JUDGMENT Sunil Ambwani, J.
1. Petitioner Syed Haider All Naqvi has challenged order dated 3.7.1989 passed by the District Basic Shiksha Adhikari. Allahabad, terminating his services and order dated 2.2.1991 passed by the Secretary, Basic Shiksha Parishad dismissing his appeal.
2. The facts, giving rise to the present writ petition, are stated as under ;
"Petitioner was appointed as assistant teacher (Urdu) in a primary school in 1972. He was transferred to Newada from where he was sent and completed B.T.C. training in August, 1979. He was transferred to Primary School, Phoolpur in 1982 and was thereafter transferred back to Primary School, Newada, Block Bahariya district Allahabad. A writ petition was filed by him against the transfer order in which the order was stayed on 19.8.1982. He was again transferred on 11.10.1988 to Junior High School. Tharwai, Block Soraon, district Allahabad and thereafter to Primary School. Lotar, Block Meja, district Allahabad by order of the District Basic Education Officer, Allahabad dated 7.3.1989. Aggrieved by common transfer order, some teachers filed writ petitions. Petitioner also filed a writ petition in which by an order dated 19.5.1989, the operation of order dated 7.3.1989 was stayed. The petitioner was, however, relieved on 8.3.1989 and was thus treated to be on the strength of Primary School, Lotar, Block Meja. Allahabad."
3. It appears that petitioner thereafter remained absent for a long period. The Deputy Inspector of Schools. Allahabad, submitted a report to the District Basic Education Officer, Allahabad, on 15.4.1989 stating that petitioner is not taking interest in teaching and remains absent without information. A charge-sheet dated 2.5.1989, was sent to petitioner which was not received by him. It was published in daily news paper 'Amrit Prabhat on 19.3.1989. Since there were some errors in the charge-sheet, a notice was again published in the same news paper on 18.5.1989 and that on 27.5,1989 when petitioner was present in the office of Deputy Inspector of Schools, Allahabad, an attempt was made to serve the charge-sheet upon him, which he refused. The petitioner did not submit any reply to the charge-sheet and thus an inquiry report was submitted on 12.6.1989 in which charges were found to be established and by order dated 3.7.1989, his services were terminated. The termination order was also published in 'Amrit Prabhat' on 30.7.1989. Aggrieved, petitioner filed an appeal. A report was sent by the District Inspector of Schools, Allahabad on 18.12.1990 on which 20.12.1990 was fixed for producing evidence. The Secretary. Uttar Pradesh Basic Shiksha Parishad, Allahabad, heard both petitioner and the District Basic Shiksha Adhikari and by a detailed order dated 2.2.1991, after examining each and every charge, the appeal was dismissed.
1 have heard Sri S.F.A. Naqvi learned counsel appearing for the petitioner and Sri K.S. Shukla, learned counsel appearing for the Basic Shiksha Parishad.
4. The contentions of Sri Naqvi are as follows :
(1) Petitioner was not afforded reasonable opportunity either at the stage of enquiry or at the stage of consideration of enquiry report before the District Basic Education Officer.
(2) The enquiry report was not made available to the petitioner. At the appellate stage, petitioner requested for the supply of relevant documents relied upon by the respondents but those documents were not supplied, nor any opportunity was given to the petitioner to examine the same ; and (3) The orders were passed on the mala fides of the officers, who were prejudiced against petitioner on account of complaints made by him regarding grave financial irregularities in the audit reports and the G.P.F. accounts.
5. Elaborating his submissions.
Sri Naqvi submitted that in pursuance of the interim order dated 19.8.1982, passed by this Court in Civil Misc.
Writ petition No. 9371 of 1982, Syed Haider Ali Naqvi v. D.I.O.S. and Ors. petitioners continued to work in Junior High School, Phoolpur, Allahabad. The Basic Shiksha Adhikari. Allahabad, terminated petitioner's service on 13.4.1983.
Petitioner challenged this order before Basic Shiksha Parishad, Allahabad. By an order dated 23.5.1983, the Parishad quashed the termination order holding that it was totally illegal and violative of principles of natural justice, and Article 311 of the Constitution of India, and the rules framed by the Basic Shiksha Parishad, Uttar Pradesh. The petitioner was an office bearer of Shikshak Sangh and organised several agitations against officials of the department upon which respondents were displeased with the petitioner. He was a signatory to various agreements entered into between Shikshak Sangh and the Board as an office bearer of Shikshak Sangh, A demand was made for introduction of compulsory deposit scheme and G.P.F. Account of teachers on which no action was taken. The Shikshak Sangh started agitations from December, 1988 to August, 1989. A number of irregularities were pointed out by the petitioner based upon the audit report before the Additional Director of Education. The respondents then decided to victimise petitioner. In order to harass him petitioner was reverted back to Primary School from his posting at Junior High School vide order dated 7.3.1989 which was stayed by this Court on 19.5.1989 passed in Civil Misc. Writ Petition No. 5180 of 1989. Twelve other Urdu teachers, who took part in the agitation, were also sent back to Primary Schools. They also filed writ petitions in which their orders of transfer were also stayed.
