JOGESWAR BERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners while serving as Headmasters of different High Schools were pbbed under suspension, vide Annexure 4 of O. C. J, No 2439/84 and Annexure 1 of O. C. J. No. 2452/84, pursuant to memo of the Inspector of Schools informing about misappropriation of large suits of money (Rs. 24,615,25 in one case and Rs, 35.4S4.40 in the other) by committing forgery, fraud and embezzlement. The ordeTS of suspension stated that the same would remain in force till the criminal and civ! proceedings that would be drawn up are finalised.

(2.) THE validity of these suspension orders has been assailed in these two writ petitions. The attack is on the ground that the second Proviso to Rule 21 (2) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as 'the Rules') was not attracted since under that proviso an order of suspension can be passed only when a disciplinary proceeding is initiated. When this matter came to be heard by a Division Bench on 10 -5 -1990, Shri Rath appearing for the petitioners contended that as no disciplinary proceeding had been initiated or even contemplated, the orders of suspension were invalid inasmuch as the same were beyond the scope and ambit of the power of suspension conferred by the aforesaid proviso. In support of his contention, Shri Rath placed reliance on a Bench decision of this Court in the case of Adiiunda Jena and Anr. v. State of Orissa -and others (1990 (1) OlK 234). The Bench hearing these petitions felt that this decision supported the contention of Rath but thought that the said decision might be reconsidered by a larger Bench. It is because of this that the matter has been heard by this Bench.

(3.) IN so far as the facts of the present cases are concerned, we are really not called upon to decide whether during the pendency of any criminal proceeding.; suspension can be ordered in exercise of the powers conferred by the second proviso to Rule 21 (2) of the Rules. We have said so because the two suspension orders at hand clearly state that the suspension shall remain in force till the civil proceedings that would also be drawn up are finalised. Now, though the orders have spoken about 'civil proceedings', we have no doubt that the authority passing, the orders had in mind 'disciplinary proceedings' as mentioned has been made about drawing up of the 'proceedings. Had it been that filing of civil suit would have been in contemplation, mention would not have been made about drawing up of a proceeding. That power under the aforesaid proviso can be invoked even when disciplinary proceeding is under contemplation has not been doubted before us, and rightly, in view of the decision of this Court in Pitabas Sahu v. Managing Committee of Sahada R. IM.M.S. School, 61 (1986) GLT 105, the ratio of which on .this point has been recently approved, by a Full Bench of this Court in Keshab Chandra v. State of Orissa, 1990 (II) OLR 276.