Himachal Pradesh High Court
Surender Singh Chauhan vs State Of H.P And Others on 23 April, 2015
Bench: Mansoor Ahmad Mir, Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA No. 392 of 2011 .
Judgment Reserved on 26.03. 2015 Decided on: 23rd April, 2015 Surender Singh Chauhan ......Appellant Versus State of H.P and others.
r ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes. For the appellant: Mr. Dilip Sharma, Senior Advocate with Ms. Nishi Goel, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma & Mr. V.S. Chauhan, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General for respondents No. 1 and 2.
Mr. Vinod Thakur, Advocate for respondent No. 3.
Dharam Chand Chaudhary, Judge Writ-petitioner Surender Singh Chauhan is in appeal before us. He is aggrieved by the judgment dated 13.06.2011 passed in Civil Writ Petition No. 3461 of 2010, whereby learned Single Judge while dismissing the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 2writ petition has refused to quash the impugned order .
Annexure P-12.
2. The writ-petitioner was appointed as Gram Vidya Upasak on 01.08.2002 in Government Primary School, Kuraya, Tehsil Shillai, District Sirmour by the 3rd respondent, Gram Panchayat Kiari Gundhah, Tehsil Shillai, District Sirmour under the Policy, Annexure P-1, framed by the respondent-State.
r He was deputed to attend five days' Teachers Training Programme w.e.f.
02.06.2009 to 06.06.2009 under 'Sarva Shiksha Abhiyan' in Government Primary School, Bakras, District Sirmour. He attended the said programme, as is apparent from Annexure P-3 to the writ petition. There being holiday on account of Sunday on 07.06.2009, he had to join duty on 08.06.2009. On that day, his daughter fell ill and he had taken her to Community Health Centre, Shillai. She was given medical treatment vide OPD ticket Annexure P-4.
On the same day, a team of State Vigilance and Anti Corruption Bureau raided some schools including Government Primary School, Kuraya in District Sirmour, allegedly on the complaints that some teachers are not attending to their duties and rather hired other persons on payment basis to teach the students studying in the schools by way of their replacement. The police party ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 3 amongst others also found the petitioner absent from the .
school and in his place one Inder Singh allegedly hired by him on payment basis was teaching the students.
The Director General of State Vigilance and Anti Corruption Bureau Himachal Pradesh had informed the 1st respondent vide letter dated 10.6.2009, Annexure R-1 about the outcome of the raid so conducted for further action in the matter. Consequently, show cause notice Annexure P-6 came to be issued to the petitioner by the office of the 2nd respondent and accordingly, inquiry was ordered to be conducted against him on the following charges:
Article-I That the said Sh. Surender Singh, GVU, now Primary Assistant Teacher was found absent form his duties on 8th June, 2009, which is totally misconduct or mis behaviour and Sheer violation of clause 4(iii) of the agreement executed by his under Gramin Vidya Upasak Yojana, 2001 & clause 5/j(iii) of the H.P. Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) scheme, 2003.
Article-II That the said Sh. Surender Singh, GVU, GPS, Kuraya has been running a private shop at his place has not taught in the school for quite some time past and employed one ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 4 local Sh. Inder Singh a student of 10th class for teaching work over one years and he was .
being paid Rs. 1000/- per month. Which
tantamount to breach of trust and
misconduct on the part of said Sh. Surender Singh and violation of various clauses of Gramin Vidya Upasak Yojna, 2001.
3.
r to
Pending inquiry, the petitioner
allowed to attend the school from 10th June, 2009, the was not day when memo Annexure P-7 was issued against him.
The inquiry was conducted and the report Annexure P-10 (Colly.) submitted to the 2nd respondent. A copy of the inquiry report was supplied to the petitioner vide memo Annexure P-10 and he was called upon to make representation, if any, before the same is considered for imposition of penalty upon him. The petitioner made representation Annexure P-11, which was considered along with the inquiry report by the 2nd respondent and vide impugned order Annexure P-12, the 3rd respondent was directed to cancel the agreement executed by the petitioner at the time of his appointment as Gram Vidya Upasak. The 3rd respondent was further directed to report compliance to the 2nd respondent within a month.
