LPA.(S)235.10
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
LETTERS PATENT APPEAL NO. 235/2010
IN
WRIT PETITION NO. 3046/2001
Ku. Jaya d/o Ramkrishna Maturkar
Aged about 37 years,
Resident of Saundad, Tq. Sadak-Arjuni
Dist. Gondia. .. APPELLANT
versus
1) Wainganga Babuudesshiya Vikas
Sanstha, 10,Corporation Colony
North Ambazari Road, Nagpur 440 010
Through its President
Shri B.B. Karanjekar
2) Wainganga Babuddeshiya Vikas Sanstha
10, Corporation Colony
North Ambazari Road, Nagpur 440 010
Through its Secretary
Dr.(Mrs) Vrunda B.Karanjekar
3) The Principal
Rajeev Gandhi Mahavidyalaya
Sadak- Arjuni Tq.Sadak-Arjuni
Dist. Gondia.
4) Joint Director of Higher Education
Old Morris College 'T' Point
Sitabuldi Nagpur.
5) The Registrar
Nagpur University, Nagpur. .. RESPONDENTS
...............................................................................................................................................
Mr. M.V. Samarth, Advocate for the appellant
Mr. A.S. Jaiswal Sr.Counsel with Ms. Thakur Adv. for respondent no.2
Mrs. M.A. Barabde, Addl. Government Pleader for respondent no.4
................................................................................................................................................
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LPA.(S)235.10
2
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATE OF RESERVING : 23.11.2017 DATE OF PRONOUNCEMENT: 21.12.2017 ORAL JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)
1. By this Appeal, the appellant has challenged the judgment and order dated 3.11.2009 passed by learned single Judge of this Court in Writ Petition No. 3046/2001.
2. Facts in nutshell are that, the petitioner was appointed as a full-time Lecturer in the subject of Home Economics on temporary basis in the College run by respondent no.1 by order dated 24.09.1999. The respondent no.1-Society had issued an advertisement in the newspaper on 9.6.1999 calling application for appointment on the post of full-time Lecturer in Home Economics. The appellant applied for the said post and was accordingly appointed. The appointment order depicts the condition that the services of the appellant would be terminated any time without notice if her performance was not found to be satisfactory. The approval was granted to the appointment of the post of Lecturer on 10.1.2000. The services of the appellant were terminated on 20.2.2001 on the ground that during the academic session 1999-00 and 2000-01 her services were found to be unsatisfactory. The order of termination refers to a resolution of the Managing Committee dated 16.2.2001, which was based on a report of the Principal of the College. The termination order dated 20.2.2001 was ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 3 challenged by the appellant before the College Tribunal by preferring an Appeal, under section 59 of Maharashtra Universities Act, 1994. The appeal was dismissed by the learned Presiding Officer of the College Tribunal which was challenged before the learned single Judge in Writ Petition No.3046/2001. The said judgment and order has been impugned in the present LPA by the appellant.
3. Mr. M.V. Samarth, learned counsel for appellant vehemently argued that the learned single Judge has failed to consider that termination order of the appellant dated 20.2.2001 was not an innocuous order but it was apparently a stigmatic order. Hence it was incumbent on the respondents 1 to 3 to hold regular enquiry against the appellant prior to terminating her services. It was argued that the order of termination refers to resolution of the Manging Committee dated 16.2.2001 which was based on the report dated 8.2.2001 furnished by the Principal of the College wherein various allegations including the allegation of misappropriation were levelled against the appellant, which are indicative of punitive order which necessitates enquiry against the appellant. In support of his contention, the learned counsel placed reliance upon the judgment of the Hon'ble apex court in the case of Dipti Banerji vs. Satyendra Nath Bose National Centre for Basic Sciences,Calcutta, reported at AIR 1999 SC Page 983, and urged that the allegation of misappropriation is highly stigmatic and, therefore, the appellant was without a job till 2011.
4. Per contra, Mr Anand Jaiswal, learned senior counsel with Ms. Thakur ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 4 learned counsel for respondent nos. 2 canvassed that the order dated 20.2.2001 is not on the basis of misconduct but it was based on unsatisfactory work. It was submitted that the learned single Judge has rightly considered this aspect. Learned senior counsel placed reliance upon the judgment in the case of Rajesh Kohli vs. High Court of Jammu and Kashmir and another, reported at (2010) 12 SCC 783.
5. Considering the rival contentions of both sides, it would be advantageous to go through the service conditions of teachers which are governed by Status 53 which reads as under :-
" Statute 53: State providing for the confirmation of teachers in affiliated colleges.
4. A Teacher shall subject to the procedure of selection and appointment, be appointed in a clear vacancy in the first instance on probation for two years (24 months) from the date of his appointment, at the end of which he shall be confirmed on the expiry of which, he shall either be confirmed or his services dispensed with, provided that notice of such confirmation or termination of services shall be given at least one month before the due date, in absence of which it shall be construed that he has completed the period of probation satisfactory and that he is deemed to be confirmed in service :
Provided that if any teacher already in service has completed two years service temporary/ probation in clear vacancy, he will be deemed to be a confirmed teacher.
