Gujarat High Court
Himanshu Dineshchandra Parekh vs Institute For Plasma Research on 8 August, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4530 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HIMANSHU DINESHCHANDRA PAREKH
Versus
INSTITUTE FOR PLASMA RESEARCH & ORS.
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
for the Respondent(s) No. 4
MR DG SHUKLA(1998) for the Respondent(s) No. 1,2,3
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 08/08/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 and 227 of the Constitution of India, the petitioner herein has challenged Page 1 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the order dated 29.09.2015 passed by the Disciplinary Authority i.e. Acting Chief Administrative Officer, for Institute of Plasma Research (for short 'the IPR') as found confirmed by the Appellate Authority vide order dated 21.12.2015 in IPR/ADMN/APPEAL/109796/12, passing the order of removal of the petitioner from his services from the post of Engineer SC and has prayed for the following reliefs:
"A. YOUR LORDSHIPS may be pleased to admit and allow this petition.
B. YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ of mandamus or writ in any nature or direction, by quashing and setting aside the order dated 29/09/2015 passed by the Acting Chief Administrative Officer, i.e. respondent No.2, removing the petitioner from his services from the post of Engineer SC as well as the order dated 21/12/2015 passed by the Director i.e. Appellate Authority confirming the same.
C. Pending hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to stay the execution, operation and implementation of the impugned order dated 29/09/2015 passed by the Acting Chief Administrative Officer, i.e. respondent no.2, removing the petitioner from his services from the post of engineer SC as well as the order dated 21/12/2015 passed by the Director i.e. Appellate Authority confirming the same.
D. YOUR LORDSHIPS may be pleased to direct the respondent authorities to reinstate the petitioner on the original post by granting all such consequential benefits including monetary benefits as a consequence of illegal removal of the petitioner from his post in violation of principles of natural justice.
E. YOUR LORDSHIPS may be pleased to pass such other and further orders which may be deemed fit and proper in the interest of justice."
2. Brief facts leading to the filing of the present petition read thus:
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NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 2.1 The petitioner herein came to be appointed as Technical Assistant - B on 14.05.1993 with the Plasma Research Institute being administered by parent department i.e. Department of Atomic Energy, Union of India, having registered as autonomous body under the provisions of the Societies Registration Act, 1860. The petitioner came to be promoted as Engineer-SC on 17.03.2010. The petitioner herein completed 22 years of his service with due diligence and sincerity.
2.2 The petitioner was transferred from Electrical Maintenance Group to ICRH Division with immediate effect from 12.06.2014. The ICRH group being concerned with the research area into microscopic aspect of atom and other related activity, has no connection with the work being looked after by the petitioner as he has to solely deal with core area of the maintenance into electrical aspects in general. In view thereof, the petitioner could not have expected to work or perform on the area other than his expertise that the petitioner has acquired during his education and the training; which specifically concerned with core area like maintenance of electrical components in general.Page 3 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 2.3 Being an employee of prudent character, the petitioner tried to protest the change of group which was not suitable to the petitioner for the reason that the skill to work in such area is all together different and without any training imparted, any employee is bound to fall in error and therefore, the petitioner was constrained to write in his words, requesting the authority to reconsider the aspect of change of job assignment in form of group change, as it tantamount to modify the condition of services of the petitioner.
2.4 The respondent authority retaliated at the petitioner by issuing two memos, complaining the conduct of the petitioner for not joining the group. The issuance of memos at the end of the respondent authority speaks volume of bias against the petitioner, who otherwise remained so genuine all throughout this period had to fact the victimized behavior meted out against the petitioner for the first time. It is the case of the petitioner that this could be the starting point where the Management Authorities had started harboring ill will against the petitioner to anyhow uproot the petitioner by throwing him out of the services, without even holding the preliminary inquiry with respect to the correctness of certain allegations; Page 4 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined which are mandatory in nature.
2.5 The petitioner had tried to satisfy the respondent authority by stating that the given situation would not be as warranting so as constrain the authority to issue memo of warning without any fault on the part of petitioner-employee. If memos could be referred, the motive of the respondent No.3 is writ large, in the sense that the respondent authorities had made up the mind to any how dismiss the petitioner from the beginning and therefore, the first charge of the petitioner having derelicted in his duty is nothing but to label him as recalcitrant person and thereby, it had been decided by the disciplinary authority to impose major punishment under the departmental inquiry as provided under Rule 14 of the Central Civil Services (Classification Control and Appeal) Rules, 1965. 2.6 The petitioner attended his work from 12.06.2014 to 24.06.2014. However, the petitioner remained on medical leave from 24.06.2014 to 04.07.2014. The medical leave although found sanctioned by the concerned authority, the petitioner had been alleged as absented himself from duty and thus held to be guilty of charge i.e. dereliction of duty. The medical leave was found exhausted on 04.07.2014. The Page 5 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined petitioner had immediately reported to his original work i.e. Electrical Maintenance Group and thereafter, continued till 31.07.2014; the day on which first memo was issued against the petitioner. Thereafter, another memo came to be issued to the petitioner on 22.08.2014, leaving no option for the petitioner but, to join the Transferee Group i.e. Division (Ion Cyclotron Resonant Heating) not suitable not desirable to the petitioner and thereby, the petitioner had joined it on 28.08.2014 under the group leader namely, Mr. Kulkarni, leader of ICRH Group headed by the Director. 2.7 In the meanwhile, the petitioner had actually worked in his old group i.e. Electrical Maintenance Group from 06.06.2014 to 28.08.2014. The petitioner wrote a pro-test letter along with a copy of the letter joining new group i.e. ICRH with effect from 28.08.2014.
2.8 In view of the aforesaid, it is the case of the petitioner that the petitioner never wanted to disobey the command from higher authority for not joining the new group. In fact, the petitioner did not have any acquaintance to cope up the skill required at higher level to ensure the efficient working of the petitioner in the new group called ICRH. The petitioner tried his Page 6 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined level best to convince the authority by way of repeated representations that the new group being undesirable and irrelevant for particular category of engineer with different skill, it was not advisable for the petitioner to work with. The petitioner having lost his last request i.e. 08.08.2014, had left with no option but to join the new group on 28.08.2014. In the meantime, the petitioner remained on sanctioned medical leave of 14 days. Otherwise, the petitioner had worked for rest of the days. The petitioner could be said to have absent for 14 days, if the leave could be treated as earned leave. The ultimate joining of group on the part of the petitioner, though with little resistance, could not have given any occasion to the authority to brand the petitioner as "Disobedient Employee" in as much as he never refused to carry out the instructions. But his delayed manner of complying with the instruction of late joining group i.e. ICRH for compelling reason may not be viewed as "Desertion of the Post".
2.9 It is the case of the petitioner that the respondent authority had committed an error in counting two weeks of absenteeism without giving any opportunity of hearing while doing so. The petitioner had in-fact applied for leave but, the Page 7 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined same was not sanctioned by the respondent authority otherwise, the petitioner had remained absent for only 5 days i.e. 15.09.2014 to 19.09.2014. The Inquiry Officer had committed gross error in proving the charge no.2. The respondent authority has led emphasis upon the aspect of disobedience of petitioner in flouting the instructions of the divisional head as per whom, the petitioner had not joined the group after repeated attempts and had not completed the task assigned to him. The Divisional head Shri Kulkarni had chosen to remain absent during the inquiry proceedings and therefore, the reminders in his name could not have been of any use that too, when the petitioner had already started working with new group that required different skill other then the skill like the petitioner on the post.
