S.S.L. Jain Education Society (A ... vs Dr. Santosh Kumar Chauhan
2021 Latest Caselaw 2994 MP

                                     1                        WA 563.2021

                 The High Court of Madhya Pradesh
                             WA 563.2021
                 SSL Jain Education Society & Anr.
                                   Vs.
                Dr. Santosh Kumar Chauhan & Ors.
Gwalior dated 06.07.2021

      Shri Vivek Jain, learned counsel for appellants.

      Shri Prashant Sharma, learned counsel for respondent No.1.

Shri Varun Kaushik, learned Govt. Advocate for the State.

1. Present Intra Court Appeal u/S. 2 (1) of Madhya Pradesh Uchcha

Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 filed by

appellants assails interlocutory order passed by learned single judge in

pending W.P. 9150/2021 on 11/6/2021 whereby impugned order dated

20/4/2021 terminating services of respondent- Dr.Santosh Kumar

Chauhan was stayed.

2. Learned counsel for rival parties are heard through video

conferencing on the question of admission and final disposal.

3. A preliminary objection regarding maintainability is raised by

learned counsel for respondent No.1 that present writ appeal is not

maintainable having been filed against interim order.

3.1 On the other hand, learned counsel for appellant submits that

order of stay impugned herein decides and crystallizes rights and

liabilities of parties to a considerable extent and therefore the same has

colour of finality and thus cannot be termed to be an interlocutory

order as per law laid down by Full Bench of this Court in the case of

Arvind Kumar Jain Vs. State of M.P., reported in 2007(3) MPLJ 565 2 WA 563.2021

relevant para of which is reproduced below:-

"26. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite the fact they are interlocutory in nature they can be put into the compartment of judgment if it affects the merits of the case between the parties by determining some rights or liabilities. There can be three categories of judgments, final judgment, preliminary judgment and intermediary judgment or interlocutory judgment. If the order finally decides the question and directly affects the decision in the main case or an order which decides the collateral issue or the question which is not the subject matter of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable."

4. Bare facts reveal that respondent- Dr.Santosh Kumar Chauhan

was appointed on contractual basis sometime in July 2017 vide P/2 as

Assistant Professor in Physics by SSL Jain PG College, Vidisha on

probation for a period of one year which was stipulated to be

extendable by another one year. Thereafter by letter dated 23/7/18 the

probation was extended for six months. Incidentally, in the meantime

one of the lady teachers made written complaint to the Principal of the

College on 7/11/2017 of being subjected to sexual harassment at work

place by respondent-Dr. Santosh Kumar Chauhan. Repeat written

complaint was again made on 28/1/2020 vide P/4 by the same lady 3 WA 563.2021

teacher. Thereafter, it appears that under Vishakha Guidelines enquiry

committee was constituted to enquire into said allegations of sexual

harassment made against respondent-Dr. Santosh Kumar Chauhan at

work place vide P/5, Respondent-employee thereafter on 8/1/2021

submitted his reply to show cause notice issued by the committee. The

committee vide P/8 submitted it's report dated 12/1/2021 holding the

allegations against respondent-Dr. Santosh Kumar Chauhan of sexual

harassment to be true. Whereafter explanation was called from

respondent-Dr. Santosh Kumar Chauhan by Principal of the College

based on the said inculpatory finding. Respondent-employee seems to

have submitted his reply vide P/10 dated 3/4/2021. When no response

came forth from respondent-employee, reminder was sent vide P/14

which was replied to by respondent vide P/15. Thereafter it seems that

impugned termination order dated 20/4/2021 was passed founded

primarily on the findings of the committee which prima facie held the

allegations of sexual harassment at work place to be true.

5. The question before this court is not as to whether allegation of

sexual harassment levelled against respondent-Dr. Santosh Kumar

Chauhan is true or not and whether order of termination is stigmatic or

not, but as to whether in the given facts and circumstances the writ

court should have stayed the termination order ?.

6. No doubt while exercising power of judicial review u/Art. 226 of

Constitution this Court has wide and plenary powers including that of

grant or denial of any interim relief, but the exercise of this power is 4 WA 563.2021

subject to safeguards and circumspection.

