Naijel Shane Phillips @ Nigel ... vs The Managing Committee Through ...
2023 Latest Caselaw 3 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    A.C.(S.B.) No.20 of 2011
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Naijel Shane Phillips @ Nigel Phillips son of H.E. Phillips, resident of C/o S.P. Ambastha Lane No.6, Jai Prakash Nagar, near Bus Stand, Bartand, Dhanbad, P.O. and P.S. Dhanbad, District Dhanbad. ... ... Petitioner/Appellant Versus

1. The Managing Committee through leader of Management- cum-Appointing Authority, Smt. Daljeet Kaur, Guru Govind Singh Public School, Dhanbad.

2. The President, Guru Govind Singh Public School, Dhanbad, P.O., P.S. and District Dhanbad.

                            ...     ... Respondents/Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Affaque Ahmad, Advocate Mr. Altaf Hussain, Advocate For the Respondents: Mr. V.P. Singh, Sr. Advocate Mr. Ramakant Tiwari, Advocate

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nd Order No.21 : Dated 2 January, 2023

Heard the parties.

2. The instant appeal is under Section 15 of the Jharkhand

Education Tribunal Act, 2005 (hereinafter to be referred to as

the Act, 2005) whereby and whereunder the order dated

13.09.2011 passed in Case No.47/2010 (JET) by the

Jharkhand Education Tribunal, Ranchi is under challenge

whereby and whereunder the order of separation from service

by way of termination vide office order dated 18.09.2010 has

been refused to be interfered with.

3. Brief facts of the case as per the pleadings made in the

memo of appeal, which are required to be enumerated, read as

under :-

The appellant was appointed as Vice Principal of Guru

Govind Singh Public School, Dhanbad vide letter dated

01.04.2009 after fulfilling all regular process of employment.

The appellant has successfully completed one year of

probation period as Vice Principal of the School and as per the

appointment letter, after completion of one year of probation

period, his service in the post of Vice Principal was to be

considered for confirmation.

The appellant had been working continuously since the

date of his appointment and no complaint was ever made by

the respondents for his ability and performance of his duty.

It is the further case of the appellant that as per the letter

of appointment, the appellant has completed one year

probation on 1.4.2010 in the post of Vice Principal and there is

no extension of period of probation and the service of the

petitioner is confirmed and the appellant was granted an

annual increment in salary.

It has been stated that after seeing the fair dealings,

working style and his dedication, he was advised to take the

charge of officiating principal of the Institution within a very

short period.

It is the case of the appellant that one Annual Increment

had been given to the appellant after satisfactory performance

and incidental report which also proves his performance

approved by the controlling authority of the school. But the

school management suddenly decided about the termination of

the service of the appellant arbitrarily, unilaterally and abrupt

manner without giving any notice or show-cause and a

reasonable opportunity to the appellant and issued termination

letter No.GGES/Cors/DHN/146-2010 dated 18.9.2010 under

the signature of the President of the said school without

assigning any reason for such termination.

It is the case of the appellant that he was appointed as the

Vice Principal of the respondent school on 01.04.2009 by virtue

of letter of appointment dated 31.03.2009. The aforesaid letter

of appointment contains a condition as condition No.1 that the

services of the appellant will be on probation for 12 months

which may be extended if so required. During the period of

probation, the services may be terminated by one month's

notice on either side or in lieu of one month's salary.

The grievance of the appellant is that all of a sudden and

without any communication, the office order was issued on

18.09.2010 by which the service has been terminated by giving

one month's salary amounting to Rs.20,837/-.

The appellant, being aggrieved with the decision of the

management by which he was terminated from service, has

approached to the Jharkhand Education Tribunal, Ranchi

(hereinafter to be referred to as the Tribunal) assailing the

impugned order inter alia on the ground that the order of

termination has been passed without following the principle of

natural justice and, as such, not sustainable in the eyes of law.

The further prayer has been made for reinstatement in

service with all back salary and other consequential benefits.

The Tribunal has called upon the management. The

management has taken the ground that the appellant is not

entitled for any opportunity to be given before taking decision

for termination from service in view of the fact that the service

of the appellant was on probation and on the date of

termination, i.e., on 18.09.2010, his status was of a temporary

employee and, as such, as per the condition stipulated under

condition No.1 of letter of appointment, the decision was taken

on 18.09.2010 to terminate the appellant from service.

