Ravindra Singh Rathore v. District Inspector Of Schools

R.K Agrawal, J.:— All the six writ petitions relate to the same person holding the post of Principal in Mahatma Gandhi Sainik Inter College, Pachaya Gaon, Etawah and, therefore, they have been heard together and are being disposed of by a common Judgment.

2. Writ Petition No. 16905 of 2000 has been filed by Ravindra Singh Rathore seeking a writ, order or direction restraining the respondents from interfering in the functioning of the petitioner as the officiating/ad hoc Principal of the Mahatma Gandhi Sainik inter College, Pachaya Gaon, Etawah. A further relief has been prayed by him for directing the respondents to pay his regular monthly salary on the post of Principal including the arrears of salary from February, 2000. Writ Petition No. 34715 of 2000 has been filed by the Committee of Management, Mahatma Gandhi Sainik Inter College, Pachaya Gaon, Etawah and the Manager, Rajeshwari Devi and Baij Nath Yadav, Principal of the said college seeking a writ, order or direction in the nature of certiorari quashing the order dated 1st August, 2000, passed by the District Inspector of Schools, Etawah, filed as Annexure-18 to the writ petition, and also a writ of mandamus directing the respondent No. 1 to pass a fresh order on merit on the proposal of suspension of Ravindra Singh Rathore, respondent No. 2, submitted by them and not to interfere with the functioning of the college till the conclusion of the enquiry as also of the functioning of the officiating Principal. By means of the order dated 1.8.2000, the District Inspector of Schools, Etawah, had rejected the representation made by the Committee of Management regarding attestation of signature of Sri Baij Nath Yadav, the next seniormost teacher in the college, in place of Sri Ravindra Singh Rathore.

3. Writ Petition No. 2967 of 2001 has been filed by Ravindra Singh Rathore seeking a writ, order or direction in the nature of certiorari quashing the order dated 8.12.2000, passed by the Manager of Mahatma Gandhi Sainik Inter College, Pachaya Gaon, Etawah respondent No. 3, filed as Annexure-19 to the writ petition as also a writ of mandamus commanding the respondents to pay the salary to the petitioner as well as the arrears of salary within the specific period and not to interfere in his working as ad hoc Principal of the college. By means of the order dated 8th December, 2000, the Manager of the college had placed the petitioner under suspension on certain charges.

4. Writ Petition No. 19317 of 2001 has been filed by Ravindra Singh Rathore seeking a writ, order or direction in the nature of certiorari quashing the order dated 9th February, 2001, passed by the District Inspector of Schools, Etawah, respondent No. 1, filed as Annexure-21 to the writ petition, as also a writ of mandamus directing the respondents to disburse the arrears of salary within a specified time and to pay the regular monthly salary as also to fix the pensionary benefits with effect from 1st July, 2001 and other consequential reliefs. By means of the order dated 9th February, 2001, the District Inspector of Schools, Etawah had approved the order of suspension dated 8th December, 2000.

5. Writ Petition No. 3396 of 2002 has been filed by Ravindra Singh Rathore seeking a writ, order or direction in the nature of certiorari quashing the notice dated 21st December, 2001, issued by the U.P Secondary Education Services Selection Board, Allahabad, Annexure-11 to the writ petition, and all proceedings in pursuance thereto. He further seeks a writ, order or direction in the nature of mandamus commanding the respondents to forthwith fix the pension and to disburse the same and other retiral benefits including arrears of salary within a specified period.

6. Writ Petition No. 39472 of 2003 has been filed by the Committee of Management, Mahatma Gandhi Sainik Inter College, Pachaya Gaon, Etawah and its Manager seeking a writ, order or direction in the nature of certiorari quashing the order dated 15th July, 2003, passed by the U.P Secondary Education Service Selection Board, Allahabad, respondent No. 2, filed as Annexure-18 to the writ petition. By means of the said order the U.P Secondary Education Services Selection Board, Allahabad, respondent No. 2, had found that none of the seven charges has been proved and, therefore, the resolution passed by the committee of management of the colleges proposing dismissal of the services of Sri Rathore has been disapproved.

