# Bal Krishna Varshney v. The Dy. Director of Education (Madhyamik), Agra and others

- **Citation:** (2008) 1 ILRA 245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-03
- **Case number:** Civil Misc. Writ Petition No. 17404 of 1998
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishna-varshney-v-the-dy-director-of-education-madhyamik-agra-and-others-41024
- **Pages:** 9

## Headnote

U.P. Intermediate Education Act 1921Section 16-G Regulation 36 and37termination
of
Head
Clerk
of
Intermediate
collage-without
prior
approval without giving charge-sheetwithout affording opportunity to submit
reply-Held-mandatory
provision
of
regulation 36,37 not complied withtermination order quashed.

Held: Para 19

In the present case, from the record it is
clear that no enquiry was held, no
evidence was recorded and no report of
enquiry officer was considered by the
Committee of Management after notice
to the petitioner. Even if petitioner has
failed to submit his explanation in time it
was incumbent on the Committee of
Management to act in accordance with
Regulation 37 by giving him notice and
opportunity
to
appear
before
the
Committee on the day the matter was
finally considered. The Committee of
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Management, however, did not issue any
notice to the petitioner or there is
nothing on record to show that notice
was ever served upon the petitioner,
therefore, a clear inference can be drawn
that the Committee of Management has
taken a decision without affording an
opportunity
to
the
petitioner.
The
procedure adopted by the Committee of
Management was in contravention of the
statutory provision of Regulations 36
and 37, which rendered the decisions of
the Committee of Management as illegal.
Case law discussed:
1980 UPLBEC 110, 1983 UPLBEC 597, AIR
1960 Supreme Court, 992, A.I.R. 1964,
Supreme Court, 1854, A.I.R. 1971 Supreme
Court, 823, A.I.R. 1971 Supreme Court, 2148

## Text

1 All] Bal Krishna Varshney V. The Dy. Director of Education, Agra and others
245
4. According to us, the appellant has
proceeded with a misconception of law.
The deceased was a bonafide passenger.
In spite of having valid ticket when a
passenger fall down from the railway due
to an untoward incident, he is entitled for
compensation. There is gulf difference
between untoward incident and self
inflicted untoward incident. Without any
specific proof an untoward incident
cannot be said as self inflicted.

5. The learned counsel stated that
there is a difference between reserved
compartments
and
unreserved
compartments.
Facilities
of
reserved
compartment cannot be given to the
passengers of unreserved compartments.
We
are
of
view
that
a
reserved
compartments means the seats of the valid
ticket holders are reserved, but unreserved
compartment means seat are unreserved,
who will come first he will occupy. In
case
of
unreserved
compartments
Railways are issuing tickets irrespective
of accommodations in case of unreserved
seats. Even at the time of return of tickets
without journey, certain amounts are
being
deducted
by
the
Railways.
Therefore, Railways are duty bound to
discharge the responsibilities. In such
situation it does not lie on the mouth of
the
Railways
that
as
because
the
unreserved compartment was overloaded
and the passenger, who was standing on
the foot board, sustained death, it can be
construed as self inflicted incident. This
submission cannot lie on the mouth of a
public authority of a developed country.
This is also a disgraceful submission that
the deceased could have board on the next
train.
Therefore,
the
balance
of
convenience
does
not
support
the
contentions of the cause. Hence, we
cannot admit the appeal. The appeal is,
accordingly, dismissed without imposing
any costs.

 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2008

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 17404 of 1998

Bal Krishna Varshney
...Petitioner
Versus
The Dy. Director of Education (Madhyamik),
Agra and others

 ...Respondents

Counsel for the Petitioner:
Sri R.R. Singh
Sri V.K. Srivastava

Counsel for the Respondents:
Sri M.K. Gupta
S.C.

U.P. Intermediate Education Act 1921Section 16-G Regulation 36 and37termination
of
Head
Clerk
of
Intermediate
collage-without
prior
approval without giving charge-sheetwithout affording opportunity to submit
reply-Held-mandatory
provision
of
regulation 36,37 not complied withtermination order quashed.

