Allahabad High Court
Virendra Kumar Rai Tyagi vs State Of U.P. & Others on 27 April, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 03.02.2012 DELIVERED ON 27.04.2012 1. Case :- WRIT - A No. - 3887 of 2012 Petitioner :- Virendra Kumar Rai Tyagi Respondent :- State Of U.P. & Others Petitioner Counsel :- Radha Kant Ojha Respondent Counsel :- C.S.C.,S.P. Pandey 2. Case :- WRIT - A No. - 4887 of 2012 Petitioner :- C/M Janta Inter College & Another Respondent :- State Of U.P. & Others Petitioner Counsel :- S.P. Pandey Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal, J.
1. These are two writ petitions arising out of common order i.e. dated 7th January 2012 passed by the District Inspector of Schools, Azamgarh (hereinafter referred to as the "D.I.O.S."). By means of the impugned order suspension of Sri Virendra Kumar Rai Tyagi, petitioner in writ petition no. 3887 of 2012 has been disapproved but the decision of committee of management of Janta Inter College, Bazar Gosain, Harraiya, District Azamgarh (hereinafter referred to as "the College"), petitioner no.1 in writ petition no. 4887 of 2012 for not handing over charge of Principal to Sri Virendra Kumar Tyagi has been declared valid. He has further directed Sri Virendra Kumar Tyagi to continue to function as Lecturer in the college and for the period of absence he should take steps for submitting leave application before the Manager of the College for payment of salary. Since Sri Virendra Kumar Tyagi has filed writ petition earlier in point of time, therefore, I am taking his writ petition as the first writ petition and shall be referred as "teacher's writ petition".
2. The facts in brief giving rise to the dispute as set up in the teacher's writ petition are as under.
3. The College is a recognized and aided Intermediate institution governed by the provisions of U.P. Intermediate Education Act 1921 (hereinafter referred to as "Act 1921") and payment of salaries to the staff of the college is governed by U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act 1971"). It is also not in dispute that recruitment of the teachers in the college is governed by U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act 1982"). Petitioner Sri Tyagi was appointed as Lecturer (Geography) in the College in 1983. The initial appointment was ad hoc but the same was regularised by order dated 18.5.1994 with effect from 6.4.1991. One Sri Rajendra Prasad Rai was working as Principal and on attaining the age of superannuation, retired on 30.6.2011. The committee of management passed a resolution dated 31.7.2011 to place Sri Tyagi under suspension and constituted an inquiry committee to hold disciplinary inquiry against him. On the other hand, since no decision was taken by the management for making ad hoc arrangement in the vacancy of Principal of the College, the D.I.O.S. passed an order on 01.08.2011 approving Sri Tyagi as ad hoc Principal of the College and countersigning his signatures. Simultaneously the committee of management passed an order on 1.8.2011 placing Sri Tyagi under suspension pursuant to resolution 31.7.2011. The management appointed inquiry sub-committee to hold oral inquiry against Sri Tyagi. A chargesheet was issued by Inquiry Sub-committee on 8.8.2011 and sent it by speed post dated 8.8.2011.
4. Against the order dated 1.8.2011 passed by D.I.O.S. recognizing Sri Tyagi as ad hoc Principal of the College, the management came to this Court in writ petition 47185 of 2011. The same was dismissed for want of prosecution on 25.8.2011. However, it is not in dispute that the said writ petition was thereafter restored on 104.10.2011 and thereafter on the statement given by learned counsel for the petitioner, i.e., the committee of management, it was dismissed with liberty to management to approach Director of Education in view of the powers vested under Section 16E(1) of Act 1921.
5. Sri Tyagi replied chargesheet by letter dated 29.8.2011 a copy whereof is Annexure 8 to the teacher's petition. Order of suspension having neither been approved nor disapproved by D.I.O.S. within sixty days, it ceased to operate thereafter in view of Section 16G(7) of Act 1921 read with Full Bench Judgement in Chandra Bhushan Misra vs. District Inspector of Schools, Deoria and others, (1995) 1 UPLBEC 460. The management passed another resolution suspending Sri Tyagi on 27.9.2011 and consequential order of suspension was issued on 28.9.2011 (Annexure 9 to the teacher's writ petition).
6. Another chargesheet dated 04.10.2011 was issued containing three charges. These charges were different from earlier chargesheet issued to Sri Tyagi on 8.8.2011.
