Allahabad High Court
Smt. Usha Sharma vs The State Of U.P. And Others on 5 October, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 11.08.2017 DELIVERED ON 05.10.2017 Case :- WRIT - A No. - 62672 of 2011 Petitioner :- Smt. Usha Sharma Respondent :- The State Of U.P. And Others Counsel for Petitioner :- S.P.Singh, A.D.Saunders, Anupam Anand,Ashok Khare, Rajesh Mishra, S.K.Singh Counsel for Respondent :- C.S.C., A.D. Saunders Hon'ble Mrs. Sangeeta Chandra,J.
1. The petitioners filed this writ petition for quashing of the order dated 10.09.2011 passed by the Committee of Management, St. Thomas Girls' Inter College, Meerut and order dated 24.09.2011 passed by the Manager of the College. A further prayer has been made for issuance of a writ in the nature of Mandamus to the Respondents not to give effect to the impugned orders and not to interfere in the working of petitioner as Lecturer in Sanskrit in the said College.
2. The case of the petitioner as set up in the writ petition is that initially the petitioner was appointed as Lecturer in Sanskrit in the said Institution on 21.12.1993. On 08.12.2009 a notice was served on her for terminating her services on the ground that recognition of Sanskrit subject had been cancelled. The petitioner being aggrieved with the said notice filed writ petition No. 11891 of 2010, and an interim order was granted on 12.03.2010 directing the Respondent No. 3 to let the petitioner continue to work on the post of Lecturer in Sanskrit till further orders. The petitioner was continuing in the Institution on the basis of the said interim order. But the Committee of Management did not want her to continue and therefore, took the first opportunity to dismiss her from service by the orders impugned.
3. The petitioner has alleged that for Academic Session 2010-11 Board Examinations were continuing and the petitioner was assigned duty as Invigilator only up to 09.04.2011. The petitioner fell ill and therefore, did not join her duty thereafter with effect from 13.04.2011 to 25.04.2011. The Respondent No. 3 got a notice pasted outside the house of petitioner on 24.04.2011 and published the said notice again in the newspaper namely Dainik Jagaran on 25.04.2011 regarding the unauthorized absence of petitioner. The petitioner was away at Ghaziabad and coming to know of the said notice rushed to the College on 25.04.2011 itself with an Application for medical leave. But the Principal of the College did not receive the Application on 25.04.2011. The petitioner again went to the College on 26.04.2011 accompanied by a medical certificate and the petitioner was allowed to resume her duty by the Head Clerk. The petitioner discharged duty in the College on 26.04.2011 and 27.04.2011. But on 28.04.2011 when she went to the College she was handed over an order of suspension on the alleged ground that she had remained absent without permission from College w.e.f. 13.04.2011 to 25.04.2011 and also on the ground that some criminal case had been registered against the petitioner at police station Lal Kurti, Meerut Cantt., Meerut and information regarding the same had reached to the Committee of Management on its publication in the newspapers.
4. It is the case of the petitioner that the suspension order dated 28.04.2011 was issued by the Manager of the Institution in his personal capacity and no resolution was passed by the Committee of Management which is the Appointing Authority of the petitioner as teacher. The petitioner represented against the suspension order to the District Inspector of Schools, Meerut but nothing happened. The charge sheet was served on the petitioner on 05.05.2011 containing 18 charges. Except charge No. 1 which related to absence of the petitioner from duty with effect from 13.04.2011 to 24.05.2011 and charge No. 2 relating to registration of criminal case against the petitioner under Sections 406, 420, 504 and 506 IPC; all other charges Nos. 3 to 18, were relating to the loans taken by the petitioner from various banks in between 2002 to 2010.
5. It is the case of the petitioner that no documents in support of the charge sheet was given to her and when she asked for documents they were not supplied to her.
6. The Manager of the College required the petitioner to send her reply to the charge sheet and attend oral hearing on 01.06.2011. The petitioner, however, did not participate in the inquiry as is evident from the contents of paragraph - 29 of the writ petition and she kept on insisting for documents in support the charge sheet to be given to her and also asking the Manager as to in which capacity he had exercised the power of suspending the petitioner as no resolution of the Committee of Management has been passed to this effect.
7. The Manager of the Institution sent a copy of the resolution dated 27.04.2011 referred to in the suspension order dated 24.08.2011 but the petitioner has raised a doubt with regard to its genuineness and in paragraphs - 34 to 37 of the writ petition the petitioner has mentioned several grounds on the basis of which the petitioner has contended that the resolution of Committee of Management said to have been passed on 27.04.2011 was a manipulated and forged document.
