C/M Kabir Balika Vidyalaya And ... vs State Of U.P. And 3 Ors
2018 Latest Caselaw 2644 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 893 of 2018
 

 
Appellant :- C/M Kabir Balika Vidyalaya And Another
 
Respondent :- State Of U.P. And 3 Ors
 
Counsel for Appellant :- Arun Kumar,Pashupati Nath Tripathi
 
Counsel for Respondent :- C.S.C.,Amit Kumar Srivastava,Nisheeth Yadav
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bachchoo Lal,J.

Heard Sri Arun Kumar, learned counsel for the appellants-Committee of Management, Sri Nisheeth Yadav, learned counsel for the respondent no.2 namely the District Basic Education Officer, Varanasi, the learned Standing Counsel for the respondent nos. 1 & 3 and Sri Amit Kumar Srivastava for the respondent no.4. This is an intra-court appeal against the judgment of a learned Single Judge.

The dispute lies in a very short compass relating to the dismissal of the 4th respondent Satish Chandra who was working as a watchman (chaukidar) in Kabir Balika Vidyalaya which is a Junior High School and the services of the 4th respondent are undisputedly governed by the provision of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group-D Employees) Rules 1984. The termination of service of a Clerk or a Group-D employee of a recognized school under Rule 21 cannot take place except without the prior approval in writing of the District Basic Education Officer. Rule 21 is extracted hereinunder:-

21. Termination of service. - No clerk or Group 'D' employee of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer : Provided that, in the case of schools established and administered by minority referred to in clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him."

In the instant case, the appellant committee contends that the procedure prescribed for holding an enquiry was followed and one of the basic and primary charges against the respondent no.4 was of unauthorized absence w.e.f. 09th of June, 2010. According to the management, a charge-sheet was served and the enquiry was held whereafter the services of the respondent no.4 were dispensed with.

This dispensation was subject to approval by the District Basic Education Officer and accordingly, the proposal was dispatched to the said officer on 2nd of February, 2013. Upon receipt of such proposal the officer issued notices to the appellants.

It appears that the some adjournments had been sought and during this period, the District Basic Education Officer insisted upon allowing the 4th respondent to join his services and commanded the appellant to sanction him leave without pay under a direction dated 05th of March, 2013. There was no approval or disapproval of the proposal of the termination of the services of the 4th respondent. The District Basic Education Officer repeated this by passing another order dated 18th March, 2013 in favour of the 4th respondent which came to be challenged in Writ Petition No. 18781 of 2013, in which a direction was given by a learned Single Judge of this Court on 08th April, 2013 observing that since the District Basic Education Officer had not passed any order on the said proposal of the Committee of Management, he may do so within a period of six weeks' after giving notice and opportunity to the committee as well as to the respondent no.4.

According to the District Basic Education Officer, notices were dispatched to the appellants-committee to appear, but in spite of service of such notice they did not choose to contest the same and under the said circumstances, the District Basic Education Officer upon a consideration of the material on record passed the impugned order dated 30th July, 2013 which came to be impugned in the writ petition giving rise to the present special appeal.

The contention of the Committee of Management before the learned Single Judge was that the District Basic Education Officer instead of delving into the issue of the entire enquiry concluding in the dismissal of the respondent an alternative viamedia was carved out by him issuing a direction for sanctioning him leave without pay. The appellant also denied having been given an opportunity by the officer.

The learned Single Judge while passing the impugned judgment has held that the finding of fact recorded by the 2nd respondent i.e. the District Basic Education Officer about the long tenure of service of the respondent no.4 of 32 years was not disputed. The learned Single Judge further went on to held that the absence was on account of the ailment and for which an application for leave had been moved. The learned Single Judge then concluded abruptly that since it has not been disputed that there is a provision for sanction of leave without pay, therefore, the direction given by the District Basic Education Officer to sanction leave without pay to the respondent no.4 did not suffer from any legal infirmity, keeping in view the uninterrupted 32 years of service of the respondent no.4. Accordingly, the writ petition was dismissed.

Sri Arun Kumar submits that the issue in the disciplinary proceeding was not about leave without pay but about the dismissal of the respondent no.4 on certain charges including the charge of unauthorized absence w.e.f. 09th of June, 2010. Neither the District Basic Education Officer nor the learned Single Judge dealt with into this issue and instead dismissed the writ petition on the ground that the respondent no.4 had served the institution for 32 years, and he could have been sanctioned leave without pay.

Thus, according to the learned counsel for the appellants the questions of leave without pay not being the issue, the learned Single Judge has committed an error in dismissing the writ petition filed by the appellant Committee of Management which was the same error committed by the District Basic Education Officer.

