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IN THE HIGH COURT OF MADHYA PRADESH
Deepak Verma, J.
Mrs. Promilla Bais
Vs.
Principal, Daly College and One Anr.
W.P. No. 73 of 1998 (I)
Decided On: 25.09.1998
WRIT PETITION - MAINTAINABILITY - EDUCATIONAL INSTITUTION - STATE - DEFINITION - AMENABLE TO WRIT JURISDICTION - DALY COLLEGE - PRIVATE UNAIDED SCHOOL - NOT A STATE - NOT AMENABLE TO WRIT JURISDICTION - SERVICE TERMINATION - ORDER OF TERMINATION - NOT BAD IN LAW - EMPLOYEE CANNOT BE REMOVED ON BASIS OF NOTICE SIMPLICITOR ON PAYMENT OF SALARY FOR REQUISITE PERIOD IN LIEU OF NOTICE PERIOD - WORDINGS OF TERMINATION ORDER - CASTING STIGMA ON EMPLOYEE'S RECORD - CANNOT BE TERMED AS TERMINATION ORDER SIMPLICITOR - DEPARTMENTAL ENQUIRY - CAN BE HELD - REINSTATEMENT IN SERVICE OR PAYMENT OF BACKWAGES - NOT CONDITION PRECEDENT FOR GIVING OPPORTUNITY OF HEARING AND HOLDING ENQUIRY - ENQUIRY OFFICER - APPOINTMENT - CHANGE OF ENQUIRY OFFICER - SERIOUS BIAS OR PREJUDICIAL MIND OF ENQUIRY OFFICER - NOT ESTABLISHED - PETITIONER'S NON-PARTICIPATION IN ENQUIRY - NO STAY OF ENQUIRY - ENQUIRY REPORT SUBMITTED - PETITION RENDERED INFRUCTUOUS.
Fact of the Case:
Petitioner, an employee of Daly College, a private unaided school, challenged the order of termination of her services, claiming that the order was bad in law and that an employee could not be removed on the basis of notice simplicitor on payment of salary for the requisite period in lieu of notice period. She also sought quashing of the charge-sheet issued to her.
Finding of the Court:
The Court held that Daly College was not a State within the meaning of Art. 12 of the Constitution and was not amenable to writ jurisdiction under Art. 226. The Court further held that the order of termination was not bad in law and that the employee could be removed on the basis of notice simplicitor on payment of salary for the requisite period in lieu of notice period. The Court also held that the wordings of the termination order did not cast a stigma on the employee's record and that it could not be termed as a termination order simplicitor. The Court further held that the departmental enquiry could be held and that reinstatement in service or payment of backwages was not a condition precedent for giving an opportunity of hearing and holding an enquiry. The Court also held that the appointment of the enquiry officer was not illegal and that the change of enquiry officer was justified in the circumstances of the case. The Court further held that the petitioner's non-participation in the enquiry was not justified and that the enquiry report submitted by the enquiry officer was valid.
Issues: 1. Whether Daly College is a State within the meaning of Art. 12 of the Constitution and amenable to writ jurisdiction under Art. 226? 2. Whether the order of termination of the petitioner's services was bad in law? 3. Whether the employee could be removed on the basis of notice simplicitor on payment of salary for the requisite period in lieu of notice period? 4. Whether the wordings of the termination order cast a stigma on the employee's record and could be termed as a termination order simplicitor? 5. Whether the departmental enquiry could be held? 6. Whether reinstatement in service or payment of backwages was a condition precedent for giving an opportunity of hearing and holding an enquiry? 7. Whether the appointment of the enquiry officer was illegal? 8. Whether the change of enquiry officer was justified? 9. Whether the petitioner's non-participation in the enquiry was justified? 10. Whether the enquiry report submitted by the enquiry officer was valid?
