M.L.Bhat - (1.) ORDER dated 6-7-1993 contained in Annexure-7 passed by the respondent No. 1 is prayed to be quashed through the medium of this writ petition. The petitioner is Principal of the institution in which respondent No. 3 was appointed on 25-4-1992 as a class IV employee. Petitioner's case is that the respondent No. 3 was appointed on probation in the pay scale of Rs. 750-12-870. The respondent No. 3 is said to have joined the service in pursuance of the appointment letter on 1-5-1992. The conduct ,and working of respondent no. 3 was found unsatisfactory and he was given warning by the petitioner on 17-9-1992 to improve his work and conduct. On respondent No. 3's failure to improve his conduct, the petitioner terminated his services by giving him one month's notice on 23-3-1993. The respondent No. 3's termination from service was made effective from 30-4-1993. Respondent No. 3 is said to have not filed any appeal because the appellate authority which appointed the petitioner is respondent No. 2, therefore the order of his termination became final.
(2.) THE respondent No. 3 is said to have filed a representation/appeal directly before the respondent No. 1 which was sent for comments to the petitioner. THE appeal/representation was filed on 21-5-1993. Petitioner is said to have given his comments vide his letter dated 18-6-1993 to the representation/appeal filed by the respondent No. 3 before the respondent No. 1. THEreafter, the respondent No. 1 by the impugned order held that the termination of the respondent No. 3 was illegal and violative of section 16 (G) (2) and against the regulation 26 of 1975. This order is impugned in the writ petition and its validity is challenged by the petitioner. It is submitted by the petitioner that appeal/representation against termination of respondent No. 3's service was not maintainable. The impugned order is said to have been passed behind the back of the petitioner and is said to be without jurisdiction. Respondent No. 3's services were liable to be terminated at any time during the probation period. The order passed by the respondent No. 1 is, therefore, illegal and without jurisdiction. The explanation given by the petitioner has not been considered by the respondent No. 1. The legal provisions have also not been taken into consideration by the respondent No. 1 while passing the impugned order. Respondent No. 3's conduct was never satisfactory and he was not fit to be retained in service. He would disrupt the peaceful atmosphere of the institution and was indulging in instigating the students to resort to indiscipline. Provisions of section 16 (G) (3) do not apply to the respondent No. 3. The said provisions are applicable to a permanent employee only. Therefore, the impugned order is without application of mind as it is based on a provision of law which is wholly inapplicable to the respondent No. 3. The impugned order is also sard to be violative of principles of natural justice. Respondent No. 3's contention before the respondent No. 1 that there was already an order in his favour passed by the respondent No. 2 was incorrect. If the said order would have been there, the question of filing the representation/appeal by the respondent No. 3 before the respondent No. 1 would not have arisen. Respondent No. 3 had appeared at the admission stage. He filed a counter affidavit also. It is stated that Santosh Kumar Memorial Inter College, Gangola Dataganj, District Budaun, the institution in question, is a duly recognised government aided institution and the service conditions of the petitioner and the employees are covered under U. P. Intermediate Education Act, 1921 and the regulations framed thereunder Provisions of U. P. High School and Intermediate Colleges (Payment of salaries of teachers and other employees) Act of 1971 also applies to the employees of the institution. It is, further, contended that a substantive vacancy had occurred in Class IV cadre due to one Brij Pal Singh's retirement. The vacancy was advertised and the respondent No. 3 was selected as he was found suitable candidate for the vacancy which was substantive. He was to remain on probation initially in terms of letter of appointment dated 25-4-1992. On 28-5-1992 respondent No. 1 is said to have approved the appointment of the respondent No 3. Copy of this is annexed as Annexure- 1 to the counter affidavit. The respondent No. 3 has denied allegations about his bad conduct and unsatisfactory work. The written warning issued to the respondent No. 3 is said to have been issued on wrong facts. The respondent No. 3 has narratted some facts as to why he was incorrectly termed as man of bad conduct and why his work was treated as unsatisfactory. It is stated that neither any charge sheet was given nor any enquiry officer was appointed as provided under the regulations. The order of termination was based on certain charges which were not enquired into and the respondent No. 3 was denied opportunity of being heard and the said order was contrary to the statutory rules. It was necessary for the petitioner to initiate disciplinary proceedings against the respondent No. 3 and without doing so he could not have terminated his services. The respondent No. 3 is said to have filed an appeal before the management. No decision was given on the appeal but he was directed to resume work before the Manager. The respondent . No. 3 is said to have resumed his duties and performed his duty till 7-5-1993. After 7-5-1993 he was not permitted to work in the institution. The allegations that the respondent No. 3 is notorious and law breaking person are denied by the respondent No. 3.
(3.) SINCE the action of the petitioner was without jurisdiction, therefore, the respondent No. 3 filed representation before the respondent No. 1. The service of the respondent No. 3 were terminated without the approval of the respondent No. 1. It is stated that, petitioner was bound to obtain the approval of the respondent No. 1 before issuing the impugned order. The impugned order is said to be valid and the respondent No. 1 had the jurisdiction to set aside the termination order which was passed in contravention of the provisions of law. Before passing the impugned order, the respondent No. 1 had given full opportunity to the petitioner and the petitioner had submitted explanation also in reply to the respondent No. 3's representation. Petitioner has filed rejoinder affidavit also. It is stated that respondent No. 3 was appointed by the petitioner and the approval of the respondent No. 1 was obtained for the purpose of payment of salary. Factual paras in the counter affidavit in which respondent No. 3 has narratted facts about his conduct and work are denied in the rejoinder affidavit. The assertions made in the writ petition are reiterated. The termination of the respondent No. 3's services is ordered because after assessing his work and conduct he was not found suitable for the post and termination order is not by way of punishment, therefore, no disciplinary proceedings were required to be initiated against the respondent No. 3. Services of the respondent No. 3 were terminated because he was a probationer and the termination is in accordance with the Chapter III of the Regulations. It is submitted that prior approval for terminating the service of Class IV employees is not necessary. Prior approval is necessary in case of teachers only. The respondent No. 3 could not file any representation/appeal before the respondent No. 1. He could file the appeal before the respondent No. 2. No appeal was filed by the respondent No. 3 before , the respondent No. 2 and it is denied that Manager of the institution had asked the respondent No. 3 to resume the work and the respondent No. 3 had worked till 7-5-1993.;