JUDGMENT
D.K. Seth, J.
1. The order suspending the petitioners having since been refused to be approved by the District Inspector of Schools by an order dated 2nd June, 1998, pursuant to the direction contained in the order dated 6th February, 1998, passed in Writ Petition No. 4329 of 1998 by this Court, has since been challenged in this writ petition. Mr. Arun Tandon, learned counsel for the petitioners submits that while disapproving the order of suspension by the school authority, the District Inspector of Schools has over-stepped the limit of Jurisdiction conferred on him under Section 16G (7) of the U. P. Intermediate Education Act, 1921, in that he had asked for a reply from the delinquent and had examined the evidence that might be put forth in defence as well as the materials produced by the Committee of Management and had come to a conclusion that the charges could not be proved or established and as such, he has refused to approve. Therefore, according to him. the order is wholly without jurisdiction and is liable to be quashed and the District Inspector of School should be directed to decide the question afresh in accordance with law within the ambit of. Section 16G (5) and (7), read with Regulation 39, Chapter III of the Regulation framed under the 1921 Act.
2. This contention of Mr. Tandon has since been opposed by Mr. Surendra Tewari, counsel for the delinquent respondents as well as Mr. K. R. Singh, learned standing counsel.
Mr. Tewari had contended relying on various decisions that the Districl Inspector of Schools by virtue of Section 16G (5] is empowered to scrutinize the papers sent to him by virtue of Regulation 39 of Chapter III of the Regulation framed under the 1921 Act in order to ascertain as to whether the. Committee of Management had formulated its opinion having regard to clauses (a), (b) and (c) of sub-section (5). In the present case, the District Inspector of Schools, according to him has acted within the scope and ambit of his jurisdiction. Therefore, sitting in writ jurisdiction, this Court should not interfere with the finding of fact, particularly when the order is reasoned one. He also draws my attention to the fact that on two earlier occasions, the petitioners were suspended and since no papers were forwarded along with the order of suspension as required under Regulation 39 of Chapter III of the Regulation framed under the 1921 Act, on both the occasions the order of suspension was disapproved by the District Inspector of School. The Committee of Management had suspended him on the third occasion when certain papers were forwarded. In this background, the District Inspector of Schools was Justified to scrutinize the papers and come to such a finding. According to him. sub-section (8) provides for hearing, which is also implicit tn sub-section (7). which also requires hearing before ascertaining as to whether approval should be granted or not. According to him. otherwise, the entire purpose of providing the provision for grant of approval to an order of suspension and the conditions on which the delinquent can be suspended, would be completely frustrated. He contends that while interpreting a section, it has to be interpreted according to the scheme further the object and
purpose and not impair. On this ground, relying on the decisions cited by him in support of his contention he submits that the writ petition should be dismissed.
3. Mr. K. R. Singh, learned standing counsel, on the other hand contends that since Regulation 39. Chapter III of the Regulation requires forwarding the papers, it is open to the District Inspector of Schools to look into the same and come to its independent decision as to whether, he should grant or refuse the approval to the order of suspension. !n deciding such question, the District Inspector of Schools has to find out as to whether the tests laid down in sub-section (5) of Section 16G are satisfied, namely, whether the charges are serious enough to merit his dismissal, removal or reduction in rank ; or continuance of the delinquent is likely to hamper or prejudice the conduct of disciplinary proceedings against him or any criminal case for an offence Involving moral turpitude against him is under investigation, inquiry or trial. He contends that in none of the orders of suspension, the school authority had expressed either of these contingencies to have been satisfied. In absence of any such formulation of opinion having been recorded in the order of suspension, the order of suspension is void ab-initio and. therefore, even if the order contained in Annexure-VI may be outside the scope and jurisdiction conferred on the District Inspector of Schools, still then it cannot be Interfered with, since there is a defect in the order of suspension itself.
4. I have heard Mr. Arun Tandon, Mr. Surendra Tewari and Mr. K. R. Singh, counsel appearing for the respective parties at length.