7. The second order of suspension dated 28.9.2011 was challenged by Sri Tyagi in writ petition no. 60676 of 2011. The writ petition was disposed on on 1.11.2011 with the following directions:
"(a) the DIOS shall take appropriate decision on the papers transmitted to it with respect to the resolution of suspension dated 31.7.2011 within 4 weeks from the date certified copy of this order is received at his end;
(b) the DIOS shall take into consider, all the material submitted by the Committee of Management, including the fresh material which, according to the Committee, formed the basis of the resolution dt. September, 2011; and
(c) the Committee of Management shall immediately withdraw the resolution of suspension of the petitioner passed on 28.9.2011, and shall not interfere in the working of the petitioner unless and until the order of suspension is approved by the DIOS as directed above.
(d) the D.I.O.S. shall afford opportunity of hearing to the parties and shall pass a reasoned order."
8. Pursuant to this Court's order dated 1.11.2011 the management vide resolution dated 10.11.2011 withdrew its resolution dated 27.9.2011 to the extent of suspension of Sri Tyagi and Sri Tyagi was directed to take over charge as Lecturer of the College. The management claimed that Sri Tyagi did not join the College.
9. Copy of second chargesheet was also served upon Sri Tyagi and he replied the same by his letter dated 30.12.2011 (Annexure 14 to the teacher's writ petition).
10. The D.I.O.S. pursuant to this Court's order dated 1.11.2011 heard the matter, i.e. on the question of approval of suspension dated 1.8.2011 and passed the impugned order dated 7.1.2012. However, in the meantime, he also passed another order dated 29.10.2011, stating that since Sri Tyagi has been found unsuitable by management to be allowed to function as ad hoc Principle of the College, there is no justification for countersigning his Signatures and he would be entitled to suspension allowance during the period of suspension. The D.I.O.S. further gave recognition to management's resolution dated 29.6.2011 for ad hoc promotion of Sri Rajendra Singh Rai (another Lecturer), though junior to Sri Tyagi and approved his signatures.
11. Sri Tyagi filed writ petition (Teacher's writ petition) challenging order dated 29.10.2011 whereby signature of Sri Rajendra Prasad Rai as ad hoc/officiating Principal of the College was approved and the order dated 7.1.2012 insofar as it has justified non promotion of Sri Tyagi as ad hoc/officiating Principal of the College and required him to function as Lecturer thereat.
12. The committee of management, per contra, has filed writ petition no. 4887 of 2002 (hereinafter referred to as "committee's writ petition") against order dated 7.1.2012, insofar as it has disapproved suspension of Sri Tyagi, and has permitted for payment of salary for the period of his absence with direction to Sri Tyagi to submit leave application to the Manager of the College.
13. Sri R.K. Ojha, Advocate, has put in appearance on behalf of Sri Tyagi while Sri S.P. Pandey, Advocate has appeared on behalf of committee of management of the College. Learned Standing Counsel has appeared on behalf of State of U.P. and other educational authorities, including D.I.O.S.
14. I first take up the issue raked up by the management.
15. It is contended that while considering the question of approval of an order of suspension, the D.I.O.S. cannot sit in appeal over the merits of charges but will have to summarily examine, whether the suspension is bona fide, there are some acts or omission constituting misconduct which needs investigation and that the delay, if any, in the inquiry proceedings is not solely attributable to the management. In the present case, the D.I.O.S. has considered the matter as if it was sitting in appeal over the decision of disciplinary authority and having expressed his opinion on the merits of the charges, has passed the impugned order which is wholly without jurisdiction. Sri Pandey further submitted that in furtherance of examination of question of approval of suspension under Section 16G(7) of Act 1921, the D.I.O.S. himself has no power to suggest whether any punishment ought be imposed upon the teacher or not or whether he should be exonerated by simple warning etc. That is within the authority and jurisdiction of management subject to restrictions imposed under Section 21 of 1982 Act. He submitted that the manner in which D.I.O.S. has considered the question of approval of suspension in the impugned order show that he has totally misdirected himself and the impugned order, therefore, is wholly illegal and liable to be set aside.
16. Per contra, Sri R.K. Ojha, learned counsel appearing for Sri Tragi submitted that virtually there is no charge which has any substance and require any investigation. The entire proceedings are only to oust the senior most teacher from the zone of consideration for officiating as Principal. The power exercised by management is clearly malicious in law hence the D.I.O.S. has caused substantial justice by disapproving the order of suspension. It, therefore, warrants no interference. He also pointed out the manner in which the frequent suspension orders have been issued showing lack of bona fide on the part of management.
17. The short question is whether the impugned order, in so far as it has disapproved the suspension, has been passed by D.I.O.S. validly or not.
