HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - A No. - 7234 of 2000 Petitioner :- Mehdi Hasan Respondent :- The C/M M.M. Inter College And Others Counsel for Petitioner :- A.M. Zaidi,M.N.Singh,Mahesh Narain Yadav,Mohd.Shoeb Khan Counsel for Respondent :- C.S.C.,S.A. Gilani Hon'ble Ashwani Kumar Mishra,J.
1. Office has submitted a report that the connected matters, being writ petition nos.38782 of 1997 and 1126 of 1999, have already been decided on 15.3.2013. In view of the fact that the connected matters have already been decided, the present writ petition has been heard.
2. Heard Sri V.M. Zaidi, learned senior counsel, assisted by Sri. Mohd. Shoeb Khan, appearing for the petitioner and Sri S.A. Gilani, learned counsel for the respondent nos.1 to 3 and learned Standing Counsel for the respondent nos.4 & 5.
3. This writ petition is directed against order of removal from service, passed against the petitioner, on 11.11.1999 and a prayer has also been made to make payment of salary to the petitioner from 11.8.1997 to 11.11.1999.
4. From the materials, which have been brought on record, it appears that petitioner was initially appointed as Assistant Teacher on 8.7.1968 in M.M. Inter College, Chandpur, District Bijnor (hereinafter referred to as 'institution'), which is a minority recognized institution, imparting education upto intermediate level. The institution is also on the list of aid and the provisions of Payment of Salary Act, 1971, are applicable. It seems that in respect of certain charges levelled against the petitioner, the Managing Committee passed a resolution, removing him from service on 22.2.1975. The resolution was also accorded approval on 26.5.1976 by the District Inspector of Schools. Aggrieved by the approval so granted, petitioner filed an appeal before the Deputy Director of Education, which was allowed on 2.5.1976 on the ground that there had been no compliance by the Managing Committee to the requirement of regulation 35 of Chapter III of the Intermediate Education Act and the approval order of inspector dated 26.5.1976 was set aside. The Managing Committee filed a writ petition, which came to be dismissed by the writ court in a judgment, which is reported in 1984 UPLBEC 271: Committee of Management of M.M. Inter College vs. Deputy Director of Education, IIIrd Region, Bareilly. Subsequently, a fresh charge sheet was issued to the petitioner on 7.4.1997, containing five charges levelled by the Managing Committee against him. The allegations were essentially in the nature of acts of insubordination on part of the petitioner in carrying out the directions of the Managing Committee. In response to the charge sheet issued, petitioner sent a letter on 7.5.1997, demanding documents, which were made the basis of charges levelled against the petitioner. Receiving of this letter sent by the petitioner is acknowledged by the Managing Committee. A reply to this letter is claimed to have been sent by the Committee vide letter dated 10.5.1997, permitting petitioner to peruse documents in the office of Principal, but the petitioner is alleged to have refused its receiving. An attempt to sent it by post also failed. According to the respondents, Managing Committee had proceeded to constitute a sub committee of President alongwith a member for holding enquiry in the matter. This letter dated 15.7.1997 is a bone of contention, as according to the petitioner, no such letter was served upon him. It is by this letter that date was fixed for holding an enquiry on 22.7.1997 and as the petitioner did not appear before the enquiry committee, the proceedings of enquiry were conducted against him on the same date and an exparte enquiry report was submitted in the matter on 24.7.1997. The report of enquiry committee was discussed by the Managing Committee, which resolved on 11.8.1997 to place the petitioner under suspension. The order of suspension was disapproved by the District Inspector of Schools vide his order dated 15.10.1997. This order was subjected to challenge by the Managing Committee by filing writ petition no.38782 of 1997, which has already failed. A show cause notice was thereafter issued to the petitioner allegedly alongwith enquiry report on 23.8.1997. Petitioner disputed the receiving of any such show cause notice or enquiry report. No reply, in such circumstances, appears to have been submitted by the petitioner and ultimately, the Managing Committee has proceeded to pass the impugned order, removing the petitioner from service. This order was not approved by the District Inspector of Schools under section 16-G(3) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act of 1921'), for the reason that institution was minority in nature and did not require it, however, payment of salary was not released to the petitioner, thereafter. It is also stated that during pendency of the present writ petition, petitioner has also retired sometime in the year 2004 and no retiremental benefits have been paid.
