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Judgment
Ramesh Ranganathan, CJ
These two appeals are preferred against the order passed by the learned Single Judge in WPSS No.03 of 2009 and WPSS No. 259 of 2009. While Special Appeal No. 406 of 2018 is preferred against the order passed by the learned Single Judge in WPSS No. 259 of 2009, Special Appeal No. 408 of 2018 is preferred against the order passed by the learned Single Judge in WPSS No. 03 of 2009, both against the common order dated 24.04.2018. We shall refer to the petitioner, in Writ Petition (S/S) No. 03 of 2009, hereinafter as the appellant, and the petitioner in Writ Petition (S/S) No. 259 of 2009 as the petitioner.
The petitioner in WPSS No. 259 of 2009 was hitherto employed under the appellant, and was working in the Inter College Kunwarpur, Haldwani, District Nainital. Pursuant to a charge sheet issued to him, disciplinary proceedings were initiated, and on the enquiry officer submitting his report holding the petitioner guilty of the charges, it was proposed to impose upon him the punishment of dismissal from service vide proceeding dated 19.07.2003. In terms of Section 16-G of the Intermediate Education Act, 1921, approval was sought of the District Inspector of Schools. The District Inspector of School, by a non-speaking order dated 13.10.2004, rejected grant of approval. The appellant herein preferred a statutory appeal to the Additional Regional Director of Education Kumaon on 23.11.2004. During the pendency of the appeal, before the appellate authority, the respondent-writ petitioner retired from service on 30.11.2005. The appellate authority, subsequently, rejected the appellant's appeal by order dated 02.09.2008 without assigning any reasons.
Aggrieved thereby, the appellant herein filed WPSS No. 967 of 2008 and a learned Single Judge, by his order dated 26.09.2008, directed the appellate authority to pass a speaking order and to consider the representation of the petitioner-employee for grant of certain benefits. After giving the petitioner an opportunity of being heard, the appellate authority passed order dated 22.11.2008 rejecting the request of the appellant for grant of approval to the order imposing the punishment of dismissal from service. The appellate authority also rejected the petitioner's claim for differential salary (difference between the regular salary and the subsistence allowance paid to him), for being extended the benefit of seniority, for promotional pay scale in the post of Principal, and for extension of session end benefit. Aggrieved by the order passed by the appellate authority dated 22.11.2008, both the appellant and the petitioner-employee invoked the jurisdiction of this Court.
In the common order passed in Writ Petition (S/S) No. 03 of 2009 and Writ Petition (S/S) No. 259 of 2009 dated 24.04.2018, the learned Single Judge noted that the appellate authority had considered the factum of retirement of the petitioner on 30.11.2005, and had dismissed the appeal upholding the decision of the lower authority not to accord permission to proceed against the employee; the petitioner was placed under suspension during the pendency of disciplinary proceedings; he was reinstated by the Management; however, he was denied salary for the suspension period, except for the subsistence allowance; once an employee is reinstated, the suspension period is required to be reckoned for all intents and purposes; it is well-settled, under service jurisprudence, that suspension is not a punishment; and the petitioner was not paid his other retiral benefits which he was legally entitled to, on the basis of Rules and Regulations, framed by the Management. Writ Petition No. 259 of 2009 (S/S) was partly allowed, and the order dated 22.11.2008, passed by the appellate authority, was quashed and set-aside to the extent the employee was denied salary for the suspension period, his period was not reckoned for the purpose of seniority, and for release of promotional pay-scale. Writ Petition No. 03 of 2009 (S/S), preferred by the appellant, was dismissed on the ground that there was no illegality or perversity in the order whereby permission was not accorded to proceed against the employee. Aggrieved thereby these two appeals.
Mr. Alok Mehra, learned counsel for the appellant, would submit that the learned Single Judge had erred in recording that the petitioner was reinstated by the Management; on the other hand, it is the appellate authority, who in the order impugned in the writ petition dated 22.11.2008, had held that the employee was deemed to have been reinstated in service only on 30.11.2005 on which date he retired from service; the appellate authority, having held that the charges levelled against the petitioner was established, has erred in refusing to grant approval on the sole ground that the employee had, in the meanwhile, retired from service; though the appellate authority had rejected the petitioner-employee's claim for grant of benefits, the learned Single Judge has, in the order under appeal, extended to him all these benefits without assigning any reasons why such benefits should be extended to him; as the petitioner was dismissed from service, he is not entitled for any of these benefits; the appellate authority ought to have granted approval for imposition of the punishment of dismissal from service; and though the petitioner-employee had retired in the meanwhile, on the appellate authority according approval, such approval would relate back to 19.07.2003 when the appellant had imposed, on the petitioner, the punishment of dismissal from service.
