Madhya Pradesh High Court
Akhilesh Tripathi vs The State Of Madhya Pradesh on 4 December, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.7537/2012
Akhilesh Tripathi and another
Vs.
State of M.P. and others
Shri Pankaj Dubey and Amit Garg, learned counsel for
the petitioners.
Shri Neeraj Singh Chouhan, learned Govt. Advocate for
respondents No.1.
Shri B.P. Tiwari, learned counsel for respondents No.2
and 3.
ORDER
(04/12/2017) The petitioners have filed the present writ petition challenging the orders dated 28/01/2012 (Annexure-P/1) and dated 28/01/2012 (Annexure-P/2) by which their services have been terminated.
2. Petitioner No.1 was appointed as Lecturer vide order dated 28/06/2008 in Guru Ramdas Khalsa Institute of Science & Technology, Pharmacy, Jabalpur. As per the terms of the appointment order, the appointment is of permanent nature and initially it was on probation for a period of one year liable to be extended if required. Similarly, petitioner No.2 was appointed on the post of Associate Professor in Guru Ramdas Khalsa 2 Institute of Science & Technology, Pharmacy, Jabalpur vide order dated 03/06/2010 on the same condition and the appointment was of a permanent nature and initially for a period of one year liable to be extended. The petitioners submitted that they have completed their probation period of one year satisfactorily without any adverse remark. Without passing any extension order, service of the petitioners were extended. The result of the petitioners was very satisfactory. The work of the petitioners was also appreciated by respondents No.2 and 3. The petitioners protested against the discriminatory behaviour of the Principal who was favouring some of the students who have not submitted practical record but the Principal asked the petitioners to award them marks. As the petitioners did not support the illegal action of the Principal, the Principal became annoyed against them and he has grudged and malice against the petitioners, therefore, the respondents have issued an orders dated 28/01/2012 thereby terminating the services of the petitioner. Being aggrieved by the said order, petitioner No.1 has submitted a detailed representation to respondent No.2 on 03/02/2012 but as no action has been taken in the matter, the petitioners have, 3 therefore, filed the present writ petition.
3. Respondents No.2 and 3 have filed their reply. In the reply they have stated that the present writ petition is not maintainable in view of the judgment passed by this Court in Writ Petition No.13744/2014 (Sonelal Burman Vs. State of M.P. & others) decided on 25/04/2016. It has further been submitted that the work of the petitioners were not satisfactory and they were negligent in performing their duties and, therefore, number of show cause notices and reminders have been issued to the petitioners but no reply has been filed by the petitioners and they became habitual for disobeying the instructions. As the services of the petitioners were not satisfactory, hence their services have been terminated with a notice of one month by the respondent- society. The respondent-society is a registered under the Registration of Society Act and they are not receiving any aid from the Government i.e. Central or State Government. It runs and maintains by the society itself, therefore, it is not covered under Article 12 of the Constitution of India. Thus, writ petition is not maintainable before this Court.
4. Respondent No.5 has filed reply and in reply respondent No.5 has stated that All India Council for 4 Technical Education does not provide aid either for the establishment, running or for the management of the respondent-institution. The competent authority for granting aid to any institution is either Central or State Government. It is not within the domain of the council to provide aid to any institution for establishment of technical institution or running of such institution. The council from time to time introduces different schemes for the quantitative and qualitative improvement of technical education and these schemes were for the benefits of the faculty as well as the students. The respondent-institution was provided financial assistance by the council for the successful running of Research Promotion Scheme (RPS) and not for the management or establishment of the institution.
