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PETITIONER: GOVERNING BODY OF DAYANAND ANGLO VEDIC  COLLEGE

       Vs.

RESPONDENT: PADMANABHA PADHY & ORS.

DATE OF JUDGMENT14/01/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) OZA, G.L. (J)

CITATION:  1988 AIR  612            1988 SCR  (2) 707  1988 SCC  (1) 653        JT 1988 (1)   113  1988 SCALE  (1)90

ACT:      Constitution of  India 1950: Article 226-Writ petition- Grant of  relief to petitioner-Necessary facts to be proved- College   lecturer-Services    terminated-Appointment    and termination orders-Examination of.      Pleadings-Admission-To be  accepted or  rejected  as  a whole-Not in part.

HEADNOTE: %      The 1st  respondent was  appointed as a Lecturer in the appellant College  on 26th  July, 1971  and was placed under probation for  one year.  He was  informed by a letter dated 28th March,  1972 that  his services were no longer required and would stand terminated with effect from the afternoon of 30th April, 1972.      The 1st respondent challenged the aforesaid termination order by  a writ  application contending that his appointing authority was "The Managing Committee or the Governing Body" of the  College, and as such the order of termination of his services  by  the  Principal  of  the  College  was  without jurisdiction. The  writ application  was contested on behalf of the  Appellant by  contending that  the Principal who was the Ex-officio  Secretary was  the appointing  authority and was vested  with the  power  to  terminate  the  appellant’s services. On  behalf of  the director of Public Instruction, who was  also a party to the writ application, it was stated that both  the orders  of appointment  and termination  h ad been passed  by the  Governing Body  and the  Principal  who communicated the  same to  the 1st  respondent was acting on behalf of  the Governing  Body, and  that the  DPI  was  not concerned with  the termination  orders passed before 3rd of May, 1972  the date  from which 1974 Amendment of the Orissa Education Act,  1969 took  effect, and  that the  DPI had no power to look into the matter.      The  High   Court  rejected   the  objection   to   the maintainability of  the writ  application on the ground that the College was a private institution, and held that in view of the provisions of the orissa Education 708 Act, 1969  Berhampur University  Act 1966  and the Berhampur

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university Statutes  1966, the college must be considered to be a  statutory body  amenable to  the writ jurisdiction. It held that, "undoubtedly until confirmation petitioner had no right to  the post  and during  the period  of probation  he could be  turned out  from his  service", but in view of the language of the appointment letter and the termination order both the  orders have  been passed  by some  authority other than  the   Principal  and   the  Principal   was  merely  a communicating agent.  It opined  that the  termination order did not emanate from the Governing Body of the College which alone had  the power to terminate the services of a teacher, and as  such held  that the  termination order-  was  issued without jurisdiction.  The writ application was allowed, and the  1st  respondent  was  declared  to  have  continued  in service.      Allowing the appeal by the College, this Court, ^      HELD:  l.   The  writ   petition  was  founded  on  the assumption that  it was  the Principal  who had  passed  the termination  order   by  himself   and     that  he  had  no jurisdiction to  do so.  Instead of merely pointing out that it was not so, the affidavit on behalf of the College made a confused statement  forgetting that  the Principal  was only one of  the members of the Governing Body. Both sides, thus, misrepresented the situation before the Court.[711D-E]      2. Although  it is permissible for a tribunal to accept part and  reject the rest of any witness’s testimony, so far as admission  in pleading  is concerned,  it  cannot  be  so dissected. It  may be  accepted as  a whole  or not  at all. [7l2A-B]      M.M. Essabhoy v. M. Haridas, AIR 1915 PC 2 referred to.      3. The  case of  the College  had been  that  both  the appointment and  the termination  orders were  given by  the Principal. This  plea is  of course  incorrect but  for that reason the  statement by the College cannot be truncated and part of  it accepted  while rejecting the other part. It had to be accepted as a whole or not at all. [711H]      4. The  finding and  the assumption  made by  the  High Court that  the termination order was passed by an authority other than  the appointing  authority being not supported by any material  whatsoever on  the record has to be set aside. [712B]      5. The  burden of proving the necessary facts for grant of relief 709 was on  the writ  petitioner which  was not  discharged. The writ application was, therefore, bound to fail. The decision of High Court is set aside, and the writ petition dismissed. [712B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1074(N) of 1977.      From the  Judgment and  order dated  26.11.1976 of  the High Court  of Orissa  in original Jurisdiction Case No. 811 of 1974.      Rajinder Sachher and Amrish Kumar for the Appellant.      Pankaj Kalra,  Amicus-Curiae and  R.K.  Mehta  for  the Respondents.      The Judgment of the Court was delivered by      SHARMA,  J.   The  respondent   Padmanabha  Padhy   was appointed as a Lecturer in the appellant College on the 26th July, 1971  and was  placed under probation for one year. He

