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2018 DIGILAW 1162 (ALL)

BAL MUKUND TIWARI v. STATE OF U. P.

2018-05-09

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard learned counsel for the parties and perused the record. 2. The petitioner before this Court has been directed under the impugned order to make good the loss to the public exchequer as he has been paid salary as a Head Clerk in the Institution for the period between 1984 and 2006 and in that respect the recovery has been ordered under the impugned order. 3. The facts of the case are that the petitioner, who was working as Head Clerk in the Institution, moved an application to the Management for necessary sanction to permit him to work as an Extra Departmental Agent with the Post Office in his village. The application was forwarded by the Principal of the Institution with a counter signature of the Manager on 20.1.1984 to the District Inspector of Schools (hereinafter to be referred as ‘DIOS’) for necessary sanction. The application bears the signature of Assistant DIOS, Deoria which was treated as sanctioned by the DIOS and accordingly, the petitioner was appointed as an Extra Departmental Agent with the post office in his village. His continuance as Extra Departmental Agent was not questioned for a long time, however, vide order dated 19.2.2005, he was placed under suspension on the ground that he could not function both as Head Clerk in the Institution as well as Extra Departmental Agent with the Post Office at the same time. The suspension order dated 19.2.2005 was challenged by the petitioner before this Court vide Writ Petition No. 31091 of 2005, wherein, this Court passed the order staying the order of suspension, however, the Authorized Controller was permitted to proceed with the inquiry and to bring it to its logical end. 4. In view of the order passed by this Court in the aforesaid writ petition, the inquiry was conducted. In the inquiry, finding has been returned by the Inquiry Officer that as per the letter of Post Master, the timing for Extra Departmental Agent to function as a Agency Post Office in the village is from 7.00 a.m. till 9.30 a.m. in the morning and 1.00 p.m. to 1.30 p.m. in the afternoon. In the inquiry, finding has been returned by the Inquiry Officer that as per the letter of Post Master, the timing for Extra Departmental Agent to function as a Agency Post Office in the village is from 7.00 a.m. till 9.30 a.m. in the morning and 1.00 p.m. to 1.30 p.m. in the afternoon. The Principal of the Institution interestingly wrote a letter to the Inquiry Officer that the petitioner reported for duty in their Institution for the whole time, so in any case, the petitioner, according to the Principal of Institution, continued to discharge duty from 10.00 a.m. to 5.00 p.m. during the period the school remained open and therefore, he discharged his full time duties as such. It has also come in the inquiry report that the timing which was earlier from 8.30 a.m. to 9.00 a.m. and 1.00 p.m. to 16.00 p.m. was further changed w.e.f. 27.10.2004 from 7.00 a.m. to 9.30 a.m.. This finding has been returned by the Inquiry Officer on the basis of letter dated 20.7.2005 issued by the Senior Superintendent of Post Offices, Deoria. In the ultimate finding, the Inquiry Officer held that both the positions held by the petitioner as Head Clerk of the Institution and Extra Departmental Agent is an office of profit and, therefore, the petitioner could not have continued on both the positions at the same time. After the inquiry report was submitted by the Inquiry Officer dated 23.8.2005, the petitioner resigned from the post of Extra Departmental Agent on 6.3.2006. The Associate DIOS who was acting as Authorized Controller in the Institution ultimately passed an order on 15.5.2008 exercising powers under Regulation 44(A) of Chapter III of the Intermediate Education Act, 1921, the power exercisable by the Committee of Management of recognized Institution. Instead of proceeding to impose any penalty which would have entailed necessary procedure of show-cause notice calling for a reply and then the prior approval of DIOS, the Authorized Controller proceeded to drop disciplinary proceedings by awarding an entry of censure vide his order dated 15.5.2008. Thus, the entire disciplinary proceedings initiated against the petitioner with his suspension dated 19.2.2005 came to an end. Thus, the entire disciplinary proceedings initiated against the petitioner with his suspension dated 19.2.2005 came to an end. It appears, thereafter, the salary of the petitioner was withheld by the DIOS on 10.11.2008 without assigning any reason and the petitioner challenged the same by means of Writ Petition No. 63665 of 2008 and this Court, while entertaining the writ petition, vide order dated 10.12.2008 put in abeyance the order passed by the DIOS withholding salary of the petitioner. It appears that when the order of stay was passed on 10.12.2008 by this Court on the salary pay bill of the Institution, the DIOS vide order dated 11.2.2009 cancelled his order dated 10.11.2008 and by the same order proceeded to pass an order of punishment in terms of recovery from the salary of the petitioner on the basis of inquiry report dated 23.8.2005. It is interesting to note that by virtue of this order, the recovery against the petitioner proceeded with without looking into the facts that vide order dated 15.5.2008, the DIOS acting as Authorized Controller had already dropped the disciplinary proceedings against the petitioner. 