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1980 DIGILAW 487 (ALL)

Managing Committee, Dayanand Inter College v. District Inspector of Schools

1980-04-21

B.D.AGARWALA, YASHODA NANDAN

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JUDGMENT B.D. Agarwala, J. - The Committee of Management of Dayanand Inter College. Gorakhpur, has by means of this petition under Article 226 of the Constitution, challenged the validity of the orders dated November 21, 1979 of the District Inspector of Schools, Gorakhpur, by which order of the College suspending respondent no. 3, the Principal of the College and respondent No. 4. Assistant Clerk of the College, have been revoked. 2. It having come to the knowledge of the Committee of Management that there had been defalcation in the accounts of the College and various irregularities committed in maintenance of accounts resulting in misappropriation of College funds, by resolution passed in its meeting dated November 12, 1979 decided to suspend pending inquiry the Principal of the College and the Assistant Clerk who was entrusted with the duty of maintenance of accounts. This action was purportedly taken in the exercise of powers under Section 16-G of U.P. Intermediate Education Act, 1961 (hare in after referred to as the Act). In pursuance to this resolution, the orders suspending the respondents nos. 3 and 4 were issued by the Manager, 3. The matter was then reported to the District Inspector of Schools on November 17, 1979, as required by sub-section (6) of Section 16-G of the Act. The District Inspector of Schools, by two orders dated November 21, 1979 revoked the aforesaid orders of suspension dated 12-11-1979 in respect of respondent nos. 3 and 4. It is these orders which have been annexed as Annexures IV and III respectively to this petition, that have been impugned by the present petition. 4. Learned counsel for the petitioners while assailing these orders of the District Inspector of Schools has made three submissions before us. Firstly, it has been contended that once the Principal had been suspended by the Committee of Management, it was not open to the District Inspector of Schools, at least for a period of 60 days from the date of such order, to interfere with and revoke the same. The next submission made is that in the absence of any opportunity having been given to the Committee of Management by the District Inspector of Schools in the instant case the impugned orders stood vitiated in law. The next submission made is that in the absence of any opportunity having been given to the Committee of Management by the District Inspector of Schools in the instant case the impugned orders stood vitiated in law. Lastly, it has been submitted that so far as the case of suspension of respondent No. 4, who was an Assistant Clerk in the College, is concerned, the provisions of sub-section (6), (7) and (8) were inapplicable and hence also, the impugned order in respect of respondent No. 4 cannot be upheld. 5. Learned counsel in support of his aforesaid submissions has referred to the various provisions of the Act and the Regulations. Sub-clause (a) of subsection (2) of Section I -G enables Regulations to be made in relation to suspension pending or in contemplation of inquiry and the emoluments payable for the period of suspension. Sub-sections (5), (6), (7) and (8) of this section read thus:- (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 terpitude against him is under investigation, enquiry or trial. (6) Where any Head of Institutions or teacher is suspended by the Committee of Management, it shall be reported to the Inspect r 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 it. and within seven days from the date of the order of suspension in any other case, and the report shall conation 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 maybe, from the date of such order, and the order of the Inspector s all be final and shall not be questioned in any Court. (8) If, at any time, the Inspector is satisfied that disciplinary proceeding 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." 6. From an analysis of these provisions, it appears that a Head of the Institution or a teacher can be suspended only if in the opinion of the Management any one or more of the three grounds mentioned in sub-clauses (a), (b) and (c) of sub-section (5) are present. Sub-section (6) places an obligation on the Committee of Management to report to the District Inspector of Schools within 7 days from the date of order of suspension and this report has to contain such particulars as may be prescribed and has also to be accompanied by all relevant documents. Sub-section (7) in clear terms lays down that no order of suspension, unit ss approved in writing by the Inspector, shall remain in force for a period of more than 60 days from the date of such order. The order of Inspector passed under this sub-section has been made final and not questionable in any Court. Sub section (8) empowers the Inspector, if he is satisfied that disciplinary proceedings are being delayed for no fault of the Head of the Institution or teacher, at any time, after affording opportunity to the Management, revoke the order of suspension. 7. Regulation 40 contained in Chapter U of the Regulations framed under the Act lays down a sort of time table stipulating the periods of time within which the various necessary steps are to be taken culminating in the decision of the punishable authority without undue delay. Regulations 41 and 42 relate to payment of subsistence allowance and the amount to be paid in case of reinstatement of the suspended employee. 8. Sri Swaraj Prakash, learned counsel for the petitioners has contended that keeping in view the aforesaid provisions of the Act and the Regulations, the Inspector, while exercising his power of approval under sub section (7) has no power to disprove. 