Held: Para 19

In the present case, from the record it is
clear that no enquiry was held, no
evidence was recorded and no report of
enquiry officer was considered by the
Committee of Management after notice
to the petitioner. Even if petitioner has
failed to submit his explanation in time it
was incumbent on the Committee of
Management to act in accordance with
Regulation 37 by giving him notice and
opportunity
to
appear
before
the
Committee on the day the matter was
finally considered. The Committee of
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Management, however, did not issue any
notice to the petitioner or there is
nothing on record to show that notice
was ever served upon the petitioner,
therefore, a clear inference can be drawn
that the Committee of Management has
taken a decision without affording an
opportunity
to
the
petitioner.
The
procedure adopted by the Committee of
Management was in contravention of the
statutory provision of Regulations 36
and 37, which rendered the decisions of
the Committee of Management as illegal.
Case law discussed:
1980 UPLBEC 110, 1983 UPLBEC 597, AIR
1960 Supreme Court, 992, A.I.R. 1964,
Supreme Court, 1854, A.I.R. 1971 Supreme
Court, 823, A.I.R. 1971 Supreme Court, 2148

(Delivered by Hon'ble Shishir Kumar, J.)

1. The present writ petition has been
filed
for
quashing
the
resolution
termination
order
dated
11.12.1995
(Annexure 1 to the writ petition) and
order of approval dated 10.11.1996
(Annexure 5 to the writ petition) and
appellate
order
dated
10.2.1998
(Annexure 7 to the writ petition) passed
by the respondent Nos. 3, 2 and 1
respectively. Further a writ in the nature
of
mandamus
commanding
the
respondents to treat the petitioner as
holding the post of accountant and to
provide him all consequential benefits in
accordance with law.

2. The brief facts of the case are that
the petitioner was appointed as an
accountant in the Agrasen Inter College,
Harduaganj District Aligarh. In the year
1990, one Sri Rajpal Sharma, head clerk
retired and the petitioner being senior
most was entitled to be promoted on the
post, which came into existence due to
retirement of Sri Rajpal Sharma. When
the Committee of Management do not
promote the petitioner on the post of head
clerk, the petitioner was compelled to file
a writ petition before this Court and by
order dated 2.4.1993 this Court had
passed the following orders:-

"The petitioner is claiming that he is
entitled to be promoted on the post of
Head Clerk. He has made a representation
to the District Inspector of Schools to the
same effect. The District Inspector of
Schools may decide the petitioner's
representation in accordance with the
rules expeditiously. The writ petition is
accordingly disposed of."

3. The respondents after coming to
know of the aforesaid order of the Hon'ble
Court, illegally promoted one Sri Nand
Kishore, who was junior to the petitioner
from back date. Then the petitioner filed
another Writ Petition No.28794 of 1993
challenging the appointment of Sri Nand
Kishore on the post of head clerk. The
writ petition is still pending and no
counter affidavit has been filed. As
promotion of Nand Kishore was wholly
illegal and there was a hope that the
petitioner will succeed in the writ petition,
as such, the respondents started pressing
the petitioner to withdraw the writ
petition. It was on 14.6.1995, the
petitioner fell ill and he made an
application for grant of leave. On
19.6.1995, petitioner sent an application
for granting leave from 15.6.1995 to
14.7.1995 by registered post. The same
was returned back as the principal of the
college refused to accept the registry sent
by the petitioner. Again a letter was sent
to the Manager of the College alongwith
the original application and the medical
certificate dated 19.6.1995 and a copy of
the same was handed over to the District
Inspector
of
Schools.
Respondent
annoyed to the aforesaid act, so without
1 All] Bal Krishna Varshney V. The Dy. Director of Education, Agra and others
247
any resolution the respondent No.1 placed
the
petitioner
under
suspension
on
18.6.1995. As the petitioner could not
recover from his ill health on 16.11.1995,
he made another application for extension
of leave from 16.11.1995 to 30.12.1995
with a request that the medical certificate
will be submitted when the petitioner will
join. On 8.12.1995, the petitioner came to
know through his son that a notice has
been published in the 'Dainik Jagran'
dated 6.12.1995 to the effect that the
petitioner should obtain a copy of the
charge-sheet up to 9.12.1995. As stated
above, petitioner was ill and was not in a
position to obtain the copy of chargesheet, as such, he sent his son on
9.12.1995 with an application to handover
the said charge-sheet but the Principal of
the said institution refused to accept the
same.

