Bombay High Court
Nagar Yuvak Shikshan Sanstha, Nagpur ... vs Sanjay S/O. Vidyasagar Soni And Others on 8 November, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp147.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 147 OF 2016
1) Nagar Yuvak Shikshan Sanstha,
a Trust registered under the
Maharashtra Public Trusts Act, 1950
having Office at Atrey Layout,
Pratap Nagar, Nagpur - 440 0022.
2) Yashwantrao Chavan College of
Engineering, Wanadongri, Nagpur-
441100 through its Principal. .... PETITIONERS
VERSUS
1) Sanjay s/o Vidyasagar Soni,
Aged about 51 years,
Occupation - Service,
R/o 195, Friends Colony, Katol
Road, Nagpur - 440 013.
2) Jagruti Borkar,
Aged about 20 years,
Occupation - Student,
R/o Plot No.5, Flat No.M-1,
Sanjivani Apartment, Kashinagar,
Rameshwari, Nagpur - 440 027.
3) The Chairman,
Sexual Harassment Redressal
Committee, Yashwantrao Chavan
College of Engineering, Wanadongri,
Nagpur -441 110.
4) Rastra Sant Tukdoji Maharaj Nagpur
University, Civil Lines, Nagpur,
through its Registrar. .... RESPONDENTS
::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
2 wp147.16
______________________________________________________________
Shri Adwait Manohar, Counsel for the petitioners,
Shri S.P. Bhandarkar, Counsel for respondent 1,
Shri S.D. Dharaskar h/f. Shri J.Y. Ghurde, Counsel for respondent 4,
None for respondents 2 and 3.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 22-10-2019
DATE OF PRONOUNCING THE JUDGMENT : 08-11-2019
JUDGMENT :
The petitioners are assailing the judgment and order dated 23-9-2015 rendered by the University and College Tribunal, Nagpur ("Tribunal" for short) in Appeal N-19/2015 whereby the appeal preferred by respondent 1 challenging the termination order dated 21-1-2015 is allowed and the petitioners are directed to reinstate respondent 1 with 50% back-wages.
2. The controversy lies in a narrow compass and suffice it to only state the basic facts.
(i) Respondent 1 was appointed as a Lecturer in petitioner 2-
College on 28-8-1986.
(ii) Pursuant to a complaint of sexual harassment lodged by respondent 2-Student, an enquiry was conducted under the provisions of the Sexual Harassment of Women at Workplace (Prevention, ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 3 wp147.16 Prohibition and Redressal) Act, 2013 ("Act of 2013" for short) by a Five Member Committee which submitted its report indicting respondent 1 of sexual harassment and proposing that strict disciplinary action be initiated against respondent 1. The petitioners issued show cause notice dated 12-1-2015 to respondent 1 who submitted his reply to the show cause notice on 14-1-2015.
(iii) The petitioners terminated the services of respondent 1 vide order dated 21-1-2015.
(iv) Respondent 1 challenged the order of termination before the Tribunal by preferring appeal under Section 59 of the Maharashtra Universities Act, 1994, which is allowed by the judgment and order impugned.
3. The copy of the memo of appeal preferred by respondent 1 is not placed on record. However, from the reply to the memo of appeal and the application for interim relief, filed on behalf of the petitioners and the judgment and order of the Tribunal, the grounds of challenge to the termination order which are discernible, are as follows:
Respondent 1 questioned the findings recorded by the Enquiry Committee as vitiated by procedural and substantive irregularities.::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
4 wp147.16 Respondent 1 further contended that the findings suffer from non application of mind. Respondent 1 then contended that the termination is null and void since the prior approval to the termination of the services of respondent 1 of the Management Council of the University as is envisaged by Statute 53 framed under the provisions of the Maharashtra Universities Act was not obtained.