However, when the compliance was not reported, the ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 5 Deputy Director, Elementary Education, Sirmour advised .
the 3rd respondent to cancel the contract agreement under intimation to his office vide letter dated 23.04.2010 Annexure P-12 (Colly.). The 3rd respondent instead of cancellation of the agreement, expressed its readiness and willingness to extend the same even for the academic session 2010-11, as resolved vide Resolution No. 5 Annexure P-12/A in its meeting held on 10.06.2010.
It is in this backdrop, the writ petition came to be filed with the following prayers:
1) For issuing a writ of Certiorari or any other appropriate writ for quashing the order at annexure P-7, show cause notice annexure P-6, charge sheet annexure P-8, inquiry report enclosed with annexure P-10 being illegal, void and having been passed without jurisdiction and also without any merits whatsoever.
2) The directions issued to the Gram Panchayat by the State vide annexure P-12 w.r.t. cancelling the agreement executed with the petitioner and also for not renewing its any further, may kindly be held to be illegal and not binding upon the Gram Panchayat.
3) The respondents may kindly be directed to re-engage the petitioner as Gram Vidya ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 6 Upasak in Government Primary School Kuraya Tehsil Shillai District Sirmour.
.
4) The respondents may kindly be directed to pay admissible salary to the petitioner for the period 1.6.2009 till date along with interest."
4. The 1st and 2nd respondents while making a mention to the complaints qua hiring the services of other persons by the Teachers of some of the schools in District Sirmour for teaching the students in their place and conducting of raid/surprise checking of various schools including GPS Kuraya by the staff of State Vigilance and Anti Corruption Bureau, Himachal Pradesh, amongst others, the petitioner was also found absent from duty and allegedly hired the services of one Inder Singh to teach the students in the School in his place on payment basis. A reference of FIR 05/09 registered against the petitioner and others has also been made. The stand of the said respondents, therefore, is that the inquiry was conducted into the charges against the petitioner and on finding that the same stand proved, 3rd respondent was directed to cancel the agreement, he executed.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 75. The 3rd respondent in separate reply filed on .
its behalf has supported the case of the petitioner and also pleaded that to initiate the disciplinary action against the petitioner under the policy was within its sole domain and the respondent-State had no authority to hold any inquiry against him. Also that, the petitioner was absent from school only on 08.06.2009 and that too, on account of ailment of his daughter.
r The 2nd respondent, therefore, stated to have wrongly directed the 3rd respondent to cancel the agreement. The penalty so imposed upon the petitioner is also stated to be harsh and disproportionate. Also that, the 3rd respondent is satisfied with the work of the petitioner and has no objection in case he is allowed to continue as Gram Vidya Upasak in the school.
6. Learned Single Judge on appreciation of the material available on record has concluded as under:
"7. It is notoriously well known fact that in certain remote areas the teachers appointed do not function in the schools and they in turn engage students or other teachers to teach in the schools. On 8th June, 2009 the petitioner was not found present in the school and it was observed that he had engaged some other person in his place. Thereafter, the Director issued a notice to the petitioner and an inquiry was got conducted. Two ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 8 charges were leveled against the petitioner firstly that he was willfully absent on 8th June, 2009 and .
secondly that he was running a private shop and had not taught in the school for a long time and that one Inder Singh, a student of 10th Class, had been teaching in the school and the petitioner was paying him Rs.1000/- per month. Inder Singh obviously supported the petitioner. The Inquiry Officer examined witnesses and gave a finding that the petitioner had remained willfully absent from r duty. Thereafter, the Deputy Director (Elementary Education) directed the Gram Panchayat to cancel the agreement entered into with the petitioner.
