Bombay High Court
Citizen Education Society Through Its ... vs Dhananjay S/O Ambadas Dhabe And Others on 23 December, 2021
Bench: S.B. Shukre, A.S. Chandurkar
1 WP2057-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2057/2020
(CITIZEN EDUCATION SOCIETY, NAGPUR & ANOTHER VERSUS DHANANJAY AMBADAS
DHABE & OTHERS)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri Rohit Joshi, counsel for the petitioners.
Shri A.P. Raghute, counsel for the R-1.
Shri S.S. Ghate, counsel for the R-2.
Shri N.R. Patil, A.G.P. for the R-3.
CORAM : SUNIL B. SHUKRE AND A.S. CHANDURKAR, JJ.
DATE WHEN THE ARGUMENTS CONCLUDED : 04TH DECEMBER, 2021. DATE WHEN THE ORDER IS PRONOUNCED : 23RD DECEMBER, 2021.
P. C. This reference to the Division Bench has been made by the Hon'ble the Chief Justice for answering the following question that was referred by learned Single Judge:
"Whether the requirement of the proviso below Clause 5 of Statute 53 is attracted in a case where an employee is terminated on the ground of wilful and persistent neglect of duty and/or misconduct, covered by Clause 8(a) and (b) of the Contract Schedule-A appended to Ordinance No.24-College Code?"
2. Relevant facts that require mention are that the respondent no.1- Lecturer came to be appointed at the petitioner no.2-College on 03.09.1984. On completion of the period of probation his services were confirmed. During the course of service, the Management initiated disciplinary proceedings against the respondent no.1 and on its conclusion his services came to be terminated. The respondent no.1 preferred an appeal challenging the order of termination before the University and College Tribunal. The learned Presiding Officer of the Tribunal held that the order of termination was vitiated, one of the reasons being absence of prior permission of the Rashtra Sant Tukdoji Maharaj Nagpur University, Nagpur under Statute 53 before issuing the order of termination. In addition, the enquiry proceedings were 2 WP2057-20.odt found to have been vitiated on account of breach of principles of natural justice. An application seeking permission to terminate the services after filing of the appeal was also rejected. The petitioners challenged the order passed by the Tribunal in Writ Petition No.1836 of 2009. By the judgment dated 20.01.2009 liberty was granted to the petitioners to continue with the enquiry proceedings from the stage at which it was found to have been vitiated. On completion of the enquiry proceedings after remand, the services of the respondent no.1 came to be terminated on 01.03.2018. The respondent no.1 again approached the Tribunal for challenging the order of termination and the Tribunal by its judgment dated 20.12.2019 allowed the appeal and set aside the order of termination of the ground that prior permission of the University as contemplated by Statute 53 had not been obtained. The aforesaid judgment of the Tribunal is the subject matter of challenge in this writ petition.
3. One of the grounds of challenge raised to the order of the Tribunal before the learned Single Judge was that as the services of the respondent no.1 had been confirmed after 02.01.1978 and he was terminated from service after holding a departmental enquiry there was no requirement for the Management to obtain prior permission of the University before terminating his services. Proviso to Clause 5 of Statute 53 was not attracted in these facts according to the petitioners. Attention of the learned Single Judge was invited to the judgment dated 08.11.2019 in Writ Petition No.147 of 2016 [Nagar Yuvak Shikshan Sanstha Nagpur & Another Versus Sanjay Vidyasagar Soni & Others] wherein it was held that the Tribunal in that case was right in holding that the termination of services of the employee therein was illegal as well as null and void for want of prior approval as required by the proviso to Clause 5 of Statute 53. The learned Single Judge while issuing notice in the present writ petition did not agree with the view taken by the learned Single Judge that even when the services of a confirmed employee are terminated after holding a department enquiry, it was still necessary to 3 WP2057-20.odt seek prior approval of the University by virtue of the proviso to Clause 5 of Statute 53. Since the termination of service in the present case was on account of misconduct, such prior approval was not required according to learned Single Judge. In this context, the question referred to hereinabove was framed and accordingly, the writ petition was placed before the Division Bench.
