# C/M National Inter College, Barabanki v. J.D. of Edu., Faizabad & Ors

- **Citation:** (2023) 2 ILRA 449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-17
- **Case number:** Writ-A No. 3597 of 2009
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-national-inter-college-barabanki-v-j-d-of-edu-faizabad-ors-49679
- **Pages:** 14

## Headnote

Civil Law - Intermediate Education Act,
1921 - Regulation 31 - punishment order
after retirement - Opposite party no.3
retired on 30.6.2002 on attaining the age
of superannuation - Vide order dated
29.6.2007, resolution for dismissal of
opposite party no.3 was passed by the
committee of management - By impugned
order
dated
28.5.2009
the
D.I.O.S.
disapproved the proposed punishment of
dismissal & directed for payment of the
arrears of salary - Held - there is no
provision contained in the Regulations
under the Intermediate Education Act,
1921
providing
for
conducting
a
disciplinary enquiry & passing punishment
order after the employee attains the age
of
superannuation
nor
there
is
any
provision
providing
that
in
case
misconduct is established, a deduction
could be made from retiral benefits - Also
prior approval of Inspector or Regional
Inspectress
is
necessary
in
case
of
dismissal of non-teaching staff and if such
prior
approval
is
not
taken
before
termination
of
the
services,
the
termination is illegal - the respondent no.3
entitled for the payment of arrear of
salary applicable to the post of clerk.
(Para 25, 26)

Disposed off. (E-5)

List of Cases cited:

## Text

_Characters 0–39,918 of 48,589. This is a partial read: ask again with offset=39918 for what follows._

2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
449
in the advertisement, are not supposed to be
in the knowledge of a candidate.

20. The learned Single Judge allowed
the writ petition bearing Writ-A No.13847
of 2021 on the ground that in earlier round
of
litigation
the
State-respondents
themselves had given clear statement that
CCC
Certificate
was
not
essential
qualification which was clear from the
Rules and also nothing that was placed on
record contrary to that. While writ petitions
bearing Nos.1782, 5076 and 5140 of 2019
were allowed by the learned Single Judge
holding that the candidature of the writ
petitioners cannot be ignored on the ground
that they do not possess CCC Certificate
from DOEACC/NIELIT as the Rules and
the advertisement do not prescribe so.

21. We find merit in the contention
raised by the learned counsel for the State
that
on
account
of
large
scale
computerisation
in
Government
functioning, qualification of computer
knowledge is must at all levels in the State
and in case such a qualification was
prescribed and all the candidates knowing
fully had participated in the process of
selection, no issue can be permitted to be
raised. Though it was claimed that the VIth
Pay
Commission
suggested
this
qualification to be added, however, without
mentioning in the advertisement, the
Institute from where that certificate has to
be, on this ground the candidature of a
candidate could not be rejected. CCC
Certificate as such may be required,
however, condition that it should be from
DOEACC/NIELIT cannot stand to judicial
scrutiny.

22. So far as the judgement of
Hon'ble Supreme Court in Mukul Kumar
Tyagi's case (supra) is concerned, the
same will not come to rescue of the State
for the reason that the fact as pleaded
before Hon'ble the Supreme Court was
that there is no other Institute except
DOEACC/NIELIT which issues CCC
Certificate. In the case in hand, the
respondents have produced certificates
from
different
Institutes
and
the
qualification as such has not been denied
by the learned counsel for the State.

23. While concurring with the view
expressed by learned Single Judge in WritA No.1782 of 2019 and in Writ-A
No.13847 of 2021, the present appeals are
disposed of and the writ petitioners are
held entitled to the relief, as granted by
learned Single Judge.

24. As the issues under consideration
pertain to an advertisement issued way
back in the year 2016 for which the
selection process was concluded in the
year 2019, any other writ petition filed
claiming
the
same
relief
will
be
considered on its own merits including the
principle of delay and laches.
----------
(2023) 2 ILRA 449
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 3597 of 2009

C/M National Inter College, Barabanki
 ...Petitioner
Versus
J.D. of Edu., Faizabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Neerav Chitravanshi
450 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sharad Pathak

