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2009 DIGILAW 3048 (ALL)

SYED YAQEEN AHMAD v. STATE OF U. P.

2009-09-04

SUDHIR AGARWAL

body2009
JUDGMENT SUDHIR AGARWAL, J.--Heard Sri Ankush Tandon, Counsel for the petitioner, learned Standing Counsel representing respondent Nos. 1 and 3 and Sri Rahul Jain who has put in appearance on behalf of respondent No.4 i.e. Committee of Management. 2. The petitioner Sri Syed Yaqeen Ahmad was employed as Assistant Teacher at Darul-Ulum-Ahela, Sunnat Madarsa Asarfia Mishbahul Ulum, Mubarakpur, District Azamgarh. 3. The terms and conditions of service of the staff of the school are governed by Uttar Pradesh Ashaskiya Arabi and Farsi Madarson Ki Manyata Niyamawali (non-statutory) (hereinafter referred to as 'the Rules'). 4. The petitioner was appointed in 1971 as Assistant Teacher and promoted as Head Master of the Primary Section w.e.f. 1.7.1979. There were certain allegations of misconduct against the petitioner for which he was placed under suspension by the Committee of Management on 3.2.1993. A charge-sheet was issued to the petitioner on 29.8.1995. There are certain other events which are not necessary for the purpose of the present case, and therefore, can be skipped. A charge-sheet was issued to the petitioner on 29.8.1995 and after enquiry he was terminated by order dated 24.2.1996 (in the writ petition on page 34, the date of the order has wrongly been mentioned as 24.2.1995, though at page 31 the date is mentioned as 24.2.1996 and the learned Counsel for the parties agreed that the correct date of termination is 24.2.1996). 5. Challenging the aforesaid order of termination, the petitioner filed Writ Petition No. 4347 of 1996 which was dismissed by Hon'ble Single Judge vide judgment dated 20.2.2002 observing that the petitioner himself decided not to participate in the enquiry proceedings hence cannot be permitted to challenge the proceedings on the ground that he was not given opportunity of defence. The matter was taken in Special Appeal No. 375 of 2002 and it was contended by the learned Counsel for the petitioner-appellant therein that under Rule 34 of the above mentioned rules, it would be open to the Inspector Arabi Madarsa, U.P., Allahabad to examine the matter regarding the procedure followed by the Management in terminating the teachers, therefore, the Hon'ble Single Judge instead of himself recorqing a finding ought to have directed the Inspector to examine this matter. 6. 6. After hearing the learned Counsel for the parties this Court vide judgment dated 11.10.2006 permitted the Inspector to examine the matter without being prejudiced in any manner by the observations of the Hon'ble Single Judge and to take a decision independently in accordance with Rule 34 and the order of Single Judge was modified to that extent. Pursuant thereto the Inspector, it appears, had examined the matter but did not find any procedural irregularity and therefore, has observed that the termination of the petitioner from service is valid. It is this order dated 20.5.2007 passed by the Inspector which is subject of dispute in this writ petition. 7. Learned Counsel for the petitioner submitted that the Inspector has not properly examined the matter, inasmuch as he has noticed that witnesses were examined by the management but in respect of various aspects the said witnesses mostly gave their statements amounting to hearsay, but ignoring this aspect of the matter Inspector has upheld the order of termination and, therefore, erred in law. 8. However, I do not find any substance in the submission. The nature of power which has to be exercised by the Inspector under Rule 34 has first to be examined. Rule 34 reads as under: ^^34- ;fn izca/kkf/kdj.k }kjk fdlh v/;kid@deZpkjh dh lsok ls i`Fkd~ djus dk fu.kZ; fy;k tkrk gS rks fu”dklu ds iwoZ fof/kd dk;Zokgh vko’;d gksxhA iwjh dk;Zokgh ds fooj.k fujh{kd] vcjh enjlk] mRrj izns’k bykgkckn dks izsf”kr djuh gksxhA ;fn dk;Zokgh esa dksbZ vfu;ferrk ik;h tkrh gS rks fujh{kd dks ;g vf/kdkj gksxk fd og vius lq>ko izca/k lfefr dks HkstsA** 9. A perusal of Rule 34 shows that the power of Inspector is not like an appellate authority or an authority without whose examination of the matter the management cannot exercise its administrative power over its staff. In fact Rule 34 provides that before taking any disciplinary action, the legal procedure shall be followed. It is evident from the record that the Management followed the procedure i.e. a charge-sheet was issued, enquiry was held and thereafter order of termination was passed. To the extent, there is no dispute between the parties also. In fact Rule 34 provides that before taking any disciplinary action, the legal procedure shall be followed. It is evident from the record that the Management followed the procedure i.e. a charge-sheet was issued, enquiry was held and thereafter order of termination was passed. To the extent, there is no dispute between the parties also. The Rule thereafter further provides that the documents pertaining to procedure folluwed by the management shall be sent to the Inspector who shall examine as to whether there is any procedural irregularity or not and if he finds any procedural irregularity, he will make his suggestion to the management and nothing more than that. The word 'suggestion' means that the Inspector has not been made an authority to interfere with the order of the management directly or upset the decision of the management, but in such cases wherever he finds any irregularity in the procedure observed by the management, he can make his suggestion which obviously have to be considered by the Management and it is open to them to accept it or not. At the best suggestion may help an employee when he challenges the order of the management in a Court of law to show that the legal procedure which is said to be observed is not correctly observed as also noticed by the Inspector but that by itself would not vitiate the order unless it is so found by a Competent Court of Law. 10. In the present case, however, the Inspector has not found any procedural error. The power of the Inspector is not akin to the power exercised by the District Inspector of Schools under Regulation 31, Chapter III read with section 16 G(3) of the U.P. Intermediate Education Act where the teachers could not have been dismissed or removed, without prior approval of the District Inspector of Schools. Similarly it is not akin to the U.P. Secondary Education Commission under section 30 of U.P. Secondary Education Service Commission Act, 1982, where also without prior approval of the Commission no such order of termination i.e. dismissal, removal could have been passed by the Management. 11. Similarly it is not akin to the U.P. Secondary Education Commission under section 30 of U.P. Secondary Education Service Commission Act, 1982, where also without prior approval of the Commission no such order of termination i.e. dismissal, removal could have been passed by the Management. 11. The Institution in the case in hand is a minority institution and, therefore, the provisions pertaining to prior approval having held not applicable, the Inspector Arabi Madarsa has been empowered only to look as to whether the procedure followed by the Management suffers from any irregularity or not and if so he can make his suggestion to the Management and nothing more than that. 12. Learned Counsel for the petitioner tried to demonstrate that some of the witnesses have given their statements which amounts to hearsay and on the basis of such hearsay evidence he should not have been punished. It may be clarified at this stage that in a departmental enquiry there is no bar in considering hearsay evidence as held by the Apex Court in the case of State of Haryana v. Rattan Singh.1 A departmental inquiry is not like a criminal trial where the charge has to be proved beyond doubt. In the departmental inquiry, the employer has to proceed on the basis of some material which can be relied by a person of ordinary prudence. Apparently it should not come within the purview of sheer conjectures and surmises. If there is some evidence, its sufficiency would not be examined either in a judicial review or otherwise since the power is vested in the management to believe and to take action on the basis of such evidence. From the impugned order of Inspector it is evident that some of the witnesses have directly given statements against the petitioner. It is, therefore, not open to this Court to make any further examination on this aspect. In judicial review this Court shall not sit over the matter as an appellate authority. I do not find any legal infirmity with the order impugned in the writ petition. Writ petition is accordingly dismissed. 1. AIR 1977 SC 1512 . Petition Dismissed.