4. Suddenly on 10.1.1996, the
petitioner
received
an
order
dated
11.12.1995
sent
under
the
postal
certificate by which services of the
petitioner have been terminated. The
order dated 11.12.1995 has been passed
without any opportunity of hearing to the
petitioner and without conducting any
enquiry, therefore, the resolution and
order dated 11.12.1995 is bad in law as no
charge-sheet was ever served upon the
petitioner and no enquiry was conducted
whatsoever. The order is in contravention
of Regulations 36 and 37 framed under
the U.P. Intermediate Education Act,
1921. The mandatory provision to this
effect regarding seeking prior approval
from the District Inspector of Schools was
not obtained.

5. It has been submitted by the
learned counsel for the petitioner that the
Committee of Management did not issue
any show cause notice to the petitioner
and was not afforded any opportunity of
being heard before passing the order
impugned. The petitioner challenge the
said order of termination by filing a Writ
Petition No.15171 of 1996 and this Court
had passed the following orders:-

"Sri Manoj Gupta and Sri V.K.
Gupta appear for the respondents. They
pray for allowed two weeks time to file
counter affidavit. Petitioner may file
rejoinder affidavit within two weeks
thereafter.
Writ
petition
shall
be
listed
thereafter for admission/final disposal in
the first week of August, 1996.
In
the
meantime
operation
of
resolution passed by the Managing
Committee dated 10.12.1995 (Annexure-
9 to the writ petition) shall remain stayed.
District Inspector of Schools is also
restrained
from
taking
any
action
thereon."

6. Aggrieved by the aforesaid order
dated 30.4.1996, the Committee of
Management preferred a Special Appeal
mainly on the ground that order dated
10.12.1995 has not yet been given effect
to as it is only a resolution and will take
effect only after the approval of the
District Inspector of Schools. On the basis
of the aforesaid statement made by the
Committee of Management, the Special
Appeal was disposed of finally and
directed the District Inspector of Schools
to pass an order upon the proposal
submitted
by
the
Committee
of
Management. In spite of the direction
issued by this Court, the District Inspector
of Schools instead of approving or
disapproving the order has passed a
detailed order without giving any reasons
and
without
considering
the
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
representation of the petitioner, which
was received in the office of the District
Inspector of Schools on 5.11.1996.
Against the order dated 10.11.1996, the
petitioner filed a writ petition before this
Court and while disposing of the writ
petition the petitioner was directed to
approach the appropriate authority.

7. In pursuance of the order the
petitioner filed an appeal before the
respondent No.1 on the ground that the
petitioner did not submit his reply to the
charges levelled against him before the
Committee of Management or before the
District Inspector of Schools and no
notice and opportunity to that effect was
given but in spite of the aforesaid fact, the
appeal filed by the petitioner was rejected
vide its order dated 10.2.1998.