Civil Law - Intermediate Education Act,
1921 - Regulation 31 - punishment order
after retirement - Opposite party no.3
retired on 30.6.2002 on attaining the age
of superannuation - Vide order dated
29.6.2007, resolution for dismissal of
opposite party no.3 was passed by the
committee of management - By impugned
order
dated
28.5.2009
the
D.I.O.S.
disapproved the proposed punishment of
dismissal & directed for payment of the
arrears of salary - Held - there is no
provision contained in the Regulations
under the Intermediate Education Act,
1921
providing
for
conducting
a
disciplinary enquiry & passing punishment
order after the employee attains the age
of
superannuation
nor
there
is
any
provision
providing
that
in
case
misconduct is established, a deduction
could be made from retiral benefits - Also
prior approval of Inspector or Regional
Inspectress
is
necessary
in
case
of
dismissal of non-teaching staff and if such
prior
approval
is
not
taken
before
termination
of
the
services,
the
termination is illegal - the respondent no.3
entitled for the payment of arrear of
salary applicable to the post of clerk.
(Para 25, 26)

Disposed off. (E-5)

List of Cases cited:

1. C/M Sarswati Laghu Madhyamik Vidyalaya Vs
St. of U.P. & ors.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Shri Neerav Chitravanshi,
learned counsel for the petitioner, learned
Standing Counsel for the respondents-State
and Shri Sharad Pathak, learned counsel for
the respondent no.3.

2. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ in the nature of Certiorari
quashing
the
impugned
order
dated
28.5.2009 passed by opposite party no.2
with further prayer to issue a writ in the
nature of Mandamus commanding the
opposite parties not to give effect to the
impugned and further to grant approval for
the dismissal of service of the opposite
party no.3 in pursuance to the resolution of
the petitioner dated 29.06.2007 (Annexure
No.18 to the writ petition).

3. Facts of the case are that the
Management Committee National Inter
College, Fatehpur, Barabanki (hereinafter
referred to as 'Society'), is a Society
registered under the Societies Registration
Act, 1860 which manages and runs
National Inter College, Fatehpur, Barabanki
through its Committee of Management to
be
elected
as
per
the
Intermediate
Education Act, 1921 as well as the
approved scheme of administration. The
college is a recognized aided institution.

The opposite party no.3 was working
as Assistant Clerk in the National Inter
College, Fatehpur, Barabanki (hereinafter
referred to as 'College') , who was assigned
the charge of Library of the College. On
24.1.2007, the opposite party no.3 was
suspended
by
the
petitioner
in
contemplation of a disciplinary enquiry in
respect of several charges of very serious
nature. The order of suspension was sent to
the opposite party no.2 for his approval
vide letter dated 24.2.2007. The Manager
of the College was also appointed as the
enquiry officer for conducting the inquiry
against the opposite party no.3 vide
resolution
of
the
petitioner
dated
24.01.2007 itself.

Thereafter, on 14.3.2007, the opposite
party no.2 had approved the order of
suspension of the opposite party no.3. In
2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
451
the meantime, the enquiry officer had
served the charge-sheet dated 9.2.2007
containing seven serious charges along
with all the relevant material on the
opposite party no.3 which was earlier
refused to be received by the opposite party
no.3 personally and had asked him to
submit his reply to the charge-sheet within
the time stipulated in the same.

Despite service of the charge-sheet,
the opposite party no.3 did not submit any
reply to the charge-sheet within the
stipulated time. The enquiry officer again
by means of several letters and reminders
including dated 14.2.07, 17.2.07, 21.02.07,
05.03.07 and 14.03.07 asked the opposite
party no.3 to submit his reply to the chargesheet and also requested him to participate
in the enquiry fixing date and time in the
said letters and reminders for holding the
enquiry and had also specifically asked the
opposite party no.3 to be present before
him on the specified date and time and if he
wants any document or examine any record
he may do so on the specified date and
time.

In
spite
of
several
letters
and
reminders, the opposite party no.3 did not
submit any reply to the charge sheet nor he
ever appeared before the enquiry officer on
the date and time so specified in the said
letters and reminders but he had been
prolonging the enquiry by adopting the
dilatory tactics and writing letters in this
regard.

Thereafter, the enquiry officer having
left with no other option had concluded the
enquiry ex-parte and submitted its report to
the petitioner on 16.04.2007 in which all
the charges levelled against the petitioner
were found proved on the basis of evidence
and material on record.

On 17.4.2007, the enquiry officer
issued a show cause notice to the opposite
party no.3 along with the enquiry report
asking him to submit any reply or
representation to the charge-sheet or to the
enquiry report, if any, as a last opportunity.
In reply to the said notice, the opposite
party no.3 submitted a letter demanding
certain documents, though all the material
referred to in the charge-sheet was already
made available to the opposite party no.3.

