Inder Pal Gupta Vs. The Managing
Committee, Model Inter College Thora [1984] INSC 100 (3 May 1984)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) REDDY, O. CHINNAPPA (J) SEN, A.P. (J)
CITATION: 1984 AIR 1110 1984 SCR (3) 752 1984
SCC (3) 384 1984 SCALE (1)714
CITATOR INFO :
D 1987 SC1422 (13) F 1987 SC1833 (2) R 1989
SC 341 (15)
ACT:
Termination of the services of a Principle on
probation-Procedure prescribed under section 16 G and regulations 35 to 38
being the same as provided by Article 311(2) of the Constitution of India, the
principles which govern such cases of termination should be the same as those
underlying Article 311(2) of the Constitution-Interpretation of
Statutes-Absence of enquiry contemplated under Regulations 35 & 36 before
the termination of the provision casting a stigma is illegal.
HEADNOTE:
The appellant was appointed on probation as
the Principal of the Model Inter College, Thora on August, 28, 1967. His period
of probation was extended by one year and thereafter by a letter dated June 30,
1969 addressed to him with a copy of a resolution dated 27th April, 1969 passed
by the Managing Committee wherein various allegations were made regarding his
conduct, his services were terminated by the respondent. Aggrieved by the said
orders of termination of his services, the appellant filed a writ petition No.
4823 of 1970 on the file of the High Court of Allahabad. The said writ petition
was allowed on January 23, 1973 and the order of termination was quashed.
However, the special Appeal No. 31 of 1973 filed by Respondent was accepted and
allowed by the Division Bench. Hence the appeal by special leaves of the Court.
Allowing the appeal, the Court,
HELD: 1. Section 16 of the Uttar Pradesh
Intermediate Education Act, (Act II of 1921) provides that every person
employed in a recognised institution shall be governed by such conditions of
service as may be prescribed by Regulations and that the Regulations inter alia
may be made in respect of the period of probation, the conditions of confirmation
and the procedure for the imposition of punishment Regulations 35 to 38 relate
to the procedure to be followed before imposing the punishment of dismissal or
removal from service and they being virtually the same as provided by Article
311(2) of the Constitution, the principles which should govern this instant
case should therefore be the same as those underlying Article 311(2).
Admittedly here no enquiry was held as
provided for in Regulation 35 and 36. Therefore the non-compliance with the 753
provisions of Section 16 of the Act and Regulations 35 to 38 vitiates the
termination order. [747F-G; 759G; 760E] Parshotam Lal Dhingra v. Union of India
[1958] S.C.R. 828; Shamsher Singh and Anr v. State of Punjab. [1975] 1 S.C.R.
814; Anoop Jaiswal v. Government of India and Anr. [1984] 1 Scale 105; referred
to.
2. If the order of termination carried a
stigma it has to fall to the ground unless it is preceded by an enquiry as
contemplated by law. A reading of the letter of termination of the service and
the resolution which forms part of that letter clearly shows that they bear a
mark of disgrace and infamy and the appellant is visited with evil
consequences.
The order of the Division Bench is therefore
unsustainable.
[762D-E].
[The Court declared that the appellant
continues to be in the service of the College with entitlement to all
consequential benefits including the salary and allowances as if there was no
break in his service.] [762G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 571 of 1975 Appeal by Special leave from the judgment and Order dated the
14th March, 1973 of the Allahabad High Court in Special Appeal No. 1 of 1973.
R.K. Garg and D.K. Garg for the Appellant.
S. Rangaran and N.N. Sharma for Respondent.
S. Markandeya for Respondent.
Gopal Subramaniam and Mrs. Shobha Dikshit for
Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant was appointed on probation as the Principal of
the Model Inter College, Thora, District Bulandshahr (hereinafter referred to
as 'the College') on August 28, 1967 in accordance with the procedure
prescribed by the Intermediate Education ACT, 1921 (U.P. Act No. II of 1921)
(hereinafter referred to as 'the Act') and the Regulations made there under.
The period of probation prescribed was one year. Shortly before the expiry of
the period of probation on August 25, 1968, the Managing Committee of the
Collage passed a resolution extending the period of probation of the appellant
by one year. Thereafter on April 27, 754 1969, the Managing Committee met to
consider the question of confirmation of the appellant in the post of the
principal.
As the Managing Committee was not satisfied
with the services of the appellant, it resolved to terminate his services and
after obtaining the approval of the District Inspector of Schools wrote a
letter dated June 30, 1969 to the appellant communicating its decision to
terminate the services of the appellant enclosing therewith a copy of its
resolution dated April 27, 1969. The letter dated June 30, 1969 reads thus:
"From To The Manager Shri I.P. Gupta
Model Inter College Chilkana House, Thora (Bulandshahr) Kumaran, Bridge,
Saharanpur. Ref. No. Dated the 30th June, 1969 Sub: Termination of your service
as Principal.
