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PETITIONER: INDER PAL GUPTA

       Vs.

RESPONDENT: THE MANAGING COMMITTEE, MODEL INTER COLLEGE THORA

DATE OF JUDGMENT03/05/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1984 AIR 1110            1984 SCR  (3) 752  1984 SCC  (3) 384        1984 SCALE  (1)714  CITATOR INFO :  D          1987 SC1422  (13)  F          1987 SC1833  (2)  R          1989 SC 341  (15)

ACT:      Termination  of   the  services   of  a   Principle  on probation-Procedure  prescribed   under  section  16  G  and regulations 35  to 38  being the same as provided by Article 311(2) of  the Constitution  of India,  the principles which govern such cases of termination should be the same as those underlying Article 311(2) of the Constitution-Interpretation of   Statutes-Absence    of   enquiry   contemplated   under Regulations 35  & 36 before the termination of the provision casting a stigma is illegal.

HEADNOTE:      The  appellant   was  appointed  on  probation  as  the Principal of  the Model  Inter College, Thora on August, 28, 1967. His  period of  probation was extended by one year and thereafter by  a letter dated June 30, 1969 addressed to him with a copy of a resolution dated 27th April, 1969 passed by the Managing Committee wherein various allegations were made regarding his  conduct, his  services were terminated by the respondent. Aggrieved  by the  said orders of termination of his services,  the appellant  filed a writ petition No. 4823 of 1970 on the file of the High Court of Allahabad. The said writ petition  was allowed on January 23, 1973 and the order of termination  was quashed. However, the special Appeal No. 31 of  1973 filed  by Respondent was accepted and allowed by the Division Bench. Hence the appeal by special leave of the Court.      Allowing the appeal, the Court, ^      HELD: 1.  Section 16  of the Uttar Pradesh Intermediate Education Act,  (Act II  of 1921) provides that every person employed in  a recognised  institution 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 Regulations  35 to  38 relate to the procedure to

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be followed  before imposing  the punishment of dismissal or removal from  service and  they being  virtually the same as provided  by   Article  311(2)   of  the  Constitution,  the principles which  should govern  this  instant  case  should therefore be  the same  as those  underlying Article 311(2). Admittedly here  no enquiry  was held  as  provided  for  in Regulation 35 and 36. Therefore the non-compliance with the 753 provisions of Section 16 of the Act and Regulations 35 to 38 vitiates the termination order. [747F-G; 759G; 760E]      Parshotam Lal  Dhingra v.  Union of India [1958] S.C.R. 828; Shamsher  Singh and  Anr v.  State of  Punjab. [1975] 1 S.C.R. 814;  Anoop Jaiswal  v. Government  of India and Anr. [1984] 1 Scale 105; referred to.      2. If  the order of termination carried a stigma it has to fall to the ground unless it is preceded 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 and infamy and  the appellant is visited with evil consequences. The order  of the Division Bench is therefore unsustainable. [762D-E].           [The Court  declared that  the appellant continues      to be in the service of the College with entitlement to      all consequential  benefits including  the  salary  and      allowances as  if there  was no  break in his service.]      [762G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 571 of 1975      Appeal by  Special leave  from the  judgment and  Order dated the  14th March,  1973 of  the Allahabad High Court in Special Appeal No. 1 of 1973.      R.K. Garg and D.K. Garg for the Appellant.      S. Rangaran and N.N. Sharma for Respondent.      S. Markandeya for Respondent.      Gopal  Subramaniam   and  Mrs.   Shobha   Dikshit   for Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH,  J.   The  appellant  was  appointed  on probation as  the Principal  of  the  Model  Inter  College, Thora, District Bulandshahr (hereinafter referred to as ’the College’)  on   August  28,  1967  in  accordance  with  the procedure prescribed by the Intermediate Education ACT, 1921 (U.P. Act  No. II  of 1921) (hereinafter referred to as ’the Act’) and  the Regulations  made thereunder.  The period  of probation prescribed was one year. Shortly before the expiry of the  period of probation on August 25, 1968, the Managing Committee of  the Collage  passed a resolution extending the period of probation of the appellant by one year. Thereafter on April 27, 754 1969, the Managing 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  to  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  terminate the services of  the appellant enclosing therewith a copy of its resolution dated  April 27,  1969. The letter dated June 30, 1969 reads thus:

