DADI GANGARAM NAIK Vs. ADARSHA VIDYA PRASARAK MANDAL

JUDGEMENT

(1.) THE petitioner in Writ Petition No.261/89 is a Laboratory Assistant in the Smt. Kamlabai Hede High School, Shiroda, under the respondents no. 1 and 2, which is an aided School administered and managed by the respondents no. 1 and 2.He challenges the order of suspension passed against him on 28th March, 1989, as disciplinary proceedings were contemplated which is produced as Exhibit 'c' in this Writ Petition. He also prayed for the consequential relief to direct the respondents no. 1 and 2 to take him back in service and also pay his salary from the date of suspension.

(2.) WRIT Petition No.453/92 was filed by Dr. Ramkrishna Tukaram Parkar, President of the Adarsh Vidya Prasarak Mandal, Shiroda, who is the Manager of Smt. Kamlabai Hede High School, Shiroda, challenging the order of the Administrative Tribunal passed by it in Education Appeal No.1/90 date 16th June, 1992, whereby the Administrative Tribunal has reduced the punishment imposed by the petitioner against the respondent no. 1 (petitioner in WRIT Petition no. 261/89) and also ordered barring three increments and re-instatement of the first respondent, setting aside the order of termination. These two WRIT Petitions are therefore closely connected and related to each other as the facts are almost common. Though these two WRIT Petitions have been heard by us separately, since they are closely related to each other, to avoid repetition of facts, we are disposing these two petitions by this common judgment.

(3.) THE counter this argument, the learned counsel for the Management Mr. Kantak, submits that eventhough a time limit is prescribed under the second proviso to Sub-section (3) and the word used therein is "shall" it cannot be treated as mandatory and the power of the Management to suspend an employee is inherent in the employer and therefore, the violation of that Rule will not make complete suspension nugatory. He drew our attention to Sub-section (3) of Section 11 where the power of the Management to suspend a teacher/employee has been stated but it is only regulated by taking approval of the Director in order to have a check on the exercise of the power of the employer to suspend an employee on unscrupulous grounds. He also cited a decision of the Allahabad High Court in 'committee of Management, Adarsh Ram Chandra Inter College Churdiha Dist. Deoria & Anr. vs. District Inspector of Schools, Deoria & Anr. ' reported in 1994 (1) E. S. C. 61, where a similar provision in the U. P. , Intermediate Education Act, 1921 has been interpreted by the learned Judge of the Allahabad High Court, and it has been held that if the order of suspension was not approved or disapproved within 60 days as laid down in Section 16-G of the U. P. Intermediate Education Act, 1921, it does not lose its existence. THE intention of law appears to be to make it inoperative. Even after the expiry of the period of 60 days, the Inspector shall have to pass an order in accordance with the law approving or disapproving the order of suspension. If the relevant provisions are considered the object of law is clear and it is to prevent unnecessary harassment to the Principal, Teachers and employees at the hands of the Management. At the same time, it preserves the power of suspension whenever necessary and desirable and the authority of approval conferred on the Inspector has to be considered in this perspective. He also cited for this proposition a decision in the case of 'biswanath Khemka v. Emperor' reported in AIR (32) 1945 F. C. 67. He also relied upon a decision of the Supreme Court in 'owners and Parties interested in M. V. "vali Pero" vs. Fernandeo Lopez & Ors. ' reported in AIR 1989 S. C. 2206 to support his contention and argued that wherever the word "shall" occurs in a statute, it is settled that this is not an invariable rule. Eventhough the word "shall" is considered ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be merely directory. In para 20 of the judgment the Supreme Court has observed: " THE consequence of failure to comply with any requirement of Rule 4 ibid is not provided by the statute itself. Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the non-compliance. Rule 4 uses the word 'shall' even while requiring the signature of the witness as it uses the word 'shall' in respect of the other requirements of the Rule. Ordinarily, the word 'shall' used at several places in Rule 4 must be given the same meaning at all places. However, it is also settled that this is not an invariable rule and even though the word 'shall' is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory. In short, the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word 'shall' has been used. "