Committee Of Managem... v. Director Of Educatio..., Allahabad High Court, Judgment, Law, casemine.com

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Case Number

Special Appeal No. 159 of 2007

Attorney(S)

W.H.Khan
S.K.Pathak
R.S.Misra
J.H.Khan
Arun Kumar
SC

Judges

S.R Alam
A.C.J
Krishna Murari, J.

Acts

U.P Basic Education Staff Rules, 1973 (hereinafter referred to as 1973 Rules). Rule 5 of 1973 Rules
Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 1978 Rules).
Rule 12 of 1975 Rules,
Rule 5 of the Rules
Uttar Pradesh Act

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Smart Summary

Factual and Procedural Background

This Special Appeal was filed under Chapter VIII, Rule 5 of the Rules of the Court against a judgment of the Single Judge dated 11.1.2007 in Civil Misc. Writ Petition No. 38875 of 1996. The underlying dispute concerned disciplinary proceedings against respondent/petitioner No. 3 (a headmaster), who was charged with serious misconduct including alleged embezzlement.

Chronology and relevant procedural events stated in the opinion:

Charge-sheet served on the delinquent on 4.2.1988.
The Committee of Management conducted an inquiry and, by resolution dated 2.6.1988, dismissed him from service.
The Basic Shiksha Adhikari (District Basic Education Officer) refused to grant approval to the dismissal by order dated 5/6.8.1988.
An FIR was lodged on 29.5.1988 under sections 406/409 IPC; police investigation led to a charge-sheet in the Court of IVth Munsif Magistrate, Deoria; the delinquent was arrested on 20.6.1988 and remained in jail until 10.7.1988.
The Director of Education (Basic) ultimately set aside the Basic Shiksha Adhikari's order by order dated 22.10.1996.
The Single Judge set aside the Committee of Management's dismissal on grounds of violation of principles of natural justice; the Special Appeal challenges that judgment.

Legal Issues Presented

Whether a Special Appeal under Chapter VIII, Rule 5 of the Court's Rules is maintainable against the Single Judge's judgment when the impugned order was passed in exercise of appellate jurisdiction under Section 12 of the U.P. Recognized Basic School (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (as contended for respondent).
Whether the Committee of Management of a recognised Junior High School (managed privately and imparting education Class VI–VIII) has a statutory right to appeal against an order of the Basic Shiksha Adhikari that refuses approval of punishment imposed by the management, given the interplay between the 1978 Rules, the 1973 U.P. Basic Education Staff Rules (applied by reference), and Rule 12 of the 1975 Rules.
On the merits: whether the disciplinary enquiry and resulting dismissal were vitiated by breach of principles of natural justice (specifically non-supply of documents relied on and inadequate opportunity to cross-examine witnesses) and, if so, what relief and interlocutory measures (including suspension) are appropriate while fresh proceedings are conducted.

Arguments of the Parties

Respondent No. 3's (contestant's) arguments — as represented by Sri R.S. Misra

Pressed a preliminary objection that the Special Appeal under Chapter VIII, Rule 5 is not maintainable because the impugned order in the writ petition was passed in exercise of appellate jurisdiction under Section 12 of the 1975 Rules, and therefore the Special Appeal would not lie under the Rules of the Court.
Relied on the Division Bench decision in Sita Ram v. District Inspector of Schools (1994 1 UPLBEC 24) to support the contention that the appellate route under relevant statutory/regulatory provisions precludes the Special Appeal.

Appellant's arguments — as represented by Sri W.H. Khan (and related submissions)

Contended that respondent No. 3 (the delinquent) is governed by the 1978 Rules (U.P. Recognized Basic School (Junior High School Recruitment and Conditions of Services of Teachers) Rules, 1978), not the 1975 Rules, and that under the 1978 Rules no statutory appeal is provided against the Basic Shiksha Adhikari's refusal to grant approval to an order of termination; therefore, a Special Appeal is maintainable under Rule 5.
Argued that an appeal filed by the Committee of Management before the Director of Education (Basic) cannot be treated as a statutory appeal; at best it is a representation lacking the trappings of a tribunal/judgment or a statutory arbitrator's award under any U.P. or Central Act.
On the merits, asserted that the departmental proceeding and the charges (including embezzlement) justified disciplinary action and, if proceedings were to be remitted for fresh enquiry, the delinquent should be kept under suspension to prevent tampering with evidence — relying on Ranjit Singh v. Union of India (2006 109 FLR 859 SC).

