Madhya Pradesh High Court
Dr. D.S. Baghel vs Chairman, Governing Body Hitkarni ... on 25 July, 2003
Equivalent citations: 2003(3)MPHT404
ORDER S.P. Khare, J.
1. This is a writ petition under Articles 226 and 227 of the Constitution of India for quashing order dated 10-6-2002 (Annexure P-7) by which the services of the petitioner have been terminated and for a direction to the respondent Nos. 1 and 2 to reinstated the petitioner in service.
2. It is not in dispute that the petitioner was appointed as "honorary" Assistant Professor in Physics in Hitkarni Science, Commerce and Arts College, Jabalpur, affiliated to Rani Durgawati University by letter dated 1-9-1994 (Annexure P-1) at a monthly honorarium of Rs. 700/-. He was given pay-scale of Rs. 2200-4000 from 1-1-1999 by letter dated 9-2-1999 (Annexure P-2). The post was then advertised for regular appointment as per Annexure P-4. A Selection Committee was constituted and the petitioner was interviewed. He was appointed on regular basis in the pay-scale of Rs. 2200-4000 by order dated 17-10-2001 (Annexure P-6) on the recommendation of the Selection Committee. His services were terminated by order dated 10-6-2002.
3. The petitioner's case is that he was a permanent employee of the College and his services could not be terminated without holding a departmental enquiry. His case is that the order passed against him is of punitive nature. It is also pleaded that the rule of "last come first go" has not been followed in dispensing with the services of the petitioner and that is violative of Articles 14 and 16 of the Constitution of India.
4. The case of the respondent Nos. 1 and 2 is that the services of the petitioner were temporary and he has been given "discharge simpliciter" during the period of his probation. The removal order is not punitive. It is also stated that there were several complaints against the petitioner and his conduct was not good. He used to ask the students of his class for "private coaching" and demand a larger amount from each of them for that purpose. He used to help such students by adopting unfair means. In April, 2002 examinations the University appointed its own Superintendent for conducting the examinations in the College. One of the students committed suicide and the petitioner was "lifted by angry students, was beaten and handed over to the police". The Vice-Chancellor of the University also wrote two letters to the President of the College for taking suitable action.
5. The learned Counsel for both the sides have been heard. The crucial question is whether the petitioner was a permanent employee or on probation when the impugned order of termination of his services was passed. As stated above the petitioner was initially appointed on "honorary" basis and he was given pay scale from 1-1-1999. This was, however, not an appointment as per Rule 16 given in the Statute No. 28 framed by the University under the M.P. Vishwavidyalaya Adhiniyam, 1973. The post was advertised for regular appointment and after the selection by the Selection Committee the petitioner was appointed on regular basis as per order dated 17-10-2001. This was the appointment consistent with Rule 16 of the Statute No. 28. In the appointment letter dated 17-10-2001 (Annexure P-6) it is not mentioned that the appointment was on probation or of permanent nature. This has to be read with Rule 20 in the Statute No. 28 which provides that the appointment would be on probation for a period of one year. In view of this provision in the Statute the petitioner's appointment by order dated 17-10-2001 would be deemed to be on probation. He was removed on 10-6-2002, that is before the expiry of the period of probation. Therefore, the petitioner was not a permanent employee on the date his services were terminated.
6. The respondent Nos. 1 and 2 have produced sufficient material on record to demonstrate that the petitioner's services were terminated in bona fide exercise of the power to give "discharge simpliciter". No stigma has been attached to the petitioner in the order of termination. The employer has the right to decide the suitability of an employee during the period of probation. The termination is not founded on specific misconduct and, therefore, no departmental enquiry was needed. The employer dispensed with the services of the petitioner as his work and conduct were not satisfactory. The two letters dated 7-12-2001 (Annexure R-11) and dated 18-4-2002 (Annexure R-13) go to show that it was necessary to cleanse the College from those whose conduct was not good and bring back the discipline. Therefore, the action taken by the Management of the College cannot be said to be malafide or in colourable exercise of power. Discipline and proper environment are the sine qua-non in an educational institution. The termination is in conformity with Rule 28 of the Statute. The impugned order cannot be said to be stigmatic when it is examined on the touchstone laid down by the Supreme Court in P.N. Verma v. SGPGI, (2002) 1 SCC 520, where it has been held : "One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry, (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. This decision has been followed by this Court in A.K. Pande v. State of M.P., 2003(3) M.P.H.T. 40. This is also the law laid down in H.F. Sangati v. High Court of Karnataka, AIR 2001 SC 1148. The exercise of the power to terminate the services of the petitioner in the present case without attaching any stigma cannot on the facts of the case be said to be arbitrary or malafide.
7. It is also argued on behalf of the petitioner that the rule of 'last come first go' has not been followed. That rule is not required to be followed where the removal is on the ground of unsuitability or unsatisfactory performance. The Supreme Court has held in State of U.P. v. K.K. Shukla, (1991) 1 SCC 691, that the principle of 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on account of retrenchment. In the event of retrenchment the principle of 'last come first go' is applicable under which senior in service is retained while the junior's services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. If out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16. If a junior employee is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service. If this principle is not accepted there would be discrimination and the order of termination of a junior employee would be unreasonable, and discriminatory.
8. In view of the above discussion the impugned order by which the services of the petitioner have been terminated does not suffer from any illegality. The petition is dismissed.