7. With the consent of the learned counsel for the parties, appearing in all the six writ petitions, they have been heard finally and are being decided at the admission stage, itself in accordance with the rules of court.

8. Briefly stated the facts giving rise to the present petitions are as follows:

In Civil Misc. Writ Petition No. 16905 of 2000 the facts are that Mahatma Gandhi Sainik Inter College, situate at Pachaya Gaon in the district of Etawah (hereinafter referred to as ‘the college’) is a recognised Intermediate College and is governed by the provisions of U.P Intermediate Education Act, 1921 (hereinafter referred to as ‘the Education Act’), Uttar Pradesh High School and Intermediate (Payment of Salaries to the Teachers and Other Employees) Act, 1971 (hereinafter referred to as ‘the Payment of Salary Act’) and the U.P Secondary Education Services and Selection Boards Act, 1982 (hereinafter referred to as ‘the Act of 1982’).

9. The post of Principal in the aforesaid college fell vacant whereupon the then seniormost Lecturer Sri Dinesh Chandra Dubey was appointed as officiating Principal. He continued to function till 30th June, 1998 on which date he retired. The charge of the officiating Principal was handed over to the petitioner. His signature was also attested by the District Inspector of Schools. Etawah, on the same day. The committee of management passed a resolution on 21st July, 1998, granting ad hoc promotion to the petitioner on the post of Principal. The District Inspector of Schools vide order dated 18th March, 1999 accorded approval to the resolution of the committee of management granting ad hoc promotion to the petitioner on the post of Principal. According to the petitioner, he is working as ad hoc Principal since then. It is alleged by the petitioner that a dispute relating to the post of Manager of committee of management of the college arose. The matter was taken up to this Court and the District Inspector of Schools vide order dated 23rd March, 2000 attested the signature of Smt. Rajeshwari Devi as manager of the college. Smt. Rajeshwari Devi lodged a first information report against the petitioner on 29th February, 2000 at police station, Pachaya Gaon on the basis of which Crime Case No. 21 of 2000 under Section 504/506, I.P.C was registered. The police submitted final report in the aforesaid crime case. It is alleged by the petitioner that he has also made a complaint to the Senior Superintendent of Police, Etawah, seeking enquiry against certain conducts and actions of Smt. Rajeshwari Devi. When some interference was being caused by Smt. Rajeshwari Devi in his functioning as ad hoc Principal of the college he approached this Court by filing the present writ petition under Article 226 of the Constitution of India seeking a writ of mandamus restraining the respondents from interfering in his functioning as ad hoc Principal of the college and for payment of regular salary.

10. In Writ Petition No. 34715 of 2000 filed by the committee of management and others, the manger and the Principal of the college, the facts are that on account of certain alleged misconduct and actions of the ad hoc Principal, Ravindra Singh Rathore, the committee of management vide resolution dated 3rd May, 2000 placed the respondent No. 2 (Ravindra Singh Rathore) under suspension and decided to initiate disciplinary proceedings against him. An enquiry was Initiated and its report was submitted on 30th July, 2000. Under Section 16G(7) of the Education Act, the District Inspector of Schools is to accord approval to the order of suspension within 60 days and if no orders are passed within 60 days from the date of suspension, the same would become inoperative till such time the District Inspector of Schools takes a decision either approving or disapproving an order of suspension. The petitioners requested the District Inspector of Schools to take a decision. According to the petitioners, the District Inspector of Schools was not inclined to take any decision as a result of which the petitioners had to approach this Court by filing Civil Misc. Writ Petition No. 28410 of 2000, which was disposed of by this Court vide judgment and order dated 17th July, 2000, directing the District Inspector of Schools to take an appropriate decision in accordance with law as early as possible. The District Inspector of Schools vide order dated 1st August, 2000, revoked the order of suspension of the respondent No. 2. The petitioners resisted the claim of the respondent No. 2 in resuming the charge on the post of ad hoc Principal of the college on the ground that the enquiry has already been completed and the disciplinary proceedings are on the stage of finalisation and if he is reinstated, he would tamper with the evidence and frustrate the enquiry and the disciplinary proceedings. Thus, the prayer made in this writ petition is for the quashing of the order dated 1st August, 2000 and to pass a fresh order on merit regarding the suspension of respondent No. 2.

