JUDGMENT
R.H. Zaldi, J.
1. By means of this petition under Article 226 of the Constitution of India, petitioner, the Committee of Management Arya Kanya Pathshala Intermediate College. Badshahnagar. Lucknow, prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 22.5.1982 passed by Regional Inspectress of Girls Schools. VIth Region. Lucknow, the resolution of Committee of Management to terminate the services of respondent No. 5, the order dated 11.2.1984 passed by Joint Director of Education Government of U. P., Allahabad, dismissing the appeal filed by the petitioner against the order dated 22.5.1982 under Section 16G of the U. P. Intermediate Education Act (for short the ‘Act’) and the consequential orders dated 1.3.1984 and 20.3.1984 contained in Annexures-31 and 32 to the writ petition, passed by respondent No. 2.
2. Facts of the case as borne out from the record of the case are that respondent No. 5 was appointed as C.T Grade (P.T.) teacher in the college, after following the procedure prescribed for the same, on one year’s probation. On 7.7.1980 the said respondent joined her duties in the College. Before completion of one year, Principal of the College submitted a report against respondent No. 5 that he absented from duty from 18.4.1980 to 21.9.1980 without leave, it would, therefore, be not in the interest of institution, to confirm her services. On the basis of the said report dated 24.1.1981. Committee of Management of the College, on 29.5.1981 resolved to terminate the services of respondent No. 5. Papers relating to the aforesaid proposal to terminate the services of respondent No. 5 were submitted before Regional Inspector of Girl Schools-respondent No. 2. The respondent No. 2 in turn asked the management regarding details of the charges against respondent No. 5. The management submitted the record of the case to respondent No. 2, the respondent No. 2 thereafter issued a show cause notice/charge-sheet to respondent No. 5 calling upon her to submit her explanation, failing which it was stated, that the charges shall be deemed to have been proved. Respondent No. 5 on receipt of the charge-sheet/notice, submitted her reply on 31.12.1981. The respondent No. 2, thereafter, directed the petitioner to pay her salary and permit her to discharge her duties. On the other hand, petitioner sent reminder to respondent No. 2 to accord approval of the termination of respondent No. 5. The resolution to terminate the services of the respondent No. 5 was received in the office of respondent. The respondent No. 2, however, for the reasons recorded in her order, disapproved the resolution passed by the Committee of Management of the college, vide order dated 22.5.1982. It was held that on expiry of the period of probation, services of respondent No. 5 stood confirmed, and could not be terminated except in accordance with law. Challenging the validity of the order passed by respondent No. 2, petitioner filed an appeal before respondent No. 1, the respondent No. 1 sent for comments of respondent No. 5 and also for the record of the case from the office of respondent No. 2. On 24.11.1982, respondent No. 5 submitted her comments on the appeal filed by the petitioner against her. After hearing the parties and perusing the record of the case, respondent No. 1 dismissed the appeal filed by the petitioner and confirmed the order passed by respondent No. 2, holding that services of respondent No. 5 were terminated without following the procedure prescribed under the law. It was held that the order of termination under the facts and circumstances of the case, was an order of punishment, which was passed without following the procedure prescribed under law and that services of respondent No. 5 on expiry of the period of probation stood confirmed. Against the orders passed by respondent No. 1 dated 11.2.1984 and the order passed by respondent No. 2 dated 22.5.1982, present petition was filed in this Court.
3. This Court on 7.5.1984 admitted the writ petition and also stayed the implementation of the impugned order, till next date fixed. Respondent No. 5 filed counter-affidavit and also applied for vacation of the interim order. After hearing the learned counsel for the parties, interim order dated 7.5.1984 was modified. Operative portion of the order dated 14.11.1984 is quoted below:
“In this situation, the interim order dated 7.5.1984 requires to be modified. It is accordingly directed that although the Committee of Management would not be required to reinstate the opposite party No. 5 to her original post, it shall nevertheless be required to pay to opposite party No. 5 every month beginning from 1.12.1984 the salary which opposite party No. 5 was being paid prior to 11.7.1981. She shall be continuously paid the salary every month regularly till the disposal of this writ petition in accordance with the provisions of U. P. High School and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act. 1971. Opposite party No. 5 will also be entitled to any benefit in the revision of scales of pay etc. which in the meantime might have taken place or may take place.”
