Allahabad High Court
C/M Baba Hari Narayan Das Vidyalaya Thru ... vs State Of U.P.And 6 Ors. on 17 July, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 61556 of 2013 Petitioner :- C/M Baba Hari Narayan Das Vidyalaya Thru Manager And Anr. Respondent :- State Of U.P.And 6 Ors. Counsel for Petitioner :- Suresh Chandra Dwivedi Counsel for Respondent :- C.S.C.,Alok Dwivedi,Gopal Srivastava,Sunil Kumar Singh Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
The writ petition is directed against the order dated 23.10.2013 passed by the District Basic Education Officer, Kanpur Nagar whereby directions had been given to submit bills for payment of retiral dues of the petitioner within 15 days, failing which adverse action would be taken against the Manager. Simultaneously, the petitioner was directed to furnish necessary papers/documents to the officiating Head master of the Institution.
The stand of the petitioner Committee in the present petition is that the respondent no.7 was given charge of the Head master of the Institution in 1997 after death of the then Headmaster Ram Babu Yadav. It is contended that the appointment of the petitioner to the post of Head master was though de hors of the Rules but he was getting salary in collusion with the educational authorities till the date of attaining the age of superannuation. Further on retirement, the petitioner on 30.6.2011 did not hand over the charge of the office of the Head master. Several letters were written by the Manager to the educational authorities but nothing had been done. Senior most teacher who was officiating Head master in the Institution also wrote several letters between 2011 to 2013 seeking intervention of the educational authorities. Audit objection was made on 30.3.2013 regarding misappropriation of the agricultural income of Rs.1,90,440/- during the tenure of respondent no.7 as Head master. Fixed deposit receipts issued by the District Cooperative Bank Branch, Billahaur, Kanpur Nagar which were matured on 17.3.2004, had not been handed over to the Management by the respondent no.7.
Specific stand has been taken in the writ petition that the answering respondent no.7, did not hand over the charge of the office of Head master by providing all the original documents of the office to the officiating Headmaster and, therefore, No dues had not been given to him by the Manager. For the said facts, the Manager of the Institution had no obligation to forward salary bills of the respondent no.7. It is further contended that the salary for the period between 1.7.1984 to 30.7.1995 from the State Exchequer had already been paid to Sri Ram Babu Yadav, the then Head master. The claim of the petitioner for arrears of salary for the said period, therefore, is not acceptable.
Submission is that the District Basic Education Officer, Kanpur Nagar had not adverted himself to the dispute in the correct perspective and simply proceeded to direct the Manager to provide salary bills on the basis of the order dated 11.10.2013 passed by the Secretary, Backward Commission, U.P., Lucknow, who had no say in the matter. In case the order impugned is allowed to stand, the respondent no.7 would get salary for the period for which he did not work on the post of Headmaster in the Institution and it also result in dual payment from the State Exchequer for one post. The claim of salary worth Rs.3,44,013/- from 1.7.1984 to 31.12.1996 of the respondent no.7, is illegal.
Learned counsel for the respondent no.7 in rebuttal, vehemently submits that the stand of the petitioner that the respondent no.7 did not hand over charge of his office to the officiating Head master is false. Rather, the petitioner had written several letters to the Educational authorities intimating that the officiating Head master of the Institution had ransacked the office of the Headmaster and had taken away all the original records after the respondent no.7 was suspended on 3.2.2004. After reinstatement vide order 28.2.2004, the respondent no.7 made all efforts to get the record of his office back from the then officiating Head master but no results. The institution was being managed by the Authorised controller at that time but he did not take any action.
Moreover, department proceeding or any adverse action had been taken against the answering respondent during service on the allegations levelled here.
After retirement, the answering respondent no.7 cannot be subjected to harassment by denial of his rightful claim of retiral dues. It is not open for the Manager of the Institution to assert that the retiral dues are not payable as the record of the office of the Headmaster is not available or had not been provided by the answering respondent. The defence that the charge was not handed over to the officiating Head master is an act of harassment. This stand of the petitioner to deny the claim of G.P.F and benefits of 6th Pay Commission to the answering respondent cannot be sustained in the eye of law.
Considering these submissions, relevant is to note the averments in the counter affidavit of respondent no.7 and the admitted facts of the matter are that the Committee of Management of the Institution was superseded in the year 2004 and Authorised controller was managing the Institution till the year 2011. The petitioner Committee of Management of the Institution was recognized only in the year 2013 and the signatures of the Manager was attested on 27.7.2013 after determination of the dispute relating to election of Committee of Management. The result is that from the year 2004 till the date of retirement of the respondent no.7 ie 30.6.2011, the petitioner Committee of Management was not in effective control of the institution.
The answering respondent no.7 in paragraph '7' of the counter affidavit submits that he was initially appointed on 1.7.1974 as Headmaster of the Institution and became permanent on 1.7.1977. The then Manager of the Institution had forcibly obtained resignation of the answering respondent on 1.4.1978 and tried to oust the answering respondent from the Institution. The Civil Suit no.125 of 1985 filed by the answering respondent was decreed on 22.11.1996 and he was declared validly appointed Headmaster of the Institution. Arrears of salary was also required to be paid to the answering respondent pursuant to the said decree. It is contended that the signatures of the answering respondent as Headmaster of the Institution was, thereafter, attested by the Assistant District Basic Education Officer, Billahaur, Kanpur Dehat on 13.12.2016.
