Raveendran vs Sree Narayana College

K.S. Radhakrishnan, J.—The question that has come up for consideration in all these cases is whether the order of the management dated 12.7.2000 terminating the probation and reverting the Principal Dr. N. Raveendran and Selection Grade Lecturer is legal or not. The University Appellate Tribunal by its order dated 6.4.2001 set aside the order of reversion and directed the Management to appoint Dr. N. Raveendran and Principal forthwith. management took up the stand that the termination and reversion was effected while the Principal was on probation. Dr. Raveendran took refuge under the deeming provision of Section 59(7) of the Calicut University Act and submitted that the termination of probation and reversion is bad in law.

O.P. No. 14601 of 2001 was filed by the Management challenging the order dated 6.4.2001 passed by the Calicut University Appellate Tribunal in Appeal No. 8 of 2000. O.P. No. 13641 of 2001 was filed by Dr. N. Raveendran seeking a direction to the Management to appoint him as Principal of S.N. College, Kollam or Principal of any other college in the Kerala University in implementation of the order of the University Appellate Tribunal. On a petition filed by Dr. N. Raveendran, C.M.P. No. 21745 of 2001, learned single Judge passed an order directing the Management to post him as Principal as directed by the University Appellate Tribunal, subject to the availability of vacancy. Aggrieved by the said order Dr. N. Raveendran has filed W.A. No. 1633 of 2001 and Management filed W.A. No. 1598 of 2001.

When the appeals came up for hearing, we posted the Original Petitions also for disposal. We heard counsel for the Management Sri. A.N. Rajan Babu and Sri. R. Krishnaraj, counsel for Dr. N. Raveendran.

Dr. N. Raveendran was appointed as Principal after undergoing due process of selection by Order No. 2/SNT/1971 dated 5.10.1998. He was posted as Principal of S.N. College at Chelanoor where he joined duty on 6.10.1998. The selection and appointment of Dr. Raveendran was challenged by two other applicants by filing appeals before the University Appellate Tribunal as appeal numbers 9/98 and 11/98. Management defended the selection. Ultimately those appeals were dismissed by the Tribunal.

While working as Principal, Dr. Raveendran was served wit a show cause notice dated 17.1.2000 stating that his service as Principal during the period of probation was not satisfactory and hence he was not found suitable for continuance as Principal and it was provisionally decided to terminate his probation and to revert him to the post of Selection Grade Lecturer in History. Management gave 15 days time to submit his objections, if any. Dr. Raveendran filed detailed objection on 3.2.2000. He refuted the various allegations levelled against him and contended if those allegations are allowed to stand the same would cast a stigma on him. To substantiate his case, Dr. Raveendran produced Exts. A1 to A6 and A11 to A13 documents before the Tribunal. It was pointed out by him that the allegations levelled against him were false and baseless and were made without conducting proper enquiry and would amount to punishment. According to Dr. Raveendran, he joined as Principal as per order dated 5.10.1998 and that he had completed probation on 5.10.1999. According to him, u/s 59(7) of the Calicut University Act he should be deemed to have been confirmed as Principal on 5.10.1999. According to him, even before the issue of show cause notice, he had completed his probation and he should be deemed to have been confirmed in the post of Principal.

The Tribunal after considering the entire aspects of the matter accepted the contention of the Principal that he had completed the period of probation before the issuance of the show cause notice and that he should be deemed to have been confirmed in the post of Principal. The Tribunal took the view that after the completion of the probation, the Management cannot terminate the probation and revert the Principal without initiating any disciplinary action and conducting any enquiry. In the light of the aforementioned facts we may examine the issue raised in the case.