2.10 That, as far as the charge no.2 is concerned, it alleged that the petitioner has not completed the task assigned to him. It is the case of the petitioner that the petitioner completed the task assigned to him by Shri Kulkarni, the Divisional Head, however, the same was not approved by Shri Kulkarni for which, the petitioner could not have been victimized. 2.11 It is the case of the petitioner that charge nos.2 and 3 are Page 8 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined interconnected with each other in view of the fact that the petitioner had rightly not worked efficiently for lack of training in ICRH Group. The charge no.4 of being late entry and its indication on computer operated system does not have any bearing on the integrity of the employee which could make him unsuitable for the post. That, lastly, the authority had imputed that the petitioner was not punctual in work on the same material i.e. Security report, Computer system; which had shown the frequency of attending the work by the petitioner. The charge is not so grave and the lesser punishment like warning ought to have served the purpose. The charge no.6 was later on found dropped by the Inquiry Officer in view of the fact that the petitioner had suffered the heart pain and therefore, left the chamber of the director. 2.12 Having concluded that the charges were proved against the petitioner, the authority had sent intimation upon the petitioner to show as to why the punishment of removal or dismissal from service should not be imposed under Rule 11 of the Central Civil Services Rules. The petitioner had inter-alia contended that the inquiry was nothing but the malafide intention of the Chief Admin Officer, Shri P.K. Atrey, who only Page 9 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined wanted to settle the score with the petitioner as he failed only once, at the time of informal gathering, during such time, the petitioner thought to avoid himself from humiliating treatment which would not have warranted punishment like that of dismissal of the petitioner from the service. 2.13 It is the case of the petitioner that the petitioner had prayed for any lesser punishment, to be imposed upon him, as the petitioner worked in the department for 22 years without any irregularity and that, his tenure remained excellent with fantastic track record throughout except, the unusual happening of 2014 in which, the petitioner was asked to shift to ICRH; irrelevant for the field of Electrical Maintenance Works which is unique skill with training and the same is mastered by the petitioner.
2.14 The authority issued punishment for removal from his post under Rule 15 of the CCS (CCA) Rules, 1965 read with bylaws no.4.1.12 of the IPR, considering the gravity of the charges as found intended by the authority, by the order dated 29.09.2015. Being aggrieved by the said order, the petitioner approached the learned Director, IPR by filing appeal under the provisions of bylaws of the institute, which came to be Page 10 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined dismissed by the appellate authority by the order dated 21.12.2015.
2.15 In view of the facts, as referred above, and being aggrieved by the impugned orders dated 29.09.2015 passing an order of removal and the said order having been confirmed by the appellate authority, the petitioner is constrained to approach this Court and has prayed for the reliefs as referred above.
3. Heard Mr. Himanshu Dineshchandra Parekh, learned party-in-person for the petitioner, Mr. Deepak G. Shukla, learned advocate appearing for the respondent Nos.1 to 3 and Ms. Vyoma Jhaveri, learned advocate appearing for the respondent No.4.
4. Mr. Himanshu Dineshchandra Parekh, learned party-in- person for the petitioner, at the outset, submitted that the petitioner herein was appointed as Technical Assistant - B on 14.05.1993 and subsequently, promoted to Engineer - SC on 17.03.2010 having blotless service of 22 years in the Plasma Research Institute. It is submitted that the order of removal was passed by a Sub-Ordinate authority violating the Page 11 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Institute's own bylaws. It is submitted that not a single witness was brought in the inquiry proceedings and therefore, there was no cross - examination and in view thereof, the inquiry, stand vitiated. It is submitted that in the first two proceedings, 'Defense Assistant' from outside was refused and in the last proceeding, which is the fifth proceeding, the 'Defense Assistant' was not allowed. The last proceeding was conducted ex-parte in the petitioner's absence. It is submitted that the order of removal passed by the Appellate Authority is a non- speaking order. It is submitted that the entire inquiry and removal from job was to take revenge after one meeting held on 27.02.2014 in which, the petitioner had to leave the Director's room due to heart problem and the petitioner had to take treatment the very next day. It is submitted that thereafter, warning memo was given and within few months, the petitioner's group was changed from Electrical Maintenance Group to ICRH (Ion Cyclotron Resonant Heating), where, the petitioner was engaged in research work, which was irrelevant for the person with Electrical maintenance experience for more than 20 years. It is submitted that the author of the documents was part of the Inquiry Committee and he was not examined.
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NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 4.1 Reliance is placed on CCS (CCA) Rules, 1965 which provide that any official who has to give evidence in the Inquiry, should not be nominated as a member of Inquiry Committee or in any way associated with disposal of proceedings of that committee. Placing reliance on the same, it is submitted that in the present case, the Inquiry was on the basis of the document/evidence of Mr. Sanjay Kulkarni, who is author of the document and who was to be examined, was himself part of the inquiry committee during the first proceeding and on this ground alone, the Inquiry itself gets vitiated. It is submitted that the charges have been proved against the petitioner on the mere ipse dixit of the Inquiry Officer, who gave findings on the basis of few documents, in context of the same, the reply although submitted by the delinquent, the charges have been ordered to be proved without realizing the fact that the author of the document viz. Mr. Kulkarni, as referred above, was not at all examined by the authority nor any attempts have been made to secure his presence.
4.2 Mr. Parekh, learned party-in-person, submitted that the last proceeding, in which, the Inquiry Officer has not allowed Page 13 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Defense Assistant to participate and the petitioner was told to participate in Inquiry without Defense Assistant aid. Apart from this, list of witnesses and their statements were also not given. The Inquiry was going to be conducted without witnesses, statement of witnesses and Defense Assistant. Since all these things are vital to carry out Inquiry in just and fair way, the petitioner told Inquiry Officer for all such opportunities. Without Defense Assistant and witnesses, their list and statements, Inquiry cannot be proceeded. It is submitted that the principles of natural justice are violated in the proceedings of 25.08.2015 whereby, the Inquiry Officer on one hand stated that the list of witnesses along with their statements will be provided as and when required and the petitioner was asked repeatedly for the list of witnesses along with their statements and in absence of those details, the petitioner was not in a position to defend his case as well as attend the proceedings as the said documents are mandatory.
4.3 Placing reliance on the aforesaid submissions, it is submitted that the prayers, as prayed for, in the present petition be allowed and that a direction be issued to the respondent authority to reinstate the petitioner with back Page 14 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined wages in the original post by granting all such consequential benefits including monetary benefits as a consequence of petitioner's illegal removal from the post; the same being violative of the principles of natural justice.
5. Per contra, Mr. D.G. Shukla, learned advocate appearing for the respondent Nos.1 to 3, placed reliance on the affidavit- in-reply filed by the respondent Nos.1 to 3 duly produced at page 194 to the petition. At the outset, it is submitted that the Respondent Institute is an autonomous body registered as a Society under the provisions of the Societies Registration Act, 1860 on 28.08.1986 and in view thereof, the respondent Institute is neither a 'State' within the meaning of Article 12 of the Constitution of India nor it is an agency or instrumentality of the State. Further, the respondent - Institute is neither Department of the Government nor its employees are governed by Article 311 of the Constitution of India. The employees of the respondent Institute do not hold any civil post under the Union or the State Government. The respondent Institute does not derive any public duty function nor it is functioning like any Statutory Corporation or the Board or like Government or Semi-Government Institutions and therefore, Page 15 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the Institute cannot by any stretch of imagination, be treated to be a 'State' or 'other authority' within the meaning of Article 12 of the Constitution of India, as referred above. It is submitted that the present petition raises highly disputed questions of facts which cannot be decided on affidavits filed before this Court and in view thereof, the present petition be dismissed in limine.