4. The petitioners defended the termination order on the premise that the guilt of respondent 1 was established in the enquiry, which was conducted fairly and after giving every opportunity to respondent 1 to defend himself. The petitioners contended that the procedure followed was consistent with the guidelines and norms laid down by the Hon'ble Supreme Court in Vishakha and others vs. State of Rajasthan and others, AIR 1997 SC 3011 and the provisions of the Act of 2013. The petitioners further contended that in view of the enunciation of the Constitution Bench of the Hon'ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, prior approval envisaged by Statute 53 of the Maharashtra Universities Act, 1994 was not necessary since the petitioners are not recipients of grant
5. The Rashtra Sant Tukdoji Maharaj Nagpur University filed ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 5 wp147.16 an affidavit in response dated 10-7-2015, paragraphs 4 and 5 of which read thus :
"4. The Respondent University submits that, the inquiry committee of the respondent college and its report is not submitted to the Respondent University. That, it is mandatory on part of the management to submit the said report to the respondent University and to take approval to the action of termination from the answering respondent University.
5. The decision was taken as per the report of the committee by the college that the respondent University is unaware of action of management college regarding enquiry and termination of the appellant."
6. The Tribunal recorded a finding that the enquiry was conducted in a fair manner. The Tribunal then considered the submission of respondent 1 that the termination is null and void in the absence of prior approval of the University under Statute 53 of the Maharashtra Universities Act and the submission in rebuttal that such prior approval was not necessary in view of the enunciation in T.M.A. Pai Foundation v. State of Karnataka.
7. The Tribunal rejected the submission of the petitioners which was premised on the decision in T.M.A. Pai Foundation v. State of Karnataka, on the assumption that the said judgment relates only to minority unaided institutions. The Tribunal then held that the termination is illegal since the prior approval of the Management ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 6 wp147.16 Council was not obtained. The Tribunal considers the issue thus :
"8. Shri Dewani, the learned counsel for appellant invited my attention to Statute 53 of the Nagpur University. Proviso to Clause No.5 of Statute 53 says that a teacher who is confirmed prior to the commencement of the Statute or in case of a teacher covered by para 4, no notice of termination shall be issued or termination made effective, without the prior approval of the Management Council of the University. Statute No.10 of 2010 says that if a proposal is received for termination, the Management Council shall constitute a committee of three persons and after the said committee submits its report and recommendations for consideration before the Management Council, the Management Council shall take final decision on the basis of recommendations of the committee. It is thus clear that the approval of the Management Council was absolutely necessary before termination of the services of the appellant. In view of this, the termination of the appellant must be held to be illegal and he is entitled to be reinstated in service."
8. The Tribunal has not recorded any reason for restricting the back-wages to 50% nor has the Tribunal addressed the issue of the relief to be granted to an employee in the event the termination is found unsustainable due to the failure of the employer to obtain the statutory prior approval.
9. Shri Adwait Manohar, learned Counsel for the petitioners has three submissions to canvass. The first submission is that the requirement of obtaining prior approval to termination of an employee, ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 7 wp147.16 who is held guilty of misconduct, would not apply to an, unaided private institution and that the Tribunal clearly erred in assuming that the enunciation in T.M.A. Pai Foundation v. State of Karnataka is restricted to minority unaided institutions. The second submission, which is in the alternate, is that a conjoint reading of Statute-53 and Ordinance 24 shall reveal that the prior approval of the University is not necessary if the services of a confirmed employee are terminated in view of proved misconduct. The third and last submission of Shri Adwait Manohar, learned Counsel, is that the Tribunal erred in directing reinstatement without giving an opportunity to the petitioners to seek and obtain the approval, assuming arguendo that such approval was necessary.
