Allahabad High Court
Bhim Singh vs State Of U.P. And Others on 28 February, 2011
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Case :- WRIT - A No. - 23250 of 2010 Petitioner :- Bhim Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- S. K. Pandey Respondent Counsel :- C. S. C.,A.K.Pandey,H.K. Singh Hon'ble Arun Tandon,J.
This writ petition was presented before this Court on 27th April, April, 2010, nearly 14 detail orders have been passed by this Court, leading to a situation, whereby the Chief Secretary of the State of Uttar Prdaesh, in his affidavit filed today, has admitted fraudulent withdrawal of money from the General Provident Fund Accounts of teachers and employees of recognized Intermediate Colleges of District Ballia, for payment of salary to unauthorisedly and illegally appointed persons. Further loss of original records in their entirety has been disclosed in his affidavit. He has informed that a First Information Report has been lodged.
The scam appears to be one more serious than that which is commonly known as "Ghaziabad General Provident Fund Scam".
At this stage of the proceedings, when the matter is nearing conclusion, the Secretary, Secondary Education, U.P. Government, Lucknow, who is inferior in rank to the Chief Secretary of the State of Uttar Pradesh and was all along represented by the Chief Standing Counsel, through a private Senior Advocate, namely, Sri Ashok Khare, raises following two objections,
(a) This Court has no jurisdiction to hear this matter, inasmuch as the matter is neither nominated nor tied up to this Bench, there has been change in the roster. This Court may not proceed with the mater.
(b) The present writ petition is in the nature of Public Interest Litigation Petition and therefore, cognizable by a Division Bench. Reliance in that regard has been placed upon the Division judgements of this Court in the case of Daya Shanker Pandey vs. State of U.P. & others (Special Appeal No. 932 of 2010) decided on 4th August, 2010 and Vijeta Tripathi vs. State of U.P. & others [Special Appeal (Defective) No. 1172 of 2009] decided on 9th November, 2009.
Before adverting to the merits of the objections so raised, it would be appropriate to state the facts in short, as are on record till date.
From the documents filed in this writ petition as well as from the affidavit filed by the Chief Secretary of the State of Uttar Pradesh today, it is now an admitted position that in District Ballia, crores of rupees from the General Provident Fund Account of the Teachers and employees of recognized intermediate Colleges have been fraudulently withdrawn for payment of salary to persons fraudulently/illegally appointed. The State Government has made no attempts to recoup the money so deliberately withdrawn from the General Provident Fund Account, nor it has taken any action, worth its name, against the officers involved in such illegal siphoning of public money.
This Court may record that for more than one year, there have been repeated orders, by the Division Bench as well as by this Court, asking the State Government to disclose the total number of posts, which have been created in recognised intermediate colleges in various districts including that of District Ballia. The said orders have remained on paper only.
Sri Satish Chaturvedi, learned Additional Advocate General, who is present in the Court on behalf of the Chief Secretary of the State of Uttar Pradesh, has been asked to make a statement as to whether the State Government is in a position to disclose even in respect of one district of the State of Uttar Pradesh, as to how many posts referable to Section 9 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as the "Act, 1971"), have been created. The learned Additional Advocate General replies that the State Government is not in such position to disclose the number of posts created.
The Full Bench of this Court in the case of Gopal Dubey vs. District Inspector of Schools, Maharajganj reported in 1999 (1) UPLBEC 01 has held that payment of salary from the State Exchequer can only be made to teachers, who have been appointed against duly created posts.
The details of the created posts, as per law, is not being furnished by the State Government, prima facie, because every officer of the Education Department of the State of Uttar Pradesh, how, so high, he may be, is involved at some stage, in unauthorised payment of salary to persons appointed in excess of the posts created or available. It is in respect of these persons that money is being siphoned in shape of salary by withdrawal from General Provident Fund.