5.1 Mr. Shukla, learned advocate, submitted that the petitioner was appointed by the respondent - Institute as a 'Technical Assistant' - B (Electrical) on 14.05.1993 in the pre revised pay - scale of 1400-40-1600-50-2300-EB-2800. Initially, the petitioner was assigned the "Power Supply of Plasma Processing Group" and thereafter, by way of rotational transfer policy over a period of time, was transferred to "Aditya Power Supply Group". The petitioner was assigned the task such as maintenance of Electric Switch Gear, relay testing of 11 KV protection CKT, minor repairs of Electric circuit of Power Supply, replacement of components of Aditya Power Supply like TF, Ohmic and VF, Operation of Aditya Power Supply, etc. A copy of the Appointment letter dated 03.05.1993 of the petitioner is duly produced at Annexure -I. Page 16 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 5.2 Mr. Shukla, learned advocate, submitted that the petitioner was transferred to "Electric Maintenance Group" in 2003 wherein, the petitioner was assigned task such as regular maintenance of 11 KV/415 V Substation like checking the connections, tightness, insulation, earthing, oil level, oil leakage, noise level etc. supervising the LT electrical cable laying, distribution of power and earthing, raising the indent and coordinating with contractors for the HT transformer overhauling and oil filtration, overhauling of LT Air Circuit Breakers (ACBs), MCCBs and switchboards, through Contractors, cable testing, cable laying and termination works, procurement of electrical items for laboratory power wiring and distribution, coordinating the maintenance of lifts etc. It is submitted that the petitioner got promoted as per the promotion policy of the Institute from the post of Technical Assistant - B to Technical Assistant C, D, E and lastly, promoted to Engineer SC in 2010 by way of category change. The petitioner was transferred to "Ion Cyclotron Resonance Heating (ICRH) Group" on 12.06.2014 as rotational transfer policy and subsequently, was relieved from his existing group i.e. Electric Maintenance Group to take the charge of Electrical Page 17 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Engineer in ICRH group but, the petitioner did not join the assigned group.
5.3 Mr. Shukla, learned advocate, submitted that during the meeting with Director on 27.02.2014, the petitioner misbehaved with the Director and refused to carry out the instructions. Consequently, the petitioner was served with a Memorandum dated 05.03.2014 for misconduct of willful insubordination and disobedience and subsequently, issued warning dated 02.04.2014 strongly advising the petitioner to carry out the instructions and see that such or similar misconduct is not repeated in future. The petitioner was time and again verbally advised by the petitioner's previous Supervisor - Dr. V. Balakrishnan and Division Head - Dr. D. Chenna Reddy during 13.06.2014 to 30.07.2014 but, the petitioner refused to join the new Division and did not work or reported on duty. The petitioner was habituated to reach the office late and did not remain present at the place of his duty. The petitioner was thus counselled and also orally reprimanded to correct himself but, the same was also in vain. 5.4 Mr. Shukla, learned advocate, submitted that the petitioner wrote E-mails dated 23.06.2014, 10.07.2014, Page 18 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 22.07.2014 and 19.08.2014 reiterating that the petitioner would not join the ICRH Group. Since all the attempts failed, the petitioner was issued Memorandum dated 31.07.2014 advising him to immediately join the duty and report to his new Division Head and start working since the same amounts to gross misconduct as per the Central Civil Services (Classification, Control & Appeal) Rules, 1965 but, the petitioner refused to join the new Division and replied to the same on 08.08.2014 by way of a threat that if the petitioner would be harassed, the petitioner would be forced to take further appropriate actions. It is submitted that the petitioner was given one more opportunity by issuing another Memorandum dated 22.08.2014 strongly advising the petitioner to join the duty and start working, which was refused by the petitioner and therefore, said Memorandum dated 22.08.2014 was sent by Speed Post at the residential address. Reliance is placed on clause - 3 and clause - 4 of the appointment order which provides that the petitioner is required to serve at any place or section specified by IPR at any time and the appointment of the petitioner would be governed by the rules and bylaws which govern IPR from time to time, which is accepted by the petitioner. Page 19 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 5.5 Mr. Shukla, learned advocate, submitted that finally, on 28.08.2014, the petitioner joined the group by submitting joining report. It is submitted that though, the petitioner was present in the office premises, did not report to the duty in the new Division i.e. ICRH group for the period between 12.06.2014 to 27.08.2014, which was treated as 'unauthorized absence' (not covered by grant of leaves) vide Note dated 21.10.2014. It is submitted that the petitioner availed commuted leave between 24.06.2014 to 04.07.2014 which was granted as per the rules. It is submitted that the petitioner was served with a Memorandum dated 15.12.2014 for his bad time keeping and attendance sheet of 6 months; duly attached with the said memorandum. Based on the complaint from the petitioner's Division Head dated 31.03.2015, the petitioner was again issued another Memorandum dated 13.04.2015 wherein, it was mentioned that "After accepting work in first two weeks from his Division Head - Dr. Sanjay Kulkarni, the petitioner did not report for work or at duty place inspite of several verbal, telephonic and e-mail communications during that period. It is submitted that the petitioner did not complete the assigned tasks and thus, non - performance was observed. The Page 20 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined petitioner did not submit work report, did not attend group meetings and thus, resorted to willful insubordination, disobedience and habitual negligence in discharge of duties. 5.6 Mr. Shukla, learned advocate, submitted that finally, on 02.06.2015, the petitioner was served with a chargesheet under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 and disciplinary proceedings came to be initiated against the petitioner. Reliance is placed on paragraphs 4.16, 4.17, 4.18 and 4.19 of the affidavit-in- reply and placing reliance on the same, it is submitted that the petitioner herein repeatedly did not allow the proceedings to continue and progress. The Inquiry Officer had adjourned the proceedings from time to time. It is submitted that instead of proving innocence against the charges leveled against him, the petitioner did not want to take up the Articles of charge 1 to 6 and deliberately tried to bringing issues like Defense Assistant and irrelevant issue of list of witnesses with a clear intention of not cooperating with the Departmental Inquiry initiated against him. It is submitted that on conclusion of the Inquiry, the Inquiry Officer submitted the report with findings dated 08.09.2015 and concluded that the substances of imputations Page 21 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined of misconduct as set out in the statement of Article of charges 1 to 5 vide Memorandum No.IPR/ADMN/Memo/05/109796 dated 02.06.2015 stood fully proved. The substances of imputations of misconduct as set out in the statement of Article of charge No.6 vide Memorandum No.IPR/ADMN/Memo/ 05/109796 dated 02.06.2015, was not insisted upon since the warning was issued for the said charge earlier. Copy of the report of the Inquiry Officer along with the findings were sent to the petitioner on 11.09.2015. The petitioner rendered explanation/representation to the same by E-mail dated 24.09.2015. It is submitted that the Disciplinary Authority upon careful consideration of the report of Inquiry along with findings as well as the explanation/representation from the petitioner and the facts of the case, in exercise of powers conferred by Rule 12 read with Rule 15 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, imposed the penalty of "Removal from the service with immediate effect" on the petitioner vide Memorandum No.IPR/ ADMN/Memo/09/2015/109796 dated 29.09.2015. Placing reliance on the aforesaid submissions, Mr. Shukla, learned advocate, submitted that the action of the respondent Institute is just and proper, after following due process of law and in Page 22 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined accordance with the principles of natural justice. 5.7 Mr. Shukla, learned advocate, submitted that the petitioner herein preferred an appeal challenging the said order dated 29.09.2015 wherein, the Appellate Authority upon consideration of the Inquiry report along with findings, confirmed the order of penalty of removal from service vide letter No.IPR/ADMN/Appeal/109796/12 dated 21.12.2015. It is submitted that on 12.01.2016, the petitioner handed over the office materials lying in his possession and clear all the outstanding dues pertaining to House Building Advance and Computer Advance etc. and the Institute also gave balance amount towards Provident Fund, pending salary etc. to close the account. It is submitted that the matter was reported to the Governing Council of the respondent - Institute in its meeting dated 03.09.2015 and 11.03.2016.
