Syed Yaqeen Ahmad vs State Of U.P.And Others
2015 Latest Caselaw 5119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 32
 

 
Case :- SPECIAL APPEAL No. - 1811 of 2009
 

 
Appellant :- Syed Yaqeen Ahmad
 
Respondent :- State Of U.P.And Others
 
Counsel for Appellant :- Vikas Budhwar
 
Counsel for Respondent :- C.S.C.,Rahul Jain
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Shashi Kant,J.

1. This intra Court appeal is preferred challenging the correctness of order dated 04.09.2009 passed by Writ Court in Civil Misc. Writ Petition no.33015 of 2007 - Syed Yaqeen Ahmad Vs. State of U.P. & Ors. for relief of setting aside the order aforesaid.

2. The facts of the case in nutshell are that the petitioner having been employed in 1971 as Assistant teacher was promoted as Head Master of Primary Section on 1.7.1979. He was terminated from service vide order dated 24.02.1996 on allegation of certain charges of misconduct. Before termination of his services, the petitioner had been placed under suspension and a departmental inquiry was conducted into the charges levelled against him vide charge sheet dated 29.8.1995. The order of termination was challenged by the petitioner in Writ Petition No.4347 of 1996 which was dismissed by Writ Court vide judgment dated 20.2.2002 observing that petitioner had himself not participated in the enquiry proceeding and therefore, he cannot challenge the proceedings on the ground of violation of principle of natural justice. The judgment dated 20.2.2002 was challenged in special appeal no.375 of 2002 wherein a plea was taken by the counsel for the petitioner-appellant that under Rule 34 of U.P. Ashaskiya Arabi and Farsi Madarson Ki Manyata Niyamawali, 1987 it would be open for the Inspector Arbi Madarsa, U.P. Allahabad to examine the matter regarding procedure followed by the Management in termination of the teachers.

3. A perusal of record shows that it was the petitioner-appellant in this appeal as well as Special Appeal No.375 of 2002 who has advanced argument that under Rule 34 of aforesaid Rule, it would be open for the Inspector Arbi Madarsa, U.P. Allahabad to examine the matter regarding procedure followed by the Management in termination of the teachers. It was in the aforesaid backdrop, learned Single Judge in Writ Petition No.4347 of 1996, which was subject matter of Special Appeal No.375 of 2007, had directed the Inspector, Arabi Madarsa to examine the matter.

4. This order and judgment of learned Single Judge in writ petition was upheld in special appeal in which the Court vide judgment dated 11.10.2006 permitted the Inspector to examine the matter without being prejudiced in any manner with the observations of learned Single Judge.

5. It appears that pursuant to the aforesaid direction in the judgment, the matter was examined by Inspector, Arabi Madarsa, who vide order dated 30.5.2007 found that there was no procedural irregularity in the order of termination of petitioner and his termination was valid and in accordance with law.

6. The aforesaid order dated 30.5.2007 was challenged in Writ Petition No.33015 of 2007 (Syed Yaqeen Ahmad Vs. State of U.P. & Ors.) wherein the Court, after hearing the parties and examining Rule 34, recorded findings which reads thus :

"However, I do not find any substance in the submission. The nature of power which has to be exercised by the Inspector under Rule 34 has first to be examined. Rule 34 reads as under :

Þ34& ;fn izcU/kkf/kdj.k }kjk fdlh v/;kid @ deZpkjh dh lsok ls izFkd djus dk fu.kZ; fy;k tkrk gS rks fu"dklu ls iwoZ fof/kd dk;Zokgh vko';d gksxhA iwjh dk;Zokgh ds fooj.k fujh{kd] vjch enjlk] mRrj izns'k bykgkckn dks izsf"kr djuh gksxhA ;fn dk;Zokgh es dksbZ vfu;ferrk ik;h x;h rks fujh{kd dks ;g vf/kdkj gksxk fd og vius lq>ko izcU/k lfefr dks HkstsAß

