Nurullah vs State Of U.P. And 3 Others
2023 Latest Caselaw 11693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 
Case :- WRIT - A No. - 4534 of 2023
 
Petitioner :- Nurullah
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mohd. Naushad Siddiqui,Arvind Srivastava
 
Counsel for Respondent :- C.S.C,Mohammad Ali Ausaf,Pranav Mishra
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sri M.A. Ausaf, learned counsel for respondent no. 4 as well as learned Standing Counsel for respondent nos. 1 to 3.

2. On the last occasion, this Court noticed the argument advanced by learned counsel for the petitioner that in the matter of termination of service of the petitioner two identically placed Assistant Teachers who had filed writ petition before this Court, the writ petition came to be allowed by final judgment and order dated 05.08.2022 and 01.09.2022 corrected on 11.10.2022 on the ground that in the absence of any approved scheme of administration that may have entitled the respondents to dispense with the services of the teachers and employees working in the Institution namely Madarsa Masdarul Uloom Asdakiya, Purani Chakiya Chandauli, the Manager who had no right to pass the order terminating the services of the petitioner.

3. Learned counsel for the Committee of Management on that date could not dispute the above legal position.

4. Learned Senior Advocate appearing for the Committee of Management assisted by Sri M.A. Ausaf on that date did not dispute the above legal position but got the hearing deferred on the ground that the special appeal has been filed against the judgment of a coordinate bench in two writ petitions being Writ - A No. 10967 of 2022 which was decided vide order dated 05.08.2022 and Writ - A No. 14074 of 2021, however, it was admitted that in respect of Writ - A No. 14074 of 2021 the appeal was not heard and awaiting the judgment to be passed in Special Appeal No. 573 of 2022.

5. Today Sri Arvind Srivastava has placed the judgment of Division Bench dated 14.03.2023 passed in Special Appeal No. 573 of 2022 by which the judgment passed by the learned Single Judge in writ petition being Writ - A No. 10967 of 2022 has been affirmed.

6. Sri M.A. Ausaf, learned counsel for the Committee of Management however, seeks adjournment today on the ground that the Committee proposes to file Special Leave Petition before the Supreme Court.

7. In my considered view, unless and until Special Leave Petition is already filed and the matter is sub judice before the Court, a mere proposal to file SLP in the Supreme Court cannot be a ground to adjourn the matter today, more especially in the circumstances when the legal issue involved in the present case is the one and same as involved in Writ - A No. 10967 of 2022 in which the order of termination was set aside and against which special appeal has now been dismissed. Accordingly, I proceed to decide this matter.

8. Briefly stated facts of the case are that the services of the petitioner came to be dispensed with by order of termination by the Manager of the Committee of Management of the Institution dated 01.07.2021. The order of termination was disapproved by the Registrar, Madarsa being de hors the provisions contained under Uttar Pradesh Non Governmental Arbic and Persion Madarsa Recognition Administration and Services Regulations, 2016. Against this order the Committee of Management filed a writ petition before this Court and this Court by interim order dated 16.09.2021 stayed the effect and operation of the order passed by the Registrar/ Inspector. While this petition remained pending, Arshad Javed Khan and Ubaid Ahmad Khan challenged the order of termination before this Court vide Writ - A No. 10967 of 2022 and Writ - A No. 14074 of 2021 and both the writ petitions were allowed vide detailed judgment and order dated 05.08.2022 and 21.09.2022 (corrected on 11.10.2022) respectively.

9. The main legal issue that was raised before this Court was that the services of the petitioner could not have been dispensed with without conducting the disciplinary proceedings as contemplated under Regulation 16 of Regulations, 2016.

10. Another legal issue was also raised to the effect that in view of the U.P. Board of Madarsa Education Act, 2004 and the provisions contained therein under Section 22 that provides for a scheme of administration and section 24 provides for conditions of service of the Head of the Institution, Teachers and other employees, such a power could have been exercised only under a valid scheme of administration.

11. Noticing the aforesaid provisions and reading down them together with regulation 16 of the Regulations, 2016, the Court held that the impugned action taken by the Manager of the Committee of Management to dispense with the services of such Assistant Teachers was bad for want of lawful authority and hence was held unsustainable and the order of termination stood quashed.

12. In the Special Appeal filed against the said judgment, the Division Bench again referred to regulation 16 and found no infirmity in the order passed by the learned Single Judge. The relevant portion of the judgment contained in Paras 15, 16 & 17 and then the conclusive part as contained in paras 20 & 21 are reproduced hereunder:

"15. Likewise, Regulation 16 of the Regulations of 2016 that deals with disciplinary proceedings relating to teachers and other employees of the institution lays down as follows:

"16. Disciplinary proceedings.- Investigation and trial of disciplinary proceedings, suspension, punishment and any crime under moral incapability and misconduct against principal, teaching and non-teaching staff will be according to the approved, by Board of Madarsa, scheme of service and administration."

