Ku.Jaya Daughter Of Ramkrishna ... vs Wainganga Bahuuddeshiya Vikas ...
2017 Latest Caselaw 9922 Bom

                                                                                                                       LPA.(S)235.10
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                                    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

LPA.(S)235.10

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

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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

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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,

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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."

LPA.(S)235.10

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;

LPA.(S)235.10

(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;

LPA.(S)235.10

(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

LPA.(S)235.10

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

LPA.(S)235.10

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

LPA.(S)235.10

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:-

LPA.(S)235.10

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