ZILA PARISHAD, ALLAHABAD, THROUGH ITS ADHYAKSH, SARJU PD. PANDEY Vs. THE COMMISSIONER, ALLAHABAD DIVISION AND ORS.

JUDGEMENT

(1.) The principal question raised by this petition is whether a, disciplinary action taken by the Adhyaksh against an employee of the Zila Parishad is appealable?

(2.) Mool Narain Jha, Respondent No. 3, was appointed as a temporary Sanskrit teacher on 4 -11 -1949 in a Junior High School which was administered by the District Board. It is stated that he was removed from service in 1952, but was re -instated. He was again dismissed in 1953, but was again reappointed. On 25 -5 -1964 the Adhyaksh Zila Parishad made a spot inspection of the Junior High School to verify the complaints against the third Respondent for being absent from the school. He found that the third Respondent was absent for some time. He served a charge sheet mentioning three charges including coming late to the school contrary to the rules. The teacher filed an explanation and an enquiry was held. The charges were found established by the enquiry officer. A notice was issued on 26 -8 -1964 asking the third Respondent to show cause why he should not be removed. The explanation was found unsatisfactory and on 10 -9 -1964 the Adhyaksh of the Zila Parishad by an order removed him from service. The order was challenged in an appeal before the Commissioner, Allahabad. The Zila Parishad sent comments to the allegations made in the appeal. The Commissioner found that the; charge of coming late on the date of spot inspection was established, but the other two charges were not proved. He set aside the order of removal from service on the ground that it was under the circumstances, severe. He directed that the third Respondent will be treated as on leave without pay for 25 -5 -1964 and that this fact will be mentioned in his character roll. Ultimately the third Respondent was directed to be reinstated with continuity of service. This order of the Commissioner is challenged on the merits, but principally on the ground that no appeal lay.

(3.) On the merits, it was urged that the Commissioner could not validly base his decision on the view that the enquiry report was not given along with the show cause notice or that the show cause notice did not mention the evidence relied upon for holding that the charges have been established because no such point was taken in the appeal and hence the Respondent did not get a fair opportunity of showing cause. The mere absence of a ground of appeal will not disentitle the appellate authority from going into this matter, if it was otherwise apparent from the record. The Commissioner hence did not commit any error of law in finding that the omission to supply a copy of the enquiry report was a fatal omission. It was also urged that the enquiry report did not contain anything of importance. It only held that the charges have been proved. If that was so, it was incumbent on the authorities to have mentioned in the show cause notice the evidence which had been relied upon for the finding. That alone would have given the third Respondent a reasonable opportunity of showing cause. Moreover, the Commissioner has gone into the charges on their merits. The Commissioner found that the charge that the teacher violated the rules in going back to his home every day after the close of the school and in leaving his principal place of residence without permission was not established because no such rules were produced and hence' there was no question of their contravention. Mr. S.C. Khare, learned Counsel for the Petitioner, urged that there was no evidence for this finding. The finding is in negative. It is based on the absence of the evidence. The Zila Parishad did not mention the rules which were alleged to have been violated either in the enquiry report or in the show cause notice or in the order of removal. No such rules were brought to the notice of the Commissioner or even before me. The Commissioner was, therefore, justified in holding that there was no basis for this charge.