10. In rebuttal, Shri S.P. Bhandarkar, learned Counsel for respondent 1 would submit, that the provisions of Statute 53 extend a procedural safeguard and protective umbrella in favour of confirmed employees and the rationale is to minimize if not obliterate the possibility of arbitrary or unreasonable termination. Shri S.P. Bhandarkar, learned Counsel would submit that similar provisions which sub-serve the purpose of providing security of tenure and to regulate the terms and conditions of employment are held applicable ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 8 wp147.16 even to private unaided institutions. Shri S.P. Bhandarkar, learned Counsel would submit that the enquiry which is allegedly conducted in terms of the provisions of the Act of 2013 is not a substitute for a regular domestic enquiry and that the Tribunal lost sight of the aforesaid aspect while holding that the enquiry was conducted in a fair manner. Shri S.P. Bhandarkar, learned Counsel would submit that the issue is not whether the enquiry conducted ostensibly in terms of the Act of 2013 is fair or not, the issue is whether an employee could be terminated on the basis of the report of the enquiry committee constituted under the provisions of the Act of 2013 without initiating action under the Service Rules and in particular without conducting a full-fledged domestic enquiry. Rebutting the submission of Shri Adwait Manohar, which is premised on the inter play Statute 53 and Ordinance 24, Shri S.P. Bhandarkar would submit that the issue is not res integra and is settled by more than one Division Bench decisions of this Court. Shri S.P. Bhandarkar, learned Counsel would submit that the Tribunal did not commit any error in directing reinstatement with 50% back-wages in the teeth of the incontrovertible failure of the management to obtain prior approval to the termination.
11. Shri Adwait Manohar, learned Counsel for the petitioners ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 9 wp147.16 and Shri S.P. Bhandarkar, learned Counsel for respondent 1 have invited my attention to several decisions to buttress the respective submissions. I propose to refer to only few of the plethora of decisions cited, since the questions of law which are raised, are in my considered view, not res integra.
12. Statute 53, which was approved by the Executive Council on 07-10-1977 and by the Senate on 15-10-1977 received the assent of the Chancellor on 02-1-1978. Statute 53 reads thus :
"53. Statute Providing for the Confirmation of the Teachers in Affiliated Colleges :
1. This Statute may be called "Statute Providing for the confirmation of teachers working in affiliated colleges."
2. This Statute shall come into force with effect from the date of the assent of the Chancellor.
3. For the purposes of this Statute :-
(i) "Affiliated College" means a college affiliated to Nagpur University under Section 43 of the Nagpur University Act, 1974 and includes a College deemed to be affiliated college under Section 91 of the said Act, but shall not include a college managed and maintained by the State Government.
(ii) "Teacher" means a teacher working as such in an affiliated college as defined above and shall include the Principal, the Vice-Principal and Physical Education Teacher.
4. A Teacher shall subject to the procedure of Selection and appointment, be appointed in a clear vacancy in the first instance on probation for two years (24 months) from the date of his appointment, at the end of which he shall ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 10 wp147.16 be confirmed on the expiry of which he shall either be confirmed or his services dispensed with, provided that notice of such confirmation or termination of services shall be given at least one month before the due date, in absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is deemed to be confirmed in service :
Provided that if any teacher already in service has completed two years service temporary/probation in clear vacancy, he will be deemed to be a confirmed teacher.
Explanation : It is hereby clarified that clear vacancy means a vacancy which is not in a lien vacancy or leave vacancy and that vacancy/post is in vogue in the Institution for not less than four years.
5. The termination of the services of any teacher shall take place only in accordance with the provisions of the College Code Ordinance (No.24) and contract appended thereto.
Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4 above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur University."
13. Statute 10 of 2010 provides the procedure to be followed by the University for grant of approval to issue notice of termination under Statute 53. Statute 10(4) to (12) reads thus :
"4. Every proposal submitted by the Management/Local Managing committee/Principal of the affiliated college for grant of approval for issuing notice of termination to a confirmed teacher as contemplated under Clause 5 of Statute 53 shall be placed for consideration of the Management council and the decision in that behalf will be taken by the Management Council of the University.::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
11 wp147.16
5. In order to evaluate the proposal, the Management Council shall constitute a sub-committee of three persons and after receipt of the proposal by the university, every such proposal shall be placed for consideration by the Registrar before the sub-committee constituted by the Management council.
6. The sub-committee shall evaluate the proposal with regard to the following issues.
(a) Whether the action initiated against the confirmed teacher by the Management/Local Managing committee/Principal of the college was bonafide and was not actuated by malice.
(b) Whether the requisite opportunity was granted by the inquiry officer to the teacher in the proceedings so as to comply with the minimum requirements of the principles of natural justice, and
(c) Whether the proposed punishment is commensurate with the degree of misconduct proved against the teacher.
