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Judgment
B.P. Routray, J.
Heard Mr. S. Palit, learned senior counsel for the petitioner and Mr. T.K. Dash, learned Additional Government Advocate for State opposite parties.
The Petitioner, who served as Principal-in-Charge-cum-Lecturer in Odia of Chitalo Degree Mahavidyalay, Jajpur, has been placed under suspension vide order dated 7th January, 2026 of the Sub-Collector-cum-President of Governing Body (Annexure-13) on the ground that he was in judicial custody for more than 48 hours.
The admitted fact remains that the petitioner was put behind the bar consequent upon registration of Cuttack Vigilance P.S. Case No.40 dated 31st December, 2025 for commission of offences under Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, and Sections 409/120-B of the Indian Penal Code. The petitioner was in custody since 2nd January 2023 till 9th January 2026. Thus, finding the petitioner in jail custody for more than 48 hours, the Sub-Collector-cum-President of Governing Body of the college put him under suspension vide order dated 7th January 2026 under Annexure-13. In said order, the Sub-Collector has also requested the Secretary to Government in Higher Education Department for approval of the suspension.
It is admitted at the Bar by both the parties, that, the petitioner is still continuing under suspension and is not restored to service yet. It is also admitted that the order of suspension of the petitioner as per Annexure-13 is yet to receive approval of the Director of Higher Education or the Secretary to Government in Higher Education Department.
It is submitted on behalf of the petitioner that the order of suspension of the Petitioner at Annexure-13 is against the provisions of applicable service rules in respect of employees of aided educational institutions which requires approval of the Director within a period of 30 days from the date of suspension. Further, suspension, other than a punishment, can only be directed at the initiation or contemplation of disciplinary proceeding. It is also submitted that neither any disciplinary proceeding is contemplated nor any charge has been framed against the petitioner, and the provisions of Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (in short „OCS (CC&A) Rules, 1962‟) are not applicable to such employees of aided educational institutions.
Mr. Dash, learned Additional Government Advocate submits that based on the finding of misappropriation of public money during local fund audit, the FIR was registered by Vigilance Police leading to arrest of the petitioner. The petitioner remained in custody from 2nd January 2026 to 9th January 2026, which is more than 48 hours and therefore, the petitioner is bound to be suspended as per the prevailing practice and Rules made thereof. It is further submitted that though the petitioner is an employee of an aided educational institution, but for that reason only he cannot be escaped from the provisions of OCS(CC&A) Rules in absence of such provision in the Odisha Education (Recruitment and Conditions of Service of Teachers and Members and Staff of Aided Educational Institutions) Rules, 1974 (hereinafter stated as „1974 Rules‟ in short). So, according to learned State counsel, the suspension of the petitioner is inevitable for his detention inside custody for more than 48 hours for which the approval of the higher authority is not necessary at all.
On the backdrop of such factual aspects narrated above, the short point falls for determination is, whether the petitioner, as an employee of aided educational institution, can be suspended without contemplation or initiation of disciplinary proceeding by application of the provisions of the OCS (CC&A) Rules 1962.
Rule 21 of the 1974 Rules reads as under:-
“21.Disciplinary authorities - (1) The Director may impose any of the penalties specified in Rule 20 on any employee:
Provided that the Director shall not initiate any disciplinary proceeding unless the Managing Committee or the Governing Body, as the case may be, refuses or neglects to take disciplinary action against any employee.
(2)Without prejudice to Sub-rule (1) but subject to the provisions of Sub-rules (3) and (4) any of the penalties specified in Rule 20 may be imposed –
(a)in respect of a lower grade employee, by the Headmaster or the Principal, as the case may be; and
(b)in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be:
[Provided that in case of suspension of employees failing under Clauses (a) and (b) the prior approval of the Inspector in respect of any employee serving in a School and of the Director in relation to any other employee is obtained:]
[Provided further that the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at the initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.]
(3)No penalty shall be imposed on any employee by an authority other than the authority mentioned in Sub-rules (1) and (2) hereinafter referred to as the disciplinary authority.
(4)No penalty shall be imposed on a person appointed to any post in an aided institution on deputation from the Government except in accordance with the provisions of Rule 25.”
In Adikanda Jena v. State of Orissa and Others, (1990) 1 OLR 234, where a similar issue arose as the petitioner, who was serving as Principal of an aided institution, was suspended for being inside custody for more than 48 hours, this Court (in Division Bench) have held that the provisions of OCS (CC&A) Rules, 1962 has no application in respect of the employees of aided educational institutions. It has been observed as follows:-
“ xxxxx xxxxx xxxxx
5.The power of suspension of the staff of aided schools is provided under the second proviso to Rule 21(2) of the 1974 Rules and it is stipulated that the managing committee or the governing body, as the case may be, may place an employee under suspension at the initiation of, disciplinary proceedings for a period of thirty days pending approval of the Inspector or the Director, as the case may be. Thus the provision of the Rules empowers the Managing Committee to place an employee under suspension at the initiation of a disciplinary proceeding. Initiation of a disciplinary proceeding does not necessarily mean commencement of such proceeding by service of a charge-sheet, but may also embrace the stages where such proceeding is actively contemplated. So far as the cases of the Petitioners are concerned, however Annexure-1 though called upon them to show cause as to why disciplinary action would not be taken against them, yet asked then to explain only regarding the fact of their casual leave applications having been submitted directly instead of being sent through the jail authorities. It thus can be inferred that the disciplinary proceedings, if at all any, contemplated against the Petitioners were in respect of their conduct of sending the casual leave applications directly. The Petitioner in OJ.C. No. 2095/89 submitted the explanation that he had sent the application prior to his surrendered before the Court. The explanation submitted by the other Petitioner has not been annexed to the writ petition. But at any rate the orders of suspension of the Petitioners do not seem to have proceeded on the footing of their application having been sent directly. The resolution of the managing committee, read with the communication of opposite party No. 2 dated 5-5-1989, placing the Petitioners under suspension candidly discloses that the Petitioners had been involved in a criminal case and were in jail custody for more than forty-eight hours and that the matter had been referred to the Director who had opined that the Petitioners were liable to be placed under suspension in accordance with Rule 12(2) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. Not a word is mentioned in the resolution deciding to place the Petitioners under suspension such decision having been taken in connection with disciplinary proceedings to be initiated against them because of their casual leave applications having been sent directly and not through the jail authorities. It could thus appear that any contemplation of disciplinary proceedings on account of such had as stated in Annexure-1 to the writ petitions was not the deciding factor for placing the Petitioners under suspension and on the contrary suspensions were ordered only because they were in jail custody for more than forty-eight hours and that the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 provide for an employee to be placed under suspension in such circumstances. Even otherwise that the Petitioners could not have been placed under suspension in pursuance of Annexure-1 is apparent since in the very counter affidavit it has been stated that the show cause had been asked as per Annexure-1 before initiation of disciplinary proceedings under Rule 21 of the Rules. As such, since suspension could be ordered only at the initiation of disciplinary proceeding as provided in the second proviso to Rule 21(2), it goes without saying that suspension in the case of the Petitioner was not consequent upon the notices to show cause as per Annexure-1.
