Mohammad Aslam vs State Of U.P. And 3 Others
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Allahabad High Court

Mohammad Aslam vs State Of U.P. And 3 Others on 3 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:79415-DB
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 446 of 2024
 

 
Appellant :- Mohammad Aslam
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Adarsh Singh,Indra Raj Singh
 
Counsel for Respondent :- C.S.C.,Ram Prasad Dubey
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Indra Raj Singh, learned counsel for the appellant-petitioner, Sri Fuzail Ahmad Ansari, learned standing counsel for the State-respondents and Sri Ram Prasad Dubey, learned counsel for the respondent No.4 -District Basic Education Officer, Budaun.

2. Briefly stated facts of the present case are that the appellant - petitioner, duly appointed as an Assistant Teacher after qualifying the selection process. However, while fulfilling responsibilities as the In-Charge headmaster of primary school in Angdhara, Development area Bisauli, Budaun, the petitioner was suspended on 06.08.2013 by the District Basic Education Officer Budaun, citing alleged irregularities and misconduct during the period of 2012-13. As the inquiry was not completed timely, the petitioner preferred Writ Petition No.52266 of 2014 before this High Court for a direction to the authorities to expedite the inquiry. The High Court directed the authorities to complete the inquiry within time vide order dated 25.09.2014. Subsequently, an ex-parte inquiry was conducted by the Inquary Officer/ Block Education Officer, Wazirganj, wherein the petitioner's request for defense assistance was denied, culminating in the submission of an ex-parte inquiry report dated 08.01.2014, copy of which was not furnished to the petitioner. Although the petitioner's suspension was revoked on 09.12.2014 by the District Basic Education Officer (DBSA) Badaun, with an order for the recovery of Rs.1,25,000 /- from the petitioner's salary, pending further action regarding discrepancies in mid-day meal administration. Challenging this salary recovery order, the petitioner filed an appeal on 18.12.2014 to the Assistant Director of Education (Basic), 3rd Mandal Bareilly, who subsequently allowed the appeal on 16.04.2015, instructing the DBSA Badaun to conduct a fair inquiry following principles of natural justice. However, the DBSA Badaun concluded the matter on 16.09.2016 without affording proper opportunities to the petitioner, contrary to the order dated 16.04.2015, leading the petitioner to lodge an appeal on 14.10.2016 before the Assistant Director of Education, challenging the DBSA's decision. The appeal was rejected on 29.01.2018 by the Assistant Director of Education (Basic), prompting the petitioner to file a revision on 05.02.2018. Subsequently, a Writ-A No. 23713 of 2018 was filed by the petitioner, which was disposed of on 17.11.2018, directing the Director of Education (Basic) to decide the revision within two months. However, the Director of Education (Basic) failed to comply with the order, prompting the petitioner to file a Contempt Application (Civil) No. 1334 of 2019. Upon receiving the contempt notice, the Director rejected the revision on 12.04.2019, against which the Writ-A No.10030 of 2019 (Mohammad Aslam vs. State of U.P. and 3 others) was filed by the petitioner and the same was disposed of by learned Single Judge on 19.03.2024 by following order, against which the present special appeal is preferred:

"1. Heard Sri V.K. Singh, learned Senior Advocate assisted by Sri Pradeep Kumar, learned counsel for petitioner, Ms. Shruti Malviya, learned Brief Holder for State-Respondents and Sri R.P. Dube, Advocate for Respondent-4.

2. Petitioner before this Court has challenged impugned order dated 12.04.2019 whereby representation against order of recovery of two amounts of Rs. 1,25,000/- and Rs. 152,822/- with regard to irregularity in distribution of mid-day-meal and construction issued against the petitioner, was not disturbed.

3. Aforesaid order was passed in pursuance of a direction passed by this Court when petitioner approached earlier by way of filing Writ-A No. 23713 of 2018, which was disposed of on 17.11.2018.

4. Learned Senior Advocate appearing for petitioner submits that components of calculation for aforesaid determination of amount of penalty was not confronted to petitioner during inquiry.

5. This Court passed following order on 05.03.2024:

"1. Heard Sri Pradeep Kumar, learned counsel for petitioner and Sri Manvendra Dixit, learned Standing Counsel.

2. Learned Standing Counsel is directed to file details of calculation as to how amount of recovery was determined.

3. Learned counsel for petitioner is directed to carry a draft of Rs. 1,00,000/- (Rs. One Lakh) in favour of District Basic Education Officer, Budaun, i.e. respondent no. 4 on the next date fixed."

6. Learned Brief Holder appearing for State-Respondents has received instructions and supplied a copy of calculation chart. However, the manner of calculation remained unexplained. Therefore, even considering that there was some irregularity committed by petitioner the amount of recovery as determined in impugned order does not appear to be correct.

7. At this stage, learned Senior Advocate appearing for petitioner fairly submits that in order to show bona fide of petitioner, he is ready to deposit Rs. 1,00,000/- in favour of District Basic Education Officer, Budaun and he is carrying a draft of Rs. 1,00,000/- also, bearing No. "194092".

8. In aforesaid circumstances, since manner of calculation is not clear, therefore, the proposal of learned Senior Advocate is accepted and order for recovery of amount of about Rs. 2,75,000/- is reduced to Rs. 1,00,000/-. Petitioner is directed to deposit aforesaid draft within 48 hours before District Basic Education Officer, Budaun, who will also provide an acknowledgement.

