C/M Sri Sahab Singh Inter College ... vs State Of U.P. And 3 Ors
2015 Latest Caselaw 1443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 
Case :- WRIT - A No. - 44760 of 2014
 
Petitioner :- C/M Sri Sahab Singh Inter College Thru Manager
 
Respondent :- State Of U.P. And 3 Ors
 
Counsel for Petitioner :- Pradeep Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Vishnu Kumar
 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Shri Pradeep Kumar Pandey, learned counsel for the petitioner,  Shri Vikram Bahadur, learned Standing Counsel for respondent Nos.1,2 and 3 and Shri Vishnu Kumar, learned counsel for respondent No.4.

2. This writ petition has been filed  praying for a writ, order or direction in the nature of Certiorari to quash the order dated 11.07.2014 passed by the Respondent No.3 whereby the representation of the respondent No.4 for payment of post retirement benefits has been accepted. 

3. Learned counsel for the petitioner submits that the respondent No.4 was dismissed from service on 15.10.03 by the appointing authority i.e., Principal of the Institution.  The respondent No.4  had absented himself from duty for about three years since 1.1.2001 due to involvement in criminal cases and when this fact came to the knowledge of the Principal of the Institution, then a senior Assistant Teacher was appointed as enquiry officer and a  charge sheet dated 13.7.2003  was served  on the respondent No.4.  The Enquiry Officer  sent notices to the respondent No.4 but he did not respond and as such a report dated 10.10.03 was submitted by the Enquiry Officer which was accepted by the Principal of the Institution  and service of the respondent  No.4 was terminated by order dated 15.10.03.  Therefore, the impugned  order restoring the service of the respondent No.4 and treating him  to had retired on 31.7.11 is illegal.  He submits that in view of the Full Bench Judgment of this Court in the case of Rishikesh Lal Srivastava Versus State of U.P. & Others 2010(1) ALJ 630  prior approval or sanction from the respondent No.3 was not required while terminating the service of the respondent No.4, who was Class-IV employee of the Institution.  

4. Learned Standing Counsel refers to paragraph-11 and 15 of the counter affidavit and submits that by the impugned order respondent No.3 directed for payment of post retirement benefits. 

5. Learned counsel for respondent No.4 submits that the respondent No.4 was appointed in the institution in question as Class-IV  employee on 1.11.1974.  He received salary till December, 2000. Against the illegal acts of the petitioner in not paying salary to him he filed a writ petition No.38257 of 2003 seeking a writ order or direction in the nature of Mandamus directing the petitioner to pay salary and other emoluments since 1.1.2001 till date and continue to pay the same  month to month regularly.  A prayer was also made to decide the representation dated 5.1.2001, 25.5.2001 and 10.7.2001.  The said writ petition was disposed of by an order dated 1.9.2003 directing the respondent No.4 to make a fresh representation before the District Inspector of Schools, who was directed to pass appropriate order in accordance with law. 

6. Pursuant to the aforesaid order, the respondent No.4 filed a representation dated 3rd October, 2003 but the same was not decided due to non-submission of reply by the Principal of the Institution in question.  Ultimately, he submitted a reply only on 14.10.2009.  Since the representation of respondent No.4 was not decided by the respondent No.3 despite directions given by this Court in Writ Petition No.38257 of 3003, therefore, the respondent No.4 filed a writ petition No.9174 of 2014 seeking direction to release gratuity, Provident Fund, Pension and other service dues which was disposed of  by this Court vide order dated  13.02.2014 directing the District Inspector of Schools, Mahamaya Nagar  to take a decision in the matter by a reasoned and speaking order, strictly in accordance with law within one month from the date of production of a certified copy of the order of the Court.. Pursuant to the order  passed in the said writ petition, the respondent No.4 submitted  a representation  before the District Inspector of Schools, who disposed of his representation  by the impugned order dated 11.7.2014 disapproving his order of termination of service and directed   for payment  of post retirement benefits to him.  Learned counsel for the respondent No.4 further submits that the respondent No.4 has confined his claim only for payment of post retirement benefits, which has been lawfully granted by the respondent No.3 by the impugned order. 

7. I have  carefully considered the submission of learned counsel for the parties and perused the record.  

8. Briefly stated the facts of the present case are that the respondent No.4 was appointed as Class-IV employee in the petitioner's Institution on 1.11.1974. He rendered 26 years  satisfactory service as Class-IV employee.  The present Manager of the Petitioner's institution, who then, was the Principal initiated an Enquiry against him levelling charges that he remained absent from duty from 24.12.2000 to 13.7.2003, pendency of Criminal Cases against him being Case Crime No. 500 of 2000 under Section 419/420, 464,468 &471 IPC, P.S. Sikandrarau, Case Crime No.265/2002 under Section 364/435 I.P.C. P.S. Hassayan and Case Crime No. 120/2001 under Sections 307 I.P.C. P.S. Shashni.  Certain other allegations were also made. 