8. The petitioner submits that it is
apparent from the record that no notice
and opportunity to that effect has been
given to the petitioner by the alleged
enquiry officer as submitted by the
Committee of Management. From the
publication, which is alleged to be
published
in
the
newspaper
dated
5.12.1995 clearly states that charge sheet
may be taken by the petitioner on or
before 9.12.1995, therefore, prior to this
date no order can be passed. But from the
perusal of the report of the enquiry officer
dated 9.12.1995, it was recommended to
terminate the services of the petitioner
only on 9.12.1995. The Committee of
Management on 2.12.1995 alleged to
have issued a letter to this effect that there
will be a meeting of Committee of
Management and Item No.3 will be taken
into consideration regarding the services
of the petitioner and by order dated
11.12.1995, the services of the petitioner
were terminated. It clearly goes to show
that the respondents were pre-determined
to pass the order of termination against
the petitioner. If the time was given up to
9.12.1995 the enquiry officer would have
waited either for the next date for
recommendation to terminate the services
of the petitioner to the Committee of
Management.
The
Committee
of
Management was also pre-determined and
has alleged to have issued a letter dated
2.12.1996 to determine the question of
services of the petitioner. There is nothing
on record to show that this letter was ever
received by the petitioner at any point of
time and from the order impugned dated
11.12.1995 it clearly appears that a
decision was taken on 10.12.1995 to
terminate the service of the petitioner,
therefore, it clearly appears that the
Committee of Management was in haste
in terminating the services of the
petitioner.

9. Further it has been argued by Sri
Rajiv Ratan Singh, learned counsel for the
petitioner that the respondent No.1 has
recorded a finding to this effect that in
spite of the notice to the Committee of
Management regarding submission of the
relevant documents for initiating the
disciplinary proceedings after suspension
to this effect was commenced or not, no
documents to that effect were filed by the
Committee of Management. In spite of
the aforesaid finding the appeal filed by
the petitioner has been rejected holding
therein that no proper procedure as
provided under the Regulations 36 and 37
has been complied with. Regulations 36
and 37 are being reproduced below:-

"36. (1) The grounds on which it is
proposed to take action shall be reduced
in the form of a definite charge of charges
which shall be communicated to the
1 All] Bal Krishna Varshney V. The Dy. Director of Education, Agra and others
249
employee charged and which shall be so
clear and precise as to give sufficient
indication to the charged employee of the
facts and circumstances against him. He
shall be required within three weeks of
the receipt of the charge-sheet to put in a
written statement of his defence and to
state whether he desired to be heard in
person. If he or the inquiring authority so
desires, an oral enquiry shall be held in
respect of such of the allegations as are
not admitted. At that enquiry such oral
evidence will be heard as that inquiring
authority considers necessary. The person
charged shall be entitled to cross-examine
the witnesses, to give evidence in person,
and to have such witnesses called as he
may wish; provided that the enquiring
authority conducting the enquiry may, for
sufficient reasons to be recorded in
writing, refuse to call a witness. The
proceedings shall contain a sufficient
record of the evidence and statement of
the findings and the grounds thereof, The
inquiring
authority
conducting
the
enquiry may also, separately from these
proceedings,
make
his
own
recommendation
regarding
the
punishment to be imposed on the
employee.
(2) Clause (1) shall not apply where the
person concerned has absconded, or
where
it
is
for
other
reasons
impracticable to communicate with him.
(1) All or any of the provisions of clause
(1) may for sufficient reasons to be
recorded in writing be waived where
there is difficulty in observing exactly the
requirements
thereof
and
those
requirements can in the opinion of the
inquiring authority be waived without
injustice to the person charged.

37. Soon after the report of the
proceedings and recommendation from
the inquiring authority are received, the
Committee of Management shall after
notice to employee meet to consider the
report
of
the
proceedings
and
recommendation made and take decision
on the case. The employee shall be
allowed, if he so desires, to appear before
the committee in person to state his case
and answer any question that may be put
to him by any member present at the
meeting. The Committee shall then send a
complete
report
together
with
all
connected papers to the Inspector or
Regional Inspectress, as the case may be,
for approval of action proposed by it."

