Chattisgarh High Court
Dr. Durga Sharan Chandra vs State Of Chhattisgarh on 28 November, 2023
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 18
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2951 of 2022
Reserved on : 31.08.2023
Delivered on : 28.11.2023
Dr. Durga Sharan Chandra S/o Shri I. L. Chandra Aged About
51 Years R/o D - 259, Rama Green City Khamtarai, Bilaspur,
District Bilaspur Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, To The Govt. Of
Chhattisgarh Department Of Higher Education Mantralaya
Mahanadi Bhawan, Naya Raipur, P.S. Rakhi, Raipur
Chhattisgarh.
2. The Governing Body (Constituted Under Statute 28 Of College
Code Of Chhattisgarh Vishwavidyalaya Adhinium 1973 Of D.P.
Vipra College) Through The Secretary To The Governing Body
Office Of Principal, D.P. Vipra College Old High Court Road,
Bilaspur Chhattisgarh.
3. The Principal D.P. Vipra College Old High Court Road Bilaspur
Chhattisgarh.
4. The Inquiry Officer D.P. Vipra College Old High Court Road
Bilaspur Chhattisgarh.
---- Respondents
WPS No. 2988 of 2022
Subir Sen S/o Shri R.B. Sen, Aged About 60 Years R/o 17/361, Sarju Bagicha, Azad Nagar Bilaspur, District Bilaspur Chhattisgarh.
---- Petitioner Versus
1. State Of Chhattisgarh Through The Secretary To The Govt. Of Chhattisgarh Department Of Higher Education Mantrtalaya Mahanadi Bhawan, Naya Raipur Ps Rakhi, Raipur Chhattisgarh.
2. The Governing Body (Constituted Under Statute 28 Of College Code Of C.G.,vishwavidyalay Adhinium 1973 Of D.P. Vipra College) Through The Secretary To The Governing Body Office Of Principal, D.P.Vipra College Old Higher Court Road, Bilaspur Chhattisgarh.
3. The Principal D/p. Vipra College Old High Court Road Bilaspur Chhattigarh.
4. The Inquiry Officer D.P. Vipra College Old High Court Road Bilaspur Chhattisgarh.
---- Respondents Page 2 of 18 For Petitioners : Mr. Anurag Dayal Shrivastava, Advocate.
For State : Mr. Kapil Maini, Panel Lawyer For respondents No. 2 to 4: Mr. B.P. Sharma with Ms. Anuja Sharma and Mr. M.L. Saket, Advocates.
Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. Order
1. The matters were listed in motion hearing but in view of the judgment passed by the Hon'ble Division Bench in Writ Appeal No. 383 of 2022 in case of Subir Sen Vs. State of Chhattisgarh passed on 20.07.2022, this Court vide its order dated 22-08- 2022 has directed both the cases to be listed for final disposal in motion hearing and accordingly the matters are being heard finally.
2. Since the identical facts and law are involved in both the writ petitions i.e WP (S) 2951 of 2022 and WP(S) 2988 of 2022, they are being heard analogously and disposed of by this common order.
3. The petitioners who were working as Assistant Professor with the respondents No. 2 and 3 have challenged the termination order dated 17.02.2022 (Annexure P/1) passed in view of resolution dated 16-02-2022 (Annexure P/9) and also prayed for quashing of the entire departmental inquiry. The petitioners have also prayed for reinstatement with all consequential benefits.
