C/M. Dpsn Inter College And Anr. vs State Of U.P. And 3 Ors.
2017 Latest Caselaw 7400 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 56244 of 2017
 

 
Petitioner :- C/M. Dpsn Inter College And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Amit Saxena
 
Counsel for Respondent :- C.S.C.,Birendra Singh
 

 
Hon'ble Suneet Kumar,J.

Heard the learned counsel for the petitioner, learned standing counsel for the first, second and third respondent and Sri Shailendra, learned counsel appearing for the fourth respondent.

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

The facts, inter se parties, is not in dispute. Committee of Management1 of D.P.S.N. Inter College, Kakwan, District Kanpur Nagar, by the instant petition is assailing the order dated 3 November 2017 passed by the second respondent-District Inspector of Schools, Kanpur Nagar, disapproving the suspension of the fourth respondent-Principal of the institution under sub-section (7) of Section 16-G of the Intermediate Education Act, 19212, and Regulations framed thereunder.

The Management in an emergent meeting held on 14 September 2017 resolved to place the fourth respondent under suspension and initiate disciplinary proceeding against him. Pursuant thereof, charge-sheet dated 30 September 2017, was served upon the fourth respondent, copy of which was endorsed to the office of the second respondent on 3 October 2017. On the representation dated 18 September 2017, filed by the fourth respondent, the second respondent summoned the parties for submissions. It is alleged that copy of the written statement submitted by the fourth respondent was not made available to the petitioner. The impugned order, upon hearing the parties, disapproved the suspension order primarily on three grounds :

(i) that petitioner failed to produce substantive evidence in support of the charge-sheet, therefore, prima facie, charges are not established;

(ii) that no preliminary enquiry was held before passing of the suspension order;

(iii) that relevant papers in terms of Regulation 39, Chapter-III was not supplied to the second respondent within stipulated prescribed period;

(iv) On previous three occasion, the fourth respondent was placed under suspension which, was disapproved.

Learned Senior Counsel appearing for the petitioner would submit that the second respondent has exceeded his jurisdiction while passing the impugned order, which is not in terms of the law settled interpreting the scope and ambit of sub-section (7) of Section 16-G of Act, 1921. It is urged that the allegation against the fourth respondent is very serious, if proved, would entail either dismissal from service or reversion in rank. Allegation, primarily against the fourth respondent is that he permitted a religious organization to hold "Shri Ram Katha" by Sri Shantnu Ji Maharaj, from 21 September 2017 to 25 September 2017, in the premises of the institution during college session. It is, further, alleged that posters to that effect came up in the city and its vicinity, thereafter, pamphlets were circulated, wherein, the venue was the institution. In support of the allegation, documents ten in number was supplied which is part of the charge-sheet, which include copy of hordings, hand-bill, posters, invitation card, copy of money receipts, copy of the communication of the Organizing Committee, copy of the letter seeking explanation from the fourth respondent.

Learned counsel appearing for the fourth respondent would not dispute the material fact, but, would submit that the Management had given approval for holding the function, therefore, the religious function was being organized. Learned Senior Counsel would refute the allegation and would urge that approval was accorded under certain conditions to avoid embarrassment created by the fourth respondent, which, however, was not accepted, either by the Organizer or the District Education Officer including the District Administration, therefore, no approval was granted.

It was the fourth respondent, who at his own end, had initiated holding of the function, and it is him, who went ahead in permitting the organizers to hold the function in the college premises without informing the Management. The fourth respondent was in league with the second respondent and other officers of the education department, whose influence was solicited by the fourth respondent in pressuring the Committee to accord approval. This fact is evident from threats exercised by the second respondent in superseding the Management in the event approval is not granted, copy of the transcript of telephonic conversion between the member of the Management and the second respondent has been brought on record. Further, it is alleged that the second respondent misused his office by inviting representative of the Management and the fourth respondent on 18 September 2017 for conciliation, thereby, pressuring the petitioner to withdraw the suspension order. It is, therefore, sought to be urged that the impugned order is a consequence of malicious exercise of power. During course of the argument, it has been informed that to pressurize and penalise the Management, on the report of the second respondent, the third respondent-Joint Director of Education, Kanpur Region, Kanpur vide communication dated 21 November 2017, in exercise of power under Uttar Pradesh High-Schools and Intermediate Colleges (Payment of Salaries to Teachers and Other Employees) Act, 1971, has appointed Authorized Controller in the institution as was apprehended by the Management.

