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2012 DIGILAW 2437 (ALL)

ABHA SAXENA v. STATE OF U. P.

2012-10-15

PANKAJ NAQVI

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Praveen Kumar Srivastava, learned counsel for the petitioner; learned standing counsel for the State respondents and Shri Subhash Ghosh, learned counsel for respondent Nos. 5 and 6. 2. By means of the present petition, the petitioner essentially challenges an order of termination dated 23.10.2003 passed by respondent No. 5 whereby her services have been sought to be terminated. 3. The facts, as stated in the petition, are that in the city of Kanpur there is a minority institution, known as Kumari Udyan Girls Inter College, Ashok Nagar, Kanpur (for short ‘the institution’), to which the provisions of U.P. Intermediate Education Act, 1921 (hereinafter to as the ‘Act’) are applicable. The petitioner was appointed as a teacher on 1.7.1991. As the husband of the petitioner was assigned a foreign job in Nigeria, it impelled the petitioner to avail leave without pay, from 1.12.1999 to 31.3.2001 (sanctioned leave). She applied afresh for further leave on 23.1.2001 for the period 1.4.2001 to 31.3.2002 (sanctioned leave). She again applied for leave without pay on 24.5.2001 for the period 1.4.2002 to 31.3.2004 (sanctioned leave). She again moved an application for one month’s further leave on 25.10.2002 stating that although she wish to join in time i.e. by 31.3.2004, but her joining may get delayed due to migration formalities and accordingly, a request was made to extend the leave up to 30.4.2004. The request made by the petitioner on 25.10.2002 for grant of leave up to 30.4.2004 was considered and rejected by the management, pursuant to the resolution of the committee of management dated 4.5.2003 and she was directed to join the institution on 1.7.2003. The petitioner sent letters to the manager of the institution on 11.6.2003 and 20.7.2003 stating that she had sanctioned leave up to 31.3.2004. However, the management vide its letter dated 31.7.2003 apprised her of the resolution of the managing committee dated 4.5.2003 that as the extraordinary leave has been cancelled, she should report for joining within ten days. The petitioner again sent a letter dated 27.8.2003 to the manager of the institution that in terms of the Financial Hand Book, she be paid air fare from Nigeria to Kanpur before she is directed to join the institution. The petitioner again sent a letter dated 27.8.2003 to the manager of the institution that in terms of the Financial Hand Book, she be paid air fare from Nigeria to Kanpur before she is directed to join the institution. The management issued a letter dated 23.9.2003 to the petitioner calling upon her to join by 1.10.2003, failing which it be presumed that she has no interest in the service and disciplinary proceeding would be initiated for her removal. The petitioner again replied on 13.10.2003 to the aforesaid letter dated 23.9.2003, reiterating that in view of her personal difficulty, she is unable to join, and further her leave was sanctioned up to 1.4.2004. However, as the petitioner did not join the institution on 1.10.2003, the management resolved to terminate her services on 23.10.2003 w.e.f. 30.6.2003. The petitioner represented before the District Inspector of Schools (for short ‘the DIOS’) and also appeared before the Principal of the institution on 6.7.2004 and 31.7.2004, but the institution did not permit her to join. The DIOS allegedly approved the order of termination on 28.9.2004. The petitioner is alleged to have filed an appeal against the alleged order of aproval before the appellate authority, which came to be rejected on 28.10.2004. 4. The respondent management has denied that the petitioner was ever granted leave up to 31.3.2004. Further case of the management is that by the resolution dated 4.5.2003 the managing committee rejected the application for extension of leave and she was directed to resume her duties by 1.7.2003, but she did not do so. The affidavit further asserts that the petitioner is only concerned about her son studying in Nigeria at the cost of other students, who are studying in the institution and her unauthorised absence for considerable period has affected the academic interest of the students and in this connection it is stated that out of her entire service of 7 years 5 months, she had served the institution only for 2 years 5 months and 14 days. 5. There appears to be some dispute between the parties about the period up to which the leave was sanctioned, as according to the petitioner, it was up to 31.3.2004, whereas according to the management, it was up to 30.6.2003. 6. 5. There appears to be some dispute between the parties about the period up to which the leave was sanctioned, as according to the petitioner, it was up to 31.3.2004, whereas according to the management, it was up to 30.6.2003. 