Vijay Kumar Singh vs Deputy Director of Education, 9Th Region, Faizabad and Others

V.K. Shukla, J.—Present writ petition has been filed with following relief:

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.3.1986 passed by opposite party No.1 contained in Annexure No.20.

(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.7.1981 passed by the opposite party No.2 contained in Anenxure No.16.

(iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner on his post with full salary and other consequential benefits.

(iv) Issue any other suitable writ, order or direction which is fit and just in the circumstances of the case and to allow the petition with costs.

In the district of Sultanpur, there is educational institution known as Bariyar Shah Inter College, Bharkhare, District Sultanpur. The affairs of the said institution in question is to be run and managed as per provision as contained in U.P. Intermediate Education Act, 1921. In the institution concerned petitioner was appointed as lecturer (Chemistry) on 9.8.1972 on one year''s probation and after successful completion of the probation period, petitioner was confirmed on the post with effect from 10.8.1973. Petitioner has claimed that he was on casual leave prior to Dashera holidays. The institution in question reopened on 8.10.1979, on the said date petitioner joined his duty, but as he was not feeling well, he again applied for medical leave w.e.f. 9.10.1979 to 16.10.1979 and thereafter proceeded for his home at village Adanpur, Pargana Plaveli, Post Office Hindi Baghaila, District Jaunpur. Petitioner has further stated that he again sent application for leave upto 31.10.1979 alongwith medical certificate through registered post, which was received at the College on 27.10.1979. Petitioner has further stated that his condition was not improving as such he applied for leave for a period of two months more w.e.f. 1.11.1979 to 31.12.1979. In January, 1980 petitioner received a letter from the authorize Controller of the College requiring him to join his duties within a period of ten days. Said letter was issued on 29.12.1979. Petitioner has contended that he sent reply on 7.1.1980 mentioning therein that he was not feeling well and his leave be extended till 31.1.1980. Petitioner submitted that he again applied for extension of leave till 31.1.1980 as he had not recovered health from his illness till then. Petitioner has contended that as keys of the laboratory were with me. The peon of the College came to his residence and collected the same. On 20.2.1980 the authorized Controller apprised the petitioner that his leave application has not been sanctioned, same has been rejected and he should immediately join his duties. Petitioner submitted his reply on 3.4.1980 for extension of his medical leave till 30.4.1980. Petitioner has contended that thereafter he again applied for extension of his leave upto 15.5.1980, thereafter, after the expiry of leave, he went to join the institution on 16.5.1980, but the principal of the College did not permit him to join in the institution. Petitioner submitted that he tried again and again to join but deliberate refusal was there. It has also been stated that even registered letter was refused to be accepted. Petitioner has stated that thereafter on 20.5.1980 College was closed for summer vacation and after it reopened, again request was made on 5.7.1980 for joining but again refusal was there. Petitioner has stated that he also contacted personally to District Inspector of School and requested to intervene in the matter, and direct the Principal of the College to allow him to join in the institution. Petitioner has contended that in the meantime, letter dated 29.9.1980 sent by the Manager of the College was received by the petition on 1.10.1980 asking the petitioner to explain before the Committee of Management about his absence. Petitioner on 9.10.1980 requested to fix some other date of the meeting of Managing Committee to consider the explanation of petitioner. Petitioner submitted that thereafter no date was informed for his appearance before the Committee of Management. Petitioner has stated that thereafter, show cause notice dated 12.2.1981 was served upon him requiring to him to show cause against proposed punishment. Petitioner has stated that through he acquired knowledge of the resolution passed by the Committee of Management on 11.1.1981 removing the petitioner from services. Petitioner submitted his reply to the aforesaid notice on 4.3.1981 in the office of Distrit Inspector of School, Sultanpur. Petitioner has contended that in compliance of the order passed by the Dsitrict Inspector of Schools, Sultanpur, he appeared before the Dsitrict Inspector of School, Sultanpur on 16.4.1981. Thereafter, District Inspector of Schools, Sultanpur has accorded approval to the said resolution on 17.7.1981 and thereafter further follow up order has been passed. Petitioner has contended that entire proceedings are ex parte. Petitioner referred appeal before the Deputy Director of Education, 9th Region, Faizabad, said appeal has also been rejected on 7.3.1986. At this juncture present writ petition has been filed.

