958,
A, , INDER PAL GUPTA : v. , . THE MANAGING COMMITTEE, MODEL INTER COLLEGE " . - THORA B . , . fa _ 2 May 3, 1984 |
{O. CHINNAPPA REDDY, A.P. SEN Ano E. Ss. VENKATARAMIAH, JJ. j
Cc _ Termination of the services of a “Principal an probation—Procedure
‘prescribed under section 16G and Regulations 35 to 38 being the same as provided by Article 311 (2) of the Constitation of India, the principles which
- govern such cases of terminatio1 should be the sam2 as. those underlying Article
311 (2) ofthe Constitution —Interpretation of Statutes—Ab sence of enquiry
; ‘contemplated under Regulations 35 & 36 before the termination of the Proyi- D ston casting a stigma iy legal. ; . x
The appellant was appointed.on probation as the Principal of the .- ‘Model Inter College, Thora on August, 28,. 1967. His period of proba- “tion was exiended by one year ‘and thereafter by a letter dated June.30, a) 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 réspondent, a
: Aggrieved by the said orders of termination of his services, the appellant filed a writ ‘petition Nv. 4823 of 1970 onthe file of the High Court of ; Allahabad. ‘Lhe said writ petition was allowed on January 23, 1973 and 7 the order of termination was quashed. However, the special Appeal No.
F - 31 of 1973 filed by Respo ident was accepted and allowed by the Division |
Bench. Hence the appeal by special leave of the Court.
- Allowing the appeal, the Court,
HELD: 1, Section 16 G of the Uttar Pradesh Intermediate Bdu-
G cation Act, (Act [of 1921) provides that every person employed in 4 N recognised institution shal! bz: governed by such conditioas of service as may be prescribed by Regul:tions and that the Regulations inter alia may be made in rgspect of the period of probation, the conditions of confirrnation and the procedure for the inposition of punishment. Regulations 35 tos. 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 H " provided by Article 311 (2) of the Constitution, the principles which should - govern this-instant case should therefore be the same as those under ‘jying Article311 (2). Admittedly here no enquiry was held as provided N . for in| Regulations 35 and 36. The refore the non-compliance with the-
-_ i P, GUPTA y. INTER COLLEGE, THORA (Venkataramiah, 4)
y provisions of Section ‘16 G of the Act and Regulations 35 to 38 vitiates — the termination order: [147 -< G; 759G; 760E] _
. + Parshotam Lal Dhingra v. Union of India [19$8] $.C.R. 828; Shamsher': Singh.and Ar. v. State af Punjab, [1975] 1S.C.R. 814; Anoop Jaiswal v. °
Government of India and Anr. [1984] 1 Scale-105; referred to.
2. If the order of termination catried a stigma it has to* fall to the gtound unless it is preceded by en enquiry as contemplated by law. A teading of the letter of termination of the service and the resolution which
‘forms part ofthat letter clearly shows, that they bear a mark of disgrace and infamy and the appeilant 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 al! consequential benefits including the salary and allowances as if there was no break in his service.][762G]
Civit APPELLATE JURISDICTION ; Civil‘ Appeal No. 571 of
Appeal by Special leave from the judgntent and Order dated ; the 14th March, 1973. of the Allahabad High Court in Special
Appeal No. #1 of 1973.
. RK . 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 fot 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) (hereafter referred to as ‘the Act’) and the Regulafions made thereunder. 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 College passed a resolution extending the period of probation of the appellant by one year. Thereafter on April 27,
- SUPREME court REPORTS © [1984] 3 s, CR.
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 termi* - Nate 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 Masiager a Shri I.P. Gupta Model Inter College Chilkana House, Thora (Bulandshahr) — Kumaran, . a 7 * Bridge, Saharanpur. Ref. No. Dated tlie 30th June, 1969
‘Sub ; | Termination of your service as Principal. -
‘Dear Sir, : Cd
‘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.1.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 duts in lieu of notice.. Please hand over complete: ‘charge to Sri D.D. Gupta, who is being iistrunted accordingly, without delay. .
Please note that you cease to function as Principal of this Institution forthwith: You are neither authorised to
‘ operaté 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 -
_ forthe 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, .
+ :
’
“SA
, EP. GUPTA, v. INTER COLLEGE, THORA (Venkataramiah, J.)
‘or any other college property in your possession. ‘AML 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 -
Bylandshahr 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
TP. Gupta when he returns. - alon
Yours faithfully, sd/- . Manager . - Model Inter College, . . Tohra (Bulandshahr)
gwith the above letter reads thus :
The copy ofthe resolution of the .Managing Committee sent E
“Resolution -passed by the Managing Committee in its meet- ing 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 refus2d to say anything but when the Committee requested him to consider it serio- _usly 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 sugges-
©
756 SUPREME: COURT REPORTS | [1984] 3s oR
A tion 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 gn confirmatioh of _ . Shri TP. Gupta, Principal’’ incorporates the decision Cc of the Committee as ‘According to the Manager’s report the petiod of probation of the Principal extended by one year.” The proczedings book contains signa- turés of Sri YP, Gupta for rceiying a copy of the said
“resolution. At the end of.the proceedings the minute
7 . book contains signatures of Sri I.P. Gupta alongwith . D 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 IP. Gupta, Principal, be terminated E . without waiting for the period to end and the manager is’ " empowered -to take’ necessary steps in this respect. Any ' thing done by him in this respect shal! be considered . to have \been done by this Committee. The manager is also authorised to hand over charge to Sri D.D, Gupta when nevessary. .
