Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 498 (ALL)

ABDUL HAMID v. STATE OF U. P.

2018-02-23

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT : 1. Heard Sri J.P. Singh, learned counsel for the appellants and learned counsel for the respondents. 2. This appeal has been preferred challenging the judgment and order dated 03.07.2007 and 14.08.2008 passed by learned Single Judge and order dated 15.05.1985 passed by District Inspector of Schools, Azamgarh. 3. The facts of the case are that at Binapara in District Azamgarh, there is an Intermediate College recognized under the provisions of U.P. Intermediate Education Act, 1921 and provisions of U.P. High School and Intermediate Colleges (Payment of Salaries and other Employees) Act, 1971 is applicable to the said institution. The appellants were granted appointment on class IV post in the institution and were discharging their duties in the respondents institution. 4. On 02.08.1980, the Principal of the institution asked the appellants/petitioners to sign on blank papers to enable him to get ration card prepared for the purposes of kerosene oil. The appellant/petitioners being employed under the Principal of the college, on the pressure exerted by him signed on the blank papers. The Principal of the institution on the said blank papers manufactured resignation of the appellant/petitioners. The appellant/petitioners after coming to know about the perjury of the Principal, represented their grievances before District Inspector of Schools, Azamgarh vide representation dated 27.08.1980 stating therein that they had never resigned and the documents have been manufactured by the Principal of the college. 5. On the said representation, District Inspector of Schools, Azamgarh issued show cause notice to the appellant/petitioners to submit explanation in regard to the resignation letter prepared by the Principal of the institution. The appellants/petitioners submitted their reply before District Inspector of Schools, Azamgar. After submission of reply by the appellants/petitioners, the District Inspector of Schools passed an order on 22.01.1981 holding that the resignation of the appellants/petitioners were not valid. The order passed by District Inspector of Schools has never been challenged by the management of the institution nor by the Principal, thus, attained finality in the eyes of law. 6. The Principal of the institution and the management despite of the order passed by District Inspector of Schools did not pay salary to the appellants/petitioners then they represented their grievances before the District Inspector of Schools by means of representation dated 21.09.1981, 07.05.1981, 14.07.1981 and 16.09.1981. 6. The Principal of the institution and the management despite of the order passed by District Inspector of Schools did not pay salary to the appellants/petitioners then they represented their grievances before the District Inspector of Schools by means of representation dated 21.09.1981, 07.05.1981, 14.07.1981 and 16.09.1981. On the representations filed by the petitioners, direction was issued by the District Inspector of Schools to ensure payment of salary to the appellants/petitioners. Inspite of that, the appellants/petitioners were not paid salary. Thus, the appellants/petitioners again represented before the District Inspector of Schools on 28.01.1984 for issuance of direction to the management of the college to invoke power under section 5 (3) of Payment of Salaries Act directing single hand operation of the salary account. District Inspector of Schools inspite of ensuring payment of salary to the appellants/petitioners proceeded to pass an ex parte order on 15.05.1985 holding that the resignation of the appellants is valid. The order passed by the District Inspector of Schools was challenged in writ petition no. 6646 of 1985 which has been dismissed by this Court on 3.7.2007. 7. The judgment and order dated 03.07.2007 was further challenged in review petition filed by the appellants/petitioners which had also been rejected vide order dated 14.08.2008. The present special appeal has been filed against the aforesaid two judgments and orders passed by the learned Single Judge and the order dated 15.05.1985 passed by District Inspector of Schools. 8. Learned counsel for the appellants submitted that once the District Inspector of Schools passed an order on 22.01.1981 holding the resignation to be invalid then he has no jurisdiction to review his own order after lapse of almost four years when the order became final between the parties and is wholly without jurisdiction and is liable to be set aside. 