Bombay High Court
Citizen Education Society Through Its ... vs Dhananjay S/O Ambadas Dhabe And Others on 20 February, 2023
Author: M. W. Chandwani
Bench: Sunil B. Shukre, Vinay Joshi, M. W. Chandwani
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Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2057 OF 2020
1. Citizen Education Society .Petitioners
through its Chairman/President
C/o. Ishwar Deshmukh College of
Physical Education, Krida Chowk,
Hanuman Nagar,
Nagpur - 24.
2. Ishwar Deshmukh College of
Physical Education through its
Principal, Krida Chowk,
Hanuman Nagar,
Nagpur - 440 024.
Vs.
1. Dhananjay S/o. Ambadas Dhabe, .Respondents
Aged about 60 years, Occu - Nil,
R/o. Aruja Enclave, 4th floor, Plot No. 35,
Gedam Layout, Trimurti Nagar,
Nagpur - 440 022.
2. Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur through its Vice
Chancellor, Chatrapati Shivaji
Maharaj Administrative Campus,
Ravindranath Tagore Road,
Civil Lines,
Nagpur - 440 001.
3. The Joint Director of Higher Education,
Old Morris College Building,
Civil Lines,
Nagpur.
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Mr. Rohit Joshi with Mr. B. G. Kulkarni & Mr. Madhur A. Deo, Advocate,
for the Petitioners
Mr. Anand Jaiswal, Senior Counsel with Mr. Shantanu S. Ghate,
Advocate, for Respondent No. 2
Mr. A.P. Raghute with Ms Pooja Agrawal, Advocate, for Respondent
No.1
Mr. N. R. Patil, AGP, for Respondent No. 3 - State
Mr. A. D. Mohgaonkar alongwith Mr. Manish Shukla & Mr. S. P.
Bhandarkar, Advocate, for the Intervenor
CORAM : SUNIL B. SHUKRE, VINAY G. JOSHI
AND M. W. CHANDWANI, JJ.
RESERVED ON : 25th NOVEMBER, 2022.
PRONOUNCED ON : 20th FEBRUARY, 2023.
JUDGMENT ( PER : M. W. CHANDWANI, J. )
The present reference is on account of the order dated 23 rd December 2021 passed by a Division Bench of this Court and the question for consideration read as under:
"Whether the requirement of the proviso below Clause 5 of Statute 53 is attracted in a case where an employee is terminated on the ground of willful and persistent neglect of duty and/or misconduct covered by Clause 8(a) & (b) of the contract Schedule-A appended to Ordinance 24 of College Code?".
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2. The controversy lies in a narrow compass with the Statute 53 and Ordinance 24 framed under the Maharashtra University Act, 1994 taking center stage. Whether proviso below Clause 5 of Statute 53 will prevail over second proviso to Clause 8 of contract Schedule-A appended to Ordinance 24 is the broad question that we are asked to decide.
3. The relevant facts that require mention here are that respondent No. 1 was appointed on 03.09.1984 and his services were confirmed on completion of probation period. The Management initiated disciplinary proceedings against respondent No.1, which culminated into termination of his services. Respondent No.1 challenged the order of termination before the University/College Tribunal. Presiding Officer of the Tribunal allowed the appeal by holding that the order of termination was vitiated. Apart from non compliance of principles of natural justice, one of the reasons for allowing the appeal was absence of prior approval of the Rashtrasant Tukdoji Maharaj Nagpur University, Nagpur under Statute 53. In fact, the petitioners had sought permission to terminate the services of the respondent No.1, but it was rejected. The petitioners assailed the order of Tribunal in Writ Petition No. 1836 of 2009. The Writ Petition came 3 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt to be allowed by directing the petitioners to continue enquiry proceedings from the stage at which it was found to have been vitiated. After completion of enquiry, the petitioners terminated the services of respondent No. 1. In appeal, the Tribunal vide its judgment dated 20.12.2019 set aside the order of termination for want of prior permission of the University, as contemplated by Statute 53. The aforesaid judgment of the Tribunal is the subject matter of challenge in the present petition. One of the grounds raised in the petition is that the proviso to Clause 5 of Statute 53 is not attracted to the case of respondent No. 1, since he has been confirmed after 02.01.1978 and his services are terminated on the ground of misconduct and after full fledged inquiry. During the hearing of the said Writ Petition, attention of the learned Single Judge ( learned referral Judge) was invited to a judgment of another learned Single Judge of this Court in a case of Nagar Yuvak Shikshan Sanstha Vs. Sanjay Vidyasagar Soni , wherein relying on a decision of this court in CEO, Yashwant Rural Education Vs. Asmita Basole and Anr. reported in 1987 Mh.L.J. 676, a view was taken that prior approval, as required by Clause 5 of Statute 53 is mandatory, even in the cases of termination of employees on the ground of willful and persistent neglect of duty or misconduct.
