HANDIC)S ACHANE v. (By Sri ARUN SHYAM, ADV., FOR M/S DHARMASHREE

(By Sri ARUN SHYAM, ADV., FOR M/S DHARMASHREE ASSOCIATES, ADV.. FOR Ri Sri RAGHAVENDRA G.GAYATHRI, HCGP FOR R2) THIS WRIT PETITION FILED U/A 226 & 227 OF CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE IMPUGNED ORDER DATED 15.3.2008 PASSED BY THE EDUCATIONAL APPELLATE TRIBUNAL, UDUPI DISTRICF, UDUPI. This petition coming on for hearing this day, the court made the Mlowing ORDER In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 15.3.2008 in EAT No.2/2007 passed by the Educational Appellate Tribunal, Udupi.

2. First respondent was working as teacher •in petitioner’s educational institution. For certain misconduct committed by the first respondent articles of charges were issued, enquiry was held and on 19.4.2005 respondent was dismissed from service. Aggrieved by this order of dismissal, respondent filed an appeal in EAT No2 2007 under Section 94 of the Education Act. On coc..test th.e Tribunal passed a judgment cia 1OJ 12006 allowing the appeal, setwside the order of dismissal of first respondent and reserved liberty to the petitioner to initiate fresh enquiry if they so desire, Accordingly, petitioner initiated fresh enquiry proceedings for the second time. By invoking Rule 16(4) of the Karnaraka Educational Institutions (Reemitment and ‘ferms and Conditions of Senice of Employees in Private Aided Primary and Secondary Educational institutions) Rules, 1999, the first respondent was kept unuer susp;ensiOn. After conwletion of enquin, the petitioner by order dated 2ft72007 dismissed the first respon.dent. frum service.. Aggrieved O P31.5 second order of disi..issal, respondent filed an appeal in Ei.T NoLb’2007 before th.e ‘lri.bu.nal. During tb.e pendency of tAo appoai rospuo..deut filed I..A3 smdc.r Secti.ou 96(3)(a) of ti..e Karr.atakn Education Act seekiu arrears of .sribsisreoce allow circe.. ,s 4 Tribunal after hearing both the parties passed the impugned order directing the petitioner to pay arrears of interim allowance. Hence this writ petition.

3. Learned Counsel for the petitioner submits that during the pendency of this writ petition petitioner has paid the entire arrears of subsistence allowance to the first respondent as ordered by the Tribunal.

4. Heard arguments on both the side and perused the entire writ papers.

5. It is necessary at this stage to extract the relevant Rules relating to suspension and payment of subsistence allowance under Rules, 1999. Rule 14 specifies the nature of penalty. Second proviso to Rule 14 reads as under Provided further that every order ofprivate management receiving aid from Government keeping employees admitted to 33a 5 shall be grant-in-aid wider suspension from service, confirmed k the Competent Authority who has approved the appointment etc., Rule 16 deals with the procedure for keeping an employee under suspension. The relevant nile for the purpose of this case is Rulel6(4) and the same reads as under: 16(4) Where a penalty of dismissal or removal or compulsory retirement from service imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of a Cowi of law and the disciplinary authority on a consideration of the circumstances of the case decides to hold further inquiry against him on the allegations on which the penalty of thkmissal or compulsory retirement was originally the employee shall be deemed to have been placed imposed, wider suspension by the appointing authority from the date ofthe original order of dismissal or removal or compulsory retirement and shall continue to remain wider suspension until fursher orders. I 6 Rule 17 specifies payment of subsistence allowance during the period of suspension. The relevant rule for the purpose of this case is Rule 17(6) and the same reads as under: The subsistence allowance under rules and consequential amount to be paid under mb-nile (5) shall be paid fzvm the management from its own funds, except in respect of employees working in aided posts where the suspension is approved by the Competent Authority.

6. A combined reading of the above rules makes it clear that the management of school is entitled to keep an employee suspension, initiate enquiry proceedings and to pass appropriate orders of penalty. In case of an employee admitted to grant-in-aid, then it is necessary to seek confirmation from the competent authority for suspending an employee from service and also for dismissal. ft further specifies that to fix the liability of payment of subsistence allowance on the Government during the period of suspension, the approval of competent authority is necessary. / 7

7. Tn the instant case, is not in dispute that respondent was admitted to grant-in-aid. No material is placed on record to show that competent authority granted approval for suspension of the first respondent by the petitioner, either before the order of suspension or after the order of suspension. Therefore, the Government is not liable to pay the subsistence allowance for the period of suspension to the fIrst respondent.

8. Learned counsel for the petitioner contends that RuLe 16(4) specify that there is deemed suspension of an employee in the event of petitioner holding a fresh enquiry against the first respondent. If there is a deemed suspension as per the statute then is obligatory on the Goternment to pay the subsistence allowance and not by the petitioner. I decline to accept this contention of learned counsel for the petitioner. A rearling of Rule 16(4) specify that in the event of petitioner’s intending to t 8 hold an enquiry against the first respondent then the employee is deemed to have been kept under suspension. If the petitioner do not intend to hold a fresh inquiry then the question of deemed suspension will not arise. In the event of petitioner intending to hold an inquiry and to pay subsistence allowance by themselves then it is not necessary for them to seek approval of order of suspension from the competent authority, If the liability of payment of subsistence aliowance is to be fastened on the Government then it is mnndatory to seek approval of the competent authority to keep the employee under suspension as specified under Rule 17(6). In the instant case there is no material on record to show that petitioner has obtained approval of suspension of first respondent from the competent authority.

9. Learned counsel the petitioner relying on Annexure-G dated 18.12.2006 contend that there is request for approval of suspension of first respondent from service. A reading I 4 9 of averments in Annexure-G manifestly makes it clear that it was only an intimation of order of suspension by the Principal of College to the concerned authority. But there is no order on record to show that approval was granted by the competent authority. There is no provision under the Act or under the Rules for deemed approvaL In the absence of any specific order by the competent authority, it cannot be said that the respondent Government is liable to pay arrears of subsistence allowance to the first respondents. For the reasons stated above, I find no justifiable ground to. interfere with the impugned order. Accordingly, the writ petition is hereby dismissed. JUDGE DKB