IN THE HIGH COURT OF JUDICATURE AT BILASPUR(CHHA'ITISGARH) WRIT PEHHON No.3lté7/2oo3 /’ PEI’ITIONER Anand Ram S/o. Sri Kama! Sai Aged about 31 years R/o. Vill. Pachira, P.O. Surajpur, Tah: & P.S. Surajpur Dist— Sarguja VERSUS .RESPONDENTS : b) Dayanand Anglo Vedic College Trust and Management Society Chitragupta Raod, New Delhi — Through its President. Regional Director/Manager, School Managing Committee/ Member Disciplinary Committee, Dav Public School, C.G. & M.P Zone, Hudco, Bhilai, Distt. Durg (C.G.) School Managing Comitee, Dav Public School, SECL, Bishrampur area, Governing body of the school, Through its com. SECL, Bishrampur Area/Chairman of the SMC/ Governing Body/ Disciplinary Committee Dav Public School SECL, Bishrampur Area, Distt. Surguja (C.G.) through it’s principal / secretary, SMC / Member, Committee. r ”Prashant Kumar, S/o.Mr.G.N. Sahai, Principal aged 42 years, Dav public School, SECL Bishrampur, Distt. Surguja (C.G.) ‘ 6) Centrl Board of Secondary Education Shiksha Kendra — 2, Community Centre, Preet Vihar, New Delhi — 92 Through its Secretary. / /’ PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRITS DIRECTIONS AND/OR ORDERS $§€i ST yg O “ I i T3 ‘L‘L5-~ ah 7 * 4 W3? (‘ (Ty; 13'? {I T 4 . 9 DETAILS OF THE PETITION HIGH COURT OF CHHATTISGARH AT BILASPUR “Hit Pétition No. 3167 of 2003 Petitioxmr Anand Ram Versus - Dayanand Anglo Vedic CoHege {in Rssponden‘ts others ’ SE: Hon’bie Mr. Justica Satish K. Agihotri, J Shn' S.C. Verma, counsel for the petitioner. Shri Ashish Shrivastava, counsel with Ms. Smifa Ghai, counsel for the rsspondcrlts. ORALORDER ( 22nd Juné, 2006) The foilowing ordar of the Court was passed by $atish K. Aggihatri: J. The presan’: petition filed undar ArticlE 2261f 227 of ths Constitution of India impugns the charge—sheet datsd 1 1.9.2002 (Annexurs P/ 5), thé enquiry roport dated 17.11.2002 (Annexurs P] 12) ami ultimataly “(hit ordsr oftarmination datod 5.2.2003 (Aimexure Pf 9). The facts of the case; in nutshdl, arc that the potitioner was appoinfod as Swespar, Group-D at D.A.V. Public School, Bishrampur X by the respondent No. 2 on regular basis wef. 1.10.1995 by order datsd. 25.11.1995 (Ailnexure Pf 1) in tho pay seals of Rs. 750 -— 940 + allowancas, on probation for a period of two years. 3. Th6 potitionor was served the charge-Sheet dated 11.9.2002 ’ (Annemre P/ 5} com-aiming three charges as prescn'bed under Clause 42.1 (xx) absennng from work even Though present in the school premises or absent Withou: leave. under Clause 42.1 _(iiil insubordinarion and cleflance of lawful order anrl 42. 1 (i) habitual late 1 @7> The petitioner preferred an appeal before the appellate authority, coming and 11€glig6nce of duty under th€ Céntral Board of Ssconciary Eéuca‘rion—Afiiliation By6-1aws 1988. 4. Th6 Show cause notice could not b6 $61V€d on the petitioner and the enquily proceeded exparte. The enquixy report was signed on 17.112002 and submitted on 21.11.2002, holding the petitioner as guiity on account of all the aforesaid three Charges. A second Show cause notice dated 27112002 (Annexure Pj7} was issued to the w ”a 1 petitioner at school address, aiong with a copy of the enquiry report to submit his reply before 10.12.2002; The seconé show cause notice was also not served on the petitioner. Ultimately, by order dated 5.2.2003 (Armexure Pi 9), service of the petitioner was terminated. ()l Presic'lent, D.A.V. College, Managirlg Committee, New Delhi on 3.3.2002 (Anneme P] 10). The appellate authority dismissed the appeal of the petitioner on the ground that there was no merit 1'11 the appeal. Being aggrieved, the petitioner has filed this petition impugning the charge-sheet, enquiry report, termination order and the order elated 10.5.2003 {Annexure Pgll) passed in appeal by the appellate authority. Shri SC. Velma, learned counsel appeam'ng for the petitioner submits that the petitioner was impiicated in a false case for an offence under Section 376 (2:; of the 1.P.C. The petitioner was accordingly arrested on 26.9.2002 and remained in jail till 1.2.2008 when he was released on bail. 8. The respondents] authorities were quite aware that the petitioner was behind the bar and it was not possible for the petitioner to receive the show cause notice and to participate in the departmental enquiry. The respondentsjauthorities ought to have stayed the departmental ‘ procaedings, till the pétitioner was mads available on release from jaii. The Show cause notice was sent to the petitionex’s adtiress and it could not be dekivered. According to the respondents] authoxifies, the notice of the enquiry was published in the daily newspaper ‘Dainik Bhaskar’ on 3. 