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Allahabad High Court · body

2013 DIGILAW 234 (ALL)

JAGDISH PRASAD GUPTA v. STATE OF U. P.

2013-01-18

P.K.S.BAGHEL

body2013
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is an assistant teacher in a primary school. He has preferred this petition for the issuance of a writ of Certiorari to quash the order of suspension and the order of recovery dated 26.6.2008. 2. By an amendment in the writ petition, he has also challenged the order dated 9.6.2009 passed by the Basic Education Officer, whereby a direction has been issued to recover the amount of Rs. 50,800/- after decision of the present writ petition and on the basis of no work and no pay, his salary has been withheld from the period of 26.6.2008 to 9.6.2009. 3. A brief reference to the factual aspect would suffice. 4. The petitioner was an assistant teacher in a primary school Gurehta. He was initially appointed in the year 1966. He was promoted to a Junior High School in the year 1986. While, he was working in Madhyamik Vidyalaya Afzalpur, Block Loni, District Ghaziabad, the petitioner was directed to supervise the construction work of a building and for the said purpose, he was transferred on temporary basis as an assistant teacher to Madhyamik Vidyalaya Amit Vihar, Block Loni, District Ghaziabad. 5. It is stated that he suffered from some injury on his leg and as such he made a request to the Assistant Basic Education Officer, vide letter dated 1.6.2004 expressing his inability to carry out the work assigned to him. He made a suggestion that one Sanjai Kumar, who is an assistant teacher in a primary school be directed to supervise the construction work of the building in place of the petitioner. On the same application, the Assistant Basic Education Officer/the respondent No. 4 gave his consent. A copy the application made by the petitioner and which bears the order of respondent No. 4 has been placed by the petitioner as annexure -1 to the writ petition. 6. It is stated that in pursuance thereof, Sanjai Kumar had taken over the charge of work assigned to him and he had also submitted an application dated 19.11.2004 to the Assistant Basic Education Officer that the sanctioned amount of Rs. 1,40,000/- and Rs. 10,000/- for the construction of two room and a toilet has been received by the department and as such the petitioner may be directed to transfer the said amount to him. 7. 1,40,000/- and Rs. 10,000/- for the construction of two room and a toilet has been received by the department and as such the petitioner may be directed to transfer the said amount to him. 7. The details of amount transferred to Sanjai Kumar has been mentioned in paragraph Nos. 9, 10 and 11 of the writ petition and it has also been mentioned in paragraph No. 14 of the writ petition that Sanjai Kumar had submitted the utilization certificate. In the meantime, the petitioner was promoted on the post of Head-Master and he was posted as Head-Master in Junior High School Sultanpur, District Hapur vide order dated 23.7.2007. The petitioner could not join the said school at Sultanpur as some other person namely Virendra Prakash joined there. Later on, the petitioner was relieved from Junior High School Amit Vihar, Loni District Ghaziabad on 3.12.2007 and joined his parental school on 8.12.2007 as an assistant teacher. In the meantime, it appears that inspection of the construction was made and certain deficiencies were found against the petitioner and on the basis of which he was placed under suspension on 26.6.2008. A copy of the order dated 26.6.2008 has been placed by the petitioner on record as Annexure 11 to the writ petition. 8. Aggrieved by the said order, the petitioner filed the present writ petition and an interim order was passed by this Court staying the suspension order/recovery and it was left open to the respondent to complete the inquiry. It appears that no separate charge-sheet was issued to the petitioner and one Nagendra Kumar, the District Coordinator of Sarva Shiksha Abhiyan, Ghaziabad was appointed to submit the report in the matter. The said officer submitted the report on 28.8.2008 and in the said inquiry, the petitioner was found guilty and the report has been accepted by the Basic Education Officer wherein the petitioner was reinstated subject to two conditions that the petitioner would not be paid his salary during his absence from the institution. The detail of the said period has been mentioned above and Rs. 50,800/- shall be deducted from the provident fund subject to the decision of the present writ petition. 9. A counter-affidavit has been filed on behalf of respondent Nos. 1, 2 and 3. The detail of the said period has been mentioned above and Rs. 50,800/- shall be deducted from the provident fund subject to the decision of the present writ petition. 9. A counter-affidavit has been filed on behalf of respondent Nos. 1, 2 and 3. The stand taken in the counter-affidavit is that the construction under Sarva Shiksha Abhiyan Scheme, the Government sanctioned the fund for the purpose of building construction of primary school. The building is constructed under the supervision of teachers as appointed building supervisor through Assistant Basic Education Officer on tehsil level. For the purpose of building construction in primary Pathshala Amitvihar, Tehsil Loni, distict Ghaziabad appointed to petitioner as a supervisor. It is further submitted that a complaint dated on 16.4.2008 was received by the Secretary Baheta Hajipur Sudhar Samiti with regard to the irregularity committed in the building construction. In the preliminary report, it was found that there was embezzlement of Rs. 1,16,800.00/- and as such the petitioner was directed to deposit the said amount. 10. A supplementary counter-affidavit has been filed. In the supplementary counter-affidavit various documents including the serious complaint received by the authorities concerned against the petitioner and a large number of documents have been filed. 11. I have heard learned counsel for the petitioner Sri Samir Sharma and Sri B.P.Singh for the respondent No. 2. 