11. Civil Misc. Writ Petition No. 2967 of 2001 has been filed by Ravindra Singh Rathore on the ground that he has been placed under suspension on 8th December, 2000, by the committee of management mala fidely only on the ground that the enquiry has been completed and further that the disciplinary proceedings are proposed for certain acts of misconduct committed by him. The order of suspension has been approved by the District Inspector of Schools vide order dated 9th February, 2001. Ravindra Singh Rathore has filed Civil Misc. Writ Petition No. 19317 of 2001 challenging the aforesaid order of approval on the ground that the said order has been passed without giving any show cause notice or any opportunity of hearing nor does it contain any reason and, therefore, is liable to be set aside. In the meantime Ravindra Singh Rathore has attained the age of superannuation on 30th June, 2001. The U.P Secondary Education Services Selection Board (hereinafter referred to as ‘the Board’) had issued a notice on 21st December, 2001, calling upon him to submit his explanation to the various charges levelled by the committee of management and also to the documents sent by him. The challenge is on the ground that since he has retired, the disciplinary proceedings cannot continue and is liable to be set aside. Notwithstanding the filing of Civil Misc. Writ Petition No. 3396 of 2002 by Ravindra Singh Rathore, as there was no interim order staying the proceedings before the Board the proceedings continued and the Board vide order dated 15th July, 2003, exonerated Ravindra Singh Rathore from all the charges levelled against him by the committee of management of the college and did not approve the proposed order of dismissal from service. This order is under challenge in Civil Misc. Writ Petition No. 39472 of 2003, filed by the committee of management and the Manager of the said College on the ground that the order dated 15th July, 2003 is ex parte as an adjournment of 24 hours was sought on the ground of illness of the representative of the committee of management and further the Board has not considered all the evidence and material on record.

12. I have heard Sri Ramesh Upadhaya, the learned counsel for the committee of management in all the cases, Sri Ashok Khare, learned senior counsel, assisted by Sri K.M Asthana and Sri V.K Singh, advocates for Ravindra Singh Rathore and the learned standing counsel who represents the State respondents.

13. At the outset it may be mentioned here that the learned counsel for the parties are agreed that on account of retirement of Ravindra Singh Rathore on 30th June, 2001, all the five writ petitions except Civil Misc. Writ Petition No. 39472 of 2003, have been rendered infructuous. In this view of the matter. Civil Misc. Writ Petition Nos. 16905 of 2000, 34715 of 2000, 2967 of 2001 and 19317 of 2001 have been rendered infructuous as Sri Ravindra Singh Rathore had retired on 30th June, 2001 whereas Civil Misc. Writ Petition No. 3396 of 2002 has become infructuous on account of the passing of the order by the Board.

14. So far as Civil Misc. Writ Petition No. 39472 of 2003 is concerned, Sri Ashok Khare, learned senior counsel appearing for Ravindra Singh Rathore raised a preliminary objection regarding the maintainability of the writ petition on the ground that the disciplinary proceedings could not have been continued after the retirement of Ravindra Singh Rathore on 30th June, 2001, inasmuch as there is no provision for continuance of enquiry/disciplinary proceedings after the retirement from service in the service rules applicable to teachers and Principals and other employees of an aided intermediate college. Thus, he submitted that this Court should decline to go into the merits of the order passed by the Board. In support of his submissions he relied upon a decision of the Hon'ble Supreme Court in the case of Bhagirathi Jena v. Board of Directors, O.S.F.C, 1999 (82) FLR 143 and a Division Bench decision of this Court in Civil Misc. Writ Petition No. 6829 of 1996, Dr. R.B Agnihotri v. State of U.P, decided on 22.2.2000