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4. The learned referral Judge did not agree with the view expressed by the learned Single Judge in Sanjay Vidyasagar Soni (Supra) on the premise that by such interpretation, Clause 8(a) and (b) of the contract Schedule-A shall become redundant and opined that in case of termination of an employee on account of misconduct such prior approval is not required. According to the learned referral Judge, in Asmita Basole and Anr. (Supra), the respondents in the said case were appointed on probation on 29.08.1983 and 23.04.1984, respectively. Both of them were terminated on 23.03.1985 before completion of their probation, therefore, the ratio laid down in Asmita Basole and Anr. (Supra) was wrongly applied in Sanjay Vidyasagar Soni (Supra), wherein the petitioners were confirmed lecturers. The learned Single Judge requested the Chief Justice for referring the matter to a Larger Bench for answering the aforesaid question. The Chief Justice constituted a Division Bench for answering the reference.
5. The matter was heard before the Division Bench. The Division Bench noticed a decision of another Division Bench in Wainganga Bahu-Uddeshiya Vikas Sanstha, Nagpur Vs. Diwakar Maloji Kamble, reported in 2013(2) Mh.L.J. 804, which upheld a view of the another learned Single Judge that prior permission under Clause 5 of 5 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt Statute 53 was held to be necessary, even, with regard to lecturers whose services were terminated after holding a departmental enquiry. While hearing the reference, the Division Bench opined that the position, as obtained in view of the decision in Asmita Basole and Anr (supra), of non-requirement of prior permission cannot be reconciled with the view taken by other Division Bench in Diwakar Maloji Kamble (supra). Therefore, the Division Bench sought the reference to a full bench to answer the question formulated by the learned Single Judge in this Petition. Accordingly, the Chief Justice in exercise of the powers conferred by Rule 8 of Chapter 1 of the Bombay High Court, Appellate Side Rules, 1960, constituted this full bench.
6. The parties were put on the notice and heard at length on multiple legal and factual issues. The parties have, in course of their arguments, referred the provisions of the Maharashtra Universities Act, 1994, Clause 5 of Statute 53 and Clause 8(a) and (b) of the contract Schedule-A appended to Ordinance 24 and various other provisions. Several decisions of various High Courts including the decision rendered by this Court and the Apex Court have been brought to our notice by the learned counsels appearing for the petitioners, as well as, the respondents.
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7. Before proceeding to deal with the question referred to the Full Bench, it would be apposite to preface regarding originating of the Ordinance 24 and Statute 53.
8. To regulate the University and for better governance of Nagpur University, the Nagpur University Act, 1963 (hereinafter referred to as 'Act of 1963') was enacted. Thereafter, the Nagpur University Act, 1974 (hereinafter referred to as 'Act of 1974') came into force. It was repealed by the Maharashtra Universities Act, 1994 (hereinafter referred to as 'Act of 1994'), which is also substituted by the Maharashtra Public Universities Act, 2016 (hereinafter referred to as 'Act of 2016'). For smooth functioning of the University and affiliated college thereto, in all these Acts, the Senate and the Management Council have been given powers to make Statutes and Ordinances respectively, in respect of various subjects including conduction of examinations, appointment of teachers/professors and their service conditions. We are concerned with and Ordinance 24 (popularly known as 'College Code') and Statute 53, which have been framed under the provisions of the Act of 1963 and the Act of 1974, respectively. The Statutes and Ordinances, framed under above referred repeal Acts, as 7 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt far as they are not inconsistent with the provisions of the repealing Acts referred above, were saved from time to time, in all the subsequent repealing Acts framed and latest by the Act of 2016, which is in vogue at present. Thus, Statute 53 and Ordinance 24 are also saved and are still in force.
