Smt. Babita Neelam Das vs State Of Chhattisgarh And Others
2021 Latest Caselaw 1569 Chatt

                                    1

                                                                        NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                  Writ Petition (S) No.1296 of 2009
      Smt.Babita Neelam Das,        W/o Shri Mustaque Khan, aged
      about 40 years, R/o           B­182, Shakti Nagar, Gevra,
      District­Korba (CG)
                                                         ­­­­ Petitioner
                                 Versus
  1. State of Chhattisgarh Through the Principal Secretary,
     Education (School) Education Department, D.K.S. Bhawan,
     Raipur (CG)
  2. Managing Committee, Beacon School, Through                  Secretary
     Managing Committee Beacon School, Korba (CG)
  3. The Principal Beacon          School,     Shakti       Nagar,    Gevra,
     District­Korba (CG)
  4. The Principal      Beacon    School    Kusmunda,       District­Korba
     (CG)
  5. The Principal Beacon English School, Rajgmar, Korba,
     District­Korba (CG)
  6. S.K. Gir, Secretary, Managing Committee, Beacon School
     and Principal Beacon English Medium School, Shakti
     Nagar, Gevra Area, District­Korba (CG)
  7. Menno   Christian   Education Society,  Through  the
     Secretary, C/o Jyoti Higher Secondary School, Korba,
     District­Korba (CG)
  8. District Education Officer, Korba, District­Korba (CG)
                                                        ­­­­ Respondents

For Petitioner : Mr.Prateek Sharma, Advocate For Respondents No.1 & 8 : Mr.Animesh Tiwari, Dy.A.G. For Respondents No.2 to 7: Mr.M.K.Beag, Advocate For Intervener/SECL : Mr.Shailendra Shukla, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board 5.8.2021

1. Proceedings of this matter has been taken­up through

video conferencing.

2. The petitioner calls in question the order dated

17.3.2009 (Annexure P­6) passed by the respondent­

Society by which her services have been terminated from

the post of Lower Division Teacher on the grounds

mentioned in the impugned order dated 17.3.2009.

3. Mr.Prateek Sharma, learned counsel for the petitioner,

would submit that the order of termination has been

passed merely on the ground that her writ petition

against order of transfer has been dismissed by this

Court on 15.12.2008. He would further submit that merely

because her writ petition has been dismissed would not

furnish a ground to pass an order of termination that

too without giving notice and without holding an enquiry

and casting stigma on her, which is ex­facie illegal,

without jurisdiction and without authority of law.

4. Mr.Animesh Tiwari, learned Deputy Advocate General for

respondents No.1 and 8/State, would submit that it is

the order passed by the respondent­Society and the State

has not passed any order.

5. Mr.M.K.Beag, learned counsel for respondents No.2 to 7,

would submit that as per condition No.2 and 3 of the

appointment order dated 22.7.95 (Annexure P­1), her

services have been terminated on the findings and

observations made in the order dated 17.3.2009, as such,

the order of termination is strictly in accordance with

law.

6. I have heard learned counsel for the parties, considered

their rival submissions made hereinabove and also went

through the records with utmost circumspection.

7. The Supreme Court in the matter of Marwari Balika

Vidyalaya v. Asha Srivastava and others 1 (para­16) has

held that the writ application is maintainable in such a

matter even as against the private unaided educational

institutions. In view of above­stated judgment of the

Supreme Court, objection with regard to maintainability

of writ petition raised by respondents No.2 to 7 is

overruled and it is held that the instant writ petition

is maintainable.

8. The petitioner was appointed on the post of Lower

Division Teacher in school run by the respondent­Society

on 22.7.95 (Annexure P­1) on probation of one year and

it appears that after completion of one year, she

continued in service. By order dated 29.4.2005 (Annexure

P­2), the petitioner was transferred by the respondent­

Society from Beacon English School, Sakti Nagar, Gevra

to Beacon English Medium School, SECL, Korba, which she

did not join and thereafter by order dated 8.10.2005

(Annexure P­3) she was again transferred from Beacon

English School, Shakti Nagar to Beacon English School,

Rajgamar. The petitioner did not comply with the order

and filed Writ Petition No.5494/2005, which was

dismissed by this Court on 15.12.2008. When no joining

was given to the petitioner despite his efforts, the

petitioner filed this writ petition and during pendency

1 (2020) 14 SCC 449

of this writ petition, the petitioner was served with

the order dated 17.3.2009 (Annexure P­6) terminating her

services, which was sought to be challenged by way of

amendment in writ petition.

9. It is the case of the petitioner that since the order of

transfer is stigmatic as well as she has completed the

period of probation and she has became confirmed on the

said post, therefore, without holding departmental

enquiry and without giving an opportunity of hearing,

she could not have been terminated, whereas it is the

case of the respondent­Society that as per conditions

No.2 and 3 of the appointment order, no notice was

required to be given in case of disciplinary action and

therefore, the petitioner has rightly been terminated.

Condition No.2 and 3 of appointment order dated 22.7.95

(Annexure P­1) states as under:­

"2. After confirmation, your services shall be liable to be terminated on one month's notice or salary in lieu thereof except on disciplinary grounds in which case no such notice or payment in lieu thereof shall be necessary.