4. Shri Rohit Joshi, learned counsel for the Management inter alia submitted that where the services of an employee who is appointed after 02.01.1978 and has successfully completed the period of probation are sought to be terminated on the ground of misconduct after holding a departmental enquiry it would not be necessary to obtain prior approval of the University under Statute 53 Clause 5 proviso. This was clear on a plain reading of Clauses 4 and 5 of Statute 53 as well as Ordinance 24 and more particularly Clause 8 therein. It was urged that as per second proviso to Clause 8 of Ordinance 24 it is only when the services of an employee are sought to be terminated on account of breach of any terms of contract or on account of abolition of a post that such previous approval of the University would be required. To substantiate this contention, the learned counsel referred to the judgment of the Division Bench in College of Engineering of Yeshwant Rural Education Society, Sewagram & Another Versus Asmita Basole & Another [1987 Mh.L.J. 676]. He submitted that the facts of that case indicate that prior to expiry of the period of probation, a notice of termination was issued to the employee. After considering the provisions of Statute 53 as well as Clause 8 of the Agreement in Schedule A of Ordinance 24, it was held that when the termination of services was on account of wilful and persistent neglect of duty, misconduct, physical or mental unfitness or incompetence such prior approval was not necessary. According to him, the learned Single Judge in Nagar Yuwak Shikshan Sanstha & Another (supra) misread the observations of the Division Bench in Asmita Basole & Another (supra) that such prior approval was required in every case of termination. It 4 WP2057-20.odt was his submission that the ratio of the judgment of the Division Bench was clear and the necessity of prior approval was only in cases where termination of services was on account of breach of any terms of the contract or for abolition of the post in question. He therefore submitted that the view taken by the Division Bench in the aforesaid decision be followed.
5. Shri A.P. Raghute, learned counsel for the respondent no.1 on the other hand submitted that prior approval under Clause 5 of Statute 53 was required to be obtained by the Management before termination of his services. Inviting attention to the judgment of the Full Bench in Premlata Sudhakar Sathe Versus Governing Body of G.S. Tompe College & Others [1981 Mh.L.J. 332] he submitted that College Code by which term Ordinance 24 was also known was framed with an intention to provide for better conditions of service to teachers in affiliated colleges and also to provide protection against unscrupulous removal, termination and dismissal from service. According to him the Division Bench in Asmita Basole & Another (supra) had specifically held in paragraph 11 that the proviso to Clause 5 of Statute 53 creates a bar against issuance of notice of termination or making termination effective without prior approval of the University in every case. He further invited attention to the judgment of the learned Single Judge in Wainganga Bahu-uddeshiya Vikas Sanstha & Others Versus Anil Dewaji Gaikwad & Others [2012(3) BCR 788] wherein such prior permission under Statute 53 Clause 5 was held to be necessary even with regard to Lecturers whose services were terminated after holding departmental enquiry. This judgment of the learned Single Judge alongwith the observations made in the context of Statute 53 had been upheld by the Division Bench in Wainganga Bahu-uddeshiya Vikas Sanstha, Nagpur & Others Versus Diwakar Maloji Kamble & Others [2013 (2) Mh.L.J. 804]. The learned counsel therefore submitted that in view of the observations in paragraph 11 of the decision in Asmita Basole & Another (supra) that such prior approval was necessary in every case of termination as well as a similar view of another Division Bench 5 WP2057-20.odt in Diwakar Maloji Kamble & Others (supra) the question as referred deserves to be answered on those lines.
6. We have considered the submissions of learned counsel and we have given due consideration to the same. Clause 5 of Statute 53 alongwith its proviso reads thus:
"5. Termination of the services of any teacher shall take place only in accordance with the provisions of the College Code Ordinance (No.24) and contract appended thereto. Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4 above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur University."
Clause 8 of the Agreement appended in Schedule A of Ordinance 24 reads thus:
"8. After confirmation the services of the party of the first part can be terminated only on the following grounds:-
(a) Wilful and persistent neglect of duty,
(b) Misconduct,
(c) Breach of any of the terms of contract,
(d) Physical or mental unfitness,
(e) Incompetence,
(f) Abolition of the posts.
Provided firstly, that the plea of incompetence shall not be used against the party of the first party after he has served the part of the second part for five years or more.
Provided secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Nagpur University."
