Allahabad High Court
Smt. Indu Srivastava vs State Of U.P. & Others on 30 March, 2015
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Case :- WRIT - A No. - 48167 of 2010 Petitioner :- Smt. Indu Srivastava Respondent :- State Of U.P. & Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C. S. C.,D.P.Singh,S.Niranjan Hon'ble Suneet Kumar,J.
The Rastriya Kanya Inter College, Barhalganj, District Gorakhpur is an institution governed by the provisions of the Intermediate Education Act, 1921 and the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The Institution is being run and administered by a Society in the name and style of Rastriya Shiksha Prachar Samittee, Barhalganj, District Gorakhpur. The Institution is a duly recognized and under the grant-in-aid of the State Government. The Committee of Management was superseded several decades ago and the Institution is being managed by the Authorized Controller.
The petitioner claims to have been appointed as a Library Peon in the Institution on 2 August 1977. The appointment of the petitioner is not in dispute though it is contended on behalf of the sixth respondent, Principal, Rastriya Kanya Inter College that the petitioner was appointed on 25 June 1975.
The petitioner is assailing the order dated 16.6.2010 passed by the Principal terminating the service of the petitioner. The order noted that the appointment being void as the petitioner's father-in-law Ram Chhabile Srivastava was the Manager of the then Committee of Management. During the pendency of the writ petition, petitioner retired on 30 June, 2013 on attaining the age of superannuation.
Submission of learned counsel for the petitioner is that the termination order is bad as the prescribed procedure under Regulations 35 to 37 of Chapter-III of the Regulations framed under the Intermediate Education Act, 1921 was not followed. The petitioner at no point of time was issued any chargesheet nor any inquiry was conducted. The petitioner's service was terminated merely on a notice to show cause. Further, it has been contended that the Principal being the competent authority, terminated the service of the petitioner merely relying on certain observations made by the Joint Director of Education, VIIth Division, Gorakhpur while deciding the representation of the Society, pursuant to an order dated 28 October 1997 of this Court passed in Rastriya Shiksha Prachar Sammittee, Barahalganj, Gorakhpur through its Secretary/Manager Harishanker Prasad Surraff vs. State of U.P. & others, (Writ Petition No.36397 of 1997). The Joint Director while deciding the representation on 4.5.2000 made certain observations regarding the appointment of the petitioner which cannot become the basis for termination of service of the petitioner.
The only question for determination is as to whether the service of the petitioner could have been terminated by the Principal without following the procedure prescribed under the Regulations framed under the Intermediate Education Act.
It is not in dispute between the parties that the petitioner was appointed as a Library Peon. According to the petitioner, she was appointed as a Library Peon on 02 August 1977, whereas, according to the Principal, the petitioner was appointed on 25 June 1975, the appointment letter was duly signed by Ram Chhabile Srivastava the then Manager of the Institution. On the contrary, the petitioner has relied upon a document pertaining to pay fixation made on 17 January 1990 by the Office of the Regional Inspectress of Girls Schools, Gorakhpur duly signed by the Accounts Officer at the office of the D.I.O.S., Gorakhpur recording that the petitioner was appointed on 02 August 1977. The date of appointment of the petitioner is not in issue. The Principal has admitted the appointment of the petitioner, the question therefore, is as to whether a permanent Class IV employee could have been terminated in violation of the procedure prescribed under the Regulations.
There is no denial by the Principal in the counter affidavit to the specific averment made by the petitioner in paragraphs-20 and 22 of the petition, categorically stating that at no point of time any departmental enquiry was conduced, no chargesheet was issued nor any inquiry officer was appointed. In para-22 of the petition, it has been averred that Ram Chhabile Srivastava was neither the Manager nor a member of the Committee of Management at the time of appointment of the petitioner on 02 August 1977. It was further asserted that Ram Chhabile Srivastava was the Manager of the Institution till 1974. In para-12 of the counter affidavit, filed by the Principal, there is no assertion that any departmental inquiry was conducted against the petitioner on issuance of a chargesheet, para only states that "contents of the paragraphs under reply are legal and argumentative in nature and will suitably be replied at the time of hearing of the writ petition". In reply to the contents of paragraph-22 of the writ petition, the assertion that Ram Chhabile Srivastava was the Manager of the Institution till 1974 was disputed and reliance was placed on certain documents including the appointment letter dated 15 April 1975 alleged to have been issued by Sri Ram Chhabile Srivastava in favour of the petitioner who admittedly is his daughter-in-law.
