Sandeep Sathe vs State of M.P. and others

Arun Mishra, J.

Petitioner was appointed as Lower Division Teacher on 15th May, 1990. Services of the Petitioner were terminated on 30th January, 1999 as per order Annexure P/6. He fell ill on 8-12-1998. Petitioner alleges that he telephonically informed the fact and later on in writing also, the fact of his illness was informed to the Institution, however, the Principal sought an explanation by writing letter dated 15-12-1998; the medical certificate was furnished and after recovery from illness, Petitioner joined his duties on 21-12-1998. In January, 1999 the Petitioner again fell ill as he was not completely recovered from the ailment. The Management wanted anyhow to get rid of the Petitioner and accommodate a candidate of their own choice. His services were dispensed with on the ground that he was carrying some other professional activity which resulted in his being absent unauthorisedly time to time from the school. The other allegations were also mentioned about the involvement in private tuition and misbehavior with the students. Stigma was cast to the effect that he was found not a fit person to be retained in the institution as his conduct was affecting obviously smooth functioning of the school. The order stigmatizing the Petitioner was passed without holding any enquiry, therefore, it was illegal, arbitrary. It also cast stigma and is punitive in nature.

The Respondents in their return supported the order and the stand taken is that no enquiry was necessary in view of the conduct of the Petitioner of which he was given warnings from time to time.

It is settled law that when stigma is cast on an employee, he should be afforded an opportunity of hearing even if he is an employee of the institutions which are not receiving grant-in-aid. Principle of master and servant, and master''s choice to remove the servant is not applicable particularly when education is a State subject. Rule of "hire and fire" cannot prevail and the institutions are also amenable to writ jurisdiction. In K. Krishnamacharyulu and Ors. v. Shri Venkateswara Hindu College of Engineering and another, AIR 1998 SC 295, the Supreme Court considered the question of the private institutions; teachers'' right of obtaining pay scales at par with the Government employees; the private institutions were not receiving any grant-in-aid. However, considering the fact that the institutions in question are catering to the element of public interest, therefore, they can invoke the writ jurisdiction under Article 226 of the Constitution of India.

It is also settled law that when serious allegations were meted out of stigmatic nature, the departmental enquiry should have been conducted. Order mentions various misconducts. No enquiry was conducted; Petitioner was not given any opportunity to explain the charges. One of the ground was going on leave. Even in the case of leave, enquiry is required to be conducted as held by the Supreme Court in Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr. AIR 2001 SCW 3786 as under:

So far the second question that arises for consideration is whether the Appellants having been appointed on probation they would be deemed to have become regular teachers on expiry of probationary period. We are not inclined to go into that question in view of the fact that even though the Appellants were probationers, their services could not be ceased to have effect either by non-approval by the Head of the Department or by their remaining absent from their respective duties. There is no provision either in the Act or the Rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the rules of principles of natural justice. In the present case, we do not find any provision either in the Act or Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or Rules, the alleged deemed termination of services of the Appellants without giving any opportunity to the Appellants was unlawful and deserves to be set aside.

Even where there is provision regarding automatic termination of service in the event of over-staying the leave, enquiry is mandatory into the causes of over-staying so as to find out whether it was deliberate or there was just and sufficient cause for such over-staying. In Scooters India Ltd. v. M. Mohammad Yaqub and another, (2001) 1 SCC 61, the Supreme Court held as under:

On the other hand Mr. Chinnaswamy has relied upon the case of Uptron India Ltd. v. Shammi Bha. In this case it was held that such a Standing order conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It was held that the discretion had to be based on an objective consideration of all circumstances and material which may be available on record. It was held that questions which would naturally arise are what circumstances compelled the employee to proceed on leave, why he overstayed leave, was there any just and reasonable cause for overstaying leave, whether he gave any further application for extension of leave, whether any medical certificate was sent if he had, in the meantime fallen ill. It was held that such questions could only be answered by the management provided it was inherent in the provision that the employee against whom action was proposed to be taken on the basis of such a provision was given an opportunity of hearing. It was held that principles of natural justice had to be read into such a clause and the principles of natural justice had to be complied with. It was held that the employee had to be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. It was held that a Standing Order which provided for automatic termination of service of a permanent employee would be bad if it did not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically.

Therefore, it is clear that there could not be any automatic termination of the Respondent on the basis of Standing Order No. 9.3.12. The principles of natural justice had to be complied with.

In the instant case, not only the charge was that of leave, but various other charges were also levelled and Petitioner has been held guilty without conducting a proper enquiry in accordance with the rules of principle of natural justice. Without properly charge-sheeting him, the order of his termination is held to be void-ab-initio. Service in such circumstances can be terminated only after holding a departmental enquiry and not otherwise.

Resultantly, the writ petition is allowed. Impugned order of removal Annex. P/6 dated 30-1-1999 is quashed. The Petitioner is directed to be reinstated with 50% back wages. Costs on parties.