4. Brief facts as reflected from the records of both the cases are that the respondents No. 2 and 3 is the College run by the society registered under the Societies Act. The college run by the society is an unaided education institution as it is not getting any grant from the State Government or from any commission. The petitioners were appointed as Assistant Professor on 03- 10-1987 and were confirmed as per Statute -28 of the College Code framed under C. G. Vishvidyalaya Adhiniyum 1973 on 17-06-2003. On 10-01-2022 the Respondent-3 Page 3 of 18 issued notice to the Petitioners regarding their decision to initiate departmental inquiry against them. Along with information dated 10-01-2022 charge-sheet dated 10-01-202 was also annexed wherein following charges were levelled against them:-
vkjksi dz- 1 & vkids fo:} egkfo?kky; esa dk;Zjr deZpkjh }kjk izFke lwpuk fjiksVZ ntZ djk;h x;h g]S ftlesa vkids fo:} Hkkjrh; n.M lafgrk 354 354¼v½ 354¼c½ 354¼l½ 354¼n½ 509¼v½ 509¼c½ iathc} dh x;h g]S tks fdlh efgyk deZpkjh ds fo:} fd;k x;k d`R; dnkpj.k ,oa vuSfrdrk dh Js.kh esa vkrk g]S ftlls egkfo?kky; dh Nfo ,oa v/;;ujr Nk= & Nk=kvksa ij foifjr izHkko iM+rk] tks xaHkhj vijk/k dh Js.kh esa vkkrk gSaA vkjksi dz- 2 & vkids }kjk izca/ku dks vlR;] feF;k ,oa xqejkg djus okyh tkudkjh izsf"kr dh xbZ Fkh] tks dnkpj.k dh Js.kh esa vkrk gSA vkjksi dz- 3 & vkids }kjk vkukf/kd`r :i ls egkfo?kky; ds fo"k; esa vuko';d tkudkjh nwljs laLFkkvksa dks izsf"kr fd;k x;k g]S ftlls egkfo?kky; dh Nfo Nwfey gksrh gS] tks dnkpj.k dh Js.kh esa vkrk gSA vkjksi dz- 4 & izkpk;Z ds i= dz- 769@ Lfkk@ 2018] fcykliqj fnukad 31-01-2018 dks izsf"kr vkjksi i= dk tokc ugha fn;k tkuk] izkpk;Z ds vkns'k dk mYya?ku tSls xaHkhj dnkpj.k dh Js.kh esa vkrk gSA
5. The petitioners submitted their reply on 12-01-2022 denying the allegations made in the charge sheet mainly contending that the copy of the FIR has not been provided to them on basis of which charges of misconduct and moral turpitude have been levelled against them. It is also submitted that they may be provided copy of the FIR and the documents as detailed in their reply. The petitioners have also demanded certain documents regarding charges No. 1 to 4. It has been specifically contended that due to non supply of these documents it is difficult for them to defend their case properly which causes prejudice to defend their case. As such, it is necessary that the documents as demanded by them be supplied. They have also demanded appointment of legal representative to defend them in the departmental enquiry as well as list of witnesses to be Page 4 of 18 examined in the enquiry.
6. The record of the case would further demonstrate that the respondents without giving any consideration to the reply submitted by the petitioner have appointed Enquiry Officer on 15-01-2022. The petitioners have raised objection before the respondents No. 3 the Principal of the College that they have not been supplied with the relevant documents and the memo dated 15-01-2022 does not specify who has been appointed as Enquiry Officer and under which provisions Enquiry Officer as well as Departmental Representatives have been appointed. The respondent No. 3 has supplied them documents relating to charges levelled against them on 22-01-2022. The petitioners prayed for time as they require some documents to submit reply to the charge-sheet vide their letter dated 29-01-2022 and 15- 02-2022. But, without complying with the principle of natural justice the respondents directed the petitioners to appear on the 16-02-2022 vide Memo dated 11-02-2022 as the Executive Committee has to take decision on the enquiry with regard to the petitioners conducted by the Principal of the College.
7. On above factual foundation the petitioners have submitted that since the inquiry has been conducted in violation of Principle of Natural Justice Statute 28 of College Code which has statutory force and the same provides for imposing penalty to the teaching staff, provides that procedure regarding imposition of penalty to the Government Servant is to be followed while taking disciplinary action against teaching staff of unaided institution. As such, the Rules of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 are applicable to them which provide the procedure for conducting the departmental inquiry. This has been violated, as such enquiry is bad-in-law and the termination order dated 17-02-2022 based upon this illegal enquiry deserves to be quashed. It has also been contended that the petitioners were not given any opportunity to cross-examine the witness, no opportunity to produce before the Enquiry Officers the oral or documentary evidence was given, thus, it is in violation of Rule 14 CCA Rules Page 5 of 18 which are applicable in their case also. It has also been contended that the presenting officer has not been appointed, therefore, Enquiry Officer has acted as prosecutor and Judge which is also in violation of the Rules. It has also been contended that the Respondents No. 2 to 4 could not prove the misconduct still the termination from service has been passed. It has also been contended that merely registration of FIR does not confer any right to the respondents No. 2 to 4 to terminate the service treating the said allegation as moral turpitude is also against the well settled position of law that unless and until the delinquents are convicted for moral turpitude by competent Court their services are not liable to be terminated. On this factual position the petitioners have prayed for quashing of the entire departmental inquiry and resolution dated 16-02-2022 as well as termination order dated 17-02-2022.
