C/M Of Janta Intermediate ... vs State Of U.P. And 4 Others
2017 Latest Caselaw 7311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Court No. - 19
 

 
Case :- WRIT - A No. - 39001 of 2017
 

 
Petitioner :- C/M Of Janta Intermediate College,Kotwakala,Distt.Kushinagar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Arvind Srivastava
 
Counsel for Respondent :- C.S.C.,Satyendra Chandra Tripath
 

 
Hon'ble Suneet Kumar,J.

Heard learned counsel for the parties.

The petition is being heard at the admission stage, on consent, without calling for counter affidavit, as per Rules of the Court.

Committee of Management1 of Janta Inter College Kotvakala District Kushinagar, an intermediate Institution duly recognized and in grant-in-aid of the State. The provisions of Intermediate Education Act, 19212 and Regulations framed thereunder is applicable upon the Institution.

The instant petition is directed against the order dated 9 August 2017 passed by the second respondent, District Inspector of Schools, Kushinagar, whereby, the suspension order passed by the Management against the fifth respondent has been disapproved in exercise of power conferred under Sub-section (7) of Section 16G of Act, 1921.

The facts necessary for appreciating the points lie in a narrow campas. The fifth respondent, an adhoc Principal, on allegations of gross misconduct, embezzlement and institution of criminal cases against him, was placed under suspension by the Management vide order dated 11 June 2017. Charge-sheet containing fifteen charges was served on 12 June 2017. In the criminal case charge-sheet has been filed against the fifth respondent under Sections 147, 427, 352, 504, 506 and 120B IPC. Upon disapproval of the suspension order by the impugned order, Management passed a subsequent suspension order on the same allegations on 11 August 2017, which has been disapproved by the second respondent vide communication dated 23 August 2017 being not sustainable.

Learned Senior Counsel appearing for the fifth respondent has raised a preliminary objection on the maintainability of the writ petition. He would submit that unless the subsequent order passed by the District Inspector of Schools disapproving the second suspension order is assailed, no relief can be granted to the petitioner. At a given point against an employee two suspension order cannot operate.

Learned counsel for the petitioner would submit that the order of the District Inspector of Schools disapproving the subsequent suspension order which was passed on the same allegations contained in the earlier suspension order would have no bearing on the merits of the writ petition for the reason that neither the petitioner nor the fifth respondent are aggrieved by the disapproval order. Neither of the suspension orders, as on date, are in existence upon being disapproved by the District Inspector of Schools. Petitioner is aggrieved by the impugned order which has been passed on merit approving the earlier suspension order.

The question for determination is, as to whether, the writ petition would be maintainable despite the Management not assailing the order passed by the second respondent disapproving the subsequent suspension order, or in the alternative, whether both the suspension orders are in existence and operative against the fifth respondent.

To appreciate the rival contentions, the provisions of the Act, 1921 needs to be examined.

Section 16-G of the Act, 1921 deals with the conditions of service of head of institutions, teachers and other employees of an Intermediate College. Sub-sections 5, 6, 7 and 8 which provide for suspension of head of institution or a teacher of such institution is extracted:

"16-G: (5) No Head of Institution or teacher shall be suspended by the management, unless in the opinion of the management-

(a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank ; or

(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him ; or

(c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial.

(6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report: shall contain such particulars as may be prescribed and accompanied by ail relevant documents.

(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court.

(8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institutions or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management or make representation revoke an order of suspension passed under this section."

Under Sub-section (5), the Management can suspend the head of the institution or a teacher if it is of the opinion that one of the grounds specified in Clauses (a) to (c) exist. Sub-section (6) requires the Management to submit the report regarding the suspension to the Inspector within time specified therein. Sub-section (7) provides that no order of suspension shall remain in force for more than sixty days from the date of such order, unless, approved in writing by the Inspector. Sub-section (8) empowers the Inspector to revoke the order of suspension, if he satisfied that the disciplinary proceedings against the Head or the Teacher of the Institution are being dealt without any fault on their part.

Division Bench in Committee of Management Jan Sahyogi Intermediate College through Manager vs. District Inspector of Schools and another3, held that there can not be two suspension order in respect of a teacher or an employee operating at the same time. On account of passing of the subsequent order, the first would lapse or automatically vanish. The Court was concerned solely about the factual aspect of passing of the suspension order and the effect on the first. Whether the ratio of Jan Sahyogi (supra) would apply to the facts of the present petition will be considered later.

Full Bench in Chandra Bhushan Misra vs. District Inspector of Schools4 was required to answer the following questions:

"(1) Whether the order of 'suspension of Principal or a teacher of an Intermediate College, if not approved by the District Inspector of Schools within sixty days from the date of such order, lapses or it merely ceases to operate and become effective after it is approved by the Inspector?

