1
Court No. - 2
Case :- WRIT - A No. - 30088 of 2008 Petitioner :- Gyan Bharti Mula Devi Sri Krishna Junior High School Respondent :- State Of U.P. And Others Counsel for Petitioner :- H.M. Srivastava,Neeraj Srivastava Counsel for Respondent :- C.S.C.,Balram Gupta
Hon'ble Suneet Kumar,J.
1. Heard learned counsel for the parties and perused the record.
2. The Committee of Management of a Junior High School, duly recognized and in grant-in-aid of the State Government, by the instant writ petition is assailing the order dated 30 April 2008, passed by the third respondent, Basic Shiksha Adhikari, Fatehpur, declining to approve the termination of the fourth respondent, a class-IV employee of the Institution. Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 by virtue of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Service of Ministerial Staff and Group-D Employees) Rule, 1984 is applicable on the Institution and the fourth respondent for holding disciplinary proceedings.
3. The facts, briefly stated, is that the fourth respondent was appointed peon on 1 April 1978, for his behaviour and misconduct, the Committee of Management resolved to initiate disciplinary proceedings against the fourth respondent. The fourth respondent came to be placed under suspension and was served a charge-sheet dated 22 June 1999, levelling four charges, namely:
(i) that the fourth respondent refused to take the instructions of the Headmaster of the Institution for cleaning the premises;
(ii) that the fourth respondent absented himself without permission and refused to accept the communications issued to that effect by the Headmaster;
(iii) that the fourth respondent left the classrooms open without putting the locks;
(iv) that despite specific orders of the Institution for carrying out certain duties, the same was declined by the fourth respondent.
4. The Enquiry Committee submitted the enquiry report dated 31 August 2007, wherein, it is noted that despite repeated opportunity and service of the charge-sheet, the fourth respondent did not appear and participate in the enquiry. However, on 31 July 2007, the fourth respondent appeared before the Committee and declined to reply the charge-sheet and left the enquiry. Thereafter, it is noted that since the fourth respondent had not submitted any reply nor furnished any evidence in support of his innocence, the Committee of Management was of the opinion that the charges against the fourth respondent stood proved. Show cause notice dated 6 September 2007, was issued by the Committee of Management along with enquiry report to the fourth respondent. It appears that the fourth respondent did not reply to the show cause notice, consequently, the services of the fourth respondent came to be dispensed with vide resolution dated 13 September 2007. Resolution terminating the service of the fourth respondent along with the records of the disciplinary enquiry was forwarded to the third respondent, Basic Shiksha Adhikari, Fatehpur, which came to be disapproved by the impugned order, inter alia, on the ground that the charges against the fourth respondent was neither considered nor proved by the Enquiry Committee.
5. I have perused the enquiry report relied upon by the learned counsel for the petitioner, the report does not record either the charges, nor there is any whisper of any evidence being led against the fourth respondent on behalf of the Institution to prove the charge. The report merely records that since the fourth respondent appeared and did not submit anything in defense, denying the charges, a presumption has been drawn that the charges against the fourth respondent stood substantiate.
6. On specific query, learned counsel for the petitioner informs that affidavit of the teachers were taken by the Enquiry Committee in support of the charges. Attention of the Court has been drawn to one such affidavit dated 20 September 2007 (Annexure-11 to the writ petition) to contend that the affidavit was considered by the Committee of Management. The affidavit does not inspire any confidence for the reason that the affidavit is of much later date to the second show cause notice dated 6 September 2007 issued to the petitioner supplying the enquiry report. In other words the affidavit of the teacher was not placed before the Enquiry Committee. Further, the charge- sheet does not disclose the evidences to be relied upon by the Enquiry Committee in support of the charges. The charges came to be proved on mere presumption for the reason that the fourth respondent did not reply to the charge-sheet.
7. It is urged that Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Service of Ministerial Staff and Group-D Employees) Rule, 1984, is applicable upon the fourth respondent. Rule 23 provides that disciplinary proceedings in respect of Group-D employees of a recognized school shall be governed by the Rules applicable to Assistant Teacher of a Basic School established or maintained by the Board. Rule 16 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, provides that the Rules applicable to Headmasters and Assistant Teachers of Basic Schools established or maintained by the Board would apply. It is not being disputed by the learned counsel for the respondents that the U.P. Government Servant (Discipline and Appeal) Rules, 1999, is applicable for imposition of major penalty. The Rule mandates that the delinquent employee shall be given opportunity of oral hearing and in case an ex-parte enquiry is to be proceeded against him, the burden and onus is upon the disciplinary authority to ensure that the charges are proved on the evidence and oral testimony. Admittedly, the procedure was not followed.
8. Supreme Court in Union of India vs. K.V. Jankiraman1, Union of India V. Anil Kumar Sarkar2 and State of Andhra Pradesh v. C.H. Gandhi3, held that the enquiry commences from the date of issue of charge-sheet. Framing of the charge- sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the delinquent employer follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision. (Vide Delhi Development Authority v. H.C. Khurana4).
9. Supreme Court in Mathura Prasad v. Union of India and others5, held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the Rules are required to be strictly complied with:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."
10. The Division Bench of this Court in Smt. Parmi Maurya vs. State of U.P. and others6, held that the provisions of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 is mandatory and it is obligatory for the employer to frame charge/conduct disciplinary enquiry by applying the principles of natural justice and prove the allegations, without adopting such procedure order passed terminating the delinquent employee is illegal. Paragraph 7 is as follows:-
1. (AIR 1991 SC 2010)
2. 2013 (4) SCC 161
3. 2013 (5) SCC 111
4. 1993 (3) SCC 196)
5. (2007) 1 SCC (L&S) 292)
6. [(2014) 2 UPLBEC 1060] "7. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held."
11. In the facts of the instant case, the charge-sheet, admittedly did not disclose the material and evidence relied upon to prove the charges. Further, the enquiry report clearly reflects that none of the charges were proved against the fourth respondent on the strength of any evidence led before the Enquiry Committee. A presumption was drawn that since the fourth respondent had nothing to say in the matter, the charges were deemed to be taken proved. Admittedly, the procedure prescribed for holding an ex-parte enquiry under the Rules was not followed.
12. The learned counsel for the petitioner failed to point out any illegality or infirmity in the impugned order passed by the third respondent, Basic Shiksha Adhikari, Fatehpur, disapproving the termination of the fourth respondent.
13. The writ petition being devoid of merit is, accordingly, dismissed.
14. No cost.
Order Date :- 31.7.2019 S.Prakash