JUDGMENT
D.K. Seth, J.
1. By an order dated 24.7.1997 the writ petition was dismissed as having become infructuous by efflux of time. On 5.8.1997 an application for restoration has been filed. Sri Shashi Nandan submits that since he was prevented by sufficient reasons from appearing in the Court, when the said order was passed, therefore, he could not place the facts that the application had not become infructuous. Dr. R.G. Padia, learned counsel for the respondents, on the other hand opposes the said prayer.
2. I have heard both the learned counsel for the parties and perused the pleadings and records. It appears that sufficient grounds have been made out for non-appearance of Sri Shashi Nandan, learned counsel for the petitioner. A perusal of the record also shows that as pointed out by Sri Shashi Nandan that the said application requires determination and has not become infructuous.
3. In that view of the matter, the application is allowed. The order dated 24.7.1997 is recalled and the writ petition is restored to file.
4. After the above order is passed both the learned counsel for the parties insisted that the matter may be heard and decided on merits, since the same is pending for a long time namely for about 17 years. The matter appears to be ready. By consent of the parties the matter is taken up for hearing. Both the learned counsel for the parties have addressed the Court on merit.
5. The submission of Sri Shashi Nandan, learned counsel for the petitioner is summarised as : (1) The appellate authority had relied on documents which were never produced before the enquiry proceedings and was for the first time produced before the appellate authority, and that too without giving any opportunity to the Committee of Management, therefore, the decision of the appellate authority cannot be sustained ; (2) The appellate authority not being a judicial authority is not supposed to accept additional evidence at the appellate stage ; (3) Even on merit, the appellate authority had come to the conclusions wholly on surmises and conjectures by reason whereof these findings have travelled to the realm of perversity, and (4) in reply to Dr. Padia’s contention, he submitted that the questions as to the compliance of sub-section (3) of Section 16G or Regulation 28 was never raised by the delinquent before the appellate authority therefore, it cannot be taken for the first time before this Court even when such a point has not been asserted in the counter-affidavit, particularly, when such a point may deprive the petitioner from opportunity of meeting such point since the point is raised for the first time at the time of hearing only.
6. Dr. R.G. Padia, assisted by Sri Prakash Padia, learned counsel for the respondents, on the other hand raised many points which are summarised as : (1) Though appellate authority may not be a judicial authority and though Order XLI. Rule 27 of the Code of Civil Procedure may not apply, still then because of expression used in clause (c) of sub-section (3) of Section 16G of the U. P. Intermediate Education Act, the appellate authority would hold further enquiry, therefore, the scope of adducing further materials at the appellate stage cannot be ruled out; (2) Even when those documents were produced, the petitioner did not object to the production thereof. Neither they sought for any opportunity to oppose the same. On the other hand they had submitted their objection despite having been learnt about production of those documents without taking exception to such production thereof. From the record, it does not appear that they had taken any objection to the production of and reliance upon before and by the appellate authority ; (3) In view of Section 16G, sub-section (3) (a) the service of resolution resolving termination of service does not fulfil the conditions laid down in the said sub-section (3). The expression used “notice of termination of service” does not include resolution itself. It should be a notice proposing termination of service. He further contends that there must be an order of termination of service inasmuch as the committee has to take steps of
termination of service only after approval is obtained because of the expression used “except with prior approval in writing”. In the present case, no notice of termination of service nor any order of termination having been served. Section 16G (3) (a) has not been complied with. Therefore, the order is void abinitio ; (4) in view of Regulation 28 the resolution for termination of service can be taken only in a meeting specially convened for the purpose. Relying on Annexure-1, he submits that there were several other agenda for the meeting which presupposes that the said meeting was not convened for the purpose specially. The appellate authority has confirmed the said proposition and had found against the petitioner ; (5) in the absence of order of termination, there is no cessation of relationship of employer and employee, therefore, he is entitled to full pay along with all service benefits, and (6) The order of appellate authority is in detail and has gone through all aspects of facts which are findings of fact. This Court in exercise of writ jurisdiction, is not supposed to enter into those questions.