7. It would be competent for the sub-committee to issue notice to the Management/Local Managing council/Principal as well as to the teacher concerned for producing on record any additional document, if felt necessary and it would also be within the authority of the sub-committee to hear the parties in case it is felt necessary by it.
8. After evaluating the proposal and after collecting such additional material as would be deemed necessary by the sub-committee, the sub-committee shall make recommendations in writing to the Management Council with regard to the said proposal clearly stipulating therein whether the university should or should not grant approval to the proposed action along with the requisite reasons there for.
9. The recommendations of the sub-committee shall be placed for consideration before the Management Council and the Management Council shall take the final decision on the basis of the recommendations of the sub-committee. It would be competent for the Management Council to over-rule the recommendations of the sub-committee for the specific ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 12 wp147.16 reasons to be recorded in that behalf.
10. After the decision of the Management Council in the matter, the Registrar of the University shall communicate the decision of the Management council to the concerned Management/Principal under his signature.
11. The university shall endeavor to decide the proposal finally within a period of three months from the date of receipt of the proposal, as far as possible.
12. If the university finally refuses the approval for the proposed action. The same shall stand annulled forthwith."
14. Ordinance 24 which is titled as the "College Code" came into effect from the academic session 1967-68 and Article 38 thereof reads thus :
"38. (1) The appointments of the teachers of a College, other than temporary teachers for a period not exceeding one academic year shall be made by the Governing Body of the College, after inviting applications for the posts by public advertisement, and after considering the recommendations of the Selection Committee as per Article 39.
The letter of appointment of a temporary teacher shall specify the period of notice of termination on each side, but it shall not be less than one month.
A temporary teacher who resigns his services after giving notice shall not be entitled to his summer vacation salary.
(2) Such teachers shall be appointed on a written contract in the form prescribed in Schedule-A."
15. Shri Adwait Manohar, learned Counsel emphasized on ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 13 wp147.16 Clause 8 of Schedule-A which prescribes the format of the contract with members of the staff in affiliated colleges, which reads thus :
"SCHEDULE-A Agreement with Members of Staff in Affiliated Colleges Agreement made this ----------- day of ------- 19-------- between the ------------------- of the first party and the Governing Body of the -------------- College, through its Chairman/Secretary of the Second part.
Whereas the College has engaged the party of the First Part to serve the college as ------------- subject to the conditions and upon the terms hereinafter contained. Now this agreement witnesseth that the party of the First Part and the College hereby contract and agree as follows :-
1. That agreement shall begin from the -------------
day of --------- 19 ---------------- and shall be determinable as hereinafter provided.
2. That the party of the first part is employed in the first instance, on probation for a period of one year and shall be paid monthly salary of Rs.--------- the period of probation may be extended by such further period as the party of second part may deem fit, but the total period of probation shall, in no case exceed two years.
Provided during the probation period, of the benefit of normal increment which fails due after completion of one year's service is given.
3. That the party of the first part shall be entitled to the benefit of the Provident Fund in accordance with the provisions laid down by the College in this connection.
4. That the age of superannuation will be sixty years, the actual time of retirement for the party of the first part to be last day of the academic year in which he attains the age of sixty.
Provided that the Academic Council may, on the ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 14 wp147.16 recommendation of the Governing Body, sanction extension for one year at a time upto the age of 65 years or for five such extensions at the most.
5. That the party of the first part shall be entitled to leave in accordance with the rules for the time being in force in the Institution.
6. That the party of the first part shall devote his whole time to the duties of his appointment and shall not engage, directly or indirectly, in any trade or business, or without the sanction of the Chairman of the Government Body, take up any occupation which in his opinion is likely to interfere with the duties of his appointment.
7. That the party of the first part shall, in addition to the ordinary duties, perform such duties as may be entrusted to him by the Principal in connection with the social intellectual or athletic activities of the college.