5. The petitioners have filed their rejoinder. In the rejoinder, the petitioners have submitted that the respondent- College is governed by the respondent No.4-University and its statutes, therefore, the respondent-College is obliged to strictly follow statute-20 of respondent No.4-university. The services of the petitioners are governed by the Statute of respondent- university. This Court in identical writ petition 5 in Hitkarni Dental College, Jabalpur which is governed by Statute-28 of Rani Durgawati Vishwavidyala University, Jabalpur had terminated the services of the petitioners therein. The provisions of aforesaid Statute-28 is paramateria. This Court in Writ Petition No.108/2017 (Dr. Pushkar Gupta Vs. State of M.P. & others) has been pleased to consider the judgment rendered by Hon'ble the Apex Court in the case of Janet Jeyapaul Vs. SRM University and others, reported in (2015) 16 SCC 530 and Ramesh Ahluwalia Vs. State of Punjab and others, reported in (2012) 12 SCC 331 has held that a writ petition against the private institution is maintainable as there is a public element of imparting education. Thus, in light of the aforesaid judgments, the petitioners have submitted that the present writ petition is maintainable. In the case of petitioner no.2 who was appointed on 03/06/2010 and his probation was never extended, therefore, his services are deemed to be confirmed as per clause-24(2) of the Statute-30, thus, the services of the petitioners could not be terminated except after following the procedure prescribed in clause 14(a IV), 33 and 35 of the Statute-30. The respondents have admitted in their reply that 6 no notices or opportunity of hearing was given to the petitioners before passing the impugned orders.
6. I have heard learned counsel for the parties and perused the record. The first objection raised by the respondents is regarding maintainability of the said writ petition. The respondents, in their reply, have stated that respondents No.2 and 3 are the society registered under the Society Registration Act and not the "State" within the meaning of Article 12 of the Constitution of India, therefore, the present writ petition is not maintainable. The respondent- college is duly recognized by All India Council for Technical Education which is the statutory and apex authority for granting recognition or approval to any institution for running technical and pharmacy courses. This body is established under the AICTE Act, 1993. This body so established by the Central Government is responsible for ensuring the standards, norms, faculty requirement, land, building, infrastructure requirements in all the technical and pharmacy graduate and under graduate colleges across the country. Respondent- RGPV is affiliating university which lays down the minimum qualifications, eligibility criteria for appointment of faculty to 7 any technical and pharmacy institution seeking affiliation with it for running such course. Without affiliation with the RGPV, no institution can even invite applications from students for admission through its institution. Both, RGPV as well as AICTE, have pervasive and deep control in the working and operation of the private institutions under the respective statutes with respect to all the features necessary for running any institution. The fact whether a writ petition would be maintainable against a private institution has been considered by this Court in the case of Dr. Pushkar Gupta (supra). While allowing that writ petition, the Co-ordinate Bench of this Court has relied upon the judgment passed by the Apex Court and has held that as the institution is involved in a public element of imparting education, therefore, the institution is the "State" within the meaning of Article 12 of the Constitution of India and resultantly writ petition is maintainable. The Co-ordinate Bench of this Court in the said judgment has held as under :
"The legal position is settled in this regard. After considering various judgments, the Apex Court in Janet Jeyapaul (supra) opined that 8 when the institution is engaged in imparting education in higher studies to the students at large, it is amenable to the writ jurisdiction under Article 226 of the Constitution. Considering the aforesaid, I am unable to hold that the respondent institution is not amenable to the writ jurisdiction of this court.
So far as the nature of dispute is concerned, no doubt in the case of Federal Bank (supra), the Apex Court opined that a writ petition would not be maintainable against a private body merely because the said body is regulated by any statutory provision. In Para 33 of the judgment of Federal Bank, the Apex Court opined that a private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. A microscopic reading of this analysis by Supreme Court makes it clear that writ jurisdiction can be exercised in two clear eventualities namely; (i) where it is necessary to compel such body to enforce any statutory obligation; (ii) the mandamus can be issued where obligations are of public nature casting positive obligation upon it.
As per judgment of Federal Bank (supra) also, it is clear that if 9 statutory mandate of Clause 28 of College Code is violated, the writ of mandamus can be issued for its enforcement. So far as the judgment of K.K. Saxena (supra) is concerned, in this case also the Apex Court held that before issuing any writ, particularly writ of mandamus, the Court has to satisfy that the action of such an authority which is challenged, is in the domain of public law as distinguished from private law.
The Apex Court in Ramesh Ahluwalia vs. State of Punjab & Ors. (2012) 12 SCC 331 held as under:-
"12. We have considered the submissions made by the learned counsel for the parties.
