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1992 Supreme(MP) 843
1994 JLJ 215
R.C. Lahoti and S.K. Chawla, JJ.
Suresh Chandra Mathe v. Jiwaji University and others
M.P: No. 886 of 1987; Decided on 2.12.1992.
H.N. Upadhyaya for petitioner;
J.P. Gupta with Sanjay Gupta for respondents.
Headnote:(1) Industrial Disputes Act, 1947 -- Ss. 2 (j) and 2 (s) -- education is a kind of service and University is an "industry" as defined in S. 2 (j) -- clerk working in University is "workman" under the definition of S.2 (s).
Education is a kind of service, although sublime service and that University is an industry" within the meaning of section 2 (j) of the Industrial Disputes Act, 1947. The further question whether a clerk of the University, like the petitioner, was a ‘workman" under section 2 (s), admits of no doubt. A person employed to do clerical work is expressly mentioned in the definition of a "workman". AIR 1978 SC 548 followed. [Para 12
(2) Industrial Disputes Act, 1947 -- Ss. 25F and 2 (oo) -- workman employed and worked for continuous period of four years -- discharged without payment of retrenchment compensation and also without notice to appropriate Government -- retrenchment is non-est and liable to be quashed. [Para 15
(3) Industrial Disputes Act, 1947 -- S.2 (oo) -- discharge of probationer‘s services -- such discharge is termination within the definition of retrenchment. AIR 1983 SC 1320 followed. [Para 15
(4) Industrial Disputes Act, 1947 -- S.2 (oo) (bb) (as inserted in 1984) -. applicability of this newly inserted clause (bb) -- depends upon the stipulation in the appointment order itself --stipulation of termination of service not mentioned in contract of employment but anywhere else would not attract this provision -- words ‘~contained therein" used under -- should be given proper effect. [Para 17
(5) Industrial Disputes Act, 1947 -- S.2 (s) -- "workman" challenging his termination directly in High Court -- back wages cannot be awarded -- he is free to take proper steps for the same. AIR 1980 SC 840 followed. [Para 18
¼1½ vkS|ksfxd fookn vf/kfu;e] 1947 & /kkjk 2 ¼´½ rFkk ¼?k½ & f‘k{kk ,d çdkj dh lsok gS vkSj fo‘ofo|ky; /kkjk 2 ¼´½ esa ;Fkk ifjHkkf"kr ^^m|ksx** gS & fo‘ofo|ky; esa dke djus okyk fyfid /kkjk 2¼/k½ dh ifjHkk"kk ds v/khu ^^deZdkj** gSA
f‘k{kk ,d çdkj dh lsok gS] ;|fi og mRÑ"V gS vkSj fo‘ofo|ky;] vkS|ksfxd fookn vf/kfu;e] 1947 dh /kkjk 2 ¼´½ ds vFkk±rxZr ^^m|ksx** gSA vxys ç‘u esa fd ;kph dh Hkk¡fr fo‘ofo|ky; dk dksbZ fyfid ^^deZdkj** Fkk] lansg dh dksbZ xqatkb‘k ugha gSaA fyfid dh Hkk¡fr fu;qfDr O;fDr ^^deZdkj** dh ifjHkk"kk esa vfHkO;fDr :Ik ls of.kZr gSA , vkb vkj 1978 ,l lh 548 vuqlfjrA ¿iSjk 12
¼2½ vkS|ksfxd fookn vf/kfu;e] 1947 & /kkjk 25 ¼p½ rFkk 2 ¼.k.k½ & deZdkj fu;qDr gqvk vkSj mlus pkj o"kZ rd dk;Z fd;k & N¡Vuh çfrdj fn, fcuk vkSj leqfpr ljdkj dks Hkh lwpuk fn, fcuk lsoksUeqDr fd;k x;k & ukfLr gS vkSj vfHk[kafMr fd, tkus ;ksX; gSA ¿iSjk 15
¼3½ vkS|ksfxd fookn vf/kfu;e] 1947 & /kkjk 2 ¼.k.k½ & ifjoh{kk/khu O;fDr dh lsoksUeqfDr & ,slh lsoksUeqfDr N¡Vuh dh ifjHkk"kk ds varxZr lsok&lekfIr gSA , vkb vkj 1983 ,l lh 1320 vuqlfjrA ¿iSjk 15
¼4½ vkS|ksfxd fookn vf/kfu;e] 1947 & /kkjk 2 ¼.k.k½ ¼[k[k½ ¼1984½ esa ;Fkk var%LFkkfir & bl uohu var%LFkkfir [kaM ¼[k[k½ dk ykxw gksuk & Lo;a fu;qfDr vkns‘k esa ds vuqca/k ij fuHkZj djrk gS & lsok lekfIr ds vuqca/k dk mYys[k lafonk esa ugha vfirq vU;= dgha & ;g mica/k vkdf"kZr ugha gksxk & ç;qDr ‘‘kCn ^^mlesa lekfo"V** & mfpr çHkko fn;k tk,xkA ¿iSjk 17
¼5½ vkS|ksfxd fookn vf/kfu;e] 1947 & /kkjk 2 ¼/k½ & mldh lsok&lekfIr ij ^^deZdkj** }kjk lh/ks mPp U;k;ky; esa vk{ksi & fiNyh etnwjh vf/kfu.khZr ugha dh tk ldrh & mlds fy, mfpr mik; djus ds fy, og Lora= gSA , vkb vkj 1980 ,l lh 840 vuqlfjrA ¿iSjk 18
S.K. Chawla, J.--1. By this petition under Articles 226/227 of the Constitution of India, the petitioner challenges the order of termination of his service dated 23.1.86 (Annex. P-6), as also the appellate order dated 11.9.87 (Annex. P-8), confirming the said order.
