# Public Inter College, Shahganj and another v. U.P. Secondary

- **Citation:** (1999) 3 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/public-inter-college-shahganj-and-another-v-u-p-secondary-39419
- **Pages:** 7

## Text

96 THE INDIAN LAW REPORTS [1999

14.
In this view of the matter the recovery proceedings initiated
against the petitioner Harshvardhan Mittal has full sanction of law
and no illegality could be found therein. The decision of the Hon'ble
Supreme Court in S.K. Bhargava(Supra) was not against a
"consumer" and in this case since the petitioner Harshvardhan Mittal
is the consumer, the ruling is not applicable at all on the facts of the
case and the restrictive provision are totally different

The writ petition fails and is hereby summarily dismissed.

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1999
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July, 12
3 All.] ALLAHABAD SERIES
97

Cases law discussed;

1995(3), U.P.L.B.E.C. 1593.
W.P. No. 9962 of 88 decided on 10.10.88
1988 U.P.L.B.E.C. 552.
1982 U.P.L.B.E.C. 234.

By the Court

1.
In this writ petition the order dated 13th September,1991,
passed by the U.P. Secondary Education Services Commission being
annexure-50 to the writ petition granting approval to the order of
dismissal of the petitioner from the post of Principal of Sri Krishna
Inter College, Ashram Barhaj, Deoria, is under challenge.

2.
Mr. S.N. Shukla, learned counsel for the petitioner has taken a
simple but interesting point to the extent that the charge sheet was
issued by the Manager and not by the Enquiry Committee appointed
under Regulation 35 Chapter III of the Regulation framed under U.P.
Intermediate Education Act and as such in view of the ratio decided
in the decision in the case of Committee of Management, Shahganj
Public Inter College, Shahganj and another Vs. U.P. Secondary
Education Service Commission, Allahabad and another [(1995)3
UPLBEC 1593] interpreting Regulation 35 and 36 of the said
Regulation, Admittedly, the chargesheet was issued by the Manger.
There is nothing to show that the chargesheet was forwarded by the
Manager having been framed by the Enquiry Committee nor there is
anything to show that the chargesheet was approved by the
Committee of Management and the Manager was authorised to
forward the same. There is also nothing to indicate that the Enquiry
Committee had ever authorised the Manager to issue the chargesheet
framed by it. In such circumstances, Mr. Shukla contends that the
whole enquiry is vitiated and no approval could be granted by the
Service Commission to the proposed punishment pursuant to the
enquiry. Though he had taken various other points, it is not necessary
to go into those questions until a decision on the point raised by Mr.
Shukla is arrived at.

3.
Mr. A.N.Singh, learned counsel for the respondent, the
Committee of Management on the other hand contends that the
Committee of Management had approved the chargesheet as is
apparent from the resolution dated 10th January,1988. The Manager
1999
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V.D. Tiwari
 Vs.
U.P.Se condary
Education
Service
Commission ,
Alld. & others
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D.K. Seth, J.
98 THE INDIAN LAW REPORTS [1999
hadforwarded the chargesheet on behalf of the Committee of
Management and as a Manager he is authorised to do so. Secondly,
he contends that Regulation 35 and 36 of the said Regulation does
not prescribed that the chargesheet had to be issued by the Enquiry
Committee and a chargesheet issued by the Manager would be
invalid.

I have heard both the counsel at length.

4.
It appears that Regulation 35 has not specified that the
chargesheet has to be issued by the Enquiry Committee. Regulation
35 prescribes if the complaint or the adverse report of charges
appears to be serious then the Committee of Management shall
appoint the Principal or the Manager as an Enquiry Officer in respect
of all other employees or the Manager himself may hold the enquiry
if in the scheme of administration any such authority is conferred on
the Manager. In case of enquiry against the principal or the
Headmaster, a small Sub-committee is to be constituted which
should be directed to submit its report early. Thus Regulation 35
does not prescribed that the chargesheet is to be issued in the case of
a Principal by the Committee of Enquiry. On the other hand it
prescribes that for enquiry against the Principal or Headmaster, a
Sub-committee is to be constituted.