On the other hand Mr. Parikshit Saini, learned counsel for the petitioner, would contend that the power of the appellate authority is only to accord approval; it is only after approval is granted could the appellant have imposed the punishment; since the petitioner had retired, on attaining the age of superannuation, on 30.11.2005, the appellate authority was justified in refusing to grant permission, since no useful purpose would have been served in granting such approval; as the effect of refusal to grant approval would mean that the petitioner always remained in service, he was automatically entitled for the difference in pay (difference between his regular pay and the subsistence allowance which he was paid); and he is entitled for all benefits including seniority, the promotional pay-scale of a Principal, and for the emoluments which he would have been entitled to if his services were continued till the end of the session.
The obligation, cast on the District Inspector of Schools, to grant approval for the punishment imposed on its employees by the Committee of Management, is regulated by Section 16-G of the Intermediate Education Act, 1921. Section 16-G(3)(a) stipulates that no Principal, Head Master and teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service, except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations. Section 16-G(3)(b) enables the Inspector either to approve or disapprove or reduce or enhance the punishment or approve or disapprove the notice for termination of the services proposed by the management. Under the proviso thereto, in cases of punishment, the Inspector shall, before passing the order, give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted. Section 16-G(3)(c) confers power, for the purpose of preferring an appeal, on the Regional Deputy Director, Education against an order passed by the Inspector under clause (b).
As noted hereinabove, Section 16-G(3)(a) stipulates that no Principal, Headmaster or teacher may be discharged or removed or dismissed from service except with the prior approval in writing of the Inspector. It is evident, therefrom, that the punishment of dismissal, removal, etc. can only be passed by the Management after obtaining prior approval of the District Inspector. Use of the words "prior approval", would mean that, unless and until approval is granted by the District Inspector, no order of punishment of discharge or dismissal or removal or reduction in rank can be passed by the Management.
The said provisions, in effect, require the Management to send its proposal, to impose punishment on an employee, to the District Inspector of Schools requesting him to accord his approval; and once approval is granted, the Committee of Management is then required to pass an order of punishment in terms of the approval granted by the District Inspector of Schools. This is also clear from a plain reading of clause (b) of Section 16-G(3) which confers on the District Inspector of Schools very wide powers either to approve or disapprove or reduce or enhance the punishment. The power conferred on the District Inspector to grant or refuse approval or to reduce or enhance the punishment, is, however, circumscribed by the proviso thereunder which obligates the Inspector, before passing an order, to give the Principal, the Headmaster or the teacher an opportunity to show cause why the proposed punishment should not be inflicted. The power, to grant or refuse approval as conferred upon the District Inspector of Schools, is circumscribed by the requirement of giving the delinquent Principal or the Headmaster a reasonable opportunity of being heard. It is only after hearing the concerned employee, can the District Inspector of Schools then take a decision whether or not to grant approval; and it is only, if approval is granted, can the Committee of Management (appellant herein) thereafter impose punishment on the delinquent employee. In the light of the aforesaid provisions, the doctrine of relation back, i.e. the punishment relating back to the date of the original proposal submitted by the appellant to the Inspector of Schools, has no application. The order of punishment would come into force, on such an order being passed by the Committee of Management after approval to their earlier proposal is accorded by the competent authority.
In the present case, while the District Inspector of Schools had refused to grant permission by his order dated 30.10.2004 the appellate authority, after the matter was remanded to him by the order of this Court dated 26.09.2008, has, primarily, rejected the appellant's request for grant of approval on the ground that the petitioner had retired from service by then. The master and servant relationship, which existed between the appellant and the petitioner, ceased on the latter attaining the age of superannuation on 30.11.2005. Since no rule, which confers power on the Committee of Management to take disciplinary action against a retired employee has been brought to our notice, it does appears that, on an employee attaining the age of superannuation and on his ceasing to be the servant of the appellant, no punishment could have been imposed on the delinquent employee thereafter.
Since an order of punishment is required to be passed by the Committee of Management only after prior approval of the District Inspector of Schools, even if the appellate authority had granted approval, the appellant would thereafter have been required to pass an order of punishment in terms of the approval granted by the appellate authority.