6. It is urged by Shri Ashok Khare, learned Senior Counsel for the petitioner that the impugned order dated 23.10.2003, terminating the services of the petitioner is in gross violation of the provisions of Regulations 35, 36 and 37, as contained in Chapter III of the Act, as the provisions contained therein were not complied with before terminating her services, and in this connection, he relies upon the judgments of this Court dated 21.10.10 in Civil Misc. Writ Petition No. 30642 of 2010 (Tariq Ayub v. State of U.P. and others); Har Dev Singh v. Committee of Management D.B. Santokh Singh Khalsa Inter College, Partan Pura, Agra and another, 2004 (3) AWC 2770 . He further submits that absence of duty without sanctioned leave/over stayal of sanctioned leave is a misconduct for which regular departmental proceedings in conformity with the statutory provisions have to be held, and in this connection, he relies upon Jai Shanker v. State of Rajhasthan, AIR 1966 SC 492 ; Deokinandan Prasad v. The State of Bihar and others, AIR 1971 SC 1409 ; Scooters India Ltd. v. M. Mohammad Yaqub and another, (2001) 1 SCC 61 ; Shantiniketan Hindi Primary School v. Pal Hariram Ramavtar and others, 2010(1) ESC 125 (SC); and Krushnakant B. Parmar v. Union of India and another, 2012(1) ESC 133 (SC). He further submits that the inquiry report is unreasoned, inasmuch as, the charge is held to be proved merely on the ground that no reply was submitted by the petitioner, and in this connection, he has relied upon the decisions of the Apex Court in Anil Kumar v. Presiding Officer and others, (1985) 3 SCC 378 and Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 . He also drew the attention of the Court, that as leave was sanctioned up to 31.3.2004, but when the petitioner sought extension of the leave for a month up to 30.4.2004, the management on the strength of the resolution dated 4.5.2003 called upon her to resume her duties on 1.7.2003 thereby cancelling the leave up to 31.3.2004, which is arbitrary and illegal. 7. 7. Sri Subhash Ghosh, learned counsel for the respondent/management would submit that as the Petitioner did not resume her duties w.e.f. 1.7.2003 despite repeated opportunities, her services were terminated after complying with the requirements of Regulations 35, 36, 37 and 99 contained in Chapter III of the Act. He further submits that termination was effected on 23.10.2003 consequent upon the decision taken by the Management on 22.10.2003 w.e.f. 30.6.2003 (fore-noon). He also submits that as the Petitioner has not challenged the order of termination dated 23.10.2003, hence the petition itself was not maintainable, in view of the decision of the Apex Court in St. Johns College v. Girdhari Singh, AIR 2001 SC 1891 and Abu Baker v. D.I.O.S. and others, 2012 (3) ESC 1797. 8. No doubt the Petitioner in the relief clause had challenged the order dated 28.9.2004, granting approval to the order of termination, but as the institution is a minority institution, no approval was required. The petitioner essentially challenges her termination, hence the scope of the petition was only confined to the order of termination dated 23.10.2003. 9. The primary issue for consideration is as to whether the services of the petitioner were terminated in accordance with law or not? 10. The petitioner is a teacher in a minority institution, to which the provisions of “the Act” are applicable. The provisions pertaining to conditions of service of teachers is contained in Section 16 (g) of the Act. It reads as under : “16-G. Conditions of service of Head of Institutions, teachers and other employees.—(1) Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void. (2) Without prejudice to the generality of the powers conferred by sub-section (1), the Regulations may be provided for- (a) The period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment, [including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case] case for an offence involving moral turpitude] and the emoluments for the period of suspension and termination of service with notice; (b) the scale of pay and payment of salaries; (c) transfer of service from one recognised institution to another; (d) grant of leave and Provident Fund and other benefits, and (e) maintenance of record of work and service. (3)(a) No Principal, Head-master or teacher may be discharged or removed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations. (b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management: Provided that in the cases of punishment, before passing orders, the Inspector shall give an opportunity to the Principal, the Head-master or the teacher to show-cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted. (c) Any party may prefer an appeal to the Regional Deputy Director, Education against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In case the order under appeal was passed by the very person holding the Office of Regional Deputy Director while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself. (d) All appeals preferred under clause (c), as it stood before the date of commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, and pending decisions immediately before the said date shall be decided by the Regional Deputy Director, Education, in accordance with clause (c) as substituted by the said Adhiniyam. (4) An order made or decision given by the competent authority under sub-Section (3) shall not be questioned in any Court and the parties concerned shall be bound to execute the directions contained in the order or decision within the period that may be specified therein.” 