Jharkhand High Court

Sheetal Barnwal vs The State Of Jharkhand on 14 June, 2021

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                         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                        W.P. (S) No. 488 of 2018


               Sheetal Barnwal                                               ...         ...Petitioner
                                       -Versus-
               1. The State of Jharkhand, through the Secretary, Human Resource Development
               Department, Government of Jharkhand, Project Building, Dhurwa, Ranchi
               2. The Netarhat Vidyalay Samittee through its Chairman, Executive Committee,
               NVS, Netarhat Vidalaya Sameeti, Human Resource Development Department,
               Jharkhand HEC, MDI Building, Dhurwa, Ranchi
               3. The President (Adhyakasha), General Body, Netarhat Vidyalaya Sameeti,
               Human Resource Development Department, Jharkhand HEC, MDI Building,
               Dhurwa, Ranchi
               4. The Director of Secretary Education, Government of Jharkhand, Human
               Resource Development Department, Jharkhand HEC, MDI Building, Dhurwa,
               Ranchi
               5. The Principal-cum-Member Secretary, NVS, Netarhat Residential School,
               Netarhat, Latehar                                             ...        ...Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK (Through Video Conferencing)

For the Petitioner :Mr. Prashant Pallav, Advocate.

For the Respondent Nos.2, 3 & 5 : Mr. Bhanu Kumar, Advocate For the Resp.-State : Ms. Shalini Shahdeo, AC to Sr. SC-I

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               CAV on 17.03.2021                                    Pronounced on 14.06.2021

Dr. S.N. Pathak, J. :           The petitioner has approached this Court for quashing /setting

aside the order /notification dated 13.10.2017 issued vide Letter Nos. 1879 and 1880 dated 13.10.2017 respectively (Annexures-12 & 13), whereby and whereunder, the services of the petitioner has been terminated by the respondents without following the rule of procedure for Recruitment, Service Condition and Disciplinary Rules, 2011, specially enacted for Natarhat Vidyalaya. Further, prayer has been made for a direction upon the respondents to reinstate the petitioner with immediate effect to her original post as a counselor. Further prayer has been made for a direction upon respondents for payment of Salary and other allowances with all consequential benefits for the period she has been illegally kept out of services.

2. The case of the petitioner lies in a narrow compass. The petitioner was appointed as a counselor in the Netarhat Awasiya Vidyalaya following due

recruitment process and joined on 10.04.2013 and thereafter she gave her services to the school to the best of her abilities to the satisfaction of all concerned. After completion of probation period of one year, the school administration made a recommendation for confirmation of her services vide Letter No. 1409 dated 01.09.2014. Pursuant to the same, the services of the petitioner was confirmed by the Department of Human Resources, Govt. of Jharkhand on 20.05.2015, which was intimated to the petitioner vide letter No. 197 A dated 20.05.2015. The School Authority also communicated to the petitioner regarding confirmation of service vide its Letter No. 1294 dated 15.06.2015, issued under the signature of the Principal, Netarhat School. After successful completion of period of probation and getting the service confirmed, the petitioner got allotment of a residential quarter vide letter No. 2719 dated 11.08.2016, which was to be shared with one of her colleagues from the school and for that there were certain guidelines in the allotment letter which were to be followed by the allottees. It is further case of the petitioner that all of a sudden, on the ground of some complaint, even without disclosing the name of the complainant and without supplying any complaint letter, the petitioner was called by the Principal of the School in his Chamber after school hours and after closing the door, severely rebuked and misbehaved with the petitioner in a very intolerable manner and started making baseless allegations for hours continuously, which was beyond the understanding of the petitioner. On 09.10.2017, petitioner was served with an office order vide letter No. 1851 dated 09.10.2017 whereby she was directed to move to Ranchi on 10.10.2017 by the School vehicle. Thereafter, the petitioner was escorted by the Principal himself from the School restraining her in a confinement. The petitioner was totally perplexed being a lady as she was not able to take a decision and she was also not able to understand what mistake she has committed for which she is subjected to such an ill treatment by the school authorities.