Subsequently,
the
enquiry
officer
submitted its enquiry report along with the
show cause notice and all the relevant
material and also explaining the conduct of
the opposite party no.3 during the enquiry
before the petitioner on 5.5.2007 and the
petitioner inturn issued a notice to the
opposite party no.3 on 6.5.2007 fixing
20.5.2007 as the date of meeting of the
petitioner and had asked the opposite party
no.3 to remain present on the said date
before the petitioner and to present his case
if he so desires, before the petitioner.

In response to the said notice of the
petitioner, the opposite party no.3 appeared
before it on the said date fixed and
submitted a letter demanding certain
documents. Though all the material was
already made available to the opposite
party no.3 but taking a lenient view the
petitioner
again
vide
a
letter
dated
20/24.5.07
supplied
all
the
relevant
documents to the opposite party no.3. But,
even after receiving the said documents, the
opposite party no.3 did not submit any
reply and only in order to further prolong
the proceedings again submitted a letter
demanding some more documents, though
they have got no relevancy with the
submission of reply.

When the opposite party no.3 had
again failed to submit any reply or
representation to the charge-sheet or
enquiry report or to present his case, the
enquiry officer having regard to the
conduct of the opposite party no.3 during
the enquiry and after his suspension also
452 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted its supplementary report to the
petitioner on 10.6.2007 in which all the
charges were found proved against the
opposite party no.3 in view of the earlier
enquiry report.

Subsequently, the petitioner in its
meeting held on 29.06.07 considered the
entire matter of the opposite party no.3
including the charge-sheet, enquiry report,
notice, its reply as well as all the relevant
material and evidence on record and
unanimously passed the resolution for
dismissing the services of the opposite
party no.3.

Thereafter, the said resolution of the
petitioner along with all the relevant
material in this regard including the chargesheet, enquiry report, notice, its reply as
well as the entire material on record was
sent by the petitioner to the opposite party
no.2 for his prior approval on 6.7.07. After
the submission of letter dated 6.7.07, the
petitioner never heard anything from the
opposite party no.2 nor it was given any
information about any proceedings held by
the opposite party no.2 in this regard. It
was only in the mid of February, 2009, the
petitioner came to know that the opposite
party no.2 has passed some order on
10.2.09, whereby he has set aside the order
of suspension as well as resolution of the
petitioner along with letter dated 6.7.07
issued with regard to the dismissal of the
opposite party no.3 and has further directed
for reinstating him in service.

In the said order dated 10.02.2009, the
opposite party no.2 has mentioned that the
opposite party no.3 has given some
representation to him on 29.01.09 on which
he has sought the report from the petitioner
fixing 09.02.09 as the date in the matter.
But it does not disclose as to on what date
the opposite party no.2 has issued any letter
or order to the petitioner informing about
the matter and as to whom the said letter or
order was served in the college.

It is respectfully submitted that no
such letter or order of the opposite party
no.2 as alleged was ever received in the
college nor any such alleged information
was ever received and as such, the
petitioner was having no knowledge about
any such alleged proceedings. Since the
said order dated 10.02.2009 was passed exparte without providing any opportunity to
the petitioner on the basis of unauthorized
representation made by the Assistant
Manager as well as the opposite party no.2
did not even consider the records relating to
enquiry and resolution of the petitioner in
this regard so, the petitioner has filed a writ
petition before this Hon'ble Court being
Writ Petition No.2495 (SS) of 2009
(Committee of Management of National
Inter College v. Joint Director of Education
and others), challenging the order dated
10.2.2009. The said writ petition was
disposed of vide judgment and order dated
29.4.2009 directing the opposite party no.2
to consider and pass an order afresh after
providing opportunity to the petitioner as
well as having regard to the records
submitted by the petitioner and the opposite
party no.3.

Though the entire records relating to
enquiry and resolution passed by the
petitioner have already been submitted
before the opposite party no.2 way back on
06.07.2007 itself but in compliance of the
judgment and order passed by this Court
dated 29.4.2009, the petitioner has on
18.05.2009 again submitted a detailed
representation before the opposite party
no.2 along with all necessary material
including charge-sheet, inquiry report as
well as the resolution of the petitioner etc.
for the purposes of grant of approval for
dismissal of the opposite party no.3.
2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
453

The opposite party acknowledged the
said representation of the petitioner has
issued a letter on 18.5.2009 itself fixing
27.05.2009 at 12.00 noon as the next date
for hearing in the matter. The opposite
party no.2 also required the opposite party
no.3 to place the material, if any, on or
before the date fixed. On the date fixed by
the opposite party no.2 i.e. 27.5.2009 the
Manager of College has gone to the office
of the opposite party no.2 at 12.00noon and
remained present their till 2.00 o'clock, but
the opposite party no.2 has not come to his
office during the said period. In the
circumstances, the Manager submitted a
letter in the office of the opposite party
no.2 stating therein the aforesaid position
and requested for informing about the next
date fixed in the matter and then she left the
office of the opposite party no.2.

