AJOY NATH RAY, CJ., ASHOK BHUSHAN, JJ. ( 1 ) THIS is an appeal from an order passed by Honble Mr. Justice V. K. Shukla dated 10th August, 2005, whereby his Lordship has quashed an order passed by the District Inspector of Schools on 14. 7. 2005, working the order of suspension imposed on the appellant by the College Committee. His Lordship has remanded the matter for re-consideration by the District Inspector of Schools. That order by the D% was passed by in exercise of power under Section 16-G (8) of the U. P. Intermediate Education Act, 1921. The said sub-section is set out below: (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 to make representation revoke an order of suspension passed under this section ". ( 2 ) THE facts leading to the suspension are more or less these, as collected from the merging committee and the Head Master, who is under suspension and is the appellant. The Head masters version is that on 23. 3. 2005, by mistake he tore open a sealed packet and distributed as invigilator to 11 students the U. P. Board Paper for Maths-II (Elementary Maths, the examination on which subject was to be held on 29. 3. 2005. According to him, he immediately collected the papers back and kept those in his room. He states that he informed the District Inspector of schools of this on 23. 3. 2005 itself; no letter is annexed in this regard; leave was asked for from us to produce the letter, but it appears that nobody has yet asked the appellant whether this letter exists or not. Giving leave at this stage would encourage fabricating material; at least, it might, encourage such fabrication. ( 3 ) THE version of the Committee of Management is that on 24. 3. 2005, information was received by the authorities from somebody unknown to the Committee. As a result by the High Power team, the Sub-Divisional Magistrate (sic) a raid in the School premises and found that the Head masters room was locked and that he has runaway. According to them, the room was found to contain the opened papers for the 29. 3. As a result by the High Power team, the Sub-Divisional Magistrate (sic) a raid in the School premises and found that the Head masters room was locked and that he has runaway. According to them, the room was found to contain the opened papers for the 29. 3. 2005 examination, a Xerox Machine and Rs. 11,000/ (Rupees Eleven Thousand) in cash. ( 4 ) THE police investigation commenced; the report filed by the police authorities is that no case has been found against the appellant. The Committee of Management submits that the police has filed a slip-shod report without examining a single one of the raiding Committee. The protest petition has been filed by the Committee of Management before the Judicial Magistrate; the criminal case cannot be said to be over yet. ( 5 ) THE papers set for 29. 3. 2005 were cancelled. There is nothing to show that these were cancelled on the basis of any alleged information lodged by the appellant with the District inspector of Schools on 23. 3. 2005. After the raid of 24. 3. 2005, it was almost automatic that the papers would have to be set afresh. ( 6 ) REGARDING the service of charge sheet, the parties again give completely different versions. According to the Committee of Management, the Head Master refused to accept it; they have tried to send it by Courier and also had have resorted to Newspaper advertisement. ( 7 ) THE version of the Head Master is that the disciplinary inquiry is being delayed and the best proof of that is that the charge sheet even has not been served. ( 8 ) THE power to suspend is exercisable by the Management provided that one of the conditions mentioned in Sub-section (5) of Section 16-G of the U. P. Intermediate Education Act, 1921 exists. Sub-section (5) is set out below: (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". ( 9 ) IT is quite clear that under Sub-rule (8) the delay of an inquiry of a disciplinary nature is a jurisdictional fact: which must exist so as to satisfy the Inspector in that regard. Only after such satisfaction, based on materials upon which a reasonable can act, person does the Inspector get the power to revoke the order of suspension; all the time acting bonafide, needless to mention. ( 10 ) THAT the police authorities have filed an investigation report favourable to the appellant is a matter completely different from delaying the disciplinary proceedings. The power to suspend under sub-section (5) was possessed by the Management at the time of passing of the order of suspension; the circumstance empowering the issuance or maintenance of suspension still exists even now under sub-clause (c) of sub-section (5), as the criminal case (sic) cannot be said to be neither under investigation nor under inquiry nor under trial. ( 11 ) IN these circumstances, without the extreme cooperation of the appellant, the disciplinary inquiry cannot start or continue. First of all, the appellant must show that he was ready and willing to accept the charge sheet; the matter is still in the realm of disputed facts in this regard; secondly the appellant must either expressly or by conduct, which makes it a necessary implication, give up his right to hold his silence in a disciplinary inquiry while a criminal case on the identical charge is still pending. It is the right of accused not to speak and very often accused persons, who face disciplinary inquiry, obtain a stay of departmental proceeding so as not to prejudice their defence in the criminal trial. ( 12 ) THE appellant has done nothing yet to show that he wants the disciplinary inquiry to be commenced and continued notwithstanding the criminal case, which is not yet concluded against him. ( 13 ) WITHOUT such expression of the appellant giving up his rights given to him in law, it is not legally possible for the authorities even to proceed with the disciplinary inquiry. The question of delaying a disciplinary inquiry cannot arise in these circumstances. ( 14 ) IN any event, taking a very practical view of the situation, whatever 4 fine and correct legal principles might be, his Lordship has directed reconsideration of the matter by the District inspector of Schools? The question of delaying a disciplinary inquiry cannot arise in these circumstances. ( 14 ) IN any event, taking a very practical view of the situation, whatever 4 fine and correct legal principles might be, his Lordship has directed reconsideration of the matter by the District inspector of Schools? because, according to his Lordship the District Inspector of Schools has totally misdirected himself and performed no exercise whatsoever in regard to narrating the facts and circumstances of the case leading to the conclusion that the disciplinary inquiry is being delayed by the Committee of Management without any fault of the Head Master. ( 15 ) WE respectfully agree with this assessment by his Lordship. For one, and the matter of service of the show cause or its avoidance has not been pronounced upon by the District inspector of Schools; and, it is only after that that the question will arise whether the accused-Head Master wants to go on with the proceedings and file his answer to the show cause immediately. ( 16 ) IN these circumstances, exercise of power by the District Inspector of Schools under sub-section (8) quoted above, was an assumption of jurisdiction without the pre-conditions being satisfied in law; the order passed by the District Inspector of Schools has to be set aside; the order of remand is a very good solution in the facts and circumstances of the case. The appeal is dismissed. . .