, INDER PAL GUPTA v. THE MANAGING COMMITTEE, MODEL INTER COLLEGE THORA

• A B May 3, 1984 •

c Termination of the ser11ices of a ·P.ri'nclpal 011 probarlon-P.racedure .Prescribed under section 16 G artd _K..egulations 35 to 38 being 1he saffie as provided bY Article 311 (~) of the Constit.ttion of ft1dl11, the princ!ples which govern .such ca yes of terminatio 1 should be the sami a~ fiigse' · u11der!ying Article 3JJ t2) of-the Con1·titurion-lnterpfeiation of Sttiture~-Ab~ence of ·enquiry coniemplated under Regulations 35 ii; 36 before the termination of the pro.vi- D sion casting a stigma is ilteg:il.

The appellant was app_ointed. on probatiOn as the' Principal of the Model Inter College, Th,)ra on August, 28,_ 1967. His p~riod of proba~ "tion was extended bY one yc1r 'ind .thereafter by a letter d.;iied June_ 3p, 1969 addressed to him with a copy o.f a _resolution dated 27th. April, 1969 'E passed by the Managi'lg Committee wherein various allegations were made regarding his conduct, his services were termin1ted by the respondent •. Aggrieved by the said orders of termi1r1tlon of his services, the appellant • ·filed a \Wit'petiti'n NS. 4Si3 of l9iO on the file of the High Court of Allahabad. 1he said writ p3tition was allowed on January 23, 1.973 and the order of (errnina_tion was quas,hed. However; the special Appeal No. 31of1973 filed by Resp.oident was ac9epted and allC>wed by the Division F Bench; Hence the appeal by special leave of tQe Court.

·Allowing tbei appe3l, \he Court,

l. J>•. GtiPTA v. INTER. C(JLLEGB, THOR.A (Venkataramiah, J.) .153 r>rovisions or Section '16 G of the Act and Regulalions 35 to 3& vit.iates the termination order. [747F-G; 759G; 760E]

Parshotam Lal Dhingra v. Union of India [1958) S •.C.R. 828; Shamsher · .S/ngh.~nd Anr.·v. Stateaf Punjab, [1975] l S.C.R. 814; Anoop.faiswalv. Government of India and Anr. [ 1984] I <icalc.105; referred to. B

2. If the order of terminatiori carried a stigma it has to~ fall to the groUnd unless it is prec_eded by 2,11 enquiry .as contemplated by law. A. re~ding of the letter of termination of the service and the resolution which ·f~ims part of-that letter clearly shows~ that they ·bear a mark of disgrace $d infamy and the appellant is visited with evil consequences. The order of' the Division Bench is tberefore unsustainable. [762D-E] .G [The Cou1t declared. that the appellant continues to be in the service of the College. with eotitl ement to all consequential ben.efitS irlcludiog the salary and allowances as if there was no break in his service.] [762G] .

CIVIL APPELLATE JURISDICTION :. Civil. Appeal No. 571 of D 1975'

Appeal by Special leave from the judgment and Order dated the 14th March, 1973. of the Allahabad High Court in Special · Appeal No. :'I of 1973.

R.K. Garg and D.K. Garg for the Appellant.

S. Rangaran and N.N. Sharma for Respondent.

S. Markandeya for Respondent: .F Gopa! Subramaniam and Mrs. Shobha Dikshit for Respondent.

The Jndgment of the Court was delivered by

VENKA'I;ARAM!AH, J. The appellant was appointed on proba- tion as the Principal of the Model Inter College, Thora, District. Bulandshahr (hereinafter refer.red t<:> as 'the College;) on August 28, G 1967 in'accorda.nce with the procedure prescribed by the Intermediate Education Act, 1921 (U.P. Act No. II of 1921) (herernafter referred to as '(he Act') and the Regulations made thereunder. The period of probation prescribed was one year. Shortly before the expiry of the p;rlod · of probation on August 25, 1968, ihe. Managing H Committee of the College passed a resolutir>n extending the period o(probation of the appellant by one year. Thereafter on April 27,

154 sUPREME couttt REPOltTS (1984] 3 S.C.R.