4. Learned counsel for the petitioner vehemently urged that the Committee of Management terminated the services of respondent No. 5 well within the period of probation. There was no justification for the respondent No. 2, not to approve resolution passed by the petitioner and to insist upon it to permit respondent No. 5, to continue to work in the Institution.
5. On the other hand, learned counsel appearing for respondent No. 5 submitted that resolution to terminate her services was passed on the basis of the report of the Principal dated 14.4.1981, which was on the face of it, stigmatic. It was urged that resolution to terminate the services of respondent No. 5 was passed on the basis of the alleged misconduct, and negligence of respondent No. 5. It was, therefore, by way of punishment, which could not be awarded without following the procedure prescribed under the Act and the Regulation framed thereunder. It was further submitted that respondent No. 5 was permitted to work beyond the period of probation, she was also paid her salary till August, 1981 by the petitioner. Therefore, the services of respondent No. 5 stood confirmed in view of the Regulation II of Chapter III of the Regulations framed under the Act. Authorities below, therefore, rightly refused to accord approval to the termination of the services of respondent No. 5 and rightly dismissed the appeal filed by the petitioner.
6. I have considered the submissions made by the learned counsel for the parties and also perused the record of the case thoroughly.
7. It is not disputed that respondent No. 5 was appointed on one year’s probation on 7.7.1980. During the aforesaid period she discharged her duties. On 24.4.1981, Principal of the College submitted a report against respondent No. 5 that she absented from duty from 18.4.1980 to 21.9.1980 without leave. It was also reported that it, would not be in the interest of the institution to regularise the service of respondent No. 1. The report of the Principal was adopted and a resolution was passed by the Committee of Management to terminate the services of respondent No. 5 on 24.4.1981. Copies of the letter of Principal and the report, are contained in Annexure-5 to the writ petition, which contain the allegations of misconduct, negligence and inefficiency against the respondent No. 5.
8. Committee of Management, thereafter, requested respondent No. 2. to accord approval for terminating the services of respondent No. 5. Respondent No. 2, on receipt of the letters/papers from the Committee of Management, wrote to the Manager of the College on 3.6.1981 to submit details of the irregularities alleged to have been committed by the respondent No. 5 and submit, the record of the case. In compliance of the orders passed by respondent No. 2, record of the case was submitted by the petitioner to respondent No. 2, The respondent No. 2 vide her letter dated 13.1.1981 called upon the Manager of the College, to submit the details of the charges levelled against respondent No. 5. Petitioner, on the other hand, wrote to respondent No. 2 that the record of the case was already submitted in the office of respondent No. 2 on 27.5.1981. The same could be perused and appropriate orders could be passed, as till then approval was not granted by respondent No. 2 to the termination of the services of respondent No. 5. Respondent No. 2 vide letter dated 8.4.1982 asked the petitioner to make payment of the salary of respondent No. 5 and to permit her to discharge her duties. In the meanwhile, several letters were exchanged between the petitioner and respondent No. 2. The petitioner insisted upon the grant of approval to the termination of services of respondent No. 5. On the other hand, respondent No. 2 insisted upon for the payment of salary and to permit respondent No. 5 to discharge her duties and ultimately, it was on 22.5.1982 that the request of the petitioner for according approval to the termination of services of respondent No. 5 was turned down by the respondent No. 2 on the ground that on expiry of period of probation, the services of respondent No. 5 shall be deemed to have been confirmed automatically, and that resolution No. 4 dated 5.5.1982 for payment of salary in lieu of one month’s notice, was invalid- It was on 8.4.1982 that the request for grant of approval was virtually rejected and the Management was asked to pay salary to respondent No. 5 and to permit her to perform her duties. The resolution No. 4 dated 5.5.1982 was, thus, disapproved vide order dated 22.5-1982. Petitioner, thereafter, resolved to challenge the validity of the order passed by respondent No. 2 by filing the appeal against the said order before respondent No. 1. Respondent No. 1 after hearing the parties and perusing the record affirmed the order passed by respondent No. 2 and dismissed the appeal by his order dated 11.2.1984.
