Madhya Pradesh High Court
Smt. Kranti Burman vs The State Of Madhya Pradesh on 28 November, 2022
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 28th OF NOVEMBER, 2022
WRIT PETITION No. 16341 of 2019
BETWEEN:-
SMT. KRANTI BURMAN W/O SONE LAL
BURMAN, AGED ABOUT 37 YEARS,
OCCUPATION: ASSTT. PROFESSOR HITKARINI
COLLEGE OF ENGINEERING AND
TECHNOLOBY JABALPUR 20 SUNCITY COLONY
ADHARTAL JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SONELAL BURMAN, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR.
SECRETARY DEPARTMENT OF TECHNICAL
EDUCATION AND SKILL DEVELOPMENT
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. REGISTRAR RAJEEV GANDHI PROUDYOGIKI
VIDYALAYA BHOPAL (MADHYA PRADESH)
3. SECRETARY HITKARINI SABHA CIVIL CENTRE
DISTT. JABALPUR (MADHYA PRADESH)
4. CHAIRMAN GOVERNING BODY HCET
HITKARINI SABHA CIVIC CENTRE DISTT.
JABALPUR (MADHYA PRADESH)
5. PRINCIPAL HITKARINI COLLEGE OF
ENGINEING AND TECHNOLOGY HITKARINI
DUMNA ROAD JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ARPAN PAWAR, ADVOCATE FOR RESPONDENT NOS. 1
AND 3 TO 5)
(BY SHRI SATYENDRA JYOTSHI, ADVOCATE FOR RESPONDENT
NO. 2)
WRIT PETITION No. 19500 of 2019
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 12/2/2022
12:29:04 PM
2
BETWEEN:-
SMT. KRANTI BURMAN W/O SONE LAL
BURMAN, AGED ABOUT 37 YEARS,
OCCUPATION: ASSTT. PROFESSOR HITKARINI
COLLEGE OF ENGINEERING AND
TECHNOLOGY JABALPUR , 20, SUNCITY
COLONY ADHARTAL JABALPUR (M.P.)
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SONELAL BURMAN, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
SECRETARY DEPTT. OF TECHNICAL
EDUCATION AND SKILL DEVE. VALLABH
BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)
2. REGISTRAR RAJEEV GANDHI PROUDYOGIKI
VISHWAVIDYALAYA BHOPAL DISTT-BHOPAL
(MADHYA PRADESH)
3. SECRETARY, HITKARINI SABHA CIVIC CENTRE
J A B A L P U R DISTT-JABALPUR (MADHYA
PRADESH)
4. CHAIRMAN GOVERNING BODY HCET,
HITKARINI SABHA CIVIC CENTRE (MADHYA
PRADESH)
5. PRINCIPAL HITKARINI COLLEGE OF
ENGINEERING AND TECHNOLOGY HITKARINI
H I LLS DUMNA ROAD, JABALPUR (MADHYA
PRADESH)
6. S ECR ETARY, ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION NEW DELHI, NELSON
MANDELA MARG, VASANT KUNJ, NEW DELHI
(DELHI)
.....RESPONDENTS
(BY SHRI ARPAN PAWAR, ADVOCATE FOR RESPONDENT NOS. 1
AND 3 TO 5)
(BY SHRI SATYENDRA JYOTSHI, ADVOCATE FOR RESPONDENT
NO. 2)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
following:
Signed by: PARMESHWAR
GOPE
Signing time: 12/2/2022
12:29:04 PM
3
ORDER
With consent of the parties, matter is heard finally.
This order shall govern the disposal of WP No. 19500/19 as well. For the sake of convenience, facts as narrated in WP No. 16341/19 are taken note of.
The petitioner has filed this petition while praying for following reliefs:-
"7A. To issue a writ in the nature of mandamus to official respondents may kindly be directed to disburse the petitioner's salary from April to May which has been perform lawful duty and allow her to perform duty along with all benefits include salary w.e.f. 01-06-2019 to the date of resume lawful duty i.e. when no break in service.
7A1. To issue writ of certiorari and the impugned orders P/13 passed by respondent No. 5 dated 17-09-2021 may kindly be set aside.
7A2. To initiate suo-moto contempt proceeding against the respondent No. 4 as well as Respondent No. 5 for demean the Hon'ble Court order dated 10-08-2021.