After the Authorised controller was appointed in the Institution, the answering respondent no.7 was suspended on 3.2.2004. The contentions in para '10' and '12' of the counter affidavit are that after suspension of the answering respondent, one Sri Suresh Chandra Katiyar claiming to be Incharge Headmaster had taken all original documents of the office of the Head master by breaking lock from the almirah of the room of the Head master in the institution. This incident was reported by the answering respondent to the Police authorities vide letters written on 21.2.2004 and 4.12.2004. The Authorised controller on 20.2.2004 had taken keys of the room of Head master from the answering respondent and handed over the same to the officiating Head master. The assertion of the answering respondent, thus, is that after his suspension, Sri Suresh Chandra Katiyar the officiating Head master took away all the original records of the office of the Head master and had never returned the same to the answering respondent, after he took over charge of the Head master in the year 2006.
It was, thus, contended by the learned Advocate that the answering respondent cannot be asked to hand over the charge of the office of the Head master to the officiating Head master, who is actually in possession of the entire original record. He further submits that the records were handed over to the petitioner by the officiating Head master who is own man of the Manager but the same are not being given to the educational authorities just to harass the answering respondent. It is contended that the answering respondent is also entitled for the salary to the post of Headmaster of the Institution between 1.7.1984 to 31.12.1996.
In the light of the assertions in the counter affidavit as noted above, it is evident that the dispute is with regard to loss of record of office of the Head master and as to who is responsible for the same.
Answering respondent no.7 admits that he did not hand over charge of his office to his successor on his retirement on 30.6.2011. Rather his stand is that since record was already in possession of his successor who took them during his suspension and as all the records of his office were not handed over to him when he resumed office in 2006, there was no question of handing over the same on retirement. The present Committee of Management came in effective control of the Institution in the year 2013 after retirement of the answering respondent no.7.
In this background, stand of the petitioner that in absence of the original record of service of the respondent no.7, it was not possible to forward his bills is found to be justified.
Even the order impugned records that the then Authorised controller wrote letters dated 15.7.2011, 22.7.2011 and 10.10.2011 to the answering respondent to hand over the charge of the Head master to get No dues certificate but the said orders had not been followed. An enquiry was ordered by the Block Education Officer and the then Head master of the Institution was directed to submit papers pertaining to pension and retiral dues of the answering respondent. Simultaneously, the answering respondent was directed to submit No dues in the office of the District Basic Education Officer. The Block Education officer vide letter dated 3.4.2012 had informed the District Basic Education Officer, that the charge of the office was not handed over by the answering respondent who had orally informed that he did not possess any record of the office of Head master.
It is recorded in the order impugned that the pension papers of the answering respondents were forwarded from the office of the District Basic Education Officer, Kanpur Nagar vide letter dated 2.5.2012 to the Additional Director, Kanpur Nagar, Treasury and Pension Kanpur Nagar and an order dated 1.5.2012 was passed by the Finance and Accounts Officer, Basic Education, Kanpur Nagar to make payment of arrears of salary of two months. Direction was also given to the Manager of the Institution to ensure that the record of office of the Head master be handed over to the officiating Head master by the answering respondent taking assistance of the police.
It was, thus, concluded by the District Basic Education Officer, Kanpur Nagar in the order impugned itself that the manager was facing difficulty in processing the claim of answering respondent in view of the said dispute. If the entire records is not made available, there would be a possibility of making excess payment to the answering respondent. Despite having reached at this conclusion, the District Basic Education Officer had proceeded to direct the Manager of the Institution to process the claim of the answering respondent no.7 in view of the order dated 11.10.2013 passed by the Secretary, Backward Commission, U.P., Lucknow.
The District Basic Education Officer, Kanpur Nagar also records that the answering respondent is guilty of non compliance of the directions issued from his office and was making baseless allegations against his office. The answering respondent had received his original service book from the office of the Additional Director, Treasury after his pension was approved but the same was not returned to the office of the District Basic Education Officer. He further records that all possible assistance was given from the office of District Basic Education Officer to the Finance and Accounts Officer, Manager and officiating Headmaster of the institution as also to the answering respondent no.7 but the dispute between them could not be resolved.
In the said circumstances, taking note of the result of enquiry conducted by the District Basic Education Officer, Kanpur Nagar, it is evident that there was a genuine dispute of loss of service record of the answering respondent. Answering respondent no.7 in the counter affidavit himself admits that he did not hand over the charge of his office on retirement to the officiating Head master and did not submit No dues in the office of the District Basic Education officer, his entitlement, therefore, could not be examined.
The directions issued by the District Basic Education Officer to process all claims of the answering respondent within 15 days, therefore, cannot be sustained. The order dated 23.10.2013 passed by the District Basic Education Officer is hereby set aside.
Further, in the light of the facts emerging from the record, it is required that an independent enquiry be conducted by the Director of Education, Basic, U.P, Lucknow, with regard to the claim of the answering respondent no.7. The Director of Education, Basic, UP, Lucknow is hereby directed to initiate an enquiry by appointment of an officer of the Education Department within a period of three weeks from the date of receipt of certified copy of this order. The enquiry officer shall examine the answering respondent no.7, the then officiating Head master of the institution in question, the then Authorised Controller, the District Basic Education officer, the Finance and Accounts officer as also the Manager of the institution to record their version and to reach at a just conclusion with regard to the dispute pertaining to loss of record of the office of the Head master of the institution. An effort shall be made by the enquiry officer to conclude the enquiry within the shortest possible time, preferably, within a period of three months from the date of his appointment. On the receipt of the enquiry report, the Director of Education shall consider the matter of entitlement of the petitioner to all claims put by him, by passing a reasoned and speaking order in accordance with law, preferably, within a period of one month, thereafter.
Subject to the above, the writ petition is disposed of.
Order Date :- 17.7.2019/Harshita