Thereafter, the petitioner never heard
anything from the office of the opposite
party no.2 about the next date fixed in the
matter or any other information in this
regard.
However,
on
30.5.2009,
the
petitioner came to know that the opposite
party no.2 has again on 28.05.2009 ex-parte
passed an order setting aside the order of
suspension as well as the letter seeking
approval for dismissal of service of the
opposite party no.3 and further directed for
payment of the arrears of salary.

4. Learned counsel for the petitioner
submitted that the impugned order passed
by the opposite party no.2 is illegal,
malafide and has been issued without any
application of mind, as such the same is
liable to be quashed as he has totally
ignored the entire material and evidence on
record before him for taking decision as
regards the grant of approval for dismissing
the services of opposite party no.3 which
has been submitted him after a detailed
enquiry on the basis of material on record.

5. Learned counsel for the petitioner
next submitted that the impugned order has
been passed by the opposite party no.2
without even providing any opportunity of
being heard to the petitioner for the
extraneous consideration in utter violation
of Articles 14 and 16 of the Constitution of
India as well as principles of natural
justice, equity and good conscience, as
such also the impugned order is liable to be
quashed.

6. Learned counsel for the petitioner
next submitted that opposite party no.2 also
did not inform to the petitioner about any
next date fixed in the matter as requested in
the letter dated 27.5.2009 and the petitioner
was given no information about the date
fixed i.e. 28.5.2009 as alleged in the
impugned order, which fact has also been
incorrectly mentioned by the opposite party
no.2.

7. Learned counsel for the petitioner
next submitted that the opposite party no.2
has also incorrectly mention the fact in the
impugned order that the petitioner did not
produce any material and evidence in the
matter under reference without even failing
to consider that the entire material relating
to the enquiry as well as the resolution of
the petitioner was before him along with
letter dated 6.7.2007 seeking approval for
dismissal of the opposite party no.3. He
next submits that the opposite party no.2
has also failed to consider that the
petitioner in compliance of the judgment
and order of this Court has again on
18.5.2009 submitted all necessary material
relating to enquiry and resolution of the
petitioner along with its representation.

8. Learned counsel for the petitioner
next submitted that the opposite party no.2
has also failed to consider that the
454 INDIAN LAW REPORTS ALLAHABAD SERIES
resolution of the petitioner for dismissal of
service of the opposite party no.3 was
unanimously passed after a detailed enquiry
on the basis of documentary evidence on
record and the entire material relating to the
said enquiry was submitted before the
opposite party no.2 along with the letter
dated 6.7.2007 seeking his prior approval
for dismissing the services of the opposite
party no.3. He next submitted that the
opposite party no.2 ought to have taken any
decision only on the basis of the material
on record before him and not otherwise.

9. Learned counsel for the petitioner
next submitted that on the one hand, the
opposite party no.2 is not acting in
accordance with law in the matter of taking
decision for the grant of approval for
dismissal of the opposite party no.3 and
again and again passing the orders for
extraneous considerations and on the other
hand, the opposite party no.2 is coercing
the petitioner to make the payment of
salary to the opposite party no.3.

10. Per contra, learned counsel for the
respondents-State submitted that pursuant
to the order dated 29.4.2009 passed by
Hon'ble Court in Writ Petition No.2495(SS)
of 2009 letters were sent to the Committee
of Management and Ajay Kumar Nigam for
hearing and thereafter, giving them proper
opportunity of hearing the matter was
decided on documents made available to
opposite party no.2 by the parties in
question.

11.

Learned
counsel
for
the
respondents-State next submitted the present
Committee of Management was sought
paragraph reply on the representation of
opposite party no.3 dated 29.1.2009, but the
Assistant Manager of the College informed
the then DIOS that no documents have been
made available to the present Committee of
Management by the previous Committee of
Management and the present Committee of
Management has no complaint against the
opposite party no.3 and no documents were
made available and therefore, the impugned
order was passed accordingly and the
suspension and the dismissal of the opposite
party no.3 were set aside.