8. The Gram Panchayat has passed a Resolution stating that it has no objection to continuing the agreement with the petitioner but till no objection is received from the State the Pradhan could not enter into the agreement. The stand of the Panchayat even in its reply is that the Gram Panchayat was satisfied with the work of the petitioner and it has no objection to continue the petitioner in service."
The writ petition has, therefore, been dismissed.
7. Complaint is that the charge qua engagement of Shri Inder Singh to teach the students in the school at the behest of the petitioner on payment basis is not at all proved. The petitioner was on leave ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 9 only for a day i.e. 08.06.2009 that too on account of .
ailment of his daughter, hence the present is not a case of willful absence from duty. However, irrespective of it, learned Single Judge has erroneously dismissed the writ petition and swayed only by the allegations set out in the FIR and passed the impugned order only on suspicion and not on proof.
8. to Additionally, the appellant-writ/petitioner has placed on record the statements of prosecution witnesses and also the judgment passed by learned Special Judge, Sirmour in Corruption Case No. 63-CC/7 of 2011, arising out of FIR No. 5/09 acquitting thereby the petitioner and others from the charge under Section 13(2) of the Prevention of Corruption Act, 33 of HP PSCP Act and 420, 467, 468, 471, 120B of the Indian Penal Code.
9. Shri Dilip Sharma, learned Senior Advocate assisted by Mrs. Nishi Goel, Advocate has vehemently argued that without there being any proof of the petitioner having not attended the school and taught the students and that rather hired the services of one Inder Singh on payment basis, learned Single Judge has wrongly upheld the order Annexure P-12 under challenge in the writ petition. According to Mr. Sharma, ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 10 the present at the most is a case of absence of one day .
from duty and the penalty imposed is not only harsh but disproportionate also. The writ-petitioner is attending the school regularly w.e.f. 11.07.2011, however, without payment of any remuneration. The writ-petitioner was not allowed to attend the school w.e.f. 11.06.2009 on the direction of the 2nd respondent. It has thus been urged that the period w.e.f. 11.06.2009 to 10.07.2011 may be ordered to be regularized by treating the writ-petitioner on duty notionally and from 11.07.2011, the respondents may be directed to pay him due and admissible remuneration.
10. On the other hand, learned Advocate General while repelling the arguments so addressed on behalf of the writ-petitioner has contended that the charges framed against the writ-petitioner were duly proved. Providing good education to the students is the paramount consideration of the respondent-State and a Teacher being paid from the grant released, the respondent-State has every control on him and even competent to initiate disciplinary action also. It has, therefore, been emphasized that when the charges against the writ-petitioner stand proved, he has rightly been removed from service.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 1111. The writ-petitioner is admittedly an employee .
of the 3rd respondent. Of course, he was being paid out of the grant released by the respondent-State in favour of the said respondent. The Policy Annexure P-1 framed by the State for recruitment of the Gram Vidya Upasaks has been discussed in detail by learned Single Judge in the judgment under challenge, therefore, there is no need of its elaboration here.
r Para 10 of the scheme makes it crystal clear that it is the Gram Panchayat concerned, the employer of Gram Vidya Upasaks and also the disciplinary authority. True it is that the remuneration to Gram Vidya Upasaks under the scheme is being paid by the Gram Panchayat out of the funds granted by the State Government. The release of funds, however, not authorize the Government to initiate the disciplinary action against a Gram Vidya Upasak, if he is found to have mis-conducted and failed to maintain discipline in discharge of his duties. Since the writ-
petitioner has been served with show cause notice by the 2nd respondent and even it is at the behest of the said respondent, disciplinary proceedings were ordered to be initiated against him and it is the said respondent, imposed upon the petitioner the penalty of cancellation of the agreement, he executed at the time of his ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 12 appointment as Gram Vidya Upasak. In our considered .