Additional positions reflected in the opinion

Counsel for the delinquent (Sri R.S. Mishra) maintained that notices were served and reasonable opportunity was afforded to the delinquent, so he could not later complain about lack of opportunity in the enquiry.
Counsel for the delinquent also stated willingness to cooperate for early disposal of further departmental proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sita Ram v. District Inspector of Schools, 1994 1 UPLBEC 24	Relied upon by respondent to support the contention that statutory appellate routes preclude Special Appeal under the Court's rules.	The Court found this reliance to be misplaced and factually distinguishable because that case concerned seniority disputes under U.P. Intermediate Education Act and regulations (where an appeal was statutorily provided); therefore Sita Ram did not assist respondent's preliminary objection and was rejected.
Ram Kripal Singh v. U.P.S.R.T.C., Lucknow, 1992 2 ESC 1088 All.	Affirmation of the proposition that a right of appeal is a creature of statute — a litigant has no inherent right of appeal unless conferred by law.	The Court relied on this authority to reinforce the principle that appeals arise only where statute or rules provide them, applying it to conclude that the Committee of Management had no statutory right of appeal under the applicable rules.
Shah Babulal Khimji v. Jayaben D. Kania, 1981 4 SCC 8	Authority (Apex Court) cited for the settled proposition that a right of appeal is a creature of statute.	The Court cited this Apex Court authority (via Ram Kripal Singh reasoning) to support the legal proposition that absent statutory provision an appeal does not lie, applied to deny a management's right of appeal under the 1978/1973 rules framework.
Ranjit Singh v. Union of India, 2006 109 FLR 859 SC	Support for the proposition that where charges are serious (e.g., embezzlement), it may be appropriate to keep the delinquent under suspension pending conclusion of departmental proceedings to prevent tampering with evidence.	The Court adopted this principle to modify the Single Judge's order: though the termination was set aside for breach of natural justice, the Court held the delinquent should remain under suspension and be entitled only to subsistence allowance until departmental proceedings are concluded.

Court's Reasoning and Analysis

The Court proceeded in two stages: (A) the threshold question of maintainability of the Special Appeal under Chapter VIII, Rule 5; and (B) the merits of the disciplinary challenge.

(A) Maintainability of the Special Appeal

The Court examined the competing regulatory frameworks: the 1975 Rules (applicable to Junior Basic Schools up to Class V) and the 1978 Rules (applicable to Junior High Schools, Class VI–VIII).
Noting the admitted facts that the institution in question is a recognised Junior High School imparting education from Class VI to Class VIII and managed privately, the Court held the 1978 Rules apply.
Rule 16 of the 1978 Rules makes disciplinary proceedings and punishment for headmasters/assistant teachers to be governed by the rules applicable to headmasters and assistant teachers of a Basic School established or maintained by the Board. Those rules are the U.P. Basic Education Staff Rules, 1973 (1973 Rules).
Rule 5 of the 1973 Rules confers a right of appeal against orders imposing certain penalties, but the right to appeal is expressly granted only to employees/teachers; managements (private committees) are not given a statutory right of appeal under those provisions.
Because the 1978 Rules incorporate the 1973 Rules by reference and the borrowed rule does not confer an appellate right on the appointing authority/management, no statutory right of appeal exists for the Committee of Management against a decision of the Basic Shiksha Adhikari refusing to grant approval to punishment.
The Court emphasized the settled principle (supported by Ram Kripal Singh and Shah Babulal Khimji) that a right of appeal is a creature of statute; absent statutory conferment, an appeal does not lie. Consequently, the Committee's filing before the Director of Education (Basic) could at best be treated as a representation and not a statutory appeal that would attract Rule 5 jurisdiction.
The Court distinguished and rejected reliance on Sita Ram because that case involved a statutory appeal under the U.P. Intermediate Education Act and regulations (different factual and statutory matrix), so it did not support respondent's objection.
Conclusion on maintainability: the preliminary objection was rejected and the Special Appeal was held to be maintainable.