5. The power to suspend is provided in Section 16G, sub-sections (5), (7) and (8) of the Act of 1921, which runs as follows :
* * * * "(5) No Head of Institution or teacher shall be suspended by the Management, unless in the opinion of the Management- (a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank ; or (b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him ; or (c) any criminal case of an offence involving moral turpitude against him is under investigation, inquiry or trial. * * * * (7) No such order of suspension, shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of Uttar Pradesh Secondary Education Laws (Amendment Act) 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court. (8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institution or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may. after affording opportunity to the Management or make representation revoke an order of suspension passed under this section."
6. The said power has been given to the Management. It contemplates an embargo on the suspension, which makes the provision mandatory to the extent that unless in the opinion of the Management, the charges are so serious to warrant dismissal, removal, or reduction in rank, no order of suspension could be Issued by the Management. Even if the charges warrant dismissal, removal or reduction in rank, still then the delinquent can be suspended if the Management is of the opinion that the continuance of the delinquent in the office is likely to hamper or prejudice the conduct of
disciplinary proceedings against him. Thus, on these contingencies, the Management is empowered to suspend.
7. Sub-section (7), which requires approval of the District Inspector of School with regard to the order of suspension, without which the order of suspension would cease to be effective after expiry of 60 days. For the present purpose, sub-sections (7) and (8) are already quoted above since it would be beneficial for the present purpose.
8. In the case of Chandra Bhushan Misra v. District Inspector of Schools, Deoria, 1995 (71) IFLR 581, a Full Bench of this Court while interpreting sub-section (7) of Section 16G had held as follows :
“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 effective. 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 consequence. Inaction on the part of the Inspector either deliberate or otherwise may frustrate the object of the provision Itself.”
9. In view of the said ratio decided, even after the expiry of 60 days, the power to approve or disapprove conferred on the District Inspector of School does not cease. The order of suspension, however remains ineffective and dormant and might revive on the approval granted by the District Inspector of Schools even after expiry of 60 days and would lapse if it is disapproved.
10. In the present case, on an earlier occasion the writ petition was moved on the ground that the District Inspector of School was not granting or refusing the approval to the order of suspension. The said writ petition was moved by the Committee of Management being numbered as 4239 of 1998 and the same was disposed of by an order dated 6th February, 1998 (Annexure-8) by directing the District Inspector of Schools to dispose of the question of approval of suspension finally. Pursuant to the said order, the order dated 2nd June, 1998. contained in Annexure-8 was passed. Since at that point of time, the question of approval to suspension was open and has not been decided by the said order. It is no more to be decided in the present writ petition. But the fact remains that the order dated 6th February. 1998 was passed ex-parte and the delinquent respondent Ram Lal Singh though was a party, had no opportunity to appear in the said case. Therefore, that question will still remain open to be considered by the District Inspector of Schools while granting approval to the order of suspension is one of the factor that might be taken Into account. In view of the earlier order dated 6th February, 1998. the scope of the writ petition is confined only to the extent of examining the order dated 2nd June, 1998. contained in Annexure-8. In my view, it is not open to decide as to whether the order of suspension was valid or not and whether the same is void as contended by Mr. K. R. Singh, learned standing counsel. This question may also remain open for being decided by the District Inspector of Schools in view of the decision, which I am going to take hereinafter.
11. Now so far as the order contained in Annexure-8 is concerned, it shows that while considering the grant of approval or refusal, the District Inspector of Schools had asked for reply from the delinquent respondent and had considered his defence as well as the papers submitted by the Committee of Management and had in effect enquired into the merit and demerits of the charges and had come to a finding that the charges were baseless and as such, he had refused approval.
12. This clearly indicates that he has transgressed the limit of the jurisdiction conferred on him under Section 16G (7), read with sub-sections (5) and (8) and Regulation 39, Chapter III of the Regulation for the reasons given hereinbelow.