9. Having taken note of the backgrounds of the subordinate legislation, let's note briefly the submissions made on behalf of parties to the writ petition.
10. Learned Counsel on behalf of the petitioners-Management contended that services of the teachers/lecturers, who are appointed after 02.01.1978 i.e. after coming into force of the Statute 53 and have completed the period of probation, can be terminated on the ground of misconduct or willful persistent negligence after holding full-fledged departmental inquiry. It is not incumbent upon the affiliated colleges to obtain approval of the University under proviso to Clause 5 of Statute 53. According to him, Clause 5 of Statute 53 itself suggests that termination of the teacher shall be governed by the College Code and contract appended to it. The conjoint reading of Clause 5 of Statute 53 and Clause 8 of contract appended to the College Code shows that 8 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt prior permission or approval of University is required only in the cases of termination of teachers under sub-clauses (c) breach of contract or
(f) abolish of the post and not otherwise.
11. It is urged that as per second proviso to Clause 8 of contract appended to College Code, it is only when the services of employee are sought to be terminated on account of breach of any terms of contract or on account of abolition of post as enumerated in Sub-Clauses (c) and (f), respectively, in Clause 8 of contract appended to College Code. To substantiate this contention, the learned Counsel appearing for the petitioners-Management referred to the decision of the Division Bench in Asmita Basole & Anr (Supra). According to him, the fact of that case indicates that prior to expiry of period of probation, notice of termination was issued to the employee. After considering the provisions of Statute 53 as well as Clause 8 of the contract of Schedule-A of the College Code, the Division Bench held that when the termination of services of a teacher was on account of willful and persistence neglect of duty, misconduct, physical or mental unfitness or incompetence, such prior approval was necessary. According to learned counsel for the petitioners in the said case, the petitioner was probationary and was not confirmed and, therefore, the 9 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt ratio of the said judgment will not be applicable to a confirmed teacher. The learned Single Judge in Sanjay Vidyasagar Soni (supra) misread the observation of the Division Bench in Asmita Basole and anr. (supra) and held that such approval was required in any case of termination even in case of permanent teacher.
12. Next, counsel for the petitioners argued that the University cannot sit in appeal against the order of the termination and cannot find fault in the order of termination on one ground or another. The University cannot question a termination in consequence of full-fledged inquiry conducted by giving opportunity of hearing to the delinquent. If the permission in every case is required, then it will be very difficult to get the permission of the Executive Council, which consists of a large number of persons.
13. Lastly, learned Counsel for the petitioners also vehemently submitted that if the effect to the proviso to Clause 5 of Statute 53 is given, then Clause 8 of the contract appended to Schedule-A of Ordinance 24 will become redundant. According to him, if there is inconsistency amongst the provisions, then the Court must adopt the interpretation which harmonizes both provisions and the provision, 10 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt which goes with the object of the Ordinance, is to be accepted. Since, Clause 8 of the agreement/contract is advancing the object and purpose of the Ordinance, it will prevail upon second proviso to Clause 5 of the Statute 53. The sum and substance of argument of learned Counsel for the petitioners is that the previous permission or approval of the University in case of termination of any lecturer is applicable only in sub-clauses (c) and (f) of Clause 8 of contract appended to College Code and, therefore, in the case of termination on the ground of willful and persistence neglect of duty or misconduct, previous approval of the University is not at all required. To buttress his submission, learned Counsel for the petitioners relies on a case of Managing Director Chhatisgarh State Co-operative Bank Maryadit Vs. Zila Sahakari Kendriya Bank Maryadit (AIR Online 2020 S.C. 582), in which it has been held as under:-
"41. As we have noted before, it is settled principle of law that where two provisions of an enactment appear to conflict, courts must adopt an interpretation which harmonises, to the best extent possible, both provisions. Justice G P Singh in his seminal work Principles of Statutory Interpretation states:
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14. Having recorded the contentions advanced on behalf of the petitioners to the extent, we found them to be relevant, we now proceed to record the submissions advanced on behalf of the contesting respondents.
