Rishikesh Lal Srivastava vs State of U.P.& Ors.

Ashok Bhushan, J.—Heard Sri O.P. Pandey, learned Counsel for the petitioner and learned Standing Counsel.

By this writ petition, the petitioner has prayed for quashing the order dated 28th July, 1998 passed by District Inspector of Schools by which order the District Inspector of Schools has upheld the termination of services of the petitioner and rejected the representation of the petitioner.

The petitioner was appointed as ClassIV employee in Intermediate College Vedupar (Tarya Sujan), District Kushinagar. The Principal of the institution, who is the appointing authority of ClassIV employees, passed an order dismissing the petitioner on 5th July, 1994. The petitioner has earlier filed a writ petition being Writ Petition No. 473 of 1996 praying for a direction to pay salary, in which direction was issued to decide the representation of the petitioner. This Court noted in the order dated 20th January, 1997 while disposing of the writ petition, that no final order has been passed in the proceedings as contended by the petitioner. The District Inspector of Schools thereafter issued letter dated 21st April, 1998 directing payment of salary to the petitioner. A writ petition being Writ Petition No. 18341 of 1998 was filed by the Committee of Management challenging the above letter of the District Inspector of Schools. The writ petition was disposed of directing the District Inspector of Schools to pass a reasoned order specifically considering; (i) whether the services of respondent No. 2 were legally terminated; (ii) whether approval was required for termination; and (iii) whether approval was granted. In pursuance of the order of this Court dated 26th May, 1998, the District Inspector of Schools has passed order dated 28th July, 1998 by which order removal of the petitioner was upheld, the representation of the management was accepted and the earlier letter of the District Inspector of Schools dated 21st April, 1998 was setaside. The order passed by District Inspector of Schools dated 28th July, 1998 has been challenged in this writ petition.

Learned Counsel for the petitioner in support of his submission, contended that one of the questions, which has arisen in the writ petition is that as to whether before dismissal of a ClassIV employee prior approval is required by the District Inspector of Schools. He submits that according to Regulation 31, ChapterIII of U.P. Intermediate Education Act, 1921 such approval is required and the petitioner''s dismissal was made without obtaining prior approval, hence the entire proceeding is void and the petitioner is entitled for continuance in service and all the benefits. Learned Counsel for the petitioner in support of his submissions has placed reliance on a judgment of this Court reported in 1998(2) LBESR 306 (All), Daya Shankar Tewari v. Principal R.D.B.M. Uchchatar Madhyamik Vidyalaya, Neogaon, Mirzapur & Ors. Another judgment relied by the petitioner is reported in (1991)1 UPLBEC 467, Shanker Saran v. Vesli Inter College, Azamgarh & Ors. One Division Bench judgment has also been relied by Counsel for the petitioner, which is reported in 2000(1) LBESR 751 (All), Principal, Rashtriya Inter College, Bali Nichlaul, District Maharajganj & Anr. v. District Inspector of Schools, Maharajganj & Ors. The above Division Bench judgment approved the earlier Single Judge judgment in Daya Shankar Tiwari''s case (supra), which held that prior approval is necessary before dismissing a ClassIV employee. In 2000(2) LBESR 584 (All), Sita Ram v. D.I.O.S. & Ors., another learned Judge took the same view following Daya Shankar Tiwari''s case (supra).

Learned Standing Counsel replying the submissions of Counsel for the petitioner, contended that prior approval is not required and there are another set of judgments taking the view that prior approval is not required. He also referred to provisions of Regulations 31 and 37 of ChapterIII of U.P. Intermediate Education Act, 1921 in support of his submission.

It is necessary to note the relevant provisions of ChapterIII of the U.P. Intermediate Education Act, 1921 before proceeding to consider the issue. Regulation 31 of the U.P. Intermediate Education Act, 1921 provides that before punishing any employee the approval of the Inspector or Regional Inspectress is necessary. The second part of Regulation 31 provides that for holding above punishments (as enumerated in first part of the regulation) Principal or Headmaster is competent. Against the punishment given by competent authority, ClassIV employee can file an appeal before the Committee of Management within one month from information of punishment, which appeal shall be decided within six weeks. Further Regulation 31 requires that against the decision of the Committee of Management, the petitioner can submit a representation to the District Inspector of Schools within one month.

Regulation 36 provides procedure of inquiry, submission of chargesheet and the inquiry. Section 37 provides that after receipt of the inquiry the Committee of Management, after giving notice to the employee, shall consider the question of punishment. There is a proviso to Section 37, which mentions that with regard to ClassIV employees no report shall be sent to the Inspector or Inspectress for approval and the entire proceedings will be done by the appointing authority. For ready reference Regulations 31 and 37 of ChapterII are quoted below :

[�(31) Punishment to employees for which prior sanction from Inspector or Regional Inspectress would be essential may be any one of the following :

(1) Discharge,

(2) Removal or Termination,

(3) Demotion in grade,

(4) Reduction in emoluments.

