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RAJ MANI PANDEY versus SACHIV,BASIC SHIKSHA PARISHAD AND OTHERS

High Court of Judicature at Allahabad

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Raj Mani Pandey v. Sachiv,Basic Shiksha Parishad And Others - WRIT - A No. 9914 of 1983 [2004] RD-AH 236 (10 May 2004)

 

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

Reserved/Court No.23

Civil Misc. Writ Petition No.9914 of 1983

Rajmani Pandey Vs. Sachiv, Basic Shiksha Parishad,

U.P., Allahabad and others.

***

Hon'ble V.C. Misra, J.

Heard Shri Indal Singh, learned counsel for the petitioner and learned standing counsel for the respondents.

By means of this writ petition, the petitioner has sought for quashing of the impugned order of dismissal dated 17.12.1981, annexure-11 to the writ petition, passed by the Zila Basic Shiksha Adhikari, Azamgarh-respondent no.3 and the order dated 10.5.1983, annexure-13 to the writ petition, passed by the Sachiv, Basic Shiksha Parishad, U.P., Allahabad-respondent no.1 on appeal there out.

The case of the petitioner, inter alia, is that he was appointed and took charge on 22.12.1979 as head master, Bhaironpur Primary Pathshala, Azamgarh on transfer from Primary Pathshala, Hansepur where the petitioner was working as head master. After the assumption of charge, the petitioner looked into the accounts of the school and found that one Sri Permanand Pandey who had been officiating as head master earlier, had misappropriated the school fund and did not deposit the same in the school account. It was also found that Sri Permanand Pandey had not deposited the amount on calculation found to be Rs.140.54 paise, which he had collected and had obtained the signatures of the petitioner. Sri Permanand Pandey who was officiating head master prior to the joining of the petitioner had not given full charge nor handed over concerning school funds and the account books etc. Consequently, a complaint was made by the petitioner against Sri Permanand Pandey to the Zila Basic Shiksha Adhikari, Azamgarh-respondent no.3, on which an inquiry was initiated against him. During the course of inquiry, the petitioner deposited an amount of Rs.140.54 paise in the account of the school and intimated the concerned authorities regarding the same.

Since, no action was taken against Permanand Pandey for realization of the amount, which he had misappropriated and also on the complaint made by the petitioner, that Permanand Pandey had not handed over the complete charge and had retained the account books etc. of the concerned school fund, the petitioner who also happened to be the Secretary of the U.P. Prathmik Shikshak Sangh, Shakha Azamgarh called for a meeting of the teachers for highlighting and removing the corruption prevailing, in the Basic Shiksha office. In consequence of the same, the petitioner along with one Sri Jamuna Shukla was suspended by the Zila Basic Shiksha Adhikari-respondent no.3.

The suspension order of Sri Jamuna Shukla was revoked even before serving the charge sheet upon him. But, the petitioner was continued under suspension and payment of his salary was stopped. The petitioner called on the respondent no.3 in his office to enquire about his suspension and stoppage of salary where the petitioner was abused, manhandled and humiliated.

The petitioner lodged a complaint against the Zila Basic Shiksha Adhikari and four others before the Chief Judicial Magistrate, who issued notices twice to the Zila Basic Shiksha Adhikari, but the Zila Basic Shiksha Adhikari did not put his appearance. Consequently, non-bailable warrant were issued against him. The respondent no.3-Zila Basic Shiksha Adhikari filed a petition under Section 482 Cr. P.C. before this High Court, numbered as Criminal Misc. Application No.2910 of 1981, which was ultimately dismissed on 10.12.1981. On reaction, one Sri Bharat Ram the then District Inspector of Schools was appointed as inquiry officer who framed six charges against the petitioner but no charge sheet was served upon the petitioner and the petitioner came to know about it only through publication in a daily news paper ''Aaj', published in Varanasi on 11.7.1981. The petitioner immediately filed a detailed reply in which it was mentioned that since the Zila Basic Shiksha Adhikari-respondent no.3 was annoyed with the petitioner, no justice was expected from him. The petitioner asked for the relevant documents relied upon by the complainant, but he was not provided any such opportunity.

The petitioner again wrote several letters requesting for the documents and relevant material relied upon by the complainant, but the same was not provided to him nor he was given any opportunity to cross examine the witnesses and defend his case. Ultimately, enquiry proceedings were concluded behind the back of the petitioner and the report of the inquiry officer dated 1.11.1980 was sent to the petitioner. The entire inquiry proceedings were ex parte and not in accordance with law and in violation of the principle of natural justice. The respondent no.3 dismissed the petitioner from service vide order dated 7.12.1981 annexure-11 to the writ petition, with effect from the date of his suspension on the ground of indiscipline, gross insubordination and misappropriation of government money. The petitioner has been victimized by the Zila Basic Shiksha Adhikari-respondent no.3 being biased on account of personal enmity with him.