8. After confirmation the services of the party of the first part can be terminated only on the following grounds :
(a) Wilful and persistent neglect of duty,
(b) Misconduct,
(c) Breach of any of the terms of contract,
(d) Physical or mental unfitness,
(e) Incompetence,
(f) Abolition of the posts.
Provided firstly, that the plea of incompetence shall not be used against the party of the first party after he has served the part of the second part for five years or more.
Provided secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Nagpur University.
9. Except when termination of service has taken place under sub-clause (a) or (b) of Clause (8), neither the party of the first part nor the party of the second part shall terminate this agreement except by giving to the other party three calendar months notice in writing or by paying to the other party a sum equivalent to thrice the monthly salary, which the ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 15 wp147.16 party of the first part is then earning.
Notice period of termination of service by or of the staff on temporary or probationary appointment should be restricted to one month only.
10. Nothing in this agreement shall affect the right of the party of the first part to refer any difference or dispute arising out of this agreement to the Tribunal of Arbitration constituted under the provisions of the College Code Ordinance (No.24 of Nagpur University).
................, 19 Signed this.............. day of .........
(1)(2) In the presence of -
(1)
(2)."
16. I have no doubt in my mind that the provisions of the Statute and the College Code which mandate that a prior approval must be obtained before terminating the services of an employee sub- serve the purpose of ensuring security of tenure and to insulate the employees from arbitrary or whimsical decisions of the management. The question which falls for consideration is, whether such or similar provisions which seek to regulate the terms and conditions of employment and to extend a protective umbrella to the employees from victimization fall foul of the ratio in T.M.A. Pai Foundation v. State of Karnataka ? The answer must clearly be in the negative. ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
16 wp147.16
17. In Raj Kumar vs. Director of Education and others, (2016) 6 SCC 541, the applicability of Section 8(2) of the Delhi School Education Act, 1973 to private unaided institutions fell for consideration before the Hon'ble Supreme Court. Section 8(2) of the Delhi School Education Act, 1973 Act reads thus :
"8(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director."
18. The Hon'ble Supreme Court considered the Constitution Bench decision in T.M.A. Pai Foundation v. State of Karnataka and observations in paragraphs 50 of the decision in Raj Kumar vs. Director of Education and others read thus :
"50. The Division Bench of the Delhi High Court, thus, erred in striking down Section 8(2) of the DSE Act in Kathuria Public School by placing reliance on the decision of this Court in T.M.A. Pai, as the subject-matter in controversy therein was not the security of tenure of the employees of a school, rather, the question was the right of educational institutions to function unfettered. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management."::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
17 wp147.16
19. I am, therefore, not persuaded to accept the submission that the petitioners are not required to obtain the prior approval of the Management Council-University, which submission is premised on the non-receipt of grant.
20. Shri Adwait Manohar, learned Counsel did argue that the proviso to Article 5 of Statute 53 which mandates prior approval of the Executive Council of the University before issuing notice of termination applies only to a probationer. The submission is, it is only before terminating the services of a probationer that the management is required to obtain the prior approval of the Executive Council of the University. Shri Adwait Manohar, learned Counsel would submit, that if it is held that the proviso to Article 5 of Statute 53 also applies to a confirmed employee, the proviso would be in conflict with Clause 8 of Schedule A to Ordinance 24. Shri Adwait Manohar, learned Counsel would argue that Article 5 of Statute 53 which provides that the termination of the services of any teacher shall take place only in accordance with the provisions of the College Code and contract appended thereto shall be rendered redundant if the proviso is interpreted to take within its sweep confirmed teachers. I am afraid it is too late in the day to consider the said submission since the law is ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 18 wp147.16 settled by at least two Division Bench decisions.
