V.K.SHUKLA, J. - (1.) MANAGING committee of Jawahar Singh Inter College, Sutiyani, Etawah has approached this Court, questioning the decision dated 19.09.2008 taken by Regional Joint Director of Education, Kanpur, allowing appeal preferred on behalf of respondent No. 4, Karan Singh.
(2.) BRIEF background of the case is that petitioner had been performing and discharging duties as Head Clerk in the institution concerned. The Managing Committee of the institution proceeded to initiate disciplinary proceedings against him, and based on the same proceeded to pass resolution for dispensing with the services of Karan Singh. Said papers were transmitted to the District Inspector of Schools for the purposes of according approval. Said termination was approved by the District Inspector of Schools on 14.11.2007. Against the said order, respondent Karan Singh preferred writ petition No.59500 of 2007. This court on 05.12.2007 quashed the aforesaid order, as the same was passed in violation of the principles of natural justice. Operative portion of the order is being quoted below: "A perusal of the order dated 14.11.2007 does not indicate that after receiving the resolution dated 5.6.2007, the District Inspector of Schools has given any notice to the petitioner as contemplated under Regulation 44-A of the U.P. Intermediate Education Act, 1921. the petitioner has also brought on record the order dated 01.11.2007 of the District Inspector of Schools addressed to the Manager (Annexure-11 to the writ petition) asking the petitioner to ensure joining in the institution. In the said letter there is not even reference of proposal of dismissal received from the Committee of Management. From the perusal of the materials on record, it is clear that the order was passed in violation of principles of natural justice which deserves to be set aside and is hereby set aside. It is, however open for the District Inspector of schools to issue notice to the petitioner and take appropriate decision expeditiously preferably within three months from the date of production of a certified copy of this order." Thereafter, the District Inspector of Schools proceeded to pass orders on 11.04.2008 and again approval was accorded to the said resolution. Against the said order Karan Singh preferred appeal. Said appeal was rejected by the appellate authority by holding that said appeal was not maintainable. Against the said order, again writ petition No.27244 of 2008 was filed by Karan singh. This Court quashed the appellate order and directed the Regional Joint Director of Education to consider the appeal on merits. Thereafter, the Regional Joint Director of Education, Kanpur Region, Kanpur on 11.09.2008 has passed order allowing appeal. At this juncture present writ petition has been filed. Counter and rejoinder affidavits have been exchanged, and present writ petition has been taken up for final hearing and disposal with the consent of the parties. Sri T.P. Singh, Senior Advocate, assisted by Sri Yogish Kumar Saxena, Advocate, contended with vehemence that in the present case appellate authority has totally misdirected itself in passing the impugned order. Entire exercise is based on whims and fancies. The order in question has been passed without adverting to the real issue involved i.e. as to whether enquiry held had been free & fair or not and as to whether charges levelled against Karan Singh had been established by evidence brought on record or not and the punishment awarded was commensurate to the charges levelled against him or not, as such impugned order in question is liable to be quashed. Coupled with this, it was always open to the appellate authority to make additional enquiry as per Regulation 44-A of chapter III of the Regulations framed under U.P. Act No. 2 of 1921. Thus, the appellate authority is also enjoined upon to make additional enquiry in case it so desires, but here in the present case in mechanical manner order has been passed, as such this is a glaring case of failure to exercise jurisdiction vested in the authority concerned. Countering the said submission, Sri Ramesh Upadhyaya, learned counsel representing Karan Singh, contended that entire enquiry proceedings in the present case is farce and merely paper work, inasmuch as, by the order of the Joint Director of Education, Managing Committee was restored and on the same day charge sheet is alleged to have been issued and thereafter in hot haste even without ensuring service of charge sheet entire disciplinary proceeding had been concluded, thus breaching principle of natural justice with impunity, and as such on admitted facts of the case no interference be made and the writ petition is liable to be dismissed. After respective arguments have been advanced, factual position which emerges in the present case is that on earlier occasion, District Inspector of Schools had proceeded to accord approval on 14.11.2007. On writ petition being filed against the said order, this Court