A perusal of Rule 34 shows that the power of Inspector is not like an appellate authority or an authority without whose examination of the matter the management cannot exercise its administrative power over its staff. In fact Rule 34 provides that before taking any disciplinary action, the legal procedure shall be followed. It is evident from the record that the Management followed the procedure i.e. a charge sheet was issued, enquiry was held and thereafter order of termination was passed. To that extent, there is no dispute between the parties also. The Rule thereafter further provides that the documents pertaining to procedure followed by the management shall be sent to the Inspector who shall examine as to whether there is any procedural irregularity or not and if he finds any procedural irregularity, he will make his suggestion to the management and nothing more than that. The word 'suggestion' means that the Inspector has not been made an authority to interfere with the order of the management directly or upset the decision of the management, but in such cases wherever he finds any irregularity in the procedure observed by the management, he can make his suggestion which obviously have to be considered by the Management and it is open to them to accept it or not. At the best suggestion may help an employee when he challenges the order of the management in a court of law to show that the legal procedure which is said to be observed is not correctly observed as also noticed by the Inspector but that by itself would not vitiate the order unless it is so found by a competent court of law.

In the present case, however, the Inspector has not found any procedural error. The power of the Inspector is not akin to the power exercised by the District Inspector of Schools under Regulation 31 Chapter III read with Section 16 G(3) of the U.P. Intermediate Education Act where the teachers could not have been dismissed or removed, without prior approval of the District Inspector of Schools. Similarly it is not akin to the U.P. Secondary Education Commission under section 30 of U.P. Secondary Education Service Commission Act, 1982, where also without prior approval of the Commission no such order of termination i.e. dismissal, removal could have been passed by the Management."

7. It was also sought to be argued by learned counsel for the petitioner-appellant in the aforesaid writ petition that institution was a minority institution as such prior approval was required to be taken from the appropriate authority before termination of his services and as the Inspector, Arabi Madarsa can only look under Rule 34 that as to whether procedure was followed by the Management suffers from any irregularity or not and since this Court had directed him to examine this matter, his order dated 30.5.2005 ought to have been examined on merits by the Writ Court.

8. This aspect of the matter has also been considered in the aforesaid judgment, which reads thus :

"Learned counsel for the petitioner tried to demonstrate that some of the witnesses have given their statements which amounts to hearsay and on the basis of such hearsay evidence he should not have been punished. It may be clarified at this stage that in a departmental enquiry there is no bar in considering hearsay evidence as held by the Apex Court in the case of State of Haryana Vs. Rattan Singh AIR 1977 SC 1512. A departmental inquiry is not like a criminal trial where the charge has to be proved beyond doubt. In the departmental inquiry, the employer has to proceed on the basis of some material which can be relied by a person of ordinary prudence. Apparently it should not come within the purview of sheer conjectures and surmises. If there is some evidence, its sufficiency would not be examined either in a judicial review or otherwise since the power is vested in the management to believe and to take action on the basis of such evidence. From the impugned order of Inspector it is evident that some of the witnesses have directly given statements against the petitioner. It is, therefore, not open to this Court to make any further examination on this aspect. In judicial review this Court shall not sit over the matter as an appellate authority. I do not find any legal infirmity with the order impugned in the writ petition. Writ petition is accordingly dismissed."

9. Counsel for the petitioner-appellant, assailing the impugned judgment dated 04.9.2009 of learned Single Judge in this regard has also referred before us the evidence adduced by Sri Badre Alam, a teacher of Madarsa as well as other teachers who, in their evidence, have brought on record that petitioner-appellant had created a 'Hungama' in the institution and others stated that they had heard that some 'Hungama' was created by the petitioner-appellant.

10. On the aforesaid basis Sri Vikas Budhwar, counsel for the petitioner- appellant submits that evidence regarding creation of Hungama and conduct of petitioner is only hearsay and there was nothing to show that petitioner has conducted any misconduct as a matter of fact.