Learned counsel for the respondent no.4 has vehemently urged that the act of Committee of Management was a malafide exercise of power, and as a matter of fact, the respondent no.4 had given sufficient explanation about his absence which was nothing else but ailment, and consequently, the conclusion arrived at by the District Basic Education Officer cannot be said to be suffering from any infirmity either factual or legal. He therefore contends that keeping in view, the status of employment of the respondent no.4, the order passed by the District Basic Education Officer has done complete justice between the parties, and therefore, the learned Single Judge was right in not interfering with the same.

Sri Nisheeth Yadav for the District Basic Education Officer has urged that the direction issued by the District Basic Education Officer to grant leave without pay may not have been the issue, but it was a justified order, keeping in view the facts and circumstances of the case.

Having given our thoughtful consideration to the entire facts as narrated above, and also the findings recorded by the District Basic Education Officer as well as the learned Single Judge, we are of the considered opinion that the District Basic Education Officer, instead of proceeding in terms of Rule 21 to either grant approval or disapproval to the proposal, has found out an alternative method of extending a benefit of leave without pay to the respondent no.4 which was not the issue in the disciplinary proceedings the proposal whereof had been made by the Committee of Management. The power to approve or disapprove is of the action taken by the employer. The District Basic Education Officer is not a substitute for the Committee of Management, and it is only the Committee of Management which is empowered under the rules to take any disciplinary action. The Officer is also not the appellate authority so as to enjoy any co-extensive powers. The approval or disapproval has to be in accordance with law and in accordance with the procedure prescribed including the observance of principles of natural justice.

The word approval has not been defined in the 1984 Rules, and therefore, the Court will have to resort to the ordinary meaning as well as the meaning assigned to the said word occurring in pari-materia provisions of such similar set of rules and enactments. To begin with, when one approves another's action, this expression amounts to an approval. It is sanctioning approbation which is nothing else but attestation and confirmation. To approve means to ratify or to confirm or to sanction an act of another. It is an act of assent which corroborates through a decision in the affirmative. To approve is to pronounce and hold as correct an affirmation. Thus, the action taken by another becomes subject of approval by some other person or authority. The original action therefore if approved is confirmed.

The District Basic Education Officer under the 1984 Rules is therefore an authority empowered to approve the action of the Committee of Management under Rule 21 referred to hereinabove.

In the instant case, what preceded the action was of disciplinary proceedings that concluded in the inflicting of a punishment of dismissal of the employee on account of certain charges having been proved including the charge of unauthorized absence. The procedure for disciplinary proceedings and the punishment to be inflicted is governed by Rule 23 of the aforesaid rules which is extracted hereinunder:

23."Disciplinary Proceeding- In respect of disciplinary proceedings and punishment to be inflicted in such proceedings, a clerk or Group 'D' employee, as the case may be, of a recognized school shall be governed by the rules applicable to an assistant teacher of a Basic School established or maintained by the Board."

A perusal of the said rule would indicate that the disciplinary proceedings would be governed by the rules applicable to an Assistant Teacher of a Basic school established or maintained by the Board. The rules applicable to the teachers of schools established by the Board of the category of the Junior High School, namely Senior Basic School, from Class 6 to 8 is the U.P. Basic Education (Teachers) Service Rules 1981. It is to be noted that the present case is also of a Junior High School in respect of a Group-D employee. The 1981 Rules do not specifically provide for any method of disciplinary proceedings, but the U.P. Basic Education Staff Rules 1973 can be referred to for guidance. Punishment therein by the appointing authority is provided for in Rule-3, and the power to impose punishment is with the appointing authority. An appeal is also provided for under Rule 5 of the aforesaid rules. Under-Sub Rule (3) of Rule 5 of the U.P. Basic Education Staff Rules, 1973 the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, 1965 as applicable to servants of the Uttar Pradesh Government shall as far as possible be followed in disciplinary proceedings and to appeals and representations under the said rules.

Consequently, the method applicable as aforesaid would be applicable in respect of the disciplinary proceedings under the 1984 Rules.

However, the question of approval by an authority is a separate provision all together, and therefore, as to how will the approving authority proceed to pass an order on a proposal of termination has to be seen in the light of the legal interpretation of such provisions as occurring in any other rule or enactment that may be pari-materia to Rule 21 of the 1984 Rules.

For this, we may first refer to Section 21 of the U.P. Secondary Education Services Commission Selection Board, 1982. In the said provision, the Commission has been given the power to either approve or disapprove of disciplinary action against a teacher undertaken by a Committee of Management of an Intermediate College Recognized under the provisions of the U.P. Intermediate Education Act, 1921, but at the same time, Section 21 also lays down that the Commission can issue such directions as may be necessary while passing such an order. The aforesaid provision came to be considered by a learned Single Judge in the case of Managing Committee of Gochar Krishi Inter College and another Vs. U.P. Secondary Education Services Selection Board and others 2002 (1) AWC 574 where a learned Single Judge in paragraph no. 10 of the said judgment probed this question and came to the conclusion that there was a similar provision existing in the U.P. Intermediate Education Act, 1921 namely Section 16 (G) (3) (b), but after the enactment of the 1982 Act there was a significant absence of the power with the Commission to reduce or enhance the punishment. Thus, the ratio of the aforesaid decision is that the power is confined only to approval or disapproval and not to substitute a punishment.