11. The relevant regulations pertaining to the procedure to be undertaken for removal of the teachers is contained in Regulations 35, 36 and 37 of the Regulations contained under Chapter III of the Act. Regulations 35, 36 and 37 of the Regulations are quoted hereunder : “35. On receipt of a complaint or an adverse report of facts of a serious nature of the Committee may in the cases of teachers appoint the Head-master or Principal or Manager as the Inquiry-officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules) and in the case of the Head-master or Principal, a small sub-committee, with instructions to submit the report as expeditiously as possible. 36. (1) The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge-sheet to put in a written statement of his defence and to state whether he desired to be heard in person. He shall be required within three weeks of the receipt of the charge-sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as the inquiring authority considers necessary. This person charged shall be entitled to cross-examine the witness, to give evidence in person, and to have such witnesses called as he may wish, provided that the inquiring authority conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee. (2) Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. (3) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged. 37. Soon after the report of the proceedings and recommendation from the inquiring authority arc received, the Committee of Management shall meet to consider the report of the proceedings and recommendation made and take decision on the case. The employee shall, however, be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress as the case may be, for approval of action proposed by it.” 12. A conjoint reading of the aforesaid regulations would manifest that upon receipt of a complaint or a charge of serious nature, the Committee shall appoint the Principal or Headmaster in respect of a teacher as an Inquiry Officer. A conjoint reading of the aforesaid regulations would manifest that upon receipt of a complaint or a charge of serious nature, the Committee shall appoint the Principal or Headmaster in respect of a teacher as an Inquiry Officer. The ground on which the action is proposed to be taken would be reduced in the form of a definite charge or charges, which would be communicated to the employee charged, who would be required to submit his reply to the charge within three weeks and to further state whether he desires to be heard in person or not and that the Inquiry Officer, if he so desires, may conduct an oral inquiry, wherein oral evidence would be permitted and right of cross-examination afforded and thereafter, person charged will be permitted to lead evidence. The Inquiry Officer shall submit his report on the findings and may also recommend a punishment. Upon receipt of the Inquiry Report from the Inquiry Officer, the committee of management would issue a notice to the employee, thereafter, the report is to be sent with relevant papers to the Inspector/R.I.G.S., as the case may be, for approval of action, but in case of minority institution, as no approval of termination is required, the management is at liberty to pass an order of punishment. Thus, there can be no dispute that, in effect, the provisions of Regulations 35, 36 and 37 inhere in it the principles of natural justice, which have to be adhered to, even in respect of removal of teachers of a minority institution. 13. Viewed from the aforesaid perspective, the Court now proposes to ascertain as to whether the provisions of Regulations 35, 36 and 37 of the Regulations were in effect complied with or not and its effect? 14. The petitioner availed leave without pay after sanction from 1.12.1999 to 31.3.2001 to be with her husband abroad in Nigeria. She was again sanctioned leave on 23.1.2001 for the period 1.4.2001 to 31.3.2002 and thereafter, she again applied for leave without pay on 24.5.2001 for the period 1.4.2002 to 31.3.2004, which was sanctioned. She alleges to have moved an application on 25.10.2002 for extending her leave by one month i.e. up to 30.4.2004 for completing certain migration facilities. She was again sanctioned leave on 23.1.2001 for the period 1.4.2001 to 31.3.2002 and thereafter, she again applied for leave without pay on 24.5.2001 for the period 1.4.2002 to 31.3.2004, which was sanctioned. She alleges to have moved an application on 25.10.2002 for extending her leave by one month i.e. up to 30.4.2004 for completing certain migration facilities. This request made by her on 25.10.2002 for grant of leave up to 30.4.2004 (for one month), was sought to be rejected by the committee of management on the basis of the resolution dated 4.5.2003 and she was directed to report back for duty on 1.7.2003. As she did not report for duty on 1.7.2003, a letter was sent by the petitioner stating that in any view of the matter, she had sanctioned leave up to 31.3.2004 and, therefore, the resolution dated 4.5.2003 cancelling the leave of the petitioner and calling upon her to report up to 1.7.2003 is arbitrary and illegal. 