IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5020 of 2010 Date of decision: 01.11.2010 Pratap Singh …Petitioner. Versus State of H.P. & others ...Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. V.D. Khidtta, Advocate. For respondents No. 1 to 3: Mr. Vivek Singh Thakur, Additional Advocate General. Deepak Gupta, J. (Oral) 1. By means of this petition, the petitioner has challenged the orders whereby he has been directed not to function as Primary Assistant Teacher (PAT) in Government Primary School, Bounch. 2. The undisputed facts of the case are that the petitioner was, after interview, selected as PAT in Government Primary School, Bounch, vide order dated 25.08.2007, Annexure P-4. Pursuant to this order, he joined as such on 27.08.2010. Petitioner entered into an 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- agreement with the Gram Panchayat and continue to work as such. The case against the petitioner is that he unauthorizedly remained absent from 27.06.2010 to 01.07.2010. In fact, show cause notice was issued to him by the Block Elementary Education Officer, Shilai, District Sirmaur, in this regard. The petitioner received the copy of this notice on 3rd July, 2010 and replied that he had gone to take the JBT Entrance Examination on 27.06.2010. According to him, he was falsely implicated in a criminal case by the police and, therefore, could not attend the school up to 1st July, 2010. According to the petitioner, he re-joined on 2nd July, 2010, but his attendance was not marked. Therefore, he sent a legal notice through his counsel on 10th July, 2010. Finally, on 13th July, 2010, the Deputy Director of Elementary Education has passed an order under Section 5j (iii) of H.P. Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003, whereby the petitioner was directed not to attend the school. Subsequently, on 15th July, 2010, a notice was issued to the petitioner as to why action be not taken against him. 3. At this stage, I am not going into the merits of the case. Once an inquiry is contemplated against an -: 3 :- employee, he can be placed under suspension, but no order like Annexure P-14 is envisaged, whereby a person is told not to attend the work. Either the employee should be suspended or should be allowed to continue to work. If an order of suspension has to be passed, the same must be passed in accordance with law. 4. The case of the State is that the petitioner impersonated for his younger brother and appeared in the JBT Examination in place of his younger brother. If that be true, there can be no manner of doubt that such person cannot continue as a teacher, but there must be a clear cut finding in this regard and only on the ground of the case having been filed, the petitioner cannot be directed not to attend the duty, which virtually amounts to his termination from service. I may make it clear that respondent can continue with the show cause notice dated 15th July, 2010 and take action after receiving the reply of the petitioner to the show cause notice. 5. No doubt, under the scheme, it is the Panchayat who is the master, but if the master does not take action against the errant employee, the State cannot be debarred from taking suitable action and in this regard reference may be made to Section 5 (l) of the Scheme, which clearly states -: 4 :- that the Government shall be free to make departure from the terms and conditions of the agreement in the exigencies of public service or in public interest. If the allegations against the petitioner be true, then there can be no manner of doubt that the public interest requires that he should not serve as a teacher. 6. The order, Annexure P-14, is quashed, but the State is permitted to continue with the show cause notice. In case, the Rules permit, then the State can even suspend the petitioner. In case, suspension is not permissible, then the State can after holding the inquiry, as per the agreement/Rules of natural justice, take suitable action in accordance with law. The writ petition is disposed of, accordingly. No costs. (Deepak Gupta) Judge November 1, 2010 (rajni)