8. The petitioner has mentioned in paragraph 37 of the writ petition that the Inquiry Officer/Manager again sent a notice dated 11.06.2011 to the petitioner requiring her to appear for oral hearing on 18.06.2011.The petitioner insisted upon the Manager to show his authority to issue such a letter and conduct inquiry and did not appear before the Manager.
9. It is the case of the petitioner that the Inquiry Officer took the statement of the Principal of the College arrayed as Respondent No. 4 in person in this writ petition, behind the back of the petitioner and submitted an ex-parte inquiry report on 20th of July, 2011. On 27.06.2011 a show cause notice was issued along with a copy of the inquiry report and the petitioner submitted her explanation on 06.07.2011 asking for personal hearing and date was fixed by the Committee of Management on 09.07.2011 which was later on postponed and a meeting of the Committee of Management was fixed for 08.08.2011 which was also postponed. The petitioner was informed in writing of the next date of meeting of the Committee of Management and she also appeared in person before the Committee of Management on 10.09.2011 and raised objections. But the Respondent No. 3 by means of a resolution dispensed with the services of petitioner. The resolution of the Committee of Management dated 10.09.2011 was communicated through letter dated 24.04.2011 by the Manager.
10. It has been submitted in the writ petition that the entire disciplinary proceedings were undertaken in hot haste and principles of natural justice were not followed and the Committee of Management had not approved her suspension order and the Manager was biased towards the petitioner, as also the Respondent No. 4, the Principal of the College, and they both dispensed with the services of petitioner but should not have done so as there was already an interim order in her favour in earlier writ petition.
11. The absence of the petitioner because of illness w.e.f. 13.04.2011 to 25.04.2011 was taken up as an excuse and then, an exparte inquiry was conducted in hot haste and the dismissal order was passed. Although the petitioner had appeared before the Committee of Management on 10.09.2011 and submitted a reply dated 06.09.2011 to the show cause notice, the same was not considered by the Committee of Management.
12. It is the case of the petitioner that because she had fallen ill, she had gone to Ghaziabad for treatment; and besides the invigilation duty of the petitioner that had already ended on 09.04.2011, she was not required to attend the College every day during the currency of the Board Examination.
13. Regarding the charges mentioned in the charge sheet, it is the case of the petitioner that the allegation/findings recorded by the Inquiry Officer were that signatures of the Principal/Respondent No. 4 were forged by the petitioner on bank papers submitted for loan and in fact, 12 bank branches had been duped by the petitioner, but such charges as relating to cheating various bank branches did not relate to the service conditions of the petitioner and were criminal in nature and the police instigation was ongoing in the matter, therefore, the Committee of Management could not have charged the petitioner of misconduct without the said charges being proved by the Competent Court of law. The punishment of dismissal for 12 days of absence was disproportionate and she had filed an appeal before the District Inspector of Schools against the order of termination, which was not decided and remained pending.
14. A counter affidavit has been filed on behalf of the Respondent No. 3 wherein it has been stated that the petitioner's conduct as a teacher was thoroughly unsatisfactory and there were no students for Sanskrit subject in Class - XI and XIIth, hence the post of Sanskrit Teacher had been abolished and the services of the petitioner proposed to be terminated by order dated 08.12.2009. In respectful compliance of the interim order granted in earlier writ petition, the petitioner was allowed to continue. The petitioner was not ill but was, in fact, accused in a criminal case registered in police station Lal Kurti, Meerut Cantt., Meerut on 12.04.2011 and therefore, the petitioner absented herself from School without any Application for leave and remained absent till 23.04.2011. The medical certificate, that petitioner produced to show that her absence was not willful, stated that the petitioner was treated at Ghaziabad for viral fever and it is unimaginable why a person in Meerut where medical facilities are available, would get herself treated at Ghaziabad for viral fever.
15. It has been stated in the counter affidavit in paragraph 14 that, in fact, the petitioner was at Allahabad in between 13.04.2011 to 24.04.2011 as she had filed a Criminal Misc. Writ Petition No. 7237 of 2011 on 19.04.2011 challenging the FIR before this Court and this Court was pleased to pass an order of stay on 24.04.2011. It is only thereafter that the petitioner appeared in School on 25.04.2011 along with a medical certificate and the Manager of the Institution wrote a letter on 26.04.2011 to the Chief Medical officer, Ghaziabad to verify correctness of the medical certificate issued by some doctor at Ghaziabad and the petitioner was informed that her Application for medical leave shall be considered after report from the Chief Medical Officer, Ghaziabad is received in this regard.
