Madhya Pradesh High Court
Aditya Upadhyay vs National Institute Of Fashion ... on 9 January, 2020
Equivalent citations: AIRONLINE 2020 MP 1044
Author: Nandita Dubey
Bench: Nandita Dubey
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HIGH COURT OF MADHYA PRADESH, AT JABALPUR
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
W.P. NO. 6105/2016
Aditya Upadhyay
Vs.
National Institute of Fashion Technology, Through- its
Director General and others
&
W.P. NO. 17504/2018
Aditya Upadhyay
Vs.
National Institute of Fashion Technology, Through- its
Director General and others
________________________________________________________
Shri Swapnil Ganguly, Advocate for the petitioner.
Shri Paritosh Gupta, Advocate for the
respondents.
Arguments heard on : 15.10.2019
Order passed on : 09.01.2020
ORDER
Both the aforesaid writ petitions are heard and decided analogously by this common order. 2
2. The relief prayed in WP No.6105/2016 is to quash the order dated 22.02.2016 whereby service of petitioner is terminated with effect from 1 st April,2016, whereas in WP No.17504/2018, prayer is to issue appropriate writ to direct the respondent/National Institute of Fashion Technology (hereinafter referred to as "the NIFT") to extend the period of contractual appointment of the petitioner.
3. The facts are taken from WP No.6105/2016.
4. The petitioner has completed his four years Bachelor of Engineering (Electronics & Communication) in the year 2008. While undergoing studies, he started working at Netlink Pvt.Ltd.as part time trainer in the year 2007. After completing his degree course of B.E.,he continued with training job on full time basis till June,2009. Thereafter from July,2009 to June,2011, he prosecuted study at NIFT (Gandhinagar)and as a part of Industry Internship has worked with Future Group, Bangalore, HDC, Ahmedabad and Netlink, thereby claiming that he has total experience of more than three years in employment. Pursuant to an 3 advertisement for filling up the post of Assistant Professor on contractual basis for a period of three years, the petitioner applied and got selected in the NIFT.
5. The petitioner was appointed as Assistant Professor on contract basis for a period of three years in the Bhopal centre of NIFT. His contract period was extended for a further period of three years with effect from 13.08.2015 till 30.06.2018 as his ACRs were outstanding. A show cause notice dated 16.11.2015 asking him to show cause in regard to the validity of his work experience certificate in Netlink Pvt.Ltd.from July,2007 to June,2009 as trainer,was served on him on the allegation made by one Vasant. According to the petitioner, before replying to the show cause notice, he sought a copy of the alleged report mentioned in the show cause notice. However, without supplying the copy of the same, his services have been terminated with effect from 01.04.2016 vide impugned order dated 22.02.2016. It is the contention of learned counsel for the petitioner that the order impugned is stigmatic and punitive in nature and has been passed without affording any opportunity of hearing.
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6. Learned counsel for the petitioner has relied upon the decision of Division Bench of this Court in Writ Appeal No.1166/2017 (Malkhan Singh Malviya vs. State of M.P.) decided on 08.03.2018 at Gwalior Bench of this Court to contend that even an employee not borne out of regular establishment is entitled to be afforded reasonable opportunity of being heard before a stigmatic order is passed terminating his service.
7. The respondent/NIFT, in its return, has contended that the petitioner has submitted a false and fabricated experience certificate of Netlink Pvt.Ltd.while applying for the post. According to respondent, a complaint dated 13.01.2015 was received along with the report of Labour Inspector Mr. S.N.Sangule in regard to false and fabricated experience certificate submitted by the petitioner. It is stated that petitioner was given opportunity vide letter dated 05.02.2015 to clarify and to submit any supporting documents like letter of offer of appointment, salary slips, resignation letter or any other document to support his claim in reference to his employment with Netlink Pvt.Ltd. It is contended that the petitioner did not submit any document on the 5 pretext that he had lost all the documents due to shifting of his residence and the company, Netlink Pvt. Ltd. now being closed, there is no record available. It is contended that during the course of enquiry, it was found that petitioner was a regular student of B.E. (Electronics & Communication) at Bhopal till June,2008. His experience certificate for the period July,2007 to June,2009 was, therefore, overlapping.
