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Allahabad High Court · body

2022 DIGILAW 1161 (ALL)

Naeem Ahmad v. State of U. P.

2022-07-25

SIDDHARTH

body2022
JUDGMENT : 1. Heard Sri Jayant Prakash Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1, 2 and 3, Sri Firoz Haider, learned counsel for respondent no.4. 2. This writ petition has been filed praying for quashing of the order dated 27.04.2016 passed by the Manager, Muslim Inter College, Thakurdwara District Moradabad, as well as alleged inquiry report dated 05.11.2015. Further prayer has been made for direction to the respondents not to interfere in functioning of the petitioner as Principal of the institution, namely, Muslim Inter College, Thakurdwara, Moradabad and pay him arrears of his salary from the date of his suspension and also month to month salary regularly. 3. The case of the petitioner is that he was appointed on the post of Principal in Muslim Inter College, Thakurdwara District Moradabad (hereinafter referred to as the institution) a recognised and aided minority institution till the level of High School. His appointment was duly approved by the order dated 22.11.2008 passed by the Joint Director of Education, 10th Region, Morabadabad. The appointment of the petitioner was challenged by the rival candidate in question along with the Manager of the institution by way of Writ Petition No.63186 of 2008, which was ultimately dismissed on 09.04.2014 in the category of infructuous cases. The rival of the petitioner, Mohd. Ayub Ahmad, in collusion with Haji Khalil Ahmad, Manager of the institution, got an ex-parte inquiry conducted behind back of the petitioner and on the basis of ex-parte inquiry report dated 19.03.2009, the committee of management of institution passed a resolution dated 24.03.2009 dispensing with the services of the petitioner. The aforesaid resolution was challenged by the petitioner by means of Writ Petition No.18010 of 2009 before this court and this Court quashed the order dated 24.03.2009 terminate the service of the petitioner and allowed the writ petition by the order dated 25.05.2009 and thereafter petitioner was permitted to join his service from 01.06.2009 on the basis of the order of the Joint Director of Education. The Manager of the institution gave a notice dated 21.09.2015 to the petitioner alleging that a complaint has been received from a student of Class XI, Sonam, alleging that he has talked to Sonam on mobile phone indecently which has resulted in tarnishing the image of the college and he should show cause why disciplinary proceedings may not be initiated against him. Similar letter was received by the petitioner on the next day 22.09.2015 issued by the manager again. On 28.09.2015 the petitioner replied to the letter dated 21.09.2015 of the manager stating that he is being falsely implicated on account of conspiracy against him. The manager of the institution provoked the students and they indulged in arson and broke the car of the petitioner regarding which he lodged the first information report. By the order dated 29.09.2015 petitioner was suspended by the Manager of the committee of management of institution and the Joint Director constituted an Inquiry Committee to conduct inquiry against the petitioner. The inquiry committee called the petitioner to appear before it on 05.10.2015 and submit his documents in defence. The petitioner submitted his reply along with the supporting documents before the inquiry committee on 06.10.2015. The manager of the institution again constituted another inquiry committee on 06.10.2015 to inquire into the charges against the petitioner and new inquiry committee constituted by manager gave a charge-sheet dated 14.10.2015 to the petitioner to which he was directed to submit his reply. It has been stated that the charge-sheet dated 14.10.2015 was not served on the petitioner by the Manager and the alleged Chairman of the Inquiry Committee, namely, Dr. Mohd. Ullah Chaudhary, was the Ex-MLA and was not the member of the Committee of Management of the institution. Thereafter this Court vide Writ-C No.12168 of 2014 quashed the recognition granted to the Committee of Management of the institution by its order dated 16.10.2015 and Authorized Controller was appointed to look after the affairs of the institution but alleged Chairman of Inquiry Committee, Dr. Mohd. Ullah Chaudhary, continued with the inquiry against the petitioner. Without knowledge of the petitioner the locks of his college almirah were broken and the records kept therein were taken away by the Principal of the institution and Shamim Ahmad, ex-clerk of the institution, regarding which petitioner lodged another First Information Report. On 05.11.2015 an inquiry report was submitted before the District Inspector of Schools, Moradabad against the petitioner without giving him any notice or opportunity of hearing in the inquiry. On 05.11.2015 an inquiry report was submitted before the District Inspector of Schools, Moradabad against the petitioner without giving him any notice or opportunity of hearing in the inquiry. After receiving the aforesaid inquiry report the District Inspector of Schools, Moradabad issued a notice to the petitioner on 26.11.2015 to appear before him for showing cause as to why the order of suspension passed against him may not be approved but petitioner could not appear before him on account of death of his father and by order dated 25.01.2016 the suspension of the petitioner was approved by the District Inspector of Schools aforesaid. 