10. The reliance has been placed
upon a Division Bench Judgement of this
Court reported in Ram Kumar Dixit Vs.
Deputy Director of Education, Bareilly
and others reported in 1980 UPLBEC
110. Reliance has been placed upon paras
5 and 6 of the said judgement. The same
are being reproduced below:

"5. Section 16-G of the U.P.
Intermediate Education Act lays down
that teachers employed in a recognised
institution shall be governed by such
conditions of service as maybe prescribed
by Regulation. Regulations 31 to 17
prescribed procedure for punishment,
enquiry and suspension of a teacher.
Regulation 35 lays down that no receipt
of a complaint the Committee may in the
case of teachers appoint the Headmaster
or Principal or Manager as Enquiry
Officer to hold enquiry into the charges.
Regulation 36 lays down that a teacher
shall be required to submit reply to the
charges within three weeks of the receipt
of the charge sheet. An oral enquiry shall
be held in respect of the allegations which
are not admitted. The person charged
shall
be
entitled
to
cross-examine
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
witnesses to give evidence in person and
to have such witnesses called as he may
desire. On completion of the enquiry the
enquiry officer shall submit his own
recommendations which is required to be
considered
by
the
Committee
of
management. Regulation 37 lays down
that after the report of the enquiry officer,
is received the Committee of Management
shall consider the same after notice to the
teacher. The teacher shall be allowed if
he so desires to appear before the
Committee of Management in person to
state his case. Regulation 37 is mandatory
in
nature
and
the
Committee
of
management is required to comply with
that provision before awarding any
punishment to the teacher.

6. In the instant case the petitioner
was served with the order of the
Managing Committee dated 9.5.1972
placing him under suspension pending
enquiry. A perusal of the resolution of the
Committee of management shows that the
Committee unanimously resolved that the
petitioner was guilty of the charges. The
resolution shows that the Committee of
Management
prejudged
the
charges
against
the
petitioner
even
before
obtaining petition's explanation. Since the
Committee of Management prejudged the
issues against the petitioner even before
obtaining petitioner's explanation the
subsequent proceedings are vitiated.
Assuming
that
the
committee
of
management did not prejudge the charges
the entire proceedings are vitiated as the
petitioner was denied opportunity of
defence. The committee of management
allowed three weeks' time to the petitioner
to submit his explanation. The petitioner
sought 10 days' extension of time by his
letter dated 31.5.1972 on the ground of
his illness and thereafter the petitioner
submitted his explanation by post on
8.6.1972, which reach the office of the
institution on 12.6.1972. Meanwhile the
committee of management at its meeting
held on 11.6.1972 passed the resolution
dismissing the petitioner from service. No
enquiry office was appointed, no enquiry
was held, no evidence was recorded and
no report of the enquiry office was
considered
by
the
committee
of
management after notice to the petitioner.
Even if the petitioner had failed to submit
his explanation in time it was incumbent
on the committee of management to act in
accordance with Regulation 37 by giving
him notice and opportunity to appear the
committee on the date the matter was
finally considered by it. The Committee of
Management however did not issue any
notice to the petitioner regarding its
meeting dated 11.6.1972 and it did not
afford him any opportunity to appear
before it an that date to state his case
before the member. The procedure
adopted by the Committee of Management
was in contravention of the statutory
provision of Regulations 36 and 37 which
rendered the decision of the Committee
illegal."

11. In support of the aforesaid
contention the learned counsel for the
petitioner submits that the Division Bench
of this Court has held that Regulations 36
and 37 are mandatory and if the same has
not been followed, the total proceeding is
vitiated. The further reliance has been
placed upon a judgement of this Court in
Bhopal
Singh
Verma
Vs.
Deputy
Director
of
Education
and
others
reported in 1983 UPLBEC 597. In
support of the aforesaid decision the
learned counsel for the petitioner submits
that prior approval is necessary before
imposition of punishment upon any
1 All] Bal Krishna Varshney V. The Dy. Director of Education, Agra and others
251
employee even a clerk of the institution. If
the same has not been taken the order is
bad in law.

12. In view of the aforesaid facts
and circumstances, the learned counsel for
the
petitioner
submits
that
order
impugned is liable to be quashed. It has
also been brought to the notice of the
Court that the petitioner has already
expired on 28.10.2003 and their heirs
have already been substituted.