In our opinion, in view of the judgment rendered by this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust (supra), there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be 10 performed by the State Authorities.
13. In the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under :
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very 11 much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute.
Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract". We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is 12 a very wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgment in Unni Krishnan and Zee Telefilms Ltd.(supra), brought to our notice by the learned counsel for the Appellant Mr.Parikh.
1 4 . In view of the law laid down in the aforementioned judgments of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent -institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents 13 perform public functions, i.e. providing education to children in their institutions throughout India."
(Emphasis supplied) In Andi Mukta Sadguru (supra), the Apex Court held as under:-
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State.
They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the 14 affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
(Emphasis supplied) A Constitution Bench of Supreme Court in (2005) 4 SCC 649 (Zee Telefilms Ltd. & Anr. vs. Union of India & Ors.) held as under:-
"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligations or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under 15 the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226."
In the case of Janet Jeyapaul (supra), the Apex Court considered the view taken in the case of Andi Mukta Sadguru (supra) and Zee Telefilms Ltd.(supra) and opined that the writ petition against a private unaided institution is maintainable. Pertinently, in the case of Ramesh Ahluwalia (supra) the writ petition was filed against an order dated 08-01-2008 whereby Shri Ramesh Ahluwalia was removed from service. Similarly, in Janet Jeyapaul (supra) the appellant therein challenged the notice dated 04-04-2012 whereby she was given one month's notice before removal from service. In this kind of dispute, the Apex Court held that writ is maintainable. Thus, following the ratio decidendi of these judgments, it cannot be said 16 that the petition is not maintainable against the institution for the present grievance. In view of these Supreme Court judgments, the judgments of this Court cited by Shri Arpan Pawar are of no assistance to him."
7. So far as the judgment relied upon by learned counsel for the respondents in the case of Sonelal Burman (supra) is concerned, while passing the said judgment, the Co-ordinate Bench of this Court has not considered the judgment passed by the Apex Court and, therefore, the said judgment is per incuriam. Thus, in light of the aforesaid judgment passed by the Co-ordinate Bench of this Court in the case of Dr. Plushkar Gupta (supra), the present writ petition is maintainable.
8. The second ground regarding termination of services of the petitioner is concerned, it is noted that respondents No.2 and 3-institution is governed by the Statute-29 and 30 of the University. Clause-33 of Statute-30 provides for termination of services of the employees. Clause-33 of Statute-30 : 17
"33. (1) The service of a teacher other than person appointed on temporary of 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 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 18 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.
(2) Except where the
services of a teacher are
terminated on the ground of
misconduct including neglect of duty or breach of the terms of the contract neither the Governing Body nor the teacher shall terminate the agreement except by giving to the other party three calendar month's notice or by paying to the other party a sum equal to thrice the monthly salary which the teacher concerned is than earning. The period of notice shall not include the summer vacation or any part thereof."
9. Thus, as per the said clause, the services of an employee shall not be terminated without holding an enquiry and after giving an opportunity of hearing. Clause-24(2) states that if the work of probationer is found to be unsatisfactory and he is not informed for the same by the Governing Body at least one month before the expiry of the 19 probation period, the probationer shall be deemed to have been confirmed in his appointment on the expiry of the period of probation. In the present case, the respondents have not informed the petitioners about their unsatisfactory work by giving one month's notice as provided under Clause- 24(2) of the Statute-30 and, therefore, their services are deemed to be confirmed. Even otherwise the appointment of the petitioners although was on probation was of a permanent nature, therefore, as per clause-33 of Statute-30 the services of the petitioners could not have been terminated without holding an enquiry or affording any opportunity of hearing to the petitioners.
10. Thus, in light of the aforesaid, this writ petition is allowed. The impugned orders of termination dated 28/01/2017 (Annexure-P/1) and dated 28/01/2017 (Annexure-P/2) are hereby set aside and the respondents No.2 and 3 are directed to reinstate the petitioners. However, the petitioners would not be entitled to get any wages on the principles of "no work no pay".
(Ms. Vandana Kasrekar) JUDGE ts Digitally signed by TULSA SINGH Date: 2017.12.04 16:34:18 +05'30' 20