Allahabad High Court
Maya Rani Gupta vs State Of U.P. & Others on 27 January, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
1
AFR
Court No.18
CIVIL MISC. WRIT PETITION NO.71055 OF 2009
Maya Rani Gupta
Vs.
State of U.P. & Ors.
Hon'ble Sudhir Agarwal, J.
1. With the consent of learned counsel for the parties, this writ petition is being decided finally at this stage under the Rules of the Court.
2. The petitioner is aggrieved by the order dated 05.12.2009, Annexure - 12 to the writ petition, passed by the District Basic Education Officer, Allahabad (hereinafter referred to as "B.S.A.") imposing major penalty of punishment reverting him from the post of Headmistress to Assistant Teacher and posting her at Purva Madhyamik Vidyalaya Puraini, Vikas Khand Karchana, District Allahabad.
3. Before coming to the issues raised in the writ petition, it would be appropriate to mention, in brief, the facts giving rise to the present dispute.
4. The petitioner was working as Headmistress in Junior High School Kechuha, Block Karchana, District Allahabad. She was placed under suspension on 17th January, 2009 by respondent No.2 on certain allegations constituting misconduct. One Sri Ramesh Chandra Mishra, Deputy Basic Education Officer, Allahabad was appointed as Enquiry Officer. A charge sheet (Annexure -2 to the writ petition) was issued to the petitioner on 9th February, 2009 by the Enquiry Officer containing seven charges directing the petitioner to submit her reply within a week. The petitioner submitted a detailed reply dated 12.02.2009 denying all the charges and requesting for her exoneration and reinstatement, a copy whereof has been placed on record as Annexure - 3 to the writ petition. It appears that thereafter nothing proceeded in the disciplinary enquiry.
5. Since the petitioner continued to remain under suspension, she submitted a representation dated 15th June, 2009 and endorsed the same to the B.S.A., which also contain her reply to various charges. She also submitted that the disciplinary enquiry has not proceeded further 2 after she submitted her reply hence either the enquiry be conducted through the District Magistrate, Allahabad or CID or the petitioner may be exonerated and reinstated.
6. Having failed to receive any response, the petitioner filed writ petition No.43616 of 2009 challenging the order of suspension contending that continued suspension for last more than 18 months without completion of enquiry amounts to harassment and victimization of the petitioner. The aforesaid writ petition was disposed of vide judgment and order dated 28th August, 2009 which is as under:
"Heard learned counsel for the petitioner and learned counsel for the respondents.
Petitioner is aggrieved by an order of suspension dated 17th January, 2009 issued by the Basic Shiksha Adhikari pending enquiry into the charges noticed in the order itself. The order is being challenged on the ground that charges are not made out and further on the ground that more than 8 months have elapsed, the department enquiry has not been completed, despite submission of the reply to the charge-sheet served upon him. So far as the first ground raised on behalf of the petitioner is concerned, this Court may only record that the issue as to whether the charges have been made out or not will be subject matter of departmental enquiry and at that stage, petitioner will be at liberty to establish his innocence.
So far as the second plea raised on behalf of the petitioner is concerned, this Court may record that an employee cannot be kept under suspension for indefinite period. It is therefore, provided that the departmental enquiry initiated against the petitioner be concluded and brought to its logical end, in accordance with law, by means of a reasoned speaking order, preferably within two months from the date a certified copy of this order is filed before the disciplinary authority.
With the aforesaid observations/directions the present writ petition is disposed of finally."
7. The copy of the said judgment claims to have been communicated to B.S.A. by the petitioner along with her letter dated 7th September, 2009 through registered post receipt dated 7th September, 2009, a photocopy whereof is on record at page 72 of the writ petition.
8. It is contended by the petitioner that nothing further happened thereafter, but all of a sudden the petitioner received the impugned order dated 05.12.2009 passed by the respondent No.2, abruptly and in a hasty manner, without giving any opportunity of defence and without conducting oral enquiry.
