Ata Hussain vs District Inspector of Schools and Others

R.H. Zaidi, J.—Heard learned counsel for the Petitioner and learned counsel appearing for the contesting Respondents.

By means of the present petition, under Article 226 of the Constitution of India, the Petitioner prays for a writ, order or direction in the nature of certiorari quashing the orders dated 7.1.1984, 14.4.1986 and 11.8.1989. By order dated 7.1.1984 the Petitioner was suspended from service. Vide order dated 14.4.1986 he was dismissed from the post of Clerk-cum-Librarian, and vide order dated 11.8.1989 the District Inspector of Schools accorded approval to the dismissal of the Petitioner.

In brief, the facts of the case are that the Petitioner, who was holding the post of Clerk-cum-Librarian in Majidia Islamia Intermediate College, Allahabad, (hereinafter referred to as the college), was suspended. Thereafter a charge-sheet was served upon him on 28.3.1984 and the Petitioner was required to submit his explanation regarding the charges levelled against him. On receipt of the charge-sheet, the Petitioner applied for the copies of the documents on the basis of which the charges were framed but the same were not supplied to him. It was on 2.7.1985 that a news item was published in the local newspaper, calling upon the Petitioner to appear before the enquiry officer on 20.7.1985. The Petitioner on receipt of the said information applied for adjournment of the case on medical ground. However, no other date was given to the Petitioner for his appearance before the enquiry officer and the enquiry was conducted. In the meanwhile, it is alleged that the Petitioner also sent his explanation/reply of the charge-sheet by registered post : but the letter sent by him was not received by the Manager of the college on the ground that on the envelope although the name of the Petitioner was mentioned but his address was not given. After conclusion of the enquiry, a report was submitted by the enquiry officer before the Management Committee on 9.4.1986. and on the same date the Management Committee on the basis of the findings recorded by the enquiry officer dismissed the Petitioner from services. The order/resolution of dismissal passed by the Committee of Management was communicated by the Principal of the college to the Petitioner vide letter dated 14.4.1986. The Petitioner objected to his dismissal from services before the District Inspector of Schools, who appears to have sent for the papers from the Manager of the college, but ultimately approved the dismissal of the Petitioner by his order dated 11.8.1989. The Petitioner thereafter approached this Court and filed the present petition for the aforementioned reliefs .

On behalf of the contesting Respondents a counter-affidavit has been filed denying the facts stated in the writ petition. It has been asserted that the procedure prescribed under the Regulations, framed under the Act, for taking disciplinary action against the teachers and employees of the institution was fully followed. It has also been asserted that the Petitioner was afforded full opportunity of hearing, but he deliberatively, did not participate in the enquiry and did not availed the opportunity of hearing. It has also been stated that the charges levelled against the Petitioner were of quite serious in nature, which have been found to be proved. Therefore, the services of the Petitioner were rightly dispensed with. It has also been stated that the institution in question is a minority institution. Therefore, the approval of the District Inspector of Schools was not at all required and that the orders passed against the Petitioner are quite valid and the writ petition is liable to be dismissed.

Learned counsel appearing for the Petitioner vehemently urged that the Petitioner was a permanent employee (Clerk-cum-Librarian) of the Respondent No. 3. Therefore, his services could not be terminated without obtaining prior approval of the District Inspector of Schools, as provided in Regulation 31 of the Regulations framed u/s 16G (3) of the Act, which is applicable in the present case with the help of Regulation 100, framed under the aforesaid Act. According to him the order of dismissal was passed long before the approval was accorded by the District Inspector of Schools. Learned counsel further submitted that the procedure prescribed under Regulations 35, 36 and 37 of Chapter III of the Regulations, framed under the act was not followed, inasmuch as, the Petitioner was neither afforded any opportunity, of hearing, nor he was supplied the copies of the relevant documents. Even the copy of the enquiry report was not supplied to him. It has also been submitted that on receipt of the enquiry report, the services of the Petitioner were at once dispensed with, without affording an opportunity of hearing to him by the Committee of Management.

The next submission of the learned counsel for the Petitioner is that in the absence of the documents copies of which were applied for, by him and on which charges were based, it was not possible for the Petitioner to submit the reply/explanation of the charge-sheet. Inspite of the application made by the Petitioner, the aforesaid documents were not supplied to him. He was thus denied an opportunity of defending himself.

Learned counsel for the Petitioner lastly submitted that in any view of the matter, the punishment awarded to the Petitioner is not commensurate to the charges levelled against him, as on the basis of the said charges the punishment of dismissal from services should not have been awarded as the same was disproportionate to them.