15. Sri Ramesh Upadhaya, the learned counsel for the committee of management, however, submitted that even though a Division Bench of this Court in the case of Dr. R.B Agnihotri (supra), has held that in the absence of any express provision, the departmental proceedings could not have continued after the superannuation of Dr. R.B Agnihotri who was the Reader in the department of Hindi in Kalpi College and it lapsed. The said decision would not be applicable in the present case in view of the specific provision in Rules 30 and 32 of the U.P State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 (hereinafter referred to as “the 1964 Rules”). He relied upon a decision of the Hon'ble Supreme Court in the case of Takhatray Shivadattray Mankad v. State Of Gujarat., 1989 Supp (2) SCC 110. He also referred to Regulation 351A of the Civil Service Regulations as adapted for application in the State of Uttar Pradesh.

16. After hearing the learned counsel for the parties, I find that Regulation 351A of the Civil Service Regulations which provide for continuance of an enquiry against a Government servant even after his retirement, is not applicable in the case of employee, teacher and Principal in an aided educational institution in the State of U.P Thus, the aforesaid provision cannot be pressed into service for justifying the continuance of the disciplinary proceedings after the retirement of Sri Ravindra Singh Rathore.

17. In the case of Dr. R.B Agnihotri, he was working as Reader in the Department of Hindi in Kalpi College, Kalpi. He retired on 30th June, 1998. The question was as to whether disciplinary proceedings could have continued even after the retirement of Dr. R.B Agnihotri on 30th June, 1998, in the absence of any statutory provision. Relying upon the decision of the Hon'ble Supreme Court in the case of Bhagtrathi Jena (supra), this Court has held that in the absence of any express provision the departmental enquiry could not have continued after the superannuation of the petitioner therein on 30th June, 1998 and, thus, it lapsed.

18. In the case of Bhagirathi Jena (supra) the facts are that Bhagirathi Jena was working as Joint General Manager on 30th June, 1995, in the Corporation when he retired. He was relieved on 1st July, 1995 by the Corporation without prejudice to the claim of the Corporation. He had been placed under suspension on 22nd July, 1992, in respect of various items of alleged misconduct and was issued charge-sheet on that day and disciplinary proceedings were initiated under Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. The question arose in regard to the continuance of the disciplinary enquiry for the purpose of reduction of retiral benefit payable to Bhagirathi Jena. The Hon'ble Supreme Court considering the provisions of Regulations 17 and 44(3)(c) of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959, which reads as under:

“17. The sum standing to the credit of a subscriber shall become payable on the termination of his/her service or on his/her death, provided that, there may if the Board so directs, the Administrators, be deducted therefrom and paid to the Corporation:

(a) any amount due under a liability incurred by the subscriber to the Corporation upto the total amount contributed by the Corporation to his/her account, including the interest credited in respect thereof.”

44(3)(c) When the employee who has been dismissed, removed or suspended, is reinstated, the Board shall consider and make a specific order:

(i) regarding the pay and allowance to be paid to the employees for the period of his absence from duty, and

(ii) whether or not the said period shall be treated as a period on duty.”

has held that the aforementioned Regulations do not contain any specific provision for deducting any amount from the Provident Fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. The Apex Court has held as follows:

“7. In view of the absence of such provision in the above said Regulations, it must be held that the Corporation had no legal authority to make any deduction in the retiral benefit of the appellant. There is also no provision for conducting a disciplinary enquiry after the retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from the retiral benefit. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.”

19. Reliance placed by Sri Upadhaya on the Rules 30 and 32 of the 1964 Rules is also misplaced. Rules 30 and 32 of the 1964 Rules are reproduced below:

“30. Future good conduct of the recipient is an implied condition of grant of pension/family pension under these rules. Government reserve to themselves the right of withholding or withdrawing such pension or any part thereof if the recipient be convicted of serious crime or be guilty of grave misconduct. Decision of Government in such matters shall be final.

