1: Heard Sri G.C. Verma, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1 and 2, Sri P.K. Singh Bisen, learned counsel for respondent Nos.3 and 4 and Sri Avnish Kumar Singh, learned counsel for respondent No.5.
2: By means of the present writ petition, the petitioner is challenging an order passed by the Director of Education (Basic), whereby certain benefits have been granted to the respondent No.5 of the post of Headmaster of an institution run and managed by the private Management receiving aid from the State Government.
3: Brief fact of the case is that the respondent No.5 was granted appointment on the post of Headmaster and while holding the post, disciplinary proceeding was initiated against him and he was suspended vide order dated 9.8.2005, which was challenged by way of Writ Petition No.5489 (S/S) of 2005, wherein this Court granted interim order and in pursuance thereof, the respondent No.5 was reinstated in service and continued to discharge his duties. The interim order granted by this Court was modified on 25.1.2006 with the permission to conclude the disciplinary proceeding, if any, against respondent No.5. In pursuance thereof, the disciplinary proceeding was initiated and after its conclusion, papers were submitted before the District Basic Education Officer for grant of prior approval as required under Rule 15 of the Rules of 1978. The District Basic Education Officer, after hearing the parties, disapproved the proposal of the prior approval of the disciplinary proceeding of the respondent No.5 on the ground that while concluding the disciplinary proceeding proper opportunity of hearing was not provided to the respondent No.5.
4: After the order passed by the District Basic Education Officer, the Committee of Management resolved to initiate proceeding by giving full fledged opportunity of hearing to the respondent No.5. It is the case of the Committed of Management that after giving opportunity of hearing to the respondent No.5, disciplinary proceeding was concluded and papers were submitted before the District Basic Education Officer for grant of prior approval on 23.11.2007. The District Basic Education Officer issued notice to the respondent No.5 and thereafter, the respondent No.5 sought one month time to file reply to the same.
5: Writ Petition No.6419 (S/S) of 2008 was filed before this Court, challenging the notice issued by the District Basic Education Officer as well as against the resolution passed by the Committee of Management proposed to dismiss the respondent No.5 with the prayer to pay all consequential benefits of service. The said writ petition was decided vide order dated 1.10.2008, whereby direction was issued to decide the claim setup by the respondent No.5 before the Director of Education (Basic).
6: The judgment and order passed by this Court was subject matter of challenge in Special Appeal No.661 of 2008, whereby the order passed by the learned Single Judge was set aside and the Division Bench of this Court held that the Director of Education (Basic) has no jurisdiction to decide the issue of grant of prior approval, as required under Rule 15 of the Rules and under the Rules, Basic Education Officer is the competent authority to exercise this power. After the judgment, the District Basic Education Officer again issued notice on the matter of grant of prior approval. It is the case of the petitioner that concealing the fact of pendency of earlier writ petition, he moved an application for recall of the judgment. After the judgment passed by the Division Bench of this Court, the District Basic Education Officer issued notice under Rule 15. The notice was challenged before this Court by the respondent No.5, which was finally decided, whereby direction was issued that the competent authority shall decide the matter expeditiously, within a period of four months.
7: Thereafter, the respondent No.5 approached the Director of Education (Basic) and requested that in absence of any order of suspension, termination or dismissal, the salary and other consequential benefits have been stopped, thus, direction be issued to the Committee of Management and other education authorities to release the benefits available to him. The Director of Education (Basic) issued notice to the parties including the Committee of Management and passed an order, whereby benefit was granted to the respondent No.5 to ensure payment as prayed by the respondent No.5.
8: The order passed by the Director of Education (Basic) dated 31.8.2010 is the subject matter of challenge in the present writ petition to the extent that the benefits have been provided to the respondent No.5. It is also relevant to record that in the meantime, the respondent No.5 retired from service on 30.6.2002.
9: Submission of learned counsel for the petitioner is that the Director of Education (Basic) is having no jurisdiction to try and decide the dispute in regard to the termination or dismissal of Teacher appointed in an institution by a private Committee receiving aid from the State Government. Next submission is that under Rule 15, the District Basic Education Officer is empowered to exercise his power for the grant of approval or disapproval and the order passed therein is appealable before the Director of Education (Basic), thus, the submission is that without any order, the Director of Education (Basic) cannot assume jurisdiction of the appellate court.