9. Impugned order is modified accordingly and writ petition is disposed of.

10. It is made clear that this order is passed in peculiar circumstances of present case and it shall not be treated as a precedent."

3. The aforesaid judgment and order dated 19.03.2024 is challenged on ground that the appellant-petitioner, holding a substantive post as Assistant Teacher in a Senior Basic School managed by the U.P. Basic Education Board through respondent No.4, was arbitrarily subjected to a recovery of Rs.2,75,000/- vide order dated 16.09.2016. It is argued that the appellant-petitioner's services are governed by 'The Uttar Pradesh Basic Educational Staff Rules, 1973' (in short 'the Rules, 1973'). He has placed reliance upon the Rule 5(3) of the Rule, 1973, which provides that the procedure laid down in Civil Service (classification, control and appeal) Rules, as applicable to the servant of the Uttar Pradesh Government shall, as far as possible be followed in disciplinary proceedings, appeals and representation under these Rules. He states that the appellant-petitioner was neither sanctioning nor disbursing authorities rather he was a supervising authority in the construction of school building. The allegation against the petitioner was some misconduct under the mid-day meal administration. The appellant had challenged the alleged process of an inquiry and also inflicting the impugned recovery on merit, but learned Single Judge instead of deciding the matter on merit, the learned Single Judge solely on the basis of an earlier order dated 05.03.2024, without a thorough consideration of the matter on the merits, passed the order impugned. He submits that the punishment order and the impugned recovery order were challenged before the learned Single Judge, which carry civil consequences that could jeopardize the petitioner's future prospects. It is contended that when a writ petition is preferred assailing an order of recovery based upon some alleged inquiry, which entails the civil consequences, it must be decided on its merits. Instead of delving into the merits, the learned Single Judge disposed of the case by quantifying the amount, which may give the impression to the authorities that the punishment has been endorsed by the court.

4. Per contra, Sri Ram Prasad Dubey, learned counsel for the respondent No.4 -District Basic Education Officer, Budaun has raised an objection that the said order is a consenting order. He submits that in response to the order dated 05.03.2024, once the appellant petitioner himself had volunteered for submitting a draft of Rs.1,00,000/-, consequently the learned Single Judge had rightly disposed of the writ petition modifying the amount of recovery to Rs.1,00,000/- from Rs.2,75,000/-. He submits that there is no infirmity in the impugned judgment and order, which warrant interference in the appeal.

5. Heard rival submissions and perused the record.

6. The petitioner had challenged the order dated 12.04.2019 inflicting recovery of two amounts of Rs.1,25,000/- and Rs. 152,822/- with regard to irregularity in distribution of mid-day-meal and construction. Since from the very beginning, the petitioner was agitating fairness of an inquiry and liability, which was fastened on the appellant-petitioner. Even earlier also he had challenged the proceedings by preferring Writ-A No.23713 of 2018 and the same was disposed of vide order dated 17.11.2018. Record reflects that so far as the claim set by the appellant-petitioner regarding fairness of an inquiry and the quantum of recovery, the same has never been adjudicated by the writ court. While hearing the matter, learned Single Judge, vide order dated 05.03.2024 had asked the learned standing counsel to file details of calculation as to how amount of recovery was determined and meanwhile, learned Single Judge had directed the petitioner to carry a draft of Rs. 1,00,000/- in favour of District Basic Education Officer, Budaun on the next date fixed. While considering the matter finally on the said date, learned standing counsel had placed the instructions and also supplied a copy of the calculation chart. Learned Single Judge had observed that the manner of calculation remained unexplained and, therefore, even considering that there was some irregularity committed by petitioner the amount of recovery as determined in impugned order does not appear to be correct. Thereafter, learned Senior Advocate made a statement before the learned Single Judge that in order to show bona fide of petitioner, he is ready to deposit Rs. 1,00,000/- in favour of District Basic Education Officer, Budaun. Even though, learned Single Judge has not returned any finding to the extent whether the calculation of amount was in accordance with law or precisely how the calculation was made and instead of deciding the same, the amount was reduced to Rs.1,00,000/- and the petitioner was asked to deposit the said amount before the District Basic Education Officer, Budaun and the impugned order dated 12.04.2019 was modified. We find that learned Single Judge has failed to adjudicate the matter regarding fairness of inquiry and the quantification of amount, which were substantive issues and both had not been adjudicated by the learned Single Judge. Moreover, it is imperative, in the interest of justice, that when an order challenged before the learned Single Judge carries civil consequences in a service matter, and service jurisprudence also demands that challenge should be adjudicated on its merits, the parties must be afforded the opportunity to contest the matter on merits. At this stage, we may indicate that there is no valid justification to reduce the amount of Rs.1,00,000/-, if the respondents had inflicted the recovery upon the petitioner of a tune of Rs.2,75,000/-. Even in such situation, we also find that substantial justice neither has been extended in favour of the petitioner nor the respondents. In such situation, merely reducing the amount does not suffice and the matter has to be heard on merits. Accordingly, the impugned judgment and order dated 19.03.2024 is set aside and the matter is relegated to the learned Single Judge to proceed in accordance with law but certainly after providing opportunity of hearing to all the stakeholders.

7. With the aforesaid observations, the special appeal stands allowed.

Order Date :- 3.5.2024

NLY