High Court of Punjab and HaryanaCWP/240/2015dismissed

Amrinder Singh Tiwana v. State Of Punjab & ORS

2015-05-20Mr. Justice Jitendra Chauhan26 pages

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# #!'#0 + A....the wholesome fabric of mutual trust and confidence and cooperation had been torn to pieces by the boisterous, uncompromising revengeful and haughty of these four teachers Prof. Ms. Kitty Sodhi, Prof. Arunjit Singh Tiwana, Prof. Amrinder Singh Tiwana and Prof. Rippanjit Singh who are bent upon turning the college into arena to to settle a score on one another. They are even inciting groupism among the teaching and nonteaching staff, which is damaging for the institutionB ! *!# * * ! # 33 *(3 **( (!(!#3 !% ! *! 33 %!$ * #'30!% $ #%!

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*! !#+, i) The order has been passed in violation of the provisions of 1974 Act which requires that no employee shall be dismissed or removed or reduced in rank except after conducting 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. In the case of the petitioner no enquiry has been conducted nor any opportunity of hearing was granted before terminating the services.

ii) The petitioner was not associated with the inquiry committee.

iii) There are no adverse findings against the petitioner by the Committee. In fact the first Committee found that the allegations have not been proved and the second Committee recorded that the allegations were lodged on flimsy grounds.

iv) As per the note dated 10.12.2014 on behalf of the HRD Committee (Annexure R3/7) it was recommended that the teachers be relieved of their duties for a specified period and meanwhile a proper review regarding the issue should be taken. However, the petitioners have been relieved by

stating that their services are no longer required. v) The petitioners are being replaced by ad hoc teachers which is contrary to the settled law that an ad hoc employee cannot be replaced by another adhoc employee. C!!$#3%!#(! #!45 # $ ( !# ((! ! !*'##!!, (!# #* !=!% ;@5* #(*%*336# # (!0#!# !%* !4/59 33! ((36 ! !!%6(3!6

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* (3!6 #% $# (!*$# %! ###3 !03(!0%!* !#4 !9 "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. 4.

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 alongwith 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 caes may be , or refuse to give approval if the proposal is found to be malafide or by the way of victimisation 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 observed 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 malafide or by way of victimization or not warranted by the facts and circumstances of the case.

Section 3,4 and 5 not 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;"

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/0$%12 "A teacher affects eternity. He can never tell where his

influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers.

2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. 3.

The case at hand has some unfortunate shades as it involves alleged misconduct of a teacher and the purported desire of the management of an educational institution to keep him out of the institution to maintain the purity in educational sphere and serene atmosphere of the institution. The whole unsavoury episode started on 2112 1995 when respondent N.I. Khan allegedly abused and attempted to assault a lady Principal of the appellant's educational institution in front of the school. That led to lodging of a first information report. Khan was placed under suspension on the same day. Subsistence allowance was sanctioned on 29121995. A few days thereafter, in a second incident, Khan allegedly picked up a quarrel again and threatened to burn the school down. Again a complaint was lodged at the police station. Thereafter, began a legal battle involving not only the factual controversies, but also assertion of rights guaranteed and protected under Article 30(1) of the Constitution of India and the legal battle has continued unabated and reached this Court in these appeals..."

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#!'#0+ "Education is the systematic instruction, schooling or training given to the young persons in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. The excellence of instruction provided by an educational institution mainly depends directly on the excellence of the teaching staff. Therefore, unless they themselves possess a good academic record/minimum qualifications prescribed as an eligibility, it is beyond imagination of anyone that standard of education can be maintained/enhanced.

18. ? we have to be very strict in maintaining high academic standards and maintaining academic discipline and academic rigour if our country is to progress. * * * The Court in Meera Massey further observed as under: (SCC p. 104, para 24) "24. University imparts education which lays foundation of wisdom. Future hopes and aspiration of the country depends on this education, hence proper and disciplined functioning of the educational institutions should be the hallmark. If the laws and principles are eroded by such institutions it not only pollutes its functioning, deteriorating its standard but also exhibits to its own students the wrong channel adopted. If that be so, how could such institutions produce good citizens? It is the educational institutions which are the future hope of this country. They lay the seed for the foundation of morality, ethics and discipline. If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed."

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/0$% 1 One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full

scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. The three factors are distinguishable in the following passage in Samsher Singh v. State of Punjab where it was said: (SCC p. 851, para 64) "64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.

In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation.

If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection." (emphasis supplied) Thus in Benjamin case complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice.

termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.

In State of U.P. v. Kaushal Kishore Shukla the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor's complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.

32.

We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A chargesheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here."

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$* !3# $ !#$# '*#(36/ !$ *$ !%<*##0*!# # %!* # $(!% $* !3'$3# #%! ((3#!% * # # * !'6 /'6!'#0 #$+, It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff.

The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the Government or the university are clearly loaded against the management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the management in the event of some punishment being imposed, it was submitted that there should be no role for the Government or the university to play in relation to the imposition of any penalty on the employee.

An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this

principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved.

Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress.

In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs.

hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service." !#:$ ! %!#* !#/ ;@5* # ' * ! @ # ' # (!

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! GIANENDER KUMAR 2015.05.21 19:33 I attest to the accuracy and integrity of this document