Rajasthan High Court - Jaipur
Subodh Shiksha Samiti & Ors vs Gopi Chand on 27 October, 2016
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.6006/2006)
1. Subodh Shiksha Samiti, Rambagh Circle, Jaipur through its Secretary.
2. Managing Committee, S.S. Jain Subodh Senior Secondary School, Johari Bazar,
Jaipur through its Honorary Secretary.
--- Petitioners
Versus
1. Shri Gopi chand Tetarwal s/o Shri Data Ram, aged about 46 years, resident of
B-3, Nityanand Nagar, Queens Road, Jaipur.
2. The Director, Secondary Education, Rajasthan Bikaner.
3. The Rajasthan Non-Government Educational Institutions, Jaipur through its
Presiding Officer.
--- Non-Petitioners.
Date of Order: October 27, 2016.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. J.K. Singhi, Senior Advocate with
Mr. Tarun Verma, for the petitioners.
Mr. Sumit Tetarwal, for respondent No.1.
Mr. Sanjay Sharma, GC for the State.
BY THE COURT:
REPORTABLE Under challenge is the judgment dated 25-5-2005 passed by the Rajasthan Non Government Educational Institution Tribunal, Jaipur (hereinafter `the Tribunal') whereby it quashed and set aside the order dated 8-7-2002 passed by the petitioner Subodh Shiksha 2 Samiti (hereinafter `the Samiti') dismissing the respondent No.1 Gopi Chand Tetarwal (hereinafter 'the respondent') from the post of PTI Grade-II with the S. S. Jain Subodh Senior Secondary School Jaipur (hereinafter `the School').
The facts of the case are that the respondent was appointed in the first instance as a Physical Training Instructor (PTI) Grade-III on 30-8-1980 and thereafter promoted on the post of PTI Grade-II. He came to be served with a chargesheet on 4-7-1995 detailing 11 charges. Broadly stated various misconducts alleged included misbehaviour with the Principal of the School, insubordination and exhorting the students of the School to indulge in vandalism against the school's property for reason of which a substantial financial loss was occasioned. The respondent was also alleged to have engaged in instigation of students of the school to rowdy and violent behaviour and of himself participating in the protest of non teaching staff of the school. He was stated to have unjustifiably refused to give proper accounts of the sport equipment in his custody which went missing as allegedly evident from the register in regard thereto and the physical verification of the equipment--all indicative of serious irregularities and misconduct. The respondent denied all charges and set up his defence, in the domestic enquiry. However the said defence was found to be unsatisfactory by the majority of the three 3 member inquiry committee with one member (Government nominee) dissenting, following which the impugned order of dismissal of the respondent was passed on 8-7-2002.
The respondent challenged the dismissal order dated 8-7- 2002 before the Tribunal inter alia on the ground that the said order was passed in contravention of the proviso to Section 18 of the Rajasthan Non Government Educational Institutions Act, 1989 (hereinafter `the Act of 1989') according to which no final order of dismissal/ removal or reduction in rank of an employee could be passed even subsequent to a domestic enquiry prior to the approval of the Director of Education or an officer authorized by him. It was further submitted that the order of dismissal dated 8-7-2002 was passed by the Secretary of the Samiti, acting without jurisdiction whereas according to the provisions of the Act of 1989 and the Rajasthan Non Government Educational Institutions Rules, 1993 (hereinafter `the Rules of 1993') the Secretary of the Samiti had no power to pass any order of termination or dismissal and instead the Management Committee of the School alone had the power to terminate/ dismiss/ reduce in rank an employee of the school. On the merits of the matter it was submitted that in any event the conclusions of the domestic enquiry holding the respondent to be guilty of misconduct were perverse as evident from the fact that the 4 independent person on the Committee i.e. Sita Ram Garg, the nominee of the State Government found most of the charges laid against the respondent not to be proved and those proved not of serious nature, grave enough to warrant punishment of dismissal. It was submitted that from evidence collected during the domestic enqiry neither of the charges were proved.
