Kaushal Chandrakar vs State Of Chhattisgarh
2021 Latest Caselaw 638 Chatt

                           1

                                                       AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
             Order reserved on:10.06.2021
            Order delivered on:28.06.2021

           Writ Petition (S) No.4035 of 2007

1. Kaushal Chandrakar, son of Shri Harakh Ram Chandrakar,
   aged about 36 years.
2. Khamman Lal Chandrakar, son of Shri Bishat Lal
   Chandrakar, aged about 43 years.
3. Ramnarayan   Chandrakar,   son   of  Shri  Nathu   Ram
   Chandrakar, aged about 58 years.
4. Satbir Singh, son of Shri Har Dutt Singh, aged about
   35 years.
5. Smt.Bhuneshwari Shukla, wife of Om Kumar Shukla, aged
   about 36 years.
6. Ku.Renuka Sharma, daughter of Shri Ram Prasad Sharma,
   aged about 29 years.
7. Ashish Borkewar, son of Shri D.R. Borkewar, aged about
   32 years.
8. Rajeshwar Chandrakar, son of Shri Raghunath Prasad
   Chandrakar, aged about 26 years.
9. Dr.Jeevan Lal Chandrakar, son of Shri Dau Lal
   Chandrakar, aged about 30 years.

  All are working as Assistant Professor at Shantri Bai
  Arts, Commerce & Science College, Mahasamund, District
  ­Mahasamund (CG)

                                           ­­­Petitioners
                         Versus
1. State   of   Chhattisgarh    Through   Secretary, Higher
   Education, D.K.S.Bhawan, Raipur, District­Raipur (CG)
2. The   Vice­Chancellor,    Pandit   Ravi   Shankar Shukla
   University, Raipur, District­Raipur (CG)
3. Shantri Bai Arts, Commerce and Science College,
   through its President/Director, Shantri Bai Arts,
   Commerce & Science College, Mahasamund, District
   Mahasamund (CG)
4. Principal, Shantri Bai Arts, Commerce & Science
   College, Mahasamund, District­Mahasamund (CG)
5. Chhattisgarh Chandrahu Shikshan Samiti, Mahasamund
                                           ­­­Respondents

And Writ Petition (S) No.2883 of 2010

1. Kaushal Chandrakar, S/o Shri Harakh Ram Chandrakar, aged about 38 years.

2. Khamman Lal Chandrakar, S/o Shri Bishat Lal Chandrakar, aged about 45 years.

3. Ramnarayan Chandrakar, S/o Shri Rathu Ram Chandrakar, aged about 60 years.

4. Satbir Singh, S/o. Shri Har Dutt Singh, aged about 37 years.

5. Smt.Bhuneshwari Shukla, W/o Om Kumar Shukla, aged about 38 years.

6. Ku.Renuka Sharma, D/o Shri Ram Prasad Sharma, aged about 31 years.

7. Ashish Borkewar, S/o. Shri D.R. Borkewar, aged about 34 years.

8. Rajeshwar Chandrakar, S/o. Shri Raghunath Prasad Chandrakar, aged about 28 years.

9. Dr.Jeevan Lal Chandrakar, S/o. Shri Dau Lal Chandrakar, aged about 32 years.

All are Assistant Professor at Shantri Bai Arts, Commerce & Science College, Mahasamund, District ­Mahasamund (CG)

­­­Petitioners Versus

1. State of Chhattisgarh Through Secretary, Higher Education, D.K.S.Bhawan, Raipur, District­Raipur (CG)

2. The Vice­Chancellor, Pandit Ravi Shankar Shukla University, Raipur, District­Raipur (CG)

3. Shantri Bai Arts, Commerce and Science College, through its President/Director, Shantri Bai Arts, Commerce & Science College, Mahasamund, District Mahasamund (CG)

4. Principal, Shantri Bai Arts, Commerce & Science College, Mahasamund, District­Mahasamund (CG)

5. Chhattisgarh Chandrahu Shikshan Samiti, Mahasamund ­­­Respondents

For Petitioners : Mr.Awadh Tripathi, Advocate For Respondent No.1 /State : Mr. Ravi Bhagat, Dy.G.A. For Respondent NO.2 : Mr.Neeraj Choubey, Advocate For Res.No.3 to 5 : Mr.J.A.Lohani, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. Since common question of law and facts are involved in

these two writ petitions, they were clubbed and heard

together and being disposed of by this common order.