opinion, such a course of action is dehors the provisions under the scheme, because as per the same appointing and disciplinary authority of the writ-petitioner is the Gram Panchayat. The 1st and 2nd respondents at the most could have recommended the action to be taken
12. rOtherwise to against the writ-petitioner by the Gram Panchayat.
also, from the inquiry report Annexure P-10 (Colly.), it is only absence of the writ-
petitioner from duty on 08.06.2009 is proved and nothing beyond that. It is not proved nor Inquiry Officer concluded that the services of Shri Inder Singh were hired by the writ-petitioner to teach the students in his place on payment basis. Shri Inder Singh as per report rather was teaching the students in the school regularly for two hours w.e.f. September, 2008. The certificates Annexures A-2 and A-3 to the present appeal make it crystal clear that said Shri Inder Singh was working as an "Education Volunteer" in the village. He while appearing as PW-21 during the course of trial of Corruption Case No. 63-CC/7 of 2011, tells us that when Kumari Phulma, an Education Volunteer appointed in Government Primary School, Kuraya left the school, it is he who started imparting education to the students ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 13 under an NGO, namely 'Adhaar'. Thus, the services of .
Inder Singh were not hired by the petitioner to teach the students in his place and rather he was teaching the students in the school being "volunteer" of an NGO. The observations in the impugned judgment that said Shri Inder Singh during the course of disciplinary inquiry and incorrect.
r to trial supported the petitioner, seem to be factually
13. The writ-petitioner, no doubt, was found absent form duties on 08.06.2009. The OPD ticket of Community Health Centre, Shillai Annexure P-4, however, reveals that his daughter was ill and medically checked up on that day. The writ-petitioner can reasonably be believed to have accompanied his daughter to the hospital. Although, the application he allegedly sent to the school for sanction of one day's leave has not been produced on record and Shri Netar Singh, JBT, Incharge of the school during the course of disciplinary proceedings has stated that the writ-petitioner was not on duty on that day, however, for his absence that too only for a day, such a harsh and deterrent penalty should have been imposed is a question which heavily weigh with us. The alleged misconduct was not of such a nature warranting the punishment of cancellation of ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 14 the agreement and ultimately removal from service.
.
When the charge that the writ-petitioner was not attending the school and rather hired the services of Shri Inder Singh to teach the students in his place is not at all proved, a lenient view of the matter could have also been taken.
14. The criminal case registered against the writ-
petitioner and others stands decided by leaned Special Judge, Sirmour vide judgment dated 31.08.2013, a copy whereof has been placed on record of the present appeal. The charge has not been proved against either of the accused and they including the petitioner now stand acquitted. This development having taken place during the pendency of the present appeal also weigh with us and in our considered opinion, the writ-petitioner never hired the service of Shri Inder Singh on payment basis to teach the students in the school in his place.
15. The 3rd respondent is satisfied with the work and conduct of the writ-petitioner as Gram Vidya Upasak and even ready and willing to extend the contract entered upon with him further. A Resolution Annexure P-12/A to the writ petition has also been passed by the said respondent in this regard. In reply to the writ petition the said respondent has supported the ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 15 case of the writ-petitioner. As a matter of fact, it is the .
2nd respondent, who has directed the 3rd respondent to cancel the agreement executed with the writ-petitioner so that he can be removed from the school. Reference in this regard can be made to the letters dated 16.03.2010 and 23.04.2010, Annexure P-12 to the writ petition. We have already said at the outset that the 1st and 2nd respondents being not the appointing or disciplinary authority of the writ-petitioner could have not initiated disciplinary proceedings against him nor to impose any penalty including the penalty of cancellation of the agreement he executed and ultimately removal from service.
16. True it is that Article 21-A of the Constitution casts a duty upon the State to provide education to all children below 14 years of age. Thus, it is also the duty of the State to ensure that adequate infrastructure is provided and efficient, dedicated and sincere faculty is deployed in the schools. It is to fulfill such constitutional goal; the respondent-State has framed the scheme for deployment of Gram Vidya Upasaks in primary schools.