13. In effect, he had virtually gone into the merits of the charges. Whereas the scope of sub-section (7) of Section 16G is as to whether there were sufficient materials to justify formulation of the opinion of the Management with regard to clauses (a) and (b) of sub-section (5), as the case may be. It is contended by Mr. K. R. Singh that there was no formulation of opinion even in the third order of suspension with regard to clause (a) or with regard to clause (b). Even if such opinion is not expressed in the order of suspension, it is open to the District Inspector of Schools to scrutinize as to whether there was sufficient material to warrant formulation of such opinion on the basis of the material produced. It is also open to him to refuse approval on the ground that no such opinion has been formulated and that there was no material to formulate such opinion even if it is expressed or remain unexpressed.
14. Sub-section (8) empowers the District Inspector of Schools to recall an order of suspension but only after affording an opportunity to the Management, who may also make representation or on the basis of the representation by the delinquent, to revoke the order of suspension. But the ground has been specified in sub-section (8) to the extent that in case the enquiry is delayed not on the ground of default on the part of the delinquent, then only order of revocation can be passed after giving an opportunity of hearing to the Management or on the basis of any representation that might be made by the delinquent. While sub-section (8) contemplates of giving of hearing, sub-section (7) does not contemplate any such scope, sub-sections (7) and (8) having been incorporated one after the other, the omission in subsection (7) with regard to affording an opportunity of hearing appears to be a deliberate legislative intent. Even then if hearing is contemplated as contended by Mr. Tewari, being Implicit in it. in that event it will render the whole procedure ineffective and impracticable. The question of approval cannot be understood to be so implicit as to call for a reply and hold a parallel enquiry to find out the charges. The scope and ambit of grant or refusal of approval by the District Inspector of Schools is to the extent to find out as to whether there is sufficient material to form an opinion that the charges warrant dismissal, removal or reduction in rank and his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him or the criminal case in which he might be involved cause a moral turpitude. It cannot itself examine the evidence that might be followed in defence in order to find out as to whether the charges can at all be levelled or not. In absence of specific provision in sub-sections (5) and (7), it is not possible to read such a producer as implicit in sub-section (7), when sub-section (8) itself prescribes an opportunity of hearing while committing such a scope within the ambit of sub-section (7).
15. Regulation 39, prescribed as follows :
“39. (a) The report regarding the suspension of the Head of Institution or of the teacher to be submitted to the Inspector under sub-section (6) of Section 16G shall contain the following particulars and be accompanied by the following document :
(a) the name of the persons suspended along with particulars of the (posts including grades) held by him since the date of his original appointment till the time of suspension including particulars as to the nature held at the time of suspension, e.g. temporary, permanent or officiating ;
(b) a certified copy of the report on the basis of which such person was last confirmed or allowed to cross efficiency bar, whichever later ;
(c) details of all the charges on the basis of which such person was suspended ;
(d) certified copies of the complaints, reports and inquiry report, if any, of the enquiry officer on the basis of which such person was suspended ;
(e) certified copy of the resolution of the Committee of Management suspending such person :
(f) certified copy of the order of suspension issued to such person ;
(g) in case such person was suspended previously also, details of the charges, on which and the period for which he was suspended on previous occasions accompanied by certified copies of the orders on the basis of which he was reinstated.”
