Uttarakhand High Court
Subham Kumar vs State Of Uttarakhand And Others on 12 April, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 493 of 2021
Subham Kumar ...... Petitioner
Vs.
State of Uttarakhand and Others ..... Respondents
Mr. A.M. Shukla, Advocate for the petitioner.
Mr. Sachin, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Facts necessary for considering the instant writ petition,
briefly stated, are as follows:-
Petitioner was appointed as Assistant Teacher L.T. Grade in
the year 2016. Subsequent to it, an inquiry was conducted with regard to
the permanent resident certificate submitted the petitioner and the
Tehsildar concerned submitted his report on 21.06.2018 to the Sub-
Divisional Magistrate concerned. The inquiry report reflected that the
petitioner obtained permanent resident certificate by misrepresentation.
Petitioner was issued a notice to which he replied on 03.12.2020
alongwith several documentary evidence. Petitioner was not aware of the
inquiry report dated 21.06.2018 submitted by the Tehsildar. Despite that
on 08.03.2021, the respondent no.4 Committee of Management placed
the petitioner under suspension and appointed Inquiry Officer/Inquiry
Committee and this suspension order was further approved on
12.03.2021 by respondent no.3. Both the orders are impugned.
2. Heard learned counsel for the parties and perused the record.
3. Learned counsel for the petitioner would submit that the
suspension order is bad in the eyes of law because in view of Section
39(5) of the Uttarakhand Education Act, 2006 (for short 'the Act'), on
certain grounds, a Teacher or Head of Institution may be placed under
suspension but it is argued that in the instant case, the suspension order
does not reflect that any of such condition exists which makes out any of
the grounds for placing the petitioner under suspension. It is also argued
that simultaneously placing the petitioner under suspension, an Inquiry
Committee is appointed which is also in contravention of the Rules
because an inquiry committee may only be appointed when some
delinquent employee respond to the charges denying the charge and not
before that. But, it is argued that simultaneously appointing inquiry
officer reflects that the Appointing Authority had already made up his
mind that the representation, which would be submitted by the petitioner
will not be considered at all.
4. On behalf of the State, it is submitted that respondent no.3
Chief Education Officer has accorded the approval under Section 39(6)
of the Act.
5. It is a petition which also seeks direction that the salary for
the month of February, 2020 be paid to the petitioner. At the very outset,
learned State counsel would admit that, as per instructions received, due
to paucity of budget, the dues of the petitioner could not be paid and once
budget is received, the petitioner shall be paid all the admissible due.
This is one part. The important part is the suspension order. Its validity,
its legality, is put to question. Section 39(5) of the Act is as hereunder;
"39. Conditions of service of Head of Institutions, teachers and other
employees.-
.............................................................................................
..............................................................................................
(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 reductions 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. Suspension order has been enclosed as Annexure 9. In fact,
the inquiry report dated 21.06.2018 has also been filed by the petitioner
as Annexure 6. This report reveals that after inquiry, it was found that the
petitioner forged the Patta and on the basis of it, procured Permanent
Resident Certificate. In the suspension order, reference has been made to
the report of Special Investigating Team which alleges that the petitioner
procured Permanent Resident Certificate by committing forgery and it is
thereafter the petitioner has been placed under suspension.
7. It is well settled that the suspension order should not be
interfered with in a routine manner. Suspension is not a punishment. In
contemplation of inquiry under certain circumstances, a delinquent
employee is put to suspension. Perhaps, one of the basic purposes is to
conduct a departmental inquiry in a fair manner.
8. Undoubtedly, the gravity of the charges is one of the
considerations. Section 39(5) of the Act, as quoted hereinabove, makes it
abundantly clear. Sub-clause (a) of it deals with seriousness of charges,
which may result in dismissal. Clause (b) and (c) give other
contingencies, under which a delinquent employee may be put to
suspension by the management.
9. The impugned suspension order dated 08.03.2021 records
that the Management Committee under a resolution decided to suspend
the petitioner. In paragraph 1 of the suspension order, reference has been
made to the report of SIT, which found that the petitioner obtained
Permanent Resident Certificate by wrong means. It is true that in the
suspension order, categorically the reference to Section 39 (5) of the Act,
has not been made, but it makes no difference. The seriousness of the
allegations have been noted in the suspension order. It was considered
and the suspension order dated 08.03.2021 reveals that the Management
Committee also considered and resolved the suspension. Therefore, this
Court does not find any fault in the suspension order.
10. Suspension order dated 08.03.2021 has also been assailed on
the ground that simultaneously an inquiry committee has been conducted
which shows that the authorities had made up his mind, not to consider
the representation of the petitioner. It would be stretching too far. The
suspension order records that under the provision of the Act, an Inquiry
Committee is to be constituted. Definitely, it indicates that departmental
inquiry would be conducted against the petitioner. What would be its
effect? What would be the fate of the representation, that may be given,
subsequent to filing of any chargesheet, it cannot be comprehended at
this stage. Therefore, this Court do not find any merit in the matter. The
Court has already taken on record the statement made by learned counsel
for the State that all the admissible dues of the petitioner shall be paid
once budget is received.
11. In view of the foregoing discussion, this Court is of the view
that the petition has no merits and it deserves to be dismissed at the stage
of admission itself.
12. The petitioner is dismissed in limine.
(Ravindra Maithani, J.)
12.04.2021
Ujjwal
