Madhya Pradesh High Court
Gourav Kumar vs The State Of Madhya Pradesh on 22 April, 2019
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6652/2019
1 Gourav Kumar. V/s. State of M.P. & another.
Indore, dated : 22.04.2019
Shri Rakesh Sharma, learned counsel for the
petitioners.
Heard on the question of admission.
ORDER
The petitioner has filed the present petition being aggrieved by order dated 3.1.2019, whereby respondent No.2 has terminated him from service.
2. According to the petitioner, he was appointed as Assistant Professor on 1.8.2016 in Shri Vaishnav Institution of Computer application by Vice Chancellor of respondent No.2, University. Thereafter, he completed the probation period successfully. The Jt. Registrar of respondent No.2 issued show- cause notice dated 22.12.2018 to him with the direction to submit the reply within two days. The petitioner filed the reply and denied the charges levelled against him. Vide order dated 26.12.2018, the petitioner was placed under suspension as per recommendation of Women Grievance Cell. Vide impugned order dated 3.1.2019, his services have been terminated.
3. The petitioner has filed the present petition challenging the order of his termination on the ground that he has been imposed major penalty without conducting a detailed departmental enquiry. The impugned order is a non-speaking order. The permanent employee cannot be terminated by an enquiry summery in nature. The appointing authority of the petitioner is Vice Chancellor and the order of termination is THE HIGH COURT OF MADHYA PRADESH W.P. No. 6652/2019 2 Gourav Kumar. V/s. State of M.P. & another.
passed by the Jt. Registrar, hence the same is liable to be set aside for want of authority. In view of the law laid down by this Court in the case of Brajesh Kumar Kulshreshtha V/s. State of M.P. : 2006 (3) MPHT 1 (NOC), the authorities are bound to assign cogent reasons in the order of punishment under Rule 16 of Rules of 1996.
4. Shri Rakesh Sharma, learned counsel for the petitioner, submits that the petitioner is having only remedy to file the writ petition against the order of termination as respondent No.2 is a University established under the Central Act and also recognised by the University Grant Commission. Respondent No.2 is discharging public function or a public duty, therefore, the same is amenable to the writ jurisdiction of this Court. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Dr. Janet Jeyapaul V/s. SRM University : (2015) 16 SCC 530, hence, notice be issued to the respondents.
5. The petitioner was appointed by respondent No.2 vide order dated 1.8.2016 as per terms and conditions mentioned in the appointment order itself. There is a clause which provides issuance of 3 months' notice on either side or salary in lieu thereof after confirmation before passing order of termination. Before termination, a show-cause notice was issued to the petitioner and the reply was sought. There are serious allegations against the petitioner in respect of misbehaviour with female employee. Though the petitioner THE HIGH COURT OF MADHYA PRADESH W.P. No. 6652/2019 3 Gourav Kumar. V/s. State of M.P. & another.
filed the detailed reply denying the charges, but his services have been terminated by invoking Clause (b) of the appointment order. The petitioner has sent a mail to the Education Minister, Govt. of M.P. being aggrieved by the termination order. In the said letter, he named one Dr. Saurabh Jain who forced him to increase the marks of the students and because of which he has been terminated. The Administration has terminated him on false grounds to protect Dr. Saurabh Jain.
6. Though the writ petition is maintainable against the action of the respondents despite being a non-Government, unaided educational institution, but the petitioner has an alternative and efficacious remedy before the Civil Court to challenge the order of termination. As per allegations levelled against the petitioner, evidence is required to be adduced by either side. Disputed questions of facts are involved. The petitioner is also alleging mala fide and levelling allegations against the co-employees.
7 In case of Ramendra Kishore Biswas V/s. State of Tripura : (1999) 1 SCC 472, the Constitution Bench of Apex Court has held that the Civil Court is also having jurisdiction to adjudicate on an order passed by the disciplinary authority after exhausting departmental remedies. Even the provisions of CCS (CCA) Rules, 1965 do not oust the jurisdiction of Civil Court. Para 5 and 6 of the aforesaid judgment are reproduced below :
5. The opinion expressed by the learned single Judge to the effect that in view of C.C.A. Rules, the THE HIGH COURT OF MADHYA PRADESH W.P. No. 6652/2019 4 Gourav Kumar. V/s. State of M.P. & another.
jurisdiction of the civil court is ousted from dealing with an order passed by the disciplinary authority which can be questioned under the service rules and that even after recourse is had to the Departmental proceedings recourse can only be to file a writ petition is palpably erroneous. The learned single Judge readily accepted the ouster of jurisdiction of civil courts to deal with service matters without proper consideration of the matter. Indeed, it is appropriate to relegate a person to exhaust Departmental remedies when he approaches the Court without exhausting departmental remedies under the service rules but to hold that the civil court had no jurisdiction while hearing a second appeal, after the matter has been litigated in civil court for more than five years was, Jo say the least, not proper. The learned single Judge ought to have decided the case on its own merits and not made a short cut of it. The appellant could not have been non-suited on the ground that he had failed to take recourse to proceedings under the C.C.S. (C.C. & A.) Rules, 1965 against the order of dismissal.
6. Again the opinion expressed by the learned single Judge to the effect:
"It is my firm conviction that in the present case the Civil Court cannot make a declaration under Section 34 of the Specific Relief Act as its jurisdiction has been taken by the special rules i.e.. CCS(CCA) Rules, 1965. Under the circumstances, it means a Civil Court does not have jurisdiction in respect of matters which are entertained and decided by the statutory tribunal in conformity with the powers conferred by the enactment." is clearly erroneous arid cannot be sustained. Service Rules, neither expressly nor by implication have taken away the jurisdiction of the civil courts to deal with service matter. The opinion of the learned single Judge does violence both to the code of Civil Procedure, the Specific Relief Act and the Service Rules. As a matter of fact it appears to us that the learned single Judge failed to exercise the jurisdiction vested in him while non-suiting the appellant. It, therefore, appears appropriate to us to allow this appeal, set aside the order of the learned single Judge and remit the matter to the High Court for a fresh decision of the regular second appeal and the cross objections on their own merits. The appeal, therefore, succeeds and is allowed. The RSA and cross objections are remitted to the High Court for fresh disposal on merits in accordance with law."
THE HIGH COURT OF MADHYA PRADESH W.P. No. 6652/2019 5 Gourav Kumar. V/s. State of M.P. & another.
8. In view of the above, since the petitioner is having an alternative and efficacious remedy to approach the Civil Court against the order of his termination, therefore, this petition is dismissed with the liberty to approach the Civil Court.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.04.27 15:28:12 +05'30'