8. Sri Swaraj Prakash, learned counsel for the petitioners has contended that keeping in view the aforesaid provisions of the Act and the Regulations, the Inspector, while exercising his power of approval under sub section (7) has no power to disprove. In other words, what he has contended is that the Inspector can only approve the suspension order but cannot disapprove the same thereby curtailing the normal period of its life of sixty days as provided for under this sub-section. The automatic consequence of this submission of the learned counsel is that for a period of sixty days, it would not be open to the Inspector to set at naught the order of suspension even though none of the grounds mentioned in clauses (a), (b) and (c) of sub-section (5) existed. In other words it would mean that though sub-section (5) in clear terms injucts the Management not to suspend the Head of Institution or teacher except where one or more of the grounds mentioned in sub-clauses (a), (b) and (c) are present, but sub-section (7) would permit such an order to remain in force for a period of sixty days. We find ourselves unable to subscribe to this approach. 9. It is a well settled rule of interpretation that, interpretation ought to be placed which may result in suppressing the mischief and advancing the object or the remedy. We cannot be unmindful of the fact that these checks and remedies were provided for by introducing these provision by the U.P. Secondary Education Laws (Amendment) Act, 175 (U.P. Act No. XXVI of 1975). Regulation 39 of the Regulations also, as existing earlier, merely empowered the Committee of Management in its discretion to suspend pending inquiry an employee if the allegations are serious enough and may lead to his dismissal, removal or reduction in rank. The Head of the Institution, teachers and other employees having been found to be subjected to harassment as a result of arbitrary suspension orders passed by the Management, the legislature considered it necessary to introduce provisions to mitigate this arbitrariness. These provisions were made for the protection of such persons. The interpretation sought to be placed on these provisions by the counsel for the petitioners, if accepted by us, would result removing this umbrella of protection. These provisions were made for the protection of such persons. The interpretation sought to be placed on these provisions by the counsel for the petitioners, if accepted by us, would result removing this umbrella of protection. These provisions hence need to be interpreted in a manner which may not deny this protection to these persons and so as to advance the object, for which these provisions were made. 10. We are hence inclined to read in sub-section (7) the power of Inspector to disapprove the order of suspension. In our opinion, the power of approval embraces within it the power to also disapprove. This is a well understood rule of general law. The principle underlying Section 16 f the U.P. General Clauses Act would also, in our view, apply In this connection we may usefully refer to the decision of the Federal Court in Rayarappan v. Madhavl Amma (A.I.R. 1950 F. C. p. 140.) 11. The Inspector in a given case reported to him under sub-section (6) can examine as to whether one or more of the conditions in clauses (a), (b) and (c) of sub-section (5) are existing. If he finds that none of the grounds are present, it is open to him to disapprove the suspension order even before the expiry of the period of sixty days and his action need not be confined only to the consideration as to whether he would in the circumstances accord approval. 12. Sub-section (8) which talks of revocation is attracted to a situation where if, at any time, after according approval by the Inspector, it is found that disciplinary proceedings are being delayed for no fault of the Head of Institution or teacher, he may after affording opportunity to the Institution, revoke the order of suspension. The word 'revoke' means recalling or withdrawing one's action. At this stage when the Inspector considers as to whether the order of suspension is liable to be revoked, he is obliged by the Statute to afford an opportunity to the management before revoking the order of suspension. The order of suspension duly approved by the Inspector continues in force after the expiry of sixty days from its date and obviously if such an order is sought to be revoked, it becomes necessary to afford an opportunity to the management before so doing. The order of suspension duly approved by the Inspector continues in force after the expiry of sixty days from its date and obviously if such an order is sought to be revoked, it becomes necessary to afford an opportunity to the management before so doing. The aforesaid interpretation placed upon by us, is further fortified by the fact that this interpretation results in the Inspector being vested with the power to interfere at any point of time after the passing of the order of suspension by the management. This, in view, would be in keeping with the object and purpose of these provisions. 13. Learned counsel has sought to place reliance on a recent judgment of the Supreme Court in The All Saints High School, Hyderabad v. Government of Andhra Pradesh and others (Civil Appeal Nos 1279 and 1280 of 1973 connected with Civil Appeal nos. 1327 - 1330 of 1978 and Civil Appeal No. 35 of 1978) decided on February 4, 1980. A copy of this judgment had been produced before us. We are unable to discern from this judgment anything in support of the above submission of learned counsel. On the other hand, we find observations which fortify the interpretation placed by us above. 