12.

Learned
counsel
for
the
respondents-State submitted that the then
D.I.O.S. on the representation of the
petitioner dated 18.5.2009 and 27.5.2009
have decided the entire issue after giving
opportunity of hearing to both the parties and
on the request of the petitioner the date of
hearing has been postponed from 27.5.2009
to 28.05.2009.

13. Learned counsel for the respondent
no.3, while adopting submissions advanced
by learned counsel for the respondents-State,
submitted that in the writ petition stand has
been taken in regard to non-payment of
subsistence allowance to the petitioner that
bill
regarding
payment of
subsistence
allowance has been sent to the office of
District Inspector of Schools, but the
subsistence allowance has not been paid due
to fault of the office of the District Inspector
of Schools.

14. Learned counsel for the respondent
no.3 next submitted that another contrary
stand has been taken that the subsistence
allowance because the petitioner did not
come to College and did not request for
payment of subsistence allowance and,
therefore the subsistence allowance has been
refused to be paid.

15.

Learned
counsel
for
the
respondent no.3 next submitted that the
contradictory stand itself disentitles the
2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
455
petitioner from approaching this Hon'ble
Court under extraordinary jurisdiction
under Article 226 of the Constitution of
India. The fact is that the petitioner has not
been paid subsistence allowance and the
petitioner has made repeated request for
payment of the same. On the repeated
request of the petitioner for payment of
subsistence allowance the then Manager
(Shri Prabhakar Dutt Shukla) himself has
directed
for
payment
of
subsistence
allowance and directed the officiating
Principal to prepare the bill for payment of
subsistence allowance on 13.11.2007 and
again on 17.11.2008.

16.

Learned
counsel
for
the
respondent no.3 next submitted that on
27.5.2009 the District Inspector of Schools
after finding that no enquiry has been
conducted in the matter observed that the
entire proceedings against the deponent is
illegal and then adjournment was sought by
Smt. Suman Singh.

17. Learned counsel for the respondent
no.3 next submitted that in view of the
aforesaid facts it is apparent that the
petitioners are guilty of not only concealment
of facts but also not approaching the Hon'ble
Court with clean hands and, therefore, the
present writ petition deserves to be dismissed
by this Court.

18.

Learned
counsel
for
the
respondents next submitted that opposite
party no.3 retired from service. In the Basic
Education Act, 1972 and Act of 1978, there
is no provision to continue the disciplinary
proceedings, therefore, his submission is
that in absence of any provision under the
Act to continue the disciplinary proceeding
after the retirement, no proceeding can be
continued against the petitioner, thus he is
entitled for all benefits available.

In support of his submission, learned
counsel for the respondent no.3 has placed
reliance
upon
judgment
and
order
18.1.2021 passed by this Court in the Case
of C/M Sarswati Laghu Madhyamik
Vidyalaya v. State of U.P. and others.

19. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

20. In the Case of C/M Saraswati
Laghu Madhyamik Vidyalaya (supra) relied
by learned counsel for respondent no.3, this
Court has held in paragraphs 14,15,16 and
17 as under:

"14: On perusal of the record, it is
evident that the Director of Education (Basic)
has directed the Committee of Management
to make payment of salary as well as arrears
to the respondent No.5. The Director of
Education (Basic) in absence of any order
passed by the District Basic Education
Officer, has no jurisdiction to usurp the
power of the District Basic Education Officer,
but as a matter of fact, the disciplinary
proceeding initiated against the respondent
No.5 and proposal made to the District Basic
Education Officer is subject to approval
required under Rule 15 of the Rules of 1978.
The provision contained under Rule 15 of The
U.P. Recognised Basic Schools (Junior High
Schools) (Recruitment And Conditions Of
Service Of Teachers) Rules, 1978 is quoted
below :-

"15. Termination of service. - No
Headmaster or Assistant Teacher of a
recognised school may be discharged or
removed or dismissed from service or
reduced in rank or subjected to any
diminution in emoluments or served with
notice of termination of service except with
the prior approval in writing of the District
Basic Education Officer :
456 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that in the case of the
Headmaster or an Assistant Teacher of a
minority institution the approval of the
District Basic Education Officer shall not
be necessary."

