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2010 DIGILAW 1770 (ALL)

TULAI RAM SINGH GANGWAR v. STATE OF U. P.

2010-05-26

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri Ashok Khare, Senior Advocate assisted by Sri Mukesh Kumar on behalf of the petitioner, Standing Counsel on behalf of respondent Nos. 1 to 4 and Sri V.K. Singh, Advocate for the caveator. 2. Learned counsel for the parties agree that the writ petition may be finally disposed of at this stage itself without calling for any further affidavit, specifically in view of the order proposed to be passed today. 3. Petitioner before this Court is working as permanent Principal of S.R.M. Inter College, Bisalpur, District-Pilibhit. He was placed under suspension under a letter of the Manager of the institution dated 29.1.2010. The papers pertaining to suspension of the petitioner were forwarded by the Committee of Management to the District Inspector of Schools. The District Inspector of Schools is alleged to have approved the said suspension under an order dated 5.2.2010. Subsequently, it appears that on a representation being made by the petitioner, the Manager has withdrawn the order of suspension vide order dated 08th February, 2010. Petitioner, therefore, approached the District Inspector of Schools for issuing necessary orders for continuance of the petitioner as Principal and for attestation of his signatures again. Since no action was being taken, he filed Writ Petition No. 11988 of 2010. The writ petition was disposed of vide order dated 11.3.2010 requiring the District Inspector of Schools to examine the matter and to pass appropriate order in respect of the grievance of the petitioner. 4. The District Inspector of Schools, Pilibhit under the impugned order dated 31.3.2010 has rejected the representation made by the petitioner on two grounds (a) once the suspension has been approved by the District Inspector of Schools under Section 16-D (7) of the Intermediate Education Act, 1921, the same cannot be recalled without approval of the District Inspector of Schools and (b) that more than 2/3 members of the Nagar Palika Parishad have given in writing that no resolution has been passed by the Board for withdrawing the suspension of the petitioner. 5. On behalf of the petitioner it is contended that the order of the District Inspector of Schools is patently misconceived. An order of suspension passed against a Teacher/Principal of an intermediate college cannot remain in operation after 60 days unless it is approved by the District Inspector of Schools in writing. 5. On behalf of the petitioner it is contended that the order of the District Inspector of Schools is patently misconceived. An order of suspension passed against a Teacher/Principal of an intermediate college cannot remain in operation after 60 days unless it is approved by the District Inspector of Schools in writing. Such approval of the District Inspector of Schools does not in any way take away the power of employer to withdraw the suspension at any time for valid and good reasons. It is submitted that under the statutory provisions applicable there is no requirement of any approval being obtained from the District Inspector of Schools before recalling the order of suspension by the appointing authority. 6. So far as the second ground mentioned in the order is concerned, it is submitted that the petitioner was suspended under an order of the Manager himself and therefore such order has been withdrawn by the Manager. The suspension was not effected under any resolution of the Board and therefore the complaint of 2/3 members of the Board that no decision has been taken to withdraw the suspension is neither here nor there. 7. It is also pointed out that the order of the District Inspector of Schools, approving the suspension dated 29.1.2010, has not been communicated to the petitioner till date nor any opportunity was afforded by the District Inspector of Schools before approving the same. 8. Sri V.K. Singh, Advocate on behalf of the officiating Principal contends that the petitioner did not challenge the order of suspension effected against him nor the order of approval. It is stated that the issue, as to whether the earlier suspension was effected under a resolution of the Board or not, has not been raised nor has been gone into under the impugned order. He points out that the petitioner is involved in criminal case under Section 420 IPC, as is apparent from the copy of the first information report enclosed alongwith the writ petition. With reference to the judgment of this Court in the case of Brij Raj Swarup Bhatnagar v. District Inspector of Schools, Ghaziabad and another, 2001(4) ESC 1574, it is submitted that such a Principal should be kept out of the office. With reference to the judgment of this Court in the case of Brij Raj Swarup Bhatnagar v. District Inspector of Schools, Ghaziabad and another, 2001(4) ESC 1574, it is submitted that such a Principal should be kept out of the office. Lastly it is contended that once suspension has been approved having regard to the seriousness of the charges, the Committee of Management could not have withdrawn the same unless the charged employee was finally acquitted of the charges levelled. 