Since the employer-employee relationship ceased, on the petitioner retiring from service on 30.11.2005, the appellant could not have passed any order of punishment thereafter. In such circumstances, the appellate authority was justified in denying permission to the appellant to impose a punishment on the respondent, who had already retired from service on 30.11.2005. To the extent the appellate authority had refused to grant permission to the appellant, to dismiss the petitioner from service, we see no reason to interfere with the order passed by the learned Single Judge. We affirm the order passed in WPSS No. 03 of 2009 dated 24.04.2008, and dismiss Special Appeal No. 408 of 2018 preferred by the appellant thereagainst.
In so far as Special Appeal No. 406 of 2018 is concerned, the order under appeal therein related to the petitioner's claim, in WPSS No. 259 of 2009, to be granted certain benefits. In the said writ petition, the petitioner had sought a writ of certiorari to quash the order passed by the Additional Regional Director dated 22.11.2008 in treating the petitioner to have retired from service during suspension; to quash the said order in so far as it related to denial of seniority benefits, extension of retirement till the end of the academic session i.e. 13.06.2006, and for grant of all such financial benefits treating the petitioner to be working in the post of Principal from 01.07.2002 to 30.06.2006; and for a writ of mandamus commanding the respondents to grant extension of retirement benefits till the end of the academic session i.e. 30.06.2006, and to pay him all retiral benefits.
The appellate authority has the power, while examining the request for grant of approval, to determine the manner in which the period of suspension of the petitioner should be treated. The appellate authority has, while refusing to accord approval for imposition of punishment, observed, in the order impugned in the writ petition, that the record of the inquiry revealed that the allegations levelled against the petitioner were proved because of which he was placed under suspension by the management on 10.02.2002; and he remained under suspension till 30.11.2005 when he retired from service.
Since the charges levelled against the petitioner have been held by the appellate authority to be established, and the only reason why he refused to grant approval is that the petitioner had already retired from service, we are satisfied that the appellate authority was justified in not extending, to the petitioner, the benefit of differential pay (difference between his regular salary and the subsistence allowance) for the period from 10.10.2002 when he was placed under suspension till 30.11.2005 when he retired from service. In this context, both Mr. Alok Mehra, learned counsel for the appellant and Mr. Parikshit Saini, learned counsel for the respondent-writ petitioner, agree that approval of the competent authority was obtained by the appellant for passing the order of suspension.
In the light of the order passed by the appellate authority, we are satisfied that, in so far as the petitioner's claim, for difference in salary beyond the subsistence allowance, is concerned, the learned Single Judge was not justified in interfering with the order of the appellate authority, and in granting the said relief in the Order under Appeal. The order of the appellate authority, rejecting the petitioner-employee's claim for payment of salary beyond the subsistence allowance, is upheld and the order of the learned Single Judge is set aside to that limited extent.
With regard the other claims made by the petitioner i.e. for being extended the benefit of seniority, promotional pay-scale, and session end benefit, both Mr. Alok Mehra, learned counsel for the appellant and Mr. Parikshit Saini, learned counsel for the petitioner, agree that the competent authority, to pass such an order, is the District Inspector of Schools (presently designated as Chief Education Officer); and the Regional Additional Director, Kumaon has not been conferred power, under the Act and the Regulations made there under, to extend such benefits. The order, impugned in the writ petition, appears to have been passed by the appellate authority in view of the observations made by the learned Single Judge, in his order in Stay Application (CLMA) No. 65 of 2008 in WPSS No. 967 of 2008, whereby the appellate authority was directed to consider the representation of the petitioner, regarding payment of arrears of salary, along with the appeal. Even if the said order is held to bind the appellate authority, the said order of this Court only required the appellate authority to confine his examination to the claim of the employee regarding payment of arrears of salary, which is the difference between his regular salary which he was otherwise entitled to and the subsistence allowance paid to him.
It was not open to the appellate authority to examine the other claims of the respondent-employee relating to his seniority, promotional pay-scale and the end of session benefit, for no such power has been conferred upon him under the Act and Regulations to decide such issues. To the extent the petitioner's claim in this regard is concerned, suffice it to set aside the order under appeal, leaving it open to him to approach the Chief Education Officer regarding these claims. If any such claim is made within three weeks from today, the Chief Education Officer shall, after affording the appellant herein a reasonable opportunity of being heard, pass orders, in accordance with law, within two months thereafter. We make it clear that we have not expressed any opinion on whether or not the petitioner is entitled for the aforesaid benefits, for these are all matters for the Chief Education Officer to decide in accordance with law.
Both these appeals are, accordingly, disposed of.
No costs.
Let a certified copy of this order be issued to the learned counsel for the parties, on payment of the prescribed charges, within one week.