Dr. Tulsi Singh Gangwar vs District Inspector of Schools and Others

S.K. Phaujdar, J.—In this application under Article 226 of the Constitution of India, issuance of a writ, in the nature of certiorari has been prayed for to quash an order dated 22.2.97 as per Annexure No. 15 to the writ petition. A further prayer has been made for a direction upon Respondent No. 1 to proceed with case against the Petitioner in accordance with law.

The Petitioner Dr. Tulsi Singh Gangwar has been a Principal in S.R.M. Inter College. Bislapur, Pilibhit, (In short the College) as per a letter of appointment dated 26.6.89. The college was run by the Nagar Palika and the Chairman of the Nagar Palika was ex officio the Chairman of the Managing Committee. There had been some conflict between the Principal and the elected Chairman and there had been cases and counter cases at the instance of each against the other. On an F.I.R. lodged against the Principal at the instance of the Chairman, the Management Committee recorded a suspension order against the principal. This suspension order was not approved by the D.I.O.S. Subsequently another F.I.R. was lodged against the Principal and he was again put under suspension. When the matter went to the D.I.O.S., he had recorded a detailed order making a reference to the earlier criminal case, the earlier suspension and the earlier order of non-approval of the suspension. For the present order of suspension, the D.I.O.S. was of the view that it was not proper to base a suspension on the basis of the first information report alone. He recorded an opinion "Aatah Shri Gangwar Ke Virudh dosh siddh hone ki stithi me hi un ke virudh niyamanusar dandatmak karyavahi kiya jana uchit ho ga." He disapproved the proposal of suspension dated 6.1.97 by his order dated 4.2.97. The D.I.O.S. further directed that the Managing Committee shall not interfere in the work of the Petitioner as Principal of the college.

Subsequently, by an order dated 22.2.97, the same D.I.O.S. informed the Manager of the school as charge-sheet was submitted in the case as informed by the Management by its letter dated 11.2.97 and as the Chief Judicial Magistrate had acted upon it and had issued non-bailable warrant against the Principal, hence the proposal for suspension dated 6.1.97 was accepted and approved.

The Principal Dr. Tulsi Singh Gangwar is the Petitioner in this case and he has arrayed as Respondents the D.I.O.S. Pilibhit, the Manager of the Committee of Management of the college as well as one Rama Kant Bajpai, a lecturer in the college as Respondents. The reliefs have been prayed for against Respondent No. 1, the D.I.O.S., alone with a prayer for quashing his order dated 22.2.97 and for a direction to proceed with the case in accordance with law.

The relevant law is contained in the U.P. Intermediate Education Act, 1921, Section 16G deals with conditions of service of head of institution, teachers and other employees. The head of the institution is not to be suspended by the Management unless in the opinion of the Management the charges against him are serious enough to merit his dismissal, removal or reduction in rank or his continuance in office is likely to hamper or prejudice the conduct of the disciplinary proceedings against him or any criminal case for an offence including moral turpitude against him is under Investigation, inquiry or trial. Such an order of suspension is to be reported to the D.I.O.S. within seven days from the date of the order of the suspension and such order of suspension shall not remain in force for more than 60 days from the date of such order and the order of the Inspector shall be final and shall not be questioned in any court. The proposal in question was dated 6.1.97 and it was communicated to the D.I.O.S. on 8.1.97 and the D.I.O.S. recorded his first order on 4.2.97 and the second order on 22.2.97

The Petitioner challenged the impugned order dated 22.2.97 on the ground that he was not heard In the matter at all. It was contended that when the order was final in terms of Section 16G(7) of the Act, the D.I.O.S. had no authority to review the same and to replace it by another order. Shri R. K. Jain also contended that the D.I.O.S. had clearly indicated that a proceeding could have been insisted only after "dosh siddh", i.e., conviction and as such mere submission of the charge-sheet could not be a ground for reopening the matter.

