 and by the order dated 05.02.2017, this Court set aside the same and directed the respondent no.2 to pass fresh order as per Section-16-G(7) of the U.P. Intermediate Education Act, 1921, after affording opportunity of hearing to the parties.
In the meantime the disciplinary proceedings against the respondent no.3 has been concluded and papers have been forwarded to the respondent no.2 on 17.11.2017 for referring the matter to U.P. Secondary Service Selection Board, as per Section-21 of the U.P.Act No.5 of 1982, but he has not forwarded the same, despite direction of this Court dated 19.01.2018 in Writ-A No.2666 of 2018.
In pursuance of the order dated 05.10.2017, passed in Writ-A No.46220 of 2017, the respondent no.2 has passed the impugned order dated 02.02.2018 again disapproving the order of suspension passed by the petitioners against the respondent no.3 and hence this writ petition has been filed assailing the same.
The petitioners have challenged the impugned order on the ground that it has been passed by the respondent no.3 without considering the reply of the petitioner and gravity of the charges leveled against the respondent no.3. He has gone into the merits of charges and recorded finding exonerating him of the charges. The enquiry committee appointed by the respondent no.2 to enquire into the charges against the respondent no.3 is illegal and not provided under the statute and also against the direction of this Court dated 05.10.2017. The respondent no.2 has entered into the merits of the charges which he was not required to go into since the enquiry into the charges has already been conducted by the petitioners and papers have been forwarded to the Board by the respondent no.2 on 26.01.2018. The charges against the respondent no.3 are very serious, resulting into major penalty of dismissal. The respondent no.2 has limited jurisdiction under Section-16-G of the U.P.
Intermediate Education Act and he has traveled beyond that. There is no requirement of presence of the entire Committee of Management before the respondent no.2 for verification of signature and no member of Committee of Management ever made any complaint that the signature on the resolution passed in the meeting does not bears his signature. The impugned order is arbitrary and has been passed without application of mind and deserves to be set aside The learned Counsel for the respondent no.3 has submitted that the respondent no.2 has passed the impugned order dated 02.02.2018, after considering material on record, sufficient opportunity of hearing was granted to the petitioners before passing the order aforesaid. The respondent no.2 has not considered the merits of the charges but has only recorded his prima facie finding that the charges are incorrect. The enquiry committee was although appointed by the respondent no.2 but its report is not the basis of passing of the impugned order dated 02.02.2018. Such a Committee was appointed under bonafide belief of such a stipulation in the order and direction of this Court dated 05.02.2017 in Writ Petition No.46220 of 2017. The respondent no.2 has considered the resolution of the Committee of Management, statements of the effected parties and has also heard the Principal of the Institution and thereafter considering the material on record has passed the impugned order which is perfectly in accordance with law. The respondent no.2 wrote several letters to submit the required documents but the documents as per Regulation 39 were not submitted. The names and addresses of the members of the Committee of Management, who attended the meeting, which resolved to suspend the petitioners, were required by the respondent no.2 but the petitioners never provided the same. Even the resolution to suspend the respondent no.3 was not brought on record. The list of the names of the members of Committee of Management participating in meeting dated 31.05.2017 was not provided to the respondent no.2 by the petitioners. The writ petition has been filed on incorrect facts and no ground has been made out for filing the same and it deserves to be dismissed.
The learned Counsel for the petitioner has relied upon the judgment dated 17.05.2012, passed in Writ-A No.24320/2012, C/M. D.P.S.N. Inter College & another Vs. State of U.P. and others and has argued that this Court has held that the District Inspector of Schools has no jurisdiction to appoint enquiry committee for proving into the correctness of charges leveled against the petitioner. The observations of the Court are as follows:-
“ Having heard learned counsel for the parties and having examined the records, I am of the considered opinion that it is not necessary for this Court to enter into the necessities of the legal contentions which have been raised before this Court inasmuch as writ petition is liable to be disposed of on a short ground namely the District Inspector of Schools could not have constituted an independent committee for entering into the correctness or otherwise of the charges levelled against the petitioner. Such enquiry by the District Inspector of Schools is wholly without jurisdiction and the report of the enquiry officer cannot be the basis for the District Inspector of Schools to hold that the charges against the Principal were not even prima facie established.