Before we examine the scope of Section 59 of the Calicut University Act, let us first examine the reasons stated in the show cause notice for termination of service of Principal and reverting him as Selection Grade Lecturer. Show cause notice is dated 5.10.1998. We are not narrating the show cause notice in its entirety, however, we may highlight some of the serious allegations raised against the Principal which are as follows:

i) That you, Dr. Raveendran while holding the post of Principal on probation S.N.G. College, Chelannur remained absent unauthorisedly without taking and without applying for leave from the college and marked attendance on the following dates.

ii) That you, left the Head Quarters of the College without taking prior permission from the Manager, Sree Narayana Colleges on the following dates.

iii) That you left the Head Quarters of the College, Chelannur without handing over charge of the Principal to anybody or making proper arrangement for the conduct of the duties of the Principal on the following dates.

iv) That you left station before getting the leave sanctioned on the following dates.

v) That you did not make available your attendance register for verification on 27th April and 5th July 1999 when the Asst. Secretary, Sree Narayana Trusts visited your college.

vi) That you have unauthorisedly stayed in the college office.

vii) That you used the office telephone number 260495 of the college for your personal purpose, so that the college has sustained a loss of Rs. 28,656/- during the period from 16.10.1998 to 15.4.1999.

viii) That you did not maintain good relations with you fellow teachers. You are in the habit of teasing fellow teachers using filthy and obscene language.

ix) That as the PTA President, you are controlling the PTA funds. You have withdrawn rupees 1,60,870/- from the said account and misappropriated the amount during 1998-99. There was no committee decisions for the withdrawal and no corresponding vouchers were maintained.

x) You have violated admission rule prescribed by the Calicut University/Government of Kerala. You have unauthorisedly collected excess registration fee from the students at the rate of Rs. 20/- per head for admission during 1999-2000 against the prescribed rate of Rs. 10/- per head.

xi) That you have unauthorisedly collected donations from public without knowledge and permission of management. On 2.1.1999 you have issued a printed appeal to the public for donation and collected funds for which proper accounts are not maintained as on 6.7.1999.

xii) That you flirted with girl students of the college. You frequently visited the girls sports hostel of the SNG College, Chelannur during rights and flirted with inmates.

xiii) That you behaved incourtiously and indecently to the Deputy Director of Collegiate Education, Kozhikode when you were contacted in connection with official duty.

xiv) That you took two girl students of your college of 1st M.Com. class to Mookambika and stayed with them on 18.12.1999 over night and paid Rs. 9,000/- to the above students drawn unauthorisedly from the PTA funds as report of the Convenor, RDC Kozhikode.

This action on you part has invited protests from the students at large and the teachers, non-teaching staff and S.N. Trusts RDC, Kozhikode and brought shame to the college and S.N. Trusts. The RDC, the teachers and the non-teaching staff are demanded the Manager Sree Narayana College to withdraw you from the college and take suitable action against you. Students are on the warpath against you and you are not attending college now. Complaints are receiving from the Staff Association, non-teaching staff Association and student organisation of the S.N. College, Chelannur.

Above are the main allegations raised against the Principal. Show cause notice further states as follows:

"While you were serving as Selection Grade Lecturer in History at the S.N. College, Kollam, you were promoted as Principal on selection and posted at the S.N.G. College, Chelannur. You joined the service of S.N.G. College, as Principal on 6.10.1998. u/s 59 of the Calicut University Act a teacher of the Private College shall be on probation for a period of one year within a period of two years of service. Thus you are still on probation. From the defects and defaults in you work and conduct mentioned above, from para 1 to 14, the education agency, The Sree Narayana Trusts is of opinion that you service as Principal during you period of probation is not satisfactory and hence you are not suitable for continuance as Principal and it provisionally decided to terminate you probation and to revert you to the post of Section Grade Lecturer in History.

You are allowed 15 days time from the date of receipt of this communication to show cause if any why you probation as Principal should not be terminated and you should not be reverted as Selection Grade Lecturer."

The Principal has given detailed explanation to the alleged defects and defaults pointed out in his work and conduct. he denied that he had unauthorisedly absented from duty. With regard to allegation that he had used telephone No. 260495 it was stated that he used the telephone for this personal purpose but effected payment for the personal calls he made. He refuted the charge that he had collected donations from public without the knowledge and permission of the Management. The allegation that he took two girl student of Ist M.Com. class to Mookambika and paid Rs. 9,000/- to them was denied. It is stated that the allegations are only to tarnish the image and his position as Principal. It was stated that he had gone to mookambika on 18.12.1999, but with his sister and family. Further it was stated when the above allegation was made against him, he filed a complaint before police and police conducted enquiry. The concerned students and parents categorically denied the allegation. All those allegations have been cooked up and raised with malafide intention and to tarnish his image and lower his reputation. We are not narrating the reply given by the Principal in detail. On going through the show cause notice as well as the documents and reply given by the Principal, the defect and defaults pointed out in his work and conduct are of very grave nature. We may examine whether the termination of his service as Principal and reverting him to the post of Selection Grade Lecturer is legally correct or not. Before that we will examine some of the principles laid down by the Apex Court in this regard.