5.8 Mr. Shukla, learned advocate, submitted that the petitioner was appointed on 03.05.1993 by the appointing authority- Chief Administrative Officer. The disciplinary inquiry was initiated and one Mr. V. Rangnathan, Admn. Officer, (Retired), PRL, DOS, Ahmedabad, was appointed as Inquiry Officer and in view thereof, the contention of the petitioner Page 23 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined that the Inquiry was conducted by the Subordinate official, was negative. Placing reliance on the aforesaid submissions, it is submitted that the present petition be dismissed.
6. Mr. Himanshu Dineshchandra Parekh, learned party-in- person for the petitioner, in rejoinder, reiterated the submissions made earlier and relied on the following decisions:
(a) Letters Patent Appeal No.1596 of 2019 in case of State of Gujarat Vs. Jayantilal Rajgor;
(b) 2002 (2) LLJ 219 in case of Gh. Ahmad Paul Vs. State of J & K & Ors.;
(c) 2013 (10) SCC 324 in case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) .
Analysis:-
7. Heard the learned advocates appearing for the respective parties, the following emerge:
7.1 The petitioner came to be appointed as 'Technical Assistant'-B on 14.05.1993 with the Plasma Research Institute in the pre-revised pay scale of 1400-40-1600-50-2300-EB-
2800; being administered by parent Department i.e. Department of Atomic Energy, Union of India, having been Page 24 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined registered as an autonomous body under the provisions of Societies Registration Act, 1860 on 28.08.1986. The said appointment order is came to be issued by the Chief Administrative Officer which is duly produced at Annexure - A, page 27 to the petition. Initially, the petitioner was assigned the "Power Supply of Plasma Processing Group" and thereafter, by way of rotational transfer policy over a period of time, the petitioner was transferred to "Aditya Power Supply Group". The petitioner was transferred to "Electric Maintenance Group" in the year 2003 wherein, the petitioner was assigned the tasks such as regular maintenance of 11KV/415 V substation.
7.2 The petitioner was promoted from the post of Technical Assistant - B to Technical Assistant C, D, E and lastly, promoted to Engineer -SC in 2010 by way of category change. In the year 2014, the petitioner was transferred to "Ion Cyclotron Resonance Heating" (ICRH) Group" by way of rotational transfer policy and subsequently, was relieved from his existing group i.e. Electric Maintenance Group to take the charge of Electrical Engineer in ICRH Group. 7.3 The petitioner resisted the rotational transfer from Page 25 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Electric Maintenance Group to the ICRH Group by refusing to carry out the instructions. In view thereof, the petitioner was served with a Memorandum dated 05.03.2014 for misconduct of willful insubordination and disobedience and subsequently, issued warning on 02.04.2014 strongly advising the petitioner to carry out the instructions and see to it that such misconduct is not repeated. The petitioner was time to time verbally advised by the Supervisor- Dr. V. Balakrishnan and Division Head - Dr. D. Chenna Reddy to mend the attitude and behaviour and conduct himself in a responsible and disciplined manner and to maintain devotion to the petitioner's duty at all times.
7.4 This Court has perused the communication issued by the petitioner dated 23.06.2014, 10.07.2014, 22.07.2014 and 19.08.2014 duly produced from page 224 to 229, Anneuxre - III colly., refusing to join the newly allotted ICRH Group. In view thereof, the petitioner was issued Memorandum on 31.07.2014 duly produced at Annexure - IV, page 230. The petitioner rendered explanation to the said memorandum by communication dated 08.08.2014. In view thereof, the respondent authority was constrained to issue another Page 26 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Memorandum dated 22.08.2014 whereby, the petitioner was given final opportunity to immediately join the new Division and start working, failing which, appropriate disciplinary actions would be initiated without showing any leniency. 7.5 The petitioner reported to the Division Head on 28.08.2014. The petitioner, thereafter, vide Note dated 21.10.2014 duly produced at page 235, Annexure - VII, submitted leave forms vide E-mail dated 11.09.2014 which reads thus:
"IPR/EST/109796/2014/10/2 October 21, 2014 NOTE Mr. Himanshu D. Parekh, Engineer - SC was served with Memorandum dated 31/7/2014 and 22/8/2014. In response to the Memorandum dated 31/7/2014, Mr. Parekh had submitted his written reply dated 8/8/2014.
Thereafter, Mr. Parekh reported to the Division Head on 28/8/2014 and has subsequently started working. Now, Mr. Parekh has submitted leave forms vide e mail dated 11/9/2014 as under -
Period Number of day/days
16/06/2014 to 20/06/2014 5 days - EL
24/06/2014 to 04/07/2014 11 days - Commuted
30/07/2014 1- day - EL
04/08/2014 1 day - EL
11/08/2014 to 14/08/2014 4 days - EL
25/08/2014 to 27/08/2014 3 days - EL
The Commuted leave during 24/6/2014 to 4/7/2014-total 11 days has been sanctioned. Mr. Parekh is hereby conveyed competent authority's decision to treat the remaining period of willful absence from duty not covered by grant of leave as Dies-non.Page 27 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Sd/-
(P. K. Atrey) Acting Chief Admin. Officer"
7.6 The commuted leave during 24.06.2014 to 04.07.2014, total - 11 days, came to be sanctioned. The remaining period was considered as willful absence from duty which was not covered by grant of leave as Dies-non. The Division Head (ICRH) issued a communication to the Acting Chief Admin Officer, IPR, on 31.03.2015 bringing to the notice that the petitioner had done nothing from ICRH Group and whenever the petitioner came to the Division Head, Dr.S.V. Kulkarni, instead of technical discussions, the petitioner kept on arguing with respect to his knowledge of Bhagvat Gita. Further, from the attendance sheet that Mr. Harvey sent, it was learned by the Division Head that during last three months, the petitioner was on leave but, has failed to filled the leave forms. The petitioner was habitual to come late and habitual absence and when the petitioner is present in the IPR, is not reporting at his work place or reporting to the Division Head and neglect the work/task assigned and that, the Divison Head, Dr. S.V. Kulkarni, was not happy with the work of the petitioner. 7.7 In view of above, on 13.04.2015, Memorandum came to Page 28 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined be issued to the petitioner once again advising him to improve upon lapses and start working. By Memorandum dated 02.06.2015, the petitioner was informed that the respondent authority proposed to hold an inquiry against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The petitioner was asked to submit his written statement of defence within 10 days from the receipt of the said Memorandum. Further, the attention of the petitioner was also drawn to Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The said Memorandum was attached along with the Article of Charges wherein, six charges came to be framed; duly produced at page 241 - 245. The petitioner replied to the same by filing written statement of defence by communication dated 22.06.2015 denying the charges levelled against the petitioner and also placed on record the documents relied upon by the petitioner, duly produced at Annexure - X, page 246. In the said reply, the petitioner asked for the documents like (i) Record of Security Personnel for In and Out of all employees for one year and; (ii) Service Manual applicable to Institution including list of misconduct, duly produced at page 256. Page 29 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 7.8 The petitioner by communication dated 07.07.2015 and 13.07.2015 demanded of an Inquiry Officer not associated with the IPR (even in past) for impartial action of Inquiry, duly produced at page 257, Annexure - XI colly. Accordingly, the respondent authority appointed one Shri V. Ranganathan as Inquiry Officer. The petitioner by communication dated 21.07.2015 requested for a Defense Assistant from outside the Institute. Accordingly, on 19.08.2015, one Mr. R.S. Sisodiya, Ticket No.1391, Engg. Workshop, Western Railway, D-cabin, Sabarmati, was permitted as Defense Assistant. The Defense Assistant was instructed to provide proof of his being a Government Servant which he could not provide. The same is reflected from the daily order sheet dated 25.08.2015 duly produced at page 265, Annexure - XIV.
