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2001 Supreme(Guj) 570
Gujarat High Court
Judgename :P.B.MAJMUDAR
MAHARAJA SAYAJIRAO UNIVERSITY - Appellant
Versus
RAM MANGARAM MIRCHANDANI - Respondent
S.C.A. 5412 of 2000
Decided On : 08/08/2001
Headnote:(a) Service & Employment — Termination during period of probation — Respondent Lecturer found unsuitable for the job — Ample opportunities given to improve — University Syndicate, after considering all reports and information, decided not to confirm the respondent — Registrar, while communicating termination order, mentioned reference of inquiry — Held, in facts and circumstances, termination was not penal — There was no need to provide hearing to respondent — Inquiry conducted by syndicate was not like departmental inquiry — No need to show inquiry report — Impugned termination was simpliciter and neither penal nor mala fide — Hence, the same was upheld — Constitution of India, 1950 — Arts. 14, 16 & 226.
In the instant case, no regular departmental enquiry was initiated. In fact, there was no question of holding enquiry against the respondent and the nature of the so-called enquiry, which has already been narrated above, was confined only to find out the suitability of the respondent for the post in question. It is also required to be noted that, in the instant case, it was open for the University even to terminate the services of the respondent straight away on the ground that his performance was not satisfactory during the probationary period. However, in order to reach a definite conclusion as to whether really the respondent is to be confirmed in the post in question, the University made some enquiry and it is true that, in that process, certain letters were addressed to the respondent. It is required to be noted that no show-cause notice or charge-sheet was issued nor was any enquiry, in fact, held in order to find out the guilt of the respondent, as it was not required to be done, in the instant case, as stated earlier, and the entire exercise of the University was only within the limited sphere of finding out the suitability of the respondent for the post in question.
[Para 15]
Therefore, there is no question of informing the charges to the respondent or giving detailed reasons as to why the respondent was not required to be confirmed on the post of Lecturer in the subject of Archaeology.
[Para 16]
(b) Natural Justice — Termination simpliciter during probation period — No penal consequences — Respondent found unsuitable for the post of Lecturer — Held, no violation of natural justice.
Though the Registrar has communicated the order against the respondent, whcih gives an impression as if some charges against the respondent were proved, the Registrar has not properly communicated the order, which is , in fact, passed by the Syndicate and there was an error in drafting the said order by the Registrar, who is merely a communicating authority and if the original Resolution of the Syndicate is taken into consideration, it cannot be said that the order in question is punitive in nature. Even otherwise, as stated earlier, the wordings in the order themselves are not indicative factors and the entire material is required to be taken into consideration by lifting the veil. It is clear that the basis for passing the order was non-suitability of the respondent for the post in question and there were no other grounds for terminating his services. Under these circumstances, Court is of the opinion that since the respondent was not confirmed on the post because he was not found to be suitable, there was no question of holding any enquiry and the order in question cannot be said to be punitive in nature in any manner. It is accordingly also declared that the order in question is not to be treated as a punitive order in any manner and, naturally, it will not come in the way of the respondent in getting employment elsewhere. Therefore, it is not to be treated as stigmatic and accordingly, the impugned order is to be treated to be an order passed for not confirming the respondent on the post of Lecturer since he was not found suitable for the aforesaid post and his performance during the probationary period was not found satisfactory.
[Para 18
(c) Limitation Act, 1963 (Central Act, 36 of 1963) — Sec. 5 — Period of limitation — Computation — Respondent permitted to withdraw earlier suit with liberty to file fresh suit — Second suit is also required to be filed within original period of limitation.
When liberty to file a fresh suit is granted, the second suit is also required to be filed within the original limitation period, i.e. from the date of original cause of action, and simply because liberty to file such fresh suit is given, it can never be said that the period of limitation for filing the suit based on the original cause of action cannot be taken into consideration.
[Para 17]
( 1 ) THE present Special Civil Application is filed by the petitioner-University challenging the order passed by the Gujarat Services Tribunal in Application No. 98 of 1993 dated 28th December, 1999. The respondent approached the Tribunal by way of the aforesaid application, challenging the decision of the University by which his services were put to an end.
( 2 ) THE respondent applied for the post of Lecturer in Archaeology in response to the advertisement which was published in the daily newspaper. The respondent was interviewed by the Interview Committee and was appointed on probation for a period of two years on the post of Lecturer of Archaeology. It is the case of the original applicant before the Tribunal that after appointment, he secured Ph. D. in Archaeology subject. It is also his case that he was also teaching Sindhi subject in the Arts Faculty and accordingly, he was discharging additional work. It is further the say of the applicant that he was also appointed as Chairman of Sindhi Subject and was also appointed as Examiner in the Sindhi Subject by the University. Initially, one Shri R. N. Mehta was the Head of the Department, but as soon as he retired in December, 1982, one Mr. Hegde came to be appointed as Head of the Department in the Archaeology Department. However, said Mr. Hegde was keeping bias against the respondent-original applicant and because of the said aspect, his services came to be terminated by an order dated 23. 4. 1983. The said order, by which his services were terminated, was communicated to the respondent by the Registrar of the University. The respondent herein initially approached the Civil Court by filing Regular Civil Suit No. 198 of 1986. However, the said suit was subsequently withdrawn on 9. 3. 1989 as the respondent wanted to appear in the fresh interview. Liberty was, however, reserved in favour of the plaintiff, i. e. the respondent herein, to file fresh suit on the same cause of action, if he so desired. It seems that the respondent was not selected even in the fresh interview and he again filed a suit, being Civil Suit No. 1111 of 1989 on 28. 6. 1989. It seems that, during the pendency of the aforesaid subsequent suit, Gujarat Universities Services Tribunal came to be established in the year 1993 and, therefore, the said suit was transferred to the Tribunal under the provisions of Section 13 (2) of the Gujarat Universities Services Tribunal Act, 1993. After such transfer, the said proceedings were renumbered as Application No. 98 of 1993.
( 3 ) THE Tribunal, after recording the evidence of the parties and after hearing the arguments of the respective Advocates, by its order dated 28th December, 1999, came to the conclusion that the order of termination was passed by way of penalty and that, since the same was passed without holding regular enquiry, the same was treated as unjustified and unlawful. The University was accordingly directed to reinstate the respondent-original applicant on the original post with continuity of service and with all other consequential benefits. It is required to be noted that while the aforesaid matter was pending before the Tribunal, on behalf of the petitioner-University, applications at Exhibits 69 and 70 were filed for the purpose of production of documents. However, by order dated 16. 7. 1999, the Tribunal had rejected the said application and refused the production of the documents. Having been dissatisfied with the final order of the Tribunal, the University has filed this petition under Articles 226 and 227 of the Constitution of India on various grounds.
( 4 ) AT the time of hearing of this petition, it was submitted by Mr. Anjaria, learned Advocate of the petitioner-University, that the Tribunal has committed grave error of law in coming to the conclusion that the order in question is penal in nature and thereby, in setting aside the said order and reinstating the respondent on his original post. Mr. Anjaria further argued