5. Learned counsel appearing for the petitioner in order to challenge the order impugned has made following submission; (i) the entire enquiry proceedings were in violation of principles of natural justice, inasmuch as the documents and materials, which were made the basis of charges against the petitioner, were never supplied to him, nor was it allowed to be inspected, and therefore, the proceedings are bad in law, (ii) the enquiry committee, which has been constituted against the petitioner, is not in accordance with the provisions of regulation 35 of Chapter III of the Act of 1921, and therefore, the entire proceedings culminating in the order of removal is illegal, (iii) petitioner was never served with letter dated 15.7.1997, and as such petitioner had no knowledge about fixation of date for the purposes of holding of enquiry in the matter, nor the petitioner could appear on the date fixed i.e. 22.7.1997 and the enquiry against the petitioner was wholly exparte and an eyewash. (iv) enquiry report was never served to the petitioner, which vitiates the entire disciplinary proceedings against him, and (v) the order of removal from service is unsustainable, inasmuch as no finding of guilt has been returned against him, nor the charges were held to have been proved, and denial of salary to the petitioner on the strength of order impugned is in teeth of the statutory scheme itself and the petitioner is entitled to all service benefits notwithstanding the order of removal from service.
6. Learned counsel appearing for the respondents, in reply, made following submissions that; (i) the petitioner was afforded ample opportunity of hearing in the matter and petitioner was issued a letter on 10.5.1997 informing that he can inspect the document in the office of Principal, but the said letter was not received by the petitioner and it was then served by registered post, but it was also returned and in such circumstances, the intimation of letter dated 10.5.1997 would be treated to be sufficient in the eyes of law, (ii) the letter dated 15.7.1997 was also sought to be served upon the petitioner, but the same was not accepted and this fact has been recorded by the Principal, and therefore, service of letter dated 15.7.1997 would be presumed upon the petitioner, (iii) since petitioner did not appear before the enquiry committee, despite notices issued, therefore, enquiry had to proceed exparte and show cause notice dated 23.8.1997 was also issued to the petitioner, which was published in the daily newspaper and it was clearly stated that enquiry report can be seen by the petitioner in the office of the Principal and (iv) it is also submitted that in view of the law laid down by the Hon'ble Supreme Court in C/M St. John Inter College v. Girdhari Singh and others: JT 2001 (4) SC 355, there was no requirement of obtaining approval from the District Inspector of Schools, as the respondent Managing Committee is running a minority institution and the protection of Article 29 & 30 of the Constitution of India was available to it. (v) Sri Gilani has also questioned maintainability of the writ petition on the strength of ratio laid down in the case of C/M St. John Inter College (supra), and it is contended that action of private body cannot be assailed in the writ petition.
7. Sri V.M. Zaidi, learned senior counsel for the petitioner, in rebuttal, has relied upon a decision of this Court in the case of Iftekhar Ahmad vs. State of U.P. and others: 2013 (2) UPLBEC 1448 to contend that writ petition is maintainable against the impugned action.
8. Before proceeding to deal with the contentions raised by the parties on the merits of the impugned action, it would be appropriate for this Court to deal with the objection raised with regard to maintainability of the writ petition itself. The issue, as is being raised by learned counsel for the respondents, has been the subject matter of consideration in Writ Petition No.30642 of 2010 (Tariq Ayyub v. State of U.P. and others) vide judgment dated 21.10.2010. Following observations have been made by this Court in the said judgment:-
"Question is as to what is the forum providing for and remedy available to teaching and non-teaching staff of Minority Institution when enquiry proceedings are governed by statutory provisions and institution in question is aided minority institution, then assuming no approval is required, is judicial Review permissible by this Court in exercise of its authority under Article 226 of the Constitution of India qua the action taken by management of minority institution vis-a-vis its staff when statutory provisions have been violated and which requires no adjudication of disputed question of fact. Any institution minority or non-minority are duty bound to comply with principles of natural justice, inasmuch as, only when fair domestic enquiry is held, then on the basis of same Management will be entitled to take action as has been observed by the Hon'ble Apex Court in the case of T.M.Pai Foundation and others Vs. State of Karnataka and others reported in 2003 (1) AIC 809 (SC) and in case principles of natural justice has been violated with impunity and statutory provisions have been violated then same can be Judicially Reviewed by this Court in exercise of its power under Article 226 of The Constitution of India, as action of Management would then come within the ambit of mal administration which is clearly contra to the rights conferred on minorities under Article 30(1) to establish and administer the institution. When disciplinary action is based on fair domestic enquiry then in that event any interference made at any level would be making in road in the right of minority status granted under Article 30(1) of The Constitution of India but when there is gross violation of the statutory provisions and gross violation of principles of natural justice then in that event power of this Court under Article 226 of The Constitution of India is not at all curtailed or limited and this Court in appropriate matters can interfere in the matter."
