AFR
Court No. - 34
Case :- SPECIAL APPEAL No. - 424 of 2009
Appellant :- Ram Tahal
Respondent :- Regional Inspectress of Girls Schools And Another
Counsel for Appellant :- Arvind Srivastava
Counsel for Respondent :- C.S.C.,Sharad Malviya
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
1. Heard Sri Arvind Srivastava, learned counsel for appellant, Sri Shivam Shukla, learned counsel for respondent 2 and perused the record.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules 1952 (hereinafter referred to as “Rules, 1952”) has arisen from judgment dated 26.02.2009 passed by learned Single Judge whereby writ petition filed by Committee of Management of Dayanand Hansmukhi Devi Girls Inter College, Macrobertganj, Kanpur (hereinafter referred to as “College”) was allowed.
3. Facts in brief giving rise to present appeal are that College is a Secondary Education Institution governed by the provisions of “U.P. Intermediate Education Act, 1921” (hereinafter referred to as “Act 1921”). Payment of salary to teaching and non-teaching staff is governed by the provision of “U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971” (hereinafter referred to as “Act 1971”). Recruitment of teaching staff is governed by the provisions U.P. Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as “Act, 1982”)
4. The appellant was a Class IV employee (Chaukidar). A charge sheet dated 14.2.1977 was served upon appellant containing five charges as under :
^^1- fnukad 09-09-1976 dks vkius fo|ky; ds xsV dh pkch iz/kku fyfid dh est ij Qsd dj dgk fd vki vc dke u djasxasA bl izdkj u dsoy vius vuq'kklughurk dh] oju vius ls ofj"B deZpkjh ds lkFk nq;ZO;ogkj fd;kA
2- fnukad 13-09-1976 dks jktkKk dh lwpuk lfgr] ,d vkSj vkjksi i= fnukad 09-09-1976 dh ?kVuk ds lanHkZ eas vkidks fn;k x;k Fkk] ftls vkius ysus ls bUdkj fd;kA ftlls Li"V gS fd vkius jktkKk dks Vkyus dk iz;kl fd;k rFkk vkius vkjksi ds jktkKk dh vogsyuk dhA
3- fnukad 27-09-1976 dks iqu% rhljh ckj vkils mlh lanHkZ esa Li"Vhdj.k ekaxk ij vkius 07-02-1977 rd dksbZ Li"Vhdj.k ugha fn;kA
4- fnukad 28-01-1977 dks vkidks ,d vkns'k vkidh M~;wVh ds ckjs esa fn;k x;k rks vkius mls ysus ls badkj fd;k rFkk iz/kku fyfid dks /kedk;k o muds lkFk nq;ZO;ogkj fd;kA ftlls u dsoy vkius xr o"kZ dk Hkkafr vuq'kklughurk dh oju ;g Hkh Li"V fd;k fd vki fn;k x;k dk;Z ugha djuk pkgrs rFkk voKk djuk viuk vf/kdkjh le>rs gSaA
5- vki }kjk fn;k x;k Li"Vhdj.k fnukad 07-02-1977 ftls vkius nksigj eas fn;k] fujk/kkj gS D;kfdsa 31-1-1977 dks vkius ,d vkonus i= nsdj viuh igyh M~;wVh ds fyf[kr vkns'k dh ekax dh] tks cseryc dh] 28-01-1977 dks vkns'k u Lohdkj djus dk cgkuk ekukA ftlls Li"V gS fd vkns'kkas u djuk vkidh dk;Z iz.kkyh dk ,d <ax gSA** dks Lohdkj “1. On 09.09.1976, you, after throwing the key of school gate at the table of the Head Clerk, stated that you would not continue to work. In this way, you not only showed indiscipline but also misbehaved with your senior.
2. On 13.09.1976, apart from intimation regarding the government order, charge-sheet dated 09.09.1976 was also given to you with respect to the incident, which you refused to accept. From this, it is clear that you tried to ignore the governed order and defined the government order as to the charge.
