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C/M NAVALI INTER COLLEGE NAVALI THRU' MANAGER AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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C/M Navali Inter College Navali Thru' Manager And Another v. State Of U.P. And Others - WRIT - A No. 17821 of 2007 [2007] RD-AH 8865 (10 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 17821 of 2007

Committee of Management,

Navali Inter College, Navail,

& another

Vs.

State of U.P. and others

Hon'ble V.K. Shukla,J.

Committee of Management, Navail Inter College, Navail, District Ghazipur, through its Manager Dinesh Chandra Pandey, has approached this Court questioning the validity of the decision taken by the District Inspector of Schools, Ghazipur, disapproving the resolution of suspension passed by the Managing Committee of the Institution.

Brief background of the case is that in the District of Ghazipur there is an institution known as Navail Inter College, Navail, District Ghazipur. The affairs of the said institution is to be run and managed strictly in consonance of provisions as contained in U.P. Act II of 1921 and Regulation framed thereunder. In the said institution, one Sri Rajendra Kumar Pandey had been performing and discharging duties as Head Clerk in the institution  and as he was not handing over the record of the institution and not complying with the directives which were issued as such Committee of Management of the institution proceeded to place Sri Rajendra Kumar Pandey under suspension for which resolution was passed on 11.11.2006. Copy of the resolution letter was transmitted to Head Clerk of the institution and papers were transmitted to District Inspector of Schools for the purposes of according approval. Petitioner has contended that on 06.02.2007 notice was issued fixing 12.02.2007. On the said date as notice has been received on the same day by the petitioners as such letter was sent to the District Inspector of Schools on 21.02.2007. Another notice was sent to which reply has been submitted and thereafter District Inspector of Schools has proceeded to disapprove the resolution of suspension of the petitioner.

  Counter affidavit has been filed and therein it has been contended that contesting respondent is being made scapegoat as on earlier occasion petitioner had made serious allegation against Principal and subsequent to the same Principal and Manager of the institution have joined their hand and are victimizing the contesting respondent. Contesting respondents has contended that Civil Misc. Writ Petition No. 36355 of 2005 filed by the Principal of the college levelled serious allegation against the Manager of the institution in respect of misappropriation of money of the  institution in respect of audit report of the year 2001-02 & 2002-2003 filed as Annexure 1 of the aforesaid writ petition. It has also been contended that inter se Manager and Principal fierce dispute was going on and thereafter in order to divert the real issue, contesting respondent has been sought to be placed under suspension. Further there is no material to substantiate the charges and there is no evidence in support of the same.

Rejoinder affidavit has been filed and therein it has been sought to be contended that Principal of the institution has submitted his reply and same was found satisfactory. It has also been contended that from the dispute inter se Manager and Principal contesting respondent cannot take advantage, and there are serious charges.

After pleadings mentioned above have been exchanged, present writ petition has been taken up, for final hearing and disposal with the consent of the parties.

Sri A. K. Malviya, learned counsel for the petitioner contended with vehemence that in the present case the District Inspector of Schools has totally misdirected himself and without exercising and without considering the documents submitted under Chapter III Regulation 39 of U.P. Act No. II of 1921 has passed the order ignoring the parameters provided for according approval to the resolution of suspension, as such writ petition deserves to be allowed.

Smt. Kamla Singh, learned counsel appearing on behalf of contesting respondent no. 3 contended that action taken by the Management against the petitioner is clearly motivated and mala fide, in this background opinion which has been formed by the District Inspector of Schools warrants no interference and coupled with this charges which have been leveled are baseless.

Before proceeding to consider the respective arguments advanced by both the parties relevant provision which covers the field is being looked into. Relevant Section 16-G (5), (6), (7) and (8) and Regulation 39 of Chapter III are being looked into:-

Section 16-G. Conditions of service of Head of Institutions, teachers and other employees-(1)..............

(2)..................

(3)..............

(4)..............

(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 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  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 that disciplinary proceedings against the Head of Institution or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management or make representation revoke an order of suspension passed under this section."