3. On the next morning, when the petitioner was brought to Ranchi she was directly taken to the Human Resources Department, Ranchi and without any prior information she was asked to appear before the Executive Meeting of the School, where she was handed over a questionnaire and asked to give para wise reply of the same. The petitioner was totally confused so she requested for grant of some time for giving reply to the questionnaire, but the same was out rightly rejected and the Committee pressurized her to give reply to the questionnaire put before her, in a closed room. Left with no option, the petitioner gave para wise reply to all the questionnaires as per her understanding and the copy of the said questionnaire was asked by the petitioner. The same day, petitioner was also brought back to Netarhat School Campus and two days

thereafter i.e. on 13.10.2017, decision of the Executive Committee issued vide Memo No. 1879 dated 13.10.2017 was communicated to her stating therein that the Executive Committee has unanimously decided that allegation leveled against her are proved to be correct and hence it is decided to terminate the services of the petitioner. Thereafter, without giving any further opportunity to the petitioner, the Principal cum Member Secretary Netarhat Vidyalaya issued Notification vide Letter No. 1880 dated 13.10.2017 terminating the services of the petitioner. Aggrieved by the same, petitioner represented before the Principal of the said School, but no decision has been taken. Hence, the petitioner has been constrained to knock the door of this Court.

4. Mr. Prashant Pallav, learned counsel for the petitioner submitted that the impugned order of termination is against the Service Rule. Clause 24 of the Recruitment, Service Conditions and Disciplinary Rules, 2011 prescribes two types of penalties namely Major Penalty and Minor Penalty. Further, as per Clause 24 (c) (1) of the said Rule definite charges need to be framed by the Disciplinary Authority and a copy of the same is required to be served upon the employee concerned. However, in the instant case, neither any memo of charge nor a copy of complaint or inquiry report was served upon the petitioner, though a questionnaire was supplied to her. He further submitted that no show cause notice has ever been issued to the petitioner and also without affording an opportunity of hearing, the impugned order of termination has been issued on the basis of a in- camera proceeding. The respondents terminated /dismissed the petitioner under clause 9 and 10 of the said Rule, but from perusal of the said Rule, it is clear that neither clause 9 is applicable in the instant case nor Clause 10 is applicable. He further submitted that is it not a case of termination simplicitor, and order of termination has been passed by giving complete go bye to the relevant Rules and as such, the impugned order is not tenable in the eyes of law. Learned counsel lastly argued that though the contract provided for an arbitration clause, but it would not have been an efficacious remedy available to the petitioner.

5. To buttress his argument, learned counsel for the petitioner placed heavy reliance on the following judgments of Hon'ble Apex Court :

I. State Bank of India & Others Vs. Palak Modi & Anr 1.

II. Central Inland Water Transport Corporation V. Brojo Nath Ganguly2.

III.Whirphool Corporation V. Registrar of Trade Marks, Mumbai & Ors3.

6. Per contra counter-affidavits have been filed.

(2013) 3 SCC 607

(1986) 3 SCC 156

(1998) 8 SCC 1

7. Mr. Bhanu Kumar, learned counsel appeared on behalf of the respondent Nos.2, 3 & 5 and submitted that impugned order of termination has been passed after complying with the principles of natural justice and providing reasonable opportunity of hearing to the petitioner and as the petitioner violated the code of conduct of the school, her services was rightly terminated. The petitioner was provided questionnaire along with charges contained therein having numerous questions, to which the petitioner herself replied and admitted that she had kept a male retired teacher of the school in her official residence, without information to anybody, including the Principal of the School, continuously for five days and nights in isolation, which are specially allotted to unmarried lady teachers. He further submitted that Netarhat School has two fully furnished guest houses for providing accommodation to retired teachers/guests and being ignorant of the same she had provided accommodation to a male retired teacher of the school sending a wrong message to other teachers, staff and students of the school and thus she was found guilty for polluting the healthy educational atmosphere of the institution which is against the code of conduct of teachers and staff of the School amounting to gross indiscipline and misconduct on the part of the petitioner and rightly she has been terminated from the services.

