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IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
GURPAL SINGH AHLUWALIA, J.
Sandeep Jain - Appellant
Versus
The State of M.P. and Ors. - Respondents
Writ Petition No. 13260 of 2020
Decided On : 01-03-2021
WRIT - DISCHARGE FROM SERVICE - MAINTAINABILITY - WRIT PETITION - PUBLIC ELEMENT - AIDED INSTITUTIONS - STATUTE 30 - COLLEGE CODE - TERMINATION OF SERVICE - GROUNDS - PROCEDURE - SCREENING COMMITTEE - DISCIPLINARY ENQUIRY - MEDICAL UNFITNESS - SUPPRESSION OF FACT - ESTOPPEL - WAIVER - ALTERNATIVE REMEDY - JURISDICTION - BACK WAGES.
Fact of the Case:
Petitioner, an Associate Professor, was compulsorily retired from service after 20 years of service/50 years of age. The order was later amended to 'discharge'. The petitioner challenged the order on the grounds that the respondent, an aided Engineering College, was a State within the meaning of Article 12 of the Constitution and amenable to writ jurisdiction; the discharge was without jurisdiction and in violation of the College Code and Statute 30; and the Screening Committee's recommendations were based on unsubstantiated allegations.
Finding of the Court:
1. The respondent, an aided Engineering College, was a State within the meaning of Article 12 of the Constitution and amenable to writ jurisdiction as it was governed by Statute 30 framed by the State Government and received grant-in-aid. 2. The discharge of the petitioner was without jurisdiction and in violation of the College Code and Statute 30 as it was based on the recommendations of the Screening Committee, which was not empowered to discharge the petitioner, and no disciplinary enquiry was conducted as required under the College Code. 3. The Screening Committee's recommendations were based on unsubstantiated allegations of misconduct, breach of contract, and incompetence, and the petitioner was not given an opportunity to defend himself. 4. The petitioner's suppression of the fact that he had approached the Kulapati was not a material suppression of fact that would warrant dismissal of the petition. 5. The petitioner was not estopped or waived from challenging the discharge order as he had not voluntarily accepted the three months' advance salary in lieu of notice and was ready to refund the same. 6. The alternative remedy of approaching the Tribunal under Clause 42 of the College Code was not a bar to the writ petition as the entire action of the respondent was without jurisdiction and the Tribunal had not been constituted.
Issues: 1. Whether the writ petition was maintainable. 2. Whether the discharge of the petitioner was valid. 3. Whether the Screening Committee's recommendations were justified. 4. Whether the petitioner was estopped or waived from challenging the discharge order. 5. Whether the alternative remedy of approaching the Tribunal was a bar to the writ petition.
Ratio Decidendi: 1. Aided institutions governed by Statute 30 and receiving grant-in-aid are amenable to writ jurisdiction under Article 12 of the Constitution. 2. Discharge of a teacher after 25 years of service without following the procedure laid down in the College Code and Statute 30 is invalid. 3. Allegations of misconduct, breach of contract, and incompetence must be substantiated and the teacher must be given an opportunity to defend himself before termination of service. 4. Suppression of a material fact may disentitle a litigant from obtaining relief, but not every suppression of fact is fatal. 5. Acceptance of advance salary in lieu of notice without voluntary consent or overt act does not amount to waiver or estoppel from challenging the discharge order. 6. Alternative remedy is not an absolute bar to a writ petition, especially when the action of the authority is without jurisdiction.
Final Decision: The petition was allowed. The order discharging the petitioner was quashed, and the petitioner was entitled to full back wages, with the advance salary of three months to be adjusted against the arrears.
JUDGMENT :
Gurpal Singh Ahluwalia, J.
1. Heard finally.
By this common order, W.P. No.13260 of 2020 (Sandeep Jain vs. State of MP. and others), W.P. No.15531/2020 (Dr. Lokesh Bajpai Vs. State of M.P. and others), W.P. No.18995/2020 (Dr. Alok Jain and another Vs. Thte State of M.P. and others), W.P. No.19212/2020 (Dr. Rajendra Dubey Vs. The State of M.P. and others) and W.P. No.19866 of 2020 (Smt. Vibha Jain Vs. The State of M.P. and others) are being decided.
2. In W.P. No. 13260 of 2020 initially an order of compulsory retirement was issued and in W.P. No. 15531 of 2020, initially an order of retirement in public interest was issued. However, later on, in W.P. No. 13260 of 2020 and W.P. No. 15531 of 2020 corrigendum dated 22-9-2020 was issued and the words "Compulsory retirement" and "retirement" were changed to "discharge". Accordingly, in all the writ petitions, the petitioners have been discharged from service.
3. For the convenience, the facts of W.P. No. 13260 of 2020 are being considered.
4. This petition under Article 226 of the Constitution of India has been filed against the order dated 17-8-2020 passed by respondent No. 4, thereby the petitioner was compulsorily retired on completion of 20 years of service/50 years of age.
5. It is the case of the petitioner, that respondent No. 4/Samrat Ashok Technological Institute (Engineering College), Vidisha is an Engineering College, managed by respondent No. 3. It is the claim of the petitioner, that respondent No. 4 is getting grant in Aid from the State Government under the Grant in Aid Rules, 1991 for technical institutions and accordingly, it is claimed that the respondent No. 4 is a State within the meaning of Article 12 of the Constitution of India. It is further submitted that the respondent No. 4 is under obligation to follow the College Code framed by State Govt. under Section 38(1) read with Section 37 of Rajiv Gandhi Proudyogiki Vishwavidyalaya Adhiniyam, therefore, the writ petition before this Court is maintainable.
6. It is the case of the petitioner, that he was initially appointed as Lecturer on Probation basis in the year 1988 and later on, he was confirmed and at present he is holding the post of Associate Professor. Further, in the Budget for the year 2015-16, the petitioner was shown as permanent and under grantee staff.
7. In the year 2016, some agitation took place as the EPF contribution of the staff was reduced by the management, contrary to the provisions of the EPF Act, and the petitioner had also taken part in the said agitation and accordingly, the management developed malice and therefore, a charge sheet was issued to the petitioner. The said charge sheet has been challenged by the petitioner by filing W.P. No. 3501/2017 and an interim order has been passed by this Court and the respondents No. 3 and 4 have been restrained from passing any final order. It is further submitted that the enquiry has been completed and the enquiry officer has found that none of the charges have been proved and the said findings have also been accepted by the Director, Technical Education.
8. Due to the imposition of Country wide Lockdown w.e.f. 24-3-2020, the physical classes were also kept in abeyance and the respondent No. 4 resorted to Online Classes. Further, the respondents No. 3 and 4, stopped the payment of salary to the staff in spite of the fact that AICTE has directed all the technical colleges not to terminate the services of any faculty or staff on account of lockdown. Accordingly, the staff union has filed W.P. No. 10470 of 2020 before this Court for release of their salary and notices have been issued. It is claimed by the petitioner, that as soon as the respondent No. 3 came to know about the filing of the writ petition, the attitude of the respondents No. 3 and 4 towards the staff became vindictive and accordingly, under the garb of financial distress, the petitioner has been compulsorily retired from service. But on the other hand the respondent No. 4 has invi
The court affirmed that writ jurisdiction under Article 226 is not maintainable when an alternative statutory remedy exists, particularly in private employment disputes.
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