THE RT. REV. B.P. SUGANDHARversusSAT. D. DOROTHY DAYASHEELA EBENESER

                THE RT. REV. B.P. SUGANDHAR                                      A
                              v.
          SAT. D. DOROTHY DAYASHEELA EBENESER

                              APRIL 12, 1986

             \S.C. AGRAWAL AND G.T. NANAVAT!, JJ.j                               B

      Constitwion of India, 1950 : A1tic/e 226.

        Depmt1r.ental enquiry--Constitutio11 of Enqui1y Commissio1r-Chal-
lenged by suspended employee-Mea11whi/e decision taken to hold regular           C
enquiry and to appoint Enquily Office1-Held : It was fittile to quash con-
stitutio11 of Enquily Commission.

      Se1Vice Law :

       Suspension of employee pending departmental enquiiy into financial        D
irregularities-High Cowt directed nianagement to restore employee to pre-
vious post-Held : In the circunzstances of the case, viz ad1ninistrative &
financial irregulalities, and disobedience the pwt of or employee, High Cowt's
direction not proper-Management directed to go on paying full salwy till
enquiry was over.
                                                                                 E
       The appellant, Chairman of the Executive Committee of the Techni-
cal Institute, appointed an Enquiry Commission to enquire into the acts
of commissions and omissions of the respondent- Principal. She was also
suspended. A copy of the terms of reference of the Enquiry Commission
was served on the respondent. After the Enquiry Commission found that F
there was sufficient material in support of the charges, the appeIIant
issued a notice to the respondent to show cause why she should not be
dismissed from service. Thereupon, she filed a writ petition in the High
Court challenging her suspension and the appointment of the Enquiry
Commission. The appeIIant state that the Enquiry Commission was only G
a fact-finding body and that an Enquiry Officer would be appointed to bold
an enquiry and that a detailed charge-sheet would be issued on the report
of the Enquiry Commission. In view of this statement a Single Judge of the
High Court dismissed the petition as premature. Her writ appeal was
ailowed by a Division Bench on the ground that the ternis of reference
made to the Enquiry Commission were vague and general and that there H
                                     247
    248                  SUPREME COURT REPORTS [1996[ SUPP.1 S.C.R.

A was 'element of ma/a fides' on the part of the appellant in initiating the
    said proceedings and that the order of suspension having come to an end
    the respondent was entitled to be restored as Principal. Aggrieved by that
    order the appellant had filed this appeal.

          Allowing the appeal, this Court
B
         HELD : 1.1. The Division Bench of the High Court should not have
  quashed 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. The purpose of constituting the
c Commission of Enquiry was to hold only a preliminary enquiry to ascer-
  tain whether there was some truth in the complaints made against the
  respondent and whether there was enough material on the basis of which
  misconduct of respondent could be proved. The Division Bench failed to
  appreciate that at that stage no formal charge was required to be framed
D nor even participation by the respondent 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 the respondent only enable her to put
  forward her explanation so that also could be considered along with the
  report of the Commission of Enquiry before taking a decision as to whether
E 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. [251-B-D]

          1.2. The Single Judge had rightly dismissed that writ petition as
    premature and it was not proper for the Division Bench to set aside that
p   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 the fine to hold a regular full-fledged enquiry and
    appointed an Enquiry Ollicer for that purpose. [251-E-F]

G       2. The charges levelled against the respondent are quite serious.
  They pertain not only to administrative irregularities but also to financial
  irregularities and disobedience. In snch circnmstances, the direction of the
  High Court for restoration of the respondent on the post of Principal is
  set aside. The appellant is directed to 110 on paying the full salary and
H allowances to her till the enquiry is over. (252-D-E]
         B.P. SUGANDHAR v_ D.D.D. EBENESER [NANAVAT!, J_]                 249

     M. Chandrasekhara Rao v. Shri Sarvodaya College, (1988) 1ALT651             A
and Dr. Philomena v. Govemment of Andhra Pradesh, (1994) 2 ALT 665,
approved.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.7137 of
1996.
                                                                                 B
     From the Judgment and Order dated 1.2.96 of the Andhra Pradesh
High Court in W.A. No. 1746 of 1995.

        Soli J. Sorabjee, A.T.M. Sampath and V. Balaji for the Appellant.

        Rajeev Kumar Singh for the Respondent.                                   c
        The following Order of the Court was delivered by

        NANAVATI, J. Leave granted.

       The Diocese of Medak is running an institution known as CSI EVA           D
 MAIR Technical Institute at Secunderabad. The appellant is the Chairman
 of the Diocesan Executive Committee and respondent No. 1 is the Prin-
 cipal 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        E
 to appoint an Commission to enquire into the acts of commissions and
 omissions of Respondent No. 1. H 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 refer-
 ence were as under :                                                            F

        1. Wilful insubordination and non-cooperation

        2. Leaving headquarter without prior permission or intimation.

        3. Unauthorised appointment of staff                                     G
        4. Admissions

        5. Purchases of furniture and equipment.

        6. Addressing letters against the Bishop and Diocesan Adminis_tra- H
    250                    SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   tion

          7. Using derogatory remarks against the Bishop and Diocesan Ad-
    ministration; and

           8. Entire functioning of the Institution.
B
            The Commission of Enquiry 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 dismissed from service.
c   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
D   enquiry and that a detailed charge-sheet will be issue 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 respondent to the allegations made
E   against her the appellant appointed an Enquiry Officer on 29.12.1995. The
    Division, 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 ma/a fides' on the part of the appellant in
    initiating the said proceedings and that the order of suspension dated
F   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 Division Bench of the High Court completely
G   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
    ResJlondnet No. 1 to assume charge as Principal. It was submitted that in
H   view of the· nature of the allegations made against her and in view of the
        B.P. SUGANDHAR v. D.D.D. EBENESER [NANAVATI, J.]               251

subsequent conduct in delaying the proceedings the order of suspension        A
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 constitut-
                                                                            ·B
ing 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 C
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 also could be considered D
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
make 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 E
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 Enquiry Officer for that purpose.
                                                                              F
      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 v. Shri Sa1vodaya College, (1988) l ALT 651 and Dr. Philomena v.
Govemment 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
                                                                              G
serious irregularities found to have been committed by her. In M.
Chandrasekhara Rao's case (supra) the High court after coirnidering the
effect of Section 79(3) of the AP. Education Act has held that in a case
where there are grave charges of misconduct, whatever may be the reason
for not completing the en<1uirv within the prescribed time, the interest of   H
    252                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   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/res-
    toration of the employee iato 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) in mandatory and on
B   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
    dale 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,
C   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. Un-
    fortunately, the High Court did not consider this aspect and bas ordered
    restoration of Respondent No. 1 on the post of the Principal. From the
    material on record we find that the charges levelled aginst Respondent No.
D   l 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
E   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.

    V.S.S.                                                      Appeal allowed.