Sri LP. Gupta also came in With a Vote of thanks ‘to the Chair the meeting ended. » co oo.
The English translation of the relevent part of the report of G the Manager on the basis of which the above’ resolution was passed which is incorporated in the counter affidavit filed on behilf of the Managing committee reads thus : ° * “Tt will -be evident from the above that the Principal’s H 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
I, P, GUPTA y. INTER COLLEG2, THORA (Venkataramiah, J)
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 bothoration. 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 delayin this, matter may also be harmful to our interests.
Accordingly I suggest that instead of taking any serious action, the period : of probation of Sri Inder 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 artile 226 of the Consti- tution 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 Judge 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 ifs order dated Match 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 i is an institution reéognised under the Act and is govérned 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 alt 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 onc. year whether a person isa direct: tecruit or has been promoted from’a lowef grade in service of the institution to a higher grade The period of probation of a
Principal or Head Master may be extended bya maximum period of twelve months. At least six weeks before the date of which the’
*
‘SUPREME COURT REPORTS — [1984] 3 scr.
_ confirmation ‘of a-Principal or a Head Master is due, the Manager
- place them before the . Committee of Management andthe decision | of the institution is required to prepare his confirmation papers and ofthe Committee of Management in each case is required to be recorded in the form ofa resolution. Regulation 10 provides that a person placed on probation shall be confirmed if he fulfils the’
‘Tequirements of regulation 9, has worked with diligence and other- - wise proved himself fit for the post for which,he was recru‘ted 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 ébtained. Regulations 35 to 38 of the Regulations ‘made under the
Act which prescribe the procedure for termination of the serv:ces 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 5 expeditiously as possible.
36, “ay 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-shect to put ina written statement of-his defence and to state whether he desired. ‘to be heared im 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. ‘The person charged shallbe 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
» ae
»
J. P. GUPTA v. INTER COLLEGE, THORA (Venkataramiah, J.) * .
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 concern- - ed has absconded, or where it is for other reasons. impracti- . cable to communicate with him. °
(3) All or any. y 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 inethe opinion of the inquiring authority be waived without injustice to the person
- charged. ;
37. Soon after the report Of the proceedings and recom- '. mendation from the inquiring authority are réceived, 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 Committce 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 isfelt atany 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 that the above provisions ~
~~ qelating to the procedure to be followed before imposing the punish- ment of dismissal or removal from service ate 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
. (1) [1958]S. C, R- 828:
SUPREME COURT REPORTS _ [1984] 3 S.C.R.
Punjab) and ‘Anoop Jaiswal v. Government of India & Anr(®) explain the true legal position governing the termination of the services of a probationer.. In Parshetam Lal Dhingra’s ‘case (supra), this
Court observed at prge 862'thus :
“In short,. if the termination of service is fourided on the right flowing from contract or the service rules then, prima facie, the termination is not a puhishment and carries with it no evil consequences and so Art. 311 is ‘not aitrac- - _ ted. But even if the Government has, by contract or under the rules, the right to terminate the employment without .
going through the procedur’. 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 decidéd 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 s that-the termination in the circumstances in which ithas 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 : prescri- bed under sec. 16-G of the Intermediate Education Act - and the regulations framed thereunder becomes vitiated. Indeed it has not been denied or controverted in the counter affidavit that the action against the petitioner was taken by
(MD
[1975] 18... R. 814.
(2) [1984] 1,SCALB 105, |
~~
1. P. GUPTA y. INTER COLLEGE, THORA (Venkataramiah, J.) "763
. the Managing Committee on serious charges of mismanage-— ment brought against the Principal by the Manager. But it was submitted py 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 regulaffons and the provisions: of Sec. 16-G of the Act onthe validity of the action taken, appears 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 opprtunity to be heard as requir. ed by the regulations. The impugned oider of termination thus was a mete 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.’ . ue
It isseen 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 1s. made a part of it by treating it as an enclosure to that letter. The resolution ° actually begins witha reference~to the report of the Manager, ‘and states
. 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
‘-appelfant was asked to give his explanation to the allegations made in the said report. That report stated :
“a is also evident that the seriousness of the lapses i is enough to justify dismissal but no educational institution ” should take that botheration.” ”
‘
“The above report was the real foundation on which the deci- sion 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 sérvice 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,ne-essary for it to give its assessment of the work of the appel- lait as: Prffcipal and, therefore, ‘in the context of the statutory requirements, it cannot be said that merely because the » -Manager’s report or the resolition 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 proceded 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
_jn Parshotam Lal Dhingra’s case (supra). The. Division Bench, thersfore, ‘erred 1 in holding that onthe 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.
Jn the result, we allow this appeal, set aside the. judgrnent - 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 alt 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.
APRN ee