4. In the meantime the Regional Level Committee by the order dated 10.02.2016 granted recognition to the Committee of Management of the institution as per order of this court dated 16.10.2015 passed in Writ Petition No.12168 of 2014. 5. The petitioner challenged the order dated 25.01.2016 approving his suspension by the District Inspector of Schools and the order dated 29.09.2015, whereby he was put under suspension by filing Writ Petition No.11724 of 2016, which was disposed of with the direction to the disciplinary authority to conclude the departmental proceedings against the petitioner within one month. The petitioner served the copy of the order of this court dated 11.02.2016 of this Court on Joint Director of Education and the District Inspector of Schools, Moradabad and also the Manager of the institution and thereafter he received a letter / order dated 27.04.2016, whereby came to know that the management has terminated his service without following the procedure envisaged under Chapter 11, Regulation 35 to 37 of U.P. Intermediate Education Act and the order of termination was passed on the alleged enquiry report dated 05.11.2015 submitted by the enquiry committee headed by Mohd. Ullah Chaudhary. The inquiry directed by the Director of Education by his letter dated 29.09.2015 was headed two Principals of Government College, Bhojpur and Moradabad and is still pending, hence this writ petition. 6. Counter affidavit has been filed on behalf of respondent nos.2 and 3, namely, Joint Director of Education, 12th Region, Moradabad and District Inspector of Schools, Moradabad, wherein it has been stated that the petitioner was suspended while working as Principal of the institution by the order dated 29.09.2015 and inquiry committee was constituted on 06.10.2015, which submitted its report 07.11.2015. 26.11.2015 was fixed but no one was present for hearing. On 04.12.2015 Dr. 26.11.2015 was fixed but no one was present for hearing. On 04.12.2015 Dr. Mohd. Ullah Chaudhary, Chairman, Inquiry Committee and principal were present. Petitioner prayed for one month’s time to submit reply to the charges and copy of the charge-sheet and supporting documents were provided to him on 08.12.2015. 17.12.2015 was fixed for hearing but the petitioner did not returned up and hence the charges against him were found to be proved and by means of order dated 25.01.2016, the District Inspector of Schools approved the order of suspension and his services. Subsequently, on 27.04.2016 the petitioner was given ample opportunity of hearing but he did not availed the same. Therefore, he is not entitled to claim any relief from this court. 7. Another counter affidavit has been filed on behalf of the Committee of Management of the institution / respondent no.4, wherein it has been stated that there is ample evidence against the petitioner of causing nuisance in the institution His behaviour and character was seriously objectionable while dealing with girl of students. There was electronic record of the vulgar talks between the petitioner and some girl students, which is subject matter of a criminal case pending before the trial court at Moradabad. The first information report regarding the breaking / damage to car of the petitioner was not lodged by the petitioner but the police. The charge-sheet was duly served on the petitioner and merely because the Chairman of the inquiry committee was Ex MLA it cannot be said that he was not competent. Dr. Mohd. Ullah Chaudhary is life member of the Committee of Management of the institution. The argument that since the Authorized Controller was appointed on 19.11.2015, therefore, the termination of the service of the petitioner on 27.04.2016 by the Committee of Management was illegal is not correct. The powers of the Committee of Management were restored by the Regional Level Committee on 10.02.2016 and the signature of the Manager of the institution were duly attested on 13.02.2016. In the meeting dated 09.04.2016, the petitioner admitted his guilt and submitted his written apology. The petitioner was given number of opportunities to submit his reply to the charges on 15.10.2015, 26.10.2015 and 27.10.2015 by the letter dated 24.10.2015 and 24.10.2015. He was again asked to submit his reply but he avoided to avail the opportunity. In the inquiry proceedings the statements of Km. Ruhi and Km. The petitioner was given number of opportunities to submit his reply to the charges on 15.10.2015, 26.10.2015 and 27.10.2015 by the letter dated 24.10.2015 and 24.10.2015. He was again asked to submit his reply but he avoided to avail the opportunity. In the inquiry proceedings the statements of Km. Ruhi and Km. Sonam, students of Class XI belonging to poor family were recorded. They stated that since they were unable to pay the fees, the petitioner used to contact them on mobile phone and offered them free books and exemption from depositing the fees. He tried to take them to Jaspur and Kashipur. There was also allegation of financial misappropriation against the petitioner. He has not disclosed when his father died and he was prevented from appearing before the District Inspector of Schools when he was considering the approval of his suspension order. The procedure provided under Regulations 35 to 37 of Chapter III of Intermediate Education Act were not violated. 