Allahabad High Court
Jitendra Kumar Chaudhary vs State Of U.P. Through Its ... on 7 February, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
'AFR'
Neutral Citation No. - 2024:AHC:21633
Court No. - 34
Case :- WRIT - A No. - 6568 of 2018
Petitioner :- Jitendra Kumar Chaudhary
Respondent :- State Of U.P. Through Its Secretary,Secondary Education,Government Of U.P.,Lucknow And 6 Others
Counsel for Petitioner :- Budhi Ram Gupta,Madan Mohan
Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra
Hon'ble Ajit Kumar,J.
1. Heard Sri Budh Ram Gupta, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Y.S. Bohra, learned counsel for respondent nos. 5,6 and 7.
2. The petitioner before this Court is aggrieved of the notice issued by the District Inspector of Schools on 29th August, 2017 whereby he was required to comply the judgment and order of the Principal Judge, Family court dated 16.09.2016 in maintenance case no. 495 of 2008 failing which recovery shall be proceeded with from his salary.
3. The argument advanced by learned counsel for the petitioner is that District Inspector of Schools does not enjoy any authority to act as an executing authority of an order of court of law. He submits that as per maintenance law, proper remedy for the respondent nos. 5,6 and 7 was to apply for execution before the concerned court to get judgment and order executed . The District Inspector of Schools being an education authority could not have terrorized the petitioner to comply with directions of the family court else deduction would be made from his salary. He submits that power can be exercised by District Inspector of Schools vis-a-vis an employee of educational institution in terms of regulations prescribed for under relevant chapter of the Intermediate Education Act, 1921. Here there being not a case qua service or employment otherwise relating to the petitioner, nor there was any complaint as such, the District Inspector of Schools was not even competent to entertain a private complaint made by of respondent nos. 5,6 and 7 for the execution of the judgment of the Principal Judge, Family Court, Varanasi.
4. Learned Standing Counsel as well as learned counsel for the private respondent submits that it was a mere notice to which petitioner could have offered explanation to the District Inspector of Schools but they are not in a position to demonstrate as to under which section and regulation framed under the Intermediate Education Act, the District Inspector of Schools enjoys any such authority to entertain such application and then to proceed to take cognizance so as to issue notice for the execution of an order of a court of law, not arising out of any contract of employment or even relating thereto.
5. Learned Standing Counsel appearing on behalf of the State respondents submits that District Inspector of Schools later on realized the mistake and accordingly passed order on 08th March, 2018 stopping the deduction from salary of petitioner.
6. Having heard learned counsel for the respective parties and having perused the records, I find that the Principal Judge, Family, Court Varanasi passed the judgment and order under Section 125 of the Cr.P.C. and The protection of Women from Domestic Violence Act, 2005. For execution of an order passed under Section 125 of Cr.P.C. there is ample provision contained under Section 128 of Cr.P.C and therefore, private respondents could have approached the Court concerned for getting its order executed under Section 128 of the Code of Criminal Procedure that runs as under:
"A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due."
(emphasis added)
7. Similarly in respect of order passed under Section 20 of the The protection of Women from Domestic Violence Act, 2005 empowers the Magistrate to realized the amount and ensure that monetary relief is paid to the complainant. Section 20 of Domestic Violence Act is reproduced hereunder:
20. Monetary reliefs.--(1) While disposing of an application under sub-section (1) of section 12,the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
(Emphasis added)
8. From the relevant provisions framed under Chapter II and III of the Intermediate Education Act, 1921, I do not find any provision in existence to permit the District Inspector of schools to have taken cognizance of such matter. Chapter II deals with appointment vide its Section 16E, 16 F and 16FF and qualification prescribed under its Appendix 'A' and Chapter III deals with conditions of service of employees of such recognized and aided institution read with regulation contained under said Chapter. Regulation 46 to 52 provides for regular payment of salary to the employees without any deduction by the competent authority and the employee shall also be conferred upon with the benefit of the annual increments which shall not be stopped unless an employee visited with punishment withholding the same. Regulation 46 to 52, which are relevant for the purpose are reproduced hereunder:
"46. Employees shall be allowed the scale of pay sanctioned by the State Government from time to time.