Regulation 39. (a) The report regarding the suspension of the head of the 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 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 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 person

(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 re-instated.

(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) "2¿¼3½ mi&fofu;e ¼2½ 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;sA**

A bare perusal of the provision quoted above Section 16-G (5) (a)(b)(c)  would go to show that Management of the institution has been authorized to place the Headmaster of the institution or teacher under suspension if in the opinion of the Management charges against him are serious enough to merit his dismissal, removal or reduction in rank or continuance of said incumbent in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him or in the event of any criminal case for an offence involving moral turpitude against incumbent is under investigation, inquiry or trial. This action of the Management of the institution cannot remain in force for more than 60 days unless same is approved  by the Inspector in term of Section 16-G (7). Thus, Inspector has been vested with the authority to approve the said resolution of the suspension failing which the said resolution shall not be remain in force after sixty days. The word approval has been defined in Webster Third New International Dictionary as " the act of approving, approbation, sanction, certification as to the acceptability."

Under Chapter III Regulation 39 the Management has been obligated to sent report regarding suspension of Head of the institution or of the teacher to the Inspector under sub-section (6) of Section 16-G with the documents mentioned for the purposes of passing of order of approval. Inspector has been further vested with the authority to revoke said suspension under Section 16-G (8) once Inspector has satisfied himself that disciplinary proceedings against Head of the institution or teacher are being delayed for no fault of the Head of the institution or teacher. Nature of the provision as contained under sub-section(7) & (8) of Section 16-G are clearly for the benefit of Head of the institution or teacher so that unnecessarily incumbents are not harassed and victimized by Management in the garb of the suspension order. Inspector has been vested with the statutory authority to check this situation and  see that order of suspension has not been passed illegally/ malafidely/ or contrary to the provision. Earlier said provisions were not applicable qua employees, but by insertion and addition of Sub Regulation (2) and (3) under Regulation 39,of Chapter III said provisions have been made applicable qua employees also, and as such employees have also been extended similar protection.  

At this stage, the view point taken by this Court in the case of Committee of Management Shri Shivaji National Inter College Vs. District Inspector of Schools and another reported in 1999 (1) ESC 121 (All) is being looked into wherein this Court has taken the view that under U.P. Act No. II of 1921 power of suspension conferred on the Management and the District Inspector of Schools  can only approve or disapprove the same but cannot hold parallel inquiry. Relevant paragraphs 7,8 ,9 12, 12-A, 13,16 and 19 are being looked into.

"7. The said power has been given to the Management. It contemplates an embargo on the suspension, which makes the provision mandatory to the extent that unless in the opinion of the Management, the charges are so serious to warrant dismissal, removal or reduction in rank, no order of suspension could be issued by the Management. Even if the charges warrant dismissal, removal or reduction in rank, still then the delinquent can be suspended if the management is of the opinion that the continuance of the delinquent in the office likely to hamper or prejudice the conduct of disciplinary proceedings against him. Thus, on these contingencies, the Management is empowered to suspend.

8. Sub-section (7) which requires approval of the District Inspector of Schools  with regard to the order of suspension, without which the order of suspension would cease to be effective after expiry of 60 days. For the present purpose, sub-sections (7) and (8) are already quoted above since it would be beneficial, for the present purpose.

9. In the case of Chandra Bhushan Misra Vs. District Inspector of Schools  reported in 1995 (1) ESC 552(All) a Full Bench of this Court while interpreting sub-section (7) of Section 16-G had held as follows:-

" According to sub-section (7) no order of suspension shall "remain in force for more than sixty days." unless approved in writing by the Inspector. 'In force' means 'in operation'. A statutory  enactment or an order does not lapse merely because it has not come or brought into force. The only effect of an order, which is not in force is that it is ineffective and inoperative. But such an order is not obliterated and continues to exist though effective. Similarly when the order, which was in force, has ceased to be operative due to supervening event, will come into force again and will become effective after the infirmity caused by supervening event is removed. In view of the provisions of sub-section (7), an order of suspension of Head or a teacher of an institution shall remain in force for a period of sixty days from the date of such order even if it is not approved in writing by the Inspector; but in the absence of the approval by the Inspector such an order will cease to operate on expiry of sixty days from the date of order although it will continue to exist though inoperative. But if the order of suspension is approved even after the expiry of sixty days, it will come into force again and will become effective immediately on such approval. Any other interpretation will lead to serious consequents. Inaction on the part of the Inspector either deliberate or otherwise may frustrate the object of the provision itself.  