Petitioner's salary was stopped and he was not allowed to assume his duties at the place from where he was transferred. In the meantime, he was removed from service without giving him any opportunity or notice on account of mala fide intentions. Petitioner has denied the allegation made against him for not accepting the notice as published in daily news paper 'Amrit Prabhat1. The publication included the charges but that the petitioner was not supplied with the documents in support of the said charges. He demanded copies of documents which were not given to him. The second notice published on 3.6.1989 in 'Amrit Prabhat' referred to the petitioner's application but still the documents were not supplied to him. The petitioner met the enquiry officer, who failed to supply him the documents on the ground that the keys of Almirah were not available and assured that the petitioner shall be sent the copies of the documents and that all of a sudden on 3.7.1989 orders were passed terminating his service. Petitioner has denied the charges as false, baseless and concocted.
6. !n appeal, petitioner again requested for supply of the documents in support of the charges which were not given to him, and thus he could not give a detailed and effective reply for want of relevant documents. On merits, the petitioner has submitted that he did not absent himself without sufficient cause. He attended school regularly and an application was given to the higher authority with the prayer that he be paid full salary, bonus, etc. for the period reported to be the period of his absence. The service book was kept in the office on which cuttings and over-writing could not be attributed to him.
7. In the counter-affidavit of Sri Mithilesh Chandra Srivastava, Deputy Secretary in the office of Basic Shiksha Parishad, U. P., Allahabad, the allegations made in the writ petition have been denied. It has not been denied that the petitioner was office bearer of Shikshak Sangh but that the petitioner was indifferent to the teaching work and his activities were not in the interest of the students and the institution. The charge-sheet was not received by the petitioner and thus, it was notified in news papers on 12.5.1989 and 19.5.1989. Even after publication, no reply was submitted by the petitioner. The charges were found to be proved and thus petitioner's services were rightly terminated. In appeal. Secretary, Basic Shiksha Parishad heard all the submissions and dismissed' the appeal by a detailed and reasoned order.
8. The District Basic Shiksha Adhikari, Allahabad. In the order terminating the petitioner's services has staled that on refusal to accept the charge-sheet publication was made in news paper. The Deputy Inspector of Schools, in the presence of the enquiry officer, tried to serve charge-sheet upon the petitioner on 27.5.1989. The petitioner did not give any reply to the notice nor gave any information in writing. On the contrary, he have letters dated 2.5,1989 and 26.5.1989, to the higher officers using improper language. From December, 1986 to 7.3.1989, he was absent for 343 days. Between 12.10.1988 and 3.3.1989, the petitioner was not present in the school for 20 days which is proved from the attendance register, and because of his absence, the students of Urdu language suffered. The petitioners did not join at Primary School, Lotar. Meja in pursuance of the transfer order, nor did he submit any application for leave, and since 1989, he has been absenting without any sufficient cause. Petitioner was also found guilty of reducing his age in his service book and that on 3.4.1989, petitioner stopped District Basic Shiksha Adhikari. Allahabad, physically to carry out an inspection. In appeal, the Secretary of the Board has considered petitioner's reply on each of the charges and has found that all the charges have been established. The petitioner could only explain 50 days out of 343 days of absence found by the District Basic Shiksha Adhikari. The report of the Deputy Inspector of Schools proved the fact that on account of the absence of petitioner, the students in the institution stopped Urdu studies and left the school to join elsewhere. He was relieved from Junior High School. Tharwai. Soraon on 8.3.1989 but thereafter he failed to Join at the transferred place. The service book was found to have been wrongly presented by the petitioner by changing his date of birth.
9. Sri S.F.A. Naqvi has relied upon the following cases :
give reply only after such evidence is provided. With regard to the amended charge-sheet dated 2.6.1989, published in daily news paper 'Amrit Prabhaf on 3.6.1989, petitioner sent reply reiterating his earlier letter demanding documents. It was stated by him that he went to the office of enquiry officer several times but the documents were not made available to the petitioner but according to the petitioner, they were not with the enquiry officer but with Sri Surya Nath Shukla, Deputy Inspector of Schools.
