Full Judgment Text
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PETITIONER:
THE RT. REV. B.P. SUGANDHARBISHOP IN MEDAK
Vs.
RESPONDENT:
SMT. D. DOROTHY DAYASHEELAEBENESER
DATE OF JUDGMENT: 12/04/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 SCC (4) 406 JT 1996 (6) 221
1996 SCALE (3)701
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J.
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. Wilful insubordination and non-cooperation
2. Leaving headquarter witnout 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 Enqiury 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
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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
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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.