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2016 DIGILAW 1953 (ALL)

DURGA PRASAD RAI v. STATE OF U. P.

2016-05-19

MAHESH CHANDRA TRIPATHI

body2016
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—In Writ A No. 66455 of 2013, the petitioner has prayed for quashing the impugned order dated 24.10.2013 passed by District Inspector of Schools, Azamgarh and the consequential order dated 9.11.2013 issued by the Manager of Committee of Management of the institution. 2. In Writ A No. 20304 of 2014, the petitioner has prayed for quashing the impugned order dated 15.2.2014 passed by the District Inspector of Schools, Azamgarh. He has further prayed for direction to the respondents not to interfere in his functioning as officiating Principal of ‘Yadunath Inter College, Bahadurpur District Azamgarh’ and to pay regular monthly salary and arrears of salary from March, 2013 to him. By the amendment application allowed on 16.4.2014, the petitioner has prayed for quashing the impugned suspension orders dated 19.11.2013 and 17.2.2014 passed by the Manager of the institution and has further prayed for direction to the respondents not to interfere in his working as officiating Principal with all consequential benefits. 3. Record in question reflects that the petitioner was initially appointed on the post of Assistant Teacher in C.T. Grade on 8.7.1972 in Yadunath Inter College, Bahadurpur, District Azamgarh (in short, the institution). The institution is governed under the provisions as contained in U.P. Intermediate Education Act, 1921 (in short, 1921 Act) and the provisions of U.P. High Schools & Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (in short, 1971 Act) and U.P. Secondary Education Services Selection Board Act, 1972 and Rules framed thereunder as amended upto date are applicable to the said institution. He was granted promotion on the post of Assistant Teacher in L.T. Grade. Thereafter he was accorded promotion on the post of Lecturer in History and the approval was accorded to his promotion by the District Inspector of Schools on 4.10.1997. One Damodar Upadhyay, regular Principal retired on 30.6.2011 on attaining the age of superannuation causing substantive vacancy on the post of Principal in the institution. 4. Thereafter, the Committee of Management had passed a resolution on 27.6.2011 by which charge of officiating Principal of the institution was given to the petitioner being senior most Lecturer in the institution and papers were duly submitted before the District Inspector of Schools by the Committee of Management of the institution for attesting the signatures of the petitioner on the post of officiating Principal of the institution. The District Inspector of Schools, Azamgarh vide order dated 22.7.2011 attested the signatures of the petitioner as officiating Principal of the institution. 5. It has been alleged that on 18.8.2013 three unknown persons came to the office of Principal of the institution and got pressurized the petitioner to give voluntary retirement on the back date on 31.5.2013 in the name of Manager of the institution. Thereafter, the petitioner had proceeded to move an application before the Station House Officer, Kotwali, Deo Gaon, District Azamgarh on 27.8.2013 in regard to the incident took place in his office on 18.8.2013. He also moved an application before the Manager of the Committee of Management of the institution on 26.8.2013. In this regard, the information was also furnished to the District Inspector of Schools on 26.8.2013. In the meantime, the Manager of the Committee of Management in collusion with Harikesh Rai-respondent No. 5 had proceeded to accept the voluntary retirement of the petitioner. The Colmmittee of Management also passed resolution dated 30.6.2013 accepting the voluntary retirement of the petitioner and papers for attesting the signatures of respondent No. 5 were submitted before the District Inspector of Schools, who had accorded approval accepting voluntary retirement of the petitioner vide order dated 2.7.2013. The Manager of Committee of Management of the institution issued a letter dated 31.8.2013 relieving the petitioner from the post of officiating Principal and the charge of the officiating Principal was given to Shri Harikesh Rai with effect from 1.9.2013. The petitioner represented the matter before the Regional Joint Director of Education, Azamgarh Region, Azamgarh on 5.9.2013. Thereafter, the Manager of the institution passed an order on 8.9.2013 by which voluntary retirement of the petitioner was cancelled. Thereafter, the District Inspector of Schools sought explanation from the Manager on 10.9.2013. On 13.9.2013 the Deputy Director of Education directed to the District Inspector of Schools for making an enquiry into the matter of voluntary retirement of the petitioner. In pursuance of the letters dated 13.9.2013 and 10.9.2013, the petitioner as well as Manager of the institution submitted their written submission before the District Inspector of Schools. 6. In the meantime, the District Inspector of Schools was transferred and the incharge District Inspector of Schools, without making an enquiry into the matter, sent a letter to the Regional Joint Director of Education on 19.10.2013. 