11. It is to be noticed from the aforesaid reply that petitioner was making allegations against all officers of the department. He was aware of the charges levelled against him which were published, but he did not choose to deny the charges. Petitioner did not specify the documents required by him in the absence of which he could not give reply. Examination of charges shows that petitioner was found to have absented for a long period of 343 days between December, 1986 and March, 1989. He was found to be present in school only for 20 days. Further, he was charged with negligence and for not taking interest in teaching work and for failing to join at Primary School, Lotar, Meja, and to have absented continuously after being relieved on 8.3.1989, from transferred place. Charges 6 and 7 relate to providing false information regarding details of his service and charge No. 8 was in respect of physically preventing District Basic Shiksha Adhikari for making inspection of school. None of these charges are of a nature which could not have been replied or, alleast, denied in the absence of evidence in their support. The fact that he refused to accept the charge-sheet on 27.5.1989 along with pleadings and did not choose to comment upon the charges and used unparliamentary language accusing almost all the officers of the department, go to show that petitioner was not interested in defending himself and that the demand of documents was not bona fide.
12. The appellate authority had occasion to consider the appeal in detail. Petitioner was given fair hearing by Secretary, Uttar Pradesh Basic Education Board, Allahabad. The appellate authority examined the entire record carefully and confirmed the absence of petitioner from school and the negligence in teaching. It was found that petitioner failed to abide by orders of transfer and that he tried to make over-writings in service-book. The incident dated 13.4.1983 by which petitioner physically prevented Basic Shiksha Adhikari to inspect the schools, was found to be true. Petitioner was thus given full and adequate opportunity to defend himself but he chose to stay-away from the enquiry proceedings. The appeal was heard giving full opportunity to challenge the finding of the disciplinary authority.
13. The cases relied upon by the petitioner do not render much assistance to the submissions made by the learned counsel for the petitioner. In institute of Chartered Accountants of India (supra), the Supreme Court found that a member of institute accused of misconduct is entitled to a hearing and that Regulation 14 of the Chartered Accountants Regulations, 1964, do not exclude the operation of principle of natural justice which must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary. In Leary v. National Union of Vehicle Builders (supra), the Chancery Division held that failure to observe the rules of natural justice by the trial body cannot be cured by the presence of natural justice in the appellate body. In Board of Trustees of the Port of Bombay (supra), the Supreme Court found that in a domestic enquiry relating to an employee of the Bombay Fort Trust, refusal of request of employee to be represented by lawyer amounts to denial of reasonable opportunity of hearing to employee under Regulation 12 (8) of Bombay Port Trust Employees Regulations, 1976, while legally trained officers were appointed as presenting officers for the employertrust. In Anoop Jaiswal (supra), a probationer at the Sardar Vallabhbhai Patel National Police Academy, Hyderabad, was discharged under Clause (b) of Rule 12 of the Indian Police Service (Probation) Rules, 1954, on account of an incident. The Supreme Court found that the foundation of order was the alleged act of misconduct and thus Anoop Jaiswal the probationer, was denied reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution of India. In Nepal Singh (supra), termination orders of the services of temporary Sub-Inspector of Police were passed on mere allegations and on unspecified and vague grounds. The termination order was quashed. In Union of India v. Mohd. Ramzan Khan (supra), the Supreme Court held that in disciplinary inquiry, the delinquent officer is entitled to the copy of the report of inquiry officer and that Article 311 of the Constitution of India did not take away the right of delinquent officer to supply a copy of the inquiry report. The other decisions, cited by Sri Naqvi reiterate and reaffirm the observance and adherence of the principle of natural justice in disciplinary enquiry and need not be discussed in great detail. The respondents admitted that the rules applicable required adherence of principle of natural justice and that the petitioner did not choose to avail the opportunity. Petitioner refused to accept the charge-sheet and that after the charges were published in news papers and the petitioner appeared before the inquiry officer, he refused to accept the copies of the same supported by documents and again absented himself. He never denied the charges before disciplinary authority. The inquiry officer, as such had no option left but to consider the charges on their own merit and having found them established, he passed an order terminating the service of petitioner.
14. The appellate authority gave full opportunity to the petitioner to defend himself and having found the charges established, upheld the order of termination. The submission that the breach of natural justice is not curable in appeal, is a well established principle of law. If natural justice is violated in departmental enquiry, the right of appeal becomes an illusion and that initial defect cannot be cured inasmuch as unfair trial cannot be guarded by following fair trial. Even if appeal is treated as hearing de novo the aggrieved person is denied the right to appeal from an effective decision. The error of unfair procedure cannot guard subsequent trial. However, in the present case. I find that the petitioner was not denied an opportunity of hearing and that procedure followed was not unfair. The petitioner himself chose and did not take opportunity to accept copy of the charge-sheet and reply to the same. All the charges did not require perusal of supporting documents and in any case in both letters written by the petitioners to the inquiry officer, he did not offer even a bare denial to the charges which were serious enough to terminate his services.
15. In the facts and circumstances, 1 do not agree with the submissions made by the learned counsel for the petitioner that he was not afforded opportunity to defend himself before the District Basic Shiksha Adhikari or the appellate authority. The petitioner has also failed to establish that the orders of termination were based on mala fides.
16. The writ petition fails and is dismissed. There shall be no order as to costs.