2. The petitioner was temporarily appointed as a Lower Division Clerk by order dated 21.4.1982 of the Registrar, Jiwaji University, Gwalior. Previous to that, the petitioner had worked intermittently on that post. The petitioner continued to work on the temporary post until 6th November, 1984, when by an order passed on that day, he was placed on probation for a period of two years. But before that on 23.3.1984 the petitioner was granted 10% additional allowance on his basic salary with effect from 21.4.1982 for working on the post of Upper Division Clerk. On 15.11.1984, he was granted, further allowance at the rate of 20% on his basic salary with effect from 1.4.84 on the same ground of rendering service as an Upper Division Clerk. His service was, however, terminated before the expiry of the period of probation of 3 years, i.e. on 23.1.1986 by a non-speaking innocuous order, Annex. P-6, whereby, the petitioner was also given one month's salary of Rs. 946.90 in lieu of one month's notice. The petitioner's appeal carried to the Executive Council of Jiwaji University was dismissed, vide information given to the petitioner dated 11.9.87, Annex. P-8.
3. It is also not disputed that on 3.8.1984, while the petitioner was serving in the University, he was detailed on the duty to receive examination fee from students of B.A. Part II Examination. On that day, the petitioner had received, among other sums, a sum of Rs. 36/- towards examination fee from a student named Ku. Sunita Yadav. The petitioner had handed over the entire sum collected through out the day by him, excepting Rs. 36/-, to the cashier of the University on the close of the day. What is remarkable is also the fact that whereas two copies of receipt used to be handed over to student paying the examination fee and one copy retained in the receipt book, in the case of examination fee of Rs. 36/- received from Ku. Sunita Yadav, the petitioner happened to tear out all the three copies of the receipt from the receipt-book, retaining none in the receipt book. Nearly 4 months after the above event i.e. in the month of December 1984, the accounts of the University came to be audited and it was then found out that Rs. 36/- were deposited less. It is not disputed that the petitioner then deposited the sum of Rs. 36/- with the University. On 11.3.1985, the Registrar of the • University issued a memo (Annex. P-5) to the petitioner asking him to show cause why action be not taken against him under Statute 31 Clause 13 (1) of Jiwaji University for the alleged act of defalcation and cheating. The petitioner submitted an explanation, Annex. P-5 A. That was followed by the impugned order of termination dated 23.1.86 (Annex. P-6) passed by the Registrar. No enquiry was admittedly held before passing the impugned order.
4. The case of the petitioner is that he had received the said sum of Rs. 36/by means of a draft. There was therefore, no question of defalcating any cash. It was because of heavy rush of work that he happened to tear even the third copy of the receipt in question: He lost no time in paying Rs. 36/- to the University as soon as mistake was detected. His termination was "arbitrary" and "whimsical" without conducting any kind of enquiry against him. The order of termination, although innocuously worded was penal in character and as the petitioner had been punished without any kind of enquiry, the order of termination was, what the petitioner calls, "illegal" "void" and "unconstitutional". At any rate the University was an "industry" while the petitioner was a "workman". He had been in continuous service for more than a year. He was not paid any retrenchment compensation. No reasons for retrenchment were disclose