The Apex Court in AIR 2000 1706 (SC) made exhaustive survey of the previous decisions and considered the validity of certain provisions relating to termination order passed during the period of probation. The Apex Court in The State of Bihar Vs. Gopi Kishore Prasad, , The State of Orissa and Another Vs. Ram Narayan Das, , Madan Gopal Vs. State of Punjab, , Jagdish Mitter Vs. The Union of India (UOI), and Champaklal Chimanlal Shah Vs. The Union of India (UOI), held that if the services of a probationer are terminated on the basis of an enquiry into the allegations of misconduct and inefficiency, the order would be punitive. The Apex Court followed the dictum laid down in the above decision in State of Punjab and Another Vs. Shri Sukh Raj Bahadur, . These principles were reiterated in Union of India v. R.S. Dhaba . The Apex Court, however, in State of U.P. and Others Vs. Sughar Singh, took the view that the form of the order was not conclusive of its true nature and the Court has to examine the entirety of circumstances preceding or attendant on the order of termination. Reliance was placed on the earlier decisions of the Apex Court in Shri Madhav Laxman Vaikunthe Vs. The State of Mysore, and The State of Bombay Vs. F.A. Abraham, . The Court took the view that if the order visits the employee with penal consequence, the order would be punitive. The Apex Court (Seven Judges Bench) in Samsher Singh Vs. State of Punjab and Another, propounded the theory of "motive" and "foundation" and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case. The form of the order was not conclusive and an innocuously-worded order terminating the services of a temporary employee or a probationer may, in the fact of the case be found to have been passed on account of serious and grave misconduct. In Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, the Apex Court laid down the principle that a Court or Tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not and in this regard, the form of the order will not be decisive and the court can lift the veil to see the true nature of the order. The court observed that the substance, not the semblance, governs the decision. The Apex Court further observed that what was decisive was the plain reason for the discharge and not the strategy of a non-inquiry. If the basis was not the misconduct, the order could be saved. The mere fact that after being satisfied of the guilt the Government abandoned the inquiry and proceeded to terminate the services by a simple order, it would not be relevant factor in considering the true nature of the order. When there was no nexus between the misconduct and the termination of service the conclusion would be dismissal even if full benefits, as on simple termination are given and non-injurious terminology is used.

The Apex Court in Nepal Singh Vs. State of U.P. and Others, held that where the services of a temporary Government servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the State, or for the matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed by the Apex Court that the court will view with great disfavour any attempt to circumvent the requirement of Art. 311(2). The Apex Court in Anoop Jaiswal Vs. Government of India and Another, held that on a consideration of the entire record that the real foundation for the order of discharge of the appellant probationer was the alleged act of misconduct. It was held that the said order was punitive in nature. The Apex Court after referring to the above decisions, in Chandra Prakash Shahi''s case while dealing with the provisions of U.P. Temporary Government Servants (Termination of Service) Rules 1975 took the view that the order is that case was of punitive in character and founded on allegations of misconduct.

We may reiterate that the Apex Court in Samsher Singh Vs. State of Punjab and Another, has taken the view that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of the case. The form of the order was not conclusive and an innocuously-worded order, terminating the services of a temporary employee or a probationer may be founded to have been passed on account of serious and grave misconduct.

On going through the show cause notice as well as the explanation submitted by the Principal, we are of the view that the order of termination in punitive. We may point out that the Principal is a member of the college. In the show cause notice serious allegations have been raised against him. It was alleged that he had withdrawn Rs. 1,60,870/- from the P.T.A. fund and misappropriated the same during 1998-99. Misappropriation of P.T.A. fund is a serious allegation of misconduct against the Principal. It was also alleged that he had unauthorisedly collected excess registration fee from the students. Further it was also alleged that he had collected donations from public without the knowledge and permission of the Management. Allegation was also raised that he flirted wit girl students of the college and had frequently visited the girls sports hostel of the S.N.G. College. There were further allegations that he behaved incourtiously and indecently to the Deputy Director of Collegiate Education and that he had taken two girl students of his college to mookambika and stayed with them on 18.12.1999 overnight and paid Rs. 9,000/- to the above students drawn unauthorisedly from the P.T.A. fund.

