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Judgment
S.P. Srivastava, J.—Girls Junior High School, Bindra Bazar, Azamgarh is a Junior High School recognised under the provisions of U.P. Basic Education Act, 1972 and falls within the purview of U.P. Junior High School (Payment of Salary to Teachers and Employees) Act, 1978. Smt. Shanti Vishwakarma, the Respondent No. 3 in Civil Misc. Writ Petition No. 5283 of 1995 held the post of Head Mistress of the aforesaid Junior High School, the Committee of Management running and managing the aforesaid institution issued an order dated 25.4.94 suspending her with immediate effect pending contemplated disciplinary enquiry against her. The District Basic Education Officer, however. vide his order dated 30.1.95 after holding an enquiry himself, being of the view that the charges levelled against the Head Mistress had no force and the order of suspension was baseless and further there was no occasion for the diminution emoluments to which the Head Mistress was entitled to, directed the Management to ensure that Smt. Shanti Vishwakarma, the Head Mistress was paid full salary admissible to a Head Mistress.
On 31.1.95, the District Basic Education Officer passed an other order of consequential nature whereunder taking into consideration the implications arising under the order dated 30.1.95. he refused to recognise and attest the signatures of Smt. Prabhawati Devi as acting Head Mistress of the Junior High School.
Feeling aggrieved by the aforesaid orders, the Committee of Management filed the Civil Misc. Writ Petition No. 5283 of 1995 seeking the quashing of the orders dated 30.1.1995 and 31.1.95. During the pendency of the aforesaid writ petition, the District Basic Education Officer issued an order dated 22.4.95 seeking to implement the earlier order dated 30.1.95. The initiation of the proceedings u/s 3(3) of the U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978 was recommended sending its information to the Assistant Director (Basic) VII Region, Gorakhpur and a direction was issued to the Manager, Girls Junior High School, Bindra Bazar. Azamgarh requiring him not to interfere in the functioning of Smt. Shanti Vishwakarma as Head Mistress of the Girls Junior High School in question. Subsequent to the aforesaid order, the Lekha Adhikari issued a letter dated 26.5.95 informing the management of Junior High School that pursuant to the order dated 22.4.95, the payment of salary, etc., to Smt. Shanti Vishwakarma and other teachers/employees of the Junior High School shall be made under the signatures of Lekhadhikari. This order was in fact an order for operating the joint account maintained, under the provisions of U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978 singly by the Lekha Adhikari, a copy of the said order was also sent to the Assistant Director of Education (Basic) VII, Region, Gorakhpur.
Feeling aggrieved by the aforesaid orders, the Committee of Management of Girls Junior High School filed other Civil Misc. Writ Petition No. 17935 of 1995 seeking the quashing of the orders dated 22.4.95 and 26.5.95. It has further been prayed that the Respondent authority be directed not to make any payment to Smt. Shanti Vishwakarma, Respondent No. 3 by operation of the Joint account singly.
Learned counsel for the Petitioner and the learned counsel for Smt. Shanti Vishwakarma as well as the learned Standing Counsel representing the District Inspector of Schools and other Respondent had Jointly requested that considering the facts and circumstances of the case and the nature of the controversy involved therein, both the writ petitions may be finally heard and disposed of. These writ petitions were heard together and are being disposed of by a common order.
The short question which arises for consideration in this case is as to whether the District Basic Education Officer stands vested with any authority either under the provisions of U.P. Recognised Basic Schools (Junior High School)(Recruitment and Conditions of Service of Teachers) Rules, 1978 or the provisions contained in U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978 to interfere in the order of suspension pending contemplated disciplinary proceedings against a teacher of the Junior High School which falls in the category of the Junior High School in question.
This controversy has been the subject-matter of consideration in the case of Smt. Shyama Varma v. Basic Education Board, U.P., Allahabad and Ors. decided by a Full Bench of this Court, the decision in which case is reported in 1995 (2) UPLBEC 779. The Full Bench, in its aforesaid decision, has held that when an employee is suspended pending or in contemplation of enquiry, Rule 15 of the U.P. Recognised Basic Schools (Junior High School)(Recruitment and Conditions of Service of Teachers) Rules, 1978 is not attracted and no prior approval in writing by the Education Officer is required before ordering suspension. The Full Bench was also of the view that after the employee is suspended, the emoluments to which he is entitled is the subsistence allowance payable in accordance with the Rules which has to be treated as the total of his emoluments which is payable to him during the period of suspension. It was also clarified by the Full Bench that the right of the teacher to get the salary without any deduction is not infringed on account of payment of subsistence allowance during the period of suspension and consequently, the provisions contained in the U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978 cannot be deemed to provide for or deal with the conditions of service of the teachers and the employees meaning thereby that the provisions contained in Section 4 of the U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978 referred to above cannot come to the rescue of the person put under suspension and be taken to vest the concerned authority with the Jurisdiction to pass any such order as is impugned in the present case interfering with the order of suspension of a teacher pending contemplated disciplinary proceedings.
In the aforesaid view of the matter, taking into consideration the ratio of the decision of the Full Bench in the case of Smt. Shyama Varma referred to hereinabove, the impugned orders passed by the District Basic Education Officer cannot be sustained.
