- (1.) ASHOK Bhushan, J. Heard Sri Surendra Prasad, learned Counsel for the petitioner and Sri N. L. Pandey learned Counsel appearing for the respondent No. 3 and also the learned standing Counsel. Counter and rejoinder affidavits have been filed. Supplementary affidavit has also been filed by the petitioner dated 1-5-2005 to which supplementary counter-affidavit and supplementary rejoinder affidavit have also been filed. As prayed by Counsel for both the parties the writ petition is being finally decided.
(2.) BY this writ petition the petitioner has prayed for quashing the order dated 12-11-1999 passed by the Joint Director of Education, XII Region, Moradabad. A writ of mandamus has also been sought restraining the respondents No. 1 and 2 from reinstating the respondent No. 3 as Head clerk of the institution. Brief facts of the case necessary for deciding the writ petition are; The respondent No. 3 had been working as a Head clerk in Adarsh Inter College, Umari District Bijnor. The election of the Committee of Management was held by the Authorised Controller appointed by this Court on 3-1-1995 in which one late Hari Singh was elected as Manager. The District Inspector of Schools approved the constitution of the Committee of Management. Writ petition No. 13339 of 1995 filed by one Gopal Singh, challenging the constitution of the Committee of Management, was dismissed on 16-1- 1995 holding that the aggrieved party may challenge the election proceedings in civil suit or election petition. A civil suit No. 505 of 1995 was filed by Duilip Singh and others which was decreed on 21-8- 1996 declaring the election dated 3-1-1995 illegal. Against the judgment dated 21-8-1996 civil appeal was filed by the Manager Hari Singh which was allowed in part by the appellate Court vide its judgment dated 24-9-1996. The appellate Court declared the election dated 3-1-1995 illegal but further directed that the Authorised Controller (S. D. M. Dhampur) to hold election. A second appeal No. 900 of 1996 was filed before this Court in which after hearing the parties following order was passed on 30th October, 1996: "in this case counter and rejoinder affidavits have been exchanged and Sri A. K. Yog, learned Counsel has been heard at length. However, the arguments of Sri Khalil Ahmad, learned Counsel appearing for the caveator/respondents have not been concluded. List this case on 8-11-1996 for further hearing. In the mean time the office is directed to summon the lower Court records through the special messenger at the cost of appellant who will deposit the necessary charges within three days. The record of writ petitions Nos. 32248 of 1994 and 17414 of 1994 shall also be produced on the next date of hearing of the case. Shri Khalil Ahamad has stated that the S. D. M. has taken over the charge in pursuance of the decree passed by the lower appellate Court, if it is so then the S. D. M. will continue as Authorised Controller till next date of listing of the case but the election as directed by the Courts below shall not be held till next date of listing of the case. However, in any case status quo as today shall be maintained. " The interim order dated 30-10-1996 was extended by the Court from time to time. The respondent to second appeal filed an application in the Court that action be taken against the Authorised Controller for disobeying the order dated 30th October, 1996 and the subsequent order on which application no contempt notice was issued by this Court. Subsequently, the Sub Divisional Officer also wrote to the District Inspector of Schools on 18-9-1997 stating that in past Authorised Controller has already written a letter that he never took the charge as Authorised Controller and the Committee of Management has been functioning. The Authorised Controller opined that in view of the impugned order dated 30-10- 1996 passed by the High Court the charge was never taken and specific direction be given as to whether on 30th October, 1996 Authorised Controller was working.