Dear Sir, With reference to the above, I have
to mention that in view of the resolution No. 2 of the Managing Committee dated
27.4.1969 (copy enclosed) and subsequent approval by the D.I.O.S. Bulandshahr
you are hereby informed that your service as Principal of this Institution is
terminated with immediate effect. You will however be entitled to your dues In
lieu of notice. Please hand over complete charge to Sri D.D. Gupta, who is
being instructed accordingly, without delay.
Please note that you cease to function as
Principal of this Institution forthwith. You are neither authorised to operate
any account nor will you perform any other act in the capacity of the Principal
of this Institution henceforth. Of course the civil suit filed by Shri S.P.
Jain of Meerut for the recovery of his dues is your sole responsibility, Please
see that the matter is reasonably settled failing which you shall be liable to
any loss caused to the institution in that respect. While handing over charge
please do not forget to return all papers or documents relating to the college,
755 or any other college property in your possession. All accounts also may
kindly be cleared.
Since despite several assurances you have
failed to return during the complete summer vacation, this intimation is being
conveyed to you at your Saharanpur address, in this state of uncertainty under
registered cover to ensure safe delivery. Recently you are reported to have
been to Bulandshahr for a few days.
Please come immediately and do the needful in
the matter.
Sri D.D. Gupta is to assume office of the
Principal of this institution with immediate effect in officiating capacity
till further instruction. He may take-over charge from Sri I.P. Gupta when he
returns.
Yours faithfully,
sd/-
Manager
Model Inter College,
Tohra
(Bulandshahr)"
The copy of the resolution of the Managing
Committee sent along with the above letter reads thus:
"Resolution passed by the Managing
Committee in its meeting held on 27.4.69 terminating the probationary period of
the Petitioner.
2. The report of the Manager was read. Sri
I.P. Gupta, who was present in the meeting also heard it. He was asked by the
Committee to have his say in respect of the report. At first he refused to say
anything but when the Committee requested him to consider it seriously. and let
the Committee have the benefit of his views, he said that he had nothing to say
in that respect since he wanted to quit himself due to circumstances. on this
the Committee again requested him to put some such suggestion in consultation
with the manager as may be helpful for the Committee to arrive at some
conclusion. In the absence of any satisfactory suggestion the Committee took
the decision. At this stage the Principal retired out of courtesy.
On the basis of the Service Book of the
Principal, the manager told that last year his confirmation was due on 28.8.
1968 but in the meeting of the Committee held on 25.8 68 in which the Principal
was also present, the report of the Manager, dated 4.7.68 was put as desired by
the President. Resolution 3 dated 25.8.68 under the head "Consideration on
confirmation of Shri I.P. Gupta, Principal" incorporates the decision of
the Committee as "According to the Manager's report the period of
probation of the Principal extended by one year. " The proceedings book
contains signatures of Sri I.P. Gupta for receiving a copy of the said
resolution At the end of the proceedings the minute book contains signatures of
Sri I.P. Gupta along with other members of the Committee present.
The facts contained in the report of the Manager
being serious and not in the interests of the institution, this Committee
unanimously resolves that the period of probation of Sri I.P. Gupta, Principal,
be terminated without waiting for the period to end and the manager is
empowered to take necessary steps in this respect. Anything done by him in this
respect shall be considered to have been done by this Committee. The manager is
also authorised to hand over charge to Sri D.D. Gupta when necessary.
Sri I.P. Gupta also came in 'With a Vote of
thanks to the Chair the meeting ended." The English translation of the
relevant part of the report of the Manager on the basis of which the above
resolution was passed which is incorporated in the counter affidavit filed on
behalf of the Managing committee reads thus:
"It will be evident from the above that
the Principal's stay will not be in the interest of the institution. It is also
evident that the seriousness of the lapses is enough to justify dismissal but
no educational institution should take all 757 this botheration. As such my
suggestion is that our purpose will be served by termination of his services.
Why, then, we should enter into any
botheration. For this, i.e. for termination of his period of probation, too,
the approval of the D.I.O.S. will be necessary.
Accordingly any delay in this matter may also
be harmful to our interests.
Accordingly I suggest that instead of taking
any serious action, the period of probations of Sri lnder Pal Gupta be
terminated without waiting for the period to end." Aggrieved by the order
of termination of his services referred to above, the appellant filed a
petition under article 226 of the Constitution in Writ Petition No. 4823 of
1970 on the file of the High Court of Allahabad challenging its correctness and
praying for appropriate reliefs. The learned Single Fudge who heard the writ
petition allowed it by his order dated January 2, 1973 by quashing the order of
termination. The Managing Committee of the College preferred an appeal against
that decision to the Division Bench of High Court in Special Appeal No. 31 of
1973. The Division Bench allowed the appeal and dismissed the Writ Petition
filed by the appellant by its order dated March 14, 1973.
