Neelam vs State Of U.P. And 3 Others
2021 Latest Caselaw 6687 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
In Chamber
 

 
Case :- WRIT - A No. - 1193 of 2021
 

 
Petitioner :- Neelam
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ramesh Chandra Dwivedi,Deepak Kumar Pal
 
Counsel for Respondent :- C.S.C.,Upendra Singh
 

 
Hon'ble Jayant Banerji,J.

This petition has been filed challenging the order dated 26.12.2020 passed by the District Inspector of Schools, Kaushambi1, whereby, the decision dated 8.11.2020 of the Committee of Management, suspending the petitioner, who is the Principal of Kasturba Gandhi Kanya Inter College, Bharwari, Kaushambi, has been approved under the provisions of Section 16G(7) of the Intermediate Education Act, 1921. Further direction has been sought for restraining the respondents from interfering in the working of the petitioner as the Principal of the college.

It is stated by the learned counsel for the petitioner that the Committee of Management has a grudge against her ever since the time of her appointment to the substantive post of the Principal of the college. It was only pursuant to a judgement given by this Court on 20.11.2015 in a writ petition that the Manager of the Committee of Management permitted the petitioner to join on the post of Principal on 2.2.2016. It is contended that the mala fide of the Committee of Management is reflected from the fact that on a previous occasion, frivolous charges were levelled against the petitioner and she was suspended by an order dated 12.7.2017 which the DIOS disapproved. The order of the DIOS was challenged in a writ petition filed by the Committee of Management and this Court in Special Appeal directed the DIOS to pass a fresh order in accordance with law. Thereafter, by his order dated 6.1.2017 the DIOS again disapproved the suspension order of the petitioner. Against that order, the Committee of Management again filed a writ petition before this Court which is pending but no interim order has been granted therein. It is stated that again the petitioner was suspended by the Committee of Management on 8.11.2020. It is stated that without affording any opportunity of hearing to the petitioner, the DIOS by his order dated 26.11.2020 approved the suspension of the petitioner. This order has been impugned in the present writ petition. Non-application of mind by the DIOS and his acting mechanically with regard to the order of approval of suspension have been alleged. It is, further, stated that the order impugned by the DIOS reflects no reasons for passing the said order. Learned counsel has relied upon a judgement of this Court in the case of Deshraj Singh Vs. State of U.P. and others reported in 2019 (3) ESC 1016 (All) to contend that the order granting approval of suspension deserves to be quashed inasmuch as no prima facie satisfaction, on the basis of material placed before him, has been recorded by the DIOS. Further, an opportunity of hearing ought to have been afforded to the petitioner.

A counter affidavit on behalf of the State-respondents has been filed but no rejoinder affidavit to the same has been filed nor was any time sought for the same. Learned counsel for the respondent no. 4, Committee of Management, has stated that a counter affidavit is under preparation but the learned counsel agree that given the short question of law involved, the matter can be heard for disposal on the basis of the available records at this stage.

Shri G.K. Singh, learned counsel appearing for the respondent no. 4- Committee of Management has strongly urged that perusal of the paragraph nos. 13, 14 and 15 of the petition reveal that a notice was sent by the DIOS to the petitioner as well as to the Committee of Management on 12.11.2020 asking the petitioner to submit evidence in support of the reply to the chargesheet issued by the Committee of Management. Further time was afforded to the petitioner by the DIOS to submit her reply. The petitioner submitted her reply by means of the letter dated 8.12.2020 and requested the DIOS to direct the Committee of Management to provide the documents and evidences for giving reply to the charges levelled against her. It is contended that in the reply submitted by the petitioner which has been enclosed as Annexure No. 6 to the petition, none of the charges have been addressed on merit. It is contended that serious allegations of financial irregularities and misappropriation have been levelled against the petitioner. Realising the gravity of charges the DIOS recorded the same in the impugned order and approved the order of suspension. He has urged that the provisions of Section 16G(5) of the Act itself reflects the onerous responsibility of the Committee of Management and therefore the proceedings as taken by the Committee of Management as well as by the DIOS are justified. Learned counsel has referred to the following judgements in support of his contentions:-

(i) Tej Narain Singh Vs. State of U.P. and others - 2008 (7)ADJ 108,

(ii) Ram Kripal Katiyar Vs. District Inspector of Schools, Shahjahanpur reported in 2009 (7) ADJ 61,

(i) Hari Singh Rajput Vs. State of U.P. and others reported in (2015) 2 UPLBEC 1362,

(iii) Committee of Management Sri Mahanthu Radha Krishna Inter College, Sakarpur, Distt. Ballia Vs. District Inspector of Schools, Ballia and another reported in 1988 UPLBEC 226,

(iv) The Managing Committee, Dayanand Inter College, Gorakhpur and another Vs. The District Inspector of Schools and others reported in 1980 UPLBEC 168,

(v) Committee of Management, Janta Inter College and another Vs. State of U.P. and others reported in 2020 (4) ADJ 330.

