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C/M SHRI UDAI SINGH JAIN KANYA INTER COLLEGE versus D.I.O.S. & ORS.

High Court of Judicature at Allahabad

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C/M Shri Udai Singh Jain Kanya Inter College v. D.I.O.S. & Ors. - WRIT - A No. 20861 of 2002 [2006] RD-AH 9484 (15 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 20861 OF 2002

Committee of Management, Shri Udai Singh Jain Kanya Inter College, Banna Devi Aligarh

Versus

District Inspector of Schools, Aligarh and others.

----

HON. SHISHIR KUMAR, J.

This writ petition has been filed for quashing the order-dated 19.6.2001 passed by respondent no.1, Annexure-24 to the writ petition.

The facts arising out of the writ petition are that there is an educational institution namely Sri Udai Singh Jain Kanya Inter College, Banna Devi, Aligarh for the purpose of imparting education to the girl- students up to intermediate level. The said institution is duly recognized under the provisions of U.P. Intermediate Education Act. All its teachers and employees are being paid salary under the provisions of U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act 1971. One Smt. Raj Rani Saraswat respondent no.2 was an Assistant Clerk in the institution of the petitioner. She was indulged in various acts of gross indiscipline amounting to service misconduct which compelled the management to place her under suspension pending inquiry-vide its order dated 10.7.2000. An order of suspension was passed on 12.7.2000. A charge sheet was given containing 7 serious charges including forgery and use of criminal force against the management. The relevant papers concerning her suspension were submitted to the office of the District Inspector of Schools on 15.7.2000 but the District Inspector of Schools has not passed any order. In the mean time on account of deliberate malice and willful refusal by the then District Inspector of Schools in granting approval to the suspension order dated 12.7.2000, the same lapsed by efflux of time. Respondent no.2 did not appear before the Inquiry Officer. Though the order of suspension was not approved but there was a clear apprehension that respondent no.2 will interfere in the inquiry by tampering with the evidence in case she was reinstated. Under such circumstances the petitioner management was compelled to issue a fresh order of suspension dated 8/9-9-2000. Copy of the suspension order was endorsed to various authorities of the education department including the Secretary of the Department of Education. It has also been decided by the petitioners Committee of Management to enquire into the matter by a Committee regarding the charges against respondent no.2. The suspension order as well as a detailed charge sheet was issued by the Manager of the Committee of Management. Respondent no.2 was given due notice of the dates fixed before the Inquiry Officer on 12.8.2000 but she deliberately did not appear. Upon failure to serve second respondent a copy of the charge sheet and notice of inquiry,  same was published in ''Dainik Jagaran' issue dated 12.7.2002. The best possible efforts were made to serve copy of the charge sheet and to provide opportunity to  respondent no.2 to appear before the Inquiry Committee but she deliberately did not appear. Though the Inquiry Committee on the basis of the aforesaid report and publication should have proceeded and to decide the case against respondent no.2 but the date was adjourned and intimation to this effect was given by registered post. In spite of the aforesaid fact, respondent no.2 did not appear before the Inquiry Officer on the date fixed. An averment to this effect in various paragraphs has been made in the writ petition that in spite of the publication and sending the registered letters, respondent no.2 did not appear and the said fact is clear from the order sheet. A copy of the order sheet has been annexed as Annexure-18 to the writ petition.