15: The controversy in regard to the
continuation of disciplinary proceeding and
payment of salary after retirement came for
consideration before the Hon'ble Supreme
Court in the case of Bhagirathi Jena Vs.
Board of Directors O.S.F.G. & others [AIR
1999 SC 1841], wherein the Hon'ble
Supreme Court while considering the
disciplinary proceeding after retirement,
has held as under :-

"It will be noticed from the abovesaid
regulations that no specific provision was
made for deducting any amount from the
provident
fund
consequent
to
any
misconduct determined in the departmental
enquiry nor was any provision made for
continuance of departmental enquiry after
superannuation, in view of the absence of
such
provision
in
the
abovesaid
regulations, it must be held that the
Corporation had no legal authority to make
any reduction in the retiral benefits of the
appellant. There is also no provision for
conducting a disciplinary enquiry after
retirement of the appellant and nor any
provision stating that in case misconduct is
established, a deduction could be made
from retiral benefits. Once the appellant
had retired from service on 30.6.95. there
was no authority vested in the Corporation
or continuing the departmental enquiry
even for the purpose of imposing any
reduction in the retiral benefits payable to
the appellant. In the absence of such
authority, it must be held that the enquiry
had lapsed and the appellant was entitled
to full retiral benefits on retirement.

Learned
senior
counsel
for
the
respondent placed reliance on the judgment
of this Court in T.S. Mankad v. State of
Gujarat reported in, [1989] Suppl. 2 SCC
110. It is true that that was a case of
imposing a reduction in the pension and
gratuity on account of unsatisfactory
service of the employee as determined in an
enquiry which was extended beyond the
date of superannuation. But the above
decision
cannot
help
the
respondent
inasmuch as in that case there was a
specific rule namely Rule 241-A of the
Junagadh State Pension and Parwashi
Allowance Rules, 1932 which enabled the
imposition of a reduction in the pension or
gratuity of a person after retirement.
Further, there were rules in that case which
enabled the continuance of departmental
enquiry even after superannuation for the
purpose of finding out whether any
misconduct was established which could be
taken into account for the purpose of Rule
241-A. In the absence of a similar provision
with
Regulations
of
the
respondent
Corporation,
the
above
judgment
of
Mankad's case cannot help the respondent.

The question has also been raised in
the appeal in regard to the payment of
arrears of salary and other allowances
payable to the appellant during the period
he was kept under suspension and upto the
date of superannuation. Inasmuch as the
enquiry had lapsed, it is, in our opinion,
obvious that the appellant would have to
get the balance of the emoluments payable
to him after deducting the suspension
allowance that was paid to him during the
abovesaid period.

The appeal is therefore allowed
directing the respondent to pay arrears of
salary and allowances payable to him
during the period of suspension upto the
date of superannuation after deducting the
suspension allowance paid to him for the
said period and also to pay the appellant,
all the retiral benefits otherwise payable to
him in accordance with the rules and
2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
457
regulations applicable, as if there had been
no disciplinary enquiry or order passed
there in."

In the circumstances the judgment and
order of the High Court is set aside. The
writ petition of the appellant is allowed in
terms of the directions given above. No
order as to costs."

16: This Court in the case of Ravindra
Singh Rathore Vs. District Inspector of
Schools and Others decided by the
Allahabad High Court in Writ Petition
No.16905 of 2000 vide judgment and order
dated 26.9.2003 has held that in absence of
provision, no disciplinary proceeding can
continue after the retirement and the
employee is entitled for all consequential
benefit permissible to the post. The relevant
paragraphs 23, 24, 25, 26, 27, 28, 29, 30,
31 and 32 are being quoted below :-

"23. As noticed hereinbefore there is
no specific provision which empowers the
continuance of a disciplinary proceedings
against an employee, teacher and Principal
of an aided educational institution in the
State of U.P. Rules 30 and 32 of the 1964
Rules also do not empower for continuance
of departmental enquiry once the person
has
retired.
Thus,
the
disciplinary
proceedings could not have continued and
it lapsed.