Chapter-III of the Regulations framed under the Intermediate Education Act provides for the condition of service. Regulation 31 provides for punishment, inquiry and suspension for Class-IV employee, and for imposition of penalty of dismissal or removal from service. Principal or the Head Master, as the case may be, is the competent authority. An appeal is provided before the Committee of Management. Regulation 32 details the misconduct for which an employee can be punished. Regulation 36 provides the procedure for initiating the disciplinary proceedings, the chargesheet containing specific imputation of misconduct has to be served upon the delinquent employee, supported by documents and other evidences. The delinquent employee is required to submit a reply within three weeks from the date of receipt of the chargesheet. The regulation further provides that the Inquiry Officer would have to enquire into the charges which are denied by the delinquent employee by conducting an oral inquiry. The charged employee will have a right to cross-examine the witnesses, produce evidence and on conducting the enquiry, the Inquiry Officer would recommend/propose the nature of penalty to be imposed on the charged employee if the charges were proved in the inquiry. Regulation 37 provides that after receiving the record of the disciplinary proceedings and inquiry report, the charged employee shall be given a notice to show cause or to appear in person and place his case before the disciplinary authority. It is admitted by the Principal, who being the competent authority that the procedure as provided under the Regulations was not followed, chargesheet was not issued nor any enquiry was conducted.
It is settled principle of law that a permanent employee of an Institution can be inflicted the punishment of dismissal only on complying with the procedure as prescribed under Regulations.
In the facts of the present case, it is not in dispute that the petitioner on 24 May 2010 was issued only a show cause notice by the Principal on the alleged directions of the Joint Director dated 4 May 2000, to explain as to why the petitioner's service may not be terminated under Chapter III, Conditions of Service (Section 16-G) of the Regulations, being a relative of the then Manager of the Institution. The petitioner pursuant to the notice submitted a reply stating that at the time of appointment, the petitioner's father-in-law was neither the Manager nor a member of the Committee of Management. The Principal relying upon the observations made by the Joint Director in his order dated 4 May 2000 straight away passed the impugned order on 16 June 2010 terminating the service of the petitioner.
It is relevant to point out that the order dated 4 May 2000 was passed by the Joint Director pursuant to a direction dated 28 October 1997 issued in a writ petition. The said writ petition was filed by the Society through its Secretary/Manager Harishanker Prasad Surraff challenging the appointment of the sixth respondent, Smt. Ambalika Devi, Assistant Teacher in the Institution. The petition was disposed of merely directing the Joint Director to decide and consider the representation of the petitioner. The grievance of the petitioner (Society) in that writ petition was that Smt. Ambalika Devi was appointed as teacher in L.T. Grade without following the procedure prescribed for appointment of an ad-hoc teacher by the Authorized Controller. It is not disputed by the respondents that the petitioner was not a party to the said writ petition nor her appointment was subject matter of challenge. While deciding the representation, the Joint Director made certain observations, wherein, it was stated that the Committee of Management was superseded by the State Government for the alleged irregularities committed by the then Committee of Management which included the illegal appointment of the present petitioner. The observations made by the Joint Director while deciding the representation became the basis for terminating the service of the petitioner.
In the opinion of the Court, such an action on the part Principal in terminating the service of the petitioner merely on a show cause notice was wholly arbitrary and illegal without following the mandatory procedure prescribed under the Regulations. In case the Principal decided to proceed against the petitioner, specific charges were required to have been framed indicating the imputation of misconduct supported by the documents, thereafter, calling upon the petitioner to submit her reply. No procedure as such was followed. The question as to whether the petitioner was appointed when her father-in-law was the Manager is being raised after 32 years of her appointment, is a question of fact. This fact could have been determined only in a regular enquiry. The State respondents admit that they do not have any record pertaining to the Institution prior to 1990. The Court in writ jurisdiction cannot go into such disputed questions of fact at the first instance. It was open to the Principal to have proceeded as per the Regulations by initiating an enquiry. The service of the petitioner could not have been terminated pursuant to general observations made in the order dated 4 May 2000 passed by the Joint Director of Education, which contains no adjudication either with regard to the validity or otherwise of the appointment of the petitioner nor with regard to the fact as to whether Ram Chhabile Srivastava was the Manager at the time of appointment of the petitioner. It is admitted that the petitioner has since superannuated and there is no provision under the Regulations to initiate disciplinary proceedings after retirement of an employee.
