Deshraj Singh vs State Of U.P., Through Its ...
2019 Latest Caselaw 1329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 

 
Case :- WRIT - A No. - 4093 of 2019
 

 
Petitioner :- Deshraj Singh
 
Respondent :- State Of U.P., Through Its Principal Secretary Secondary Education, Lucknow And 5 Others
 
Counsel for Petitioner :- Ram Krishna Yadav
 
Counsel for Respondent :- C.S.C.,Sandeep Kumar
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This petition is directed against an order passed by the Inspector on 21.1.2019 approving the resolution of the managing committee for placing the petitioner under suspension. This order is assailed on the ground that an opportunity of hearing has been denied to the petitioner and being violating of principles of natural justice the order itself is bad in law.

2. Though a short counter affidavit has been filed but it is admitted to the respondents that no opportunity of hearing has been afforded to the petitioner before approving the resolution of managing committee to place the petitioner under suspension. It is contended on behalf of respondent that an opportunity of hearing is not expressly provided for under section 16-G(7) of the U.P. Intermediate Education Act, 1921 and therefore there would be no necessity  of affording an opportunity of hearing  to the petitioner at this stage. Reliance is placed upon a Division Bench judgment of this Court in Ram Kripal Katiyar Vs. District Inspector of Schools and others, reported in 2009(4) AWC, 3202. Paragraph 5  of the aforesaid Division Bench judgment is reproduced hereinafter:-

"In the instant case it is admitted position that the District Inspector of Schools has given approval. The only grouse of the appellant is that opportunity of hearing ought to have been extended while considering the grant of approval. In support of this contention, Sri P.K. Jain, learned Counsel for the appellant could not point out any statutory provision wherein such opportunity was necessary. While considering the grant of approval the District Inspector of Schools is required to ensure that there exists some reasonable ground for proceeding against the Head of Institution or teacher and there exists necessary reason to place him under suspension. However, while considering the grant of approval he would not embark upon the merits of charges. In other words, he cannot hold a parallel inquiry as Regulation 39 does not require furnishing proof of charges. Under Regulation 39 the Committee of Management is required to forward together with the order of suspension, details of charges, certified copies of complaints, reports and inquiry report, if any, in order to find out as to whether charges are non est or does not constitute misconduct. The Act and the Regulation nowhere envisages about providing opportunity of hearing at the stage of grant of approval by the District Inspector of Schools. However, the person aggrieved by such resolution of the Committee of Management can approach the District Inspector of Schools straightaway to show that the order of suspension is not justified or warranted in the facts of the case. In the case of Govind Swamp Pandey v. Authorised Controller, Adarsh Inter College, Manlkpur Banda and Anr. 1981 UPLBEC 17, this Court has held that it is open to the person aggrieved to approach the District Inspector of Schools straightaway and to satisfy him that the order of suspension has been passed illegally or mala fide even undeservedly. No reason or explanation has come before us as to what prevented the appellant from approaching the District Inspector of Schools against the decision of the Committee of Management placing him under suspension. It is well-settled legal position that the order of suspension is not a punishment and, therefore, while placing a delinquent employee under suspension, no notice or show cause or any opportunity of hearing is mandatory. The only requirement is that there must exist some prima facie misconduct on the part of the employee and for which regular departmental proceeding is under contemplation or is already initiated."

3. The Division Bench for the purposes of holding that opportunity of hearing is not required to be given before passing an order of approval has essentially examined the nature of the order of suspension itself. It has been observed that suspension is not a punishment and no opportunity of hearing is required to be given before passing such order. Earlier judgments on the point in issue, in that regard, have been relied upon.

