Praveen Kumar vs State Of U.P. Thru' Secy. & Others
2018 Latest Caselaw 2933 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A F R
 
Court No. - 34
 

 
Case :- WRIT - A No. - 46464 of 2005
 

 
Petitioner :- Praveen Kumar
 
Respondent :- State Of U.P. Thru' Secy. & Others
 
Counsel for Petitioner :- H.N. Pandey
 
Counsel for Respondent :- C.S.C.,B.P.Singh,P.K. Jain,Vikash Bhudhwar
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri H. N. Pandey, learned counsel for petitioner, learned Standing Counsel for respondent 1 and Sri P. K. Jain, Senior Advocate appearing on behalf of respondent 5.

2. Supplementary affidavit filed on behalf of petitioner is taken on record.

3. This writ petition is directed against order dated 04.06.2005 passed by respondent 2 i.e. District Inspector of School, Baghpat (hereinafter referred to as 'DIOS') directing Management of KHR Inter College, Khampur, Luhari, Tehsil-Baraut, District-Baghpat (hereinafter referred to as 'College') to terminate petitioner's service.

4. Facts giving rise to present writ petition are that College is a Secondary Educational Institution imparting education to intermediate students. The College is governed by the provisions of U. P. Intermediate Education Act 1921 (hereinafter referred to as 'Act, 1921'). For the purpose of payment of salary to staff, College is governed by the provisions of Payment of Salary Act 1971 (hereinafter referred to as 'Act, 1971).

5. Shiv Kumar, respondent 5 was appointed as Class IV employee by order dated 24.07.1995 by Principal of the College, but having been found guilty of certain charges of misconduct, he was terminated by order dated 13.07.2001. He preferred an appeal which was allowed by order dated 18.09.2001by Authorized Controller, who was looking after Management of College.

6. Respondent 5, then absented himself from College with effect from 26.04.2002 without any sanction of leave or even without intimation to College Authorities. Principal of College issued notice to respondent 5, but respondent 5 was not found residing at the address given by him and, therefore, notice could not be served upon him. Thereafter, again a notice was sent by Principal to respondent 5 on 14.05.2002, still respondent 5 did not join.

7. Principal, who is competent authority to take decision in the matter of Class IV employees in the College, got published an advertisement in daily newspaper "Dainik Jagran" on 24.06.2002 requiring respondent 5 to join the duties within 15 days, failing which his services would stand terminated. Even then respondent 5 did not join. Principal vide order dated 21.07.2002 appointed Sri Jagvir Singh, Lecturer as Enquiry Officer for making enquiry of the charge of unauthorized absence of respondent 5. After enquiry a report was submitted on 26.08.2002. Ultimately order of termination was passed by Principal i.e. Appointing Authority on 09.10.2002 terminating respondent 5 from the post.

8. An advertisement was published in daily newspaper "Amar Ujala" on 08.05.2003 inviting fresh applications for appointment on Class IV post. Pursuant thereto, petitioner applied and after being selected he was appointed. By order dated 30.07.2003, DIOS also approved petitioner's selection and appointment and thereafter letter of appointment was issued by Principal. Petitioner joined on 31.07.2003. Thereafter, it appears that respondent 5 approached Authorized Controller seeking permission to join and also stated that some documents, which were submitted to Principal regarding his death, were all forged. The enquiry was going on when DIOS sent letter on 30.04.2005 stopping payment of salary to petitioner whereagainst Writ Petition No.41723 of 2005 was filed, which was disposed of vide judgment dated 24.05.2005 directing DIOS to conclude enquiry after giving opportunity of hearing to all concerned persons. Pursuant thereto, impugned order has been passed by DIOS.

9. Management of College i.e. respondent 3 has filed counter affidavit admitting that respondent 5 was appointed as Class IV employee on 24.07.1995. On the charge of unauthorized absence, an enquiry was conducted and pursuant to enquiry report dated 26.08.2002, Principal of the College terminated respondent 5 vide order dated 09.10.2002. It is said that termination by Principal was without communication or consultation of Authorized Controller. Principal also proceeded unauthorizedly to make fresh appointment. It is said that fresh advertisement was published only in one newspaper and without following the procedure under Regulation 101 to 107 framed under Act 1921, petitioner was appointed. It is also said, when complaint was made by Authorized Controller, DIOS made enquiry and vide impugned order directed Principal to terminate petitioner and reinstate respondent 5 and also lodge FIR against those responsible for submitting forged documents relating to death of respondent 5. DIOS has also directed for suspension of Principal of the College.

10. Principal has also filed a separate counter affidavit in which he admits termination of respondent 5 and appointment of petitioner and claims that impugned order amounts to termination of petitioner by DIOS, which is not in accordance with provisions of Act 1921.