8. It is further submitted that the services of the petitioner has been terminated by way of termination simplicitor after following the procedure of law. He further submitted that Clause-3 of Recruitment Service Condition and Disciplinary Rules, 2011 clearly provides that a contract has to be signed by candidates to whom appointment is offered and the said Format of Contract is given at Appendix-1 of the said Rule, titled as "Contract of Service" wherein at para 9 and 10 it is stipulated that any teacher/staff may be liable for disciplinary action for any act of insubordination, intemperance of misconduct or any criminal offence or non-performance of duties or in violation of code of conduct and their services may be terminated by giving three months notice in writing or in alternative by paying three months salary to the delinquent.

9. Learned counsel further submitted that as the reply of the petitioner, by way of questionnaire was not found satisfactory, the Executive Committee in its meeting dated 10.10.2017 took a unanimous decision to terminate the services of the petitioner, by giving three months prior notice or paying a sum equivalent to three months salary for violation of terms and conditions stipulated in para 9 and 10 of the "contract of the service". He further submitted that petitioner has not been awarded any major penalty of dismissal or removal from services rather her services have been terminated by way of termination simpliciter and as such, there was no requirement of following full-fledged departmental proceedings as contained in Clause 24 of the Rules, 2011. Para-11 of the "Contract of Services"

as contained in Appendix-I of Rules, 2011 clearly stipulates that any dispute including any disciplinary action leading to dismissal or removal from services shall be referred for arbitration to any person to be nominated by the Adhyaksha of the Society and as such, the petitioner without exhausting alternative remedy available to her has approached this Court and on this score itself instant writ petition is not maintainable and is liable to be dismissed in limine. The petitioner has not approached this Court with clean hands as the petitioner has deliberately suppressed the fact that she had earlier filed a case bearing Case No. 49/2017 (ET) before the Jharkhand Education Tribunal, Ranchi which has stood dismissed as withdrawn. To buttress his argument, learned counsel for the petitioner placed heavy reliance on the judgments of Hon'ble Apex Court in case of Joshi Technologies International INC. Vs. Union of India4.

10. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the services of the petitioner have been terminated without following the due procedures of law. The order of termination is dehors the Recruitment, Service Conditions and Disciplinary Rules, 2011 wherein Clause 24 (C) deals with the procedures for imposing major penalties and the same cannot be inflicted upon any employee without any enquiry as prescribed under the Rule. It is stipulated in the said Rules that definite charges has to be framed by the Disciplinary Authority and same has to be served upon the delinquent employee, but in the instant case, neither the charges were framed nor the same has been served to the petitioner. Further, the petitioner was never afforded any opportunity of hearing or show cause notice, save and except a copy of questionnaire and as such, there is a complete violation of principles of natural justice.

11. The cause of termination from the services was misconduct and gross indiscipline and as such, the issue to be decided in the instant case is as to whether misconduct can be proved in a Summary Proceeding or the same has to be decided in a full-fledged departmental proceedings following the procedures of law. The law is well settled that as soon as an act of misconduct is leveled against an employee, the same has to be decided in a full- fledged departmental proceedings and not in a summary proceedings. The issue fell for consideration before the Hon'ble Apex Court in case of State Bank of India & Others Vs. Palak Modi & Anr (supra), wherein the Hon'ble Apex Court has held that :

"25. The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance

(2015) 7 SCC 728

in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."

"36 There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct."

12. In the instant case, the fingers have been raised against the character of a female employee without any enquiry/evidence, which has not been proved in any departmental proceeding or enquiry. The services of an employee has been put to an end, snatching her livelihood, without following the procedures of law. The petitioner is not a probationer rather her services were confirmed by the Competent Authority and she a permanent employee of the School. The services of the permanent employee cannot be put to an end by way of termination simpliciter. The Hon'ble Apex Court in case of Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors. 5 has held thus:

28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute

(2015) 4 JBCJ (SC) 408

foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.