9. From the above noted facts, it is apparent that within the period of probation prior approval was not granted by respondent No. 2, to the resolution passed by the petitioner to terminate the services of respondent No. 5, nor her services were terminated within the period of probation. The question, therefore, which falls for consideration is as to whether under the aforesaid facts and circumstances, services of respondent No. 5 shall be deemed to have been confirmed.
10. Section 16G of the Act provides as under :
“16G. Conditions of service of Head of Institution, teachers, and other employees :
(1) Every person employed in a recognised Institution shall be governed by such condition of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations, shall be void. (2) Without prejudice to the generality of the powers conferred by subsection (1), the Regulations may provide for :
(a) the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry of trial in any criminal case for an offence involving moral turpitude, and the emoluments for the period of suspension and termination of service with notice ;
(b)
(c)
(d)
(e)
(13) (a). No Principal, Head Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emolutions, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by Regulations.”
11. Regulations framed under Section 16G of the Act are contained in Chapter III. Relevant Regulations are also reproduced below :
Chapter III, conditions of service (Section 16G). Appointment, Probation, Confirmation and Promotion.
7. A person selected for substantive appointment against a clear vacancy shall be placed on probation from the date of joining duty.
8. The period of probation for a head of institution or teacher, whether appointed by direct recruitment or promotion, shall be one year.
(2) Such period shall commence-
(a) in relation to a teacher deemed to be appointed in a substantive capacity under the Uttar Pradesh Secondary Education (Removal) of Difficulties (Fifth) Order. 1976 from November 27. 1976.
(b) in relation to any other person from the date of this substantive appointment.
9. A person placed on probation shall be confirmed if he fulfills the requirements of Regulation 9 above, as worked with diligence has otherwise provided himself fit for the posl for which he was recruited and his integrity is certified.
10. Unless before the expiry of the period of probation, the service of a Headmaster, Principal or teacher is terminated or action is taken, to dismiss, discharge or remove him or reduce him in rank or in the case of Head-master or Principal the period of probation is extended under Regulation 12, following, he shall be confirmed on the post and in the grade at the end of his probation.
12. Regulation 25 provides that the services of temporary employee other than a probationer during the term, may be terminated at any time by one month’s notice or by paying one-month’s salary in lieu thereof.
13. Regulation 35 provides for the punishments which may be awarded to the permanent employees of the institutions other than teachers.
14. Regulations 36 and 37 provide procedure for awarding punishments to the teachers and other employees of the institution.
15. Regulation 44 provides that the District Inspector of Schools/ R.I.G.S. will take decision regarding approval or disapproval of the actions taken by the Management and against the teachers or employees within six weeks from the date complete papers are received in their offices and to communicate the same within the aforesaid time to the Management.
16. It is thus apparent from the aforesaid statutory provisions that the services of a temporary employee other than a probationer could be terminated by the Management by giving one month’s notice or paying one month’s salary in lieu thereof. The termination simpliciter does not cast stigma against the employee, therefore, the termination simpliciter does not require prior approval of District Inspector of Schools. A reference in this regard may be made to the decision of this Court in Him Lal Gaur v. D.I.O.S., Azamgarh and others, 1981 UPLBEC 226 and Janta Vidyalaya Society, Deoria and another v. Deputy Director of Education VIIth Region and others, 1983 UPLBEC 622. However, the termination by way of punishment is permissible only with prior approval of the District Inspector of Schools. A reference in this regard may be made to the decision of this Court in Srikant v. D.I.O.S., Deoria and others, 1981 UPLBEC 138. It is also well-settled in law that the services of a probationer could be terminated after giving him an opportunity particularly if his services are terminated after casting stigma on his conduct as held by this Court in Srikant’s case (supra). Thus, the provisions of Section 16G (3) (a) also apply to probationers. The notice of termination is required to be given to him after obtaining prior approval of the District Inspector of Schools. A reference in this regard may be made to a Full Bench decision of this Court in Managing Committee, Sohan Lal Higher Secondary School v. Shiv Dutt Gupta and another, 1974 ALJ 465 (FB), and also to the following decisions :
