Madhya Pradesh High Court
Dr. Atul Shrivastava vs The State Of Mp on 2 August, 2019
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THE HIGH COURT OF MADHYA PRADESH
W.P. No.15547/2019
(Dr. Atul Shrivastava Vs. State of M.P.)
Gwalior, Dated : 02.08.2019
Shri D.P. Singh, counsel for the applicant.
Shri Sanjay Bahirani, Govt. Advocate for the respondents/State.
The present petition has been filed being aggrieved by the order dated 19.07.2019 passed by the respondents No.4 and 5 whereby prior to completion of probation period without holding any inquiry or without issuing any show cause notice the services of the petitioner has been terminated.
It is alleged that the aforesaid termination order is violative of principles of natural justice and is being passed with a stroke of a pen. No reasons are assigned and no inquiry has been conducted in the matter. It is alleged that the procedure has been prescribed regarding termination of an employee in College Code. He has drawn attention of this Court to Part VII of the College Code - Statute No. 28 "wherein the Principal is deemed to be an appointing authority of the employees." He has submitted that the impugned order has been passed by the President of the governing body without any consultation with the governing body. He has further drawn attention of this court to Part III of College Code which deals with governing body and has alleged that the governing body of the management of the school is eligible for taking a final decision for termination. He has drawn attention of this Court to powers and duties of the Principal which says that the Principal shall be the Chief Executive Officer and the academic head of the College and shall be responsible for administration of the college. It is further argued that against the order passed by the Principal there is a provision for 2 THE HIGH COURT OF MADHYA PRADESH W.P. No.15547/2019 (Dr. Atul Shrivastava Vs. State of M.P.) filing an appeal before the governing body but by the impugned order which has been passed by the President of the governing body, the right of appeal of the petitioner has also been frustrated. Accordingly, he has prayed for quashment of the order.
Per contra, learned Govt. Advocate has argued that the order impugned has rightly been passed because the petitioner was on probation and for an employee on probation College Code 28 is relevant, wherein it has been provided that a teacher who is working on probation can be terminated during the service if his work is not found to be satisfactory. Exercising the powers of College Code 28, the President of the governing body has terminated the service of the petitioner. The petitioner was on probation upto October 2019, therefore, the action has rightly been taken against the petitioner. It is the choice of the employer whether to continue a person like petitioner against whom several complaints have been received and his work was not found to be satisfactory, therefore he has justified the order passed by the President of the governing body and has prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the record. From the record it is seen that the petitioner's appointment was on probation. The petitioner was appointed on 22.10.2018 in the pay scale of Rs.15600-39100 for one year on probation basis. His appointment was in terms of the College Code 28(17). College code 28 is required to be seen :-
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THE HIGH COURT OF MADHYA PRADESH W.P. No.15547/2019 (Dr. Atul Shrivastava Vs. State of M.P.) "28.The service of a teacher who is appointed on probation can be terminated during or at the end of the period of probation, if his work is not found to be satisfactory by communicating to the teacher, the intention of the Governing Body not to continue him and giving him one calendar month's notice in writing or by paying his one month's salary in lieu of the notice. Such notice shall not include the summer vacation or any part thereof and the teacher if he has been in service for more than three months during the academic session shall be entitled to salary for the ensuing summer vacation in the same proportion as the period of service bears to the total period in the academic session. The teacher may, likewise terminate his appointment before the expiry of the period of probation by giving one calendar month's notice in writing to the Governing Body or paying a sum equal to one month's salary in lieu of the notice.
It is not disputed that the petitioner's services were on probation and considering the aforesaid College Code 28 which deals with termination of services on probation at any point of time on the said complaint or unsatisfactory work, the college code 30 will not be applicable in the case of the petitioner as he was on probation.
From the perusal of the College Code 28, it is apparently clear that the intention of the governing body not to continue the employee and giving him one calendar month's notice in writing or by paying him one month salary in lieu of the notice is required to be considered by the respondents. In the present case the order impugned has been passed by the President, Governing Body, Jain Mahavidhyayaya, Bhind,District Bhind. There is no mention of the intention of the governing body whether or not to continue the petitioner. Further more, there is no mention of giving one month's notice or payment of one month's salary to the petitioner rather it is a one line order which reflects that on receipt of complaints and unsatisfactory work the petitioner services have been put to an end.
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THE HIGH COURT OF MADHYA PRADESH W.P. No.15547/2019 (Dr. Atul Shrivastava Vs. State of M.P.) It is a trite law, as has been held by the Hon'ble Supreme Court in the case of Kranti Associates Private Limited and Anr. vs. Masood Ahmed Khan and others, reported in (2010) 9 SCC 496, wherein the Hon'ble Supreme Court has categorically held that reasons are heart beat of the orders and some directions are being issued regarding the same which are as under :-
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision- maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) 5 THE HIGH COURT OF MADHYA PRADESH W.P. No.15547/2019 (Dr. Atul Shrivastava Vs. State of M.P.)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v.
University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".
Considering the College Code 28 and the observations made by the Hon'ble Supreme Court in Kranti Associates (supra), this Court finds the impugned order unsustainable. Accordingly, the same is quashed. The matter is remitted back to the authorities to re-examine the case of the petitioner in terms of College Code 28 as he is still on probation and pass a self contained speaking order following the dictum laid down by the Hon'ble Supreme Court.
Accordingly, the petition is allowed.
No order as to cost.
(VISHAL MISHRA) JUDGE van VANDANA VERMA 2019.08.08 13:51:09 +05'00'