On behalf of the Respondent Shri Sahal submitted that there is no law which demands that for suspension or for approval of suspension, any hearing is to be given to the delinquent. It was contended that "dosh siddh" was used in the general parlance and not strictly in the legal prospective and it did not mean conviction. It could only mean prima facie establishment of his guilt. It was contended further that the initial order dated 4.2.97 was passed without consideration of the factum of filing of the charge-sheet and when this fact was brought to the notice of the D.I.O.S., he corrected his order. An administrative order, according to Shri Sahai, was open to correction if the earlier order was passed under a mistaken reading of the facts. In any view of the matter, according to Shri Sahai, the management could not be compelled to tolerate a person in the college with such a criminal history and the suspension order cannot be challenged. The maximum relief that can be given to the Petitioner could be by way of protection of his pay and not otherwise.

On the question of giving a hearing before suspension or before according approval to a suspension, I believe there is much force in the submission of Shri Sahai. Suspension is not a punishment. It is an administrative measure to keep away from administrative affairs a delinquent employee keeping in view the circumstances under which he was suspended. The concept of the prior hearing may not be brought into an action of suspension.

The other two points are inter-related. The order dated 4.2.97 of the D.I.O.S. clearly indicated that he had in mind the earlier suspension order which was not approved. He had in his mind the background of litigations and counter litigations between the Manager/Chairman and the Principal and he was of the view that the F.I.R. alone could not be the basis of suspension. He clearly found that the principal might be proceeded against after "dosh siddh''. This term when used legally means conviction and when a legal term has been used by a person who is supposed to have dealt with many cases of administrative action. it must normally be presumed that he had used the term in the legal sense only. Thus the order dated 4.2.97 of the D.I.O.S. could only mean that the management was at liberty to proceed against the Principal after his conviction, which prima facie means his being found guilty by a court of law. Even if this meaning be not given to the term used by the D.I.O.S. Section 16G(7) states that when a matter reached the D.I.O.S. for approval of a suspension order, the order of the D.I.O.S. would be final. Thus the order of disapproval of suspension dated 4.2.97 was a final order and the order dated 22.2.97 does not indicate In any manner that this final order was recalled. It is true that suspension is an administrative order but an administrative authority is also required to act within certain permissible amplitude of freedom to vary his own orders. If an order under the law attains finality, it must not be open to change at sweet will of the official recording the order. If this freedom is given, then the direction of the law that the order of the D.I.O.S. is final would become nugatory.

The matter may be viewed from another angle as well. There was a proposal for suspension and it was required to be approved by the D.I.O.S. The D.I.O.S. did not approve it by his order dated 4.2.97 on 11.2.97 certain facts are brought to the notice of the D.I.O.S. and on the basis of those facts, the D.I.O.S. approves the order for suspension on 22.2.97. The order of suspension by dint of its non-approval had become non-est with effect from 4.2.97. It does not appeal to reason how that non-est order could have been confirmed. It is not the case of the Respondent that after charge-sheet, an order of suspension was made afresh or a report was made to the D.I.O.S. within the prescribed time.

As indicated above, Shri Sahai submitted that the management cannot be compelled to keep in employment an unwanted person who had prima facie committed an offence of moral turpitude. Back to Section 16G of the U.P. Intermediate Education Act, it is found that suspension may be ordered under three circumstances. In the case at our hands, suspension has been proposed on the ground of pendency of Investigation of a criminal case and not on the ground that the continuance in office of the principal by the present incumbent was likely to hamper the conduct of the disciplinary proceedings against him. It may not, therefore, be urged at this stage by the Management that it would not be proper to keep the present incumbent as the Principal till the time the inquiry is concluded.

In my view, it was not open for the D.I.O.S. to have revoked his order dated 4.2.97 and to substitute it by an order dated 22.2.97 as the order had attained a finality on 4.2.97 and there was no existing suspension order awaiting confirmation on 22.2.97. The suspension order dated 22.2.97 must, therefore, be quashed. The writ petition stands allowed accordingly.