JUDGMENT Sunil Ambwani, J.
1. These five writ petitions are interconnected and relate to the matter of services of Sri Ram Vilash Sharma. Brief facts giving rise to these petitions are stated as below :
2. The Veer Shivaji Inter College, Sarhari, Gorakhpur is a recognised and aided educational institution governed by the provisions of U. P. Intermediate Education Act, 1921, and U. P. High Schools and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971.
3. The primary section of the institution was brought on the grant in aid list with effect from 1.10.1989. By an order dated 31.3.1989 issued by the District Inspector of Schools, Gorakhpur, the services of the employees of the upgraded primary section were sanctioned. The actual payment commenced with effect from October, 1989. On 1.8.1991, the District Inspector of Schools sanctioned the payment of salary of 7 more Assistant Teachers in the primary section, including the petitioner Sri Ram Vilash Sharma as Assistant Teacher at SI. No. 2. The salary of these persons was not paid as the requisite grant was not released. These employees started getting their salaries only from the year 2001, which was actually paid to only two teachers out of these seven, namely Sri Shiv Kumar Lal and Deep Narain Tripathi, as the Committee of Management claimed that only these two teachers out of seven were regularly discharging the duties in the primary section. Sri Sharma was permitted to discharge some teaching work on informal basis from 1.12.1991 to 15.5.1993, after which, it is alleged by the Committee of Management that he did not function, and that in collusion with the Principal his name was again included in the attendance register from October, 2001. On the basis of the documents submitted by the Principal, the payment of Rs. 2.25 lacs was released by the department towards the salary of Ram Vilash Sharma in the year 2000-2001, This amount was, however, not paid to him by the management.
4. Sri Ram Vilash Sharma filed the Writ Petition No. 10765 of 2003 with a prayer to direct the respondents to pay to him the entire salary from 30.7.1991 and current salary month by month. He claims that he has been regularly working since 1.7.1991.
Notices were issued in this writ petition in response to which the counter and rejoinder-affidavits have been filed.
5. The Writ Petition No. 37759 of 2003 is by the Committee of Management of the College for quashing the orders dated 11.7.2003 and 1.8.2003 issued by the District Inspector of Schools, Gorakhpur directing the Committee of Management to submit the pay bills of Sri Ram Vilash Sharma, from March, 2003. While issuing notices a direction was issued by this Court on 29.8.2003 that the District Inspector of Schools, Gorakhpur shall pass the bills of the staff and employees of the institution in question including the Principal but shall not insist upon the submission of salary bill of Sri Ram Vilash Sharma, respondent No. 7.
6. The Writ Petition No. 639 of 2004 is by the Committee of Management against the direction of District Inspector of Schools, Gorakhpur dated 18.12.2004 to operate the account of the College singly under Section 5 (1) of the Act, 1971, for repeated failure of payment of salary to the teachers. By an order dated 9.1.2004, this Court stayed the operation of the order dated 18.12.2003 passed by the District Inspector of Schools, Gorakhpur.
7. The Writ Petition No. 7208 of 2004 is by the Committee of Management against the order dated 31.1.2004 passed by the District Inspector of Schools, Gorakhpur directing that Sri Ram Vilash Sharma be attached to his office under Section 3 of the U. P. High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 and to mark his attendance at his office. This order was passed for the reasons that inspite of directions the Manger of the Institution did not make payment to Sri Ram Vilash Sharma and had failed to comply with the order dated 31.3.1990 and 1.8.1991, and that the directions to produce the past bills of Sri Ram Vilash Sharma were flouted. The Committee did not allow Sri Sharma to sign on the attendance register. On 23.2.2004. I found that the earlier three orders have been stayed by this Court and that the order impugned in the writ petition only directs Sri Ram Vilash Sharma, to be attached to the office of District Inspector of Schools, Gorakhpur and for payment of his salary and thus no fresh interim orders were required to be issued in the writ petition.
8. The fifth and last Writ Petition No. 12499 of 2004 has been filed by Sri Ram Vilash Sharma, with a prayer to quash the order dated 17.3.2004 passed by District Inspector of Schools, Gorakhpur, directing to deposit entire amount received by him in the Treasury, failing which the amount shall be recovered from him as arrears of land revenue, and the cancellation of the orders by which he was required to give attendance in his office.