7. The Division Bench in Asmita Basole & Another (supra) was concerned with the case where the services of a probationer were terminated prior to the expiry of the period of probation. The Tribunal in the appeal challenging the order of termination held that the services of the said employee could not 6 WP2057-20.odt have been terminated prior to the expiry of the period of probation except on the ground of misconduct. The termination in fact was on account of specific misconduct but without holding an enquiry. The Tribunal also held that the order of termination was bad since there was no prior approval obtained from the University as per Statute 53. The Management challenged the judgment of the Tribunal in this Court and while considering the question as regards requirement of prior approval under Statute 53 before terminating the services the Division Bench in paragraph 11 has observed thus:
"11. This takes us to the last point - Is termination bad for want of prior approval of the Executive Council in view of Statute 53, which has received assent of the Chancellor on 2 nd January 1978. Before Statute No.53 was brought into force, there was no deemed confirmation of probationary teachers in affiliated colleges. Statute 53 is a Statute providing for confirmation of teachers working in affiliated colleges. Clause 4 provides for deemed confirmation. Every teacher appointed in a clear vacancy has to be appointed in the first instance of probation for two years at the end of which he shall be confirmed. His services can be dispensed with provided at least a month before expiry of probationary period notice is given, in the absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is confirmed. Clause 5 provides that termination of services of any teacher shall take place only in accordance with the provisions of the College Code. The proviso reads thus:
'Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4 above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur University.' By this proviso for the first time prior approval of the Executive Council before termination of a college teacher is made mandatory. No such provision existed before either in the Nagpur University Act or the Statutes or Ordinances framed thereunder. Crucial question is, is this mandate intended to be applied also in the case of probationer whose services are sought to be
7 WP2057-20.odt terminated before he is confirmed. Previous to 2-1-1978 the subject was governed by Agreement in Schedule-A of the College Code-Ordinance No.24. The said agreement provided for initial probation period of one year, which was extendable. The clause 8 of the Agreement reads thus:
'8. After confirmation the services of the party of the first part can be terminated only on the followed grounds:
(a) Wilful and persistent neglect of duty, (b) Misconduct, (c) Breach of any of the terms of contract,
(d) Physical or mental unfitness, (e) Incompetence, (f) Abolition of the posts:
Provided, firstly that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more:
Provided secondly, the services of the party of the first part, shall not be terminated under clause (c) or (f) without the previous approval of Nagpur University.' Clause 8 created embargo on the termination of a confirmed teacher under clauses (c) and (f) without the previous approval of the Nagpur University. Thus for termination on grounds (a), (b),
(d) or (e) no such approval was necessary. Proviso to clause 5 of Statute 53 for the first time created a bar against issuance of notice of termination or making the termination effective without prior approval of the Executive Committee in every case. In our view Clause 5 applies to a teacher who is already confirmed prior to 2-1-1978 and to a teacher deemed to be confirmed under Clause 4, the scheme and intention of Statute 53 being to prohibit the management from issuing notice of termination or to make effective the termination of all those teachers who stood confirmed before 2-1-1978 and who are deemed to be confirmed subsequent to that date. It does not appear that the bar is meant to be operated against the termination of a teacher during probationary period before expiry of which he has no right to the post."
8 WP2057-20.odt The Division Bench has thus held that in Clause 8 of the Agreement in Appendix-A of Ordinance 24, prior approval of the University while terminating the services of a confirmed teacher was required only if there was breach of any terms of contract or if the termination was on account of abolition of post. The Division Bench also held that when termination was effected on other counts in Clauses (a), (b), (d) or (e), no such approval was necessary. Having held so, it has been further observed as under:
"Proviso to Clause 5 of Statute 53 for the first time create a bar against issuance of notice of termination or making the termination effective without prior approval of the Executive Council in every case. "
The words 'in every case" in our view have to be read in the context of the clear finding recorded in the preceding portion of the same paragraph where the Division Bench has held in clear terms that such prior approval would be required only if the services of a confirmed teacher were being terminated on account of breach of any terms of contract or for abolition of posts. The words 'in every case' cannot be read in a manner to nullify or militate against what has been stated earlier in the same paragraph.
8. The facts in Anil Dewaji Gaikwad (supra) decided by the learned Single Judge indicate that three Lecturers were appointed in the year 1994/1996. The University approved their appointments on ad-hoc basis. During the course of employment, departmental enquiry was held against them and pursuant thereto their services came to be terminated. In the challenge raised to the order of termination before the College Tribunal, it was held that the enquiry proceedings were vitiated on account of violation of principles of natural justice. On the aspect of the requirement of prior permission under Statute 53 it was held that since the said employees were treated as 'quasi-permanent' such permission was not necessary. The judgment of the Tribunal was challenged by the Management as the order of termination had been set aside. The Lecturers also challenged the judgment of the Tribunal insofar as it held that prior permission of the University was 9 WP2057-20.odt not required before terminating their services. The learned Single Judge held by relying upon the judgment of the Full Bench in Premlata Sudhakar Sathe (supra) that even with regard to teachers who were appointed between 19.09.1991 and 11.12.1999 they were entitled to protection in service by virtue of Government Resolution dated 18.10.2001. Hence if their services were to be terminated prior approval of the University was required under clause 5 of Statute 53.