Counter affidavit has been filed on behalf of respondent Nos.2 and 3 and therein it has been stated that petitioner attended the College on 8.10.1979, on which date, the College reopened after Dashahera holidays. Thereafter, petitioner absented himself from duties with effect from 9.10.1979 without even informing the Manager or any authority of the College, much less obtaining any sanction of leave or permission to leave the headquarters. In respect of application dated 8.10.1979 (Annexure1) it has been stated that same was never received in the College and in fact Annexure1 is a forged and concocted documents. It has been reiterated that petitioner absented from duties w.e.f. 9.10.1979 without giving any application or obtaining any permission for leaving the satiation, for the first time application dated 22.10.1979 was received through registered post on 27.10.1979 in which, for the first time prayer was made for grant of medical leave from 9.10.1979 to 31.10.1979, this was accompanied by a medical certificate of Dr. B.N. Singh (B.M.S.) Begumganj, Jaunpur, in which the doctor had stated that petitioner was ill from 8.10.1979 and was under his treatment. Stand has been sought to be taken that said application was bogus, in respect of illness w.e.f. 9.10.1979 to 31.10.1979 and same, it has been stated was sent without any medical certificate. Authorized Controller wrote a letter dated 29.12.1979 to petitioner to resume duties because petitioner was avoiding to attend the College without any reasonable excuse and the studies of the science students were gravely suffering. It has been stated that in spite of time being extended and fixed for joining, petitioner never joined and he deliberately absented himself. It has been stated that on 18.5.1980 principal was not in the College as he was attending Board duties in the evaluation centre in the Government Intermediate College, Sultanpur, hence there was no question to permit the petitioner to join his duties on 17.5.1980. In inquiry made in the matter by the Incharge Principal Sri Raghuraj Singh clearly mentioned that petitioner had neither come on 16.5.1980 nor on 17.5.1980 for the purposes of resuming his duty in the College. It has also been contended that petitioner never come in the College on 20.5.1980 to join the College. In respect of three letters i.e. 16.5.1980, 17.5.1980 and 20.5.1980, it has been mentioned that same has been manipulated. Said institution in question was closed for summer vacation and reopened on 1.7.1980 and if the averments of petitioner were genuine, he ought to have joined the College on 1.7.1980, as there was no question of his coming for attending the College on 9.7.1980. Specific averment has been made that petitioner did not attend the College even on 5.7.1980 and everything has been manipulated. It has been stated that last opportunity to join was given and petitioner failed to avail the said opportunity, as petitioner did not come before the Managing Committee on 12.10.1980 to explain his absence. It has been stated that request of the petitioner vide letter dated 9.10.1980 was not accepted, as there was no material to support of his case. On the said resolution of dismissal was passed, but the same was not accepted by the District Inspector of Schools, Sultanpur and then resolution was passed on 3.11.1980 to take action as per law and Sri Ramadhar Singh was appointed as inquiry officer in the matter. Charge sheet dated 13.11.1980 was sent to the petitioner at his home address and registered envelope was returned to the College. The postman on 18.11.1980 made note that petitioner was not available and then again on 20.11.1980, 21.11.1980, 24.11.1980 and then on 26.11.1980 post man tried repeatedly and ultimately said letter was returned back. Charge sheet was returned back unserved. Thereafter, notice was published in the newspaper ''Bharat'' dated 5.12.1980 which is leading Hindi daily newspaper having a good circulation in the district Sultanpur/ Jaunpur. Even in spite of publication being made petitioner did not cooperate with the inquiry and ultimately inquiry officer concluded the inquiry exparte and submitted his report. After said inquiry report has been submitted, notice was sent to the petitioner on 5.1.1981 asking to appear on 11.1.1981 and thereafter in the meeting dated 11.1.1981 resolution was passed to inflict the punishment of dismissal from service. Matter was referred to District Inspector of Schools, Sultanpur, thereafter, after providing opportunity of hearing to petitioner District Inspector of Schools accorded approval. Thereafter, appeal was also preferred, which was also rightly decided and as such no interference be made.