4. Learned counsel for the petitioner, on the other hand, places reliance upon a judgment of this Court in Satya Pal Singh Vs. State of Uttar Pradesh, reported in 2006 (6) AWC, 5726. The learned Single Judge of this Court after noticing the provisions of the Act has been pleased to observe that the Inspector while granting approval to the resolution of the managing committee for placing the teacher under suspension is required to record reasons in support of its order. The observation of the learned Single Judge in paragraph Nos. 7 to 12 of the judgment is reproduced:-

"7. The power to suspend the Principal or a teacher of an institution is governed under sub Clause (5) of Section 16-G of the Act which gives a power to the Committee of Management to suspend a teacher or a head of the institution, pending contemplation of an inquiry. Under sub Clause (6), the suspension order and other papers and particulars as prescribed has to be forwarded to the Inspector concerned. The relevant papers which are required to be forwarded has been prescribed under Regulation 39 of Chapter-III of the Regulations framed under the Intermediate Education Act. Under Clause (7), the suspension order is required to be approved or disapproved by the Inspector within 60 days and under sub Clause (8), the suspension order could be revoked at any stage of the disciplinary proceedings where it is found that the disciplinary proceedings are being delayed for one reason or the other.

8. The question is, whether the Inspector is required to record reasons while approving or disapproving the suspension order under Clause (7) of Section 16-G of the Act. In Committee of Management Sri Mahanthu Radha Krishna Inter College, Sakarpura, District Ballia v. District Inspector of Schools, Ballia and Anr. 1988 UPLBEC 226, a Division Bench of this Hon'ble Court held that the order of the District Inspector of Schools while approving or disapproving the resolution of the Committee of Management with regard to the suspension of the Principal or a teacher must contain the reasons and, in the absence of any reasons contained in the order of the Inspector, the same could not be sustained in law.

9. In the Committee of Management, Janta Inter College, Mau Aima, Allahabad and Anr. v. District Inspector of Schools, Allahabad and Anr. 2000(4) ESC 2921, it was held that the statutory provisions of Section 16-G(7) provided that the order of approval had to be passed in writing, which made it implicit that the Inspector had to apply his mind and record reasons for approval or disapproval of the suspension order. The learned Single Judge further held that the Inspector was under a legal duty to pass a reasoned order under Clause (7) of Section 16-G(7) of the Act.

10. On the other hand, the learned Counsel for the management placed reliance upon a decision in Om Prakash Singh v. District Inspector of Schools, Azamgarh and Ors. on the proposition that no reason was required to be given while according approval. In the opinion of the Court, the judgment cited by the learned Counsel for the respondent has no relevance to the facts and circumstances of the case.

11. In view of the consistent view given in the aforesaid decisions, it is clear, that the Inspector while according approval or disapproval of the suspension order passed by the Committee of Management, was required to give reasons and was also required to apply his mind.

12. Under Clause (5) of Section 16-G, the Committee of Management could suspend a teacher or a Head of the Institution on certain grounds mentioned therein. The order was forwarded under clause(6) along with the papers prescribed under Regulation 39 of Chapter-III. These papers were required to be considered and the Inspector was required to apply his mind and was required to give the reasons while according approval or disapproval of the suspension order. In the present case, no reasons have been recorded and, therefore it is clear, that the Inspector did not apply his mind to the facts and the circumstances of the case. There is another aspect of the matter. The Committee of Management while issuing the suspension order is not required to given an opportunity of hearing to the teacher or the head of the institution. Therefore, at the stage when the order of suspension is being approved and the Inspector is required to apply his mind, it is at that stage, a bare minimum opportunity of hearing is required to be given to the suspended teacher or the Principal, as the case may be. This is the bare minimum requirement of the principles of natural justice, which is required to be given at that time, by the Inspector, while approving or disapproving the suspension order. This is on account of the fact, that the papers forwarded by the Committee of Management under Regulation 39 of Chapter in may contain the reasons, which are only one sided. The other side of the coin should also be considered and that is when the suspended teacher or the Principal would come into the picture. Consequently, in the opinion of the Court, the Inspector is also required to give an opportunity of hearing and hear the version of the suspended teacher or the principal before approving or disapproving the order of suspension. In the present case, no opportunity of hearing was provided to the petitioner."