The petitioner Samiti, on its part before the Tribunal supported the order of dismissal passed on 8-7-2002. Its case was that under the State Government's circular non grant of permission by the Director Education or his nominee under the proviso to Section 18 of the Act of 1989 on an application for approval to dismiss or remove an employee from service, on finding of misconduct in an enquiry, within 30 days of the request entailed deemed approval. And thus the impugned order dated 8-7-2002 having been passed after 30 days of the requisition for approval, the deemed approval was then operative supplying the statutory pre condition for passing the order of the respondent's dismissal. It was submitted the respondent had been found guilty of serious misconduct in an enquiry after due opportunity and his misconduct warranted the dismissal in the interest of the students reading in the school. 5
On consideration of the matter, the Tribunal vide the impugned order dated 25-5-2005 set aside the dismissal order dated 8-7-2002 and directed that the respondent be reinstated on the post of PTI Grade-II in the school w.e.f. 8-7-2002 with all consequential benefits. Hence this petition.
Mr. J.K. Singhi Senior Advocate appearing with Mr. Tarun Verma on behalf of petitioners has submitted that approval under proviso to Section 18 of the Act of 1989 from the Director of Education or an officer authorized by him prior to dismissal of the respondent teacher on 8-7-2002 ought to have been deemed by the Tribunal from the Government's circular in that regard. He submitted that the said circular provided that in the event of no response being received on a request for approval by the institution for dismissal/ termination of an employee following a domestic enqiry within a period of 30 days, a deemed approval was to be conclusively presumed. It was submitted that a letter seeking approval for the termination of service of the respondent had been sent to the nominee of the Director of Education, the jurisdictional District Education Officer on 2-1-2002 and multiple reminders thereafter sent in regard thereto, yet no communication in response was received. It was submitted that for this reason the Tribunal seized of the aforesaid facts, erred in holding that the dismissal of 6 the respondent vide order dated 8-7-2002 was vitiated for reason of no prior approval as required under proviso to Section 18 of the Act of 1989. Counsel emphatically submitted that the Tribunal's view and conclusion were vitiated for reason of its misapprehension that if the deemed approval under circular dated 8-3-1999 were to be accepted, it would negate the statute i.e. the proviso to Section 18 of the Act of 1989. Senior counsel submitted that the Government's circular only supplied a gap in the statute, where while on the one hand an employee could be found to have committed a serious misconduct in a duly constituted enquiry, yet he could thereafter be indefinitely allowed to be on the rolls of the institution awaiting the approval of the competent authority for his dismissal/ removal. Counsel submitted that it was this gap in the scheme of the Act of 1989 and the rules made thereunder which the Government's circular supplied by providing for a deemed approval and it should have been so construed. Mr. J.K. Singhi relied on the judgment of the Apex Court in the case of State of Jharkhand Vs. Jitendra Kumar Srivastava [(2013)12 SCC 210] to contend that administrative instructions can supplement statutory provisions by providing for situations where the statutory rules are silent. Mr. Singhi further relied on the case of Accountant General State of MP Vs. S.K. Dubey [(2012)4 SCC 578] in support of his contention that the 7 Government's circular filled the gap in law by providing for deemed approval.
Mr. J.K. Singhi then submitted that the judgment of this court in the case of Nehru Bal Vatika Vidyalaya (supra) in effect holding the Government's circular one dated 9-7-1998 ultra vires of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 is not good law hence requires to be reconsidered.
Mr. J.K. Singhi also submitted that merely because of the fact that out of the three members of the Committee, who conducted the domestic enquiry, one member gave a dissenting opinion, the findings of such enquiry committee in respect of the misconduct of the respondent cannot be said to be vitiated for reason of perversity. It was finally submitted in the alternative, that in the event the court were to uphold the finding of the Tribunal in its impugned judgment that the respondent's dismissal vide order dated 8-7-2002 was illegal, instead of directing reinstatement with all consequential benefits a lumpsum amount be directed to be paid as compensation
--as the petitioner Samiti is a Charitable Institution where excessive outgo of funds resulting from the direction for the respondent's reinstatement with consequential benefits would not be in public interest.