In the affidavit of the Chief Secretary, U.P. Government at Lucknow filed today, a vigilance enquiry report, as directed earlier, has been filed. In paragraphs 3 to 6 and 9, it is stated as follows:
"3. That the matter had been referred to the Vigilance Department and an open enquiry was conducted by the Vigilance Department of Varanasi Sector under Superintendent of Police, Vigilance Establishment, Varanasi. The Vigilance Establishment, U.P., submitted its report to the Principal Secretary, Vigilance Department, Government of U.P. Lucknow vide its letter dated 15th December, 20011. A true Copy of the report dated 15.02.2011 and the letter dated 15.02.2011 written by Joint Director, U.P. Vigilance Establishment, Lucknow re being filed herewith and marked as ANNEXURE Nos. CA-1 AND CA-2.
4. That considering the gravity of the charge framed by the vigilance establishment and its report of the open enquiry, the State Government took the decision to lodge First Information Report in the mater relating to Charge No. 1 (relating to fraudulent payment to irregularly appointed teachers and non-teaching staff of aided non-government secondary schools of district Ballia) mentioned in the report under Sections 409/420/467/468/472/201/120-B of I.P.C. And under Sections 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988, and to get the matter investigated through Vigilance Establishment. True copy of the D.O. Letter dated 21.02.2011 is being filed herewith as ANNEXURE NO. CA-3 to this affidavit.
5. That consequently in regard to Charge No. 1, a First Information Report has already been lodged on 24.02.2011 on which case Crime No. 36 of 2011 has been registered and its investigation has already been started by the Vigilance Establishment. True Copy of the First Information Report dated 23.02.2001 is being filed herewith and marked as ANNEXURE NO. CA-4 to this affidavit.
6. That regarding Charge No. 2 (relating to disappearance of the records of non-government aided secondary schools relating to teaching and non-teaching staff) mentioned therein the State Government decided to get the investigation of Case Crime No. 3 of 2011 under Section 409 I.P.C. registered at police station Kotwali Ballia and transferred the investigation to Vigilance Establishment from the Civil Police.
9. That in respect of Charge No. 3 relating to forged payment to Shri Ashok Kumar Singh, Assistant Teacher, in Naveen Adarsh Inter College, Isari, Salempur, District Ballia, Shri Kamla Kant, the then Assistant District Inspector of Schools, Ballia, who had the additional charge of Accountant, at the relevant time, has already been removed from service in a departmental proceedings against him concluded earlier, department proceedings have already been initiated after obtaining sanction under Rule 351 (a) of Civil Services Regulations against the then District Inspector of Schools, Ballia Shri Brij Nath Pandey, who has already retired from service on 31.10.2010. The then Accounts Clerk, Shri Panchanan Ram had retired from service on 31.07.2008 and has expired as per the letter dated 25.02.2011 written b the Director Secondary Education. It has also been ordered to file a FIR against the principal of Higher Secondary School, Neerpur, Ballia and to recover the amount paid to Aditya Narain Singh, Assistant Teacher, Biology and the payment made to Chattu Pandey, peon has been found legitimate in the vigilance report. In this connection true copies of the Office Memorandum dated 11.11.2010, 25.02.2011 and the letter dated 25.02.2011 issued by the Director of Education, Secondary, U.P. Lucknow are being filed herewith and marked as ANNEXURE NOS. CA-6, CA-7, CA-8 AND CA-9 to this affidavit."
The Court in its order dated 6th December, 2010 expressed its opinion that the Secretary, Secondary Education, U.P. at Lucknow appears to be involved in the situation and therefore, required the Chief Secretary of the State of Uttar Pradesh to examine the records/reports and file his personal affidavit in the matter.