39. It is contended that only in order to escape from the clutches of the contempt proceedings before this Court since the respondents had not completed enquiry proceedings within two months, as directed by this Court, the respondent No.2 i.e. B.S.A. has passed the impugned order in a perfunctory manner though no oral enquiry whatsoever has ever been conducted against the petitioner. The learned counsel for the petitioner submits that the entire exercise and the impugned order is nothing but a farce and only to cover up lapses on the part of the respondents in continued harassment of the petitioner by placing her under suspension in January, 2009. Due to non proceeding of departmental enquiry, since she approached this Court, just to cover up the matter, the impugned order has been passed though the procedure of enquiry, prescribed in law, has been given a complete go by. It is contended that the direction of this Court was for completion and conclusion of the departmental enquiry and to pass a reasoned speaking order is not such as to entitle the respondent No.2 to pass a perfunctory illegal order without holding any enquiry whatsoever. It only to save himself from the complaint of non compliance of this Court's order, respondent no.2, in a hasty manner, has passed the impugned order.
10. Since it was a local matter, the respondent No.1 was required to present the record of the enquiry, if any, before this Court and also to file a counter affidavit by order dated 4th January, 2010.
11. An affidavit, termed as short counter affidavit, has been filed by respondent No.2 on 7th January 2010 stating that the judgment dated 28th August, 2009 was received in his office on 25th September, 2009. Thereafter, the respondent No.2 sent a letter dated 26th October, 2009 to the Enquiry Officer directing him to complete enquiry and submit report at the earliest. Pursuant thereto, the Enquiry Officer submitted report on 17.11.2009, which was communicated to the petitioner along with letter dated 25.11.2009 requiring her to submit comments, if any. It is said that the letter dated 25.11.2009 was sent to Assistant Basic Education Officer, Karchana with the direction to serve the same upon the petitioner and she was required to submit her reply by 2nd December, 2009. The Assistant Basic Education Officer, Karchana, however, submitted a report dated 26.11.2009 that the petitioner has refused to accept the 4 letter dated 25.11.2009 and also the enquiry report. He submitted another report on 27.11.2009 that the petitioner was further attempted to be served with the letter dated 25.11.2009, which she refused to accept. Thereafter a notice was published in the daily newspaper 'Dainik Jagran' on 01.12.2009 directing the petitioner to submit reply to the enquiry report by 05.12.2009 failing which it would be deemed that she did not want to submit any reply and the matter shall be proceeded accordingly. A similar notice was also published in daily newspaper 'United Bharat' and daily newspaper 'Amar Ujala' on 01.12.2009. Thereafter on 05.12.2009 the impugned order was passed by the respondent No.2. It is said that there is no deliberate delay on the part of the respondent No.2 in compliance of the judgment dated 28th August, 2009 of the Court and it was the petitioner, on the contrary, who did not cooperate with the proceedings hence the writ petition deserve to be dismissed.
12. On behalf of the respondent No.2, in order to show that the judgment of this Court was received in his office on 25th September, 2009, the relevant Daak receipt register was required to be produced before the Court. As also since he took more than a month in issuing letter to the enquiry officer to complete enquiry though according to his own admission he received the judgment on 25th September, 2009, why such delay took place, explaining the same, another affidavit sworn on 27th January, 2010 has been filed.
13. The petitioner's counsel made a statement that he do not propose to file any rejoinder affidavit since he submit that whatever he has contended, stands fortified from the two affidavits filed by the respondent no.2 and hence as jointly requested, the Court proceeded to decide the matter.
14. I have heard learned counsel for the parties and perused the record.
15. It is virtually admitted by the respondents that after receipt of the reply dated 13th February, 2009 from the petitioner denying all the charges levelled in the charge sheet, no further oral enquiry was held at all. The only sort of enquiry said to have been made in this case is that the enquiry officer after receiving the letter dated 26th October, 2009 of the respondent No.2 claims to have visited the spot i.e. Purva 5 Madhyamik Vidyalaya Kechuha, Block Karchana, District Allahabad on 09.11.2009, recorded statements of some local residents, students etc. and thereafter wrote his report on the same day which is running in about five pages. However, the said report sent by him on 17.11.2009 to the respondent No.2, which was received in the office of respondent No.2 on the same day. The respondent No.2 on 25.11.2009 sent a letter addressed to the petitioner but instead of sending it to the petitioner by registered post, it appears to have been sent to Assistant Basic Education Officer, Karchana with the direction to serve the same upon the petitioner and submit acknowledgement within two days.