8. Supplementary counter affidavit has been filed on behalf of respondent no.4 wherein the statement of Km. Sonam Parveen recorded under Section 164 Cr.P.C. has been brought on record, wherein affidavit of Sonam Parveen filed before the Court of trial in Sessions Trial No.791 of 2016, under Section 147, 427, 354(A) I.P.C and Section 11-12 of the POCSO Act have been brought on record wherein she has stated that the petitioner never misbehaved with her and some members of the Committee of Management and teachers have compelled her to lodge the first information report against the petitioner she does not wants the case to proceed further. 9. After considering the rival submissions this court finds that neither the respondent nos.2 and 3 have brought on record any proceedings of inquiry on record nor the respondent no.4 has brought the same on record. In the writ petition the petitioner has brought on record the copy of the charge-sheet and the copy of the enquiry report. From inquiry report, it is clear that before the inquiry Committee the statements of two girl students, namely, Km. Ruhi and Km. Sonam, were called as witnesses and their statements were recorded. Their statements have not been brought on record by the respondent but in the inquiry report their contents have been mentioned. From inquiry report, it is clear that before the inquiry Committee the statements of two girl students, namely, Km. Ruhi and Km. Sonam, were called as witnesses and their statements were recorded. Their statements have not been brought on record by the respondent but in the inquiry report their contents have been mentioned. On the basis of the statements of two girls students the charge of harassment of the girl students have been found to be proved. Regarding the charge of misappropriation of amount received for distribution of school dress to students no evidence has been led. It has only been stated that there is no account of the same and there is no entry of Rs.2,34,000/- received for the purpose of distribution of school uniform. Similar is the finding regarding the irregularities in the distribution in the mid day meal by the petitioner. The allegation regarding the purchase of science equipments, scout and guide equipments sports goods etc., have not been proved by leading any evidence before inquiry officer. It has only been stated that concerned teacher has stated that no goods were purchased. No evidence has been brought on record to prove that any notice whatsoever was sent to the petitioner to appear before the Inquiry Committee and participate in inquiry proceedings. In the inquiry report it has only been mentioned that petitioner was informed about the date of inquiry on telephone. Two letters sent on 14.10.2015 and 24.10.2015 are stated to have been sent to the petitioner to appear before the inquiry committee and finally a letter dated 27.10.2015 is stated to have been sent to the petitioner whereon he had made a note that he is ill and will appear before the Inquiry Committee after getting well. The letters have not been brought on record in the writ petition. The petitioner has pleaded that he was not given opportunity of hearing before passing of the impugned termination order. 10. A perusal of Regulations 35 to 37 of Chapter III of Intermediate Education Act shows that the charged employee shall be entitled to cross examine the witnesses and to give evidence in person and produce his own witnesses. The proceedings shall contain sufficient record of evidence and the statement of findings and ground thereof. These requirements shall not be observed in the case where a person charged is absconding. The proceedings shall contain sufficient record of evidence and the statement of findings and ground thereof. These requirements shall not be observed in the case where a person charged is absconding. After the report of the Inquiry Officer is submitted, as per Regulation 37 the charged employee is required to be given a show cause notice and appear before the Committee of Management to submit his objections. Thereafter the entire report of the inquiry committee shall be forwarded to the District Inspector of Schools or Committee for approval. 11. In the present case the second show cause notice does not appears to have been given to the petitioner after receipt of inquiry committee report from the inquiry committee nor there appears to be any order of approval of the impugned termination order dated 27.04.2016 passed by the Inquiry Committee. Therefore, the impugned order dated 27.04.2016 and the inquiry committee report dated 04.11.2015 cannot be sustained and are hereby quashed. The respondents are at liberty to initiate fresh inquiry against the petitioner in accordance with law. 12. The petitioner shall be permitted to work on the post of Principal of Muslim Inter College, Thakurdwara, Moradabad w.e.f. 01.08.2022 and shall be paid arrears of his salary within eight weeks from today and month to month salary from 01.08.2022. In case the petitioner is not reinstated as per this order and his arrears of salary are not paid within the time provided and petitioner shall be entitled to 8% interest till the amount due is paid to him. The State Government will be free to recover the same from the public servant concerned found responsible for delay in compliance of this order. 13. Writ petition is allowed. 14. No order as to costs.