8
Per contra, Mr. Sumit Tetarwal counsel for respondent supported the impugned judgment dated 25-5-2005 passed by the Tribunal and submitted that the order of termination dated 8-7- 2002 as passed by the petitioner Samiti was both without jurisdiction and ultra vires the Proviso to Section 18 of the Act of 1989. It was submitted that the entire foundation, of the defence of the petitioner Samiti before the Tribunal as also in the petition now agitated before this court is based on the purported "deemed approval" under the Government's circular is quite baseless. The very same argument has been negated by this Court in the case of Nehru Bal Vatika Vidyalaya (supra) wherein it was effectively held that a similar circular dated 9-7-1998 was ultra vires Section 18 of the Act of 1989. It was submitted that it is no more res integra that an administrative circular or even an executive order under Article 162 of the Constitution of India cannot negate or supplant statutory law and to the extent they so seek to do, they would be ultra-vires and nonest. It was emphatically submitted that the Government's circular in issue providing for deemed approval does not seek to fill in a gap in law but quite blatantly overturn and supplant the will of the legislature reflected in the proviso to Section 18 of the Act of 1989. The legislature required an approval by the Director of Education or his nominee prior to removal, dismissal or reduction in rank of an employee. No administrative order could have altered an 9 approval required in law as a fact to a deemed one. Further a legal fiction by way of a "deeming clause" cannot at all be created by an administrative order. It is only a legislative privilege. It was submitted that thus aside of the petitioner Samiti having no case on the basis of the Government's circular and alleged deemed approval to dismiss the respondent, no challenge has been made to the findings of the Tribunal that the Secretary of the petitioner Samiti had no jurisdiction to pass the respondent's dismissal order as such an order could have been passed only by the Management Committee of the School after prior approval of the Director of Education or his nominee in terms of Section 9 of the Act of 1989 read with rules 23, 24 and 25 of the Rules of 1993.
Heard. Considered.
The respondent's service was terminated vide order dated 8- 7-2002 when he was a regular employee of the School having been selected as PTI Grade-III and thereafter promoted as PTI Grade-II and worked for 22 years. Section 18 of the Act of 1989 and the Rule 39(2) of the Rules of 1993 provide that no employee of an educational institution shall be removed/ dismissed or reduced in rank unless a reasonable opportunity of being heard against an action proposed to be taken is given and further that no final order in regard to an employee's dismissal/ removal/ reduction in rank 10 "shall be passed unless prior approval of the Director of Education"
or an officer authorized by him in this behalf is obtained. The peremptive language of the proviso to Section 18 of the Act of 1989 makes prior approval as a fact mandatory, as evident from the use of the words "shall" and "unless" therein. A literal reading of the proviso to Section 18 of the Act of 1989 indicates that even after an employee has been found guilty of misconduct in a domestic enquiry, he cannot be removed/ dismissed from service unless prior thereto a specific approval of the Director of Education or his nominee has been obtained. Prior to the specific approval aforesaid, the management of a non government educational aid institution has no power/ authority to pass an order of dismissal/ removal or reduction in rank of an employee.
Mr. J.K. Singhi has despite the plain peremptory language of the proviso to Section 18 of the Act of 1989 argued that a specific prior approval was not required and such approval could also be deemed in terms of the circular issued by the Government. I however find no force in the contention of Mr. J.K. Singhi, as this court in the case of Nehru Bal Vatika Vidyalaya (supra) effectively held a similar circular dated 9-7-1998 to be ultra vires to Section 18 of the Act of 1989 and therefore non-est. It is well settled beyond an iota of doubt that a circular notified or otherwise cannot have 11 any effect at all where it is in the crosshair of a statute--here the proviso to Section 18 of the Act of 1989. In the case of Nehru Bal Vatika Vidyalaya (supra) this court noted that the proviso to Section 18 of the Act of 1989 did not lay down any period within which approval was to be granted or refused by the competent authority nor did it provide that the requisite approval be deemed on non receipt of a response from the Director of Education or his nominee within a period--30 days or otherwise of requisition for approval being made. The court also noted that the approval as required in the Rule 39(g) and (h) of the Rules of 1993 did not prescribe any limitation within which it was to be granted or conversely refused. It was held that therefore the State Government had no jurisdiction to override the statutory provisions as set out in the proviso to Section 18 of the Act of 1989 by way of an administrative circular. I fully concur with the aforesaid conclusion.