7.9 The Inquiry Officer, Mr. V. Ranganathan, Ex-Admin Officer-PRL, place the Inquiry Report on 08.09.2015 duly produced at page 267 wherein, the findings of the Inquiry Officer reads thus:
"The following are my findings:
The charge as per Article of Charge 1 is that after accepting work on 12/6/2014, the CO reported to the new division only on 28/8/2014 and from 28/8/2014 for two weeks he did not report for work nor was he present in his duty place. As per the documents provided by the PO, Order from ACAO dated Page 30 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 12/6/2015 (Exhibit-16) regarding change of group and joining report of CO dated 28/8/2014 (Exhibit-17), the charge stands proved as it is.
The charge as per Article of Charge 2 is that the CO did not complete the tasks assigned to ✓him by the ICRH Systemshim by the ICRH Systems Division Head. This charge also stands proved as it is.
The charge as per Article of Charge 3 is that the CO did not submit Monthly Work Done Report and did not attend the Group Meetings where the status of work, the problems and its solutions etc. are discussed. This charge also stands proved as it is.
The charge as per Article of Charge 4 is that the CO leaves the premises of the Institute without permission or information. This charge also stands proved as it is looking at the report dated 13/4/2015 from the Security Officer (Exhibit-18).
The charge as per Article of Charge 5 is that the CO has been coming late to the Institute. Looking at the document viz. Attendance report from the Access Control System of the Institute, this charge also stands proved as it is.
The charge as per Article of Charge 6 is that the CO refused to carry out instructions of the Director during a meeting with the latter on 27/2/2014. He also misbehaved, argued and left the room. In his reply to the memo dated 6.3.14 issued to him on this matter, the CO had stated that during the discussion with the Director on 27.2.2014, he experienced pain in left side of his chest and physical suffocation and so he was compelled to leave the meeting room abruptly without taking the permission of the Director. Subsequent to his reply, a warning letter dated 2.4.2014 was also issued to him. Since action was already taken on this charge and another case of such act from CO is not brought in to the charge, this charge need not to be insisted upon."
7.10 The petitioner was issued a Memorandum on 29.09.2015 pursuant to the Inquiry report along with findings dated 08.09.2015, as referred above. The substance of imputations of misconduct as set out in the statement of Article of Charges 1, 2, 3, 4, 5 and 6 vide Memorandum No.IPR/AMDN/Memo/05/109796 dated 02.06.2015, was not Page 31 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined insisted upon as recommended by the Inquiry Officer. The Inquiry report was provided to the petitioner also on 11.09.2015 to submit his representation/submission in writing and in view thereof, the petitioner be awarded appropriate penalty under the Central Civil Service (Classification, Control and Appeal) Rules, 1965 considering the gravity of charges leveled against the petitioner. The competent authority under Rule 15 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 and as per Clause 4.1.12 of the IPR bylaws, decided to impose upon the petitioner the penalty of removal from the services with immediate effect. The said order dated 29.09.2015 is duly produced at Annexure - XVI, page 279.
7.11 Being aggrieved by the impugned order passed by the competent authority dated 29.09.2015, the petitioner preferred an appeal before the Director, Appellate Authority. The Appellate Authority by order dated 21.12.2015 upon considering the charge of penalty of removal from service imposed of the petitioner vide office Memorandum No.IPR/ADMN/Memo/09/2015/109796 dated 29.09.2015, stood endorsed, which reads thus:
Page 32 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined "I have gone through your letter dated 9/11/2015 and after considering the following, I hereby confirm that the findings of the Inquiry Report are justified and thus the penalty of Removal from Service imposed on you vide our Office Memorandum No. IPR/ADMN/Memo/09/2015/109796 dated 29.9.2015 stands endorsed:
1. The misconduct committed by you and the gravity of offence.
2. Charge-sheet vide Memorandum No. IPR/ADMN/Memo/05/109796 dated June 2, 2015 issued to you and the relevant documents.
3. Your Reply to the charge sheet dated 22.06.2015.
4. Daily Order Sheets of inquiries held and the documents relied upon during inquiry.
5. Inquiry Report dated 8/9/2015 submitted by the Inquiry Officer.
6. Your Representation dated 25.9.2015 against the Inquiry Report to the Disciplinary Authority and the consideration thereof by the Disciplinary Authority.
7. Actions taken on the Inquiry Report, i.e. Removal from Service, vide Office Memorandum No. IPR/ADMN/Memo/09/2015/109796 dated 29.9.2015.
8. Procedure as prescribed in the IPR Bylaws have been complied or not.
Most of the points raised in your appeal were already considered on receipt of your representation dated 25/9/2015 against the Inquiry Report before taking action on the same by the Disciplinary Authority."
8. In view of the aforesaid undisputed facts, it is apposite to deal with the decisions relied upon by the learned party-in- person.
8.1 In Letters Patent Appeal No.1596 of 2019 in case of State of Gujarat Vs. Jayantilal Rajgor, in the facts of the said case, the Hon'ble Division Bench upheld the appointment of the respondent made for five years on contract basis. The Hon'ble Page 33 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Division Bench held that when the termination was affected on the ground of misconduct, it was a stigmatic order which could not have been passed without full fledged inquiry. In the facts of the said case, the department had not conducted the departmental inquiry against the respondents.
In the facts of the present case, the respondent - Institute issued show cause notices, chargesheet and conducted full fledged inquiry by following the principles of natural justice and the petitioner was held guilty of all the six Article of charges by the Inquiry Officer. The respondent - Institute upon receiving comments from the petitioner, passed the order of penalty of removal from service. In view thereof, the aforesaid judgment would not be applicable to the facts of the present case.
8.2 In 2013 (10) SCC 324 in case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) , the Hon'ble Supreme Court held that in cases of wrongful/illegal termination from service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer for the wrongdoings by relieving the burden to pay to the employee/workman his dues Page 34 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined in form of full back wages. In the facts of the said case, the Hon'ble Apex Court further directed the management to pay full back wages to the employee within four months from the receipt of the order, failing which, interest at the rate of 9% p.a. from the date of the employee's suspension till the date of actual reinstatement was granted.
8.3 In 2002 (2) LLJ 219 in case of Gh. Ahmad Paul Vs. State of J & K & Ors.; in the facts of the said case, the Hon'ble Jammu & Kashmir High Court held that the petitioners were entitled to full back wages because their dismissal was without justification and that, the petitioners were prevented from performing their duties by the respondents. Reliance was placed on Article 108-B(ii) of the J & K Civil Services Regulations which provides that a Government servant who is fully exonerated or whose suspension was wholly unjustified, be paid full pay and allowances for the period of absence from duty.
