Dr. Kripa Nidhi Tewari v. Khetri Vikash Smiti & Ors

Order

06th November, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Ankul Gupta, for the petitioner/s. Mr.R.P.Garg, for the respondent/s. BY THE COURT: By these writ petitions, a challenge has been made to the order dated 22.12.2005 whereby appeal preferred by the petitioners before the Non-government Educational Institutions Tribunal (for short “Tribunal”) was dismissed. Learned counsel submits that petitioners were dismissed from service without seeking prior approval from the Director as per the provisions of Section 18 of Rajasthan Non- government Educational Institutions Act, 1989 (for short “Act of 1989”). The Tribunal ignored the aforesaid aspect and S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 2 subsequent approval was taken to be in satisfaction of the provisions of Section 18 of the Act of 1989. It is further stated that even ex-parte enquiry was conducted without service of charge sheet and the notice for enquiry. The charge sheet and all the notices were issued on the address of college while petitioners were under suspension, thus justifying ex-parte enquiry by the Tribunal is also illegal.

Learned counsel for the respondent/s submits that there is no violation of Section 18 of the Act of 1989. The enquiry against the petitioners was completed in the presence of representative of the Government. On completion of enquiry, request for prior approval of Director was made. Many reminders were sent for approval, however, when it was not given in time, order of dismissal was passed. The Director, however, granted approval subsequently on 30.09.2004. In the background aforesaid, nothing survives as even subsequent approval validated the action taken prior to it. It is in view of the judgment of Hon'ble Apex Court in the case of U.P. Avas Evam Vikas Parishad & Anr. Vs. Friends Coop. Housing Society & Anr. reported in AIR 1996 SC 114. Coming to the second issue, it is submitted that not only charge sheet was sent to the petitioners at their address but it was received by them. It is for that reason alone, earlier writ petition was filed with a copy of the charge sheet. The S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 3 petitioners were served with the notice by various mode and issue aforesaid has been considered by the Tribunal. Since petitioners failed to participate in the enquiry, the enquiry was rightly concluded ex-parte. I have considered the submissions made by learned counsel and perused the record. The first issue for my consideration is as to whether order of dismissal can be passed without prior approval of Director as per Section 18 of the Act of 1989. For ready reference, Section 18 of the Act of 1989 is reproduced hereunder : “18. Removal, dismissal or reduction in rank of employees - Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken : Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained: Provided further that this section shall not apply, - (1) to a person who is dismissed or removed on the ground of conduct which led to him conviction on a criminal charge, or S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 4 (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken or (iii) Where the managing committee is of unanimous opinion that the services of ail employee can not be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.” The perusal of proviso shows that order of dismissal can be passed with prior approval of Director or an officer authorized by him has been obtained. The language clearly indicates and postulates prior approval and not subsequent. In the instant case, the approval of Director was not prior to final order of dismissal. In the background aforesaid, it cannot be said that order of dismissal was passed in conformity to the Section 18 of the Act of 1989. Learned counsel for the respondent/s, however, referred the judgment of Hon'ble Apex Court in the case of U.P. Avas Evam Vikas Parishad & Anr. (supra). Therein, it was held that once approval is granted, it validated even action taken earlier. I have considered the judgment referred to above and find that facts therein are altogether different. The S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 5 declaration under Section 3 of U.P. Urban Planing and Development Act, 1965 (for short “Act of 1965”) was published on 03rd September, 1977. The appellant sought approval of government through the letter dated July 27th, 1982, pursuant to the Notification dated June 07th, 1982 issued under Section 28 of the said Act. The government approved the scheme on 24th August, 1982. The declaration under Section 32 was published on 28th February, 1987. The writ petition filed before the High Court was allowed holding that prior approval of the government was not obtained under the Act, thus the Notification issued under Section 28 of the Act of 1965 is not valid. The Hon'ble Apex Court considered the language implied therein and held that approval of the State Government is necessary. The further question was as to whether it should be prior approval or approval given subsequently validate earlier Notification. It was held that if prior approval is a precondition for further step, the Act would have been said so but it is missing therein. The judgment was given on its own facts. Therein, while considering the another judgment of Hon'ble Supreme Court in the case of Life Insurance Corporation, the meaning of word “prior” or “previous” was also considered and it was held that there exists no such comparative circumstances justifying