6.1 One of the safeguards is that while passing the interim order, the

writ court should ensure that grant of stay of the impugned order does

not lead to revival of a situation which may not be in consonance with

the rule of law for being against reasonableness, fair play and good

conscience. In the instant case, the grant of stay of termination of

respondent-Dr. Santosh Kumar Chauhan would lead to his

reinstatement and allowing respondent-employee to venture in close

vicinity of the victim at work place. This may not be an ideal situation

for cordial and healthy atmosphere in an academic institute.

6.2 Other safeguards is that grant of interim relief ought not to lead

to grant of final relief. In the instant case, the termination of service

had become effective more than 1 and ½ months prior to passing of the

impugned order of stay. This resulted in re-instating the respondent in

service despite charges of misconduct involving moral turpitude

having been found prima facie proved. More so, the stay order is akin

to grant of final relief.

6.3 The aforesaid proposition is bolstered by the ratio laid down by

Apex Court in Union of India and others vs. Modiluft Ltd. (2003) 6

SCC 65 relevant extract of which is reproduced infra :-

"16. Nextly, we notice that the High Court has granted a relief by way of an interim order which we think it could not have done at the interim stage for more than one reason. The writ petition in question was filed challenging an order made by the Government in revision. The subject matter of 5 WA 563.2021

the said petition pertains to the liability of the respondent to pay the tax. In the said writ petition, the respondent has sought an additional prayer by way of a direction to the respondent to grant a NOC to re-launch its airline operations. We do not want to say at this state that such joinder of two separate causes of actions could be maintained in a writ petition like the one tat is filed before the High Court by the respondent. It should be noticed that the authorities empowered to permit re-

launching of the airline's operations were not before the Court which we are told is the Department of Civil Aviation. Be that as it may, since the relief as termed in the writ petition being a final relief, we think the same could not have been granted by the High Court at an interlocutory stage. But the learned counsel for the respondent contends that the said prayer is only an incidental prayer because the Civil Aviation authorities have refused to grant necessary permission to re-launch the airline's operations to the respondent only because the customs department which is a respondent before the High Court, has refused to give NOC therefore in effect what is sought for before the High Court is only a direction to the customs authorities to issue a NOC which in turn may be used by the respondent to obtain the required permission from the competent authorities to re-launch their airline operations. Be that as it may, even accepting the argument of respondent, it is to be noticed that even a NOC from the customs authorities can be directed to be issue by the High Court only after it comes to the conclusion that the 6 WA 563.2021

amount as determined by it has been paid by the respondent and not by an interim order otherwise it would amount to the granting of a final relief in favour of the respondent who has suffered adverse orders from the authorities below, even before the writ petition is finally decided, and in the event of the ultimate dismissal of the writ petition the respondent would gain an undue advantage inspite of its default and might even give rise to other questions in equity including rights of the third party.

17. Seen from any angle, we think the High Court has erred in granting the impugned relief to the respondent which in our opinion is in the nature of a final relief which on facts and circumstances of this case, without deciding the issues involved in the writ petition, could not have been granted. Therefore, we allow the appeal and set aside the impugned order. The NOC which is said to have been issued provisionally stands revoked. Payment made, if any, by the respondent would be given credit or adjusted in a manner considered appropriate by the High Court in the pending writ petition."

7. In view of the above, this court is of the considered view that

learned writ court in the given facts and circumstance exceeded it's

jurisdiction u/Art. 226 of Constitution while passing the impugned

order of stay dated 11/6/2021 in W.P. 9150/2021.

8. The better course would have been to call for response from

respondents and decide the matter at an early date.

7 WA 563.2021

9. Consequently, appeal is allowed. The impugned order dated

11/6/2021 passed in W.P. 9150/2021 stands set aside.

10. Learned single judge is requested to expedite final disposal of

the cause raised by petitioner in W.P. 9150/2021.

                                                      (Sheel Nagu)                          (Deepak Kumar Agarwal)
DHANAN
         Digitally signed by DHANANJAY
         BUCHAKE
         DN: c=IN, o=HIGH COURT OF
                                                         Judge                                      Judge
         MADHYA PRADESH BENCH

JAY      GWALIOR, ou=HIGH COURT OF
         MADHYA PRADESH BENCH
         GWALIOR, postalCode=474001,


BUCHAK
         st=Madhya Pradesh,
         2.5.4.20=6489e9ca230b3031a4b
         44a621934281f589875c02fb2a2
         0e4220aebc8a3ba7ec,

E        cn=DHANANJAY BUCHAKE
         Date: 2021.07.09 10:27:49
         +05'30'




                                         (Bu)