(2) Whether writ petition challenging an order of the D. I. O, S. passed under Section 16-G (7) of the Act becomes infructuous and no relief can be granted even if the order of the D. I. O. S. is found to be bad?"

The Court upon examining the scope and ambit of Section 16-G, in particular, Clause (7), answered the reference in following terms:

"(1) An order of suspension of the Head or a teacher of an institution does not lapse even if not approved by the Inspector within sixty days from the date of such order and it merely ceases to operate and becomes effective again after it is approved by the Inspectors.

(2) The writ petition filed before this Court under article 226 of the constitution of india against an order of D. I. O. S. passed under Section 16-G (7) of the Act does not become infructuous after the; expiry of sixty days from the date of the order of suspension and this Court has fall power to pass appropriate order and issues appropriate direction is such matter."

Full Bench in paragraph 3 explained the meaning of the expression "remain in force for more than 60 days". Paragraph 3 is extracted:

"According to sub-section (7) no order of suspension shall "remain in force for more than sixty days" unless approved in writing by the Inspector. 'In force 'means' in operation'. A statutory enactment or an order does not lapse merely because it has not come or brought into force. The only effect of an order, which is not in force is that it is ineffective and inoperative. But such an order is not obliterated and continues to exist though ineffective. Similarly when the order, which was in force, has ceased to be operative due to supervising event, will come into force again and will become effective after the infirmity caused by supervening event is removed. In view of the provisions of sub-section (7), an order of suspension of Head or a teacher of an Institution shall remain in force or a period of sixty days from the date of such order even if it is not approved in writing by the Inspector but in the absence of the approval by the Inspector such an order will cease to operate on expiry of sixty days from the date of the order, although it will continue to exist though inoperative. But if the order of suspension is approved even after the expiry of sixty days, it will come into force again and will become effective immediately on such approval. Any other interpretation will lead to serious consequences. Inaction on the part of the Inspector either deliberate or otherwise may frustrate the object of the provision itself."

An order of suspension of the Head or a Teacher, as the case may be, would become inoperative after lapse of sixty days but would continue to exist though inoperative but would become effective immediately on approval of the District Inspector of Schools. In the event of the District Inspector of Schools disapproving the suspension, the order would become nonest and would not exist in the eye of law unless the order of disapproval is set aside by the competent court/authority.

In the facts of the case at hand, the suspension order passed against the fifth respondent which was disapproved by the second respondent by the impugned order. Thereafter, subsequent suspension order was passed by the Management, which admittedly has been disapproved by the second respondent by passing an order on 23 August 2017. As on date no suspension order, against the fifth respondent is in existence or operative. Petitioner is aggrieved by the impugned order disapproving the earlier suspension order which has been passed on merit, whereas, neither of the parties to the lis is aggrieved by the subsequent disapproval order.

Learned counsel appearing for the fifth respondent would submit that the subsequent order of the Inspector is not a disapproval order, rather, the second respondent has merely stated that the subsequent suspension order passed on the same allegations is not maintainable or unsustainable, therefore, would urge that the suspension order is operative. Be that as it may, the order passed by the second respondent is under sub-section (7) of Section 16-G of the Act, 1921, irrespective of the language or terminology used therein, it is, in any case, an order of disapproval of the subsequent suspension order passed in terms of Sub-section (7) of Section 16-G.

In the facts of Jan Sahyogi (supra), the Inspector communicated to the Management that the first order of suspension lapsed after sixty days, therefore, opined that no approval in respect of the suspension could be accorded. Thereafter, a subsequent suspension order was passed by the Management which came to be challenged by the aggrieved teacher in a petition, therefore, in the eye of law both the suspension orders were in existence, though the first suspension order was inoperative due to lapse of sixty days. Therefore, it is in this backdrop the Division Bench was of the opinion that the first suspension order would automatically vanish on the passing of the subsequent order for the reason that two suspension orders cannot be operative against an employee at the same time.

This Court in Dr. Parasu Ram Singh vs. State of U.P. and others5 relying upon Jan Sahyogi (supra) observed as follows:

"18. .....as to whether the previous suspension order survives or not would have to be gauged upon the status of the resolution passed subsequently suspending the petitioner again. If the previous suspension was surviving then the subsequent suspension would be a redundant exercise. An employee cannot be put under suspension if he is already suspended. However, if the previous suspension was non existent, then the District Inspector of Schools would have to take notice of the second suspension as well in view of the ratio of the division bench."

But in a case where both the suspension orders are disapproved by the Inspector, as in the facts of the instant case, in that event none of the order for suspension is in existence in the eye of law until assailed by the aggrieved party in an appropriate proceedings. Therefore, it cannot be said that two suspension orders are simultaneously existing at the given point of time. Neither of the parties are aggrieved by the subsequent disapproval order, therefore, that would have no bearing on the maintainability of the present writ petition.