9. According to the petitioner, the respondent No.4 had not submitted any reply and, therefore, the enquiry officer submitted an enquiry report dated 10.10.2003. A notice was sent by the Principal of the Institution to the respondent No.4 dated 11.10.2003 by U.P.C. annexing therewith a copy of the alleged enquiry report for submission of reply by 14.10.2003.  On 15.10.2003 the Principal  of the petitioner's Institution, who is presently the Manager of the Institution, passed an order dismissing the respondent No.4 from service.

10. I find that the notices dated 4.8.2003 ans 11.8.2003 allegedly issued by the enquiry officer and allegedly sent to the respondent no.4by U.P.C. The alleged notice dated 11.10.2003 annexing the enquiry report was also allegedly sent to the respondent No.4 by the Principal by U.P.C. The said Principal is now Manager of the Institution who had lodged F.I.R. against the respondent No.4 under Section 307 I.P.C. No attempt was made either by the enquiry officer or by the Principal to ensure that the alleged notices were served on the respondent No.4.  The alleged order of dismissal from service dated 15.10.2003 was allegedly served on the respondent No.4 by affixation on 16.10.2003. A copy of the service report of one Resham Pal Singh has been filed on page 57 of the writ petition.  This process server report does not bear signature of any witnesses. Merely two days time was given by the notice dated 11.10.2003 to the respondent No.4 to submit reply.  Thus, the entire proceeding either of enquiry against the respondent No.4 or sending a notice to him by the petitioner or service of the alleged order of dismissal  were not proper and legal. 

11. The petitioners have not taken pain to serve the respondent No.4 either the notices or the alleged order of dismissal from service by registered post.  It is also relevant to mention that the charges in the charge sheet were made mainly as a  result of certain F.I.Rs.   In the chargesheet, with regard to the charge of absence from duty, several memos were referred but the only memo/letter which relates to the relevant period was dated 6.2.2002.  The F.I.R. being case crime No.265/2002 was against his wife which was lodged by some neighbouring farmer for cutting crops.  Even his wife was acquitted by the Judicial Magistrate, Court No.2 Hathras by order dated 21.2.14,  a copy of which has been filed as Annexure C.A.-3. 

12. So far as Case Crime No.500/2002 is concerned, according to the petitioner, the said case is still pending.  The third criminal case, i.e., Case No.120 of 2001, was the result of F.I.R. lodged   by the then Principal/the present Manager of the petitioner's Institution, which is stated to be still pending and merely charges has been framed.  

13. Looking into the facts and circumstances of the case, as briefly noted above, particularly the manner in which the petitioner allegedly dismissed the respondent No.4 from service, there appears to be much force in the submission of the respondent No.4 that the entire proceeding initiated by the then Principal of the Institution, who is presently the Manager of the Institution,  were merely paper work and neither any inquiry was lawfully conducted nor any lawful order of dismissal from service was passed nor served on the respondent No.4.

14. The Principal of the petitioner's Institution  has sent a letter dated 14.10.09 to DIOS Mahamaya Nagar, a copy of which has been filed as Annexure CA-9, which is reproduced below. :-

"fo"k;%&Jh dqaoj iky flag dh fjV ;kfpdk la0& [email protected] esa ikfjr vkns'k fnukad 1-9-2003 ds vuqikyu esa lk{; ,oa vfHkys[kksa dh izekf.kr Nk;kizfr;ka izLrqr djus ds lEcU/k esaaA

egksn;]

fuosnu gS fd vkids i=kad [email protected]@2009&10 fnukad 8-10-2009 ds lanHkZ esa ekuuh; mPp U;k;ky; bykgkckn esa ;ksftr ;kfpdk la0 [email protected] esaa ikfjr vkns'k fnukad 1-9- 2003 ds vuqikyu esa izdj.k ls lEcfU/kr leLr lk{;] vfHkys[k] lsokiaftdk ,oa th0ih0,Q0 ystj vkkfn HkwriwoZ iz/kkukpk;Z Jh jktsUnz iky flag th ds ikl gSA rFkk dsl ¼fjV ;kfpdk½ lEcU/kh dksbZ i=koyh fo|ky; esa miyC/k ugh gSA Jh dqoaj iky flag dh fo|ky; esa fu;qfDr 1-11-1974 esa gqbZ FkhA Jh flag dks fu;qfDr frfFk ls fnlEcj 2000 rd osru vkgj.k fd;k x;k gS vkSj tuojh 2009 ls vHkh rd osru Hkqxrku ugh gqvk gSA nksukas ekgksa ds osru fcyksaa dh izekf.kr Nk;kizfr bl i= ds lkFk layXu gSA osru Hkqxrku gksuk ,oa fo|ky; ls fu"dklu dh fLFkfr esa fo|ky; esa lk{; ,oa vfHkys[k u gksus ds dkj.k Li"V ugh dh tk ldrh gS A