9. This Court in Iftekhar Ahmad (supra), after noticing judgments of the Hon'ble Supreme Court in State of Kerala vs. Very Rev. Mother Provincial: (1970) 2 SCC 417, Ahmedabad St. Xavier's College Society vs. State of Gujrat: (1974) 1 SCC 717, T.M.A. Foundation vs. State of Karnataka: (2002) 8 SCC 481 and other judgments, went on to hold in para 29 that provisions of the Regulations would apply to a minority institution as well. The observations made in para 33 to 37 of the judgment, with which I am in absolute agreement, are reproduced:-
"33. Thus a minority has two choices they can establish an educational institution in terms of Article 29 (1) of the Constitution to conserve its language and culture. The second option is to come out from the ambit of Article 29 (1) of the Constitution and opt for a secular education under Article 30 (1) of the Constitution.
34. A common thread running through all these judgements are that under the umbrella of Article 30 (1) the minority Institutions do not have absolute right .The state may regulate service condition of teaching staff.
35. In absence of job security, talented teachers, even of their own religion will not like to serve in an institution where Damascus sword is always hanging over their head.
36. A minority institution which receives aid out of the State Fund owes a greater responsibility to the society as the children of the minority are entitled to get same standard of education like in the State run or other private institution, otherwise the students belonging to minority would not be able to compete with other students who are fortunate enough to get quality education in the other institutions. If the law gives free hand to the management of a minority institution to appoint and remove the teachers in an autocratic way then it will tend to adopt hire and fire policy under the protection of Article 30 (1) of the Constitution. In such situation the ultimate sufferer would be the students of their own religion. If a sizeable section of society is left behind and they are unable to join the mainstream of the country. The task of the nation building which was envisaged by the founding fathers of the Constitution will remain a mirage.
37. Therefore, it must be prime concern of the state to apply the regulations to minority institution to achieve the objectives discussed in above noted decisions of the Supreme Court. Only then we can build a modern, progressive and secular Country.
10. Another aspect which needs to be noticed is that right of a teacher of minority aided college to receive payments of salary flows from section 3 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act of 1971. It is only when the action of Managing Committee is found to be in accordance with principles of fair play and natural justice that its action would be reasonable and denial of benefit due under section 3 of the Act of 1971 would not offend Article 14 of the Constitution of India and withstand test of judicial review under Article 226. No doubt the action of Managing Committee would be an act of a private body, but as it has the effect of denying rights flowing from the statute, as such a writ petition would lie against the impugned action. The objection, raised by Sri Gilani on behalf of respondents that the writ petition would not be maintainable against the respondent institution, is thus not liable to be accepted. Even otherwise the institution is performing a public duty and the salary to the teachers are since being paid out of the state funds, therefore, the writ petition is held to be maintainable.
11. Coming to the issue on merits, it is to be noticed that the procedure has been prescribed under the regulations for conduct of enquiry against a teacher of the recognized institution. Section 16-G of the Act of 1921 provides for service conditions of Headmaster, Principal and Teachers of the recognized institution. Section 16-G(3) framed under Chapter III provides for provisions in which a teacher can be subjected to disciplinary proceedings. Regulation 35 & 36, which are relevant for the present purposes, are reproduced:-
"35. On receipt of adverse report regarding complaint or charges of serious nature, the Committee shall appoint the Principal or Headmaster as Enquiry Officer in respect of teachers and other employees ( or Manager himself would enquire into if he has been delegated with the rights under the rules by Committee) and in case of Principal or Head Master a small sub-committee be appointed which will have instructions to present the report as soon as possible.
In respect of Fourth class employees Principal/Headmaster may appoint a senior teacher as Enquiry Officer.
36. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as that inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish; provided that the enquiry authority conducting the enquiry may for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee.
Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.
All or any of the provisions of Clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to be person charged."
12. It can be safely culled out from the provisions, noticed above, that the principles of natural justice have been incorporated in the regulations and the Managing Committee can proceed against its teachers only in accordance with it. Para 44 to 47 of the judgment in Iftekhar Ahmad (supra), which relies upon the earlier judgment in Tariq Ayyub (supra), are reproduced:-
"44. Considered from this angle there would be no difficulty in holding that the provisions of Regulation 35 and 36 would be applicable in the case of minority institutions if they are recognised institution. Thus the denial of the natural justice to a teacher who is employed in a minority institution cannot be accepted under the garb of the protection of Article 30 (1) of the Constitution.
45. Therefore, if a minority institution chose to impart a secular education under Article 30 (1) and it is recognized by the statutory authority / the Board of High school and Intermediate Education, it has to comply the principles of natural justice while dealing with its teachers or the employee irrespective of the fact whether it is receiving aid out of State Fund or not.
46. I may also beneficially refer to some of the judgements of this court where similar views have been taken: Tariq Ayyub V. State Of U.P. Civil Misc. Writ Petition No. 30642 Of 2010: Mohammad Ateeq Siddique V. State of U.P. (2011)3 UPLBEC 2547: Committee of management, Rehbar-E-Aam Muslim Inter College V. District Inspector of Schools(2008)70 ALR 687, Faheem Haider v. State of U.P.:(2011) 84 ALR 27.
