Bombay High Court
College Of Engineering Of Yeshwant ... vs Asmita Basole (Mrs.) And Another on 6 March, 1987
Equivalent citations: (1988)ILLJ95BOM
JUDGMENT
V.A. Mohta. J.
1. College of Engineering conducted by the Yeshwant Rural Education Society, Sewagram, Wardha, has, by these two petitions, challenged the orders passed by the College Tribunal, Nagpur University, setting aside its order of termination of two Lecturers, Mrs. Asmita Basole (Writ Petition No. 933 of 1986) and Mr. Laxmikant Dhamande (Writ Petition No. 934 of 1986), and directing their reinstatement with back wages. Since common questions are raised, the two petitions are heard together are being disposed of by one judgment.
Both Mrs. Basole and Mr. Dhamande were appionted on permanent posts on probation basis - Mrs. Basole as a Lecturer in Mathematics and Mr. Dhamande as Lecturer in Production Engineering. The appointment order of Mrs. Basole is dated 29th August 1983 and that of Mr. Dhamande is dated 23rd April 1984. The appointment orders provide for termination even before the expiry of probation by giving one month's notice on either side.
2. On 14th March 1985 Mrs. Basole was served with a communication by the Principal to the effect that she was "interested in consuming all sorts of leave and hence it leads me to conclude that you are not interested in continuing your services. And hence, the management will not hesitate to terminate your services by giving you one month's notice". On 28th March 1985 the Chairman of the Governing Body of the College issued notice of termination of services, referring to four communications between 19th March 1983 to 14th March 1985 and saying, "You were issued note as per letter under Ref. No. 2 regarding your casual approach to your work i.e. treating lecture period as tutorial period.
A memo as per letter under Ref. 3 was issued to you regarding your poor performance as a teacher.
Letter under Ref. 4 was issued to you bringing to your notice that you have not taken note of the previous letters.
Letter under Ref. No. 5 was issued to you regarding your tendency to consume all available leave."
Mr. Dhamande was also served with notice of termination dated 28th March 1985 by the Chairman, referring to the communication between 23rd April 1984 to 6th February 1985 and saying,.
"As per letter under Ref. No. 2 it was pointed out to you that you are regularly irregular in attending to your duties. Your approach towards your main job is just casual and this has ultimately resulted in shirking your duties on 26th February 1985 by asking your colleagues to continue and running away from the institution without intimation and for which you were compelled to submit application for casual leave even though you have signed the Attendance Register."
3. Both preferred appeals on 24th April 1985 under Section 42B(1) of the Nagpur University Act, 1974. The Tribunal held, (a) services could not be terminated before expiry of a period of 23 months excepting on the ground of misconduct, (b) the termination was in fact a dismissal for specific misconducts without holding any inquiry, (c) termination by the Chairman was void not being by appointing authority (local Managing Committee which subsequently could not be legally rectified by the appointing authority, (d) the termination is bad for want of approval of Executive Council of the University as per Statute 53 framed under the Nagpur University Act.
4. We had heard these matters on 5th February 1987 and just finished dictation of the order of dismissal of the petitions with no order as to costs, when the learned counsel for the petitioners informed us that the case of M. I. Masih v. Peoples' Welfare Society and others (1982 MLJ page 271), following which we had held that the order of termination was void having been passed by the Chairman and not by the local Managing Committee, has been overruled by the Supreme Court. He stated this on the basis of the information that he had received after arguments were over. Copy of the Supreme Court Judgment, however, was not then available. Relying on the said statement, we kept the matter on Board for fresh hearing on 11th February 1987 and heard the matter afresh.
5. We have perused the copy of the Supreme Court decision in Petition for Special Leave to Appeal (Civil) No. 87 of 1982 decided on 7th November 1983. It reads thus :
We have heard counsel for the parties. In view of the Contentions raised, three important points emerge :-
1) Whether the Welfare Society is a State within the meaning of Article 12 of the Constitution;
2) Whether even if it is not a State, the Writ would still lie, and
3) Whether on the consideration of the question of ratification in view of new decision cited by either of the parties, the order of remuneration is valid.
