Anand Dev Tyagi vs Lt. Governor Of Delhi
1996 Latest Caselaw 642 Del

JUDGMENT

Devinder Gupta, J.

(1) The instant writ petition was preferred on 25.5.1995 in which the petitioner has sought directions for quashing memo annexure Px dated 10.7.1994, placing the petitioner under suspension in contemplation of initiating disciplinary proceedings. The other prayer made is to quash the charges contained in charge sheet annexure P-XII dated 17.7.1994 being void and illegal, in view of Section 8(4) of Delhi School Education Act (for short 'the Act') as well as Rules 115 and 116 of the Delhi School Education Rules, 1973 (for short 'the Rules') and to grant a declaration that the petitioner is in continuous employment as a teacher in respondent No.4 School.

(2) Various facts stated in their respective affidavits filed by the parties need not be stated except noticing those as are relevant for the purpose of deciding this petition. At the very outset it may be observed that at this stage, in exercise of writ jurisdiction under Article 226 of the Constitution of India we are not inclined to make any observations or interfere with the charge sheet served upon the petitioner qua which it is stated on behalf of respondent No.4 that on completion of enquiry a decision has been taken to dispense with petitioner's service, subject to the approval being granted by the Director of Education. As and when, in case approval is accorded by the Director of Education, the petitioner can avail his remedy in accordance with law to challenge the same in appropriate proceedings.

(3) The undisputed facts are that respondent No.4 is an unaided recognised school. On 5.7.1991 the petitioner joined respondent No.4 School as a Mathematics teacher. There have been some complaints against the petitioner regarding his work. On 9.6.1994 a memo was issued to him calling for his explanation. Situation did not remain normal thereafter viz-a-vis the petitioner, who made complaints against the school management and the management also continued seeking his explanation. A complaint also appears to have been lodged by the petitioner with S.H.O., Police Station Vikaspuri on 8.1994. On 10.7.1994 an emergent meeting was called by respondent No.4, in order to consider the action to be taken against the petitioner regarding the alleged wilful neglect of his duties, his alleged behaviour due to which respondent No.4 school was allegedly brought to disrepute and with regard to the loss of his confidential file. Managing Committee recommended to place the petitioner under suspension with a view to maintain discipline in the school. Accordingly in pursuance to the resolution, memorandum annexure Px was issued placing the petitioner under suspension pending disciplinary proceedings, which were contemplated. The said order said that the petitioner will be entitled to all other facilities which are available to an employee who is put under suspension.

(4) On 11.7.1994 Deputy Education Officer was informed by respondent No.4 about the suspension of the petitioner with a request to appoint Government's nominee on Disciplinary Committee. It is stated by respondent No.4 that on 16.7.1994 another emergent meeting was called by respondent No.4 in which it was decided to serve the petitioner with a charge sheet for the purpose of holding an enquiry against him. On 18th July, 1994 Dy. Education Officer, in reply to the memorandum annexure Px, advised respondent No.4 through annexure R-4/23 that prior approval for the suspension of the petitioner was required, which be obtained under the provisions of the Act and the Rules. On 24.7.1994 a detailed reply annexure R-4/24 was sent by respondent School to the Deputy Education Officer making reference to the relevant provisions of Act and Rules that prior approval for placing the petitioner under suspension was not necessary since the Managing Committee had exercised its emergent powers of suspension, the suspension was to remain in operation for 15 days subject to the approval being accorded by the Director (Education), as such it was requested that the Director of Education be pleased to grant approval. A reminder annexure R-4/25 was sent on 26.7.1994 to the Director of Education for according approval as regards petitioner's suspension. On 16.8.1994 Deputy Education Officer through letter annexure R-4/27 informed respondent No.4 that period of 15 days had already expired as such no useful purpose will be served by forwarding the papers to the higher authorities for approval of suspension. In response to this letter respondent No.4 on 22.8.1994 through letter annexure R-4/28 again made a request for the approval of the suspension. On 30.9.1994 Deputy Education Officer through letter annexure R-4/33 informed respondent No.4, with reference to its letter dated 22.8.1994 that its request had been considered and not acceded to. Respondent No.4 was asked to. comply with the instructions contained in the letter annexure R-4/27 dated 16.8.1994. It is respondent No.4's case that again a request was made through letter dated 19.10.1994 praying for the approval of Director of Education for the petitioner's suspension but no decision has been taken or conveyed.

