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1996 DIGILAW 74 (GAU)

Hlranmoy Paul v. State of Assam

1996-05-02

M.SHARMA, S.L.SARAF

body1996
Smti M. Sharma, J.- The appellant preferred this appeal against the judgment dated 23.9.94 passed by the Single Judge in Civil Rule No.929 of 1992. The writ petition was filed against the impugned order/resolution dated 6.4.92 and letter dated 21.4.92 by which the appellant/writ petitioner was asked to show cause against order of removal from service as Principal of NC College, Badarpur. 2. The appellant was removed by the Director of Public Instructions, Kahilipara some years back i.e. on 9.3.87 from Secretaryship of the College Governing Body and against this he filed Title Suit No.1 16 of 1987 with an application for injunction and on rejection of the injunction prayer, the appellant . fought upto High Court by filing Civil Revision No. 163 of 1987 without any relief. On 14.3.89 Special Body was constituted (first Special Body) and this body suspended the appellant with effect from 25.8.89 and chargesheeted on 29.11.89. Enquiry was initiated. 3. Again by order dated 27.9.91 this first Special Body was replaced by another Special Body (second Special Body). Report of the enquiry was placed before this second Special Body on 19.10.91 and in its meeting dated 20.11.91, the Special Body withdrew the suspension order reinstating the appellant and took necessary steps to obtain approval from the appropriate authority under the Rules (Assam Aided College Management Rules, 1976). 4. It is to be mentioned that the appellant filed Title Suit No.98 of 1989 against the constitution of the first Special Body dated 14.3.89 and ultimately in Civil Revision No.258 of 1989 arising out of the Misc Case No.34 of 1989 in TS No.98 of 1989 and by order dated 7.7.89 the revisional Court directed to dispose of the misc case to the Court below with further direction to maintain status quo. 5. However as it is seen, the appellant was under suspension as the earlier Title Suit No. 116 of 1987 was pending for disposal without any injunction order and though the second Special Body revoked the suspension with reinstatement and service benefits the resolution was not approved by the Director of Public Instructions under Rule 18 of the 1976 Rules. 5. However as it is seen, the appellant was under suspension as the earlier Title Suit No. 116 of 1987 was pending for disposal without any injunction order and though the second Special Body revoked the suspension with reinstatement and service benefits the resolution was not approved by the Director of Public Instructions under Rule 18 of the 1976 Rules. In mat view of the matter the suspension order passed by the first Special Body remained so as the revocation of the same by the second Special Body left no effect on the order of the second Special Body which did not get approval from the Director of Public Instructions as stated above. 6. Against the constitution of the second Special Body dated 27.9.91 one Bhupendra Kumar Das filed Civil Rule 4418 of 1991 challenging the constitution of the subsequent Special Body (second Special Body), and the reinstatement of the appellant by this subsequent Special Body. This writ petition was withdrawn by the writ petitioner on 13.3.92. During the pendency of the said Civil Rule, the Government constituted a Governing Body of the college appointing one Kajal Bondopadhaya (respondent No.4 in this writ appeal) as the Principal-in-charge. Appellant alleged that the respondent No.4 was appointed when the appellant was on leave with effect from 27.11.91. 7. Appellant filed Civil Rule No.553 of 1992 against the constitution of the Governing Body by order dated 4.1.92 and the same is still pending for disposal. Admittedly by order dated 20.12.91 in Civil Rule 4418 of 1991, the High Court allowed to constitute regular Governing Body of the college. 8. By resolution dated 18.1.92 the Governing Body in its meeting resolved to nullify all actions of the earlier Special Bodies by dropping all the charges against the appellant. But by a letter dated 21.4.92 the Governing Body asked the appellant to show cause as to why the proposed action to remove him should not be taken. It is further seen that the Director of Public Instructions by order dated 7.9.92 conducted enquiry into the Audit Report which disclosed misappropriation of Rs.2,73,418.17 and the report was submitted and placed before the Director of Public Instructions. 9. It is further seen that the Director of Public Instructions by order dated 7.9.92 conducted enquiry into the Audit Report which disclosed misappropriation of Rs.2,73,418.17 and the report was submitted and placed before the Director of Public Instructions. 