Principal or Headmaster, would be competent to give above punishment to Fourth class employees. In case of punishment awarded by competent officer, the Fourth class employee may appeal to Management Committee. This appeal must be preferred within one month of the date of intimation of the punishment and Management Committee on receipt of appeal will decide the matter within six weeks. On consideration of all necessary records and after giving an opportunity of hearing to the employee, if he wants to appear before the Management Committees, it will give its decision.

Fourth class employee would also have a right to represent against the decision of the Management Committee on his appeal to the District Inspector of Schools/Regional Inspectress of Girls Schools within one month of the date of intimation of the decision :

Provided that if Management Committee does not give its decision on above appeal within stipulated period of six weeks, the concerned employee after the expiry of above six weeks may represent directly to District Inspector of Schools/Regional Inspectress of Girls School.

District Inspector of Schools/Regional Inspectress of Girls School would give its decision within three months from the date of receipt of the representation and his decision would be final.

Regulations 86 to 98 of this Chapter would apply to presentation, consideration and decision of the representation with necessary changes].

(37) 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.

But, regarding fourth class employees, no report shall be sent to the Inspector/Inspectress for approval. Abovesaid all proceedings in this regard shall be done by appointing authority.�

Learned Single Judge in Daya Shankar Tewari''s case (supra) after referring to Regulation 31 took the view that Regulation 31 requires approval with regard to all employees and there is no reason to presume exclusion of ClassIV employee from applicability of the said regulation. Following was laid down in paragraph 8 :

�(8) While considering the aforesaid contention, I find that sub section (3) of Section 16G of U.P. Intermediate Education Act, 1921 clearly provides for approval of Inspector in case of discharge removal, dismissal from service, reduction in rank, diminution in emoluments and termination of service but this provision only makes reference of Principal, Headmaster and teachers and no categorical reference of ClassIV employee has been made therein. But subsection (1) of Section 16G provides that the condition of service of every person employed in a recognised institution shall be governed by Regulations. Therefore, Statute permits framing of Regulations providing conditions of service every person employed and therefore, this includes ClassIV employees also. Regulation 31 of ChapterIII of the Regulations so framed under the U.P. Intermediate Education Act, 1921, provides for prior approval in case of certain punishments including termination. Regulation 100 of the said Regulation though does not categorically make Regulation 31 applicable in case of ClassIV employees but it also does not categorically exclude Regulation 31 from its applicability to ClassIV employees. Therefore, the only provisions of Regulation 31 indicates its scope of applicability. It is true that first paragraph of Regulation 31 while providing for prior approval in case of some punishment, does not refer to ClassIV employees specially but the said first paragraph providing for prior approval refers to all employees and there is no reason to presume exclusion of ClassIV employees from the applicability of the said Regulation. The subsequent paragraphs in Regulation 31 clearly refer to ClassIV employees.�

Another judgment of learned Single Judge in Shanker Sharan''s case (supra) has laid down in paragraph 13 that according to Regulation 31 of ChapterIII the services of petitioner of that writ petition could not be terminated without prior approval of the District Inspector of Schools. The question again came for consideration before the Division Bench in Principal, Rashtriya Inter College''s case (supra). The Division Bench by the said judgment specifically approved the judgment in Daya Shankar Tiwari''s case (supra) in paragraph 4. The Division Bench in paragraphs 3, 4 and 5 laid down as follows :

�(3) The short question in this case is whether prior approval/permission from the District Inspector of Schools is necessary before dismissing a ClassIV employee.

(4) A learned Single Judge of this Court (Hon''ble Aloke Chakrabarti, J.) in Daya Shanker Tewari v. Principal & Ors., 1998(2) LBESR 306 (All) : 1998(1) ESC 403 (All), has held that such prior approval is necessary. The learned Single Judge has gone into the matter in great detail and has examined the relevant provisions in U.P. Intermediate Education Act as well as Regulations 31 and 100 of the Regulations made under the aforesaid Act.

(5) We are in respectful agreement with the aforesaid decision of the learned Single Judge in Daya Shanker Tewari''s case. The decision of the Full Bench of this Court in Magadh Ram Yadav v. Dy. Director of Education & Ors., 1979 ALJ 1351, which is relied upon by the learned Counsel for the appellant is in our opinion not applicable as it has not considered Regulations 31 and 100 of the U.P. Intermediate Education Act.�

Thus the above cases have clearly taken the view that according to Regulation 31, ChapterIII, the prior approval of the Inspector is required for ClassIV employee also.