and reading in such implication as implied in the word “prior”. Therein, difference between word “approval” and “permission” was taken note of. Mere use of word “approval” without using the word “prior” may have implication of even S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 6 subsequent approval but when the word “prior” has been used before “approval”, it has to be before passing of the order. It is, no doubt true that referring to the provision of Section 59 therein, subsequent approval was taken in satisfaction and to validate action taken earlier. But if Section 18 of the Act of 1989 is looked into and in view of catena of judgments of this Court, the order of dismissal can be passed save with prior approval of the Director. If the approval is asked or denied or even granted later on, it cannot be said to be in satisfaction of provisions of Section 18 of the Act of 1989 otherwise, the very purpose of passing an order with prior approval would be nullified. So far as the argument of learned counsel for the respondent/s that the representative of the Government was present in the enquiry is concerned, it does not mean prior approval of punishment because at the stage of enquiry and on its completion, punishment is not proposed. The respondents were knowing it well that mere presence of representative would not be enough to pass order of punishment unless approval is granted. It is therefore only that letters were sent to the competent authority to grant approval for passing order of dismissal. To that extent, their action was in conformity to Section 18 of the Act of 1989 but without waiting for approval of the Director, they passed the order of punishment of dismissal. The approval of the Director is subsequent to the order. In view of above, I am not inclined to accept the finding recorded by the S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 7 Tribunal holding action of the respondents to be in conformity to the provision of Section 18 of the Act of 1989. The fact, however, remains that after the order of dismissal, if a considerable period has already passed in between and it is also stated that petitioners are in employment of other institutions then as to what relief they are entitled to. This is moreso when, now the State Government has enacted Rules of 2010 wherein option is sought from the existing staff of the aided institution to choose for government employment. The grant-in-aid has been stopped to any institution. In totality of the circumstances, I find that so far the order of dismissal is concerned, it cannot be allowed to sustain, thus it is set aside, however, the respondents can pass fresh order now in view of the approval granted by the Director, thus on passing of the fresh order, the petitioners cannot continue in service of respondents because so far as other issue is concerned, I do not find any substance therein. The petitioners were sent not only charge sheet but notices for enquiry and for that reason alone, while filing earlier writ petition, copy of the charge sheet was enclosed. The allegation that petitioners were not served with the charge sheet or notice has otherwise been dealt with by the learned Tribunal in detail and I do not find any perversity in the finding of fact recorded therein. If the petitioners failed to participate in the enquiry, the respondents were left with no option but to proceed ex-parte. In the background aforesaid and to the extent of enquiry and in view of presence of the representative of the S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 8 Government, I do not find any illegality therein. Taking note of the facts and circumstances of this case, I am of the opinion that petitioners should be granted lump sum compensation because even if they are reinstated, the respondents would be at liberty to pass a fresh order of dismissal in view of the approval granted by the Director. In that event, if the petitioners are already settled in other services, they would necessarily be unsettled. It is also not to be ignored that if respondents are directed to reinstate the petitioners then in that eventuality, liability of wages of same period will on them. To balance the equity, learned counsel for both the parties were asked to make proposal. Learned counsel for the respondents proposed compensation of Rs.50,000/- whereas learned counsel for the petitioners made a claim of Rs.75,000/- towards compensation. I have taken both the proposals and award Rs.65,000/- towards compensation to each petitioner. Accordingly, while setting aside the impugned order of the Tribunal, the petitioners are allowed compensation of Rs.65,000/- in lieu of reinstatement and salary. The amount aforesaid would be paid by the respondents within a period of three months from today. They would be at liberty to seek reimbursement of the amount from the Government to the S.B. Civil Writ Petition No.7302/2006 (Dr. Kripa Nidhi Tewari Vs. Khetri Vikash Smiti, Jaipur & Ors.) along with three other. 9 extent of grant-in-aid provided to them at the time of order of dismissal. As per the rules, if claim for reimbursement is made, the State Government is directed to consider the case for grant of amount in favour of the respondent-institution within shortest possible time and if possible then within a period of four months from the date of making claim by the respondent-institution. With the aforesaid, all the writ petitions stand (M.N. BHANDARI), J. allowed. S/No.12-15 Preety, Jr.P.A.t All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Preety Asopa Jr.P.A.