5.
Regulation 36 is construed on indirect note. Regulation 36 has
not prescribed as to by whom such chargesheet is to be issued. It
does not also prescribe that such charges are to be approved either by
the Committee of Management or by the Enquiry Committee in the
case of Headmaster or Principal. It also does not say that such
chargesheet cannot by framed by the Manager.

6.
Be that as it may, despite in absence of any such specific
provision in Regulation 35 and 36, the learned Single Judge in the
decision in the case of Committee of Management, Shahganj Public
Inter College (Supra) had held while interpreting Regulation 35 & 36
that in the case of Headmaster or Principal, the chargesheet has to be
issued by the Sub-committee of Enquiry. In case such chargesheet is
issued by the Manager in respect of Headmaster or Principal in that
event, the same would be incompetent. The said decision had relied
upon a Division Bench judgement in the case of Committee of
Management, S.B.Inter College, Lahua Kalan, Dist. Azamgarh Vs.
U.P. Secondary Education Service Commission, Allahabad & others
in Civil Misc. Writ petition No. 9962 of 1988 decided on 10th
1999
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V.D. Tiwari
 Vs.
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Education
Service
Commission ,
Alld. & others
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D.K. Seth, J.
3 All.] ALLAHABAD SERIES
99
October,1988. In the said decision, the Division bench had upheld
the order of the Commission which disapproved the proposal for
termination of services of the Principal of the College on the ground
that the chargesheet was served by the Manager of the Institution and
not by the Enquiry Sub-Committee. The Division Bench had held
that it was thus clear that the chargesheet was not given by the subcommittee. This was enough to sustain the impugned order
disapproving the order of termination. The decision in the case of
Committee of Management, Shahganj Public Inter College (Supra)
had also confirmed the order of the Commission which refused to
approve the order of punishment only on the ground that the
chargesheet was issued by the Manager on the Headmaster/Principal
and not by the Sub-committee.

Even if, I may have reservation and unless I am able to
distinguish the decision, as a Single Judge, I am bound by the
decision of the Division Bench.

7.
A reading of the decision in the case of Committee of
management Shahganj Public Inter College (Supra), clearly indicates
that the chargesheet against the Principal or Headmaster, unless
issued by the Sub-committee for enquiry would vitiate the enquiry
proceeding and the Commission cannot approve the same. Here in
this case, the chargesheet has been issued by the Manager and not by
the Sub-Committee. The Commission could not have approved the
order of punishment in view of the ratio decided in the case of
Committee of Management, S.B.Inter College, Lahua Kalan (Supra)
since relied upon in the decision in the case of Committee of
Management, Shahganj Public Inter College (Supra).

8.
This ground is sufficient for setting aside or quashing the
order of approval granted by the Commission contained in annexure50 to the writ petition.

9.
Mr. A.N.Singh, learned counsel for the respondent had,
however, contended that this point was not taken before the
Commission by the petitioner. The question is a question of the
jurisdiction of initiation of the proceeding. An enquiry proceeding is
initiated by issue of chargesheet. In the present case, the chargesheet
appears to have been issued on 23rd January, 1988 while the SubCommittee for enquiry was constituted on 10th January, 1988. Thus
the enquiry having been initiated on the basis of the chargesheet
issued against the Principal by the Manager having been found
1999
------
V.D. Tiwari
 Vs.
U.P.Se condary
Education
Service
Commission ,
Alld. & others
------
D.K. Seth, J.
100 THE INDIAN LAW REPORTS [1999
contrary to the ratio laid down in the case of Committee of
Management, Shahganj Public Inter College (Supra) relying upon a
decision in the case of S.B.Inter College (Supra) the same cannot be
basis of foundation for granting approval to the order of punishment
by the Commission. As such, the said order cannot be sustained.

10.
Mr. Shukla had also relied upon the decision in the case of
Mangla Prasad Upadhya Vs. State of U.P. & others [1988 UPLBEC
552]. In the said judgement, the learned Single Judge had held that in
law, the chargesheet has to be framed by the Enquiry Committee and
the service must be of the chargesheet framed by the Committee and
not by the Institution. In the present case as rightly contended by Mr.
Shukla, there is nothing to show that the sub-committee has framed
the chargesheet and served it.

