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2016 DIGILAW 1914 (ALL)

Dhata Intermediate College v. State of U. P.

2016-05-17

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

body2016
JUDGMENT C/M Dhata Intermediate College, Dhata District Fatehpur through its Manager is before this Court assailing the validity of the order dated 29.04.2016 passed by learned Single Judge in Writ Petition No.19431 of 2016 (Committee of Management Dhata Intermediate College and another vs. State of U.P. and others), wherein the learned Single Judge has proceeded to dispose of the Writ Petition with a direction to petitioner Committee of Management Dhata Intermediate College, Dhata District Fatehpur without interfering with the order passed by the District Inspector of Schools refusing to accord approval to the resolution of suspension. 2. Brief background of the case is that in the District of Khaga, Fatehpur, there is an Institution known as Dhata Intermediate College, Dhata recognized under the Intermediate Education Act, 1921 (U.P. Act No.II of 1921). In the said Institution post of Principal vacant and accordingly, the vacancy in question was informed and same was published by Advertisement No.1 of 2008. This much is reflected that in the said selection Ram Lakan singh was also permitted to participate by virtue of being second senior most teacher (Lecturer) and ultimately he was selected but the incumbent who was placed at serial no.2 of the panel filed a complaint before the Selection Board by mentioning that selection has been procured by him by means of fabricated records and experience certificate. The Selection Board conducted inquiry and thereafter has formed opinion that Ram Lakhan singh was not at all fit for the post of Principal and his selection was cancelled. The case of the Committee of Management of the Institution is that since 03.06.2012, the said incumbent has not at all functioned as Officiating Principal or as Principle and after cancellation of his selection Sandeep Kumar Rathore has been recommended by the Board and he has been appointed as Principal on 01.10.2012 and Sandeep Kumar Rathore, subsequent to the same sought transfer and has been transferred. This much is also reflected that the Managing Committee of the Institution intended to take disciplinary action against Ram Lakhan Singh and in the said direction also have proceeded to place him under suspension but the District Inspector of Schools disapproved the said suspension. Against the same, Writ Petition No.4185 of 2016 has been filed and the matter was remitted back to the District Inspector of Schools and the District Inspector of Schools once again disapproved the suspension. Against the same, Writ Petition No.4185 of 2016 has been filed and the matter was remitted back to the District Inspector of Schools and the District Inspector of Schools once again disapproved the suspension. The petitioner-appellant has filed Writ Petition No.19431 of 2016 and the Learned Single Judge has not interfered with the order of District Inspector of Schools but has directed to conclude the inquiry and at this juncture, present Special Appeal has been filed. 3. Shri P.N. Saxena, Senior Advocate submitted with vehemence that in the present case the District Inspector of Schools has transgressed and overstepped its authority at the point of time when he has proceeded to consider the matter of grant of approval under Section 16 (G) (7) of U.P. Act No.II of 1921 and as such the order passed is per-se bad and is liable to be set aside. 4. Learned Standing Counsel as well as Shri Ashok Khare, Senior Advocate assisted by Shri Rajeev Kumar Srivastava, Advocate submitted that rightful order has been passed in the present case and no interference should be made. 5. After respective arguments have been advanced, Section 16-G is being looked into that deals with conditions of service of Head of Institutions, teachers and other employees including suspension, relevant extract of the same is as follows: Section 16(G) of U.P. Act No.2 of 1921 (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. (6) Where any Head of institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector 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, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as maybe 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 may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court. (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." 6. Bare perusal of provision would go to show that Sub Section (5) of Section 16-G starts with a caution that 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. Sub-Section (6) of Section 16-G deals with the obligation cast upon the Committee of Management where any Head of Institution or teacher is suspended by the Committee of Management, that the said matter has to be reported to the Inspector within thirty days from the date of the commencement of 1975 Act. Sub -Section (7) of Section 16-G is clear and categorical that 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 the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any court. Sub-Section (8) of Section 16-G deals with the situation 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. Scheme of provisions noted above, would clearly reflect that Section 16-G has been inserted by U.P. Act No. XXXVI of 1958 to keep check on exercise of authority by the respective Managing Committee of the institution and to prevent the continuance of suspension pending inquiry for long period of time. The effect of sub-section (7) of Section 16-G is that the suspension order shall cease to remain in force on the expiry of 60 days and statutory power has been given to the District Inspector of Schools to ensure that the management has not acted in a high handed manner in the matter of suspension, head of the institution or teacher. District Inspector of Schools has further been conferred authority to see that even if suspension has been approved, incumbent is not made to suffer and same being used as tool of harassment, under Sub Section (8) of Section 16-G wherein District Inspector of Schools has been conferred with the authority to revoke the said order after providing opportunity of hearing to the Management. Thus statutory supervisory power has been conferred upon the District Inspector of Schools to ensure that power of suspension is not at all misused in the fact of the case and same has been used for bonafide purpose and not with the sole object to deprive an incumbent to perform and discharge his duties and receive salary in full. Scheme of things, point out that objective of said provision is to save the teacher from arbitrary action of the Management of the institution