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2008 DIGILAW 407 (ALL)

ASHA KAPOOR. v. K. N. TANDON

2008-02-22

PRAKASH KRISHNA

body2008
JUDGMENT Honble Prakash Krishna, J.—An educational institution known as Kali Charan Bal Vidya Mandir is being run by Kali Charan Vidyalaya Endowment Trust. The provisions of the U.P. Basic Education Act, 1972 were applicable to the institution. The present applicant who was working as a teacher in the said institution filed a writ petition No. 3180 of 1981 on the allegation that she used to be appointed in the month of July up to 30th of June of the next year. Her services used to be terminated by the Management to avoid the payment of salary for the holidays. It was stated that she was not allowed to work as teacher after 30th of June, 1989 which led to the filing of the aforestated writ petition. In the counter affidavit a stand was taken by the Committee of Management that the power of appointment vests in the Selection Committee and the petitioner was not appointed through Selection Committee. The Court, however, quashed the order of termination and directed the opposite parties therein to take the petitioner back in service and deal her case according to law. It was further directed that the salary of the petitioner shall be paid by the opposite parties. The operative portion of the judgement is reproduced below : "Consequently the order of termination is hereby quashed and the opposite parties are directed to take her back in service and deal her case according to law. It is further directed that salary of the petitioner will be paid by the opp. parties. No order as to costs." 2. Armed with the judgment of this Court the petitioner approached the institution and gave her joining on 5th of March, 1990. The further averment in the present contempt petition is that the petitioner regularly went to the school but she was not allowed to sign the attendance register and thus the opposite parties have disobeyed the aforestated judgement of this Court dated 5.2.1990. In response to the notice issued on the contempt petition number of counter affidavits have been filed by the opposite parties. In response to the notice issued on the contempt petition number of counter affidavits have been filed by the opposite parties. In the counter affidavit of opposite party No. 2 Shri Gopal Das Mehrotra, the manager of the institution, besides the other pleas, it is stated that in spite of the fact that the petitioner had reported duty, she came to school on 6th of March, 1990, 13th of March, 1990, 14th of March, 1990 and lastly on 15th of March, 1990. She abstained herself from attending school since 16th of March, 1990. It has been further stated that the judgment of this Court has been complied with. In the counter affidavit filed by Shri K.N. Tandon, the Principal of Kali Charan Degree College, it has been stated that he has no concern with the present dispute. In para 12 of the counter affidavit, however, it has been stated that the petitioner on her own showing has worked up to 15th of March, 1990. 3. So far as the Basic Shiksha Adhikari and District Inspector of Schools are concerned, they have passed the buck on each other. 4. It may be placed on record that the institution in question came on grant-in-aid list in October, 1989 i.e. before the decision in writ petition. The teachers who were working in the institution are now getting salary from the State Government. The stand of the District Inspector of Schools is that since the matter relates to the period when the institution was not on the grant-in-aid list, the matter requires to be looked into by the District Basic Shiksha Adhikari. On the other hand, the District Basic Shiksha Adhikari submits that since the institution has come on the grant-in-aid list, the question of payment of salary is to be considered by the District Inspector of Schools as per the provisions of the U.P. Intermediate Education Act. However, these authorities have also taken stand that the petitioner has not worked even for a single day in the institution after 15th of March, 1990. 5. It may also be noted that in the meantime the petitioner has reached the age of superannuation. 6. Before proceeding further by way of clarification it may be added that there is no lis between the parties with regard to the payment of arrears of salary for the period up to 15th of March, 1990. 5. It may also be noted that in the meantime the petitioner has reached the age of superannuation. 6. Before proceeding further by way of clarification it may be added that there is no lis between the parties with regard to the payment of arrears of salary for the period up to 15th of March, 1990. It has been stated by the Committee of Management that the arrears of salary up to 15th of March, 1990 have been paid by the Committee of Management from their own resources and the petitioner also in her rejoinder affidavit has accepted that she has received a sum of Rs. 34,000/-. During the course of argument the learned counsel for the petitioner also stated clearly that the dispute in the present contempt petition is confined so far as it relates to the period subsequent to 15th of March, 1990 till the date of superannuation of the petitioner. 