Disposed

Ghanshyam Pandey v. Joint Director of Education and 3 Others

Allahabad HC7 Dec 2018WRIA/20144/2018

Case brief

AI extract

What is this about?

Writ petition challenging the approval of a suspension order placed against an Assistant Teacher after the statutory 60-day limitation expired. The Court held the order valid upon late approval and directed completion of proceedings within three months.

What did the court decide?

Suspension order approved; Committee of Management directed to conclude disciplinary proceedings within three months.

Ghanshyam Pandey Vs Joint Director of Education and… — Service and Employment | Allahabad HC (2018)

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Reserved

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Case :- WRIT - A No. - 20144 of 2018 Petitioner :- Ghanshyam Pandey Respondent :- Joint Director Of Education And 3 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Munna Kumar Singh

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Hon'ble Dinesh Kumar Singh,J.

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The present petition has been filed, impugning the order dated 25^th August, 2018 passed by Joint Director (Education), VIIth Division, Gorakhpur whereby the Joint Director has approved the resolution of Committee of Management of Sri Devkali Nath Sanskrit Uchchttar Madhyamik Vidyalaya, Barpar, Deoria (hereinafter referred to as the “Institution”) dated 26^th January, 2018, placing the petitioner, Assistant Teacher in the Institution (Officiating Principal) under suspension.

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The Institution is recognized under The Uttar Pradesh Board of Secondary Sanskrit Education Act, 2000 (hereinafter referred to as “the Act, 2000). Employees of the Institution are being paid their salaries from the ‘State Fund’ under the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as “the Act, 1971”). Appointments and service conditions of Principal, Headmaster, Teachers and other employees are governed by the Uttar Pradesh Secondary Sanskrit Education Council Rules, 2009 (hereinafter referred to as “the Rules, 2009) as amended in the year 2010.

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The Institution imparts education from Class Prathama to Class Madhyama i.e. Class-V to Class-XII. After the regular vacancy of Principal arose in the Institution, the petitioner, an

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Assistant Teacher was appointed as Officiating Principal of the Institution.

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The Three Members Enquiry Committee was constituted to enquire the charges of financial irregularities and misappropriation of funds by the petitioner. The Three Members Enquiry Committee in its report dated 26^th January, 2018 found the allegations against the petitioner established. The Committee submitted its report to the Committee of Management along with annexures for taking appropriate decision in the matter. The Committee of Management of the Institution held its meeting on the same day i.e. 26^th January, 2018 and considered the report of the Three Members Enquiry Committee and resolved to place the petitioner under suspension. Pursuant to the resolution of the Committee of Management of the Institution, the Manager of the Institution vide order dated 1^st February, 2018 placed the petitioner under suspension. The papers, including the resolution and suspension order, were sent to the Joint Director (Education) for approval.

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The matter remained pending before the Joint Director (Education) for considerable time. The Committee of Management of the Institution approached this Court by way of filing a writ petition bearing Writ-A No. 12079 of 2018 (C/M Sri Devkali Nath Sanskrit Vidyalaya, Barpar, Deoria Vs. State of U.P. and others). This Court vide order dated 18^th May, 2018 disposed of the said petition filed by the Committee of Management of the Institution and directed the Joint Director (Education) to take a decision for approving the resolution of the Committee of Management of the Institution, placing the respondent no. 5 (present petitioner) under suspension within a period of two months from the date of presentation of certified copy of the order. It was also directed that the petitioner be heard by the Joint Director (Education) before passing order. The Joint

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Director (Education) has passed the impugned order, after hearing the petitioner, Committee of Management of the Institution and District Inspector of Schools.

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Heard Mr. Indra Raj Singh, learned counsel appearing for the petitioner, Mr. Munna Kumar Singh, learned counsel appearing for respondent no. 4 and learned Standing Counsel representing respondent nos. 1 to 3. Learned counsel for the parties have filed their written submissions , which are on record.

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Learned counsel for the petitioner has submitted that the suspension order as well as its approval vide impugned order dated 25^th August, 2018 passed by the Joint Director (Education) are illegal as the suspension order does not mention that the petitioner has been placed under suspension pending disciplinary inquiry or in contemplation of disciplinary inquiry. The suspension order is in fact punitive in nature and, therefore, liable to be quashed. The learned counsel has placed reliance on the judgment of this Court in Meera Tiwari (Smt.) Vs. Chief Medical Officer, UPLBEC 2001 3 2057 (DB) and in Radhey Shyam Srivastava Vs. State of U.P., IPLBEC 2008 2 64 (DB).

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Shri Singh, appearing for the petitioner, has further submitted that the suspension order remains effective for sixty days and thereafter under Section 26(6) of the Act, 2000, the suspension order becomes inoperative, if it is not approved within the said period. He submits that the suspension order dated 1^st February, 2018 became inoperative on 2^nd April, 2018 as it was not approved by the Joint Director (Education) within 60 days. The Joint Director (Education) has no authority to revive the suspension order which had already become inoperative by efflux of time. Therefore, the impugned order of approval dated 25^th August, 2018 is void-ab-inito. He submits that more than seven months have elapsed since the petitioner was placed under