7. In order to appreciate the contentions of the respective counsel, brief reference may be had to the facts leading to the controversy. By a resolution dated 31.10.1977 (Annexure-1 to the petition) the petitioner resolved to terminate the services of respondent No. 2 on the basis of enquiry report, in which the charges against delinquent was alleged to have been proved. The said resolution was forwarded to the District Inspector of Schools for approval in terms of Section 16G of U. P. Intermediate Education Act, 1921 (hereinafter referred to as the Act). By an order dated 1.2.1978 (Annexure-2 to the petition) the District Inspector of Schools, approved the said proposal. The petitioner then preferred an appeal before the Dy. Director of Education, Region-III Bareilly. By an order dated 4.8.1980 (Annexure-3 to the petition), the appellate authority allowed the appeal and had set aside the approval granted, reversing the order of the District Inspector of Schools. There were several charges against the respondent No. 2. The District Inspector of Schools had found some of the charges to have been proved which are serious in nature. Whereas the appellate authority has found those charges to have not been proved while holding that in respect of charge No. 3 the order of termination would not have been passed and a warning would have been justified.
8. While arguing his case Sri Shashi Nandan had sought to lead me through the text of the appellate order and pointed out therefrom that even on merits the findings of the appellate authority were perverse. He contends that the appellate authority had relied on certain documents which cannot at all be relied upon.
9. Dr. Padia, on the other hand had contended that the said finding being finding of fact and Sri Shashi Nandan having not been able to point out any perversity from the said finding, this Court cannot interfere with such finding of facts.
10. Before entering into those questions, let us examine the contents as to whether the services of respondent No. 2 could be said to have been terminated in the manner as is revealed from the record of the case, particularly, as has been sought to be made out by the petitioner itself through this writ petition in compliance of Section 16G (3) of the said Act read with Regulation 28 of the Regulations, framed under the said Act. The fact remains that nowhere in the writ petition, it has been pleaded that the Committee of Management had served any notice on respondent No. 2 proposing to terminate the services after obtaining prior approval of the District Inspector of Schools. On the Other hand, the case that was made out in the writ petition is that the respondent No. 2 was subjected to an enquiry in which he was found guilty by the Enquiry Officer and having considered the report of the Enquiry Officer, the Managing Committee had taken the resolution to terminate the services of respondent No. 2 and had forwarded the same to the District Inspector of Schools, who had asked the petitioner to show cause. In reply whereof the petitioner had shown cause and thereafter had accorded his approval. The resolution (Annexure-1 to the petition) and the
approval (Annexure-2 to the petition) are on record. Nowhere a case is made out that notice after approval to terminate the services of respondent No. 2 was ever issued. It is also not a case that any order of termination has since been issued to the petitioner.
11. Now Sri Shashi Nandan, has questioned the maintainability of any pleading not made out either in the counter-affidavit or in the memorandum of appeal. He further points out that this point was never agitated before the appellate authority. Therefore, according to him, such a point cannot be taken for the first time before this Court, without supported by any pleading, at any stage.
12. The fact remains that this is a pure question of law emanating from the facts and circumstances of the case. The petitioner has challenged the validity of the order of the appellate authority. Therefore, it is for the petitioner to make out a case that the order which they are supporting, is legal and valid. Only when such a case is made out, the respondents are called upon to meet the same. Unless such a case is made out, it is not necessary for the respondents to meet such a situation. The respondents have not challenged the order before this Court. Therefore, it was not necessary for them to incorporate any such pleadings in the counter-affidavit. Non-raising of this question before the appellate authority also would not preclude the respondents from raising the same if the same is a pure question of law on the basis of material available on record. If the same can be decided then there is no bar in raising such a question. But such a situation is dependent on the express provisions of law which has been sought to be made applicable in a given case. Section 16G (a) is mandatory in nature. Inasmuch as the expression used indicates that “no Principal, Headmaster or teacher can be discharged or removed or dismissed from service or served with a notice of termination except with the prior approval in writing of the Inspector.” Such positive expression clearly indicates the intention of the Legislature to impose an embargo on the termination of service or even with regard to service of notice of termination of service. The prohibition so imposed being positive has the effect of a mandate created by the Statute in respect of the action, referred to therein. If such a situation is mandatory, in that event every termination contrary to such mandate would be void. If an action is void, it does not require raising of any objection or urging any point to such effect. It is always open to the Court to examine whether the action taken justifies the mandate of sub-section (3) (a) of Section 16G of the Act. Whether a question was taken or raised is wholly immaterial. If the question comes before the Court, it has to examine whether urged or not as to the validity of the order passed. Then again Mr. Shashi Nandan did not ask for any opportunity to be given to him for bringing on record any material to show that notice or order of termination, after the approval was obtained, other than the said resolution exists. Neither he sought for any adjournment of hearing today.