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    "From                    To           The  Manager             Shri I.P. Gupta           Model Inter College      Chilkana House,           Thora (Bulandshahr)      Kumaran,                                    Bridge, Saharanpur.           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  view of  the resolution  No. 2 of the Managing      Committee   dated   27.4.1969   (copy   enclosed)   and      subsequent approval by the D.I.O.S. Bulandshahr you are      hereby informed  that your service as Principal of this      Institution is  terminated with  immediate effect.  You      will however  be entitled  to  your  dues  In  lieu  of      notice. Please  hand over  complete charge  to Sri D.D.      Gupta, who  is being  instructed  accordingly,  without      delay.           Please  note   that  you   cease  to  function  as      Principal  of   this  Institution  forthwith.  You  are      neither authorised  to 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 Meerut 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 that  respect. While  handing over  charge please do      not forget  to return  all papers or documents relating      to the college, 755      or any  other college  property in your possession. All      accounts also may kindly be cleared.           Since despite  several assurances  you have failed      to return  during the  complete summer  vacation,  this      intimation is  being conveyed to you at your Saharanpur      address, in  this state of uncertainty under registered      cover  to   ensure  safe  delivery.  Recently  you  are      reported to  have been  to Bulandshahr  for a few days.      Please come  immediately and  do  the  needful  in  the      matter.           Sri  D.D.   Gupta  is  to  assume  office  of  the      Principal of  this institution with immediate effect in      officiating capacity  till further  instruction. He may      take-over charge from Sri I.P. Gupta when he returns.      Yours faithfully,      sd/-      Manager      Model Inter College,      Tohra (Bulandshahr)"      The copy  of the  resolution of  the Managing Committee sent alongwith the above letter reads thus:      "Resolution passed  by the  Managing Committee  in  its meeting held  on 27.4.69 terminating the probationary period of the Petitioner.      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 refused to           say anything  but when the Committee requested him           to consider  it seriously.  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 again  requested him  to put  some  such

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         suggestion in consultation with the manager as may           be helpful  for the  Committee to  arrive at  some           conclusion. In  the absence  of  any  satisfactory           sugges- 756           tion the  Committee took  the  decision.  At  this           stage the Principal retired out of courtesy.           On the basis of the Service Book of the Principal,      the manager  told that  last year  his confirmation was      due on  28.8. 1968  but in the meeting of the Committee      held on  25.8  68  in  which  the  Principal  was  also      present, the  report of  the Manager,  dated 4.7.68 was      put as  desired by  the President.  Resolution 3  dated      25.8.68 under  the head  "Consideration on confirmation      of  Shri   I.P.  Gupta,   Principal"  incorporates  the      decision  of   the  Committee   as  "According  to  the      Manager’s  report   the  period  of  probation  of  the      Principal extended  by one year. " The proceedings book      contains signatures  of Sri  I.P. Gupta for receiving a      copy  of   the  said  resolution  At  the  end  of  the      proceedings the  minute book contains signatures of Sri      I.P. Gupta  alongwith other  members of  the  Committee      present.           The facts  contained in  the report of the Manager      being  serious   and  not   in  the  interests  of  the      institution, this  Committee unanimously  resolves that      the period  of probation  of Sri I.P. Gupta, Principal,      be terminated without waiting for the period to end and      the manager  is empowered  to take  necessary steps  in      this respect.  Any thing  done by  him in  this respect      shall  be   considered  to   have  been  done  by  this      Committee. The  manager is also authorised to hand over      charge to Sri D.D. Gupta when necessary.           Sri I.P. Gupta also came in ’With a Vote of thanks      to the Chair the meeting ended."      The English  translation of  the relevant  part of  the report of  the Manager  on the  basis  of  which  the  above resolution was  passed which  is incorporated in the counter affidavit filed  on behalf  of the  Managing committee reads thus:           "It will  be  evident  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      educational institution should take all 757      this botheration.  As such  my suggestion  is that  our      purpose will  be served by termination of his services.      Why, then,  we should  enter into  any botheration. 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.           Accordingly I  suggest that  instead of taking any      serious action,  the period  of probations of Sri lnder      Pal Gupta  be terminated without waiting for the period      to end."      Aggrieved by  the order  of termination of his services referred to  above, the  appellant filed  a  petition  under article 226 of the Constitution in Writ Petition No. 4823 of 1970 on  the file of the High Court of Allahabad challenging its correctness  and praying  for appropriate  reliefs.  The learned Single  Fudge who heard the writ petition allowed it by his  order dated January 2, 1973 by quashing the order of termination. The Managing Committee of the College preferred