12. Now so far as the order contained in Annexure-8 is concerned, it shows that while considering the grant of approval or refusal, the District Inspector of Schools  had asked for reply from the delinquent respondent and had considered his defence as well as the papers submitted by the Committee of Management and had in effect enquired into the merit and demerits of the charges and had come to a finding that the charges were baseless and as such he had refused approval.

12-A. This clearly indicates that he has transgressed the limit of the jurisdiction conferred on him under Section 16(7) read with sub Section (5) and (8) and Regulation 39, Chapter III of the Regulation for the reasons given hereinbelow.

13. In effect, he had virtually gone into the merits of the charges. Whereas the scope of sub-section (7) of Section 16-G is as to whether there were sufficient materials to justify formulation of the opinion of the Management with regard to clause (a) and (b) to sub-section (5) as the case may be. It is contended by Mr. K.R. Singh that there was no formulation of opinion even in the third order of suspension with regard to clause (a) or with regard to clause (b). Even if such opinion is not expressed in the order of suspension, it is open to the District Inspector of Schools  to scrutinized as to whether there was sufficient material to warrant formulation of such opinion on the basis of the material produced. It is also open to him to refuse approval on the ground that no such opinion has been formulated and that there was no material to formulate such opinion even if it is expressed or remain unexpressed.

16. This Regulation 39 of Chapter III of the said Regulations requires the Committee of Management to forward the particulars and documents mentioned in clauses (a) to (g) thereof. This Regulation 39 (a) was incorporated to facilitate examination to those particulars and documents only with regard to the view taken hereinabefore as contemplated within sub-sections (5) and (7), respectively. Those particulars and documents were never intended to be forwarded for the purpose of enabling the District Inspector of Schools  to hold a parallel enquiry, since clauses (a) to (g) do not require furnishing or proof of the charges. The very scheme of regulation 39 shows that no document on which charges can be substantiated were included, leading us to presume that it was never intended by the legislature, to confer any power to the District Inspector of Schools  to hold a parallel enquiry within the ambit of sub-section (7). The power to suspend and the power to hold enquiry and the proposed punishment has been conferred on the Management and those are subject to approval by the District Inspector of Schools. If the District Inspector of Schools pre-empts the jurisdiction of the Committee of Management, in that event, the purpose of conferring such power to the Committee of Management would altogether be frustrated and would be against the object and purpose as well as scheme of the Act itself. Then again in case the District Inspector of Schools  undertakes such an exercise, in that event the major exercise, in the office would be eaten up in this business leaving very limited scope for him to attend to his other business. This will not farther the object and purpose for which Section 16-G(5), (7) and (8) were incorporated. A little power that has been conferred on the management cannot be taken away by interpreting the provisions in such a manner, which will not further the object of the Act and on the other hand would take away the limited right grant to the Committee of Management.

19. The above observations show that said provisions were incorporated only to regulate the power of suspension passed by the Management and not to deprive it of the same. The object of the law was clear. It was for the purpose of preventing unnecessary harassment of the teacher at the hands of the management. But at the same time, it preserves the power of suspension wherever necessary and desirable, with the authority of approval conferred on the  Inspector has to be considered in the light. It was observed that the District Inspector of Schools  has to apply his mind to the facts and circumstances of the case and then pass a reasoned order approving of disapproving the order of suspension.