21. The interplay between the provisions of Statute 53 and the College Code is considered by the Division Bench in College of Engineering of Yeshwant Rural Education Society, Sewagram vs. Mrs. Asmita Basole and another, 1987 Mh.L.J. 676. Paragraphs 11 and 12 of the said decision read thus :
"11. This takes us to the last point - Is termination bad for want of prior approval of the Executive Council in view of Statute 53, which has received the assent of the Chancellor on 2nd January 1978. Before Statute No. 53 was brought into force, there was no deemed confirmation of probationary teachers in affiliated colleges. Statute 53 is a Statute providing for confirmation of teachers working in affiliated colleges. Clause 4 provides for deemed confirmation. Every teacher appointed in a clear vacancy has to be appointed in the first instance on probation for two years at the end of which he shall be confirmed. His services can be dispensed with provided at least a month before expiry of probationary period notice is given, in the absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is confirmed. Clause 5 provides that termination of services of any teacher shall take place only in accordance with the provisions of the College Code. The provision reads thus :
"Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4 above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur University."
By this proviso for the first time prior approval of the Executive Council before termination of a college teacher is ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 19 wp147.16 made mandatory. No such provision existed before either in the Nagpur University Act or the Statutes or Ordinances framed thereunder. Crucial question is, is this mandate intended to be applied also in the case of probationer whose services are sought to be terminated before he is confirmed. Previous to 2-1-1978 the subject was governed by Agreement in Schedule-A of the College Code - Ordinance No. 24. The said agreement provided for initial probation period of one year, which was extendable. The clause 8 of the Agreement reads thus :
"8. After confirmation the services of the party of the first part can be terminated only on the following grounds :-
(a) Willful and persistent neglect of duty.
(b) Misconduct,
(c) Breach of any of the terms of contract,
(d) Physical or mental unfitness,
(e) Incompetence,
d) Abolition of the posts :
Provided, firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more:
Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Nagpur University." Clause 8 created embargo on the termination of a confirmed teacher under clauses (c) and (f) without the previous approval of the Nagpur University. Thus, for termination on grounds (a), (b), (d) or (e) no such approval was necessary. Proviso to clause 5 of Statute 53 for the first time created a bar against issuance of notice of termination or making the termination effective without prior approval of the Executive Committee in every case. In our view Clause 5 applies to a teacher who is already confirmed prior to 2-1-1978 and to a teacher deemed to be confirmed under Clause 4, the scheme and intention of Statute 53 being to prohibit the management from issuing notice of termination or to make effective the ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
20 wp147.16 termination of all those teachers who stood confirmed before 2-1-1978 and who are deemed to be confirmed subsequent to that date. It does not appear that the bar is meant to be operated against the termination of a teacher during probationary period before expiry of which he has no right to the post.
12. The mandatory requirement of obtaining previous approval of the Executive Committee before issuance of notice of termination to a probationer does no appear to be practically feasible and has practical difficulties considering the scheme of Statute 53. It is pertinent to notice that the management has every right to judge the performance of a probationer till the last date, in this case e.g. expiry of 23rd month of service as per Clause 4. How can approval be obtained immediately ? If no approval is there, no notice of termination can be given and if no notice is given there would be automatic confirmation. This will lead to absurd results which cannot be held to be intended. Hence on this ground also it is not possible to accept the submission that previous approval referred to in Clause 5 of the Statute is referable also to a probationer. Our attention was invited by Shri De to the case of K.G.K. (Post Graduate) College Managing Committee through Shri S. N. Khanna its President v. Vice Chancellor of Agra University, Agra (1971 (1) Services Law Reporter 146) which deals with Statute 30 sub-clause (8) of the Agra University Act. The scheme of the said Act and the Statute is neither quoted in the judgment nor is shown to us. But it appears that accepted position has been that Statute 30(9) in terms provides that decision to terminate a probationer shall not be effective till it is approved by the Vice-Chancellor. The point in the said case was that whether this provision was ultravires of the Act to which answer was recorded by the High Court in the negative. Thus the said decision is of no assistance to interpret Statute 53, language of which is altogether different and which also creates a bar against the very issuance of the notice."
