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2024 DIGILAW 221 (ALL)

Rubina Iqbal v. State of U. P.

2024-01-19

AJIT KUMAR

body2024
JUDGMENT : Hon'ble Ajit Kumar, J.-Heard Sri Shivendra Rajwar, Advocate holding brief of Sri Gautam Baghel, learned counsel for the petitioner, Sri Utkarsh Singh, learned counsel appearing on behalf of fifth respondent and learned Standing Counsel for State-respondents and perused the record. 2. Petitioner before this Court is aggrieved by the order of termination of her services dated 17.9.2018 and the basic plea taken is that in spite of the fact that the petitioner was continuing in substantive appointment in the institution as Principal, she was never served at any point of time either with any suspension order, the charge-sheet or was permitted to participate in the alleged enquiry conducted by respondent-Committee of Management. She was even not served with any show-cause notice as to the proposed punishment, nor was given any enquiry report. These pleadings have come to be raised in paragraph-24 of the writ petition to which reply has come to be made in paragraph-23 of the counter-affidavit filed by fifth respondent, who is the Disciplinary Authority in the matter. Thus according to learned counsel for the petitioner, enquiry being de hors the procedure prescribed under Regulation 37 of Chapter XXXIII of the U.P. Intermediate Education Act, 1921 (for short, the Intermediate Act, 1921''), the order of termination of services of the petitioner cannot be sustained in law. 3. Sri Utkarsh Singh, learned counsel appearing on behalf of fifth respondent has sought to justify the order for the reasons assigned therein and has further taken the plea by way of defence set up in paragraphs-8 and 9 of the counter-affidavit. He also submitted that reply to the pleadings raised in paragraph-24 of the writ petition, has been given in paragraph-23 of the counter-affidavit. 4. Learned Standing Counsel has taken his stand that the management was required to furnish detail report to the petitioner regarding the proceedings being drawn against her but the management being a minority institution choosen not to take the same. He submits that in the absence of any paper being submitted before the Education Authority, he could neither approve the order of termination, nor could he say anything in the matter. He submits that in the absence of any paper being submitted before the Education Authority, he could neither approve the order of termination, nor could he say anything in the matter. However, he submits that from the recital made in the order of termination, it is clear as is stated in the said order that the petitioner did not appear before the enquiry committee but there is no material discussed as to when she was offered opportunity to appear and she refused to appear. In the circumstances, he says that the principles of natural justices, appears to have not been complied with in the matter of imposition of major penalty. 5. Heard learned counsel for the respective parties and perused the record. I find that specific pleadings have been raised in paragrap-24 of the writ petition with regard to the fact that neither the order of suspension nor charge-sheet was ever served upon the petitioner. She was not even served with the enquiry report and straightway the order of termination has been passed. Paragraph-24 of the writ petition is reproduced hereunder : ''24. That virtually the suspension order dated 7.8.2018 was not served on the petitioner and firstly only informed by the Peon of the College, that you are suspended and not permitted to enter into the College then the petitioner attended the hearing made by D.I.O.S. dated 6.9.2018 and 17.9.2018, and lastly on 17.9.2018 it was communicated on behalf of respondent No. 5 to the D.I.O.S. since the petitioner has been terminated hence the hearing on her suspension is not required; and as both the said papers i.e. Suspension and Termination were nor communicated to the petitioner hence knowing the correct facts she obtained the completed papers relating to the present matter in dispute form the D.I.O.S. under R.T.I. Act on 3.12.2018 and from the perusal of such papers the following fact came in the light- (i) Neither the Suspension was communicated to the petitioner nor properly to the D.I.O.S. mentioning the fact as per Regulation 39 (1) of Chapter III of Regulation framed under Act, 1921 (ii) From the perusal of all the such papers provided by the office of D.I.O.S. to the petitioner on 3.12.2018 under R.T.I. Act, it also reveals the suspension was wrongly done by the respondent No. 5 without any report or resolution of committee of management. (iii) Neither any charge-sheet containing in the suspension order nor the supporting documents were either provided to the D.I.O.S. or to the petitioner. (iv) From the perusal of said papers it reveals that neither the enquiry into the matter in dispute was contemplated nor the date, time