Awadhesh Singh vs District Inspector of Schools and Another

B.S. Chauhan, J.—The instant petition has been filed by the Petitioner challenging the order of termination of his services by the Management Committee, Respondent No. 2, vide order dated 10th September, 1991 (Annexure 7 to the writ petition).

The factual gamut of the case reveals that the Petitioner was appointed as a Daftari, a Class IV employee, in the Bhagwan Parashu Ram Dham Uchhatar Madhyamik Vidyalaya, Sehnag, Selempur, District Deoria on 1.7.1976. The Petitioner was further promoted to Class III employee with effect from 25.10.1983 (Annexure 2 to the writ petition). The Petitioner had fallen ill and was sanctioned Medical Leave from 5.9.1991 to 7.9.1991 (Annexure 5 to the writ petition). He could not recover and applied for extension of Medical Leave and reported on duty on 10.9.1991 when the Petitioner was served with the aforesaid termination order. The termination order reads as under:

Your leave application was sanctioned for 5.9.1991 to 7.9.1991. The application for extension of Medical leave for 8.9.1991 to 9.9.1991 was received on 8.9.1991 but the same was not accepted by the Management Committee and in spite of the rejection of the said application you did not report for duty. Your services are now no more required. Under these circumstances, it is not possible to utilise your services as a clerk and pay your salary.

The Petitioner filed this writ petition and this Court, vide its order dated 3.10.1991 stayed the operation of the aforesaid impugned order dated 10.9.1991.

The Management Committee has filed the counter-affidavit and the relevant points to be noted in that counter-affidavit were that the Respondent No. 2 did not deny the specific allegation of the Petitioner that refusal of the leave was not communicated to him.

Heard Sri T. N. Tewari, learned Counsel for the Petitioner, Sri S.N. Shukla, learned Counsel for Respondent/applicant and the learned standing counsel for Respondent No. 1.

The contentions of Sri Tewari are two-fold:

(i) That the Management was not competent to terminate the services of the Petitioner without seeking prior approval of the District Inspector of Schools.

(ii) That the punishment of termination of services was not proportionate to the wrong committed by the Petitioner.

Regulation 31 framed under the provision of Section 16G of the U.P. Intermediate Education Act, 1921 reads as under:

Punishment of an employee 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.

The aforesaid Regulation 31 was amended with effect from 10.3.1975 and It also brought the clerks and Class IV employees within the ambit of Regulation 31 If they fulfil the other conditions mentioned in Regulation 100. The compliance of the said provision is mandatory in case the punishment is suggested to be taken as has been provided under Regulation 36. The provisions of Regulation 36 (1) reads as under:

The grounds on which it is proposed to take action 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 witnesses 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 upon the employee.

Thus, Sri T. N. Tewari has articulated by argued that in view of the provisions of law It was mandatory on the part of the Management Committee to give a strict adherence to the aforesaid Regulations. Sri Tewari has placed reliance upon the judgment of this Court delivered in the case of Brij Raj Singh v. District Inspector of Schools and Ors. 1988 UPLBEC 123 where a Division Bench of this Court has held that if a termination order is passed without complying with the requirement of Regulation 36, the termination order is vitiated. The aforesaid judgment was delivered by this Court after examining the scheme of the Regulation and particularly Regulations 31, 35, 36 and 100 of Chapter III of the said Regulations. In the case of Bhopal Singh Verma v. Deputy Director of Education and Ors. 1983 UPLBEC 597, this Court has taken the view that prior approval of District Inspector of Schools is necessary before Imposing the punishment upon an employee including a clerk of an Institute. Similarly, in the case of Bali Ram Singh and Anr. v. Committee of Management, Amar Bir Inter College, Dhanpur, Varanasi and Ors. 1993 (3) ESC 57, the learned Single Judge has observed as under:

There is no provision either in the Act or in the Regulations which expressly requires approval by District Inspector of Schools in respect of suspension of a clerk--Regulation 100 only requires approval of District Inspector of Schools in case of termination of service of a clerk and not in case of suspension of a clerk.

The aforesaid judgment of the learned Single Judge was examined by the Division Bench in the aforesaid case of the Bali Ram Singh (supra), 1993 (2) ESC 305 and took the same view.

In the instant case, as is evident from the impugned order dated 10.9.1991 (Annexure 7 to the writ petition) that neither a show cause notice was given to the Petitioner nor any enquiry was held and the impugned termination order was passed in contravention of the provisions of Regulation 36. Moreover, it also appears from the authorities referred to above that in case of termination of a Class III or Class IV employee, the prior approval of the District Inspector of Schools is necessary and the compliance of the provisions of Regulation 31 are necessary or otherwise it would violate the mandate of the said Regulation.

On the second issue, also I am of the considered opinion that the punishment of termination of services of the Petitioner for abstention for two days is totally improportional and cannot sustain in the eyes of law.

In view of the above, the writ petition must succeed. But it may also be pertinent to mention here that another writ petition had been heard along with this writ petition and had been disposed of by judgment and order dated 7.12.1995 in writ petition No. 16902 of 1992 wherein the Petitioner was also arrayed as Petitioner No. 38 and the writ petition had been dismissed holding that the Petitioners therein were not entitled to get their salaries under the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.

Thus, the impugned order dated 10.9.1991 (Annexure 7 to the writ petition) is quashed. The writ petition is allowed but it will be subject to the decision of the judgment and order dated 7.12.1995 passed in writ petition No. 16902 of 1992.

With these observation the writ petition is disposed of.