Ratio Decidendi: 1. A private unaided school like Daly College is not a State within the meaning of Art. 12 of the Constitution and is not amenable to writ jurisdiction under Art. 226. 2. An order of termination of services is not bad in law if it is passed in accordance with the terms of the employment contract and the employee is given notice simplicitor on payment of salary for the requisite period in lieu of notice period. 3. The wordings of a termination order do not cast a stigma on the employee's record and cannot be termed as a termination order simplicitor if they do not contain any adverse remarks about the employee's conduct or performance. 4. A departmental enquiry can be held against an employee even if the order of termination of his services has been kept in abeyance. 5. Reinstatement in service or payment of backwages is not a condition precedent for giving an opportunity of hearing and holding an enquiry against an employee. 6. The appointment of an enquiry officer is not illegal if he is a person of integrity and impartiality. 7. A change of enquiry officer is justified if the original enquiry officer is biased or prejudiced against the employee. 8. An employee's non-participation in an enquiry is not justified if he has been given proper notice of the enquiry and has been afforded an opportunity to participate in it. 9. An enquiry report submitted by an enquiry officer is valid if it is based on evidence and is not vitiated by any bias or prejudice.
Final Decision: The petition was dismissed with no order as to costs.
Deepak Verma, J.
1. In this petition, filed under Art. 226 of the Constitution, Petitioner is praying for quashment of the order of termination of her services; for declaration, that her services have never been legally terminated; she still continues in service, without break; to restore her in service with all consequential and incidental benefits; to give effect to the order dt. 22.9.1997, passed by this Court in W.P. No. 857/1997 and for quashment of the charge-sheet, issued to her.
2. The petition had come-up for admission before this Court, after issuance of show-cause notice to the Respondents on 17.3.1998. It appears, on the said date, objection was raised with regard to maintainability of a writ petition, filed against the Respondents. The Court considered the objection, but, placing reliance on judgments, reported in AIR 1989 SC 1607; AIR 1998 SC 295 and 1994 MP LLR 174; prima facie, came to the conclusion that Daly College/Respondent No. 1, would be amenable to writ jurisdiction and will be "State" under the definition of Art. 12 of the Constitution. Thus, the petition, on the said date, was admitted for final hearing. It has now come-up before me for final hearing.
3. Since, this petition has already been admitted for final hearing, it cannot be thrown at the threshold, on the ground, that Respondent No. 1 would not be a State, covered under Art. 12; consequently, would not be amenable to writ jurisdiction under Art. 226 of the Constitution.
4. It has been felt by this Court, to resolve this dispute, as number of petitions against Daly College and other such Educational Institutes are coming up. So far question, whether Respondent No. 1/Daly College, would be a State, covered under the definition of Art. 12; consequently, would be amenable to writ jurisdiction under Art. 226 of the Constitution, has not been examined critically, specifically and the question has not yet been set at rest.
5. I, therefore, deem it fit and proper, on account of aforesaid facts and circumstances, to examine the said question, even, if, it is of academic interest in this petition, as this petition stands admitted. In a recent judgment of the Supreme Court, it has remanded a matter to the High Court, to examine certain question, even, if, it is only of academic interest. The said judgment has been pronounced on 12.8.1998 in the matter of Civil Appeal No. 2245 of 1996 (Gujrat Ambuja Cement Ltd. and another V. Union of India and Ors.), relevant operative portion of the said judgment on this point is reproduced hereinbelow -
We would also request the High Court to decide all these questions including the main controversy on merits, even, if, after hearing the parties concerned, the High Court is once again inclined to take the view that the grievance of the petitioners was of academic nature. In that case the High Court may examine the said main grievance in the alternative. This request is made to the High Court in order to avoid any future possibility of further remand to the High Court, in case its decision on the academic nature of writ petitioner's grievance gets upset in the hierarchy of proceedings.
6. In view of aforesaid recent judgment of the Supreme Court, I am fortified in my views, even, to examine academic nature, involved in a petition.
7. The counsel, appearing for rival parties, were requested to address this Court on the aforesaid question first and then on the merits of the matter. They have argued it accordingly and I shall also deal with it correspondingly.
8. Smt. Ritu Bhargava, learned counsel, appearing for Petitioner, has placed reliance on number of judgments. First in the series, is, reported in AIR 1998 SC 295 (K. Krishnamacharyaulu and Ors. V. Shri Venkateshwara Hindu College of Engineering and another). In this case, it has been held that writ jurisdiction, is available to teachers in private Educational Institution as State has obligation to provide facilities and opportunities to people to avail right of educatio
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