on 05.12.2007 clearly and categorically directed to issue fresh notice to the head Clerk of the institution and take appropriate decision expeditiously, preferably within three months. Thereafter, District Inspector of Schools on 11.04.2008 again proceeded to accord approval to the resolution passed by Managing Committee. Appeal against the said order was dismissed as not maintainable. Said order was again questioned before this Court. This Court quashed the order of the appellate authority holding that the appeal was maintainable and the appellate authority was directed to decide the matter. Thereafter appeal in question has been decided. A perusal of the appellate order clearly reflects that in first four pages, running from page Nos. 50 of 55 to the paper book, entire facts of earlier round of litigation have been given and thereafter appellate authority proceeds to examine the matter under the heading "Samiksha". The tenor of the order passed by the appellate authority clearly reflects that at no point of time any serious exercise has been undertaken by it, inasmuch as, the appellate authority has not at all endeavoured to see: (i) as to whether disciplinary proceedings held were free and fair or not and the principles of natural justice had been complied with or not, (ii) as to whether charges levelled stood substantiated by material evidence available on record, (iii) as to whether punishment awarded was commensurate to the charges levelled against Karan Singh or not.
(3.) THE appellate authority has proceeded to mention without giving any reason that the charges levelled in the charge sheet and the evidence adduced are not enough to substantiate the said charges. The appellate authority has not at all discussed as to what were the charges and what evidence was led by the Committee of Management to substantiate the charges and as to under what circumstances the said evidence was not enough to bring home the said charges. The appellate authority has proceeded to mention that various charges were not in the domain of the Head Clerk without mentioning as to in respect of which charge said mention was made. The appellate authority has proceeded to mention that relevant provisions as contained under the U.P. Act No. 2 of 1921 and the Regulations framed thereunder have not been complied with and principles of natural justice have been violated. Totally vague and evasive averments have been mentioned without discussing and giving details as to in what way and manner principles of natural justice have been breached and on account of the same prejudice has been caused to the delinquent employee. The fact of the matter is that in the present case Regional Joint Director of Education has clearly failed to discharge duty cast upon him while deciding the appeal. Regulation 44-A gives wide authority to the appellate authority, and the appellate authority has power to confirm, rescind or modify the order under appeal. Further the appellate authority has been vested with the authority that in case it considers it expedient, then it can also hold additional enquiry. This particular Regulation shows that wide amplitude of the power is vested in the appellate authority and it can be invoked either on the appeal preferred by the delinquent employee or the Management of the institution. The appellate authority has considered nothing in the present case, and said decision is merely an eye wash. The arguments advanced by Sri Ramesh Upadhyaya before this Court is that the copy of the charge sheet was not served upon his client and disciplinary proceedings were undertaken in hot haste, violating principles of natural justice, and in fact it was malicious proceeding without any material. All these aspects of the matter ought to have been examined by the Regional Joint Director of Education while deciding the appeal, instead of passing order on surmises and conjectures. In the facts of the case, this is glaring case of failure to exercise jurisdiction vested in the appellate authority. Consequently, writ petition succeeds and is allowed. The appellate order dated 19.09.2008 is hereby quashed and set aside and the matter is remitted back to the Regional Joint Director of Education (secondary), Kanpur Region, Kanpur with direction to decide the appeal afresh within a period of two months from the date of receipt of a certified copy of this order, after affording opportunity of hearing to the nominee of Management and to delinquent employee. While deciding the appeal afresh the Joint Director of education shall advert to; (i) as to whether enquiry so conducted by the Managing Committee was free and proper or not and the principles of natural justice were complied with or not? (ii) as to whether charges levelled against Karan Singh were substantiated with evidence on which reliance has been placed by disciplinary authority or not? (iii) as to whether punishment which has been awarded is commensurate to the charges levelled or not? ;