The above decision does not lay down as to what extent the application of mind would be extended. In fact, the mind is to be applied on the basis of scope and ambit of sub-section(5) and (7) and not beyond. In the name of applying its mind, the District Inspector of Schools  is not permitted to hold parallel enquiry in the manner it has been done in the present case. Sub-section (7) never contemplates calling for a reply of the delinquent nor his defence. The decision cited above also does not help us so far as the necessary question involved in the present writ petition."

After respective arguments have been advanced factual position which is emerging is to the effect that the contesting respondent had been performing and discharging duties as Head Clerk in the institution and he has been sought to be placed under suspension. After said resolution has been passed papers were transmitted to District Inspector of Schools for the purposes of according approval. After the receipt of the said papers District Inspector of Schools on 06.02.2007 mentioned that Rajendra  Kumar Pandey had been suspended without being provided opportunity of hearing as such matter of suspension is against substantial justice. In this background it would be appropriate  to hear both the party and fixed 12.02.2007 for hearing. On 12.02.2007 as notice was received at 10.30 AM as such requisite information was given to the District Inspector of Schools. District Inspector of Schools thereafter on 21.02.2007 again issue notice fixing 28.02.2007. Vide covering Letter dated 26.02.2007 detailed reply was submitted and further it has also been categorically mentioned therein that suspension be approved and financial matter be examined  and further directives be issued to Head Clerk for handing over the charge of the institution.  Impugned order in question clearly reflects that on 12.02.2007 hearing took place but hearing was not completed as such by means of notice dated 21.02.2007 again 28.02.2007 was the date fixed by the District Inspector of Schools thereafter District Inspector of Schools has proceeded to note the respective written submission  raised by the parties and after noting down the same Samiksha ¼leh{kk½ part starts and in the Samiksha ¼leh{kk½ contention of petitioner and thereafter contention of Rajendra Kumar Pandey, contesting respondent no. 4, has been noted and thereafter District Inspector of Schools has proceeded to mention that at the point of time when date has been fixed, it was expected from and Management that he would appear, and whatever document he requires from suspended incumbent, he should state his version in his defence, but Management has not appeared, as such action of suspension, appears to be motivated. District Inspector of Schools has further proceeded to mention that it has been brought to the knowledge and notice that in respect of Class IV employee adverse order has been passed wherein Rajendra Kumar Pandey himself was petitioner. Suspended incumbent has stated that suspension is direct outcome of the same. Thereafter on the basis of same conclusion has been arrived at that entire proceedings are motivated and charges are not substantiated.

Fact of the matter is that District Inspector of Schools has not taken any exercise to see and find out, as to whether there was sufficient material to justify formulation of the opinion with regard to clause (a) and (b) of sub-section (5) of Section 16 G which could be ratified under sub-section (7) of Section 16-G in order to further continue it, after expire of period of sixty days. Regulation 39 of Chapter III obligates management to forward the particulars and documents, mentioned in clause (a) to (g) thereof, and this particular provision has been incorporated to facilitate examination particulars and documents, with regard to the view taken as contemplated within sub-section (5) and (7) respectively. Here it appears that District Inspector of Schools was contemplating parallel enquiry by contemplating face to face meeting and then encountering each other on the basis of material produced, at the said point of time. Merely because Manager had not appeared it cannot be out rightly inferred that entire proceedings are motivated and backed with malafides. Malafides can always be inferred, keeping in view the totality of the facts and circumstances of each case, but merely because Manager has not appeared, is reflective of malafides would be too much to infer. District Inspector of Schools even if Manager has chosen not to appear, was obliged to consider papers transmitted under Regulation 39 of Chapter III, and then pass reasoned order of either approving/disapproving the resolution of suspension. Here nothing of the sort has been done and without undertaking any serious exercise order of disapproval has been passed.

Consequently view which has been taken is erroneous view, as such order dated 24.03.2007 passed by respondent no. 2 is hereby quashed. Matter is remitted back to the District Inspector of Schools, Ghazipur to take fresh decision after providing opportunity of hearing both the parties within eight weeks from the date of presentation of certified copy of this order.

For reasons stated above writ petition is allowed.

10.05.2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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