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Court No.18
CIVIL MISC. WRIT PETITION NO.28417 OF 2009
Chaya Verma
Vs.
State of U.P. & Ors.
Hon'ble Sudhir Agarwal, J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri
Siddharth Khare for the petitioner and learned Standing Counsel for the
respondents.
2. The petitioner was working as Headmistress of a Primary School,
Mehandipur, Block & District Kannauj. By means of the order dated 21st
March, 2009 the District Basic Education Officer, Kannauj imposed
punishment of reduction in rank by reducing her rank from the post of
Headmistress to Assistant Teacher on the certain allegations constitute
misconduct.
3. The learned Senior Counsel for the petitioner contended that a
major penalty has been imposed without holding any enquiry. Initially the
impugned order was kept in abeyance and thereafter by means of the
impugned order dated 13th may, 2009 the same has been given finality
by the District Basic Education Officer holding that the charges are
proved as the petitioner is not able to place any defence. It is contended
that the procedure adopted by the respondents is wholly illegal and
arbitrary, inasmuch as, the penal order of reduction in rank could not
have been passed without holding regular departmental enquiry against
the petitioner and giving adequate opportunity of hearing. It is further
submitted that it is incumbent upon the respondents to hold departmental
enquiry where they were supposed to prove charges and thereafter only
the petitioner was required to place defence. No such procedure was
adopted, therefore, the impugned order is wholly illegal.
4. In the counter affidavit filed by the respondents they have placed
reliance upon certain show cause notice issued to the petitioner and it is
submitted that the said show cause notice, whereby the petitioner was
required to explain his conduct, constitute sufficient opportunity.
5. However, it is not disputed that neither any formal charge sheet
was issued to the petitioner nor any oral departmental enquiry in
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accordance with the known procedure was followed. The matter is of a
junior primary school maintained by Board of Basic Education. No order
of major penalty could have been imposed without following the
principles of natural justice and the known procedure for departmental
enquiry in the matter.
6. For the Headmistress and teachers and other staff of the Basic
Schools established by the Board, the procedure for departmental
enquiry contained in U.P. Basic Education Staff Rules, 1973, hereinafter
referred to as “1973 Rules”, and Rule 5 sub rule (3) thereof reads as
under:
“The procedure laid down in the Civil Services (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.”
7. In view of the above, the procedure for departmental enquiry
prescribed in U.P. Government Servant (Discipline & Appeal) Rules,
1999 comes into picture and becomes applicable for departmental
proceedings against the teachers of school concerned. The departmental
enquiry, in the case in hand admittedly has not been held according to
the above procedure.
8. Holding of oral enquiry is mandatory before imposing a major
penalty as held by the Apex Court in State of U.P. & another Vs.
T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of
this Court in Subhash Chandra Sharma Vs. Managing Director &
another, 2000 (1) U.P.L.B.E.C. 541.
9. The question as to whether non holding of oral inquiry can vitiate
the entire proceeding or not has also been considered in detail by a
Division Bench of this Court (in which I was also a member) in the case
of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667
and the Court clearly held that non holding of oral inquiry is a serious
flaw which vitiates the entire disciplinary proceeding including the order
of punishment. This Court has said in paras 10 and 11 of the judgement
as under:
“10. ———– Non holding of oral inquiry in such a case is a
3serious matter and goes to the root of the case.
11. A Division Bench of this Court in Subhash Chandra
Sharma Vs. Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question as to whether
holding of an oral inquiry is necessary or not, held that if no
oral inquiry is held, it amounts to denial of principles of natural
justice to the delinquent employee. The aforesaid view was
reiterated in Subhash Chandra Sharma Vs. U.P.
Cooperative Spinning Mills & others, 2001 (2) UPLBEC
1475 and Laturi Singh Vs. U.P. Public Service Tribunal &
others, Writ Petition No. 12939 of 2001, decided on
06.05.2005.”
10. In the result the writ petition is allowed. The impugned order dated
13.5.2009 (Annexure 20 to the writ petition) is hereby quashed. The
petitioner shall be entitled for all consequential benefits.
11. However, this order shall not preclude the respondents from
passing a fresh order in accordance with law.
Dated.27.01.2010
KA