12. Learned counsel for the petitioner submitted that initially the petitioner was appointed as a supervisor however, on account of his injuries on leg, he submitted an application to the Assistant Basic Education Officer wherein, he expressed his inability to supervise the construction and requested the authority concerned that one Sanjai Kumar might be nominated to carry out the supervision of the work. The petitioner transferred the said amount to Sanjai Kumar. Those documents have been mentioned in paragraph Nos. 9, 10 and 11 of the writ petition. However, those paragraphs have not been denied in counter-affidavit and a bald denial has been made in paragraph Nos. 7 and 8 of the counter-affidavit. Thus the fact that the petitioner was no longer in charge of the said supervision has not been denied specifically in counter-affidavit. The services of a teacher of the primary school are governed by statutory rule; the Uttar Pradesh Basic Education Staff Rules, 1973 (in short Rules, 1973). 7 and 8 of the counter-affidavit. Thus the fact that the petitioner was no longer in charge of the said supervision has not been denied specifically in counter-affidavit. The services of a teacher of the primary school are governed by statutory rule; the Uttar Pradesh Basic Education Staff Rules, 1973 (in short Rules, 1973). The said Rule was framed in exercise of powers under Section 10 of the Basic Education Act. Rule -3 provides various punishments which can be imposed upon teacher/employee/officer of the Board. The Rule 4 provides for conduct of disciplinary proceedings. The provisions applicable to the servants of Uttar Pradesh Government shall apply mutatis mutandis. 13. It is admitted fact that no disciplinary proceedings in terms of U.P. Government Servant (Discipline and Appeal) Rule 1999 have been initiated as no charge-sheet was issued to the petitioner. 14. From the perusal of the inquiry report, it is clear that the documents have been misread by the inquiry officer. Before the Inquiry officer, the petitioner submitted a detail representation wherein, he has given all the details with regard to the appointment of Sanjai Kumar and the amount transferred by him as stated in paragraph Nos. 9, 10 and 14 of the writ petition. 15. From perusal of the inquiry report, it is demonstrably established that the stand taken by the petitioner has not been adverted to. The detail representation of the petitioner has not even referred by the Inquiry Officer. As regard to the letter of the petitioner to the Assistant Basic Education Officer, wherein he expressed his inability to do supervision of work assigned to him on account of his injury on the leg, the Inquiry Officer misread this letter. It is very clearly mentioned that in his place Sanjai Kumar might be appointed as the petitioner had received injury. The Assistant Basic Education Officer approved his prayer and subsequently a letter was submitted by Sanjai Kumar wherein he assumed the charge of supervision had not been even taken into consideration by the inquiry officer. Thus the inquiry report is vitiated on the ground that the documents were misread by the inquiry officer and defence of the petitioner had not been adverted to. 16. Learned counsel for the respondent Nos. 1 and 2, Sri B.P.Singh submitted that the petitioner is guilty of financial embezzlement. Thus the inquiry report is vitiated on the ground that the documents were misread by the inquiry officer and defence of the petitioner had not been adverted to. 16. Learned counsel for the respondent Nos. 1 and 2, Sri B.P.Singh submitted that the petitioner is guilty of financial embezzlement. He has drawn the attention of the Court to the inquiry report submitted by the inquiry officer. Wherein, it is mentioned that the petitioner was doing BLO duty and he was not present to supervise the construction of the building of the institution. Thus, Sri Singh further submitted that the petitioner was found negligent as he was doing BLO duty without permission of the department. He further submitted that from perusal of the report it is established that the construction was of the inferior quality and petitioner is held guilty rightly. He further urged that the punishment awarded to petitioner for withholding his salary is based on no work and no pay. There is no error in the impugned order. He further urged that the petitioner has an alternative remedy of appeal in terms of Rule -5 of Rules, 1973. 17. As regards to the submission advanced by Sri Singh that the petitioner was doing BLO duty without any prior permission from the authorities, the said submission hardly merit acceptance, for the reason that no charge-sheet was given to the petitioner and in absence of any charge that he was doing BLO duty, the petitioner cannot be punished on that ground. If he was found guilty for embezzlement of Rs. 1,16,800/-, the proper course was to hold regular disciplinary proceedings against him and not to reinstate him only with punishment on the basis of no work and no pay. 18. Submission of Sri Singh is that the petitioner has an alternative remedy lacks merits as the petitioner had challenged the suspension order and this Court has stayed the recovery in the year 2008 and left it open to the authority concerned to complete the disciplinary proceedings. Admittedly, no charge-sheet was issued to the petitioner, therefore, no punishment can be awarded in absence of any regular inquiry. 19. It is clear that supervision of a teacher shall be made under the Assistant Basic Education Officer. Admittedly, no charge-sheet was issued to the petitioner, therefore, no punishment can be awarded in absence of any regular inquiry. 19. It is clear that supervision of a teacher shall be made under the Assistant Basic Education Officer. From the counter-affidavit and supplementary affidavit it is not clear that as to what action has been taken against Assistant Basic Education Officer who was the responsible officer. Thus, in absence of any action against the concerned officer, the impugned order passed against the petitioner is not sustainable in the eye of law. 20. Therefore, the impugned order dated 9.6.2009 is liable to be set aside and is accordingly set aside. No deduction can be made from the provident fund of the petitioner as the petitioner is said to be retired reaching at the age of superannuation in the year 2009. 21. The writ petition is allowed without any cost. ——————