3. On 27.09.1976, an explanation in that very context was again sought from you for the third time but you did not submit any response till 07.02.1977.
4. On 28.01.1977, an order regarding your duty was tried to be served upon you but you refused to accept the same and extended threats to the Head Clerk and misbehaved with him. By doing so, you not only showed indiscipline as you did the last year but also showed that you want to evade the work entrusted to you and take it to be your right to indulge in disobedience.
5. The explanation submitted by you in the afternoon of 07.02.1977 is baseless because in an application dated 31.01.1977, you have sought a written order regarding your previous duty, which was without any reason and was just an excuse to not obey the order on 28.01.1977. This shows that not obeying the orders is your way of working.”
(English Translation by Court)
5. Appellant was given three weeks’ time to file reply. It appears that thrice he sought extension of time to give reply. The last time extension was granted vide letter dated 28.3.1977. Ultimately he was terminated vide order dated 30.3.1977, passed by Principal of College. The said order was attempted to be served upon appellant but he refused to receive the same. An endorsement was made by concerned employee of College who was entrusted the duty of service of termination order, that appellant refused to accept copy of termination order.
6. On 1.04.1977, appellant wrote a letter to Principal of College alleging that Head Clerk of College is victimizing appellant and bent upon to get him terminated on account of the fact that appellant is a Scheduled Caste. Appellant requested Principal to save him from activities of Head Clerk. Another letter sent by appellant on 23.4.1977 denying charges and requesting Principal to revoke suspension order dated 11.2.1977 and restore appellant in duty.
7. On 26.4.1977, appellant sent a letter to Regional Inspectress of Girls School, Kanpur (hereinafter referred to as “RIGS”) stating that he has committed some mistakes for which he tender apology and he may again be taken on duty. The contents of letter reads as under :
^^fuosnu gS fd e sj s }kjk tk s dqN xyfr;ka gqbZ gS a mlds fy, {kek pkgrk g wW aA vr% vkils izkFkZuk gS fd nqckjk fM; wV h ij y su s d s fy; s vkKk iznku dh tko sA egku n;k gksxhA** “It is submitted that I tender apology for whatever mistakes I have committed.
Hence, it is requested that an order be passed for taking me on duty again.
It will be very kind of you, sir.”
(English Translation by Court) (emphasis added)
8. Thereupon, RIGS made an endorsement requesting Principal as under :
^^Jh jkeVgy ds mDr vuqjks/k ij fopkj dj ysaA** “Please consider the said request of Shri Ram Tahal.”
(English Translation by Court)
9. RIGS sent a letter dated 27.5.1977 informing Principal of College that appellant is continuously approaching her office and writing various letters, but, as per Principal, appellant has been terminated on 30.03.1977 but termination letter was not available in the office of RIGS, therefore, a copy of the same be made available to RIGS. Thereafter, on 28.5.1977 appellant sent a letter to Principal of College in which various allegations, made in charge sheet, were accepted by him and he accepted his guilt. He consequently requested Principal that termination on 30.03.1977 is on account of his fault for which he may be excused and restore his service. Contents of the letter dated 28.5.1977 reads as under :
^^1- fuosnu gS fd fnukad 09-09-1976 dks eSaus xsV dh pkch iz/kku fyfid ds est ij Qasdk og e sjh Hk wy FkhA eq> s ekQ fd;k tk;A
2- fnukad 13-09-1976 dks jktkKk dh lwpuk lfgr ,d vkSj vkjksi&i= fnukad 09-09-1976 dh lwpuk ds lUnHkZ eas fn;k ;g e sjh cgqr cM +h Hk wy gSA fn;k x;k Fkk ;g eSaus ysus ls Vky