and place either of enquiry or for hearing of petitioner was ever Informed to the petitioner nor any papers/documents were supplied for reply. (v) Neither any copy of the complaint, report or enquiry report was ever been supplied by the respondent No. 5 or by the alleged enquiry officer and the petitioner abruptly terminated without providing mandatory opportunity of hearing. (vi) Lastly it is submitted that the complete process from suspension to termination of the petitioner has been wrongly, illegally and malafiedly done by the Manager of the institution on the behest of one Sri Abdul Hasib (the real brother of the respondent No. 5) in utter violation of the provisions contained under Regulation 39 of Chapter III of Regulation framed under Act, 1921 and as such the complete process is illegal, wrong, malafied and liable to quashed.'' 6. In reply to paragraph-24 of the writ petition, it has come to be averred in paragraph-23 of the counter-affidavit that this paragraph being repetitive in nature, reply already given in preceding paragraphs be read here also in reply and, therefore, the pleadings raised in paragraph-24 did not call for any reply. Paragraph-23 of the counter-affidavit is reproduced hereunder : ''23. That the content of the paragraph No. 24 of the writ petition are repetitive in nature which has been already replied in the preceding paragraphs of this counter-affidavit, hence do not call for any reply.'' 7. However, so far the preceding paragraphs in the said counter-affidavit are concerned, I do not find any statement anywhere in support of the stand that petitioner was ever served with any notice except certain dates mentioned regarding suspension in paragrap-22 and paragraph 25 and that the Committee of Management had requested the District Inspector of Schools to direct the petitioner to appear and face the enquiry. Paragraph-8 of the counter-affidavit also states about the service of the charge-sheet but no material has been brought on record evidencing the factum of service of charge-sheet and enquiry report upon the petitioner, nor any document has been brought on record to demonstrate that the petitioner was ever served with any notice to appear before the Enquiry Committee. Paragraphs-8, 22 and 25 of the counter-affidavit are reproduced hereunder : ''8. That disciplinary proceeding was initiated against the petitioner by the institution and the services of the petitioner was suspended vide order dated 07/08/2018 and thereafter charge-sheet was served upon the petitioner on 18/08/2018. 22. That the content of the paragraph No. 23(iii) and (iv) of the writ petition are not admitted as stated hence denied. In reply thereto it is submitted that the management upon receiving notice dated 4.9.2018 calling for explaining the suspension of the petitioner by the manager on the date fix 6.9.2018 by the D.I.O.S. The management via letter dated 6.9.2018 informed the D.I.O.S. office that the manager of the institution was out of station for business of the institution. Hence, the manager couldn't appear before the D.I.O.S on the dates fixed for hearing by respondent No. 4. 25. That the content of the paragraph No. 26 of the writ petition are not admitted as stated hence denied. In reply thereto the inquiry committee headed by Mohd. Javed via letter dated 6.9.2018 has requested D.I.O.S to direct the petitioner to appear before the inquiry committee and cooperate with proceeding of inquiry committee. The copy of the same was also sent to the petitioner.'' 8. Thus, from the above pleadings raised in the writ petition and the counter-affidavit filed by the Committee of Management, it bornes out clearly that there was never any effective service of charge-sheet upon which the enquiry is alleged to have been conducted by the Enquiry Committee constituted by the Committee of Management. Thus according to me, it cannot be said that proper procedure being religiously followed as prescribed for under Regulation 37 of the Act. To appreciate about the conduct of enquiry by the Committee, it is relevant to reproduce Regulation 35 to 37 as contained under Chapter III of the Act, hence the same is reproduced hereunder: 36. Thus according to me, it cannot be said that proper procedure being religiously followed as prescribed for under Regulation 37 of the Act. To appreciate about the conduct of enquiry by the Committee, it is relevant to reproduce Regulation 35 to 37 as contained under Chapter III of the Act, hence the same is reproduced hereunder: 36. (1) The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge-sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as that inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish: provided that the inquiring authority conducting the inquiry may for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the inquiry may also separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee. (2) Clauses (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. (3) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged. 9. From a bare reading of the above provisions as contained under relevant regulations, it has come to be absolutely clear that there has to be a Enquiry Sub-Committee in the matter. 