1996 Supreme(MP) 1287

IN THE HIGH COURT OF MADHYA PRADESH
Shacheendra Dwivedi, J.
Laxman Singh - Petitioner
Vs.
Shaheed Ramprasad Bismil, H.S.S. - Respondent
WP No. 886 of 1993 (G)
Decided On : 03-01-1996

Headnote:(1) Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyon Ke Vetno Ka Sandaya) Adhiniyarn, 1978 (M.P.) – S.6 – teacher involved in murder case and sentenced by trial Court – appeal pending and sentence suspended – cannot be discontinued from service without valid termination order.

       (2) Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Kararnchariyon Ki Bharti) Niyarm, 1979 (M.P.) – R.5 – teacher – cannot be discontinued from service without valid termination order.

        Short Note

       This petition is preferred under Article 226 of the Constitution of India for a direction against the respondent for the payment of subsistence allowance and also for the petitioner's reinstatement in service.

       2. The petitioner was working as Principal of respondent No. 1. It is contended that due to the Political rivalry, he was implicated falsely in a criminal case punishable under section 302 of the Indian Penal Code. The petitioner along with some other accused persons was convicted by the Court of Session in S.T. No. 93/83 on 12.3.92. The petitioner was sentenced to imprisonment for life.

       3. The petitioner had preferred an appeal against the order of his conviction and sentence and the Division Bench of this Court was pleased to direct the release on bail of the petitioner on 12.8.92, and during the pendency of appeal, the execution of sentence of imprisonment for life was suspended.

       4. It is contended that from the date of judgment of the Sessions Court, the petitioner was not allowed to enter the School premises. It is also contended that he was neither suspended nor any order for the termination of his services was passed within his knowledge. It is contended that the action of the respondents was violative of the Rules, i.e. Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ko Padchyut Karne/Sewa Se Hatane Sambandhi Prakriya) Rules, 1983, and therefore, the direction, as stated above, is sought by him in this writ petition.

       5. The respondents were noticed. None of the respondents have filed return. Only respondent No.1, i.e., the Institution, raised a preliminary objection that the writ was not maintainable as there was statutory remedy of appeal available to the petitioner against the termination of service. While hearing this petition finally, it was very vehemently argued by Shri D.K. Katare, appearing for respondent No.1, that in the presence of an alternative remedy, the writ petition could not be entertained by this Court; but from the perusal of the record of the writ petition, I have found that the same contention, when raised, was rejected by the Court earlier. As such, this contention cannot be considered again.

       6. None of the respondents have stated as to when and in what manner the services of the petitioner were terminated, whereas, the petitioner has alleged that he was not permitted to enter the School premises and that no order of termination of his service was passed within his knowledge. The respondents despite opportunities did not file the return and the petitioner's allegations against them have gone uncontroverted.

       7. On the contrary, it is apparent from Annexure P/3, which is the letter dated 30.4.93 of Joint Director Education respondent No.3 addressed to respondent No.1, informing that its proposal of the termination of petitioner's service was turned down in view of the letter of respondent No.2, i.e., the Commissioner Public Instructions Madhya Pradesh, Bhopal. Thereafter, respondent No.1 even while taking the preliminary objection about the maintainability of the petition did not produce any order of the termination of the petitioner's service nor there is any averment that the petitioner's stated termination was later on approved by the competent authority. No compliance of the Rules appears to have been made and the respondents have failed to justify their action against the petitioner.

       8. Therefore, the petitioner in such a situation without following the prescribed procedure cannot be removed from service by the respondents nor could he be restrained from working as Principal of respondent No. 1. The Rules do not provide the automatic termination of the service of an employee of an Ashashkiya Shikshan Sanstha on his conviction and on being sentenced even for an offence involving the moral turpitude.

       9. For the foregoing reasons, the petition succeeds. The petitioner shall be entitled to the payment of subsistence allowance upto the date of his now joining the service and he would be allowed to work with respondent No.1 as Principal thereof. However, this order shall not be an impediment for the respondents in passing a legal order against him. In the peculiar facts and circumstances, the parties are left to bear their own costs.