9. I have heard Sri B. D. Mandhyan for petitioner in Writ Petition Nos. 12499 of 2004 and 10765 of 2003 for Shri Ram Vilash Sharma, and Sri Ashok Khare, senior advocate, assisted by Sri V. K. Singh for Committee of Management of the College in Writ Petition Nos. 37759 of 2003, 639 of 2004 and 7208 of 2004 and learned standing, counsel for the Educational Authorities in all the writ petitions.
10. It is admitted that Sri Ram Vilash Sharma has received salary only from March, 2003 to February, 2004. For the period from February 2000 to March, 2001 the salary has been received by the management but the payment has not been made to him.
11. Sri. B. D. Mandhyan, learned counsel for petitioner submits that Sri Ram Vilash Sharma was one of the seven teachers of Primary Section, for which financial approval was given by the District Inspector of Schools, on 1.8.1991. The Committee of Management has not denied that Sri Sharma was teaching in the primary section of the institution from before 31.3.1989 when it was brought on the grant in aid list and was teaching in the institution on 1.8.1991. He submits that Sri Sharma has been teaching in the institution since 1.8.1991, without any break in service. The grant was actually released in October, 2001 and that the management forwarded the bills for only Sri Shiv Kumar Lal and Deep Narain Tripathi. The petitioner teaching in the institution and awaiting payment of regular salary for more than decades was left high and dry, out on the ground that he was not regular and had left the institution in 1993. Sri B. D. Mandhyan states that the petitioner did not leave the institution at any point of time. He submits that the Committee of Management of all the institutions in the State are exploiting the teachers. In the present case the Manager is no exception. Sri Ram Vilash Sharma is a poor teacher and was serving in the hope of getting regular salary. He has been treated harshly and that his entire family is at the verge of starvation.
12. Sri Ram Vilash Sharma made a representation to District Magistrate and Commissioner of Gorakhpur on 9.8.2001. It is alleged that he also went on a hunger strike along with his family. The Joint Director of Education, Gorakhpur by his letter dated 13.8.2001 directed enquiries to be made on his representation. The District Inspector of Schools, in order to submit an enquiry report to the Joint Director of Education, requested the management to submit a report to which the management replied on 2.11.2002 stating that Sri Sharma was absent from duty from 16.5.1993 to 30.9.2001. A direction was issued by the Finance Controller of the Directorate of Education, U. P., Allahabad on 9.7.2003 to ensure regular payment of salary to Sri Sharma on which the management was directed on 1.8.2003 to ensure payment. The department also stopped the salary of the Principal and the clerk. Until the pay bills of Sri Sharma were produced. The management obtained a stay order dated 29.8.2003 in Writ Petition No. 37759 of 2003. Sri Mandhyan states that in these circumstances the District Inspector of Schools, Gorakhpur directed the account of the college to be operated singly by the Inspector. He submits that the orders for stopping the salary and the direction dated 12.11.2003 for operating the account singly were rightly issued and do not call for any interference by this Court.
13. It is further submitted that financial approval was granted to the services of Mr. Sharma on 1.8.1991. He has been serving the institution continuously. In case the stand of the management was correct, steps should have been taken to terminate petitioner's services long ago, or to at least inform educational authorities regarding his absence. It is submitted that the Committee of Management must be directed to pay petitioner's salary received by the management for the period of February to March, 2001 and to produce his salary bill and to pay him salary regularly after March, 2001,
14. Sri Ashok Khare, appearing for Committee of Management submits that the petitioner had left the institution on 16.5.1993 and that when the grant was released, his name was included in the attendance register in collusion with the Principal w.e.f. 30.10.2001, in the circumstances, Sri Sharma's services came to an end for long absence and that he is not entitled to continue as a teacher and for payment of salary. He has relied upon a judgment of Supreme Court in G. T. Lad and Ors. v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590; Amgauda Sidram Hakke v. Maharashtra Small Scale Industries Development Corporation Ltd. and Anr., 1995 LLJ 948 and Prem Murti Dixit v. Sri Satyavir Singh and Ors., 1996 (1) LBSER 685, in submitting that in the facts and circumstances of the present case Sri Sharma will be treated to have abandoned the services and that his services have come to an end.
