Allahabad High Court
Mahila Vidyalaya Ganga Prasad Road vs Chancellor Lucknow University And 2 Ors on 30 July, 2013
Bench: Narayan Shukla, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Writ Petition No. 282(S/B) of 2006
Mahila Vidyalaya, Ganga Prasad Road,
Aminabad through its Assistant Manager ...Petitioner.
Vs.
Chancellor Lucknow University,
Lucknow and others ....Opp. Parties
&
Writ Petition No.1195(S.B) of 2007
Mrs Soma Singh .....Petitioner
Vs.
Dr( Smt.) Suparbha and others .....Opp Parties
&
Writ Petition No.1464(S.B.) of 2007
Mahila Vidyalaya Ganga Prasad Road,
Lucknow through its Manager and another ...Petitioner
Vs.
Directorate of Higher Education and others Opp. Parties
&
Writ Petition No. 1521( S.B) of 2006
Mahila Vidyalaya Ganga Prasad Road Aminabad Petitioner
Vs.
Chancellor Lucknow University, Lucknow & others Opp.Parties
***
Hon'ble Shri Narayan Shukla,J
Hon'ble Ritu Raj Awasthi, J.
( By Court Order) Heard Mr. M.N.Krishnamani, Senior Advocate assisted by Mr.Sandeep Dixit and Mr. Vijay Dixit, learned counsel for the petitioners as well as Mr. Prashant Chandra, assisted by Mr Neeraj Kumar Srivastava, learned counsel for the respondents.
Dispute of all the writ petitions centers around the appointment and termination of Dr.( Smt.) Suprabha V. Sahai (respondent No.3), therefore, all the writ petitions have been heard together and are being disposed of by following common order;
W.P.No. 282(S.B) of 2006 In this writ petition, the petitioner has challenged the order dated 28.2.2006, passed by the Chancellor of Lucknow University setting aside the order dated 5th September, 2005, passed by the Vice Chancellor, Lucknow University, Lucknow remitting the matter to the Vice Chancellor to pass a fresh order on merit after providing opportunity of hearing to the parties counsel.
Writ Petition No.1521(S.B) of 2006 In this case the same petitioner,i.e, Mahila Vidyalaya has challenged the order dated 30th October, 2006, passed by the Vice Chancellor of the Lucknow university disapproving the order dated 10 th April,2005, passed by the College terminating the service of Dr.(Smt.) Suprabha (V) Sahai.
Writ Petition No.1464 (S.B) of 2007 In this case same petitioner, i. e. College has challenged the recommendation of appointment of Dr.( Smt) Suprabha V. Sahai made by the Directorate of Higher Education State of U.P. Writ Petition No.1195 (S/B) of 2007 In this case one Mrs Soma Singh claiming herself as Officiating Principal of Mahila Vidyalaya, P.G. College, Lucknow ( hereinafter referred to as College) has prayed for issuance of a writ in the nature of quo warranto to the Opposite Party No.1, Dr.( Smt.) Suprabha V. Sahai showing efficiency under which she came to occupy the office of Principal of College. Further she has challenged the recommendation of appointment of Dr.(Smt.) Suprabha V. Sahai.
The facts as unveiled by the parties of all the cases are common. Therefore, those are briefly narrated hereunder.
On the event of vacancy of the post of Principal in the petitioner-College and requisition for appointment sent by the College to the U.P. Higher Education Service Commission State of U.P.( In short Commission) the Commission advertised the post. The respondent Dr. (Smt. ) V. Sahai applied for selection on the said post through the application which was in the format in which several details and information were required to be filled in. The relevant requirement which is said to be concealed by Dr ( Smt.) Supravha V. Sahai was given in para 5.2 and 5.4 of the application which is reproduced hereunder;
5.2 I hereby, declared that I have been/ have never been punished for any offence or a crime, by any court of law or any educational institution and have been/ have not been declared for the appointment applied for and that no criminal case is pending against me in any court of law.