Be that as it may, since the District Inspector of Schools has not been arrayed in personal capacity, this Court declines to enter into the allegations of malafide made against him. The Court would confine to the reasons, validity and merit of the impugned order in terms of sub-clause (7) of Section 16-G of the Act, 1921.

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 is satisfied that the disciplinary proceedings against the Head or the Teacher of the Institution are being delayed without any fault on their part.

Full Bench in Chandra Bhushan Misra vs. District Inspector of Schools3 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."

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.

Learned counsel for the fourth respondent during course of the argument has not disputed that religious function was permitted to be organized in the institution, for which, no formal approval was taken from the Management, but would submit that mere organization of "Shri Ram Katha" on the campus would not tantamount to dismissal or reversion in rank of the fourth respondent.

In rebuttal, learned Senior Counsel would submit that the institution being recognized and in grant-in-aid, cannot permit any religious function on the campus and that too during college working hours. Principal being head of the institution has no authority either under the Act, 1921 or its Regulations framed thereunder to permit a religious organization to hold their function without permission of the Management. Further, Principal is receiving salary from the state exchequer, he, therefore, cannot become part and parcel of a religious function which is certainly not related to education or its allide activities contemplated under Act, 1921. Further, the District Education Officers cannot exercise and pressurize the Management in doing something, which is not a part of their official duty, their conduct, therefore, tantamounts to misconduct within the conduct Rules. The institution does not impart religious instructions nor such is provided in the syllabus appended to the Act, 1921.

I have perused the documents and material brought on record with the assistance of learned counsel for the parties.

In my opinion, the impugned order does not notice the material and documents in support of the charges, nor, prima facie, finding has been returned whether charges have any substance, and whether there is material to support the charges. Further, learned counsel for the fourth respondent failed to point out any provision either in the Act, 1921 or Regulations framed thereunder that a preliminary enquiry is mandated before suspending a teacher or principal. Merely because the earlier suspension orders passed against the fourth respondent was disapproved by the District Inspector of Schools would not justifying or merit disapproval in the present case. Further, the impugned order does not note as to which paper or document in support of the charges was not supplied.

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.

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. (Refer: Sri Mahanthu Radha Krishna Inter College, Sakarpura District Vallia vs. District Inspector of Schools an another4; Tejnarain Singh vs. State of U.P. and others5; Mau Aima Allahabad and another vs. DIOS Allahabad and another6; C/M Moti Lal Nehru Smarak Inter College and another vs. District Inspector of Schools, Azamgarh7).

In view of the statement of law, the impugned order is unsustainable in law.

Learned counsel for the fourth respondent would not dispute the legal proposition, but would submit that since the statutory period of sixty days has lapsed, therefore, the fourth 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 others8, 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."

Having due regard to the seriousness of the charges, a direction for reinstatement at this stage, cannot be acceded.

In the circumstances, the impugned order dated 3 November 2017 passed by the second respondent-District Inspector of Schools, Kanpur Nagar, 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 six weeks from from the date of filing of certified copy of this order after hearing the petitioner and the fourth respondent. Reinstatement of the fourth respondent on the post of Principal shall abide by the decision taken by the second respondent, District Inspector of Schools, Kanpur Nagar.

It will, however, be open to the petitioner to approach the higher authority, if so advised, by making an appropriate application to get the matter transferred/decided by any other District Inspector of Schools, other than the second respondent, in view of the allegations of malafide and bias. In the event of such an application being filed the same shall be considered by the competent authority on merit after hearing the aggrieved parties.

In that event, the second respondent shall not proceed to decide the validity of the suspension order pending decision on the transfer application.

No cost.

Order Date :- 29.11.2017

Mukesh Kr./S.Prakash