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Ramkrishna Babuso Jalmi Laboratory Assistant Vocational Section (Computer Technic) v/s State of Goa Through Chief Secretary Alto Porvorim, Bardez Goa & Others

    Stamp Number Main No. 962 of 2020 (Filing No.)
    Decided On, 06 September 2021
    At, In the High Court of Bombay at Goa
    By, THE HONOURABLE MR. JUSTICE M.S. SONAK & THE HONOURABLE MRS. JUSTICE M.S. JAWALKAR
    For the Petitioner: Rohit Bras De Sa, Advocate. For the Respondents: R1, R2 & R5, Sapna Mordekar, Additional Government Advocate.


Judgment Text
Oral Judgment: (M.S. Sonak, J.)

1. Heard Mr. Rohit Bras De Sa, learned counsel for the Petitioner, and Ms. S. Mordekar learned Additional Government Advocate for Respondent Nos. 1, 2, and 5.

2. On 7th September 2020, we made the following order in this matter.

“The learned Advocate General states that necessary bills for subsistence allowance from the School have already been received and the same will be processed within a period of one week from today. We place this matter on 28.09.2020 for further consideration.

2. Subject to constraints of time, endeavour shall be made to dispose of this petition finally at the stage of admission. The petitioner to give a fresh notice to the Respondent No.3 and 4, informing them about today's order. In case, Respondents No.3 and 4 wish to file any response to this petition, they may do so by 24.09.2020 by service of advance copy upon the learned Counsel for the petitioner.

3. The petitioner is directed to supply a legible copy of the impugned order at pages 25 and 26 of the paperbook. In case there are any further illegible documents, leave is also granted to the petitioner to replace the same with legible copies. 4. Stand over to 28.09.2020.”

3. On 19th August 2021, there is an endorsement in the file that Respondent Nos.3 and 4 i.e. School Management and the Principal of the School have been duly served in this matter. On 23rd August 2021, we directed the issuance of fresh notice to Respondent Nos. 3 and 4. Now, Mr. De Sa states that Respondent Nos. 3 and 4 have been once again served on 3rd September 2021.

4. Rule. The rule is made returnable forthwith with the consent and at the request of the learned counsel for the parties.

5. The challenge in this petition is to the order dated 2nd March 2020 made by the Director of Education and order dated 9th March 2020 issued by the School Management based on which, the Petitioner was suspended from service pending inquiry, concerning certain statements made by him at the CAA rally and in the social media. The order dated 2nd March 2020 has been made by the Director of Education alleging that the Petitioner has violated the Code of Conduct specified under Goa School Education Rules 1986 and provisions of Section 12(2)(b) of the Goa School Education Act, 1984. This order directed the Managing Committee of the School to suspend the Petitioner under Section 11(3) of the Goa School Education Act, 1984 and to initiate disciplinary action and thereafter report compliance.

6. By order dated 9th March 2020, the School Management placed the Petitioner under suspension for an initial period of six months pending the inquiry.

7. Now there is no dispute that during the pendency of this petition, the Petitioner has been reinstated by the School Management and is in receipt of full salary. Even the arrears relating to the period of suspension have been paid to the Petitioner. Mr. De Sa however points out that no formal order has been issued either revoking the order dated 9th March 2020 or otherwise lifting the suspension.

8. It is in the aforesaid context that we issued notice to the School Management making it clear that this matter would be disposed of finally at the stage of admission. However, the School Management has not bothered to remain present before this Court.

9. Therefore, we formally declare that the suspension of the Petitioner effected vide order dated 9th March 2020 stands revoked.

10. The order dated 2nd March 2020 made by the Director is challenged on the ground that in terms of the said Act and Rules made thereunder, there is no authority vested in the Director to issue directions to suspend a teacher of the aided school.

11. Section 11 of the said Act deals with terms and conditions of service of employees of recognized private schools. Section 11(3) provides that where the managing committee of a recognized private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except where a disciplinary proceeding is contemplated or pending, and except with the prior approval of the Director. The first proviso to this provision states that no such suspension shall remain in force for a period exceeding six months, which may, with the prior approval of the Director and for reasons directly attributable to the teacher and recorded in writing, be extended by a further period of three months at a time. The second proviso to Section 11(3) of the said Act provides that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reasons of the gross misconduct, within the meaning of the Code of Conduct prescribed under Section 12 of the said Act, the employee or where a case against him in respect of any criminal offense involving moral turpitude is under investigation, enquiry or trial. The next proviso provides that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.

12. Section 11(4) provides that where the intention to suspend or the immediate suspension of, an employee is communicated to the Director, he may, if he is satisfied after hearing both the parties that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.

13. Sub-section (4a) of Section 11 provides that where an employee is suspended in violation of sub-section (3) and (4), or the rules made thereunder, the Director may direct for revocation of the order of suspension.

14. From the aforesaid provisions, it does appear that it is the School Management that is vested with the authority to suspend its employee. Such suspension has to ordinarily be after obtaining prior approval from the Director. In certain contingencies, the School Management can even immediately place under suspension but thereafter seek approval from the Director. Such immediate suspension cannot remain in force for more than fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.

15. Section 11(4) provides that the Director has to hear both the parties and satisfy herself that there are adequate and reasonable grounds for suspension before according approval for suspension or ratifying an immediate suspension. Subsection (4a) of Section 11 then provides that where an employee is suspended in violation of subsection (3) and (4), or the rules made thereunder, the Director may direct for revocation of the order of suspension. This means that the Director has appellate jurisdiction over the order of suspension issued in violation of subsections (3) and (4).

16. Having regard to the aforesaid scheme, there is merit in the contention of Mr. De Sa that the Director could not have herself directed the School Management to suspend the Petitioner. The School Management also, in such matters, has to apply its independent mind and decide whether its employee is required to be suspended or not. The Director by herself directing the suspension of the Petitioner has rendered it impossible for herself to even go into the issue as to whether such suspension deserves to be accorded approval or otherwise interfered with. Before according approval, the Director is required under the scheme of Section 11 to hear the affected party which would mean the employee concerned as well as the Management. The Director, in the present case, made the impugned order without hearing the Petitioner and possibly relying solely on some newspaper reports. This is contrary to the statutory regime and violates the principles of natural justice.

17. Ms. Mordekar learned Additional Government Advocate submits that though the order dated 2nd March 2020 may not have been happily worded but what was meant by the said order was only a direction to consider whether any action in terms of Section 11 is required to be taken against the Petitioner herein.

18. At least wordings of the order dated 2nd March 2020 do not support the submission of Ms. Mordekar. Besides, it does appear that the School Management regarded the order da

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ted 2nd March 2020 as some binding directions and thereafter proceed to suspend the Petitioner without any independent application of mind. 19. For all the aforesaid reasons, the order dated 2nd March 2020 is required to be set aside and is hereby set aside. 20. Even the order dated 9th March 2020 to the extent it had suspended the Petitioner is declared as inoperative. Already, the suspension has been revoked in the sense that the Petitioner has been allowed to resume duties and has also been paid for discharging his duties. 21. Nothing in this order intended to interfere with the inquiry or proposed inquiry against the Petitioner as such issue is not before us. All contentions of all parties in this regard are expressly kept open. 22. The rule is made absolute in the aforesaid terms. There shall be no order as to costs. 23. All concerned to act on the authenticated copy of this order.
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