C.W.P. No.889 of 2010 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.889 of 2010 Date of Decision.29.03.2010 Dr. Krishna Chaudhary w/o Zile Singh, Principal, M.K.J.K. Mahavidyalaya, Rohtak (Haryana) ......Petitioner Versus State of Haryana through its Financial Commissioner & Principal Secretary to Government Haryana, Education Department, Haryana Civil Secretariat, Chandigarh and others ....Respondents Present: Mr. Girish Agnihotri, Senior Advocate with Mr. Binayjeet Sheoran, Advocate for the petitioner. Mr. Ravi Dutt Sharma, DAG, Haryana for respondent Nos.1 and 2. Mr. D.S. Patwalia, Advocate for respondent Nos.3 and 4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The writ petition seeks for issue of mandamus directing the respondents to release the complete salary of the petitioner with all the consequential benefits since 07.03.2009 till the date of filing of the writ petition. The principal prayer is accompanied with ancillary reliefs. The matter that falls for consideration on admitted facts is the entitlement of the C.W.P. No.889 of 2010 -2- petitioner to claim full salary beyond a period of six months when she had been kept under suspension. It is not denied that the petitioner has been removed from service after an enquiry and after obtaining permission from the Government. This decision itself appears to be a subject of independent challenge and for the purpose of our case, it is sufficient, if we take the petitioner's case for consideration only between the period when there were express orders permitting the suspension of the teacher to avail up to 07.03.2009 till the date of removal from service. 2. Section 7A of the Haryana Affiliation Colleges (Security of Service) Act, 1979 sets out an outer limit of a period of six months for keeping an employee under suspension when a Managing Committee proceeds to take disciplinary proceedings. The Section requires that a detailed report to the Director-cum- Commissioner shall be sent at least before one month before the expiry of six months specifying reasons warranting the extension of the suspension. The sub-section 2 of Section 7A enjoins the Director-cum-Commissioner to pass an order after considering the report of the Committee. In this case, it appears that after a report was given, there was a prayer for an extension of suspension when the Director-cum-Commissioner had not given his decision, and the suspension period had been extended upto 07.03.2009. The Director-cum-Commissioner, however, did not C.W.P. No.889 of 2010 -3- pass an order within a period of six months or the extended period and consequently, the petitioner could not join duty, although there was no order of suspension pending consideration. Since she was ultimately removed from service on 22.01.2010, the claim of the petitioner is that she should be paid salary from 07.03.2009 to 22.01.2010. 3. To the claim of the petitioner, the management of the education institution would contend that the petitioner has relied on an order dated 07.08.2009 purporting to direct reinstatement and signed by the General Secretary of the governing body. This order in original, according to the learned counsel, Sh. Patwalia was not on the file at all and the petitioner had merely fabricated this document to secure a false evidence as though she had a right of resumption in an office with the connivance of the Secretary. Learned Senior Counsel appearing for the petitioner, Sh. Agnihotri would contend that this is essentially a matter of stand-off between the office bearers of the governing body with the General Secretary on one side and other members pitted against her on the other side and that she has herself no role to play in the manner in which the order had been issued. It is not possible for this Court in proceedings on affidavits to find one way or another whether the petitioner was, in any way, acting in connivance with the General Secretary to secure this office order. In my view, the C.W.P. No.889 of 2010 -4- approach shall only be to see whether even if officer order dated 07.08.2009 is completely kept out of reckoning; whether the petitioner would be entitled to claim full salary between the period from 07.03.2009 to 22.01.2010, when the admitted contention of both parties is that there had been no subsisting order of suspension at that time. 4. Learned counsel appearing for the 3rd respondent strenuously contends that the language of Section 7A is such that a Managing Committee if it considers expedient to keep an employee under suspension beyond a period of six months, it shall submit a detailed report to the Director-cum-Commissioner at least one month before the expiry of six months and if such a report had been given, the Director-cum-Commissioner always has a power to pass an order granting such an extension or whether she shall be reinstated, within a fortnight from the date of receipt of the order. The attempt of the learned counsel was, therefore, to show that till the Director-cum-Commissioner passes an express order directing a reinstatement, it cannot avail to the teacher to contend that beyond a period of six months, the suspension period automatically comes to an end. I do not see the logic behind such an argument, for even Clause 2 in its full form states that if the Director-cum-Commissioner after considering the report passed an order granting an extension, nothing further would remain. But if he does not C.W.P. No.889 of 2010 -5- choose to pass an order or has failed to pass an order, the consequence is spelt out in the latter part of sub-section 2, which reads “failing which the employee concerned shall be deemed to have been reinstated on the expiry of the aforesaid period." Therefore, the onus is cast on the authority to pass an order of extension and if such extension is not given, it shall follow automatically that she is deemed to be reinstated. It is irrelevant that an order expressly reinstating a teacher is not passed. 5. The Government and his functionaries who are arrayed as respondents No.1 and 2 would contend through learned counsel, Sh. Sharma that there had been no prayer for extension of suspension after 07.03.2009 and by the only fact that the Director-cum-Commissioner took a decision beyond a period of even 9 months, it ought not to enable the petitioner to make a contention that she is entitled to the salary during that period. The principal liability of payment of salary to a teacher shall always be on the management as held by the Hon'ble Supreme Court in Anandi Mukta Vs. R.Rudani (1989) 2 SCC 691. Cases where institutions obtain grants in aid from the Government for payment of salary is really a matter between a management and the Government and as far as the teacher is concerned, the perceptible face to whom a claim could be allowed could only be the management. In this case, in my view, the entitlement C.W.P. No.889 of 2010 -6- of the petitioner to the salary beyond the period of 9 months till when there was a lawful order of suspension in operation, there cannot be a dispute to her entitlement at all. The management would contend that they had done what was necessary to be done under Section 7A by placing the report of the managing committee with the Director-cum-Commissioner and seeking for extension of time of suspension initially after the six months period was about to expire, it should have been only the duty of the Director-cum-Commissioner to take a decision on the report. The Director-cum-Commissioner, Higher Education that passed an order shall perforce exercise his authority within the time which the law itself sets out. If the authority had not passed an order within time nor had it extended the period of suspension, it shall not be competent for such an authority to contend that the Management had not sought for extension of time and therefore, there was no responsibility on his part to perform his duty within the time prescribed under the statute. As far as the petitioner is concerned, her entitlement is secured against the management as well as the State and its functionaries. Between the management and the State, there could be independent issues for consideration as to whether State could get away from its own inaction through its functionaries. I do not want to join issues on such a point and I will afford to the petitioner a right of entitlement of full salary against all the respondents jointly C.W.P. No.889 of 2010 -7- and severely leaving it to the management to work its own right against the Government, if ever the amount is recovered from them, if the law would so permit. The amount shall be calculated and paid to the petitioner for the period from 07.03.2009 to 22.01.2010 within a period of eight weeks from the date of receipt of copy of the order, failing which the amount shall bear interest @9% per annum. This shall not, in any way, have a bearing to the criminal prosecution alleged to have been taken against the petitioner for alleged acts of fraud and deception. This shall also be de hors the consideration of whether the office order made on 07.08.2009 is brought out at the connivance of the petitioner or not. 6. The writ petition is disposed of on the above terms. (K. KANNAN) JUDGE March 29, 2010 Pankaj*