On 12th January, 2011, the Chief Secretary filed his personal affidavit and stated that the original records qua the General Provident Fund Accounts are not available in District Ballia and a vigilance enquiry has been directed. This Court on 12th January, 2011 passed a detail order, which reads as follows:
"Order dated 12th January, 2011 "Allegations on the record of the writ petition are that a huge sum of money approximately Rs. 12,00,000,00/- (twelve crores), from the General Provident Fund (for short "GPF") Account of teachers and employees of recognised institutions of District Ballia has been misappropriated. Looking into the seriousness of the allegations, this Court required the Secretary, Secondary Education, U.P. Government, Lucknow to file his personal affidavit in the matter vide order dated 5.5.2010. On 13.5.2010 the Chief Standing Counsel appeared and made a statement that embezzlement from the GPF Account is not in dispute, however, quantification is to be done. On 25.5.2010 letter of the Secretary was produced before this Court, which records that First Information Report was lodged against 33 persons by name in respect of embezzlement of the money and against others by office holder at the relevant time. The Secretary was directed to file an affidavit indicating the action taken and the status of the enquiry.
On 2.8.2010 the learned Advocate General appeared before this Court and made a statement that the State Government is taking steps for restoring the loss caused to the GPF fund because of the fraudulent withdrawals there- from. Contrary to the assurance given, the money was not restored and, therefore, this Court passed an order on 2.11.2010 requiring the Secretary, Education to file an affidavit.
On 13.5.2010 the Secretary in his affidavit filed on that date in paragraph 4 made following statements:
"That the order dated 5.5.2010 indicates the financial loss to the State Government to the tune of Rs. 12 crore from the G.P.F. as para 28 and 29 of the writ petition, however, the audit report dated 4.8.2006 has reported it to the tune of approximate Rs. 1,20,00,000/- (rupees one crore twenty lac only) therefore filing the detailed counter affidavit, the matter has to be scrutinized thoroughly through audit and since the above enquiry will take much time to go through records and thereafter it would be better to file a detailed counter affidavit along with relevant records."
However, on 6.12.2010 an affidavit was filed by the same Secretary before this Court stating therein that the total amount embezzled was only Rs. 4,00,000/- (four lac). Reference was made to the report submitted by the Investigating Police Officer. The Court after noticing the various documents which were on record and which were referred to by the petitioner was not satisfied with the somersault which was taken by the Secretary in respect of total money embezzled, therefore, by a detail order on 6.12.2010 required the Chief Secretary of the State to summon the records from Ballia and to examine the same and thereafter to file his personal affidavit with reference to the records of GPF Account as to what amount has actually been embezzled.
The affidavit filed by the Secretary today i.e. 12.1.2011 makes an interesting reading. In paragraph 10, it is stated that the original documents could not be examined as the original documents are not available in the office of the D.I.O.S. Ballia. A vigilance enquiry has been directed. With reference to total money embezzled, in paragraph 11 it is stated that a notice was issued to the Secretary, Secondary Education, U.P. Government, Lucknow for explaining as to how he only, on the report of the Investigating Police Officer filed an affidavit before the High Court that the total amount embezzled was Rs. 4,00,000/- (four lakhs only). In paragraph 12 it is stated that the Secretary has replied that he did not make any independent enquiry/assessment qua the embezzled amount and replied upon the report of Police Officer.
This Court is of prima facie opinion that the affidavit filed by the Secretary, Secondary Education on 6.12.2010 stating that the total amount embezzled was Rs. 4,00,000/- (four lakhs only), is not a correct statement of fact on oath before this Court. There has been negligent/violation of duty in performance of duty, which has the tendency to defeat/impair the remedy in a cause pending before this Court.
Before proceeding any further, it would be appropriate that the Secretary, Secondary Education, U.P. Government at Lucknow may have an opportunity in the matter. He must file his personal affidavit explaining the facts noticed above by the next date.
The Chief Secretary, U.P. Government, Lucknow must ensure the computation of the total amount, which has been embezzled from the GPF Account in District Ballia and ensure that the loss to the GPF is restored by the State Government. The status of vigilance enquiry may also be brought on record by the next date.
List this matter on 18th January, 2011."
Again the matter was taken up on 24th January, 2011 and the case was adjourned on the asking of the Chief Standing Counsel for some time being granted for submitting the vigilance enquiry report along with the comments of the Chief Secretary.