5.4.I hereby also give undertaking that the commission reserves full right to cancel my candidature/selection/ appointment in the event of particulars given in the application being found false before, during or after the selection and the Commission, Directorate of Higher Education. Government of U.P. or Management of the College shall have the right to cancel the appointment thus made without assigning any reasons and may, in addition, debar my candidature from recruitment in future. For all or any other these actions, I shall not be entitled to any compensation from the Commission, Directorate of Higher Education, Government of U.P. or the Management of the College.
The petitioner alleges that Smt. Suprabha V. Sahai was awarded punishment of reduction of five stages in time scale by the previous employer, when she was a Lecturer in the Agra University. She challenged the order of punishment before this Court through Misc. W.P.No. 32424 of 1993. This Court dismissed the writ petition on 16.9.1999 and upheld the order of punishment. However, in the order this court observed that the punishment awarded does not cast stigma.
Paragraph 32 of the judgment is reproduced as under:
"32 Every punishment simple or severe has its impact which may be termed as consequential punishment. If it does not cast stigma the Court should not interfere. In this case punishment awarded as such does not cast stigma on the petitioner. She is very much in the employment of the university and discharging the duties which she had been discharging prior to the order of punishment. Therefore, we are not inclined to go into the question of punishment whether it is disproportionate to the misconduct stated to have been committed by the petitioner or not."
It is stated that on the date of submission of application i.e. 11.9.1998 as well as on the date of her selection in the College no such observation of this Court existed as this Court decided the matter on 16.9.1999. Thus, it is obvious that on the date of submission of application,Smt. Sahai was clothed with the punishment of reduction in pay scale and denial of promotion but she did not disclose it in the application. Further it is stated that even after her appointment on the post of Principal of the College, she committed several serious irregularities for which she was issued show cause notice. The allegations against Smt. Sahai were that she had not taken classes regularly and she, during the course of examination, permitted outsider for invigilation and further she used the service of the drivers of the College for her private purposes and also used the meals of hostel mess free of charge.
She submitted reply of the show cause notice explaining her conduct, but admitted the allegations levelled against her.
Further she was issued show cause notice for concealment of fact in the application with the allegation that she secured appointment by practising fraud, as she did not disclose the punishment awarded to her by her previous employer. Smt. Sahai explained it in the way that the said punishment was not treated stigmatic as the Governing Body of the university permitted her to continue in service on the post of Lecturer with the punishment of deduction in the pay scale as well as break in promotion.
Further he stated that the President of the College issued an order dated 10th April, 2005, whereby he terminated the services of Smt. Sahai on account of unsatisfactory performance of duties during probation.
Further he contended that though the order of termination passed on 10th of April,2005 by the President was not supported with the prior approval of the Committee of Management of the College yet it was approved in the meeting of the Committee of Management held on 14.4.2005. Against the order of termination she represented to the Vice Chancellor of the University through representations dated 2.4.2005,13.5.2005 and 25.5.2005 but all had been turned down on the ground that the order of termination was passed during her probation period. The appointment of Teacher/Principal is governed under the terms and conditions of contract as may be prescribed by the First Statute of Lucknow University but this contingency would arise after a teacher/ Principal is confirmed. Therefore, before her confirmation, there was no occasion for entering into the contract under Section 35 (1) of the U.P. State Universities Act. Therefore, the order, passed by the President of the College on 10th April, 2005 does not call for any interference.
Questioning the finding given in support of the order, passed by the Vice Chancellor of the University, learned counsel for the petitioner submitted that if from the service records it is disclosed that the service of the petitioner is not satisfactory, it is open for the authority concerned to record such satisfaction regarding her unsatisfactory service and even mentioning the same in the order would not amount to cast any aspersion on the petitioner nor could it be said that stating in the order that his service is unsatisfactory amounts to stigmatic order. In support of his submission, he cited a case ,i.e, Rajesh Kohli vs. High Court of Jammu and Kashmir and another ( 2010) 12 Supreme Court Cases 783 decided by Hon'ble the Supreme Court.
In this case the Hon'ble Supreme Court held that recording the reasons of unsatisfaction in the order would not amount to stigma to the petitioner's services.