Explanation: It is hereby clarified that clear vacancy means a ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 5 vacancy which is not in a lien vacancy or leave vacancy and that vacancy/post is in vogue in the Institution for not less than four years. "
6. On plain reading of the above-said provision, it is clear that Statute 53 Article 4 states that subject to procedure of selection and appointment teachers shall be appointed in a clear vacancy in first instance on probation for two years from the date of his appointment. It further states that at the end of the said period of two years ( 24 months) he is to be confirmed by giving notice thereof or then his services can be dispensed with by giving him one month's notice. It further states that in the absence of such notice of confirmation or notice of termination, satisfactory completion of probation is presumed and such a teacher is deemed to be confirmed in service. Proviso thereto stipulates that if any teacher already in service has completed two years service as temporary or probation in clear vacancy he is also deemed to be a confirmed teacher. Explanation to Article 4 states that clear vacancy means a vacancy which is not a lien vacancy or leave vacancy and that vacancy/ post is in vogue in the institution for not less than four years. Thus, the clear vacancy becomes available only after 4-years hence as per law, it can be available in a College which has only four years standing i.e. which does not have permanent affiliation.
7. It is significant to note that in the instant case, the appellant after termination was without service till 2011. As per the affidavit filed by the appellant, ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 6 the post of Lecturer in Home Economics with the respondent No.3-college is vacant even today and no regular Lecturer is appointed in place of appellant, in view of the interim order passed by this Court. The appointment of one Ku.Pallavi Deshmukh is subject to the decision of the present LPA. It is pertinent to note that the respondents have not seriously disputed even before the College Tribunal that the appellant was appointed on a clear vacancy. In these circumstances, there is no hurdle in holding that the appellant was appointed on a clear vacancy.
8. Article 5 of Statute 53 states that termination of the services of any teacher shall take place only in accordance with the provisions of College Code Ordinance No.24 and contract appended thereto.
9. Termination of the services of any teacher in accordance with Articles 4 and 5 of Statute No.53 takes place only in accordance with the provisions of College Code, Ordinance No.24 and contract appended thereto. Article 23 of the said Ordinance reads as under :
" 23(i): The Foundation society or the Governing Body shall not-
(a) without the previous approval of the Executive Council, accept any donation in any form from a teacher of the College;
(b) by way of punishment terminate the service or reduce in pay or any teacher appointed on a written contract without holding an enquiry into the charges against the teacher."::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 :::
LPA.(S)235.10 7
10. In view of the above-said provisions, it is clear that no service teacher can be terminated by way of punishment who is appointed on a written contract without holding an enquiry into the charges against such teacher.
11. A perusal of resolution dated 16.2.2001 which is reflected in the termination order dated 20.2.2001, depicts that a report was tendered by the Principal of the College, stating that there was correspondence between the Principal and the appellant which revealed various deficit and negligence in her day-to-day work and there was no improvement so far. Furthermore, the letter addressed by the Principal to the President of the Society demonstrates about ten allegations against the appellant, which are as under :
(i) The appellant refused to be a member of Inquiry Committee and thereby she showed her non-cooperation to the management;
(ii) The appellant was refused leave, still she remained absent in the College on 18.12.2000. She then offered her medical leave which was also rejected. The appellant was enquired about her absence and at that time she misbehaved with the Principal of the College;
(iii) The third allegation against the appellant was that she used to leave headquarters very often. On giving the appellant necessary directions, she asked the Principal about the University Rules in that regard;
(iv) It was alleged against the appellant that she had not taken initiative to get the platform constructed for the practicals in Home Economics; ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 :::
LPA.(S)235.10 8
(v) The appellant was supposed to take 4 theory and 2 practicals every week. However she failed to conduct the classes accordingly;
(vi) The appellant did not take any steps to get the equipments available for the Practical Room although only one month was left for the examination;
(vii) The appellant did not show any interest in calling necessary books for the subject -Home Economics;
(viii) The appellant did not check the Ledger Book of the practical room and did not verify as to whether any equipments were missing from the Practical Room and did not inform according to the Principal;
(ix) The appellant failed to attend her duty as Principal in his absence,although she was directed to do so and showed her non-cooperation;
(x) The appellant remained absent on 26.8.2001 at the time of flag-hoisting and on seeking her explanation in that regard, she gave same vague explanation. It was mentioned in the said letter that the behaviour of the appellant was arrogant and non- cooperative with the management and it was unsatisfactory in concern with the progress of the College.
12. In the instant case, order of termination is based on the resolution which is based on the report of the Principal which levels the charges enumerated herein-blow :-
(i) The services of the appellant are not satisfactory;
(ii) The conduct of the appellant is not conducive to the progress of the College; ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 :::
LPA.(S)235.10 9
(iii) There is no assistance given by the appellant in the administration;
(iv) Behaviour of the appellant is arrogant; (v) Imputation of misappropriation.
13. Thus, the order of termination is issued on the basis of report of the Principal and, therefore, the order of termination does not remain to be innocuous or harmless order without casting aspersions or stigma on the appellant. It is apparent that the Managing committee took the decision of termination of services of the appellant prior to the completion of period of probation. This itself indicates that action on the part of respondent no.1 is punitive in nature and casts stigma on the appellant.