15. Mr. A.P. Raghute, learned Counsel appearing on behalf of respondent No.1 - delinquent submitted that proviso to Clause 5 of Statute 53 creates a bar against issuance of notice or makes termination effective, without prior approval of the University in every case. According to him, the decision of the learned Single Judge in Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. vs. Anil Dewaji Gaikwad and ors. 2012 (3) Bom. C. R. 788, wherein it is opined that such prior permission under Clause 5 of Statute 53 was held to be necessary, even with regard to employee, whose services were terminated after holding departmental inquiry. He further went on submitting that these observations of the learned Single Judge have been upheld by the Division Bench in Wainganga Vs. Diwakar Maloji 12 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt Kamble (Supra). According to him, in Diwakar Maloji Kamble and ors. (supra), the Court has held that such prior approval was necessary in every case of termination. Therefore, according to him, the question referred deserves to be answered on those lines.
16. Learned Senior Counsel Mr. Jaiswal appearing on behalf of respondent No. 2 - University vehemently submitted that the Ordinance 24, which is popularly called as College Code, came in force from the Academic Year 1967-1968 and, thereafter, the Statute 53 a beneficial legislation has been framed to extend the benefit of protection of previous approval of University to the cases of termination on the grounds mentioned in sub-clauses (a), (b), (d) and
(e) of Clause 8 of contract appended to the College Code. This is nothing but implied amendment to Clause 8 of contract appended to Schedule-A of the College Code. He submitted that the Statute 53 gives reference of the College Code, therefore, the doctrine of 'legislation by reference' will be applicable and not 'legislation by incorporation'.
17. Learned Assistant Government Pleader Mr. Patil for the respondent No.3 and learned Counsel Mr. Mohgaonkar for the intervener supported the contentions made by learned Counsel for the 13 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt respondent Nos.1 and 2 and submitted that second proviso to Clause 8 of contract appended to the College Code is impliedly amended by proviso to Clause 5 of Statute 53.
18. Keeping in view the rival submissions, we have perused the relevant provisions of the College Code and Statute 53 framed under the Act of 1963 and the Act of 1974, respectively.
19. The College Code was framed by the University with a view to regulate the terms and conditions of the employment and the matter therein, and to protect the teachers/employees from unscrupulous Management from terminating their services or making appointments at its whims. The College Code prescribed the appointment and terms and conditions of services of various posts. Article 38 of the College Code deals with appointments of teachers in affiliated Colleges. Sub-Article (2) of Article 38 clearly indicates that the teachers can only be appointed on the contract in the form prescribed in Schedule-A appended to the College Code.
20. The Full Bench of this High Court in the case of Premlata Sudhakar Sathe vs. Governing Body of G. S. Tompe College and Ors. 1981 SCC Online Bom. 52 has held that Article 38 (2) will have to be 14 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt read together with the contract prescribed in Schedule-A, which forms a part and parcel of the said article of the College Code. The provisions of the College Code cannot be read in isolation divorce from the contract prescribed in Schedule-A. By the College Code itself, statutory form of agreement is prescribed. This means that the terms and conditions of the contract prescribed in Schedule-A to the College Code are also prescribed by the Statute itself. Thus, the terms in the contract provided in Schedule-A are to be read as articles of the College Code. At present, we are concerned with Clause 8 of contract enumerated in Schedule-A of the College Code. It reads as under :-
"Clause 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,
(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 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.