The petitioner filed a detailed memorandum of appeal dated 15.5.1982 before the Chairman, Basic Shiksha Parishad, which was dismissed by him vide order dated 10.5.1983, annexure-13 to the writ petition holding that charge no.2 stood proved against the petitioner. Charge no.2 reads as under :-

"Yah ki Aap Janwary 80 se Sitamber 80 tak mandaliya estar par chatra shiksha shulk ki dhanrashi niyamit roop se Zila Basic Shiksha Adhikari ke veyaktigat khate men na jama kar aisthai ghaban karne ke abhiyukt hain." That means, that he had collected the tuition fees from the school for the period January 1980 to October 1980 and had not deposited the same regularly in the personal account of Zila Basic Shiksha Adhikari, which amounted to temporary embezzlement.

The learned counsel for the petitioner has contended that, the inquiry was held ex parte behind the back of the petitioner, various relevant documents were not supplied to him, he was not given any opportunity to cross examine the witnesses, the dismissal order had been passed by the respondent no.3, who was completely biased being annoyed with the petitioner, due to the criminal proceedings initiated against him and more so since the petitioner has been dismissed from services only on the ground of misappropriation of government fund whereas the charge was that for an amount of Rs.140.54 paise, deposited by the petitioner with unexplained delay which, amounted to temporary embezzlement, the impugned order stood vitiated on the ground of it being contrary to the provisions of principles of natural justice, non-application of mind, passed with biased mind and also since the punishment does not commensurate the charges and disproportionate punishment has been awarded. The respondents 1 and 3 while passing the impugned orders have not disclosed clear and explicit reasons. The order passed by the appellate authority-respondent no.1 is a non-speaking order. The grounds raised in the memo of appeal filed by the petitioner were not at all considered.

The learned counsel for the petitioner has further submitted that the petitioner at the time of filing of this writ petition, was 54 years of age and was to retire in the year 1987 and the impugned order being wrong, illegal, arbitrary and biased, has caused great injustice to the petitioner depriving him of all pensionary benefits, though he has already completed the qualifying years provided for the purposes of pensionary benefits.

It is stated in para-4 of the counter affidavit that the petitioner had lodged a complaint against Permanand Pandey before the District Inspector of Schools on the basis of which an inquiry was conducted and Permanand Pandey had collected Rs.40.18 paise in absence of the head master and the petitioner had collected            Rs. 140.54 paise, which was deposited by him on 13.12.1980, without assigning any reason for unusual delay in depositing the same. It has also been stated that the charge sheet was served upon the petitioner on 6.3.1981 to which the petitioner did not reply and the inquiry officer submitted his report to the Zila Basic Shiksha Adhikari, who on the basis of the said report, issued show cause notice to the petitioner. The petitioner gave a reply to the show cause notice and subsequently the petitioner was dismissed from service vide order dated 7.12.1981. The procedure pertaining to the departmental inquiry was followed and the petitioner was given sufficient opportunity to defend himself but he did not avail these opportunities and the Zila Basic Shiksha Adhikari accepted the report since he had no say in the matter but to accept the same. The Zila Basic Shiksha Adhikari-respondent no.3 was not biased against the petitioner, the findings of the inquiry officer remained unchallenged by the petitioner. The charge of misappropriation was proved against the petitioner. He did not lead any evidence to prove the same as incorrect. The appellate order is absolutely correct and legal. It has also been stated that the petitioner being public servant as defined under Section 2 of the U.P. Public Services Tribunal Act, 1976, this writ petition was not maintainable on the ground of alternative remedy available before the Service Tribunal, Lucknow.  

I have looked into the record and heard the learned counsels for the parties at length, I find that the charge of temporary embezzlement (aisthai ghaban) framed against the petitioner was not made out since the allegation against him was of only unexplained delay in depositing the amount. And there being no charge or allegation against the petitioner of being guilty of misappropriation of government fund (sarkari dhan ke apaharan ke doshi) the petitioner could not be dismissed from service on this count, as per the impugned order dated 17.12.1981 passed by the respondent no.3. More so, the respondent no.3 should have refrained from passing the dismissal order in view of the fact of personal animosity between him and the petitioner the element of bias stood clearly indicated on his part, which reflects from the litigation and the order of dismissal. Thus, the impugned order of dismissal-dated 17.12.1981 is wrong, bad and illegal having been passed arbitrarily tainted with bias by respondent no.3 and the appellate order dated 10.5.1983 has been passed by respondent no.1 without assigning any reason. Both the impugned orders are liable to be quashed as per settled law.

In view of the above said facts and observations, the impugned order of dismissal dated 17.12.1981 annexure-11 to the writ petition, passed by respondent no.3 and the order dated 10.5.1983 annexure-13 to the writ petition, passed by respondent no.1 rejecting the appeal, are hereby quashed. Let a writ of certiorari be issued. The respondents are hereby directed to pay the entire arrears of salary for the period he had been suspended till the age of his superannuation along with all other consequential benefits as well as pensionary benefits to which he would have been entitled to in accordance with law, preferably within a period of three months from the date a certified copy of this order is submitted before the respondent no.1. The writ petition is allowed with no order as to costs.  

May 10, 2004

Hasnain


Copyright

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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