Rajasthan High Court - Jaipur
Central Academy Society vs Raj. Non-Govt. Edu. Institutions ... on 7 March, 2001
Equivalent citations: 2001(2)WLC403, 2001(2)WLN266
ORDER Balia, J.
(1). Heard learned counsel for the parties.
(2). The petitioner challenges the order passed by the Rajasthan Non-Government Educational Institutions Tribunal dated 11.10.99 (Ex.6) by which the dismissal order passed incase of the respondent No,3 dated 22,2.1997 (Ex.1) has been set aside being in violation of Sec. 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 and in violation of Rule 39(2) of the rules of 1993 framed thereunder.
(3). The facts, in brief, leading to the present case are that the respondent No. 3 was appointed as a Teacher at the petitioner institution in October, 1986. In the first instance, her services were terminated vide order dated 3rd July, 1995, which order was set aside on appeal vide order dated 1.1.96 and the matter was remanded back to the Society for deciding the question afresh. Thereafter the order dated 22.2.97 was passed in purported exercise of power under proviso (iii) to Sec. 18. The termination order was also sent to the Director for approval, however, no consent as such has been accorded by the Director but the petitioner relies on a Circular issued by the Govt. under which the District Education Officers of the concerned districts have been authorised to accord sanction and it has further been envisaged that if the District Education Officer do not communicate in writing within 30 days his disapproval with [he proposed termination of the services of any employee, the same may be deemed to have accorded approval of the order. Relying on this, It is contended that on expiry of 30 days from the date of sending of the decision referred to in Ex. 1 to the Director, it must also be deemed to have received the required approval u/Sec. 18 of the Act.
(4). This order of termination was challenged before the Tribunal. The Tribunal has found the order to be punitive and not an order of termination simplicitor as is provided under proviso (iii) to Sec. 18 of the Act and has accepted the contention of the respondent of necessity to hold a disciplinary enquiry and to impose punishment only in accordance with findings recorded during the course of such enquiry after ' affording opportunity of hearing to the delinquent. The Tribunal also found on the basis of material before it that in the facts and circumstances of the case that there were clear instructions already existing from the Directorate of Education not to remove the respondent from service unless the disciplinary proceeding is complete for which an enquiry officer has been appointed by the Department and directing the institution to strictly abide by the instructions of not removing the respondent from service during the pendency of that enquiry, there cannot be considered to be a deemed sanction of the action taken by the petitioner. Thus, finding the orders to be in violation of Sec. 18, Rule 39(2) and in breach of principles of natural justice, the impugned order dated 22.2.97 was set aside and the respondent No.3 was ordered to be reinstated with continuity of service and all consequential benefits.
(5). Learned counsel for the petitioner urged that since the order Ex, 1 has been passed by unanimous decision of the committee, it must be deemed to be an order of termination simplicitor within the meaning of proviso (iii) to Sec. 18 and not by way of punishment, and therefore, the principles of natural justice were not required to be adhered to and no opportunity of hearing was required to be given to the petitioner before taking action under the said proviso. It was also contended that in view of the Govt. circular Ex. 2 dated 9.7.98 it must be deemed that the competent officer has accorded approval to the decision of Management Committee and therefore it also fulfils the condition of the proviso that the order of termination can be made after giving six months notice or salary in lieu thereof and the consent by Director of Education is obtained in writing.
(6). In the light of the aforesaid contentions, it will be relevant to notice the provisions of Sec. 18 of the Act of 1989 itself:-
8. Removal, dismissal or reduction in rank of employees: Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken:
Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained:
Provided further that this section shall not apply, -
(i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or
(ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or
(iii) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudiced to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.
(7). Neither any such contention has been raised nor any such suggestion has been made in Ex,2, the Circular, issued by the State Govt. in that regard that any amendment in Sec. 18 has been made. The proviso (iii) leaves no room of doubt. Under the Act, for operation of proviso (iii) to Sec. 18, the conditions requisite are; first is that the managing committee is of unanimous opinion, second is that such opinion must relate to the fact that the employee cannot be continued without prejudice to the interest of the institution, third is that before such unanimous decision, can be given effect to, there must be fulfilled two pre-conditions; firstly that before the services are terminated either six months notice is to be served on the concerned employee or salary in lieu there of is paid; and secondly for such termination consent of the Director of Education is obtained in writing. No rule much less executive order can dispense with the requirement of the consent by director in writing by issuing instructions to envisage that non receipt of the decision by the Director in negative within 30 days of making of application would tantamount to be deemed consent of the Director to the proposed action of termination thus doing away with the statutory requirement of such consent to be in writing. The parent provision requires that before such order became effective such consent of the authority, who has been designated the function of according or withholding such consent, must speak for itself through an order in writing. A silence to speak cannot be equated with requirement of an order in writing. It is not within the domain of the delegated authority or executive authority of the State to deviate from that and make rule of its own in derogation of parent statute. Thus, even on admitted facts in absence of any written consent by the Director the order cannot to life at all. In the present case, even the delegated authority namely the District Education Officer has not given his consent in writing. In view of this undisputed circumstance, termination order which even if fulfils all other conditions cannot be said to have ever come in operation and become effective.
(8). Apart from the aforesaid, it is apparent that proviso (iii) to Sec. 18 only authorises the managing committee to act collectively in unision in holding opinion that the service of any employee cannot be continued without prejudice to the interest of the institution. The expression "unanimous" is very pregnant in its requirement. It envisages deliberation of each member of the committee to consider the facts that come to light and hold same opinion viz. undesirability of any incumbent to be continued which is considered to be prejudicial to the interest of institution.