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21. This take us to Statute 53, which was brought into force from 2nd January, 1978 on the day, when it received assent of the Chancellor. Before Statute 53 was brought into force, there was no deemed confirmation to the probationary teachers working in affiliated Colleges. Clause 4 of the Statute 53 provides at first instance a teacher be appointed on probation for a period of 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 probation period, a notice is given. In absence of such notice and on completion of two years, it shall be construed that he has completed the period of probation satisfactory and he is confirmed. Clause 5 provides that termination of service of any teacher shall take place only in accordance with provisions of the College Code and contract appended thereto. The proviso to Clause 5 is read as under :-
"Provided that, in case of a teacher, who is already confirmed prior to the commencement of the Statute or in case of teacher covered by para four above, no notice of termination shall be issued or termination made effective without the prior approval of the executive council of Nagpur University"
22. It is germane to note that the second proviso to Clause 8 of contract Schedule-A appended to the College Code gives protection of 16 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt prior permission of the Nagpur University to a teacher, if his termination is sought on account of Clause (a) breach of any terms of contract or (f) abolition of the posts. This protection was not available to the cases covered by sub-clauses (a) willful and persistent negligence; (b) misconduct; (d) physical or mental unfitness and (e) incompetence; enumerated in Clause 8 of contract Schedule-A appended to the College Code. Apart from it, there was no provision in the College Code of deemed confirmation to a probationary teacher.
23. With a view to protect tenure of the teachers who have completed probation period of two years and still not confirmed and to extend a protective umbrella to teachers from arbitrary termination on account of grounds mentioned in Sub-Clauses (a),(b),(d),(e) of Clause 8 of contract appended Schedule-A to the College Code, the Senate framed the Statute 53, which received ascent of the Chancellor on 02.01.1998. As per Clause 4 of Statute 53, every teacher appointed against a clear vacancy, on completion of period of probation of two years, in absence of any notice of termination before a month of expiry of probation period which shall be construed that he has completed the period of probation satisfactorily and he is confirmed. By proviso to Clause 5 of Statute 53, additional protection of prior approval of the 17 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt Executive Council of University to notice of termination was extended to the cases of termination of teachers, who are already confirmed prior or subsequent to commencement of the Statute 53 or deemed confirmed by deeming fictions as provided in para 4 of Statute 53, on account of (a) willful and persistent negligence; (b) misconduct; (d) physical or mental unfitness and (e) incompetence, enumerated in Clause 8 of contract Schedule-A appended to the College Code, which was not available in the College Code.
24. We have noted that in year 2010, Statute 10 of 2010 was framed by the Senate to provide procedure to be followed by the University for grant of approval to issue notice of termination under Clause 53. This Statute provides for evaluating the proposal of notice of termination, the Sub Committee constituted by the Executive Council shall see that whether action initiated by College was bona fide; whether an opportunity was granted by the Inquiry Officer to the teacher; and proportion of punishment with the degree of misconduct. This shows that by Statute 10, a mechanism has been provided for dealing the proposal of notice of termination of a confirmed teacher on account of sub-clauses (a) to (f).
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25. It appears to us that the Statute 53 is framed by the Senate by keeping in mind the College Code with an intend and object to extend additional benefits to teachers what they did not have in the College Code. Further, the mechanism was provided for evaluating the proposal for approval in case of termination notice. Thus, a conscious subordinate legislation was framed by taking note of the College Code (Ordinance 24). The second proviso of Clause 8 of contract Schedule-A appended to the College Code provides protection to a teacher in case of termination on the ground of breach of any terms of contract or abolition of posts by making mandatory for the affiliated colleges to seek prior approval of the Nagpur University before issuance of any notice of termination. By making proviso to Clause 5 of Statute 53, benefit which was available to certain classes of cases in earlier subordinate legislation i.e. College Code, is made available to all cases.
