Akhilesh Chandra Sharma vs State Of U.P. And Others
2011 Latest Caselaw 2386 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 32
 

 
Case :- WRIT - A No. - 35324 of 2011
 

 
Petitioner :- Akhilesh Chandra Sharma
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Birendra Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

01. Heard Sri Birendra Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.

02. Learned Standing Counsel states that he does not propose to file counter affidavit and the writ petition may be heard and decided at this stage on the basis of material available on record.

03. The present writ petition is directed against the suspension order dated 29.4.2011 whereby the petitioner has been placed under suspension in a contemplated departmental enquiry on the allegation that he was prima-facie found guilty of misbehaving with a Class VIII student in the concerned primary school.

04. Learned counsel for the petitioner could not show that the impugned suspension order is contrary to Rules or passed by an authority who is not competent.

05. However, he contended that criminal proceedings are going on pursuant to an F.I.R. being Case Crime No.23 of 2011, under Section 354 I.P.C. & Section 3(1 11 of SC/ST Act and therefore, the criminal proceedings as well as departmental proceedings can not proceed together.

06. The question as to whether during the pendency of criminal proceeding, departmental proceeding should be stayed depends upon the facts and circumstances of individual case. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that procedure followed in both the cases as well as the subject matter of departmental enquiry and criminal proceeding has different scope and it cannot not be said that when a criminal proceeding is going on a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed. The same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.

07. Referring to Capt. M. Paul Anthony (supra), recently the Apex Court in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that the legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously has been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case.

08. Similarly, in the case of Noida Entrepreneurs Assn. Vs. NOIDS & others JT 2007 (2) SC 620, the Court has reproduced the following conclusion deducible from various judgments as noticed in para-22 of the judgment in Capt. M. Paul Anthony (supra), namely :

"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, which involved complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

09. Similar view has also been taken in Indian Overseas Bank Vs. P. Ganesan & others AIR 2008 SC 553 and the Court held, where a prayer is made that so long as criminal proceedings are going on, departmental proceeding may not be proceeded, the Court must record a finding that non grant of stay on departmental proceeding would not only prejudice the delinquent officer, but the matter also involve a complicated question of law. Nothing of that sort has been shown by the learned counsel for the petitioner in the case in hand.

10. This Court is not making any comment on the correctness of the allegations against the petitioner but, suffice it to mention that, at this stage the Court has to proceed as if allegations are true. A bare reading of the allegations show its seriousness. The petitioner is a Head-master in a primary school and is going to attain age of retirement i.e. 62 years just within two days. If such serious allegations have been levelled against him and if it is true, there could not be anything more shocking and disturbing than this one. With regard to conduct and moral expected from the teachers and that too of a primary school, this Court in Civil Misc. Writ Petition No. 50316 of 2003 "Sanjay Kumar Dwivedi" Vs. State of U.P. & others, decided on 18.01.2007 has held as under:-

"The Court is conscious of the fact that a teacher in Indian society has been elevated as ''God' namely 'xq#j czãk xq#j fo".kq xq#j nsoks egs'oj%'. A teacher creates knowledge, learning, wisdom and equip the students, girls or the boys with ability, knowledge, discipline and intellect to enable them to face the challenges of their life. He is preserver of learning and destroys ignorance. Therefore as a member of noble teaching profession he should be a role model and either individually or collectively as a community of teachers should re-generate dedication with the bend of spiritualism in broader perspective to establish quality, competence, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher even the best education system is bound to fail. Therefore, it is the duty of teacher to take care of pupils as a careful parent would take of its children. In Indian society education amongst girls even after independence is wanton due to various factors including rural culture and other factors. Education to the girls children is national asset and foundation of fertile human resources and disciplined family management apart from their equal participation in socio-economic and political democracy. Of late people have realized and started sending their girl children to co educational institutions under the care of proper management to look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the school and college to protect young children in particular the chastity of girls bringing them up in discipline and dedicated pursuit of excellence and to protect them from all kinds of evils in the institution as well as outside. The teachers who are kept in-charge bear higher responsibilities and should be more careful. His character and conduct should be alike Rishi and as loco parentis. It goes thus without saying where a teacher fails to maintain such high standard is not befitted to his status."

11. In the absence of any legal or otherwise error pointed out by learned counsel for the petitioner in the impugned order of suspension, I have no reason to interfere therewith at this stage. However, it is made clear that the observation, if any, made herein shall not be construed as an expression of opinion on merits and the matter with respect whereto departmental enquiry is contemplated against the petitioner, the competent authority shall proceed in the matter independently.

12. With the above observation, the writ petition is dismissed.

Order Date :- 1.7.2011

Kpy