13. On the other hand, the learned
counsel on behalf of the Committee of
management has submitted that the
charges levelled against the petitioner are
very serious and if the copy of the chargesheet was not given to the petitioner as
alleged, he should have requested the
same when the matter was pending before
the
District
Inspector
of
Schools.
Petitioner was aware regarding the
proceeding and according to Rules if the
same has been published in the newspaper
it will be presumed to be deemed service.
Admittedly, the charge-sheet was not
taken by the petitioner on the date
mentioned in the publication, as such, the
enquiry officer has no occasion except on
the
basis
of
the
charge-sheet
to
recommend on the basis of preliminary
enquiry dated 2.4.1995 to terminate the
services of the petitioner. On the basis of
recommendation
a
meeting
of
the
Committee of Management was held on
10.12.1995 and on 11.12.1995 an order of
termination was passed. The District
Inspector of Schools has also considered
the fact that in spite of service of the
charge-sheet he has not submitted any
cogent reply regarding the charges
levelled
against
the
petitioner
and
therefore by order dated 10.11.1996, he
has approved the order of termination
exercising the power under Section 15-ka
of the D.P. Intermediate Education Act.
Therefore, it cannot be said as submitted
by the petitioner that petitioner has not
been afforded an opportunity and there is
any violation of any Regulation of the
D.P. Intermediate Education Act.

14. I have heard learned counsel for
the petitioner and learned counsel for the
respondents and learned Standing Counsel
and have perused the record.

15. From the record it appears that
the
petitioner
was
suspended
and
subsequently
for
the
purposes
of
providing
the
charge-sheet,
it
was
published
in
the
newspaper
dated
5.12.1995 directing the petitioner to
obtain the charge-sheet by 9.12.1995.
From the record, it is also clear that
before the order of termination the charge
sheet
was
never
served
upon
the
petitioner. One thing is also very relevant
that when there was a cut of date
mentioned in the publication the enquiry
officer should have waited at least up to
the next date i.e.10.12.1995 but it was
only on 9.12.1995 he has recommended
for termination of the services of the
petitioner. It is also apparent from the
record filed by the respondents that the
Committee of Management by letter dated
2.12.1995 has decided to hold a meeting
on 10.12.1995 regarding taking action
against the petitioner and a decision was
taken on the next date i.e. 11.12.1995 an
order
of
termination
was
passed.
Admittedly, order of termination has to be
approved. Now in view of provision of
the act, the prior approval is necessary. If
approval has not been taken the order
cannot be given effect too and the person
concerned will be treated to be in service.
252 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
16. The respondent No.1 has also
recorded a finding that the Committee of
Management has not submitted any
document to this effect. If the Committee
of Management has not submitted any
document before, the respondent No.1,
then under what circumstances a finding
can be recorded against the petitioner. A
finding to this effect that the District
Inspector of Schools, Aligarh has given a
copy of the charge-sheet to the petitioner
on 17.9.1996 when the matter was being
heard by the District Inspector of School,
no documentary evidence has been
submitted by the petitioner before the
District Inspector of Schools.

17. As no proper disciplinary
proceeding,
as
provided
under
the
Regulation has taken place, therefore,
there was no occasion for the petitioner to
submit any documentary evidence before
the Appellate Authority. The Appellate
Authority was bound to see in the appeal
filed by the petitioner that whether the
services of the petitioner were terminated
after following the proper procedure as
provided under the Rules or not. Whether
proper opportunity has been provided to
the petitioner during the course of
enquiry. The Appellate Authority as well
as the District Inspector of Schools have
failed to take into consideration that the
date fixed in the publication to obtain the
charge-sheet was 9.12.1995 and on the
same day the enquiry officer without
waiting
even
for
one
day
has
recommended to terminate the services of
the petitioner. It is also not the case of the
respondents that before the Committee of
Management, the petitioner was afforded
any opportunity or notice, therefore, in
my view, the orders passed by the
respondents is not sustainable in law.