However, the Jurisdiction vesting with the management to suspend a teacher in exercise of the powers secured under the statutory provisions contained in the U.P. Recognised Basic Schools (Junior High School)(Recruitment and Conditions of Service of Teachers) Rules, 1978 cannot be exercised in an arbitrary manner or in a manner which may result in the victimisation of the teacher concerned. This statutory power cannot be permitted to be abused in any manner. In the present case, what I find is that Smt. Shanti Vishwakarma had been placed under suspension on 25.4.94. It has been asserted that the impugned order of suspension was a mala fide act of the manager of the Institution and the District Basic Education Officer after holding a thorough enquiry had found that the charges referred to in the order of suspension issued against the Head Mistress were baseless and amounted to victimisation. It is also pointed out that the District Basic Education Officer has held the enquiry into the validity of the allegations against the Head Mistress as contained in the order of suspension pursuant to the direction of this court in its order dated 28.9.94 passed in Civil Misc. Writ Petition No. 31651 of 1994 as well as the order dated 15.7.88 passed by the Division Bench of this court in Civil Misc. Writ Petition filed by Smt. Shanti Vishwakarma (Writ Petition No. nil of 1988 Smt. Shanti Vishwakarma v. District Basic Education Officer (Women), Agra and Ors. decided on 15.7.88.0
Learned counsel representing Smt. Shanti Vishwakarma has stated that till date, no further steps have been taken by the Committee of Management in the disciplinary proceedings. There is nothing on the record to indicate that any charge-sheet has been submitted so far by the Committee of Management.
The provisions contained in the U.P. Recognised Basic Schools (Junior High School)(Recruitment and Conditions of Service of Teachers) Rules, 1978 regulate the service conditions of the teachers employed in a Junior High School contemplated under the Rules. The Junior High School in question falls within the category of the aforesaid Junior High Schools. Under the Rules, the Committee of Management stands vested with the exclusive jurisdiction to deal with the disciplinary proceedings against a delinquent teacher. In this view of the matter, the jurisdiction to hold and proceed with the disciplinary enquiry which stands vested in the Committee of Management cannot be exercised by any other authority. The District Basic Education Officer assumes the Jurisdiction in the matter at a stage when the disciplinary proceedings culminate in an order of punishment which order under the Rules does not become operative so long as it is not approved by the District Basic Education Officer. It is at that stage when the matter is brought to the notice of the Basic Education Officer for getting the proposed punishment approved that he can examine the correctness or propriety of the entire proceedings and either approve or disapprove the proposed punishment or direct to modify the same according to law. It is, therefore, obvious that the enquiry held by the District Basic Education Officer relied upon by the Petitioner cannot be deemed to be an enquiry as contemplated under the Rules which could be initiated and concluded by the Committee of Management only which is the appointing authority of the teacher. The Petitioner, therefore, cannot derive any advantage out of the same. However, the evidence and the material brought on the record of the aforesaid enquiry done by the District Basic Education Officer can be brought on the record of a disciplinary proceedings initiated by the Committee of Management if the same is sought to be relied upon by the Committee of Management or the Teacher concerned, after affording an opportunity to the party against whom such material is sought to be utilised, of adducing evidence in rebuttal thereof.
The impugned order of suspension appears to have been passed in exercise of the Jurisdiction contemplated under the provisions contained in U.P. Recognised Basic School (Junior High School)(Recruitment and Condition of Service of Teachers) Rules, 1978. It may be noticed that where there is power to suspend either in the contract of employment or in the statutes or the rules framed thereunder, the suspension has the effect of temporarily depriving the employee concerned of the office held by him prior to the order of suspension and the employee is not bound to render service and the master is not bound to pay. However, the order of suspension itself postulates the continuance of the relationship of master and servant and its real effect is that though the employee continues to be the member of the service, the permission to work and discharge the duties attached to the office held prior to the passing of the order of suspension stands withheld, providing only a subsistence allowance to the concerned employee which is much less than the salary payable to him. It is, thus, a temporary deprivation of office but by reason of suspension, the person does not lose his office nor does he suffer in degradation. He only ceases to exercise the powers and discharge the duties for the time being.
It may further be noticed that the provisions contained in the Rules referred to above authorise the management to suspend an employee of the School pending disciplinary proceedings or even where the disciplinary proceedings are contemplated. The departmental proceedings, however, should be concluded with reasonable diligence and within a reasonable period of time. In its decision in the case of O.P. Gupta Vs. Union of India (UOI) and Others, , the Apex Court had indicated and emphasised that if such a principle was not to be recognised, it would imply that the employer is being vested with a totally arbitrary and unfettered power of placing the employee under disability and distress for an indefinite duration. Such a situation, it seems to me, has to be avoided.
Considering the facts and circumstances brought on record, this court finds it appropriate to direct the Petitioner to conclude the disciplinary proceedings against Smt. Shanti Vishwakarma within a period not later than four months, failing which the order of suspension dated 25.4.94 shall stand revoked. In view of what has been indicated hereinabove, the impugned orders dated 22.4.95. 26.5.95, 30.1.95 and 31.1.95 are quashed and the Committee of Management, Girls Junior High School, Bindra Bazar, Azamgarh is directed to conclude the disciplinary proceedings against Smt. Shanti Vishwakarma, the Head Mistress of the said Junior High School pursuant to the order of suspension dated 25.4.94 within a period of four months in accordance with law falling which the order of suspension dated 25.4.94 passed against the said Head Mistress shall stand revoked.
There shall be no order as to costs.