JUDGMENT D. K. Seth, J.
1. In this writ petition, the order dated 13th September. 1991, passed by the U. P. Secondary Education Services Commission being Annexure-50 to the writ petition granting approval to the order of dismissal of the petitioner from the post of Principal of Sri Krishna Inter College, Ashram Barhaj. Deoria is under challenge.
2. Mr.. S. N. Shukla, learned counsel for the petitioner has taken a simple but Interesting point to the extent that the charge-sheet was issued by the Manager and not by the Enquiry Committee appointed under Regulation 35. Chapter III of the Regulation framed under U. P. Intermediate Education Act and as such, in view of the ratio decided in the decision in the case of Committee of Management, Shahganj Public Inter College, Shahganj and another v. U, P. Secondary Education Service Commission, Allahabad and another, (1995) 3 UPLBEC 1593, interpreting Regulations 35 and 36 of the said Regulation. Admittedly, the charge-sheet was issued by the Manager. There is nothing to show that the charge-sheet was forwarded by the Manager having been framed by the Enquiry Committee nor there is anything to show that the charge-sheet was approved by the Committee of Management and the Manager was authorised to forward the same. There is also nothing to indicate that the Enquiry Committee had ever authorised the Manager to issue the charge-sheet framed by it. In such circumstances. Mr. Shukla contends that the whole enquiry is vitiated and no approval could be granted by the Service Commission to the proposed punishment pursuant to the enquiry. Though he had taken various other points, it is not necessary to go Into those questions until a decision on the point raised by Mr. Shukla is arrived at.
3. Mr. A N. Singh, learned counsel for the respondent, the Committee of Management, on the other hand, contends that the Committee of Management had approved the charge-sheet as is apparent from the resolution dated 10th January. 1988. The Manager had forwarded the charge-sheet on behalf of the Committee of Management and as a Manager he Is authorised to do so. Secondly, he contends that Regulations 35 and 36 of the said Regulation does hot prescribe that the charge-sheet has to be issued by the Enquiry Committee and a charge-sheet issued by the Manager would be Invalid.
4. I have heard both the counsel at length.
5. It appears that Regulation 35 has not specified that the charge-sheet has to be Issued by the Enquiry Committee. Regulation 35 prescribes if the complaint or the adverse report of charges appears to be serious, then the Committee of Management shall appoint the Principal or the Manager as an Enquiry Officer in respect of all other employees or the Manager himself may hold the enquiry if in the scheme of administration any such authority is conferred on the Manager. In case of enquiry against the Principal or the Headmaster, a small Sub-committee is to be constituted which should be directed to submit its report early. Thus, Regulation 35 does not prescribe that the charge-sheet is to be issued in the case of a Principal by the Committee of Enquiry. On the other hand, it prescribes that for enquiry against the Principal or Headmaster, a Sub-committee is to be constituted.
6. Regulation 36 is construed on indirect note. Regulation 36 has not prescribed as to by whom such charge-sheet is to be issued. It does not also prescribe that such charges are to be approved either by the Committee of Management or by the Enquiry Committee in the case of Headmaster or Principal. It also does not say that such charge-sheet cannot be framed by the Manager.
7. Be that as it may, despite in absence of any such specific provision in Regulations 35 and 36, the learned single Judge in the decision in the case of Committee of Management, Shahganj Public Inter College (supra) had held while interpreting Regulations 35 and 36 that In the case of Headmaster or Principal, the charge-sheet has to be issued by the Sub-committee of Enquiry. In case such charge-sheet Is issued by the Manager in respect of Headmaster or Principal in that event, the same would be incompetent. The said decision had relied upon a Division Bench Judgment in the case of Committee of Management, S. B. Inter College, Lahua Kalan, Distt. Azamgarh v. V. P. Secondary Education Service Commission, Allahabad and others. Civil Misc. Writ Petition No. 9962 of 1988 decided on 10th October. 1988. In the said decision, the Division Bench had upheld the order of the Commission which disapproved the proposal for termination of services of the Principal of the College on the ground that the charge-sheet was served by the Manager of the Institution and not by the Enquiry Sub-committee. The Division Bench had held that it was thus clear "that the charge-sheet was not given by the Sub-committee. This was enough to sustain the impugned order disapproving the order of termination. The decision in the case of Committee of Management, Shahganj Public Inter College (supra) had also confirmed the order of the Commission which refused to approve the order of punishment only on the ground that the charge-sheet was Issued by the Manager on the Head master/Principal and not by the Sub-committee.
8. Even if. I may have reservation, unless I am able to distinguish the decision, as a single Judge, I am bound by the decision of the Division Bench.
9. A reading of the decision in the case of Committee of Management, Shahganj Public inter College (supra), clearly indicates that the charge-sheet against the Principal or Headmaster, unless issued by the Sub-committee for enquiry would vitiate the enquiry proceeding and the Commission cannot approve the same. Here in this case, the charge-sheet has been Issued by the Manager and not by the Sub-committee. The Commission could not have approved the order of punishment in view of the ratio decided in the case of Committee of Management. S. B. Inter College, Lahua Kalan (supra) since relied upon in the decision in the case of Committee of Management. Shahganj Public Inter College (Supra).
