Back
2018 Supreme(All) 2153
IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, J.
Praveen Kumar - Petitioner
Versus
State Of U.P. Thru’ Secy. & Others - Respondent
Writ - A No. 46464 of 2005
Decided On : 28-09-2018
Advocate Appeared:
For the Petitioner: H.N. Pandey
For the Respondent: C.S.C., B.P. Singh, P.K. Jain, Vikash Bhudhwar
Headnote:
Constitution of India,1950 – Article 226 – Termination from service – Whether justified – Grounds for termination – Writ petition filed against order passed by directing Management – Challenged – Held, Direction of DIOS to treat appointment of petitioner as illegal and to terminate him, in my view, cannot be sustained – Instead the matter needs to be re-examined by DIOS whether appointment of petitioner was made validly following procedure laid down in Statute, after removing respondent 5 from service and if there is no breach of any provision, DIOS cannot stop payment of salary to petitioner – Court find that no such direction can be issued since respondent 5 has never availed statutory remedy of appeal against said order and also not carried the same before appropriate forum – Therefore, in this writ petition I find it difficult to issue any such direction –
Impugned order directed Principal to terminate petitioner, set aside – Petition allowed. (Para 18,19 and 20)
Facts of the case:
This writ petition is directed against order dated 04.06.2005 passed by respondent 2 i.e. District Inspector of School, Baghpat (hereinafter referred to as ‘DIOS’) directing Management of KHR Inter College, Khampur, Luhari, Tehsil-Baraut, District-Baghpat (hereinafter referred to as ‘College’) to terminate petitioner’s service.
Findings of the case:
Direction of DIOS to treat appointment of petitioner as illegal and to terminate him, in my view, cannot be sustained – Instead the matter needs to be re-examined by DIOS whether appointment of petitioner was made validly following procedure laid down in Statute, after removing respondent 5 from service and if there is no breach of any provision, DIOS cannot stop payment of salary to petitioner – Court find that no such direction can be issued since respondent 5 has never availed statutory remedy of appeal against said order and also not carried the same before appropriate forum – Therefore, in this writ petition I find it difficult to issue any such direction –
Impugned order directed Principal to terminate petitioner, set aside
Result: Petition allowed.
1. Heard Sri H.N. Pandey, learned counsel for petitioner, learned Standing Counsel for respondent 1 and Sri P.K. Jain, Senior Advocate appearing on behalf of respondent 5.
2. Supplementary affidavit filed on behalf of petitioner is taken on record.
3. This writ petition is directed against order dated 04.06.2005 passed by respondent 2 i.e. District Inspector of School, Baghpat (hereinafter referred to as ‘DIOS’) directing Management of KHR Inter College, Khampur, Luhari, Tehsil-Baraut, District-Baghpat (hereinafter referred to as ‘College’) to terminate petitioner’s service.
4. Facts giving rise to present writ petition are that College is a Secondary Educational Institution imparting education to intermediate students. The College is governed by the provisions of U.P. Intermediate Education Act 1921 (hereinafter referred to as ‘Act, 1921’). For the purpose of payment of salary to staff, College is governed by the provisions of Payment of Salary Act 1971 (hereinafter referred to as ‘Act, 1971).
5. Shiv Kumar, respondent 5 was appointed as Class IV employee by order dated 24.07.1995 by Principal of the College, but having been found guilty of certain charges of misconduct, he was terminated by order dated 13.07.2001. He preferred an appeal which was allowed by order dated 18.09.2001by Authorized Controller, who was looking after Management of College.
6. Respondent 5, then absented himself from College with effect from 26.04.2002 without any sanction of leave or even without intimation to College Authorities. Principal of College issued notice to respondent 5, but respondent 5 was not found residing at the address given by him and, therefore, notice could not be served upon him. Thereafter, again a notice was sent by Principal to respondent 5 on 14.05.2002, still respondent 5 did not join.
7. Principal, who is competent authority to take decision in the matter of Class IV employees in the College, got published an advertisement in daily newspaper “Dainik Jagran” on 24.06.2002 requiring respondent 5 to join the duties within 15 days, failing which his services would stand terminated. Even then respondent 5 did not join. Principal vide order dated 21.07.2002 appointed Sri Jagvir Singh, Lecturer as Enquiry Officer for making enquiry of the charge of unauthorized absence of respondent 5. After enquiry a report was submitted on 26.08.2002. Ultimately order of termination was passed by Principal i.e. Appointing Authority on 09.10.2002 terminating respondent 5 from the post.
8. An advertisement was published in daily newspaper “Amar Ujala” on 08.05.2003 inviting fresh applications for appointment on Class IV post. Pursuant thereto, petitioner applied and after being selected he was appointed. By order dated 30.07.2003, DIOS also approved petitioner’s selection and appointment and thereafter letter of appointment was issued by Principal. Petitioner joined on 31.07.2003. Thereafter, it appears that respondent 5 approached Authorized Controller seeking permission to join and also stated that some documents, which were submitted to Principal regarding his death, were all forged. The enquiry was going on when DIOS sent letter on 30.04.2005 stopping payment of salary to petitioner whereagainst Writ Petition No.41723 of 2005 was filed, which was disposed of vide judgment dated 24.05.2005 directing DIOS to conclude enquiry after giving opportunity of hearing to all concerned persons. Pursuant thereto, impugned order has been passed by DIOS.
9. Management of College i.e. respondent 3 has filed counter affidavit admitting that respondent 5 was appointed as Class IV employee on 24.07.1995. On the charge of unauthorized absence, an enquiry was conducted and pursuant to enquiry report dated 26.08.2002, Principal of the College terminated respondent 5 vide order dated 09.10.2002. It is said that termination by Principal was without communication or consultation of Authorized Controller. Principal also proceeded unauthorizedly to make fresh appoi