The said judgment came up for consideration again before a learned Single Judge in the case of Committee of Management Madan Mohan Malviya Inter College Vs. U.P. Secondary Education Service Commission and others 2004 (1) AWC 181 where the said argument was again advanced in paragraph no.9 of the reported decision. The same was responded to by the learned counsel for the other side paragraph no. 12 thereof, and after considering the arguments the Court rendered its opinion in paragraphs no. 16 to 24. After discussing the law on the subject the learned Judge then distinguished the case of Managing Committee of Gochar (supra) in paragraph no. 25 holding that while approving or disapproving the removal of a teacher, the Commission has necessarily to go into the merits of the case and apply its mind independently on the merits of the matter. It went on to further hold that the judgment in the case of Managing Committee of Gochar (supra) was per incuriam and came to the conclusion that the Commission can direct for award of a lesser punishment. It is to be noted again that Section 21 of the 1982 Act empowers the Commission either to approve or disapprove and to issue any other directions deemed fit in the case. The aforesaid proposition of law would therefore not apply in the present case where Rule 21 does not extend any such power to the District Basic Education Officer to issue any other directions.

Having said so, we now refer to the rules applicable to employees of privately managed Junior High Schools who are governed by the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978. These rules are not directly applicable to any employee as presently involved, but Rule 15 of the 1978 Rules is pari-materia to Rule 21 of the 1984 Rules. There also the termination of service cannot take place except with the prior approval of the District Basic Education Officer. It was brought to the notice of the State Government that while exercising such powers of approval or disapproval, it had been observed that there was a variation in the passing of the orders by the Officers, and therefore, some uniformity was required to be adopted. Accordingly, a Government Order was issued on 15th Feb, 1996 containing guidelines governing the exercise of powers by the District Basic Education Officers in disciplinary proceedings. The same is extracted hereinuder:-

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f'k{kk vuqHkkx&6 y[kuÅ]fnukad 15 Qjojh]1996

fo"k;%& ekU;rk izkIr twfu;j gkbZLdwy ds iz/kkuk/;kidksa rFkk lgk;d v/;kidksa ds fo:) izcU/kkf/kdj.k }kjk izLrkfor n.M ds laca/k esa ftyk csfld f'k{kk vf/kdkjh }kjk vuqeksnu fn;k tkukA

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mi;qZDr fo"k; esa vkids i= la-&cs-f'[email protected]@95&96 fnukad 3-1-96 ds lUnHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd m-iz- ekU;rk izkIr Ldwy ¼twfu;j gkbZLdwy½ v/;kidksa dh HkrhZ ,oa 'krsZa fu;ekoyh] 1978 ds fu;e 15 es izko/kkfur gS fd v/;kidksa dks o`gr n.M nsus ds iwoZ lacaf/kr csfld f'k{kk vf/kdkjh dk vuqeksnu izkIr djuk vfuok;Z gSA 'kklu ds laKku esa vk;k gS fd ijh{k.k djus gsrq dksbZ ekxZn'kZd funsZ'k u gksus ds dkj.k ,d tSls izLrkoksa esa fHkUu&fHkUu vf/kdkfj;kas }kjk fHkUu&fHkUu fu.kZ; fy;s tkrs gSa ftlls v/;kidksa rFkk izcU/kkf/kdj.k esa vuko';d vlarks"k mRiUu gksrk gSA

2- vr% mDr folaxfr;ksa dsk nwj djus ds mn~ns'; ls ;g fu.kZ; fy;k x;k gS fd izLrkfor n.M dks vuqeksfnr vFkok vukuqeksfnr djus ds iwoZ csfld f'k{kk vf/kdkjh }kjk fuEufyf[kr fcUnqvksa ij vo'; fopkj fd;k tk;s&

¼1½ lEiw.kZ vuq'kklukRed dk;Zokgh d.Vªksy ,oa vihy :Yl esa fu/kkZfjr izfØ;k ds vuqlkj lEiUu dh x;h gS vFkok ugha tSls fd tkap vf/kdkjh dh fu;qfDr] vkjksfir deZpkjh dks vkjksi&i= fuxZr fd;k tkuk] dqy feykdj ;g ns[kuk gS fd mDr dk;Zokgh esa dksbZ izfØ;kRed =qfV rks ugha gSA

