B. D. Agarwal, J. - (1.) THE respondent no. 3 was an Assistant Teacher in the Miftah-ul-Uloom Muslim Higher Secondary School, Chandpur, district- Bijnor (hereinafter referred as the 'School'). THE appointment of the respondent took place on July 8, 1968. He was confirmed in July, 1969. On December 19, 1974, the Principal made a report against the respondent no. 3 to the Management. THE Managing Committee resolved on December 22, 1974, to appoint the Manager as Enquiry Officer to enquire into the complaint and report. THE Manager, it appears, recorded statements of certain witnesses without giving opportunity to the respondent no. 3 and without taking his statement or any defence on his behalf. THE report was submitted by him the following day, i. e. December 23, 1974 itself. This was put up before the Managing Committee on December 29, 1974. THE decision taken was to obtain an explanation from the respondent no. 3. THE charge-sheet under the signature of the Manager was accordingly served upon the respondent no. 3 on January 6, 1975.to which the respondent submitted his reply on January 25, 1975. On February 3, 1975, the Managing Committee wrote to the respondent no. 3 to appear on February 9, 1975, before it. THE respondent proceeded on medical leave during February 5, 1975 to February 11, 1975. THE Committee wrote again on February 9, 1975, asking the respondent to appear on February 16, 1975. THE respondent appeared before the Committee on that date and cross-examined the witnesses besides giving his statement. THE Committee resolved the same day to dismiss the respondent from service. Letter dated February 22, 1975 was written by the Manager to the District Inspector of Schools for according approval. THE Inspector gave notice to the respondent to which the latter replied on April 1, 1975. On May 26, 1975, the Inspector accorded approval to the resolution of the Managing Committee dated 16th February, 1975. Against this the respondent no. 3 preferred an appeal to the Deputy Director of Education which was allowed on May 12, 1976, on the ground that there had been no compliance by the Managing Committee to the requirements of Regulation 36 Chapter II, Intermediate Education Act. THE approval accorded by the Inspector on May 26, 1975, was set aside.
(2.) AGGRIEVED, the Managing Committee has approached this court under Article 226 of the Constitution, seeking that the decision of the Deputy Director of Education dated May 12,1976 be quashed. Sri R. H. Zaidi learned counsel for the petitioner, has raised two-fold contentions in support of this petition:- (i) there was due compliance to the Regulations 36 Chapter II of the Intermediate Education Act; and (ii) the School is a minority institution within the meaning of Article 30 (1) *of the Constitution and Section 16-G (3) of the Intermediate Education Act is inapplicable. Section 16-G (1) of the U. P. Intermediate Education Act, for short the 'Act', provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the Management and such employee insofar as it is inconsistent with the provisions of this Act or with the Regulations shall be void. In terms of clause (a) of the subsection (2) of this section, the Regulation may provide as well for the procedure and conditions for punishment. Regulations 35, 36 and 37 which are relevant in this behalf read as under:- " 35. On receipt of a complaint or an adverse report of facts of a serious nature, the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the enquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules), and in the case of the Headmaster or Principal, a small sub-committee, with instructions to submit the report as expeditiously as possible. 36. (1) the grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge-sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as that inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish ; provided that the enquiring authority conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee. (2) Clause 1 shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. (3) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged. 37. Soon after the report of the proceedings and recommendation from the inquiring authority are received, the Committee of Management shall after notice to employee meet to consider the report of the proceedings and recommendation made and take decision on the case. The employee shall be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress, as the case may be, for approval of action proposed by it."