In Mathew P. Thomas Vs. Kerala State Civil Supply Corporation Ltd.( 2003) 3 Supreme Court Cases 263 the Hon'ble Supreme Court by referring various judgments, touching the question as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation held that in cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background that what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.
In Pavendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences (2002) 1 Supreme Court Cases 520, Hon'ble the Supreme Court laid down the guidelines to test the order of termination as to whether it is punitive or simpliciter. It held as under
"one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (C) culminated in a finding of guilt. If all three factors or present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has to be upheld.
The Hon'ble Supreme Court further held that in order to amount to stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
In the High Court of Judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha and others (1997) 10 Supreme Court Cases 409 Honble Supreme Court held as under;
"............................................. As regards a probationer, the law is well settled that he does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311 (2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. In this context it may be mentioned that even with respect to persons who have been substantively appointed on a post and have a right to hold that post, it has been held that the failure to communicate the adverse remarks in the service record would not vitiate the order of compulsory retirement. (See. Union of India Vs M.E. Reddy( 1980) 2 SCC 15 and Baikuntha Nath Das Vs. Chief Distt. Medical Officer (1992)2 SCC 299).
Learned counsel for the petitioner contended that the suppression of material facts on the part of the respondent as she left the column 5.2 of the application form blank which required the information about the statutes of imposition of punishment, if any, for any offence or a crime by any court of law or any educational institution . It is stated that the respondent was awarded punishment by the previous employer but she did not mention it in the requisite column deliberately.
In support of his submission he cited A.P. Public Service Commission Vs. Koneti Venkateshwarulu and others (2205) 7 Supreme Court Cases 177.
He further contended that purpose of seeking said information is to ascertain the character and antecedents of the candidate so as to assess his/her suitability for the post. Therefore, the candidate will have to answer the question in those columns truthfully and fully and any misrepresentation or suppression of or false statement there in by itself would demonstrate the conduct or character unbefitting for a service. He referred to case of Daya Shankar Yadav Vs. Union of India and others (2010) 14 Supreme Court Cases 103. In this case Hon'ble Supreme Court held as under;
"14. Rule 14 of the Central Reserve Police Force Rules,1955 relevant in this case relates to verification. Clauses (1) and (b) of the said Rules are extracted below:
"14. Verification (a) As soon as a man is enrolled, his character, antecedents, connections and age shall be verified in accordance with the procedure prescribed by the Central Government from time to time. The verification roll shall be sent to the District Magistrate or Deputy Commissioner of the District of which the recruit is resident.
(b) The verification roll shall be in CRP Form 25 and after verification shall be attached to the character and service roll of the member of the force..
The purpose of seeking the said information is to ascertain the character and antecedents of the candidates so as to assess his suitability for the post. Therefore, the candidate will have to answer the questions in these columns truthfully and fully and any misrepresentation or suppression or false statement therein, by itself would demonstrate a conduct or character unbefitting for a uniformed security service.
15.When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences:
(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case ( wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment( or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/ crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(C) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false , the employer may refuse to employ the declarant( or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means( say police verification or complaints etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above.
16.Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: (I) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence ( even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct ( like copying in examination) or rustication or suspension or debarment from college, etc.; and(ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence ( even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post.
In the case of Kendriya Vidalaya Sangathan and others Vs. Ram Ratan Yadav (2003) 3 Supreme Court Cases 437 Hon'ble Supreme Court held that suppression of material information and making false statement has a clear bearing on the character and antecedent of an employee in relation to his continuance in service.
It is further stated by him that the petitioner accepted the offer of appointment subject to terms and conditions mentioned therein.
In the instant case, the respondent gave an undertaking that the Directorate of Higher Education, Government of U.P. or Management of the College shall have right to cancel her appointment without assigning any reason in the event of particulars given in her application being found false before, during or after the selection. Therefore, at this stage when the facts of concealment are established, she has to suffer the consequences.
