Allahabad High Court
C/M Jai Jawan Jai Kishan Inter College vs State Of U.P. And 4 Others on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2772
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on -08.07.2019 Delivered on -19.08.2019 Case :- WRIT - A No. - 9644 of 2019 Petitioner :- C/M Jai Jawan Jai Kishan Inter College respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Indra Raj Singh,Nipun Singh Counsel for respondent :- C.S.C.,Lakshmi Kant Trigunait,Sanjay Kumar Hon'ble Saurabh Shyam Shamshery,J.
1. Respondent No.4 (Krishna Pal Singh), who was earlier working as Assistant Teacher at one Krishna Vidya Mandir High School, Mundet Kalan at Shamli, U.P. since 1985, joined the petitioner college (Jai Jawan Jai Kishan Inter College Mundet Kalan, Shamli, U.P.) in the year 2011 as Assistant Teacher.
2. Petitioner college is duly recognized under the U.P. Intermediate Education Act, 1921, however receiving grant in aid only up to Junior High School.
3. It appears that petitioner Management sought service book of the respondent No.4 of his service rendered in college, prior to his joining to petitioner's college and for that certain communication were also sent to respondent No.4 in the year 2017 and 2018. Some communication was also issued by respondent No.1 (District Inspector of Schools, Shamli) to respondent No.4 to the same effect.
4. Eventually, a show cause notice dated 08.10.2018 was issued to respondent No.4 by the petitioner management to show cause why not disciplinary as well as punitive action be taken against him for not supplying the documents, suppressing the facts and allegations of forgery were also levelled. Later on allegations of financial irregularities were also raised against the respondent No.4.
5. Committee of Management of petitioner-college passed a resolution dated 20.12.2018 for suspension of respondent No.4 on the ground of committing various serious irregularities and consequently suspension order dated 01.01.2009 was issued to the respondent No.4. On 14.01.2009 Inquiry Officer also issued charge sheet levelling six serious charges pertaining to concealment, playing fraud to claim promotional pay scale, preparation of fabricated documents etc.
6. Respondent No.4 without cooperating with the disciplinary proceedings challenged the suspension order dated 01.01.2019 in Writ A No. 3445 of 2019 (Krishna Pal Singh Vs. State of U.P. and Others) before this Court, alleging that suspension order has been passed when he was due to retire on 31.03.2019 and the allegations were of the alleged incidents which were of 15 years prior to suspension order.
7. The above-mentioned writ petition was disposed of vide order dated 05.03.2019. Operative portion of the order is mentioned herein after:-
"Petitioner is an Assistant Teacher in 'Jai Jawan Jai Kishan Inter College, Mundet Kalan, District Shamli'. The institution was initially established as a Junior High School but has subsequently been upgraded to Inter mediate level under Section 7-A(a) of the 'U.P. Intermediate Education Act, 1921'. However, payment of salary is being released to employees of the institution under the provisions of 'Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978'.
Petitioner is aggrieved by an order of suspension passed against him by the Manager of the institution on the ground that he is due to retire on 31.3.2019 and that disciplinary proceedings have been initiated against him with a malafide intention. It is also stated that the charges levelled against the petitioner otherwise relates to a period which is more than 15 years prior to initiation of disciplinary proceedings.
Learned Standing Counsel submits that all such issues can be examined by the Inspector concerned, at the first instance.
In view of the fact that the institution stands upgraded under Section 7-A (a) of the Act of 1921, the provisions of the Act of 1921 would be attracted. In such circumstances, the order of suspension would continue to exist only for a period of 60 days from the date of passing of the resolution by the Committee of Management, unless it is approved under Section 16(G) 7 of the Act of 1921.
In the facts and circumstances, noticed above, it would be appropriate to dispose of this petition, requiring the District Inspector of Schools, Shamli to examine the resolution of the Committee of Management placing the petitioner under suspension, after affording an opportunity of hearing to the petitioner as also the Committee of Management of the institution, in terms of Section 16(G) (7) of the Act of 1921. An order, in that regard, would be passed by the competent authority within a period of six weeks from the date of presentation of certified copy of this order. The continuance of suspension would abide by the order, directed to be passed by the Inspector concerned."
8. Subsequently, the Inquiry Officer submitted Inquiry Report on 17.03.2019, wherein respondent No.4 was found guilty on all charges and recommendation was made for terminating respondent No.4 from services. Further, notices were also issued to respondent No.4 to present his case in person regarding Inquiry Report submitted by Inquiry Officer.