9. From a bare reading of the above provisions as contained under relevant regulations, it has come to be absolutely clear that there has to be a Enquiry Sub-Committee in the matter. However, even the enquiry report has not been brought on record by the Committee of Management so as to justify that there was a lawfully constituted Enquiry Committee as contemplated under Regulation 37 of the Intermediate Act. Thus, it is writ large on the face of the record that proper procedure as prescribed for under the relevant regulation of the Intermediate Education Act, have not been followed by the Committee of Management. The legal position is very well clear that in the matter of imposition of major penalty, the disciplinary proceedings have to be conducted in accordance with the procedure prescribed for. Secondly, the second show-cause notice is must, if the disciplinary authority proceeds to concur with the finds returned by the enquiry committee, a show-cause notice alongwith copy of enquiry report be served upon the petitioner so as to invite her explanation to the findings returned in the enquiry report. Thirdly, all the more important aspect is that in the matter of imposition of major penalty there has to be oral enquiry held which the Supreme Court has repeatedly held in its various decision. The authorities of the Supreme Court as well as this Court are quoted hereunder : (I) In the case of State of U.P. and another v. T.P. Lal Srivastava; 1997 (1) LLJ 831 , the Supreme Court has held that even if the employee has failed to submit reply to the Charge-sheet, it would not absolve the Inquiry Officer from proceeding with the oral inquiry to record the statement of the department witnesses and submit a report as to the proof of charge-sheet. (II) In the case of Salahuddin Ansari v. State of U.P. and others; 2008(3) ESC 1667 (Allahabad), a Division Bench of this Court has relied upon an earlier judgment in the case of Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , and held that if, no oral enquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The Court has relied upon the judgment of Supreme Court in the case of T.P. Lal Srivastava (Supra). The Court has relied upon the judgment of Supreme Court in the case of T.P. Lal Srivastava (Supra). (III) Regarding second show-cause notice and supply of enquiry report, the Supreme Court has laid down guidelines in the judgment passed in the Case of Managing Director ECIL, Hyderabad and other v. B. Karunakar and others, (1992) 3 JT (SC) 605, the Supreme Court in paragraphs 29 and 30 has observed as follows : ''29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. 30. Hence the incidental questions raised above may be answered as follows: (i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. (ii) The relevant portion of Article 311(2) of the Constitution is as follows: ''(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.'' Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment. (iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him.(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case ( AIR 1991 SC 471 ) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a ''unnatural expansion of natural justice'' which in itself is antithetical to justice.'' ''That in the matter of major penalty there has to be oral enquiry and that the delinquent employee should be permitted to participate in the enquiry to examine and cross-examine the departmental witnesses.'' 10. It amounts to a ''unnatural expansion of natural justice'' which in itself is antithetical to justice.'' ''That in the matter of major penalty there has to be oral enquiry and that the delinquent employee should be permitted to participate in the enquiry to examine and cross-examine the departmental witnesses.'' 10. As is reflected from the order of termination that there is no notice at all except for a date of notice without there being any time, date and place fixed to hold the enquiry, hence it can be safely presumed that no oral enquiry was held. In such circumstances, therefore, the order of termination of services of the petitioner cannot be sustained in law. 11. In view of the above, therefore, once the enquiry is held to be vitiated in law, the final order of termination of service also stands vitiated and, therefore, in these circumstances both the enquiry report and the final order of termination cannot be sustained. In my above view supported by the judgment of learned Single Judge placed before me, which is also relating to a minority institution in the case of Girish Chandra v. State of U.P. and others in Civil Misc. Writ Petition No. 28553 of 2013 decided on 23rd May, 2023, in which after recording the contention of learned counsel for the petitioner