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2018 DIGILAW 143 (UTT)

Pradeep Kumar v. State of Uttarakhand

2018-04-02

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. The petitioner is a routine grade clerk working respondent no.5, he feeling himself aggrieved by the order dated 02.07.2016 as passed by Respondent No.4, seeks to challenge the same by virtue of the present petition. 2. By impugned order dated 02.07.2016, the petitioner has been placed under suspension for the precise charges of irregularities of non-compliance of orders, causing financial loss to society, making fraudulent signature of Secretary and Manager presenting himself before SLAO as Secretary giving consent for quantum of compensation thus causing loss etc., which have been leveled against him in the impugned order of suspension passed by Secretary, Raja Mahendra Pratap Snaatkottar Mahavidhyalaya, Gurukul Narsan, District Haridwar. By virtue of the order, an Enquiry Committee has already been directed to be constituted and he had been made entitled for the allowances as admissible for a suspended employee. 3. Learned counsel for the petitioner has raised two fold arguments. Firstly, he submits that the suspension order cannot be sustained for the reason that the same has been passed by the Secretary of the College, who is not the appointing authority; secondly, the impugned order of suspension is not tenable as there was no prior approval, was taken from the District Inspector of Schools (now designated as the Chief Education Officer) prior to passing the impugned order. 4. This Court feels that both the arguments so far as challenge being given to the suspension order are untenable. The rational behind it is that in accordance with the Bye-Laws (Annexure-10 to Writ Petition) as applicable to the College in question, which governs the terms and conditions of service of the staff in its sub-Clause (20) of Clause III defines “Manager”. The Manager includes the Secretary, who would be an ex-officio manager of the school. Learned counsel for the petitioner has drawn the attention of this Court to sub-Clause (35) of Clause III which deals with the appointment of the members of the staff which provides that the appointments of staff would be made by the Executive Committee on the recommendations of the Manager. Learned counsel for the petitioner has drawn the attention of this Court to sub-Clause (35) of Clause III which deals with the appointment of the members of the staff which provides that the appointments of staff would be made by the Executive Committee on the recommendations of the Manager. Since the order of suspension has been passed by the Secretary, which is also an office adorned by the Manager, who under sub-clause (35) of Clause III represents the decision of the Executive Committee no anomaly could be found so far as the competence of the Secretary is concerned, to pass impugned order. 5. Learned counsel for the petitioner in support of his second argument submits and he has drawn the attention of this Court to clause 21.02 of Chapter 21 of Hemwati Nandan Bahuguna Garhwal University, Srinagar, First Statute as published in U.P. Extra Ordinary Gazette dated 25th June, 1978. He submits that in accordance with clause (3) for any decision taken under clause 2 of clause 21.02 of Chapter 21, it contemplates that before the decision is communicated to the employee, a prior approval from the District Inspector of School is required to be taken and until the said approval is taken, no such decision taken in clause 2 would be made effective. 6. Though no such pleading has been raised by the petitioner nor any ground has been taken in the light of the statute, but since the same had been argued, its necessary to deal with the contention of the petitioner. 7. There are two reasons why this clause will not be of any benefit to the petitioner because the embargo of sub-clause 3 of clause 21.02 would only be attracted for a decision which is contemplated to be taken under sub-clause (2) of clause 21.02, which provides for the disciplinary proceedings and consequential order of punishment. In the present case, none of the situations are prevailing because sub-clause (3) of Clause 21.02 does not have any independent existence, all actions and conditions for its compliance is only when the action is taken under sub-clause (2) of Clause 21.02. In the instant case, no such action is being taken of awarding punishment. Besides this, the second proviso to sub-clause (3) of clause 21.02 of Chapter 21 reads as under :- “21.02. In the instant case, no such action is being taken of awarding punishment. Besides this, the second proviso to sub-clause (3) of clause 21.02 of Chapter 21 reads as under :- “21.02. (1) Subject to the provisions of these Statues the appointment to the posts referred to in Statute 21.03 shall be made by the Management of the college and appointment to the posts of class four employee shall be made by the Principal. (2) The appointing authority referred to in clause (1) shall have the power to take disciplinary action and award punishment against the class of employee of which he is appointing authority. (3) Every decision of the appointing authority referred to in clause (2) shall, before it is communicated to the employee, be reported to the District Inspector of Schools and shall not take effect unless it has been approved by him in writing: Provided that nothing in this clause shall apply to any termination of service on the expiry of the period for which the employee was appointed: Provided further that nothing in this clause shall apply to an order of suspension pending enquiry, but any such order may be stayed, revoked or modified by the District Inspector of School.” 8. By virtue of the 2nd proviso, the applicability of sub-clause (3) of clause 21.02 of Chapter 21 has been exempted from its applicability in the matters of suspension which is the case in hand. In that view of the matter, the second limb of the arguments of the learned counsel for the petitioner that prior to passing the order of suspension, a prior approval was required to be taken from the District Inspector of Schools is also not accepted. Even apparently, from the order of suspension, it reveals that the Inquiry Committee has already been appointed and the disciplinary proceedings are contemplated against the petitioner which is pending, thus the order of suspension happens to be in contemplation of disciplinary proceedings, for which committee has already been appointed. 9. It is the submission of the petitioner that the Inquiry Officer has not yet been appointed and the disciplinary proceedings are not being carried. 9. It is the submission of the petitioner that the Inquiry Officer has not yet been appointed and the disciplinary proceedings are not being carried. Though this argument of the learned counsel for the petitioner runs contrary to the operative portion of the impugned order of suspension but still looking to the basic principles of law of suspension, a delinquent employee cannot be put under suspension for an infinite period and on account of the fact that since the suspension order itself happens to be that of 2nd July, 2016 sufficient period has been lapsed and according to the learned counsel for the petitioner, no inquiry has been proceeded with thereafter, it would be in the interest of justice that the respondents are directed to conclude the enquiry positively within a period of two months from today, subject to the condition that the petitioner participates in the enquiry and cooperates with the inquiry committee, and the committee would comply with all principles of natural justice provide an ample opportunity of hearing and then only take an appropriate decision. 10. Learned counsel for the petitioner submits that after being placed under suspension on 2nd July, 2016, he has not been paid subsistence allowance. He further submits that even if it has been paid then too looking to the period of suspension it ought to have been correspondingly increased. At this stage, though, it is not a case in the writ petition nor there is any pleading to the said effect raised by the petitioner. As far as the remittance of proportionate subsistence allowance as a consequence of suspension looking to the period under which the petitioner has been placed under suspension it will be open for the petitioner to file a representation only for the purposes of remittance of an appropriate proportionate subsistence allowance for the extended period of suspension. Respondent will consider the same reasonably and pass an appropriate order within a period of three weeks from today. 11. Besides this, no other ground was argued or pressed by the petitioner. 12. Subject to the above observation, the writ petitions stands dismissed. No order as to costs.