5. Reliance is also placed upon a subsequent Division Bench judgment of this Court in Hari Singh Rajput Vs. State of U.P. and others, reported in 2015(2) ESC, 1220. Paragraph Nos. 4 and 6 to 9 of this judgment are also reproduced hereinafter:-

"4. When the District Inspector of Schools considers whether to approve an order of suspension under Section 16-G of the Act, it is a well-settled principle of law that an opportunity of being heard ought to be granted to the teacher, the Principal and the Management. Moreover, it is also a well-settled principle of law that the District Inspector of Schools must pass a reasoned order indicating at least brief reasons for granting his approval or, as the case may be, disapproval to the suspension of a teacher (See: Committee of Management, Maharajganj Inter College v. District Inspector of Schools, 1999 (3) UPLBEC 1765). In the present case, ex facie the order of the District Inspector of Schools dated 9 December 2014, which was in question before the learned Single Judge, did not indicate any reasons.

6. We have duly perused the order of the District Inspector of Schools dated 9 December 2014. The first paragraph of the order contains only a recital of the fact that following the enquiry report, the Management had resolved on 16 November 2014 to place the appellant teacher under suspension and, accordingly, an application was submitted on 4 December 2014 for approval. The second paragraph of the order only contains his conclusion granting approval. Not even brief reasons were indicated in the order, which is totally bereft of any reasons whatsoever. Moreover, it is not in dispute that the appellant was not given an opportunity of being heard, which has been held to be required in the judgment of the Division Bench noted above.

7. In this view of the matter, we are of the view that the learned Single Judge was in error in dismissing the writ petition. What weighed with the learned Single Judge was that the order of the District Inspector of Schools noted that the enquiry report was taken into consideration before granting approval to the order of suspension. This, with respect, is an incorrect reading to the order of the District Inspector of Schools dated 9 December 2014.

8. For these reasons, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 9 February 2015. We set aside, in consequence, the order of approval granted by the District Inspector of Schools on 9 December 2014 and direct that the District Inspector of Schools shall pass a fresh order in accordance with law after furnishing to the appellant a reasonable opportunity of being heard. We however, decline to accede to the prayer of the appellant that the appellant should be reinstated in service pending a decision by the District Inspector of Schools.

9. 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. However, we direct that the District Inspector of Schools shall pass a fresh order within a period of three weeks of the receipt of a certified copy of this order, after furnishing to the appellant an opportunity of being heard."

6. While law is settled that no opportunity of hearing is required to be given to the employee concerned before passing the order of suspension yet that principle would not be attracted once the exercise of power is by the Inspector, under the Statute, for the purposes of grant of approval to the resolution of the managing committee. Regulation 39 provides that a report regarding suspension has to be submitted to the Inspector concerned alongwith the particulars and documents specified therein. It is the exercise of power by the employer which needs to be examined by the Inspector. The Inspector has to be satisfied on the basis of materials placed that invocation of power by the employer is for reasons permissible under the applicable Statute. It is in this backdrop that reasons and hearing assumes significance. It may otherwise be kept in mind that suspension of teacher may carry adverse impact upon the cause of education in the Instituition concerned. The satisfaction of Inspector for the purposes of grant of approval must flow from an objective consideration of relevant materials available on record. An opportunity of hearing therefore would become imperative once reasons have to be recorded. In the absence of hearing the correctness of reasons itself may  be open to challenge on various grounds.

7. The Hon'ble Supreme Court in M/s Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise Gauhati and others reported in (2015) 8 SCC 519 has been pleased to emphasize the importance of hearing and recording of reasons even in cases where it is expressly not required to be given. Observations of the Apex Court in the aforesaid case are being reproduced hereinafter:-

"Natural justice is an expression of English Common Law. Natural justice is not a single theory - it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called 'naturalist' approach to the phrase 'natural justice' and is related to 'moral naturalism'. Moral naturalism captures the essence of commonsense morality - that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.

