Allahabad High Court
C/M Shiraze Hind Inter College And ... vs State Of U P And 3 Others on 30 March, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 28.10.2021
Delivered on 30.03.2022
Case :- WRIT - A No. - 9763 of 2021
Petitioner :- C/M Shiraze Hind Inter College And Another
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Raees Ahamad,Sanjay Kumar Om
Counsel for Respondent :- C.S.C.,Rahul Mishra,Shahla Naz
Hon'ble Saral Srivastava,J.
1. Heard Sri S.K. Om, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1 to 3 and Sri Rahul Mishra, learned counsel for the respondent no.4.
2. The petitioner by means of the present writ petition has assailed the order dated 25.02.2021 passed by respondent no.3 by which he has stayed the order of termination of respondent no.4 subject to the decision of Criminal Case No.141 of 2020, under Sections 379, 419, 420 and 506 I.P.C. and directed the petitioner to submit salary bills of respondent no.4.
3. The petitioner is Committee of Management of Shiraze Hind Inter College, Murki, Kerakat, District Jaunpur (hereinafter referred to as 'college'). The said college is recognized and aided intermediate college governed by the provision of U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921') and also U.P. Act No.24 of 1971. The petitioner claims that the college is a minority college and the provision of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'Act, 1982') is not applicable to the college being minority college.
4. The respondent no.4- Ashutosh Kumar Singh was appointed as Assistant Teacher on 04.08.2010 in the college. The respondent no.4 failed to discharge his duties properly as he was involved in groupism, politics and also trying to control the management of the college which effected the study of the students and future of the students of the college was at stake.
5. The respondent no.4 was issued a show cause notice by the petitioner which was replied by the respondent no.4 on 10.02.2020. The reply of respondent no.4 was placed before the petitioner for consideration. The petitioner found the reply of respondent no.4 to the show cause notice unsatisfactory and consequently, suspension order dated 17.02.2020 was issued against respondent no.4.
6. Thereafter, disciplinary committee on 05.05.2020 issued charge sheet against the respondent no.4 levelling six charges, which reads as under;-
"अतः आपके विरूद्ध जांच उपरान्त आरोप पत्र निम्नलिखित बिन्दुओं पर दिया जाता है।
(1) आपके कार्यकाल में विद्यालय (शीराजे हिन्द इण्टर कालेज मुर्की, केराकत, जोनपुर) की साख समाज में गिरी एवं विद्यालय, विद्यालय न रहकर राजनीति का अड्डा और एक अन्य स०अ० मो० राफे के साथ आपका धनोपार्जन का अड्डा बनकर रहा गया।
(2) आपके और अन्य स०अ० मो० राफे द्वारा छात्रों को कोचिंग और ट्यूशन पढ़ाने के लिए उत्प्रेरित किया जाता है और इसको लेकर छात्रों को मारा पीटा भी जाता है। आपके इस क्रिया कलाप से विद्यालय से छात्रों का पलायन तेजी से हो रहा है।
(3) आपके क्रिया कलाप एवं स०अ० मो० राफे के साथ गुटबाजी करके विद्यालय की व्यवस्था पर अधिकार जमाने हेतु प्रबन्ध समिति के साथ नूरा कुश्ती करने में व्यस्थ रहते हैं।
(4) आपको दिनांक 04.02.2020 को कारण बताओ नोटिस का जवाब कमेटी को न देकर आपने उल्टे कमेटी से ही सवाल पूछ लिये इससे प्रतीत होता है कि आप दबंग, अनुशासनहीन और सरकश किस्म के व्यक्ति हैं और आपका असामाजिक तत्वों से भी गठजोड़ है।
(5) आप द्वारा बार-बार शासन-प्रशासन को गुमराह करने का प्रयास किया गया जिससे विद्यालय को काफी आर्थिक व सामाजिक नुकसान उठाना पड़ा।
(6) विद्यालय में पठन पाठन कार्य में रूचि नहीं देते है। मोबाइल पर 'पबजी' गेम में व्यस्त रहते हैं।"
7. The respondent no.4 submitted reply to the aforesaid charge sheet on 09.05.2020. The respondent no.4 was aware of the fact that college was minority college and Section 16(G)(7) of the Act, 1921 is not applicable yet he wrote a letter dated 11.05.2020 to respondent no.3-District Inspector of Schools, Jaunpur.
8. On receiving the letter of respondent no.4, the respondent no.3-District Inspector of School passed an order dated 11.05.2020 directing the petitioner to submit salary bills of respondent no.4 as the suspension order became inoperative on expiry of 60 days in absence of approval of respondent no.3 in view of Section 16 (G) (7) of the Act, 1921.
