1 W.P No.4057/2002 HIGH COURT OF MADHYA PRADESH; JABALPUR WRIT PETITION No. 4057 / 2002 Mehdi Bai Fauzdar Education Society Versus The Appellate Authority and another WRIT PETITION NO. 3356 2002 Mehdi Bai Fauzdar Education Society Versus District Education Officer and another WRIT PETITION No. 3462 / 2002 Mehdi Bai Fauzdar Education Society Versus District Education Officer and another -------------------------------------------------------------------------------- PRESENT: Hon'ble Shri Justice R.S. Jha Shri Akash Chodhary, counsel for the petitioner. Shri S.M. Lal, GA for the respondent/State. Shri Vivek Rusia, counsel for private respondent. O R D E R 13-09-2011 The petitioner in W. P. No. 4057/2002 has filed this petition being aggrieved by order dated 17-02-2002 passed by the respondent No. 1 allowing the appeal filed by the respondent No. 2 as well as the order dated 21/31/-05-2002 issued by the respondent No. 1 directing 2 W.P No.4057/2002 the petitioner to take back the respondent No. 2 in service. The petitioner in W. P. No. 3356/2002 has filed this petition being aggrieved by order dated 07-02-2002 passed by the respondent No. 1 allowing the appeal filed by the respondent No. 2 as well as the order dated 21/31/-05-2002 issued by the respondent No. 1 directing the petitioner to take back the respondent No. 2 in service. The petitioner in W. P. No. 3462 / 2002 has filed this petition being aggrieved by order dated 17-02-2002 passed by the respondent No. 1 allowing the appeal filed by the respondent No. 2 as well as the order dated 21/31/-05-2002 issued by the respondent No. 1 directing the petitioner to take back the respondent No. 2 in service. As the impugned orders are passed by the same authority against the same petitioner and are similarly worded and as the issues involved are similar and identical, all the aforesaid petitions are decided by this common order. 2. The learned counsel for the petitioner submits that the petitioner is a society which is running an educational institution namely the Urdu Madhyamik 3 W.P No.4057/2002 Shala, Baldi, District Khandwa and Urdu Madhyamik Shala, Mundwara, District Khandwa. 3. The brief facts, leading to the filing of the present petitions, are that the petitioner appointed the respondent No. 2, in all the aforesaid petitions, as teachers in their educational institution. However, subsequently charge sheets were issued to them and disciplinary proceedings were initiated against them. 4. It is stated that the private respondents filed objection before the District Education Officer regarding initiation of the proceedings on the ground of violation of the provisions of the M. P. Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter referred to the Adhiniyam 1978) and the M.P. Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyo Ko Padachyut Karna Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983 (hereinafter referred to the the Niyam 1983) and the District Education Officer on that count directed the petitioner to follow the procedure prescribed by law before taking any action against the private respondent. Being aggrieved by this, the petitioner had filed a writ petition before this Court on the ground that 4 W.P No.4057/2002 the aforesaid Adhiniyam 1978 and Niyam 1983 were not applicable to the petitioner's institutions as they were minority institutions in view of the decision of this Court in the case of Siddhi Bala Bose Library Association and others v. State of M.P. and others (1979 M.P.L.J. 379). This petition was dismissed by this Court and it was held that in view of the subsequent amendment in the Adhiniyam 1978 and the prescription of the Niyam 1983 the averments of the petitioner regarding non- applicability of Section 6 of the Act to it cannot be accepted. The aforesaid decision, Mehdibai Foujdar Education Society v. State of M.P. and others, is reported in 1998 (2) M.P.L.J. 698. The letters patent LPA 300/99 was also dismissed by order dated 31-10-1998. 5. On dismissal of the aforesaid petition, the appeal filed by the private respondents before the appellate authority was taken up for hearing and dismissed being aggrieved by which the private respondents had filed Writ Petition No. 4559/99 before this Court which was disposed of by order dated 05-01-2001 with a direction to the parties to appear before the appellate authority which was in turn directed to give full opportunity of hearing to both the parties and thereafter decide the appeal in accordance with the Rules of 1983. Pursuant to 5 W.P No.4057/2002 the aforesaid direction by this Court the appellate authority has passed the impugned order dated 17-02-2002 allowing the appeal filed by the private respondents and directing their re-instatement being aggrieved by which the petitioners have filed the present petitions. 