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Gujarat High Court
Judgename :A.P.RAVANI, J.M.Panchal
K.S.JOY - Appellant
Versus
INDIAN INSTITUTE OF MANAGEMENT - Respondent
S.C.A.6555 of 1988
Decided On : 05/20/1993
It is well settled principle of law that mere label or form of the order does not determine its real character. The Court can and should examine the reality behind the apparent lable of the impugned order. The Court may pierce the veil and find out the truth as to what is the true nature of the impugned order.
[Para 19]
Gujarat University Act, 1949 - Sec. 51A (i) or (ii) - Order of Termination of Service with stigma attached - Requirement of - If order passed under Sub-section (i) on ground of misconduct then enquiry is a must and if passed under Sub-section (ii). otherwise than on ground of misconduct then also show cause notice and approval of Vice-chancellor or any officer of university authorised by Vice- chancellor is necessary - None of the condition complied with in case - Order bad - Setaside.
The impugned order is penal order. This is so because it has been passed as a measure of penalty though it is worded in simple language. Moreover,the case of respondent No.1-IIM itself is that the order is passed on account of loss of confidence in the petitioner. Thus, even if the case of respondent No.1-IIM is accepted, as held by the Supreme Court, it would attach stigma to the petitioner because loss of confidence affects the character or reputation of the employee. For this reason also the inquiry should have been held before passing the impugned order. As indicated hereinabove, the impugned order would be bad, whether it falls in sub-section (1) of section 51A or in sub-section (2) of section 51A of G.U.Act. As provided under sub-section (1) of section 51A of G.U.Act, if the order of termination of service is to be passed on the ground of any misconduct then inquiry is a must. If it is not based on the ground of misconduct, then also show cause notice and approval of the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor is necessary. These conditions have not been fulfilled in this case. Therefore, on both the grounds the impugned order is bad and we see no reason why order of reinstatement should not follow.
[Para 23]
Service & Employment - Termination - Reinstatement - Setting aside order of termination - Not permissible where delinquent discharging duties of an office of Trust and confidence and has lost confidence of employer - In instant case delinquent was merely an office assistant and was not holding an office of trust & confidence - No reason to withhold reinstatement of deliquent petitioner.
When an employer loses confidence in his employee, particularly in respect of a person who is discharging duties of an office of trust and confidence, there can be no justification for directing his reinstatement. In this case nothing is shown that the petitioner was holding an office of trust and confidence. He was merely an office assistant like many others. It is disclosed from the record of the petition that atleast there were fourteen junior employees who were working as office assistant. Thus in the cadre of office assistant there must be many more such persons. Office assistant in a huge administration like that of respondent No.1-IIM cannot be said to be holding an office of trust and confidence. Nothing is placed on record of the petition to show that the petitioner was particularly discharging some specific functions which can be said to be of trust and confidence.
[Para 22]
( 1 ) THE petitioner was serving as Office Assistant with respondent No. 1-Indian Institute of Management, Ahmedabad (for short "iim" ). His services have been terminated by order dt. 20/09/1988 with immediate effect on payment of one months salary and retrenchment compensation. The petitioner has challenged the legality and validity of this order and prayed for reinstatement in service with all consequential benefits.
( 2 ) THE petitioner was appointed as Upper Division Clerk by order dated 31/05/1967. After confirmation on this post he was promoted as Office assistant some time in June, 1973. The petitioner was the Secretary of the Union, i. e. , Indian Institute of Management Employees Association and in this capacity he has sponsored, several litigations and represented the cause of the employees before the authorities of respondent No. 1-Institute.
( 3 ) THE petitioner has averred with regard to his activities and the grievances which he raised against the management of respondent No. 1 institute and against certain Officers. It is his contention that the order of termination of service is penal order; it is not an order of termination simpliciter of service; that it has been passed without holding any inquiry and without affording an opportunity of being heard to the petitioner and, therefore, it is violative of the principles of natural justice and hence illegal and void. It is also contended that the order is in contravention of the provisions of Sec. 25g of the Industrial Disputes Act, 1947 read with Rule 81 of the Industrial Disputes (Gujarat) Rules, 1987 inasmuch as many juniors to the petitioner have been retained in service and without recording any reason whatsoever his services have been terminated. It is further contended that the order is passed in contravention of the provisions of Sec. 51a of the Gujarat University Act, 1and49 (for short "g. U. Act".) the petitioner also contended that the respondent-IIM is state within the meaning of Art. 12 of the Constitution of India, and even if it is not held to be state, it is amenable to the writ jurisdiction of this High court.
( 4 ) RESPONDENT No. t-IIM has filed affidavit-in-reply and resisted petition on facts as well as on law points. In substance it is contended that certain activities of the petitioner led the respondent-Institute to lose confidence in the petitioner and, therefore, his services have been terminated on account of loss of confidence. Particulars of the activities of the petitioner-employee have been narrated in detail. It is also, inter alia, contended that provisions of the Industrial Disputes Act are not applicable as the petitioner is not a workman and respondent-Institute is not state within the meaning of art. 12 of the Constitution of India.
( 5 ) AS far as the contention that respondent No. I-IIM is state within the meaning of Art. 12 of the Constitution of India is concerned, it is an undisputed position that in Special Civil Application No. 6845 of 1987 decided on 24/10/1991, a learned single Judge of this High Court (Coram : J. N. Bhatt, J.) has held that respondent No. I-IIM is state within the meaning of Art. 12 of the Constitution of India. However, the said decision is challenged in Letters Patent Appeal before this High Court and it is pending. (Neither side has given the particulars of the L. P. A. but it is admitted by both the sides that the L. P. A. is still pending.) in view of this circumstance and having regard to the facts and circumstances of the case, we do not express any opinion as to whether respondent No. I-IIM is state within the meaning of Art. 12 of the Constitution of India. In our opinion, the petition is capable of being decided even if this question is not examined and decided by us in this petition. Even the learned counsel for the petitioner has not pressed that this question should be decided in this petition.
( 6 ) INITIALLY, it was contended that the petitioner was workman within the meaning of
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