Amit Aggarwal vs Swami Sarvanand Institute of Engineer & Technology

Daya Chaudhary, J.—The prayer in the present petition is for issuance of a writ in the nature of certiorari for quashing the impugned judgment dated 30.09.2011 (Annexure P-5) passed by the Educational Tribunal, Punjab, Chandigarh (here-in-after called as `The Tribunal'') and also for issuance of a direction to the respondents to take the petitioner back in service with effect from the date of notice of termination i.e 25.01.2011 along with all consequential benefits arising thereto.

Briefly, the facts of the case, as made out in the present petition, are that the petitioner was appointed as Lecturer in Communication Skill on regular basis in the month of August 2009 on the basis of recommendations of duly constituted Selection Committee. During the service period, the salary was credited in his bank account and of other similarly situated employees, however, the Accountant of respondent- Institute used to deduct Rs. 6,000/- from their salary and got the withdrawal form signed by each teacher/employee by withdrawing the said amount. Meaning thereby, Rs. 6,000/- less salary was paid to the teachers/lecturers and the same was brought to the notice of the higher authorities also, whereafter, an inquiry was conducted and the allegations were found to be correct. Thereafter, an explanation was sought from respondent No.1 for the abovesaid withdrawal of Rs. 6000/- from the salary of the teachers. The respondent-Institute nursed a grudge because of this complaint and a notice of termination was issued to the petitioner on 25.01.2011 stating therein that as he was habitual to come late, slipped and remained absent without informing his senior officers, so his services were no more required after 25.01.2011. Said notice of termination dated 25.01.2011 issued by the Principal of the Institute was challenged before the Educational Tribunal in Petition No.17 of 2011 and the same was dismissed vide its order dated 30.09.2011.

Learned senior counsel for the petitioner submits that the respondent authority had already made up its mind to terminate the services of the petitioner by issuing notice of termination, whereas, neither any opportunity of hearing was given nor any inquiry was conducted, which is the requirement of provisions of Sections 3 and 4 of the Punjab Affiliated Colleges (Security of Service of employees) Act, 1974 (here-in-after referred to as `the Act, 1974). The reply of Show Cause Notice was submitted but the same was not taken into consideration. Learned counsel also submits that the penalty of dismissal or removal from service can be passed after approval of the Director Public Instructions but no such approval was obtained and the mandatory requirement of conducting regular enquiry was also not fulfilled. The impugned order of dismissal has been passed with mala fide intention. Learned counsel for the petitioner also submits that the Tribunal has passed the impugned order without taking into consideration the provisions of the Act, 1974 and without affording any opportunity of hearing to the petitioner. As per terms and conditions of the appointment letter, the petitioner was not a temporary employee but the observations made by learned Tribunal are contrary to the record. The impugned judgment of Tribunal is based on misreading of Sections 3, 4, 5 and 6 of the Act, 1974.

Learned counsel for the petitioner has relied upon the judgments of Hon''ble the Apex Court in Pavanendra Narayan Verma v. Sanjay Gandhi, PGI of Medical Sciences, 2002(1) SCC 520, State of U.P and others v. Rekha Rani, AIR 2011 S.C. 1893, Regional Manager, Bank of Baroda v. Anita Nandrajog, 2009(5) Law Herald (SC) 2849, judgment of this Court in case Jaipal Singh v. Punjab and Haryana High Court and another, 2009(2) RSJ 772 and Deepak Bhandari v. D.A.V. College Managing Committee, New Delhi and another 1991(3) RSJ 146, in support of his contentions.

Learned counsel for the respondents submits that the judgment of the Tribunal is well reasoned and speaking as the appointment of the petitioner was not regular as he was engaged on ad hoc basis. The petitioner himself left his job, which is clear from the fact that he did not mark himself present in the attendance register maintained by the College. The petitioner, thereafter, was re-appointed on 31.05.2010 purely on temporary basis and no fresh appointment letter was issued to him. The work and conduct of the petitioner was not found to be satisfactory and as such, his services were rightly terminated. No regular enquiry was required as the petitioner was not a regular appointee. Earlier also, the petitioner abandoned the job and thereafter, by taking a sympathetic ground, he was re-employed. The order of termination is not stigmatic and no principles of natural justice was violated.

Heard the arguments of learned counsel for the parties and have also perused documents available on record including the appointment letter, notice of termination, judgment/order of Educational Tribunal.

The petitioner being aggrieved by the order of termination of his services, challenged the same before the Educational Tribunal and the petition filed by him was dismissed. Undisputedly, the petitioner was appointed as Lecturer in Communication Skill. On perusal of appointment letter (Annexure P-1), it is clear that the petitioner was appointed as Lecturer in Communication Skill on the basis of recommendation made by the duly constituted Committee. It is also mentioned therein that the petitioner was to get salary as per AICTE/PTU norms. Thereafter, petitioner was issued notice of termination (Annexure P-2), stating therein, that he remained absent and was in the habit of coming late without any intimation to his superiors and due to his conduct, result of the students got affected. It was also mentioned therein that many times, the petitioner was warned orally as well as in writing to mend his ways but he did not improve himself. At the end, it was mentioned that the services of the petitioner were no more required with effect from 25.01.2011.