16. The reason as to why the said letter along with enquiry report was not sent through registered post could not be given either by the learned Standing Counsel or by the respondent No.2 who was also present in person before this Court when the matter was heard. There is an endorsement on Annexure -4 to the short counter affidavit, given by Assistant Basic Education Officer, Karchana that the petitioner refused to accept the enquiry report and letter on 26.11.2009 and similar report is contained as Annexure 5 dated 27.11.2009. The publication of the notice in three newspapers on 1st December, 2009 has also been placed on record collectively as Annexure -6 to the short counter affidavit. From the said notice also it appears that the petitioner was directed to submit her reply, if any, by 05.12.2009 whereafter it would be deemed that she does not propose to give any reply and the decision would be taken accordingly.
17. Besides the legal infirmity committed by the respondents, it appears that everything is not fair and impartial in the case in hand and the conduct of the respondent no.4 is not above board. In fact, this Court is constrained to observe that the record shows that things, that has taken place, justify this Court to record a finding that the respondents have acted in a manner which can be termed as "malice in law" and this vitiates the entire proceedings. No reason or explanation could be given by the respondents as to why after issuing charge sheet to the petitioner as long back as 9th February, 2009, which was replied by the petitioner on 12th February, 2009, no oral enquiry was held at all.
18. It is in these circumstances when the petitioner after having failed 6 to receive any response from the respondents for expediting disciplinary proceedings, approached this Court whereat this Court directed the respondents to complete the proceedings and conclude it within two months. The judgment of this Court is dated 28th August, 2009. 29th and 30th August, 2009 being Saturday and Sunday, the petitioner appears to have applied for certified copy thereof on 31st August, 2009 and after receiving the same, sent it to respondent No.2 as well as the Enquiry Officer by registered post receipt dated 7th September, 2009. Though the respondent No.2 in his affidavit at para 5 has asserted that the judgment dated 28th August, 2009 of this Court was received on 25th September, 2009, but Annexure 1 to the short counter affidavit contains four signatures and date of 25th September, 2009 is mentioned only below one signature. Even this date of 25th September, 2009 has some overwriting. Nothing has been said as to when the copy of the judgment, sent to the Enquiry Officer was received by him and if he received it earlier, why he did not proceed in the matter immediately thereafter.
19. Assuming that the judgment dated 28th August, 2009 was received in the office of respondent No.2 on 25th September, 2009 even then he did not take any action in the matter immediately but it took more than a month to him in issuing letter dated 26th October, 2009 directing the Enquiry Officer to conclude enquiry and submit report. No reason has been assigned by respondent No.2 as to why he kept silent in the matter for more than a month when this Court had given only two months' time to complete the proceedings.
