Allahabad High Court
Kumari Udyan Balika Inter College, ... vs D.I.O.S., Kanpur Nagar And Others on 8 March, 2013
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserve In Chamber Case :- WRIT - A No. - 15379 of 2006 Petitioner :- Kumari Udyan Balika Inter College, Kanpur And Others Respondent :- D.I.O.S., Kanpur Nagar And Others Petitioner Counsel :- Subhash Ghosh Respondent Counsel :- C.S.C.,K.K. Tripathi,Shasahank Tripathi Hon'ble B. Amit Sthalekar,J.
The petitioners in this writ petition are challenging the order dated 21.2.2006 passed by the District Inspector of Schools (D.I.O.S. II) Kanpur Nagar whereby the D.I.O.S. has declined to grant approval to the order dated 30.10.2004 passed by the Principal of the Institution-petitioners terminating the services of the respondent no.3. The petitioner-institution no.1 is a Christian Minority Community Institution recognised as such under Article 30 of the Constitution of India. The college is a recognised and aided institution upto the High School level and is governed by the provisions of U.P. Intermediate Education Act, 1921. There is a registered society in the name and style of 'Carmel Sadan Society', petitioner no.3, which is registered under the Societies Registration Act, 1860. The said college has a residence for sisters known as 'Fatima Convent', petitioner no.2. Sri Lakhan, the respondent no.3 was employed as a class-IV in the college and a residential quarter was also given to him in the Fatima Convent along with other care-takers for performing night guard duty at the entrance of the convent by weekly rotation in the Fatima Convent. Respondent no.3 was required to perform his duty from 10.00 to 6.00 p.m..
It is stated that on the night of 24.12.2003 the respondent no.3 was on night guard duty of the Fatima Convent. Being Christmas Eve all the nuns and sisters of the Convent had left the Convent around 11.45 p.m. for midnight prayer at the St. Frances Xavier Church, Kanpur Nagar. The nuns and sisters returned to the Convent on 25.12.2003 around 2.30 A.M. and were surprised to see that the channel lock and door of the first floor of the convent were broken and the rooms of Sister Meera and Sister Noreen (Principal) were ransacked and cash amounting Rs.1,12,000/- were stolen from the Almirah along with a Tape Recorder and Camera. The matter was reported to the S.H.O., Swaraoop Nagar, Kanpur on 25.12.2003 but he refused to lodge an F.I.R. and, therefore, the matter was taken up with the S.S.P. Kanpur Nagar and by the order of S.S.P., Kanpur Nagar dated 6.1.2004, F.I.R. No.3 of 2004, under Sections 457 and 380 I.P.C. was lodged against the respondent no.3 on 7.1.2004. Sri Lakhan, respondent no.3 was arrested and sent to jail on 10.1.2004. The police also filed a charge sheet against Lakhan on 28.1.2004. The matter is reported to be still under prosecution.
On account of arrest of the respondent no.3, he was placed under suspension by order dated 12.1.2004 by the petitioner no.1 and information in this regard was also forwarded to the District Inspector of Schools, Kanpur Nagar. Thereafter, a charge sheet was issued to the petitioner on 29.6.2004. A show cause notice was issued to him as to why his services may not be terminated for his involvement in a criminal act amounting to dereliction of duty and moral turpitude. Smt. Geeta Singh, Senior Teacher was appointed as Enquiry Officer and Sri A. Dubey, member of the management committee of the college was appointed as Presenting Officer in the departmental enquiry. The Enquiry Officer issued notice to the respondent no.3 on 25.8.2004. Respondent no.3 participated in the domestic enquiry and thereafter, the Enquiry Officer submitted her report on 10.10.2004 holding the respondent no.3 guilty of the charges levelled against him. The principal considered the enquiry report and thereafter passed an order dated 30.10.2004 dismissing the respondent no.3 from service. Respondent no.3 preferred a departmental appeal dated 30.11.2004 before the Committee of Management under section 16-G read with Regulation 31 of Chapter III of the U.P. Intermediate Education Act, 1921 and the Regulation framed thereunder. The Committee of Management considered the gravity of the criminal charge against the petitioner and findings recorded by the Enquiry Officer and the grounds taken in appeal and has rejected the appeal of the respondent no.3 by its order dated 25.4.2005. The respondent no.3, thereafter, preferred a representation before District Inspector of Schools. The petitioners also participated in the hearing before the District Inspector of Schools, respondent no.1 and justified its action vide its letter dated 4.5.2005. The Principal, petitioner no.1 also appeared before the District Inspector of Schools and also raised a preliminary objection that the institute being a minority institution the District Inspector of Schools was not competent to hear the matter. The District Inspector of Schools, however, by its impugned order dated 21.2.2006 has revoked the order of dismissal of the respondent no.3 and directed that the order of dismissal shall be subject to the outcome of the criminal proceedings against the petitioner.
I have heard Sri Subhash Ghosh, learned counsel for the petitioner and Sri Shashank Tripathi, learned counsel for the respondent no.3 and learned Additional Chief Standing Counsel for the respondent nos.1 and 2.
