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2002 DIGILAW 393 (GAU)

Sitanath Deka v. Razia Ahmed

2002-09-11

B.LAMARE, P.P.NAOLEKAR

body2002
P.P. NAOLEKAR,CJ.— This writ appeal is filed by the President of the Managing Committee of Gelabil Oumara Chutiapara Janata High School and the Head Master of the School challenging the order of the learned Single Judge staying the order of suspension issued by the appellants against Mrs. Razia Ahmed, the respondent No.l writ petitioner. 2. Facts not indispute are, that the Gelabil Oumara Chutiapara Janata High School is receiving concession grant and adhoc 'grant since 1985 and was affiliated to the Board of Secondary Education, Assam upto Class X in the year 1991-92. At the relevant time the Respondent No. 1 was working as Headmistress of the school. The Managing Committee in its meeting held on 29.12.2000 passed a resolution to suspend the Respondent No. 1 and to handover charge of the School to one Md Akbor Molla, appellant No.2. Minutes of the meeting records that the order of suspension was issued on account of the following reasons : "(i)Appointment of nephew Golap Ali as Music Teacher without the knowledge of the , Managing Committee and approval of the same by the departmental authorities. (ii) Non-submission of accounts by the Headmistress for her period from 1984 till date and misappropriation of money. (iii) Confession of the Head Mistress before the public and teachers' unit of her guilt and her readiness to accept any punishment of the Executive Committee/" (iv) Expulsion from B.Ed Examination twice (in 1986 and 1997) for adopting unfairness. (v) Issuing of false certificate on consideration of money to some non students of the school. (vi) Obtaining approval of names of two additional members of Managing Committee without the knowledge of the General Meeting and Executive meeting. (vii) Absence from meeting of the Managing Committee held on 25.12.2000 and 29.12.2000 which was held as per direction of Inspector of Schools." After the Resolution was passed suspending the Respondent No.l, she approached the Inspector of Schools, Barpeta District Circle, Barpeta for not giving approval to the resolution passed by the Managing Committee and to allow her to continue as Head Mistress. The Inspector of Schools Barpeta approved the Managing Committee's resolution dated 29.12.2000 suspending the respondent No. 1 and allowing the appellant No.2 Md Akbor Molla as in charge Head Master vide order dated 10.01.2001. The Inspector of Schools Barpeta approved the Managing Committee's resolution dated 29.12.2000 suspending the respondent No. 1 and allowing the appellant No.2 Md Akbor Molla as in charge Head Master vide order dated 10.01.2001. The President of the Managing Committee by its order dated 12.01.2001 put the Respondent No. 1 under suspension with effect from 15.01.2001 and directed her to handover charge to the appellant No.2. 3. This direction to handover charge and to implement the order of suspension resulted in filing of writ petition in the High Court and passing of the ultimate order by the learned Single Judge whereby the order of suspension has been stayed. 4. In the present appeal the counsel for the appellant Managing Committee has submitted that in the matter of suspension when there are allegation of serious nature, the learned Single Judge should not have interfered with the decision taken by the Managing Committee. An order of suspension being not a penalty the Managing Committee is not required to substantiate the order of suspension with factual proof of the allegations on the basis of which the action is taken. It is sufficient that the Managing Committee could show reasonable basis for taking action against an erring employee for issuing order of suspension and then later on conduct inquiry against the employee on the charges leveled. 5. The power to suspend in the sense of right to forbid the servant from work is not an implied term in an ordinary contract between the master and the servant. Such power can only be created either by a statute governing the contract, or by art expressed term in the contract itself. Ordinarily, in the absence of such power-either in expressed term in the contract or in the rules framed or under some statute, would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids an employee to work, he will have to pay wages during the so-called period of suspension. There can, however, be a power to suspend either in the contract of employment or in the statute or rules framed thereunder. There can, however, be a power to suspend either in the contract of employment or in the statute or rules framed thereunder. Suspension has an affect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay its unless there are rule to the contrary, which provides for payment of subsistence allowance as a consequence of the order of suspension issued against the employee. When the rule permits to suspend the service of the employee, right is created in master to forbid his servant from doing work, which he is to do under the terms of the contract of service or the provision governing the conditions of service at the same time keeping in force the master's obligation under the contract. Reliance is placed on AIR 1970 SC 1494 B.P. Gandronia vs. State of Andhra Pradesh & Ors. And AIR 1959 SC 1342 Management of Hotel Imperial, New Delhi vs. Hotel Workers' Union. It is now well settled that the order of suspension is not a punishment as suspension does not amount to dismissal, discharge or reduction in rank. The order of suspension has the affect of temporarily suspending the relationship of master and servant and the right exercised by the master which forbid his servant from doing his work as per the condition in the contract of service or the relevant rules or regulation permitting the employer to do so. 6. When suspension is not 'Punishment' within the meaning of Article 311 of the constitution or any rules governing the service conditions, court shall be reluctant and slow in exercising the jurisdiction under Article 226 in the matter of suspension pending inquiry or in contemplation of the departmental proceedings, unless primafacily the alleged facts establishes, that the order of suspension is invalid in law either for want of competence on the part of the authority passing the same or for violation of any specific rules. If the authority is competent to pass an order of suspension and there is authority either under the contract of service or rules or regulations regulating the contract between the employer and the employee permitting suspension of the employee, the powers exercised by the employer should not be interfered with by the High Court merely on the ground that an enquiry can be conducted without suspending the employee. The power to interfere with the order of suspension although vests in the High Court under Article 226 of the Constitution, High Court should be extremely slow in exercising this power by entertaining writ petition under Article 226. 