Allahabad High Court
Brijesh Kumar vs State Of U.P. And 2 Others on 9 May, 2019
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- WRIT - A No. - 6814 of 2019
Petitioner :- Brijesh Kumar
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Amit Saxena
Counsel for Respondent :- C.S.C.,Vinod Shanker Giri
Hon'ble Manoj Kumar Gupta,J.
Heard Sri Amit Saxena, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. I have also heard Sri Ashok Khare, learned senior counsel assisted by Sri Vinod Shanker Giri on behalf of one Goverdhan Prasad Awasthi, Lecturer, Har Sahai Jagdamba Sahai Inter College, Kanpur, the caveator-applicant.
Sri Ashok Khare states that the caveator-applicant is the person to whom the charge of the post of officiating Principal has been handed over after placing the petitioner under suspension.
The petitioner is the officiating Principal of Har Sahai Jagdamba Sahai Inter College, Kanpur, a recognised institution under the U.P. Intermediate Education Act, 1921. The Committee of Management of the said institution is not functional and the District Inspector of Schools is acting as Authorised Controller. By impugned order dated 30.1.2019, the District Inspector of Schools, while acting as Authorised Controller, has placed the petitioner under suspension and by subsequent order dated 27.3.2019, he has accorded approval to the suspension order.
Learned counsel for the petitioner submitted that the order of approval is a non-speaking order. It does not disclose any reason for approving the suspension order. It is submitted that since the District Inspector of Schools himself had passed the suspension order while acting as Authorised Controller of the institution, therefore, the order of approval should contain cogent reasons showing application of mind.
Learned standing counsel does not dispute that the impugned order approving the suspension, does not contain any reason except for observing that the approval is being granted on the basis of documents made available as per Regulation 39 of Chapter III.
Sri Ashok Khare, learned senior counsel appearing on behalf of the caveator-applicant submitted that the District Inspector of Schools, while acting as Authorised Controller, has also issued charge sheet to the petitioner on 18.3.2019, therefore, the same should be read alongwith the impugned order.
Learned counsel for the petitioner submitted that the caveator-applicant has no right or locus to oppose the instant petition as he has been given charge of the post of officiating Principal only as a temporary measure and not in his own independent right.
There appears sufficient force in the submissions of learned counsel for the the petitioner that the caveator-applicant, who has been given charge of the office of Principal, as the petitioner has been placed under suspension, has no independent right to work as officiating Principal as concededly, he is not the senior-most lecturer in the institution. He would thus have no locus to oppose the instant petition.
Section 16-G provides that no order of suspension shall, unless approved in writing by Inspector remain in force for more than sixty days from the date of commencement of U.P. Secondary Education Laws (Amendment) Act, 1975, or as 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. Sub-section (6) mandates that the suspension shall be reported to the Inspector within seven days from the date it is passed and the report shall contain such particulars as may be prescribed and accompanied by all relevant documents. Regulation 39 of Chapter III prescribes the documents which should accompany the report sent to the Inspector. The particulars and documents are as follows :-
"(a) the name of the persons suspended alongwith, particulars of the (posts including grades) held by him since the date of his original appointment till the time of suspension including particulars as to the nature of tenure held at the time of suspension, e.g., temporary permanent or a officiating;
(b) a certified copy of the report on the basis of which such person was last confirmed or allowed to cross efficiency bar, whichever later.
(c) Details of all the charges on the basis of which such person was suspended;
(d) Certified copies of the complaints, reports and inquiry report, if any, of the inquiry officer on the basis of which such person was suspended;
(e) Certified copy of the resolution of the Committee of Management suspending such person;
(f) Certified copy of the order of suspension issued to such person;
(g) In case such person was suspended previously also, details of the charges, on which and the period of which he was suspended on previous occasions accompanied by certified copies of the orders on the basis of which he was re-instated.
Sub-section (5) of Section 16-G provides that Head of institution or teacher shall not be suspended unless the charges levelled against him are serious enough to merit his dismissal, removal or reduction in rank or his continuance in office would hamper or prejudice the conduct of disciplinary proceedings. The object of sending report of suspension and documents prescribed under Regulation 39 is to enable the Inspector to independently examine the gravity of the charges to warrant placing the person under suspension. He has also to rule out that power of suspension is not being abused by the Management. It is also now settled by series of precedents that the power under sub-section (7) has to be exercised consistent with the principles of natural justice.
A perusal of the impugned order, as noted above, reveals no application of mind by the Inspector to the above aspects. In the instant case, since the order of suspension was passed by the Inspector himself while acting as Authorised Controller, therefore, it was all the more necessary for him to give objective reasons for approving the suspension order. Merely because he has received the documents relating to suspension of the petitioner, is not sufficient to put his seal of approval over the same without specifying reasons therefor. The impugned order also does not indicate that the decision was taken after affording opportunity of hearing to the petitioner.
Consequently, the order of approval becomes vulnerable and is accordingly quashed. The matter is remanded back to the third respondent for passing fresh order, after giving opportunity of hearing to the petitioner.
The petition is allowed to the extent indicated above.
Order Date :- 9.5.2019
skv
(Manoj Kumar Gupta, J.)