18. A Full Bench of this Court has considered the provision of Section 16 G(7) of Act, 1921 in Chandra Bhushan Misra (supra) and observed, if an order of suspension is not approved within 60 days, it would become inoperative. It has however further held that 'inoperative' does not mean that it becomes non-est so as to make the D.I.O.S. functus officio but he has yet to consider whether suspension needs be approved or not even if sixty days have passed. In para 3 and 4 of the judgement the Full Bench said:
"3 According to Sub-section (7) no order of suspension shall "remain in force for more than sixty days" unless approved in writing by the Inspector. 'In force' means 'in operation'. A statutory enactment or an order does not lapse merely because it has not come or brought into force. The only effect of an order, which is not in force is that it is ineffective and inoperative. But such an order is not obliterated and continues to exist though ineffective. Similarly when the order, which was in force, has ceased to be operative due to supervening event, will come into force again and will become effective after the infirmity caused by supervening event is removed. In view of the provisions of Sub-section (7) an order of suspension of Head or a Teacher of an Institution shall remain in force for a period of sixty days from the date of such order even if it is not approved in writing by the Inspector, but in the absence of the approval by the Inspector such an order will cease to operate on expiry of sixty days from the date of the order, although it will continue to exist though inoperative. But if the order of suspension is approved even after the expiry of sixty days, it will come into force again and will become effective immediately on such approval. Any other interpretation will lead to serious consequences. In action on the part of Inspector either deliberate or otherwise may frustrate the object of the provision itself.
4. If the Inspector has not passed any order under sub-section (7) or has passed unsustainable order, this Court at the instance of the person aggrieved can under Article 226 of the Constitution of India pass appropriate order and issue direction to the Inspector for passing the order afresh in accordance with law. Such a writ petition does not become infructuous after the expiry of sixty days from the date of the order of suspension. This Court has the jurisdiction under Article 226 of the Constitution to pass effective order in view of the facts and circumstances of the case."
19. Considering the validity of impugned order passed by D.I.O.S. in the matter of suspension of a teacher this Court finds that on the one hand the D.I.O.S. has found that charges mostly stand proved yet he has take a lenient view on consequence. D.I.O.S. has virtually acted as a disciplinary as well as inquiry officer to examine the correctness of charges himself and thereafter himself has taken the decision that since the teacher has already served for a long period he should be given an opportunity for improvement with the hope that he shall work in the interest of institution as a teacher and shall discharge his duties honestly. To my mind while considering the question, whether an order of suspension passed by management deserved to be approved or not, in purported exercise of power under Section 16G(7), the D.I.O.S. has no such jurisdiction to examine the merits of charge(s) or the appropriate punishment. If he finds no material illegality or lack of bona fide on the part of management in holding departmental inquiry after placing the teacher under suspension, there is a little justification to disapprove suspension by presupposing or assuming upon himself the question of punishment, whether it should be inflicted or not. The order of disapproval of suspension, therefore, the manner in which it has been disapproved by D.I.O.S., vide the impugned order, cannot sustain. It, therefore, has to be set aside to this extent.
20. Now comes the question of right of senior most teacher to function as ad hoc Principal by virtue of his seniority and, whether D.I.O.S. has rightly approved the resolution of management regarding ad hoc promotion of next senior most teacher, Sri Rajendra Prasad Rai.
21. Sri Ojha submits that a senior most teacher cannot be by passed depriving his right to function as ad hoc Principal till a regular Principal is available, except in a very few circumstances, namely, when he is not physically capable of discharging the duties or himself has declined to do so or is under suspension and like other reasons. Reliance is placed on a Division Bench decision in Surendra Pal Singh Vs. Kamlesh Singh and others, 2006(6) ADJ 500 and the Full Bench judgment in Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994(3) UPLBEC 1551.
22. There is no dispute among the parties that ordinarily a senior most teacher has a right to officiate as Principal of the College when a substantive vacancy occurred and regularly selected candidiate from U.P. Secondary Education Services Selection Board is not available. A Division Bench in Surendra Pal Singh (supra) has said in para 2:
"2. The seniormost Lecturer can be by-passed only in the most extraordinary circumstances where, say, he is on the death bed or he has been suspended and such like. The Rule is not that the seniormost Lecturer is ordinarily to be selected as ad hoc Principal, but the Rule is that only in the most extraordinary circumstances can such seniormost Lecturer not be selected as ad hoc Principal."
23. The Full Bench in Radha Raizada (supra) has held that the senior most teacher has to take over the charge of ad hoc Principal. However, it has further observed that in case right of a senior most teacher is to be defeated by superseding him, then in that event, Committee of Management of the Institution will have to issue notice to the incumbent informing and intimating the grounds on which aforementioned incumbent is proposed to be superseded. He is entitled to submit reply. Thereafter the authority has to pass order which is subject to scrutiny by this Court under Article 226 of the Constitution of India.
