Madhya Pradesh High Court
Sanjiv Kumar Shinde vs The State Of Madhya Pradesh on 27 August, 2021
Author: Sujoy Paul
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The High Court Of Madhya Pradesh
WP-17181-2015
(SANJIV KUMAR SHINDE Vs THE STATE OF MADHYA PRADESH AND OTHERS)
15
Jabalpur, Dated : 27-08-2021
Heard through Video Conferencing.
Shri Sanajy K. Agrawal, learned counsel for the petitioner.
Shri Rithwik Parasar, learned GA for respondents No.1 to 3.
Ms. Neelima Seth, learned counsel for respondents No.4 & 5.
With the consent finally heard.
In this petition filed under Article 226 of Constitution, the petitioner has
prayed for following reliefs:
1. To call for the records for kind perusal of this Hon'ble Court.
2. To issue direction to the respondents forthwith allow the
petitioner to perform his duties in B I Subhash Higher Secondary
School, Khandwa as peon.
3. To direct the respondents to pay all the backwages and
allowances and other increments with all consequential benefits.
4. Any other reliefs which this Hon'ble Court may deem just and
proper in the facts and circumstances of the case may kindly be granted
along with cost.
Counsel for the petitioner submits that the petitioner was appointed by
following due process by an appointment order dated 01/07/1999 (Ann.P/1).
Respondents No.4 & 5 were getting 100% grant-in-aid from the State
Government. They are amenable to the writ jurisdiction of this Court. The
respondents reduced the salary of petitioner to his detriment which led him to
file writ petition i.e. W.P. No.6243/2001 which was decided on 05/12/2003.
The respondents were directed to pay salary of petitioner to the extent
mentioned in Paragraph 8 of the said judgment.
The respondents although issued certain show cause notices to
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petitioner, no order of punishment or termination was ever served on him.
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Petitioner was not allowed to join the duties. When petitioner filed the present
writ petition, the respondents filed their reply and along with the reply for the
first time filed a resolution of the society dated 27/09/2014 wherein a decision
is allegedly taken to terminate the services of the petitioner. The said
resolution was never translated into reality by issuing a written order to the
petitioner. The termination order can be issued by following the procedure
prescribed in the Madhya Pradesh Ashaskiya Shikshan Sanstha (Anudan
Ka Pradaya) Adhiniyam, 1978. Heavy reliance is placed on Section 6 of
the Adhiniyam and judgments of the Supreme Court reported in AIR 1966
SC 1313 (State of Punjab Vs. Amar Singh Harika) and 2007(5) SCC
591 (Bikash Bhushan Gosh and others Vs. Novartis India Limited &
another). On the basis of these judgments, it is submitted that the resolution
of the society cannot be treated as an order of termination. A resolution
passed and kept in the file cannot be equated with an order of termination
issued and communicated to the employee.
Per contra, Shri Prashar learned GA submits that respondents No.1 to
3 are formal parties.
Ms. Seth supported the impugned order by contending:
1. Petitioner remained absent for about 5 years.
2. He was put to various notices which were filed along with reply.
3. The administration passed the resolution dated 27/09/2014 which
shows that the petitioner was terminated.
No other point is pressed by learned counsel for the parties.
I have heard the parties at length and perused the record.
Section 6 of the Adhiniyam reads as under:
6. Prohibition on creation of posts and appointments of staff
and termination of services. - Notwithstanding anything contained in
any law for the time being in force or any rules, regulations, bye-laws,
statutes or regulations made thereunder,-
(a) on and from the appointed date,-
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(i) no post of a teacher or other employee shall be created [xxx]
and no teacher or other employee shall be recruited without following
the procedure prescribed in this behalf;
(ii) the teachers or employees shall have such qualifications and
experience as may be prescribed; and
[(iii) no teacher or other employee shall be dismissed or
removed from service or his services terminated except in accordance
with such procedure as may be prescribed:]
(iv) [xxx]
(b) [xxx]
(c) [xxx]
A plain reading of the provision makes it clear that law prescribes a
method of appointment and termination of staff working in aided institutions.
