Heard Sri V.K. Srivastava, learned counsel for the petitioners and the learned Standing Counsel for the opposite party Nos. 1 to 4.
Vakalatnama has been filed by Sri Raghvendra Kumar Singh-II, Advocate on behalf of the Committee of Management i.e. the opposite party No.5., which is taken on record.
This Court vide order dated 15.12.2020 passed the following order:-
"Heard learned counsel for the petitioners,learned State Counsel for the respondent nos. 1 to 4.
Issue notice to respondent no. 5.
Learned counsel for the petitioners prays for and is granted one week time to take steps.
Learned counsel for the petitioners has submitted that the petitioner nos. 1 to 4 & 8 were appointed on 01-01-1987, the petitioner no. 5 was appointed on 20-12-1990, the petitioner no. 6 was appointed on 25-10-1990, the petitioner no. 7 was appointed on 24-10-1990 and the petitioner no. 9 was appointed on 01-10-1991 on the post of Assistant Teachers in Shri Narheji Intermediate College, Narhi, Rasra, District-Ballia. Since then, the petitioners are continuously functioning and getting salary under the Payment of Salaries Act,1972. Suddenly, vide order dated 26-04-2019 (as mentioned that the year has wrongly been mentioned in the impugned order as 26-04-2018, whereas it is 26-04-2019) has been passed by which the salary of the petitioners have been stopped and in consequence thereof, the respondent no. 5 has terminated the services of the petitioners vide impugned order dated 25-05-2019.
Learned State Counsel prays for and is granted ten days' time to seek instructions as to whether any opportunity was given to the petitioners prior to passing of the impugned order.
List this case in the first week of February,2021, as fresh."
Learned Standing Counsel, on the basis of instructions, has submitted that during the course of departmental enquiry, which has been conducted and concluded in compliance of order dated 06.03.2019 passed by this Court at Allahabad in Writ-A No.3000 of 2019 connected with Writ-A No.12628 of 2018 the proper opportunity was provided to the petitioners, however, he has no instructions as to whether the Disciplinary Authority has provided an opportunity of hearing to the petitioners before passing the impugned order dated 26.04.2018 (which should be dated 26.04.2019) after receiving the enquiry report.
On that, learned counsel for the petitioners has drawn attention of this Court towards Annexure No.24 of the writ petition, which is enquiry report dated 25.04.2019 by submitting that enquiry has been concluded in the matter on 25.04.2019 and the impugned order has been passed just next day i.e. 26.04.2019. Therefore, the question for providing an opportunity of hearing by the Disciplinary Authority does not arise. The Disciplinary Authority has referred such enquiry report dated 25.04.2019 in the impugned order itself.
Therefore, on the basis of instructions so received by the learned Standing Counsel, it is clear that the Disciplinary Authority has not provided any opportunity of hearing to the petitioners before passing the impugned order whereby the Disciplinary Authority has held that the petitioners are not entitled for salary.
So as to understand properly the issue in question, the order dated 06.03.2019 passed by this Court at Allahabad in Writ-A No.3000 of 2019 connected with Writ-A No.12628 of 2018 would be required to transcribe as under:-
"These two petitions have been tagged together as they relate to claim of payment of salary to same set of persons.
Sri Ashok Khare, learned Senior Counsel assisted by Sri Harshul Bhatnagar has appeared for the petitioner in Writ Petition No.3000 of 2019, filed by 09 teachers, and Sri Pabhakar Awasthi alongwith Ajitabh Dubey has appeared for the petitioner Ravi Shanker in Writ Petition No.12628 of 2018.
There exists an institution known as 'Shri Narheji Inter College, Narhi, Rasra, District Ballia'. The petitioners in Writ Petition No.3000 of 2019 claim to have been appointed as Assistant Teacher in the institution concerned as per the dates given in para 4 of the writ petition. However, neither any letter of appointment is brought on record nor any order granting financial approval to petitioners has been brought before the Court. The order already passed by the District Inspector of Schools, Ballia, dated 22.6.1991, is said to be the only order granting approval to the petitioner's appointment, but Sri Ashok Khare, learned Senior Counsel, emphatically submits that petitioners do not rely upon this order. According to the petitioners, this letter of approval has been prepared in collusion with the petitioner in other case i.e. Ravi Shanker Pandey. Sri Ashok Khare, with reference to the averments made in para 25 and 26 of the writ petition, submits that petitioners have no concern with this order of approval. However, upon a pointed query raised regarding grant of financial approval to these 09 petitioners, learned Senior Counsel submits that no such order is available on record of the writ petition, and that approval orders are referred to in the service book of the writ petitioners.
The records further reveal that these persons filed an earlier Writ Petition No.1253 of 1998, which came to be disposed of finally on the date of its filing itself, vide following orders dated 23.1.1998:-
"Heard.
If the petitioners are in service and teaching in the school, in that event, the salary of the petitioner be paid within three months and arrears of salary be paid within four months from the date of presentation of a certified copy of this order if the appointment is in accordance with law.