2. The petitioners herein calls in question legality,

validity and correctness of the order dated 03.11.2006

(Annexure P­1) by which their services have been

terminated by respondents No.3 and 4 from the post of

Assistant Professor.

3. It is the case of the petitioners that they were

appointed on vacant post of Assistant Professor by

respondent No.3/College after due approval of respondent

No.2­University in accordance with Statute No.28

promulgated by Pandit Ravi Shankar Shukla University and

thereafter they were appointed on 19.9.2005. It is

further case of the petitioners that since they were

already working on the post of Assistant Professor, they

were exempted from undergoing period of probation vide

order dated 19.9.2005 (Annexure P­4) and thereafter they

were appointed on 19.9.2005, but they were stopped

working from December, 2005 and ultimately they filed

writ petition being Writ Petition No.291/2007 for salary

and thereafter again they were required to file amended

writ petition (S) NO.4035/2007. In that writ petition,

the order of termination dated 3.11.2006 was filed by the

respondents while filing the reply, then they came to

know about their termination and that order has been

impugned in Writ Petition (S) No.2883/2010. Since the

order of termination dated 3.11.2006 is main issue, facts

narrated in Writ Petition (S) No.2883/2010 are taken for

consideration.

4. Return has been filed by respondent No.3 opposing the

avermnets made in the writ petitions and specifically

pleaded that the petitioners' work was not found

satisfactorily and they were stopped teaching work in the

college and pursuant to which, they were served with the

notice dated 3.9.2006 and 6.10.2006 and thereafter the

Governing Body of respondent No.5 has taken a decision on

16.10.2006 and ultimately, the impugned order dated

03.11.2006 terminating the services of the petitioners

has been passed, which is strictly in accordance with

law.

5. Mr.Awadh Tripathi, learned counsel for the petitioners,

would submit that though the petitioners were duly

appointed on the post of Assistant Professor in

accordance with Rule 28 of the Statute promulgated by

Pandit Ravi Shankar Shukla University, but they were not

afforded reasonable opportunity of hearing before

terminating their services what has been provided in Rule

28 and 29 of the Statute No.28. Even if they are taken to

be Assistant Professor on probation, then Statute No.28

is required to be complied with and salary in lieu of

notices ought to have been given to them. He would

further submit that since they have been terminated

finding them guilty of misconduct and it is stigmatic /

punitive, therefore, opportunity of hearing was

necessary. He would rely upon the decision of the Supreme

Court in the matter of Dr.Vijaykumaran C.P.V. v. Central

University of Kerala and Ors.1, therefore, the impugned

order deserves to be set aside.

6. On the other hand, Mr.J.A.Lohani, learned counsel for

respondents No.3 to 5 would submit that the petitioners

stopped teaching work in the College and pursuant to

which, they were served with two notices dated 3.9.2006

and 6.10.2006 and thereafter Governing Body considered

the matter on 16.10.2006 and thereafter the impugned

order dated 03.11.2006 terminating the services of the

petitioners has been passed, which is strictly in

accordance with law and the writ petitions deserve to be

dismissed.

7. Mr.Neeraj Choubey, learned counsel for respondent No.2­

University, would submit that the petitioners are not

sought any relief against University, therefore, the writ

petitions deserve to be dismissed. However, he would rely

upon the judgment of the Supreme Court in the matter of

Marathwada Univesristy v. Sheshrao Balwantrao Chavan2 and

submit that where a statute provides for a thing to be

done in a particular manner, then it has to be done in

that manner and no other manner. He would further rely

upon the judgment of the Supreme Court in the matter of

Union of India v. Shardindu3 in which it has been

1 2020(12) SCC 426 2 AIR 1989 SC 1582 3 (2007) 6 SCC 276

categorically held that if procedure for termination of

appointment exists in the statutory provisions,

termination can be done only according to those

provisions and none else. He would also rely upon the

judgment of the Supreme Court in the matter of V.P.Ahuja

v. State of Punjab4 wherein it has been categorically

held that a probationer like a temporary servant is

entitled to certain protection and his services cannot be

terminated arbitrarily or punitively without complying

with the principles of natural justice.