and the District Inspector of Schools has to satisfy himself as to whether order of suspension has been rightly passed or it is illegal or malafide or it is undeservedly. This court in the case of Govind Swarup Pandey Vs. Aurthorized Controller, 1981 UPLBEC17 has defined the authority of the District Inspector of Schools at the point of time when he proceeds to consider grant of approval of suspension. This court in the case of Govind Swarup Pandey Vs. Aurthorized Controller, 1981 UPLBEC17 has defined the authority of the District Inspector of Schools at the point of time when he proceeds to consider grant of approval of suspension. Time and again, this court has insisted that, order of approval or disapproval should contain reason. In the case Smt. Nirmal Saxena Vs. State of U.P. and others 2009(1) ESMC 243 in para 5 it has been held as follows: - 5. The question as to whether the District Inspector of Schools is required to pass a reasoned order while granting approval or disapproval to the suspension order under sub-section (7) of Section 16-G of U.P. Intermediate Education act, 1921 is no longer res-integra. The Division Bench of this Court in the case of Committee of Management Sri Mahanthu Radha Krishna Inter College, Sakarpura, District Ballia. Vs. District Inspector of schools and another, 1988 UPLBEC 226(1), has held as under. "As discussed earlier, a District Inspector of Schools while exercising power under sub-section (7) of Section 16-G acts in a supervisory capacity, and his decision may have adverse effect on either party which is before him. Since the party affected adversely by his order invariably comes to Court, he must record brief reasons for according or refusing to accord approval to an order of suspension passed by a Committee of Management although a detailed judgment is not required . In the present case, the District Inspector of schools has disapproved the resolution of the Committee of Management without giving any reason whatsoever. In absence of any reason, this Court is unable to find fault with the resolution of the Committee of Management suspending the respondent No. 2. Thereafter, the order of the District Inspector of schools must be held to be illegal and arbitrary". 7. It has been held by another Division Bench of this Court in the case of Tejnarain singh Vs. State of U.P and others 2998(4) ESC 2301 (DB) as under: "We are of the considered opinion that the District Inspector of Schools while exercising the power under Section 16-G(7), has only to examine on prima facie basis as to whether the charges have any substance and as to whether there is material available in support of the charges. State of U.P and others 2998(4) ESC 2301 (DB) as under: "We are of the considered opinion that the District Inspector of Schools while exercising the power under Section 16-G(7), has only to examine on prima facie basis as to whether the charges have any substance and as to whether there is material available in support of the charges. He is not required to enter into any disputed issue as to whether charge would be finally made out or not. The issue in that regard has to be examined in departmental enquiry to be held against the Principal." 8. This court in the case of Ram Kripal Katiyhar Vs. District Inspector of Schools, Shahjahanpur and others 2009(4) AWC 3202 has clearly taken the view that while considering the grant of approval, District Inspector of Schools is required to ensure that there exists some reasonable ground for proceeding against the Head of the Institution or teacher and there exists necessary reason to place him under suspension. However, while considering the grant of approval, he would not embark upon the merits of charges, as Regulation 39 does not required furnishing proof of charges. Under Regulation 39 Committee of Management is required to forward together with the order of suspension, details of charges, certified copies of complaints, reports and inquiry report, if any, in order to find out as to whether charges are nonest or does not constitute misconduct. The only requirement is that there must exist some prima facie misconduct on the part of the employee and for which regular departmental proceeding is under contemplation or its already initiated. Relevant para no. 5 is being quoted below: - 5. In the instant case it is admitted position that the District Inspector of schools has given approval. The only grouse of the appellant is that opportunity of hearing ought to have been extended while considering the grant of approval. In support of this contention, Sri P.K. Jain, learned counsel for the appellant could not point out any statutory provision wherein such opportunity was necessary. While considering the grant of approval the District Inspector of Schools is required to ensure that there exists some reasonable ground for proceeding against the Head of Institution or teacher and there exists necessary reason to place him under suspension. However, while considering the grant of approval he would not embark upon the merits of charges. While considering the grant of approval the District Inspector of Schools is required to ensure that there exists some reasonable ground for proceeding against the Head of Institution or teacher and there exists necessary reason to place him under suspension. However, while considering the grant of approval he would not embark upon the merits of charges. In other words, he cannot hold a parallel inquiry as Regulation 39 does not require furnishing proof of charges. Under Regulation 39 the Committee of Management is required to forward together with the order of suspension, details of charges, certified copies of complaints, reports and inquiry report, if any, in order to find out as to whether charges are nonest or does not constitute misconduct. The act and the Regulation no where envisages about providing opportunity of hearing at the stage of grant of approval by the District Inspector of Schools. However, the person aggrieved by such resolution of the Committee of Management can approach the District Inspector of Schools straightaway to show that the order of suspension is not justified or warranted in the facts of the case. In the case of Govind Swarup Pandey Vs. Authorised Controller, Adarsh Inter College, Manikpur Banda and another, 1981 UPLBEC 17, this court has held that it is open to the person aggrieved to approach the District Inspector of Schools straightaway and to satisfy him that the order of suspension has been passed illegally or mala fide even undeservedly. No reason or explanation has come before us as to what prevented the appellant from approaching the District Inspector of schools against the decision of the Committee of Management placing him under suspension. It is well settled legal position that the order of suspension is not a punishment and , therefore, while placing a delinquent employee under suspension., no notice or show cause or any opportunity of hearing is mandatory. The only requirement is that there must exist some prima facie misconduct on the part of the employee and for which regular departmental proceeding is under contemplation or is already initiated. 