Besides the issue of manner of creation of a legal fiction, as Government's Circular avowedly sought to do, is no more resintegra. In the case of Agricultural Market Committee Vs. Shalimar Chemical Works Ltd. [(1997)5 SCC 516] the Apex court held that a legal fiction can only be created by the legislature and not even its delegate exercising rule making power. In the case of Republic of Italy Vs. Union of India [(2013)4 SCC 721] the Apex Court held that 12 creation of legal fiction is only within the authority of a sovereign legislative body. In the case of S.K. Alagh Vs. State of Uttar Pradesh [(2008)5 SCC 662] the Apex Court held that when a statute creates legal fiction, it specifically so provides and a legal fiction cannot thus be arrived at even by interference from statutory provisions. Most importantly in the case of V.C. Banaras Hindu University Vs. Shrikant [(2006)11 SCC 42] the Apex court held that legal fiction cannot be created by an administrative order. In view of aforesaid enunciation of law by the Apex Court with regard to manner of creation of legal fiction, it is evident that the Government's circular being administrative in nature could not create a legal fiction. Absent a legal fiction based on the Government's circular, the proviso to Section 18 of the Act of 1989 would be relentlessly operative and thereunder specific approval of the Director Education or its nominee would remain essential prior to the passing the order of dismissal dated 8-7-2002. Lack of approval by the Director of Education or his nominee renders the order of dismissal dated 8-7-2002 illegal, which is therefore liable to set aside.
Mr. J.K. Singhi also argued that the circular dated 8-3-1999 only supplied the gap in law as obtained between the power of an employer to conduct a domestic enquiry, hold the employee guilty of misconduct on the one hand and the power to remove/ dismiss him 13 on the other. I am of the considered view that the gap in law suggested by Mr. J.K. Singhi is imaginary. The proviso to Section 18 of the Act of 1989 is categorical in stating that no order of removal/ dismissal/ reduction in rank of an employee of a non government educational aid institution could be passed without prior approval of the Director Education or his nominee. The prohibition to remove or dismiss without prior approval is clear. The legislative scheme is complete in its intent of protecting employees of non government educational institutions. What the circular issued by the government therefore sought to do, was to effectively amend and circumvent the proviso to Section 18 of the Act of 1989. It is well settled that an administrative circular cannot supersede or supplant statutory law. The reliance by Mr. J.K. Singhi on the judgment of the Apex Court in the case of Sate of Jharkhand Vs. Jitendra Kumar Srivastava [(2013)12 SCC 210] and Accountant General State of M.P. Vs. S.K. Dubey [(2012)4 SCC 578] is of no avail.
The aforesaid judgments are premised on the well-settled legal proposition that executive power is co-extensive with legislative power and hence can be resorted to fill gaps in law made by the legislature but cannot supplant statutory law. In the instant case the Government's circular in issue was clearly issued in the exercise of administrative power not executive power. It is nobody's case that 14 the said circular has been issued in the name of the Hon'ble Governor under Article 162 of the Constitution of India and meets the procedural compliances mandatory therefor. Further even otherwise aside of administrative orders even executive power cannot conflict with statute as held in the case of S.K. Dubey (supra) itself. The proviso to Section 18 of the Act of 1989 requires approval as a fact not as a deemed fiction and neither administrative orders nor executive powers could not have been exercised to vary the clear intent of Section 18 of the Act of 1989 or circumvent it.
The Apex Court has held in Punit Rai Vs. Dinesh Chaudhary [(2003)8 SCC 204] that administrative instructions are not "law"
within the meaning of Article 13 of the Constitution of India and are distinct from orders issued under executive powers under Article 162 of the constitution of India. But even executive power cannot be exercised in areas where the legislature has promulgated a statute. In the case of UCO Bank Calcutta Vs. Commissioner of Income Tax WB [(1999)4 SCC 599] the Apex Court held that a circular cannot detract from a statutory provision. Further in the case of Pahwa Chemical (P) Ltd. Vs. Commissioner of Central Excise New Delhi [(2005)2 SCC 720] the Apex court held that a circular cannot be contrary to the statutory provision. In the case of B. Rajgopala Naidu Vs. The State Transport Appellate Tribunal Madras [AIR 1964 SC 15 1573] Constitution Bench of the Apex Court held that administrative order cannot be said to have the force of law.