20. The enquiry officer adopted another strange kind of procedure on his part. He claims to have issued a letter dated 7th November, 2009 directing the petitioner to be present at Purva Madhyamik Vidyala, Kechuha at 11:00 on 9.11.2009, a copy whereof has been placed on record at page 75 of the short counter affidavit, but it contains an endorsement that the petitioner refused to accept the said letter on 07.11.2009. There is nothing to show as to why the said letter was not sent by registered post to the petitioner. The enquiry officer visited the aforesaid school on 09.11.2009 and claims to have recorded the statements of several teachers, students, Gram Pradhan and the residents of the said village. He has also recorded the statements of 7 some Shiksha Mitra, Primary Vidyalaya, Kechuha, Karchana namely Renu Dwivedi, Rushda Nahid Pradhanadhyapak, Purva Madhyamik Vidyalaya Khepsa, Karchana, Allahabad etc. without showing as to how and why those persons were all available to him in that institution on 09.11.2009 though were posted elsewhere, and whether he separately issued notices to them to be present at Purva Madhyamic Vidyalaya, Kechuha on 09.11.2009. It is also not clear whether the petitioner was also informed that the said evidence would be recorded on the said date. The petitioner in fact deny any of such information. The Enquiry Officer, in the case in hand, concluded evidence on his own without either informing the petitioner or confronting her at any stage. The kind of departmental oral enquiry conducted by the respondents, in the case in hand, has neither been heard nor is recognized in service jurisprudence. If the petitioner was not cooperating with the enquiry, why the letters addressed to the petitioner were not sent by registered post is also beyond comprehension since no explanation has come forward from the respondents. There is one more interesting thing that the respondent No.2 has tried to explain his conduct showing his bona fide by publication of alleged letter dated 30th November, 2009 in various newspapers, photocopies whereof have collectively been filed as Annexure 6, but it is interesting to note that on page 82, the notice, which has been published in daily newspaper "United Bharat" mention the date of the petitioner's letter as 19.11.2009 though the notice itself refers to the respondent No.2's letter dated 25.11.2009.
21. The next thing is that the petitioner, by notice dated 30th November, 2009 published in the newspaper, was supposed to submit her reply by 05.12.2009 but the impugned order has been passed on the same date i.e. 05.12.2009 though the petitioner was entitled to submit her reply till the end of the working hours of the office on 05.12.2009. All this discussion disclose the fact that none of these letters have been sent by the respondents by registered post, which is a well recognized mode of communication particularly when an incumbent is claimed to be guilty of non cooperation with the authorities in the matter of disciplinary proceedings.
22. There is also another aspect to be considered that after recording 8 the statements of so many persons on 09.11.2009, and that too ex parte on his own, the Enquiry Officer wrote enquiry report on 09.11.2009, as is evident from the date mentioned under his signature on the enquiry report on page 19 to the short counter affidavit, but he sent the said report after 10 days i.e. by letter dated 17.11.2009 and kept the report with him for 10 days. As admitted by the respondent No.2, he also sent copy of the enquiry report to the petitioner along with his letter dated 25.11.2009 and that too not by registered post but in a manner, the correctness whereof is really not above suspicion.
23. Normally, this Court does not scrutinize the evidence and documents since the scope of judicial review is confined normally in respect to the process of decision making and if there is any illegality or statutory violation therein, this Court interfere but where the things have gone to the extent of malicious activities, this Court sometimes proceed further to scrutinize other material also. Here this Court is inclined to notice some of the alleged statements, which have been noted by the enquiry officer in order to give weight to his report also needs to be examined. On page 51 of the short counter affidavit, statement of one Raj Narain Koul S/o Sri Arun Ram Kaul, resident of village Kechuha has been appended stating that the petitioner normally remain absent, used to visit school for one or two days though mention attendance for entire week and in the last 10 years has never attended the school in time on a single day. Again on page 52 another person namely Gyanesh Kumar resident of Village Kechuha has stated that the petitioner has never come to the school in time and used to stay only 11:00 to 11:30 A.M.. On page 53 is the statement of Sri Uma Kant Tiwari, former Pradhan of Gram Panchayat, Bhadwera, Tehsil Karchana, District Allahabad who was elected in 2000 and he has also said that the petitioner used to come from Allahabad for one or two days in a week to mark her attendance for entire week. Sri Tiwari used to inspect the school occasionally and mark absence. A Shiksha Mitra Ranu Dwivedi working at Primary School Kechuha, Karchana in her statement, which is on page 52 to the short counter affidavit, has said that all the charges against the petitioner are correct and similar statement has been given by the Pradhan Adhyapak, Purva Madhyamic Vidyalaya, Vikas Khand Khepsa, 9 Karchana, Allahabad who claims to have worked as Assistant Teacher at Purva Madhyamik Vidyalaya Kechua till 30.10.2009. This Court enquired from the learned Standing Counsel as to what was the source of information about the fact that the petitioner used to mark attendance for the entire week to the villagers residing in the village Kechuha but otherwise have no access to the record of the school and similarly how a Shiksha Mitra working in a different school could have make a statement of functioning of the petitioner in a different school but the same could not be explained by him.