(9). The word 'Unanimous' and 'Unanimity' convey the stale of affairs where all persons present to take a decision on any point do not dissent. It cannot refer to opinion of persons outside the decision making plateform on the issue.
(10). The terms 'Unanimity' and 'Unanimous' have been defined in Black's Law Dictionary (Fourth Edition) as under:
"UNANIMITY. Agreement of all the persons concerned, in holding one and all the same opinion or determination of any matter or question; as the concurrence of a jury in deciding upon their verdict."
"UNANIMOUS. To say that a proposition was adopted by a 'Unanimous' vote does not always mean that every one present votes for the proposition but it may, and generally does, mean, when a viva voce vote is taken, that no one voted in the negative."
(11). While considering the meaning of word 'Unanimous' determination of creditors and contributories u/R.G3(2) of the Companies Winding-up Rules, 1890, it was held in Re Johannesburg Land & Gold Trust case (1), it was held that 'unanimous' determination of creditors and contributories referred to the unanimity of all the creditor & contributories at the meetings, and not to unanimity, in the result of two meetings.
(12). Thus, it is clear that where the Rules require that there must be unanimous opinion that continuance of an incumbent cannot be allowed without prejudice the interest of the Institution, it envisages 'unanimity' of the opinion of the members of the whole committee present and considering the issue and does not refer to unanimity of getting matters decided from an outside agency, which it will accept. This decision, even if taken unanimously, cannot be considered to be an expression of unanimous opinion on the question whether continued employment of person to be prejudicial to the interest of the Institution, but this is only expression of faith in whatever decision the delegate take. Therefore, in the very scheme of such requirement this authority cannot be delegated to any smaller body for reaching the conclusion about the essential premise for resorting to termination viz. 'continuance of the employee is not possible without prejudice to interest to the institution.' If this task could be delegated to any one else or to a smaller body of managing committee by the managing committee then the very purpose of making this stringent provision of 'unanimous opinion of managing committee' would fail. Two persons opinion or one person's opinion cannot be considered to be unanimous opinion reached by the committee on the facts which are observed by the Secretary and from which inference has also been drawn by him as the delegated authority. The authority has not been given to the 'managing committee' simplicitor, to act collectively or through its delegated authority but the emphasis has been laid on the unanimity of all the members of the managing committee. That being so, the authority; to act in furtherance of the provisions of proviso (iii) to Sec. 18 to take the case out of substantive provision of Section 18 there is no room of delegating the essential function of the committee to be discharged by all members in collective deliberation which may result in formation of unanimous opinion. Delegation of such function would amount to abdication of essential function of the managing committee envisaged under proviso (iii) to Sec. 18.
(13). In that view of the matter, if the impugned order Ex. 1 is read, it leaves no room of doubt that the opinion about the fact that the respondent cannot be continued without prejudice to the interest of the institution has not been framed by the committee but this opinion has been held by the Secretary of the Committee who has been appointed to make an enquiry about fact whether continuance of the respondent would not be in the interest of society. The very first paragraph of the order dated 22.2.97 proceeds with the expression in first person by words that the author of the order Mr. T.N. Mishra, Secretary, Central Academy Educational Society that 'I have been authorised to obtain detailed information about the work of the respondent' thereon he records his opinion that he has observed the work of the accused incumbent and he has come to the conclusion that because of their unsatisfactory working it is not in the interest of the institution to continue them in service. Though in the penultimate paragraph it has been referred that the decision to terminate has been taken by the committee. Neither any such decision has been produced nor referred to in the pleadings. Moreover, even the said reference does not disclose whether the managing committee has decided unanimously that the continuance of the respondent is not considered in the interest of institution.' Therefore, the order Ex.1 cannot be considered to be on its own to be a unanimous decision by the managing committee or the inference of formation of unanimous opinion by the committee that the continuance of the respondent is not in the interest of the institution can be drawn. The order Ex. 1 in my opinion even fall short of the requirement of the first premise.
(14). Moreover, the reading of the order as a whole leaves no room of doubt that the order is nothing but punitive and not an order of termination simplicitor as contended by the petitioner. That being so, unless the decision making authority has given an opportunity of hearing to the delinquent, no punishment of dismissal could have been imposed which reason in itself is sufficient to non-suit the petitioner.
(15). There is yet another reason to consider the order Ex.1 terminating services of the respondent as no! a bonafide action. From the undisputed facts it is apparent that the petitioner Society in the first instance tried to get rid of the services of the respondent vide order dated 3.7.1995 without holding an enquiry and without following the procedure prescribed in law. That proved to be abortive in view of order passed in appeal by the Appellate Authority on 1.1.96 with direction to hold an enquiry before taking action against the delinquents. Thus there was a binding direction to hold an enquiry before any action could be taken against accused employees. This direction in appeal followed with appointment of an enquiry officer by the competent officer from the Department of Education and an order was issued to the petitioner not to terminate services of the respondent until conclusion of enquiry. Notwithstanding these orders, the petitioner resorted to terminate services of respondent by acting through its Secretary, without holding any enquiry as envisaged under the law, issued the order dated 22.2.97 in clear derogation of existing direction of the Appellate Authority dt. 1.1.97 and Directorate of Education to stay its hands off during the pendency of enquiry. These circumstances give rise to reasonable inference that order Ex. 1,has only been made to nullify the effect of those orders and to sustain the dismissal order made on 3.7.95, somewhat may without holding a paricipatory enquiry into alleged misconduct to sustain the action dt. 3.7.95 Resort to such devising cannot but be termed as arbitrary and unfair, and abuse of authority.
(16). Accordingly, this petition fails and is hereby dismissed with costs.