Learned counsel appearing for the contesting Respondents on the other hand supported the case of the Respondent No. 3 on the basis of pleas taken in the counter-affidavit and referred to above.

I have considered the rival submissions made by the learned counsel for the parties, and also perused the record.

From the facts stated above, it is apparent that the District Inspector of Schools accorded approval long after the Petitioner was dismissed from services. It is now well settled in law that the provisions of Section 16G(3) of the U.P. Intermediate Education Act, and the regulations framed under the said section are applicable to the minority institutions also. A reference in this regard may be made to the Full Bench Decision of this Court in the case of Smt. Kalra v. District Inspector of Schools 1996 (II) ESC 421. Regulation 31, which provides for prior approval of the District Inspector of Schools to award punishment of dismissal, removal, discharge, reduction in rank and diminution in emoluments to an employee, by the Committee of Management, is being reproduced below:

Punishment of an employer that would require the prior approval of the Inspector or Regional Inspectress, may take any of the following forms:

(a) Dismissal.

(b) Removal or discharge.

(c) Reduction in rank.

(d) Diminution in emoluments.

In the present case the Petitioner has been dismissed from service on 9.4.1986 and the District Inspector of Schools accorded approval on 11.8.1989. It is thus apparent that the approval was accorded by the District Inspector of Schools long after the Petitioner was dismissed from service. No prior approval was either sought for by the Management Committee, or granted by the District Inspector of Schools. Therefore, the order of dismissal of the Petitioner from service is liable to be quashed.

Regulations 35, 36 and 37, which are also relevant for the purposes of the present case are being quoted below:

On receipt of a complaint or an adverse report of fact of a serious nature, the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the enquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules), and in the case of the Headmaster or Principal, small sub-Committee, with instructions to submit the report as expeditiously as possible.

(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 enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry 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 witness called as he may wish; provided that the enquiring authority conducting the enquiry 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 enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee.

(2) Clause (1) shall not apply where the person concerned has at seconded, 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.

Soon after the report of the proceedings and recommendation from the inquiring authority are received, the Committee of Management shall after notice to employee meet to consider the report of the proceeding and recommendation made and take decision on the case. The employee shall be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress, as the case may be, for approval of action proposed by it.

A combined reading of the aforesaid regulations shows that a complete procedure has been provided for conducting the disciplinary proceedings against the teachers and other employees of the colleges to whom said regulations apply. In the present case, the procedure prescribed under the said Regulations was not followed. The charge-sheet was given to the Petitioner, but the documents on which the charges were based were not supplied to him. On the other hand the stand taken by the Respondents was that the Petitioner should have filed his explanation/reply and the question of supplying the documents was to be considered by the Committee of Management, subsequently. The Petitioner was thus not afforded an opportunity to defend himself in the disciplinary proceedings. It was also obligatory upon the Respondent No. 3 to afford proper opportunity to the Petitioner to participate in the enquiry conducted by the enquiry officer. There is nothing on record to show that after 20.7.1985 any other date was fixed by the enquiry officer for conducting the enquiry, inspite of the fact that the Petitioner made an application for adjournment of the hearing of the case on the date fixed for enquiry on medical ground. Even the copy of the enquiry report was not supplied to him, nor he was afforded an opportunity to appear before the Committee of Management, as is provided under Regulation 37. Thus, the entire proceedings were conducted in contravention and violation of the Regulations 35, 36 and 37.

Learned counsel for the Petitioner is also right in his submissions that the charges levelled against the Petitioner, which are alleged to have been proved were not of serious nature. The first charge is regarding insubordination. Second charge is regarding absent from duty without leave, and third is regarding shortage of books in the library. In my opinion, on the basis of the findings recorded by the enquiry officer on the aforesaid charges, the Petitioner should not have been dismissed from service if at all a minor punishment of censure or adverse entry would have met the ends of Justice was required.

Learned counsel for the Petitioner is also right In his submissions that the District Inspector of Schools was not Justified in taking note of the facts that the dispute was taken by the Petitioner to Labour Court and that he has applied for payment of money but of General Provident Fund. Said facts were wholly irrelevant for the purposes of the present case and on the basis of the same, no punishment can be awarded to an employee.

In view of the aforesaid facts and discussion, the writ petition is liable to be allowed. The writ petition succeeds and is allowed with cost. The orders dated 14.4.1986 and 11.8.1989 are quashed. Respondents are directed to reinstate the Petitioner forthwith on the post of Clerk-cum-Librarian and treat him in continuous service with all consequential benefits.