15. On the contrary, the management insisted by a letter dated 23.9.2003 that the petitioner should report for duty up to 1.10.2003, failing which it would be presumed that she has no interest in the service and disciplinary proceeding shall be initiated for her removal. As she did not join on 1.10.2003, the management resolved to terminate her services on 23.10.2003 w.e.f. 30.6.2003. 16. This Court is of the view that it need not go into the merits and demerits of the leave application and its rejection, as the effect of the same is to be considered in the course of domestic inquiry. However, the Court finds that once the petitioner was put to notice vide letter dated 23.9.2003 to report on 1.10.2003 then failure to do so, the management could not have straight away proceeded to pass an order of termination dated 23.10.2003 without taking recourse to the provisions of Regulations 35, 36 and 37 of the Regulations. 17. Learned counsel for the respondent could not refer to any such provision in the Act or in the Regulations, which provided automatic cessation of service on the ground of alleged unauthorized absence. Thus, the Court is of the view that unauthorized absence had to be dealt as a “misconduct” for which the aforesaid provisions were to be complied with. 18. Learned counsel for the respondent could not refer to any such provision in the Act or in the Regulations, which provided automatic cessation of service on the ground of alleged unauthorized absence. Thus, the Court is of the view that unauthorized absence had to be dealt as a “misconduct” for which the aforesaid provisions were to be complied with. 18. The Court further finds that the inquiry committees report dated 23.10.2003 (Annexure CA - 2 (B) to the counter-affidavit) cannot be called an Inquiry Report in consonance with the Regulations. A perusal of the Inquiry Report would reveal that it came into existence pursuant to the show-cause notice dated 23.9.2003. The Inquiry Report no where indicates that it was preceded by any charge-sheet wherein as many as five charges are alleged against the petitioner. The Inquiry Report proceeds only on the basis of the letters/replies exchanged between the parties. This appears to be a novel procedure adopted by the multi member inquiry committee, wherein it considers five charges against the petitioner, but there is nothing on record to indicate that the petitioner was ever put to notice on these five charges. From a perusal of Regulation 36 (i) it is evident that the charges were to be clear and precise so as to give sufficient indication to the charged employee on the facts and circumstances against him. Correspondence exchanged between the parties cannot, in any view, partake the nature of charge. Once precise and clear charge is wanting, then framing of charge by the Inquiry Officer himself in the Inquiry Report would not validate the inquiry proceeding, as the Court is of the considered view that in the absence of a precise and clear charge, to which the petitioner is put to notice, the inquiry committee could not have assumed the jurisdiction. Thus, the Court finds that the inquiry proceedings were conducted in flagrant violation of the provisions contained in Regulations 35, 36 and 37 of the Regulations framed under the Act and accordingly, the resultant punishment cannot be sustained. 19. Shri Ashok Khare, learned Senior Counsel has rightly relied upon the decision in the case of Tariq Ayub (supra); Har Dev Singh (supra) in support of the contention that in the absence of compliance of Regulations 35, 36 and 37, any inquiry conducted de hors the said provisions is liable to be vitiated. 20. 19. Shri Ashok Khare, learned Senior Counsel has rightly relied upon the decision in the case of Tariq Ayub (supra); Har Dev Singh (supra) in support of the contention that in the absence of compliance of Regulations 35, 36 and 37, any inquiry conducted de hors the said provisions is liable to be vitiated. 20. The case cited by the learned counsel for the respondent in Girdhari Singh (supra) is on the proposition that no approval under Section 16 (g) (3) (a) of the Act was required for removal, in case of dismissal or removal or reduction in rank of a principal, head master or teacher of a minority institution, as the case may be. There can be no quarrel on this legal preposition. The case of Abu Baker (supra) relied upon by the learned counsel for the respondent is distinguishable on facts and would have no application in the instant case. 21. Accordingly, the Court need not to go into other issues and contentions raised by the learned counsel for the parties. 22. The writ petition succeeds and is allowed. The impugned order dated 23.10.2003 (Annexure 6 to the writ petition) is hereby quashed. However, it shall be open for the respondents to proceed afresh against the petitioner in accordance with law and in the light of the observations made above. No order as to costs. ——————