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R.R.Dubey v. Sect. U.P.Board - WRIT - A No. - 19870 of 1989 [2007] RD-AH 15565 (14 September 2007)

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Court No.26

Civil Misc. Writ Petition No. 19870 of 1989

Rishi Ram Dubey


Secretary, U.P. Board and others

Hon.Shishir Kumar, J.

By means of the present writ petition, the petitioner has approached this Court for quashing the order dated 7.8.1999 passed by the respondent No.3. Further a writ in the nature of mandamus directing the respondents not to interfere the services of the petitioner as assistant teacher.

The brief facts of the case are that petitioner was originally appointed in Basic Primary School, which was being run by Nagar Palika Kasganj, U.P. The petitioner was continuing in the said institution. Petitioner contested the election of Vidhan Sabha from Sakit constituency. Petitioner has got 2630 votes in his favour. The petitioner was ill and submitted a medical certificate. A charge-sheet was issued to the petitioner on 16.6.1989 but the same was retuned by the petitioner on the ground that it was a vacant envelope. Then the same was published in the daily newspaper 'Amar Ujala' on 26.3.1989 mentioning therein that there are certain charges against petitioner and he can submit a reply to that effect. Petitioner submits that due to death of his brother, the petitioner submitted an application for extension of time for filing reply to the charge-sheet but the same was not granted to petitioner and no disciplinary proceeding as provided under the law has taken place. Further submission has been made by the learned counsel for the petitioner that there is no bar under the Service Rules to contest the election and there is no necessity even to take any prior permission from their employer for the purposes of contesting the election. Therefore, the charges levelled against the petitioner is vague and is not sustainable as the total proceedings against the petitioner is an ex-parte without notice and opportunity to the petitioner. As such, the same is liable to be quashed.

Petitioner has placed reliance upon a judgement of this Court reported in (1999) 3 UPLBEC, 2347 Prem Shanker Sharma Vs. Uttar Pradesh Secondary Education Service Commission, Allahabad and others and has placed reliance upon para 13 of the said judgement. The same is being reproduced below:-

"13. Politics is not a crime. It is an art or a science of governance. In democracy a political activity by a group or party formed with certain ideal is designed to achieve it's objective of political power for governance of the country in accordance with it's ideals. It is not an occupation but a conviction or opinion. Unless the service rules debar a teacher from engaging himself in any political activities he is free to pursu his activities political or otherwise unless it is against social or national interest and it does not disturb the balance of interest of any individiual as a citizen with his duties towards welfare state. The Apex Court in M.H.Devendrappa (supra) explained the ambit of Article 19 by observing:

"If freedom of speech of an individual government employee is circumscribed by the need for efficiency or discipline or confidentiality in public interest, the individual exercises his freedom of speech conflicting with these requirements at the risk of facing disciplinary action. This does not mean that legitimate action discreetly and properly taken bya government servant with a sense of responsibility and at the proper level to remedy and malfunction in the organisation would also be barred. However, such is not the case here. Also, a person who legitimately seeks to exercise his rights under Article 19 cannot be told that you are free to exercise the right, but the consequences will be so serious and damaging, that you will not in effect, be able to exercise you freedom. For example a person may be told that you are free to express you opinion against the state but if you do so, you will be put behind bars. This is clearly deprivation of freedom of speech."

In support of the aforesaid contention the learned counsel for the petitioner submits that the services of the petitioner cannot be terminated. Aggrieved by the aforesaid order, the petitioner has approached this Court.

While issuing such notice, this Court vide its order dated 24.10.1989 has stayed the operation of the order dated 7th August, 1989. The petitioner submits that on the basis of the interim order passed by this Court, the petitioner is continuing on the said post.

Counter affidavit has been filed and in the counter affidavit it has been submitted that the in spite of publication in the newspaper the petitioner has not filed any reply. Further misconduct committed by the petitioner is that for the purposes of contesting the election the petitioner has obtained medical leave concealing this fact that petitioner is contesting the election. When it came to the knowledge of the authorities they immediately issued a charge-sheet and after issuance of charge-sheet a subsequent show cause notice was also given to the petitioner. But in spite of receipt of the aforesaid notice, the petitioner has not submitted any reply, therefore there cannot be any interference by this Court.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the show cause notice dated 18th July, 1989, it is clear that that charges levelled against the petitioner was published in the newspaper and the petitioner was directed to submit a reply but the petitioner has not submitted any reply only on the ground that as brother of the petitioner has died, therefore, some further time may be granted. The another charge against the petitioner was that he contest the election of Vidhan Sabha without intimating this fact to the employer, even no permission was obtained. The other misconduct committed by the petitioner was that he concealed this fact that he is contesting the election and obtained a medical leave stating the fact that he was not feeling well, therefore, the medical leave may be granted. In the charge-sheet as well as in the order passed by the relevant authority, a specific finding has been recorded regarding the symbol of the petitioner in the election as well as the vote casted by the petitioner in the said election. All the relevant documents were summoned and perused by the competent authority. Therefore, there was nothing to be verified or to be proved. Though the petitioner denied this fact but the document clearly shows that the petitioner has contested the election. The other fault on the part of the petitioner is that by concealing this fact that he was contesting the election and obtained a medical leave.

In my opinion, it is a misconduct and such employee is not entitled to be retained in service. Therefore, if some irregularity in the disciplinary proceedings have been committed that order of termination of services of the petitioner is bad in law and has been passed without following the proper procedure.

As regards the judgement relied (supra) by the learned counsel for the petitioner is in a different contest. The fact of that case was that the petitioner was dismissed from service on the ground of detention in prison and he was having some political connection. The Hon'ble Single Judge has held that having some connection to political party cannot be treated to be a misconduct or contravention of the Service Rules.

In view of the aforesaid fact, I find no merit in the writ petition. The writ petition is devoid of merits and is hereby dismissed. Interim order if any, is hereby discharged.

No order as to costs.




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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