7. A serious dispute was raised by the opposite parties that since the petitioner did not turn up to discharge the duties after 15th of March, 1990 and she voluntarily left the job on 15th of March, 1990 in spite of notice given by the institution, it is a fit case where contempt petition should be dismissed. 8. When the matter was heard on 7th of January, 2008 it was thought fit to examine the evidence, if any, on the record to show that the petitioner approached the institution or not for being permitted to discharge her duty after 15th of March, 1990. The matter was adjourned on that date after recording the following order in the order sheet : "Heard in part. As prayed by the learned counsel for the applicant put up tomorrow as part heard. Learned counsel for the petitioner will have to give a reply to the query of the Court as to whether there is any document to show that the petitioner actually worked after 15th of March, 1990. The applicant is also required to refer the document, if any, on record to show that any complaint in writing was made by her against the school for the alleged interference in her right as a teacher to perform her duties." 9. The hearing took place on 9th January, 2008. The primary question which boils down in the present petition is whether the petitioner left the job voluntarily after 15th of March, 1990. The hearing took place on 9th January, 2008. The primary question which boils down in the present petition is whether the petitioner left the job voluntarily after 15th of March, 1990. From the perusal of the pleadings there appears to be sufficient force in the argument of the learned counsel for the school that the petitioner failed to report on duty after 15th of March, 1990 and she is only interested to get salary without discharging her part of obligation i.e. teaching the students. 10. In counter affidavit of Shri Gopal Das Mehrotra, the opposite party No. 2, it has been stated that : "the petitioner absented herself subsequently till 12th of March, 1990 and thereafter since 16th of March, 1990 without any valid excuse" vide sub-para (v) of para 4. The said stand has been reiterated in the subsequent para (vi) of para 4. For ready reference the contents of sub-para (vi) of para 4 is reproduced below : "That contents of paragraph 7 of the petition are not admitted. The petitioner subsequent to 6.3.1990 simply intimated her presence in the school to the Principal of the Bal Mandir on 14.3.1990; and thereafter reported in the school on 15.3.1990. From the communication mentioned by her and copies of which the petitioner has enclosed, it is clear that the petitioner had joined the school duties that she presented herself in the school on 5.3.1990, 6.3.1990, 13.3.1990, 14.3.1990 and 15.3.1990; that she voluntarily absented herself in between 6.3.1990 and 13.3.1990 and subsequent to 15.3.1990 till she was summoned by the office of the Trust vide his notice of 10.4.1990." 11. The reply to the aforestated para has been given in rejoinder affidavit vide para 14 and 15. Those paragraphs are reproduced below : "14. That with respect to the contents of para 4 (v) of the counter affidavit it is wrong to say that the petitioner absented herself subsequently till 12.3.90 and thereafter since 16.3.1990. In fact after 5.3.90 the petitioner is regularly visiting the school but she has not been allowed to sign the attendance register and teach the classes and in this manner the opposite parties are disobeying the judgment of this Honble Court. The contents of para 6 of the contempt petition are reiterated. 15. In fact after 5.3.90 the petitioner is regularly visiting the school but she has not been allowed to sign the attendance register and teach the classes and in this manner the opposite parties are disobeying the judgment of this Honble Court. The contents of para 6 of the contempt petition are reiterated. 15. That with respect to the contents of para 4(vi) of the counter affidavit it is submitted that from 7.3.1990 to 12.3.1990 there were Holi holidays and therefore it is wrong averment that applicant voluntarily absented herself in between 6.3.1990 and 13.3.1990 and subsequent to 15.3.1990. In fact the applicant is regularly visiting the school with an intention to teach the classes but she has been deprived from her legitimate right." 12. Except making a bald statement that the petitioner has been regularly visiting the school but was not allowed to sign the attendance register and teach the classes, there is no supporting material therefor. Interestingly, it may be noted that the aforesaid paragraphs 14 and 15 have been very cleverly drafted as is apparent from the verification clause of the affidavit. The petitioner has chosen to verify the contents of other paragraphs of the rejoinder affidavit on personal knowledge but the paragraphs 14, 15 and 17 of the rejoinder affidavit have not been verified by the petitioner on personal knowledge but they have been verified on belief to be true on the "legal advice tendered". 