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High Court Of Madhya Pradesh
P. K. Tare, C.J., Shiv Dayal and M. L. Malik, JJ.
JAI PRAKASH MUDLIAR
Versus
A C CHOUBEY PRESIDENT GOVERNING BODY PT JAWAHARLAL NEHRU SCIENCE AND ARTS COLLEGE BEMETARA
Decided On : Aug 05,1974
Where a servant withdraws the resignation before it becomes operative, it cannot be considered. 1970 JLJ 847, AIR 1966 SC 1303, AIR 1969 SC 180 & AIR 1954 SC 484 relied on. [Paras 11 & 69
(2) University Laws - Ravishanker University Act, 1963 (MP) - S. 35 (j) - Statute 22 (3) (iii) - statute is not ultra vires the Act - is binding on the affiliated College - a Principal of affiliated College cannot be dismissed without approval of the Executive Council.
Statute No. 22 falls within the powers given by the Ravishanker University Act. Once a College seeks to be admitted to the privileges of the University and it has been so admitted, it is bound to comply with the statute. [Paras 52 & 53
A statute which requires that a College, which had been admitted to its privileges by the University, should obtain a prior approval for the appointment of a Principal and for the termination of his services, is quite reasonable and is consonant with the responsibilities of a University. The University can be a better judge of the competence and efficiency of a Principal. The contention that statute No. 22 (3) (iii) is ultra vires must be rejected. 1965 JLJ 513 (SC) relied on. [Paras 55 & 60
(3) Constitution of India - Art, 226 - relation between master and servant - wrongfully ending the contract of service - when a writ may be issued.
It is celebrated rule of law that specific performance of contract of service cannot be enforced. A servant cannot be forced upon the master by a writ. A master can terminate a contract with his servant, at any time, and for any reason, or for no reason. If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages for breach of contract. This rule is subject to some exceptions. [Para 61
One of the exceptions is that where a statutory body acts in a breach of a mandatory obligation imposed by a statute the High Court may interfere under Article 226. [Paras 62 & 66
(4) Constitution of India - Art, 226 - Governing body of an affiliated College - is a statutory body - writ may be issued to set right its illegal actions - Ravishankar University Act, 1963 (MP) - S. 35 (j) - statute 22 (2).
A statutory body is one which is the creation of an enactment or is constituted under the requirements of a statute. In the present case, the M.P. Ravishankar University Act, 1963, provides for making Statutes; and, Statute 22 (2) lays down the constitution and composition of the Governing Body of a Collage which is admitted to its privileges. Once a College is admitted to the privileges of the University under Statute 22 (1), its Governing Body must be constituted as required by Statute 22 (2). Therefore, the Governing Body in the present case is a statutory body. [Para 63
(5) University Laws - Ravishankar University Act, 1963 (MP) - Statute 22 (3) (iii) - decision to terminate the services of a Principal - how to be implemented.
On its true construction, Statute No. 22 (3) (iii) imposes a restriction not on taking a decision to terminate the services of a Principal; but it is a bar to the implementation of such a decision. In other words a decision to terminate the services of a Principal can be taken by the Governing Body. But such decision can be implemented only "after" the approval of the Executive Council. To interpret it otherwise will lead to anomalous results. After all, the Governing Body has to express its decision by a resolution and it is only then that the approval can be sought from the University. [Paras 70 & 81
( 1. ) IN this petition under Articles 226 and 227 of the Constitution of India, the petitioner, a former Principal of the Pt. Jawaharlal Nehru Science and Arts College, Bemetara, challenges the resolutions of the Governing Body, dated 28-10-1971 (Petitioners Annexures -L and N) terminating his services with effect from 21-8-1971. At this stage it may be relevant to reproduce the exact wording of the resolution, which is as follows:-
"case of Shri Mudliar -The report of the Committee constituted on 7-10-1971 was circulated amongst the members present. Report perused. Shri Mudliar has left us with no option (except) to dispense with his services from 21-8-71, though he was afforded every possible opportunity to defend himself. It is, therefore, unanimously resolved to dispense with his services with effect from 21st August, 1971. A copy of the resolution be sent to the University for approval and to Shri J. G. Mudliar. Necessary Steps be taken for recruitment of the Principal after receiving permission from the University with respect to the termination of Shri Mudliar. "
( 2. ) THE facts leading to the filing of the present writ petition lie within a narrow compass: They are as follows: On 2-7-1969 the petitioner joined as Principal of Pt. Jawaharlal Nehru Science and Arts College, Bemetara. By a resolution, dated 15-7 69 (Petitioners Annexure -A) the petitioner was appointed Principal on probation for a period of two years with effect from 1-7-1969. As such, the probationary period was to end on 1-7-197 1. A formal order in that behalf was passed on 31-7-1969 (Petitioners Annexure-B) appointing him on a pay-scale of Rs. 850-25 950-30-1100, in addition to the nearness allowance admissible under the Rules applicable to the Government servants. The order also stated that the appointment was subject to the approval of the executive Council of the Ravishankar University.
( 3. ) THE petitioner applied for leave from 21-8-1971 to 31-8-1971. He did not join immediately, but resumed his duty on 25-9-1971. However, that leave was refused and by order, dated 11-10-1971 (Petitioners Annexures-D and G), he was asked to deposit donations receipt-books and to render an account of the donations received. Thereafter a show-cause notice, dated 2-10-1971 (Petitioners Annexure-E) was given to the petitioner to show cause as to why his services should not be dispensed with. The allegations made in the notice were that the petitioner failed to properly conduct, supervise and control the elections of Students Union, which ultimately was dissolved in both the years and the petitioner chose to nominate the members of the Union. As a result of dissolution of the Union and nominations, dissatisfaction spread amongst the students resulting in agitation. The members of the staff expressed resentment against the petitioner. An explanation was sought from the petitioner, but he failed to offer any. In the current session also the petitioner was absent from the headquarter from the start of the academic session except for a week. The petitioner failed to give and maintain proper accounts of the donations and Lottery tickets. The petitioner did not join in proper time, even though leave was refused. The petitioner during that period was quite hale and hearty and he had deliberately avoided to join his duty. As such, he had acted to the detriment of the interest and welfare of the Institution in the matter of management, disbursement of pay and other routine matters of management, including education.
( 4. ) IN reply to the said show-cause notice, the petitioner sent a letter, dated 22-10-1971 (Petitioners Annexure-F), wherein he acknowledged receipt of the show-cause notice. He made a demand for being furnished with copies of the record, including statements, if any, recorded, which formed the basis for framing of the charges against him. He also demanded a copy of the resolution of the Governing Body. The petitioner also sent another letter of the sam
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