(5) It is the admitted case of the petitioner and respondent No.4 that no approval has so far been accorde by the Director of Education and obviously not within a period of 15 days, within the ambit of sub- section (4) of Section 8. Learned counsel for respondent No.4 has contended that rejection of petitioner's request as conveyed through letter annexure R-4/33 dated 30.9.1994 is not a disapproval by the Director of Education for the act of respondent No.4 in suspending the petitioner. It was incumbent for the Director to have considered the request of respondent No.4 and on due application of mind to the facts and circumstances of the case. to take a decision thereupon and convey the same to respondent No.4 whether granting or not granting his approval to the suspension. In view of the seriousness of the allegations against the petitioner, the Management had rightly put the petitioner under suspension forthwith. The Director of Education could not have declined to grant approval or in any case cannot sit tight over the request for unlimited period.

(6) The operative part of the memorandum annexure Px which also contains order of suspension, as conveyed to the petitioner reads as:    "THE Managing Committee of the school has, therefore, decided that you should be put under suspension forthwith. You will be entitled to all other facilities which are available to an employee, who is put under suspension. This is being intimated to the Director of Education, Delhi, as well."  

(7) A copy of the memorandum annexure Px was also forward to the Director of Education by respondent No.4, in addition to a copy being sent to District Education Officer. It was Deputy Education Officer, who on 18.7.1994 sent the following reply to respondent No.4:    "WITH reference to your memorandum dated the 10th July, 1994 addressed to Shri Anand Dev Tyagi, Tgt of your school and copy endorsed to this office, on the subjected noted, I am directed to inform you that as per provisions of the Delhi School Education Act and Rules, 1973, you are required to seek the prior approval of the Department before placing any employee of your school under suspension. You are, therefore, advised to obtain the prior approval of the Department before placing Shri Anand Dev Tyagi, Tgt of your school, under suspension."  

(8) The aforementioned communication would suggest that respondent No.4 was advised to obtain prior approval of the Director before placing the petitioner under suspension. The Manager of the School on 26.7.1994 in response sent the following letter to Deputy Education Officer:    "KINDLY refer to our Memorandum dated 10.7.1994 wherein the above-mentioned teacher had been put under suspension forthwith because of gross misconduct and a copy of the same was endorsed to you for communicating approval as per the provisions of Section 8 Sub-Section 4 of the Delhi School Education Act, 1973 and the rules framed thereunder. 2. As the matter is of very urgent nature and the period of 15 days as provided under the said Section has expired, it is requested that your approval for suspension of the said teacher may kindly be accorded and communicated to us at an early date."  

(9) The aforementioned communications would suggest that respondent No.4 had informed the Director of Education that the petitioner had been put under suspension forthwith because of the gross mis-conduct and as such prior approval was not necessary, therefore, post approval was sought. It appears that no action was taken by the Director of Education on the request of respondent No.4 and since copy of the letter had also been endorsed to Education Officer, District West, the Deputy Education Officer through letter annexure R- 4/23 dated 18.7.1994 asked respondent No.4 to obtain prior approval and through subsequent letter annexure R-4/27 dated 16.8.1994 informed respondent No.4 that no useful purpose would be served by forwarding the papers to higher authorities for approval since 15 days had already elapsed from the date when the petitioner was placed under suspension, as such the respondent No.4 was advised to apply afresh, after revoking the suspension. The letter dated 16.8.1994 reads: "With reference to your letter dated the 24th July, 1994 on the subject noted above, I am directed to inform you that 15 days have already passed as you suspended Shri Anand Dev Tyagi on 10th July, 1994. Hence no useful purpose would be served by sending the case to higher authorities for approval. However, theanagement, if so desires, may apply afresh after revoking the suspension."

(10) Respondent No.4, instead of revoking suspension, reiterated its stand that it was the Director who had to take a decision to grant or not to grant approval and in the seriousness of the situation, approval ought to have been granted. In response to the said letter of respondent No.4 dated 22.8.1994 Dy. Education Officer on 30.9.1994 sent the following communication stating that request of respondent No.4 had been considered and not acceded to. "With reference to your letter No. nil dated the 22nd August, 1994 on the subject noted above, I am directed to say that your request has been considered and the same has not been acceded .to. I You are, therefore, advised to comply with the instructions/orders as communicated to you vide this office letter No.F.DE-48/121/4(32)/Z025/94/4402 dated 16.8.1994. A compliance report may also be sent to this office immediately.