in paragraphs-8 and 9, the Court returned its finding in paragraphs-10 and 11 and allowed the writ petition. The relevant paragraphs 8 to 11 are reproduced hereunder : ''8. Sri Ashok Khare contends that the impugned order is violative of the procedure prescribed under Regulations 35 to 37 of Chapter III of the U.P. Intermediate Education Act, 1921 and not only this, the charges are absolutely frivolous and the inquiry has proceeded without giving notice to the petitioner. He further contends that none of the documents were provided which was demanded by him. On the contrary a reply was given by the Committee that the documents were not required as they were not necessary for the purpose of the reply. He, therefore, submits that the respondent - Committee of Management has proceeded to terminate the services of the petitioner without complying with the principles of natural justice and in clear violation of the provisions aforesaid. He, therefore, submits that the respondent - Committee of Management has proceeded to terminate the services of the petitioner without complying with the principles of natural justice and in clear violation of the provisions aforesaid. He has relied upon on three decisions of this Court in the case of Hardev Singh v. Committee of Management, D.B. Santokh Singh Khalsa Inter College, Agra, and another, 2004 (2) LBESR 1138, the decision in the case of Tariq Ayyub v. State of U.P. and others, decided on 21.10.2010 and the third decision in the case of Abha Saxena v. State of U.P. and others, 2012(10) ADJ 484 , to urge that even in minority institutions where regulations have been violated, this Court can exercise its discretion under Article 226 of the Constitution of India and interfere with the order of termination. 9. Replying to the aforesaid submissions, Sri Pandey for the Management, submits that this is a case where the charges are serious enough that warrant the dismissal of the petitioner. The charges were inquired into in accordance with the procedure prescribed but the petitioner failed to cooperate with the inquiry and, therefore, the impugned order is justified. He submits that the reply, which was given by the petitioner, was absolutely unsatisfactory and not only this, his conduct in the institution is such that it is not desirable to continue him further in service. Sri Pandey, therefore, submits that the impugned order does not require any interference and the findings of fact recorded cannot be a subject-matter of appeal before this Court under Article 226 of the Constitution of India. 10. Having heard learned counsel for the parties and having considered the decisions that have been cited at the bar, the interference in service matters relating to employees of minority institutions is limited to the extent of violation of procedure prescribed under the Regulations, provided they are regulatory in nature, and do not impinge upon the fundamental rights guaranteed under Article 30 of the Constitution of India. The judgments, which have been relied upon by the learned counsel for the petitioner, permits such interference and in the instant case the stand taken by the petitioner is that the inquiry is vitiated for non-compliance of Regulations 35 to 37 of Chapter III of the 1921 Act. 11. The judgments, which have been relied upon by the learned counsel for the petitioner, permits such interference and in the instant case the stand taken by the petitioner is that the inquiry is vitiated for non-compliance of Regulations 35 to 37 of Chapter III of the 1921 Act. 11. I have perused the impugned order and the opening part thereof clearly recites the manner in which the Management has proceeded to consider the non-cooperation of the petitioner as one of the grounds for proceeding to pass the termination order. Regulation 37 of Chapter III categorically requires that after the inquiry is concluded, the report of the Enquiry Officer shall be considered by the Committee of Management and then the Committee shall offer an opportunity to the delinquent employee to give his explanation and hear him before passing the order of termination. There is no material discussed by the District Inspector of Schools to enable this Court to infer that the Committee had ever complied with the said provision. The order impugned dated 15.4.2013 is clearly deficient on this aspect. Learned counsel for the respondent - Committee of Management, therefore, could not support the order on this ground. The impugned order, therefore, being in violation of Regulation 37 of Chapter-III of 1921 Act cannot be sustained.'' 12. In view of the above, this writ petition succeeds and is allowed. 13. The order of termination of service of the petitioner dated 17.9.2018 and the enquiry report dated 15.9.2018 are, accordingly, hereby quashed. The petitioner shall be reinstated in service and shall be paid salary. It is however, left open for the respondents to proceed afresh in accordance with law, if so desire.