9. Committee of Management of petitioner - College adopted resolution dated 25.03.2019 to terminate the services of respondent No.4 and forwarded to the District Inspector of Schools, Shamli as provided under the U.P. Intermediate Education Act 1921 (hereinafter referred as Act of 1921) as well as the U.P. Secondary Education Service Selection Board Act 1982 (hereinafter referred as Act of 1982).
10. Meanwhile, respondent No.4 got retired on 31.03.2019.
11. District Inspector of Schools, Shamli in pursuance of order dated 05.03.2019 passed in Writ A No. 3445 of 2019 initiate the proceedings and called Management as well as respondent No.4 for oral hearing. District Inspector of School after considering entire material on record and took decision dated 04.05.2019 that as the respondent No.4 has retired no order of suspension could be continued. Relevant part of the order mentioned hereinafter:-
"प्रबंधक द्वारा श्री कृष्णपाल सिंह सहायक अध्यापक को निलंबित करने तथा उनके विरुद्ध की जा रही अनुशासनात्मक कार्यवाही को गलत मानते हुए माननीय उच्च न्यायालय इलाहबाद में योजित रिट याचिका संख्या 5551/२००० कमेटी ऑफ जवाहर लाल नेहरू इंटर कालेज बनाम जिला विद्यालय निरीक्षक व अन्य में पारित आदेश दिनांक 17-4-2019 Shri Lalji Pandaey, learned counsel for petitioners the outset states that punishment proposed by Management was not approved by District Inspector of School and hence no punishment could be imposed since in the meantime respondent 4 has retired. The order of suspension, therefore, has lost its effocacy and for all practical purpose, this writ petition has rendered infructuous. के समादर में श्री कृष्णपाल सिंह सहायक अध्यापक जय जवान जय किसान इंटर कालेज मुण्डेड कला शामली का अवशेष वेतन तथा सेवानिवृत्ति भुगतान नियमानुसार किया जाना चाहिए।"
12. Petitioner's Management of College has now challenged the decision dated 04.05.2019 by way of present writ petition.
13. With the consent of parties, this writ petition is disposed of finally at the stage of admission only.
14. Shri Indra Raj Singh, learned counsel appearing on behalf of the petitioner (Management of College) submitted that respondent No.4 on one hand not cooperated with the Inquiry Officer and on the other hand challenged the order of suspension concealing certain material facts. Order of termination was passed before the respondent No.4 retired and send for approval to D.I.O.S/Board. Therefore, disciplinary proceeding had already been concluded before retirement of respondent No.4. He, further submitted that as there are serious charges which have been proved against the respondent No.4 therefore, event of retirement has no consequence. Lastly, it has been submitted that D.I.O.S. has while considering the issue of suspension has passed the order on the issue of termination also, even without considering the Inquiry Report. Therefore, the impugned order is bad in eye of law.
15. Shri R.K. Ojha, Senior Advocate appearing on behalf of respondent No.2 has relied upon the judgment passed by this Court, in Ravindra Singh Rathore Vs. District Inspector of Schools and Others 2004 AWC (1) 310, to submit that once the respondent No.4 has retired before the D.I.O.S./Board could consider the matter for granting approval as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued. For reference, para 30, 31 and 32 of Ravindra Singh Rathore (supra) are mentioned hereinafter:-
"30. Under Section 21 of the Act of 1982 the Board has to examine the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal or not. The Hon'ble Supreme Court in the case of Committee of Management Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and Anr. v. U.P. Secondary Education Service Commission and others, 1995 (Supp) 3 SCC 244, in paragraph 4 of the judgment, has held as follows :
"............. We have also noticed Section 21 of the Act to which our attention was particularly drawn. We are of the view that the High Court has fallen in error in holding that the Inquiry was vitiated because the charge-sheet was not framed by the Inquiry committee but by the committee of management. The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval of the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal. It must be remembered that the commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record..................."
31. In the case of Punjab National Bank and Ors. v. Kunj Behari Misra, (1998) 7 SCC 84, the Hon'ble Supreme Court has held that the disciplinary proceedings breaks into two stages. The first stage commences when the disciplinary authority arrives at its conclusion on the basis of the evidence, the Inquiry officer's report and the delinquent employee replied to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. Since under Section 21of the Act of 1982, it has been provided that if the management dismisses any teacher or removes him from service or serves on him any notice of removal from service or reduces him in rank or reduces his emoluments or withholds his increments for any period, whether temporarily or permanently, except the prior approval of the Board, such thing done without such prior approval shall be void.