6. In the meantime, the District Inspector of Schools was transferred and the incharge District Inspector of Schools, without making an enquiry into the matter, sent a letter to the Regional Joint Director of Education on 19.10.2013. The petitioner represented the matter before the Regional Joint Director of Education vide application dated 21.10.2013 for redressal of his grievance. By the impugned order dated 24.10.2013 the District Inspector of Schools directed for handing over charge of officiating Principal of the institution to the respondent No. 5 till the matter of voluntary retirement of petitioner was pending consideration before the Committee of Management and the signature of respondent No. 5 was attested. In pursuance of the aforesaid order dated 24.10.2013, the Manager of the institution issued a letter to the petitioner on 9.11.2013 to submit reply to the charges referred in the impugned order. 7. The petitioner has proceeded to file Writ A No. 66455 of 2013 challenging the orders dated 24.10.2013 and 9.11.2013. On 16.12.2013, when the matter was taken up, this Court had proceeded to pass an interim order in favour of the petitioner to the following effect:- “In that view of the matter, the effect and operation of the impugned order dated 24.10.2013 (Annexure 15 to the writ petition) and the consequential order dated 09.11.2013 issued by the Manager (Annexure 18 to the writ petition) shall remain stayed. It would, however, be open to the Committee of Management to initiate appropriate proceedings against the petitioner in case of any misconduct committed by the petitioner.” 8. Thereafter, on 27.12.2013 the District Inspector of Schools, Azamgarh directed the Manager of the institution to ensure compliance of the interim order dated 16.12.2013. The petitioner vide application dated 30.12.2013 requested to the District Inspector of Schools for ensuring payment of monthly salary as well as arrears of salary with effect from March, 2013 till December, 2013 on the post of officiating Principal. On 8.1.2014 the District Inspector of Schools directed the Manager of the institution to permit the petitioner to work on the post of officiating Principal of the institution and to submit bills in regard to payment of arrears of his salary without any delay. The Manager of the institution did not submit salary bill. On 8.1.2014 the District Inspector of Schools directed the Manager of the institution to permit the petitioner to work on the post of officiating Principal of the institution and to submit bills in regard to payment of arrears of his salary without any delay. The Manager of the institution did not submit salary bill. Thereafter the District Inspector of Schools again directed to the Manager of the institution to ensure compliance of the interim order passed by this Court and to submit bill for payment of arrears of salary and regular salary. Due to non-compliance of the interim order passed by this Court, the District Inspector of Schools, vide order dated 12.2.2014 directed single hand operation of the salary account by invoking powers under Section 3 (3) of 1971 Act. In compliance of the order dated 12.2.2014 the Finance and Accounts Officer, in the office of District Inspector of Schools passed bill for payment of arrears of salary as well as the current salary of the petitioner on 13.2.2014. By the impugned order dated 15.2.2014, the District Inspector of Schools reviewed/modified the order dated 12.2.2014 and directed for payment of salary to the petitioner on the post of Lecturer till the enquiry in regard to qualification of Post Graduate certificate of petitioner is going on and further directed the Harikesh Rai to work as officiating Principal of the institution during the pendency of the enquiry. In pursuance of the order dated 15.2.2014 the Manager of the institution directed the petitioner to hand over the charge of officiating Principal to Harikesh Rai. Thereafter, by the impugned order dated 19.11.2013 the petitioner was placed under suspension and a Three-Members Enquiry Committee was constituted to enquire the charges prescribed under Chapter-II Regulation 35 of U.P. Intermediate Education Act, 1921. Thereafter, the Committee of Management again placed the petitioner under suspension by order dated 17.2.2014 and without holding any enquiry, it reverted the petitioner from the post of officiating Principal to Assistant Teacher. 9. Shri Irshad Ali, learned counsel for the petitioner submits that the matter of voluntary retirement of the petitioner came to an end with the issuance of the letter of the Manager dated 08.09.2013 by which the Manager cancelled the approval granted to the voluntary retirement of the petitioner. This letter apparently is not disputed by the learned counsel for the Committee of Management. This letter apparently is not disputed by the learned counsel for the Committee of Management. He submits that in such circumstances, the direction issued by District Inspector of Schools, Azamgarh for various inquiry does not appear to be justified. The Committee of Management is the appointing authority and the disciplinary proceedings, if any, with regard to misconduct of the petitioner is to be initiated by the Committee of Management. 