24. I have mentioned this fact only to fortify my conclusion that the proceedings are malicious in the case in hand and the respondents have tried to complete mere paper work instead of holding enquiry against the petitioner in accordance with the principles of natural justice and thereafter to pass a proper order. In order to explain undue delay in issuing letter dated 26th October, 2009, in the affidavit dated 27th January, 2010 the respondent No.2 has referred to certain sports proceedings took place from 5th to 7th October, 2009, the meeting conducted by the Principal Secretary on 16th October, 2009 at Lucknow, the Depawali holidays on 17 to 19th November, 2009 etc. It is no doubt true that a BSA has to attend several duties at the same time but that by itself does not mean that he did not discharge any official duty in his office during the days when he also attended some other proceedings or events in the city. Besides, the affidavit throughout is conspicuously silent about the fact as to what happened before the Enquiry Officer and when received the copy of the said judgment sent by the petitioner on 7th September, 2009, had the enquiry officer on his own did not proceed immediately thereafter to conclude enquiry after giving effective opportunity of hearing to the petitioner according to the well known procedure of oral enquiry.
25. Coming to the patent defect in the decision making process a perusal of the enquiry report shows that no evidence, documentary or oral, sought to be relied by the department were mentioned therein. It is not the case of the respondents that at any point of time the petitioner was apprised of the evidence, if any, to be relied against her so as to prepare her defence accordingly. However, evidence collected by the Enquiry Officer as admitted by the respondents on 07.11.2009 was also 10 never conveyed to the petitioner and it was not collected in her presence. Assuming that the petitioner did not cooperate on 09.11.2009, it was incumbent upon the enquiry officer to furnish the entire evidence which he collected ex parte on 09.11.2009 to the petitioner and thereafter to afford her opportunity to place her defence and if she so desire to make available those persons whose statement was recorded ex parte by the enquiry officer, to be cross examined by the petitioner. In fact, at no point of time any date for oral enquiry was ever fixed by the enquiry officer may be either because he is ignorant of the procedure to be followed in a departmental enquiry or otherwise but the fact remains that the entire enquiry proceedings culminated in the impugned order of reversion are in utter violation of principles of natural justice and oral enquiry before imposing a major penalty is mandatory.
26. The procedure for disciplinary enquiry is contained in Rule 16 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, hereinafter referred to as '1978 Rules' which reads as under:
16.Disciplinary proceedings.- In respect of disciplinary proceedings and the punishment to be inflicted in such proceedings, a Headmaster or assistant teacher, as the case may be, of a recognised school shall be governed by the rules applicable to a Headmaster and assistant teacher of a Basic School established or maintained by the Board.
27. For the headmistress and teachers and other staff of the Basic Schools established by the Board, the procedure for departmental enquiry contained in U.P. Basic Education Staff Rules, 1973, hereinafter referred to as "1973 Rules", and Rule 5 sub rule (3) thereof reads as under:
"The procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible, be followed in disciplinary proceedings, appeals and representations under these rules."
28. In view of the above, the procedure for departmental enquiry prescribed in U.P. Government Servant (Discipline & Appeal) Rules, 1999 comes into picture and becomes applicable for departmental proceedings against the teachers of school concerned. The departmental 11 enquiry, in the case in hand admittedly has not been held according to the above procedure.
29. Besides, the conduct of the respondents in the matter, as discussed above, also vitiates the order being malicious in law.
30. In view of the above discussion, the writ petition is allowed. The impugned order of punishment dated 05.12.2009, Annexure - 12 to the writ petition, passed by the District Basic Education Officer, Allahabad is hereby quashed. The petitioner shall be entitled for all the consequential benefits.
31. However, it is made clear that this order shall not preclude the respondents from proceeding afresh in accordance with law from the stage of charge sheet and reply received thereto. The petitioner shall also be entitled to cost which is quantified to Rs.20,000/-.
Dated.27.01.2010 KA