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an appeal  against that  decision to  the Division  Bench of High Court  in Special  Appeal No.  31 of 1973. The Division Bench allowed  the appeal  and dismissed  the Writ  Petition 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  governed by  the provisions of the Act. Section 16-G of  the  Act  provides  that  every  person  employed  in  a recognised institution  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 provided for by Regulations with the previous sanction of the State Government. Under the Regulations so made under 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 Principal or Head Master may be  extended by  a maximum  period of  twelve months. At least six weeks before the date of which the 758 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 Management and  the decision  of the Committee of Management in each  case is  required to  be recorded  in the form of a resolution. Regulation  10 provides  that a person placed on probation shall  be confirmed if he fulfils the requirements of regulation  9, has  worked with  diligence and other wise proved himself  fit for  the post for which he was recruited and his  integrity is  certified. Whenever the punishment of dismissal,  removal  or  discharge,  reduction  in  rank  or diminution in  emoluments is  imposed, prior approval of the Inspector should  have to  be obtained. Regulations 35 to 38 of the  Regulations made  under the  Act which prescribe the procedure for  termination of the services of an employee by 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 cases of teachers appoint the Headmaster or      Principal or  Manager as  the Inquiry-officer  (or  the      Manager may  himself set  up the  enquiry if such power      has been delegated to him by the Committee under rules)      and in  the case  of the  Head master  or Principal,  a      small sub-committee,  with instructions  to submit  the      report as expeditiously as possible.           36. (1)  The grounds  on which  it is  proposed to      take action  shall be reduced in the form of a definite      charge or  charges which  shall be  communicated to the      employee charged  and  which  shall  be  so  clear  and      precise as to give sufficient indication to the charged      employee of the facts 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 he desired to be heared in      person. If he or the 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.  This  person  charged  shall  be

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    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  may, for sufficient reasons to be recorded      in writing,  refuse to  call a witness. The proceedings      shall contain a sufficient 759      record of  the evidence  and statement  of the findings      and  the   grounds  thereof.  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  (1) shall  not apply  where the person      concerned has  absconded, or  where  it  is  for  other      reasons impracticable to communicate with him.           (3) All or any of the provisions of clause (1) may      for sufficient  reasons to  be recorded  in writing  be      waived where  there is  difficulty in observing exactly      the requirements  thereof and those requirements can in      the  opinion  of  the  inquiring  authority  be  waived      without injustice to the person charged.           37. Soon  after the  report of the proceedings and      recommendation  from   the  inquiring   authority   arc      received, the  Committee of  Management shall  meet  to      consider   the    report   of   the   proceedings   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 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 or Regional Inspectress as the      case may be, for approval of action proposed by it.           38. If it is felt at any stage that the matter can      be more  properly dealt  with by  action  to  terminate      service with notice, this may be done with the approval      of the  Inspector or  Regional Inspectress, as the case      may be."      It is seen from the foregoing that the above provisions relating to the procedure to be followed before imposing the punishment  of   dismissal  or   removal  from  service  are virtually the  same as  provided by  Article 311  (2) of the Constitution and  the principles  which should  govern  this case should,  therefore, be  the same  as  those  underlying Article 311  (2). The  decisions in Parshotam Lal Dhingra v. Union of India, Shamsher Singh & Anr. v. State of 760 Punjab and  Anoop Jaiswal  v.  Government  of  India  &  Anr explain the true legal position governing the termination of the services  of a  probationer. In  Parshotam Lal Dhingra’s case (supra), this Court observed at page 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 punishment  and carries  with it no evil consequences      and so  Art. 311  is not  attracted  But  even  if  the      Government has,  by contract  or under  the rules,  the      right to terminate the employment without going through      the procedure  prescribed for inflicting the punishment      of dismissal  or removal  or  reduction  in  rank,  the      Government may,  nevertheless,  choose  to  punish  the      servant and  if the termination of service is sought to      be founded  on misconduct,  negligence, inefficiency or      other disqualification, then it is a punishment and the      requirements of Art. 311 must be complied with."