Rejoinder affidavit has been filed and therein it has been stated that leave application given was duly received by the concern clerk Sri Ram Chandra Tiwari. In respect of leaving the institution on 8.10.1979, it has been stated that on the said date there was condolence meeting in the institution and as such he left the institution at 11.00 A.M. and he got himself medically examined by Physician. Averments mentioned in the writ petition have been reiterated and averment mentioned in the counter affidavit has been disputed with vehemence.

Supplementary counter affidavit and supplementary rejoinder affidavit has also been filed.

After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing/disposal with the consent of the parties.

Learned counsel for the petitioner contended with vehemence that in the present case entire disciplinary proceedings undertaken are ex parte without providing any opportunity of hearing to petitioner and punishment, which has been sought to be awarded is too severe in the fact and circumstances of the present case and coupled with this, by no stretch of imagination retrospective punishment could have been provided for and as such entire proceedings are vitiated under law, and same are liable to be quashed.

Learned Standing Counsel supported the order passed by the authority concerned and learned counsel representing respondent Nos.2 and 3 contended that in the fact and circumstances of the case guilt of the petitioner is fully established and once same has been affirmed in appeal and there was no perversity in the said opinion formed then there is hardly any scope of interference with the same.

After respective argument have been advance, first question is to be adverted to as to whether in the fact and circumstances of the present case, inquiry held against the petitioner is in violation of principle of natural justice, and petitioner has failed to avail the opportunity provided for or not. It is not disputed that inquiry in question is ex parte inquiry as admittedly petitioner has not participated in the same. Resolutions, had been passed by the Managing Committee of the institution for initiating action against the petitioner by way of disciplinary proceeding on account of his absence from the duty without there being any proper application and without there being any leave being sanctioned. Inquiry Officer was appointed by the resolution dated 3.11.1980 and then charge sheet dated 13.11.1980 was sent to the petitioner at his home address i.e. village Adampur, Pargana Haveli, Post Office Haveli Baghaila, District Jaunpur. Registered envelope was ultimately returned to the College by the postal authority. The noting available on the said registered envelope mentioned that postman went on 18.11.1980 at his home address and made note that addressee was not available, and then again on 20.11.1980, 21.11.1980, 24.11.1980 and then on 26.11.1980 post man tried repeatedly and ultimately said letter is being sent back. The postman returned the charge sheet back as unserved. At no point of time postman ever made endorsement that deliberately and willfully petitioner was trying to evade and avoid to receive the letter, which was returned. Institution in question thereafter made publication in the newspaper ''Bharat'' dated 5.12.1980. Petitioner has made specific case that at no point of time he came across any such newspaper as such he could not present himself on the date fixed in the newspaper before enquiry officer or the Committee of Management. Once notice was sought to be served by the registered post and it was not at all reported by the postman in question that petitioner was deliberately avoiding the inquiry and has refused to accept the same, then it was much more incumbent and obligatory on the part of the authority concerned to have sent copy of the charge sheet once again by registered post and even an attempt ought to have been made to serve copy of the charge sheet through peon.

