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2022 DIGILAW 1299 (ALL)

Randhir Singh Gautam v. State of U. P.

2022-08-17

ASHUTOSH SRIVASTAVA

body2022
JUDGMENT : ASHUTOSH SRIVASTAVA, J. 1. The writ petitioners, who claim to have been appointed as Assistant Teachers in a Primary School run and established by the Basic Shiksha Parishad after facing selection have approached this Court assailing an order dated 28.10.2021 (Annexure Nos. 9 and 10 to the writ petition) passed by the Basic Shiksha Adhikari, Maharajganj/Respondent No. 3, whereby services of the petitioners as Assistant Teachers have been terminated. 2. It is the case of the writ petitioners that they have been appointed as Assistant Teachers under the provisions of the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981 after facing selection. The Petitioner No. 1 was appointed under the order of the Basic Shiksha Adhikari dated 23.10.2008 and was permitted to join as Assistant Teacher in Urdu in Primary School, Kamhariya Khurd, Block Farenda, District Maharajganj. Later on, the Petitioner No. 1 was promoted as Headmaster in Primary School/Assistant Teacher in Junior High School on 26.11.2011 and had been working in such capacity in Purv Madhyamik Vidyalaya Parsia Bujurg Block Farenda, District Maharajganj. Likewise, the Petitioner No. 2 was appointed as Assistant Teacher by the order of the Basic Shiksha Adhikari dated 24.10.2008 and joined in Primary School, Sonbarsa Block Farenda, District Maharajganj. The Petitioner No. 2 was also promoted as Headmaster in Primary School, Sonbarsa Block Farenda District Maharajganj. 3. In the year 2013, an F.I.R. came to be lodged against the petitioners giving rise to the Case Crime No. 907 of 2013 under Sections 302/34, 323/34, 504, 506 I.P.C. and a charge sheet was submitted against the petitioners. The petitioners were arrested and consequently placed under suspension, however, were subsequently released on bail. The petitioners were convicted in the offence in Trial No. 186 of 2013 vide conviction order dated 02.04.2016. The petitioners were again arrested and put in jail on their conviction. The conviction order has been assailed in Criminal Appeal No. 1712 of 2016 which is pending consideration before this Court and the petitioners have been released on bail. The petitioners were reinstated in service under orders of the District Basic Education Officer, Maharajganj dated 30.06.2018 respectively. However, the order dated 30.06.2018 reinstating the petitioners in service was withdrawn by order dated 28.07.2018 and the petitioners were again placed under suspension. The petitioners were reinstated in service under orders of the District Basic Education Officer, Maharajganj dated 30.06.2018 respectively. However, the order dated 30.06.2018 reinstating the petitioners in service was withdrawn by order dated 28.07.2018 and the petitioners were again placed under suspension. Now by the impugned order dated 28.10.2021 the Basic Shiksha Adhikari has proceeded to terminate the services of the petitioners which order has been impugned in the present writ petition. 4. It is contended by the learned counsel for the petitioners that the petitioners are regular appointee and no enquiry is contemplated under the Uttar Pradesh Basic Education Staff Rules, 1973 read with the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 and as such in the absence of any enquiry the services of the petitioners cannot be terminated. 5. This Court vide order dated 22.03.2022 while entertaining the writ petition had directed the respondents to file counter affidavit. Pursuant to the said order, a counter affidavit has been filed on behalf of the Basic Shiksha Adhikari, Maharajganj, Respondent No. 3. Sri R.K. Ojha, learned Senior Counsel assisted by Sri K.B. Parihar, learned counsel for the petitioner submits that he has already filed rejoinder affidavit and further as the issue involved is a legal issue the same can be decided even in the absence of rejoinder affidavit. 6. The short question for adjudication in this writ petition is as to whether the services of a permanent Assistant Teacher in a Primary School run and established by the Board of Basic Education convicted in an offence under Sections 302/34, 323/34, 504, 506 IPC be terminated without holding an enquiry. 7. There is no dispute that the service conditions of the writ petitioners are governed by the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981 read with the Uttar Pradesh Basic Education Staff Rules, 1973. The 1981 Rules do not provide for punishment and the same is provided under Rule 3 of the 1973 Rules. Rule 3(vi) of the 1973 Rules talks about dismissal from service of the Board which ordinarily disqualifies him from future employment. Rule 5(3) of the 1973 Rules provides that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the Uttar Pradesh Government shall as far as possible be followed in disciplinary proceedings, appeals and representations under the said Rules. Rule 5(3) of the 1973 Rules provides that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the Uttar Pradesh Government shall as far as possible be followed in disciplinary proceedings, appeals and representations under the said Rules. When the 1973 Rules were promulgated the Civil Service (Classification, Control and Appeal) Rules 1930 were referred to in the Rules, however, the 1930 Rules have since been repealed and stand superceeded by the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. 