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ROSHAN ALI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Roshan Ali v. State Of U.P. And Others - WRIT - A No. 1971 of 2006 [2006] RD-AH 823 (12 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court N o.18.

Civil Misc.Writ Petition No.1971 of 2006

Roshan Ali V. State of U.P. and others

Hon.A.P.Sahi,J.

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.

Dt.12.1.2006

maw


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