11. Respondent 5 has also filed a separate counter affidavit stating that no approval was granted by DIOS for appointment of petitioner in place of respondent 5, therefore, appointment of petitioner is null and void. It is said that this is second writ petition, since, petitioner earlier filed Writ Petition No.41273 of 2005 but in this writ petition it is claimed to be the first writ petition. Respondent 5 has admitted his appointment as Class IV employee on 24.07.1995 and also his initial termination by Principal, which was set aside in appeal by Authorized Controller. He also admits having absented from duty with effect from 26.04.2002. However, he justified absence on the ground that he was under great mental tension and thus, proceeded on leave after submitting application to Principal, praying for one week's leave. However, he could not return since tension and depression continued. In January 2005, he approached Authorized Controller of the College to allow him to join. He did not receive any notice sent by Principal at any point of time and entire exercise of termination of respondent 5 was manufactured by Principal of the College. DIOS never granted any permission to Principal to make fresh appointment, still petitioner was appointed. Letter of Insurance Company regarding death of respondent 5 was a manufactured document. The period during which respondent 5 was absented, could have been treated as leave without pay for which he gave application on 25.01.2005 to Authorized Controller.

12. In the light of above pleadings, it is evident that respondent 5 remained absent from 26.04.2002 i.e. for more than 2 ½ years. It is also not in dispute that appointing authority of Class IV employee of the College is Principal. On the charge of unauthorized absence of respondent 5, a charge sheet was issued, enquiry was conducted and thereafter an order dated 09.10.2002 (Annexure 9 to writ petition) was passed imposing punishment of removal upon respondent 5.

13. Learned counsel for respondent 5 contended that order of termination dated 09.10.2002, without approval of DIOS, is illegal. But, I find that this issue has already been finalized by a Full Bench in Rishikesh Lal Srivastava Vs. State of U. P. and others, 2009 (5) ESC3073 in which following two questions were referred to be answered by Larger Bench :

"(i) Whether prior approval for awarding punishment of dismissal to a Class-IV employee is contemplated and required under Chapter-III, Regulation 31 of U. P. Intermediate Education Act, 1921?

(ii) Which of the Division Bench judgments, as noticed above, lays down the correct law?"

14. Aforesaid two questions were answered by Full Bench in para 70 of the judgment stating as under :

"70. Our answer to the questions referred to us are as under :

(i) For awarding a punishment as enumerated under Regulation 31 Chapter III of the U. P. Intermediate Education Act, 1921 to a Class-IV employee of a institution recognized under the aforesaid Act, no prior approval or sanction from the Inspector of Schools is required.

(ii) The Division Bench judgments in the case of Ali Ahmad Ansari Vs. District Inspector of Schools, Kushinagar, 2006 (3) ESC 1765 and Pujari Yadav v. Ram Briksh Yadav, 2006 (65) AILR 767, lay down the correct law in contradistinction to the Division Bench judgment of Principal, Rashtriya Inter College, Bali Nichlaul, District-Maharajganj and Others, 2000 (1) UPLBEC 707, and the other judgments to that effect."

15. In view thereof, it cannot be said that order dated 9.10.2002 issued by Principal of the College imposing punishment of removal upon respondent 5 is bad or illegal for want of approval by DIOS. It is also not the case of respondent 5 that aforesaid order has been set aside by an competent authority at any point of time till date. In this view of the matter, so long as order dated 09.10.2002 is alive, it cannot be said that respondent 5 is in service, on and after 09.10.2002.

16. In these circumstances, I have no hesitation in observing that when process for appointment on Class IV post was initiated by Principal of College,Class IV post was not vacant. Respondent 5 was already removed from service on 09.10.2002. Advertisement of vacancy dated 08.05.2003 is on record. It is also evident from record that after making selection, documents were forwarded to DIOS for his approval on 25.05.2003 and thereafter, petitioner was appointed on 30.07.2003. Thus, it cannot be said that apparently there was any non-compliance of Regulation 101 framed under Act 1921.

17. Moreover, DIOS, while passing impugned order has proceeded on the assumption that appointment of petitioner was made by treating that respondent 5 has died. He has not looked into the question, what is the effect of removal of respondent 5 from service by order dated 09.10.2002, which was passed by Principal as a result of departmental enquiry, particularly when neither any appeal was filed by respondent 5 against the said order of removal nor any other competent authority has set aside the said order and same is still alive and operating.

18. In view thereof, direction of DIOS to treat appointment of petitioner as illegal and to terminate him, in my view, cannot be sustained. Instead the matter needs to be re-examined by DIOS whether appointment of petitioner was made validly following procedure laid down in Statute, after removing respondent 5 from service and if there is no breach of any provision, DIOS cannot stop payment of salary to petitioner.

19. Learned counsel for respondent 5 contended that DIOS should also be directed to examine the question of validity of termination order dated 09.10.2002 passed by Principal against respondent 5, but I find that no such direction can be issued since respondent 5 has never availed statutory remedy of appeal against said order and also not carried the same before appropriate forum. Therefore, in this writ petition I find it difficult to issue any such direction.

20. In the result, writ petition is allowed. Impugned order dated 04.06.2005, in so far as it has directed Principal to terminate petitioner, I set aside. DIOS now shall pass a fresh order in the light of observations and directions made above, preferably within a period of two months from the date of production of a certified copy of this order, after giving opportunity of hearing to all concerned parties.

Order Date : 28.09.2018

Manish Himwan