(B) Merits — Natural Justice and Interim Measures

On merits, the Single Judge had set aside the Committee's order of dismissal on the ground that the inquiry violated principles of natural justice: the documents relied upon were not furnished to the delinquent, and he was not given adequate opportunity to lead evidence or cross-examine witnesses.
The Division Bench reviewed the record and found no material to show the delinquent had been furnished the documents or allowed to cross-examine witnesses; the Enquiry Officer's report did not refer to evidence establishing the charges. Thus, the Court agreed with the Single Judge that the inquiry was vitiated by breach of natural justice.
However, weighing the seriousness of the charges (embezzlement), the Court found it inappropriate to permit the delinquent to continue functioning as Headmaster during fresh disciplinary proceedings because of risk of tampering with evidence/records.
Applying the principle in Ranjit Singh, the Court modified the Single Judge's order to require that the delinquent be deemed under suspension pending fresh departmental proceedings and be entitled only to subsistence allowance as per rules.
The Court gave specific procedural directions and timelines: upon production of a certified copy of the order, the appellant (management/authority) must provide all documents relied upon within two weeks; the delinquent will have two weeks thereafter to file his reply; disciplinary proceedings should be concluded expeditiously — preferably with the target of conclusion within three months from production of the certified copy, and with the detailed schedule broken down (two weeks for documents, two weeks for reply, and two months thereafter to conclude the inquiry).

Holding and Implications

Holding: DISPOSED OF. The Special Appeal and writ petition were disposed of with the following principal outcomes:

The preliminary objection that the Special Appeal was not maintainable was rejected; the Court held the Special Appeal was maintainable in the circumstances.
The Single Judge's order setting aside the dismissal for breach of natural justice was upheld to the extent that the inquiry was vitiated and required fresh consideration; however, the Division Bench modified the relief by directing suspension pending fresh departmental proceedings and imposing a timetable for production of documents, responses, and conclusion of the inquiry.
There shall be no order as to costs.

Implications:

Direct effect on the parties: the delinquent (petitioner-respondent No. 3) remains relieved of the termination previously recorded but is to be treated as under suspension during the fresh departmental proceeding and is entitled only to subsistence allowance as per rules. The appellant/management and authorities must follow the Court-prescribed timetable for disclosure of documents and completion of the inquiry.
The Court's decision is grounded in application and interpretation of the existing rules (1978 Rules, 1973 Rules, and the statutory principle that appeal is a creature of statute). The opinion does not claim to lay down any new, general precedent beyond applying established principles to the facts; no broader constitutional or legislative principle beyond the case's facts was announced.

Appeal Disposed Of.

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Committee Of Management, Baba Shobha Mani Laghu Madhyamik Vidyalaya, Chero Bharti, Deoria, Through Its Manager v. Director Of Education (Basic)/Chairman U.P Basic Shiksha Parishad, Lucknow And Others

S.R Alam, A.C.J and Krishna Murari, J.:— This Special Appeal has been preferred under Chapter-VIII, Rule 5 of the Rules of the Court against the judgment of the Hon'ble Single Judge dated 11.1.2007 passed in Civil Misc. Writ Petition No. 38875 of 1996.

