High Court
Case Details
WP(C) 4158/2009 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR. JUSTICE P. K. MUSAHARY JUDGMENT & ORDER ( Ansari,J)
Legal Reasoning
With the help of this writ petition, made under Article 226 of the Const itution of India, the petitioner, namely, Deputy Commissioner, Navodaya Vidyalay a Samity (hereinafter referred to as ’the Samity’), who was respondent No. 3 in Original Application (in short, ’OA’), No. 97/2008, has put to challenge the ord er, dated 09.09.2009, passed by the learned Central Administrative Tribunal, Guw ahati Bench (hereinafter referred to as ’learned Tribunal’), whereby the learned Tribunal has allowed the OA and directed the respondents therein to reinstate, in service, the applicant, who is respondent herein and who is hereinafter refer red to as ’applicant-respondent’. 2. We have heard Mr. K. N. Choudhury, learned Senior counsel, appearing on behalf of the petitioners, and Mr. M. Nath, learned counsel, appearing for the a pplicant-respondent. 3. 2009, may, in brief, be set out as under: The material facts, as discernible from the impugned order, dated 09.09. (i) Pursuant to an advertisement, published in the month of July, 20 05, by the Samity inviting applications for filling up posts of Trained Graduate Teacher in various Jawahar Navodaya Vidyalaya, situated across the North Easter n States, the applicant-respondent herein applied for the posts of Trained Gradu ate Teacher and, in course of time, she came to be appointed to a post of Traine d Graduate Teacher (English) and joined the post on 25.06.2006, at Jawahar Navod aya Vidyalaya, Banduar, Udaipur, in South Tripura. The letter of appointment, i ssued to the applicant-respondent herein, made it clear that the applicant-respo ndent herein would, initially, be, on probation, for a period of two years from the date of her joining the post, the period of probation being extendable at th e discretion of the competent authority and, failure to complete the period of p robation to the satisfaction of the competent authority, would render the applic ant-respondent herein liable to be discharged from service. The letter of appoi ntment, so issued, also made it clear that even during the period of probation, the service of the applicant-respondent herein could be dispensed with by the Sa mity without assigning any reason and that the applicant-respondent herein would be entitled to resign, while on probation, by giving one month’s notice, in wri ting, in this regard. Clause 4 of the said letter of appointment further envisa ged thus: (cid:28)Jawahar Navodaya Vidyalaya being fully residential institutes the teachers are required to stay in the Vidyalaya campus. In addition to normal teaching duties, the teachers are required to perform additional responsibilities attached with residential system like House Mastership, remedial and supervisory studies, orga nization of co-curricular activities, escorting of students on migration and in general looking after the student welfare. During the period of probation your p erformance in all these areas would also be assessed in addition to teaching abi lity to determine your suitability for the job. (cid:29) (Emphasis is added) (ii) As noted by the learned Tribunal, in its impugned order, the app licant-respondent was served, on 10.09.2007, with a Memorandum by the Principal of her school, which read as under: (cid:28)Your class was observed by the undersigned several times and informed that you are very poor in English. You are further advised to do hard work to improve you r teaching qualitatively. You are also instructed to prepare the lesson so that you can deliver the subjec t matter to the children effectively. Time and again you are warned, for not pre paring the lessons. Your careless attitude will affect the English language and communication for th e children. Quality result may not be possible when the students go to class X. This is the final warning to you that, without preparation, you do not enter the class and don’t simply engage the students. You are asked to explain and submit in writing within 2 (02) days. The receipt of this memorandum should be acknowledged. (cid:29) (iii) In reply to the Memorandum aforementioned, the applicant-respond ent submitted her reply by her letter, dated 13.08.2007, which read as under: (cid:28)With reference to your memorandum the following are the reason for not preparin g daily lesson plan for classes to be conduct on 10.8.07. I returned from Guwaha ti after attending the course. Ref. 1-6/JNV(STR/Train/2007/7216) on 9.8.07 at 4. 45 p.m. on 7.8.07. The journey took around 48 hours made me extremely tired. As a result it was impossible for me to prepare lesson plan for the date mentioned above. As far as daily lesson plan is concerned for six periods on average it takes muc h of my time on doing the same which hampers my preparation time for classes. De spite of that also I involve myself in preparing daily lesson plan as well as pr eparation for class. For your information, I have shown you my daily lesson plan which has been duly signed by you. As mentioned in the memorandum that you have warned me time and again but it was more of an humiliation/mental torture in front of students, Grade-IV staff and teaching staff which instead of encouraging me has given me mental stress and th ereby hampers my improvement. (cid:29) (iv) Thereafter, on 15.08.2007, the applicant-respondent herein recei ved a note from the Principal, Jawahar Navodaya Vidyalaya, Banduar, who was resp ondent No. 4 in the OA. The note, dated 15.08.2007, aforementioned read as unde r: (cid:28)You are served by an office order on 15.08.07 for not attending the flag hoisti ng programme as circulated to you a day before where in you have signed the circ ular on 14.08.07. You are raising a question towards your higher official asking why you have serv ed this letter to me? It is nor good on your part to ask such a