Under the scheme, it is the duty of the State to grant funds for payment of remuneration etc., to the Gram Vidya Upasaks and as regards their appointment, ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 16 supervisory control and disciplinary action, if found to .
have mis-conducted, is a task assigned to the concerned Gram Panchayat under the scheme.
Therefore, as already said, at the most, the respondent-
department could have only asked the Gram Panchayat to hold inquiry against the writ-petitioner so Panchayat.
r to that if found guilty, punished that too by the Gram
17. We feel that learned Single Judge having own notions that in remote areas, the teachers did not function in the schools and rather used to engage the students or other teachers to teach in their place as well as swayed by the allegations leveled in the FIR against the writ-petitioner, which ultimately turned to be false and that it is the respondent-State which provides funds by way of grant to the Gram Panchyat for engagement of Gram Vidya Upasaks has concluded that the respondent-State is competent to exercise supervisory control on them and to direct the Gram Panchayat concerned to terminate their services. But, our views are at variance with that of learned Single Judge, because in the case in hand, as we already said, the State Government at the most could have asked the Gram Panchayat to initiate disciplinary action against the ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 17 petitioner, but could not have initiated the disciplinary .
action itself as well as by way of penalty and issued a direction to the 3rd respondent to cancel the agreement entered upon with him. The impugned communication Annexure P-12 demonstrates that the respondent-State has not left any option with the 3rd respondent except for resorting to the cancellation of the agreement and ultimately removal of the writ-petitioner from the school.
It is a separate matter that the 3rd respondent has not yet cancelled the agreement as nothing to this effect has come on record.
18. We are, however, not in agreement with Mr. Dilip Sharma, learned Senior Advocate that from 11.07.2011, the writ-petitioner is regularly attending the school or teaching the students because nothing to this effect has come on record. Had it been so, the writ-
petitioner could have produced on record some contemporaneous record including certificate from the teacher incharge of the school in this regard. The bald assertions that too made during the course of arguments are not sufficient to hold that the writ-petitioner is regularly attending the school and teaching the students from 11.07.2011 onwards, hence entitled to the payment of remuneration.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 1819. The facts, therefore, remain that the writ-
.
petitioner was ordered not to attend the school vide letter dated 10th June, 2009 Annexure P-7. Therefore, it would not be improper to conclude that he is not on duty w.e.f. 11.06.2009 till date. Since the judgment under challenge, according to us, is not legally and factually sustainable and as such deserves to be quashed, therefore, the impugned order Annexure P-12 and also a direction issued to the petitioner vide letter dated 10th June, 2009 Annexure P-7 not to attend his duties in the school being illegal and unsustainable deserves to be quashed. However, the writ-petitioner is only entitled to regularization of the period w.e.f 11.06.2009 till joining of duties by him consequent upon this judgment notionally i.e. without payment of any remuneration. We, however, hold him entitled for reinstatement as Gram Vidya Upasak with all consequential benefits with immediate effect i.e. the day he joins his duties in the school.
20. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment passed by learned Single Judge in Civil Writ Petition No. 3461/2010 is ordered to be quashed and set aside. The period w.e.f.
11.06.2009 till reinstatement of the writ-petitioner, ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 19 consequent upon this judgment will be regularized by .
treating him in service notionally. The writ-petitioner will stand re-instated as Gram Vidya Upasak in Government Primary School, Kuraya, Tehsil Shillai, District Sirmour with all consequential benefits on the day he produces a certified copy of this judgment before the 3rd respondent.
The 2nd respondent shall ensure that the grant-in-aid is released regularly to the 3rd respondent for defraying the due and admissible remuneration to the writ-petitioner under the Scheme.
21. The appeal stands disposed of accordingly.
Pending application(s), if any, shall also stand disposed of.
(Mansoor Ahmad Mir), Chief Justice.
April 23, 2015 (Dharam Chand Chaudhary)
(naveen) Judge.
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