6.It being thus the conclusion that the suspensions were ordered only in accordance with the provisions of Rule 12(2) of the 1962 Rules the Petitioners having been detained in Jail custody for more than forty-eight hours, it is to be seen as to how far such Rules are applicable to the Petitioners As a matter of fact, the learned Counsel appearing for the opposite parties candidly admitted the Rules to have no application to the staff of the aided educational institutions. There is also otherwise no provision in the conditions of service of the Petitioner making them liable to be placed under suspension if they are detained in jail custody for more than forty-eight hours in connection with any criminal case. The advice/approval of opposite party No.2 of 5-5-1989 to the suspension of the Petitioners being under the impression that the Rules are applicable to them was thus misconceived and the resolution placing the Petitioners under, suspension being exclusively based upon such view of opposite party No. 2 is equally vulnerable and cannot be sustained. The Petitioners being employees of, an aided educational institution are not ipso facto Government servants and the conditions of service applicable to Government servants are not otherwise applicable to them.
7.Mr. P.K. Mohanty, learned Counsel appearing for the opposite parties, however purported to rely upon a decision of this Court in OJC No. 1392/78 decided on 11-1-1979 Governing Body of Aska Science College and Ors. v. The State Education Tribunal, Orissa and Ors. to contend that the employer has the inherent power of putting an employee out of employment and that the governing body of a college is therefore entitled to suspend an employee when he is implicated in a criminal charge. The question that arose in that case for consideration of the Court was regarding maintainability of an appeal before the Education Tribunal against an order of suspension. It was held that the order of suspension being one not passed by way of punishment but being suspension simpliciter on account of involvement of the employee in a criminal case, an appeal before the Tribunal did not lie. In that connection, the Court held that apart from the question of suspension being ordered as a punishment, every employer has an inherent power to place an employee under suspension, reliance for which was placed upon an earlier decision of this Court in Managing Committee, Ranihat High School and Others Vs. Inspector of Schools. Circle-1 and Another. In neither of the cases, the question of implication of the second proviso to Rule 21(2) was specifically considered for the simple reason that both the decisions were prior to insertion of the proviso which came only on 10-12-1981. While there is no controversy that an employer has an inherent right to place its employee under suspension, yet so far as the power of a managing committee or a governing body is concerned, it has been circumscribed by the proviso to the extent that such suspension can be only ordered at the initiation of a disciplinary proceeding for a period of thirty days pending approval of the Inspector or the Director, as the case maybe. Hence, the managing committee of the governing body would not have an unlimited power to place an employee under suspension unless it is made at the initiation of a disciplinary proceeding and when an order of suspension is challenged as being violative of the provision of the proviso, its validity or otherwise is open to be scrutinized by Court. xxxxxx xxxxxx xxxxx”
In the instant case as stated above, the facts are admitted to the effect that the petitioner has been placed under suspension for the reason that he was inside custody from 2nd January 2026 to 9th January 2026, as mentioned on the face of Annexure-13. It is admitted here that the order of suspension passed by the Sub-Collector in the capacity of President of the Governing Body is without approval of higher authority yet, or to say beyond the period of 30 days. It is not that any charge of misconduct or the statements of imputation have been prepared against the petitioner in terms of Chapter-VI of 1974 Rules directing for the penalties prescribed under Rule 20 thereof. Therefore, as settled in the case of Adikanda Jena (supra), the provisions of the OCS (CC&A) Rules, 1962 cannot be attracted to operate in respect of an employee of an aided educational institution. The special provision for imposition of penalties, minor or major, has been prescribed in Chapter-VI of 1974 Rules, which includes suspension as one of the penalty. No such provision under the 1974 Rules authorizes the authority to exercise suspension other than a penalty without contemplation or initiation of the disciplinary proceeding, subject to such restrictions regarding approval of the same by the authority concerned.
Thus, it is seen that the order of suspension under Annexure-13, which on the face of it is for detention of the petitioner in judicial custody for more than 48 hours, cannot be permitted to stand as it is and accordingly is found liable to be set aside.
The writ petition is thus allowed and the impugned order of suspension dated 7th January 2026 under Annexure-13 is set aside. The petitioner is restored in service with immediate effect.