HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.13535 of 2007 (O&M) Date of Decision: 28.02.2011 **** HR Sharma . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Amit Kohar, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab Mr. AK Chopra, Senior Advocate with Mr. ND Kalra, Advocate for respondents No.5&6 ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 31.01.2007 (Annexure P25) passed by the Principal Secretary, Education Department, Government of Punjab, whereby his representation has been disposed of ex parte. He also seeks a mandamus for implementation of the order dated 30.08.2005 (Annexure P10) passed by the Director Public Instructions (Secondary Education), Punjab – respondent No.2. CWP No.13535 of 2007.doc - 2 – (2). Suffice it to mention here that the petitioner after serving the Arya Senior Secondary School, Ludhiana, took over as Principal of Doaba Arya Senior Secondary School, Nawanshahr vide appointment letter dated 20.03.1996. The above-stated school receives 95% Grant-in-Aid from the State Government and the petitioner was also against a post duly sanctioned under the Grant-in-Aid Scheme. It appears that on account of group rivalry amongst them, the members constituted two self-styled ‘Managing Committees’ of the School. One of the Managing Committee passed a resolution dated 24.03.2004 withdrawing the financial powers and general administrative control of the petitioner over the school. The aggrieved petitioner represented against that resolution and thereafter approached this Court in CWP No.890 of 2005 which was disposed of on 17.01.2005 (Annexure P8) with a direction to the authorities in the Education Department, Government of Punjab to take some decision on the petitioner’s representation. The Director, Public Instructions (Secondary Education), Punjab, in compliance to those directions, accepted the petitioner’s representation vide order dated 30.08.2005, the operative part of which reads as follows:- CWP No.13535 of 2007.doc - 3 – In this way, I Gian Singh, Director, Education Department (Sec. Education), Punjab, Chandigarh, has reached at the decision that the action taken by the Managing Committee is not according to the rules/instructions. Therefore, it is directed to Managing Committee that the powers/privileges given to the petitioner be restored and the compliance report of this order be sent to this office. (3). It is apparent that to circumvent the above-stated order the Managing Committee headed by one Prem Bhardwaj passed a resolution placing the petitioner under suspension w.e.f. 15.07.2006 (Annexure P15), which the petitioner refused on the premise that it was passed by an unrecognized and incompetent ‘Managing Committee’. (4). The petitioner meanwhile approached the State Government seeking its intervention in the matter. The Principal Secretary, Education Department, Government of Punjab vide the impugned order dated 31.01.2007 (Annexure P25) held that since there was a dispute regarding legitimacy and recognition of the two ‘managing committees’ constituted by the rival factions, the dispute being of civil nature could be resolved by a Civil Court only and the petitioner, as he was allegedly siding with one of CWP No.13535 of 2007.doc - 4 – the ‘managing committee’, might also approach the Civil Court. (5). The aggrieved petitioner has approached this Court. (6). During the pendency of this petition, the petitioner has attained the age of superannuation w.e.f. 31.01.2009. (7). The solitary claim now surviving pertains to the non- payment of full salary to the petitioner w.e.f. 08.08.2005 till he attained the age of superannuation. (8). The undisputed facts are that the service conditions of the petitioner are/were governed by the Punjab Privately- Managed Recognised Schools Employees (Security of Service) Act, 1979 and the Rules of 1981 framed thereunder (in short, ‘the Rules’). The third proviso to Rule 13(b) of the Rules provides that an employee working in a Government- Aided School cannot be kept under suspension for a period exceeding six months without prior approval of the Director (DPI). The petitioner was admittedly kept under suspension vide order dated 15.07.2006 for a period beyond six months and no such approval was ever granted by the DPI (School), Punjab – respondent No.2. CWP No.13535 of 2007.doc - 5 – (9). Counsel for the Managing Committee points that while the petitioner was under suspension some disciplinary action was also taken against him and the matter was sent to the DPI (School) vide letter dated 22.01.2007 (Annexure R-5/14) for his prior approval mandatorily required for imposing major punishment under proviso to Rule 18(3) of the Rules ibid. No such prior approval was also accorded by the DPI (School), Punjab to the Managing Committee. For the ready reference, Rules 13 and 18 of the Rules, are reproduced hereinunder:- 13. Suspension – (Sections 3 and 15) – The appointing authority or any other authority empowered by it in this behalf, may place an employee under suspension- (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where the case against him in respect of any criminal offence is under investigation, inquiry or trial: Provided that xxxx xxxx Provided that xxxx xxxx Provided further that no employee shall be kept under suspension for a period exceeding six months without the prior approval of the Director. xxxx xxxx xxxx xxxx 18. Action on inquiry report – (Sections 15) (1) xxx xxx (2)xxx xxx CWP No.13535 of 2007.doc - 6 – (3) The punishing authority shall after considering the representation, if any, made by the employee, determine what penalty, if any, should be imposed on the employee and make such order as it may deem fit: Provided that no order of dismissal, removal, reduction in rank or within a time scale or termination shall be passed without the prior approval of the Director. xxxx xxxx xxxx xxxx (10). The answer to the question, as to whether or not the suspension of the petitioner was liable to be set aside with consequential benefits after expiry of six months’ period, though is traceable under the Rules, however, it cannot be decided in isolation without first directing the Director, Public Instructions (Schools), Punjab to take a decision on the reference dated 22.01.2007 (Annexure R-5/14) said to have been sent by the Managing Committee for imposition of major penalty on the petitioner. (11). Suffice it to mention here that the above-stated proposal seeking imposition of major penalty on the petitioner was sought at the time when the suspension period of the petitioner had hardly exceeded the six months’ period. CWP No.13535 of 2007.doc - 7 – (12). In these circumstances and without relegating the petitioner to the alternative remedy of civil suit, as suggested by the Principal Secretary, Government of Punjab whose order dated 31.01.2007 (Annexure P25) being totally vague, evasive and cryptic is hereby quashed, I direct the Director, Public Instructions (Schools), Punjab to call upon the records and decide as to :– (i) whether the petitioner’s suspension and/or its continuance beyond the period of six months was justified in law? (ii) whether the disciplinary action held against the petitioner was in accordance with the principles of natural justice and the allegations allegedly proved against him justify the nature of punishment sought to be imposed by the Managing Committee? (13). If the DPI comes to the conclusion that the suspension and disciplinary action initiated against the petitioner were unjustified, he may refuse to accord approval to the suspension of disciplinary action and in that event the petitioner would be entitled to all the consequential benefits along with the arrears of pay which shall be paid directly to the petitioner by the DPI (Schools) after deducting from the CWP No.13535 of 2007.doc - 8 – Grant-in-Aid admissible to the School. If the Director Public Instructions holds otherwise, the necessary consequences will also follow. (14). The appropriate orders shall be passed by the DPI within a period of three months from the date of receipt of a certified copy of this order. The DPI, while deciding the same, shall also take into consideration the resolution said to have been passed by the other Managing Committee. (15). Ordered accordingly. Dasti. 28.02.2011 vishal shonkar (S u r y a K a n t) Judge