22. The submission before the Division Bench in College of ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 21 wp147.16 Engineering of Yeshwant Rural Education Society, Sewagram vs. Mrs. Asmita Basole and another was that the termination of the probationer is bad for want of prior approval of the Executive Council mandated by the proviso to Article 5 of Statute 53. The Division Bench has held that Article 5 of Statute 53 applies to a teacher who is already confirmed prior to 02-1-1978 and to a teacher deemed to be confirmed under Article 4 of Statute 53 and the proviso to Article 5 of Statute 53 for the first time created a bar against issuance of notice of termination without prior approval of the Executive Council in every case (emphasis supplied). It is, therefore, not possible to countenance the submission of the learned Counsel Shri Adwait Manohar that in view of Clause 8 of the Contract Schedule-A to Ordinance 24-College Code prior approval would not be necessary if a confirmed teacher is to be terminated for proved misconduct.
23. In Wainganga Bahu-Uddeshiya Vikas Sanstha, Nagpur and others vs. Diwakar s/o Maloji Kamble and others, 2013(2) Mh.L.J. 804, the observations, which are of some significance in the context of the issue involved, read thus :
"32. The submission made by Shri Bhangde, the learned Senior Advocate for the appellants that in fact there is no formal order of confirmation in service coupled with the approval subject to the Government Resolution dated ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 22 wp147.16 22-12-1995 showing no permanent approval, clearly indicated that these employees could not claim the legal status of confirmed teacher in order to claim protection. There is a further submission made by him that even the deemed confirmation spoken of in paragraph Nos. 4 and 5 of the Statute 53 cannot be read de hors the mandatory requirement of possessing NET/SET qualification and that is why even if there is a protection extended by Government Resolution dated 22-12-1995, the same may continue to apply till their retirement but when it comes to examine the legal status in the meaning of the said provisions, the learned Single Judge erred in extending the same to them. Shri Bhangde, the learned Senior Counsel cited the decision in the case of Pramod Kumar v. U.P Secondary Education Services Commission and others, reported in (2008) 7 SCC 153 and contended that any appointment made in violation of the required qualification must be held to be a nullity.
33. We have carefully considered the submissions made by the learned Counsel for the appellants so also the submissions which are made by learned Counsel for the respondents on this aspect and after going through the findings recorded by the tribunal as well as the learned Single Judge, we are inclined to agree with the view taken by the learned Single Judge. The said provision in Statute 53 was brought into force on 15-10-1977/2-1-1978. The mandate of UGC providing for NET/SET qualification came into force w.e.f 1991 for the first time. The learned Single Judge has then made a detailed discussion about the object of the Government Resolutions dated 22-12-1995, 22-5-1998 and 18-10-2001 and we do not think it necessary to repeat the said discussion here. We, however, would like to mention that the preamble of Government Resolution dated 18-10-2001 clearly shows that it was not possible to apply the NET/SET norms mandated by U.G.C in an abrupt manner in the State and to expel the lecturers from the Colleges who do not possess NET/SET qualification. The reason is as stated in the preamble that there are around 6000 lecturers appointed between 19-9-1991 to 11-12-1999 in the Universities and Colleges in the State and they are without NET/SET qualification. To disqualify or remove these 6000 NET/SET lecturers at a time would create chaotic condition in the State and that is why it ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 23 wp147.16 was decided to protect their services even till their retirement in the absence of NET/SET qualification. The learned Single Judge has thus held that such lecturers obviously including the aforesaid three delinquent employees appointed between 19-9-1991 to 11-12-1999 formed a separate class who would continue in service till the date of retirement. Looking to the object of extending protection from service that too as aptly stated by the Full Bench of this Court in the case of Premlata Sudhakar Sathe v. Governing Body of G.S Tompe College, reported in 1981 Mh.L.J 332 about which the learned Single Judge has made a detailed reference in his judgment, we concur with the view taken by the learned Single Judge that it would be a contradiction of sorts if the services of the said teacher are allowed to be terminated without prior permission of the University as required by Statute 53(3) and it would lead to an anomalous situation wherein on the one hand the State Government deems it fit to protect the services of a teacher till his or her retirement despite lack of NET/SET, and on the other hand on interpretation of Statute 53, the Management is allowed to terminate his services without prior permission from the University, if it so chooses. The very object of extending protection after completion of 24 months service by bringing the provision in the year 1977-78, long before U.G.C norms cannot be made nugatory and the rule of 'hire and fire' cannot be allowed to be promoted. It would be a travesty of justice as observed by the learned Single Judge, if these employees, who have rendered continuous service for 13 to 14 years should not be granted protection.