13. In the short counter affidavit of Shri Vikas Srivastava, the opposite party No. 10, the present District Inspector of Schools in para 6 it has been stated that the petitioner attended the college w.e.f. 6th of March, 1990 till 15th of March, 1990 and thereafter she never came. The contents of para 6 has been replied by the petitioner in para 3 of the rejoinder affidavit dated 3rd of September, 2007. The petitioner has not dared to deny the averments made in para 6 of the counter affidavit to the effect that the petitioner did attend the college till 15th of March, 1990 and thereafter she never came to the college. The petitioner has not dared to deny the averments made in para 6 of the counter affidavit to the effect that the petitioner did attend the college till 15th of March, 1990 and thereafter she never came to the college. In reply to the contents of para 6 of the counter affidavit only this much has been stated in para 3 of the rejoinder affidavit that "the deponent of counter affidavit i.e. the opposite party No. 10 is required to prove the termination of service of the petitioner after 15th of March, 1990. The petitioner could not dare to deny the averments of the counter affidavit specifically, and she has not stated in so many words that she attended the school and reported on duty after 15th of March, 1990, which she could say if she had attended the school after 15th of March, 1990, very easily. Shri Bhola Nath Bhalla, the opposite party No. 5, the subsequent manager of the school also filed an affidavit wherein he has also stated that the petitioner lastly reported the school on 15th of March, 1990. It has been further stated in para 7 of the counter affidavit that the petitioner has absented herself since 16th of March, 1990 without any valid excuse. In reply the petitioner in the rejoinder affidavit dated 8th of March, 2006 has stated vide paragraphs 11 and 12 that the petitioner was not allowed to resume her duties thereafter. 14. The Court pointedly asked the learned counsel for the petitioner to refer any evidence to show that the petitioner reported the college after 15th of March, 1990 but he failed. The only reply given by him is that the petitioner was not allowed to resume the duties by the school after 15th of March, 1990. Assuming for a moment, if the said stand is correct, least it was expected from the petitioner to have made complaint against the institution in writing to the concerned authorities. The petitioner evidently has not made any complaint to any authority against the Committee of Management of the school that she is not being permitted to resume the duty. This petition is pending in this Court since the year 1990. A counter affidavit on behalf of the opposite party No. 2, the then manager, was filed way back in the year 1991. It is dated 23rd of April, 1991. This petition is pending in this Court since the year 1990. A counter affidavit on behalf of the opposite party No. 2, the then manager, was filed way back in the year 1991. It is dated 23rd of April, 1991. The said counter affidavit of Shri Gopal Das Mehrotra has already been referred above. It has been pointed out that in the rejoinder affidavit the petitioner felt satisfied by making averment that she is regularly visiting the school. The said averment, as already noted, was sworn on the basis of legal advice and thus, does not inspire confidence. 15. Viewed as above, this Court is of the opinion that the petitioner who succeeded in the writ petition somehow lost interest in service and she voluntarily took a decision not to attend the duties. She is only interested in salary without discharging her obligation of teaching students. 16. In this view of the matter, it is a fit case to drop the proceedings and discharge the notices issued to the opposite parties. 17. Before parting with the case, it may be noted that the learned counsel for the applicant has referred the following cases; however, in my opinion, on the facts of the present case none of them as relied upon by the learned counsel for the applicant, has any application to the controversy involved in the present case, invoking contempt jurisdiction : (1) Vidya Dhar Sharma v. G.B. Patnaik and others, (2001) 2 UPLBEC 1384. (2) Ram Vilash Sharma v. Joint Director, VIIth Mandal, Gorakhpur and others, 2004 (3) AWC 2461 . (3) U.P. Nursing Home Association and another v. Sri Rajesh Kumar Srivastava and others. (4) Hanuman Prasad Srivastava and others v. Shri Lalji Ram and others, 2007 (25) LCD 1616. (5) Basic Shiksha Adhikari and another v. Smt. Sugna Devi and others, 2004 (1) AWC 526 (SC). (6) Niranjan Pal Dixit v. District Basic Shiksha Adhikari, Etah and others. 18. In the result, there is no merit in the present petition. The petition is dismissed. But no order as to costs. ————