(11) Section 8 of the Act deals with the terms and conditions of service of the employees of recognised private schools. Managing Committee of a recognised private school, intending to suspend any of its employee is required to obtain prior approval of the Director. Sub-section (4) of Section 8 of the Act says that no such suspension shall be made except with the prior approval of the Director. Proviso to sub-section (4) of Section 8 carves out an exception that the Managing Committee may suspend an employee with immediate effect, without prior approval of the Director, if it is satisfied that such immediate suspension is necessary by reason of gross misconduct. This emergent power is again subject to a condition that no such immediate suspension shall remain in force for a period of more than 15 days from the date of suspension unless it has been communicated to the Director and approved by him, before the expiry of the said period. Sub-section (5) of Section 8 deals with the power of Director in according prior approval or post approval of the suspension of an employee of a recognised private school, on his satisfaction that there are adequate and reasonable grounds for suspension. Section 8 of the Act reads: "8.Terms and conditions of service of employees of recognised private schools (1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognised private schools; Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantage of such employee; Provided Further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act. (2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director. (3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under Section 11. (4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such. suspension shall be made except with the prior approval of the Director. Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct, within the meaning of the Code of Conduct prescribed under section 2, of the employee; Provided Further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period. (5) Where the intention to suspend, or the immediate suspension of, and employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable ground's for such suspension, accord his approval to such suspension." The relevant rule dealing with suspension is Rule 115 which amplifies the circumstances under which an employee of a recognised private school may be placed under suspension. Sub-rule (2) says that no suspension shall remain in force for a period more than six months unless the Managing Committee, for reasons to be recorded in writing, directs the continuance of suspension beyond the period of six months. This continuance of suspension beyond six months is also subject to the power of Director to revoke the suspension, when he is of the opinion that suspension is being unreasonably prolonged. Sub-rule (3) provides for the automatic suspension of an employee in certain eventualities with which we are not concerned. The order of suspension once made continues to remain in operation till it is modified or revoked by the Managing Committee or Director. Rule 115 reads: "115. Suspension (1) Subject to the provision of sub-sections (4) and (5) of section 8, the managing committee may place an employee of a recognised private school, whether aided or not, under suspension; (a) where a disciplinary proceeding against such employee is contemplated or pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial; or (c) where he is charged with embezzlement; or (d) where he is charged with cruelty towards any student or other employee of school; or (e) where he is charged with misbehaviour towards any parent, guardian, student or employee of the school; or (f) where he is charged with the breach of any other code of conduct. (2) No order for suspension shall remain in force for more than six months unless the managing committee, for reasons to be recorded by it in writing, directs the continuation of the suspension beyond the period of six months. Provided that where a suspension is continued beyond a period of six months, the Director may, if he is of opinion that the suspension is being unreasonably prolonged, revoke the order of suspension. (3) An employee of a recognised private school, whether aided or not, shall be deemed to have been placed under suspension by an order of the appointing authority; (a) with effect from the date of his detention, if he is detained in custody for a period exceeding forty eight hours on a charge of an offence which in the opinion of the managing committee involves moral turpitude; (b) with effect from the date of his conviction, if in the event of a conviction for an offence involving, in the opinion of the managing committee, moral turpitude, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired from service consequent on such conviction. Explanation : The period of forty-eight hours referred to in this rule shall be computed from the commencement of detention or conviction, as the case may be, and for this purpose, intermittent periods of detention shall be taken into account. (4) Where a penalty of dismissal, removal of compulsory retirement from service imposed upon an employee is set aside or rendered void, in consequence of, or by, a decision of a court of law, or of the Tribunal, and the disciplinary authority on a consideration of the circumstances of the case decides to hold further inquiry against such employee on the same. allegations on which the penalty of dismissal, removal of compulsory retirement was originally imposed, such employee shall be deemed to have been placed under suspension by the managing committee from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5) (a) An order of suspension made or deemed to have been made in these rules shall continue to remain under suspension until it is modified or revoked by the managing committee or the Director. (b) Where an employee is suspended or is deemed to have been suspended and any other disciplinary proceeding is commenced against him during the continuance of the suspension, the managing committee may for reasons to be recorded by it in writing, direct that the employee shall continue to be under suspension until the termination of all or any such proceeding. (c) An order of suspension made or deemed to have been made under these rules may, at any time be modified or revoked by managing committee or in the case of an aided school by the Director."

(12) A combined reading of sub-sections (4) & (5) of Section 8 of the Act and Rule 115(2) and (5) of the Rules would suggest that in ordinary circumstances the Managing Committee of a recognised private school, if it intends to suspend an employee has first to communicate to the Director and such suspension will become operative only on prior approval being accorded by the Director. Only in an emergent situation the Managing Committee is empowered to forthwith place an employee under suspension, which suspension firstly will remain in force for a period of 15 days. Its extension beyond that period is dependant upon the approval of the Director, to be accorded by him, before the expiry of the said period of 15 days. In the case of prior approval being accorded by the Director permitting the Managing Committee to place its employee under suspension or in the event of the Director having approved the action of the Managing Committee in suspending its employee in emergent situation that such suspension will continue to remain in operation till it is revoked or modified, either by the Managing Committee or by the Director, but in all eventualities suspension will continue to remain in operation for a maximum period of six months unless Managing Committee, for reasons to be recorded takes a decision to continue the suspension beyond the period of six months.