13. Now prior approval in writing of the Inspector is necessary in respect of every kind of punishment, namely, discharge, removal or dismissal etc. Admittedly, the order of discharge, dismissal, removal or termination, etc. can be passed. Admittedly, termination can be effected only after service of notice. Therefore, there are two stages of termination, one of service of notice of termination and the second stage is the service of the order of termination. The present case is one of punishment which requires approval of the Inspector before the order of punishment is passed. The said position is clear by reason of the provisions contained in clause (b) of sub-section (3) thereof providing that the Inspector may approve or disapprove or reduce or enhance punishment or approve or disapprove the notice for termination of service, proposed by the management; provided that in case of punishment before passing the order, the Inspector shall give opportunity to the Principal, head-master or teacher, to show cause within fortnight of the receipt of the notice, why proposed punishment should not be inflicted. A plain reading of clauses (a) and (b), above, indicates that the punishment can be imposed only after prior approval in writing of the Inspector. The punishment can be inflicted only by an order of
punishment. The Inspector’s jurisdiction is confined to the grant of approval to the proposal of punishment, after which the order of punishment can be imposed. The Inspector has no jurisdiction to pass order of punishment. The conditions of service of a teacher is governed by Section 16G of the Act. But the services of a teacher is with the institution managed by the management. There is no relationship of master and servant between the Inspector and teacher and it is the management who is the employer and the teacher is the employee. It is the relationship of master and servant between the management and the teacher. Section 16G of the Act provides certain restrictions on the right of management in the matter of imposing punishment which could be imposed only after approval of the Inspector. Thus, the Inspector’s power does not stretch itself outside the point of approval. The approval is only a condition precedent in passing the order of punishment. The order of punishment has to be issued by the management only after the Inspector approves its proposal to the punishment. The expression “before passing order” occurring in the proviso to clause (b) refers to the order of approval. The Inspector may give an opportunity to the delinquent employee to show cause why proposed punishment should not be inflicted. The order of the Inspector is the order of approval of the proposal for punishment proposed by the management. The expression used does not indicate that the Inspector would be imposing punishment. In case of appointment, it is the right of management to make appointment but subject to approval of the Inspector. The Inspector never gives appointment. His jurisdiction is only with regard to approval of appointment. Once such approval is given, the management issues the order of appointment. Once an appointee with such approval, services cannot be terminated or punishment cannot be imposed except with approval of the Inspector though conditions of service may be regulated by agreement between the management and the employee consistent with the provisions of the Act and the Regulations. Now the relation between the management and the employee cannot be terminated by the Inspector with whom there is no relation of employer and employee. The Inspector is not the appointing authority. Therefore he cannot pass order of punishment. Only to govern the relationship between the employer and employee a safety valve is being provided through statutory provision. The Inspector has been empowered to monitor the effectivity of the safety valve. Therefore, the order passed in compliance with the proviso of clause (b) by the Inspector is only an order of approval after which the order imposing punishment has to be issued by the management.