5. The argument advanced on behalf of the petitioner is that once the disciplinary proceedings have come to be dropped and the entry of censure was directed to be entered in service record of the petitioner, it amounts to minimum punishment and so there was no occasion for the DIOS to have passed the order dated 11.2.2005 imposing another punishment of recovery from the salary of the petitioner on the basis of aforesaid very inquiry report. The argument is that the proper course in the present case should have been that the DIOS first issued notice to the petitioner as to why the earlier order passed by the Management be not recalled and why the disciplinary proceedings may not be further proceeded with. 6. Learned counsel for the petitioner has further argued that under the Intermediate Eduction Act, 1921, the regulations have been framed under Chapter III which lay down a detailed procedure in matters of disciplinary inquiry and the punishment to be imposed. The power lies with the Committee of Management and in the absence of Committee of Management, the power lies with the Authorized Controller. The power lies with the Committee of Management and in the absence of Committee of Management, the power lies with the Authorized Controller. The DIOS himself is not authorized to act as a Committee of Management or as an agent of Committee of Management to pass an order of punishment on his own without adopting the procedure prescribed for, in the regulations. He has further drawn attention of the Court towards Regulation 44(a) where the DIOS can accept the proposed punishment or reduce the same or even increase the same and even in such circumstances, the DIOS shall issue notice to the concerned employee and then there is right to appeal as well. But looking to the provisions of Regulation 44(a) it is very much clear that even this power can be exercised by the DIOS only under the circumstances that there is a proposal by the Committee of Management/Authorized Controller. 7. In the present circumstances of the case, where it is quite understandable that where DIOS is acting as Authorized Controller, he could have proceeded again against the petitioner in terms of Regulation 31 of Chapter of Intermediate Education Act, 1921. But under no circumstances, the DIOS can shelve the procedure laid down under the regulations in the first instance, and secondly once his predecessor himself acting as Authorized Controller had dropped the proceedings, the DIOS was clearly in error of law in proceeding to pass the impugned order without cancelling the earlier order passed by his predecessor. It is a case where unreasonableness and arbitrariness in action is writ large on the face of record. Applying the principles as laid down by the Constitution Bench in E.B. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 , while considering secondary judicial review in the matters of administrative action in respect of an employee the rationalily of the order has to be tested. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. (emphasis supplied) 8. Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. (emphasis supplied) 8. I am afraid, in the entire exercise of power by the DIOS arbitrariness is manifest, reasonableness missing in the course of action and so it definitely calls for judicial intervention. The order passed by the DIOS on this count alone is liable to be set aside. 9. Yet another argument advanced by learned counsel for the petitioner is that the order dated 11.2.2009 is virtually an order of review of an earlier order passed by his predecessor. Review of an order in a judicial or quasi judicial power is an statutory power as the source has to be drawn from the statute itself and even in the matter of administrative exercise of powers such a course is open where an order is obtained by misrepresentation of facts, concealment of material facts or, where the order has been passed under some mis-conception. However, here is no such case, no case of fraud or misrepresentation nor a case of mis conception which can be said to have had occurred when earlier order was passed by DIOS. In any event, since DIOS could not have passed the order dated 11.2.2009 without recalling or cancelling his earlier order, this order inherently suffers from vice of reasonableness besides it being beyond authority as it amounted to review of DIOS of the order passed by his predecessor in the past. 10. Learned Standing Counsel, neither from the recitals made in the order nor from the pleadings raised in the counter-affidavit, could justify the action of DIOS as reasonable and rational one. He could also not defend as to how dropped disciplinary proceedings could be reopened or revived, nor, he has been able to explain how another punishment of recovery could have been inflicted upon when earlier entry of censure was awarded as punishment during the disciplinary proceedings in respect of same charge. 11. This Court, in the case of Ram Jiwan Singh and others v. District Inspector of Schools and others, 1995 (26) AIILR 627, relying upon another judgment of this Court has held that DIOS has no power of review. 11. This Court, in the case of Ram Jiwan Singh and others v. District Inspector of Schools and others, 1995 (26) AIILR 627, relying upon another judgment of this Court has held that DIOS has no power of review. Para 9 of the judgment reads as under: “In view of the aforesaid provisions it was open to the the managing committee to appoint the candidates belonging to the general category on the posts in question after taking permission from the District Inspector of Schools. The view taken by the District Inspector of Schools and the contention of the learned Counsel for the Respondents to the contrary is not correct. It is also well-settled in law that the District Inspector of Schools has got no power of review. Reference in this regard may be made to the case of the Committee of Management, Inter College, Nonapur v. The District Inspector of Schools, 1979 AIILJ 33. The District Inspector of Schools, therefore, exceeded his Jurisdiction and passed the impugned order dated 3.6.1981 after passing orders dated 24.10.1980 and 20.5.1981.” 12. In view of the above, the order passed by the DIOS dated 11.2.2009 (Annexure 1 to the writ petition) is clearly unsustainable and accordingly is hereby quashed. The earlier writ petition filed by the petitioner against the order of suspension has got rendered infructuous on account of final order being passed by DIOS closing the disciplinary proceedings vide order dated 15.5.2008. The subsequent writ petition filed by the petitioner wherein the Court has passed the order on 10.12.2008 staying the order of DIOS dated 10.11.2008 bearing Writ Petition No. 63665 of 2008 is also rendered infructuous in view of the order passed by the DIOS dated 11.2.2009. Since quashing of the order dated 11.2.2009 will result in revival of another illegal order dated 10.11.2008, the same is also hereby quashed. 13. The respondents are directed to release entire dues of the petitioner as accrued till date. The final pension payment order shall also be passed within a period of three months from the date of production of certified copy of this order and the entire dues shall also be paid during the same period. 14. The petition is allowed with the aforesaid directions.