The Allahabad High Court has directed departmental action against the then Basic Education Officer of Fatehpur, RK Pandit, for unauthorized suspension of a teacher and non-payment of allowance.
A Single Bench of Justice Siddharth passed this order while hearing a petition filed by Rachna Singh.
The petition has been filed praying for quashing of the order dated 20.02.2020 passed by the Secretary, UP Basic Education Board (respondent no 2), Allahabad to the extent it denied the arrears of salary to the petitioner and other benefits from 10.3.2008 to 29.10.2010.
Further prayer has been made for direction to the Basic Shiksha Adhikari, Fatehpur to make the payment of arrears of salary of the petitioner and consequential benefits for the aforesaid period. Finally, direction for compliance of the order dated 16.3.2009 passed by the respondent no 2, has been sought regarding direction of payment of salary and other consequential benefits to the petitioner from 29.10.2020 to 9.5.2011.
The facts of the petition are that the petitioner was appointed as Assistant Teacher in aided primary School on 4.1.2006. She joined Prathmik Vidhyalaya Naraicha, Vikas Kshetra Khaujha, District Fatehpur.
On 15.9.2007 she was transferred to Prathmik Vidhyalaya, Nandapur (Akal) Vikas Kshetra- Khajuha where she joined on 3.10.2007. On 6.10.2007 she moved an application for leave without pay from 6.10.2007 to 31.3.2008, which was accepted by the Basic Shiksha Adhikari (respondent no 3 ), Fatehpur. However on 5.3.2008 the respondent no 3 suspended the petitioner on account of unauthorised absence since 6.10.2007, while she was on sanctioned leave without pay with the approval of respondent no 3 himself.
By the order dated 5.3.2008, the petitioner was suspended from service and disciplinary proceedings were directed against her appointing one Smt Ranjana Kureel as inquiry officer. During the period of suspension, the petitioner was attached to Block Resources Center (BRC) Khajuha, Fatehpur where she reported her presence but her suspension allowance was not paid by respondent no 3 from 5.3.2008 to 10.5.2011.
By the order dated 20.01.2010, the services of the petitioner were terminated by respondent no 3 on the ground that she is absent from duty for the last three years without sanction of leave. Petitioner preferred representation before the respondent no 2, Secretary UP Basic Education Board, Allahabad, which was allowed and the petitioner was directed to be reinstated in service by the order dated 29.10.2010. The termination order dated 20.1.2010 was set aside.
However, the respondent no 2 has held the petitioner disentitled to get salary for the period she has not worked. Respondent no 3 did not permitted the petitioner to work after order dated 29.10.2010 of the respondent no 2 and after seven months on 11.5.2011 she was permitted to join the Prathmik Vidyalaya Nandapur, Vikas Kshetra Khajuha, District Fatehpur from where she was transferred to Lucknow on 11.7.2013 and she was permitted to join at Lucknow on 19.7.2013. On 3.8.2013 petitioner was posted at Prathmik Vidyalaya Makdumpur, Vikas Khand Sarojini Nagar, Lucknow.
The petitioner made a representation on 5.11.2016 to the respondent no 2 praying that her salary from 10.3.2008 to 10.5.2011 ie, the period she was forcibly kept out of the employment may be directed to be paid to her. When no order was passed by the respondent no 2, she preferred Writ -A 22809 of 2018, challenging the orders dated 29.10.2010 and 9.5.2011, so far it denied the salary to the petitioner from 10.3.2008 to 10.5.2011 on the principle of no work no pay. The aforesaid writ petition is pending.
After filing of the aforesaid petition, respondent no 2, has passed the order dated 20.2.2020, whereby petitioner has been directed to be paid her salary and annual increments from 29.10.2010 to 9.5.2011 by the respondent no 2 on the ground that after order of respondent no 2 ,dated 29.10.2020 she was not permitted to join her service for seven months and hence seven months’ salary and other benefits have been directed to to be paid to her. However no decision was taken regarding salary of the petitioner and consequential benefits payable from 5.3.2008 to 29.10.2010.
Counter affidavit has been filed on behalf of the respondent no 3, wherein nothing has been said regarding application of principle ‘No Work No pay’ to the petitioner and as to how the same will apply to each when the petitioner proceeded on sanctioned leave. In the personal affidavit of respondent no 3 also no valid justification has been made for termination of service of the petitioner during the period of leave.