Shiv Kant Yadav Vs. Indian Oil Corporation and others (2007) 4 Supreme Court Cases 410:
In this case in the matter of allotment of oil dealership undertaking was given by the applicant that if any information/ declaration given by him in his application shall be found to be untrue or incorrect or false, the Indian Oil Corporation would be within its rights to withdraw the letter of intent/ terminate the dealership/ distributorship. When it was disclosed that the appellant had submitted the wrong information about his income, the Indian Oil Corporation took a decision not to allot the dealership to the appellant on account of the fact that he did not correctly disclose the income and ,thus, violated own declaration. In defence the appellant submitted that there was no mens rea in mentioning it rather it was a mere mistake and unintended omission which cannot be a ground for cancellation.
Hon'ble Supreme Court by following the decision of Kendriya Vidalaya Sanghthan ( supra) held that in view of the undertaking no interference is warranted in the decision of the Corporation.
Further, the learned counsel for the petitioner submits that the observation of the Vice Chancellor of the University is incorrect to say that the conduct of Smt. Sahai for which she has been punished by the previous employer does not come under the purview of offence. It is stated that the application form required declaration from the applicant that he/ she shall declare that he/she has not been punished for any offence by any Court/ Educational Institution. Therefore, the language used in the form connotes the word " offence" to the conduct for which the Court/ Educational Institutional has punished the applicant. On the date of selection/appointment of Smt. Sahai, there was no such observation of this Court that punishment awarded to her was no stigma upon her service as this came later on after so much time of her appointment. On the nature of termination it is stated by learned counsel for the petitioner that the order of termination itself shows that it is simpliciter order as the petitioner's past conduct dissuaded the authority of the College to continue her in service.
So far as the authority of President to issue order of termination is concerned that has been supported by the resolution of the Committee of Management by means of subsequent resolution which is very much permissible in the eye of law. Therefore, the order, passed by the President of the Society is the order, passed by the Committee of Management of the College.
In Sri Parmeshwari Prasad Gupta Vs. the Union of India (1973) 2 Supreme Court Cases 543 the Board of Directors in its meeting held on 16 th December, 1953 terminated the appellant's services and communicated it by telegram to the Chairman. The resolution of the Board of Directors terminating the appellant's service was ratified by the Board of Directors by its subsequent resolution dated 23 rd December, 1953. On challenge the trial court held that the appellant's services were legally and validly terminated. The finding of the trial court was upheld by the High Court . In appeal Hon'ble the Supreme Court discussed the effect of confirmation of the minutes of the meeting of the Board of Directors and the action of the Chairman in terminating the services of the appellant by telegram and letter and held that ratification would always relate back to the date of the act ratifying and so it must be held that the services of the appellants were validly terminated.
Learned counsel for the petitioner further submitted that there was no any resolution of the Committee of Management of the College for appointment of Smt. Sahai as Principal nor had any letter of appointment was issued to Smt. Sahai by the Committee of Management, but it was one Sri Y.C. Rai, who had issued the letter dated 20.4.2004, requiring her to join duties in the College whereas it is the Management of the College, who is empowered, on recommendation of Selection Committee, to make an appointment. Therefore, her termination by the President of the College with the post approval of the Committee of Management cannot be said to be unlawful.
It is further stated that the provisons of Section 35 (2) of the Act are not attracted in case of termination of probationer' services. Therefore, it cannot be said that there is a violation of provisions of Section 35(2) of the Act in terminating her services.
Further, Smt. Sahay was issued show cause notice only to ascertain the truthfulness of the allegations levelled against her but that was not regular inquiry. Indisputably, she submitted reply of show cause notice. Therefore, in order to arrive at a prima facie conclusion with regard to her conduct show cause notice issued to her was sufficient opportunity.
With the aforesaid submission, learned counsel for the petitioner submits that in light of the judgment cited above, the orders passed by the Chancellor as well as Vice Chancellor of the University are not sustainable.
Per contra learned counsel for the respondent Smt.Suprabha V.Sahai, Mr. Prashant Chandra, Senior Advocate drew our attention towards the provisions of Section Sections 35 and 31 of the U.P. State Universities Act.
31 (1).........................