1. Habib Mian and another a. M. Ahmad and another, 1968 ALJ 225.
2. Beulsh Cutting v. Chairman, Board of High School, 1966 ALJ 58.
3. Roman Prefecture and another v. D.D.E. and others, 1970 ALJ 1402.
4. Khalil Ahmad v. Manager, Abdul Karim Khan and others, 1973 AIR 287.
17. It is also well-settled in law that decision of the District Inspector of Schools/R.I.G.S. regarding approval and disapproval of the resolution of termination is to be communicated within six weeks from the date complete papers are received in the office of the D.I.O.S./R.I.G.S.. but in case of failure to take decision within the aforesaid time, there is no provision of automatic approval or disapproval as has been held by this Court in Bhaironath Madhyamik Vidyalaya v. Markandey Singh and another, 1976 AWC 679. Further as stated above provisions of Regulation 25 have got no application in the present case as respondent No. 5 was appointed on probation. The Management cannot terminate the services of a probationer in exercise of powers under the Regulation 25 without prior approval of the D.I.O.S. or R.I.G.S. as the case may be. A reference in this regard also may be made to the decision in Srikant Chaubey’s case (supra).
18. In the present case, admittedly the respondent No. 5 was appointed on probation on 7.7.1980. It was on 24th January. 1981 that the Principal of the College submitted a report against respondent No. 5 and recommended for the termination of her services. The said report contained serious allegations/charges against her. The Committee of Management in its meeting held on 29.5.1981 adopted the report submitted by the Principal and resolved to terminate the services of respondent No. 5 meaning thereby the services of respondent No. 5 were sought to be terminated on the allegations of misconduct and inefficiency. The papers relating to the proposal of termination of services of respondent No. 5 were submitted before the R.I.G.S. Said papers were not found to be complete. The respondent No. 2, therefore, asked the management to submit complete papers and to supply the details of the charges on the basis of which the services of respondent No. 5 were sought to be terminated. The management thereafter submitted the record of the case and other relevant papers.
19. Under the aforesaid facts and circumstances, the approval could not be granted or refused by the Regional Inspectress of Girls School without affording an opportunity of hearing to respondent No. 5, therefore, show cause notice was issued to the respondent No. 5 to explain the charges levelled against her failing which it was directed that the charges shall be deemed to be proved. Meanwhile respondent No. 5 was permitted by the Management to continue in service and she was also paid her salary till August. 1981, i.e., beyond the period of probation. Thus, in terms of provisions of Regulation 11, her services stood confirmed, as held by this Court in Khalil Ahmad v. Manager. Abdul Karim Khan and others, AIR 1973 All 287. The resolution to terminate the services of the petitioner on the basis of report submitted by the Principal was apparently stigmatic, which amounted to punishment. There was no one month’s notice or payment of salary in lieu thereof to terminate the services of respondent No. 5. The respondent No. 2, therefore, was right in holding that the resolution to terminate the services of respondent No. 5 was illegal and inoperative. She, therefore, rightly disapproved the said resolution aide order dated 22,5.1982. The respondent No. 1 has also rightly dismissed the appeal filed by the petitioner.
20. It is well-settled in law that if the termination of a government employee, temporary or probationer is founded on misconduct, negligence, inefficiency or other disqualification, then it amounts to an order of punishment, and requirements of Article 311 of the Constitution of India are required to be fulfilled before such an order is passed. A reference in this regard may be made to P.L. Dhingra v. Union of India, AIR 1958 SC 36 ; State of Bihar v. Gopikishore Prasad, AIR 1960 SC 689 and 1974 AIR 2192 SC.
21. I do not find any illegality or infirmity in the impugned orders passed by the authorities below. The respondent No. 1 in his order dated 11.2.1984 already observed that it will be open to the petitioner to pass fresh orders after following the procedure prescribed under the law if the services of respondent No. 5 are still sought to be terminated. No fresh or further direction in this regard is required to be given by this Court.
22. No case for interference under Article 226 of the Constitution of India is made out.
23. Writ petition fails and is accordingly dismissed with cost.