With this direction the petition is disposed of finally."
It does not appear that any counter affidavit was called in the matter or that the claim of petitioners therein was examined at any level. A consequential order of the State Government dated 3rd April, 2002 has also been brought on record, which merely refers to the directions of this Court, and states that salary be released to the petitioners. It is not in issue that it is only pursuant to the aforesaid order of the State Government passed in the year 2002 that salary was resumed to these petitioners. It is stated that salary was being paid earlier also but the same was stopped in 1995, but no order granting financial approval to petitioner's appointment except the order dated 22.6.1991 is referred to for the purpose, which is now being disowned by the petitioners. From the records produced, this Court finds that there is no independent assessment by any of the educational authorities, so far, with regard to merits of the appointment of the petitioners nor the aspect relating to grant of financial approval to such appointment has been examined. Serious allegations are otherwise made against the appointment of petitioners by alleging that it is on the basis of a fabricated document that these petitioners have managed to receive salary from the State, in active collusion with the management and the officers of the education department at the district level.
From the facts and circumstances, brought on record, this Court is of the opinion that serious issues relating to legality of petitioner's appointment arises for consideration, which is required to be examined by the authorities of the State, at the first instance. Prima facie, this Court finds it difficult to conceive as to how salary was paid to the petitioners in the absence of an approval order on record. It is otherwise not clear as to what procedure was followed before appointing the petitioners, or whether any recovery existed in the institution against which the petitioners have been appointed.
In such view of the matter, the Principal Secretary, Department of Secondary Education is directed to constitute an enquiry into the legality of petitioners' appointment to be conducted by officers not below the rank of Joint Director of Education. All aspects relating to legality of their appointment would be enquired into and the report of the enquiry would be submitted alongwith the affidavit of the Principal Secretary concerned, within a period of six weeks from today. It goes without saying that petitioners would also be heard in the matter. The stand of the State shall be specifically disclosed in the affidavit of the Principal Secretary concerned.
Let this matter appear once again on 29.4.2019."
It appears that in compliance of order dated 06.03.2019, the enquiry against the petitioners was conducted and concluded. The order dated 06.03.2019 clearly directs that the petitioners would be heard in the matter.
In the service jurisprudence, if any punishment is to be awarded to an employee, there are two tier opportunities for the employee concerned. At the first stage, the opportunity is provided by the Inquiry Officer conducting departmental enquiry fixing date, time and place for oral enquiry after receiving defence reply to the charge-sheet submitted by the employee. If the Inquiry Officer submits his enquiry report finding the employee guilty, the Disciplinary Authority, at the second stage shall seek explanation from the employee providing him the copy of enquiry report giving some sufficient time to file such explanation.
In the present case, the Inquiry Committee might have provided the opportunity of hearing to the petitioners but admittedly no opportunity of hearing has been given to the petitioners by the Disciplinary Authority after receiving the finding of the Inquiry Committee. There might be a case of the petitioners that the Inquiry Committee has not provided ample opportunity strictly in accordance with law. Therefore, had the petitioners been given the opportunity to submit their explanation, they would have placed their grievance before the Disciplinary Authority that the Inquiry Committee has not afforded ample opportunity to them strictly in accordance with law. But no such occasion has come inasmuch as such opportunity has not been extended to the petitioners by the Disciplinary Authority. The law is trite that if the provisions of law and statutory prescription has not been followed properly and the opportunity of hearing has not been extended to the employee before passing the punishment order, such punishment order shall be considered as nullity in the eyes of law. However, the appropriate order may be passed by the Authority Competent, if it is so required under law, inasmuch as the misconduct of any employee, if any, may not be ignored for the technical laches.
Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that since proper opportunity of hearing was not provided to the petitioners by the Disciplinary Authority before passing the impugned punishment order dated 26.04.2019, as discussed above, I hereby quash the impugned order dated 26.04.2019 (which has wrongly been typed as 26.04.2018) passed by the opposite party No.1, which is contained as Annexure No.1 to the writ petition. The Annexure No.2 is an order dated 25.05.2019 passed by the Manager of the Institution, which is a consequential order of the impugned order dated 26.04.2019, therefore, the consequential order dated 25.05.2019 (Annexure No.2) passed by the Manager of the Institution is also quashed.
Consequences to follow.
Since the impugned order dated 26.04.2019 has been quashed for the reason that the opportunity of hearing was not afforded to the petitioners strictly in accordance with law, therefore, it is open for the opposite parties to pass appropriate order, strictly in accordance with law, by affording an opportunity of hearing to the petitioners and if such order is required to pass in view of the facts and circumstances of the issue in question, such order shall be passed with promptness but by following due procedure of law.
In view of the aforesaid, the writ petition is allowed.
No order as to costs.
Order Date :- 2.2.2021 Suresh/ [Rajesh Singh Chauhan,J.]