According to the respondent, since the order of

termination dated 18.09.2010 has been passed with respect to

a probationer employee who is yet to be confirmed in service,

therefore, in view of condition No.1 stipulated in the letter of

appointment, no show cause notice has been issued to the

appellant and by giving one month's salary, the order of

termination has been passed and, therefore, the same is having

no infirmity and taking into consideration the aforesaid aspect

of the matter, the Tribunal has refused to interfere with the

decision taken by the management.

The Tribunal, after taking into consideration the rival

submission made on behalf of the parties as also taking into

consideration the condition stipulated in the letter of

appointment as under condition No.1 thereof, has dismissed

the application vide impugned order dated 13.09.2011, which is

the subject matter of the instant appeal invoking the

jurisdiction conferred to this Court under Section 15 of the Act,

2005.

4. Mr. Affaque Ahmad, learned counsel appearing for the

appellant, has submitted that the Tribunal has failed to

appreciate the fact by taking into consideration the case of

termination to be simplicitor in nature while if the stand of the

management will be taken into consideration as has been

incorporated by the Tribunal in its order, the same speaks

itself, i.e., the order of termination is based upon certain

serious allegations, as would appear from paragraph 4 of the

impugned order.

It has, therefore, been submitted that even if the said

misconduct has not been incorporated in the office order dated

18.09.2010 by which the appellant has been terminated from

service, then also, since the basis of taking such decision of

dispensing with his services is upon the nature of allegation

which is serious, therefore, the requirement of law is to follow

the cardinal principle of natural justice. But, the same having

not been followed, therefore, the impugned order of termination

from service is not sustainable in the eyes of law. But, the

Tribunal has not appreciated the aforesaid aspect of the matter

by going through the content of the office order dated

18.09.2010 and considering the nature of appointment of the

appellant which was not of a confirmed employee since he was

still on probation.

He has relied upon the judgment rendered by Hon'ble

Apex Court in the case of V.P.Ahuja v. State of Punjab and

Others [(2000) 3 SCC 239].

5. Per contra, Mr. V.P.Singh, learned senior counsel

appearing for the respondent management of the school,

assisted by Mr. Ramakant Tiwari, has submitted by referring to

the office order dated 18.09.2010 that the aforesaid order does

not reflect that the said order is punitive in nature, rather, the

said order is simplicitor and, as such, there is no requirement

to follow the principle of natural justice, reason being that the

condition has already been stipulated in the letter of

appointment to deal with the employee who has not yet been

confirmed and is a probationer and considering that aspect of

the matter, the office order was passed on 18.09.2010 since the

service of the appellant was not required in the school

management.

It has, therefore, been submitted that the Tribunal, after

taking into consideration the aforesaid aspect of the matter,

more particularly, the condition stipulated under condition

No.1 of the letter of appointment, if has refused to interfere with

the decision taken by the management, as contained under

office order dated 18.09.2010, the same cannot be said to suffer

from an error and, therefore, the order passed by the Tribunal

may not be interfered with.

It has been submitted, in response to the stand taken by

the learned counsel for the appellant about the reference of

allegation as has been made under paragraph 4 of the

impugned order, the same has been brought to the notice of the

Tribunal for denying the various claims/reliefs which were

made before the Tribunal by the appellant.

6. Heard learned counsel for the parties, perused the

documents available on record as also the finding recorded by

the Tribunal in the impugned order.

7. This Court, before entering into the legality and propriety

of the impugned order, deems it fit and proper to refer some

undisputed fact as per the material available on record.

Admittedly, the appellant was appointed by letter of

appointment dated 31.03.2009 as Vice Principal. The letter of

appointment contains several conditions, one of the conditions

is that the services of the appellant was kept on probation for a

period of 12 months subject to its extension, if so required.

It has further been stipulated that during the period of

probation, the services may be terminated on one month's

notice on either side or in lieu of one month's salary. For ready

reference, the condition stipulated under Condition No.1 is

being referred hereunder as :-

"1. You shall be on probation for a period of 12 months which may be extended, if so required.

During the period of probation, your services may be terminated by one month's notice on either side or in lieu of one month's salary.

On completion of the probationary period, you will be considered for confirmation in your post and thereafter annual increment will be subject to satisfactory performance and incidental report."

The appellant, thereafter, has been served with the office

order dated 18.09.2010 by which in lieu of one month's notice,

the management has paid one month's salary amounting to

Rs.20,837/- and dispensed with his services as the

management has decided that his services are no longer

required.