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¼5½ izcU/kkf/kdj.k vkjksfir vkjksiksa dh ifjiqf"V ds laca/k esa tks lk{; izLrqr fd;s x;s gSa] vuqeksnu ds le; mu lk{;ksa dks fjvizksp djus dk vf/kdkj csfld f'k{kk vf/kdkjh dk ugha gSA mUgsa dsoy ;g lqfUkf'pr djuk gS fd izLrkfor n.M lk{;ksa ds vk/kkj ij mfpr fu"d"kZ ds :i esa fn;k tk jgk gS vFkok ughaA

3- vr% ftyk csfld f'k{kk vf/kdkfj;ksa dks mijksDr funsZ'k ifjpkfyr djk fn;s tk,a fd os mi;qZDr 5 ekxZn'kZd funsZ'kksa ds ifjizs{; esa gh vuqeksnu vFkok vukuqeksnu iznku djsaA

d`i;k bl laca/k esa d`r dk;Zokgh ls 'kklu dks Hkh voxr djk;k tk;sA

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As noted above in the present case, the 1984 Rules referred to the proceedings of disciplinary action to be applied as in the case Teachers of Basic Schools established and run by the Board for which we have already referred to the 1981 Rules and the 1973 Rules. The 1973 Rules in turn refers to the Civil Control and Classification Rules applicable to the Government servants. In addition thereto what we find is that the Government Order dated 15th Feb, 1996 even though not directly applicable to proceedings governed by the 1984 Rules as presently involved, yet the principles and the guidelines enunciated therein are clearly attracted and deserve to be supplemented in the present case. The Government Order categorically prescribes that the District Basic Education Officer while proceeding to consider approval or disapproval has to see as to whether the entire disciplinary proceedings have been carried out in accordance with the control and appeal rules which in turn amounts to referring to the Civil Classification Control and Appeal Rules. He has to find out as to whether the proceedings are in accordance with the same, for example whether the Enquiry Officer has been appropriately appointed, whether the delinquent employee has been served with a proper charge-sheet and cumulatively whether there has been a procedural fault in the proceedings or not. The second guideline in the Government Order is as to whether the delinquent was given an appropriate opportunity of hearing or not. The third point indicated is as to whether the proposed punishment is in respect of the charges, and whether it is based on sufficient evidence or not. The fourth indicator is that the District Basic Education Officer exercises a supervisory jurisdiction and not the job of an Enquiry Officer, meaning thereby, he does not have the power to hold a denevo enquiry himself, and the last indicator is that the District Basic Education Officer cannot re-approach (reappraise) the evidence adduced during the disciplinary proceedings. He has only to ensure that the proposed punishment is based on an appropriate conclusion or evidence or not.

We are therefore of the opinion that the District Basic Education Officer is obliged to proceed in the above mentioned manner even while considering an approval under 1984 Rules as presently involved. The aforesaid guidelines therefore deserve to be observed by him, and we further clarify that in all such cases governed by the provisions of Rules 21 and 23 of the 1984 Rules, the concerned District Basic Education Officer would be under an obligation to comply with the aforesaid guidelines, unless there are any rules to the contrary.

The District Basic Education Officer instead of discharging his obligation in complying with law has proceeded to sit in appeal over the proportionately of punishment awarded by the Committee of Management which did not fall within his authority. Consequently, the power exercised by the District Basic Education Officer suffers from manifest illegality, and consequently, cannot be sustained on that ground.

The aforesaid issue has completely been omitted to be considered by the learned Single Judge, and consequently, the impugned judgment cannot be sustained.

At this stage, learned counsel for all the parties agree that the appeal itself be disposed off with a direction that the District Basic Education Officer may proceed to pass a fresh order after considering the rival contentions of the parties, and keeping in view the proposal of the Committee of Management as well as the explanation of the respondent no.4 in that regard. Consequently, the appeal is allowed.

The judgment of the learned Single Judge dated 21st August, 2018 is set aside. The order passed by the District Basic Education Officer, Varanasi dated 30th July, 2013 is quashed.

The writ petition and the appeal are accordingly allowed with a direction to the District Basic Education Officer, Varanasi to proceed to dispose off the proposal that was sent by the Committee of Management after considering the reply of the 4th respondent, and upon giving an opportunity of hearing to both the parties within a period of six weeks from the date of presentation of certified copy of the order before in.

It shall be open to the appellants as well as the respondent no.4 to raise all such issues as may be available to them under law in support of their contention.

It goes without saying that the District Basic Education Officer shall pass an order, keeping in view, the observations made hereinabove subject to the powers which he can exercise in terms of Rule 21 and shall give full reasons for the same.

The appeal is accordingly allowed subject to above.

A copy of our order shall be dispatched by the learned Standing Counsel to the respondent no.1 for communicating this decision for implementation to all the District Basic Education Officers throughout the State of U.P. and for necessary compliance.

Order Date :- 18.9.2018

M. ARIF