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    The above rule applies to probationers too.      Admittedly no enquiry was held in this case as provided in Regulations  35 and  36 of the Regulations made under the Act. Apparently in the light of the principles enunciated in Parshotam Lal  Dhingra’s case  (supra)  the  learned  Single Judge who decided the Writ Petition at the first instance in the High Court observed in the course of his order thus:           "In  this   petition  under  Article  226  of  the      Constitution the  petitioner questions  the validity of      the  so-called   termination  of  his  service  by  the      resolution  passed   by  the   Managing  Committee   on      27.4.1969. His  case is  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  imposed      upon him  without following  the  procedure  prescribed      under 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      petitioner was taken by 761      the  Managing   Committee   on   serious   charges   of      mismanagement brought  against  the  Principal  by  the      Manager. But  it has  submitted by  the learned counsel      for the  opposite parties that a reasonable opportunity      was  afforded   to  the   petitioner  by  the  Managing      Committee when  he was faced with the charges and asked      to explain  on 27.4.69,  at the meeting of the Managing      Committee. But the learned counsel for opposite parties      when faced  with the relevant regulations and Sec. 16-G      of the Intermediate Education Act found it difficult to      justify that  what was  done  at  the  meeting  of  the      Managing Committee  on 27.4.1969  complies  with  those      provisions. The  attack made by the petitioner based on      non-compliance of  the  relevant  regulations  and  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 petitioner was not a permanent Principal      yet he  was entitled  to a  regular show  cause  notice      against the  charges brought  and an  opportunity to be      heard as  required by  the  regulations.  The  impugned      order of  termination thus  was a  mere camouflage  and      cannot be regarded in the. circumstances as having been      passed by  the Managing Committee in the normal course.      The District  Inspector of  Schools  was  in  error  in      approving the termination in those 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:           ’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 Managing Committee dated April 27, 1969 is made a  part of  it by  treating it  as an enclosure to that letter. The  resolution actually  begins with a reference to the report  of  the  Manager,  and  slates  that  the  facts contained in  the report  were ’serious’  and  ’not  in  the interests of the institution’. It further refers to the fact that the  appellant was asked to give his explanation to the allegations made in the said report. That report stated: 762           "It is  also evident  that the  seriousness of the

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    lapses  is   enough  to   justify  dismissal   but   no      educational institution should take that botheration."      The above  report was  the real foundation on which the decision of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an  order imposing the penalty of termination of service on the  ground of  misconduct. Secondly,  the Division Bench has tried  to  justify  the  action  of  the  Management  by observing that  since  the  management  had  to  secure  the approval of  the District  Inspector to  its action,  it was necessary for  it to  give its assessment of the work of the appellant as  Principal and,  therefore. in  the. context of the statutory  requirements, it  cannot be  said that merely because the  Manager’s  report  or  the  resolution  of  the Managing Committee  refers to  the various  aspects  of  the assessment of  the performance  of the  Principal  in  terms unfavourable to  him, it  would in  law, amount to casting a stigma upon  the Principal’.  It is  difficult to engraft an exception of the above type to the well-settled rule that if the order of termination carries a stigma, it has to fall to the  ground   unless  it  is  proceeded  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   appellant  is  visited  with  evil consequences as  explained in  Parshotam Lal  Dhingra’s case (supra). The  Division Bench,  therefore, erred  in  holding that on  the facts and in the circumstances of the case, the order of  termination was an innocuous one and did not carry any stigma. The order of the Division Bench is, our opinion, an unsustainable one and is liable to the set aside.      In 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  service of the College. He  is entitled  to all  the benefits  flowing from this declaration  including the  salary and 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. 763