6. The learned counsel for the petitioner has assailed the impugned order on the ground that the District Education Officer, who was the appellate authority, was holding current charge of the post of District Education Officer hence in view of the decision of this Court in the case of Girja Shankar Shukla v. Sub-Divisional Officer, Harda and others (1973 J.L.J. 405) he had no authority to decide the appeal. It is further submitted that the impugned order has been passed applying the provisions of Section 6 of the Adhiniyam of 1978 and Rules of 1983 which are not applicable to the petitioner society being a minority educational institution. The petitioner has alleged that the order passed by the authority is perverse inasmuch as the findings recorded therein are contrary to the facts of the case. 7. Per contra, the learned counsel appearing on behalf 6 W.P No.4057/2002 of the private respondents, submits that they were rendering satisfactory service in the institution. However, on account of the fact that they were having some disagreement with the Secretary of the society who was himself receiving full salary of a teacher as well as the Secretary but was not paying full salary to them, the impugned action had been taken against them which has rightly been set aside by the appellate authority. It is further submitted that the petitioner had unsuccessfully raised all the aforesaid issues before this Court in the previous litigation filed by them vide Mehdibai Foujdar Education Society (supra) as well as the directions issued by this Court in W.P. No. 4559/99 dated 05-01-2001 and, therefore, no further interference is called for. It is submitted that the enquiry conducted against them was contrary to the provisions of the Rules of 1983 which statutorily prescribe the inquiry officer as well as the procedure to be followed and, therefore, the appellate authority has rightly held that the enquiry conducted by the petitioner was in violation of the procedure prescribed by law and was conducted by the petitioner on his own with a view to remove the private respondents from service. 7 W.P No.4057/2002 8. The respondent No.1/State has also filed a return and submitted that the post of District Education Officer is interchangeable with the post of Principal as the Principals are posted as District Education Officer by rotation, therefore, the contention of the petitioner that the appellate authority i. e. the District Education Officer held current charge is misconceived. The respondent/State has brought on record the order of posting of the appellate authority as Annexure R-2 wherein it is clearly mentioned that the concerned Principal is posted as the District Education Officer. 9. I have heard the learned counsel for the parties at length. From a perusal of Annexure R-2 dated 15-02-2002 filed by the State, it is clear that one Shri Ramji Lal Upadhyay, Principal, Government Higher Secondary School, Shahpur, District Khandwa was transferred and posted as District Education Officer with full authority to take all actions and perform the duty of the District Education Officer. In such circumstances, it is apparent that the Principals are posted as the District Education Officer and directed to perform the duty of that post with full power and authority and in such circumstances the contention of the petitioner that the appellate authority was only holding current charge of 8 W.P No.4057/2002 the post is factually misconceived. Consequently, the decision relied upon by the learned counsel for the petitioner in the case of Girja Shankar Shukla (supra) is not applicable in the facts and circumstances of the case. 10. It is next contended by the learned counsel for the petitioner that the appellate authority has erred in setting aside the order of punishment of the private respondents on the ground that the petitioner had not followed the procedure prescribed by the Act of 1978 or the Rules of 1983 as the said Act and the Rules do not apply to the petitioner as they are minority institutions in view of the decision of this Court in the case of Siddhi Bala Bose Library Association (supra). 