A. 1969, the Mana3ifig· Committee met to consider the question of confirmation of the appellant in.the post of the principal. As the Managing Committee . was not satisfied with .the services of the appellant, it resolved i.o terminate his services and after obtaining the approval of the District Inspector of Schools wrote a letter dated June 30, 1969 to.the appellant communicating its decision to tcrmi; B · nate the services of the appellant enclosing therewith a copy of its resolution ·dated April 27, 1969.- The letter dated June 30, 1969 reads thus :

"From To

The Manager Shri I.P. Gupta Mqdel Jnter College Chilkana House, Thora (Bulandshahr) Xumaran,

. · Bridge, Saharanpur.

D Ref. No .. Dated the 30th June, 1969 \ Sub: . Termination of your service as Principal.

Dear Sir, • With reference to the above, I have to mention that in "E view of the resolution N.o. 2 of the Managing Committee dated 27.,!.1969 (copy enclosed) and subsequent ~pproval by the D.1.0.S. Bulandshahr you ·are hereby infor~ed that your _sei;vice as Princip~I of this Institution is tenninated with immediate effect. You will however be entitled to F your dm:s in lieu of notice .. Please hand over complete charge to Sri D.D. Gupta, who is being instruct.ed accor- dingly, Without delay.

Please note that you cease to function as Principal of this Institution forthwith: You-are neither authorised to G · operate any account nor will you perform any other act in the capacity of the Principal of this Institution henceforth. Of course the civil suit filed .by Shri S.P. Jain of ·Meeiut · for the recovery of his dues.is your sole.· responsibility . .Please see that the matter is reasonably settled failing which you shall be. liable to any loss caused to the institution in H that respect: While handing over charge please do not for- get to return all papers or documents re la ting to the college, .

i. P. GUPTA '· INTER COLLEGE, THORA (Venkataramiah, J.) 7SS. ·

·or any other college property in your possession.· All A accounts also may kindly be cleared.

Since . despite sever11\ assurai1ces you have failed to return during the complete summer vacation, this ·nitima· ti~n is being conveyed to you at your Sahaninpur .address, B in this staie ofuncertainty under registered cover to ensure safe delivery. Recently you are reported to have been to · B~land'shahr for a few day~. Please come immediately and do the needful in. the matter . •

. Sri D.O. Gupta.is to assume.office of the Principal of· C this institution wiih immediate effect in officiating capacity till further instruction. He may take over .charge from Sri J.P. Gupta when he returns.

Yours faithfully, D s·d/- . Manager Model Inter College, Tohra (Bulandshahr)"

The copy of the resolution of the . Managing Committee sent E alongwith the above letter reads thus. :

t· "Resolution ·passed by the Managing Committee in its meet· iilg held on 27.4.69 terminating the prQbationary period of the • Petitioner. ' . . · . · F · 2. The report of the Manager was read. Sri I .P. Gupta, · who was present in the meeting also heard it. He was asked by the Committee to have his say in respect of -, the report,. At first he refusod t? say anything but when the Col)lmittee requested him to consider it serio· G usly and let ·the Committee have the benefit of his views, he said that he had nothing to say in that respect since he wanted·to quit himself due to circumstances. .. On this the Committee agarn requested him to put some such suggestion in consultation with the manager as may be helpful for. the Committee to arrive at some H ). conclusion. In the absence of any satisfactory sugges·

SUPREME.COURT REPORTS !1984j 3 s.c.Ii: A tion the Committee took the d'cision. At this stage the . Principal retired out of courtesy.

On the basis of the Service Book of the Principal, the mamger told tha.t last year his confirmation was B due on 28.8. 1968 but in the meeting of the Committee held on 25.8 68 in wbi~h the Principal was also present, the report of the Manager, dated 4.7.. 68 was put as desired by the President Reso1ution 3 date.I 25.8.68 • under the head '.'Consideration qn confi.rmatioh of . Shri LP. Gupta; Principal" incorporates the decision c of the Commitlee as "According to the Manager's report the period of probation of the Principal extende\f by one year." The proceedings book contains signa- tures of Sri J.P. Gupta for rceiying a copy of the said resolution. At the end of. the prooeedings the minute book contains signaturei of Sri I.P. Gupta alongwit]l D other members or' the Committee present.