This appeal is filed by the appellant against
the Judgment of the Division Bench after obtaining the special leave of this
Court under Article 136 of the Constitution.
The College is an institution recognised
under the Act and is governed by the provisions of the Act. Section 16-G of the
Act provides that every person employed in a recognised institution shall be
governed by such conditions of service as may be prescribed by Regulations and
that the Regulations inter alia may be made in respect of the period of
probation, the conditions of confirmation and the procedure for the imposition
of punishment. The Board of High School and Intermediate Education is
authorised to make Regulations in respect of all matters which by the Act are
to be provided for by Regulations with the previous sanction of the State
Government. Under the Regulations so made under the Act, the period of
probation prescribed is one year whether a person is a direct recruit or has
been promoted from a lower grade in service of the institution to a higher
grade. The period of probation of a Principal or Head Master may be extended by
a maximum period of twelve months. At least six weeks before the date of which
the 758 confirmation of a Principal or a Head Master is due, the Manager of the
institution is required to prepare his confirmation papers and place them
before the Committee of Management and the decision of the Committee of
Management in each case is required to be recorded in the form of a resolution.
Regulation 10 provides that a person placed on probation shall be confirmed if
he fulfills the requirements of regulation 9, has worked with diligence and
other wise proved himself fit for the post for which he was recruited and his
integrity is certified. Whenever the punishment of dismissal, removal or
discharge, reduction in rank or diminution in emoluments is imposed, prior
approval of the Inspector should have to be obtained. Regulations 35 to 38 of
the Regulations made under the Act which prescribe the procedure for
termination of the services of an employee by way of punishment read thus:
"35. On receipt of a complaint or an
adverse report of facts of a serious nature of the Committee may in the cases
of teachers appoint the Headmaster or Principal or Manager as the
Inquiry-officer (or the Manager may himself set up the enquiry if such power has
been delegated to him by the Committee under rules) and in the case of the Head
master or Principal, a small sub-committee, with instructions to submit the
report as expeditiously as possible.
36. (1) The grounds on which it is proposed
to take action shall be reduced in the form of a definite charge or charges
which shall be communicated to the employee charged and which shall be so clear
and precise as to give sufficient indication to the charged employee of the
facts and circumstances against him. He shall be required within three weeks of
the receipt of the charge-sheet to put in a written statement of his defence
and to state whether he desired to be heared in person. If he or the inquiring
authority so desires, an oral enquiry shall be held in respect of such of the
allegations as are not admitted. At that enquiry such oral evidence will be
heared as the inquiring authority considers necessary. This person charged
shall be entitled to cross-examine the witness, to give evidence in person, and
to have such witnesses called as he may wish, provided that the inquiring
authority conducting the enquiry may, for sufficient reasons to be recorded in
writing, refuse to call a witness. The proceedings shall contain a sufficient
759 record of the evidence and statement of the findings and the grounds
thereof. The inquiring authority conducting the enquiry may also, separately
from these proceedings, make his own recommendation regarding the punishment to
be imposed on the employee.
(2) Clause (1) shall not apply where the
person concerned has absconded, or where it is for other reasons impracticable
to communicate with him.
(3) All or any of the provisions of clause
(1) may for sufficient reasons to be recorded in writing be waived where there
is difficulty in observing exactly the requirements thereof and those
requirements can in the opinion of the inquiring authority be waived without
injustice to the person charged.
37. Soon after the report of the proceedings
and recommendation from the inquiring authority arc received, the Committee of
Management shall meet to consider the report of the proceedings and
recommendation made and take decision on the case. The employee shall, however,
be allowed, if he so desires, to appear before the Committee in person to state
his case and answer any question that may be put to him by any member present
at the meeting. The Committee shall then send a complete report together with
all connected papers to the Inspector or Regional Inspectress as the case may
be, for approval of action proposed by it.
38. If it is felt at any stage that the
matter can be more properly dealt with by action to terminate service with
notice, this may be done with the approval of the Inspector or Regional
Inspectress, as the case may be." It is seen from the foregoing that the
above provisions relating to the procedure to be followed before imposing the
punishment of dismissal or removal from service are virtually the same as
provided by Article 311 (2) of the Constitution and the principles which should
govern this case should, therefore, be the same as those underlying Article 311
(2). The decisions in Parshotam Lal Dhingra v. Union of India, Shamsher Singh
& Anr. v. State of 760 Punjab and Anoop Jaiswal v. Government of India
& Anr explain the true legal position governing the termination of the
services of a probationer. In Parshotam Lal Dhingra's case (supra), this Court
observed at page 862 thus:
"In short, if the termination of service
is founded on the right flowing from contract or the service rules then, prima
facie, the termination is not a punishment and carries with it no evil
consequences and so Art. 311 is not attracted But even if the Government has,
by contract or under the rules, the right to terminate the employment without
going through the procedure prescribed for inflicting the punishment of
dismissal or removal or reduction in rank, the Government may, nevertheless,
choose to punish the servant and if the termination of service is sought to be
founded on misconduct, negligence, inefficiency or other disqualification, then
it is a punishment and the requirements of Art. 311 must be complied
with." The above rule applies to probationers too.