8. Mr.Ravi Bhagat, learned Deputy Government Advocate for

respondent No.1/State, would support the stand taken by

learned counsel for respondent No.2.

9. I have heard learned counsel appearing for the parties,

considered their rival submissions made hereinabove and

also went through the records with utmost circumspection.

10. Selection of the petitioners except petitioners No.3

and 6 namely Ramnarayan Chandrakar and Ku.Renuka Sharma

for appointment on the post of Assistant Professor was

approved by respondent No.2­University on 12.5.2005

(Annexure P­2) and accordingly, the respondent­University

appointed them on the post of Assistant Professor by

order dated 19.9.2005 (Annexure P­3) and on 19.9.2005

(Annexure P­4) the respondent­College informed to the

University that since the petitioners so appointed except 4 2000(3) SCC 239

petitioners No.3 and 6 are already working in their

College as Assistant Professor, therefore, they are

exempted from undergoing probation, but immediately

thereafter on 18.1.2007 (Annexure P­5) the petitioners

made a complaint before the respondent­University that

they are not being given pay scale and not being allowed

to serve the college leading to filing of Writ Petition

NO.291/2007 in respect to denial of pay scale by the

respondent­College, in which this Court on 19.1.2007

directed the Vice Chancellor of the respondent­University

to decide the representation in accordance with law,

which the petitioners made representation to the Vice

Chancellor, but non­compliance of order was subject­

matter of Contempt Petition No.110/2007 before this Court

and thereafter, on 11.6.2007 the Vice Chancellor of

respondent No.2­University passed an order dated

11.6.2007, which has been called in question in WPS

No.4035/2007. Thereafter, services of the petitioners

have been terminated by respondents No.3 and 4 by order

dated 3.11.2006 (Annexure P­1) on the basis of meeting of

Governing Body dated 16.10.2006, which has been called in

question in WPS No.2883/2010.

11. The main contention of the petitioners is that Statute

No.28 of the respondent­University has not been followed

while terminating their services and even order is

punitive in nature, it is stigmatic, therefore, regular

departmental enquiry ought to have been conducted before

terminating their services.

12. It is not in dispute that selection of the petitioners

except 3 & 6 was approved by the respondent­University on

11.5.2005 and duly communicated by the University to the

respondent­College on 12.5.2005 (Annexure P­2) and

thereafter they were appointed on 19.9.2005 vide Annexure

P­3 and vide Annexure P­4 respondent­College itself

informed that these appointed Assistant Professors /

petitioners are already working, therefore, they are

exempted from undergoing probation, but thereafter it

appears that dispute arose between the parties leading to

issuance of notice by respondents NO.3 and 4 on 6.10.2006

(Annexure R­3/4­1) and the petitioners were given 3 days

time to explain as to why they are absent from their

duty, failing which, necessary action will be followed

and thereafter, the Governing body submitted a note on

16.10.2006 (page­12) in which certain charges were

levelled against the petitioners for act of indiscipline

and acting irresponsibly, which states as under:­

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10- LVkQ }kjk lkekU; iz'kklu ds vkns'k dh vogsyuk dh xbZA egksn; pqfa d ifjfu;e&28 ds varxZr fu;qDr deZpkfj;ksa }kjk egkfo|ky; ds dk;kZs ds izfr vuq'kklughurk ,oa vius drZO;ksa] nkf;Roksa ds izfr ykijokgh cjrh xbZ gS] ftlls Nk=fgr izHkkfor gqvk gS] vkSj buds dk;Z ls ifjfu;e&28 ds fu;eksa dk mYya?ku gqvk gS] vr% bl laca/k esa mfpr dk;Zokgh gsrq izca/kdh; lehfr ds leLr lnL;ksa dks lwuukFkZ izLrqrA [email protected]& lfpo NRrhlx<+ pUnzukgw f'k{k.k lfefr egkleqUn ¼N-x-½

13. The aforesaid note prepared by the Secretary of

respondent No.5 would show that certain charges of

indiscipline and acting negligently amounting to

misconduct and violation of Statute No.28 was levelled.