8. The respondent No. 1 / the State of Chhattisgarh has filed return mainly contending that since no specific relief is sought against them and a service dispute between petitioners and respondents No. 2 to 4 has been agitated in this writ petitions, nothing is to be replied by them and would pray for dismissal of the writ petition.
9. The respondent No. 3 has filed return mainly raising objection about the maintainability of the writ petitions as the petitioners have alternate efficacious remedy available to them under Rule 32 of the College Code Statute-28. To substantiate these submissions the respondent has referred to the judgment of Hon'ble Supreme Court reported in 2022 (5) SCC 345 {Foenix Arc (P) ltd. vs. Vishwa Bharti Vidya Mandir}. On merits it has been contended that the petitioners are involved in the act of assault or criminal force on a woman employee of the college with intent to outrage her modesty. Therefore, Crime No. 505/2017 has been registered by the Police Station, City Kotwali Bilaspur against the petitioners for commission of offence under Section 354(A)(i)(ii)(iv) read with Section 34 of the IPC which is a serious offence and moral turpitude is involved. Thus, punishment is proportionate to the misconduct.
Page 6 of 18To substantiate the submission he has referred to the judgment of Hon'ble Supreme Court reported in 2017 (2) SCC 528 {Krishna District Cooperative Bank vs. K. Hanumanta Rao} and would pray for dismissal of the writ petition.
10. The respondents No. 2 and 4 have filed reply mainly contending that the petitioners were involved in the criminal case for committing an offence under Section 354(A), 354(B), 354 (C), 354(D), 509(A) and 509(B) of the IPC. The respondents have also taken specific stand that petitioners have alternate remedy as per the Rule 32 of the College Code Statute-28 as such the writ petitions are not maintainable. It has been further contended that petitioner-Dr. Durga Sharan Chandra becomes member of the Public Service Commission, as such in view of the Article 319 of the Constitution of India he is prohibited to hold any office on ceasing of the such membership from Public Service Commission. It is also submitted that the petitioners are involved in the commission of offence which is serious in nature, therefore, punishment imposed upon them is proportionate to the misconduct and would pray for dismissal of the writ petitions. The respondents have also annexed the copy of the Criminal Revision, documents relating to the departmental inquiry conducted against the petitioners.
11. This Court vide its order dated 26-04-2023 has directed the respondents No. 2 to 4 to produce the original records of the Departmental Enquiry conducted against the petitioners which has been produced at the time of final argument.
12. The learned counsel for the petitioners would submit that the petitioners' service are governed by the Statute 28 of the College Code which has statutory force having been framed under the C. G. Vishvidyalaya Adhiniyum 1973. To substantiate this submission he has referred to the judgment of the Hon'ble Supreme Court in the matter of "Prabhakar Ramakrishna Jodh -vs- A.L. Pande & other " : 1965 (2) SCR 713 and would submit that since the respondents have violated the statutory provisions of the Statute 28 which provides procedure for conducting enquiry, thus the enquiry is Page 7 of 18 bad in law and has been conducted in violation of Principle of Natural Justice also as such writ petition is maintainable before this Court. It has also been contended that the punishment order has been issued by incompetent person as the appointing authority for the petitioners would be governing body. To substantiate this submission they have referred to Rule 8(1)(d) and 30(1) of the Statute 28 and the judgment of Hon'ble Supreme Court in case of Union of India vs. V. V. Gopinath {AIR 2014 SC 88}, State of U.P. vs. Saroj Kumar Sinha {2010 (2) SCC 772}, State of Uttarnchal and Others vs. Kharak Singh {2008 (8) SCC 236} and judgment of Hon'ble Division Bench of this Court in case of Gupteshwar Prasad Sinha vs. State of M.P. {M.C.C. No. 36/2005 dated 04-09- 2014}. It has also been contended that the termination order has been imposed without approval of Executive Council of the University which is also violation of Section 31 (3) of the Statue
-28. Thus, the termination is void-ab-initio and the submission raised by the respondents that the petitioners have alternate remedy of filing appeal also deserves to be rejected. The learned counsel for the petitioners to substantiate this submission has referred to paragraph 69 of the judgment passed by the Hon'ble Supreme Court in case of St. Mary's Education Society and Others vs. Rajendra Prasad Bhargav and Others {AIR Online 2022 SC 1324} and would pray for allowing the writ petitions.