Admittedly no enquiry was held in this case
as provided in Regulations 35 and 36 of the Regulations made under the Act.
Apparently in the light of the principles enunciated in Parshotam Lal Dhingra's
case (supra) the learned Single Judge who decided the Writ Petition at the
first instance in the High Court observed in the course of his order thus:
"In this petition under Article 226 of
the Constitution the petitioner questions the validity of the so-called
termination of his service by the resolution passed by the Managing Committee
on 27.4.1969. His case is that the termination in the circumstances in which it
has been made by the Managing Committee amounts to punishment of removal or
dismissal from service and the punishment having been imposed upon him without
following the procedure prescribed under sec. 16-G of the Intermediate
Education Act and the regulations framed there under becomes vitiated.
Indeed it has not been denied or controverted
in the counter affidavit that the action against the petitioner was taken by
761 the Managing Committee on serious charges of mismanagement brought against
the Principal by the Manager. But it has submitted by the learned counsel for
the opposite parties that a reasonable opportunity was afforded to the
petitioner by the Managing Committee when he was faced with the charges and
asked to explain on 27.4.69, at the meeting of the Managing Committee. But the
learned counsel for opposite parties when faced with the relevant regulations
and Sec. 16-G of the Intermediate Education Act found it difficult to justify
that what was done at the meeting of the Managing Committee on 27.4.1969
complies with those provisions. The attack made by the petitioner based on
non-compliance of the relevant regulations and the provisions of Sec. 16-G of
the Act on the validity of the action taken, appear to be sound and sustainable.
No matter the petitioner was not a permanent
Principal yet he was entitled to a regular show cause notice against the
charges brought and an opportunity to be heard as required by the regulations.
The impugned order of termination thus was a mere camouflage and cannot be
regarded in the. circumstances as having been passed by the Managing Committee
in the normal course.
The District Inspector of Schools was in
error in approving the termination in those circumstances." But the
Division Bench of the High Court took a contrary view. The first error in the
judgment of the Division Bench lies in its observation:
'Firstly the order of termination is
innocuous. It does not refer to any allegations or even to the report of the
Manager.' It is seen from the letter dated June 30, 1969 by which the services
of the appellant were terminated that the resolution of the Managing Committee
dated April 27, 1969 is made a part of it by treating it as an enclosure to
that letter. The resolution actually begins with a reference to the report of
the Manager, and slates that the facts contained in the report were 'serious'
and 'not in the interests of the institution'. It further refers to the fact
that the appellant was asked to give his explanation to the allegations made in
the said report. That report stated:
762 "It is also evident that the
seriousness of the lapses is enough to justify dismissal but no educational
institution should take that botheration." The above report was the real
foundation on which the decision of the Managing Committee was based. This is a
case where the order of termination issued is merely a camouflage for an order
imposing the penalty of termination of service on the ground of misconduct.
Secondly, the Division Bench has tried to justify the action of the Management
by observing that since the management had to secure the approval of the
District Inspector to its action, it was necessary for it to give its
assessment of the work of the appellant as Principal and, therefore. in the.
context of the statutory requirements, it cannot be said that merely because
the Manager's report or the resolution of the Managing Committee refers to the
various aspects of the assessment of the performance of the Principal in terms
unfavourable to him, it would in law, amount to casting a stigma upon the
Principal'. It is difficult to engraft an exception of the above type to the
well-settled rule that if the order of termination carries a stigma, it has to
fall to the ground unless it is proceeded by an enquiry as contemplated by law.
A reading of the letter of termination of the service and the resolution which
forms part of that letter clearly shows that they bear a mark of disgrace or
infamy and that the appellant is visited with evil consequences as explained in
Parshotam Lal Dhingra's case (supra). The Division Bench, therefore, erred in
holding that on the facts and in the circumstances of the case, the order of
termination was an innocuous one and did not carry any stigma. The order of the
Division Bench is, our opinion, an unsustainable one and is liable to the set
aside.
In the result, we allow this appeal, set
aside the judgment of the Division Bench of the High Court and restore the
judgment of the learned Single Judge. We hereby declare that the appellant
continues to be in the service of the College. He is entitled to all the
benefits flowing from this declaration including the salary and allowances as
if there was no break in his service. The respondent College shall also pay the
costs of this appeal to the appellant.
S.R. Appeal allowed.
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