3- fnukad 27-09-1976 ds i= dk tokc rhljh ckj ekaxus ij Hkh ugha fn;k ;g e sjh cgqr cM +h Hk wy gSA eq>s ekQ fd;k tk;sA
4- fnukad 28-01-1977 dks fM;wVh ds lUnHkZ esa ,d vkns'k fn;k x;k Fkk og eSus ugha fd;k og e sjh cgqr cM +h Hk wy gS] ekQ fd;k tk;sA
5- fnukad 28-02-1977 dks i= dk mRrj fn;k gS ,d i{kh; fu.kZ; fy;k gS vkSj vk;ksx dh ekax dh gS og fu;ekuqlkj xyr gSA
6- iz/kku fyfid egksn; th dk eSu s tk s vHknz O;ogkj 'kCn fy[kk fn;k gS] e sj s gkFk dk ikuh ugh a ihr s gS a ;g lc xyr gS eS a n wlj s d s dgus l s fy[kk fn;k gS og fujLr fd;k tk;sA fnuk ad 14-02-1977 d s vkjk si i= dk tokc le; l s ugh a fn;k ftlds dkj.k lHkh vkjk si e sj s Åij lR; fl) djds fnuk ad 30-03-1977 dk s e sjh l sok lekIr dj nh x;h ;g e sjh egku xyrh FkhA vr% vkils izkFkZuk gS fd esjh leLr xyfr;ksa dks ekQ djds eq>ls ,d ckj fQj ls lsok dk;Z djus dk volj iznku djus dh d`ik djasA Hkfo"; eas eSa bl izdkj dh dkbZs xyrh vc ugha d:xa kA^^ “1. It is submitted that I threw the gate keys onto the table of the head clerk, which was my mistake. I may please be pardoned.
2. Another charge-sheet with reference to the occurrence of 09.09.1976 along with the Government Order, was on 13.09.1976 given to me, which I avoided by not receiving and which was a mistake by me.
3. It is my big mistake that, I did not give reply, despite being demanded for the third time, to the letter dated 27.09.2016. I may please be pardoned.
4. An order on 28.01.1977 with respect to the duty, was given to me; which I did not obey, is a big mistake of mine. I may please be pardoned.
5. I have given reply to the letter on 28.02.1977, terming decision to have been taken ex-parte and in violation of rules, and demanding a commission.
6. The misbehaving words written by me against the head clerk that he would refuse to take water offered by me, are wrong; which I have written on being persuaded by others, which shall be cancelled.
I did not give reply to the charge-sheet dated 14.02.1977 in time, upon which my services were terminated on 30.03.1977 after proving all the charges against me. It was a blunder on my part. You are, therefore, requested that having pardoned all my mistakes, I may with your grace be provided another opportunity to render my services again. In future, I shall not commit any such mistake.”
(English Translation by Court) (Emphasis added)
10. Thereafter, legal notice dated 06.6.1977 was served by appellant through his counsel upon the Principal. It appears that appellant approached the then Member of Parliament, Sri Kalp Nath Rai, who made some inquiry from RIGS. Thereupon, RIGS, vide letter dated 17.6.1981 informed the then Member of Parliament that appellant has been terminated on 30.3.1977 and thereagainst appeal lie to Regional Girls School, 4th Region, Allahabad. Appellant then submitted an appeal before Committee of Management vide letter dated 09.7.1981 wherein he stated that though he has been terminated on 30.3.1977 but copy of letter had not been served upon him and his termination is illegal.
11. Management informed appellant that he has been terminated in accordance with law. Thereafter vide letter dated 09.7.1981 i.e. after almost four years, appellant preferred appeal before RIGS, who sought comments from Principal of College vide letter dated 31.8.1981. Principal vide letter dated 22.9.1981 informed RIGS that termination letter was served upon appellant but he refused to accept whereafter even it was sent by registered post, which was also refused by him. It was also informed that he was terminated on account of various acts of misconduct. An opportunity of oral hearing was given by RIGS vide letter dated 15.2.1982 and thereafter RIGS passed an order dated 23.4.1982 stating that punishment of termination is harsh, therefore, substituted punishment by withholding three annual increments and directed Principal of College to reinstate appellant.