(13) In the instant case respondent No.4 placed the petitioner under suspension forthwith on 10.7.1994 and it is contended that the order was communicated to the Director and his approval was sought. The record reveals that respondent No. merely forwarded a copy of memorandum annexure Px to the Director saying "this is being intimated to Director of Education as well". Copy was also sent to District Education Officer. The communication, which thereafter was sent by respondent No.4 to the Director of Education is annexure R-4/24 dated 26.7.1994 with a copy to Education Officer. The petitioner was placed under suspension on 10.7.1994. In case the petitioner had been put under suspension on 10.7.1994 by the Managing Committee, in exercise of its power to put an employee under suspension with immediate effect on its satisfaction that immediate suspension was necessary by reason of gross misconduct, the same could remain in force at the most for a period of 15 days from the date of suspension. Suspension thereafter could remain operative only on the Director's according his approval before the expiry of the period of 15 days. No doubt the suspension was communicated by respondent No.4 to the Director but no approval was granted by the Director before the expiry of period of 15 days. Director was required to take a decision within the ambit of sub-section (5) of Section 8 on his satisfaction that there were adequate and reasonable grounds for suspension. There is nothing in the Act or in the Rules that in the event of Director not according his approval, the same will be deemed to have been accorded. In other words, there is no deeming provision. Communication of the fact of suspension to the Director of Education and according of his approval to this act of placing an employee under suspension before the expiry of period of fifteen days is a sina qua non for the period of suspension to remain in force beyond fifteen days. 1 On approval not being granted the suspension will cease to be operative. Power lies with the Director either to approve or not to approve. It is only on approval being granted that period of suspension will extend beyond fifteen days. Not taking decision by the Director within fifteen days will also amount to approval not being accorded. No doubt the management in an emergent situation, as is referred to in the second proviso to sub section (4) of section has a right to forthwith place the employee under suspension, but this act of placing suspension requires approval, approval has to be accorded by the director on his satisfaction that there are reasonable grounds for such suspension. It requires appositive decision to be taken. -Approval may be either accorded or withheld or may not be accorded at all. There is no question deemed approval as is contended on behalf of respondent No.4. Reference may be made to a decision of the Supreme Court in Hpmc v. shri Suman Behari Sharma, 1996 (5) Sc 40.

(14) In view of the above there being no approval accorded by the Director before the expiry of period of 15 days from 10.7.1994 the suspension of petitioner automatically came to an end on 25.7.1994. On and from 25.7.1994, it cannot be said that the petitioner has remained under suspension. Petitioner thereafter was neither placed under suspension afresh separately nor a request was made by respondent No.4 to the Director for placing the petitioner again under suspension. It is not shown that Education Officer or Deputy Education Officer concerned were delegated with the powers of the Director. It is the Director of Education alone who can exercise the power to grant prior or post approval of suspension under Section 8(5) of the Act. Education Officer or Deputy Education Officer could not have taken any decision at their own end.

(15) Consequently the action of respondent No.4 in treating the petitioner to be under suspension is not in consonance with law. Petitioner's suspension will be deemed to have come to an end on 25.7.1994. On and from that date he will be deemed to have occupied the same position, which he occupied prior to 10.7.1994. Keeping in view the seriousness of the allegations made against the petitioner, we leave it open to respondent No.4, whether to assign any work of teaching or otherwise or not, to the petitioner. Resultantly we partly allow the writ petition directing respondent No.4 not to treat the petitioner under suspension on and from 25.7.1994 and as a consequence thereto we further direct respondent No.4 to pay all consequential benefits to the petitioner as regards pay and allowances, subject of course to the petitioner's satisfying respondent No.4 that during that period he was not gainfully employed. Respondent No.4 will work out the dues and pay the same to the petitioner for the period from 25.7.1994 onwards within a period of three months from the date when the petitioner will submit the necessary proof/certificate about his not being in gainful employment.

(16) With these directions the writ petition stands disposed of. Liberty, however, is reserved to the petitioner to challenge the order, if any, passed against him, in case approval is accorded by the Director, as a consequence of the enquiry report alleged to have been submitted by respondent No.4 on all available grounds.