13. Learned counsel for respondents No. 2 to 4 would oppose the submission the petitions are not maintainable in view of Judgment passed by the Hon'ble Supreme Court in case of St. Mary (Supra). It has also been contended that as per Rule 32 of the College Code the petitioners have alternate remedy of appeal before the Executive Council of the University and the petitioners without filing of the appeal, have invoked the jurisdiction of this Court, therefore, the writ petitions are not maintainable. To substantiate these submissions, they have referred to the judgment of Hon'ble Supreme Court in case of Foenix Arc (P) Ltd. Vs. Vishwa Bharti Vidya Mandir {2022 Page 8 of 18 (5) SCC 345} and Radhakrishna Industries vs. State of Himachal Pradesh {2021 SCC online SC 334} and would pray for dismissal of the writ petitions.
14. I have heard learned counsel for the parties and perused the record.
15. From the above stated factual and legal submissions, following points required to be determined by this Court are :-
(i) Whether the writ petitions challenging the termination order passed by the Respondents No. 2 to 4 which is private unaided Educational Society the writ petition is maintainable or not?
(ii) Whether in view of alternate remedy of filing appeal under Rule-32 of the Statute 28 the writ petitions are maintainable?
16. Since the points No. i and ii are interconnected they are being determined analogously.
17. The learned counsel for the petitioners would submit that the petitioners are confirmed Assistant Professors appointed by respondents No. 2 and 3, and their service condition is governed by Statute-28 of College Code which has binding force. The College Code Statute 28 provides the procedure and manner of imposing punishment on the teaching staff of the private colleges. The Rule 31(3) of Statute 28 provides the procedure for imposing of penalty specified in subparagraph 1 of Rule 31(1). The Rule 31 provides as under:-
31. (1) The appointing authority may, for good and sufficient reasons, impose on an employee of the College (including a teacher) the following penalties:-
(a) Censure;
(b) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the college by negligence or breach of orders;
(c) With-holding of increments of pay;
(d) Reduction to lower time scale of pay, grade or post;
(e) Compulsory retirement;
(f) Removal from service;
(g) Dismissal from service which shall ordinarily be a disqualification for future employment in the College.Page 9 of 18
Besides the above, the penalty of fine not exceeding Rupees Five may be imposed on a Class IV employee of the college for petty carelessness, unpunctuality, idleness or similar misconduct of a minor nature.
(2) The appointing authority may institute disciplinary proceedings again st an employee of the college. (3) No order imposing any of the penalties specified in sub-paragraph (1) above than fine shall be made except in accordance with the procedure for imposing penalties on Government servant prescribed by the Madhya Prades h Government and in force at the time the appointing authority orders an inquiry against the college employee concerned.
Provided that no proposal to reduce in rank or pay a teacher confirmed in the Service of the College or to remove or dismiss him from Service or to retire him compulsorily shall be deemed to have been passed by the Governing Body unless it is supported by a majority of two-thirds of the members present at the meeting of the Governing Body in which it comes up for consideration and where a decision is duly taken it shall not be given effect to unless it is approved by the Executive Council.
18.From bare perusal of the Rule 31 it is quite vivid that before imposing punishment of removal from service of a confirmed teacher, procedure prescribed for imposing penalties on Government Servant should be followed. It is also not in dispute that the Statute -28 is having statutory force as it has been made as per the provisions of Chhattisgarh Vishwavidyalaya Adhinium, 1973. This issue has been considered by the Hon'ble Supreme Court in case of Prabhakar Ramkrishna Jodh vs. A.L. Pandey and Others {1965 (2) SCR 713} wherein the Hon'ble Supreme Court has held as under :-
"........It is not disputed on behalf of the respondents that the "'College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code' have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship Page 10 of 18 between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code"
creates legal rights in favour of teachers ,of affiliated colleges and the view taken by the High Court is erroneous."
19. From above stated legal position it is not in dispute that the Statute 28 of the College Code is having statutory force but whether it entails the petitioners to file writ petition challenging their termination from service is to be cosidered in the light of judgment passed by the Hon'ble Supreme Court in case of St. Mary (supra) wherein the Hon'ble Supreme Court has considered the issue of maintainability of the writ petition challenging service dispute of unaided educational institution and has summarized the principle under which condition the writ petition is maintainable in paragraph 69 which reads as under:-
69. We may sum up our final conclusions as under:
(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element.
Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
Page 11 of 18(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article
226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element.
(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty"
be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-
teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty.
In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But Page 12 of 18 such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.
(e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.