31(2)The appointment of every such teacher, Director and Principal not being an appointment under sub-section (3), shall in the first instance be on probation for one year which may be extended for a period not exceeding one year:
Provided that no order of termination of service during or on the expiry of the period of probation shall be passed-
(a) in the case of a teacher of the University, except by order of the Executive Council made after considering the report of the Vice Chancellor and ( unless the teacher is himself the Head of the Department) the Head of the Department concerned;
(b) in the case of Principal of an affiliated or associated college,except by order of the Management; and (C) in the case of any other teacher or an affiliated or associated college, except by order of the Management made after considering the report of the Principal and ( unless such teacher is the senior most teacher of the subject) also of the southernmost teacher of the subject:
( Provided further that no such order of termination shall be passed except after notice to the teacher concerned giving him an opportunity of explanation in respect of grounds on which his services are proposed to be terminated:
Provided also that if a notice is given before the expiry of the period of probation or the extended period of probation, as the case may be, the period of probation shall stand extended until the final order of the Executive Council under clause(a) of the first proviso or, as the case may be, until the approval of the Vice Chancellor under Section 35 is communication to the teacher concerned.) 3 (a) In the case of teacher of the University other than a Professor, the Vice Chancellor in consultation with the Dean of the Faculty and the Head of the Department concerned and an expert nominated by the Chancellor in that behalf and in the case of a teacher of an affiliated or associated college, the Management in consultation with an expert nominated by the Vice Chancellor in that behalf may make officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee, but shall not fill any other vacancy or post likely to last for more than six months without such reference.
(b) Where before or after the commencement of this Act, any teacher is appointed ( after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee :
Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualification for the post at the time of such substantive appointment and he has served continuously, for a period of not less than one year after his appointment made after reference to a Selection Committee:
Provided further that appointment is a substantive capacity under this clause of a teacher who had served, before such appointment, continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year, and the provisions of sub-section (2) shall apply accordingly.
(C) Any teacher of the University who was appointed as Lecturer/ part time Lecturer on or before December 31,1997 without reference to the Selection Committee by way of a short term or part time arrangement in accordance with the provisons for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available if such teacher-
(i) is serving as such on December 31, 1997 continuously since such initial appointment by way of short term/ part time arrangement;
(ii) possessed the qualifications required for regular appointment to the post under the provisions of the relevant Statutes in force on the date of the substantive appointment;
(iii)has been found suitable for regular appointment by the Executive Council.
A teacher appointed by way of short term/ part time arrangement as aforesaid who does not get a substantive appointment under this clause shall cease to hold such post on such date as the Executive Council may specify.
35 (1).....................
(2)Every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him be reported to the Vice Chancellor and shall not take effect unless it has been approved by the Vice Chancellor:
Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the decision of the management dismissing removing or reducing in rank or punishing in any other manner any teacher shall not require the approval of the Vice Chancellor, but shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed , the decision shall not be given effect to.
(3)The provisions of sub-section (2) shall also apply to any decision to terminate the services of a teacher, whether by way of punishment or otherwise but shall not apply to any termination of service on the expiry of the period for which the teacher was appointed:
Provided that in the case of colleges established and administered by a minority referred to in clause(1) of Article 30 of the Constitution of India, the decision of the Management terminating the service of any teacher shall not require the approval of the Vice Chancellor, but shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed, the decision shall not be given effect to.
(4)........................
(5).................
He contended that a bare perusal of the provisions of sub-section (2) of Section 35 shows that prior approval of the Vice Chancellor of the decision of Management of the College to dismiss or remove or to reduce in rank or to punish in any other manner to the teacher is condition precedent before order is communicated to him. Sub-section (3) of Section 35 speaks that the provisions of sub-section (2) shall apply to any decision to terminate the services of a teacher, either way of punishment or otherwise, meaning thereby any kind of termination requires prior approval of the Vice Chancellor.
Section 31(2) speaks that the appointment of a teacher, Principal or Director of the University or its associated college shall be on probation for one year which may be extended for a period of one year. It also provides that no order of termination of service during or on the expiry of the period of probation shall be passed in the case of Principal of an affiliated or associated college except by the order of Management.