The facts contained in the report of the Manager being serious and not in the· interest~ of the institution, this· Committee unanimously resolves th1t the period of probation of Sri I.P. Gupta, Principal, be terminated E· without waiting for ihe period to end and the manager is. empowered to take' necessary steps in this respect. Any thing done by him in this respect 'hall be considered . to have ~een done by this Committee. The manager is also authorised to hand over charge to Sri D.D., Gupta when necessary. F • Sri LP. Gupta. also came in 'With a Vote of thanks to tile Chair the ri1eeting ended.''

The English trnnslation of the relevent part of the report of the Managor on the basis of which the above ~esolution.was passed which is im:orporated in the counter affidavit filed on beh'.1lf of the . Managing committee reads thus : . " .. "It will . be evide.nt from the above that the Principal's stay will not be in the interest of the institution. It is also evident that the seriousness. of the lapses is enough to justify dismissal but no educ~tional institution should take all

1. P, GUPTA v. H-ITER COLLEGB, Tl{ORA (Venkataramiah,f) 757 this botheration. As such my suggostion is that our purpose will be served by termination of his ser¥ices, Why, then, we .should enter into any both,ration. For this, i.e. for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly any delay • ,in this matter may also be harmful to our interests. B Accordingly I suggest that instead of taking any serious action, the period · of probation of Sri Inder Pal Gupta be , terminated without waiting for th!! period to end."

·Aggrieved· by-the order of termination of his services referr~d c to above, the appellant filed a P'titi.on u_;1d~r artile 226 of the Consti- tuti0n in Writ Petitiol) No. 4823 of 197.0 on the file of the High Court · of Allahaba,J chalbngii;g its correctness and pr-Lying. for appropriate reliefs. The learned Sin~le Judge who heard the writ petition allowed it by his order dated January 2, 1973 by quashing the order of terminati.on: The Managing· Committee of the College D preferred an appeal. against that decision to the Division Bench of High Court in Special Appeal No. 31of1973. The Division Bench allowed the appeal and dismissed the Writ 'retition filed by the appellant by its order dated .March 14, 1973. This appeal is filed by the. appellant against the Judgment of the Division Bench after obtaining the special' leave of this Court under Article 136 . of the Constitution.

The College is an institution recognised under the Act and is gov~med by the provisions of the Act. Section 16-G of the Act provides that every person employed in a recognised i.nstitution · F shall ·be'governed by such conditions of service as may be prescribed . by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the· procedure for the imposition of punishment. The Board ) of High School and Intermediate Education is authorised to make Regulations in respect of all matters which by the Act are to be· G provided for by Regulations with the previous sanction of the State Government. Under the Regulations so made uncler the Act, the period of probation prescribed is one. year whether a person is a direct recruit or has been promoted from'a lower grade in service of the institution to a higher grade The period of probation of a H Principal or Head Master may be extended by a maximum period of twelve months. At least six weeks before the date of which t4e ·

1S8 ·SUPREME COURT REPORTS tI984j 3 S.C.R. , 1 A confirmation ·of a Principal or a Head Master ·is· due, the· Manager . of the institution is required to prepare his confirmation papers and · place them before the Committee of Managem~nt and the decision of the Committee of Management in each case is required to be re.corded in the form of a resolution. Regulation 10 provides that a person placed on probation shall be. confirmed if he fulijls the· B requirements of regulation 9, bas worked with dili'genee and other- wise proved bim~elf fit for the post for wh'ch.be was recru:ted and his integrity is certified. Whenever the punishment of dismissal, removal or discharge, reduction in rank or diminution in emoluc ments is imposed, prior approval of the Inspector should. have ·10 be obtained. Regulations 35 to 38 of the Regulations made under the c .Act which prescribe tbe procedure for termination of the serv'ces of an employee b~ way of punishment read. thus :