Both the aforesaid decisions (8.2 & 8.3) are not applicable to the facts of the present case. In the facts of the present case, the petitioner committed misconducts and charges stand proved after conducting the detailed Page 35 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined departmental inquiry upon following due procedure of law. The petitioner herein is removed from the services and in view thereof, the question of making any payment to the petitioner, does not arise.
9. The petitioner herein in rejoinder affidavit contended that the appellate authority in respect of charges leveled against the petitioner and the conclusion thereof, is only the council and disciplinary authority (Director) and that, the memorandum dated 29.09.2015 issued by Acting Chief Administrative Officer, Mr. P.K. Atrey and the impugned order dated 21.12.2015 is passed by the Director of the respondent - Institution, which is illegal as per the applicable rules to the respondent - Institution.
9.1 The Hon'ble Supreme Court in case of P.V. Srinivasa Sastry Vs. Comptroller & Auditor General of India, reported in 1993 (1) SCC 419; has dealt with an identical issue and while Article 311(1) provides that no person who is a member of a civil service of the Union or an All - India service or a Civil service of a State or holds civil post under the Union or a State "shall be dismissed or removed by an authority subordinate to that by which he was appointed, held that it is well known that Page 36 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the departmental proceeding consists of several stages; initiation of proceedings, inquiry in respect of charges leveled against the delinquent officer and the final order which is passed upon conclusion of the inquiry. Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. It is always open for the respective Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. However, in absence of such rule, the aforesaid right or guarantee does not flow from Article 311 of the Constitution. It is apposite to refer to paragraphs 4 and 5 of the said decision which read thus:
"4. Article 311(1) says that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds civil post under the Union or a State "shall be dismissed or removed by an authority subordinate to that by which he was appointed". Whether this guarantee includes within itself the guarantee that even the disciplinary proceeding should be initiated only by the appointing authority? It is well known that departmental proceeding consists of several stages; the initiation of the proceeding, the inquiry in respect of the charges levelled against that delinquent officer and the final order which is passed after the conclusion of the inquiry. Article 311(1) guarantees that no person who is a member of a civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any Rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. Any such Rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder Page 37 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined of a civil post. But in absence of any such Rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the farmers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a Rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding.
5. In the case of State of Madhya Pradesh v. Shardul Singh, the departmental enquiry had been initiated against the Sub-Inspector of Police by the Superintendent of Police, who sent his enquiry report to the Inspector-General, who was the appointing authority. The Inspector-General of police dismissed the officer concerned from the service of the State Government. That order was challenged on the ground that the initiation of the departmental enquiry by the Superintendent of Police was against the mandate of Article 311(1) of the Constitution. This contention was accepted by the High Court. But this Court said:-
"We are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article."
10. It is the case of the petitioner that the departmental inquiry is violative of principles of natural justice. Having gone through the documents placed on record, as referred above, in the opinion of this Court, the disciplinary inquiry has been conducted after providing opportunity of hearing to the petitioner from time to time and acceding to the request made by the petitioner with respect to the change in the disciplinary authority, as also permitting the petitioner to have the presence of the Defense Assistant. It is one thing that the said Defense Assistant was unable to provide the I-card which is Page 38 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined requisite to show that the said person is a State Government employee.
11. In view of the aforesaid, it is apposite to refer to the ratio laid down in case of Chairman & MD V.S.P. & Ors. vs. Goparaju Sri Prabhakaran Hari Babu, reported in 2008 (2) G.L.H. 146. Paragraphs 16.1, 17 and 17.1 read thus:
"16.1 The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others [JT 2005(1) SC 449; (2005) 2 SCC 638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [JT 2006 (12) SC 04]; Regional Manager, SBI v. Mahatma Mishra [JT 2006 (10)SC 179]; State of Karnataka v. Ameerbi & Ors. [JT 2007 (1) SC 279]; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [JT 2007 (12) SC 19] and Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi [JT 2008 (1) SC 25].
17. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.
17.1 The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order."
12. It is also apposite to refer to the ratio laid down in case of Tushar D. Bhatt, vs. State of Gujarat reported in 2009 (11) SCC
678. Paragraphs 10, 11, 12, 13, 15, 16, 17, 18 read thus:
"10. The Division Bench has also discussed the number of judgments decided by this court. The Division Bench observed that the appellant flouted the order of transfer and deliberately remained absent from Page 39 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the duty without leave for over six months and he indulged in the practice of brow- beating the superior officers and using intemperate language and indulging in this type of tactics leading to gross indiscipline is not in the interest of the institution. The Division Bench has reproduced the instances of use of intemperate language which were reproduced in para 6.3 of the judgment of the learned Single Judge. We deem it appropriate to reproduce the same.
"......Instances of use of intemperate language have been described in detail while discussing charge no.7. They are : (a) his transfer to Bhuj was not only illegal but disgusting (b) respondent no.2 runs the administration of Goods and Drugs Control Department as his private concern (c) the Commissioner is encouraging irregularities and corrupt practices in the department and by such corrupt administration he was damaging the health of people (d) he was also creating scandals with the help of Food Inspectors (e) whatever the other officers will have to suffer on account of scandals, respondent no.2 would be responsible for the same (f) whatever the scandals that have been done by the officers of this department in the past he (the petitioner) would be constrained to bring them to light even at the cost of the discipline (of the service) (g) respondent no.2 should cancel his order of transfer, which is illegal and he should be immediately posted at Ahmedabad or Gandhinagar (h) that respondent no.2 is directly involved in corrupt practices and if the order of transfer was not cancelled, he would expose scandals to the public and whatever the consequences it would be sole responsibility of respondent no.2 (i) if the order was not cancelled, he would be compelled to take such steps (j) he would expose them by having a meeting with the Secretary, Health Department and the Chief Minister regarding the corrupt practices, the irregularities done with the help of the Health Minister with a view to harass him if his order of transfer was not cancelled within four days, and (k) kindly render your explanation why steps should not be taken against you (respondent no.2) for the corrupt practices committed by him. It is, therefore, to be seen that for what purpose and what type of intemperate language has been used..."
11. The learned Single Judge was clearly of the opinion that strict view was required to be taken in the matter of discipline of the institution. According to him, when the disciplinary authority has taken appropriate view in the facts and circumstances of the case, then it should not be interfered with.
12. The learned Single Judge observed that no leniency in the punishment can be shown in the facts of this case. The learned Single Judge observed as under:
"The facts of this case do not warrant any such conclusion to be drawn by this Court and no interference with the decision of the disciplinary authority is warranted. If the petitioner is allowed to escape with minor penalty as suggested by Mr. Oza, it will certainly form a bad precedent and in a given case, some other Page 40 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined unscrupulous Government employee would resort to arm twisting of his superior for extorting a decision in his favour. Such leniency cannot be permitted."
13. The Division Bench of the High Court also concurred with the observations of the learned Single Judge in para 10 of the said judgment. The relevant portion of the judgment of the learned Single Judge reads as under:-
"it is well established proposition of law that scope of judicial review of the action taken by disciplinary authority against the delinquent is very limited. It is only when such order of punishment is found to be so perverse that no reasonable person can pass such order or the punishment imposed is shockingly disproportionate to the guilt established or there is violation of any fundamental rights or the principles of natural justice. The facts of this case do not warrant any such conclusion to be drawn by this court and no interference with the decision of the disciplinary authority is warranted. If the petitioner is allowed to escape with minor penalty as suggested by Mr. Oza, it will certainly form a bad precedent and in a given case, some other unscrupulous Government employee would resort to arm twisting of his superior for extorting a decision in his favour. Such leniency cannot be permitted. On the question of unauthorized absenteeism also Mr. Oza has placed reliance on several other decisions. However, they are on the same line, hence dealing with them would be mere repetition. Further, he has been held guilty not only of that charge, but composite charge of in all seven different nature which have been adequately prescribed in the charge-sheet."