10. It has been submitted on behalf of the petitioner that once the order of the District Inspector of Schools dated 24.10.2013 and the consequential order dated 9.12.2013 issued by the Manager of the institution have been stayed by this Court on 16.12.2013 in Writ A No. 66455 of 2013, the charge could not be handed over to the Harikesh Rai. The leave was granted by the Court to the Management to initiate appropriate proceedings against the petitioner in case of any misconduct committed by the petitioner. The petitioner has attained the age of superannuation on 30.6.2015. The petitioner is entitled for the salary as officiating Principal of the institution and the alleged disciplinary proceeding, which has been initiated by the Committee of Management, cannot sustain in the light of judgment passed by this Court in Ravindra Singh Rathore v. District Inspector of Schools, LAWS (All)-2003-9-261 in which the Court had proceeded to examine Section 21 of U.P. Secondary Education Services Selection Boards Act, 1982; Regulation 351-A of Civil Service Regulations; U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964. The Court was of the opinion that after retirement, no departmental proceeding could sustain. The operative portions of the judgment is reproduced hereinafter : “12. Recently, the Hon’ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and another, JT 2003 (6) SC 20, has held as follows : “37. .........A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue.” Applying the principle laid down in Chandra Singh (supra) and Bhagirathi Jena (supra) to the facts of the present case, in the absence of any specific provision in the 1964 Rules, the proceedings for continuation of enquiry after the retirement of the employee lapsed. The disciplinary proceedings can also not be saved in the present case on the ground that the committee of management had passed a resolution dismissing Sri Ravindra Singh Rathore from the post of Principal in the college and only the proposed punishment was required to be approved by the Board under Section 21 of the Act of 1982. Section 21 of the Act of 1982 reads as follows : “21. Restriction on dismissal etc. of teachers.—The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void.” 13. The statement of objects and reason for enacting the Act of 1982, inter alia, provided as follows ; “...................Under Section 16G (3) of the Intermediate Education Act, 1921, managements were authorised to impose punishment with the approval of the District Inspectors of Schools in matters pertaining to disciplinary action. This provision was found to be inadequate in cases where the management proposed to impose the punishment of dismissal, removal or reduction in rank and so it was considered necessary that this power should be exercised subject to the prior approval of the Commission or the Selection Boards, as the case may be, which could function as an independent and impartial body.” 14. The Hon’ble Supreme Court in the case of Committee of Management, St. The Hon’ble Supreme Court in the case of Committee of Management, St. John Inter College v. Girdhari Singh and others, (2001) 4 SCC 296 , has, after taking into consideration the statement of objects and reasons of the Act of 1982, held that it unequivocally indicates that earlier provisions continued under Section 16G (3) (a) of the Education Act were found to be inadequate where the management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the Legislature thought that the power of approval/disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority, like the District Inspector of Schools, but should be vested with an independent Commission or Board which would function as an independent and impartial body. Under Section 21 of the Act of 1982 the Board has to examine the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal or not. The Hon’ble Supreme Court in the case of Committee of Management, Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and another v. U.P. Secondary Education Service Commission and others, 1995 (Supp) 3 SCC 244, in paragraph 4 of the judgment, has held as follows : “............. We have also noticed Section 21 of the Act to which our attention was particularly drawn. We are of the view that the High Court has fallen in error in holding that the enquiry was vitiated because the charge-sheet was not framed by the enquiry committee but by the committee of management. The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval of the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal. It must be remembered that the commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It must be remembered that the commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record...................” In the case of Punjab National Bank and others v. Kunj Behari Misra, (1998) 7 SCC 84 , the Hon’ble Supreme Court has held that the disciplinary proceedings breaks into two stages. The first stage commences when the disciplinary authority arrives at its conclusion on the basis of the evidence, the enquiry officer’s report and the delinquent employee replied to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. Since under Section 21 of the Act of 1982, it has been provided that if the management dismisses any teacher or removes him from service or serves on him any notice of removal from service or reduces him in rank or reduces his emoluments or withholds his increments for any period, whether temporarily or permanently, except the prior approval of the Board, such thing done without such prior approval shall be void. 15. Thus, it can safely be said that till such time the Board after considering the relevant material and going into the merits of the charges either approves or disapproves the proposed order of punishment, the disciplinary proceedings are continuing. Since Sri Ravindra Singh Rathore has retired before the Board had considered the matter for according approval, as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued. In the case of Bhagirathi Jena (supra), the Hon’ble Supreme Court had directed for payment of the balance emoluments where the enquiry had lapsed. Paragraph 9 of the judgment is reproduced below : “9. In the case of Bhagirathi Jena (supra), the Hon’ble Supreme Court had directed for payment of the balance emoluments where the enquiry had lapsed. Paragraph 9 of the judgment is reproduced below : “9. The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and upto the date of superannuation inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the above said period.” 