2. At the outset, Sri R.S Misra, learned Counsel appearing for respondent No. 3 raised a preliminary objection about the maintainability of appeal under Chapter VIII, Rule 5 of the Rules of the Court on the ground that the order impugned in the writ petition was passed in exercise of appellate jurisdiction under section 12 of the U.P Recognized Basic School (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (hereinafter referred to as 1975 Rules) and thus the Special Appeal would not lie under the Rules of the Court. In support of the above preliminary objection reliance has been placed on a Division Bench judgment of this Court in the case of Sita Ram v. District Inspector of Schools . 1994 1 UPLBEC 24.. On the other hand, learned Counsel for the appellant submitted that the services of contesting respondent No. 3 are governed by U.P Recognized Basic School (Junior High School Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 1978 Rules). He further submitted that under 1978 Rules, no appeal is provided against the order of Basic Shiksha Adhikari refusing to grant approval to the order of termination and thus the appeal would be maintainable. It has further been submitted that even though the Committee of Management filed an appeal before the Director of Education (Basic), the same cannot be treated as a statutory appeal and any decision thereon is not est. It has further been submitted that in the absence of any statutory appeal having been provided under the Rules, the appeal filed by the Committee of Management under wrong advice at best can be treated to be a representation and any decision thereon cannot be said to have trappings of judgment or award of a Tribunal or statutory arbitrator made under the purported exercise of jurisdiction under any U.P Act or any Central Act with respect to the matters enumerated in the State List or concurrent list in the Seventh Schedule of the Constitution, hence Special Appeal would be maintainable.

3. We have given our anxious considerations to the submissions made on behalf of the rival parties.

4. Chapter VIII, Rule 5 of the Rules of the Court provides for Special Appeal before a Division Bench from the judgment of learned Single Judge. The said provision reads as under:—

“5. Special Appeal.—An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of Criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a Tribunal Court or statutory arbitrary made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect of any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.”

5. Thus, the answer to the question of maintainability of the present Special Appeal depends upon the availability of the right to appeal at the behest of the Committee of Management against order or decision of Basic Shiksha Adhikari denying approval to the punishment awarded to the headmaster or teacher of the institution in question.

6. The preliminary objection raised on behalf of contesting respondent No. 3 regarding maintainability of the appeal is based on Rule 12 of 1975 Rules, which confers a right to appeal on the teachers as well as management against the order of the District Basic Education Officer. A perusal of 1975 Rules goes to show that the same are applicable to Junior Basic School which has been defined under the definition clause as an institution other than high schools or intermediate colleges imparting education up to Class-V. Admittedly, the institution in question is a recognised Junior High School managed by a private management and is imparting education to boys and girls from Class-VI to Class VIII. 1978 Rules defines Junior High School as an institution other than High School or Intermediate College imparting education to boys and girls or both from Class-VI to Class-VIII (inclusive). Since, the institution is imparting education from Class-VI to Class-VIII as such is covered under the definition of institution as contained in 1978 Rules and obviously would be governed by said Rules. Rules 16 of 1978 Rules provides for disciplinary proceedings and reads as under:—

“16. Disciplinary proceedings.—In respect of disciplinary proceedings and the punishment to be inflicted in such proceedings a Headmaster or Assistant Teacher as the case may be, of a recognized school shall be governed by the rules applicable to Headmaster and Assistant Teacher of a Basic School established or maintained by the Board.”

7. In view of the aforesaid rule, the disciplinary proceedings and punishment to be inflicted in such proceedings on a Headmaster or Assistant Teacher governed by 1978 Rules shall be governed by rules applicable to Headmaster or Assistant Teacher of a Basic School established or maintained by the Board. The Headmaster or Assistant teacher of Basic School established or managed by the Board are governed by U.P Basic Education Staff Rules, 1973 (hereinafter referred to as 1973 Rules). Rule 5 of 1973 Rules provides for an appeal against the order passed by appointing authority inflicting punishment upon any officer, teacher or other employee of the Board before the appellate authority mentioned in Column 3 of the Schedule. The said rule reads as under:—

“5. Appeal.—(1) An appeal shall lie from an order passed by the appointing authority in respect of the post mentioned in Column 1 or the Schedule appended to these Rules, imposing upon any officer, teacher or other employee of the Board and of the penalties mentioned below to the appellate authority mentioned in Column 3 of the said Schedule:—

(a) reduction to a lower post or time-scale to a lower stage in a time-scale;

(b) removal from service of the Board which does not disqualify for future employment;

(2) In case of other penalties against which no appeal provided in this rule, the punished officer, teacher or other employees of the Board may make a representation against the imposition of any of these penalties to such officer as the Director of Education (Basic) may be general orders from time to time specify in this behalf.

