Mohd. Munib Raza and Another vs District Inspector of Schools and Others

R.R.K. Trivedi, J.—Heard learned Counsel for the Petitioners and Shri M. Islam, learned Counsel for the Respondents. In this petition, counter-affidavits have been filed. Both the learned Counsel have agreed that this petition may be decided finally at this stage.

The controversy involved in this writ petition is very short. The grievance of the Petitioners is against the adverse entry awarded to them by the Manager of the institution, viz., Majidia Islamia Inter College, Allahabad. It appears that the Petitioners raised certain complaints before the higher authorities in the Education Department about the irregularities and illegalities committed in practical examination. A copy of the complaint was also sent to the Manager of the institution. Explanation was called for from the Petitioners as to why they approached the higher authorities directly and not through proper channel provided under the Rules. This show cause notice was replied by the Petitioners and it is stated in the order that the reply was very Impertinent and it also amounted to gross misconduct. On the basis of these two allegations, disciplinary proceedings appear to have been initiated by appointing a subcommittee to investigate the matter and to recommend action against the Petitioners. The Manager in the Impugned order has observed as under:

I consider it essential for me also to give an entry regarding the incident in the Character Rolls (Service Book) of the Teachers. I am definitely of the opinion that the Teachers entering into direct correspondence with higher authorities is against the service rules and amounts to misconduct. The impertinent nature of the explanation accusing the Manager and the college authorities instead of giving an explanation is a greater misconduct and must be entered in their Character Rolls.

The learned Counsel for the Petitioners has invited my attention to Regulations 10 and 13 of Chapter I of the Regulations framed under the U.P. Intermediate Education Act, 1921. From a reading of Regulation 10(ii), it appears that maintenance of service books and character rolls of teachers, clerk, librarian and inferior staff; making entries in their character rolls and communicating adverse entries to the person concerned is the responsibility of the Head Master or the Principal of the institution.

Regulation 13 provides the powers, duties and functions of the committee of management and Clause (H) provides that the committee of management shall decide appeals against entries made In character rolls of employees by the Head/Manager of the institution. The adverse entries in the character rolls can be made on the basis of the assessment of the work and conduct during the year and also as a punishment awarded during the disciplinary proceedings. It cannot be denied that in the present case, Manager of the institution has given the adverse entries to the Petitioners by way of punishment and not on the basis of the assessment of the work and conduct for the year which is contemplated under Regulation 10(ii) and Regulation 13(ii).

From the order impugned, it appears that the disciplinary proceedings were also Initiated simultaneously against the Petitioners on the basis of both the allegations and a sub-committee has already been appointed. In my opinion, since full-fledged regular disciplinary proceedings have been initiated against the Petitioners on the same allegations, It was not proper on the part of the Manager and the committee of management to award entries and pass resolutions at this stage, i.e.. during the pendency of the disciplinary proceedings. In the disciplinary proceedings for which sub-committee has already been appointed, the Petitioners will also get full opportunity of hearing and the Respondents will have opportunity to establish the allegations amounting to misconduct. The action on the part of the Manager and the committee of management thus appears to be premature and unwarranted at this stage. On conclusion of the enquiry and on receipt of the report of the subcommittee, it shall be open to the committee of management to pass appropriate orders in accordance with law. The committee of management as well as the Manager, who is Integral part of the same, should have kept in mind their role as an appellate authority contemplated under Regulation 13 (ii) and they should have avoided passing the impugned orders and the resolutions in such a haste. Hon''ble the Supreme Court in a like situation observed in the case: Surjit Ghosh t). Chairman and Managing Director, United Commercial Bank and Ors. reported in JT1995 (2) SC 74, as under:

It is true that when an authority higher than the disciplinary authority itself Imposes the punishment, the order of punishment suffers from illegality when no appeal Is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of disciplinary authority or of a lower authority and the higher authority passed an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employer and employee. Surely, such a situation cannot savour of legality. Hence, we are of the view that the contention advanced on behalf of the Respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the regulations cannot be accepted. The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside.

For the reasons stated above, this petition is allowed. The impugned order dated 25.5.1993, Annexure 6 and 7 and the resolutions, Annexure 8 and 9 to the writ petition, are quashed. However, it is made clear that this order shall not come in the way of the Respondent Nos. 2 and 3 in passing appropriate orders in accordance with law after receipt of the report from the sub-committee. No order as to costs.