The Court observed that,
The court after considering the rival submissions finds that the petitioner proceeded on leave without pay from 6.10.2007 to 31.3.2008 after approval of the same by the respondent no 3, as clear from the petition, which has not been denied in the counter affidavit by the Strangely before the leave period come to an end on 31.3.2008, petitioner was suspended from service by the order dated 5.3.2008.Thereafter it is that inquiry was conducted against the petitioner and her services were terminated by the order dated 20.1.2010 by the respondent no 3.
From the material on record and pleadings in the counter affidavit it is clear that before passing of the order of termination dated 20.01.2010, the respondent no 3 did not observe the procedure laid down for inquiry in UP Government Servant (Discipline and Appeal) Rules 1999. The charges against the petitioner were not proved in the departmental inquiry by the department and the order of termination dated 10.01.2010 shows that only because the petitioner did not give reply to the show cause notice, even after publication of notice in the newspaper , the misconduct on the part of the petitioner was presumed and her services were terminated.
Thereafter second illegality has been committed by the Secretary, UP Basic Education Board, Allahabad in her order dated 29.10.2010, wherein it has been found that the petitioner proceeded on leave without pay from 6.10.2007 to 31.3.2008 after approval of the same was granted by the respondent no 3 by the order dated 11.10.2007. The sanctioned leave was directed to be recorded in the service book of the petitioner.
The Court further observed that before imposing major punishment of termination of her service, no show cause notice was given to the petitioner and order of termination dated 20.01.2010 was set aside by the Secretary in appeal but the salary for period of leave of the petitioner from 6.10.2007 to 31.3.2008 was denied to her on the principle of ‘No Work No Pay’. No order was passed regarding the period of forced unemployment of the petitioner from 10.3.2008 to 29.10.2010. Thereafter the petitioner was not permitted to join her services and after seven months she was permitted to join her post. Hence the claim has been made for payment of salary from 10.3.2008 to 10.5.2011.
The Court held that,
It is settled law that where the employee is forced out of employment on account of the illegal action of the employer and the action of the employer is subsequently found to be illegal, petitioner becomes entitled to the payment of salary for the period she was forced out of keeping employment in view of the peculiar facts and circumstance of the case (See Brijendra Prakash Kulshrestha Vs Director of Education, UP Alld. and others, 2007(3) ADJ1 (DB).
In the case it is clear that the petitioner was suspended by the order dated 5.3.2008, when she was on sanctioned leave up to 31.3.2008 and thereafter on the basis of illegal inquiry her services were terminated on 20.01.2010 by the respondent no 3. The respondent no 2 by the order dated 29.10.2010 found that the order of termination was illegal and it also found that petitioner was on duly sanctioned leave without pay when disciplinary proceedings were initiated against the petitioner on account of unauthorized absence from duty.
However respondent no 2, did not direct payment of any salary to the petitioner for the period she was forced out from the employment on the basis of illegal order dated 20.1.2010 of respondent no 3.
“In view of the above ,the order dated 29.10.2010 passed by the respondent no 3 is partially quashed so far as it denies the arrears of salary to the petitioner for the period of forced unemployment from 10.3.2008 to 29.10.2010. The respondent no 3 is directed to pay arrears of salary and increments of the aforesaid period to the petitioner along with 7% interest within a period six weeks. The respondent no 3 is further directed to make payment of salary of the petitioner from 10.3.2008 to 29.10.2010 with 7 % interest within the same period along with Rs 50,000/- towards litigation cost.
In case the aforesaid amounts are not paid to the petitioner within time provided in this order she shall be entitled to 12 % interest over the entire amount after a period of six weeks,” the Court ordered.
“It is clear from the above consideration that the then District Basic Education Officer RK Pandit passed absolutely illegal order against the petitioner which resulted in her harassment and loss of period of service and salary and subsequently the Secretary of the UP Basic Education Board, Allahabad set aside the same holding it to be illegal.
The District Basic Education Officer has acted either malafidely or negligently in discharge of his official duties which amounts to misconduct in service. His conduct has led to loss of the Government.
It is left open for the State Government to initiate disciplinary proceedings against the then District Basic Education Officer, RK Pandit, for his misconduct in service and recover loss caused to the State Exchequer from him after due departmental inquiry against him and opportunity of hearing,” the Court said while allowing the writ petition.