34. We further find from the reading of paragraph Nos. 4 and 5 of the Statute 53 and the Full Bench judgment in the case of Premlata Sudhakar Sathe v. Governing Body of G.S Tompe College (supra) that confirmation being automatic in service, there is no requirement of issuance of formal order of confirmation for the purposes of extending them protection about prior permission. It is a well settled legal position as is found in the instant case that there is a specific provision providing for confirmation in service if a person has worked for a period of 24 months from the date of his appointment. It is not the case of the Management nor has been established anywhere on record that these three employees who worked for 13-14 years did not work on a clear sanctioned post and ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
24 wp147.16 therefore, it is not necessary for us to meet the contrary findings recording by the College Tribunal as the learned Single Judge has taken care of the said aspect. We are thus of the clear view that the learned Single Judge has made a detailed discussion on this issue and arrived at a correct conclusion that prior permission of the University before terminating the services of these three employees was required and that having not been obtained the termination orders were illegal."
24. I have no hesitation in holding that the Tribunal was right in recording the finding that the termination of respondent 1 is illegal and indeed null and void for want of the mandatory approval envisaged by the proviso to Article 5 of Statute 53.
25. The Tribunal has recorded a finding that the enquiry was conducted fairly. I do not have the benefit of perusing the memo of appeal. However, it does not appear that the Tribunal was called upon to consider the submission canvassed by Shri S.P. Bhandarkar that a finding arrived at by a committee constituted under the Act of 2013 that sexual harassment is proved can culminate only in a recommendation to the management to initiate action for misconduct. The submission is that the management cannot base the termination on the finding recorded in such enquiry without taking recourse to the service rules. Shri S.P. Bhandarkar, learned Counsel would rely on the ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 25 wp147.16 Division Bench decision of this Court in State of Maharashtra and others vs. Hiralal Rama Jadhav, (2018) 1 Mh.L.J. 949, to buttress the said submission. In view of the course which I intend to adopt, it would not be necessary to record any definite finding on the said submission, which is left expressly open for decision by the competent authority of the University.
26. Coming to the relief to which respondent 1 is entitled, Shri Adwait Manohar, learned Counsel is justified in submitting that the Tribunal erred in straight away directing reinstatement albeit with 50% back-wages. Shri Adwait Manohar, learned Counsel would submit that the appropriate course would be to relegate the petitioners to the stage of obtaining the prior approval of the competent authority. Several decisions are pressed in service by both the learned Counsel Shri Adwait Manohar and Shri S.P. Bhandarkar. It would not be necessary to refer to the decisions cited since the law is well entrenched. The management shall have to be given an opportunity to seek and obtain the prior approval of the competent authority as is envisaged by the proviso to Article 5 of Statute 53 and to that extent the judgment of the Tribunal shall have to be suitably modified. ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::
26 wp147.16
27. In the light of the discussion supra, the judgment of the Tribunal is modified as follows :
(i) The direction of reinstatement and payment of 50% back-
wages is set aside.
(ii) The termination dated 21-1-2015 is declared null and void.
(iii) The petitioners are directed to notionally reinstate respondent 1 with effect from 21-1-2015 and to pay the subsistence allowance with effect from the date of the termination, the arrears of which shall be paid within thirty days.
(iv) The petitioners are at liberty to move an appropriate application for seeking the approval from the appropriate authority under Statute 53 to effect the termination.
(v) The appropriate authority of the University shall decide such application for approval within two months of the receipt thereof.
(vi) The appropriate authority of the University shall hear every stakeholder including respondent 1 while deciding the issue of approval.
(vii) It is made expressly clear that the appropriate authority of the University shall also consider whether the enquiry conducted against respondent 1 under the Act of 2013 can be the basis of ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 ::: 27 wp147.16 termination and to further consider any challenge, procedural or substantive, to the enquiry.
28. The petition is disposed of in the afore-stated terms.
JUDGE adgokar ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 04:22:50 :::