Left with no option the Inquiry Committee after considering the material on record submitted a report to the Committee of Management though the charges leveled against respondent no.2 were serious in nature but the Committee of Management in the interest of justice instead of resolving to dismiss respondent no.2 decided to pass an order retiring her compulsory subject to approval of the District Inspector of schools, Aligarh. No action with regard to the approval or disapproval has been taken by the District Inspector of Schools for a long period of time. Ultimately the Committee of Management has approached this Court by way of Writ petition No. 47863 of 2000 seeking a direction to the District Inspector of Schools to decide the matter of approval of punishment awarded to respondent no.2. The writ petition was disposed of finally with a direction to the District Inspector of Schools to decide the matter within a specific period of time. The District Inspector of Schools after coming to know regarding the aforesaid order, issued notice to the petitioner requiring her presence on 23.4.2001. In response to the aforesaid notice the petitioner reported in the office of the District Inspector of Schools on the said date at 10 a.m. with all the relevant records and remained present up to 5.15 p.m. but the District Inspector of Schools was not available on the said date. Subsequently, another date was intimated and on that date also the petitioner remained present but nothing has been done by the District Inspector of Schools. Ultimately on 11.6.2001 the District Inspector of Schools heard the matter and preceded to pass the order dated 19.6.2001disapproving the punishment awarded against respondent no.2. The reason given by respondent no.1 is that as the employees working in the institution are governed by U.P. Intermediate Education Act and there is no provision for awarding a punishment of compulsory retirement, the Committee of Management has got only power to dismiss or remove or reduce in rank but the punishment of compulsory retirement is not provided in the Statute, as such the same cannot be approved.

As the order passed by the District Inspector of School was wholly illegal and without jurisdiction, as such the petitioner has filed the present writ petition.

By order dated 7.5.2002 the respondents were granted time to file counter affidavit. Counter and rejoinder affidavits have been filed, as such with the consent of the parties the writ petition is being disposed of finally.

The contention raised on behalf of the petitioner is that from the documents filed in support of the present writ petition and the allegations made in various paragraphs it is clear that the Committee of Management tried its level best to serve the charge sheet and the date, time and place of the inquiry to the respondent No.2. Various dates were fixed i.e. 28.8.2000, 30.8.2000. 1.9.2000, 4.9.2000. 7.9.2000 and 16.9.2000 which clearly goes to show that the letters were sent by registered post as well as it was published in the newspaper but in spite of the aforesaid fact, respondent no.2 has not appeared. Therefore, on the basis of the relevant record, the Inquiry Committee has submitted its report to the Committee of Management and the Committee of Management taking a lenient view instead of passing an order of removal or dismissal had passed and order of compulsory retirement but the District Inspector of Schools, respondent no.1 has illegally disapproved the same.

Sri J.J. Munir learned counsel for the petitioner has submitted this fact that the punishment of compulsory retirement is not provided in the Intermediate Education Act, therefore, the order disapproving by respondent no.1 to that extent is valid but as regards the disciplinary proceedings against respondent no.2 is concerned, this cannot be said to be illegal and that has been commenced in accordance with the procedure provided. It has further been submitted that in view of the statements made, it will be proper that the matter be remanded back to the Committee of Management for passing the appropriate orders at the stage of inquiry.

On the other hand counsel for the respondent has submitted that the order passed by the respondent no1 is correct, legal and according to law. There is no provision under the Act to award a punishment of compulsory retirement. The total proceeding is vitiated as the same has been done against the principles of natural justice, as no opportunity has been givn to respondent no.2 during the course of inquiry.

After hearing counsel for the parties and in view of the submissions made by the petitioner, the order to the extent awarding the punishment of compulsory retirement against respondent no.2 and disapproving the same by respondent no.1, is upheld but as regards the disciplinary proceedings as submitted by respondent no.2 that the proceedings is exparte and no opportunity has been given, the matter is remanded back to the stage of inquiry. As it has been submitted by respondent no.2 that no copy of the charge sheet has been given. As the copy of the charge sheet has been annexed with the writ petition, now there will be no necessity for supplying the copy of the charge sheet. A liberty is given to respondent no.2 to file a reply to the charge sheet within a period of three weeks from the date of receipt of the judgment of this Court and the Inquiry Committee is directed to complete the inquiry within a period of two months thereafter after affording fully opportunity to respondent no.2 and submit an inquiry report to the Committee of Management for passing appropriate order. It is made clear that respondent no.2 will not seek any adjournment and will cooperate in the inquiry. It is also made clear that immediately after submission of the inquiry report as provided above, the Committee of Management will pass appropriate orders within a period of two weeks thereafter.

The writ petition is disposed of accordingly. No order as to costs.

15.5.2006

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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