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suspension by the Committee of Management of the Institution vide order dated 1^st February, 2018 and since then, the proceedings are unnecessarily being delayed. Under Section 26(7) of the Act, 2000, the Joint Director (Education) can even revoke the approved suspension order at any time in case he is of the opinion that the disciplinary proceedings are being delayed by the Committee of Management of the Institution without any fault of the delinquent employee. The Joint Director (Education) should not have approved the suspension order at this distant point of time when the disciplinary proceedings have not even been commenced against the petitioner. Under Rule-49 of the Rules, 2009 charge-sheet is required to be served within a period of 15 days from the date of suspension. The delinquent employee should be provided one month’s time to file his response to the charge-sheet. Inquiry is to be completed thereafter within a period of one month from the date of submission of the written statement by the delinquent employee. The entire disciplinary proceedings should be completed within a period of three months, but the Committee of Management of the Institution has not served the charge-sheet even after lapse of 7 months from the date of suspension order and, therefore, the Joint Director (Education) ought to have considered these aspects. The impugned order appears to have been passed in a mechanical manner, without considering all relevant facts and circumstances. 9. On the other hand, Shri Munna Kumar Singh, learned counsel representing respondent no. 4, has submitted that the Committee of Management of the Institution in its meeting held on 29^th October, 2017 resolved to set-up an inquiry against the petitioner for several serious allegations against him. To enquire the charges, the Committee of Management of the Institution had constituted the Three Members Committee headed by Shri Daya Shanker Pandey. The charge-sheet dated 29^th October, 2017 was

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served upon the petitioner and the petitioner submitted reply to the charge-sheet on 11^th November, 2017. Three Members Enquiry Committee has found the charges proved against the petitioner and, therefore, the suspension order is not without any basis. The Joint Director (Education) did not take decision on approval of the suspension order of the petitioner and he has taken decision only after this Court issued direction vide order dated 18^th May, 2018 passed in Writ-A No. 12079 of 2018. Thus, there is no delay on the part of the Committee of Management. The Committee of Management of the Institution will conclude the disciplinary proceedings against him as soon as possible.

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Shri R. P. Dubey, learned Additional Chief Standing Counsel, representing the respondents, State authorities, has submitted that if the suspension order is not approved within a period of 60 days, it becomes inoperative after lapse of 60 days and it would become effective only after its approval by the competent authority. The learned counsel has placed reliance on the Full Bench judgment of this Court in Chandra Bhushan Misra Vs. District Inspector of Schools, Deoria and others, (1995) 1 UPLBEC 460 . While interpreting the provisions of Section 16 G (9) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to the “Act, 1921”) para-materia to provisions of Section 26(6) of the Act, 2000, this Court has held that in absence of approval of suspension order by the District Inspector of Schools, the order will cease to operate on expiry of 60 days from the date of the order. However, the suspension order would continue to exist, but inoperative. Once the suspension order is approved even after 60 days, it will come into force and will be effective after its approval.

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I have considered the submissions advanced on behalf of the parties and perused the record of the petition and the written submissions filed by the parties.

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The petitioner is charged with serious allegations. The Three Members Enquiry Committee has already concluded that the charges are prima facie established against the petitioner. The charge-sheet has been served upon the petitioner and after receiving the report of the Three Members Enquiry Committee, the petitioner has been placed under suspension on 1^st February, 2018. The Joint Director (Education) has approved the suspension order vide impugned order dated 25^th August, 2018.

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I do no find any substance in contention of learned counsel for the petitioner Shri Indra Raj Singh that since the suspension order does not mention that it has been passed pending disciplinary proceedings or in contemplation of disciplinary proceedings, it is a punitive order. The charge-sheet has already been served upon the petitioner before suspension order was passed. Three Members Enquiry Committee has already found the charges prima facie established against the petitioner and, therefore, mere omission of mentioning this fact ‘pending disciplinary proceedings’, when the charge-sheet has already been served upon the petitioner, will not make the suspension order dated 1^st February, 2018 punitive.

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This Court has held in Chandra Bhushan Misra Vs. District Inspector of Schools, Deoria and others (supra) that if the suspension order is not approved by the competent authority within a period of 60 days, it becomes inoperative, but it does not vanish and once it is approved, it becomes effective from the date of approval. In this case, the Joint Director (Education) did not approve the suspension order for considerable time and, therefore, the Committee of Management had to approach this Court by way of filing Writ–A No.12079 of 2018 (supra). Thereafter, the Joint Director (Education), after hearing the parties, including the petitioner has approved the suspension order. I do not find any merit in the submission of learned

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counsel for the petitioner that the suspension order became inoperative on 1^st April, 2018 and the Joint Director (Education) could not have granted approval of an inoperative order.

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The other submission of learned counsel for the petitioner that the disciplinary inquiry should have been completed within three months and since it has not been completed, the Joint Director (Education) should not have granted approval for placing the petitioner under suspension. The disciplinary proceedings could not be completed for the reason that the suspension order was not approved by the Joint Director and the Committee of Management of the Institution had to approach this Court by way of fling Writ – A No. 12079 of 2018 which was disposed of by this Court vide order dated 18^th May, 2018 with certain directions. Thereafter, the Joint Director (Education) has approved the suspension order vide impugned order dated 25^th August, 2018. The charge-sheet has already been served upon the petitioner. The petitioner has filed his reply to the charge-sheet. I, therefore, direct the Committee of Management of the Institution to conclude the disciplinary proceedings against the petitioner within a period of three months from the date certified copy of this order is produced before it and pass appropriate order on conclusion of the disciplinary proceedings.

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With the above observations/directions, the petition is dispose of finally.

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Order Date :-

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MVS Chauhan/-

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Judgment pronounced today under Chapter VII Rule 1(3) of the Allahabad High Court Rules, 1952.

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(Ajit Kumar, J.) 07.12.2018

Ghanshyam Pandey v. Joint Director of Education and 3 Others

Case brief

What is this about?

What did the court decide?

Ghanshyam Pandey v. Joint Director of Education and 3 Others

Case brief

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What did the court decide?

What the court decided

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