Hon''ble Apex Court in the case of Union of India and others v. Dinanath Shantaram Karekar and others, (1998) 7 SCC 569, in respect of departmental inquiry has taken view that charge sheet was sent by registered post, which was received back undelivered with postal endorsement ''not found'' held, single attempt was not sufficient in the case and further effort should have been made for effecting the service. Show cause notice also published in newspaper without attempting to effect its service through office peon or by registered post. In the said case disciplinary inquiry was held to be vitiated for want of actual service of documents to the charged employee. In the present case also only on one occasion by way of registered post, charge sheet in question was sent, this fact is true that postman had attempted to serve such charge sheet on various occasion, and on each occasion, different endorsement has been made, but at no point of time any endorsement has ever been made that petitioner was deliberately avoiding to accept the copy of the charge sheet or has refused to accept the copy of the said letter. In the past for collecting keys, peon had gone to the residence of the petitioner and had collected the keys, nothing prevented the respondents from sending peon for effecting service of the charge sheet or again sending the same by registered post. Newspaper in question may be of wide circulation and as a general preposition, it does not necessarily mean that incumbent must have come across the aforementioned publication in question. In order to place reliance on the said newspaper, further finding of fact has to be returned that said newspaper having wide circulation in the locality wherein petitioner was residing. In this background once copy of the charge sheet had not been served upon the petitioner and no extra effort was made to get service effected through office peon or again by registered post and recording categorical finding that said newspaper was having wide circulation in the locality where petitioner resided, the inevitable conclusion is that it was ex parte inquiry and in breach of principle of natural justice.

Much reliance has been placed by the respondents by contending that in the case in hand provision of sub clause (1) of Regulation 36 would not be attracted, inasmuch as here petitioner was found to be absconding and it was practically impossible to communicate with him, as such procedure provided under subclause (1) of Regulation 36 was not at all liable to be followed. In the present case this was not at all case of respondents that petitioner has absconded rather case was that it was impossible to communicate with petitioner. Once these two contingencies are in existence, then Managing Committee of the institution could have dispensed with the procedure provided as contained under sub clause (1) of Regulation 36 of U.P. Education Act. Similarly Enquiry Officer was empowered to waive any of the conditions under Clause (3) of Regulation 36, after giving reasons. Here in the present case from their own showing, Management has proceeded ahead to take disciplinary action, and thereafter has proceeded to pass resolution on account of non participation of the petitioner in disciplinary proceeding. As already observed above, the inquiry has been held to be in violation of principle of natural justice, said inquiry cannot be subscribed and any further action taken on the basis of the same also cannot be subscribed, as without undertaking full fledged exercise for effecting service, it cannot be said, in the fact of the case, that it was impracticable to communicate with petitioner.

In the present case there is one more ground which has come forward i.e. services of petitioner has been dispensed with w.e.f. 9.10.1979 i.e. from retrospective date. Once service of petitioner has been dispensed with from 9.10.1979 then entire charge would go, inasmuch as, charge against the petitioner is of absenting himself w.e.f. 9.10.1979 without any leave being sanctioned. Dispensation of service with retrospective effect is not at all subscribed under the service jurisprudence, inasmuch as only after regular departmental inquiry is held, then resolution is passed for dispensation of service when guilt is proved. Dispensation of service with retrospective effect can not be subscribed by any means.

Once it has been found that disciplinary proceeding had been held in breach of the principle of natural justice, then in normal course of business, matter would have been remitted back for fresh inquiry being made in the matter, but here in the backdrop of the case Court has to take practical and pragmatic approach in the matter. Admittedly petitioner''s service had been dispensed with in the year 1981, since then more than 27 years period have elapsed and giving direction for holding of reenquiry at this juncture would be totally unfair. In the rejoinder affidavit, which has been filed on record and which has been sweared on 27.9.2002 petitioner has described his age as 56 years, thus virtually petitioner is at the verge of superannuation, in case he is to continue upto 62 years of age under the amended Regulation. Petitioner was Lecturer in Chemistry and during this 27 years, it has been admitted by petitioner that he has not been doing anything and was totally dependent on his family member. Petitioner has lost total contact with the subject of Chemistry and thus as on date his reinstatement would be of no use to the institution in question and students at large.

In this background looking into over all fact and circumstances of the case and keeping in view the conduct of petitioner and also the fact that he has not disclosed what sickness he had and various other loop holes in the story set up by him, ends of justice would be more served in case instead of directing reinstatement in service, and all other consequential benefit be paid, it would be expedient that lumpsum amount of Rs.3,00,000/ is paid, which shall be full and final settlement and there would be no other entitlement to petitioner qua respondents.

Consequently, orders dated 7.3.1986 and 18.7.1981 are quashed.

Consequently, writ petition is allowed, with the aforementioned observation and direction.

No order as to cost.

(Petition allowed)