Madhya Pradesh High Court
Sone Lal Burman vs The State Of Madhya Pradesh on 15 October, 2019
Equivalent citations: AIRONLINE 2019 MP 1247
Author: Vishal Dhagat
Bench: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Writ Petition No. 1758-2017
Parties Name SONE LAL BURMAN
Vs.
THE STATE OF MADHYA PRADESH
Bench Constituted Hon'ble Shri Justice Vishal Dhagat.
Judgment delivered by Hon. Shri Justice Vishal Dhagat.
Whether approved for No
reporting
Name of counsels for parties For Petitioner: Petitioner Sonelal
Burman in person.
For respondent No.1/State: Shri V.R.
Tiwari, Panel Lawyer.
For respondent No.2: Shri Amit Khatri, Advocate.
For respondents No. 3 and 5: Smt. Sheetal Dubey, Advocate.
For respondent No.4: Shri Satyendra Jyotishi, Advocate.
Law laid down Significant paragraph numbers (O R D E R) Pronounced on :15.10.2019 Petitioner has filed this petition being aggrieved by the order dated 21.08.2014 contained in Annexure P/1 and also the order dated 02.12.2016 contained in Annexure P/10.
2. Petitioner submitted that his services were terminated by respondents No.3 and 5 by passing the impugned order. It is mentioned in the order that his services are no longer required in future. A cheque of one month's salary in advance was also attached with the order. Petitioner had preferred an appeal before the Registrar, Rajiv Gandhi Proudyogiki Vishwavidyalaya, 2 Bhopal. The appeal preferred by the petitioner was dismissed by the impugned order dated 02.12.2016. Petitioner submitted that he had been issued appointment letter on 30th December, 2010. He was appointed as Lecturer w.e.f. 28.12.2010. It was mentioned in the order that the appointment will be of permanent nature, but petitioner will be on probation for a period of seven months and same is liable to be extended, if required. Petitioner was issued letter dated 26.10.2012. By this letter, it was informed to him that he has successfully completed the probation period and his work during probation period was satisfactory and, therefore, he was given salary of Rs.28,000/- per month. On the basis of said fact, petitioner submits that his appointment was permanent in nature and he had successfully completed the probation period.
3. Petitioner has referred to Statute 30, which has been enacted by exercising the power conferred under sub-section (1) of Section 38, read with Section 37 of Rajiv Gandhi Proudyogiki Vishwavidyalay, Adhiniyam 1998. Petitioner referred to following clauses of Statute 30:
Sr. Clause Description No. 1 2(b) "Autonomous College" a College so
designated by the University as per provisions of Statute of Rajiv Gandhi Proudyogiki Vishwavidyalaya Adhiniyam.
2 3 The college code shall apply to all Colleges admitted to the privileges of the University excepting the colleges 'maintained or manage by the State Government or a Municipal Corporation or the University.
3 12(1)(f) Two representatives of the University other than members of the Foundation Society of the college nominated by the Executive Council at least one of whom shall be from amongst the teachers of the University as far as possible working in institutions not located in the same town as the college.
34 12(12) It shall be the duty of the representatives of the University on the Governing Body to report to the Kulpati regarding decisions affecting adversely for the smooth working of the college and violation of the Statutes, Ordinances, Regulations or instructions of the University.
5 12(14)(a) Appointment, promotion, suspension and
(iv) punishment of the teachers of the college and any other action affecting their services:
Provided that the Governing Body of "Grantee College" shall take these actions in accordance with the provisions of the Madhya Pradesh Ashasakiya Shikshan Sanstha (Adhyapakon tatha Anya karmachariyon ke Vetan ka Sandaya) Adhiniyam, 1978 and the rules framed there under.
Provided further that the services of a teacher of no-grantee college other than the one appointment on the in a leave vacancy or temporarily for a specified period shall not be terminated for any reason whatsoever without the prior approval of the Executive Council.
Provided also that the power of appointment shall be subject of the provision of clause (a) sub-statute (1) of Statute 10 of this Statute.
6 17 (1) The Governing Body shall be constituted in accordance with Provisions of this Statute within a period of ninety days from the date of admission of the college to the privileges of the University.
7 24(3)(iii) In case of any conflict between the contract in the form prescribed in the appendix and any other contract between a teacher and the college or its Governing Body, the terms and conditions laid down in the contracts as in the Appendix shall be deemed to apply.
8 33(1) The service of a teacher other than person appointed on temporary or part-time basis or on probation shall not be terminated after confirmation except on the following grounds and without the approval of the Executive Council.
(i) Misconduct including willful neglect of 4 duty.
(ii) A Breach of the terms of the contract.
(iii) Physical or mental unfitness.
(iv) Incompetence provided that the plea of incompetence shall not be used against a teacher after two years of his confirmation.
(v) Abolition of the post with the prior approval of the Executive Council.
Provided that termination of service on any ground falling under (i) or (iv) above shall not be ordered without holding an inquiry in which the teacher is given a statement of charges against him and is afforded reasonable opportunity to defend himself. Provided also that action to terminate the service of a teacher on the ground of physical or mental unfitness shall not be taken except on the basis of a report of Medical Board of the State Government.
9 36(3)(i) An appeal against an order of the Governing Body imposing on a teacher the penalty of reduction in rank or pay or removal or dismissal or compulsory retirement from service shall lie to a Tribunal consisting of:
(a) A nominee of the Kulpati, other than a member of the Executive Council who will act as the Chairman.
(b) The aggrieved teacher's nominee to be named by the appellant in his appeal, and
(c) A nominee of the Governing Body.