26. No doubt, Clause 5 of Statute 53 contemplates that termination of service of any teacher shall take place only in accordance with the provisions of the College Code and contract appended thereto. However, at the same time, a proviso to the said clause protects confirmed teachers by stipulating a condition that no notice of termination shall be issued or termination made effective 19 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt without prior approval of the Executive Council of Nagpur University. The necessary implications of this proviso would be that in case termination of a confirmed teacher on account of any of cases mentioned in sub-clauses (a) to (e) of Clause 8 of contract Schedule-A appended to the College Code, prior approval of the Managing Council to notice of termination is mandatory in cases of confirmed teacher, but, all other conditions, enumerated in Clause 8 of contract Schedule- A appended to the College Code will remain as it is.
27. We do not find any inconsistency between proviso to Clause 5 and the second proviso Clause 8 of contract appended to the College Code. What is envisaged in second proviso to Clause 8 of contract appended Schedule-A to the College Code has been extended further in proviso to Clause 5 of Statute 53. The present case is not a case of head on clash between two provisions. Therefore, the case of Zilla Sahakari Kendriya Bank Maryadit (supra), will not be applicable to the present case.
28. The Supreme Court in case of Saregama India Limited vs. Next Radio Limited & Ors. (2022) 1 SCC 701 has held in paras 21 and 22 of its judgment. It read as under:-
20 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt "21. It is a settled principle of law that when the words of a Statute are clear and unambiguous, it is not permissible for the court to read words into the statute. A Constitution Bench of this Court in Padma Sundara Rao v. State of T.N. has observed: (SCC p. 542, paras 12 & 14).
"12. ... the court cannot read anything into a statutory provision which is plain and unambiguous. A Statute is an edict of the legislature. The language employed in a Statute is determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.
13. xxxxxxxxxxxx
14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law. it is for the legislature to amend, modify or repeal it, if deemed necessary."
22. The Court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A Statute may be invalidated if it is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting Statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by rewriting statutory 21 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by rewriting the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft."
29. We may record that in view of clear and unambiguous words of the provisions which we are dealing, it is not open to us to read words into statute. There is no ambiguity in these two provisos. Since the words used in these two provisos are clear, there is no need of interpretation of these provisos. Therefore, the decisions of the Apex Court cited by both the parties on the methods of interpretation in the cases of ambiguity are not required to be referred.
30. This takes us to the submissions of learned Counsel for the respective parties. Learned Counsel for the petitioners would contend that the College Code has been incorporated under Clause 5 of Statute 53 and, therefore, the doctrine of 'legislation by incorporation' will attract. According to this doctrine the provision of the College Code will apply and prevail over Statute 53. Whereas, the counsel appearing for the respondents submitted that mentioning of the College Code in Statute 53 is by way of reference and, therefore, the doctrine of 'legislation by reference' would be applicable in the present case. In the 22 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt case of doctrine by reference, the weightage is to be given to Statute
53. We have already noted that there is no inconsistency between Statute 53 and the College Code, rather, they are supplementary to each other and are to be read together. Thus, here is not a case that the court is required to choose either one of them and, therefore, there is no need to apply either the doctrine of 'legislation by incorporation' or doctrine of 'legislation by reference'.
31. We find that conjoint reading of the both the provisos clarify that the present case is a case of adding additional proviso to Clause 8 of contract appended to the College Code to extend the benefit of protection in case of termination in some more cases than what is in second proviso to Clause 8 of contract Schedule-A appended to the College Code. The provisos are often added not as an exception or qualify to the main enactment, but as a saving clause in which cases they will not be construed as controlled by sections. Thus, what has been saved by the second proviso of Clause 8 of contract appended to the College Code, furthermore has been saved by the comprehensive proviso to Clause 5 of Statute 53. The apprehension that second proviso to Clause 8 of contract Schedule-A appended to the College Code, becoming redundant is without any basis. Here is a case of 23 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt merger, wherein second proviso to Clause 8 of contract appended to the College Code is merged in comprehensive proviso to Clause 5 of Statute 53, which is couched in general terms.
32. Whenever there is particular and general provision in the same statute and they are very clear and the only difficulty in their application, the provision framed in its most comprehensive sense would take the field and the particular provision will merge in comprehensive provision. In the present case, the proviso to Clause 5 of Statute 53 being comprehensive proviso will prevail over second proviso to Clause 8 of contract Schedule-A appended to the College Code.
