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Judgment
Aloke Chakrabarti, J.—The Respondent No. 2, a teacher in Mahatma Gandhi Vidyalaya, Inter College Vijai Nagar Kanpur Nagar was arrested in connection with the Criminal proceeding under Sections 304B and 498A of the Indian Penal Code on an incident of murder of his daughterinlaw and was taken in custody on 2721997. The petitioner was suspended on 1431997 by the Committee of Management and the same was approved by the District Inspector of Schools on 2641997. But, the District Inspector of Schools cancelled the said approval order on 851997. The Committee of Management passed order dated 1351997 effecting the suspension of the Respondent No. 2 until further orders. By order dated 13101997 the Joint Director of Education directed payment of salary to the Respondent No. 2. In respect of realisation of such payment, order dated 3111997 was passed directing single operation of the Accounts. Four Writ Petition Nos. 19779/97, 22857/97, 34934/97 and 37355/97 were filed by the respective parties against the aforesaid orders. Interim order was passed in Writ Petition No. 37355 of 1997 against the order directing single operation which was later on set aside in Special Appeal No. 950 of 1997. Ultimately by judgment and order dated 28101998 Hon''ble S. Rafat Alam, J. decided all the aforesaid writ petition directing the District Inspector of Schools to pass a fresh order on the application of the Respondent No. 2 under subsection (8) of Section 16G of the U.P. Intermediate Education Act after affording opportunity of hearing to the management.
In compliance of the said order the District Inspector of Schools passed impugned order dated 1241999 revoking approval to the suspension of the Respondent No. 2.
Heard learned counsel for the petitioner, Mr. P.N. Saxena, learned counsel for the Respondent No. 2 and learned Standing Counsel.
The petitioner''s contention is that the provision of sub section (8) of Section 16G restricts consideration only to the aspect of delay and in the impugned order the said aspect has not at all been considered. It is contended on behalf of the petitioner that in such circumstances, the impugned order is bad as it failed to comply with the direction of this Hon''ble Court as also the sole requirement of provision of subsection (8) of Section 16G. Learned counsel for the petitioner further contended that the impugned order was passed revoking approval only on two grounds that the criminal proceeding is relating to an incident amongst the members of a family and does not relate to students, teachers and guardians and the name of Respondent No. 2 was not mentioned in the initial first information report. It is contended that such grounds are not relevant for the purpose of considering the approval of suspension.
Learned counsel for the petitioner further contended that in view of stay order granted, the Respondent No. 2 did not suffer financial loss for long period and he was being paid salary under the court''s order and therefore, on the ground of delay such approval could not be refused.
On behalf of the Respondent No. 2 it has been contended that such criminal proceedings normally remain pending for long time and there is no justification for keeping the Respondent No. 2 under suspension so long the criminal proceeding remains pending. It is further contended that similar provision of suspension as contained in Section 16G (5) (c) is equivalent to provision as contained in subrule (1A) of Rule 49A of the Civil Services (Classification, Control and Appeal) Rules as applicable in State of Uttar Pradesh and therefore, interpretation of the said provision of Rule 49A as made in the case of Brijesh Bahadur Singh v. State of U.P. and others, 1994 (1) UPLBEC 348, has to be applied in the present case.
The learned counsel for the Respondent No. 2 states that though the Respondent No. 2 denies the allegations on facts in the writ petition, still the writ petition can be disposed of finally at this stage without filing any counteraffidavit, as the questions raised on behalf of the petitioner are on law.
After considering the aforesaid contentions, I find that the suspension in the present case is governed by the law as contained in subsections (5), (6), (7) and (8) of Section 16G of U.P. Intermediate Education Act. The said provisions are quoted below :
"5(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 the 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 may be 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 for 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 or make representation revoke an order of suspension passed under the Section."
A perusal of the aforesaid provision makes it clear that the Management is empowered to suspend a teacher when any criminal case for an offence involving moral turpitude against such teacher is under investigation, enquiry or trial. It is enabling provision empowering the Management to pass suspension order and apart from above no other requirement has been specified there. Subsection (6) provides for report by the Committee of Management of such suspension to the Inspector within seven days from the date of order of suspension. Subsection (7) provides that such suspension shall not remain in force for more than sixty days unless approved in writing by the Inspector. In sub section (8) the Inspector has been empowered to revoke an order of suspension if he is satisfied that the disciplinary proceedings against such teacher are being delayed for no fault of the teacher.
In the present case the criminal case is pending in respect of Respondent No. 2 under Sections 304B and 498A of the Indian Penal Code. In the judgment of this court dated 28101998 relating to suspension in earlier proceeding between the parties it has already been held that the said charges involve moral turpitude.
Therefore, the requirements of law are satisfied and exercising such power the Management has passed the suspension order. The contention has been made on behalf of the Respondent No. 2 relying on the law decided in the case of Brijesh Bahadur Singh (supra). The said judgment relating to suspension under Rule 49A of Civil Services (Classification Control and Appeal) Rules is applicable in Uttar Pradesh. The relevant portion of the said Rules is quoted below:
"49A (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority:
(1A) A Government servant in respect of against whom an investigation inquiry or trial relating to or criminal charge is pending may at the discretion of the appointing authority under whom he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.
(2) A Government servant shall be deemed to have been placed, or as the case may be, continued to be placed, under suspension by an order of the appointing authority
(a) with effect from the date of his detention, if he is detained in custody whether or otherwise for a period exceeding forty eight hours and Specific reference has been made to the observations made in Paragraph Nos. 8 and 9 of the said judgment for contending that unless such requirements are satisfied, suspension order cannot be issued.
A comparison of the provision of Clause (c) of subsection (5) of Section 16G and subrule (1A) of Rule 49A, clearly indicates that under Rule 49A (1 A) the law itself provided certain requirements and therefore, the judgment proceeded on that basis. In clause (c) of subsection (5) of Section 16G those requirements have not been provided by law. Only requirement of pendency of a criminal investigation, enquiry or trial for an offence involving moral turpitude have been satisfied in the present case. Therefore, the observation made in the background of law in the case of Brijesh Bahadur Singh (supra) cannot guide the decision in the present proceeding. In Paragraph No. 9 of the said Judgment the learned Judge specially referred to said requirement in following language.
"In my opinion, the purpose and object of the aforesaid rule is not to pass mechanical order otherwise the words used, would have been different."
In the present case, the Management has formed an opinion exercising its administrative power and as there is no violation of any law, no reason is available to hold the same to be illegal.
In the impugned order the only consideration appears to be continuance in service of the teacher concerned will not effect administration of the school and no fruitful purpose will be served if the teacher concerned continues under suspension for a long period. Grant of bail in the criminal proceeding also was under consideration of the authority in passing the impugned order. In my view such consideration cannot entitle the authority to revoke approval of a suspension in present facts.
Possibility of continuation of proceeding for a long time cannot also weigh at present. Such an interpretation on general assumption that criminal proceedings remain pending for a long time and therefore, suspension is not to be approved, will make the provision of Section 16G (5) (c) nugatory.
Undoubtedly, if a proceeding remains pending for a long time, the same can be considered while considering the approval of a suspension. But, at this stage the same being not the fact involved and there being no finding of delay in the proceeding, no interference could be made revoking approval.
In view of aforesaid findings, the impugned order cannot stand. Therefore, the writ petition is allowed. The impugned order dated (sic), 1999 at Annexure No. 1 to the writ petition is hereby quashed.