Hkonh;

iz/kkukpk;Z

Jh lkgc flag b.Vj dkyst

nfj;kiqj ¼egkek;kuxj½

layXud&

1- osru fcy ekg fnlEcj 2000 dh

izekf.kr Nk;kizfrA

2- osru fcy ekg tuojh 2010 dh

izekf.kr Nk;kizfrA

g0 viBuh;

14-10-2009

¼lR;izfrfyfi½ "

 15. From the  aforequoted letter of the petitioner, it is evident that the same was sent to the District Inspector of Schools in the matter of representation of the petitioner  consequent to the order passed in the Writ Petition No.38257 of 2003. In this letter it is mentioned that the respondent No.4 was appointed on 1.11.1974 who received the payment of salary till December, 2000 and since January, 2009 his salary has not been paid.  A copy of the pay bill of December, 2000 and January, 2009 were also sent to the District Inspector of Schools along with the said letter.

16.    Since the grievance of the respondent No.4 were not redressed either by the petitioner or by the respondent No.3 and, as such, he filed a writ petition No.9174 of 2014 praying for a writ order in the nature of mandamus commanding the authorities to release Gratuity, Provident Fund and other pensionary benefits to him with regard to the services completed by him on the post of peon and also to pay him pension.   This writ petition was disposed of by the order dated 13.2.2014(Annexure-12)  as under. :

"This writ petition has been filed seeking a direction in the nature of mandamus to the respondents to release gratuity, provident funds, pension and other services dues to the petitioner.

From the averments in the writ petition, it appears that the petitioner was appointed on the post of Daftari in the Sahab Singh Ucchatar Madhyamik Inter College, Dariyapur, District- Aligarh (Mahamaya Nagar). He has retired from service on 31.7.2013, but till date he has not been paid his retiral benefits such as gratuity, provident funds, pension and other service dues.

I have heard Sri Vishnu Kumar, learned counsel for the petitioner and the learned standing counsel for the respondents no.1 to 3. In view of the order, which is being passed., it is not necessary to issue notice to the respondents no. 4 & 5.

Without expressing any opinion on the merits of the case, this writ petition is disposed of with the consent of the learned counsel for the parties with a direction to the respondent no.3, District Inspector of Schools, Mahamaya Nagar to take a decision in the matter of the petitioner by a reasoned and speaking order strictly in accordance with law within a period of one month from the date a certified copy of this order is received by his office."

17. In compliance to the order passed in the aforenoted petition, the impugned order has been passed by the respondent No.3.  An objection has been raised by the learned counsel for the petitioner that the observation of the respondent No.3 in the impugned order that the order of dismissal from service was passed without his approval, is not sustainable in view of the Full Bench Judgement of this Court in the.. case of  Rishikesh Lal Srivastava (Supra).

18. On the peculiar facts and circumstances of the case, I do not find substance in the submission of learned counsel for the petitioner since the impugned order has been passed by the respondent No.3 pursuant to the direction issued by this Court under Article 226 of the Constitution of India. 

19.  In the impugned order, findings of fact have been recorded that the order of dismissal from service of the respondent No.4 was passed by the petitioners in breach of principles of natural justice under the relevant Rules. This Court, on consideration of materials available on record, has come to the conclusion that the alleged enquiry and the order of dismissal from service against the respondent No.4 were not legal and proper and violative of Principles of natural justice. Even the said order dated 15.10.2013 was not served on the respondent no.4. The Principal, who is now  the Manager of the petitioner institution was instrumental in ousting the respondent No.4 illegally. The F.I.R. lodged  by him under Section 307 I.P.C. against the respondent No.4 was a no injury case.  The respondent No.4 has not been convicted so far in the said case.

20. Considering the peculiar facts and circumstances of the case, I do not find any good reason to interfere with the impugned order.  I also do not find any good reason to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. 

21. Lastly, learned counsel for the petitioner submitted that the cause of action is highly belated and, therefore, writ petition is not maintainable.  I do not find any substance in this submission, inasmuch as the impugned order has been passed by the respondent No.3 pursuant  to the directions issued by this Court in the writ petitions as afore noted, filed by the respondent No.4. That apart under the facts and circumstances of the case there was continuous cause of action.

22. In view of the above discussions, the writ petition deserves to be dismissed  with cost of Rs.10,000/- which shall be paid by the petitioner to the respondent No.4 within a month. 

23. In the result, the writ petition fails and is hereby dismissed with cost of Rs.10,000/-.

Dated : 24.7.2015

L.F./44760/14/1