7. Mr. A.S. Choudhury, learned counsel for the Respondent urged that the order of suspension having not been approved and is being kept in abeyance by the Director, it could not have been given effect to and further the power of suspension vests with the Government under Rule 26 of the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976 only and not with the authority who issued it. 8. Whereas it is contended by the appellant's counsel that the power to suspend and employees vest in the Managing Committee under Rule 7 of the Appendix-I to Assam Education Department Rules and Orders, he further argued that there is no necessity of an approval of the Inspector of Schools of an order of suspension by the Managing Committee and thus keeping the order in abeyance of suspension issued by the Inspector of Schools, Barpeta dos not supersede the order of suspension issued by the Managing Committee. 9. To better appreciate the contentions raised by the counsels, we reproduce the relevant provisions of Rule 7 to Appendix-I of the Assam Education Department Rules & Orders, and Rule 26 of the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976 which reads as under: "7. When there are grave allegations against an employee of an aided school, which if ultimately proved to be true are likely to result in dismissal or removal of the employee or if the continuance in office of that employee may prejudice the enquiry to be made into these allegations or may cause disappearance of material evidence, the employee may be placed under suspension pending enquiry by (a) the Headmaster in the case of employees under him with previous permission of the Secretary of the Managing Committee. If the Headmaster himself is the Secretary, the previous permission of the President of the Committee should be obtained, and (b) by the President of the Committee in case the employee in question is the Headmaster". "26. Except where it is ordered otherwise by general or special orders, the managing - committee will leave to the Principal/ Headmaster all routine questions in connection with arrangement of classes, admission and transfer of pupils, settlement of the class routine, periodical examination, awarding of class promotion and all matters of routine relating to instruction, administration and discipline and control of the pupils and the staff. It will be open to the managing committee, however, to depute one or more of their members to make enquiry into any of these matters and to report thereon to the department. Except as provided under these rules all matters relating to disbursement of money on account of scholarships/stipends to students, the Principal or Headmaster of the school concerned shall be held directly responsible to the Government for any omission/commission in this regard and the Government shall have the power of appointing authority for placing them under suspension and of the disciplinary authority for taking disciplinary action against them under relevant provisions of Assam Services (Discipline and Appeal) Rules, 1964 and any other rules framed by the Government from time to time in this behalf. 10. Rule 7 authorise the President of the Managing Committee to keep a Headmistress under suspension when there are allegations against an employee of an aided school, which if ultimately proved to be true are likely to result in dismissal or removal of the employee, or if the continuance of the employee in office may prejudice the enquiry to be made into those allegations or may cause disappearance of evidence. The President of the Committee can exercise such power to keep an employee/Headmistress under suspension in three eventualities, independently or jointly, if he is of the opinion that the charges leveled, if ultimately proved would result in dismissal or removal of the employee or her continuance in the office may prejudice the enquiry or may cause disappearance of material evidence. In case of one or all eventualities, as appreciated by the President of the Managing Committee, he gets the authority to suspend an employee. In case of one or all eventualities, as appreciated by the President of the Managing Committee, he gets the authority to suspend an employee. The charges on the basis of which action of suspension of the Respondent No.l was taken, in our opinion, are such that if they are proved, they may lend to an order of dismissal or removal. From the nature of charges leveled, it can be safely said that if the respondent No. 1 is permitted to work on the post as Headmistress it may cause disappearance of the material evidence. There is no provision in the Rules where under approval is necessary of the Inspector of Schools before or after the order of suspension is issued by the President of the Managing Committee. In the absence of any Rule grant or non-grant of the approval does not in any way affected the order of suspension issued by the President of the Managing Committee. 11. Let us now consider Rule 26 of the Rules. The counsel for the Respondent has mainly relied upon the second clause of Rule 26, which says that matters relating to disbursement of money on account of Scholarship/stipend to students, the Principal or Headmaster of the school concerned shall be held directly responsible to the Government for any omission or commission in this regard. The Government is empowered and has power to place such Headmaster under suspension and direct the disciplinary authority to take disciplinary action against him under the relevant provisions of the Assam Services (Discipline and Appeal) Rules, 1964 for any omission or commission in regard to disbursement of money on account of scholarship/stipend to the students. The power to suspend to be exercised by the Government under the Rules it is to be in regard to the act of omission or commission by the Headmaster in connection with scholarship/stipend of students. Under this Rule the Headmaster is being held directly responsible for allotment and payment of the scholarship/stipend to the students and if the government find any omission or commission in that regard, the government can exercise the power of suspending him and commence with the disciplinary proceedings. This power has nothing to do with the general power of suspension, which is vested with the Managing Committee under Rule 7. This power has nothing to do with the general power of suspension, which is vested with the Managing Committee under Rule 7. The learned Single Judge has ordered stay of suspension because in his opinion the order of suspension not being penal or punitive in nature, resort to an order of suspension could normally be permissible only in the interest of an impartial and effective proceeding. Merely because the charges are serious, the authority would not be justified in resorting to the order of suspension as in that event the suspension would assume the character of a punitive action. With great respect to the learned Single Judge, we are of the view that Rule 7 of the Assam Education Department Rules & Orders permits issuance of the order of suspension if the charges are serious which may result in imposition of the punishment of dismissal or removal, if they are proved. Apart from this, in the factual matrix which we have already referred and considering the nature of the charges, which would be required to be enquired into it would not be just, fair or proper to permit the Respondent No. 1 to continue on the post of Headmistress. 12. For the aforesaid reasons, the order passed by the learned Single Judge is set aside. The order of suspension and the order of handing over of charge of the Gelabil Oumura Chutiagaon Janata High School, Gelabil issued by the Managing Committee is maintained, however, we make no order as to costs.