The High Court will hear the parties on all these points and dispose of the petitions accordingly. Liberty to parties to file pleadings, affidavits and additional papers. We hope that the High Court would finally decide the matter as soon as reasonably possible. With the above observation the appeal is disposed of accordingly without any order as to costs."
6. Mr. Manohar, the learned counsel for the petitioner, in the first place contended that the view taken by the College Tribunal that services of the respondents lecturers could not be terminated before expiry of 23 months is not legally correct. We see considerable force in this submission. The orders of appointment spell out such a right and under the circumstances, there is no warrant for conclusion that the management was supposed to wait till the last date of completion of probation even though earlier it could rightly and bona fide come to the conclusion that the services were not satisfactory.
7. However, the view taken by the Tribunal that in point of fact specific misconducts were the foundations of the termination seems to be correct. Clause 45 of Ordinance No. 32, known as Nagpur University Service and Conditions of Employment Ordnance, 1967, gives list of misconducts. Sub-clause (h) reads thus :
"(h) Neglect of work or negligence in discharging any duty or failure to give the day's out-turn or negligence in discharging"
It is plain that previous to passing of the impugned orders of termination, some notices were issued by the management. There is a reference to those notices in the order of termination in which specific acts of misconduct are alleged. There is thus no manner of doubt that these misconducts are the foundation of the order of termination. The law on the point is well settled. Even a probationer's services cannot be terminated for specific misconducts without a show cause notice and an inquiry. The petitioners contend that these are the cases where only their suitability was judged by quoting their record and the specific conducts were not the foundation of the termination. It placed reliance on the following three cases, viz., (i) The State of Orissa and another v. Ram Narayan Das (1961-II-LLJ-552) (ii) Dr. T. C. Pillai v. Indian Institute of Technology (1967-I-LLJ-530) (iii) Oil and Natural Gas Commission and others v. Dr. Md. S. Iskander Ali (1980-II-LLJ-155). We do not think that the ratio of any of the above decisions can apply to the present cases. The question whether the misconduct is merely the motive and not foundation of the termination order will depend not merely on the language used but also on the whole background and each case will have have to be examined on its own merits. In this connection useful reference may be made to the latest decisions of the Supreme Court in the cae of Anoop Jaiswal v. Government of India (1984-I-LLJ-337). In that case also the period of probation was not over, explanation was called regarding the alleged act of indiscipline. The Supreme Court in the whole backgrounds held that misconducts were the basis for termination of services of a probationer and as the termination was not backed by a show-cause notice and a departmental inquiry, it was bad. We see no reason under the circumstances, to take a view different than the one taken by the Tribunal on the point.
8. Under Ordinance No. 24 - the College Code, it is the Governing Body or the local Managing Committee of a college which alone is the appointing authority of a teacher in an affiliated college. Under the circumstances, only the said appointing authority could terminate the services. The Chairman had no authority whatsoever to issue order of termination. Basically, therefore, the order of termination was illegal. It is the case of the petitioner that by resolution of the Governing Body dated 5th August 1985 (i.e., four months subsequent to filling of appeals before the College Tribunal) the action of the Chairman was ratified. What is the effect of that ratification has been a matter of controversy before us. Masish's case (supra), which dealt with Ordinance No. 24 and nearly a similar point about ratification by the Governing Body of the order of termination by the Chairman, has held, relying on various principles/provisions in general and Section 200 of the Indian Contract Act in particular that the act of the Chairman was void ab-initio, which was not ratifiable in the view of Section 200 of the Indian Contract Act and illustration (b) to that Section. Section 200 reads thus :
"200. An act done by one person on behalf of another, without such other person's authority, which if done with authority would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect."
Illustration (b) reads thus :
"A holds a lease from B, terminable on three months notice. C, an unauthorized person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A. The ratio decidendi of that case having been pronounced by a coordinate Division Bench, has binding effect on us and this is what we have held in our judgment dictated on 5th February 1987.