In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi- judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as 'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'.

Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's 'Arthashastra'. This Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors.[4] explained the Indian origin of these principles in the following words:

"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam - and of Kautilya's Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system".

Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth Centuries A.D. called it 'jura naturalia', i.e. natural law.

The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong.

This aspect of procedural fairness, namely, right to a fair hearing, would mandate what is literally known as 'hearing the other side'. Prof. D.J. Galligan attempts to provide what he calls 'a general theory of fair treatment' by exploring what it is that legal rules requiring procedural fairness might seek to achieve. He underlines the importance of arriving at correct decisions, which is not possible without adopting the aforesaid procedural fairness, by emphasizing that taking of correct decisions would demonstrate that the system is working well. On the other hand, if mistakes are committed leading to incorrect decisions, it would mean that the system is not working well and the social good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and, as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham[6], who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that the said theory developed by Bentham can be transposed to other forms of decision making as well. This jurisprudence of advancing social good by adhering to the principles of natural justice and arriving at correct decisions is explained by Galligan in the following words:

"On this approach, the value of legal procedures is judged according to their contribution to general social goals. The object is to advance certain social goals, whether through administrative processes, or through the civil or criminal trial. The law and its processes are simply instruments for achieving some social good as determined from time to time by the law makers of the society. Each case is an instance in achieving the general goal, and a mistaken decision, whether to the benefit or the detriment of a particular person, is simply a failure to achieve the general good in that case. At this level of understanding, judgments of fairness have no place, for all that matters is whether the social good, as expressed through laws, is effectively achieved." Galligan also takes the idea of fair treatment to a second level of understanding, namely, pursuit of common good involves the distribution of benefits and burdens, advantages and disadvantages to individuals (or groups). According to him, principles of justice are the subject matter of fair treatment. However, that aspect need not be dilated.

Allan, on the other hand, justifies the procedural fairness by following the aforesaid principles of natural justice as rooted in rule of law leading to good governance. He supports Galligan in this respect and goes to the extent by saying that it is same as ensuring dignity of individuals, in respect of whom or against whom the decision is taken, in the following words:

"The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is, as Galligan clearly explains, an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging a person's right to understand his treatment, and thereby to determine his response as a conscientious citizen, willing to make reasonable sacrifices for the public good. If obedience to law ideally entails a recognition of its morally obligatory character, there must be suitable opportunities to test its moral credentials. Procedures may also be though to have intrinsic value in so far as they constitute a fair balance between the demands of accuracy and other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all." It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms.

It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not."

8. In view of the exposition of law laid down by the Apex Court in M/s Dharampal Satyapal Ltd. (supra) as also the observation of the subsequent division bench judgement of this Court in Hari Singh Rajput (supra) and also for the reasons narrated above, this Court is not inclined to accept the argument of respondents that an opportunity of hearing would not be required to be given by the Inspector at the stage of grant of approval to the resolution of suspension.

9. The order of the Inspector, in such circumstances, cannot be sustained and is quashed.The petitioner as also the representative of managing committee shall appear before the Inspector concerned on 25.3.2019 and a date for hearing would be fixed soon thereafter by the Inspector concerned. An appropriate order thereafter would be passed by the Inspector, in accordance with law, preferably within a period of six weeks. Since the period of sixty days has expired since passing of the order of suspension the petitioner would be entitled to payment of salary which shall remain subject to the order of Inspector under Section 16 (G) 7 of the Act of 1921.

10. In the facts and circumstances, the committee of management would be obliged to pay regular salary to the petitioner till a fresh decision is taken by the Inspector but it would be open for the managing committee to take or not to take work from the petitioner.

11. With the aforesaid observations, the writ petition stands disposed of.

Order Date :- 15.3.2019

n.u.