3. Even after confirmation, if you are found absent from duty for 7 days without obtaining prior permission in writing of the Managing Committee/Principal or if you proceed on leave without obtaining prior permission or overstay the sanctioned leave for 7 days without first getting it sanctioned than your services shall be liable to be terminated without any further reference/notice to you."

10. True it is that the appointment order contains a

condition that in case of disciplinary action, no notice

is required and services of employee can be terminated

without giving notice, but it appears that in para­8 of

the order dated 17.3.2009 (Annexure P­6) following four

charges have been found to be proved against the

petitioner:­

vkjksi [email protected] chdu Ldwy izca/k lfefr dksjck ds LFkkukUrj.k vkns'k dzekad 24 fnukad 29-04-2005 rFkk vkns'k dzekad [email protected],[email protected] fnukad 08- 10-2005 dk ikyu u djrs gq, vkius vuq'kklughurk] vUkkKkdkfjrk] xSj fu"Bkoku] xSj ftEesnkjh dk ifjp; nsrs gq, laLFkk dk vfgr rFkk Nk=&Nk=kvksa ds voufr dk dk;Z fd;k gSA [email protected] fofHkUu laxBuksa] Nk= Nk=kvksa ds [email protected]] vf/koDrkvksa ds ek/;e ls xyr <ax ls izpkj djds ncko iwoZd lfefr ds vf/kdkfj;ksa ,oa lnL;ksa dks ekufld izrkM+uk ,oa rukoxzLr fd;k gS lkFk gh lkFk laLFkk ds Nfo ,oa lk[k dks fcxkM+k gSA [email protected] ekuuh; mPPk U;k;ky; NRrhlx<+ fcykliqj esa lfefr ds vf/kdkfj;ksa] fofHkUu lLFkk izeq[kksa dks ,oa 'kklu ds fo:) ekeyk dzekad [email protected] fnukad 03-12-2005 nk;j dj mUgsa ekufld izrkM+uk] 'kkjhfjd d"V iznku djrs gq, cM+s ,oa csdkj vkfFkZd cks> Mkyk gS rFkk 'kklu ds lEeq[k laLFkk ,oa laLFkk vf/kdkfj;ksa ds Nfo ,oa lk[k dks fcxkM+k gSA [email protected] lfefr }kjk fn, x, }; LFkkukarj.k vkns'kksa ,oa dk;Zokfg;ksa dks lgh Bgjkrs gq, ekuuh; mPp U;k;ky; us vius fu.kZ; vkns'k dzekad [email protected] fnukad 15-12-08 esa vkids }kjk nk;j fd, x, ekeyk dz- [email protected] fnukad 03-12-2005 dks [kkfjt djrs gq, lfefr ds i{k esa fu.kZ; fn;k gSA

11. The aforesaid charges were considered by the Menno

Christian Education Society by its meeting dated

17.3.2009 and thereafter services of the petitioner have

been terminated and that too without with retrospective

effect from 14.10.2005 i.e. the date of transfer and she

has also not been given pay on the principle of 'No Work

NO Pay' from 14.10.2005.

12. True it is that appointment condition provides for

no opportunity of hearing in case of termination /

stringent action on disciplinary grounds, but the order

of termination clearly records that the petitioner is

guilty of indiscipline, she acted against the interest

of the students and she also damaged the reputation of

the school and society and by her act, financial burden

was caused and her writ petition has been dismissed by

this Court. Once serious charges of indiscipline and

acting against the interest of the society and school

and against the interest of the students were levelled

and non­compliance of the orders issued by the Managing

Committee and charges were found proved by their

internal ex­parte inquiry, in the considered opinion of

this Court, effective opportunity of hearing ought to

have been given to the petitioner to defend himself and

opportunity to file reply to these charges should have

been granted to the petitioner, but surprisingly even no

show­cause notice was served to the petitioner and

consequently, no enquiry was made in presence of the

petitioner, no documents were served to her and she was

not allowed to cross­examine the departmental witnesses

(school) and she has been inflicted with major penalty

of termination of service, which is ex­facie illegal,

without jurisdiction and without authority of law. At

least, in all fairness and in consonance with principle

of natural justice, she could have been served with

show­cause notice along with documents, on the basis of

which the Managing Committee proposed to terminate the

services of the petitioner and after getting reply and

after hearing the petitioner, appropriate order could

have been passed by the respondent­Society.

13. In that view of the matter, the impugned order

dated 17.3.2009 (Annexure P­6) terminating the services

of the petitioner being stigmatic and being in violation

of principle of natural justice is liable to be and is

hereby quashed. The matter is remitted to respondent

No.7 to serve a show­cause notice to the petitioner and

after getting reply to show­cause notice to proceed

strictly in accordance with law. Such a proceeding would

be completed within four months from the date of receipt

of a copy of this order. The petitioner will cooperate

in said proceedings. However, the petitioner will be

entitled to hold the quarter for the aforesaid period of

four months. It is made clear that this Court has not

expressed any opinion on merit of the case.

14. The writ petition is allowed to the extent

indicated hereinabove. No order as to cost(s).

Sd/-

(Sanjay K.Agrawal) Judge