The Rt.
Rev. B.P. Sugandhar Bishop in Medak Vs. Smt. D. Dorothy Dayasheelaebeneser
[1996] INSC 533 (12
April 1996)
Nanavati
G.T. (J) Nanavati G.T. (J) Agrawal, S.C.
(J) Nanavati, J.
CITATION:
1996 SCC (4) 406 JT 1996 (6) 221 1996 SCALE (3)701
ACT:
HEAD NOTE:
Leave
granted.
The
Diocese of Medak is running an institution known as CSI EVA MAIR Technical
Institute at Secunderabad. The appellant is the Chairman of the Diocesan
Executive Committee and respondent No. 1 is the Principal of the said technical
institute. On the basis of the report made by the Socio Economic Board
concerned with administration of the institutions within the Diocese of Medak,
the Executive Committee resolved on 12.6.95 to appoint an Enquiry Commission to
enquire into the acts of commissions and omissions of Respondent No.1. It also
resolved to suspend Respondent No.1. Pursuant to that resolution the appellant
by an order dated June
12, 1995 suspended
Respondent No.1 pending the enquiry and by letter of the same date a Commission
of Enquiry was constituted. The terms of reference were as under:
1. Willful
insubordination and non-cooperation
2.
Leaving headquarter without prior permission or intimation.
3. Unauthorised
appointment of staff
4.
Admissions
5.
Purchases of furniture and equipment
6.
Addressing letters against the Bishop and Diocesan Administration
7.
Using derogatory remarks against the Bishop and Diocesan Administration; and
8. Entire
functioning of the Institution.
The
Commission of Enquiry submitted its report on 21.9.1995. The Enquiry Commission
found that there was sufficient material in support of the charges made against
Respondent No.1. Therefore, on 5.11.1995 the Diocesan Executive Committee
issued a notice to Respondent No.1 calling upon her to show cause why she
should not be dismissed from service. Thereupon, Respondent No.1 filed a writ
petition in the Andhra Pradesh High Court challenging the order of her
suspension and also the action of the appellant constituting an Enquiry
Commission. In the counter filed by the appellant it was stated that the
Enquiry Commission was only a fact-finding body, that an Enquiry Officer will
be appointed to hold an enquiry and that a detailed charge-sheet will be issued
based on the report of the Enquiry Commission. In view of this statement
learned Single Judge of the High Court, on 13.11.1995, dismissed the petition
as premature. The first respondent, therefore, filed Writ Appeal No. 1746 of
1995 before a Division Bench of that Court. Meanwhile, as Respondent No.1 did
not give any satisfactory explanation with respect to the allegations made
against her the appellant appointed an Enquiry Officer on 29.12.1995. The
Division Bench, on 1.2.1996, allowed the appeal as it was of the view that the
terms of reference made to the Enquiry Commission were vague and general and
that there was an 'element of mala fides' on the part of the appellant in
initiating the said proceedings and that the order of suspension dated
12.6.1995 having come to an end on 12.10.1995 Respondent No. 1 was entitled to
be restored as Principal. Aggrieved by that order the appellant has filed this
appeal.
What
is contended by Mr. Soli J. Sorabjee, learned Senior Counsel for the appellant
is that the Divis666ion Bench of the High Court completely misdirected itself
as regards the correct legal position and, therefore, erred in quashing the
action of the appellant in constituting a Commission of Enquiry and also the
order of suspension. It was also contended that the Division Bench committed an
error in directing the appellant to permit Respondent No. 1 to assume charge as
Principal. It was submitted that in view of the nature of the allegations made
against her and in view of the subsequent conduct in delaying the proceedings
the order of suspension should not have been quashed.
We
find it difficult to appreciate how the Division Bench thought it fit to quash
the preliminary enquiry particularly when the appellant had made it clear, by
the time the Division Bench disposed of the appeal, that the formal enquiry was
yet to be held. Obviously the purpose of constituting the Commission of Enquiry
was to hold only a preliminary enquiry to ascertain whether there was some
truth in the complaints made against Respondent No.1 and whether there was
enough material on the basis of which misconduct of Respondent No.1 could be
proved. The learned Judges failed to appreciate that at that stage no formal
charge was required to be framed nor even participation by Respondent No.1 was
necessary. The Executive Committee had only broadly indicated to the Commission
of Enquiry the nature and scope of enquiry which they had to make and a copy of
the terms of reference was served upon Respondent No.1 only to enable her to
put forward her explanation so that that also could be considered along with
the report of the Commission of Enquiry before taking a decision as to whether
a full-fledged regular enquiry was required to be made against her. There was
hardly any role for the court to play at that stage. The learned Single Judge
had rightly dismissed the writ petition as premature and it was not proper for
the Division Bench to set aside that order and quash the constitution of the
Commission of Enquiry and holding of a preliminary enquiry. It should have been
appreciated that it was futile to pass such an order as the Executive Committee
had already taken a decision by that time to hold a regular full-fledged
enquiry and appointed an Enquiry Officer for that purpose.
It was
next contended by learned counsel for the appellant that in view of the two
decisions of the same High Court in M. Chandrasekhara Rao vs. Sri Sarvodaya
College 1988 (1) ALT 651 and Dr. Philomena vs. Government of Andhra Pradesh
1994 (2) ALT 665 the Division Bench should not have directed the appellant, by
issuing a writ of mandamus "to arrange for the petitioner to assume charge
as Principal", in view of the serious irregularities found to have been
committed by her. In M. Chandrasekhara Rao's case (supra) the High Court after
considering the effect of Section 79(3) of the A.P. Education Act has held that
in a case where there are grave charges of misconduct, whatever may be the
reason for not completing the enquiry within the prescribed time, the interest
of the institution and the employee would be best served if a direction is
given to the management to continue to pay to the employee the salary and
allowances of the post held by him instead of directing
reinstatement/restoration of the employee into the service.
The
said view was reiterated by a Division Bench of the High Court in Dr.
Philomena's case (supra) and it has been observed therein that though Section
79(3) is mandatory and on the expiry of the specified period the employee would
be entitled to be restored to the same position and status as he or she
occupied as on the date of the order of suspension, but such restoration cannot
be automatic in all circumstances and court may in view of the peculiar facts
and circumstances of the case, instead of directing restoration or
reinstatement, strike an equi-balance between the right of the employee vis-a-vis
the right of the institution/society and the discipline among the co-
employees. Unfortunately, the High Court did not consider this aspect and has
ordered restoration of Respondent No.1 on the post of the Principal. From the
material on record we find that the charges levelled against Respondent No.1
are quite serious. They pertain not only to administrative irregularities but
also financial irregularities and disobedience. In view of the peculiar facts
and circumstances of the case we think it just and proper to set aside the
direction for restoration of Respondent No.1 on the post of Principal and
instead direct the appellant to go on paying the full salary and allowances to
her till the enquiry is over. We also direct the appellant to conclude the
enquiry within four months from today. Respondent No.1 shall also cooperate
with the enquiry in order to see that it is completed within the time fixed by
us. This appeal is allowed accordingly. No order as to costs.
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