20. The submission made by the learned counsel for the petitioners that since the respondents have violated the Statute -28 of the College Code as such petition is maintainable, deserves to be rejected looking to the factual matrix of the case in hand. The record of the case and even from the pleading made by the petitioners itself enquiry was conducted but it was violation of the Rule 14 of the CCA Rule which provides the procedure for conducting enquiry. The non compliance of the procedure of enquiry does not fall within the ambit of complete violation of the statutory rules. Therefore, the writ petitions alleging violation of Rule give cause to the petitioners to file the writ petition deserves to be rejected. Accordingly the writ petitions are dismissed as not maintainable.
21. The Hon'ble Supreme Court in paragraph 69 (d) of the judgment St. Mary (supra) has clearly held that if it is violation of the employer in contravention of law that may be interfered by the Court but such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. The petitioners have challenged the termination on the count that the Enquiry Officer has not followed the due procedure is in discharge of public duty which can be ascertained only after recording evidence and considering materials placed on record. Thus, the objection raised by the respondents is sustainable that it is not violation of law but on contrary they have failed to discharge their duties in following due process of departmental enquiry.
22. Even otherwise, there is disputed factual matrix which can be very well ascertained only after recording of the evidence. As such also the writ petition is not maintainable before this Court.
Page 13 of 18The Hon'ble Division Bench of High Court of Allahabad in case of Devesh Verma vs Christ Church College {in Special Appeal Defective No. 2 of 2018 judgment dated 02.01.2023 has held as under :-
"27- From a reading of the aforesaid judgments, the law as summarized in St. Mary's (Supra) is that the employees of a private educational institution would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matters relating to service where they are not governed or controlled by the statutory provisions. In light of St. John Inter College (Supra), the provisions of Section 16 G (3) of the U. P. Intermediate Education Act are not applicable to the teachers employed in private minority institutions. There is no other Statutory provision, which is alleged to have been violated in the instant case. Therefore, we find ourselves in agreement with the view taken by the Hon'ble Single Judge that the Writ Petition filed by a former teacher against the private unaided minority institution challenging the order of his termination and seeking restitution of his service, is not maintainable.
28- The Writ Petition would not maintainable for one more reason that there are several disputed questions of fact involved in the case. The appellant claims that he had been duly selected and appointed, but he has not filed a copy of the appointment letter or a contract of appointment from which his service conditions may be ascertained. The college has contended neither any advertisement had been issued nor any selection was held and on a personal request made by the appellant, he had been orally engaged to work and after he had worked merely for about 4 months, he misbehaved with the Principal of the college and the Principal had filed a First Information Report against him on 31.03.1992. The appellant did not perform his duties since thereafter. Whether or not the appellant was duly selected and appointed, and what were his service conditions, are facts which are in dispute and regarding which no material is available on record. For this reason also, the Writ Petition would not be maintainable.
29- In view of the aforesaid discussion, we find ourselves in agreement with the view taken by the Hon'ble Single Judge that the Writ Petition filed by the appellant was not maintainable and we do not find any reason to interfere in the Judgment of the Hon'ble Single Judge."
23. The writ petitions are not maintainable in view specific findings given by the Hon'ble Supreme Court in paragraph 69(d). Even otherwise, the petitioners have alternate efficacious remedy of Page 14 of 18 filing appeal is available as per the Rule 32 of the Statute -28. The Rule 32 is reproduced below:-
32. (1) W h e r e any penalty is imposed on an employee of the college by the Principal, the employee concerned may prefer an appeal to the governing Body of the college within thirty days from the date on which a copy of the order appealed against is delivered to the appellant.
(2) Where any penalty other than reduction in rank or pay or removal or dismissal or compulsory retirement from service is imposed on a teacher, he may prefer an appeal to the Executive Council within thirty days from the date on which a copy of the order appealed against is delivered to the appellant.
3. (i) An appeal against an order of the Governing Body im posing on a teacher the penalty of reduction in rank or pay or removal or dismissal or compulsory retirement from service shall lie to a Tribunal consisting of :
(a) A nominee of the Kulpati, other than a member of the Executive Council who will act as the Chairman.
(b) The aggrieved teacher's nominee to be named by the appellant in his appeal, and
(c) A nominee of the Governing Body;
Provided that an appeal under this sub-paragraph shall be submitted to the Kulpati not later than forty five days from the date on which a copy of the order appealed against is delivered to the appellant.
(4) The appeal shall except where provided otherwise, be presented to the authority to whom the appeal lies, a copy being forwarded by the appellant to the authority which made the order appealed against. It shall contain all material statements and arguments on which the appellant relies , shall not contain any disrespectful or improper language and shall be complete in it.