The Secretary, Secondary Education, U.P. Government, Lucknow, who had filed false affidavit before this Court after taking time, approached the Division Bench of this Court by means of Special Appeal Defective No. 147 of 2011 (Jitendra Kumar, Son of Late Sri Jagdish Prasad, Secretary, Department of Secondary Education, Government of U.P. Lucknow vs. Director of Education (Secondary) U.P. Camp Office, 18 Part Road, Lucknow & four others) raising an objection for the first time qua jurisdiction of this Court, because of change of roster, as the matter is neither tied up nor nominated to this Bench, as well as the mater being in the nature of Public Interest Litigation. Such an appeal has not been appreciated by the Division Bench and it by its order dated 14th February, 2011 insisted that such objections must be raised at the first instance before the Single Judge concerned. The Division Bench, therefore, dismissed the special appeal filed by the Secretary vide judgement and order dated 14th February, 2011, which reads as follows:
"The present special appeal has been filed against the judgment and order dated 24.1.2011 passed by the learned Single Judge wherein the Secretary Secondary Education, Government of U.P. Lucknow has been directed to comply with the order issued on 12.1.2011.
We have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri P.N. Ojha on behalf of the appellant who is Secretary Secondary Education Government of U.P. Lucknow, perused the impugned judgment and order dated 24.1.2011, passed by the learned Single Judge giving rise to the present special appeal, grounds taken in the memo of appeal and the documents filed along with it. Sri Ashok Khare, learned Senior Counsel submitted that the learned Single Judge had no jurisdiction to entertain the writ petition which was in the nature of public interest litigation as the matter is cognizable by a Division Bench and further on account of change of jurisdiction the learned Single Judge was not entrusted with that jurisdiction to entertain and decide the present writ petition giving rise to the present special appeal.
We have given our thoughtful consideration to the various pleas raised by the learned counsel for the appellant and are of the considered opinion that all these objections in the first instance should be raised before the learned Single Judge and we hope and trust if such objections are raised before the learned Single Judge, the learned Single Judge shall adjudicate upon the same. We may mention here that in a special appeal filed under VIII Rule 5 of the Rules of the Court, the jurisdiction of this Court is limited to adjudicate upon the correctness of the order mentioned in the appeal on the basis of the material, evidence and arguments which have been advanced and noticed by the learned Single Judge and not on such documents and objections which are being raised for the first time in the appeal which requires adjudication of factual disputes even without raising them and getting adjudication by the learned Single Judge.
The appeal is, therefore, dismissed as misconceived."
Today, initially a request was made by Sri M.C. Chaturvedi, learned Chief Standing Counsel that some time may be granted for the Secretary, Secondary Education, U.P. Government at Lucknow and Chief Secretary of the State of Uttar Pradesh to file their respective affidavits. The Court insisted that whatever is to be stated, must be done by way of an affidavit. On the request of learned Chief Standing Counsel, the case was directed to be taken up at 3.45 p.m. today.
The Chief Secretary filed his affidavit today. However, the Secretary, Secondary Education, who is represented by Sri Ashok Khare, learned Senior Advocate, raised the aforesaid two objections.
This Court finds that the matter has practically reached at a stage, where some serious action could result for bringing the malice to an end.
So far as the plea that the present writ petition is in the nature of Public Interest Litigation Petition and therefore, not cognizable by Single Judge, is concerned, this Court may record that the Hon'ble Supreme Court of India in the case of Ashok Kumar Pandey vs. State of West Bengal reported in (2004) 3 SCC 349, in paragraph-16 held as follows:
"16. .................. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. ............."
The same principle has been reiterated in the subsequent decisions of the Apex Court, namely, Dr. B. Singh vs. Union of India & others, reported in (2004) 3 SCC 363, Dattaraj Nathuji Thaware vs. State of Maharashtra & others reported in (2005) 1 SCC 590 and Gurpal Singh vs. State of Punjab & Others reported in (2005) 5 SCC 136 and lastly in the latest judgement dated 30th August, 2010 passed in the case of Hari Bansh Lal vs. Sahodar Prasad Mahto & Ors. (Civil Appeal No. 7165 of 2010 arising out of S.L.P. (C) No. 11013 of 2009).