14. Even if as resolved in the present case by the resolution contained in Annexure-1 to the writ petition, the effect that the services of respondent No. 2 is terminated and approval of such termination by way of punishment is to be obtained from the Inspector, it does not mean that approval would be sufficient to terminate the services of respondent No. 2 automatically without passing any further order by the management on the passing of the order of approval by the Inspector. On the other hand, it can be said that instead of proposing the punishment and order of punishment has been resolved to be passed or the management had passed the order of termination by way of punishment, but without prior approval of the Inspector in respect whereof ex-post-facto approval has been resolved to be obtained. Such a situation does not conform to sub-section (3) of clauses (a) and (b). Even if we are not too technical with regard to the framing of the resolution, in that event it can be taken to be a proposal for punishment on the basis whereof the Inspector had exercised his powers conferred upon him by clause (b) after complying with the procedure provided in the proviso thereto. Thus, the order of approval contained in Annexure-2 to the writ petition passed by the Inspector is an order of approval pure and simple. With this approval, the management was free to pass an order imposing punishment and thereby terminated the services pursuant to such imposition of punishment, it may be combined in one order issued by the management. By no stretch of imagination, the resolution can be interpreted to be anything more than the proposal awaiting approval of the Inspector. After the approval is
obtained, the management has to resolve and pass appropriate order imposing punishment with such approval upon the delinquent employee only when such order is passed, the services of the employee is said to have been terminated in compliance with clause (a).
15. Then again the proposal for imposing punishment is to be taken in terms of Regulation 28 which requires taking of such a decision by the management in a meeting specially convened for the said purpose. Regulation 28 Chapter-III of the Regulations framed under the Act provides that “committee shall not propose to the Inspector the termination of services of a confirmed employee unless a resolution to this effect has been passed at its meeting specially convened for the purpose and by two thirds majority of members present and voting.” Thus Regulation 28 requires convening of special meeting for the purposes of adopting proposal to terminate the services of a confirmed employee. “A meeting specially convened for the purpose” means meeting to be convened specially. The word ‘specially’ means something exclusive. The word ‘special’ according to The New Shorter Oxford English Dictionary, 1993 Edition,” means “exceptional in quality or degree ; unusual; out of ordinary ; distinct from other of the kind to be a particular quality or feature ; distinctive in some way ; having individual or limited application or purpose : affecting or concerning the single person, thing or set precise, specific ; having closed or specific connection with single person, thing or set ; ” The word ‘specially’ according to the same dictionary means “in special manner ; in degree or to an extent” beyond what is usual or customery, particulars : prominently, for special purpose expressly, specifically not general or vaguely”. Therefore, meeting specially convened means a meeting convened exclusively for the purpose. This cannot be considered in a meeting which is not convened, particularly or pre-dominantly for the said purpose. If the other agenda were also in consideration, in that event it cannot be said that the meeting was particularly and predominantly convened for the purpose.
16. Admittedly, in the present case the impugned resolution is in respect of second agenda. The first agenda has not been disclosed, but it appears that the resolution was taken on the basis of second agenda. In order to establish that the termination is valid, it is for the petitioner to make out sufficient pleadings that the termination was effected validly and that after obtaining prior approval and that approval was also valid. Since the approval has been reversed in appeal and the petitioner had challenged the said order of reversal by the appellate authority, the petitioner, in order to succeed, is required to make out sufficient pleading.
17. However, in case the order of the appellate authority is set aside in that event the situation as emanating in the present case, can be cured since the same is not illegality but irregularity by passing a fresh order imposing punishment and terminating the services by way of punishment afresh on the basis of such approval provided there is no violation of Regulation 28. The matter would assume different complextion if it is held that the Regulation 28 has not been complied with. Inasmuch as if it is held that Regulation 28 has not been complied with in that event the very proposal comes to an end. The appellate authority itself has held that Regulation 28 has not been complied with. Therefore, it was for the petitioner to come with a case with sufficient material that Regulation 28 has been complied with. No such case has been successfully made out in the pleadings to show that Regulation 28 has since been complied with. Sri Shashi Nandan, at the bar has not been able to satisfy the Court that Regulation 28 has been complied with. In the absence of any material to contradict the findings of the appellate authority with regard to compliance of Regulation 28, it is not possible to hold that the said regulation has been complied with.
