- (1.) C.P. Sharma, who was the Principal of Mahadev Desai Senior Secondary School, Faridabad, having been so appointed on 22.8.1986 vide Annexure P-1 was suspended on 5.10.1991. He was also charge sheeted and he gave his reply and contested the matter. On enquiry that was held, he was found guilty of the charges levelled against him and his services were, thus, terminated on 7.1.1991. Under the provisions of the Act known as Haryana Aided Schools (Security of Service) Act, 1971, whenever major penalty is imposed upon the employee which as per Section 2(d) means an employee of aided school, approval has to be sought from the District Education Officer. Sections 2 and 3 which deal with the matter read as follows : "2. Definitions in this Act, unless the context otherwise requires - (a) aided school, means a school receiving aid from the State Government (b) 'Director' means the Director of Public Instructions Haryana and includes any other officer authorised by the State Government in this behalf; (c) 'District Education Officer' means the District in which an aided school is situated and includes any other officer authorised by the State Government in this behalf; (d) 'employee' means a person in whole-time employment of an aided school and (e) 'Prescribed' means prescribed by rules made under this Act. 3. Procedure of punishing employees of aided schools. (1) No employee shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such enquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry. Provided that this section shall not apply where an employee is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge involving moral turpitude. (2) No order of dismissal or removal or reductioning rank of an employee shall take effect unless it has been confirmed by the District Education Officer who may refuse to do so, if, in his opinion, the provisions of sub section (1) have not been complied with. (3) An employee against whom an order of the nature specified in sub section (1) is passed without complying with the provision of sub section (1) or sub section (2) may within a period of thirty days of the date of communication of the order, make an application to the District Education Officer challenging such an order on the ground that he is an employee to whom the provisions of sub section (1) and sub section (2) apply and the District Education Officer may, after giving the parties an opportunity of being heard and after making such further enquiry as he may think fit, make an order refusing the application or setting aside the impugned order. (4) Any person aggrieved by any decision or order made by the District Education Officer under this section, within a period of thirty days from the date of communication to such person of the decision or order prefer an appeal to the Director who may after giving the parties an opportunity of being heard and after making such further enquiry, if any, as he may consider necessary pass such order as he thinks fit, confirming, modifying or reversing the decision or order appealed against." The provisions of Section 3 quoted above would manifest that not only it is necessary that an enquiry has to be held in which an employee has to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, it is also necessary to seek opinion of the District Education Officer and it is well within the discretion of the District Education Officer to refuse to do so, if in his opinion the provision of sub-section (1) of Section 3 have not been complied with. Sub-section (4) of Section 3 clearly provides that an aggrieved party may prefer an appeal which lies to the Director Secondary Education. The respondent, school in view of clear mandate of Section 3, as referred to above, asked for the approval which was specially declined by the District Education Officer vide order dated 23.3.1992 (Annexure P-21). Order Annexure P 21, referred to above, passed by the District Education Officer clearly mentions that the record concerning termination of petitioner had not been sent and that no decision could be taken in the absence of record. It was further observed by the District Education Officer that the method adopted in terminating the service of the petitioner was unconstitutional. The conduct of enquiry was at the level of management of the school and no permission of the department i.e. Education Department was ever obtained. It is admitted position that the appeal against the aforesaid order has been filed but the same was filed on 8.8.1992 whereas the period of limitation prescribed under the Statute is only thirty days. On the aforesaid facts, it is pleaded and so argued by the learned counsel appearing for the petitioner that the respondent school is bound to take the petitioner on duty and pay him all his wages that may be due.
(2.) This petition has been contested and in the written statement on behalf of respondent No. 5 a detailed history has been given which culminated into dismissal of petitioner on 7.1.1991. It is sought to be proved that order of District Education Officer was manipulated by the petitioner. It has further been stated that appeal has now been filed and it is only after the result of appeal that some action can be taken.
(3.) After going through the records of the case, I am of the view that there is merit in the sole point raised by Mr. Mahesh Grover, learned counsel for the petitioner and this petition must succeed. It is no stage whatsoever to go into the merits of the matter in retuning a findings as to whether the services of petitioner were terminated rightly or wrongly. Till such time, the order passed by the District Education Officer under the provisions of the Act which is binding upon the respondents is successfully challenged in an appellate forum, there is no choice with them but for to comply with the directions contained therein. I would not like to go into the questions as to whether the appeal filed by the respondent-school beyond the period of limitation is in fact competent appeal or not as it is within the jurisdiction of the appellant forum to consider the matter and condone the delay, if any, application is filed or has already been filed on that behalf. Admittedly, no stay has been obtained by the respondent-school and, therefore, order passed by the District Education Officer is operative. For the above-mentioned reasons, this petition is allowed and a direction is issued to the respondents to take the petitioner on duty within a month. Rights of the parties would be determined by the Appellate Authority but till such time respondent-school is able to get favourable order, it has no choice but for to appoint the petitioner on the post of Principal. However, it is ordered that the appeal filed by the respondent school would be disposed of within three months from today.;