16. This Regulation 39 of Chapter III of the said Regulations requires the Committee of Management to forward the particulars and documents mentioned in clauses (a) to (g) thereof. This Regulation 39 (a) was incorporated to facilitate examination of those particulars and documents only with regard to the view taken hereinbefore as contemplated within subsections (5) and (7) respectively. Those particular and documents were never intended to be forwarded for the purpose of enabling the District Inspector of Schools to hold a parallel enquiry, since clauses (a) to (g) does not require furnishing of proof of the charges. The very scheme of Regulation 39 shows that no document on which charges can be substantiated were included, leading us to presume that it was never intended by the Legislature/ to confer any power to the District Inspector of Schools to hold a parallel enquiry within the ambit of sub-section (7). The power to suspend and the power to hold enquiry and the proposed punishment has been conferred on the Management and those are subject to approval by the District Inspector of School. If the District Inspector of Schools pre-empts the jurisdiction of the Committee of Management, in that event, the purpose of conferring such power to the Committee of Management would altogether be frustrated and would be against the object and purpose as well as scheme of the Act itself. Then again in case the District Inspector of Schools undertakes such an exercise, in that event, the major exercise in the office would be eaten up in this business leaving very limited scope for him to attend to his other business. This will not further the object and purpose for which Section 16G (5), (7) and (8) were incorporated. A little power that has been conferred on the Management, cannot be taken away by interpreting the provisions in such a manner, which will not further the object of the Act and on the other hand would take away the limited right granted to the Committee of Management.
17. Mr. Tewari had relied on the decision in the case of Committee of Management Sri Mahanthu Radha Krishna Inter College, Sakarpura, District Ballia v. District Inspector of School, Ballia and another, 1988 UPLBEC 226, in order to contend that the District Inspector of Schools while granting or refusing to grant approval to the order of suspension, exercises a supervisory power under which, he is entitled to go to that extent as contended by Mr. Tewari. The supervisory power has not been explained in the said decision. The supervisory power has to be read in relation to the facts of the said case.
It has not been pointed out as to what extent the supervisory power can be exercised. The said supervisory power is to be exercised within the scope and ambit of sub-sections (5), (7) and (8) respectively. The very inclusion of subsections (5), (7) and (8) itself conferms supervisory power on the District Inspector of Schools with regard to the order of suspension but to the extent as provided in the said sub-sections. It cannot travel beyond the scope and ambit of said sub-sections. The power conferred on an authority has to be exercised within the scope and ambit of the provisions through which the powers are derived. Therefore, the supervisory power as contemplated in the decision in the case of Committee of Management Sri Mahanthu Radha Krishna (supra), has to be interpreted to the extent it can be applied within the scope and ambit of sub-sections (5), (7) and (8) of Section 16G respectively and not beyond that. This supervisory power cannot be exercised to the extent as it has been exercised in the present case, which in my view is beyond the scope and ambit of sub-section (7). Therefore, the ratio decided in the said case, does not held Mr. Tewari so far as the facts and circumstances of the present case is concerned as discussed hereinbelow.
18. Mr. Tewari had relied on a decision in the case of Committee of Management, Adarsh Ram Chandra Inter College, Chordiha, District Deoria and another v. District Inspector of Schools. Deoria and another, 1994 UPLBEC 129, in order to contend that the said provisions have been incorporated to prevent harassment of the teachers and, therefore, the District Inspector of Schools while considering grant of approval or refusal may enter into such question. It was held as follows :
“8. Next question which arises in the present case is as to whether District Inspector of Schools can pass an order of approval with regard to the suspension of the head of the institution or teacher even after expiry of the period of 60 days. Learned counsel for the respondents has relied on various cases as mentioned above. I have gone through the facts of the cases and in my opinion, none of the aforesaid cases is applicable on the question involved in the present writ petition. The provisions of Section 16G of the Act were amended by U. P. Act No. XXVI of 1975 and subsections (5), (6), (7) and (8), which relate to the order of suspension were substituted with a view to improve the service conditions of the teachers of the High School and Intermediate Colleges. Object was to prevent harassment to the head of the Institution and the teachers at the hands of the Management by passing order of suspension and to keep the teachers under suspension for long period. With this object approval of the District Inspector of Schools