Consequently, the order impugned is hereby quashed and the District Inspector of Schools is directed to re-examine the issue in light of the powers vested in him under Section 16-G(5) of Act, 1921 and within four corners of the scheme contemplated therein, after affording opportunity of hearing to the Committee of Management and the Principal. The enquiry report obtained by him shall not be taken into consideration and will be ignored while taking the decision afresh. However, all objections raised by respondent no. 3 as have been noticed herein above as well as those which may be raised before the District Inspector of Schools shall be taken into consideration and reasoned order shall be passed by the District Inspector of Schools. The aforesaid exercise shall be completed preferably within eight weeks from the date a certified copy of this order is filed before him by either of the parties.
The reliance on the Judgment in the case of Tej Narain Singh Vs. State of U.P. and others, 2008(4) ESC 2301 (DB) has also been made and has been argued that the District Inspector of Schools can not record a conclusive findings regarding the charges forming basis of order of suspension of a teacher, while exercising powers under Section-16-G(7) of the U.P. Intermediate Education Act and has relied upon paragraph nos. 13, 14, 15 and 16 thereof, as follows:
13. The question is as to whether pending departmental enquiry into the charges can the District Inspector of Schools, while exercising powers under Section 16-G(7), record conclusive findings qua the charges bing established or not.
14. We are of the considered opinion that the District Inspector of Schools, while exercising the power under Section 16-G(7), has only to examine on prima facie basis as to whether the charges have any substance and as to whether there is material available in support of the charges. He is not required to enter into any disputed issue as to whether charge would be finally made out or not. The issue in that regard has to be examined in departmental enquiry to be held against the Principal.
15. District Inspector of Schools was therefore not justified in recording conclusive findings on the charges, as has been done in the facts of this case vide order dated 24.4.2008, to the effect that the charges have not been made out. Such a conclusion would adversely effect the departmental enquiry which has been initiated against the Principal of the institution.
16. We, therefore, have no hesitation to hold that the last paragraph of the order of the District Inspector of Schools dated 24.4.2008, in so far as it records that the charges have not been made out, is legally unsustainable and is hereby quashed.
Reference to the Judgment passed in Writ-A No.56244 of 2017, has also been made to lay emphasis on the above principle as follows:
“…...The District Inspector of Schools has to examine the papers so transmitted but would have no right to address on the merit of the charges, but has only to see on, prima facie, basis, as to whether, charges have any substance. The issue in that regard has to be examined in departmental enquiry to be held against the Principal/Teacher.
The documents and materials brought on record would reflect that the second respondent has exceeded his jurisdiction under sub-clause (7) of Section 16G by entering into the merit of the charges. The impugned order does not record any reason nor there is application of mind, as to whether, the materials produced by the Management, prima facie, forms the basis of the allegations and if proved, would tantamount to termination/reduction in rank of the fifth respondent. The impugned order, further, does not consider the objections raised by the petitioner for revocation of the suspension order nor does it, prima facie, examine, as to whether, the charges have any substance or there is specific material to support the charge. (Refer: Sri Mahanthu Radha Krishna Inter College, Sakarpura District Vallia vs. District Inspector of Schools an another4; Tejnarain Singh vs. State of U.P. and others5; Mau Aima Allahabad and another vs. DIOS Allahabad and another6; C/M Moti Lal Nehru Smarak Inter College and another vs. District Inspector of Schools, Azamgarh7).