10: His next submission is that the Director was not having jurisdiction to issue direction to the Committee of Management or the other educational authorities to release the salary and other consequential benefits on the ground that the matter in regard to the grant of prior approval was pending before the District Basic Education Officer. His further submission is that the claim setup by the Committee of Management before the Director of Education was not taken into consideration and ignoring the same, the impugned order has been passed.
11: In submission on the point of jurisdiction, learned counsel for the petitioner placed reliance upon a judgment which was passed during the course of present dispute in Special Appeal No.661 of 2008 (Committee of Management Vs. State of U.P. & Others). In support of his submission, he further placed reliance upon a judgment passed in Writ Petition No.5996 (S/S) of 2010 (Jagdish Yadav Vs. State of U.P.), wherein several judgments of the Hon'ble Apex Court were taken into consideration that the authority who has been empowered to assume jurisdiction of appellate court cannot usurp power without any order passed by his subordinate officer.
12: On the other hand, learned counsel for the respondents submitted that it is a matter of Basic Education department recognized under the provisions of U.P. Basic Education Act, 1972 inasmuch as the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 are also applicable. It has further been submitted that during the pendency of the disciplinary proceeding, the petitioner retired from service on 30.6.2002, pending approval of the proposal of the Committee of Management to grant approval. In the Basic Education Act, 1972 and Act of 1978, there is no provision to continue the disciplinary proceeding, therefore, his submission is that in absence of any provision under the Act to continue the disciplinary proceeding after the retirement, no proceeding can be continued against the petitioner, thus, he is entitled for all benefits available to the post of Headmaster.
13: I have considered the submission advanced by learned counsel for the parties and perused the material on record.
14: On perusal of the record, it is evident that the Director of Education (Basic) has directed the Committee of Management to make payment of salary as well as arrears to the respondent No.5. The Director of Education (Basic) in absence of any order passed by the District Basic Education Officer, has no jurisdiction to usurp the power of the District Basic Education Officer, but as a matter of fact, the disciplinary proceeding initiated against the respondent No.5 and proposal made to the District Basic Education Officer is subject to approval required under Rule 15 of the Rules of 1978. The provision contained under Rule 15 of The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 is quoted below :-
"15. Termination of service. - No Headmaster or Assistant Teacher of a recognised school 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 District Basic Education Officer :
Provided that in the case of the Headmaster or an Assistant Teacher of a minority institution the approval of the District Basic Education Officer shall not be necessary."
15: The controversy in regard to the continuation of disciplinary proceeding and payment of salary after retirement came for consideration before the Hon'ble Supreme Court in the case of Bhagirathi Jena Vs. Board of Directors O.S.F.G. & others [AIR 1999 SC 1841], wherein the Hon'ble Supreme Court while considering the disciplinary proceeding after retirement, has held as under :-
"It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation, in view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95. there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
Learned senior counsel for the respondent placed reliance on the judgment of this Court in T.S. Mankad v. State of Gujarat reported in, [1989] Suppl. 2 SCC 110. It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent inasmuch as in that case there was a specific rule namely Rule 241-A of the Junagadh State Pension and Parwashi Allowance Rules, 1932 which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241-A. In the absence of a similar provision with Regulations of the respondent Corporation, the above judgment of Mankad's case cannot help the respondent.
The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and upto the date of superannuation. Inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the abovesaid period.
The appeal is therefore allowed directing the respondent to pay arrears of salary and allowances payable to him during the period of suspension upto the date of superannuation after deducting the suspension allowance paid to him for the said period and also to pay the appellant, all the retiral benefits otherwise payable to him in accordance with the rules and regulations applicable, as if there had been no disciplinary enquiry or order passed there in."
In the circumstances the judgment and order of the High Court is set aside. The writ petition of the appellant is allowed in terms of the directions given above. No order as to costs."
16: This Court in the case of Ravindra Singh Rathore Vs. District Inspector of Schools and Others decided by the Allahabad High Court in Writ Petition No.16905 of 2000 vide judgment and order dated 26.9.2003 has held that in absence of provision, no disciplinary proceeding can continue after the retirement and the employee is entitled for all consequential benefit permissible to the post. The relevant paragraphs 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 are being quoted below :-
"23. As noticed hereinbefore there is no specific provision which empowers the continuance of a disciplinary proceedings against an employee, teacher and Principal of an aided educational institution in the State of U.P. Rules 30 and 32 of the 1964 Rules also do not empower for continuance of departmental enquiry once the person has retired. Thus, the disciplinary proceedings could not have continued and it lapsed.