Notice of termination of services of the petitioner was issued on 25.01.2011 and it was made effective from that very date. Petitioner responded to notice of termination vide his reply dated 03.04.2011 (Annexure P-4), wherein, the allegations made in the notice were denied. It was also mentioned that the result for the year 2009-10 was good and no complaint was ever made against his work and conduct. It was also mentioned that notice was issued to him due to mala fide reasons as he demanded full salary in the pay scale of Rs. 15600-275-39100+6000/-. A complaint was made that there was a withdrawal of Rs. 6,000/- every month by putting pressure and by giving threat of termination of services. However, no separate order of termination was passed by considering as to how the reply filed by the petitioner was not satisfactory. The notice of termination was treated as termination order which was challenged by the petitioner before the Educational Tribunal, Punjab, wherein also, the same grounds were raised that no regular enquiry was conducted and no complaint was there against his work and conduct. It was also the ground before the Tribunal that no notice was given to the petitioner for remaining absent. The stand of the respondents before the Tribunal was that the petitioner was appointed on ad hoc basis and that service came to an end on 03.05.2010. From 04.05.2010 to 30.05.2010, the petitioner was not on the rolls of the respondent-Institute and he abandoned his job. Thereafter, he was again appointed on 31.05.2010 on temporary basis without issuing a fresh appointment letter. It has come on record in the judgment of the Tribunal that the Punjab Technical University, Jalandhar also filed a written statement and in para No.1 of the reply, it was stated that the appointment of the petitioner was regular on the recommendations of the Selection Committee. The stand of the respondent-College was that the petitioner was appointed on ad hoc basis. Even the rejoinder to the written statement was filed by the petitioner reiterating that he never abundant his job. The respondent-Institute sent a statement to the respondent-University containing the names of the regular lecturers, including the name of the present petitioner. It was also mentioned in the rejoinder that the petitioner was blessed with a male child on 22.11.2010 and due to ailment of the child, he could not join his duties for 21 days but the intimation to this effect was given to the Principal. He was given assurance that this period would be considered as "leave without pay". The Tribunal by holding that the order was not stigmatic or punitive and appointment was on ad hoc basis, dismissed the petition. At the end, it was also mentioned in the judgment of the Tribunal that in the absence of any evidence or finding, no relief could be granted to the petitioner. The petitioner did not produce any record and termination order was subsequent to the so-called Committee. There was no evidence that the Committee was constituted on the complaint made by the petitioner or other professors. The relevant portion of the judgment of the Tribunal is reproduced as under :-

"14. The learned counsel for the petitioner then submitted that the second part of the prayer of the petitioner should be allowed by the Tribunal as on his complaint Buta Singh Committee was constituted and this inquiry committee gave a finding that the management has been deducting Rs. 6000/- p.m from the salary of the petitioner. This argument of counsel for the petitioner has been refuted by Mr. Anshul Joy and he submitted that there is no evidence before the Tribunal to prove that the management was deducting illegally a sum of Rs. 6000/- p.m from the salary of the petitioner or that any force, coercion or undue influence was exercised upon the petitioner. In the absence of this evidence and in the absence of findings of the Buta Singh Committee, no relief can be granted to the petitioner. We are in agreement with the counsel for the respondent-management. The petitioner has not produced any record before us. Moreover, the present termination order is much subsequent to the so called committee of Shri Buta Singh. Even there is no evidence to suggest that this committee was constituted on the complaint of the petitioner or other professors. In the absence of any report of the finding of the Committee, we cannot give any adverse findings against the management.

In the light of the above discussion, we are of the considered opinion that all the allegations of the petitioner as contained in the present petition remain unsubstantiated and, therefore, we have no hesitation in dismissing this petition which is hereby dismissed without making any order of costs."

A perusal of impugned judgment shows that no findings, whatsoever, were recorded as to how the reply filed to the notice was considered and how the services of the petitioner were terminated on the basis of notice of termination. It is, nowhere, mentioned that any warning or explanation was issued to the petitioner. When the work and conduct of the petitioner was not found to be satisfactory, then how he was re-employed, has not been explained. Moreover, it has not been mentioned in the appointment letter that the petitioner was appointed on ad hoc basis. The services of the petitioner are governed by the Act, 1974 as amended upto date. Sections 3, 4, 5 and 6 of the Act, 1974 are relevant and are reproduced as under :-

"3. Dismissal, removal or reduction in rank not to be ordered except after inquiry: No employee shall be dismissed or removed or reduced in rank except after enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Procedure to be observed before dismissal or removal—(1) The penalty of dismissal or removal from service shall not be imposed unless the same is approved by the Director.