9. This judgment of the learned Single Judge was challenged in Letters Patent Appeal and the Division Bench while considering the aspect of requirement of prior approval under Statute 53 was pleased to hold in Diwakar Maloji Kamble (supra) as under:
"33. .......... The learned Single Judge has thus held that such lecturers obviously including the aforesaid three delinquent employees appointed between 19-9-1991 to 11-12-1999 formed a separate class who would continue in service till the date of retirement. Looking to the object of extending protection from service that too as aptly stated by the Full Bench of this Court in the case of Premlata Sudhakar Sathe Vs. Governing Body of G.S. Tompe College, reported in 1981 Mh.L.J. 332 about which the learned Single Judge has made a detailed reference in his judgment, we concur with the view taken by the learned Single Judge that it would be a contradiction of sorts if the services of the said teacher are allowed to be terminated without prior permission of the University as required by Statute 53(3) and it would lead to an anomalous situation wherein on the one hand the State Government deems it fit to protect the services of a teacher till his or her retirement despite lack of NET/SET, and on the other hand on interpretation of Statute 53, the Management is allowed to terminate his services without prior permission from the University, if it so chooses. The very object of extending protection after completion of 24 months service by bringing the provision in the year 1977-78, long before U.G.C. norms cannot be made nugatory and the rule of 'hire and fire' cannot be allowed to be promoted. It would be a travesty of justice as observed by the learned Single Judge, if these employees, who have rendered continuous service for 13 to 14 years should not be granted protection."
10 WP2057-20.odt
10. It can thus be seen from the facts as obtained in the case of Anil Dewaji Gaikwad (supra) the concerned Lecturers were appointed between 19.09.1999 to 11.12.1999. Their services were not on probation but the same were approved on ad-hoc basis. Since their services were protected by virtue of Government Resolution dated 18.10.2001 it has been held that prior approval of the University before terminating their services was necessary especially since the State Government itself had thought it fit to protect the services of such Lecturers. In the judgment of the learned Single Judge and thereafter of the Division Bench in Diwakar Maloji Kamble (supra) the judgment of the Division Bench in Asmita Basole & Another (supra) has not been noticed. The Division Bench in Asmita Basole & Another (supra) has held that prior approval for termination of services of a confirmed teacher would be required under Statute 53 Clause 5 only if such termination was on account of breach of any terms of contract or for abolition of post. On the other hand, the view expressed by the learned Single Judge and then affirmed by the Division Bench in Diwakar Maloji Kamble (supra) requires such prior permission of the University to be obtained under Clause 5 of Statute 53. As noted above, the facts in said case indicate the services of the Lecturers therein being terminated after holding a departmental enquiry. We thus find that the position as obtained in view of the judgment of one Division Bench in Asmita Basole & Another (supra) of the non-requirement of prior permission cannot be reconciled with the view of the other Division Bench in Diwakar Maloji Kamble (supra) holding otherwise. Since this question arises frequently for adjudication it would be necessary to have an authoritative pronouncement on the same.
We therefore deem it proper to seek a reference to a Larger Bench to answer the question "Whether the requirement of the proviso below Clause 5 of Statute 53 is attracted in a case where an employee is terminated on the ground of wilful and persistent neglect of duty and/or misconduct, covered by Clause 8(a) and (b) of the Contract Schedule-A appended to Ordinance No.24-College Code?"
11 WP2057-20.odt Though the learned counsel for the parties sought to raise other contentions in support of other respective stands as the Division Bench was assigned the writ petition for adjudication, we have not referred to those arguments since the question as framed first requires an answer before any factual adjudication can take place. In view of aforesaid, the papers be placed before the Hon'ble the Chief Justice for considering placing the matter before a Larger Bench.
(A. S. CHANDURKAR, J.) (S.B. SHUKRE, J.)
APTE
Signed By: Digitally signed
byROHIT DATTATRAYA
APTE
Signing Date:23.12.2021 15:22