We are of the view, aforementioned allegations are of serious nature which has the effect of tarnishing the image of Principal of a college. It will cast a stigma on him in future selection to the post of Principal and other posts, which will lower his reputation in the eye of public and visit the Principal with penal consequences. We cannot brush aside those allegations as innocuously worded or be termed as simple order of termination of a probationer. We are therefore of the view that the termination of the Principal from the post as well as reversion without conducting any enquiry is punitive in nature and has to be set aside. We therefore, set aside the order of termination and reversion dated 12.7.2000.

We may point out that the Tribunal has found that the order dated 12.7.2000 was passed by the Management after the Principal was confirmed in the post. On a reading of Section 5997) of the Calicut University Act, the Tribunal took the view that the Principal had completed the probation on 5.10.1999. According to the Tribunal, as per Sub-section (7) of Section 59 where the post held by the probationer is substantively vacant and before the expiry of one month from the prescribed period of probation if he is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6) he shall be deemed to have been confirmed in the cost. According to the Tribunal, before the issuance of show cause notice probation of the Principal has been deemed to have been completed. In such circumstance, the order dated 12.7.2000 terminating the probation and reverting the Principal as Selection Grade Lecturer is not proper.

We cannot subscribe to the interpretation given by the Tribunal to Section 59(7) of the Calicut University Act. In this connection we will extract Section 59(1) as well as 59(7) for easy reference.

"59(1) Probation:- (1) Teachers of private colleges shall be on probation for a period of one year within a period of two years.

Provided that in exceptional cases, the period of probation may be extended by a period not exceeding one year, subject to the prior approval of the Syndicate.

Explanation:- Probation undergone by a teacher before the commencement of this Act shall be deemed to be probation for the purposes of this sub-section provided such probation is within a period of two years immediately before such commencement.

59(7). Where the post held by the probationer is substantively vacant and before the expiry of one month from the prescribed period of probation he is not confirmed under Sub-section (5) or is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6), he shall be deemed to have been confirmed in that post".

Sub-section (1) of Section 59 states that teachers of private colleges shall be on probation for a period of one year within a period of two years. Sub-section (5) states that on satisfactory completion of probation the educational agency shall confirm the teacher in the post and if the vacancy is not a substantive vacancy, the teacher shall be allowed to continue in the post for the duration of the vacancy, the teacher shall be allowed to continue in the post for the duration of the vacancy. It is evident from Section 59(5) that the teacher should satisfactorily complete the period of probation. It is for the Management to decide as to whether he has satisfactorily completed the probation. On satisfactory completion of probation, educational agency has to confirm the teacher. Therefore, satisfactory completion of probation as well as confirmation by the educational agency on satisfactory completion of probation are pre-conditions to be satisfied by the teacher as well as by the education agency. Section 59(6) says that if on the expiry of the prescribed period of probation the educational agency decides that the teacher is not suitable for continuance in the post in which he is appointed, it shall discharge him from service or revert him to his original appointment, as the case may be, after giving him a reasonable opportunity of showing cause against the action proposed to be taken in this regard. Section 59(7) states that where the post held by the probationer in substantively vacant and before the expiry of one month from the prescribed period of probation he is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6), he shall be deemed to have been confirmed in that post. On reading Section 59(5) along with Section 59(7), we notice that the statute has prescribed maximum period of probation. Maximum period of probation is two years. The teacher could complete the period of probation within two years and he must satisfactorily complete the probation. The question whether the teacher has satisfactorily completed the period of probation within a period of two years is for the educational agency to decide.

The Apex Court in Dayaram Dayal Vs. State of M.P. and another [OVERRULED], considered the scope of M.P. Judicial Services (Classification, Recruitment and Conditions of Service) Rules, 1955. The issue involved in that case was whether a candidate could be considered on probation when he had been continued in service beyond the maximum period of probation (normal plus extended period) prescribed in the recruitment rules. Rule 24(1) of the abovesaid Rules is as follows:

"Every candidate appointment to the cadre shall undergo training for a period of six months before he is appointed on probation for a period of two years which period may be extended for a further period of not exceeding two years."

