The petitioner is a peon in an Intermediate College. He has preferred this writ petition for issuance of writ of certiorari for quashing the order dated 28.7.1998 passed by the District Inspectors of Schools, Kushi Nagar and the order dated 5.7.1994 passed by the respondent no.4, Principal of the College.
A brief reference of the factual aspect would suffice.
The petitioner was appointed as a class IV employee in November 1982 in an Intermediate College, Vedupar, Tarya Sujan,, Disrict Kushi Nagar (for short the College). It is stated that a show cause notice was issued to him on 4.7.1992 by the Principal. The allegations in the show cause notice was that he remained absent without leave. It is stated that no charge sheet was issued to the petitioner and he was restrained from signing the attendance register. His salary was also withheld. Therefore, having no other option left, he preferred a writ petition (bearing no. 473 of 1996) in this Court. On 20.1.1997, this Court disposed of the said writ petition with a liberty to the petitioner to make a representation in regard to his grievances before the District Inspector of Schools. A direction was issued upon District Inspector of Schools to consider the cause in accordance with law.
The District Inspector of Schools, in compliance of the order of this Court on 20.1.1997, issued a direction to the Committee of Management and the Principal to permit the petitioner to join his post as a peon and release his salary and send pay bill to his office for the payment of his salary.
Feeling aggrieved by the said direction the Committee of Management made the Writ Petition No. 78341 of 1998. The said writ petition was disposed of with a direction to the District Inspector of Schools to consider two issues, as to whether the services of the petitioner were legally terminated and whether the approval was required for his termination. This Court did not set aside the order of the 21.4.1998. It stayed the operation of the said order till the disposal of the representation.
Consequent upon the order of this Court dated 26.5.1998, the District Inspector of Schools passed the impugned order whereby the earlier order passed by him dated 21.4.1998 has been cancelled and the representation of the Committee of Management and Principal has been accepted only on the ground that the petitioner herein has failed to produce any document before the District Inspector of Schools to establish that he had filed an appeal before the Committee of Management against the order of his termination passed by the Principal as an appeal lies to Committee of Management against the order of the Principal.
Dissatisfied by the order of the District Inspector of Schools dated 28.7.1998, the petitioner has filed the present writ petition. This Court passed an interim order on 12.5.1999 staying the operation of the impugned order dated 28.7.1998.
One of the submission raised before this Court was that no prior approval from the District Inspector of Schools was obtained prior to the dismissal of the petitioner's services and as such in absence of the prior approval, the entire proceeding is void and the petitioner is entitled for continuance in service and all benefits.
In support of the said submission, learned counsel for the petitioner relied on a Judgment of this Court in Daya Shankar Tiwari Vs. Principal R.D.B.M. Uchchatar Madhyamik Vidyalaya Neogaon, Mirzapur and others, (1998) 2 UPLBEC 1101; Shanker Saran Vs. Vesli Inter College, Azamgarh and others, (1991) 1 UPLBEC 467, and he also placed reliance on Division Bench's judgement in Principal Rashtriya Inter College, Bali Nichlaul, District Maharajganj and another Vs. District Inspector of Schools, Maharajganj and others, (2000) 1 UPLBEC 707. The Division Bench approved earlier Single Judge Judgment in Daya Shankar's case (supra) which held that prior approval is necessary before dismissing a class IV employee. However, the contrary view taken by the Division Bench in Ali Ahmad Ansari Vs. District Inspector of Schools, Kushinagar and others, (2006) 3 ESC 1765 (All) was brought to the notice of this Court wherein it was ruled that no prior approval is required for awarding any of the punishment to class IV employee as mentioned in Regulation 31. It was further held that Regulation 31 did not contemplate prior approval of Inspector for class IV employee. The Division Bench relied on the second part of Regulation 31 wherein it is clearly mentioned that for awarding the punishment no report shall be sent to the Inspector for prior approval and all proceedings in that regard shall be done by the appointing authority in respect of class IV employee.
In view of the aforesaid conflicting decisions taken by two Division Benches, the Three Bench in Rishikesh Lal Srivastava, formulated two questions for reference to the larger Bench. The two questions are as under:-
"(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 judgment, as noticed above, lays down the correct view?"
In pursuance thereof the matter was heard by a Full Bench comprising Hon'ble C.K. Prasad, the then Chief Justice, Hon'ble Mr. Justice Dilip Gupta, and Hon'ble Mr. Justice A.P. Sahi. The Full Bench answered the said reference in following terms:-
" (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(All)] and Pujari Yadav Vs. Ram Briksh Yadav [2006(65) ALR 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.