(3.) AS mentioned above, the disciplinary proceeding against the respondent no. 3 was initiated upon a complaint made by the Principal against him on December 19, 1974. On 22nd December, 1974, the Managing Committee resolved as contemplated in Regulation 35 to direct the Manager as Enquiry Officer to enquire into the matter and report. The procedure that the Enquiry Officer had to observe in the matter is laid in Regulation 36 (1). In short, this requires the charge-sheet to be served upon the teacher concerned; an opportunity being given to him to submit his written statement of defence within three weeks ; an oral enquiry to be held wherein the person charged be permitted to cross-examine the witnesses and to give evidence in person and also to examine such witnesses on his behalf as may be relevant. In the instant case, this entire procedure prescribed under Regulation 36 was observed in breach only. The enquiry officer did not issue any charge-sheet, nor did he frame any charges ; the respondent no. 3 was not required by him to submit the written statement within the prescribed period of three weeks, nor were the witnesses examined in his presence or the respondent given the chance to cross-examine them. The statement of the respondent was not recorded, nor was any defence taken on his behalf. An attempt was made for the petitioner to urge that the detailed procedure prescribed as aforesaid could be waived in view of clauses (2) and (3). This is unsustainable. Nothing on record suggests that the respondent no. 3 had absconded or that for other reasons it was impracticable to communicate with him. The application for medical leave made by the respondent to which the petitioner's learned counsel refers were made on February 5 and February 7, 1975. These were for granting of medical leave for the period of February 5 to February 11, 1975. These were accompanied by a medical certificate. It cannot be presumed that the respondent would not have appeared before the Enquiry Officer in case the enquiry had proceeded, as contemplated in the Regulation 36 (1). It is not shown either that the Enquiry Officer reported that the respondent was non-cooperative or that for that any other reason, it was impracticable to communicate with him. No justification is consequently made out to dispense with the essential requirement. Learned counsel laid stress on contending that the Managning Committee had required the respondent no. 3 to appear before it which he did on February 16, 1975 and that District Inspector of Schools had also given notice to him saying that he might adduce further evidence, if any, or cross-examine the witnesses for the Management, if he so desired, but the respondent no. 3 chose not to avail of the same. Upon consideration of the entire scheme envisaged in Regulations 35, 36 and 37 it is manifest that the Managing Committee comes in at the second stage so far as the conduct of the enquiry is concerned. Regulation 37 contemplates that the Committee would consider for itself after hearing the person charged as to whether the report submitted by the Enquiry Officer could be acted upon and decide in this manner the punishment, if any, that might be imposed. The Committee of Management is by itself not made a substitute for the enquiry that has to take place in conformity with the regulations 35/36. I am conscious of the general principle that where an authority is empowered to inflict punishment after enquiry, it may, in the absence of anything to the contrary, delegate the conduct of the enquiry to some officer or hold enquiry itself and decide upon the punishment being given. But that general principle dose not govern in the instant case in view of the specific provisions contained in Regulations 35 to 37. In view of the Regulation 37, the Committee takes up the matter on receipt of the report of the proceedings and the recommendation from the inquiring authority. The initial decision in regard to the guilt has to be of the Enquiry Officer arrived at in the manner laid down. This seems to be devised on the principle of checks and balances, the provision incorporated in Regulation 37 is in the nature of that ensuing upon a second show cause notice. In the Hindu Nation School Management Trust Society v. Dy. Director of Education, 1980 AWC 707 (Full Bench), a Full Bench of this Court expressed the view that in view of the Regulation 35. it is mandatory that an enquiry, on the basis of charges framed, is conducted In the case of a teacher, though it is of no consequence whether it is done by a named officer or by a sub-committee. In that case, the Committee of Management had entrusted the enquiry to a sub-committee Which submitted its report. The Committee of Management thereafter resolved approving the report of the sub-committee and decided to dismiss the teacher concerned from service. The contention raised was that in view of the Regulation 35, the enquiry could be held only by the Head Master or Principal or Manager as the Enquiry Officer, and not the sub-committee. This was repelled. This decision is not an authority for the proposition advanced by the petitioner's learned counsel that the Committee of Management could make the enquiry itself thereby transgressing, evidently, the provision contained in Regulations 35 to 37. In the Full Bench case as well, there was an enquiry report before the Committee of Management and the action taken was based thereon since the Committee found itself in agreement with this report. On the same principle, the fact that there was notice given by the District Inspector of Schools to the respondent no. 3 before according his approval to the proposal of the Committee of Management to dismiss him from service, does not take the place of enquiry contemplated in Regulations 35/36. The notice that was given by him was in pursuance of the requirement in this behalf under section 16-G (1) (b) and this is not to be confused with the holding of the enquiry by an Enquiry Officer and the consideration thereafter by the Committee of Management followed by approval of the Inspector.;