9. Second submission advanced by learned counsel for the appellants is that District Inspector of Schools prior to passing of the order dated 15.05.1985 has not afforded an opportunity of hearing to the appellants. Accordingly, the order dated 15.05.1985 suffers from vices of principle of natural justice and is not sustainable in law. 10. The next submission of learned counsel for the appellants is that under Regulation 26 to 29 of the Regulations framed under U.P. Intermediate Education Act, procedure has been prescribed that how and when the resignation can be tendered by a teacher or employee of recognized intermediate college. 10. The next submission of learned counsel for the appellants is that under Regulation 26 to 29 of the Regulations framed under U.P. Intermediate Education Act, procedure has been prescribed that how and when the resignation can be tendered by a teacher or employee of recognized intermediate college. The District Inspector of Schools while passing the impugned order has nowhere considered the aforesaid statutory provisions of law in passing the impugned order. 11. On the other hand, learned counsel for the respondents submitted that the learned Single Judge has committed no error in dismissing the writ petition and submitted that the order of District Inspector of Schools records finding of fact which is not amenable in writ jurisdiction and learned Single Judge while dismissing the writ petition has recorded finding in this regard. Therefore, the judgment and order does not suffer from any infirmity or illegality. 12. We have heard learned counsel for the parties and perused the record as well as impugned judgment passed by learned Single Judge in Writ Petition No. 6646 of 1985. 13. For deciding the controversy involved in the present appeal, relevant provisions dealing with the matter of resignation provided in Regulations 26, 29 and 30 are being quoted below: "Regulation 26.(1) - The services of a permanent employee may be terminated by giving him three months notice or three months' pay in lieu thereof, on the ground of the abolition of the post which the employee is holding. The abolition may be due to one of the following reasons: (a) Retrenchment decided upon for reasons of financial stringency. (b) Abolition of a subject. (c) Abolition of section or class. 2. For the purpose of computing the period of notice mentioned in clause (1) or for determining the amount to be paid in lieu thereof the period of summer vacation shall be excluded. Regulation 29. (b) Abolition of a subject. (c) Abolition of section or class. 2. For the purpose of computing the period of notice mentioned in clause (1) or for determining the amount to be paid in lieu thereof the period of summer vacation shall be excluded. Regulation 29. - Any employee may resign by giving a notice or pay in lieu thereof to which he would have been entitled in case of termination of his services by the management: Provided that - (i) no employee shall give notice expiring in the month of January, February or March; (ii) Summer vacation may be included in the period of the notice; (iii) an employee selected for appointment in government service or in the service of any local body shall not be required to give due notice and shall be required to resign from service in time to join the new appointment if the application for the post had been made through proper channel. (iv) It will be open to the management to waive its claim to the notice." Regulation 30/ - No employee shall be allowed to resign if disciplinary proceedings are pending against him unless specifically permitted by the Managing Committee to do so." 14. On bare perusal of the Regulations referred to hereinabove, it is apparent on the face of it that the District Inspector of Schools while passing the impugned order has nowhere considered the said provisions and has proceeded to pass the order on wholly irrelevant considerations. 15. The procedure prescribed under the aforesaid Regulations were not followed while passing the impugned order. Moreover, once the District Inspector of Schools passed an order on 22.01.1981 whereby resignation of the appellants/petitioners were held to be invalid, attained finality between the parties then District Inspector of Schools was having no jurisdiction to review the order passed on 22.1.1981. 16. Even otherwise, while passing the impugned order dated 15.05.1985 under the doctrine of legitimate expectation, it was incumbent upon the District Inspector of Schools to provide opportunity of hearing prior to passing of the order impugned. Learned Single Judge while passing the impugned judgment has nowhere considered the aforesaid aspect of the matter. Therefore, the learned Single Judge has committed manifest error of law in passing the impugned judgment on 03.07.2007 as well as the District Inspector of Schools has also committed gross illegality in reviewing his earlier order passed on 22.01.1981. Learned Single Judge while passing the impugned judgment has nowhere considered the aforesaid aspect of the matter. Therefore, the learned Single Judge has committed manifest error of law in passing the impugned judgment on 03.07.2007 as well as the District Inspector of Schools has also committed gross illegality in reviewing his earlier order passed on 22.01.1981. He has no power to review his own order unless there is case that certain material has been suppressed or the order has been obtained on misrepresentation of facts or fraud. The District Inspector of Schools while passing the impugned order has not recorded finding that the petitioners have obtained the order dated 22.1.1981 by playing fraud or by misrepresentation of facts, therefore, the order of District Inspector of Schools suffers from apparent illegality. 