question towards your undersigned. By the by, you are also mentioning that, why you are giving office order to me o nly, why not to Mrs. S.R. Kalai, PET(F), Mr. S.N. Pazare-PGT (Chem) and Mrs. A A charjee-PGT (Geo)? I am to state that the above mentioned teachers were on duty at the Parade groun d, Udaipur, along with the forty (40) children for Yoga display as per the sched ule of the District Administration. There, all of thousand attended and respect to the National Flag hoisting. Mrs. Acharjee-PGT (Geo) of this Vidyalaya, was relieved yesterday (14.08.07) by the undersigned on account of the telephonic message received by me as her fathe r was in the I.C.U. for heart care (I was told - 2nd heart stroke). Accordingly she left the school on 14.08.07 evening by 6.00 pm by leaving the senior girls w ho are all the preparation of the Independence Day. This is for information, as you are asked explanation to the undersigned. Now yo u are asked to explain in detail and submit, in writing, stating the reasons for raising the question and indifferent reply for your absence for not attending t he Independence Day (flag hoisting at 8.00 am on 15.08.07. (cid:29) (v) Responding to the note, dated 15.08.2007, aforementioned, the ap plicant-respondent submitted her reply, which is reproduced below: (cid:28)With due respect I beg to state that I was not feeling well (severe headache an d fainting) Nurse Madam had given me first aid. After sometime I feel better so I thought to attend the Independence Day celebration. I became late and Nurse Ma dam also became late only because of me. I accepted your order because the fault was mine. But as far as the question is concerned why I had’nt asked such quest ion. Yesterday was the Independence Day but I felt that I am not independent. Day bef ore yesterday, I had applied C.L. for medical treatment and yesterday I was havi ng severe headache and fainting. So this is the reason why we were late. This is my fault. (cid:29) (vi) On 24.01.2008, a meeting of the Departmental Promotion Committee (in sho rt. ’DPC’) of the Samity was held for considering the cases of the probationers. Having considered all the cases of the probationers including the case of the applicant-respondent herein, the DPC recommended termination of the services of 4 (four) numbers of probationers, while it (DPC) recommended the cases of 46 tea ching staff for confirmation. The DPC also recommended extension of the probati onary period in respect of 13 probationers. (vii) Acting upon the recommendations made by the DPC, the petitioner herein issued an Office Order, dated 11.02.2008, terminating the service of the applicant-respondent herein by taking resort to sub-Rule (1) of Rule 5 of the Ce ntral Civil Service (Temporary Service) Rules, 1965, and, acting upon the Office Order, dated 11.02.2008, aforementioned, the applicant-respondent herein was re lieved of her duty by Memorandum, dated 18.02.2008, and she was also paid one mo nth’s salary in advance. (viii) In the OA, the applicant-respondent herein alleged that responde nt No. 4, i.e., the Principal of the Jawahar Navodaya Vidyalaya, Banduar, used t o misbehave with her and rebuked her without any reason and called her (cid:28)bloody I ndian (cid:29), (cid:28)dirty lady (cid:29), etc.; but the applicant-respondent, being a subordinate em ployee, never uttered a word against the respondent No. 4 and continued to toler ate the misbehaviour of respondent No. 4. It was also alleged by the applicant- respondent herein that the respondent No. 4 used to call her to his chamber with out any reason with ill motive and, one day, he even called her to his residenti al quarter and, when she did not go to the residential quarter of the respondent No. 4, respondent No. 4 became angry with her and initiated action against her, on false pretext, by issuing memoranda and note, as indicated above, and, event ually, the service of the applicant-respondent herein was terminated without pro viding her any opportunity of being heard. 4. The applicant herein resisted the OA by filing affidavit, the case of th e respondents in the OA being, in brief, thus: Though appointed as a teacher for English language, the applicant-respondent’s command over the language was foun d much below the desired level and, upon observing her teaching qualities, respo ndent No. 4, as the Principal of the school, was compelled, on several occasions , to issue the memoranda and that the applicant-respondent herein was served wit h office orders to improve her performance and to be punctual in attending her c lasses. The respondent No. 4 also asked her to take note of the time table and not to part with her classes in favour of the Physical Education Teacher. This apart, the applicant-respondent herein was always late in preparing her lessons, that she could not prepare the lesson plan effectively to impart education to c hildren and that most of the teachers were complaining of her attitude to the Pr incipal (i.e., respondent No. 4 in the OA). The further case of the petitioner was that the service of the applicant-respondent herein had been terminated on t he basis of the recommendations of the DPC, the Principal had no power to termin ate the service of the applicant-respondent herein and what the Principal could do, he did by asking the applicant-respondent herein to improve her quality of w ork and that the DPC considered the performance of the applicant-respondent here in on the basis of the 11th monthly probation report, Special Performance Repor t as well as other reports and memoranda of the reporting/reviewing authority. 