At the outset Sri Subhash Ghosh raised a preliminary objection that since the petitioners' institution is a duly recognised minority institution, therefore, it was protected under Article 30, clause (1) of the Constitution of India and the District Inspector of Schools was not competent to interfere with the order of dismissal of the respondent no.3 passed by the Principal of the College. Reliance has been place upon a decision of the Constitution Bench of the Supreme Court in the case reported in (2002) 8 SCC 481 T.M.A. Pai Foundation and others vs. State of Karnataka and others. Learned counsel has referred particularly to Question 5 (c) and the answer thereto formulated by the Supreme Court . Question 5 (c ) and its answer read as follows:-
"Q.5(c). Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration is concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of district judge. The state or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an education institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state without interfering with overall administrative control of management over the staff, government/university representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.
There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not restored to.
The extent of regulations will not be the same for aided and unaided institutions."
Learned counsel for the petitioners submitted that the Supreme Court has itself held that in the matter of punishment or termination from service of teaching and non teaching employees a mechanism will have to be evolved and appropriate Tribunals could be constituted presided over by Judicial Officer of the rank of District Judge.
Reference was also made to another decision of the Supreme Court reported in (2001) 4 SCC 296, St. John Inter College vs. Girdhari Singh particularly para-7 of the said judgement wherein the Supreme Court interpreting the provisions of Section 16-G (3) (a) of the U.P. Intermediate Education Act, 1921 read with Section 32 of the U.P. Secondary Education (Services Selection Boards) Act , 1982 has held as under:-
"7.The second submission of Mr. Rao on the basis of the coming into force of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 is also of great force. The Statement of Objects and Reasons of the aforesaid U.P. Act No. 5/82, unequivocally indicates that the earlier provisions contained under Section 16G(3)(a) of the Intermediate Education Act, 1921 were found to be inadequate, where the Management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the legislature thought that the power of approval or disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority like District Inspector of Schools but should be vested with an independent Commission or Board which could function as an independent and impartial body. With the aforesaid objective in view, the legislature having enacted the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 and the Service Selection Board having brought into existence in exercise of power under Section 3 of the aforesaid Act, the power of the Inspector/Inspectress under Section 16G(3)(a) of the Intermediate Education Act, 1921 no longer could be exercised, as it would be inconsistent with the provisions of U.P. Act No. 5/82 and would frustrate the very object for which the legislation has been enacted. Section 32 of the U.P. Act 5/82 provides:
Sec.32. Applicability of U.P. Act II of 1921.-The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act (or the rules made thereunder) shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. MR. Sharma, appearing for the respondents, vehemently urged before us that though for all other institutions, the power of approval or disapproval against an order of termination of an employee of an aided educational Institution had been vested with the selection board under U.P. Act 5/82, but in respect of the minority institution, it must be held to have been vested with the Inspector/Inspectress and that power still vested with those authorities, notwithstanding the coming into force the U.P. Act 5/1982. We are unable to accept this submission, as in our view, there cannot be any rational for conferring the power of approval or disapproval of an order of termination of an employee of a minority institution with the Inspector/Inspectress and with all other institutions with the Service Selection Board. Having conferred the power of approval/disapproval with the Selection Board under U.P. Act 5/82, the legislature made it crystal clear by inserting Section 30 therein which states: Nothing in this Act shall apply to an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution of India. The legislative intent is thus apparent that the legislature never intended to subject the order of termination of an employee of a minority institution to the approval/disapproval of the Selection Board. In this view of the matter, it is difficult for us to hold that an order of termination of an employee of a minority institution cannot be given effect to, unless approved by either the Inspector/Inspectress, as provided in Section 16G(3)(a) or by the Selection Board,as provided under U.P. Act 5/82. Under the provisions, as it stand, the conclusion is irresistible that question of prior approval of the competent authority in case of an order of termination of an employee of a minority institution does not arise. In the aforesaid premises, the majority view in the Full Bench Judgment of Allahabad High Court is set aside and this appeal is allowed. The writ petition filed, stands dismissed."
Sri Subhash Ghosh submitted that the Supreme Court has negated the contention that the order of termination of an employee of the minority institution cannot be given effect to, unless approved either by the Inspector/Inspectress, as provided under Section 16-G (3) (a) or by the Selection Board, as provided under the U.P. Act, 5/1982.
Learned counsel for the respondents, however, submitted that the District Inspector of Schools was fully empowered under the provisions of the Act, 1921 and the Regulations framed thereunder as well as the Act, 1982 to disapprove the dismissal of the respondent no.3 and, therefore, the impugned order should not be interfered with.
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.
The Division Bench had specifically relied upon para-64 of T.M.A Pai Foundation's case.
Thus in view of the law laid down by the Supreme Court in the case of St. John Inter College (supra) and T.M.A. Pai Foundation (supra) as followed by the Division Bench in Special Appeal no.1059 of 2001 it is clear that the remedy before the respondent no.3 against the order of dismissal or against the order of the Committee of Management lies before the civil court and the D.I.O.S. respondent no.1 had no jurisdiction to revoke the order of dismissal in the case of the present petitioners, which is admittedly a minority institution.
For reasons stated above, the writ petition is allowed. The order dated 21.2.2006 is quashed.
There shall be no order as to costs.
Order date:8.3.2013 Asha