32. Government will have the right to effect recoveries from the pension/family pension sanctioned under this Chapter in respect of any amount due from the employee to the management or the Government.”

20. From a reading of the aforesaid Rule 30, it will be seen that the Government has been given a discretion to withhold or withdraw such pension or any part thereof if the recipient is convicted of serious crime or be guilty of grave misconduct. It does not provide for continuance of the pending enquiry once the employee retires. Likewise, Rule 32 empowers the Government to recover any amount due from the employee to the management or the Government from the pension/family pension sanctioned to such employee. It also does not provide for continuance of the pending enquiry. Moreover these Rules only empower the State Government to withhold or withdraw full or a part of pension on conviction of the recipient of serious crime or on being guilty of grave misconduct and recovery of any amount due from such a person.

21. In the case of Takhatray Shivadattray Mankad (supra) on which reliance has been placed by Sri Upadhaya, the Hon'ble Supreme Court had reconsidered the provisions of Rules 188 and 189 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1959, which read as under:

“188. Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory.

189. Good conduct is an implied condition of every grant of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, shall be followed.”

The Hon'ble Supreme Court has held as follows:

“An examination of Rule 188 shows that the Government may reduce the amount of pension of a Government servant as it may think fit if the service of the Government servant has not been thoroughly satisfactory. As per Rule 189 the Government may withhold or withdraw a pension or part of it if the petitioner is convicted of serious crime or found to have been guilty of misconduct during or after the completion of service provided that before any order to this effect is issued, the procedure referred to in the Bombay Civil Services (Conduct, Discipline and Appeal) Rules are followed. These Rules, thus, have expressly preserved the State Government's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement. The validity of these rules has not been challenged. These two rules came for interpretation before this Court in State Of Maharashtra v. M.H Mazumdar and this Court expressed its view with reference to these rules as follows:

(SCC pp. 55-56, para 5)

“The aforesaid two rules empower Government to reduce or withdraw a pension. Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service. Grant of pension and its continuance to a Government servant depend upon the good conduct of the Government servant. Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension. Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service. This rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance with the procedure specified in Note I to Rule 33 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. The State Government's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid rules. The validity of the rules was not challenged either before the High Court or before this Court. In this view, the Government has power to reduce the amount of pension payable to the respondent. In M. Narassimhachar v. State of Mysore and State of Uttar Pradesh v. Brahm Datt Sharma, similar rules authorising the Government to withhold or reduce the pension granted to the Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant.”

22. The aforesaid decision was considered by the Hon'ble Supreme Court in the case of Bhagirathi Jena (supra). The Hon'ble Supreme Court in paragraph 8 has held as follows:

“Learned senior counsel for the respondent placed reliance on the judgment of this Court in T.S Mankad v. State of Gujarat. It is true that was a case of Imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent inasmuch as in that case there was a specific rule, namely Rule 241A of the Junagarh State Pension and Parwarish Allowance Rules, 1932, which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241A. In the absence of similar provision with Regulations of the respondent Corporation, the above judgment of Mankad's case cannot help the respondent.”

23. As noticed hereinbefore there is no specific provision which empowers the continuance of a disciplinary proceedings against an employee, teacher and Principal of an aided educational institution in the State of U.P Rules 30 and 32 of the 1964 Rules also do not empower for continuance of departmental enquiry once the person has retired. Thus, the disciplinary proceedings could not have continued and it lapsed.

