Zuhair Alam vs State Of U.P. And Others
2023 Latest Caselaw 8132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38 								         AFR
 

 
Case :- WRIT - A No. - 63364 of 2009
 

 
Petitioner :- Zuhair Alam
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Rajeev Misra,Hritudhwaj Pratap Sahi,P.K. Chaurasia,Prashant Kumar Tripathi,Samarath Singh,Sankalp Narain
 
Counsel for Respondent :- C.S.C.,O.P.Singh Sikarwar,Purushottam Mani Tripathi,Vashistha Tiwari
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Sri Samarath Singh, learned counsel for the petitioner, Sri Purushottam Mani Tripathi, learned counsel for the respondent nos.4 and 5 and learned Standing Counsel for the State-respondent nos.1 to 3.

2. The present petition has been filed seeking the following relief:-

"1. Issue a writ order or direction in the nature of certiorari quashing the impugned order 25.10.2009 passed by the Manager of the committee of Management of the institution (annexure 29 to the writ petition).

2. Issue a writ order or direction in the nature of certiorari calling for the records of the case and quash the resolution dated 25.10.09 passed by the respondent no.4 the committee of Management of the institution.

3. Issue a writ order or direction in the nature of certiorari calling for the records of the case and quash the enquiry report submitted by the respondent no.6 the Enquiry Committee.

4. Issue a writ order or direction in the nature of mandamus commanding the respondents to reinstate the petitioner in service not to interfere in the peaceful working of the petitioner as an Assistant Teacher "Tahtaniya" in Madarsa Darul Uloom Faize Mohammadi, Hathiagarh, District Maharajganj and further pay the salary of the petitioner regularly and continuously on due dates."

3. It is the case of the petitioner that he was appointed as an Assistant Teacher (Tahtaniya) in the institution named as Darul Uloom Faiz-E Mohammadi, Hathiagarh Laxmipur, District Maharajganj vide appointment letter dated 28.03.2004 issued by the Committee of Management of the Institution, the appointment of the petitioner was duly approved over the intimation by the competent authority. The petitioner sought leave at the behest of some family function which was going to be held in respect of marriage of his sister's daughter but the same has been denied by the then Principal which culminated into a dispute between the petitioner and the Principal of the Institution, thereafter from 12.11.2008, the petitioner has been mentioned in the attendance register as absent.

4. At the time of formalities which have been conducted by the respondent no.3 with regard to release of salary in respect of each and every employees of the Institution, the same has been inquired with regard to the long absence of the petitioner and only thereafter the Manager of the Committee of Management of the Institution passed a resolution dated 25.01.2009 proposing the suspension of the petitioner in contemplation of the inquiry and the order of suspension was passed vide order dated 04.02.2009.

5. Having been aggrieved by the order of suspension dated 04.02.2009, the petitioner preferred a representation on 07.02.2009 before the respondent no.4 for revocation of his suspension. Considering the claim in shape of representation, the respondent no.4 considered the period as casual leave, the petitioner again preferred an application dated 24.02.2009 before the respondent no.2 for taking suitable action and requested to transfer the petitioner to some other institution.

6. On dated 26.02.2009, an Inquiry Committee comprising of three Members issued a chargesheet, whereupon the petitioner submitted his reply on dated 02.03.2009, while filing the reply, certain charges have been levelled against the Principal of the Institution by the petitioner and the same has been addressed to the respondent no.2 which was taken up for consideration and the Principal alongwith the petitioner has been given opportunity to appear before the respondent no.2 on dated 17.03.2009 for their contentions and allegations put forward by both of them against each other, meanwhile certain more information in shape of documentary evidences have been put forward by the petitioner for substantiating the allegations as levelled upon the Principal of the Institution, due to failure of attendance, the next date was fixed by the respondent no.2 i.e. 24.03.2009 for appearance of both the parties.

7. Being also aggrieved by the order of suspension dated 04.02.2009, the petitioner challenged the same by filing Writ Petition No.15950 of 2009 (Zuhair Alam Vs. State of U.P. and others) and the same was dismissed as withdrawn vide order order dated 27.03.2009 and thereafter, the petitioner also filed Writ Petition No.24791 of 2009 (Zuhair Alam Vs. State of U.P. and others) and the same was finally disposed of vide order dated 14.05.2009 with a specific direction for the Committee of Management to conclude the inquiry and bring it to its logical end within three months from the date of receipt of a certified copy of the order, subject to full cooperation being extended by the petitioner. For seeking full cooperation of the petitioner, the Committee of Management of the Institution sent letters dated 04.08.2009 and 08.08.2009 and the same have been replied by the petitioner vide letter dated 17.08.2009 through registered post to the Manager of Committee of Management of the institution. Meanwhile, District Minority Welfare Officer, Maharajganj sent a compliance report dated 26.08.2009 in compliance of the order of this Court dated 14.05.2009 wherein, it was directed that in case it is found that the terms and conditions of the suspension order have been complied by the petitioner then he shall be ensured subsistence allowance. Vide report dated 26.08.2009 submitted by the District Minority Welfare Officer, Maharajganj, it is clarified that the petitioner is entitled for the payment of subsistence allowance during the period of suspension. The petitioner made repeated representations which were appended to the petition as representations dated 24.09.2009 and 17.10.2009 for seeking redressal of his grievance.