9. I have heard learned counsel for the parties and have gone through the records of the writ petition. 10. The finding recorded in the impugned order by the District Inspector of Schools that suspension order cannot be revoked, once it is approved by the District Inspector of Schools under Section 16-D(7) of the Intermediate Education Act, without his approval, is legally not correct. Under Section 16-D of the Intermediate Education Act the power to suspend the Teacher/Principal is with the Committee of Management. Power to do an act includes within its ambit the power to undue the act and therefore the appointing authority, which has placed its employee under suspension, can always withdraw such order of suspension for valid and good reasons. Approval under Section 16-G(7) of the Intermediate Education Act is required only for keeping the order of suspension effective after expiry of 60 days, as is clear from the language of Section itself. Said Section does not in any way affect or dilute the power of the appointing authority to withdraw the order of suspension. This Court has no hesitation to hold that an order of suspension can always be withdrawn by the appointing authority even if the same has been approved by the District Inspector of Schools and for such withdrawal of the suspension no prior approval of the District Inspector of Schools is required. The first ground, therefore, mentioned in the order does not appeal to the Court. 11. So far as the second part of the order is concerned, there is serious debate between the parties as to whether suspension was effected under a resolution of the Board or not and therefore withdrawal of the same is also require a resolution of the Board itself or not. 12. 11. So far as the second part of the order is concerned, there is serious debate between the parties as to whether suspension was effected under a resolution of the Board or not and therefore withdrawal of the same is also require a resolution of the Board itself or not. 12. From the records, as they stand, this Court is not in a position to arrive at a conclusive finding on the issue raised nor the District Inspector of Schools has examined the aforesaid aspect of the matter. If the contention raised on behalf of the petitioner to the effect that he was suspended by the Manager himself without there being any resolution of the Board is correct, counsel for the petitioner would be justified in contending that such authority who has placed the petitioner under suspension can always withdraw the said order. However, no final opinion is being expressed on the issue, inasmuch as the District Inspector of Schools may examine the original records of the Committee of Management of the institution and must satisfy himself that as to whether the suspension of the petitioner was effected by the Committee of Management or by the Manager on his own. 13. So far as the judgment relied upon by the counsel for the respondent is concerned, although this Court may not be taken to have expressed any final opinion on the merit of the charges, it appears that the facts of the present case are clearly distinguishable viz-a-viz those which where subject matter of the aforesaid judgment. Merely because a first information report under Section 420 IPC has been lodged, it will not automatically follow that the Principal should be kept out of office. Prima facie allegations in the first information report have to be seen alongwith the attending documents available for the purpose. 14. In the totality of the circumstances, the order passed by the District Inspector of Schools dated 31.3.2010 is hereby set aside. The District Inspector of Schools is directed to summon the original records of the Committee of Management and to satisfy himself as to whether the petitioner was placed under suspension by the Committee of Management or not and as to whether said suspension could be revoked by the Manager in the facts of the case. The District Inspector of Schools is directed to summon the original records of the Committee of Management and to satisfy himself as to whether the petitioner was placed under suspension by the Committee of Management or not and as to whether said suspension could be revoked by the Manager in the facts of the case. The District Inspector of Schools shall also examine as to whether in the background of the allegation made against the petitioner, the order of recall is fair and justified. 15. The aforesaid exercise may be completed within four weeks from the date a certified copy of this order is filed before the District Inspector of Schools, after affording opportunity to the Management of the institution and the Principal. 16. With the aforesaid observation/direction the present writ petition is disposed of. ————