24. This has been followed subsequently in the case of Dr. Dhirendra Nath Awasthy vs. State of U.P. & noher- 2003 (4) ESC (All) 2069 and Dr. Vijay Laxmi Agarwal Vs. Vice Chancellor, Mahatma Jyotiba Phoole Rohilkhand University Bareilly and others. -2003 (1) ESC (All) 614, where it is observed:
"in exceptional cases if the incumbent is unfit then his right to officiate can be denied."
25. In the present case it is true that after expiry of 60 days from the date of order of suspension and in absence of any order or approval, the order of suspension would cease to operate, but, this Court also cannot ignore that prima facie, findings have been recorded in disciplinary proceedings conducted against Sri Tyagi, finding him guilty of certain acts and omissions constituting misconduct. Even the integrity of Sri Tyagi has not been found unquestionable. This is evident from the impugned order passed by D.I.O.S. himself. In the facts and circumstances of the case having given my thoughtful considerations to the matter in hand, this Court is of the view that here is a case having such extraordinary circumstances which justify denial of ad hoc promotion to senior most teacher Sri Virendra Kumar Rai Tyagi until and unless he comes spotless is set free in disciplinary proceedings.
26. In the circumstances the order of D.I.O.S. approving management's resolution for ad hoc promotion of Sri Rajendra Prasad Rai, being senior most teacher, to officiate as Principal and countersigning his signature warrants no interference.
27. Now the last question comes about the justification of payment of full salary during the period of absence to Sri Tyagi, after order of suspension becomes inoperative.
28. Whether an employee or officer is absent unauthorizedly or deliberately or bona fide are the questions of fact need be examined in the light of relevant events and circumstances of each case. There is no thumb rule applicable in these cases. However, the law is settled that if a person has remained unauthorizedly absent, he cannot claim, as a matter of right, salary for the period of such absence particularly when unauthorized absence also constitute misconduct. Leave is not a matter of right. Therefore, there cannot be a straight direction for payment of salary to a person who has remained absent without sanction of leave by competent authority unless the reasons of such absence are examined and competent authority passes appropriate order. There is no question of taking a view, lenient or strict, inasmuch as the matter has to be examined in accordance with law and not on the whims and caprices or on an individual's sympathetic approach. It is not the question of payment from the pocket of an individual, i.e., D.I.O.S. where he can exercise his discretion with personal whims but here the salary comes from public exchequer. An authority holding a civil post is a trusty of such an office, under an obligation to carefully watch that the public revenue is not misused and wasted on account of unmindful action of anyone. Everybody having authority (D.I.O.S. in this case) in statute is bound to see that nobody may waste public funds and it should not be spent without there being commensurating service and achievement of purpose for which it is supposed to be used. Any other view will amount to a serious breach of public trust in respect to public exchequer.
29. The manner in which D.I.O.S., therefore, has passed order for payment of salary for the period, concerned teacher has remained absent, cannot be appreciated. This Court do not command and approve any individuals assumption and presupposition of right to remain absent if he is not allowed to function on a particular higher post on which he has not been appointed. If somebody is denied appointment on a higher post, though he has a right, it is always open to such person to raise issue before the appropriate forum for redressal of his/her grievance and there is no reason why the grievance would not be considered and decided in accordance with law. But in the meantime, the incumbent has no right to abstain himself from discharging any duties whatsoever on a mistaken belief that if he is not allowed to function on a higher post, he would be justified to stop function or abstain from duty even on a substantive post he was already appointed for which he is claiming salary. The salary is paid for the work and if a person fails to perform his duties intentionally, deliberately and without any justifiable reason, denial of salary by applying the principle of "no work no pay" can justly be applied. At this stage, however, I do not intend to record a finding conclusively since, in my view, this aspect is required to be examined by disciplinary authority/appointing authority/the authority competent to grant leave. However, the order of D.I.O.S. directing for payment of salary to Sri Tyagi for the period he remain absence, cannot be sustained.
30. In view of above, the Writ Petition No. 3887 of 2012 is dismissed and the Writ Petition No. 4887 of 2012 is allowed. The District Inspector of Schools, Azamgarh is directed to reconsider the question of approval of suspension of Sri Virendra Kumar Rai Tyagi in the light of observations made above and in accordance with law after giving opportunity of hearing to all concerned parties. The question of entitlement of salary of Sri Virendra Kumar Rai Tyagi for the period he remained absent, would be considered by committee of management in accordance with law.
31. There shall be no order as to costs.
Dt/-27.04.2012 AK/AKN