Shri K.R. Berry vs Commander O.P. Sharma and Another

Shamsher Bahadur, J.—This petition of K. R. Berry under Article 226 of the Constitution of India against respondent No. 1, Commander Sharma, Principal, Sainik School, Kapurthala, and the Board of Governors, Sainik Schools Society through the Honorary Secretary Deputy Defence Secretary, Ministry of Defence, New Delhi, respondent No. 2, challenges the validity of the order of suspension passed against him on 31st of March, 1964. The order of suspension which is Annexure D is in the form of a letter addressed by the first respondent to the petitioner to this effect:

It is proposed to hold a departmental enquiry into certain charges against you which will be duly notified to you. Pending the aforementioned enquiry I direct your suspension from office from 31st March, 1964, afternoon. During the period of suspension, which will continue till the enquiry is concluded and final decision taken, you will be entitled to the grant of suspension allowance in accordance with the rules or conditions of your service.

I may advert at the outset to clause (xii) of Rule 1 of the General Conditions of Service of the Staff according to which-

The Principal, may with the approval of the Chairman, of the Board of Governors dismiss any member of the staff from service, without notice or compensation, on grounds of misconduct which is considered so grave as to render his continuance in service seriously deter-mental to the interests of the school. Pending the Chairman''s orders, the Principal may suspend him. The person so dismissed shall have the right of appeal to the Board of Governors whose "decision shall be final. If the appeal is upheld by the Board of Governors, he shall be reinstated in service on such terms as the Board of Governors may decide. During the period of suspension, he shall receive a subsistence allowance amounting to half his pay.

The Petitioner was appointed a Crafts master in Sainik School on 10th of July, 1963, and was confirmed in this post with effect from 18th of July, 1962. It seems that soon after Principal Sharma took charge of his present post, there started an under-current of discontent amongst the members of the staff. A letter under the signatures of twenty-two members of the staff including the petitioner was sent to the authorities complaining about the strictness adopted by the first respondent and the attitude adopted by him was compared unfavorably with that of his predecessor Lt. Col. B. K. Dass. Soon after this letter was sent, the petitioner and one Jitender Singh were removed from service with effect from 3rd of August, 1963. The petitioner moved the High Court in writ proceedings (Civil Writ No. 1529 of 1963). As the order of removal was passed without the petitioner being afforded an opportunity to show cause against the action taken against him, the Principal was advised to rescind the order and in the written statement filed in the High Court on his behalf it was stated that the order of removal "has since been withdrawn by the respondent-Principal of the School... and intimation of that fact was sent to the petitioner by a letter dated 17th January, 1964." The petition was accordingly dismissed by the Bench of Dua and Khanna JJ. on 25th of March, 1964, and the following order was passed:

In this case and in Civil Writ No. 1529 of 1903, the impugned orders have since been withdrawn with the result that the petition becomes in fructuous. They are accordingly dismissed as in fructuous. The petitioners are however entitled to their costs.

It may be mentioned that the other petition is that of Jitender Singh who like the petitioner was removed from service also.

The letter to which reference is made in the written statement of 17th of January, 1964 (Exhibit R. 3) is to this effect :

This is to inform you that the order dated 3rd August. 1963, made by the undersigned by which you were removed from the service of the school has been withdrawn and you are hereby required to present yourself for duty on 28th January, 1964 at 10.00 hours.

This action withdrawing the order of removal in your case is without prejudice to the right of the undersigned to direct an enquiry into the charges against you in the manner considered suitable: so as to afford you an opportunity to defend yourself.

The petitioner resumed his duties on 18th of March, 1964, and was ordered to proceed to Delhi on the business of the school next day on 19th of March, 1964. Thereafter he was suspended by order passed by the Principal on 31st of March, 1964 (Annexure D).

It is contended on behalf of the petitioner that the order of suspension being mala fide is liable to be set aside in writ proceedings under Article 226 of the Constitution. Reliance is placed on a recent decision of their Lordships of the Supreme Court in S. Pratap Singh Vs. The State of Punjab, , in which it was held that the legality of the suspension order can be challenged in a petition under Article 226 of the Constitution of India as the impugned orders were illegal being contrary to and not permitted by the relevant service rules and further because they were passed mala fide. The rule which has already been cited does permit a competent authority, which in the present instance is the Principal, to suspend a person pending an enquiry. It is the case of the respondents that an enquiry is pending against the petitioner and the Principal of the Sainik School, Karnal, has already been appointed an Enquiry Officer. It is not denied that the charges framed against the petitioner are identical in terms with those with which petitioner was previously charged and broadly speaking it is against the petitioner that he coerced and compelled the members of the staff to sign the representation making baseless allegations against the Principal. The subject-matter of the charge being a matter for enquiry, I do not wish to say anything beyond this that it looks strange that the petitioner and Jitender Singh should have been removed from service while twenty others had signed the representation along with the persons against whom action was taken. To say that the petitioner obtained by coercive methods the signatures of the other members of the staff does appear odd and unusual but that is a matter which has to be determined by the Enquiry Officer. This is also made the ground for attacking the order of suspension on ground of mala fides. This again is a matter which has to be determined by the Enquiry Officer and this is not the stage at which a finding on this matter is called for. The present case s distinguishable from Dr. Partap Singh''s case(supra) on the ground that the order of suspension has been passed in accordance with rules and no mala fides could be discerned apart from the circumstance that two members of the staff alone have been chosen out of the twenty-two signatories as objects of the proposed punishment.

The further ground of attack is that the petitioner is being charged for the second time for the same defaults. Now, referring once again to Annexure R. 3 it would be seen that the order for removal was withdrawn on the distinct understanding that it is "without prejudice to the right of the undersigned (Principal) to direct an enquiry into the charges against" the petitioner. The former enquiry on advice was discovered to be defective as no opportunity had been given to the petitioner to show cause against the action taken against him. This is not a case which is hit by the principle of double jeopardy.

Reference may also be made to two Supreme Court decisions in T. Cajee v. U. Jormanik Siem AIR S.C. 276 and R. P. Kapur v. Union of India A.I.R 1964 S.C. 767 where it was held that an order of suspension which was not passed as a ''measure of punishment but as an interim measure cannot be made a ground of attack in writ proceedings. The order of suspension makes it clear that the petitioner has been suspended from service pending enquiry against him and during this period he is to be paid the subsistence allowance equivalent to half of his salary in accordance with service conditions. This is clearly not a punishing measure but an interim order passed in accordance with the rules and the rule laid down by their Lordship of the Supreme Court.

In the view which I take of the suspension order, I do not think that this petition under Article 226 is maintainable and I would accordingly dismiss it without any order as to costs. It may be mentioned in parenthesis that Jitender Singh, who had also been suspended has since resigned and his petition (Civil Writ No. 600 of 1964), therefore, has been dismissed as in fructuous.