This is trite that if statute prescribes a thing to be done in a particular manner,
it has to be done in the same manner and other methods are forbidden. See :
Baru Ram Vs. Smt. Prasanni & ors. AIR 59 SC 93, Dhanajaya Reddy Vs.
State of Karnataka (2001) 4 SCC 9, Commissioner of Income Tax,
Mumbai Vs. Anjum M.H. Ghaswala & others 2002(1) SCC 633 and
judgment of this Court reported in Satyanjay Tripathi & anr. Vs. Banarsi
Devi 2011 (2) MPLJ 690.
Section 6 aforesaid is an enabling provision and couched in a
mandatory language because it begins with expression 'no teacher or other
employee shall be dismissed or removed....'. If this mandatory provision is
violated, interference is warranted. The respondents are unable to show any
provision or service rules which enable them to terminate the services in the
manner they have done it by way of passing a resolution.
In the case of Bikash Bhushan Gosh (supra), the Apex Court
considered the previous judgments and opined as under:
18. Yet again appellants being workmen, their services
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were protected in terms of the Industrial Disputes Act,
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1947. If their services were protected, an order of
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termination was required to be communicated.
Communication of an order of termination itself may give
rise to a cause of action. An order of termination takes
effect from the date of communication of the said order. In
State of Punjab v. Amar Singh Harika [ A.I.R. 1966 SC
1313], this Court held;
"(11) ... It is plain that the mere passing of an order of
dismissal would not be effective unless it is published
and communicated to the officer concerned. If the
appointing authority passed an order of dismissal, but
does not communicate it to the officer concerned,
theoretically it is possible that unlike in the case of a
judicial order pronounced in Court, the authority may
change its mind and decide to modify its order. It may
be that in some cases, the authority may feel that the
ends of justice would be met by demoting the officer
concerned rather than dismissing him. An order of
dismissal passed by the appropriate authority and kept
with itself, cannot be said to take effect unless the
officer concerned knows about the said order and it is
otherwise communicated to all the parties concerned. If
it is held that the mere passing of the order of dismissal
has the effect of terminating the services of the officer
concerned, various complications may arise. If before
receiving the order of dismissal, the officer has
exercised his power and jurisdiction to take decisions or
do acts within his authority and power, would those acts
and decisions be rendered invalid after it is known that
an order of dismissal had already been passed against
him? Would the officer concerned be entitled to his
salary for the period between the date when the order
was passed and the date when it was communicated to
him? These and other complications would inevitably
arise if it is held that the order of dismissal takes effect
as soon as it is passed, though it may be communicated
to the officer concerned several days thereafter. It is
true that in the present case, the respondent had been
suspended during the material period; but that does not
change the position that if the officer concerned is not
suspended during the period of enquiry, complications
of the kind already indicated would definitely arise. We
are therefore, reluctant to hold that an order of
dismissal passed by an appropriate authority and kept
on its file without communicating it to the officer
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concerned or otherwise publishing it will take effect as
from the date on which the order is actually written out
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by the said authority; such an order can only be
effective after it is communicated to the officer
concerned or is otherwise published."
(Emphasis supplied)
In view of this judgement, I find substantial force in the argument of
Shri Agrawal that a resolution passed behind the back of petitioner and kept
in the file cannot be equated with an order of termination. In absence of
communication of such order, the resolution cannot be a reason to
discontinue the petitioner. Resultantly, the respondents are directed to
reinstate the petitioner within 60 days. The liberty is reserved to the employer
to proceed against petitioner in accordance with law.
In the facts and circumstances of this case, the petitioner shall be
entitled to get 20% backwages.
Petition is allowed to the extent as indicated hereinabove.
C.C. as per rules.
(SUJOY PAUL)
JUDGE
nd
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Date: 2021.08.27 04:20:27 IST
