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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Mohta V.A. Sambre W.M., JJ.
College of Engineering of Yeshwant Rural Education Society .... Petitioners.
Versus
Asmita Basole another.... Respondents.
Writ Petition Nos. 933 934 of 1986, decided on 6-3-1987.
Advocates appeared :
V.R. Manohar, for petitioners.
Anjan De, for respondent No. 1.
(Ordinance No. 32) Clause 45-Statute providing for confirmation of teachers working in affiliated colleges (statute 53)-Contract Act, 1872, Sections 196 and 200-Nagpur University Act, 1974, Section 42-B (1)-Show cause notice and enquiry mandatory when terminating services of teacher or probation on around of being negligent to duties-Termination Order by chairman of Governing Body Instead of appointing authority viz., Local Managing Committee void Laters subsequent ratification of termination ineffective and of no consequence - In applicability of statute 53 to Probationer sought to be terminated.
A teacher was appointed in a permanent post on probation. Before the expiry of the probation period the chairman of the Government Body issued termination notice on the ground of poor performance of the Teacher and casual approach to work. The appeal was preferred by the teacher before the Tribunal under Section 42-B (1) of University Act, 1974. This appeal was allowed. It was held by the Tribunal in view of clause 45 of Ordinance No. 32, the termination which was in fact dismissal for the specific misconduct could not be done without holding enquiry, termination by the Chairman was void not being by the appointing authority viz Local Managing Committee and the termination was bad for want of approval of the executive Council as per statute 53 framed under Nagpur University Act. The Said order was challenged by the society and the Principal. It was contended that there having been ratification by the Managing Committee a termination was valid and there was no need of prior of approval of the Executive council.
Held, The order of the Tribunal to the effect that the services of a lecturer on probation could not be terminated before expiry of 23 months was not legally correct. The appointment order contained right of termination before expiry of 23 months and there was no warrant for concluding that Management ought to have waited till last date of completion of probation period, even though earlier it could rightly and bona fide come to conclusion that services were not satisfactory.
Misconduct was the basis of termination of services of lecturer on probation as rightly held by the Tribunal. Such termination was not backed by show cause notice and departmental enquiry which is the mandatory requirement. Hence termination was bad.
Only the appointing authority of a teacher viz. Local Managing Committee was competent to terminate the service under Ordinance No. 24. The act of Chairman was void ab initio and was not ratifiable in view of Sections 196 & 200 of contract Act. If the rights of subjects are affected, the principle of ratification cannot validate the action as will be the case in the matter of termination by unauthorised action of the agent.
Proviso to clause 5 of Statute 53 created a bar against issuance of termination notice or making termination effective without prior approval of the Executive Committee in every case. This mandatory requirement is not practically feasible and has practical difficulties in case of lecturers on probation considering the scheme of Statute 53. The Management has every right to judge the probationers performance till last date, in this case till expiry of 23 months of service. Hence have can approval be obtained immediately. If no approval is there, no notice of termination of service can be given and if no notice of termination of service is given there would be automatic confirmation. This will lead to absurd results which can not be held to be intended. Hence the bar created by statute 53 of statutes of the Nagpur University is not meant to operate against termination of a teacher during probationary period before expiry of which he has no right to the post.
Both Mrs. Basole and Mr. Dhamande were appointed on permanent posts on probation basis - Mrs. Basole as a Lecturer in Mathematics and Mr. Dhamande as Lecturer in Production Engineering. The appointment order of Mrs. Basole is dated 29-4-1983 and that of Mr. Dhamande is dated 23-4-1984. The appointment orders provide for termination even before the expiry of probation by giving one month's notice on either side.
2. On 14-3-1985 Mrs. Basole was served with a communication by the Principal to the effect that she was “interested in consuming all sorts of leave and hence it leads me to conclude that you are not interested in continuing your services. And hence, the management will not hesitate to terminate your services by giving you one month's notice”. On 28-3-1985 the Chairman of the Governing Body of the College issued notice of termination of services, referring to four communications between 19-3-1983 to 14-3-1985 and saying,
You were issued note as per letter under Ref. No. 2 regarding your casual approach to your work i.e. treating lecture period as tutorial period.
A memo as per letter under Ref. 3 was issued to you regarding your poor performance as a teacher.
Letter under Ref. 4 was issued to you bringing to your notice that you have not taken note of the previous letters.
Letter under Ref. 5 was issued to you regarding your tendency to consume all available leave.”
Mr. Dhamande was also served with notice of termination dated 28-3-1985 by the Chairman , referring to the communication between 23-4-1984 to 6-2-1985 and saying:
“As per letter under Ref. No. 2 it was pointed out to you that you are regularly irregular in attending to your duties. Your approach towards your main job is just casual and this has ultimately resulted in shirking your duties on 26-2-1985 by asking your colleagues to continue and running away from the institution without intimation and for which you were compelled to submit application for casual leave even though you have signed the Attendance Register.”
3. Both preferred appeals on 24th April, 1985 under section 42-B(1) of the Nagpur University Act, 1974. The Tribunal held, (a) services could not be terminated before expiry of a period of 23 months excepting on the ground of misconduct, (b) the termination was in fact a dismissal for specific misconducts without holding any inquiry, (c) termination by the Chairman was void not being by appointing authority (local Managing Committee) which subsequently could not be legally ratified by the appointing authority, (d) termination is bad for want of approval of the Executive Council of the University as per Statute 53 framed under Nagpur University Act.
4. We had heard these matters on 5-2-1987 and just finished dictation of the order of dismissal of the petitions with no order as to costs, when the learned Counsel for the petitioners informed us that the case of (M.I. Masih v. Peoples' Welfare Society and others)1, 1982 Mh.L.J. 271, following which we had held that the order of termination was void having been passed by the Chairman and not by the local Managing Committee - has been overruled by the Supreme Court. He stated this on the basis of the information that he had received after arguments were over. Copy of the Supreme Court Judgment, however, was not then available. Relying on the said statement, we kept the matter on Board for fresh hearing on 11-2-1987 and heard the matter afresh.
5. We have perused
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