7A3. This Hon'ble Court may kindly be awarded 15% of rate of interest with relief Clause 7A because the petitioner is not gainfully employed anywhere.
B. Pass such other further orders, as this Hon'ble Court deems fit and proper in the interest of justice.
C. Any other relief/order/directions may also be awarded looking to the facts and circumstances of the case along with cost of this petition."
The counsel for the petitioner contends that the petitioner herein was appointed as Lecturer vide order dated 16-08-2007 (Annexue-P/1). The petitioner was designated as Assistant Professor on 01-04-2010 in the scale of Rs. 15600- 39100/-. The petitioner acquired the M.Tech degree after obtaining consent, which was accorded by the respondents/College and the said degree was submitted before the authority vide note-sheet dated 20-04-2014 Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 4 (Annexure-RJ/1). It is further contended that the petitioner was agitating the issue regarding anomalies in pay-scale but, the said grievance of the petitioner was not being paid any heed to.
Suddenly, w.e.f. 01-06-2019, the petitioner was restrained from performing his duties without any order. The petitioner then submitted representations before the respondents but, the representations were not considered. The petitioner was issued a notice on 13-07-2019. The said notice was replied by the petitioner vide his reply dated 18-07-2019 (Annexure-P/6) and thereafter, this petition was filed by the petitioner while praying for direction to the respondents to forthwith pay the salary to the petitioner from April to May, 2019 and petitioner be permitted to perform her duties. During pendency of the petition, as the representation of the petitioner was turned down vide order dated 17-09-2021, the said order has also been assailed, by way of an amendment in prayer clause.
Counsel for the petitioner submits that in the present case, the petitioner pursued her M.Tech degree and there was consent by the respondents and therefore, the respondents under the garb of the allegations of unauthorised absence could not have withheld the salary of the petitioner. The counsel also contends that the respondents cannot restrain the petitioner from performing her duties. The counsel while taking this court to different clauses of Statute-30 submits that the respondents are bound by the provisions of College- Code/Statute-30 inasmuch as, the said statute/College code has statutory force.
It is also contended by the counsel for the petitioner that the Apex Court in the case of Parshavanath Charitable Trust vs All India Council For Tech.Edu. & Ors. 2013(3) SCC 385 has held that all the rules and regulations, which are approved by All India Council of Technical Education are applicable Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 5 to aided and unaided institution. Therefore, in the present case, there is no order of termination of the petitioner's services inasmuch as, such an action can only be taken as per the provisions as mentioned in Clause-33 of Statute No.30. The respondents in absence of any written order cannot restrain the petitioner from performing her duties.
It is also contended by the counsel that the petitioner herein was never unauthorisedly absent and it was well within the knowledge of the respondents that the present petitioner was pursuing M.Tech degree and thus, the respondents under the garb of the impugned notice dated 13-07-2019 contained in Annexure-P/5, could not have restrained the petitioner to perform her duties and were also duty bound to pay the salary of the petitioner.
The counsel for the petitioner has also placed reliance upon the decision of the Apex Court in the case of Prabhakar Ramakrishna Jodh VS. A.L.Pande and another (1965) 2 SCR 713 and decision of this Court by Division Bench, Indore in WA No. 378/2018 ( Balkrishna Rathi Vs. State of M.P. and others) and other connected cases passed on 07-09-2021.
The counsel for the petitioner has also placed reliance upon the decision of co-ordinate Bench of this Court in WP No. 3047/2012( Sadhuram Shukla Vs. State of M.P. and others ) passed on 16-08-2018. It is also contended by the counsel that the Division Bench of this Court in WA No.378/2018 ( Balkrishna Rathi Vs. State of M.P. and others) has held that an employee cannot be prevented from performing her duties and the employer under the garb of principle of "No work no Pay" cannot be permitted to withhold the salary and emoluments of the concerned employee. The counsel thus, submits that the respondents be directed to the pay salary to the petitioner and Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 6 petitioner be permitted to join her duties.