Note placed before the Governing Body of respondent No.5

was considered on its meeting dated 16.10.2006 and in

that meeting, it was resolved to terminate the services

of the petitioners and relying upon the decision taken in

the meeting dated 16.10.2006, the services of the

petitioners have been terminated by impugned order dated

03.11.2006 passed by respondents No.3 to 5.

14. Now, the question is whether the order of termination

(Annexure P­1) is in accordance with law ?

15. In this regard, it would be appropriate to notice

clause 28 and 29 of the Statute No.28 which state as

under:­

"28. The service of a teacher who is appointed on probation can be terminated during or at the end of the period of probation, if his work is not found to be satisfactory by communicating to the teacher, the intention of the Governing

Body not to continue him and giving him/her one calendar month's notice in writing or by paying him/her one month's salary in lieu of the notice. Such notice shall not include the summer vacation or any part thereof and the teacher if he/she has been in service for more than three months during the academic session shall be entitled to salary for the ensuing summer vacation in the same proportion as the period of service bears to the total period in the academic session. The teacher may, like wise terminate his/her appointment before the expiry of the period of probation by giving one calendar month's notice in writing to the Governing Body or paying a sum equal to one month's salary in lieu of the notice.

29. (1) The service of a teacher (other than one appointed on temporary or part­time basis or on probation) shall not be terminated after confirmation except on the following grounds and without the approval of the Executive Council:

(i) Misconduct including wilful neglect of duty.

(ii) Breach of the terms of the contract.

(iii) Physical or mental unfitness.

(iv) Incompetence provided that the plea of incompetence shall not be used against a teacher after two years of his/her confirmation:

(v) Abolition of the post with the prior approval of the Executive Council.

Provided that termination of service on any ground following under (i) to (iv) above shall not be ordered without holding an inquiry in which the teacher is given a statement of charges against him/her and is afforded reasonable opportunity to defend himself/herself.

Provided also that action to terminate the service of a teacher on the ground of physical or mental unfitness shall not be taken except on the basis of a report of a Medical Board to be appointed by the Governing Body.

(2) Except where the services of a teacher

are terminated on the ground of misconduct including neglect of duty or breach of the terms of the contract, neither the Governing Body nor the teacher shall terminate the agreement except by giving to the other party three calendar month's notice or by paying to the other party a sum equal to thrice the monthly salary which the teacher concerned is then earning. The period of notice shall not include the summer vacation or any part thereof."

16. In the matter of Shardindu (supra) the Supreme Court

has held that if procedure for termination of

appointment exists in the statutory provisions,

termination can be done only in accordance with the

provisions and none else.

17. Likewise, in the matter of V.P.Ahuja (supra) the

Supreme Court has held that a probationer like a

temporary servant is entitled to certain protection

and his services cannot be terminated arbitrarily or

punitively without complying with the principles of

natural justice.

18. Though the petitioners were appointed on 19.9.2005

(Annexure P­3) and on the same day vide Annexure P­4,

the College itself has informed to the University that

they are working on regular basis and therefore, they

are exempted from requirement of undergoing probation.

However, considering the petitioners to be probationer

on the date of termination i.e. on 3.11.2006, the

Statute No.28 as noticed hereinabove clearly provides

that The service of a teacher who is appointed on

probation can be terminated during or at the end of

the period of probation, if his work is not found to

be satisfactory by communicating to the teacher, the

intention of the Governing Body not to continue him

and giving him/her one calendar month's notice in

writing or by paying him/her one month's salary in

lieu of the notice. Even if he/she is probationer,

giving one calendar month's notice is absolutely

necessary and without serving one calender month's

notice, services of the teacher could not have been

terminated. But in the instant case, clause 28 of

Statute No.28 has not been followed while terminating

the services of the petitioners except petitioners

No.3 and 6 as neither one month's notice was given nor

one month's salary in lieu of notice was paid to the

petitioners.

19. A careful perusal of Annexure R­3/4­1 and 2 would show

that serious allegations of indiscipline and acting

irresponsibly were charged against the petitioners,

which is apparent from a note placed before the

Governing body, which has already been noticed in

paragraph 12 of this order. The question would be

whether the impugned order is termination simpliciter

or it is termination punitive or ex­facie stigmatic.