5. While considering the impugned order, passed by the learned Tribunal, wh at attracts our attention, most prominently, is that the learned Tribunal has ob served, at paragraph 11 of its order, that the DPC recommended termination/disch arge of the applicant-respondent herein on the basis of the unsatisfactory perfo rmance report submitted by the respondent No. 4 (i.e., the Principal of the scho ol) against whom ’bias’ had been alleged by the applicant-respondent herein. Th e learned Tribunal has also noted that based on a specific complaint of a lady t eacher, police had arrested the Principal on charge of outraging modesty of a la dy. The learned Tribunal has further observed that no independent enquiry had b een made before passing of the termination order and that, upon taking the entir e facts into consideration, it could not be said that the allegations, levelled against principal (respondent No. 4 in the OA) was baseless and that the order o f termination, dated 11.02.2008, was passed without taking into consideration th e principle of natural justice, though the termination order was based on the re port of the Principal against whom bias had been alleged. 6. On the basis of the conclusion, so reached, the learned Tribunal allowed the OA by order, dated 09.09.2009, and set aside and quashed the termination or der, dated 11.02.2008, and directed reinstatement of the applicant-respondent he rein in service with full back wages. It is this order, dated 09.09.2009, which stands impugned in the present writ petition. 7. While considering the present writ petition, it needs to be borne in min d that the petitioner herein, namely, Deputy Commissioner, Navodaya Vidyalaya Sa mity, terminated the service of the applicant-respondent herein by taking resort to sub-Rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rule s, 1965. In the termination order, dated 11.02.2008, it is clearly mentioned th at the applicant-respondent herein is discharged from service on the basis of th e recommendations of the DPC. The termination of service, during probation, doe s not call for any notice to be given against the proposed termination unless th e proposed termination is based on misconduct. 8. In the absence of any finding reached by the learned Tribunal to the eff ect that the termination of the applicant-respondent’s service was as a measure of penalty, the order of her termination could not have been interfered with. T his apart, it escaped the attention of the learned Tribunal that it was not the Principal of the school concerned, who had terminated the applicant-respondent’s service. Far from this, the applicant-respondent’s service was terminated on t he basis of the recommendations of the DPC. 9. What may also be noted is that though the learned Tribunal has referred to the case of arrest of the Principal of the school concerned, the fact remains that the arrest of the Principal had nothing to do with the applicant-responden t’s case. 10. As there was no nexus between the arrest of the Principal, on the one ha nd, and the termination of the service of the applicant-respondent, on the other , it is logical to conclude that the learned Tribunal took an extraneous fact in to consideration in arriving at the decision of setting aside and quashing the t ermination order of the applicant-respondent herein. 11. Coupled with the above, it is also worth pointing out that the materials on record reveal that the memoranda, served on the applicant-respondent herein, as well as the note aforementioned were responded to by the applicant-responden t and she had offered her explanation to the said memoranda and the note, as the case may be. Her reply to the memoranda clearly shows that it was not her case , in response to the memoranda served on her, that the allegations, made against her, were wholly untrue or false; rather, she gave her explanation for her alle ged behaviour and conduct. Similar was the position with respect to the note af orementioned. Her reply to the note does not suggest that the note contained an y false and fabricated allegation. 12. In such circumstances, as indicated above, the case of the applicant-res pondent can, at best, be described as a case of disputed question of facts. A c ase, based on disputed questions of fact, could not have been resolved on the ba sis of the pleadings alone, but on the basis of evidence, which the learned Trib unal was/is empowered to record. A reference may be made, in this regard, to Se ction 22 of Administrative Tribunal’s Act, 1985. Sub-Section (3) of Section 22 reads as under: (cid:28)Procedure and powers of Tribunals. *** (1) *** (2) *** *** *** *** (3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code f ollowing matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oa th; (b) requiring the discovery and production of documents; (c) receiving evidence of affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act , 1872 (1 of 1872) requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing a representation for default or deciding it ex parte; (h) setting aside any order of dismissal of any representation for default or an y order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. (cid:29) 13. From a careful reading of sub-Section (3) of Section 22, it becomes more than abundantly clear that the learned Tribunal is empowered to receive evidenc e, on affidavit, in the manner as is done by a civil court, which functions unde r the Code of Civil Procedure. 14. Situated thus, it is clear that the learned Tribunal has interfered with the order of termination, dated 11.02.2008, without holding appropriate enquiry by recording evidence on the disputed questions of fact. 15. In the circumstances, as indicated above, it is clear that the order, da ted 09.09.2009, passed by the learned Tribunal, cannot be allowed to survive, as the same would, if not interfered with, cause serious miscarriage of justice.
Decision
16. In the result and for the reasons discussed above, this writ petition pa rtly succeeds. The impugned order, dated 09.09.2009, is hereby set aside and th e proceeding is remanded to the learned Tribunal for determination of all the di sputed questions of fact by recording evidence in terms of the provisions of Sec tion 22 of the Act.