9. Has this ratio been varied by the Supreme Court is a crucial question. We have already noticed the full text of the Supreme Court judgment. It appears that the matter was remanded for fresh decision on three points, including whether on the consideration of the question of ratification in view of new decisions cited by either of the parties the order of termination is valid. We have not been taken through any of the decisions which seem to have been placed before the Supreme Court. We are further informed that after the remand the matter was settled and hence there was no occasions for the High Court to write a judgment after a remand. Mr. De, learned counsel for the respondents-lecturers, contended that the Supreme Court has not overruled the said ratio by pronouncing a distinctly opposite ratio and that the remand was for a specific purpose only and, therefore, there is nothing in the Supreme Court judgment from which it can be said that the relevant ratio pronounced in Masih (supra) was overruled. It seems to us that this contention is well founded. There are decisions of the other High Courts also taking a view similar to the one taken in Masih (supra). In the case of Glaxo Laboratories (India) Ltd. v. Glaxo Staff Association and others (1974-II-LLJ-389) Allahabad High Court (K. N. Singh, J. as he then was) has held, relying on the Sections 196 and 200 of the Contract Act, that if the rights of third parties are terminated by unauthorised action of an Agent, the Principal's ratification cannot validate the said action. In this connection, the following observations made by the learned Judge at pp. 393-394 of (1974-II-LLJ-389) are to point :
"Learned counsel for the respondent workmen relied on the principles of ratification as embodied in the Contract Act regulating relationship of principal and agent but that principle cannot be made applicable to validate the agent's action which affected a third party. Section 196 of the Indian Contract Act lays down that if a certain act done by a agent, even though initially without any authority, stands validated if the principal ratified the same subsequently. It is well accepted principle that ratification relates back to the time of transaction and has complete retrospective efficacy. The ratification in the eye of law is equivalent to previous authority. Section 200 of the Contract Act, however, lays down that an act done by one person on behalf of another, without such other person's authority, which if done with authority would have the effect of subjecting a third party to damages or of terminating any right or interest of a third person, cannot by ratification be made to have such effect. The Section makes clear that if the rights of the third parties are affected, the ratification cannot validate the action which may initially be without any authority. In the instant case, the order of dismissal was passed by Dr. I. S. Verma on 27th June, 1969, dismissing respondent No. 3 from the service of the petitioner company. On 31st December, 1969, the dispute was referred by the State Government to the Labour Court for adjudication. Issues had been framed on 22nd April 1970. Prior to the pleadings had been filed by the petitioner company as well as by respondent workmen. The alleged resolution of ratification of the Board of Directors of the petitioner company was passed on 14th October 1970. It is thus clear that the resolution was passed by the Board of Directors at the time when the dispute was before the Labour Court and it was apparent that the order terminating the respondent's services could not be sustained before the Labour Court. In the circumstances, having regard to the provisions of Section 200 of the Indian Contract Act, the resolution could not validate the dismissal order dated 27th June, 1969".
We have our respectful concurrence with the above view. In case of Raghunandan Prasad v. The Institute for the Physically Handicapped, New Delhi (1984-II-LLJ-339) Division Bench of Delhi High Court has taken a view that the action of the Chairman of the Institute, (was not a competent authority) dismissing the Director could not be subsequently ratified by the Standing Committee (appointing authority) in view Section 196 and 200 of the Indian Contract Act and thus the order of termination was void. In the instant cases, even the copy of the resolution of the Governing Body is not before us. As a result, it is not possible to ascertain whether the ratification was with full knowledge of the facts and complete background - which is a condition precedent for a valid ratification.
10. An affidavit has been filed before us now by the petitioner that the appointment was made by the Chairman and hence the very appointment was illegal. It is not possible to entertain this point of fact for the first time at the fag end of the case. In this connection useful reference may be made to Section 230(3) of the Contract Act which deals with ratification of contract. The Governing Body has paid salaries and other emoluments to the lecturers and had all through treated them as validly appointed employees. Under the circumstances, as held in the case of Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram and others and the case of Union of India v. Jyotimoyee Sharma (1969-I-LLJ-290) the appointments would not be termed as illegal and contract of employment held to be enforceable. Our attention was invited on behalf of the petitioners to the case of Parmeshwari Prasad Gupta v. The Union of India in which provisions of Section of 286 and 290 of the Indian Companies Act, 1956 fell for consideration. It is held that the resolution passed at an invalid meeting terminating the services of a General Manager can be validated by a regularly constituted meeting. The said decision was rendered in altogether different background and hence its ratio will have no application to the present matter. It is pertinent to notice that it is not a case where the provisions of the College Code and so also Section 200 of the Contract Act fell for consideration. Under the circumstances, it seems to us that no case for reviewing of our decision on the point exists.