(5) The authority which made the order appealed against shall on receipt of a copy of the appeal, forward the same with its comments thereon together w ith the relevant records to the appellate authority without any avoidable delay and without waiting for any direction from the appellate authority.
(6) (i) The appellate authority may confirm, enhance, reduce or set aside the penalty or remit the case to the authority which imposed the penalty with such directions as it may deem fit in the circumstances of the case.
(ii) The authority which made the order appealed Page 15 of 18 against shall give effect to the orders passed by the appellate authority.
24. The petitioners have alternate remedy of filing appeal under Rule 32, without exhausting the alternate statutory remedy available the writ petition is not maintainable as per law laid down by the Hon'ble Surpeme Court in case of Foenix (supra). Hon'ble Supreme Court in paragraphs No. 18 to 20 has held as under :-
18. Even otherwise, it is required to be noted that a writ petition against the private financial institution -- ARC --
the appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the Sarfaesi Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the Sarfaesi Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the Sarfaesi Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the Sarfaesi Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in Praga Tools Corpn. (1969) 1 SCC 585 and Ramesh Ahluwalia (2012) 12 SCC 331 , (2013) 3 SCC (L&S) 456 relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.
19. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 136 of the Constitution, this Court may not interfere with the interim/interlocutory orders is concerned, the decision of this Court in Mathew K.C. (2018) 3 SCC 85 , (2018) 2 SCC (Civ) 41 is required to be referred to.
20. In Mathew K.C. (2018) 3 SCC 85 , (2018) 2 SCC (Civ) 41 after referring to and/or considering the decision of this Court in Chhabil Dass Agarwal (2014) 1 SCC 603, it was observed and held in para 5 as under : (Mathew K.C. case (2018) 3 SCC 85 , (2018) 2 SCC (Civ) 41, SCC p. 89) "5. We have considered the submissions on behalf of the parties. Normally this Court in Page 16 of 18 exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal (2014) 1 SCC 603, as follows : (SCC p. 611, para 15) '15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419, Titaghur Paper Mills case (1983) 2 SCC 433 , 1983 SCC (Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
25. The Hon'ble Supreme Court in case of M/s South India Bank Limited vs. Naveen Mathew Philip and others {S.LP (Civil) No. 2201-22022 of 2022 dated 17.04.2023} has reiterated the same view. The facts projected in the writ petition would clearly demonstrate that the petitioners allege procedure lapses while conducting departmental enquiry whether that procedure Page 17 of 18 lapses go to the route cause of the case to vitiate the enquiry can be ascertained only after the evidence is brought on record. The petitioners have alternate remedy of filing appeal before the Executive Council of the University who as per rules have to constitute a Tribunal which consist of nominee of the Kulpati other than a member of the Executive Council who will act as a Chairman, the aggrieved teacher's nominee to be name by the appellant and a nominee of the governing body who can decide the appeal wherein the entire factual matrix with regard to conducting of enquiry can be questioned. Thus, the petitioners have alternate efficacious remedy of appeal. Even otherwise the Hon'ble Division Bench while dismissing the appeal No. W.A. No. 383/2022 decided on 20.07.2022 has held that "We are of the opinion that as rightly observed by the learned Single Judge there are debatable issues including maintainability of the writ petition which will require detail consideration."
26. Which clarify that the point of maintainability of writ petition was kept open by the Hon'ble Division Bench thus it is necessary for this Court to consider the issue regarding maintainability of the writ petition as well as alternate remedy available to the petitioner.
27. Considering the above settled preposition of law and factual matrix, this Court of the view that the writ petitions filed by the petitioners seeking the right to be enforced is purely of a private service dispute and they have alternate remedy of filing appeal also, thus the writ petitions are not maintainable. However, the liberty is granted to the petitioners that if petitioners, so advised file appeal within 60 days from the date of receipt of copy of the order, neither the respondents nor the appellate authority will take plea of limitation and will decide the appeal within an outer limit of 4 months from the date of presentation of appeal in accordance with law giving opportunity of hearing to the parties on merits.
28. With the aforesaid observations and directions, writ petitions are disposed off as not maintainable. It is made clear that this Court Page 18 of 18 has not commented anything on the merits of the case. The appellate authority shall decide the appeal on merits without being influenced by any observation made by this Court while considering the submission made by both the parties before this Court with regard to alternate remedy and non-maintainability of the writ petitions.
Sd/-
(Narendra Kumar Vyas) Judge deshmukh