The Division Bench judgements replied upon by Sri Ashok Khare, learned Senior Advocate on behalf of State-respondents have failed to take note of the aforesaid judgements of the Hon'ble Supreme Court of India. This writ petition, which pertains to service matter cannot be treated to be Public Interest Litigation Petition. The objection so raised is, therefore, rejected.
The Court may emphasis that so far as the service matter pertaining to teachers and employees of a recognised and aided intermediate colleges are concerned, they are a class part. The terms and conditions of their service are peculiar, the employer is the private management, while payment of salary is made by the State Government. In respect of such employment Article 16 of the Constitution of India has no application, as has been held by this Court in the case of Narendra Kumar vs. State of U.P. & others reported in 2002 (1) UPLBEC 683, Prs. 20 and 24.
Since in the matters pertaining to unauthorised payment of salary and fraudulent withdrawal of money from the General Provident Fund Accounts of teachers and staffs of the institutions, is a service matter, no Public Interest Litigation can be entertained.
A citizen of the India, who is vigilant and who has interest in education and approaches this Court under Article 226 of the Constitution of India for ensuring that the money of the poor Indian is not mis-utilized by the officers of the State for unauthorised/fraudulent payment in the name of salary after withdrawal from General Provident Fund to undeserving person must not be shown the door by the Court by expressing its helpless in the matter. The Court may examine the cope of Article 226 of the Constitution of India, which reads as follows:
"226. Power of High Courts to issue certain writs.---(1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.
(4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32."
It is therefore, clear that not only writs of traditional nature are to be issued by this Court under Article 226 of the Constitution of India but also other orders and directions for other purposes, as may be found just and equitable, can be issued. Where there is fraudulent withdrawal of public money in the name of unauthorised payment of salary from the General Provident Fund Accounts to persons appointed against non-sanctioned and non-available posts, Writ Court cannot be a mute spectator. The Court must extend its arm and take appropriate action against the persons, how so high, he may be, so that such fraudulent de-siphoning of money is stopped. Any reluctance of the highest Court of the State to act in such matters would only result in loss of confidence of the common man in the judicial system of the Country.
This Court holds that in service matters pertaining to teachers and staffs of Intermediate Colleges, including cases, where there are allegations of fraudulent withdrawal of public money, no Public Interest Litigation Petition is maintainable. The Writ Court hearing writs, pertaining to employees of Educational Institutions, will have jurisdiction under Article 226 of the Constitution of India to issue appropriate orders to the State Government and its Officers to ensure that the public money is not illegally siphoned and is put to legal use only. Consequently, the second objection raised by Sri Ashok Khare, learned Senior Advocate is being rejected.
At this stage, Sri Ashok Khare, learned Senior Advocate, on behalf of Secretary, Secondary Education, U.P. at Lucknow states that the matter may be placed before the Writ Court, which has jurisdiction to hear this education service matters.
The Hon'ble The Chief Justice of the High Court is the master of the roster and therefore, it would be appropriate that the records of the present writ petition may be placed before the Hon'ble The Chief Justice for nominating a Bench for the writ petition being heard and decided at earliest, so that the cause is not lost in the huge backlog of cases and the vary purpose of the proceedings, which have been taken in the present writ petition, and which is nearing completion, is not frustrated. The matter must be taken to its logical end within reasonable time.
It is, therefore, provided that the records of the present writ petition may be placed before the Hon'ble The Chief Justice for nominating a Bench for hearing of the present writ petition on Thursday i.e. 3rd March, 2011.
The matter shall be placed before the Hon'ble Judge so nominated on next Monday i.e. 7th March, 2011.
(Arun Tandon, J.) Order Date :- 28.2.2011 Sushil/-