8. Upon receipt of the report of the Inquiry Committee pertaining to the matter of the petitioner, the Committee of Management of the Institution in its meeting dated 25.10.2009 proposed to terminate the services of the petitioner and in pursuance of the same, the Manger of the Committee of the Management of the Institution passed an order dated 25.10.2009 by which the services of the petitioner were terminated.

9. After receiving the order of termination, the petitioner immediately preferred an application before the District Minority Welfare Officer, Maharajganj with a specific stand that he has never been called for appearing before the three Members Committee as constituted only for the purposes of conducting disciplinary proceedings against the petitioner and as such, there was hardly any opportunity afforded to the petitioner for creating any defense against the charges as levelled against him. As per the arguments raised by learned counsel for the petitioner, the penalty imposed upon the petitioner which is major in nature, cannot be directly determined only by way of constituting a Committee and receiving a report of the same, moreover it is specific case of the petitioner that during the course of inquiry, no evidence has been received or even called for from the petitioner neither after finalizing the inquiry, the report of the inquiry has ever been supplied or served upon the petition and as such, the determination and arrival over the decision in shape of termination, is not maintainable in the eye of law.

10. Per contra, learned counsel appearing on behalf of the respondent nos.4 to 6 submitted that the averments made in the order which impugned the present petition by way of taking reliance that full opportunity of hearing has already been afforded in favour of the petitioner but in response, he never intended to participate or cooperate with the disciplinary proceedings whatsoever has been initiated by the three Members Committee constituted by the Committee of Management. While supporting the order which impugned the petitioner, learned counsel for the respondent nos.4 to 6 depends on the narrations as advanced in shape of counter affidavit as well as supplementary affidavit wherein the contents of the petition have been vehemently denied and rebutted on several grounds and the burden and onus casted upon the petitioner which culminated into the termination order due to non-cooperation and altogether absent from the disciplinary proceedings.

11. On the precise query as made before the learned counsel for the respondents that on which dates the matter has been posted which was initiated for conduction of the disciplinary proceedings against the petitioner, the same could not be apprised and even there is no description while framing the counter affidavit against the grounds of the petition, there is no description and mention of any dates which took place during the course of disciplinary proceedings wherein the petitioner was warranted to appear but he failed to do so. Moreover, it has been argued by learned counsel for the petitioner that only on the basis of inquiry report which has never been supplied to the petitioner is brazen in law and the same is contrary to the procedure as settled by catena of judgments by the Apex Court wherein few of the leading cases have been referred and taken shelter of the same.

12. The judgment in the case of Union of India Vs. Mohd Ramzam Khan [1990 0 Supreme (SC) 606] is one of them. The same has been followed by a Division Bench of this Court in the case of State of U.P. and others Vs. Mam Chand Tyagi and another [2017 (6) ALJ 460] and Mohammad Shoeb Vs. State of U.P. and 6 others (Special Appeal No.447 of 2016, decided on 30.08.2017).

13. Sofar as the ground of maintainability of this petition as raised by learned counsel for the respondents, it has been held by a coordinate Bench of this Court in Alauddin Vs. State of U.P. and 3 others (2013 ILR 2 All 851) that the grievance arising out of service matters connecting to Madrasa is maintainable under Article 226 of the Constitution of India by way of filing writ petition before the Hon'ble Court.

14. After considering the rival contentions as raised by learned counsel for both the parties as well as after going through the different judgments as supplied by learned counsel for the petitioner along with the proceedings initiated by the respondents while conducting the inquiry and the disciplinary proceedings, the writ petition is hereby allowed. The impugned order dated 25.10.2009 is hereby set aside on the following grounds:-

I. The entire matter against the petitioner has been initiated while constituting the three Members Committee and no evidence or records have ever been called from the petitioner while conducting the inquiry.

II. The inquiry report was never ever served upon the petitioner and he has never been given any opportunity for explaining his defense in respect of the findings arrived at by the Inquiry Committee.

III. The Disciplinary Authority without following the proper procedure for conduction of the disciplinary proceedings directly arrived over the conclusion only after giving credence to the report submitted by the Inquiry Committee.

IV. For imposing the major penalty, it was mandatory on the part of the respondents to conduct proper disciplinary proceedings as mentioned in the Uttar Pradesh Government Servant (Discipline and Appeal) Rule, 1999.

15.The respondent no. 4 is directed to reinstate the petitioner and extend the benefit of backwages as admissible to him immediately after receiving a certified copy of this order.

Order Date :- 21.3.2023

Vivek Kr.