18. Unless proposal to terminate the services is taken in a meeting specially convened for the purpose, the management is prohibited from
forwarding the proposal to the Inspector. This is an embargo on the management in forwarding the proposal to the Inspector. Unless the proposal is adopted in a meeting specially convened for the purposes, the same cannot be forwarded to the Inspector. If such proposal is sent to the Inspector contrary to Regulation 28, the Inspector cannot exercise his powers in clause (b) of Section 16G (3) of the Act.
19. Now so far as the question of additional evidence as raised by Sri Shashi Nandan, is concerned, it appears that in the proviso to clause (b), the Inspector has also been empowered to give opportunity to show cause why punishment should not be inflicted. The proviso uses the expression “shall give an opportunity….. to show cause….. why punishment
should not be inflicted.” The expression “shall” makes it mandatory. The opportunity to show cause involves an inquiry on the part of Inspector. He does not act either as a post office or rubber stamp. The power of the Inspector is wide enough to include the power to approve or to disapprove or to reduce or to enhance punishment or to approve or disapprove the notice for termination. Such power can be exercised only when the Inspector is satisfied. In order to reach to such a satisfaction, the Inspector has to exercise his discretion. The proposal is sent by the management. In course of such opportunity, therefore, the Inspector has to ensure that injustice is not done on the employee. It does not bind the Inspector to confine only to the material placed before him by the Committee of Management. It has every right to look into the cause shown by the employee. Such showing cause may include production of additional material in order to counter the decision of the Committee of Management. However, the management may take an exception to such document.
20. On the other hand, the scope of appeal provided in clause (c) is wider than that of clause (b), Clause (c) provides that the appellate authority may “after such further inquiry, if any, as he considers necessary, confirm, set aside or modify the order …..”Therefore, clause (c) empowers the appellate
authority to hold further inquiry. Further inquiry includes the power of acceptance of additional material. Nowhere it has been pointed out that the petitioner had objected to the introduction of additional material. On the basis of introduction of such material, the petitioner had submitted its objections to the appeal but did not take any exception either to the acceptance of the additional material nor did it seek any opportunity to disapprove additional material. Since the scope was enlarged to further inquiry, it was for the petitioner to take appropriate steps to confront the respondent No. 2.
21. Even if it is accepted for the argument’s sake that the approval to the proposed punishment was perfectly valid, legal, even then the services of respondent No. 2 cannot be said to have been terminated in absence of specific order passed by the management after the approval is obtained, because of the ratio decided in the case of A. S. H. P. Association v. Dy. Director of Education, Agra Region and others. 1977 ALJ 341, wherein it has been held by this Court that after approval is obtained, an order has to be passed by the management, in absence of such order, there cannot be any valid order of termination. The present case squarely comes within the ambit of the said ratio and, therefore, the respondent No. 2’s services cannot be said to have been terminated and he shall be deemed to be in service for all practical purpose and would be entitled to all service benefits provided he was not gainfully employed during the period or any part thereof in which case the benefit would be payable proportionately. Then again because of non-compliance of Regulation 28, the very basis on which approval was sought to he given being contrary to law, there cannot be any question of grant of approval at all. The proposal having not been complied with Section 28, can never be forwarded to the Inspector for approval and, therefore, there cannot be any valid grant of approval to such a proposal which in the eye of law is non est. In the circumstances, it is not necessary to go into the questions of merit of the case as contended by the respective counsel. In that view of the matter, the finding of the appellate authority to the extent that Regulation 28 has
not been complied with is affirmed. So far as the other finding of the appellate authority is concerned, the same is kept open. In view of such findings, the services of respondent No. 2 cannot be said to have been terminated in absence of any approval and, therefore, he shall be deemed to be in service, entitled to all service benefits as observed earlier. However, it will be open to the Committee of Management to take fresh proposal in compliance of Regulation 28 and take appropriate steps in the manner prescribed in Section 16G (3) if it is so advised, and if the proposal is sent afresh, it would be open to the Inspector to decide the same in accordance with law according to his wisdom without being influenced by any of the observations made in this order, afresh and if any appeal is preferred, the same should be decided afresh according to the wisdom and discretion of the appellate authority. The writ petition thus stands disposed of.
22. There will be, however, no order as to costs.