The appellant, being aggrieved with the office order dated

18.09.2010, has approached the Tribunal assailing the

aforesaid order seeking therein the other reliefs, i.e., for stay of

the order dated 18.09.2010 and for reinstatement of the

appellant in service with full back salary and other

consequential benefits.

The Tribunal has considered the rival submissions made

on behalf of the parties and taking into consideration the

condition stipulated under letter of appointment as contained

under condition No.1, as per which, there is no requirement to

give an opportunity of hearing in case the service of the

appellant is not required, rather, the requirement is to give one

month's salary in lieu of notice and taking recourse thereof,

the impugned order has been issued, therefore, the Tribunal

has refused to interfere with the same by passing the impugned

order dated 13.09.2011.

The appellant, being aggrieved with the same, is before

this Court by invoking the jurisdiction conferred under Section

15 of the Act, 2005.

8. The question which has been raised on behalf of the

appellant regarding the requirement to follow the principle of

natural justice, which having not been followed, therefore, the

order of termination dated 18.09.2010 is not proper and

justified. Such ground has been taken even though the order by

which the service of the appellant has been dispensed with,

does not refer any stigma. Such ground has been taken to

follow the principle of natural justice on the basis of the facts

which were brought by the management before the Tribunal, as

would appear from paragraph 4 thereof, as recorded by the

Tribunal in the impugned order.

Learned counsel for the appellant, therefore, submits that

the Tribunal has taken into consideration the reason for

dispensation of service of the appellant, as has been

incorporated at paragraph 4, which is serious in nature and,

therefore, the appellant is required to be given an opportunity

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to defend.

It has been submitted that since the nature of allegation,

as would be evident from paragraph 4 of the impugned order is

serious in nature and even though the same has not been

reflected in the office order dated 18.09.2010, then also the

appellant is entitled for an opportunity to defend himself since

the basis for dispensing the services of the appellant has not

been changed, as would appear from the pleading made by the

management before the Tribunal.

9. While on the other hand, the respondent has taken the

ground that in view of the condition stipulated under condition

No.1 of the letter of appointment, there is no requirement to

follow the principle of natural justice and what was required

has already been followed, i.e., in lieu of one month's notice,

one month's salary was paid in the bank account of the

appellant and, therefore, the Tribunal is correct in not

interfering with the order of termination.

10. This Court, therefore, on appreciation of the grounds as

has been agitated on behalf of the parties, is required to answer

as to whether in the given facts of the case the principle of

natural justice is required to be followed or not?

The position of law is well settled that in case of an

employee, if not confirmed in service, rather is under probation

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and the order of termination if being passed without any

allegation, i.e., without any imputation of charges and

simplicitor in nature, there is no requirement to follow the

principle of natural justice. Reference in this regard may be

made to the judgment rendered by Hon'ble Apex Court in the

case of Om Prakash Mann v. Director of Education (Basic) and

Others reported in (2006) 7 SCC 558 wherein at paragraph 10

it has been held which reads hereunder as:-

10. Admittedly, the enquiry was also initiated against the appellant when he was on probation. It is well- settled principle of law that if the probationer is dismissed/terminated during the period of probation no opportunity is required to be given and, therefore, the question of violation of principle of natural justice does not arise in the given facts of this case.

But the position of law is otherwise if the order of

termination suffers from any stigma, as has been held by

Hon'ble Apex Court in the case of V.P.Ahuja (Supra) upon

which the learned counsel appearing for the appellant has

relied upon.

11. This Court has considered the judgment rendered by the

Hon'ble Apex Court in the case of V.P.Ahuja (Supra) wherein

although the order of termination is little bit different to that of

the order of termination which is the subject matter of

considering by the Tribunal since, in the case of V.P.Ahuja

(Supra) the order of termination reflects that the concerned

appellant had failed in performance of his duties

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administratively and technically. For ready reference, the order

of termination is being referred which reads hereunder as:-

"ORDER Shri V.P.Ahuja, s/o late Shri H.N. Ahuja was appointed on probation for 2 years as Chief Executive of the Coop.

Spg. Mills Ltd. vide orders Endst. No. Spinfed/CCA/7844-45 dated 29-9-1998 and posted at Bacospin. However, he failed in the performance of his duties administratively and technically. Therefore, as per clause I of the said appointment order, the services of Shri V.P. Ahuja are hereby terminated with immediate effect.