11.
Mr. AS.N.Singh has not been able to draw my attention to any
material from where it can be shown that the chargesheet was framed
by the sub-committee and the Manager was only a forwarding agent.
Mr. Singh has relied upon the decision in the case of Keshaw Prasad
Mishra Vs. Managing Committee, Gayatri Vidya Mandir, Dist.
Hamirpur and others [1982 UPLBEC 234]. He contended relying on
the said decision that if the chargres are formulated by the subcommittee and it is so forwarded by the Manager in that event, it will
not be an infirmity and it cannot be said that the chargesheet was not
served by the Sub-committee. In the present case, according to him,
preliminary enquiry has been made by the Sub-committee whereby
the chargesheet was formulated and served by the Manager.

12.
In the said case, Enquiry Sub-committee had held a
preliminary enquiry and had formulated the charges which was
served by the Manager. Therefore, the Court had held that if the Subcommittee had formulated the charges, the mere service thereof by
the Manager would not violate Regulation 35. But in the present
case, there is nothing to show that the charges were formulated by
the Sub-committee. Admittedly, the preliminary investigation was
carried on by a Committee consisting of persons different than those
consisted of the Enquiry Sub-committee. This decision is not in
conflict with the other Division Bench judgement to the extent that
the chargesheet is to be formulated and framed by the Enquiry Subcommittee. In case the charges are formulated or framed by the Subcommittee then the service thereof by the Manager in respect of an
enquiry against the Principal or Headmaster would not vitiate the
enquiry. This judgement in the case of keshaw prasad Misra (Supra)
1999
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V.D. Tiwari
 Vs.
U.P.Se condary
Education
Service
Commission ,
Alld. & others
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D.K. Seth, J.
3 All.] ALLAHABAD SERIES
101
on the other is in line with the ratio decided in the case of Committee
of Management, S.B.Inter College (Supra). There has been no
conflict between two Division Bench judgment in relation to the
ratio involved. It is not possible for me to differ from the said
judgement with regard to the particular question of law as advanced
by Mr. Shukla. Since in the facts of the case, there is nothing to show
that the chargesheet was formulated by the Enquiry Sub-committee
or that the same Members of the Enquiry Sub-committee and the
Preliminary Enquiry Committee were same.

13.
The preliminary enquiry is in effect a fact finding enquiry to
obtain materials for forming an opinion as to the graveness of the
charges and necessity to hold the enquiry. Therefore, the Subcommittee holding preliminary enquiry is a Sub-committee
completely distinguished and different from the Enquiry Subcommittee. Then again, the Committee of Management in its
resolution dated 10th January,1988had pointed out that the
chargesheet be served while constitution the Sub-committed for
enquiry thereafter. Thus the chargesheet if there by any, was not a
chargesheet formulated by the Sub-Committee. Though, however,
nothing has been shown that any such chargesheet was approved by
the Committee of Management or that it was ever approved by the
Sub-Committee and only on its direction the Manager had served it
as its forwarding agent. In the circumstances, the said decision does
not help the contention of Mr. Singh.

14.
According, the order dated 13th September, 1991 contained in
annexure-50 is liable to be quashed and is, accordingly, quashed. Let
a writ of certiorari do accordingly issue.

15.
Mr. Shukla submits that the petitioner had attained the age of
superannuation on 30th June, 1996 and had already retired. In such
circumstances, there is no scope for reinstatement of the petitioner.
Therefore it is hereby declared that the petitioner is entitled to all
service benefits as if he had continued as Principal/Headmaster of
the said school till superannuation and accordingly all such service
benefits is to be made available to the petitioner as well as
consequential retirement benefits as admissible in law may also be
made available to the petitioner. All such does of the petitioner may
be paid to the petitioner as early as possible preferably within a
period of six months from the date of communication of this order to
the concerned respondent. Let a writ of mandamus do accordingly
issue.
1999
------
V.D. Tiwari
 Vs.
U.P.Se condary
Education
Service
Commission ,
Alld. & others
------
D.K. Seth, J.
102 THE INDIAN LAW REPORTS [1999

In the result the writ petition succeeds and is allowed as
above. However, there will be no order as to costs.

Let a certified copy of this order be given to the counsel for
the petitioner on payment of usual charges.

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By the Court

The prayer of the petitioner is to command Respondent No. 1
to withdraw its water connection forthwith and to submit past bills
for adjudication to some Tribunals as required under the law.

1999
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July, 22