33. As stated above, there is no repugnancy between these two provisos. Even, if it is so then subsequent proviso will always prevail on the first proviso. Where sections of enactment contain two provisos and the second proviso is repugnant in any way to the first, the second proviso must prevail for it stands last in the enactment and speaks the last intention of the makers.
34. Statute 53 received ascent of the Chancellor on 24 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt 02.01.1978 is later in point of time the College Code, which came into force in the year 1968. The intent and object of the Statute 53 is to extend additional benefits to teachers, which were not available in the College Code. The object and intend of the statute will be defeated if the proviso to Clause 5 of Statute 53 is not read with Clause 8 of contract appended to the College Code.
35. This brings us back to genesis of the reference. Initially, the learned referral judge made the reference to the Division Bench on the premise that in Sanjay Vidyasagar Soni (supra), the learned Single Judge of this Court did not follow the ratio laid down in Asmita Basole and Anr. (supra). The Division Bench opined that the judgment of another Division Bench in Diwakar Maloji Kamble and ors. (supra) has hold otherwise that what has been held in Asmita Basole and Anr. (Supra) and made the reference to this Full Bench. We have carefully gone through the judgments in Asmita Basole and Anr. (supra), Sanjay Vidyasagar Soni (supra) and Diwakar Maloji Kamble and ors. (supra).
36. Dicta in the case of Asmita Basole and Anr. (Supra) is clear. The Division Bench of this Court has held what we have said in forgoing paras that in the case of termination of confirmed teacher on 25 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt account of sub-clauses (a) to (f) of Clause 8 of contract Schedule-A appended to the College Code, prior approval of the Executive Council of University is required to notice of termination. We find that the learned Single Judge in Sanjay Vidyasagar Soni (Supra) has correctly applied the ratio of Asmita Basole and Anr. (Supra). The para 18 of the judgment in Asmita Basole and Anr. (Supra) is read as under:
"18. 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 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."
37. Later on, another Division Bench of this Court in Diwakar Maloji Kamble and ors, which was also a case of termination of a 26 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt teacher for misconduct while confirming the view of learned Single Judge, has held as under:-
"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 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."
38. Thus, we do not find that what has been held in Asmita Basole and Anr (supra) has not been followed in Sanjay Vidyasagar Soni (supra). Even, we do not find the conflict of views between the 27 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt judgments of Division Bench in the cases of Asmita Basole and Anr (supra) and Diwakar Maolji Kamble and Ors. (supra). Rather, the ratio in Asmita Basole and Anr. (supra) that without approval of the Executive Council of the University, no notice of termination can be issued in all cases enumerated in sub-clauses (a) to (f) of Clause 8 of contract Schedule-A appended to the College Code, is followed in Diwakar Maloji Kamble and Ors. (supra).
39. Insofar as the argument of learned Counsel for the petitioners regarding non-feasibility of taking approval from the Executive Council and proviso to Clause 5 of Statute, being absurd and unworkable is concerned, we make it clear that since the reference is with regard to answer the specific question, we have not gone into this submission of learned Counsel for the petitioners.
40. To conclude, we hold that the proviso to Clause 5 of Statute 53 being comprehensive, will prevail over second proviso to Clause 8 of contract Schedule-A appended to the College Code. Accordingly, we are of the considered opinion that the requirement of proviso below Clause 5 of Statute 53 is attracted in a case, where an employee is terminated on the ground of willful and persistent neglect of duty and/or misconduct 28 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 ::: W. P. 2057-2020 (J) (2) FINAL corrected (copy).odt covered by Clause 8(a) & (b) of the contract Schedule-A appended to Ordinance 24 of the College Code.
41. We answer the reference, accordingly.
42. The Writ Petition shall now be placed before the appropriate Bench for disposal.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.) (SUNIL B. SHUKRE, J.) 29 of 29 ::: Uploaded on - 22/03/2023 ::: Downloaded on - 06/06/2023 05:27:06 :::