24. In the case of State Bank of India v. A.N Gupta. (1997) 8 SCC 60, the Hon'ble Supreme Court was considering the question as to whether a departmental enquiry can be continued after the retirement in case of an employee of the State Bank of India. The Apex Court considered the judgment of the Andhra Pradesh High Court in T. Narasiah v. State Bank of India, (1978) 2 LLJ 173. In paragraph 14 of the judgment, the Hon'ble Supreme Court has held as follows:

“14. In the case before the Andhra Pradesh High Court (T. Narasiah) the petitioner was an officer in the State Bank. Disciplinary proceedings were initiated against him but before these could be completed the officer was informed by the Bank through its letter dated 5.5.1976, that it was not possible for the Bank to complete the enquiry well in time before the officer attained the age of 60 years which was the date of his superannuation. He was told he would therefore cease to be in the Bank's service on the date of his superannuation and he would not be paid any subsistence allowance with effect from that date. The officer was treated as having retired and ceasing to be in the employment of the Bank with effect from 10.5.1976 The Officer claimed his provident fund and pension and on the Banks' refusal to pay the same, a writ petition was filed. During the course of the hearing of the writ petition it was submitted by the Bank that it had since decided to pay the provident fund in full to the officer and the Bank had also no objection to pay his contribution to the pension and that as far as the payment of the Bank's share in the pension fund was concerned, the officer was not entitled thereto unless and until the Bank granted the same in accordance with Rule 11 of the Pension Rules. It was contended before the Andhra Pradesh High Court by the officer that Rule 11 had no application in his case and on attaining the age of superannuation he automatically went out of the service of the Bank. The Bank, however, relied on Rule 11 to withhold the Bank's contribution to the pension fund. The Court was of the view that Rule 11 had to be read in its context and consistent with the object behind the said Rule. It held that the Rule applied not only in the case of the retirement contemplated by Rule 19 but also to cases of retirement of employees on attaining the age of superannuation. The Court observed that it might happen that the irregularities of misfeasance of an employee could not be detected well before his retirement so as to initiate and complete disciplinary enquiry in the matter and again there might be a case where disciplinary enquiry was initiated but could not be completed before the delinquent employee attained the age of superannuation. The Court noted that there was no provision in the Service Rules of the Bank providing for extension of service of an employee to enable the authorities to complete the disciplinary enquiry against him which power was available under the Government Service Rules. The Court said even if an enquiry was pending against an employee there was nothing to stop him from retiring on his attaining the age of superannuation. The enquiry could not continue after his retirement. The Court was, therefore, of the opinion that it was for that reason that the bank had reserved to itself the power to sanction the pensionary benefit under Rule 11 and if there was nothing wrong with the service of an employee throughout, the Bank would naturally sanction the pension, but if there was sufficient material disclosing grave irregularities on the part of the employee, the Bank might be well within its power in refusing to sanction the pensionary benefits, or in sanctioning them only partly. The learned single Judge of the Andhra Pradesh High Court then went on to hold as under:

“Of course, such decision has to be arrived at fairly, which necessarily means after holding an enquiry, giving a fair opportunity to the concerned officer to defend himself against the accusation. Such an enquiry would not be a ‘disciplinary enquiry’ within the ordinary meaning of the term, but an enquiry confined to the purposes of the Rules, viz., whether the employee should be granted any pensionary benefits; and if so, to what extent? Such an enquiry can also be made after the retirement (of an employee; and particularly in cases of retirement) on attaining the age of superannuation, probably, such enquiry will have to be conducted only after retirement.”

The Court, therefore, gave direction as to how the enquiry was to be conducted against the officer so as to entitle him to the pensionary benefits if he was exonerated. We are afraid that this view of the Andhra Pradesh High Court does not commend to us. By giving such an interpretation to Rule 11 the Andhra Pradesh High Court has, in effect, lend validity to disciplinary proceeding against an employee even after his superannuation for which no provision existed either in Pension Rules or in the Service Rules and when the High Court had himself observed that an enquiry even if initiated during the service period of the employee could not be continued after his retirement on superannuation.”

25. Thus, the Hon'ble Supreme Court has held that no disciplinary proceedings against an employee even after his superannuation for which no provision existed either in the Pension Rules or in the Service Rules, can be continued.