The third proviso of sub section (2) of section 31 provides that if the notice of termination is given during the period of probation,the period of probation shall stand extended until final order of the Executive Council or until the approval of the Vice Chancellor as the case may be under Section 35 is communicated to the teacher concerned.
In the light of the aforesaid provisions, the learned counsel for the respondent submitted that on conjoint reading of Section 31 and 35 of the Act it is abundantly clear that the provision of Section 35 of the Act is attracted in the matter of termination of probationer also and section 35 does not permit the termination of Principal of the College until it is approved by the Vice Chancellor. He cited a case,i.e, Dr. Ganesh Dutt Pant Vs. Arya Vidya Sabha, Bulandshahar and others ( 1981 UPLBEC 170) decided by a Division Bench of this Court. Relevant paragraphs 6 and 7 are quoted below;
"6. Section 35 of the U.P. State Universities Act,1973,lays down the conditions of service of teachers of affiliated or associated Degree Colleges, other than those maintained by the Government. Sub-section(2) of the aforesaid section provides that no teacher will be dismissed or removed or reduced in rank in any manner before the decision in respect thereof is reported to the Vice Chancellor. The provision made is that the decision of the Management to dismiss, remove or reduce in rank, as the case may be, would not take effect unless it has been approved by the Vice Chancellor, sub-section (3) deals with the requirement of obtaining prior approval in the case of temporary teachers. It lays down that the provisions of sub-section (2) shall also apply to any decision to terminate the service of a teacher, whether by way of punishment, or otherwise, but shall not apply to any termination of service on the expiry of the period for which the teacher was appointed.
7.On the interpretation of this provision ,it would be found that its scope is very wide, and that it applies to a case of termination of service of a teacher whether that is done by way of punishment or otherwise. It may be true that in the instant case the termination order was not by way of punishment, but on assessment of work of the petitioner. An order of termination of service of a temporary teacher based on valuation or assessment of work is not considered as punishment. The expression" otherwise" used in the sub-section is indicative of not only termination by way of punishment but also otherwise. The expression '' otherwise' means in a different manner, in another way, or in other ways. Therefore, even where termination of service of a teachers is on the basis of assessment of his work, sub-section (3) would apply. Applying this provision, one would find that the provisions of sub-section (2) shall be acceptable to any decision to terminate the services of a teacher employed temporarily. ''' The learned counsel for the petitioner further submitted that pursuant to the aforesaid order, passed by the Chancellor, Vice Chancellor considered the matter on merit and found that before giving appointment in the College Smt. Sahai had disclosed the facts of punishment awarded to her by the previous employer. She also disclosed it to the Directorate of Higher Education. Further her erstwhile conduct does not come within the definition of offence. The Court has also treated the punishment as non stigmatic. He also found the order of termination as punitive not a simplicitor Therefore, he observed that she was not provided appropriate opportunity of hearing. The order of termination was passed by the President of the College and not by the Committee of Management whereas under Section 31(2) of the Act the decision for termination of service requires to be taken by the Committee of Management of the College and relieving the petitioner from service even before getting it approved by the competent authority shows mala fide intention of the authority concerned and, therefore, it is violation of Section 35(2) of the Act. He has further observed that though the order of termination speaks that it is based on the unsatisfactory service of Smt. Sahai, but it also mentions that she had concealed that she was punished by her previous employer.
With the aforesaid finding he disapproved the order of termination and issued direction to the Committee of Management of the College to reinstate Smt Sahai forthwith on the post of Principal of the College. This order is under challenge in W.P.No. 1521(SB) of 2006.
On the question of suppression of facts, learned counsel for the respondent submitted that the fact of punishment awarded to Smt. Sahai was communicated to the Higher Education Service Commission before issuance of appointment order by the Committee of Management. Therefore, it cannot be said that Smt. Sahai concealed any fact of the case. It is further stated that no doubt on the date of appointment order passed by this Court declaring the punishment as non stigmatic was not in existence but it is not in dispute that on the date of order of termination, it was very much there. Keeping in view the fact that Smt. Sahai was allowed to continue in service with certain punishment, this Court observed that the punishment awarded to her does not cast stigma. . He submitted that the provisions of Section 31(2) (b) of the Act reads as under;
31 (2)......