9. In the reply to the charge sheet, the respondent no.4 denied all the charges levelled against him. However, disciplinary committee did not find the reply of respondent no.4 satisfactory and accordingly, petitioner committee of management passed an order dated 18.05.2020 terminating the service of respondent no.4.
10. Further case of the petitioner is that respondent no.4 submitted a representation against the order of dismissal dated 18.05.2020 on 04.06.2020 before the respondent no.3 levelling false and frivolous allegation against the petitioner. The respondent no.3 took cognizance of the representation of the respondent no.4 in exercise of power conferred upon him under Section 16-FF of the Act, 1921 and issued a notice to petitioner to appear before him on 22.06.2020. The petitioner showed their inability to appear on 22.06.2020 due to pandemic COVID-19.
11. When respondent no.4 failed in his attempt to get reinstated, he in collusion with respondent no.3 got issued a show cause notice to petitioner calling upon him to show cause as to why the college may not put under authorised controller.
12. The aforesaid notice was replied by the petitioner on 29.10.2020. However, respondent no.2 by order dated 28.12.2020 put the college under authorised controller.
13. Being aggrieved by the order of appointment of authorised controller, petitioner preferred Civil Misc. Writ Petition No.586 of 2021 and Contempt Application (Civil) No.1296 of 2021. However, the respondent no.2 after receiving notice of the contempt application, recalled the order dated 28.12.2020.
14. Further case of the petitioner is that they came to know in the first week of March that respondent no.3 has reinstated the respondent no.4 by order dated 25.02.2021 which order could be obtained by the petitioner under Right to Information Act. The order dated 25.02.2021 passed by respondent no.3 is impugned in the writ petition.
15. The respondent no.4 has filed counter affidavit denying the averments made in the writ petition. The respondent no.4 stated in the counter affidavit that enquiry against him was conducted dehors the principle of natural justice. It is stated that petitioner has neither supplied any evidence/material alongwith charge sheet based on which charge sheet was issued nor any oral evidence of any of the witness was recorded. Thus, respondent no.4 was not given any opportunity to rebut the charges levelled against him nor was given opportunity to cross examine any of the witnesses, who supported the charges. It is stated that Section 16(G) to Section 16(I) of the Act, 1921 which provides condition for service of Head Master or Teacher is applicable to the minority institutions. On the strength of aforesaid pleadings, it is stated in the counter affidavit that approval of the District Inspector of School is necessary before termination order is issued.
16. In the rejoinder affidavit filed by the petitioners, they denied the averments contained in the counter affidavit of respondent no.4.
17. The only contention which has been advanced by the learned counsel for the petitioner is that the order dated 25.02.2021 of respondent no.3 disapproving the termination order of respondent no.4 is without jurisdiction since the provision of Section 16(G)(3)(a) to Section 16 (I) of the Act, 1921 is not applicable in the case of minority institution. In other words, it is contended that District Inspector of Schools has exercised the power not vested in him under the statue in passing the order dated 25.02.2021 by which he has stayed the termination order of respondent no.4 and directed the petitioner to submit salary bills of respondent no.4 which shall be subject to decision of Criminal Case No.141 of 2020, under Sections 379, 419, 420 and 506 I.P.C. against respondent no.4.
18. In support of his case, learned counsel for the petitioner has placed reliance upon the judgement of Apex Court in the case of Committee of Management St. John Inter College Vs. Girdhari Singh and Others 2001 (4) SCC 296, and judgement of this Court in the case in the case of (Kumari Udyan Balika Inter College, Kanpur and Others Vs. D.I.O.S., Kanpur Nagar and Others) passed in Writ-A No.15379 of 2006.
19. Per contra, learned counsel for the respondents would contend that provision of Section 16(G)(3)(a) to Section 16 (I) of the Act, 1921 is applicable in the present case in view of the judgement of Apex Court in the case of The State of Uttar Pradesh and Others Vs. Principal Abhay Nandan Inter College and Others AIR 2021 SC 4968.
20. I have considered the rival submissions of learned counsel for the parties and perused the record.
21. In the instant case, it is not in dispute that the college is a minority college established under Article 30 of the Constitution of India.
22. Now, before appreciating the controversy on facts, it would be apt to refer to the judgement of Apex Court relied upon by the learned counsel for the petitioner.