24. In the case of State Bank of India v. A.N. Gupta and Ors., (1997) 8 SCC 60, the Hon'ble Supreme Court was considering the question as to whether a departmental enquiry can be continued after the retirement in case of an employee of the State Bank of India. The Apex Court considered the judgment of the Andhra Pradesh High Court in T. Narasiah v. State Bank of India, (1978) 2 LLJ 173. In paragraph 14 of the judgment, the Hon'ble Supreme Court has held as follows :
"14. In the case before the Andhra Pradesh High Court (T. Narasiah) the petitioner was an officer in the State Bank. Disciplinary proceedings were initiated against him but before these could be completed the officer was informed by the Bank through its letter dated 5.5.1976, that it was not possible for the Bank to complete the enquiry well in time before the officer attained the age of 60 years which was the date of his superannuation. He was told he would therefore cease to be in the Bank's service on the date of his superannuation and he would not be paid any subsistence allowance with effect from that date. The officer was treated as having retired and ceasing to be in the employment of the Bank with effect from 10.5.1976. The Officer claimed his provident fund and pension and on the Banks' refusal to pay the same, a writ petition was filed. During the course of the hearing of the writ petition it was submitted by the Bank that it had since decided to pay the provident fund in full to the officer and the Bank had also no objection to pay his contribution to the pension and that as far as the payment of the Bank's share in the pension fund was concerned, the officer was not entitled thereto unless and until the Bank granted the same in accordance with Rule 11 of the Pension Rules. It was contended before the Andhra Pradesh High Court by the officer that Rule 11 had no application in his case and on attaining the age of superannuation he automatically went out of the service of the Bank. The Bank, however, relied on Rule 11 to withhold the Bank's contribution to the pension fund. The Court was of the view that Rule 11 had to be read in its context and consistent with the object behind the said Rule. It held that the Rule applied not only in the case of the retirement contemplated by Rule 19 but also to cases of retirement of employees on attaining the age of superannuation. The Court observed that it might happen that the irregularities of misfeasance of an employee could not be detected well before his retirement so as to initiate and complete disciplinary enquiry in the matter and again there might be a case where disciplinary enquiry was initiated but could not be completed before the delinquent employee attained the age of superannuation. The Court noted that there was no provision in the Service Rules of the Bank providing for extension of service of an employee to enable the authorities to complete the disciplinary enquiry against him which power was available under the Government Service Rules. The Court said even if an enquiry was pending against an employee there was nothing to stop him from retiring on his attaining the age of superannuation. The enquiry could not continue after his retirement. The Court was therefore, of the opinion that it was for that reason that the bank had reserved to itself the power to sanction the pensionary benefit under Rule 11 and if there was nothing wrong with the service of an employee throughout, the Bank would naturally sanction the pension, but if there was sufficient material disclosing grave irregularities on the part of the employee, the Bank might be well within its power in refusing to sanction the pensionary benefits, or in sanctioning them only partly. The learned single Judge of the Andhra Pradesh High Court then went on to hold as under :
"Of course, such decision has to be arrived at fairly, which necessarily means after holding an enquiry, giving a fair opportunity to the concerned officer to defend himself against the accusation. Such an enquiry would not be a 'disciplinary enquiry' within the ordinary meaning of the term, but an enquiry confined to the purposes of the Rules, viz., whether the employee should be granted any pensionary benefits ; and if so, to what extent? Such an enquiry can also be made after the retirement (of an employee ; and particularly in cases of retirement) on attaining the age of superannuation, probably, such enquiry will have to be conducted only after retirement."
The Court, therefore, gave direction as to how the enquiry was to be conducted against the officer so as to entitle him to the pensionary benefits if he was exonerated. We are afraid that this view of the Andhra Pradesh High Court does not commend to us. By giving such an interpretation to Rule 11 the Andhra Pradesh High Court has, in effect, lend validity to disciplinary proceeding against an employee even after his superannuation for which no provision existed either in Pension Rules or in the Service Rules and when the High Court had himself observed that an enquiry even if initiated during the service period of the employee could not be continued after his retirement on superannuation."
Thus, the Hon'ble Supreme Court has held that no disciplinary proceedings against an employee even after his superannuation for which no provision existed either in the Pension Rules or in the Service Rules, can be continued.
25. Recently, the Hon'ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and Anr., JT 2003 (6) SC 20, has held as follows :
"37. .........A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue."
26. Applying the principle laid down in Chandra Singh (supra) and Bhagirathi Jena (supra) to the facts of the present case, in the absence of any specific provision in the 1964 Rules, the proceedings for continuation of enquiry after the retirement of the employee lapsed.