47. Pertinently, in the case of Tariq Ayyub (Supra) and Faheem Haider (Supra) the judgement of Supreme Court in Committee of management Saint John inter College V Girdhari Singh; (2001)4 SCC 296 has been considered."
13. Viewed in the context of the aforesaid provisions, the facts of the present case do not pose much difficulty. It is clear that though charge sheet was issued to the petitioner but documents, which formed the basis of charges, were never supplied to the petitioner. The letter, which is stated to have been sent to the petitioner, dated 10.5.1997, was in fact never served upon the petitioner. It is, however, to be observed that the Managing Committee had sent such letter by registered post to the petitioner and even if the service of such letter is presumed, the fact still remains that the documents and materials, which were made the basis of charges, were never supplied to the petitioner. The proceedings, which have been undertaken thereafter by the Managing Committee makes the breach of principles of natural justice more apparent. The only intimation sent to the petitioner about constitution of a committee and fixing of a date for enquiry on 22.7.1997 was the letter dated 15.7.1997. This letter is stated to have been tendered to the petitioner and it is alleged that this letter was not received. This fact is denied. There is nothing on record to show that the Managing Committee thereafter made any endeavours to send the letter by registered post. The endorsement on the letter that petitioner refused to accept it cannot be relied upon and would not lead to a conclusion that petitioner was served with letter dated 15.7.2015. In case the said letter was not received by the petitioner, it was open for the Managing Committee to have sent its copy by registered post or by other means, which admittedly had not been done. The enquiry committee has also proceeded to hold the exparte enquiry on 22.7.1997 and the entire proceedings of enquiry were concluded within a day.
14. In the facts and circumstances of the present case, I have no hesitation to hold that petitioner had been denied reasonable opportunity to defend himself in the disciplinary proceedings, inasmuch as neither he had been supplied the documents and materials, which made the basis of charges against him, nor he had been afforded any opportunity to rebut the allegations levelled against him. Even at the stage of enquiry, he had no opportunity to defend himself and the entire enquiry proceedings conducted in the matter against the petitioner, therefore, does not inspire any confidence.
15. It is further apparent from the records that even the enquiry report was not served to the petitioner. The publication of show cause notice in the newspaper, which is enclosed as Annexure-6 to the supplementary counter affidavit, merely shows that the petitioner was permitted to inspect the enquiry report in the office of Principal. This does not meet the requirement of service of copy of enquiry report to the petitioner, in view of the law laid down in Managing Director, ECIL vs. B. Karunakar: (1993) 4 SCC 727 and denial of copy of enquiry report is also a ground, on the basis of which, the impugned action of the Managing Committee cannot be sustained.
16. I further find substance in the contention advanced on behalf of the petitioner that order of removal from service is no order in the eyes of law, inasmuch as no findings of guilt has been recorded therein against the petitioner. Law is settled that even if employer proceeds to conduct an exparte enquiry against delinquent employee, it is necessary that charges levelled against the employee be proved and a finding in that regard is returned. In the facts and circumstances of the present case, there is no finding returned in the order impugned of charge being made out against the petitioner, and therefore, the punishment is not sustainable. In such circumstances, this Court comes to the conclusion that there was no valid severance of relationship between petitioner and respondent Managing Committee, and the petitioner was entitled to payment of salary as well as payment of retiral benefits, which were otherwise payable in law to the petitioner.
17. In normal circumstances, this Court would have proceeded to remit the matter to respondents, with a liberty to hold a fresh enquiry against the petitioner, but in the facts and circumstances of the present case, such a course is not being followed, as the petitioner has retired in the year 2004 and more than 11 years have lapsed since his retirement, and at such belated stage, it would not be fair for the Court to grant liberty to hold a fresh enquiry as it would result in denial of justice to the retired employee. The harassment which has been meted out to petitioner due to denial of payment of salary and retiral benefits for a period of almost 18 years, which he never deserved, cannot be allowed to be perpetuated any further.
18. For the reasons and discussions aforesaid, the writ petition succeeds and is allowed. It is held that the order of removal of service against the petitioner dated 11.11.1999 is illegal and is hereby quashed. Petitioner is entitled to continue in service till he attained the age of superannuation and the petitioner is also entitled to payment of all retiral benefits. It is also observed that the educational authorities shall be at liberty to determine guilt of the person, who was responsible for denial of payment of salary to the petitioner between 1997 till his date of superannuation, and to recover the same from such person, who is found guilty in the matter.
In the facts and circumstances of the present case, the petitioner is also entitled to payment of cost from respondent no.1 to 3, which is quantified at Rs.10,000/-
Order Date :- 6.11.2015 Ashok Kr.