(3.) THE Committee of Management which was functioning in the institution passed resolution dated 28- 2-1997 deciding to suspend the respondent No. 3 on several charges including the charges of removing the records of the Institution, and attacking the officiating Principal in the college premises. A charge- sheet dated 28-2-1997 was also issued to the respondent No. 3 containing 12 charges. THE suspension order darted 1-3-1997 was also issued to the respondent No. 3. Immediately after suspension one serious incident took place in the premises of the Institution. THE manager of the institution Hari Singh while he went to the institution to stop certain persons from making unauthorised construction on the college land, was killed. A First Information Report was lodged by the son of Manager naming the respondent No. 3 also as one of the accused. Respondent No. 3 was arrested and had sent to jail. THE Committee of Management again passed a resolution on 4-4-1997 for obtaining approval of suspension of the respondent No. 3. THE District Inspector of Schools approved the suspension vide order dated 26- 4- 1997. A notice was given to the respondent No. 3 by the Manager dated 7-7-1997 asking the respondent No. 3 to submit a reply to the charges. THE letter further stated that in the event the respondent No. 3 does not reply it will be assumed that he accepts the charges and papers for his removal will be sent to the District Inspector of Schools. A letter was sent by the respondent No. 3 dated 29-7-1997 addressing the Manager as alleged Manager and asking certain documents to be shown. THE said letter was immediately replied by the Manager by her letter dated 2-8-1997. THE letter further stated that if the respondent No. 3 wanted to peruse any document he may appear before the Manager by giving prior information to the Principal and inspect the document. Notice was also published in the news paper asking the petitioner to submit reply. THE letter dated 2-8-1997 of the Manager was replied by the respondent No. 3 and he stated that he be given copy of the record instead of asking him to inspect the record. In the said letter again the Manager was addressed as alleged Manager. Letter dated 23-8-1997 was also sent to the respondent No. 3 and several copies of documents were also sent. THE Committee of Management passed resolution on 19-9-1997 informing the District Inspector of Schools that no reply has been submitted by the respondent No. 3 to the charge-sheet. THE charges have to be accepted since in spite of opportunity no reply is being given, a decision was taken to dismiss the respondent No. 3 from service and the Manager forwarded the papers to the District Inspector of Schools for approval. THE District Inspector of Schools vide his order dated 1-5-1998 approved the resolution of the Committee of Management dated 19-9-1997 dismissing the respondent No. 3 from service. Against the order of the District Inspector of Schools an appeal was filed by the respondent No. 3 before the Joint Director of Education. THE Joint Director of Education vide his order dated 12-11-1999 allowed the appeal and set aside the order dated 1-5-1998 and directed reinstatement of the respondent No. 3 on his post. THE said order dated 12-11-1999 has been challenged in this Court by the Committee of Management. This Court passed an interim order on 2-12-1999 in this writ petition directing the reinstatement of respondent No. 3. Against the order dated 2-12-1999 an Special Appeal was filed by the Committee of Management and the Special Appellate Court vide its judgment dated 12- 1-2000 set aside the interim direction issued in the writ petition for reinstatement of respondent No. respondent No. 3. No further order was passed in this writ petition. THE respondent No. 3 has not been reinstated or paid any amount. A subsequent fact which took place during the pendency of the writ petition deserves to be specifically noted. The respondent No. 3 who was accused in the murder of Manager was charge- sheeted and Session Trial No. 416 of 1997 proceeded in the Court of Additional Sessions Judge, Court No. 3, Bijnor. The Additional Sessions Judge convicted the respondent No. 3 under Section 302/149 I. P. C. for life imprisonment. Respondent No. 3 was also convicted for the offence under Section 148 and 307 I. P. C. and was sentenced for two years and 10 years' rigorous imprisonment respectively. All the sentences were directed to run concurrently. Criminal Appeal No. 1508 of 2003 has been filed by the respondent No. 3 in which following order was passed by this Court: "admit. Issue notice. Perused the order of the Sessions Judge. The appellants were on bail during trail and they had not misused the liberty. Considering the facts and circumstances of the case and pending appeal appellants Rajendra Singh, Kailash and Devendra Singh convicted in S. T. No. 416 of 1997 shall be released on bail on each of them executing a personal bond and on furnishing two sureties each in the like amount to the satisfaction of the Court concerned. Until further orders realisation of fine shall also remain stayed. ";