The learned Counsel for the petitioners has placed the Judgment in the case of Committee of Management, Shukulpur Intermediate College Vs. Deputy Director of Education & others, (1995) 1 UPLBEC 398, before the Court and has argued that the delay in submission of the report by the Committee of Management regarding suspension of teacher to the District Inspector of Schools within 7 days is not mandatory. He has relied upon the paragraph no.7 of the Judgment as follows, Now the question that arises for consideration is as to whether if there is a delay in submitting the report can the District Inspector of Schools revoke the order of suspension passed against a teacher. In the case of Mahesh Prasad Gov. v. Authorised Controller V. D. 1. College (supra), it was held that requirement of sending the report and particulars regarding suspension of teacher within seven days is not mandatory. We are respectfully in agreement within the view taken in the said decision. The reason being that in sub-section (6) report regarding suspension is required to be submitted within seven days, whereas under sub-section (7) of section 16-g, the suspension order is to continue for period of sixty days unless disapproved by the District Inspector of Schools. So even if the report regarding suspension is not received within seven days, the suspension order continues. The purpose of sending the report alongwith the particulars regarding suspension of a teacher within seven days appears to be that the District Inspector of Schools may take a decision quickly within the stipulated period of time. If no material at all is furnished by Management at the time, when the District Inspector of Schools is taking a decision and ultimately the District Inspector of Schools revokes the order of suspension in the absence of the materials regarding suspension of a teacher, the Management is to blame itself, where the report and other particulars regarding suspension of a teacher is received within seven days of the date of suspension. It is still open to the District Inspector of Schools to call for further material from the Management in order to satisfy himself in respect of validity of the order of suspension. Thus, in case the required report and other particulars concerning suspension if received by the office of the District Inspector of Schools after passing of the seven days from the date of the order of suspension, but is available on the date, when District Inspector of Schools is to take decision in respect of validity of the order of suspension, the said report and particulars cannot be rejected by the District Inspector of Schools merely on the ground that it was not submitted within seven days from the date of order of suspension. In the present case the report and particulars regarding suspension was sent after seven days from the date of the order of suspension, but was available on the date when the District Inspector of Schools took decision. Under such circumstances it is not open to District Inspector of Schools to brush aside the material furnished by the Management, and to revoke the order of suspension merely on the ground that the said material was not furnished within seven days from the date of the order of suspension. We are, therefore, of the view that the impugned order of the District Inspector of Schools revoking the order of suspension passed by the Management was not warranted by law. We accordingly, set aside the order of the District inspector of Schools dated 13-1-1995 and the order of the learned Single Judge under appeal. The District Inspector of Schools shall consider the report and other particulars concerning the suspension of respondent No. 4 even if it was sent after expiry of seven days from the date of order of suspension. We may further clarify that if the District inspector of Schools still feels that further documents are required, he may call for the same and take a decision in accordance with law within the time indicated above.
After considering the rival submissions and the Judgments placed before this Court, the merits of the impugned order are being examined. As per Regulation-39, framed under Section-16-G of the Intermediate Education Act, 1921, the following documents are required to be submitted before the District Inspector of Schools along with the report of suspension of teacher or principal of the Institution, 16G. [Conditions of service of Head of Institutions, teachers and other employees]. - (1) Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of this Act or with the Regulations shall be void.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), the Regulations may provide for, -
(a) the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment, [(including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude)] and the emoluments for the period of suspension and termination of service with notice;
(b) the scales of pay, and payment of salaries;
(c) transfer of service from one recognised institution to another;
(d) grant of leave and Provident Fund and other benefits; and
(e) maintenance of record of work and service.
(3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations.
(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management :
Provided that in the cases of punishment. before passing orders, the Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.
[(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In case the order under appeal was passed by the very person holding the office of Regional Deputy Director, while acting as Inspector, the appeal shall be transferred by order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself.] [(d) All appeals preferred under clause (c) as it stood before the date of commencement of the Intermediate Education (Sanshodhan) Adhiniyam, 1966. and pending decision immediately before the said date shall be decided by the Regional Deputy Director, Education, in accordance with clause (c) as substituted by the said Adhiniyam.]