16. It has been further stated in the counter affidavit in paragraph 19 that the petitioner was never permitted to resume her duty nor did she sign the Attendance Register on the two days as alleged. In fact, after 13.04.2011 till the completion of inquiry against the petitioner, the petitioner was absconding and therefore, notice had to be pasted on the door of the petitioner's house and also published in the newspapers directing her to join duties. In the charge sheet that was issued to the petitioner all documents as was asked for by her were supplied to her. These were 24 documents running into 48 pages.
17. It is the case of the Management that the allegations regarding the denial of the opportunity are false and baseless as the petitioner was repeatedly issued notices by the Manager as Inquiry officer to attend the Inquiry but the petitioner challenged the authority of the Manager to act as Inquiry Officer.
18. The petitioner had even challenged the resolution of the Committee of Management dated 27.04.2011 regarding her suspension. The charge sheet dated 05.05.2011 contained 18 charges and one of them related to unauthorized absence and the second related to filing of criminal case under Sections 406, 420 and 506 IPC against the petitioner at PS Lalkurti, Meerut Cant., Meerut. The rest of charges related to financial irregularities and questioned the integrity of the petitioner in so far as she has submitted false papers to procure loans from twelve bank branches.
19. It has been stated in the counter affidavit that in pursuance of the criminal case having been lodged against her, the petitioner was arrested on 29th of July, 2011 and the Committee of Management postponed the meeting scheduled to be held on 8th of August, 2011 for oral hearing being given to the petitioner and on behalf of the petitioner Bail Application No. 3983 of 2011 was filed and she was only released from jail on 24.08.2011. The petitioner thus appeared before the Committee of Management on 10.09.2011 and admitted the charges levelled against her and submitted that she be given an opportunity to rectify all her mistakes. A true copy of the letter dated 10.09.2011 written by the petitioner in her own handwriting and addressed to the Chairman of the Committee of Management has been filed as Annexure - CA 12 to the counter affidavit.
20. It has been further stated in the counter affidavit that although the Committee of Management considered the contents of the letter dated 10.09.2011 it also took into account that it had lost confidence in the petitioner and her continuance in service in the Institution was found to be detrimental to the interest of the Institution and a decision was taken to terminate her services. Moreover, the petitioner had admitted her guilt and had accepted the charges levelled against her and had only asked for an opportunity to mend her ways.
21. It is the case of the Respondents that despite several opportunities being given to her both by the Enquiry Officer and by the Committee of Management, the petitioner failed to appear and when she did appear before the Committee of Management, she only admitted the charges and prayed for forgiveness.
22. In the light of the admission of guilt by the petitioner, no further inquiry was required to be made. In paragraph - 66 of the counter affidavit it has been averred that several First Information Reports had been lodged against the petitioner. The petitioner was imprisoned under various Sections of IPC like Sections 467, 468, 471, 420 and 406 for taking loans from various branches and financial institutions by forging signatures of the Principal of the Institution.
23. It has been further stated in paragraphs 67, 68, 69, 70 and 71 of the counter affidavit that the Institution was informed by the Manager, Syndicate Bank and by the State Bank of India regarding various bank loans taken by the petitioner on the basis of forged Salary Certificate -cum- Recovery Authority letter containing signatures of the Principal of the Institution and seal of the College. It had been held out by the petitioner to the said banks, as if the College knew about the loans being taken by the petitioner and the Principal of the College had undertaken to deduct installments of the said loans from the salary of the petitioner and to repay the same to the bank.
24. The fact that the petitioner had forged signatures of the Principal of the College was confirmed from the report of the handwriting expert's dated 28.07.2011, and the petitioner herself had accepted all charges levelled against her by her letter dated 10.09.2011.
25. The petitioner has filed rejoinder affidavit wherein she has alleged that despite the interim order continuing in the writ petition filed by her earlier and the petitioner continuing on the basis of the said interim order and the writ petition being pending before the Court, dismissal orders had been issued on 10.09.2011 which could not have been done. The allegations of malice and bias levelled against the Manager and the Principal of the Institution in question have been repeated.
26. At the time of argument of the aforesaid writ petition the counsel for the petitioner alleged on the basis of the earlier interim order dated 12.03.2010 that the petitioner had been allowed to continue as Lecturer in Sanskrit subject and during the pendency of the said writ petition No. 11891 of 2010, the impugned order of termination could not have been passed. It has further been argued that admittedly the invigilation duty of the petitioner was only up to 09.04.2011 and during the conduct of Board Examinations no classes are held in the Institution and those who are not on invigilation duty are not even permitted to attend the Institution and therefore, if the petitioner remained absent from 13.04.2011 till 25.04.2011 no disruption in teaching took place and therefore, the notice issued to the petitioner for unauthorized absence and for reporting to duty on 25.04.2011 and its publication in the newspapers on the next date was completely uncalled for.