14. The question before the Supreme Court was as to whether certain provisions of Andhra Pradesh Recognised Private Education Institutions Control Act (Act No. 11 of 1975) where violative of the Fundamental right conferred on minorities by Article 30(1) of the Constitution. The appellants, in the appeals before the Supreme Court, Were minority educational institutions established by members of the Christian Community. Apart from vires of the other provisions of the aforementioned Andhra Pradesh Act, the Supreme Court had also occasion to consider as to whether Section 3 (a) and 3 (3) (b) were violative of Article 30(1) of the Constitution. Section 3 (3) (a) provided that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into gross misconduct of such teacher was contemplated. Section 3 (3) (b) provided that no such suspension shall remain in force for more than a period of two months and if such inquiry was not contemplated within that period, the teacher, without prejudice to the inquiry would be deemed to have been restored as a teacher. Section 3 (3) (b) provided that no such suspension shall remain in force for more than a period of two months and if such inquiry was not contemplated within that period, the teacher, without prejudice to the inquiry would be deemed to have been restored as a teacher. Proviso to this section empowered the competent authority to extend the period of two months for a further period not exceeding two months, if in his opinion the inquiry could not be completed, within the initial period of two months, for reasons directly attributable to such teacher. The majority view taken was that both these sections did not offend against the provisions of Article 30 (1) of the Constitution were valid. It was held that these provisions were not likely to inference with the freedom of minorities to administer and manage educational institutions of their choice. It was observed that discipline was undoubtedly sine qua non of educational excellence but discipline was not to be equated with dictatorial methods in the treatment of the teachers and no educational institution can be given right of hire and fire its teachers. Section 3 (3) (a) was held to contain elementary guarantee of freedom from arbitrariness to the teachers. This provision was held to be of regulatory character. Limitation of the period of suspension initially to two months which was liable to be extended in appropriate cases, was held to partake of the same character as the provision contained in Section 3 (3) (a) and was held to be founded on plain reason. 15. We are, accordingly, of the view that even though the period of sixty days had not expired from November 12, 1979, the date of passing of the order of suspension by the management, the District Inspector of Schools had full authority on November 21, 1979 to pass the orders resulting in setting at naught the order of suspension passed by the management against respondent no. 3. This order, incur view, is justified in the exercise of the power of disapproval in sub-section (7) of Section 16-G of the Act, as observed by us above. 16. The mention of sub-section (8) of Section 16-G in the impugned order would, in our opinion, make no difference. 3. This order, incur view, is justified in the exercise of the power of disapproval in sub-section (7) of Section 16-G of the Act, as observed by us above. 16. The mention of sub-section (8) of Section 16-G in the impugned order would, in our opinion, make no difference. It is too well accepted and require no citation of any authority that mere reference to wrong provision does not per se render the order invalid, if the authority has power to pass such an order under other provision. 17. In regard to the next submission of the learned counsel that in absence of any opportunity having been afforded to the management, the impugned order against respondent no 3 would stand vitiated in law. Here again we are unable to agree. In view of our analysis of the provisions above, we are clearly of the view that at the stage where the Inspector considers the question of approval or disapproval of the order of suspension, the management, apart from the requirement of sending the report containing particulars as may be prescribed and the relevant documents, it has in law no right to be afforded an opportunity as contemplated in sub-section (8). The present was not a case of revocation of an already approved order of suspension. 18. We find that clause (2) of Regulation 39 of Chapter III of the Regulations lays down that 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 of the Act. These provisions only make sub-section (5) of Section 16 G applicable to the cases of other employees. Sri V B. Khare, learned counsel appearing for the respondents has not been able to bring to our notice any other provision of the Act or Regulation etc. which may have made applicable the provisions of subsections (6), (7) and (8) to such employees. We hence hold that the District Inspector of Schools has no power to interfere with the order of suspension pending inquiry passed against an employee other than a head of institution or a teacher. which may have made applicable the provisions of subsections (6), (7) and (8) to such employees. We hence hold that the District Inspector of Schools has no power to interfere with the order of suspension pending inquiry passed against an employee other than a head of institution or a teacher. Such a suspension order could not require any approval of the Inspector nor can such an order be disapproved by him The power to revoke such an order does not lie with the Inspector. The order of the District Inspector of Schools dated 21-11-1979 hence in regard to respondent no. 4 must fall, as being without authority of law. 19. No other point was urged. 20. This writ petition, hence, succeeds and is allowed in part. The order of the District Inspector of Schools Gorakhpur dated 21-11-1979 in regard to Sri Vipin Srivastava respondent No. 4 is quashed. We, however uphold the order dated 21-11-1979 .of District Inspector of Schools, Gorakhpur regarding Sri Ghanshyam Bahadur, respondent no. 3. 21. In the circumstances, parties shall bear their own costs.