26. Recently, the Hon'ble Supreme Court in the case of Chandra Singh v. State of Rajasthan, JT 2003 (6) SC 20, has held as follows:

“37. ………A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue.”

27. Applying the principle laid down in Chandra Singh (supra) and Bhagirathi Jena (supra) to the facts of the present case, in the absence of any specific provision in the 1964 Rules, the proceedings for continuation of enquiry after the retirement of the employee lapsed.

28. The disciplinary proceedings can also not be saved in the present case on the ground that the committee of management had passed a resolution dismissing Sri Ravindra Singh Rathore from the post of Principal in the college and only the proposed punishment was required to be approved by the Board under Section 21 of the Act of 1982. Section 21 of the Act of 1982 reads as follows:

“21. Restriction on dismissal etc. of teachers.—The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void.”

29. The statement of objects and reason for enacting the Act of 1982, inter alia, provided as follows:

“………………Under Section 16G(3) of the Intermediate Education Act, 1921, managements were authorised to impose punishment with the approval of the District Inspectors of Schools in matters pertaining to disciplinary action. This provision was found to be inadequate in cases where the management proposed to impose the punishment of dismissal, removal or reduction in rank and so it was considered necessary that this power should be exercised subject to the prior approval of the Commission or the Selection Boards, as the case may be, which could function as an independent and impartial body.”

30. The Hon'ble Supreme Court in the case of Committee of Management, St. John Inter College v. Girdhari Singh, (2001) 4 SCC 296, has after taking into consideration the statement of objects and reasons of the Act of 1982, held that it unequivocally indicates that earlier provisions continued under Section 16G(3)(a) of the Education Act were found to be inadequate where the management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the Legislature thought that the power of approval/disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority, like the District Inspector of Schools, but should be vested with an independent Commission or Board which would function as an independent and impartial body.

31. Under Section 21 of the Act of 1982 the Board has to examine the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal or not. The Hon'ble Supreme Court in the case of Committee of Management Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital v. U.P Secondary Education Service Commission, 1995 Supp (3) SCC 244, in paragraph 4 of the judgment, has held as follows:

“……………We have also noticed Section 21 of the Act to which our attention was particularly drawn. We are of the view that the High Court has fallen in error in holding that the enquiry was vitiated because the charge-sheet was not framed by the enquiry committee but by the committee of management. The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval of the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal. It must be remembered that the commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record……………….”

32. In the case of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84, the Hon'ble Supreme Court has held that the disciplinary proceedings breaks into two stages. The first stage commences when the disciplinary authority arrives at its conclusion on the basis of the evidence, the enquiry officer's report and the delinquent employee replied to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. Since under Section 21 of the Act of 1982, it has been provided that if the management dismisses any teacher or removes him from service or serves on him any notice of removal from service or reduces him in rank or reduces his emoluments or withholds his increments for any period, whether temporarily or permanently, except the prior approval of the Board, such thing done without such prior approval shall be void.

33. Thus, it can safely be said that till such time the Board after considering the relevant material and going into the merits of the charges either approves or disapproves the proposed order of punishment, the disciplinary proceedings are continuing. Since Sri Ravindra Singh Rathore has retired before the Board had considered the matter for according approval, as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued.

34. In the case of Bhagirathi Jena (supra), the Hon'ble Supreme Court had directed for payment of the balance emoluments where the enquiry had lapsed. Paragraph 9 of the judgment is reproduced below:

“9. The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and upto the date of superannuation inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the above said period.”

35. Respectfully following the principle laid down by the Hon'ble Supreme Court, it is held that Ravindra Singh Rathore is entitled to get the balance of the emoluments payable to him after deducting the suspension allowance, if any, that was paid to him during the above said period.

36. The preliminary objection raised by Sri Ashok Khare is sustained and accordingly, it is held that this writ petition is not maintainable.

37. In view of the foregoing discussions, all the writ petitions are dismissed. However, the parties shall bear their own costs.