He contends that the DIOS cannot go into the merits of the charges reflected in the recommendation for suspension and he cannot record a finding on merits. The contention is that at the stage of consideration of the grant of approval or of disapproval of the order of suspension no opportunity of hearing is required to be given to the employee concerned. The contention is that the judgement of this Court in Hari Singh Rajpoot has not taken into account the previous Division Bench judgements that have negated the need for opportunity of hearing. It is stated that the order impugned clearly revealed that the DIOS had perused the record and had formed a prima facie opinion that petitioner was charged with grave financial irregularities, indiscipline, use of bad language, extortion of money and disobedience of the orders of the higher authorities and therefore the order impunged is justified and no interference is called for.

The learned Standing Counsel appearing for the State has sought to justify the order impugned passed by the DIOS.

Admittedly, by means of a letter dated 12.11.2020, the DIOS issued notice to the petitioner. Apparently, in the letter of 12.11.2020, the DIOS asked the petitioner to give point-wise clarification on the charges framed by the Committee of Management. The petitioner by means of her letter dated 26.11.2020, sought 15 days time to file her reply. By means of a letter dated 28.11.2020, the DIOS gave a week's time to the petitioner and directed that she should submit her reply along with evidence.

By means of a letter dated 8.12.2020, the petitioner sent a letter to the DIOS in which she raised the following points in response to the letter of the DIOS dated 12.11.2020:

(1) The suspension order is baseless, false and concocted,

(2) The petitioner has not received the resolution, agenda and complaint letters as well as the evidence of the charges considered at the meeting of the Committee of Management on 8.11.2020,

(3) The letter dated 11.11.2020 of the three member enquiry committee in which the petitioner herself has been asked to give evidence of the charges. Only 7 days time was afforded by the enquiry committee to give reply to the charges which is against the rules. The petitioner had asked for the evidence and documents in respect of the alleged charges against her by means of a letter dated 1.12.2020,

(4) As soon as the documents and evidence required by the petitioner by means of a letter dated 17.11.2020 and 1.12.2020 are made available to her she would submit her reply with evidence at the earliest,

(5) Most of the charges levelled against the petitioner are the same as those that were framed in the letter framed in the letter dated 12.7.2017, whereby, the petitioner was placed under suspension previously, and the suspension was disapproved by the DIOS,

(6) By means of a letter dated 2.3.2020 the Committee of Management had levelled those very charges that are mentioned in the order of suspension dated 8.11.2020 and to that show cause notice the petitioner, by means of her letter dated 12.3.2020 had submitted her reply to all the points involved. After seven months of the letter dated 12.3.2020 she has been suspended suddenly,

(7) It is clear that the petitioner is being harassed by the false charges being levelled against her by the Manager. The charges levelled against her in the suspension order have been previously dealt with by the Hon'ble High Court. Similarly, the show cause notice dated 2.3.2020 of the Manager has been replied to by the petitioner by her letter dated 12.3.2020 and thereafter the same charges are being repeated and no evidence being given to her are illegal and unjustified. The Manager has locked the channel gate outside the Principal's office on 5.12.2020, while the entire documents and records are in that office.

Therefore, the petitioner requested the DIOS that the documents and evidences asked from the Manager by her letter dated 17.11.2020 be directed to be given; with regard to the charges framed by the enquiry committee, the evidence and documents required by the petitioner by her letter dated 1.12.2020 be furnished; and, the order of suspension dated 8.11.2020 be disapproved.