was made necessary by sub-section (7) of Section 16G of the Act and it was also provided that unless approved in ‘writing the order of suspension shall not remain in force for more than 60 days. If the aforesaid provision is considered in the background of the circumstances prevailing at the time the provisions were brought in the Statute book, it is clear that the approval was made necessary with regard to the order of suspension also as it was required with regard to the order of suspension also as it was required with regard to the order of dismissal, removal or reduction in rank etc. under Section 16G (3) of the Act. The object of both the provisions was to improve service conditions of teachers and to prevent unnecessary harassment. Only difference in that case of order of suspension has been allowed to have effect for a period of 60 days’ and in the meantime the order of suspension could be reported to the Inspector who may pass necessary order approving or disapproving the same. However, it cannot be said that in case the order of suspension was not approved or disapproved within 60 days, it lost its existence. The intention of law appears to be to make it only inoperative. Even after expiry of the period of 60 days Inspector shall have to pass order in accordance with law approving or disapproving the order of suspension. The interpretation suggested by the learned counsel for the respondents, if accepted shall
amount to taking away the power from Management to pass an order of suspension beyond period of 60 days, which does not appear to be the intention of law. The Legislature only intended to regulate the power of suspension passed by Management and not to deprive it of the same. The disciplinary proceedings some times may not be concluded within a period of 60 days. Even under Regulation 40. the period contemplated for concluding the disciplinary proceedings is much more than period of 60 days. The nature of the case may be where suspension of the Principal or the teacher may be necessary during pendency of the disciplinary proceedings if the conditions mentioned in Section 16G (5) to (8) of the fact are considered the object of law is ciear and it is to prevent unnecessary harassment to Principal and teachers at the hands of the Management. At the same time it preserves power of suspension wherever necessary and desirable and the authority of approval conferred on Inspector has to be considered in this light. In the circumstances the approach of the District Inspector of Schools that the period of 60 days has expired and thus the order of suspension has elapsed, does not appear to be correct. He has to apply his mind to the facts and circumstances of the case and then pass a reasoned order approving or disapproving the order of suspension which shall become effective from the date of approval. If granted by the Inspector. The view expressed above is fully supported by the unreported judgments of the Division Bench and learned single Judge mentioned above.”
19. The above observations show that said provisions were incorporated only to regulate the power of suspension passed by the Management and not to deprive it of the same. The object of the law was clear, it was for the purpose of preventing unnecessary harassment of the teacher at the hands of the Management. But at the same time, it preserves the power of suspension wherever necessary and desirable, with the authority of approval conferred on the Inspector has to be considered in that light. It was observed that the District Inspector of Schools has to apply his mind to the facts and circumstances of the case and then pass a reasoned order approving or disapproving the order of suspension.
20. The above decision does not lay down as to what extent the application of mind would be extended. In fact, the mind is lo be applied on the basis of scope and ambit of sub-sections (5) and (7) and not beyond. In the name of applying its mind, the District Inspector of Schools is not permitted to hold parallel enquiry in the manner it has done in the present case. Sub-section (7) never contemplates calling for a reply of the delinquent nor his defence. The decision cited above also does not help us so far as the necessary questions Involved in the present writ petition.
21. Mr. Tewari has also relied on the decision in the case of Committee of Management, Sri Shankarashram Maha Vidyapith Inter College, Shikhar, Mirzapur and another v. District Inspector of Schools, Mirzapur and another, 1997 (1) AWC 302, in order to support his contention. In the said decision, it was held that the Management is bound to forward the papers contemplated in Regulation 39 (1) of the said Regulations after having applied its mind having regard to the tests laid down in Section 16G (5). In the said case, it was held that if the relevant documents were not filed and if there are other documents, which the Management want to rely, the same cannot be relied on unless the same were forwarded along with the order of suspension in terms of Regulation 39 and if no opportunity is given to rely on any other documents other than those mentioned in Regulation 39, in that event, the Management cannot claim any right or opportunity to file relevant documents, which it might want to rely upon. This decision was affirmed in Special Appeal No. 17 of 1997, decided on 5th February, 1997.