20. The Supreme Court in the matter of Dr.Vijaykumaran

(supra) has clearly held that material which amounts

to stigma need not be contained in the order of

termination of the probationer, but might be contained

in "any document referred to in the termination

order". It was further held that such reference may

inevitably affect the future prospects of the

incumbent and if so, the order must be construed as ex

facie stigmatic order of termination relying upon in

its earlier judgments i.e. Indra Pal Gupta v. Model

Inter College5, Dipti Prakash Banerjee v. Satyendra

Nath Bose National Centre for Basic Sciences6 and

Pavanendra Narayan Verma v. Sanjay Gandhi PGI of

Medical Sciences7 their Lordships laid down the test to

determine whether the order of termination is

simpliciter or punitive and held as under:­

"10. In Pavanendra Narayan Sharma v. Sanjay Gandhi PGI of Medical Science (supra), the Court observed thus: SCC p. 528, para 21)

"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full­scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.

11. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex facie stigmatic and punitive. Such an order could be

5 (1984) 3 SCC 384 6 (1999) 3 SCC 60 7 (2002) 1 SCC 520

issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of Clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him."

21. Reverting to the facts of the present case in the

light of principle of law laid down by the Supreme

Court in Pavanendra Narayan Sharma (supra) followed in

Dr.Vijaykumaran C.P.V. (supra), it is quite vivid that

though a note alleging certain acts of indiscipline

and irresponsible act of the petitioners amounting to

misconduct was placed before respondent No.5 by the

Secretary of the Society on 16.10.2006 and thereafter

the impugned order dated 03.11.2006 terminating the

services of the petitioners came to be passed, but

nothing has been brought on record to demonstrate that

whether prior to termination of the petitioners except

petitioners No.3 and 6, a full­scale formal enquiry

into allegations involving misconduct as mentioned in

agenda dated 16.10.2006 was conducted which culminated

in a finding of guilt of the petitioners. The

petitioners have failed to bring material on record

that pursuant to note dated 16.10.2006 prepared by

Secretary of respondent No.5 or before placing a note

before Governing Body any full­scale formal enquiry

into allegations involving misconduct was conducted,

which resulted into guilt of the petitioners.

22. In the matter of Pavanendra Narayan Sharma (supra),

their Lordships have clearly held that if any of the

three factors is missing, order of termination cannot

be held to be punitive or stigmatic as in the instant

case, it has not been shown that any full­scale formal

enquiry was conducted into allegations as contained in

note dated 16.10.2006 and it resulted in guilt of the

petitioners, as such, all three ingredients are

missing for holding the impugned order of termination

to be punitive or stigmatic. Merely because a note has

been prepared and placed by Secretary of respondent

No.5 before the Governing Body alleging certain act of

misconduct upon the petitioners and eventually the

petitioners are placed under termination, therefore,

it cannot be concluded that order is punitive or

stigmatic, as such, argument that order is stigmatic

deserves to be rejected.

23. As a fallout and consequence of the above­stated

discussion, the order of termination dated 03.11.2006

is held to be not stigmatic or punitive, but it is a

termination simpliciter, but it is violative of clause 28

of the Statute No.28 of Pandit Ravi Shankar Shukla

University as neither one month's notice was given nor in

lieu of notice one month's salary was given. Since the

order of termination was termination simpliciter, though

in violation of clause 28 of the Statute No.28, as such,

the order of termination cannot be said to be vitiated on

account of non­compliance of clause 28 as clause 28 does

not require show­cause notice to be issued before

dispensing with services of probation along with reasons.

Therefore, the order of termination dated 03.11.2006 is

held to be termination simpliciter without any stigma.

However, the petitioners except petitioner No.3­

Ramnarayan Chandrakar and petitioner No.6­Ku.Renuka

Sharma will be entitled for one month's salary in lieu of

notice along with 9% interest from the date of

entitlement till the date of payment. The petitioners

are at liberty to make a representation within 30 days

for payment of their salary as claimed in Writ Petition

(S) No.4035 of 2017, which will be considered and decided

by respondents No.3 to 5 within next 45 days.

24. Accordingly, both the writ petitions are disposed of. No

order as to cost(s).

Sd/­

(Sanjay K. Agrawal) Judge B/­