10. This ground is sufficient for setting aside or quashing the order of approval granted by the Commission contained in Annexure-5 to the writ petition.
11. Mr. A. N. Singh, learned counsel for the respondent had, however, contended that this point was not taken before the Commission by the petitioner. The question is a question of the jurisdiction of initiation of the proceeding. An enquiry proceeding is initiated by issue of charge-sheet. In the present case, the charge-sheet appears to have been Issued on 23rd January. 1988 while the Sub-committee for enquiry was constituted on 10th January, 1988. Thus, the enquiry having been initiated on the basis of the charge-sheet issued against the Principal by the Manager having been found contrary to the ratio laid down in the case of Committee of Management, Shahganj Public Inter College (supra) relying upon a decision in the case of S. B. Inter College Lahua Kalan (supra), the same cannot be basis of foundation for granting approval to the order of punishment by the Commission. As such, the said order cannot be sustained.
12. Mr. Shukla had also relied upon the decision in the case of Mangla Prasad Upadhya v. State of U. P, and others. 1988 UPLBEC 552, in the said Judgment, the learned single Judge had held that in law, the charge-sheet has to be framed by the Enquiry Committee and the service must be of the charge-sheet framed by the Committee and not by the Institution. In the present case as rightly contended by Mr. Shukla, there is nothing to show that the Subcommittee has framed the charge-sheet and served it.
13. Mr. A. N. Singh has not been able to draw my attention to any material from where it can be shown that the charge-sheet was framed by the Sub-committee and the Manager was only a forwarding agent. Mr. Singh has relied upon the decision In the case of Keshaw Prasad Mishra v. Managing Committee, Gayatrl Vidya Mandir, Distt. Hamirpur and others 1982 UPLBEC 234. He contended relying on the said decision that if the charges are formulated by the Subcommittee and it is so forwarded by the Manager In that event, it will not be an Infirmity and it cannot be said that the charge-sheet was not served by the Sub-committee. In the present case, according to him, preliminary enquiry has been made by the Subcommittee whereby the charge-sheet was formulated and served by the Manager.
14. In the said case. Enquiry Subcommittee had held a preliminary enquiry and had formulated the charges which was served by the Manager. Therefore, the Court had held that if the Sub-committee had formulated the charges, the mere service thereof by the Manager would not violate Regulation 35. But in the present case, there is nothing to show that the charges were formulated by the Sub-committee. Admittedly, the preliminary Investigation was carried on by a Committee consisting of persons different than those consisted of the Enquiry Sub-committee. This decision is not in conflict with the other Division Bench judgment to the extent that the charge-sheet is to be formulated and framed by Enquiry Sub-committee. In case the charges are formulated or framed by the Subcommittee then the service thereof by the Manager in respect of an enquiry against the Principal or Headmaster would not vitiate the enquiry. This Judgment In the case of Keshaw Prasad Misra (supra) on the other is in line with the ratio decided in the case of Committee of Management, S. B. Inter College (supra). There has been no conflict between two Division Bench Judgment in relation to the ratio involved. It is not possible for me to differ from the said Judgment with regard to the particular question of law as advanced by Mr. Shukla. Since in the facts of the case, there is nothing to show that the charge-sheet was formulated by the Enquiry Subcommittee or that the Members of the Enquiry Sub-committee and the Preliminary Enquiry Committee were same.
15. The preliminary enquiry is in effect a fact finding enquiry to obtain materials for forming an opinion as to the graveness of the charges and necessity to hold the enquiry. Therefore, the Sub-committee holding preliminary enquiry is a Subcommittee completely distinguished and different from the Enquiry Subcommittee. Then again, the Committee of Management in its resolution dated 10th January, 1988 had pointed out that the charge-sheet be served while constituting the Subcommittee for enquiry thereafter. Thus, the charge-sheet, if there be any was not a charge-sheet formulated by the Sub-committee. Though, however, nothing has been shown that any such charge-sheet was approved by the Committee of Management or that it was ever approved by the Sub-committee and only on its direction the Manager had served it as its forwarding agent. In the circumstances, the said decision does not help the contention of Mr. Singh.
16. Accordingly, the order dated 13th September, 1991 contained in Annexure-50 is liable to be quashed and is accordingly, quashed. Let a writ of certiorari do accordingly issue.
17. Mr. Shukla submits that the petitioner had attained the age of superannuation on 30th June, 1996 and had already retired. In such circumstances, there is no scope for reinstatement of the petitioner. Therefore, it is hereby declared that the petitioner is entitled to all service benefits as if he had continued as Principal/Head master of the said school till superannuation and accordingly all such service benefits is to be made available to the petitioner as well as consequential retirement benefits as admissible in law may also be made available to the petitioner. All such dues of the petitioner may be paid to the petitioner as early as possible preferably within a period of six months from the date of communication of this order to the concerned respondent. Let a writ of mandamus do accordingly Issue.
18. In the result the writ petition succeeds and is allowed as above.
However, there will be no order as to costs.