Per contra, Shri Arpan Pawar, counsel for the respondents at the very outset submits that this case was listed before this Court on 05-03-2020 and on the same day itself, it was proposed by the respondents, that as the petitioner has been called upon to submit her M.E/M.Tech certificate before the concerned authority and if the petitioner submits the said documents, she may report on duty but, the petitioner did not accept the said proposal, which is evident from the perusal of interlocutory order dated 05-03-2020. The counsel thus, submits that in the present case, the conduct of the petitioner is required to be noticed inasmuch as, despite an open proposal by the respondents to allow the petitioner to join duties upon submission of her M.E/M.Tech certificate, the petitioner did not accept the same and thus, the conduct of the petitioner shows that the petitioner has not approached this Court with clean hands.
It is also contended by the learned counsel for the respondents that the petitioner herein was issued a show-cause notice on 13-07-2019 (Annexure-P/5) by which, the petitioner was called upon to explain the reasons as regards her absence from duty and the petitioner was further called upon to produce the certificate of M.E/M.Tech. The said notice was replied by the petitioner vide reply dated 18-07-2019 and in the entire reply of the petitioner, the petitioner nowhere referred any fact regarding M.E/M.Tech certificate. The counsel contends that in the present case, the petitioner herein has obtained a full-time Degree of M.Tech from Chouksey Engineering College, Bilaspur as a regular student. It was not conceivable as to how the petitioner pursued a regular degree at Bilaspur and simultaneously has discharged her duties with the respondent/College and the petitioner has never submitted her original Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 7 marksheet of M.Tech for verification and therefore, the respondents have issued a show-cause notice to the petitioner on 14-07-2022 contained in Annexure-R3/B and a charge-sheet has also been issued to the petitioner, which is contained in Annexure-R3/C. It is contended by the respondents that in the present case, the writ petition even otherwise, is not maintainable in view of the law laid down by the Apex Court in the case of St. Mary's Education Society & Anr. Vs. Rajendra Prasad Bhargava & Ors. 2022 SCC Online SC 1091.
Heard the rival submissions and perused the record.
In the present case, the moot question which arises for consideration as to whether the petitioner has obtained prior approval or consent of the employer to pursue the degree of M.Tech?
In the present case, though the petitioner has submitted that there was consent from the employer to the present petitioner to pursue M.Tech degree but, there is no document on record to demonstrate that upon obtaining the prior permission from the respondents, the petitioner proceeded to pursue the M.Tech degree from Chouksey Engineering College, Bilaspur. The notice dated 13-07-2019 contained in Annexure-P/5 is important and precisely deals with the allegations, which were levelled against the petitioner. In the said notice, there is allegation that the petitioner was unauthorisedly absent and the petitioner was further called upon to submit the information as regards the certificate of M.E/M.Tech Examination. The petitioner replied to the said show-cause, which is contained in Annexure-P/6. In the entire reply, the petitioner has not whispered a single word about pursuing M.Tech from Chouksey Engineering College, Bilaspur. It is nowhere stated by the petitioner in the entire reply that Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 8 she pursued the degree upon obtaining the permission of the respondents. It is also important to note that respondents have issued a show-cause notice dated 14-07-2022 and has also initiated disciplinary proceedings against the petitioner therefore, the allegations, which are to be mulled over by the authorities in disciplinary proceedings are with regard to pursuing M.Tech degree from Chouksey Engineering College, Bilaspur as a regular student while regularly performing her duties with the respondents at Jabalpur. As the petitioner has nowhere explained this conduct in the petition or rejoinder, therefore, in the considered view of this Court, the charges levelled against the petitioner require inquiry, which has already been initiated by the respondents.
Thus, the relief as prayed for by the petitioner in the present petition to pay her salary for the period from April to May, 2019 and to allow her to perform duties, is a question which would depend upon the result of the departmental inquiry, which has already been initiated against the petitioner.
In view of the aforesaid, as the respondents have initiated a disciplinary proceeding against the petitioner and a show-cause notice has also been issued to the petitioner, it is for the petitioner to put forth her defence in the disciplinary proceedings and the entire relief, which have been prayed for in the present petition, depend upon the fate of disciplinary proceedings initiated against the petitioner.
As the judgments relied upon by the petitioner are distinguishable on facts having no applicability to the facts of case in hand, the same are of no assistance to the petitioner.
In view of the aforesaid analysis, no interference is warranted and the Writ Petition No. 16341/19 and WP No. 19500/19 stand dismissed with no order as to costs.
Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM 9(MANINDER S. BHATTI) JUDGE PG Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 12/2/2022 12:29:04 PM