8. It is further contended that vide office memorandum dated 24.08.2015, the petitioner was again given an opportunity to clarify the matter regarding the overlapping period. It is also contended that a senior official of NIFT-Bhopal was deputed to ascertain the authenticity of the report of Mr. Sangule (Labour Inspector). The Director, NIFT-Bhopal and Deputy Vigilance Officer met Mr. Sangule on 29.06.2015 where it was confirmed by Mr. Sangule that the enquiry report has been signed by him on the basis of his discussion with Mr. Priyank Chakradhar (Consultant of Netlink Group), who informed that the petitioner was not a regular employee and was not issued any experience certificate and if there was any, 6 it might be issued to the trainee/student. In view of the above findings, a show cause notice dated 16.11.2015 was issued to the petitioner to show cause within a period of 15 days regarding the false experience certificate submitted by him. It is stated that the petitioner, instead of clarifying his position chose to submit a vague reply on 25.12.2015. As the petitioner's total work experience at the time of applying in NIFT was less than two years and he obtained the employment giving false information and submitted false documents, his service was terminated taking recourse to clause 24 of the terms of appointment which provides that if any declaration given by an employee is proved to be false, or if he violates any condition of the present contract appointment, the employee will be liable to be removed from services or any other action which NIFT may deem necessary. It is further submitted that by virtue of interim order dated 31.03.2016, the petitioner has continued in service till June,2019, though his contract was extended up to 30.06.2018 and the salary up to 27.07.2018 has already been paid. 7
9. Heard and considered the rival submissions and perused the record as well as the documents placed on record pursuant to impugned order dated 22.02.2016.
10. It is seen from the pleadings that the petitioner had categorically raised the ground of termination being stigmatic not preceded by an enquiry following the principles of natural justice and not giving reasonable opportunity to defend the charge of submitting fake/false experience certificate.
11. It is apparent from the record that petitioner, while applying for the post of Assistant Professor in NIFT had categorically submitted in his application that he had two years' and ten months' experience out of which two years working experience for the period July,2007 to June,2009 was as "Trainer" at Netlink Pvt. Ltd.,and submitted a copy of the work experience certificate from Netlink Pvt. Ltd. For his academic record, he mentioned that he did regular four years' Bachelor of Engineering in Electronics & Communication from RGTU from the year 2004 to 2008.
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12. It is seen that after receipt of the complaint with report dated 07.03.2014 of Mr. Sangule (Labour Inspector) in regard to false experience certificate of Netlink Pvt. Ltd., an enquiry was conducted by vigilance department of NIFT. The petitioner was asked vide letter dated 05.02.2015 to submit valid proof in support of his employment with Netlink Pvt.Ltd. by submitting offer letter of appointment/acceptance letter of offer of appointment letter/ salary slips with bank proofs/ resignation letter or any other proof. In reply to the aforesaid, the petitioner had stated that he had lost all his documents with reference to joining and working with Netlink Pvt.Ltd.and as the Company is no more in existence, he cannot get any supporting material.
13. It is revealed from Annexure R/8, the report of Director NIFT, Bhopal that he along with Deputy Vigilance Officer met and checked with Mr. Sangule (Labour Inspector) regarding his enquiry report dated 07.03.2014. Mr. Sangule confirmed that during enquiry he was informed by Mr. Priyank Chakradhar, 9 Consultant of Netlink Pvt. Ltd. that petitioner was not a regular employee and was not issued any experience certificate and if there was any,it might be in the form of being trainee/student.
14. Pursuant to the preliminary enquiry, a show cause notice dated 16.11.2015 was issued to the petitioner asking him to show cause within 15 days as to why a disciplinary action be not initiated against him. In reply, petitioner had asked for copy of complaint and report of Mr. Sangule (Labour Inspector), however, did not give any clarification regarding the overlapping period.