Sd/-

(Managing Director) SPINFED"

The Hon'ble Apex Court, in the light of the aforesaid order

of termination, wherein the services of the concerned appellant

was dispensed with by taking into consideration the failure on

the part of the concerned appellant administratively and

technically and in that background when the order of

termination was passed without providing an opportunity of

hearing, the Hon'ble Apex Court has propounded that since the

order of termination is punitive in nature, therefore, the

requirement to follow the principle of natural justice will be

mandatory and in view thereof, the order of termination has

been reversed by reversing the order passed by the High Court

concerned.

12. This Court, on the basis of the aforesaid proposition, is

now proceeding to examine the factual aspect of the given case.

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Admittedly herein, as would appear from order dated

18.09.2010, as appended as Annexure-2 to the memo of

appeal, wherein there is no reference of any misconduct or any

allegation, rather, the order reflects that the management has

decided that the services of the appellant is no longer required,

for ready reference, the contents of the office order dated

18.09.2010 is being referred hereunder as:-

"Ref. No.GGES/Cors/DHN/146-2010 Date 18.09.2010

OFFICE ORDER

The Management, has decided that your services are no longer required.

You are required to relinquish the charge to Mr. Prabhat Kumar, PGT, Physics.

In lieu of one month's notice the Management is paying you one month's salary amounting to 20,837/- by account payee cheque no.830240 dated 18.09.2010 of Punjab and Sind Bank, Dhanbad. And another cheque no.830241 dt. 18.09.2010 against salary upto 18/09/2010 Rs.13,793/-.

This Office order is to be complied with immediate effect. Sd/-

(J.S.Sekhon) President"

This Court, on the basis of the content of the aforesaid

order dated 18.09.2010 and comparing with the proposition

laid down by the Hon'ble Apex Court in the case of V.P.Ahuja

(Supra), is of the view that the fact is little bit different, since, in

the V.P.Ahuja's case, the order of termination itself reflects

about the deficiency in discharge of duties administratively and

technically, however, such stipulation has not been made in the

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office order dated 18.09.2010 but the reference of allegation

has been brought to the notice before the Tribunal and the

same has been taken into consideration by the Tribunal as

would appear from paragraph 4 thereof, wherein, while taking

the ground for not confirming the services of the appellant,

reference of a confidential report dated 01.09.2010 of the

Director of the School about the appellant for the period

01.04.2009 to 31.08.2010, among other things, the complaints

against him regarding sexual harassment in the work place of

the female workers/teachers/students, has also been recorded

and reported to the Secretary of the school.

It has further been reflected that the office memorandum

was also issued on 09.07.2010 warning him to be careful in

future and to apply due diligence in performance of his duties

or else the school management would be constrained to take

appropriate disciplinary action against him. For ready

reference, paragraph 4 of the order of the Tribunal is required

to be referred herein, which reads hereunder as:-

"4. Defending the payment of one month's salary along with the office order dated 18.9.2010 relating to termination of services of the petitioner, it has been stated that the same is just, proper and is in conformity with the terms as noted in paras 1,4,10 & 12 of his letter of appointment (anexure-I of the petition). Therefore, there is no illegality and arbitrariness in the said order. Further, on perusal of annexure-3 of the petition (the news item in a local news paper) it may be seen that the petitioner was removed from the charge of

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the Principal of the school 10 days ahead of termination of his services and Smt. Daljeet Kaur had taken the charge of the Principal. The decision to terminate the petitioner's services on account of his misconduct was taken in the meeting held by the Committee. The petitioner's services were not confirmed and hence there was no need for giving him three month's notice in terms of the conditions as noted in his letter of appointment. Additionally, in a confidential report dated 1.9.2010 of the Director of this school about the petitioner for the period 1.4.2009 to 31.08.2010, among other things, the complaints against him regarding sexual harassment in the work place of the female workers/teachers/students, stand duly recorded and reported to Secretary of the school (annexure-F of the W.S). What is more significant and relevant to this case is that on 9.7.2010 an Office Memorandum was issued to this petitioner warning him to be careful in future and to apply due diligence in performance of his duties or else the school-management would be constrained to take appropriate disciplinary action against him (annexure-G of the W.S). In regard to the advocate's notice of the petitioner in the aftermath of termination of his services, addressed to the President of the school it has been stated that a report in this regard by respondent no.1 (Smt. Daljeet Kaur, Director- Principal of school) was submitted on 21.10.2010 to the President (annexure -H of W.S) wherein, among other things, it has been clearly noted that inspite of serious complaints against the petitioner the same has been avoided to be mentioned in his termination letter, the school- management has not given any news to be published in the newspapers and finally, he was given salary in lieu of one month's notice which was as per the terms of the appointment letter. Based on all these facts it has been pleaded that the petitioner does not deserve any relief and that he has suppressed material facts and hence, this case is fit to be dismissed with cost."