9. The only requirement is that there must exist some prima facie misconduct on the part of the employee and for which regular departmental proceeding is under contemplation or is already initiated. 9. On the parameters of the aforementioned provision what we find in the present case is that this Court on 5th February, 2016 while deciding the Writ Petition No.4185 of 2016 has clearly proceeded to make a mention that the simple question before the District Inspector of Schools was as to whether on the charges against Ram Lakhan Singh, there was prima facie evidence to proceed for a departmental proceeding against him and as to whether on the charges so framed he could be placed under suspension and the District Inspector of Schools instead of addressing himself to on these aspects of the matter, traversed on a completely different tangent and proceeded on a totally wrong direction. In spite of the said observation being made by this Court, on the earlier occasion, even this time we find that District Inspector of Schools has not at all proceeded, as it ought to have been, while proceeding to exercise and invoke the authority of according approval/denial to the resolution of suspension. The District Inspector of Schools in the opening part of the order has given the details of filing writ petitions and the order passed by this Court and thereafter the date fixed in the matter and the written submissions filed have been taken note of and thereafter he has proceeded to take note of the submission of Balbir Singh, Ram Lakhan Singh and thereafter he has proceeded to take note of the rebuttal filed by Balbir Singh and on the basis of written submissions/documentary evidence, he has proceeded to examine the matter and what we find that, in the present case, the District Inspector of Schools at not point of time has addressed himself with all seriousness as to whether their exist prima facie material with the Committee of Management Institution to place Ram Lakhan Singh under suspension and in the present case it appears that District Inspector of Schools has been much more swayed by the defence that has been furnished by the incumbent concerned as allegations have been mentioned that signatures of Manager Balbeer Singh had been forged on experience certificate. The District Inspector of Schools has proceeded to take note of the fact that Ram Lakhan singh has been disputing the same and based on the same submits that prima-facie it is not sustainable. District Inspector of Schools at this juncture has failed to take note of fact that on this subject matter there is a decision of Selection Board dated 14.09.2012 and the said decision till date remains intact though it has been subjected to challenge. The District Inspector of Schools thereafter in reference of all other charges has not tried to find out as to whether there exists prima-facie material to substantiate misconduct on the part of Ram Lakhan Singh rather contrarily District Inspector of Schools has proceeded to rely on the reply submitted by Ram Lakhan Singh. District Inspector of Schools, in the present case, has not at all acted well when he has proceeded to exercise his authority of approval and he just tried to cover up the situation. 10. Before us serious issue has been raised that without any lawful foundation and basis meeting of Committee of Management has been held to be illegal, whereas valid meeting had been held. Authority to place an incumbent under suspension is conferred upon the Committee of Management and the resolution of suspension has to be backed by valid resolution, and once issues is raised that no such valid meeting has been held then Committee of Management would have to substantiate based on record that valid meeting had been held and therein such a resolution has been passed. In the absence of valid meeting the resolution would be of no avail. District Inspector of Schools should ask the Committee of Management to produce all the relevant records to substantiate this fact that meeting had been validly held and therein such a resolution has been passed. In view of this, the decision making process cannot be approved of. The order passed by District Inspector of Schools and the order passed by learned Single Judge to that extent is hereby quashed and set aside. In view of this, the decision making process cannot be approved of. The order passed by District Inspector of Schools and the order passed by learned Single Judge to that extent is hereby quashed and set aside. The matter is remitted back to the District Inspector of Schools to be decided afresh in accordance with law, preferably within two months from the date of production of certified copy of this order and during this interregnum period, as his suspension in question has not been approved, the incumbent would be entitled to function and to receive his salary but as matter relates to the office of Principal and the order passed by U.P. Secondary Education Selection Board has not been set aside and still it holds the field, it is open to the Committee of Management either to take work or not to take work from Ram Lakhan Singh as officiating/ad- hoc Principal. 11. We may also make it clear that assumption of office of officiating/ad-hoc Principal involves assumption of duties and responsibilities of greater importance than those attached to the post of teacher. Right of senior most teacher to function as Principal/Head Master is a statutorily recognised right under Section 18 of U.P. Act No.V of 1982, said right cannot be defeated merely on the whims and fancies of Committee of Management and in exceptional case, the senior most teacher can be denied of his right to function as officiating/ad-hoc Principal as has been indicated in the Full Bench judgement of this Court in the case of Km. Radha Raizada vs. RIGs 1994(3) UPLBEC 1551 . The District Inspector of Schools under the scheme of things provided for under Section 18 of U.P. Act No.V of 1982 is fully empowered to examine the decision of Committee of Management as to whether it is well intentioned decision or it is merely a cloak to defeat the right of senior most incumbent. The District Inspector of Schools should give re-look into the matter as has already been indicated above. With these, Special Appeal is allowed.