27. The counsel for the petitioner has referred to various letters written by the petitioner to the Inquiry Officer/Manager of the Institution asking for documents and challenging his authority to continue as Inquiry officer and has submitted that since the suspension order had not been passed by the Competent Authority and the documents in support of the charge sheet having not been given to the petitioner, the petitioner could not submit any reply nor participate in the inquiry proceedings. Moreover, the suspension order had not been approved by the District Inspector of Schools.
28. Learned Counsel for the petitioner further submitted that out of 18 charges levelled against the petitioner, 16 relate to the various loans taken by the petitioner from various banks and were unrelated to the petitioner's duty as teacher of the Institution. With regard to the charge no. 1 it was submitted that absence could not be said to be unauthorized when the petitioner had submitted Application for medical leave. With regard to the First Information Report being lodged and the reputation of College being tarnished due to the conduct of the petitioner, it has been submitted that the petitioner is a widow and has a sick child to look after and therefore, she had to take loans from the banks since out of meagre salary as teacher of Institution she could not take care of medical expenses of her sick child. When the petitioner had objected to the appointment of the Manager as Inquiry Officer and to her continued suspension and continued inquiry proceedings, the Inquiry Officer should have postponed the inquiry at least till such time that the Committee of Management took a decision to continue the Manager as an Inquiry Officer. No such thing was done, the inquiry was conducted behind her back. The Principal of the Institution and other teachers were examined in absence of the petitioner and the inquiry report was submitted in hot haste finding all charges proved.
29. It has been argued that opportunity as required under law having not been given, the disciplinary proceedings were initiated and dismissal order passed by the Committee of Management on alleged admission of guilt by the petitioner was liable to be set aside. With regard to the second charge of lodging of FIR against the petitioner, it has been specifically submitted by the counsel for the petitioner that a final report was submitted by the police in favour of the petitioner and therefore, cognizance of the said FIR should not have been taken while submitting the inquiry report. As regards the loans being taken from various banks by the petitioner in personal capacity, the Institution in question has no business to interfere in the private affairs of the petitioner.
30. The counsel for the Respondent No. 3, Mr. A.D. Saunders has pointed out from para 29 of the writ petition that the petitioner had been supplied documents in support of the charge sheet and this fact has been admitted by her in her reply. It was also submitted that the petitioner was allegedly ill with viral fever and therefore, could not have gone from Meerut to Ghaziabad for treatment of viral fever.
31. With regard to the allegations of non supply of the documents Shri A.D. Saunders has argued that 24 documents were referred to in the charge sheet running into 48 pages and all 48 pages were given to the petitioner along with the charge sheet. When she complained to the Inquiry Officer regarding non supply of the documents, then, again by his notice dated 1st of June, 2011 the Inquiry Officer supplied the copies of all documents and fixed 11th of June, 2011 as the next date in the inquiry proceedings. The petitioner failed to appear on any of the dates fixed by the Inquiry Officer and willfully did not participate in the inquiry.
32. The learned counsel for the petitioner has placed reliance upon the following decisions passed by this Court :
1. Judgment and order dated 15.10.2002 passed in Writ - A No. 18803 of 2008: Iftekhar Ahmad Vs. State of U.P. and others;
2. Judgment and order dated 21.10.2010 in Civil Misc. Writ Petition No. 30642 of 2010: Tariq Ayyub Vs. State of U.P. and others;
3. Judgment and order dated 04.09.2015 passed in Writ-A No.50433 of 2013: Inder Singh Gandhi Vs. State of U.P. and 4 others; and
4. Judgment and order dated 06.11.2015 passed in Writ-A No. 7234 of 2000: Mehdi Hasan Vs. The C/M M.M. Inter College and others.
33. The judgments relied upon by the learned counsel for the petitioner relate to the requirement of principles of natural justice being followed by even minority institutions while imposing punishments in disciplinary proceedings against teachers/employees. There is no quarrel with the settled principle of law that even minority institutions which are aided and recognized or even unaided but recognized, have to follow the principles of fairness in procedure as prescribed under Regulations 35 to 37 of Chapter III of the Regulations attached to Intermediate Education Act, 1921. But the principles of natural justice cannot be put in a straight jacket formula. The Supreme Court has held that the principles of fairness in procedure vary from case to case and in case opportunity is give to a delinquent employee and still he refuses to participate in inquiry it shall not result in denial of opportunity. It has become evident from the papers filed along with the counter affidavit that at least three opportunities were given by the Inquiry officer before submitting the inquiry report and two opportunities were given by the Committee of Management to the petitioner to submit her case before the impugned order of dismissal was passed. Thus, the judgments cited by the learned counsel cannot be relied upon to set aside the impugned order of dismissal.