15. In G. T. Lad (supra), the Supreme Court held that to constitute abandonment of service, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. Abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. It is a question of fact to be determined in the light of the surrounding circumstances of each case. Temporary absence is not ordinarily sufficient to constitute an abandonment of office. In Amgauda Sidram Hakke (supra), the Bombay High Court considered the circumstances and found that the employee had shown utterly, irresponsible attitude towards his job. He did not have any intention to resume work and did not even demand for reinstatement. On these facts it was inferred that the employee had voluntarily abandoned the employment. In Prem Murti Dixit (supra), the Officiating Principal had intentionally given up the post and permitted the other person to be appointed in his place. It was held by the Division Bench of this Court that where a teacher voluntarily resigns and thereafter stops functioning, the management cannot force into work and must make alternative arrangement by making fresh appointment.
16. The U. P. Intermediate Education Act, 1921 provides for disciplinary action against an employee in case of misconduct. Section 16G of the Act of 1921 provides for suspension, approval of suspension under Sub-section (7) and statutory restrictions on discharge, remove or dismiss or reduce in rank, of a Principal, Head Master or Teacher and even to serve a notice of termination except with the prior approval of Inspector. These restrictions provided in Sub-section (3) are subject to appeal. The Regulations made under Chapter III provide for procedure of disciplinary enquiry. There is no provision under the Act or the Regulations made thereunder for termination of service on the ground of abandonment of services, or to draw such an inference, on account of long absence without leave.
17. The services of an approved teacher cannot be terminated except by adopting the procedure provided in the Act of 1921. In Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwar Bharati Seva Samiti and Anr., (2001) 8 SCC 378, the Supreme Court held, while deciding a similar matter interpreting the provisions of Karnataka Private Educational Institution (Discipline and Control) Rules, 1978 that in case of absence without leave, the management can take action only within the statute and rules or on the basis of principles of natural justice. There was no provision in the said Act or the Rules for automatic termination of service of a teacher on account of absence without leave. The Supreme Court held that where a teacher remains absent without leave, it is open to the management to terminate his services after completing with the provisions of Act and the Rules of principle of natural justice.
18. In the present case, there is no pleading nor any case has been set up by the Committee of Management of the institution that any show cause notice was given to Ram Vilash Sharma or any steps were taken to terminate his services, after he is alleged to have left the institution in 1993. It is not denied that his name is included in the attendance register from October, 2001. The management did not object to the inclusion of his name and has not served any notice upon him for his absence from 1993 onwards. There is no denial that he is very much in the institution from October, 2001 onwards. All these allegations do not indicate that Sri Ram Vilas Sharma had abandoned the post and there is no provision under the Act or the Regulations to infer and to hold that his services stood terminated.
19. For the aforesaid reasons, Writ Petition Nos. 10765 of 2003 and 12499 of 2004 are allowed. It is held that Sri Ram Vilash Sharma did not abandon the services and is entitled to continue as Assistant Teacher in the School, He is held entitled to the payment of salary from Government Account. The amount of the salary received by the Committee of Management for the month of February to March, 2001 shall be paid to him forthwith without any delay and that he is held entitled to salary from Government Account from March, 2001 as well as current salary.
20. Writ Petition Nos. 37759 of 2003, 639 of 2004 and 7208 of 2004 filed by the Management Veer Shivaji Inter College, Sarhari, Gorakhpur through its manager are dismissed. It will be open to the Committee of Management to comply with this judgment and to pay arrears of salary to Sri Ram Vilash Sharma, and submit proof of such payment and to give an undertaking that Sri Sharma shall be paid salary regularly. In case such an undertaking is given the District Inspector of Schools shall consider the same for withdrawing the orders passed by him under U. P. High School and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971.
21. Sri Ram Vilash Sharma is also held entitled to cost of Rs. 10,000 from the Committee of Management, towards cost of these writ petitions.