11. Per contra, Sri Rahul Jain, learned counsel for the respondent submits that services of the petitioner-appellant had been terminated by Committee of Management after passing an order of suspension and holding domestic inquiry which was conducted following the principles of natural justice and that this fact has also been confirmed by Inspector, Arabi Madarsa in proceedings under Rule 34, as directed by the Court. He further submits that it was the petitioner appellant himself, who had raised this issue that the matter may be got examined by the Inspector, Arbi Madarsa under Rule 34 and once this findings has come and part of record that principles of natural justice has been followed and there is nothing to show that termination of the petitioner was illegal, the petitioner was not entitled for any relief.

12. Upon hearing counsel for the parties and on perusal of record, we find that petitioner had himself challenged the order of termination of his services in Writ Petition No.4347 of 1996 which was dismissed by learned Single Judge vide judgment and order dated 20.2.2002. We also find that petitioner had himself not participated in the inquiry proceedings and as such inquiry cannot said to be against the principles of natural justice for the reason that petitioner had been afforded opportunity by the Committee of Management to participate in the inquiry and put up his defence. He himself did not participate in the inquiry knowingly that inquiry may go against him. The judgment in Writ Petition No. 4347 of 1996 was subject matter in special appeal No.375 of 2002 wherein the petitioner had himself said that question as to whether inquiry was fair and proper may be got determined under Rule 34 by the Inspector, Arabi Madarsa and therefore, such a direction was issued by the Court.

13. After hearing the contention of learned counsel for the petitioner as well as respondent, the Court held thus :

"Rule 34 of the aforesaid Rules clearly provides that after passing the order, the Committee of Management should forward all the papers to the Inspector, Arabi Madarsa Uttar Pradesh, Allahabad who can give suggestion to the Committee of Management in the event any infirmity is found in the proceedings. In the present case, admittedly the papers had been forwarded by the Committee of Management to the Inspector but there is nothing on the record to indicate whether the Inspector had considered the documents sent by the Committee of Management. We are not inclined to accept the contention of the learned Senior Counsel for the respondents that since no order to the contrary has been intimated to the Committee of Management it must be presumed that the Inspector did not find any irregularity in the procedure.

We, therefore, dispose of this Special Appeal with a direction that in the event the Inspector has not examined the papers sent by the Committee of Management relating to the termination of the services of the petitioner-appellant, then he shall examine the same expeditiously and communicate his decision to the Committee of Management. The judgment and order of the learned Judge stands modified to the extent indicated above. It is made clear that we have not examined the validity of the termination order and the Inspector shall be free to act in accordance with the provisions of Rule 34 without being influenced by any of the observations made by the learned Judge in the judgment under Appeal relating to validity of the disciplinary proceedings."

14. A perusal thereof shows that Court was of the view that power exercised by Inspector, Arabi Madarsa, Uttar Pradesh Allahabad was only to give a suggestion and nothing more. Thus, in view of the aforesaid fact the special appeal of the petitioner was disposed of by the Court for determination by the Inspector, Arabi as to whether inquiry conducted was fair and proper or not? But the appeal against his termination of services stood dismissed. We are not inclined to interfere in this appeal against the suggestion of Inspector, Arabi Madarsa that inquiry was conducted in a fair and proper manner and there was no illegality therein.

15. This appeal filed only on the ground that findings of Inspector, Arabi Madarsa are not binding and are only a suggestion and cannot deprive the petitioner from challenging the order as held by learned Single Judge has, no force for the reason that judgment of Writ Court in Writ Petition No.4347 of 1996 was not disturbed in appeal.

16. For all the aforesaid reasons, we do not see any reason to defer from the reasoning of learned Single Judge in the impugned judgment. It is accordingly upheld. The appeal is accordingly dismissed.

17. No orders as to costs.

Order Date :- 7.12.2015

KA