R.C. Patnaik, J.
1. This is an application under Article 226 of the Constitution of India for the quashing of Annexure- 8, an order of penalty imposed in a disciplinary proceeding, and for a mandamus directing the opposite parties to treat the petitioner as continuing in service and to pay the arrear salary for the months of January, February and March, 1979 and subsistence allowance from 31. 3. 1979 to17.6.1979 and salary from 15.6.1979 to 29.2.1980.
2. The petitioner was appointed as a peon in the Chitrotpala High School in the district of Cuttack, an aided recognised institution. He alleged that a part of his salary was not being paid every month though he was made to sign the acquittance roll for the full amount and he reported this fact to the Inspector of Schools as per Annexure-2. On 26. 3. 1979, he was directed by the Headmaster to meet the Secretary to settle the controversy. Nothing came out. By Annexurer-5 dated 31. 3. 1979 he was suspended and was served with the charge sheet as per Annexure-6 dated 24.4.1979. He submitted his explanation dated 1. 5. 1979 as per Annexure-7. On 18. 5. 1979, Annexure-8 was issued by the Secretary of the School directing suspension to continue for another month. As alleged by him, he submitted his joining report dated 18. 6. 1979 as per Annexure-11, But no action was taken. He reported the fact to the Inspector of Schools as per Annexure-10 on 31. 1. 1980. He moved this Court on 25. 2.1980 seeking the reliefs stated earlier.
3. By order dated 13, 5.; 1981 this Court directed the opposite parties to pay the petitioner subsistence allowance upto 31st of Match, 1981. Again by order dated 11. 10. 1982, this Court directed payment of subsistence allowance upto 30th of September, 1982.
4. In the counter submitted by opposite party No. 1, it has been contended that Annexure-8 dated 18. 5. 1979 was the final order in the disciplinary proceeding imposing punishment of suspension for one month from the date of issue of the order. After expiry of the period of suspension, the petitioner had not reported for duty at any time.
5. Annexure-8 had been issued by the Secretary. Under sub-rule (2) of Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (for short 'the Rules',), the Headmaster is the disciplinary authority as regards the lower grade employee. The expression 'Lower Grade Post' has been defined in Section 2(1 )(g) of the Rules as :
'Lower Grade Post' means the posts of Duftaries, Peons, Chowkidars, Watchers and Sweepers and includes any other posts involving comparable emoluments;'
Hence, the disciplinary authority as regards the petitioner, a peon, was the Headmaster and not the Secretary. It has been contended that the Managing Committee being superior to the Headmaster could take action and Annexure-8 issued by the Secretary was, therefore, competent. This contention militates against the specific provision contained in Sub-rule (2) of Rule 21 of the Rules, which does not authorise the Secretary to impose any penalty on an employee of the School. Mr. Rath for opposite party No. 1 has also not placed before us any decision of the Managing Committee imposing or directing imposition of penalty. So, we have no hesitation in declaring Annexure-8 ultra vires and we quash the same.
6. The next question is if the petitioner is entitled to the benefits claimed. In view of the categorical stand of opposite party No. 1 that Annexure-8 was the final order in the disciplinary proceeding, the proceeding terminated with Annexure-8. Hence, no proceeding was pending after 18. 5. 1979. The petitioner has alleged that he submitted his joining report on 18. 6.1979 as per Annexure-11, where as opposite party No. 1 refutes the assertion. It has not been brought to our notice that the Managing Committee took any action against the petitioner after 18.5.1979 for the failure of the petitioner to report for duty. If the petitioner failed to join after 18. 5. 1979 and remained absent unauthorisedly, disciplinary action should have been taken. That has not been done. On the other hand, we find as per Annexures-9 and 10 the petitioner made representations to the Secretary and the Inspector of Schools beseeching reinstatement in service. The plea of the petitioner strikes us as more probable.
7. No material has been placed before us, either by the Inspector of Schools or by the Secretary, that the petitioner was at any time called upon to report for duty. His service not having been terminated according to law, he continues to be an employee of the school and is entitled to the salary. The final order is the disciplinary proceeding having been quashed by us, the petitioner is also entitled to full salary for the period during which he was under suspension. The dues of the petitioner shall be quantified by the Inspector of Schools (Opposite Party No. 3) after taking into account the amounts already received by him, either as subsistence allowance or salary, and the same. be paid within three months from today.
8. We, accordingly, allow the writ application. There would be no order as to costs.
S.C. Mohapatra, J.
9. I agree.