32. Thus, it can safely be said that till such time the Board after considering the relevant material and going into the merits of the charges either approves or disapproves the proposed order of punishment, the disciplinary proceedings are continuing. Since Sri Ravindra Singh Rathore has retired before the Board had considered the matter for according approval, as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued."
(emphasis supplied)
16. Learned Counsel for other respondents would support the impugned order.
17. Certain provisions which are relevant to decide the present writ petition are as follows :-
"Section 16(G) 7 of the 1921 Act :-
(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force more than sixty days form the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court."
Section 21 of the 1982 Act:-
"21. Restriction on dismissal etc. of teachers. - The Management shall not, except with the prior approval of the] [Board] dismiss any teacher or remove him from service or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without prior approval shall be void."
18. There is no dispute that the petitioner Management had approved the Report of Inquiry Officer on 25.03.2019 and submitted to respondent No.2 on 26.03.2019 for approval. It is also not in dispute that respondent No.3 got retired on 31.03.2019, meanwhile resolution adopted by the Committee of Management regarding punishment of respondent No.4 was also sent to DIOS and on 28.03.2019 finally impugned order was passed on 04.05.2019. It is also admitted position that before the retirement, Board has not considered the resolution of Management of School on the punishment of Respondent No.4.
19. In this background, issue which requires consideration by this Court in the present matter is that whether disciplinary proceedings would continue even after retirement of the employee even though proposal of punishment was sent before retirement and approval was pending before D.I.O.S./Board on the date when employee got retired?
20. In this regard, Para 17, 18, 19 and 20 of judgment passed by co-ordinate Bench of this Court in the matter of Iliyas vs. State of U.P. and others reported at 2012 SCC Online All 1011, is referred and mentioned hereinafter :-
"17. Needless to mention that there is no provision under in the U.P. Intermediate Education Act, 1921 or the Regulation framed thereunder which deals with issue that if the person is placed under suspension and during the period of suspension retired from service then a disciplinary proceeding can either be instituted or conducted after retirement.
18. Hon'ble the Apex Court in the case of Bhagirath Jena Vs. Board of Directors, O.S.F.S. And others (1999) 3 SCC 666 in para Nos. 6 and 7 held as under:-
"Para No. 6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation.
Para No. 7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95, there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
19. The abovesaid view was further reiterated by Hon'ble the Supreme Court in the case of State Bank of India and others Vs. J.J. Paul, (1999) 4 SCC 759.
20. Accordingly, in absence any provision in the Act, 1921 Rule or Regulation framed there in which governs the field for initiating or conducting the disciplinary proceedings after retirement of Teacher/Principal of the Intermediate Institution the competent/concerned authority after the retirement of a Teacher/principal cannot proceed to initiate or conduct the disciplinary proceedings after his retirement and the entire disciplinary proceedings if initiated would laps with the retirement.
21. For the foregoing reasons, once there is no specific provisions in the in the U.P. Intermediate Education Act, 1921 or Regulation framed thereunder for initiation of a disciplinary proceeding or continuing the disciplinary proceeding against petitioner who placed under suspension after his retirement then the action on the part of official respondents to withhold his post retiral dues is an action which is arbitrary in nature, thus, violative of Article 14 of the Constitution of India as well as principles of natural justice (See. Rajesh Kumar Saxena Vs. Bharat Sanchar Nigam Ltd. and others, 2007 112 FLR 784 (Alld)."
(emphasis supplied)
21. From above mentioned legal position it is clear that there is no provision in U.P. Intermediate Education Act, 1921 which provides that disciplinary proceedings could be continued, even after delinquent was retired. Sending the resolution of termination to D.I.O.S./Board even before retirement is of no consequence as Board has to grant approval on the issue of removal of petitioner under Section 21 of Act of 1982 and admittedly said decision was not taken before the Respondent No.4 got retired therefore disciplinary inquiry was not completed before the respondent No.4 got retired. Therefore, there is no illegality in the impugned order which states that no punishment could be imposed to the respondent No.4 since in the meantime he was retired. Judgment passed in Ravindra Singh Rathore (supra) and Iliyas (supra) are completely applicable in the facts and circumstances of the present case.
22. Accordingly, this writ petition is dismissed.
Order Date :- 19.08.2019 A. Dewal (Saurabh Shyam Shamshery, J.)