16. Here, it is not in dispute that the appellants' scheme of administration has been submitted for approval by the Board of Madarsa on July 8, 2021, but so far it has not been approved. Regulation 16, in our opinion, has been rightly understood by the learned Single Judge to impose a complete embargo upon the appellants' power of initiating any disciplinary proceedings against any employee or teacher of theirs, unless the scheme of administration is approved. The source of jurisdiction to initiate disciplinary proceedings against employees is the scheme of administration. So long as the scheme is not approved, Regulation 16 of the Regulations of 2016 would fetter the power of the appellants to take any disciplinary proceedings or inflict punishment upon the writ petitioner.

17. It has been argued by the learned Counsel for the appellants that on the same issue, the order of termination dated July 11, 2021, impugned in the writ petition, was invalidated by the Registrar, Uttar Pradesh Education Board, but that order upon challenge was stayed in Writ-A No. 9695 of 2021 vide order dated September 16, 2021. It is argued that the learned Single Judge erred in proceeding to decide the writ petition without a decision in Writ-A No. 9695 of 2021, which involves the same issue.

20. The position of law, settled overtime, is that if an inquiry is held ex-parte, the ex-parte delinquent must be put to notice of the date, time and venue of the inquiry, where, if he so chooses, he can exercise his right to cross-examine the establishment witnesses. But this has not been apparently done as the course of proceedings evident from the inquiry report would show.

21. On an overall view of the proceedings and the order impugned, we do not think that in this casual fashion, on vague charges, the service of a permanent employee could be dispensed with by the management."

13. Looking to the charges as contained in the termination order, I find that basically the Manager has proceeded to take action impugned only for the casual approach of Assistant Teacher in performance of his duties in the Institution as such. The charge of misbehavior with the Principal and the Officers of the Committee of Management and that the teacher was trying to spoil the academic atmosphere of the Institution were all related to the question of fact to be determined by an inquiry to be held in the matter, otherwise looking to the charge, more especially when no date and time was given of inspection the charges are found to be quite vague and, therefore, the observations as have come to be made in para 18 of the judgment of Division Bench are also fully attracted in the present case. What has been observed by the Division Bench in paragraph no. 19 is reproduced hereunder:

"19. Besides the above issue, this Court has looked into the impugned order of termination, which apparently has been passed on vague charges, such as conspiring against the Headmaster of the Madarsa and the Managing Committee, forcibly signing the staff attendance register, without specifying the date, time and place of the event. Apart from that, the writ petitioner's conduct post inquiry when he appeared before the Managing Committee, that was not subject matter of the charge-sheet, has also been taken into consideration. We also find that the inquiry leading to the report dated June 25, 2021, though one that was held ex-parte because the writ petitioner is said not to have appeared before the Committee or participated in the proceedings, does not indicate that any date, time and place of the inquiry was fixed and intimated to the writ petitioner."

14. In such above view of the matter, since the identically placed Assistant Teachers have been granted relief by this Court in their respective writ petitions and against which special appeal has come to be dismissed by the Division Bench, in my considered view the present case also stands squarely covered by the judgment. I may also add here that once the order of termination has been set aside by this Court in respect of the other Assistant Teachers and against which a special appeal filed by the Committee of Management has also been dismissed, the entire proceedings of Writ - A No. 9695 of 2021 is rendered otiose.

15. Even otherwise the Division Bench has maintained writ petition against order of termination by observing in paragraph no. 18 of the judgment thus:

"18. The learned Judge has remarked that the issue involved in Writ-A No. 9695 of 2021 is different. We agree with the conclusions of the learned Single Judge, because the order impugned in Writ-A No. 9695 of 2021 is a general order relating to various disciplinary actions taken against employees of the appellants and that order has been stayed by the learned Single Judge in Writ-A No. 9695 of 2021 on ground of lack of jurisdiction with the Registrar, Uttar Pradesh Madarsa Education Board. That issue or the pendency of the writ petition does not in any manner affect the writ petitioner's right in questioning the order of termination before this Court in a writ petition on the ground that it has been passed dehors the Regulations of 2016 by an ultra vires act of the appellants."

16. In view of the above, writ petition succeeds and is allowed in terms of the judgment of special appellate bench dated 14.03.2023 passed in Special Appeal No. 573 of 2022 and the order of termination dated 01.07.2021 is quashed.

17. Consequences to follow.

Order Date :- 19.4.2023

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