47. The pay of an employee on his first joining service in an institution shall be fixed at the Initial stage of the time-scale attaching to his post: Provided that if he has served previously in another institution and earned increments, he may be given the benefit of such increments under conditions laid down by Government or the regulations. Provided further that advance increments may be allowed in special cases with the prior approval of Government.
48. On promotion to a higher post the initial pay of an employee will be fixed at the minimum of the new scale if his pay is less than his minimum otherwise at the stage of the new time. scale next above his pay.
49. The Committee will pay the salary of an employee for a month by the 15th day of the following month.
50. The payment of salary will be made in cash or by cheque. If an employee desires regular payment to be made by cheque instead of in cash necessary arrangements shall be made by the Committee, provided banking facilities are locally available, on receiving his salary by cheque or in cash, the employee shall sign the acquaintance oll duly stamped (if necessary) in token of such payment.
51. संस्था में स्थानापन्न अथवा मौलिक रूप से की गयी अविरल सेवा, वेतन के कालमान एवं वार्षिक वेतन वृद्धि के लिए संगणित की जायेगी, प्रतिबन्ध यह है कि कर्मचारी की ग्राह्य से अधिक बिना वेतन के अवकाश की अवधि अथवा चिकित्सीय आधार अथवा निजी कार्य पर लिये गये अवकाश की अवधि के लिये वेतन वृद्धि देय नहीं होगी। किसी विशेष वर्ष में अवकाश की अवधि में पड़ने वाली वेतन वृद्धि की तिथि उस तिथि तक स्थगित कर दी जायेगी, जिसको कर्मचारी अवकाश की समाप्ति पर कार्यभार ग्रहण करता है। अध्यापक वेतन की तिथि के दो माह पूर्व शिक्षा निदेशक द्वारा निर्धारित स्वमूल्यांकन प्रपत्र पर सूचनायें भरकर प्रधानाचार्य के माध्यम से प्रबन्ध तंत्र को देगा। प्रबन्ध तन्त्र आवश्यक अभिलेख जिसे वह उचित समझे, मांगेगा तथा वेतन वृद्धि समय से अनुमन्य किये जाने हेतु प्रधानाचार्य, अध्यापक को निर्देश देगा। यदि वेतन वृद्धि की तिथि तक कोई निर्देश नहीं देता तो मान लिया जायेगा कि अनुमति दे दी गई है।
52. कर्मचारी को वेतन के कालमान में वार्षिक वेतन वृद्धियों ग्राह्य होगी, जब तक कि उसकी वेतन वृद्धियाँ रोकने का दण्ड नहीं दिया जाता है अथवा वह दक्षतारोक पर निरुद्ध नही किया जाता है।
ऐसे किसी कर्मचारी को वेतन वृद्धि ग्राह्य नहीं होगी अथवा उसकी दक्षता रोक पार नहीं की जायेगी, जिसे सार्वजनिक परीक्षाओं में प्रश्न-पत्रों को निर्धारित समय के पूर्व प्रकाशित (प्रकटित) करने अथवा कराने में प्रत्यक्ष या परोक्ष रूप से सहायक होने अथवा परिषद परीक्षाओं में परीक्षार्थी/परीक्षार्थियों को नकल करने अथवा नकल कराने में प्रत्यक्ष या परोक्ष रूप से सहायक होने अथवा अनुचित साधन के प्रयोग के प्रकरणों से संबंधित अवैध सामग्री नष्ट करने अथवा प्रकरण को दबाने अथवा जिला प्रशासन तथा शिक्षा विभाग के अधिकारियों अथवा सचल दलों के निरीक्षण कार्य में बाधा डालने तथा उनके साथ हिंसा, मारपीट करने अथवा संकलन/मूल्यांकन केन्द्रों से उत्तर पुस्तकों के गायब होने अथवा जानबूझ कर गायब किये जाने अथवा उत्तर पुस्तकों में किसी भी प्रकार की हेरा-फेरी करने अथवा परीक्षा संचालन में किसी भी प्रकार लापरवाही बरतने आदि अनियमितताओं के आरोप में दोषी पाया गया हो।"
9. Similarly under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, there is no power vested with the District Inspect of Schools to make deductions from the salary unless there is an order by the competent court of law directing for any recovery or deduction from the salary. Section 3 of the payment of Salaries Act, 1971 for appreciation of what has been observed above, is reproduced hereunder:
"3. Payment of salary within time and without unauthorised deduction. - (1) Notwithstanding any contract to the contrary, the salary of a teacher or other employee of an institution in respect of any period after the thirty-first day of March, 1971 shall be paid to him before the expiry of the twentieth day, or such earlier day as the State Government may, by general or special order in that behalf appoint, of the month next following the month in respect of which or any part of which it is payable.