14. In the case of Dipti Banerjee vs. Satyendra (supra) cited by learned counsel for appellant, the appellant was appointed on 11.1.1995 as Office Superintendent in the organization of respondent. During the period of probation different letters were issued to the appellant about deficiencies in his performance. The period of probation was extended twice. Reports were prepared about the performance of the appellant by the Administrative Officer and on the basis of those adverse reports, it was opined by the Director that the performance of the appellant was not good and expressed that appellant was required to change his attitude to work, avoid neglect of work allotted, avoid carelessness and change his behaviour. In this background, the impugned order of termination was passed, without considering ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 10 regular enquiry. The Hon'ble Supreme Court opined that if findings were arrived at in enquiry as to his misconduct, behind back of the officer or without a regular enquiry, the simple order of termination is to be treated as 'founded' on the allegation and will be bad. It was further held that it depends on the facts and circumstances of each case and the language of words employed in the order of termination of probationer to judge whether the words employed amount to sigma or not. The words amounting to stigma need not be entertained in order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Thus, the Hon'ble Apex Court came to the conclusion that the termination was punitive in nature.
15. On plain reading of the letter dated 8.2.2001 it is apparent that there were various allegations against the appellant detrimental to the functioning of the College and the allegations include the imputation of misappropriation. The above- mentioned allegation against the appellant made in the letter dated 8.2.2001 by the Principal based on which the resolution was passed by the Management of the College to terminate the services of the appellant.
16. In these circumstances, the termination order based on the resolution of the College-Management does not appear to be innocuous and it is apparently seen to be stigmatic. It is the contention of the learned counsel for appellant that the appellant was out of job till 2011 and now also she has secured job in a private ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 11 school, as a teacher on meagre salary. The appellant did not get the job in other College as a Lecturer till 2011 i.e. for about 10 years.
17. The learned single Judge as well as the learned Presiding Officer of the College Tribunal could have considered this aspect and could not have considered that the order of termination was innocuous.
18. In the case of Shikshan Prasarak Mandal, Wani vs. Presiding Officer & others, reported in 1995 (II) LLJ 176, Bombay it has been held by this Court that the employer has no right to terminate the services of probationary employee before period of probation has expired except on the ground of misconduct or sufficient reasons.
19. As far as termination order dated 20.2.2001 of the appellant is concerned, it demonstrates that the services of the appellant were terminated on two counts viz, (i) non-satisfactory work and (2) disqualification. As already discussed above, the order of termination is not an innocuous order it but it was a stigmatic order based on the resolution of the Managing Committee dated 16.2.2001 which speaks about the report of the Principal making various allegations against the appellant. So far as the allegation of disqualification is concerned, the appellant has filed an affidavit dated 21.11.2017 stating therein that the appellant was appointed as a full-time Lecturer in Home Economics vide order dated 24.9.1999. The then ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 ::: LPA.(S)235.10 12 Nagpur University granted an approval to the appointment of the appellant as Lecturer in clear vacancy on ad-hoc basis vide order dated 10.1.2000 subject to the conditions laid down in Government Resolution dated 22.12.1995. As per the said resolution, the limit set for clearing NET/SET examination was removed. It has been mandated that although such appointment should be treated as ad-hoc, merely because the candidate has not cleared NET/SET examination, such candidate cannot be removed from service. According to the appellant, NET/SET examination conducted by Savitribai Phule Pune University does not have any subject. There is not a single lecturer in Maharashtra who has cleared NET/SET examination in Home Economics.
20. In view of the facts and circumstances, much importance cannot be given to the allegation of disqualification against the appellant.
21. Learned counsel for respondent no.2 has placed reliance upon the judgment in the case of Rajesh Kohli vs. High Court of Jammu & Kashmir (supra). In that case, services of Judicial Officer were terminated and were under challenge. However, in that case, the personal records of the petitioner were perused by the High Court and after a resolution of the full Court, the termination order was passed. The facts in the case in hand are very much different from the facts of that case, hence the judicial pronouncement is not applicable to the instant case.
22. In that view of the matter, the judgment and orders passed by the learned single Judge and the School Tribunal as well as the termination order dated 20.2.2001 need to be quashed and set aside. Hence the order:- ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:02 :::
LPA.(S)235.10 13 ORDER
(i) The judgment and orders dated 17.7.2001 passed by Presiding Officer, College Tribunal, Nagpur and 3.11.2009 passed by learned single Judge of this Court as well as the order of termination dated 20.02.2001 issued by respondent no.1-society are quashed and set aside.
(ii) There shall be no order as to costs.
JUDGE JUDGE
After pronouncement of the judgment, learned counsel appearing on behalf of respondent no.1 seeks stay of this judgment for a period of six weeks.
Request is being strongly opposed by Shri Samarth. However, in the interest of justice, we stay the judgment and order pronounced today for a period of six weeks. The said interim order shall, however, cease to operate automatically thereafter.
JUDGE JUDGE
sahare
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