(2) Where after the inquiry referred to in Section 3, it is proposed to impose the penalty of dismissal or removal from the service, the proposal shall be referred to the Director along with the relevant record and intimation about the proposal having been so referred shall be sent to the employee concerned also, simultaneously.

(3) The employee may, within a period of thirty days of the receipt of the intimation referred to in sub section (2), make a representation against the proposed penalty to the Director who may, by an order in writing give his approval to the imposition of the proposed penalty of dismissal or removal from service, as the case may be, or refuse to give approval if the proposal is found to be mala fide or by the way of victimization or not warranted by the facts and circumstances of the case.

(4) Any party aggrieved by an order of Director under sub section (3) may file an appeal to the Educational Tribunal, which may after giving to the parties an opportunity of being heard pass such order as he may deem fit.

Procedure to observe before reduction in rank—(1) Where after the inquiry referred to in section 3, it is proposed to impose the penalty of reduction in rank, the employee shall be given a reasonable opportunity of making representation on the penalty proposed to be imposed and no order of reduction in rank shall be passed unless such an opportunity has been given.

(2) An employee against whom an order of reduction in the rank is passed may, within the prescribed period and in the prescribed manner, file an appeal to the Educational Tribunal and it may after examine the record and giving to the parties an opportunity of being heard set aside the order of reduction in rank, if the same is found to be mala fide or by way of victimization or not warranted by the facts and circumstances of the case.

Section 3, 4 and 5 not to apply in certain cases—The provisions of section 3, 4 and 5 shall not apply -

i) to the termination of service of any employee who is appointed for a temporary period only.

ii) to the termination of service of any employee appointed on probation during or at the end of the period of probation, on account of his work or conduct being unsatisfactory.

iii) to an employee who is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on criminal charge."

As per provisions of Section 3 of the Act, 1974, an employee cannot be dismissed or removed or reduced in rank except after enquiry in which he has been informed of the charges against him and is given a reasonable opportunity of being heard.

As per Section 4 of the Act, 1974, the punishment of dismissal or removal from service can be imposed with the approval of Director only.

As per procedure mentioned under Section 5 of the Act, 1974, in case of imposition of penalty of reduction in rank, the opportunity of hearing is mandatory.

As per provisions of Sections 3 and 4 of the Act, 1974, holding of an enquiry is pre-requisite condition and the punishment can be imposed after approval of Director only. Nowhere, it has come on record that the petitioner was on probation or any terms and conditions were there for removal of his services without giving any notice. One thing is clear that the services of the petitioner were terminated without conducting any enquiry and without giving any opportunity of hearing. The notice of termination cannot be termed as notice before termination of services as it is mentioned that his services were to be terminated from the date of issuing notice.

From the provisions as mentioned above, it is apparent that the order of termination has been passed without affording any opportunity of hearing and without giving any notice to the petitioner and as such, the same is violative of principles of natural justice. Even in the order of Tribunal, nothing is mentioned as to whether the provisions of Rule 1974 have been complied with or not.

The procedure laid down under the rules has not been complied with and as such, non compliance of the rules is also violative of principles of natural justice, which can be considered as failure of justice. In the absence of non-speaking order and non-mentioning of reason, the impugned order is liable to be set aside. Even there is no reference that any communication was conveyed to the petitioner and in absence of the same, an administrative order cannot sustain. Recording of reasons, fairness, transparency and compliance of principles of natural justice is the life line of administrative orders. The necessity of giving reasons flows from the concept of rule of law which constitutes one of the corner stones of our constitutional set up. The administrative authority is duty bound to act judicially and cannot decide the matters on considerations of policy or expediency. The requirement of recording of reasons by such authorities is an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process.

Reference to a judgment of Hon''ble the Supreme Court in State of Orissa v. Dhaniram Luhar 2004(2) RCR (Criminal) 868 for the purpose is also relevant. Paragraph 8 thereof is extracted below :

"8. Even in respect of administrative orders Lord Denning, M.R. In Breen Amalgamated Engg. Union observed :

"The giving of reasons is one of the fundamentals of good administration."

In Alexander Machinery (Dudley) Ltd. v. Crabtree, it was observed :

"Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decisin has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."

In view of the facts and law position as discussed above, it is clear that neither any reason has been mentioned nor any opportunity of hearing has been given to the petitioner. The impugned order is totally non-speaking and has been passed without any application of mind. Accordingly, the present petition is allowed and the impugned order of termination dated 25.01.2011 and the order dated 30.09.2011 passed by the Education Tribunal, Punjab, Chandigarh are hereby quashed and the respondents are directed to reinstate the petitioner.

However, the respondents are at liberty to conduct an enquiry afresh and to re-consider the case of the petitioner within a period of three months from the date of receipt of certified copy of this order.