22. This judgment also does not help us in the facts and circumstances of the present case. In this case also, it was not pointed out as to what extent
the jurisdiction of the District Inspector of Schools can be exercised having regard to sub-sections (4) and (7) of Section 16G, in the matter of examining the defence. On the other hand, on the analogy of the ratio decided in the said case, it can be held that in the matter of grant or refusal of approval, the Jurisdiction to apply the mind of the District Inspector of Schools is confined to the documents mentioned in Regulation 39 accompanying the order of suspension and not beyond. Inasmuch as when Regulation 39 specifies the documents to accompany the suspension order and when there having been nothing which provides giving of hearing or even to rely upon anything more it can safely justify exclusion of such an exercise that has been undertaken in this case.
23. Mr. Tewari had relied on the decision in the case of Committee of Management, Sadabad Inter College, Mathura and another v. District Inspector of Schools, Mathura and others, 1992 (1) UPLBEC 347, and submitted that in case the petitioners are aggrieved, they might approach the State Government under Section 2 (bb) of the 1921 Act. But the said decision as rightly contended by Mr. Arun Tandon, does not apply in the facts and circumstances of the case. Inasmuch as it appears from the said decision that the petitioners had alleged allegation of mala fide against the District Inspector of School. Therefore, such an observation was made that the petitioner may approach the State Government under Section 2 (bb) of the 1921 Act. In the present case, no mala fide is alleged against the District Inspector of Schools as has been alleged. On the other hand, it has been alleged that the District Inspector of Schools has transgressed its Jurisdiction and out-stepped the scope and ambit of sub-sections (5) and (7). It is the order of the District Inspector of Schools with which the petitioners are aggrieved and not the District Inspector of Schools. If it was a case of a grievance against the District Inspector of Schools, in that event, the competent authority could be approached on the light the said decision was rendered. With respect and humility to the said decision in the case of Committee of Management. Sadabad Inter College, Mathura (supra). I may put on record my views to the extent that Section 2 (bb) does not confer any Jurisdiction with regard to decision on any dispute. Sub-section 2 (bb) defines the Inspector, which includes the District Inspector of Schools and such other officer that might be appointed by the State Government. There is nothing In the scheme of 1921 Act which confers any jurisdiction on the State Government which might be decided by the State Government. Since this question has not been gone into in the said case, the ratio decided therein cannot be attracted while at the same time Section 2 (bb) does not confer any jurisdiction on the State Government to decide the dispute which has since been raised in the present writ petition. Therefore, the said decision does not throw any light on the question with which we are engaged.
24. In that view of the matter, the order impugned cannot be sustained and, is hereby, quashed. Let a writ of certiorari do issue accordingly. The District Inspector of Schools shall decide the question of grant or refusal of the approval to the order of suspension in accordance with law in the light of the observations made above as early as possible, preferably within a period of one month from the date a copy of this order is furnished to him. He will be free to decide the question, according to his own wisdom and discretion as indicated in this judgment hereinbefore.
25. Admittedly, the delinquent respondent has kept the enquiry pending for a long time. It is alleged by Mr. Tewari that enquiry has not yet been commenced nor held. Mr. Tandon Is unable to inform the Court as to whether any enquiry has been held or not.
26. Since the question of suspension and -holding of enquiry are two distinct things, the enquiry may proceed even without suspension. In the present case, the delinquent respondent was under suspension from time to
time. The fact remains that the Committee of Management has not concluded the enquiry as yet. In that view of the matter, it will be open to the Management to conclude the enquiry, if not concluded in the meantime, in accordance with law, after giving an opportunity to the delinquent respondent, within a period of 6 months from today. However, any adjournment that might be taken by the delinquent respondent may be excluded for the purpose of calculating 6 months. If the enquiry is not concluded with the said period of six months whether approval of suspension is granted or not, the suspension would cease to exist and shall stand revoked automatically. However, it will be open to continue the enquiry even thereafter without the suspension of the delinquent respondents.
27. The above observation will in no way influence the District Inspector of Schools, who may pass appropriate orders in terms of the directions given in the paragraphs preceding.
28. The writ petition, is thus disposed of. No costs.