The impugned order of the DIOS dated 26.12.2020 reads as follows:

"प्रेषक,

जिला विद्यालय निरीक्षक

कौशाम्बी।

सेवा में,

प्रबन्धक,

कस्तूरबा गांधी कन्या इण्टर कॉलेज,

भरवारी, कौशाम्बी।

पत्रांकः- 7281-86 	/2020-21                          दिनांकः 26.12.2020 
 
विषयः- श्रीमती नीलम, प्रधानाचार्य, कस्तूरबा गांधी कन्या इण्टर कॉलेज, भरवारी कौशाम्बी के निलम्बन अनुमोदन के सम्बन्ध मे। 
 
महोदय,
 

उपर्युक्त विषयक, अपने पत्रांक/मे०मो०/2020/21 KGKI.C 48-50 दिनांक 08.11.2020 का संदर्भ ग्रहण करे। जिसके द्वारा प्रबन्ध समिति के प्रस्ताव दिनांक 08.11.2020 द्वारा आरोपित बिन्दुओं के आधार पर श्रीमती नीलम, प्रधानाचार्य, कस्तूरबा गाँधी कन्या इण्टर कॉलेज, भरवारी, कौशाम्बी को दिनांक 08.11.2020 से निलम्बित करते हुए निलम्बन के अनुमोदन का प्रकरण इस कार्यालय में प्रेषित किया गया है। प्रश्रगत् प्रकरण का अनुशीलन किया गया, जिसमें आप द्वारा श्रीमति नीलम के द्वारा, सौंपे गये कार्य दायित्वों में वित्तीय वर्ष 2017-18, 2018-19 एव 2019-20 में लगातार वित्तीय अनियमितता, अनुशासनहीनता, अभद्र भाषा का प्रयोग, धनउगाही, उच्चाधिकारियों के आदेशों की अवहेलना जैसे संगीन आरोपों के प्रथम दृष्टया पाये जाने पर प्रबन्ध समिति के प्रस्ताव दिनांक 08.11.2020 द्वारा तद् दिनांक से निलम्बित किया गया है।

अतः उपरोक्त गम्भीर प्रवृत्ति के आरोप के आधार पर जिससे संस्था का शैक्षणिक वातावरण खराब होने तथा शिक्षक एव विद्यार्थियों पर इसका प्रतिकूल प्रभाव पडने के दृष्टिगत इण्टरमीडिएट शिक्षा अधिनियम 1921 की धारा 16 छ (7) में दिये गये प्राविधानों के अन्तर्गत श्रीमती नीलम, प्रधानाचार्य, कस्तूरबा गाँधी कन्या इण्टर कॉलेज, भरवारी, कौशाम्बी का प्रबन्ध समिति के प्रस्ताव दिनांक 08.11.2020 द्वारा किया गया निलम्बन अनुमोदित किया जाता है।

भवदीय

(सत्येन्द्र कुमार सिंह)

जिला विद्यालय निरीक्षक

कौशाम्बी।

Thus, the DIOS, after referring to the contents of the letter sent by the Manager, merely says that on basis of aforesaid grave nature of charges, which are likely to deteriorate the educational atmosphere of the institution and have adverse effects on the teachers & students, the suspension of Smt. Neelam, Principal, Kasturba Gandhi Girls Inter College, Bharwari, Kaushambi vide Committee of Management's Resolution dated 08.11.2020, is approved under the provisions of Section 16G(7) of Intermediate Education Act, 1921.

The relevant provisions having bearing on the controversy involved in the present writ petition are the provision of sub sections 5, 6, 7 & 8 of Section 16(G) of the U.P. Intermediate Education Act, 19212 and Regulation 39 of Chapter III of the Regulations framed under the Act are noted below:-

"Section-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 be accompanied by all 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 the 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 the disciplinary proceedings against the Head of the Institution or teacher are being delayed, for no fault of the Head of the Institution or the teacher, the Inspector may, after affording opportunity to the management to make representation to revoke an order of suspension passed under this section."

Chapter III Regulation 39-

" (a) The report regarding the suspension of the head of institution or of the teacher to be submitted to the Inspector under sub-section 6 of Section 16-G shall contain the following particulars and be accompanied by the following document-

(a) the name of the persons suspended along with, 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 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 persons;

(g) in case such person was suspended previously also, details of the charges, on which and the period for which he was suspended on previous occasions accompanied by certified copies of the orders on the basis of which he was reinstated.

(2) An employee other than a head of institution or a teacher may be suspended by the appointing authority on any of the grounds specified in Clauses (a) to (c) of sub-section (5) of Section 16-G.