(3) The procedure laid down in the Civil Service (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible be followed in disciplinary proceedings, appeals and representations under these rules.”

8. A perusal of said rule goes to show that right to appeal has only been conferred on teachers and employees. These rules are applicable to the employees of the Board as well as teachers and other employees of the institution which are managed and administered by U.P Basic Education Board directly. They are not institutions managed privately by the Committee of Management constituted under their own bye laws and for this reason the Rules do not contain any provision conferred any right of appeal on the management and such right has only been provided to the employees and teachers. Provision of appeal contained in 1973 Rules have been made applicable to 1978 Rules by way of reference. Since, the rule which has been borrowed by way of reference does not confer any right of appeal on the appointing authority, no right of appeal would be available to the Committee of Management under 1978 Rules, against an order of Basic Education Officer disapproving the action taken by the management imposing punishment upon Headmaster and teachers of the institution.

9. A right to appeal is not an inherent right but is one created and conferred by a statutory provision. The proposition is well settled by various pronouncements, reference may be made to the decision of a Division Bench of this Court in the case of Ram Kripal Singh v. U.P.S.R.T.C, Lucknow . 1992 2 ESC 1088 All., wherein relying upon the decision of the Hon'ble Apex Court, it has been observed as under:—

“10. A right of appeal is a creature of statute. A litigant does not have any inherent right to prefer an appeal against, an order unless such a right is conferred on the litigant by law. This proposition is well settled in law and since been reiterated by the Apex Court in Shah Babulal Khimji v. Jayaben D. Kania . 1981 4 SCC 8..”

10. From perusal of aforesaid facts and the relevant rules, it is evident that no appeal is provided to the Committee of Management against an order passed by Basic Shiksha Adhikari refusing to grant approval to the punishment. The proposition being well settled that right to appeal is creature of statute and in the absence of any provision in the statute conferring such a right, appeal would not lie. Merely by filing an application/representation by the Committee of Management before the Director, Basic Education and labelling it as an appeal, it would not become appeal nor it would confer any appellate jurisdiction upon Director to decide the issue regarding refusing to grant approval.

11. However, the Director, being superior authority and being vested with administrative control over his subordinates, the order passed by him on the representation of the Committee of Management at the best, could be an administrative order in exercise of executive control over his subordinates, but in any view of the matter it cannot be termed to be an order or judgment by a Tribunal or statutory arbitrator in exercise of jurisdiction under any U.P Act or any Central Act in respect of the matters enumerated in the State List or Concurrent List of Seventh Schedule of the Constitution. Therefore, in the absence of any right conferred on the management to prefer appeal against the order disapproving punishment inflicted on contesting respondent No. 3, it is difficult to hold that the decision of the Director on the application/representation of the appellant was passed on a statutory appeal.

12. Reliance placed by learned Counsel for respondent No. 3 on the ratio of decision in the case of Sita Ram (supra) is also totally misfounded and is of no help to him. In the said case, the dispute was with regard to seniority list of lecturers of inter college governed by U.P Intermediate Education Act and Regulations framed thereunder. Under Regulation 3(1)(f) an appeal is provided before the Inspector of Schools against the decision of Committee of Management deciding the seniority dispute of teachers of the institution. In view of the aforesaid facts, the case law relied upon by learned Counsel for contesting respondent in support of his contention is clearly distinguishable on facts and is of no help to him.

13. In view of aforesaid discussion, preliminary objection raised on behalf of contesting respondent regarding maintainability of the appeal is liable to be rejected.