(4) An order made or decision given by the competent authority under sub-section (3) shall not be questioned in any Court and the parties concerned shall be bound to execute the directions contained in the order or decision within the period that may be specified therein.
[(5) No Head of Institution or teacher shall be suspended by the Management, unless in the opinion of the Management, -
(a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank; or
(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him; or
(c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial.
(6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as may be prescribed and be accompanied by all relevant documents.
(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force more than sixty days form the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court.
(8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institution or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management to make representation revoke an order of suspension passed under this section.
(9) All appeals pending before the Deputy Director of Education (Women) immediately before the commencement of this sub- section shall be transferred to the Joint Director of Education (Women) for disposal :
Provided that where the Deputy Director of Education (Women) has already commenced the hearing of any such appeal before the commencement of this sub-section, the appeal shall be disposed of by the Deputy Director of Education (Women) herself.
Explanation. - For the purposes of this section, the expression 'Regional Deputy Director. Education shall, in relation to a girls' institution mean the Joint Director of Education (Women).] [16GG. Regularisation of appointment of ad hoc teachers. -
(1) Notwithstanding anything contained in Sections 16-E, 16-F and 16-FF, every teacher of an institution appointed between August 18, 1975 and September, 30, 1976 (both dates inclusive) on ad hoc basis against a clear vacancy and possessing prescribed qualifications or having been exempted from such qualifications in accordance with the provisions of this Act, shall, with effect from the date of commencement of this section, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date of his appointment up to the commencement of this section.
Explanation. - For the purposes of this sub-section, the period during which any break in service of teacher has occurred between the date of his ad hoc appointment and the date of commencement of this section for any reason not arising out of his misconduct or his own volition shall disregarded :
Provided that nothing in this section shall be construed as entitling such teacher to any pay or allowance for any such period of break in his service.
(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of commencement of this section.
(3) Nothing in this section shall be construed to entitle to any teacher to, -
(a) substantive appointment on any post if on the date of commencement of this section, such post has already been filled or selection for such post has already been made in accordance with this Act or the regulations made thereunder; or
(b) substantive appointment if such teacher was related to any member of the Committee of the Management or the Principal or Headmaster of the institution concerned.
Explanation. - For the purposes of this sub-section, a person shall be deemed to be related to another if, -
(a) they are members of a Hindu Undivided family; or
(b) they are husband and wife; or
(c) the one is related to the other in the manner indicated in the] [Second Schedule.] In the impugned order a finding has been recorded that the respondent no.3, the delinquent teacher, has expressed his doubt regarding the presence and signatures of all the members of the Committee of Management while passing the resolution dated 13.11.2017. The respondent no.2 therefore wrote a letter dated 11.12.2017 to the Manager of the Institution to produce all the office bearers/ members before him on 18.12.2017, so that their signatures on the disputed resolution may be verified. Such a letter was again sent to the Manager of the Institution on 20.12.2017 to produce all the members/ office bearers before him, who made their signature on the aforesaid resolution of the suspension of the petitioner on 26.12.2017. On 16.12.2017, the Manager of the Institution sent a letter to the respondent no.2 stating that she never stated that in the meeting of the Committee of Management, whereby resolution for suspension of the respondent no.3 was passed, only 5 members were present. She has always stated that 10 members were present in the meeting and the duly certified copy of the register of proceedings was sent to the respondent no.2 and has been produced thereafter on different dates of hearing. The Manager further stated that there is no provision in the statute that the respondent no.2 can call the members of the Committee of Management, who passed the resolution recommending suspension of respondent no.3, to be present before him. The members of the Committee of Management are not his salaried employees. She further stated that the respondent no.2 is sitting over the papers submitted by the Manager for approval of the dismissal of the petitioner from service and is not forwarding the same to the Board for approval. A similar letter dated 26.12.2017, was again sent by the Manager of the Institution in response to the letter dated 20.12.2017 of the respondent no.2.
