C/M Chand Singh Purva Madh. ... vs State Of U.P. And Others
2012 Latest Caselaw 4222 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No.38
 

 
Civil Misc. Writ Petition No.46831 of 2012
 

 
Committee of Management, Chand Singh Purva 
 
Madhyamik Vidyalaya, Kurra Chittarpur, 
 
Shamsabad, Agra and another 
 
Vs. 
 
State of U.P. and others
 

 
**** 

Hon'ble A.P. Sahi, J

Heard Sri Amit Saxena, learned counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1 and 2 and Sri R.B. Yadav for the respondent Nos. 3 and 4. Sri R.K. Ojha along with Sri K.B. Dixit has appeared for the Caveator - Maghvendra Singh, who is claiming himself to be the Head-master of the institution.

This petition questions the correctness of the order dated 18.8.2012 passed by the respondent No.2 in exercise of the powers conferred under The Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (U.P. Act No.6 of 1979) appointing an Authorized Controller in the Institution. The Institution is a Junior High Schools and is under the grant-in-aid list and the salary of the Teachers and Head-master is being disbursed from the said grant-in-aid.

It appears from the pleadings on record that there is a serious dispute going on between the Management and the staff of the Institution that resulted in passing of an order of single operation on 4.2.2011. The fact that the salary is being disbursed under the single operation of accounts thereafter is undisputed.

The respondents allege that a show-cause-notice was issued on 30.9.2011 to the petitioner - Committee as to why an Authorized Controller be not appointed keeping in view the allegations contained in the notice; copy whereof has been filed as Annexure-4 to the writ petition. The said notice entails 4 allegations followed by a reminder dated 1.11.2011 which also reiterates the same. The Authorized Controller came to be appointed on 15.11.2011 which was challenged by the petitioner in Writ Petition No.75284 of 2011. The same was disposed of on 22.12.2011 allowing the petitioner to file his response to the aforesaid two notices and directing the respondent No.2 to proceed to pass a fresh order which shall supersede the order passed earlier.

The petitioner, accordingly, filed his reply; copy whereof is Annexure-7 dated 4.1.2012. This reply is specific in relation to all the four points raised in the show-cause notice dated 30.9.2011. The impugned order has been passed thereafter on a consideration of the said reply, and further taking into notice an inquiry report submitted by the District Basic Education Officer on 16.5.2012 and the reply/report of the Assistant Director of Education (Basic) dated 19.4.2012. The impugned order thereafter proceeds to indict the petitioner and hold the petitioner - Committee to be responsible for the mismanagement of the institution on all four counts, and in addition thereto relies on the aforesaid two reports of the Basic Education Officer and Assistant Director of Education (Basic) to hold that the petitioner - Committee has also indulged in compulsorily exacting part of the salary from the employees of the institution. For that, the impugned order also records that these facts have been mentioned in the aforesaid reports, and an earlier report dated 19.4.2011 including a C.D. which refers to the conversation between the Manager and the Caveator herein. Accordingly, the impugned order has been passed superseding the petitioner - Committee of Management in terms of Section 6 (3) of the 1978 Act.

Sri Amit Saxena advancing his submissions has assailed the order on the ground that the impugned notice nowhere entails any indication of default in payment of salary or even persistent default so as to invoke the said provision. He, therefore, submits that in the absence of any such element of default, the provisions of Section 6 (3) could not have been invoked.

His second submission is that the notices are dated 30.9.2011 and 1.11.2011 which were issued long after the institution had been placed under single operation of account on 4.2.2011 itself. Once the salary of the employees was already being paid under single operation of account for the past more than 7 months prior to the issuance of the impugned notices, there was no default much less a persistent default and, as such, the notice itself proceeds against records.

Thirdly, he contends that the impugned order is in violation of the principles of natural justice inasmuch as when the earlier order dated 15.11.2011 was passed, the petitioner had not been served with any proper notice. This time again 2 fresh reports had been obtained behind the back of the petitioner; one by the Basic Education Officer and the other by Assistant Director of Education (Basic) noted herein above and relying on the same, the impugned order has been passed. Learned counsel submits that non-supply of these reports vitiates the impugned order as no opportunity was given to the petitioner to answer the contents of these reports.