The probationers may at the end of the period of their probation be confirmed subject to their fitness for confirmation and to having passed by the their standard, all such department examination as may be prescribed. Rule 24(3) further lays down as follows:

"If during the period of probation he has not passed the prescribed departmental examinations, or has been found otherwise unsuitable for the service, the Governor may, at any time, therefore, dispense with his service".

In that case appellant was appointed as Civil Judge, Class II in Madhya Pradesh Subordinate Judicial Service by order dated 22.10.1985. There were reports about his unsatisfactory performance and therefore the State Government on the recommendation of the High Court, terminated the appellant''s service vide order dated 8.11.1993 by paying one month''s salary in lieu of notice period. Appellant''s contention was that the maximum period of probation prescribed in Rule 24 was four years and therefore, as on 8.11.1993, he could not be treated on probation and therefore he was deemed to have been confirmed. His plea was accepted by the Apex Court.

In Dharam Dayal''s case the Apex Court examined in extenso different types of case where rules prescribe period of probation, maximum period of probation and the power to extend probation. The Apex Court held that in some cases mere continuance in service by the employee beyond the period of probation does not amount to confirmation unless the rule contains a deeming provision while in some other cases it has been held that in certain exceptional situations it is permissible to hold that the services must be deemed to be confirmed. One line of cases has held that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial period of probation.

In G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, it was held that the relevant rule does not provide for automatic confirmation after two years of probation unless the officers have given satisfaction. Similar was the position in the case before another Constitution Bench in State of Uttar Pradesh Vs. Akbar Ali Khan, . In that case the Apex Court held on completion of two years of probation as per rules, the officer continued to be a probationer until an order of confirmation was passed. In Dhanjibhai Ramjibhai Vs. State of Gujarat, it was pointed out that the period of probation fixed under the relevant rules was two years and there was also provision for extension but no maximum was prescribed. The Apex Court took the view that there could be no automatic confirmation as the end o two years. The Apex Court also noted that the other line of cases are those where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend the probation. A question to that effect arose before the Constitution Bench in State of Punjab Vs. Dharam Singh, . The relevant rule provided initially for a one year probation and then for extension thereof subject to a maximum of three years. Petitioner in that case was on probation from 1.10.1957 for one year and continued beyond the extended period of three years (in all four years) and terminated in 1963 without any departmental inquiry. The Constitution Bench after referring to the decision in Sukhbans Singh Vs. State of Punjab, , G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, and State of Uttar Pradesh Vs. Akbar Ali Khan, , distinguished the same as cases where the rules did not provide for a maximum period of probation but tat if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer was negatived by the fixation of a maximum timelimit for the extension of probation and termination after the expiry of four years, that is after the maximum period for which probation could be extended, was held to be invalid.

We may notice in this case Section 5991) states that teachers of private colleges shall be on probation for a period of one year within a period of two years, but for the maximum period of probation is two years. Proviso also says that in exceptional cases, the period of probation may be extended by a period not exceeding one year, subject to the prior approval of Syndicate. We are of the view, deeming provision u/s 59(7) would apply only on completion of maximum period prescribed u/s 59(1). In the instant case Dr. Raveendran was appointed as Principal on 5.10.1998. Mere fact that he had completed one year service on 5.10.1999 would not mean that he was deemed to be confirmed in the post of Principal. That reasoning of the Tribunal cannot be accepted. Management has got the maximum period of two years from the date of entry in service or a further extended period of one year, as the case may be , to declare his probation. IN other words, deeming provision would apply only after the expiry of the maximum period of probation fixed by the Statute. Therefore, the finding of the Tribunal that Dr. Raveendran was deemed to be confirmed in the post of Principal is set aside.

We have however found that the order passed against the Principal is punitive and the same has to be set aside since the order was not preceded with an enquiry. Consequently, there will be a direction to the Management to re-instate Dr. Raveendran to the post of Principal forthwith. However, it is open to the Management to act in accordance with law. The appeals and the Original Petitions are disposed of as above.