18. Further the Division Bench of
this Court has held that Regulation 37 is
mandatory in nature and the Committee of
Management is required to comply with
that provision before awarding any
punishment to a teacher and to its
employees. Regulation 36 laid down that
a teacher or employee shall be required to
submit reply to the charges within three
weeks of the receipt of the charge sheet
and an oral enquiry shall be held in
respect of allegation, which are not
admitted. The person charged shall be
entitled to cross examine the witness to
give evidence in person and to have called
such witnesses as he may desire. On
completion of enquiry, the enquiry officer
shall submit his own recommendation,
which is required to be considered by the
Committee of Management. Regulation
37 laid down that after the report of the
enquiry officer is received the Committee
of Management shall consider the same
after notice to the teacher /employee. In
Ram Kumar Dixit (Supra), the Division
Bench has held that Regulation 37 is
mandatory in nature and it has to be
complied with in its true spirit.

19. In the present case, from the
record it is clear that no enquiry was held,
no evidence was recorded and no report
of enquiry officer was considered by the
Committee of Management after notice to
the petitioner. Even if petitioner has failed
to submit his explanation in time it was
incumbent
on
the
Committee
of
Management to act in accordance with
Regulation 37 by giving him notice and
opportunity
to
appear
before
the
Committee on the day the matter was
finally considered. The Committee of
Management, however, did not issue any
notice to the petitioner or there is nothing
on record to show that notice was ever
1 All] Lallu Ram and others V. State of U.P. and others
253
served upon the petitioner, therefore, a
clear inference can be drawn that the
Committee of Management has taken a
decision without affording an opportunity
to the petitioner. The procedure adopted
by the Committee of Management was in
contravention of the statutory provision of
Regulations 36 and 37, which rendered
the decisions of the Committee of
Management as illegal.

20. Further it has also to be noted
from the record and as submitted by the
counsel for the respondent that the
punishment to the petitioner has been
recommended by the enquiry officer only
on the basis of the preliminary enquiry
report dated 2.4.1995 and that was the
basis of punishment awarded by the
Committee of Management. The Apex
Court in AIR 1960 Supreme Court, 992,
Amlendu Ghosh Vs. District Traffic
Superintendent, N.E. Railway, A.I.R.
1964, Supreme Court, 1854 Champak Lal
Shah Vs. Union of India, A.I.R. 1971
Supreme Court, 823, Government of
India Vs. Tarak Nath, A.I.R. 1971
Supreme
Court,
2148
Narayan
Dattatraya Ramteerathakar Vs. State of
Maharastra, has held that preliminary
enquiry cannot be a basis of punishment
against a charged employee. From the
record it is clear that the enquiry officer
has
recommended
punishment
of
termination against the petitioner only on
the basis of preliminary enquiry. In view
of the aforesaid fact also the decision
rendered
by
the
Committee
of
Management only on the basis of the
report of the preliminary enquiry can
safely be held to be illegal.

21. Further it is also to be noted that
in such type of cases where the mandatory
provision has not been complied with, the
matter can safely be remanded back to the
competent authority to take a fresh
decision according to law but as the
petitioner has already died on 28.10.2003,
therefore, in facts and circumstances of
the present case it will not be appropriate
in the interest of justice to re-open the
matter again. But as the mandatory
provision of Regulations 36 and 37 has
not been complied with, therefore, in my
view, the decision rendered by the
Committee of Management can safely be
held to be invalid.

22. In view of the aforesaid fact, the
writ petition is allowed and the orders
dated 11.12.1995 (Annexure I to the writ
petition) and order of approval dated
10.11.1996 (Annexure 5 to the writ
petition)
and
appellate
order
dated
10.2.1998 (Annexure 7 to the writ
petition) passed by the respondent Nos. 3,
2 and 1 respectively, are hereby quashed
and the petitioner will be treated to be in
service till the date when he attend the age
of superannuation and will be entitled for
the benefits for which he is entitled
according to law. No order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 13141 of 2007

Lallu Ram and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Sunil Kumar Srivastava