Provided that no order of termination of service during or expiry of the period of probation shall be passed....................
(b) In the case of Principal of an affiliated College or associated College except by order of Management and
(c)...............
In the instant case admittedly, the order impugned dated 10th April ,2005 was passed by the President of the College and on that date there was no such order of Management in existence. Petitioner's admitted case is that the Committee of Management approved the order of President later on. Thus, he claims that the order of termination also violates the provisions of Section 31(2)( b) of the Act.
On the nature of order of termination as to whether it is simpliciter or punitive, learned counsel for the petitioner submitted that the order impugned itself reveals that at the time of issuance of order, the President of the College considered the fact of concealment and therefore in the order it is inserted that Smt. Sahai in applying for the post of Principal of the College had also concealed that she was punished by her previous employer and this has been admitted by her in reply to the show cause notice. Thus, it is clear that the concealment of fact is the foundation of order of termination, however, to arrive at a conclusion that Smt. Sahai concealed the fact, it required a detailed inquiry and the matter should have been examined on the basis of the material evidence produced by the parties but the same has not been done so far. Therefore it is punitive in nature.
He further submitted that it is not in dispute that the order of termination is not approved by the Vice Chancellor of the university. Therefore, in light of the provisions of Section 31 read with Section 35 it is not order in the eye of law and, therefore, it is void ab initio.
Committee of Management, Mahatama Gandhi Smarak Mahavidalaya Garua Maqsoodpur Ghazipur Vs. Vice Chancellor, Gorakhpur University, Gorakhpur 1988(4) S.L.R. 679 Allahabad In this case a Division Bench of this Court held that admittedly neither any approval was sought nor was given by the Vice Chancellor to terminate the petitioner's services. Hence the order of termination has no effect. It further held that the term" otherwise" as is inserted in sub-section (3) of Section 5 is wide enough to include the termination of services of a teacher within the period of probation on the ground that his work and conduct was not found satisfactory.
The order, passed by the Vice Chancellor on 30.10.2006 is subject to the scrutiny of Chancellor as is provided in Section 68 of the Act and the learned counsel for the petitioner also raised objection against the maintainability of W.P.No.1521(S/B) of 2006.
However, ultimately he agreed to get decided issue finally by this Court instead of remitting it for decision of the Chancellor of the University.
Upon perusal of the record, we find that out of the orders challenged before us, one is the order dated 28.2.2006, passed by the Chancellor of the University remitting the matter to the Vice Chancellor to adjudicate upon the order dated 5th September, 2005 whereby the Registrar of the University communicated Sm. Sahai that her representation against the order of termination has been refused to be entertained on the ground that the provisions of Section 35 (1) of the Act are not attracted in her case. Another order is dated 30.10.2006, passed by the Vice Chancellor afresh to adjudicate upon the merit of the order of termination of Smt. Sahai's service. The petitioner has also raised question on the jurisdiction of the Chancellor to exercise his power under Section 68 of the Act in the instant case on the ground that once the dispute is not referable to Section 35 of the Act, there is no question of its reference for decision of Chancellor under Section 68 of the Act.
Section 68 speaks that if any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University ( including any question as to the validity of a Statute , Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor) is in conformity with this Act or the Statutes or the Ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final.
Learned counsel for the petitioner contended that since the Vice Chancellor turned down the petitioner's matter from taking cognizance of it as it does not attract Section 35 of the Act, there was no question of reference made to the Chancellor.
The appointment of Smt. Sahai in the College as well as her termination by the President of the College is not in dispute. Admittedly,she was on probation on the date of issuance of order of termination.
Section 31 of the Act governs the matter of appointment and termination of services during the period of probation. That also refers the requirement of approval by the Vice Chancellor under Section 35 in the matter of termination. Therefore, we are of the view that earlier by means of order dated 5th September, 2005 Vice Chancellor has failed to appreciate the provisions of the Act correctly. That being so, the matter required the examination of the Chancellor under Section 68 of the Act. Therefore, we hold that the Chancellor exercised his power correctly under Section 68 of the Act setting aside the order dated 5.9.2005 of Vice Chancellor and referring the matter to the Vice Chancellor for fresh decision on merit.