· "35. On receipt of'a. complaint. or an adverse report of facts of a serious nature of the Committee may in the D · ~ases of ieacbers appoint the Headmaster or Principal or Manager as the 'mquiry officer (or the Manager may himself set up the enquiry if such power bas been delegated ·to )lim by the Comroitlee under rules) and iu tbe·case of the Head- . · master or Principal, a small sub-committee, with instructions to submi.t the report as expeditiously as possible. E 36, · (1) The grounds on· which it is propose.ct to take action shall be reduced in the form of a definite charge m charges which shall be communicated to the employee charged . and which shall be so clear and precise as to gi.ve F. . sufficient. indication to the charged employee. of the facis and circumstances against him. He shall be required within three weeks of the receipt of the charge.-sheet to put in a written statement of his defence and to state whether be • desired 'to be heared . in person. If he or ihe inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heared as.the inquiring authority ,considers· necessary. ·The person charged shall· he entitled to cross-examine the witness, to give evidence in person, and to have such witnesses called as he may wish; · · provided that the inquiring authority conducting the enquiry mav, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contai11 a sufficient

• ). P. GUPTA v. INTEJ\ COLLEGE, THORA (Venkataramiah, J.) 75'l

record of the. evidence and statement of the findings and the grounds thereqf. The inquiring authority conducting the enquiry may also, separately from these. proceedings, make his own recommendation · regarding the punishment to be imposed on the employee.

(2) clause (I) shall not apply where the person concern- . ed has absconded, or where it is for other reasons. impracti- cable to communicate with him.

(3) .All or any of tl,J.e provisions of clause (I) may for sufficient·reasons to be recorded in writing be.waived. where there is difficulty in observing exactly the requirements c ·thereof and those· requirements ·can in•the opinion of the inquiring authority be waived without injustice to the person charged.

37Copy pinpoint37. Soon after the report of the proceedings and recom- mendation from the inquiring authority are received, .the . Committee of Management shall meet to consider tl;>e report of the p'roceedings and recommendation made and take., · decision on the case. The employee shall, however, be · allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may E • be put to him by any member present at the meeting, The Committee shall then send a complete report ·together with all connected papers to the Inspector 11r Regional Inspectress as the case may be, for approval of action propos_ed by it.

38Copy pinpoint38. If it is felt at any stage that the matter can be 'F more properly dealt with by action to terminate service with notice, this may be qone with the approval of the Inspector· or Regional Inspectfess, _as the case may be."

It is seen from the foregoing that that the above provmons relating to the procedure to be followed before imposing the punish- G ment of dismissal or removal from service ate virtually the same as provided by Article 311 (2) of the Constitution and the principles which should govern this case should, t~erefore, be the same as those underlying Article 311 (2). The decisions in Parshotam !-al Dhingra v. Union of Indla,( 1) Shamsher Singh & Anr. v. State of ff (1) [19S8} S. C. R• 8~8;

• '160 SUPREME COURT REPORTS [1984] 3 .s.c.R.

A Punjab( 1) and Anoop Jaiswalv. Government of India & Anr(~) explain the true legal position governing the terminaiion of the services of a probationer. In Parshotam Lal Dhingra's case (supra), this Court observed at prge 862 thus :

"In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination. is not a punis)1ment and carries with .. it no evil consequences and . \ so Art. 311 is not aitrac- ted. But even if the Government has, by contract or under the rules, the right to terminate the employment without c going through the procedurli prescribed for inflicting the punisbment of dismissal or removal or reduction in rank, the Government• may, nevertheless,· choose to puuish the servant and if.the termination of service is sought to be founded cm misconduct, negligence, inefficiency or other disqualification, . \hen it is a punishll)ent and the require- D ments of Art. 311 must be complied with."

.. The above rule applies to probationers too .

.. Admittedly no enquiry was held in this ~ase 'as· provided in Regulations 35 and 36 of the Regulations made under the Act. E Apparently iti. the light of the principles enunciated in Parshotam Lal Dhingra's case (supra) the learne.d Single Judge who decided the Writ Petition at the first instance itl the High Court observed in ·the course of his order 'thus :

"In this petiti.on nnder Article 226 of the Constitution F the petitioner questio'ls the validity of the so-called termina- tion of his service by the resolution passed by the Managing Committee on 27.4.1969. His case~ that-the termination ,. in the circumstances in which it has been made. by the Managing Committee 'amounts to punishment· of removal or dismissal from service and, the.punishment having been .. G imposed upon him without following" the pro~edure · prescri- bed rtnder sec. 16-G of the Intermediate Education Act and the regulations framed thereunder becomes vitiated. Indeed it has not been denied or controverted in the counter affidavit that the action against the petitbner was taken by • ·(I) [1975] l S. C.R. 814. (2) [1984-] I.SCALE !OS,