The question is answered in favour of the petitioner and against the fifth respondent.

Now coming to the second limb of the argument, in so far, it relates to the validity of the impugned order passed by the the District Inspector of Schools disapproving the suspension order dated 11 June 2017. Learned counsel for the petitioner would submit that a charge-sheet of the same date containing, as many as, fifteen charges was supplied to the fifth respondent. The allegations, inter alia, pertains to disturbing the academic environment of the institution by resorting to dharna and pardarshan; use of abusive language against the members of the Committee and Management, teachers and employees of the institution; lodging a first information report against the fifth respondent in which charge-sheet has been submitted disclosing, prima facie, commission of offence under Section 147, 223, 504, 506 IPC; with the aid and assistance of outsiders and anti social elements, the fifth respondent locked the institution, thus, stopping the students, teachers and employees from entering the institution; engaging in riot, thereby, destroying the property of the institution i.e. breaking furniture, almirah, fan, wiring and statue of the founder of the institution. FIR was lodged, in which, the fifth respondent has been charge-sheeted under Section, 147, 427, 352, 504, 506 and 120B IPC. The other serious allegation against the fifth respondent is that out of the 14 teachers, 7 teachers were paid their salary, whereas, for others though money was withdrawn but the fifth respondent put it to his personal use, thus, embezzling the sum. Fee collected from 100 students by the fifth respondent was misappropriated. The other serious allegation is that the fifth respondent would facilitate unfair means in the examinations upon taking illegal gratification.

Learned counsel for the petitioner would urge that all evidence and documents in support of the charges were placed before the District Inspector of Schools to demonstrate that the allegations, if proved, would result in termination of service or reversion in rank.

It is further urged that the second respondent exceeded his jurisdiction conferred under sub-clause (7) of Section 16G by adjudicating upon the charges without considering the documents and materials placed before him by the Management in support of the charges.

Learned counsel appearing for the fifth respondent would not dispute that in criminal case, charge-sheet has been filed against the fifth respondent.

I need not detail the allegations and material in support thereof, placed by the Management before the District Inspector of Schools. The District Inspector of Schools while exercising power under sub-section (7) of Section 16G acts in a supervisory capacity. He has to record brief reason to accord approval or disapproval to any order of suspension passed by the Management. The District Inspector of Schools has to examine the papers so transmitted but would have no right to address on the merit of the charges, but has only to see on, prima facie, basis, as to whether, charges have any substance. The issue in that regard has to be examined in departmental enquiry to be held against the Principal/Teacher. (Refer: Sri Mahanthu Radha Krishna Inter College, Sakarpura District Vallia vs. District Inspector of Schools an another6; Tejnarain Singh vs. State of U.P. and others7; Mau Aima Allahabad and another vs. DIOS Allahabad and another8; C/M Moti Lal Nehru Smarak Inter College and another vs. District Inspector of Schools, Azamgarh9).

Learned counsel for the fifth respondent would not dispute the legal proposition, but would submit that since the statutory period of sixty days has lapsed, therefore, the fifth respondent is entitled to reinstatement.

Submission is opposed by the learned counsel for the petitioner. Reliance has been placed on a Division Bench decision rendered in Hari Singh Rajpoot vs. State of U.P. and others10, wherein, this Court on a similar plea having due regard to the allegations against the appellant, therein, held as follows:

"Prima facie, at this stage, it appears that there are allegations of financial irregularities against the appellant and having due regard to the entire conspectus of facts, the prayer made on behalf of the appellant for reinstatement at the present stage cannot be acceded to.

The documents and materials brought on record would reflect that the second respondent has exceeded his jurisdiction under sub-clause (7) of Section 16G by entering into the merit of the charges. The impugned order does not record any reason nor there is application of mind, as to whether, the materials produced by the Management, prima facie, forms the basis of the allegations and if proved, would tantamount to termination/reduction in rank of the fifth respondent. The impugned order further does not consider the objections raised by the petitioner for revocation of the suspension order nor does it, prima facie, examine, as to whether,  the charges have any substance or there is specific material to support the charge.

In the circumstances, the impugned order dated 9 August 2017 passed by the second respondent, District Inspector of Schools, Kushinagar, cannot be sustained, accordingly, is set aside and quashed. The writ petition is allowed. The matter is remitted to the second respondent to pass a fresh order in accordance with law within four weeks from date. Reinstatement of the fifth respondent on the post of Principal shall abide by the decision taken by the second respondent, District Inspector of Schools, Kushinagar.

No cost.

Order Date :- 27.11.2017

S.Prakash