15. The respondent/NIFT, however,terminated the services of the petitioner vide impugned order dated 22.02.2016 considering that the petitioner had admittedly pursued four years' Bachelor of Engineering (Electronics & Communication) Degree Course from RGTU from 2004 to 2008. However, he has submitted the experience certificate of Netlink Pvt.Ltd.as a Trainer for the period July,2007 to June,2009. This period was taken into consideration while calculating the minimum experience required for the post of Assistant Professor 10 in NIFT. Considering that the period of academic course was overlapping with the work experience mentioned in the application form, the concerned authority reached to a conclusion that petitioner did not possess required experience at the time of his contract appointment as Assistant Professor in NIFT.
16. In Writ Appeal No.1166/2017 (Malkhan Singh Malviya vs. State of M.P.), a Division Bench of this Court at Gwalior Bench vide order dated 08.03.2018 has observed in para 11, thus :-
"11. Undoubtedly, the termination order castes stigma /blemish on the future career prospects of the petitioner by finding him guilty of serious misconduct. The least that is required under the principle of natural justice is that a reasonable opportunity should be afforded before criticizing the character of an individual. The reasonable opportunity is by way of holding an inquiry where specific charges of misconduct are informed to the delinquent employee followed by a reasonable opportunity of filing reply, supply of all the adverse material proposed to be used against the delinquent employee, adducing of evidence in favour and against the charges in the presence of delinquent employee and thereafter to render a finding of misconduct or otherwise and the consequential order. It is needless to emphasize that further opportunity to the delinquent employee to have a say on the question of quantum of punishment would only 11 rise if the delinquent employee holds the post on substantive basis or there are any enabling statutory provisions or executive instructions obliging the competent authority to do so. But since the petitioner was contractual / temporary employee no such further opportunity on the question of quantum of punishment is required to be given."
17. It is the contention of the petitioner that before casting stigma on him of submitting forged experience certificate and terminating his service, no enquiry has been conducted nor any opportunity of hearing was given. It is noticeable that the services of the petitioner have been terminated on the ground that he was not having requisite experience at the time of applying for the contract appointment. This finding had been arrived at for the reason that petitioner has not submitted any document in support of his claim of working experience.
18. It is also noticed that apart from asking for the report of Mr. Sangule (Labour Inspector) and the copy of complaint, the petitioner has not filed any documents in reply to letter dated 05.02.2015, 24.08.2015 or show cause notice dated 16.11.2015 nor tried to clarify regarding the overlapping of period of two years of his regular employment while he was 12 pursuing his regular degree course of Bachelor of Engineering (Electronics & Communication), rather he has pleaded in para 5 of the petition that he worked as part time trainer in the year 2007 and after completing his B.E., he continued as trainer on full time basis. He has further stated that he has gained work/industry/ teaching experience of three years and three months and even if the experience of one year from Netlink Pvt. Ltd. is taken away, then also he is having more than two years' experience. However, the fact remains that in his application he has mentioned having experience of two years ten months only.
19. However, the order of termination has lost its efficacy in view of the fact that the petitioner has continued in service by virtue of interim order dated 31.03.2016, even beyond his contractual period i.e.30.06.2018 and the salary for the period has already been paid, therefore, W.P.No.6105/2016 has been rendered infructuous by efflux of time and is, accordingly, disposed of.
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20. As far as the relief sought in W.P.No.17504/2018 is concerned, it is observed that the petitioner cannot claim/seek extension of contract as of right as the respondent/NIFT has not extended the term of contract. Clause 10 of the terms and conditions of contract appointment provides that after expiry of the contract term, the employment shall stand terminated automatically unless the same is extended in writing by NIFT. It is clear from the reply of the respondent/NIFT that the employer has lost faith and confidence in the employee. Under the circumstances, the respondents cannot be enforced to extend the period of employment of the petitioner.
21. In view of the aforesaid, W.P. No.17504/2018 is dismissed. No order as to costs.
22. A photo copy of this order be also kept in the record of connected W.P.No.17504/2018.
(Nandita Dubey) Judge jitin Digitally signed by JITIN KUMAR CHOURASIA Date: 2020.01.09 16:49:26 +05'30'