{ P. GUPTA v. INTER C:OLLEGE, THORA (Venkaiaramiah, J.) . 761

the Managing Committeo on serious charges of 1nismauage- A ment brought against the Principal by the Manager. But it was submitted py the learned counsel for the .opposite parties that a reasonable opportunity was affordee to the petitioner by the Managing Committee when he was faced with the charge~ and asked to. explain qn 27.4.69, at the meeting of the Managing C)mmittee. But the learned B counsel for opposite parties when faced with the relevant regulations and Sec. 16-G of the Intermediate Education · 'Act found it difficult to. justify t!tat what was done at the meeting of the Managing Committee on 27.4.1969 complies with those provisions. · The attack made by the peti.tioIJer based on -non-compliance of the relevant regulamins and c the provisions· of Sec. 16-G of the Act on the validity of the action taken, appear< to be sound and sustainable: No -matter the ;ietitioner was not a permanent Principal yet he was entitl~d to a regular show cause notice against the charges brought and an opprtunity to be heard as requir- D ed by the regulations. The impugned o;der of termination ihus was a mere camouflage and cannot be regarded in the circumstances as having been passed by the Managing COmn;tittee in the normal course. The District Inspector of Schools was in error in approving the termin~tio.n in tho.se circumstances.''

But the Division Bench of the High Court took a contrary view. The first error in the judgment of the Division Bench lies in its observation :

F 'Firstly, the order of termination is innocuous. It does not refer to any allegations or. even to the report of the Manager.'

It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the G Man~gi~g Committee dated April 27, 1969 1s made a part of it by treatmg 1t as an enclosure to that letter. '.fhe resolution · actually begins with a. reforence ·to the report of the Manager, and ·slates . that the facts contained in the report were 'serious' and 'not in the j interests. of the institution'. · It further refers to the fact that the · appelllmi9 was asked· to give his explanation to the alle~ations J11adq H ip the said report. That re~ort state4 : · ;~

762 SUPREME COURT REPORTS [1984] 3 s.C.R. .{ A "It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution· should take that botheration." . · The above report was the real foundation on which the deci· sion of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an qrder imposing the penalty of termination of service ·on the ground of · mis~onduct. · Secondly, the· Division Bench has tried to justify the . action of the Management by observing that since the management · !iad to ·secure the ·approval of the District Inspector to its action, it was.neoessary for it to give its assessment of the work of the appel~ c laiit as Pfltcipal and, therefore, 'in the context of the statutory requirements, it cannot be said that merely bec.ause the Manager's report or the resolution of the Managing Committee -refers ·to the various aspects of the assessment of the performanc~ of the Principal in terms unfavourable to him, it wpuld in law, amount to casting a stigma upon the Principal'. It is difficult to en graft an exception of the above type to the well-settled r,ule that if the order of termination carries a· stigma, it has to fall to the ground unless it is proeeded by an enquiry as contemplated by law. A reading of the letter of termination of the service and the. resolution which forms.• part of · that letter clearly shows that they bear a mark .of disgrace or. infamy and that the appell~nt is visited with.evil consequences 'as explained . in Parshotam Lal Dhingra's case (supra). The. Division Bench, ·,.;;· ther~(ore, ·erred in holding that on 'the facts and in the circumstances of the case, the order of termination was. a11 innocuous one and did not earry any stigma. .The order of the Division Bench is, our opinion, an unsustainable one and is liable to the .set aside. F Jn the result, we allow this appeal, set aside the. judgment. of the Division Bench of the High Court and restore the judgment of the learned Single. Judge. We hereby declare that the appellant continues· to be' in the se.rvice of the College. He is entitled to all the benefits flowi11g from this declaration including .ihe sabry and G·. .allowances as if there was no break in his service. The: respondent College shall also pay the costs of this appeal to the appellant.

s.R,. Appeal allowed.