Learned counsels for the respondent Nos. 1 and 2 and respondent Nos. 3 and 4, who are the learned Standing Counsel, contend that on over all assessment of the mismanagement of the petitioner has compelled the authorities to take this step in order to improve the atmosphere of the institution as the petitioner - Committee of Management has generated this entire dispute by harassing it's teachers and, therefore, the only possible steps that could have been taken was to invoke Section 6 of the Act. They have, therefore, defended the impugned order.

Sri R.K. Ojha, learned counsel for the Caveator, contends that this entire material was on record and it clearly indicates that default was in relation to non-payment of salary to the teachers that had impelled the authority to pass an order of single operation and since the default was persistent even prior to the order of single operation of account, therefore, the impugned order is justified.

Having considered the aforesaid submissions and having perused the records, it is not necessary to wait for any Affidavit inasmuch as the impugned order proceeds on erroneous assumptions of fact and law. Learned counsels for the respondents, therefore, also pray that the matter be disposed of finally at this stage itself on the basis of material that has been discussed in the impugned order as they do not propose to file any counter-affidavit at this stage.

The provisions of Section 6 (2) of the 1978 Act require that an opportunity has to be given before a Committee of Management is superseded. In the instant case, the earlier round of litigation itself indicates that proper opportunity had not been given. In the opinion of the Court, if the respondent No.2 was proceeding to rely on any other additional material then it was incumbent on him to have given an opportunity to the petitioner to rebut the said evidence. In the instant case, the report of the Basic Education Officer dated 16.5.2012 and the Assistant Director of Education (Basic) dated 19.4.2012 as well as the reference to the earlier report in this regard does not appear to have been brought to the notice of the petitioner who had submitted his reply on 4.1.2012. These reports were, therefore, obviously obtained behind the back of the petitioner and had not been made known to the petitioner prior to passing of the impugned order. In the circumstances, reliance having been placed on the said reports was unjust and is a burning example of the violation of principles of natural justice.

Apart from this, the invoking of the provisions under Section 6 is clearly dependent upon the factors that are defined under Section 2 (i) of the Act. Salary means the salary admissible in accordance with rules and any default in payment thereof is to be taken notice of for invoking such provision. The aforesaid view is no long res-integra and is settled law, as explained in the decision of Committee of Management, Shahid Sansmaran Inter College, Sherpur and another Vs. Deputy Director of education, Varanasi, and another, 1993 ALJ 318. In the instant case, the notice, which was issued to the petitioner on 30.9.2011 and which is the genesis of the allegations against the petitioner nowhere indicates any default in payment of salary to the employees of the institution. There is no allegation even of persistent default in relation to the payment of salary.

The notice completely overlooked the order of single operation of accounts already imposed on 4.2.2011. In the aforesaid circumstances, the response given by the petitioner cannot be expected to contain any such reply pertaining to default in payment of salary. The whole approach, therefore, to the action taken was not founded on any cogent material in relation to any actual or persistent default in payment of salary. On this count, the impugned order cannot be sustained.

Learned counsel for the Caveator submits that as a matter of fact the Management is in the habit of deducting salary and not making full payment of salary to the Head-master and teachers of the institution, who are being harassed. The Head-master was unjustly placed under suspension. The submission, therefore, is that the issue of payment of salary is directly involved which ought to be considered by this Court.

This argument has to be noticed only for being rejected inasmuch as this issue ought to have been raised specifically that on account of such alleged harassment, there was actual or persistent default in payment of salary. The petitioner - committee, therefore, ought to have been put to notice specifically keeping in view the aforesaid provisions and the law laid down as discussed herein above. That having not been done, the entire proceedings proceeded on a misdirected approach and misconstruing the provisions of the Act. All types of mismanagement are not within the scope of the 1978 Act. It is only the persistent default in payment of salary and mismanagement on that count that can be made the basis for appointment of an Authorized Controller.

In the aforesaid circumstances, the writ petition is bound to succeed and is hereby allowed. The order dated 18.8.2012 is quashed. It shall be open to the authority to proceed to pass a fresh order in case it proceeds to put the petitioner to notice on account of any default as discussed herein above.

Dt. 18.9.2012

Irshad