- (1.) R. A. Sharma, J. Respondent No. 4 is the Principal of Bhawans Mehta Maha Vidyalaya, Bharwari, Allahabad (hereinafter referred to as the College ). He was suspended by order dated 9-2-1996 of the Committee of Management, against which he filed a representation before the Vice-Chancellor, Sri Sahuji Maharaj Vishwa Vidyalaya, Kanpur (hereinafter referred to as the University) in which the Vice-Chancellor passed an interim order, staying the order of the suspension. This order was com municated to respondent No. 4 by letter dated 17. 2-1996. Being aggrieved by it the Committee of Management of the college along with its Manager have filed this writ petition.
(2.) RESPONDENT No. 4 is represented by Sri Vinay Sheel Dwivedi, who has filed a caveat on his behalf. RESPONDENT No. 4, has also filed a' counter-affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the petitioner, learned counsel for respondent No. 4 and Sri J. N. Verma, learned counsel for the Vice-Chancellor of the University. Sri K. N. Tripathi, learned counsel for the petitioner has challenged the impugned order on two grounds, namely (i) Vice-Chancellor in exercise of his power under sub-section (4) of Section 35 of the State Universities Act, 1973 (hereinafter referred to as the Act) has no jurisdic tion to stay an order of suspension pending inquiry without giving an opportunity of hearing to the Management of the College, which has passed that order ; and (ii) in view of the facts and circumstances of the case, it was not a case where Vice-Chancellor should have granted an interim stay. Learned counsel for the University, apart from disputing the above contentions, has contended that the impugned order passed by the Vice- Chancellor was necessary in view of the ensuing examination, learned counsel for respondent No. 4 has also disputed the above contentions of the petitioner and has further submitted that the petitioner No. 1 is not the Managing Committee of the college and the petitioner No. 2 is not validly elected Manager. Although in view of sub-section (2) of Section 35 of the Act an order of dismissal, removal or reduction in rank of a teacher cannot take effect unless approved by the Vice-Chancellor; but an order of suspension pending inquiry does not require any such approval. This is clear from sub-section (4) of Section 33, which is reproduced below : "35 (4) Nothing in sub-section (2) shall be deemed to apply to an order of suspension pending inquiry but any such order may be stayed, revoked or modified by the Vice-Chancellor. " Under sub-section (4) the Vice-Chancellor has the power to stay, revoke or modify the order of suspension pending inquiry stay order is passed by way of interim measure during the pendency of the proceedings before a court or the authority. It is open to the authority to pass an ex parte interim order but such an order cannot be made absolute/final unless opportunity of being heard has been given to the other party to the proceedings. A Division Bench of this Court in Committee of Management v. Vice- Chancel for, 1987 (1) AWC 634 has dealt with this issue and has held that Vice-Chancellor can pass an ex parte stay order but he should not finalise it without giving an opportunity of being heard to the parties. The relevant extract from the said judgment is reproduced herein below : "it is one of the accepted principles that no order which has the effect of revoking, nullifying or modifying an order should be made without hearing the parties affected thereby. He may make an ex parte order but should after giving both the parties a reasonable opportunity of being heard make a final order. He should not keep the ex parte stay order for long. " The first contention, is therefore, rejected.
(3.) THAT apart, when the petitioner has an efficacious remedy before the Vice-Chancellor for getting the impugned order recalled, we do not con sider it to be a fit case to entertain this writ petition at this stage. In the instant case the petitioners have already made representation to the Vice-Chancellor for recalling the impugned order. The Vice-Chancellor has to deal with and decide it in accordance with law. A regards the second contention, it relates to the propriety of the order, which has been passed by the Vice- Chancellor under sub-section (4) of Section 35 of the Act. It is a question of fact, which can be decided on the basis of the material on record. As the petitioners have filed represen tation against the said order, it is not for this Court to go into this question and it is open to the petitioners to agitate the same before the Vice-Chancellor.;