Enquiry commences with the issue of charge-sheet as held in the case of Union of India vs. K.V. Jankiraman1, Union of India vs. Anil Kumar Sarkar2, and State of Andhra Pradesh vs. C.H. Gandhi3. Framing of the charge-sheet is the first step taken for holding an enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the employee follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision (vide Delhi Development Authority vs. H.C. Khurana4). Once the enquiry was not initiated or contemplated or pending before retirement, the same cannot be continued after retirement, unless there is a rule to that effect. The learned counsel for the respondents has failed to show any regulation or circular to the effect that disciplinary proceedings could be initiated after retirement and under what circumstances.
A Division Bench of this Court in Smt. Parmi Maurya vs. State of U.P. and others5, while interpreting the Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, held that it is obligatory for the employer to frame charge and conduct the disciplinary enquiry for imposing major penalty. Paragraph 7 is extracted:-
"7. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held."
Similarly, in Smt. Munni Devi vs. State of U.P. and others6, it was held that oral inquiry would be mandatory before imposing major penalty.
Paragraph 9 is as follows:-
"9. The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgement as under:
"10. ----------- Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case.
11.A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Cooperative Spinning Mills & others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."
A Division Bench of this Court in Dr. Subhash Chandra Gupta v. State of U.P. and others7, while dealing with the provision of rule 7 and 9 of the Rules applicable to Government Servants, held that the procedure for imposition of major penalty is mandatory and where the statute provides to do a thing in a particular manner that thing has to be done in that manner. Paras 15 is as follows:-
"15. It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831, as well as by a Division bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541."
The Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board8, was considering the case that as to whether disciplinary proceedings after retirement of an employee could be continued in absence of any rule to that effect. The Court made the following observation:-
"Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."
The Supreme Court in Mathura Prasad v. Union of India and others9, held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules were required to be strictly complied with:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."
The Supreme Court in State of Jharkhand vs. Jitendra Kumar Srivastava10, held that in absence of any provision in pension rules, the State Government cannot withhold even a part of pension or gratuity during pendency of the departmental or disciplinary proceedings.
The Supreme Court in Punjab State Power Corporation Limited vs. Atma Singh Grewal11, held that initiation of departmental enquiry after retirement de hors statutory rules was impermissible.
A Division Bench of this Court in Ravindra Singh Rathore vs. District Inspector of Schools, Etawah and others12, held that Civil Service Regulations are not applicable upon the employees of State aided educational institutions, therefore, disciplinary proceedings against a teacher cannot be continued after retirement.
In Dakshinanchal Vidyut Vitran Nigam Limited vs. Aziz Ullah, 13the Court held that the disciplinary proceeding commences with the issue of chargesheet and can be continued after retirement if there is a specific provision to that effect in the rules.
The facts are not in dispute between the parties. It is admitted that no charge-sheet was issued to the petitioner as required under the Regulations for initiating disciplinary proceedings for imposing penalty. The enquiry had not commenced before the petitioner had superannuated. The learned counsel for the respondents failed to point out any rule as to whether disciplinary proceedings could be initiated against the petitioner after retirement. Even otherwise, after retirement the penalty of termination cannot be imposed as the employer/employee relationship no longer exists. There is no allegation of causing loss to the Institution which is to be recovered, hence no enquiry could have been initiated against the petitioner after retirement. The impugned order of termination was passed on 16 June 2010 merely on a show cause notice. The petitioner retired on attaining the age of superannuation, thus on the date of superannuation, there being no enquiry pending or contemplated and by adopting a procedure in violation of Regulations 35 to 37 by straightway terminating the petitioner was wholly illegal and arbitrary exercise of power.
Accordingly, the impugned order dated 16 June 2010 passed by the sixth respondent, Principal, Rastriya Kanya Inter College, Barhalganj, District Gorakhpur terminating the service of the petitioner is quashed.
The writ petition is allowed with all consequential benefits. The petitioner shall be entitled to salary till the date of her superannuation, her retiral dues shall be paid by the District Inspector of Schools, Gorakhpur within three months from the date of production of the certified copy of this order failing which petitioner shall be entitled to 8% interest on the sum from the due date.
The petitioner being a Class-IV employee was subjected to harassment and victimization, as such, she is entitled to costs which is quantified at Rs.20,000/- payable by the sixth respondent, the Principal of the Institution.
Order Date :- 30 March 2015 Mukesh Kr.