24. In the case of State Bank of India
v. A.N. Gupta and Ors., (1997) 8 SCC 60,
the
Hon'ble
Supreme
Court
was
considering the question as to whether a
departmental enquiry can be continued
after the retirement in case of an employee
of the State Bank of India. The Apex Court
considered the judgment of the Andhra
Pradesh High Court in T. Narasiah v. State
Bank of India, (1978) 2 LLJ 173. In
paragraph 14 of the judgment, the Hon'ble
Supreme Court has held as follows :

"14. In the case before the Andhra
Pradesh High Court (T. Narasiah) the
petitioner was an officer in the State Bank.
Disciplinary proceedings were initiated
against him but before these could be
completed the officer was informed by the
Bank through its letter dated 5.5.1976, that
it was not possible for the Bank to complete
the enquiry well in time before the officer
attained the age of 60 years which was the
date of his superannuation. He was told he
would therefore cease to be in the Bank's
service on the date of his superannuation
and he would not be paid any subsistence
allowance with effect from that date. The
officer was treated as having retired and
ceasing to be in the employment of the
Bank with effect from 10.5.1976. The
Officer claimed his provident fund and
pension and on the Banks' refusal to pay
the same, a writ petition was filed. During
the course of the hearing of the writ
petition it was submitted by the Bank that it
had since decided to pay the provident fund
in full to the officer and the Bank had also
no objection to pay his contribution to the
pension and that as far as the payment of
the Bank's share in the pension fund was
concerned, the officer was not entitled
thereto unless and until the Bank granted
the same in accordance with Rule 11 of the
Pension Rules. It was contended before the
Andhra Pradesh High Court by the officer
that Rule 11 had no application in his case
and on attaining the age of superannuation
he automatically went out of the service of
the Bank. The Bank, however, relied on
Rule 11 to withhold the Bank's contribution
to the pension fund. The Court was of the
view that Rule 11 had to be read in its
context and consistent with the object
behind the said Rule. It held that the Rule
applied not only in the case of the
retirement contemplated by Rule 19 but
also to cases of retirement of employees on
attaining the age of superannuation. The
Court observed that it might happen that
458 INDIAN LAW REPORTS ALLAHABAD SERIES
the irregularities of misfeasance of an
employee could not be detected well before
his retirement so as to initiate and complete
disciplinary enquiry in the matter and
again there might be a case where
disciplinary enquiry was initiated but could
not be completed before the delinquent
employee
attained
the
age
of
superannuation. The Court noted that there
was no provision in the Service Rules of the
Bank providing for extension of service of
an employee to enable the authorities to
complete the disciplinary enquiry against
him which power was available under the
Government Service Rules. The Court said
even if an enquiry was pending against an
employee there was nothing to stop him
from retiring on his attaining the age of
superannuation. The enquiry could not
continue after his retirement. The Court
was therefore, of the opinion that it was for
that reason that the bank had reserved to
itself the power to sanction the pensionary
benefit under Rule 11 and if there was
nothing wrong with the service of an
employee throughout, the Bank would
naturally sanction the pension, but if there
was sufficient material disclosing grave
irregularities on the part of the employee,
the Bank might be well within its power in
refusing
to
sanction
the
pensionary
benefits, or in sanctioning them only partly.
The learned single Judge of the Andhra
Pradesh High Court then went on to hold
as under :

"Of course, such decision has to be
arrived at fairly, which necessarily means
after holding an enquiry, giving a fair
opportunity to the concerned officer to
defend himself against the accusation. Such
an enquiry would not be a 'disciplinary
enquiry' within the ordinary meaning of the
term, but an enquiry confined to the
purposes of the Rules, viz., whether the
employee
should
be
granted
any
pensionary benefits ; and if so, to what
extent? Such an enquiry can also be made
after the retirement (of an employee ; and
particularly in cases of retirement) on
attaining the age of superannuation,
probably, such enquiry will have to be
conducted only after retirement."

The Court, therefore, gave direction as
to how the enquiry was to be conducted
against the officer so as to entitle him to the
pensionary benefits if he was exonerated.
We are afraid that this view of the Andhra
Pradesh High Court does not commend to
us. By giving such an interpretation to Rule
11 the Andhra Pradesh High Court has, in
effect,
lend
validity
to
disciplinary
proceeding against an employee even after
his superannuation for which no provision
existed either in Pension Rules or in the
Service Rules and when the High Court had
himself observed that an enquiry even if
initiated during the service period of the
employee could not be continued after his
retirement on superannuation."

Thus, the Hon'ble Supreme Court has
held that no disciplinary proceedings
against an employee even after his
superannuation for which no provision
existed either in the Pension Rules or in the
Service Rules, can be continued.