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was informed  by the  letter dated the 28th March, 1972 that his  services  were  no  longer  required  and  would  stand terminated with effect from the afternoon of the 30th April, 1972.  He   challenged  the  termination  order  by  a  writ application before  the orissa High Court, which was allowed and the  writ petitioner  was declared  to have continued in service. The  appellant has filed the present appeal against the High Court judgment after obtaining special leave.      2. The  respondent, in  the first  instance had filed a writ application  which was  registered as O.J.C. No. 308 of 1972 but  later withdrew  it and  approached the Director of Public Instruction  (in  short  referred  to  as  the  DPI), present  respondent   No.  2,   for  the  necessary  relief. Subsequently on 12.8.1974 he filed a second writ application being o.J.C.  No. 811  of 1974 which has been allowed by the judgment presently  impugned. It  is stated before us on his behalf that the D.P.I. by his order dated 19.9.1973 declined to interfere  which necessitated  the filing  of the  second case. It has been, inter alia, contended by Sri Padhy in his writ application  that his  appointing  authority  was  "the Managing Committee  or the  Governing Body"  and as such the impugned  order  of  termination  of  his  services  by  the Principal was without jurisdiction. The stand of the College was that  the Principal who was the Ex-officio Secretary was the appointing  authority and  was vested  with the power to terminate the appellant’s services. The counter 710 affidavit of  the D.P.I.  stated that  both  the  orders  of appointment and termination had been passed by the Governing Body and  the Principal  was, in  sending the  orders to Sri Padhy, acting  on behalf  of  the  Governing  Body.  It  has further been  said that  he (D.P.I.)  was not concerned with termination orders  passed before  the 3rd of May, 1972, the date from  which the  relevant 1974 Amendment of the- Orissa Education Act,  1969 took  effect and  he had, therefore, no power to look into the matter.      3.  The  High  Court  held  that,  "undoubtedly,  until confirmation petitioner  had no right to the post and during the  period  of  probation  he  could  be  turned  out  from service", but  in view  of the  language of  the appointment letter and  the termination  order it proceeded to point out that both the orders had been passed by some authority other than  the   Principal  and   the  Principal   was  merely  a communicating agent.  The High Court further opined that the Principal was  acting on  behalf of  the Management  of  the Trust which had established the College, and the termination order did  not emanate  from the  Governing Body.  Observing that it  is only  the Governing  Body of a College which has power to terminate the services of a teacher, it was further held that  the impugned  order was without jurisdiction. The objection to  the maintainability of the writ application on the ground  that the  College was  a private institution was rejected and  it was  held that in view of the provisions of the Orissa  Education Act,  1969, Berhampur  University Act, 1966  and  the  Berhampur  University  Statutes,  1966,  the college must  be considered  to be a statutory body amenable to the writ jurisdiction.      4. Mr. Sachher, learned counsel appearing in support of the  appeal,   has  contended   that  both   the  orders  of appointment and  termination of  service were  passed by one and the  same body  and the finding of the High Court to the contrary is not based on any material and, therefore, has to be set  aside. Referring  to the  statement of  Sri Padhy in paragraph 7  of the writ petition that the Governing Body of the College  and the Managing Committee are one and the same

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body, it was argued that the termination order was passed by the appointing authority of the writ petitioner and it could not be  set aside on the ground of lack of jurisdiction. The maintainability of  the writ  application in  the High Court has also  been seriously  challenged and it has further been urged that  in any  view of the matter the High Court on the facts and  in the  circumstances of  the  case  should  have refused to allow any relief to the writ petitioner. 711      5. Mr.  Kalra, learned  counsel representing  Sri Padhy respondent No.  1, has  submitted that  the. finding  of the High Court  as to  the authorship  of  the  appointment  and termination orders should not be disturbed by this Court. He also supported  the view  of the  court below  that the writ petition was maintainable and that it is a fit case in which the High  Court was  right in  granting the relief as prayed for.      6. The  learned counsel for both sides placed before us the appointment  and termination  orders more  than once and there is  no manner  of doubt  that none  of the  orders was passed by  the Principal alone. The termination order stated that the  Principal had  been directed  to inform  Sri Padhy that his  services were  being no  longer required and stood terminated with  effect from 30.4.1972. It is true that none of the  two letters  expressly states  about  the  authority passing the  respective orders  but this  much is clear that the Principal  was only  conveying the  decision of  another authority and  was thus  acting in the same capacity on both occasions. The  writ petition  was founded on the assumption that it  was the  Principal who  had passed  the termination order by  himself and  that he had no jurisdiction to do so. Instead of  merely pointing  out that  it was  not  so,  the affidavit on behalf of the College made a confused statement forgetting that the Principal was only one of the members of the Governing  Body. Both  sides, thus,  misrepresented the- situation before  the Court  and it  was only the D.P.I. who correctly appreciated  the position.  In this background the question arises  as to  whether the  High Court was right in assuming  that  the  termination  order  was  passed  by  an authority other than the appointing authority.      7. No  material or  basis has  been referred  to in the Judgment of  the High  Court in  support  of  its  view  and neither side  has pointed out before us any evidence to that effect. Mr.  Kalra contended  that in  view of the statutory provisions it  should be  presumed that  Sri Padhy  had been appointed by  the Governing  Body as  envisaged in  law, and further in  view of the stand of the College before the High Court that  the Principal  had issued the termination order, it should  be held  that the  same was without jurisdiction. The finding  of the  High Court  in this  regard is  in  his opinion thus  supported by  the supposed  admission  of  the College in  its pleading. We are afraid, the argument cannot be accepted.  The case of the College has been that both the appointment and  the termination  orders were  given by  the Principal. This  plea is  of course  incorrect but  for that reason the  statement by the College cannot be truncated and part of it accepted while rejecting the other part. 712 As was  observed by the Privy Council in M.M. Essabhoy v. M. Haridas, AIR  1915 PC  2, although  it is  permissible for a tribunal to accept part and reject the rest of any witness’s testimony, so  far as admission in pleading is concerned, it cannot be so dissected. It may be accepted as a whole or not at all.  We therefore,  hold that the assumption made by the High Court  in this  connection being  not supported  by any

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material whatsoever  on the records has to be set aside. The burden of  proving the  necessary facts  for grant of relief was on  the writ  petitioner which  was not  discharged. The writ application  was, therefore,  bound to fail. The appeal accordingly  must   succeed  on   this  ground  and  it  is, therefore, not  necessary to  consider the  other  questions raised on behalf of the appellant.      8. In  the result,  the appeal is allowed, the decision of the  High Court  is set  aside and  the writ  petition is dismissed. Parties shall bear their own costs throughout. N. V. K.                                     Appeal allowed. 713