(3) mi&fofue; (2) ds vUrxZr fuyEcu dk dksbZ vkns'k izHkko esa ugha jgsxk] tc rd fd ,sls vkns'k ds fnukad ls lkB fnu ds Hkhrj fujh{kd }kjk bldk fyf[kr :i esa vuqeksnu u dj fn;k tk;A "

In her reply dated 8.12.2020 submitted by the petitioner before the DIOS, it was admitted by her that in reply to the show cause notice of the Committee of Management she had submitted her reply by means of letter dated 12.3.2020 on all the points raised. Her letter dated 12.3.2020, though not enclosed in the writ petition, is shown in her reply dated 8.12.2020 as Enclosure - 07. However, on the other hand, in her reply dated 8.12.2020 she also says that the Manager of the Institution has locked the channel gate in front of her office on 5.12.2020 due to which she had no access to documents. Therefore, the petitioner admits that there was a three member enquiry committee constituted having the purported aim of instituting disciplinary proceedings against her; that she was sent a show cause notice containing charges and all the charges were replied to by her by means of her letter dated 12.3.2020. Impliedly, it was possible for her to access the records up till 5.12.2020 on which date the Manager of the Institution allegedly locked the channel gate in front of her office. Therefore, her seeking documents, etc. in her letter dated 8.12.2020 to the DIOS is apparently an attempt to procrastinate.

Under the circumstances, the petitioner had been accorded and she had adequate opportunity to make her written submissions, etc. before the DIOS pursuant to the notice dated 12.11.2020 sent by him. Given the mandate of 60 days time under Section 16-G (7), the DIOS proceeded to pass the order of approval and to this extent, his order cannot be faulted.

However, in view of the latest judgement cited by the learned counsel for the respondent in this regard, in the case of Committee of Management, Janta Inter College and another Vs. State of the U.P. and others, the law with regard to opportunity of hearing and of recording of reasons in such suspension matters has been encapsulated in paragraph no. 20 of the judgement. After considering several division bench judgements of this Court, the Court was pleased to make the following observations :-

"20. Scope of consideration under Section 16G(7) read with Regulation 39 is very limited as has also been explained in the case of Ram Autar Verma (supra). Thus, a conjoint reading of the afore-noted four judgments reveal that if all the required papers and informations as prescribed under sub-section (7) of Section 16G of the Act, 1921 and Regulation 39 have been submitted by the Management to the District Inspector of Schools to obtain approval of suspension, then opportunity of hearing at the stage of granting approval or disapproval is not required to be afforded to the Management or the employee. But if the employee has submitted any representation or objection against the order of suspension, then the District Inspector of Schools shall afford an opportunity of hearing to the Management and the concerned employee while passing the order of approval or disapproval which must contain brief reasons. This view is further supported by the provisions of sub-Section (8) of Section 16G, which specifically provides for an opportunity of hearing at the subsequent stage to the Management by the District Inspector of Schools while considering to revoke an order of suspension passed under sub-section (7) when the Inspector is satisfied that the disciplinary proceedings against the head of the Institution or teacher, is being delayed for no fault of the head of the Institution or the teacher. "

It is evident that a representation, for whatever it was worth, had been submitted by the petitioner before the DIOS and, therefore, an opportunity of hearing was required to be accorded by the DIOS. Moreover, the order impugned had to contain reasons, even though they could have been brief. The DIOS was required to merely record his prima facie satisfaction with reasons, which could be brief. It needs no iteration that at the stage of approval/disapproval of the order of suspension, the DIOS is not required to record a finding on the merits of the charges, as is correctly argued by the learned counsel for the respondent no.4.

The impugned order of the DIOS dated 26.12.2020, has been passed without affording an opportunity of hearing to the petitioner and without recording even brief reasons. Thus, under the circumstances, it cannot be sustained and is quashed.

It is directed that a representative of the Committee of Management and the petitioner in person shall appear before the DIOS concerned on 5.7.2021 and a date for hearing will be fixed soon thereafter by the DIOS. Thereafter, an appropriate order would be passed by the DIOS within a period of six weeks from today. Till a fresh decision is taken by the DIOS, since the period of 60 days has expired from passing the order of suspension, the petitioner would entitled to the payment of salary which will remain subject to the order of the DIOS under Section 16-G(7) of the Act. Till a fresh decision is taken by the DIOS, it would be open for the Managing Committee to take or not to take work from the petitioner but the petitioner would be entitled to get her salary till then.

This writ petition is, accordingly, allowed to the extent noted above.

Order Date :- 28.06.2021

A. V. Singh

(Jayant Banerji, J.)