25. Recently, the Hon'ble Supreme
Court in the case of Chandra Singh v. State
of Rajasthan and Anr., JT 2003 (6) SC 20,
has held as follows :

"37. .........A departmental proceeding
can continue so long as the employee is in
service. In the event, a disciplinary
proceeding is kept pending by the employer
the employee cannot be made to retire.
There must exist specific provision in the
pension rules in terms whereof, whole or a
part of the pension can be withheld or
withdrawn wherefor a proceeding has to be
initiated. Furthermore, no rule has also
been brought to our notice providing for
2 All. C/M National Inter College, Barabanki Vs. J.D. of Edu., Faizabad & Ors.
459
continuation of such proceeding despite
permitting the employee concerned to
retire. In absence of such a proceeding, the
High Court or the State cannot contend
that the departmental proceedings against
the appellant Mata Deen Garg could
continue."

26. Applying the principle laid down
in Chandra Singh (supra) and Bhagirathi
Jena (supra) to the facts of the present
case, in the absence of any specific
provision
in
the
1964
Rules,
the
proceedings for continuation of enquiry
after the retirement of the employee lapsed.

27. The disciplinary proceedings can
also not be saved in the present case on the
ground that the committee of management
had passed a resolution dismissing Sri
Ravindra Singh Rathore from the post of
Principal in the college and only the
proposed punishment was required to be
approved by the Board under Section 21 of
the Act of 1982. Section 21 of the Act of
1982 reads as follows :

"21. Restriction on dismissal etc. of
teachers.--The Management shall not,
except with the prior approval of the Board,
dismiss any teacher or remove him from
service, or serve on him any notice of
removal from service, or reduce him in
rank or reduce his emoluments or withhold
his increment for any period (whether
temporarily or permanently) and any such
thing done without such prior approval
shall be void."

28. The statement of objects and
reason for enacting the Act of 1982, inter
alia, provided as follows ;

"...................Under Section 16G (3) of
the Intermediate Education Act, 1921,
managements were authorised to impose
punishment with the approval of the
District Inspectors of Schools in matters
pertaining to disciplinary action. This
provision was found to be inadequate in
cases where the management proposed to
impose
the
punishment
of
dismissal,
removal or reduction in rank and so it was
considered necessary that this power
should be exercised subject to the prior
approval of the Commission or the
Selection Boards, as the case may be,
which could function as an independent
and impartial body."

29. The Hon'ble Supreme Court in the
case of Committee of Management, St.
John Inter College v. Girdhari Singh and
Ors., (2001) 4 SCC 296, has, after taking
into consideration the statement of objects
and reasons of the Act of 1982, held that it
unequivocally
indicates
that
earlier
provisions continued under Section 16G (3)
(a) of the Education Act were found to be
inadequate
where
the
management
proposed to impose the punishment of
dismissal, removal or reduction in rank. In
other words, the Legislature thought that
the power of approval/disapproval to an
order of punishment imposed by the
management should not be vested with a
lower educational authority, like the
District Inspector of Schools, but should be
vested with an independent Commission or
Board which would function as an
independent and impartial body.

30. Under Section 21 of the Act of
1982 the Board has to examine the merits
of
the
case
and
apply
its
mind
independently to the question whether the
evidence on record justify the removal or
not. The Hon'ble Supreme Court in the case
of Committee of Management Bishambhar
Sharan Vaidic Inter College, Jaspur,
Nainital and Anr. v. U.P. Secondary
Education Service Commission and others,
1995 (Supp) 3 SCC 244, in paragraph 4 of
the judgment, has held as follows :

"............. We have also noticed Section
21 of the Act to which our attention was
particularly drawn. We are of the view that
460 INDIAN LAW REPORTS ALLAHABAD SERIES
the High Court has fallen in error in
holding that the enquiry was vitiated
because the charge-sheet was not framed
by the enquiry committee but by the
committee of management. The High Court
has also committed an error in holding that
the Commission could not have gone into
the merits of the case. According to us, in
view of the provisions of the said Section
21, the Commission while deciding whether
or not to grant approval of the removal of a
teacher, has necessarily to go into the
merits of the case and apply its mind
independently to the question whether the
evidence on record justify the removal. It
must be remembered that thecommission
appointed under the Act is a high-powered
body and as a body entrusted with the
important function of supervising the
actions taken by the Management against
the teachers, it has to discharge its
responsibility circumspectively. It cannot
exercise its function effectively unless it
scrutinizes the material and applies its
mind
carefully
to
the
facts
on
record..................."

31. In the case of Punjab National
Bank and Ors. v. Kunj Behari Misra,
(1998) 7 SCC 84, the Hon'ble Supreme
Court has held that the disciplinary
proceedings breaks into two stages.