23. In the case of Committee of Management St. John Inter College (supra), the Apex Court has reversed the judgement of High Court holding that in case of a minority institution, approval under Section 16(G)(3)(a) of the Act, 1921 is necessary. Paragraph 6 of the said judgement is reproduced herein below:-
"6. Let us now notice some of the decisions of this Court. In Kerala Education Bill, 1957, AIR 1958 SC 956, this Court had observed the constitutional right to administer an educational institution by the minority of their choice does not necessarily militate against the claim of the State to insist that it may prescribe reasonable regulations to ensure the excellence of the institutions. In Sidhajbhai Sabbai vs. State of Gujarat AIR 1963 SC 540, a Constitution Bench observed that Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed and such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in the matters educational. In State of Kerala vs. Very Rev. Mother Provincial, (1970) 2 SCC 417, it had been stated that the right of management in respect of a minority institution cannot be taken away and vested with somebody else, as that would be encroachment upon the guaranteed right but that right is not an absolute one and it is open to the State to regulate the syllabus of the examination and discipline for the efficiency of the institution and the right of the State to regulate the education or educational standards and allied matters cannot be denied. In St. Xavier's College Society vs. State of Gujarat (1974) 1 SCC 717, this Court had observed:
"31. Regulations which will serve the interest of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.
In Lilly Kurian vs. Sr. Lewina (1979) 2 SCC 124, the Court had observed:
"36. Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Article 30(1) means 'management of affairs' of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for mal-administration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned."
In Frank Anthony Public School Employees Association vs. Union of India (1986) 4 SCC 707, the Court was examining the validity of Section 12 of the Delhi School Education Act. Sections 8(1), 8(3), 8(4) and 8(5) were held not to have encroached upon any right of the minority to administer their educational institutions. But Section 8(2) which stipulated that no employee of a recognised private school shall be dismissed, removed or reduced in rank nor will his services be terminated except with the prior approval of the Director was held to have interfered with the right of the minority, and therefore, the said provision was held to be inapplicable to the minority institutions. The aforesaid dictum, no doubt, was in respect of an unaided minority institution. The conspectus of the aforesaid decision would indicate that there would be no bar for the Government to have regulatory measures for ensuring a standard of excellence of the institutions and such a measure would not in any way affect the right of the minority to administer its institutions engrafted in Article 30 of the Constitution. But notwithstanding the same, if the so called regulatory measures confer power on any specified authority, without indicating any guidelines for exercise of that power, then exercise of such power by the appropriate authority would offend the provisions of Article 14 and would not be allowed to be retained, as that would amount to an arbitrary inroad into the right of the minority, in the matter of administering its institutions. In another words, if the regulatory provision conferring power on the educational authority is uncanalised and unguided and does not indicate any guidelines under which the educational authority could exercise the said power, then in such a case, the conferment of a blanket power on the educational authority would interfere with the right of control of the employer-minority institution in the matter of exercising disciplinary control over the employees of the institution. So adjudged, we are unable to find any guideline in Section 16G(3)(a) of the Uttar Pradesh Intermediate Education Act to be followed by the Inspector in the matter of approving or disapproving the order of termination of service of an employee of the aided educational institution. We are unable to accept the reasoning of the majority judgment of the Full Bench of the Allahabad High Court that Regulation 44 provides the guidelines. The said Regulation 44 merely prescribes the period within which the Inspector or Regional Inspectress is required to communicate his/her decision to the Management and further in a case where all the papers have not been received from the Management, the said Inspector/Inspectress could call for the papers from the Management. But that by no stretch of imagination can be held to be providing the guidelines for exercise of power in the matter of approval or disapproval of the order of termination passed by the Management. Since no appropriate guidelines have been provided for exercise of power under Section 16G(3)(a) of the Act, it must be held that such an uncanalised power on the Inspector or the Inspectress would tantamount to an inroad into the power of disciplinary control of the Managing Committee of the minority institution over its employees and as such the said provision would not apply to the minority institution, as was held by this Court in Frank Anthonys case. In this view of the matter, the majority view in the Full Bench Judgment of Allahabad High Court must be held to be erroneous and cannot be sustained."