With regard to Mr. J.K. Singhi's contention that even if the judgment dated 25-5-2005 passed by the Tribunal is upheld, this court should modulate the relief and instead of directing reinstatement of the respondent should provide for a lumpsum payment as compensation to him, the argument is wholly untenable. If it were to be so directed, the respondent despite having completely succeeded in the challenge to the order of dismissal passed on 8-7- 2002, would have also partially failed for without even the financial loss being recompensated (he has since passed the age of superannuation during the pendency of the petition) his victory will only be pyrrhic. And conversely the petitioner Samiti despite having passed an illegal order, which has been set aside, substantially succeed. Law can be upheld in all its majesty only where its breach is accompanied by all the inexorable consequences. Were it not so, law would be rendered a dead letter, observed more in breach than in compliance. Its raison d' etere would stand demolished. Analogy of reasoning in cases where the Apex Court has awarded compensation in lieu of reinstatement where a workmen is retrenched without compliance with Section 25-F of the Industrial Disputes Act, 1947 (hereinafter `the Act of 1947') is inapposite in the facts of the case at hand. It would be in place to record that in 16 any event there is no one consistent view of the Apex Court as to reinstatement or compensation in cases of retrenchment of workmen in breach of Section 25-F of the Act of 1947. Each case turns on its own facts. But more importantly cases relating to challenges to retrenchment being contrary to Section 25-F of the Act of 1947 where the relief has been confined to monetary compensation in lieu of reinstatement largely relate to casual workmen, most often with short stints of employment on posts not substantive.
In the special facts of a case the Court's have indeed moulded relief when warranted and instead of reinstatement directed payment of adequate compensation to avoid complications, such as in situations where in the meantime the post held by the employee at the time of his removal/ dismissal has been filled up and held by new incumbent for years. This situation does not obtain in the case at hand because the respondent has in the meantime superannuated and is not to be reinstated on the post of PTI Gr-II. I am of the considered view that the facts of the case do not warrant moulding of the relief as prayed for by counsel for the petitioner in view of the fact that all the relief that accrues to the respondent following the setting aside of the dismissal order dated 8-7-2002 by the Tribunal is monetary. No insurmountable administrative problem or underlying equity commends to this Court to undercut the 17 respondent's rights consequent to his order of dismissal being set aside.
The petitioner was a regularly selected PTI Gr-III, on a substantive post selected through due process, was promoted thereafter to PTI Gr-II and worked for 22 years before his unceremonious dismissal under the illegal order dated 8-7-2002. And despite the Tribunal's finding in its impugned judgment dated 25-5-2005 as to the illegality of the respondent's dismissal on the basis of a judgment of this court in the case of Nehru Bal Vatika Vidyalaya (supra), the petitioner Samiti laid this petition and persuaded this Court to pass an ex parte order staying the Tribunal's well considered and legally rock solid judgment directing the respondent's reinstatement with all consequential benefits. That state of affairs has continued for about 10 years notwithstanding several applications for early listing by the respondent, very likely for reason of the heavy docket of this Court. In the case of Ramrameshwari Devi Vs. Nirmala Devi [(2011)8 SCC 249] the Apex Court has observed that even when frivolous litigation is filed, it takes time for the Court to go its root and finally decide.
In view of aforesaid conclusions, I am of the considered view that the impugned judgment dated 25-5-2005 passed by the 18 Tribunal does not warrant any interference by this court. The writ petition is therefore liable to be dismissed. Dismissed.
Consequent to dismissal of writ petition, it would inexorably follow that the respondent would be entitled to formal reinstatement but consequential benefits for real. This would include actual back wages annual increments, revision of pay scales and selection scales as also other retiral benefits such as gratuity and leave encashment at par with those employees who were in the service of the school during the period at the relevant time, the respondent would have been till reaching the age of superannuation but for his illegal dismissal. In sum, it is made clear that the respondent not be put to any disadvantage monetary or otherwise for reason of his illegal order of dismissal dated 8-7-2002 which stands set aside by the Tribunal and affirmed by this court. In the case of Union of India Vs. S.N. Maity [(2015)4 SCC 164] the apex Court directed payment of the entire salary to the employee before it for the period during which he was kept out from employment for reason of an illegal order passed by the UOI. A somewhat similar view on relief to be granted on setting aside an illegal order of removal/ dismissal has been taken by a Division Bench of this court in DB Special Appeal (Writ) No.1302/2005 and other connected matters decided on 8-9- 2010.
19
It is directed that all benefits to the respondent be computed as per directions above, and be released to him. Interest @ 9% per annum be paid on the arrears computed as payable to the respondent effective the date of the Tribunal's order dated 25-5- 2005 till date of payment.
The writ petition stands dismissed accordingly.
(Alok Sharma), J.
arn/ 20 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.