9. In this appeal the appellant's ground of appeal is two fold that in view of the order of the High Court passed on 3.1.92 in Civil Rule No.553 of 1992 the status of Principal shall continue and secondly his revocation of the suspension order with reinstatement is still in force as the decision of said Special Body cannot be revoked by the subsequent Governing Body as both the Special Body and the Governing Body have been constituted by the same Government. But we cannot lose the sight of the order and validity of any order passed by the first Special Body which was constituted on 14.3.89, which suspended the appellant and initiated disciplinary proceeding. If this submission made oh behalf of the petitioner is accepted, the logical conclusion would be that the second Special Body cannot sit as an review body On the decision of the first Special Body and set aside the suspension order and reject the report and disciplinary proceeding initiated by that Special Body. 10. The injunction prayer against the order of Suspension was refused by the High Court which was Arisen in Title Suit 167 of 1989 and the revocation of the suspension order with the order of reinstatement have not been approved by the Director of Public Instrustions under Rule 18 of Rules, 1976 and until and unless the resolution of the Special Body/Governing Body is approved fey the Director of Public Instructions the resolution has no effect at all. 11. As we have seen, appellants endeavour to stall his suspension and the disciplinary proceeding., filed civil suits one after another arid the Title Suit No.163 of 1987 filed against the order of suspension is still pending for disposal. 11. As we have seen, appellants endeavour to stall his suspension and the disciplinary proceeding., filed civil suits one after another arid the Title Suit No.163 of 1987 filed against the order of suspension is still pending for disposal. Again he is trying to stall the suspension Order passed by the regular Governing Body taking resort to order of the High Court passed on 7.7.89 in Civil Revision No.258 of 1989 by which the revisional Court directed the tower appellate Court to dispose of Misc Case and further direction was given to maintain status quo regarding situation - of the college management and not the continuation of the appellant as Principal of the college as on that date order if suspension was existing. The order dated 3.1.92 passed by the writ Court in Civil Rule No.558 of 1992 regarding the continuation of the appellant as Principal was passed though facts show that on that date the appellant was not the Principal of the college, as he was not allowed to join for no approval of his reinstatement fey withdrawing suspension order. Contention made on behalf of the petitioner that; on the strength of the order of the High Court passed on 7.7.89 in Civil Revision No.258 of 1989 and the order of the writ Court dated 3.1.91 passed in Civil Rule No.558 of 1992 the petitioner has been functioning as the Principal of the college is not sustainable on the reasons stated above. Attempt of the Government to make an enquiry regarding the misappropriation of College Fund amounting to Rs.2,73,418.17 has been stalled by the appellant since, 1987, by various Court causes both in civil Court and in the High Court. After failing to obtain relief in the two civil revisions by way of injunction, petitioner invokes the writ jurisdiction with a view to challenge his suspension order, which cannot be allowed as simultaneous invocation of jurisdiction of both Court Is not maintainable. Admitted position is that the civil suits are pending for disposal without injunction order. 12. Mr. BK Das, learned counsel Has further submitted that white the learned Single Judge upheld the decision of the respondent/Governing Body it did not examine the applicability of Rule 21 and 22 of the Rules, l972. 13. Admitted position is that the civil suits are pending for disposal without injunction order. 12. Mr. BK Das, learned counsel Has further submitted that white the learned Single Judge upheld the decision of the respondent/Governing Body it did not examine the applicability of Rule 21 and 22 of the Rules, l972. 13. On examination of the provisions of Rule 21 we are of the view that there is no dispute regarding the particular duties and function of the Principal of a deficit college under the previsions of this Rule. When some regarding college fund was detected he was suspended by order dated 9.3.89. Admittedly after his such suspension, the seniormost Lecturer has been holding the charge of the Principal. Therefor, allegation of non compliance of the provisions of Rule 22 of the Rules, 1976 is not sustainable and holding of the charge of Principal by the 3rd seniormost Lecturer cannot vitiate the action of the respondent Government. 14. Appellant was never reinstated by revocation of the suspension order and his claim of continuing as Principal has no basis at all. Appellant's abandon attempt both in civil Court as well as m High Court cannot give effect to revocation of his suspension order and his question of withdrawal of suspension order and reinstatement, as it is clear, on 3.1.92 were not placed before the writ Court for consideration. Further the regularly constituted Governing Body has cancelled all the proceedings of the departmental enquiry and subsequent resolutions etc of the two earlier Special Body and in its meeting and resolution dated 6.4.92 considered the matter, directed to issue fresh notice against propose punishment on the basis of the Enquiry; Report and accordingly the impugned show cause notice dated 21.4.92 was issued. 15. In view of our discussion made hereinabove, we found the judgment of the Single Judge as just and right and we find no infirmity or illegality in the impunged judgment. Accordingly we upheld the decision and views of the learned Single Judge. 16. In the result the appeal is rejected. No costs.