http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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.