16. Respectfully following the principle laid down by the Hon’ble Supreme Court, it is held that Ravindra Singh Rathore is entitled to get the balance of the emoluments payable to him after deducting the suspension allowance, if any, that was paid to him during the above said period. The preliminary objection raised by Sri Ashok Khare is sustained and accordingly, it is held that this writ petition is not maintainable. In view of the foregoing discussions, all the writ petitions are dismissed. However, the parties shall bear their own costs.” 11. Shri Irshad Ali has also placed reliance on the judgment passed by this Court in Writ A No. 12264 of 2015 (Irfan Ahmad v. U.P. Cooperative Federation Ltd. and 3 others) decided 26.2.2015. The said order has also been assailed in Special Appeal Defective No. 471 of 2015 (U.P. Cooperative Federation Limited and 3 others v. Irfan Ahmad) and a Division Bench of this Court has proceeded to dismiss the Special Appeal on 21.7.2015, with following observations:- “The learned Single Judge has followed the law which has been laid down by the Supreme Court. Once it is not in dispute that there was no provision in the Service Regulations authorising the employer to continue with the enquiry after the retirement of an employee, the order for the recovery of an amount of Rs. 1,91,129.80 was misconceived and was rightly quashed and set aside. The learned Single Judge was not in error in directing the payment of the retiral dues to the respondent. For these reasons, we find no merit in the special appeal. The special appeal is, accordingly, dismissed. There shall be no order as to costs.” 12. 1,91,129.80 was misconceived and was rightly quashed and set aside. The learned Single Judge was not in error in directing the payment of the retiral dues to the respondent. For these reasons, we find no merit in the special appeal. The special appeal is, accordingly, dismissed. There shall be no order as to costs.” 12. Shri Irshad Ali, learned counsel for the petitioner precisely submits that once the petitioner has attained the age of superannuation on 30.6.2015, then the fresh enquiry cannot be initiated in the light of the judgments in Ravindra Singh Rathore’s case (supra) and Irfan Ahmad’s case (supra) and this Court should come for rescue and reprieve to the petitioner and suitable direction may be issued to the respondents to pay the entire arrears of salary for the period in which the petitioner had worked as officiating Principal of the institution and his entire retiral dues, otherwise the petitioner will suffer irreparable loss and injury. 13. Shri Shambavi Nandan and Shri P.K. Rai, learned counsel for the respondents submitted that once the alleged voluntary retirement has already been withdrawn by the management, then there was no occasion for filing the writ petitions but so far as the misconduct and other charges is concerned, the management has every right to conduct the enquiry against the petitioner as he was working as Lecturer in the institution and as such, there was no error in the orders impugned and the aforesaid judgments would not be applicable in the present facts and circumstances of the case. 14. Heard rival submission and perused the records. 15. As per record, this much is reflected that the dispute of alleged voluntary retirement of the petitioner came to an end with the issuance of subsequent letter by the Manager of the institution dated 8.9.2013 by which the management had cancelled the approval granted to the request of voluntary retirement of the petitioner. As indicated above, the petitioner claims that the aforesaid voluntary retirement was taken by force and subsequently the management itself had taken a decision for cancellation of the approval granted to the voluntary retirement. Once the alleged voluntary retirement has been disapproved by the management, then the same would have no bearing in the eye of law. On the retirement of regular Principal of the institution, the petitioner being senior-most lecturer was given the charge of officiating Principal of the institution. Once the alleged voluntary retirement has been disapproved by the management, then the same would have no bearing in the eye of law. On the retirement of regular Principal of the institution, the petitioner being senior-most lecturer was given the charge of officiating Principal of the institution. Thereafter, some collusion had taken place between the respondent Nos. 5 and 6 and the management by all means tried to hand over the charge of officiating Principal to the respondent No. 5 and as such some disciplinary enquiry has also been initiated against the petitioner. At present, the Court is not entering into the merits of the case regarding the alleged enquiry against the petitioner as the petitioner has attained the age of superannuation on 30.6.2015 and in this regard, the law is very much clear as per judgments of this Court in Ravindra Singh Rathore (supra) and Irfan Ahmad (supra) and no enquiry can be initiated against the petitioner at this stage.. 16. In view of above, the orders impugned cannot be sustained and are, accordingly set aside. 17. Both the writ petitions are allowed and the respondents are directed to make payment of arrears of salary on the post of officiating Principal to the petitioner for the period when he had worked as officiating Principal of the institution, and the entire retiral benefits within a period of three months from the date of production of certified copy of this order.