13. So far as contention of the learned counsel for the respondents regarding maintainability and availability of alternative remedy is concerned, no doubt when an alternative remedy is available, without availing the same, writ petition is not maintainable and cannot be entertained. However, in the celebrated judgment of Hon'ble Apex Court in case of Whirphool Corporation V. Registrar of Trade Marks, Mumbai & Ors. (supra), it has been held that "15. Under Article 226 of the Constitution, the High court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where

the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field".

14. Further, the Hon'ble Apex Court in case of Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors.6, it has been held that:

"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [ See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 11. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings".

15. Further, the Hon'ble Apex Court in case of Sanjana M. WIG (Ms.) Vs. Hindustan Petroleum Corporation Ltd.7, it has been held that:

13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief.

14. A Division Bench of this Court in ABL International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Limited & Ors. [JT 2003 (10) SC 300], observed that in certain cases even a disputed question of fact can be gone into by the court entertaining a petition under Article 226 of the Constitution of India, holding :

"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to

(2003) 2 SCC 107

(2005) 8 SCC 242

entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

16. Further, the Hon'ble Apex Court in case of Uttar Pradesh Power Transmission Corporation Ltd. & Anr. Vs. CG Power and Industrial Solutions Limited and Anr.8, it has been held that

67. Even though there is an arbitration clause, the petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the counter affidavit filed by the UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition.

68. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right, (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the rives of an Act is under challenge. Reference may be made to Whirpool Corporation Vs. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1 :AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation V. Gayatri Construction Company, reported in (2008) 8 SCC 172, cited on behalf of Respondent No.1.

69. In Harbanslal Sahnia V. Indian Oil Corporation Ltd., reported in (2003) 2 SCC 107, this Court allowed the appeal from an order of the High Court dismissing a writ petition and set aside the impugned judgment of the High Court as also the impugned order of the Indian Oil Corporation terminating the dealership of the appellants, notwithstanding the fact that the dealership agreement contained in arbitration clause.

17. Any Disciplinary Action snatching the livelihood of a person should be always in accordance with law. Any order of major punishment passed dehors the Rules, is not sustainable in the eyes of law. The judgment relied upon by the learned counsel for the respondents regarding arbitration clause is of no help to him as the same is not applicable in the instant case. Admittedly, taking shelter of provision of termination simplicitor, the impugned order of termination has been passed by the employer without following the procedure of law.

2021 SCC Online SC 383

18. Ld. Counsel for respondent has contended that services of petitioner was terminated in view of unanimous decision taken by competent authority, by giving three months prior notice or paying a sum equivalent to three months salary for violation of terms and conditions stipulated in para 9 and 10 of the "contract of the service and such no prejudice has been committed to the petitioner. However, this Court is of the view that any statute conferring unfettered right to employer to terminate the services of a permanent employee by giving three months prior notice or paying a sum equivalent to three months salary is bad in eyes of law. The issue fell for consideration before the Hon'ble Apex Court in case of Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly (supra), it has been held that "112. In the result, both these Appeals fail and are dismissed but the order passed by the Calcutta High Court is modified by substituting for the declaration given by it a declaration that clause (i) of Rule 9 of the "Service, Discipline & Appeal Rules - 1979" of the Central Inland Water Transport Corporation Limited is void under section 23 of the Indian Contract Act, 1872, as being opposed to public policy and is also ultra vires Article 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months' notice in writing or by paying him the equivalent of three months' basic pay and dearness allowance in lieu of such notice.

19. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is of the considered view that the impugned order has been passed in complete violation of cardinal principles of natural justice and without following the procedures of law, the same is liable to be quashed and set aside and as such, impugned order dated 13.10.2017 issued vide Letter Nos. 1879 and 1880 dated 13.10.2017 are quashed and set aside. Accordingly, it is directed that the petitioner be reinstated in services, within a period of eight weeks from the date of receipt of a copy of this order with all consequential benefits which shall be paid to her, within the aforesaid period. In the facts and circumstances, there shall be no order as to costs.