15. The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies. In the instant case, in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellant's transfer order cannot be termed as mala fide. The appellant was not justified in defying the transfer order and to level allegations against his superiors and remaining unauthorisedly absent from official duties from 11.10.1999 to 27.4.2000 i.e. more than six months. In the interest of discipline of any institution or organization such an approach and attitude of the employees cannot be countenanced.
16. In Gujarat Electricity Board and another v. Atmaram Sungomal Poshani AIR 1989 SC 1433, this court had an occasion to examine the case of almost similar nature. This court observed as under:
"Transfer from one place to another is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the Page 41 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."
17. In Mithilesh Singh v. Union of India and Others, AIR 2003 SC 1724, the settled legal position has been reiterated. The court held that absence from duty without proper intimation is indicated to be a grave offence warranting removal from service.
18. In the instant case, the matter has been thoroughly examined by the learned Single Judge and the Division Bench of the High Court and we have also examined the matter in great detail. On consideration of the totality of the facts and circumstances of this case, no interference is called for in the impugned judgment. The appeal being devoid of any merit is accordingly dismissed leaving the parties to bear their costs."
13. The Hon'ble Supreme Court in case of North Eastern Karnataka R. T. Corpn. vs. Ashappa, reported in 2006(5) SCC 137, held in paragraphs 8 to 12 as under:
"8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.
9. In Delhi Transport Corporation v. Sardar Singh, (2004) 7 SCC 574, this Court opined:
"11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to Page 42 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined establish it by placing relevant materials. Clause (ii) of para 4 of the Standing Orders shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised."
10. Yet recently in State of U.P. v. Sheo Shanker Lal Srivastava and Others (2006) 3 SCC 276, it was opined that the Industrial Courts or the High Courts would not normally interfere with the quantum of punishment imposed upon by the Respondent stating:
"It is now well-settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well-settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one's conscience."
11. The said principle of law has been reiterated in A. Sudharkar.v. Post Master General, Hyderabad and Anr.[2006 (3) SCALE 524] stating:
"Contention of Dr. Pillai relating to quantum of punishment cannot be accepted, having regard to the fact that temporary defalcation of any amount itself was sufficient for the disciplinary authority to impose the punishment of compulsory retirement upon the Appellant and in that view of the matter, the question that the third charge had been partially proved takes a back seat. In Hombe Gowda Educational Trust and Another v. State of Karnataka and Others, (2006) 1 SCC 430, this Bench opined:
"The Tribunal's jurisdiction is akin to one under Section 11A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate. This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment The Tribunal may furthermore exercises its jurisdiction when relevant facts are not taken into consideration by the Management which would have direct bearing on the question of quantum of punishment. Assaulting a superior at a workplace amounts to an act of gross indiscipline. The Respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as shock one's conscience. A person, when dismissed from services, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of Page 43 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court."
12. In State of Rajasthan and Another v. Mohd. Ayub Naz [(2006) 1 SCC 589], this Court held:
"For the foregoing reasons, we are of the opinion that a government servant who has willfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/ retrial benefits during the period in question. The High Court has given all retrial benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was willfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent."
13. In light of the ratio laid down in the aforesaid decisions, this Court has a very limited jurisdiction to interfere in the disciplinary matters under Article 226 of the Constitution of India. More particularly, when the impugned order is passed following the principles of natural justice and the respondent authority having complied with the procedural requirements. In the facts of the present case, the petitioner herein resisted the order of transfer from one department to another on the ground that the new group i.e. ICRH being undesirable and irrelevant for particular category of Engineer with different skill, it was not convenient for the petitioner to work being Engineer and expert in his field i.e. Electrical Maintenance Page 44 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined Group and in view thereof, he was not comfortable with the transfer in the ICRH Group.
13.1 The aforesaid contention of the petitioner also does not appeal to this Court in view of the condition provided in the appointment order dated 03.05.1993. It is apposite to refer to condition Nos.4 and 8 of the said appointment order, which reads thus:
"4. You will have to serve at any place or section specified by IPR at any time.
8. Your appointment will be further subject to:
a) Declaring in writing to abide by all the rules, bye-laws and orders of IPR issued from time to time.
b) Producing documentary evidence in original and one attested copy each of your date of birth, educational qualification and experience etc. and three copies of passport/stamp size photograph.
c) Producing a certificate regarding your release from your present employer in case you are employed now.
d) Producing a certificate of medical fitness from the nearest Civil Surgeon/Authorized Medical Officer of Institute for Plasma Research.
e) Producing two certificates of character issued by Group 'A' Gazetted Officers of Central/State Government or Senior Officers of Public Sector Undertaking/Autonomous bodies of Central Government or from the Head of the institution last attended/organization employed in."
In view of the aforesaid, it is now not open for the petitioner to contend that the petitioner was comfortable in one department and resist such inter-department transfer. Page 45 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024
NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined
14. The respondent Institute is a society registered under the provisions of the Societies Registration Act, 1860 on 28.06.1986. The respondent - Institute is neither a department of the Government nor its employees are governed by Article 311 of the Constitution of India. The employees of the respondent - Institute do not hold any civil post under the Union or the State Government. The respondent - Institute does not derive any public duty nor function like any statutory corporation or the Board or like Government or Semi- Government Institutions and in view thereof, the respondent - Institute cannot be said to be a 'State' or 'Other authority' within the meaning of Article 12 of the Constitution of India.
15. At this stage, it is apposite to refer to the ratio laid down in 2024 SCC Online SC 1683 in case of Army Welfare Education Society, New Delhi vs. Sunil Kumar Sharma & Ors. wherein, the Hon'ble Apex Court, considered the question whether a writ petition filed against the Bengal Engineering Group, which was a society registered under the Societies Registration Act, maintainable or not. The Hon'ble Apex Court held that the Society is not a "State" or State instrumentality or other authority. It is apposite to refer to the relevant paragraphs of Page 46 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the said decision, which read thus:
"27. In spite of the above facts and circumstances, this Court held that the institute was not a "State" or State instrumentality or other authority.
28. If the Authority/Body can be treated as a "State" within the meaning of Article 12 of the Constitution of India, then in such circumstances, it goes without saying that a writ petition under Article 226 would be maintainable against such an Authority/Body for the purpose of enforcement of fundamental and other legal rights. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of the High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose.
29. So far as Article 12 of the Constitution is concerned, the "State"
includes "all local and other Authorities within the territory of India or under the control of the Government of India". The debate on the question as to which body would qualify as "other authority" & the test/principles applicable for ascertaining as to whether a particular body can be treated as "other authority" has been never ending. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), a writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be "State" under Article 12. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also "for any other purpose". Thus, power of the High Court takes within its sweep more "authorities" than stipulated in Article 12 and the subject- matter which can be dealt with under this Article is also wider in scope.
30. There are three decisions of this Court we must look into and discuss.
31. The first judgment is Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V. R. Rudani & Ors. reported in (1989) 2 SCC 691 and the other two judgments, we are talking about are K. Krishnamacharyulu & Ors. v. Sri Venkateswara Hindu College of Engineering & Anr. reported in 1997 (3) SCC 571 and Satimbla Sharma v. St. Paul's Senior Secondary School, reported in (2011) 13 SCC 760.