24. This Court also in the case of Kumari Udyan Balika Inter College (supra) after noticing various paragraphs of the judgement of Apex Court in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others (2002) 8 SCC 481 and in the case of Committee of Management St. John Inter College (supra) has held that District Inspector of Schools had no jurisdiction to revoke the order of dismissal of a teacher of a minority institution. Relevant extract of the judgement of this Court is extracted herein below:-
"A similar matter came up before a Division Bench of this Court in Special Appeal no.1059 of 2001, Mohammad Shafiquzzama vs. Committee of Management, Daulat Hussain Muslim Indian Intermediate College, Allahabad & others and the Division Bench of this Court has held as follows:-
"Counsel for the parties stated that no Educational Tribunal has yet been set up by the State Government as observed by the Apex Court in the said judgement nor any notification has been issued by the State Government authorizing the District Judge or the Additional District Judge to hear the cases of employees of minority institutions. The appellant who is challenging the disciplinary proceedings and the consequential dismissal order, has remedy of filing a civil suit challenging the dismissal order and the provision. Section 9 of the Code of Civil Procedure is wide engouth to provide remedy to the appellant. Till the Educational Tribunal is constituted by the State Government as observed by the Apex Court, it is open to the appellant to file a civil suit in competent court challenging the dismissal order. In view of the fact that the appellant is not alleging violation of any statutory provision in conduct of enquiry, no relief can be granted to appellant in the writ proceedings. However, we observe that in case the appellant challenges the dismissal order in a civil suit, the observations made by the learned Judge of this Court while dismissing the writ petition on merits of the case, shall not come in the way of the appellant and the suit proceedings be decided independently on the basis of the materials before the competent court and the said court will not in any manner feel itself bound by the observations made by the learned Single Judge in dismissing the writ petition. In view of the nature of the disputed which has been raised by the appellant we further observe that if civil suit is filed by the appellant the same may be disposed of expeditiously. We do not find any good ground to interfere with the order of the learned single Judge dismissing the writ petition.
This special Appeal is dismissed with the observations as made above."
25. Similar view has been taken by this Court in the case of Committee of Management Clancy Intermediate College Through Manager Vs. State of U.P. and Others passed in Writ-A No.15765 of 2016.
26. A scant analysis of the judgement of Apex Court in the case of Committee of Management St. John Inter College (supra) shows that Apex Court has considered the issue as to what restrictions/regulations would not interfere with the right to run minority institution under Article 30 of the Constitution of India.
27. The Apex Court emphasized that the protection given to the minority institutions under Article 30(1) of the Constitution of India for mal administration, regulations which are framed to ensure the standard of institution and are for the benefit of institution are permissible, but the moment it goes beyond a mere regulation but may impair the right of administration of minority institutions, Article 30 of Constitution of India comes into play and such regulation is hit by Article 30 of Constitution of India.
28. The Court found that as Section 16(G)(3)(a) of the Act, 1921 provides no appropriate guidelines to the District Inspector of School the manner in which the power conferred on it is to be exercised, that would tantamount to an inroad into the power of disciplinary control of managing committee of minority institution over its employees; hence the said provision would not apply to the minority institution as it impinges the right of minority to have disciplinary control over its employees.
29. It is worth to point out that after enactment of Act, 1982, the power of approval or disapproval as provided under Section 16(G)(3)(a) of the Act, 1921 has been vested in the Board under the Act No.5 of 1982. Section 32 of the Act No.5 of 1982 which deals with the applicability of Act, 1921 provides that provision of Act, 1921 and regulations framed therein so far as they are not inconsistent with the provisions of the Act, 1982 or rules made thereunder shall remain in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in the rank of a teacher.
30. Further, Section 30 of the Act, 1982 states that the provisions of the said Act shall not apply to the institution established and administered by a minority referred to in Clause (1) of Article 30 of Constitution of India. Thus, reading of Section 30 of the Act, 1982 clearly suggests that legislature did not want to put any fetter upon the power of management of minority institution in disciplinary matters otherwise there was no reason for the legislature to exclude the minority institution from the purview of Act, 1982.
31. Thus, in view of the judgemen of Apex Court, the District Inspector of School has no jurisdiction to interfere with the power of administration with respect to their right to take disciplinary action against their staff.
32. In view of the aforesaid fact, this Court finds that as admittedly, petitioner's college is a minority college, therefore, District Inspector of School has no jurisdiction to pass the order dated 25.02.2021.
33. Now, coming to the judgement relied upon by the learned counsel for the respondents in the case of Principal Abhay Nandan Inter College (supra). Perusal of paragraphs 32 to 35 of the said judgement on which reliance has been placed by the learned counsel for the respondents does not indicate that Apex Court has held that District Inspector of School has jurisdiction to interfere with the power of management of a minority institution to take disciplinary action against their staff. Perusal of the aforesaid paragraphs further indicates that Apex Court has elaborated that the regulations framed for the benefit of public at large and for minority institution don't impinge the right of minority to run minority institution under Article 30 of Constitution of India, but it does not deal with a situation as in the present case.
34. Thus, judgement of the Apex Court relied upon by the learned counsel for the respondents is not applicable in the facts of the present case.
35. Accordingly, order impugned dated 25.02.2021 is quashed with liberty to respondent no.4 to pursue his remedy available to him under the law.
36. For the reasons given above, the writ petition is allowed with no order as to costs.
Order Date:- 30.3.2022 Sattyarth