34. Shri A.D. Saunders has argued that from a perusal of page No. 75 of the counter affidavit which is the Salary Certificate -cum-Recovery Authority letter submitted by the petitioner to the bank giving out an impression that the Principal of the College of the Institution had undertaken to make deductions from the salary/GPF of the petitioner every month and credit the payments directly in the loan account of the petitioner as and when the bank demands to do so, shows the Principal of the College having signed thereon. But the admitted signatures of the Principal of the College are evident from the other documents filed along with the counter affidavit viz. page no. 77, page no. 62 and page no. 63 which shows that the petitioner had indeed forged the signatures of Smt. A. Nathan, the Principal of the College. The difference in signatures is so apparent to the naked eye that anyone can make out that signatures on Salary Certificate submitted by the petitioner to the bank are forged. Nevertheless the Committee of Management had sought opinion of the handwriting expert on 28.07.2011 and he had also opined that the specimen signature of Smt. A. Nathan, the Principal of the College are completely different from the signatures made on the Salary Certificate. Copy of the opinion of the handwriting expert has been filed at page Nos. 88 to 91 of the counter affidavit.
35. Shri A.D. Saunders has further submitted that fraud vitiates everything and as has been detailed in the counter affidavit and various annexures filed along with it, it is evident that the petitioner was not entitled to continue as teacher and was rightly dismissed. The conduct of the petitioner, defrauding twelve bank branches by submitting forged Salary Certificate as an undertaking by the Principal of the College to make deductions from the salary of the petitioner and deposit them directly in the loan account of the petitioner, was such kind of misconduct which led to loss of confidence of the Committee of Management, and teaching being a noble profession, such kind of conduct could not be countenanced. More so, when the petitioner had admitted her guilt.
36. Shri A.D. Saunders has referred to a judgment rendered by a Division Bench of this Court in Nasreenara Vs. University of Allahabad and others, 2008 (2) ADJ 262 wherein a teacher of a minority institution, an associate College of University of Allahabad, had been charged of fabricating letters and defrauding the public exchequer by claiming house rent allowance from year 1990 to 2003, although her husband who was also U.P. Government servant, had claimed and drawn House Rent Allowance himself. An audit objection had been raised with regard to defalcation of money. The petitioner had admitted the guilt of fabricating and manufacturing of documents for financial gains but had asked for pardon. The Committee of Management had dismissed the petitioner therein.
37. This Court in paragraphs 19, 20 and 21 of the judgment has referred to various decisions of the Supreme Court viz. Avinash Nagra Vs. Navodaya Vidyalaya Samiti and others: (1997) 2 SCC 534 to observe that the petitioner being a teacher was appointed for educating students. "The standards expected of a person practising the noble teaching profession must be ideal so that the students may know and practise the best principles of the civilized life. The society has given an exalted pedestal to a teacher and when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of student for the development of prosperity and welfare of the society between quality, competence and character of the teachers and therefore is most significant to mould the calibre, character and capacity of the students for successful working of the academic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities."
38. This Court is aware that the Apex Court in its decision dated 25.07.2017 in Civil Appeal No.9529 of 2017: State of Uttar Pradesh & ANR. Etc. Vs. Anand Kumar Yadav & others has also reproduced in paragraph 61, the speech of our Former President of India Dr. A.P.J. Abdul Kalam with regard to the role played by teachers in moulding the characters of the students thus:
"61. Describing the role model of teachers, our Former President of India Dr. A.P.J. Abdul Kalam, narrated his experience in his teachers' day speech on 5th September, 2003 and said that a school must have the best of teachers who have the ability to teach, love teaching and build moral qualities."
39. The Apex Court in State of Uttar Pradesh & ANR. Etc. Vs. Anand Kumar Yadav & others (supra) in para 70 with regard to the role of teacher has observed thus:
"70. Children come from different backgrounds often being victimised by unwise and wrongly motived parental treatment. The teacher has to be more careful for he is enjoined with the duty of child development. This therefore is the background-in which the teachers' role attains immense significance..............".
40. Having considered the rival submissions and the judgments relied upon by the learned counsel for both the parties, this Court finds that the petitioner most certainly had lost the confidence of the Committee of Management of the College and looking to her conduct this Court does not find any good ground to show interfere under extraordinary jurisdiction vested in it under Article 226 of the Constitution. This writ petition is hence dismissed.
Order Date :- 05.10.20178 LBY