1 1.2002. It does not amount to proper service, as the petitioner was not havmg facility of the above newspaper inside the jail. Even otherwise, the mother of the petitioner had informed to the Principaljrespondent No. 5 by the letter on 18.11.2002 about false imylication of the petitioner in a criminal case and his arrest. Learned counsel fuxther submits that the complainant in a eliminal case pending tn'ai against the petitioner for an otfence punishable under Section 376 (2) of the LRC. has already deposeé in her statement that. the petitioner was not involved in the said offence. The cm'minal case is pending before the trial court because other accused persons are absconding. Leained counsel heavily relied on a decision of the Sunreme Court in the case of Union of inaia anti others Vs. « Dinanath Shantaram Karekar and othexs {(1998) 7 Supreme Couit Cases 569} in support of his contention that. there was no actual seivice, as the netitioner was in jail and the petitioner was further prevented from taking part in the depaitmental proceedings. 9. Shri Ashish Shrivastava with Ms. Smita Ghai, learned counsel for the respondents, on the contrary, submit that the service of the petitioner was terminated in accordance with the rules and regulations, as the proper enqui 7 was held and the petitioner was served show cause notice by way of newspaper publication also. The respondents] authorities were not aware about arrest of the petitioner. The mother of the petitioner had informed to the respondent No. 5 on 18.11.2002 when the matter was closed on 16.11.2G02 for ‘ submission of the report. I havs heard. learneci counsel for the parties 811d paused th€ documents appended to the pefition as well as to the return. It is evident that no Show cause notice was served on the perjficmer, as the petitioner was admittedly arrested on 26.9.2002 and was released on ‘oail on 1.2.2003, Publication of notice of enquiry in newspaper cannot be heid as sufficient notice as it is not clear asto Whether the newspaper was made available to the netitioner in jail or not. According to the petitioner, no newspaper facility was available to the petitioner inside the jail. The mother of the petitioner informed to the resnondent No. 5 on 18112062 before the enquiry report was submitted. Even if, the enquiry was completed on 16.11.20G2, the enquiry officer ought to have considered the information of airest of the petitioner, submitted by mother of the petitioner on 18.11.2002 before submitting the enquiry report on 21. 11.2002. 12. In View of the admitted factual position, it can be held that there was no actual seivice of notice of the enquiry tipon the petitioner by the respondents and as such the entire proceedings were Vitiated‘ The Supreme Court in the case of Union of India and others Vs. Qinanath Shani-exam Karekar and others (Supra), after having considered several cases on the point, observed in para 10, as under:— “10. Where the disciplinary proceedings are intended to be initiated by. issuing a charge—sheet, its actual service is essential as the person to whom the charge-sheet is issued is requned to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show—cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations,‘the employee is given an opportunity to submit his reply, the theory of “communication” cannot he invoked and “actual service” must. be proved and established. It has already been found that neither the @ charge—sheet nor the Show‘caus5 notice wag Ever saved upon the om'gmal respoxldent, Dinanath Shantaram Karekar. Consequently? the entire proceedings were vitiated.” F4 g0 For me reasons stated—above, the petition stands allowed‘ The charge— sheet dated 11.9.2002 (Annexm‘e PjS), the enquiiy report dated 17, 1 1.2002 (Annexure P/ 12), the order 0f termination dated 5.2.2003 (Annexure 13/9) and the appellate order dated 10.5.2008 {Annexure Pf 1 l) are accordirxg1y quashed. In the facts of the case, there shall be no order as to costs. Sd/— ”7% I 11/ 9 Satish K. Agnihom Judge ‘ ‘