12. This order dated 23.4.1982 passed by RIGS was challenged by Management of the College in Writ Petition No.7524 of 1982, which has been allowed by learned Single Judge and order of RIGS has been set aside.
13. Learned counsel for appellant submitted that major penalty was imposed against appellant without holding any inquiry, therefore, it is wholly illegal. Learned counsel for appellant, however, admitted that under Rules, appeal could have been filed within 90 days but in the present case, order of termination was passed on 30.03.1977 and appeal was filed after more than four years. In the meantime, appellant was already engaged elsewhere, as is evident from his own letter, Annxure 12 to the writ petition, whereby he informed Head Clerk of College that he has received Rs.153.43 on 20.3.1978 and at that time he was working as Supervisor in Drainage Division of Irrigation Department, Basti. He also said that he intended to visit Kanpur but not able to get leave. The contents of the letter are reproduced as under :
^^eSa ;gkaW ij iwjs ifjokj lfgr dq'ky iwoZd ls gawW vkSj vki yksxkas ;kfu iwjs fo|ky; ds lc yksxksa dh dq'kyrk ds fy;s bZ'oj ls izkFkZuk djrk gawW vkxs lekpkj ;g gS fd vkidk 153-43 u0i0 ,d lkS frjiu :i;k rSrkfyl u;k iSlk eq>dks fnukad 20-03-1978 dks izkIr gqvk gSA bl le; eS a vki yk sxk sa d s vk'khZokn l s M~ su st [k.M fl ap kbZ foHkkx cLrh e sa lqijokbtj d s in ij yxHkx pkj ekg l s dk;Z dj jgk g wW aA fn;kA eSa vkidk cgqr cM+k vkHkkjh gwaW fd vkius gksyh ds R;ksgkj esa iSlk Hkst eSa vkils izkFkZuk djrk gawW fd ejks ikLVs vkfQl cpr ;ktuks rFkk chek dk iSlk gS mldks Hkh dS'k djok ds Hkstus dk d"V dj nhft;sxk rks eSa cgqr cM+k ,glku ean jgwaxkA eSa vc rd dkuiqj e sa vkrk y sfdu eq> s NqV~Vh ugh a fey jgh gS A cM+h cfgu th ls NksVS ckcw 'kqDyk th ls esjk ueLrsA Jh cqykdh uksdju] lqUnj] izhre] ekrk th] nsodh ekrk] 'kkUrh nhnh] jke nqykjh lc yksxkas dks esjs rjQ ls ueLrs] eq>ls tk s dqN xyrh gqbZ mldk izk;'fpr eq> s [kqn izkIr gqvk] ?kj ij [kkus ij Hkh eSa cgqr ijs'kku gqvk] ysfdu ;s rks thou unh dh /kkjk gS dHkh nq[k dHkh lq[k yxk j[krk gSA ysfdu bl le;
eq>s vki yksxkas dh d`ik ls dkbZs d"V ugha gSA lqHkk JhokLro cfgu th rFkk ehuk cfgu th ls esjk ueLrsA eSa ,u0,l0lh0 dk iSlk ysus ds fy;s twu ds eghus esa vkus dh dksf'k'k d:axkA lsok dq'ky gS vkSj D;k fy[kwA FkksM+k fy[kuk vf/kd le>ukA** “I and my family are quite good here and prays to God for well being of all of you i.e. for all members of the school . Further, the news is that I have received Rs. 153.43/- (One hundred fifty three rupees and forty three paise) from you on 20.03.1978. By your blessings, I have been presently working on the post of Supervisor in the Drainage Division, Irrigation Department, Basti for around four months.
I am very obliged to you that you sent money on the festival of Holi.
I request you that my money is lying with Post Office Saving Bank Scheme and Insurance. I shall be highly obliged if you send the same after encashment.
I would have come to Kanpur but had I been granted leaves.