8. It is not in dispute that the Civil Services (Classification, Control and Appeal) Rules 1930 stands superceeded by the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999. Although the U.P. Basic Education Staff Rules, 1973 has not been amended and Rule 5(3) continues to refer to the Civil Service (Classification, Control and Appeal) Rules, the Court is of the opinion that the disciplinary proceedings, appeals and representations shall be governed under the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 on the principle of Legislative reference. The question of the applicability of the 1999 Rules in place of the 1930 Rules was elaborately considered by a Coordinate Bench of this Court in the case of Ziledar Singh vs. State of U.P. and Others, 2010 (81) ALR 270. Para 42 and 43 of the aforesaid decision are being reproduced here under: “42. Considering in the light of the principles laid down above, I am of the view that it is “legislation by reference” with respect to procedure prescribed in 1930 Rules with respect to disciplinary proceedings, appeals and representations and its subsequent amendments and super-session, recession by 1999 Rules would also cover the field and would apply to Rule 5 (3) of 1973 Rules. Both the statutes travel in the same field. Since the purpose of referring to 1930 Rules in 1973 Rules is in respect to import procedure of departmental enquiry instead of repeating the same, to my mind the exception referred in P.C. Agarwala (supra) clearly attracted here also and it would be prudent to apply 1999 Rules which supersede 1930 Rules, since the amended and detailed procedure provided in 1999 Rules makes the enquiry more transparent and consistent with the known principles of natural justice. The intent of rule framing authority also does not appear to be otherwise. 43. The subsequent amendment, modification etc. The intent of rule framing authority also does not appear to be otherwise. 43. The subsequent amendment, modification etc. in the statutes would, therefore, also be applicable to 1973 Rules but only and specifically with respect to the procedure for departmental inquiry, appeals and representations and not beyond that.” 9. Rule 7 of the 1999 Rules deals with the procedure for imposing major penalties. 10. A bare perusal of the Rule 5(3) of the 1973 Rules and Rules 6, 7 and 8 of 1999 would go to show that full fledged procedure has been provided for in the matter of procedure to be adhered to while making departmental enquiry, being in consonance with principles of natural justice and rule of fair play. However, the 4th proviso to Rule 7 of the 1999 Rules provides that the Rule 7 shall not apply in the following cases: (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge. (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules. (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules. 11. A perusal of the Clause (i) of the 4th proviso shows that the order contemplates therein is one which can be passed imposing a major penalty on a person on the ground of “conduct which has led to his conviction” on a criminal charge and not mere conviction. 12. The contingencies where a person can be imposed major penalty without any enquiry on the ground of his conviction is no more res integra. 12. The contingencies where a person can be imposed major penalty without any enquiry on the ground of his conviction is no more res integra. It is now well settled that Article 311(2) proviso (a) of the Constitution is pari materia to Clause (i) of the 4th proviso to Rule 7 of the 1999 Rules empowering the disciplinary authority to impose a major penalty on a person without holding the enquiry on the basis of “conduct which has led to conviction.” It is also a settled exposition of law that punishment is not automatic and based on the mere conviction but the order imposing punishment must show application of mind on the part of the disciplinary authority on the conduct which has led to the conviction of the employee and appropriate punishment which he is liable to suffer. 13. The question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct which has led to conviction of the employee before passing punishment is also no more res integra. The Apex Court in Union of India vs. Tulsi Ram Patel, 1985 (3) SCC 398 , while considering the pari materia provisions under Article 311 of the Constitution of India held as under: “The second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned, government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry.” (Emphasis added) 14. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry.” (Emphasis added) 14. A similar question came up for consideration before a Division Bench of this Court in Shyam Narain Shukla vs. State of U.P. (1988) 6 LCD 530 and this Court held as under: “In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage.” (Emphasis added) 15. Similarly another Division Bench of this Court in Sadanand Mishra vs. State of U.P. 1993 LCD 70 held that on the conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction is also considered. Further, it is held that the scrutiny of conduct of an employee leading to his conviction is to be done ex-parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned. 16. The above view was taken by this Court in Chandra Bhuwan Tripathi vs. State of U.P. and Others (Civil Misc. Writ Petition No. 45364 of 2003) decided on 8.12.2006. 17. Now testing the impugned order dated 28.10.2021 on the anvil of the ratio of the aforesaid decisions, the Court finds that the impugned orders do not conform to the 1999 Rules in as much as the Basic Shiksha Adhikari, Maharajganj/Respondent No. 3 has not taken into consideration the entire conduct of the petitioners, the gravity of misconduct committed by them, the impact which the misconduct is likely to have etc. and has passed the order simply recording that the petitioners were suspended vide order dated 16.04.2016 on their being convicted in Case No. 186 of 2013, under Sections 302/34, 323/34, 504, 506 IPC vide order of the Additional Sessions Judge, Maharajganj. The services of the petitioners are being terminated with immediate effect on their conviction vide order dated 02.04.2016 in compliance of the procedure laid down in the Government Order dated 12.10.1979 and the U.P. Government Servants (Discipline and Appeal) Rules, 1999. 18. In the result, the writ petition is allowed. The impugned orders dated 28.10.2021 (Annexure No. 9 and 10 to the writ petition) respectively passed by the Basic Shiksha Adhikari, Maharajganj, Respondent No. 3 are quashed. 19. However, it shall be open to the Respondent No. 3 to pass a fresh order in accordance with law.