32. In Shri Anadi Mukta Sadguru (supra), dispute arose between the Trust which was managing and running science college and teachers of Page 47 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined the said college. It pertained to payment of certain employment related benefits like basic pay, etc. The matter was referred to the Chancellor of Gujarat University for his decision. The Chancellor passed an award, which was accepted by the University as well as the State Government and a direction was issued to all affiliated colleges to pay their teachers in terms of the said award. However, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking mandamus and direction to the Trust to pay them their dues of salary, allowances, provident fund and gratuity in accordance therewith. It is in this context an issue arose as to whether the writ petition under Article 226 of the Constitution was maintainable against the said Trust which was admittedly not a statutory body or authority under Article 12 of the Constitution as it was a private Trust running an educational institution. The High Court held that the writ petition was maintainable and the said view was upheld by this Court in the aforesaid judgment. The discussion which is relevant for our purposes is contained in paras 14 to 19. However, we would like to reproduce paras 14, 16 and 19, which read as under:-
"14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellant Trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character.[See The Evolving Indian Administrative Law by M.P. Jain (1983) p.
266.] So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
xxx xxx xxx
16. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them means everybody which is created by statute--and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article Page 48 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose'.
xxx xxx xxx
19. The term 'authority' used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied." (Emphasis supplied)
33. In para 14, the Court spelled out two exceptions to the writ of mandamus viz. (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body "with no public duty", mandamus will not lie. The Court clarified that since the Trust in the said case was an aided institution, because of this reason, it discharges public function, like government institution, by way of imparting education to students, more particularly when rules and regulations of the affiliating university are applicable to such an institution, being an aided institution. In such a situation, the Court held that the service conditions of academic staff were not purely of a private character as the staff had super-added protection by university's decision creating a legal right and duty relationship between the staff and the management. Further, the Court explained in para 19 that the term "authority" used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, inasmuch as Article 12 was relevant only for the purpose of enforcement of fundamental rights under Article 32, whereas Article 226 confers power on the High Courts to issue writs not only for enforcement of fundamental rights but also non-fundamental rights. What is relevant is the dicta of the Court that the term "authority" appearing in Article 226 of the Constitution would cover any other person or body performing public duty. The guiding factor, therefore, is the nature of duty imposed on such a body, namely, public duty to make it exigible to Article 226.
34. In K. Krishnamacharyulu (supra), this Court again emphasised that where there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of Page 49 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined public interest in performance of their duties. In such a situation, remedy provided under Article 226 would be available to the teachers.
35. However, both the decisions referred to above pertain to educational institutions and in the said cases, the function of imparting education was treated as the performance of the public duty, that too by those bodies where, the aided institutions were discharging the said functions like Government institutions and the interest was created by the Government in such institutions to impart education.
36. In Satimbla Sharma (supra), the school therein was initially established as a mission school by the respondent No.2. The school adopted the 10+2 system in 1993 and got affiliated to the Himachal Pradesh Board of School Education. Before independence in 1947, the school was receiving grant-in-aid from the British Indian Government and thereafter from the Government of India up to 1950. Between 1951 and 1966, the school received grant-in-aid from the State Government of Punjab. After the State of Himachal Pradesh was formed, the school received grant-in-aid from the Government of Himachal Pradesh for the period between 1967 and 1976. From the year 1977-1978, the Government of Himachal Pradesh stopped the grant-in-aid. In such circumstances, the teachers of the school were paid less than the teachers of the Government schools and the Government-aided schools in the State of Himachal Pradesh. This led to filing of a writ petition in the High Court of Himachal Pradesh seeking a direction to pay the salary and allowances at par with the teachers of Government schools and the Government-aided schools. A learned single Judge of the High Court allowed the writ petition and directed the respondents therein to pay to the writ petitioners therein salary and allowances at par with their counterparts working in the Government schools from the dates they were entitled to and at the rates admissible from time to time. The respondent Nos. 1 and 2 therein preferred letters patent appeal before the Division Bench of the High Court. The appeal came to be allowed and the writ petition filed by the teachers was dismissed. In such circumstances referred to above, the litigation travelled to this Court. This Court, while disposing of the appeal, held as under:-
"25. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid to teachers of government- aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of government schools and therefore a mandamus could not be issued to pay to the teachers of private recognised unaided schools the same salary and allowances as were payable to teachers of government institutions.
26. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841, relied upon by the learned counsel for the appellants, executive instructions were issued by the Government that the scales of pay Page 50 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined of Laboratory Assistants as non- teaching staff of private colleges shall be on a par with the government employees and this Court held that even though there were no statutory rules, the Laboratory Assistants as non-teaching staff of private college were entitled to the parity of the pay scales as per the executive instructions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on a par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of government schools or government- aided schools.
27. We cannot also issue a mandamus to Respondents 1 and 2 on the ground that the conditions of provisional affiliation of schools prescribed by the Council for the Indian School Certificate Examinations stipulate in Clause (5)(b) that the salary and allowances and other benefits of the staff of the affiliated school must be comparable to that prescribed by the State Department of Education because such conditions for provisional affiliation are not statutory provisions or executive instructions, which are enforceable in law. Similarly, we cannot issue a mandamus to give effect to the recommendations of the Report of Education Commission 1964-1966 that the scales of pay of school teachers belonging to the same category but working under different managements such as Government, local bodies or private managements should be the same, unless the recommendations are incorporated in an executive instruction or a statutory provision. We, therefore, affirm the impugned judgment of the Division Bench of the High Court.
28. We, however, find that the 2009 Act has provisions in Section 23 regarding the qualifications for appointment and terms and conditions of service of teachers and sub- section (3) of Section 23 of the 2009 Act provides that the salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed. Section 38 of the 2009 Act empowers the appropriate Government to make rules and Section 38(2)(l) of the 2009 Act provides that the appropriate Government, in particular, may make rules prescribing the salary and allowances payable to, and the terms and conditions of service of teachers, under sub-section (3) of Section 23. Section 2(a) defines "appropriate Government" as the State Government within whose territory the school is established.
29. The State of Himachal Pradesh, Respondent 3 in this appeal, is thus empowered to make rules under sub- section (3) of Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances payable to, and the terms and conditions of service of, teachers. Article 39(d) of the Constitution provides that the State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. Respondent 3 should therefore consider making rules Page 51 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024 NEUTRAL CITATION C/SCA/4530/2016 JUDGMENT DATED: 08/08/2024 undefined under Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances of teachers keeping in mind Article 39(d) of the Constitution as early as possible."
(Emphasis supplied)
42. In view of the aforesaid, nothing more is required to be discussed in the present appeals. We are of the view that the High Court committed an egregious error in entertaining the writ petition filed by the respondents herein holding that the appellant society is a "State" within Article 12 of the Constitution. Undoubtedly, the school run by the Appellant Society imparts education. Imparting education involves public duty and therefore public law element could also be said to be involved. However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents."
16. In light of the aforesaid ratio laid down by the Hon'ble Apex Court, in the opinion of this Court, the present petition is not maintainable against the respondent No.1 herein; the Institute not being a "State" within the meaning of Article 12 of the Constitution of India.
17. For the foregoing reasons, the present petition is dismissed as not maintainable.
(VAIBHAVI D. NANAVATI,J) NEHA Page 52 of 52 Downloaded on : Thu Aug 08 21:27:01 IST 2024