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13. The question, therefore, arises that the management

which is now defending the order passed by the Tribunal as

also the decision taken by itself regarding termination of

services of the appellant on the ground that from bare reading

of the order dated 18.09.2010, there is no reference of

misconduct/allegation.

The question is that when that was the stand of the

Management while taking such decision then why reference of

misconduct/allegation has been brought to the notice of the

Tribunal, as has been incorporated in the impugned order, as

quoted and referred hereinabove.

14. Learned counsel for the appellant, in the aforesaid

backdrop, is correct in saying that the management in very

clever manner has not incorporated the said allegation in the

order of termination dated 18.09.2010 only to make out a case

for not applying the principle of natural justice.

15. This Court is not in disagreement with the aforesaid

submission, reason being that if the management was of the

view while taking decision to terminate the appellant from

service vide order dated 18.09.2010 on the ground of order of

termination to be simplicitor in nature then what was the

occasion to take such ground of nature of allegation as has

been brought to the notice of the Tribunal and was

incorporated in paragraph 4 of the order passed therein.

16. This Court is of the view that if that was the reason for

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taking such decision, it was the bounden duty of the

management to bring those facts into the notice of the

appellant so as to provide him opportunity before taking

decision of terminating him from service but the same has not

been done, rather, the order of termination dated 18.09.2010

has been shown to be simplicitor while the background to take

such decision was otherwise, as would appear from imputation

of allegation referred in paragraph 4 of the order impugned.

17. This Court, therefore, is of the view that merely because

there is no reference of imputation of allegation in the office

order dated 18.09.2010 by which the appellant was terminated

from service, the same cannot be construed to be simplicitor in

nature by taking into consideration the basis of taking such

decision, as has been referred in paragraph 4 of the impugned

order brought before the Tribunal by the management itself.

18. This Court, in view of aforesaid fact, is of the view that the

principle which has been laid down by the Hon'ble Apex Court

in the case of V.P.Ahuja (Supra) will squarely be applicable

herein also.

19. This Court, having discussed the factual aspects along

with the legal position, has gone across the order passed by the

Tribunal in order to scrutinize its legality and found therefrom

that even though the Tribunal has recorded the nature of

allegation as under paragraph 4 thereof but it has confined

itself by only considering the content of the office order dated

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18.09.2010 which, according to the considered view of this

Court, cannot be said to be proper and justified one and, as

such, the order passed by the Tribunal dated 13.09.2011 in

Case No.47/2010 (JET) requires interference.

20. In consequence thereof, the order dated 13.09.2011

passed by the Tribunal in Case No.47/2010 (JET) is quashed

and set aside.

In further consequence thereof, the office order dated

18.09.2010 is also quashed.

21. This Court, after having interfered with the office order

dated 18.09.2010, is of the view that the settled position of law

is that no one can be allowed to take advantage on the basis of

technicality, rather, if there is any allegation leveled against any

employee/anybody, the same has to be given logical end and

before giving logical end the concerned person against whom

the decision is to be taken, is required to be provided with an

opportunity.

Therefore, this court is of the view that the matter requires

consideration afresh so far as the allegation leveled against the

appellant is concerned.

22. Accordingly, the matter is remitted before the management

of the school to take decision afresh after giving an opportunity

of hearing to the appellant.

Let this exercise be completed within a period of 12 weeks

from the date of receipt of copy of the order.

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The school management is required to issue show cause

notice within a period of four weeks.

The appellant will give its reply within a further period of

four weeks for its consideration in accordance with law by the

school management.

The school management, in terms thereof, shall pass

necessary order within a further period of four weeks.

It is made clear that after service of notice upon the

appellant, if there will be no reply to such show cause, the

school management will be at liberty to proceed in accordance

with law.

23. It requires to refer herein that so far as the consequential

benefits and other benefits are concerned, the same will depend

upon the final outcome of the decision to be taken by the school

management, as directed hereinabove.

24. Accordingly, the appeal stands allowed with the aforesaid

observations and directions.

(Sujit Narayan Prasad, J.)

Birendra/ A.F.R.