The reference is answered accordingly.".
The Full Bench held that no prior approval or sanction from Inspector of Schools is required in respect of class IV employee and it approved the view taken by the Division Bench in Ali Ahmad Ansari Vs. District Inspector of Schools, Kushi Nagar 2006(3)ESC1765 (All); Pujari Yadav Vs Ram Briksha Yadav 2006(65) ALR 767 and the view taken by the Division Bench in Principal Rashtriya Inter College Bali Nichlaul District Maharajganj 2000(1) UPLBEC 707 and the other Judgments to the same effect were disapproved.
After the aforesaid reference, this writ petition came for hearing. Learned counsel for the petitioner was heard at length. Sri R.C. Dwivedi, learned counsel appearing for the private respondents made a statement that he has nothing to submit as he has no instructions. The Learned Standing Counsel has made the submission on behalf of the respondent nos. 1 and 2. The writ petition is pending since 1999. The impugned order has been passed by the District Inspector of Schools who is represented by the learned Standing Counsel. In view of the said fact with the consent of the parties, the writ petition was heard finally in terms of the rules of the Court.
The petitioner was appointed as peon in 1982. After having served for 10 years, he was issued a show cause notice for removal from the service only on the ground that he used to remain absent without sanction of the leave. The petitioner has stated that no charge sheet was served upon him and no disciplinary proceedings has been conducted in accordance with law inasmuch as there was no fair inquiry before his dismissal from services. The petitioner had earlier filed Writ Petition No. 473 of 1996 which was disposed of on 20.1.1997 with a direction to the District Inspector of Schools to consider his cause. The District Inspector of Schools in compliance thereof had issued a positive direction on 21.4.1998 for the joining of the petitioner and for payment of his salaries. This order was challenged by the Committee of Management and Principal both in Writ Petition No. 18341 of 1998.
Relevant, would it be to mention that while disposing of the writ petition this court had issued direction to decide two issue. For the sake of convenience the relevant part of the order of this Court is quoted hereunder.
"Respondent no. 1 will consider as to whether the services of the respondent no. 2 were legally terminated, further, whether approval was required for his termination and whether that was granted. "
In compliance of the direction of this Court, the impugned order has been passed by the District Inspector of Schools on 28.7.1998. A perusal of the impugned order goes to show that the direction issued by this Court in its order dated 26.5.1998 has totally escaped the notice of the District Inspector of Schools. In other words, he has not even tried to advert to the issue framed by this Court in the impugned order. The District Inspector of Schools has cancelled his earlier order dated 21.4.1988 only on one ground that the petitioner herein could not satisfy him whether he had filed any appeal to the Committee of Management against the order of his dismissal passed by the Principal. There is no discussion at all in the impugned order with regard to the legality of the procedure adopted by the Principal for dismissal of the petitioner. There is no reference of any document to indicate that the Principal had conducted any disciplinary proceeding against the petitioner in consonance of the principles of natural of justice. After the Judgment of the Full Bench, the issue with regard to the prior approval was set at rest, however, the first issue framed by this Court that whether the services of the petitioner herein were legally terminated, remained unresolved.
After careful consideration of the facts and circumstances of the case, the ends of justice would be subserved in case the matter is remitted to the District Inspector of Schools to consider the issues mentioned in the order of this Court dated 26.5.1998 which have been quoted hereinabove. I also find that any appeal against the order of the Principal to the committee of Management is illusory as the Committee of Management had filed Writ Petition No. 18341 of 1998 wherein it is stated that it had passed the resolution dated 10.5.1994 for the dismissal of the petitioner. Under the provisions of the Intermediate Education Act, the Principal is appointing authority of the class IV employee. Thus, the Committee of Management had no authority to pass a resolution of the dismissal of the petitioner. Against the order of Principal, appeal lies to Committee of Management. In facts and circumstances of this case, no fruitful purpose would serve in case the petitioner is asked to file an appeal before the Committee of Management against the order of his termination when the Committee of Management itself has passed a resolution for his dismissal and has filed a writ petition against the petitioner herein. Any such direction would be a futile exercise.
In view of the aforesaid facts and circumstances, the impugned order dated 28.7.1998 is set aside. The matter is remitted to the District Inspector of Schools to comply with the order of this Court dated 26.5.1998. The District Inspector of Schools shall pass order after hearing the parties viz the petitioner, the Principal and the Committee of Management as expeditiously as possible but not later than three months from the date of communication of this order. The parties shall bear their own costs. The writ petition is disposed of.
Dt/-10.12.2012 Ram Murti