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Roshan Ali v. State Of U.P. And Others - WRIT - A No. 1971 of 2006  RD-AH 823 (12 January 2006)
Court N o.18.
Civil Misc.Writ Petition No.1971 of 2006
Roshan Ali V. State of U.P. and others
Heard learned counsel for the petitioner and learned standing counsel for the respondents no.1,2 and 3. Issue notice to the respondent no.4 returnable at an early date. Steps within three days.
The petitioner has questioned the validity of the impugned order of suspension dated 11.5.2005 on the ground that the charges are absolutely frivolous and a lame excuse is the basis for the petitioner's suspension. The petitioner contends that the impugned order was violative of Article 14 of the Constitution of India and is liable to be interfered with and has further urged that no power vests with the committee of Management to suspend an employee. Learned counsel for the petitioner placed reliance on the Rules, which have been promulgated under the Govt. Order dated 22.8.1987. A perusal of the said Govt. Order indicates that Rules are not statutory in character, but they have the approval of the Governor and have been issued with the consent of the financial department of the Government. Rules 33 and 34 of the aforesaid Rules indicate the procedure of disciplinary proceedings to be taken against the employee of such an Institution. The Institution, according to the petitioner is recognised under the aforesaid Rules and governed by the said provisions. The petitioner contends that the Management enjoy unbridled and uncanalised power to take action against an employee, which is impermissible in law. According to him such an unguided power in the hands of the Management is violative of Article 14 the Constitution of India, which results in arbitrariness.
Learned standing counsel on the other hand, contends that since the Rules are not statutory and since the Institution is admittedly a minority Institution, therefore, in view of the protection guaranteed under article 30 of the Constitution of India, no writ petition shall be maintainable and any direction issued would amount to an inroad into the fundamental rights guaranteed under the aforesaid provisions.
In reply to the aforesaid arguments, learned counsel for the petitioner contends, that the Institution is aided by the State Govt. and under these circumstances keeping in view the observations and directions contained in the decision of the case of T.M.A. Pai Foundation Vs. State of Karnataka & ors reported in 2002 (8)_ S.C.C. 481, the power of judicial review of this court under Article 226 of the Constitution of India for the protection of the fundamental rights guaranteed under the Constitution is not taken away. He further contends that the petitioner also belongs to the minority community and is entitled to the same protection the Institution as inasmuch as he is an employee governed by a set of rules framed for the said purpose. No Action can be taken by the Management, which may violate article 14 of the Constitution and any such action is definitely questionable before this court under Article 226 of the Constitution of India.
A perusal of the judgment of T.M.A Pai Foundation V. State of Karnataka & Ors indicates that while answering Qestion no.5 ( c ) at page 709, the Apex court indicated that for the redressal of the grievances of the employees, who are subjected to punishment, a mechanism has to be evolved and in the opinion of the Apex court an appropriate Tribunal has to be constituted . The Apex court further opined that till then such a Tribunal might be presided over by an officer of the rank of the District Judge.
The directions of the constitution Bench still hold good and have not been diluted by any other later decision of the Apex court. The State Govt. framed the Rules 1987 and prima facie it appears that the same has been issued in exercise of powers conferred under Article 162 of the Constitution of India. However, the said Rules do not provide any such forum as suggested in the judgment of the Apex court as referred to herein above. No other forum has been created by the State Govt. till date, nor any fact has been brought to the notice of the court, which may indicate that the State Govt. has under taken any such exercise for creating a forum in the light of the observations made by the Apex court indicated herein above. Issues involved herein are one of prime importance in respect of the employees, who are employed in such Madarsas and which are running on the basis of aid provided by the State Govt.. The matter, therefore, requires to be addressed by the State Govt. itself and it shall proceed to do so in the light of the observations made by the Apex Court in the case of T.M.A Pai Foundation V. State of Karnataka & Ors ( supra ) .
Learned counsel for the petitioner contends that the Registrar / respondent no.2 is an authority, who is conferred with certain powers under the said Rules. The respondent, therefore, according to the petitioner, could also regulate the proceedings to the limited extent as provided under the said Rules . In particular, learned counsel for the petitioner contends that this matter arises out of suspension proceedings. The matter pertaining to suspension was considered by the Apex court in the case of Frank Anthony, reported in 1997 S.C. 311, where the Apex court found that the authorities under the statute , which was under consideration therein will have power to regulate such measures and such regulatory measures are not violative of the rights guaranteed under Article 30 of the Constitution of India and this view was followed lateron by the Apex court in the case of Mrs.Y.Theclamma Vs. Union of India. & ors. reported in 1987 (2) S.C.C. 516,. Relying on the said decisions, learned counsel for the petitioner contends that the Registrar / respondent no.2 can issue appropriate instructions in the matter of suspension as well. He contends that such a power would be implicit as the Registrar has been conferred with a power to issue recommendations to the Committee of Management in the matter of punishment to be awarded in the disciplinary proceedings against an employee and as such an action would be regulatory in nature.
Let notice issue to the respondent no.1, who shall deliberate upon the said issue and thereafter a comprehensive affidavit be filed by the authorities indicating as to in what manner the State Govt. has contemplated or proceeded to take steps for implementation of the creation of a Tribunal or in the alternative making some provisions for redressal of the grievances of the employees, like the petitioner in the light of the observations made by the Apex court. The said affidavit shall be filed by the Secretary / respondent no.1 within a month. The matter shall be listed upon expiry of one month on 13.2.2005.
Learned counsel for the petitioner relying on an interim order passed in the writ petition no.25320 of 2004 dated 12.7.2004 has urged that the petitioner is also entitled for the same interim relief.
The said interim order in no way indicates the consideration of the aforesaid aspects pertaining to the maintainability of the writ petition enabling this court to undertake a judicial review of such actions. Under these circumstances, it would be appropriate that the petitioner may represent his grievance before the respondent no.2, the Registrar/Inspector of Arbi Farsi Board, who shall issue necessary instructions keeping in view of provisions of Rules 34 of 1987 Rules as expeditiously as possible preferably within three weeks from the date of presentation of a certified copy of this order before the said respondent.
The matter shall be listed thereafter.
A copy of this order be issued to the learned standing counsel free of charge within a week for communicating to the respondent no.1 for necessary compliance.
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