11. The aforesaid contention of the learned counsel for the petitioner deserves to be rejected inasmuch as the petitioner had previously approached this Court raising exactly the same contention regarding applicability of Section 6 of the Act of 1978 and the procedure prescribed thereunder, but this Court by its decision reported in the case of Mehdibai Foujdar Education Society (supra) has specifically rejected the aforesaid contention of the petitioner and has held that the 9 W.P No.4057/2002 aforesaid provisions apply to the petitioner's institution. The aforesaid decision of this Court has attained finality and is binding against the petitioner and, therefore, in view of the aforesaid decision in the case of the petitioner himself, the contention of the petitioner regarding inapplicability of the provisions of the Act of 1978 and the Rules of 1983 deserves to be and is hereby rejected. 12. It is luminously clear from a perusal of the impugned order passed by the appellate authority dated 17.2.2002 that the appellate authority has held the enquiry conducted by the petitioner against the private respondents to be contrary to the procedure prescribed by the Rules of 1983 and also on account of the fact that the petitioner got the enquiry conducted through the Treasurer of the Society instead of the Inquiry Officer as required to be appointed under Rule 7 of the Rules of 1983. 13. The learned counsel for the petitioner, while fairly conceding that the Inquiry Officer is required to be appointed under Rule 7 of the Rules of 1983 but was not so appointed, submits that the enquiry cannot be found fault with on this ground as the provisions of 10 W.P No.4057/2002 Section 6 of the Act of 1978 and the Rules of 1983 framed thereunder have no applicability to the petitioner's case. In view of the decision of this Court in the case of Mehdibai Foujdar Education Society (supra) and the direction issued by this Court in W.P No.4559/1999 dated 5.1.2001 the contention of the petitioner deserves to be rejected. In view of the admitted fact that the Inquiry Officer, as required by Rule 7 of the Rules of 1983, was neither appointed nor was the enquiry been conducted by him, I do not find any ground to interfere with the findings recorded by the appellate authority on this count. 14. The next ground on which the appellate authority has set aside the order passed by the petitioner is that the impugned order of punishment does not mention any reason for doing so. From a perusal of the impugned order of punishment imposed upon the private respondents dated 8.5.1996 it is clearly apparent that the services of the private respondents were terminated by the petitioner for administrative reasons. In fact the order dated 8.5.1996 does not mention or make any reference to the fact that the order of termination is being issued pursuant to any departmental proceedings nor does it record any findings in respect of the charges 11 W.P No.4057/2002 that were levelled against the private respondents in the alleged departmental enquiry. In fact, a perusal of the order of punishment dated 8.5.1996 gives the impression that the private respondents have been terminated without any enquiry only for administrative reasons. The aforesaid aspect is apparent from the perusal of the order dated 8.5.1996 and is rightly undisputed and in such circumstances I do not find any reason to interfere with the findings, recorded by the appellate authority, in this regard. 15. It is also clear that the appellate authority has recorded a finding to the effect that the petitioner failed to supply a copy of the enquiry report to the private respondents contrary to the provisions of the rules and the law as laid down by the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar and others (1993) 4 SCC 727. Though the learned counsel for the petitioner vehemently submitted that the copies of the enquiry report were supplied to the private respondents, the record of the case specifically a perusal of the order of punishment dated 08-05-1996 clearly indicates that the copy of the enquiry report was neither supplied to the private respondents nor was the same referred to by the petitioner while removing the 12 W.P No.4057/2002 private respondents and, therefore, the finding recorded by the appellate authority in this respect also does not warrant interference. 16. For the aforesaid reasons the impugned order passed by the appellate authority dated 17-02-2002 is upheld and on that count the consequential impugned order of the appellate authority dated 21/31-05-2002 is also affirmed and it is, accordingly, held that the appellate authority has rightly allowed the appeals, filed by the private respondents, by the impugned order dated 17.2.2002 which were heard and decided pursuant to the directions issued by this Court in W.P No.4559/1999 dated 5.1.2001. 17. The petitions being meritless are, accordingly, dismissed. In the facts and circumstances of the case there shall be no order as to the costs. A copy of this order be placed in the record of the aforesaid connected petitions. (R.S.Jha) Judge SKM. mms/-