Ataur Rahman vs State Of U.P. And Others
2012 Latest Caselaw 2454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved 
 
Court No. - 26
 
Case :- WRIT - A No. - 46957 of 2006
 

 
Petitioner :- Ataur Rahman
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Radha Kant Ojha
 
Respondent Counsel :- C.S.C.,Ajay Kumar Gupta,Ch. N.A. Khan
 

 
Hon'ble Sunil Hali,J.

On 1.4.1982 the petitioner was appointed as clerk in Madarsutul Masakeen, Bahadurganj, District Ghazipur which is a recognized Institution under the Uttar Pradesh Shaikshik Arabi Tatha Madarasa Ki Niyamawali, 1987.

Under U.P. Act No. 29 of 2004, the Governor promulgated the Uttar Pradesh Board of Madarsa Education Act, 2004 (hereinafter referred to as the Act). The Act provides for creation of Uttar Pradesh Board of Madarasa Education as a statutory body. Section 3 of the Act provides for constitution of the Board to be headed by a renowned Muslim educationist in the field of traditional Madarsa-Education, nominated by the State Government as a Chirperson of the Board. Section 10 provides the powers to be exercised by the Board. Section 24(1) of the Act provides conditions of service of head of the institution, teachers and other employees. It contemplates that the head of the institution, teachers and other employees of an institution shall be governed by such conditions of service as may be prescribed by regulations and any agreement between the Committee of Management and such head of institution, teachers or employees. As per Section 24(2), without prejudice to the generality of the powers conferred by sub-Section (1) the regulations may provide for:- (a) the code of conduct, the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude and the allowances for the period of suspension and termination of service with notice;(b) the scales of pay and payment of salaries; (c) grant of leave and provident fund and other benefits, and (d) maintenance of record of work and service.

The regulations framed under the aforementioned Act will also cover the cases of punishment required to be imposed on employee working in the Madarsa.

The petitioner while working as a clerk was served with a charge sheet on the ground that he refused to submit the service book and G.P.F. Documents relating to 42 employees working in the Institute.

It is submitted that on 25.7.2005, a notice was issued by the Manager in which he has stated that documents which were sought from him have not been received in the office. In response to the aforementioned notice, the petitioner submitted reply that he had not been served with any notice by the respondent, however, he stated that on 16.7.2005 he had handed over the documents of the employees to the Principal of the Institute, therefore the same may be asked from him. Vide order dated 30.7. 2005, the petitioner was placed under suspension on the ground that the petitioner had failed to submit required documents by 26.7.2005.

In pursuance of the aforementioned order dated, 30.7.2005, an inquiry was initiated against the petitioner. He was sent charge sheet on 28.7.2005 through registered post. The petitioner, in response to the letter dated 30.7.2005, submitted his reply to the respondents on 4.12.2005 wherein he repeated the averment that he had already handed over the required documents to the Principal as such no irregularity was committed by him. He also requested in his reply to inform him the name of the inquiry officer so as to enable him to participate in the said inquiry.

The Inquiry Officer appointed by the respondents was neither the member of the Committee of Management nor the member of the General Body, therefore, according to the petitioner, he was not eligible to hold the inquiry. The petitioner has not been served with the report of the inquiry officer nor any show cause notice and his services were terminated on 30.5.2006. This order has been questioned by the petitioner in this writ petition on the following grounds:

(1)The two letters dated 29.12.2005 and 1.1.2006 which are said to be meant for giving opportunity to the petitioner to reply the show cause notice, were never served upon him.

(2)The inquiry officer concluded the inquiry without giving any opportunity to the petitioner to defend himself.

(3)The order of termination was passed without providing opportunity to the petitioner of being heard in the matter.

The Stand of the respondents is that on 28.5.2005 the inquiry committee sent the copy of the charge sheet through registered post to the petitioner but neither he filed his reply nor stated his defence, hence, on 29.12.2005, the enquiry committee again sent a notice through registered post providing opportunity to the petitioner to reply the same. On 1.1.2006 through registered post again a reminder was sent by the inquiry committee. Again on 22.1.2006 a registered notice was sent as the last opportunity to the petitioner but no reply was submitted by the petitioner. Thus, the petitioner having failed to submit any reply, the inquiry officer conducted inquiry and concluded the same. The copy of the inquiry report was served to the petitioner, vide registered post 13.2.2006 but the petitioner did not present his defence. Accordingly, the inquiry officer submitted his report to the Appointing Authority, who in turn terminated the services of the petitioner on 30.5.2006.

I have heard learned counsel for the parties and perused the record.

The controversy which is to be resolved in the matter is as to whether the charge sheet and the inquiry report were served upon the petitioner or not.

The learned counsel for the petitioner has specifically taken a stand that notices were required to be served upon the petitioner on his permanent address which is recorded in his service book but the same have been served on his official address which is Madarsatul Masakeen, Bahadurganj. This fact is clearly visible from the various notices which have been sent by the respondents to the petitioner on his official address. There is only one communication dated 30.5.2006, which is the order of termination, that has been served upon the petitioner on his permanent address. After observing this factual position from the records, it clearly emerges that all communications have been made to the petitioner on his address where he was working, i.e., the Institution.

The case of the petitioner is that he did not attend the Institute after he was placed under suspension nor he was required to do so, therefore any communication on his official address has not been received by him. It cannot be disputed that the respondents were required to serve notice on the petitioner on his permanent address, which has not been done in the present case. It creates suspicion in the mind of this Court as to whether the inquiry has been conducted in accordance with the Rules or not. Once, the petitioner contends that the said notice has not been served upon him, the respondents cannot be said to have discharged their onus of having sent these notices to the petitioner on the address not provided by him. The address is the one where the petitioner is permanently residing. It is not the case of the respondents that all these notices were served on the petitioner on his permanent address. In view of this, it clearly transpires that the charge sheet, show cause notice and the inquiry report have not been sent to the petitioner. The petitioner had given his permanent address where the notices were to be served. After having said so, it can be safely presumed that the inquiry has been conducted without hearing the petitioner. The reasonable opportunity required to be provided to him, has been denied in the matter. Thus inquiry conducted against the petitioner is vitiated in law, accordingly the order of termination on the basis of it is also not sustainable.

In view of the above, the impugned order of termination is quashed. The petitioner shall be reinstated with all consequential benefits provided he has not retired from the service. In case the petitioner has retired, he shall be entitled to receive all retiral benefits along with the back wages from the date of his suspension till the date of retirement. The same shall be paid to the petitioner within four months from the date certified copy of this order is served on the respondents.

However, this order will not come in the way of the respondents in case they initiate a fresh inquiry against him in accordance with law provided he is in service.

With the aforesaid observations, the writ petition is allowed.

Order Date :- 1.6.2012

Ram Murti