D.N.PATEL, J. - (1.) THIS writ petition has been preferred mainly for the reason that as the respondent No. 4 was suspended and as an over cautious petitioner, a ratification was sought for suspension and the same was declined by the concerned respondent No. 2 authority vide order dated 24th April 2003 (Annexure -2 to the memo of the present petition). In fact, it is submitted by the learned Counsel for the petitioner, that there is no legal provision for getting sanction or permission or ratification or approval for suspension of respondent No. 2. Nonetheless, as an over cautious petitioner, such an application was preferred and it was declined by respondent No. 2 vide order dated 24th April 2003 (Annexure -2 to the memo of the present petition) and therefore, the present petition has been preferred.
(2.) IT is also vehemently submitted by the learned Counsel for the petitioner that there are serious charges of misappropriation of sizeable amount by the respondent No. 4. The charges levelled against, which is at Annexure -17 to the rejoinder filed on behalf of the petitioner, to the counter affidavit filed by respondent No. 4. Number of irregularities committed by the delinquent. There are as many as 61 charges against the delinquent respondent, sizeable amount was misappropriated as per the said charge -sheet, from the students. Thereafter, the present petitioner was suspended the services for holding enquiry. Suspension was imposed mainly for the reason that he may not tamper with the evidences by attending the school because of the documents lying in the office of the school. In fact, for holding enquiry, suspension in such type of cases, is a sine qua non. Suspension, was never imposed by way of punishment, but, it was imposed as procedure of holding enquiry. Respondent No. 4 was suspended on 19th December, 2002 thereafter, enquiry was conducted and completed on 11th October, 2003. The said report is at Annexure -22. Thereafter, a dismissal order was passed against respondent No. 4 by way of punishment vide order dated 20th October, 2003. The question involves in the present petition is only about a suspension, but, after suspension, much water has flowed from river thems. A detailed enquiry was carried out. Charges were framed. Report of the enquiry was given. Quantum of punishment was also fixed and dismissal order dated 20th October, 2003 was passed. It is vehemently submitted by the learned Counsel for the petitioner that neither method of holding enquiry, neither enquiry report, nor quantum of punishment, nor the dismissal order has ever been challenged by respondent -delinquent, therefore, they have attained their finality. It is submitted by the learned Counsel for the petitioner that there are no rules which impose duty upon the petitioner to seek for the permission for the suspension (given for holding enquiry) of the delinquent. Nonetheless, either because of misinterpretation or because of misreading of law or may be because of over cautious petitioner, a permission was sought for, from respondent No. 2 who has declined the permission for suspension of respondent No. 4 while holding the departmental enquiry and therefore, order at Annexure -2, passed by respondent No. 2, dated 24th April 2003 whereby suspension given by the petitioner to the delinquent respondent during course of the departmental enquiry was not approved and therefore this petition has been preferred. Learned Counsel for the petitioner has taken this Court to several Annexures of the petition, reply, rejoinder and counter affidavits as well as all the Interlocutory Applications and submitted that in fact now the suspension order automatically comes to an end upon completion of the departmental enquiry which is resulted into an order of dismissal of the respondent No. 4. Even after dismissal of respondent No. 4 approximately half a dozen years have been passed, respondent No. 4 has not challenged before any Authority, Tribunal or competent Court the said dismissal order, but, this Court has passed the order dated 6th May, 2003, which reads as under: Let notice be issued on Respondent No. 4 through Court. Requisites etc. under registered cover with A/D must be filed in the Court by 14th May, 2003 failing which this application as against the concerned Respondent shall stand rejected without further reference to a Bench. The Counsel for the State may obtain instructions and file counter - affidavit within five weeks. Place the case "For Admission" on 11th July, 2003 within fifteen cases. Until further order the Respondent No. 4 shall not function, but the petitioner shall him pay the subsistence allowance. The petitioner may also proceed against the Respondent No. 4 departmentally and may pass appropriate order in accordance with law, after notice to him subject to the decision of the case. It will be open to the concerned Respondents to ask for appropriate modification/clarification of this interim order.
(3.) IN view of the aforesaid order, the learned Counsel for the petitioner is arguing this case otherwise, there is already, a dismissal order passed by the petitioner, neither there is a challenge to the proceeding of the departmental enquiry, nor to the quantum of punishment nor an order of dismissal is challenged by the respondent -delinquent and therefore, and as there was no legal requirement or as there was no legal duty vested in the petitioner to get approval of the suspension of respondent No. 4 for holding an enquiry or as many as 61 charges levelled against him, the order at Annexure -2 passed by respondent No. 2, dated 24th April, 2003, deserves to be quashed and set aside.;