It is settled law that the burden of proving a plea taken /raised by a person, is required to be proved by him and the other side can not be compelled to produce negative evidence to prove the plea set up by the other side against him. In the present case, the respondent no.3 expressed his doubt about the signatures of all the members shown in the resolution recommending his suspension and on its basis the respondent no.2 started issuing notices dated 11.12.2017 and 20.12.2017 to the Manager of the Institution to produce all the members, who signed the resolution in dispute and fixed particular dates for the purpose. The Manager of the Institution replied both the aforesaid letters of respondent no.2 by letters dated 16.12.2017 and 26.12.2017 stating that there is no such provision in the statute for summoning the members of the Committee of Management nor they are the paid employees of the respondent no.2 to be called and produced before him as per his direction. In the impugned order the reply of the Manager of the Institution has not been considered and the only finding recorded is that despite repeated letters, the Management did not produced the members of the Committee who passed the resolution, regarding suspension of respondent no.3, for verification of their signature. Therefore, the finding recorded by the respondent no.2 is arbitrary and illegal. He has not mentioned any such provision which grants him power to summon the members of the Committee of Management in order to verify their signatures on the resolution in dispute. Despite, respondent no.3 not producing any evidence in support of the plea raised by him, his contention has been accepted and made basis of the impugned order while the contentions of the petitioners has been ignored and not considered at all.
The second issue which requires consideration is the appointment of an enquiry committee by the respondent no.2 for considering the merits of the allegations made against the petitioner in the suspension order. This Court has not approved such an exercise in Writ No.24320/2012, referred to herein above. The Counsel for the respondent no.3 has submitted that the respondent no.2 appointed the enquiry committee but the respondent no.2 has not relied upon the report of the enquiry committee and has passed the order independent exercise of his discretion. This argument is not correct, in view of the fact that the respondent no.2 has recorded clear finding in the impugned order that the enquiry committee has also not found the charges leveled against the respondent no.3 to be proved and has concluded that the resolution passed by the petitioner against the respondent no.3 and also the charges forming the basis of his suspension, have not been proved and therefore, he has declined to approve the suspension order dated 01.06.2017 passed against the respondent no.3 by the petitioners.
Regarding the finding no.1 recorded by the respondent no.2 that the documents sent by the Committee of Management for approval of the suspension of the petitioner were not complete it is to be noted that but it he has not been mentioned which documents were not sent.
Finally, the argument of the petitioner that the respondent no.2 has exceeded his jurisdiction by recording the finding regarding the merits of the charges, forming the basis of the suspension of the respondent no.3, does not appears to be correct. As argued by the Counsel for the respondent no.3, the respondent no.2 has not discussed the charges against the petitioner thread bare and has not recorded any finding regarding their tenability. The only finding is that the proceedings were initiated against the respondent no.3 on the direction of respondent no.2 dated 24.05.2017, which he cancelled on 25.05.2017 but in view of the order passed by this Court dated 05.10.2017 in Writ-A No.46220 of 2017, he is required to examine whether the charges are made out against the respondent no.3 or not.
It has been found that the respondent no.2 has not examined the merits of any charge against the petitioner, but in view of the findings regarding the direction for producing the members of the Committee of Management before him, reliance upon the report of the illegal enquiry committee appointed by him and without specifying the documents not produced by the petitioners, the impugned order dated 02.02.2018, passed by the respondent no.2 is hereby quashed. The respondent no.2 is directed to consider and decide the issue of approval of the suspension of the petitioner in the light of the observations made in the Judgment and also in the light of the order dated 05.10.2017 passed in Writ–A No.46220 of 2017 within 4 weeks from the date of presentation of the certified copy of this order before him.
This writ petition is allowed. No order as to costs.
Order Date :- 24.04.2018 SS