Convey my greetings to Badi Bahin ji, Chhote Babu, Shukla ji, Sh Bulaki Nokran, Sunder, Pritam, Mata ji, Devaki Mata, Shanti Didi, Ram Dulari and all other persons. I suffered for what I had done. I also faced a lot of difficulties even while taking meal at home but this life is like a river. There are ups and downs in life. However, by your blessings there is no problem for me at this moment.
My greetings to Subha Srivastava Bahin ji and Meena Bahin ji. I shall try to come there in June to receive my money of N.S.C.
Rest is fine and what more should I write. More understanding in less words.” (English Translation by Court) (Emphasis added)
14. For the aforesaid delay of four years period, nothing was disclosed by appellant as to how he could file appeal after such a long time and without condoning delay, how RIGS could entertain his appeal, ignoring the fact that in the meantime he was already engaged and employed elsewhere.
15. Learned counsel for appellant also contended that since no inquiry was conducted in accordance with Regulations 31 and 39 Chapter III of the Regulations framed under Act, 1921 and no prior approval of RIGS was obtained, the order of termination is patently illegal.
16. It cannot be doubted that an order of punishment, passed for imposing major penalty, if employee has not admitted the charge. then it is necessary to conduct oral inquiry otherwise order of punishment would be bad. However, in the present case we find that Principal, who is disciplinary authority himself has issued charge sheet but appellant did not file any reply. Therefore, Principal passed order of punishment. Subsequently, letter sent by appellant shows that virtually he has admitted the charge. In writ petition filed under Article 226, he has attempted to change his stand but we cannot ignore conduct of appellant wherein not only he has admitted the charge but has expressed his apology. Meaning thereby, he has no defence or reply to the charges and that is why he did not reply the same though thrice time was granted.
17. So far as 'prior approval' is concerned, a Full Bench of this Court has held that in respect of Class IV employee, there is no requirement of 'prior approval'. This issue has been finally settled by a Full Bench in Rishikesh Lal Srivastava Vs. State of U. P. and others, 2009 (5) ESC 3073 in which following two questions were referred to be answered by Full Bench :
"(i) Whether prior approval for awarding punishment of dismissal to a Class-IV employee is contemplated and required under Chapter-III, Regulation 31 of U. P. Intermediate Education Act, 1921?
(ii) Which of the Division Bench judgments, as noticed above, lays down the correct law?"
18. Aforesaid two questions were answered by Full Bench in para 70 of the judgment stating as under :
"70. Our answer to the questions referred to us are as under :
(i) For awarding a punishment as enumerated under Regulation 31 Chapter III of the U. P. Intermediate Education Act, 1921 to a Class-IV employee of a institution recognized under the aforesaid Act, no prior approval or sanction from the Inspector of Schools is required.
(ii) The Division Bench judgments in the case of Ali Ahmad Ansari Vs. District Inspector of Schools, Kushinagar, 2006 (3) ESC 1765 and Pujari Yadav v. Ram Briksh Yadav, 2006 (65) AILR 767, lay down the correct law in contradistinction to the Division Bench judgment of Principal, Rashtriya Inter College, Bali Nichlaul, District-Maharajganj and Others, 2000 (1) UPLBEC 707, and the other judgments to that effect."
19. Then coming to the question of appellate order, we find that appeal was filed almost after more than four years from the date of order of termination but while passing Appellate order, this aspect has been completely ignored by RIGS. RIGS has also not examined the question that appellant having accepted his termination, subsequently joined service in Irrigation Department and was satisfied as is evident from his own letter, contents whereof have been quoted hereinabove.
20. Thus, considering peculiar facts of this case we do not find that discretion exercised by learned Single Judge in setting aside appellate order can be said to be unjust, or illegal so as to justify interference by this Court.
21. We, therefore, find no merit in this appeal.
22. Dismissed.
23. Interim order if any stands vacated.
Order Date :- 30.5.2019 KA