17. In the case of 'Panna Lal Pathak vs. District Inspector of Schools, Aligarh and others' 1988 UPLBEC 827, while dealing with Regulation nos. 26, 29, 30 and 100, the Division Bench of this Court has held in paragraph 7 as under: '7. Under the circumstances, we are of the opinion that a permanent head clerk can resign only by giving 3 months prior notice or by paying 3 months pay in lieu thereof. Giving of notice or paying three month salary is a condition precedent. In the instant case, there is no evidence on the record to show that petitioner resigned by giving 3 months prior notice or by paying 3 months pay in lieu thereof. In the counter affidavit, nothing has been pointed out to establish that petitioner submitted resignation by giving 3 months prior notice or by paying 3 months pay in lieu thereof or the Committee of Management while accepting the resignation condoned the notice. Therefore, the said resignation (Annexure 4 to CA) if any, cannot be said to have made in accordance with the procedure prescribed under Regulation 29 read with Regulation 26 and same cannot be treated to be resignation in the eye of law. The view which we are taking also finds support from a Division Bench case Shivraj Singh Vs. Sri Devji Mal,'Asha Ram Paliwal and others (1982 UPLBEC 476) relied upon by the learned counsel for the petitioner. It was held in para 9 that under U.P. Intermediate Education Act, 1921, Regulations were framed. The view which we are taking also finds support from a Division Bench case Shivraj Singh Vs. Sri Devji Mal,'Asha Ram Paliwal and others (1982 UPLBEC 476) relied upon by the learned counsel for the petitioner. It was held in para 9 that under U.P. Intermediate Education Act, 1921, Regulations were framed. Those Regulations control both the management as well as the teacher's rights to terminate or resign from service. Regulation 26 is in positive terms. Giving of the three months notice or pay in lieu thereof is a condition precedent for the management to exercise its right to terminate the services of an employee. Similary, in Kumari Rama Chauhan v. Committee of Management (1981 UPLBEC 721) it was held that a resignation without following the procedure prescribed under Regulations 26 and 29 framed under Chapter III, cannot be treated to be a letter of resignation at all.' 18. In 'Shivraj Singh Vs. Shri Devji Asha Ram Paliwal and others' 1982 UPLBEC 476, it has been held in para 11 as under: '11. In our view the main trust of Regulation 29 is to give to the employee a discretion to give to the management pay in lieu of the period of notice. He is, however, not bound to pay. What is required is that if the employee does not give payment as required under Regulation 29, his resignation can be valid only if he gives the requisite notice. In other words, the employee can either give three months' pay in lieu of the notice or else his resignation will be valid only if a three months' notice is given.' 19. In view of the above, on perusal of the aforesaid judgment, it is apparent on the face of it that the order of the District Inspector of Schools has been passed contrary to be the provision contained under the regulation 26, 29 and 30 of regulation referred under U.P. Intermediate Education Act, 1921, therefore, the order of District Inspector of Schools dated 15.5.1985 and the judgment of learned Single Judge are not sustainable and are liable to be set aside. 20. Accordingly, the present Special Appeal and writ petition succeeds and are allowed, the judgment of learned Single Judge dated 03.7.2007, 14.08.2008 and order of District Inspector of Schools dated 15.5.1985 are hereby set aside. 21. 20. Accordingly, the present Special Appeal and writ petition succeeds and are allowed, the judgment of learned Single Judge dated 03.7.2007, 14.08.2008 and order of District Inspector of Schools dated 15.5.1985 are hereby set aside. 21. We direct the Principal and Committee of Management, Binapara Inter College, Binapara, District Azamgarh to pay the salary of the appellants/petitioners month by month as admissible to class IV post in as much as arrears of salary w.e.f. 09.08.1980 to till date within a period of three months from the date of production of certified copy of this order passed by this Court.