The Vice chancellor of the University has examined the validity of the order impugned, passed by the President of the College and has set aside the same on various grounds.
It is stated that at the time of filling up the application she was under bonafide belief that the punishment awarded by the previous employer was not against commission of any offence by her due to unauthorized absence, which was regulated through the order itself, therefore, she did not mention it. It is stated that her conduct of unauthorized absence was not an offence.
A bare perusal of the Section 31 of the Act, abundantly clears that appointment and termination of a probationer teacher/ Principal is covered under this provision. It is also obvious that in the case of Principal the Committee of Management is the authority to terminate his/ her service. Further the prior approval of the Vice Chancellor under Section 31 is the condition precedent for termination of his service, may be on probation. Section 35 also empowers the Committee of Management to impose punishment including dismissal from service of a teacher/Principal but it is provided that orders shall not take effect until it has been approved by the Vice Chancellor. Section 31 covers the case of termination of employees including probationer and Section 35 covers the imposition of punishment awarded in a disciplinary proceeding but in both the cases the order of Committee of Management requires prior approval of the Vice Chancellor to take effect. In the instant case the petitioner's termination from service has been made by the President not by the Committee of Management of the College. Further the same has not been approved by the Vice Chancellor of the university.
Considering the argument of learned counsel for the petitioner supporting the post approval of the Committee of Management to the order of punishment, we are of the view that such proposition orders shall not apply in the case where prior approval is condition precedent with the negative clause that the order shall not take effect unless it has been approved by the Vice Chancellor.
The Vice Chancellor in the second turn dealing with the case on merit by means of order impugned dated 30.10.2006 has given the reasons to disapprove the order of petitioner's termination. He has observed that respondent Smt. Sahai did not conceal the facts of her punishment awarded by the previous employer. It is not in dispute that in column 5.2 she does not mention any kind of punishment awarded to her for which she has given the explanation that she was under bona fide belief that the conduct against which she was awarded the punishment does not come within the definition of offence. She construed the term' offence' only to the extent of criminal conduct not to any violation of civil liability. However, it is obvious that before issuance of order of termination she had already communicated this act to the selection body, i.e, U.P. Higher Education Service Commission, who being satisfied with the same did not take any action against her and now after declaration of such punishment as non stigmatic, we are of the view that the same may not be the ground of her termination from service.
So far as other conducts of Smt. Sahai, which have been said to be the reasons for her termination from service are concerned, we do not want to examine the same as the order of termination does not mention the same. However, keeping in view the fact that concealment of fact is a part of order of termination, we are of the considered view that at the time of issuance of order,this fact was considered and has been made the foundation to issue order of termination. The allegation of concealment amounts to petitioner's misconduct which requires a detailed inquiry to prove or disprove it but the same has not been done so far. Therefore, we are of the view that once the allegation of misconduct is foundation of order and the same has been made the foundation of order impugned, it is punitive in nature which requires an opportunity of hearing to be given to the petitioner before passing such order but the same has not been done so far. In the case of Mathew P. Thomas (Supra) the same view has been taken by the Hon'ble Supreme Court.
Therefore, in view of the facts and circumstances of the case as well as the settled view of the Hon'ble Supreme Court, discussed as above, we are of the view that the Vice Chancellor has rightly disapproved the termination of Smt. Suparbha V.Sahai by means of order impugned dated 30th of October, 2006. Therefore, no interference is warranted in the order passed by the Chancellor as well as the order dated 30th of October, 2006 passed by the Vice Chancer of the Lucknow University, as such the writ petition No.282 (SB) of 2006 and writ petition No.1521 (SB) of 2006 stand dismissed.
In the result the writ petition No.1195 (SB) of 2007 and writ petition No.1464 (SB) of 2007 are also dismissed.
Order Dated:30th of July, 2013.
Tripathi