On the other hand a Division Bench of this Court (of which I was also a member) in 2006 (3) ESC 1765 (All), Ali Ahmad Ansari v. District Inspector of Schools, Kushinagar & Ors., after considering Regulations 31, 44 and 44A of ChapterIII of the U.P. Intermediate Education Act, 1921 has taken the view that no prior approval is required for awarding any of the punishments to ClassIV employees as mentioned in Regulation 31. It was held by the Division Bench that Regulation 31 did not contemplate approval of Inspector for ClassIV employee. The said decisions rely on second part of Regulation 31. Regulation 31 clearly require that while awarding punishment to the employees prior approval is required but the second part of the regulation clearly provided that for awarding the punishment no report shall be sent to the Inspector for approval and all proceedings in that regard shall be done by the appointing authority. A reading of Regulation 37 alongwith Regulation 31 also indicates the same view. Regulation 37 requires sending of report of the punishing authority to the Inspector for approval and in the same regulation there is a proviso that for awarding above punishment to ClassIV employee no report will be sent for obtaining approval of the District Inspector of Schools. The first set of cases, as noticed above, do not note Regulation 37 while holding that prior approval is required for ClassIV employee also. The Division Bench taking a contrary view while interpreting Regulation 31 held that provisions empowering the Principal to award punishment to Class IV employee is a form of exception to the general rule that approval is required for awarding punishment to all employees. Following was laid down by the Division Bench in paragraphs 8 and 9 :

�(8) Although the opening words of Regulation 31 provides that punishment to employee requires prior sanction from the District Inspector of Schools or Regional Inspectress of Girls Schools but the later part of the said regulation provides that Principal or the Headmaster would be competent to give the above punishment to ClassIV employee. The first part of the said regulation specifically provide that prior sanction from Inspector for awarding punishment to employee is necessary whereas in the next part of the said regulation it is said that for ClassIV employee the Principal or Headmaster would be competent to give punishment. Further with regard to punishment awarded to a Class IV employee, right of appeal has been given to the employee before the Management Committee within one month. The ClassIV employee has also been given right of representation against the decision of the Management Committee on his appeal to the District Inspector of Schools. The proviso to the said regulation further provides that if the Management Committee does not give a decision on the appeal of the employee within six weeks, the employee has right to represent the District Inspector of Schools directly. Had the prior approval for awarding the punishment to the ClassIV employee was also required, there was no object and purpose for giving the right of representation to the same authority. The provisions of seeking prior approval for awarding punishment from the District Inspector of Schools and the provisions for right of representation to the District Inspector of Schools cannot go together. The above intend is further clear from the subsequent regulations of ChapterIII, i.e., Regulations 44 and 44A. Regulation 44 clearly mentions that the Inspector or Regional Inspectress shall for the purpose of proceedings as envisaged in subsection 3(a) of Section 16G of the Act or for adjudication of proposed punishment against any employee of clerical cadre within six weeks of receipt of complete proposal inform the Management about his decision. Regulation 44A further provides that Inspector or Regional Inspectress may accept or reject the punishment proposed in respect of employee of clerical cadre. Had the prior approval of Inspector was also contemplated for ClassIV employees under Regulation 31, the mention of only ClassIII employee in Regulations 44 and 44A would not have been there. Regulations 44 and 44A are extracted below :

�(44) The Inspector or Regional Inspectress shall for the purpose of proceedings as envisaged in subsection 3(a) of Section 16G of the Act or for adjudication of proposed punishment against any employee of clerical cadre within six weeks of receipt of complete proposal inform the Management about his/her decision. If incomplete proposal is received from the Management, the sanctioning authority shall ask to resubmit the complete proposal and period of six weeks as proposed in this regulation would be counted from the date of receipt of complete papers to the sanctioning authority. These papers may be sent either by registered post or by special bearer.

44A.(1) The Inspector or Inspectress may accept or reject the punishment proposed in respect of employees of clerical cadre. He may either extend or reduce it :

Provided that Inspector or Inspectress would give a notice to the concerned employee before issuing an order in respect of punishment to showcause within fifteen days of service of the notice as to why he should not be punished as proposed.

(2) Either party within a period of one month from the date of receipt of information may appeal to the Regional Deputy Director of Education against an order of Inspector or Inspectress and Regional Deputy Director of Education, after any such additional enquiry, if any, which he may deem fit, can affirm or cancel or modify the order, which will be final. On appeal of an employee, decision of Regional Deputy Director of Education would be given within a period of three months.�

(9) The scheme of the Regulations 31 to 45 of Chapter III, thus, do not provide that prior approval is required for awarding punishment of removal or termination of a ClassIV employee from the District Inspector of Schools.�

It is to be noticed that Regulation 37 of ChapterIII was not noticed either in Daya Shankar Tiwari''s case (supra) or by the Division Bench in Principal, Rashtriya Inter College''s case (supra). Thus there are two conflicting views taken by two different Division Benches, as noticed above. In above view of the matter, it is necessary that the above conflict be resolved by a Larger Bench clarifying the true and correct interpretation of ChapterIII, Regulations 31 and 37 of the U.P. Intermediate Education Act, 1921.

In view of the above, following questions are referred to the Larger Bench for consideration :

(i) Whether prior approval for awarding punishment of dismissal to a ClassIV employee is contemplated and required under ChapterIII, Regulation 31 of U.P. Intermediate Education Act, 1921 ?

(ii) Which of the Division Bench judgment, as noticed above, lays down the correct law ?

Let the papers of this writ petition be placed before Hon''ble the Chief Justice for considering constitution of a Larger Bench.

Refer to Larger Bench.