14. Now coming to the merit of appeal. The submission raised on behalf of the appellant is that a regular departmental proceeding was initiated against the petitioner-respondent No. 3 in respect of serious charges of misconduct including embezzlement of funds. A charge sheet was accordingly served on him on 4.2.1988 However, he did not submit any reply to the charges either in the enquiry or before the Committee of Management nor participated in the proceedings. The enquiry, therefore, was concluded and the Committee of Management vide its resolution dated 2.6.1988, dismissed him from service. However, respondent No. 2, the Basic Shiksha Adhikari, Deoria, refused to grant approval vide order dated 5/6.8.1988. The said order was ultimately set aside by the Director of Education, respondent No. 1 vide order dated 22.10.1996

15. It has also been stated that an F.I.R was also lodged on 29.5.1988 against the petitioner-respondent No. 3 under sections 406/409, I.P.C and the police after necessary investigation, submitted charge sheet in the Court of IVth Munsif Magistrate, Deoria. Petitioner-respondent No. 3 was thereafter arrested on 20.6.1988 and remained in jail till 10.7.1988 It is further submitted that the Hon'ble Single Judge set aside the order of termination by the judgment under appeal only on the ground that the enquiry is vitiated on account of violation of principles of natural justice, inasmuch the documents relied upon in support of the charges were not furnished to the delinquent petitioner-respondent No. 3 nor he was given adequate opportunity to lead evidence or to cross-examine the witnesses. It is submitted by Sri W.H Khan that petitioner-respondent No. 3 was served with the notice and reasonable opportunity was afforded but he did not avail the same and, therefore, now cannot complain that the proceeding was undertaken without giving adequate opportunity to participate in the enquiry or to lead evidence. It has further been submitted that even where the departmental proceeding is found to have not been conducted in accordance with law and the matter is remitted back to the disciplinary authority for fresh consideration, the delinquent employee till the conclusion of the proceeding should be deemed to continue under suspension. He has placed reliance on a judgment of the Apex Court in the case of Ranjit Singh v. Union of India . 2006 109 FLR 859 SC.

16. We have considered the submissions made by Sri W.H Khan, learned Counsel for the appellant and also Sri R.S Mishra, learned Counsel appearing for petitioner-respondent No. 3. No material has been brought on record to show nor it is apparent from the report of the Enquiry Officer that adequate opportunity was afforded to the petitioner-respondent No. 3 and the documents in support of the charges were served on him nor there is any material on record to show that he was offered opportunity to cross-examine the witnesses examined in support of the charges. The report of the Enquiry Officer does not refer to any evidence from which it could be inferred that the charges stood proved and, therefore, we have no reason to differ with the view taken by the Hon'ble Single Judge that the proceeding was concluded in violation of principles of natural justice. However, the second contention made by the learned Counsel for the appellant has force. The charges being serious and pertaining to embezzlement, it would not be appropriate that the petitioner should be allowed to continue as Head Master of the institution giving a chance to tamper with the evidence or record of the institution. We are, therefore, of the view that it would be appropriate in the ends of justice that till the conclusion of departmental proceeding and decision by the disciplinary authority, the petitioner-respondent No. 3 shall not be allowed to continue to function as Head Master of the institution and shall be deemed to be under suspension. Our view is also supported by the view taken by the Apex Court in the case of Ranjit Singh v. Union of India (supra). Learned Counsel for the appellant has further submitted that endeavour would be made to conclude the departmental proceeding within three months. Sri Mishra, learned Counsel appearing for petitioner-re-spondent No. 3, also states that the respondent shall cooperate in the early disposal of the proceeding.

17. We, therefore, having regard to the submissions made and also having regard to the facts of the case, modify the judgment of the Hon'ble Single Judge to the extent that the departmental proceeding against the petitioner-respondent No. 3 shall be concluded expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. The appellant shall provide all the documents relied upon the support of the charges to the delinquent petitioner-respondent No. 3 within two weeks from the date of issuance of a certified copy of this order and thereafter the petitioner-respondent No. 3 shall give reply to the charges within another two weeks thereafter and the proceeding shall be concluded within two months thereafter. During the pendency of the proceeding and till the decision of the disciplinary authority, petitioner-respondent No. 3 shall remain under suspension and shall only be entitled to receive subsistence allowance as per rules.

18. With the aforesaid modification in the judgment of the Hon'ble Single Judge, the writ petition and the special appeal stand disposed of. There shall be no order as to costs.