27. The disciplinary proceedings can also not be saved in the present case on the ground that the committee of management had passed a resolution dismissing Sri Ravindra Singh Rathore from the post of Principal in the college and only the proposed punishment was required to be approved by the Board under Section 21 of the Act of 1982. Section 21 of the Act of 1982 reads as follows :
"21. Restriction on dismissal etc. of teachers.--The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void."
28. The statement of objects and reason for enacting the Act of 1982, inter alia, provided as follows ;
"...................Under Section 16G (3) of the Intermediate Education Act, 1921, managements were authorised to impose punishment with the approval of the District Inspectors of Schools in matters pertaining to disciplinary action. This provision was found to be inadequate in cases where the management proposed to impose the punishment of dismissal, removal or reduction in rank and so it was considered necessary that this power should be exercised subject to the prior approval of the Commission or the Selection Boards, as the case may be, which could function as an independent and impartial body."
29. The Hon'ble Supreme Court in the case of Committee of Management, St. John Inter College v. Girdhari Singh and Ors., (2001) 4 SCC 296, has, after taking into consideration the statement of objects and reasons of the Act of 1982, held that it unequivocally indicates that earlier provisions continued under Section 16G (3) (a) of the Education Act were found to be inadequate where the management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the Legislature thought that the power of approval/disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority, like the District Inspector of Schools, but should be vested with an independent Commission or Board which would function as an independent and impartial body.
30. Under Section 21 of the Act of 1982 the Board has to examine the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal or not. The Hon'ble Supreme Court in the case of Committee of Management Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and Anr. v. U.P. Secondary Education Service Commission and others, 1995 (Supp) 3 SCC 244, in paragraph 4 of the judgment, has held as follows :
"............. We have also noticed Section 21 of the Act to which our attention was particularly drawn. We are of the view that the High Court has fallen in error in holding that the enquiry was vitiated because the charge-sheet was not framed by the enquiry committee but by the committee of management. The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval of the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal. It must be remembered that thecommission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record..................."
31. In the case of Punjab National Bank and Ors. v. Kunj Behari Misra, (1998) 7 SCC 84, the Hon'ble Supreme Court has held that the disciplinary proceedings breaks into two stages. The first stage commences when the disciplinary authority arrives at its conclusion on the basis of the evidence, the enquiry officer's report and the delinquent employee replied to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. Since under Section 21 of the Act of 1982, it has been provided that if the management dismisses any teacher or removes him from service or serves on him any notice of removal from service or reduces him in rank or reduces his emoluments or withholds his increments for any period, whether temporarily or permanently, except the prior approval of the Board, such thing done without such prior approval shall be void.
32. Thus, it can safely be said that till such time the Board after considering the relevant material and going into the merits of the charges either approves or disapproves the proposed order of punishment, the disciplinary proceedings are continuing. Since Sri Ravindra Singh Rathore has retired before the Board had considered the matter for according approval, as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued."
17: In view of the above, the cause of action in challenging the order of Director on the ground of jurisdiction is not required to be decided at present. It is admitted case of the parties that the District Basic Education Officer has yet not granted approval, as required under Rule 15, therefore, it cannot be termed that the disciplinary proceeding against the respondent No.5 has attained finality in the eyes of law. Under Rule 15, the District Basic Education Officer can approve the proposal of the Committee of Management and also can disapprove the same with the direction to conclude the disciplinary proceeding in the light of the observation made therein. The respondent No.5 on attaining the age of superannuation, has retired from service on 30.6.2002, therefore, challenge to the order of Director has rendered infructuous.
18: In case the order of the Director is set aside on the ground that he was having no jurisdiction to pass the order for payment of salary and other benefits to the respondent No.5, at best, after setting aside the order, the matter would be remanded to the District Basic Education Officer for consideration of claim of the respondent No.5 in regard to his entitlement of salary. Once this Court has come to the conclusion that the respondent No.5 has retired and disciplinary proceeding has not been finalized by granting approval to the proposal of the Committee of Management, the cause of action of the petition has rendered infructuous.
19: The respondent No.5, accordingly, is entitled for the payment of salary applicable to the post of Headmaster of the institution inasmuch as the arrears of salary w.e.f. the date found due. Therefore, the District Basic Education Officer is directed to ensure entire payment to the respondent No.5 within a period of three months from the date of production of certified copy of this order.
20: With the aforesaid observation and direction, the writ petition is finally disposed of.
Order Date :- 18.1.2021 / Gautam