11. This takes us to the last point-is termination bad for want of prior approval of the Executive Council in view of Statute 53, which has received the assent of the Chancellor on 2nd January 1978. Before Statute No. 53 was brought into force, there was no deemed confirmation of probationary teachers in affiliated colleges. Statute 53 is a Statute providing for confirmation of teachers working in affiliated colleges. Clause 4 provides for deemed confirmation. Every teacher appointed in a clear vacancy has to be appointed in the first instance on probation for for two years at the end of which he shall be confirmed. His services can be dispensed with provided atleast a month before expiry of probationary period notice is given, in the absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is confirmed. Clause 5 provides that termination of services of any teacher shall take place only in accordance with the provisions of the College Code. The provision reads thus :
"Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4 above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur University."
By this proviso for the first time prior approval of the Executive Council before termination of a college teacher is made mandatory. No such provision existed before either in the Nagpur University Act or the Statutes or Ordinances framed thereunder. Crucial question is, is this mandate intended to be applied also in the case of probationer whose services are sought to be terminated before he is confirmed. Previous to 2nd January 1978 the subject was governed by Agreement in Schedule-A of the College Code - Ordinance No. 24. The said agreement provided for initial probation period of one year, which was extendable. The clause 8 of the Agreement reads thus :
"8. After confirmation the services of the party of the first part can be terminated only on the following grounds :-
(a) Willful and persistent neglect of duty.
(b) Misconduct,
(c) Breach of any of the terms of contract,
(d) Physical or mental unfitness,
(e) Incompetence,
d) Abolition of the posts :
Provided, firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more :
Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Nagpur University."
Clause 8 created embargo on the termination of a confirmed teacher under clauses (c) and (f) without the previous of the Nagpur University. Thus, for termination on grounds (a), (b), (d) or (e) no such approval was necessary. Proviso to clause 5 of Statute 53 for the first time created a bar against issuance of notice of termination or making the termination effective without prior approval of the Executive Committee in every case. In our view Clause 5 applies to a teacher who is already confirmed prior to 2nd January 1978 and to a teacher deemed to be confirmed under Clause 4, the scheme and intention of Statute 53 being to prohibit the management from issuing notice of termination or to make effective the termination of all those teachers who stood confirmed before 2nd January 1978 and who are deemed to be confirmed subsequent to that date. It does not appear that the bar is meant to be operated against the termination of a teacher during probationary period before expiry of which he has no right to the post.
The mandatory requirement of obtaining previous approval of the Executive Committee before issuance of notice of termination to a probationer does no appear to be practically feasible and has practical difficulties considering the scheme of Statute 53. It is pertinent to notice that the management has every right to judge the performance of a probationer till the last date, in this case e.g. expiry of 23rd month of service as per Clause 4. How can approval be obtained immediately ? If no approval is there, no notice of termination can be given and if no notice is given there would be automatic confirmation. This will lead to absurd results which cannot be held to be intended. Hence on this ground also it is not possible to accept the submission that previous approval referred to in Clause 5 of the Statute is referable also to a probationer. Our attention was invited by Shri De to the case of K.G.K. (Post Graduate) College Managing Committee through Shri S. N. Khanna its President v. Vice Chancellor of Agra University, Agra (1971 (1) Services Law Reporter 146) which deals with Statute 30 sub-clause (8) of the Agra University Act. The scheme of the said Act and the Statute is neither quoted in the judgment nor is shown to us. But it appears that accepted position has been that Statute 30(9) in terms provides that decision to terminate a probationer shall not be effective till it is approved by the Vice-Chancellor. The point in the said case was that whether this provision was ultravires of the Act to which answer was recorded by the High Court in the negative. Thus the said decision is of no assistance to interpret Statute 53, language of which is altogether different and which also creates a bar against the very issuance of the notice.
13. In the result, the petitions are dismissed. Rule discharged. No order as to costs. Needless to mention that interim orders stand automatically vacated.