(2) The salary shall1 [subject to the provisions of sub-section (3), be paid without deduction of any kind except those authorised by the regulations or by any rules made under the Act or by any other law for the time being in force.
[(3) Where the salary of a teacher employee of an institution is not paid in accordance with sub-section (1) due to any default on the part of the management, the Inspector may, without prejudice to any other provision of this Act, pay or cause to be paid within ten days from the date mentioned in sub-section (1) of Section 4 at the rate of salary last drawn by such teacher or employee as the case may be, and in case fresh appointment at the rate of the minimum of the pay scale in which he has been appointed and any adjustment in respect of such payment shall, thereafter be made as soon as possible."
(emphasis added)
10. As a matter of fact vide Section 6 of the said Act duty has been cast upon the District Inspector of Schools to ensure enforcement of the provisions and directions issued under this Act of 1971. Section 6 of the Act is reproduced hereunder:
"6. Enforcement of provisions and directions. - (1) Where the Inspector, on the basis of an inspection of an institution or its records or otherwise, is satisfied that its management has committed default in complying with any direction given under Section 4 or with any provisions of Section 3 or Section 5, he may recommend to the Regional Deputy Director, Education, that action be taken against the institution under sub-section (2).
(2) On receipt of a recommendation under sub-section (1) the Regional Deputy Director, Education, may call upon the management to comply with the said direction or provisions or to show cause with a weeks why the management should not be suspended.
(3) Where the management fails to comply as aforesaid or to show cause, or the Regional Deputy Director, Education, considers the cause shown to be insufficient, he may by order supersede the management for such period not exceeding one year as may be specified in the Order, and authorise any person (hereinafter referred to as Authorised Controller) to take over the management of the institution for the said period :
Provided that the Regional Deputy Director, Education, may where he considers it necessary or expedient so to do, -
(i) extend the said period, from time to time, so however, that the period so extended does not exceed five years in the aggregate; or
(ii) revoke the order at any time :
Provided further that nothing in clause (ii) of the preceding proviso shall bar the passing of a fresh order under this section.
(4) On an order being made under sub-section (3) the Authorised Controller shall, to the exclusion of the management and subject only to the Direction, the Director or the State Government, exercise all the powers and perform all the functions of the management, including management of the property belonging to or vested in the institution and in particular, operate singly the bank account referred to in Section 5 :
Provided that nothing in this section shall be construed to confer on the Authorised Controller the power to transfer any such property (except by way of letting from month to month in the ordinary course of management) or to create any charge thereon (except as a condition of receipt of any grant-in-aid of the institution from the State Government).
(5) Any order made or direction given under this Section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or instrument relating to the management and control of the institution (including any scheme of administration) or relating to the property belonging to or vested in the institution."
(emphasis added)
11. In view of above, the District Inspector of Schools could not have entertained such application and, therefore, notice issued to the petitioner dated 29.08.2017 is held per se bad. The Court finds that District Inspector of Schools has stayed the recovery by its order dated 8th March, 2018 and that he has rightly done so.
12. In view of above, writ petition succeeds and is allowed. The order of notice dated 29.08.2017 issued by the District Inspector of Schools is hereby quashed. However, leaving it open for the contesting private respondent nos, 6,7 and 8 to pursue the remedy by moving appropriate application before appropriate forum. Regarding already recovered amount, it will be open for the petitioner to get it adjusted against maintenance amount, which he was liable to be pay under the order passed by the Principal Judge, Family Court, in appropriate proceedings.
Order Date :- 7.2.2024 Sanjeev