Provided that in case a person in clause (c) above is not nominated by the body concerned within three months, the Kulpati shall have the powers to appoint on behalf of the body concerned, a nominee not connected with the University in any manner.
Provided further that an appeal under this sub-Statute shall be submitted to the Kulapati not later than forty-five days from the date on which a copy of the order appealed against is delivered to the appellant
4. On the basis of Statute 30, petitioner submits that the order dated 21.08.2014 and 02.12.2016 are illegal, vitiated and arbitrary and deserve to be set aside. Petitioner submits that he is a 5 permanent employee and he be terminated from service by passing order that he is no longer required and by paying salary in lieu of notice of one month. As per College Code, departmental enquiry is to be conducted on the grounds mentioned in the Code. Petitioner further submitted that the appellate Tribunal also did not consider the grounds, which were raised by him and first appeal was dismissed only on the ground that Statute 30 is not applicable in case of the petitioner. The order passed by the Registrar also deserves to be set aside.
5. Petitioner relied on the order dated 04.12.2017 passed in W.P. No.7537 of 2012 (Akhilesh Tripathi and another vs The State of Madhya Pradesh). It is submitted by the petitioner that in the said petition, similarly placed employee has challenged the order, which had been passed by the institution and society. This Court was pleased to allow the petition. The petitioner is identically situated and, therefore, the case of petitioner is covered by the order passed by the co-ordinate Bench of this Court in W.P. No.7537 of 2012.
6. Petitioner has also filed an application for taking additional documents on record. As per the documents, it is reflected that petitioner was confirmed on the post and his name was sent to respondent No.5 by the letter of Guru Ramdas Khalsa Institute of Science and Technology. The designation of the petitioner was shown as Assistant Professor appointed on the pay scale of Rs. 9300-39100+7600.
7. Counsel for the respondent No. 2 and 4 submits that respondent No.5 is a private college, which is run by the respondent No.3 society i.e. Guru Govind Singh Educational Society. Salary of the petitioner was being paid by the respondent No.5 college. It is further submitted that respondents No.2 and 4 have no role in removal of the petitioner. It is submitted that information of appointment and removal of petitioner has not 6 been given to the governing body and also to the answering respondents. No information was given to the University regarding appointment of petitioner. It is also submitted that petitioner was not appointed following the due process of the Statute. Answering respondents were also not informed about removal of the petitioner. Petitioner was provided a fair opportunity of hearing, therefore, petitioner is not liable to get any relief. Hence, petition may be dismissed.
8. Counsel appearing for the respondent No. 3 and 5 submitted that petitioner is seeking compensation to the tune of Rs.10,00,000/- (Rs. Ten Lacs), therefore, petition is not maintainable and petitioner may file civil suit before the competent Court of law. Respondents further made submission that appointment of petitioner was not made in terms of Statute 30 of the University and the procedure prescribed. Petitioner was habitual in causing indiscipline. Notices were also issued to the petitioner. Due to complaints against the petitioner, he was issued a show cause notice and was asked to file reply, but petitioner did not file any reply. Reporting authority had rightly informed the matter to the society of the college, which had granted appointment to the petitioner. Petitioner was not sincere in his official duties and was causing indiscipline, therefore, Executive Committee decided to withdraw appointment of the petitioner by paying one month's salary. It is further submitted that since the petitioner was not getting the salary, which was the salary of the Assistant Professors under Statute 30, therefore, it is clear that the petitioner was not appointed under Statute 30. On the basis of said submission, a prayer is made for dismissal of the writ petition.
9. After hearing arguments of the parties and perusal of the documents available on record, now the question which is to be answered is "whether appointment of petitioner was made under 7 Statute 30 and whether the services of petitioner was terminated contrary to Statute 30?
10. On going through Annexure P/1, P/2 and P/3, it is clear that the nature of appointment of petitioner was permanent in nature and he was also confirmed as Assistant Professor of Guru Ramdas Khalsa Institute of Science and Technology.
11. Now the question for consideration is that whether petitioner was appointed as per Statute 30 or not?
12. Petitioner has relied on the additional documents filed by the respondents. Petitioner also filed Additional document as Annexure P/19. As per this document, name of petitioner was mentioned at Sr. No.18 and his designation was shown as Assistant Professor. Petitioner has also relied on the format of affiliation form. As per the affiliation form details of teachers and employees are to be sent to Rajiv Gandhi Proudyogiki Vishwavidyalaya, Bhopal, the name of petitioner was sent vide Annexure P/19 and it was informed to the authorities.
13. Petitioner was given appointment order and later on, he was confirmed after successful completion of probation. He was getting salary as per AICTE norms. Petitioner made repeated requests for producing the record, but the record prayed for by the petitioner was not produced by the respondents. From the material available on record, it is clear that petitioner was regularly appointed by the society and College Code and Statute 30 are applicable in the case of the petitioner, therefore, his services could not have been terminated without following the procedure laid down in Statute 30.
14. In view of the aforesaid facts and circumstances of the case, the petition filed by the petitioner is allowed and impugned orders dated 02.12.2016 (Annexure P/10) and dated 21.08.2014 (Annexure P/1) are hereby quashed. Respondents are directed to 8 allow the petitioner to continue in services of respondents No. 3 and 5.
15. No order as to costs.
16. C.C. as per rules.
(VISHAL DHAGAT) JUDGE vkt VINOD Digitally signed by VINOD KUMAR TIWARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, KUMAR ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh, 2.5.4.20=c3a773822dd60058372dba984a8595fa55 6ca32c10ef613cc76f9f59c60d4d85, cn=VINOD TIWARI KUMAR TIWARI Date: 2019.10.15 17:04:01 +05'30'