Managing Committee v. Indra Pal Gupta — 1973 DIGILAW 132 (ALL)

JUDGMENT Satish Chandra, J. - The Managing Committee of the Model Inter College, Thora, District Bulandshahr, appeals against the judgment of a learned Single Judge allowing a writ petition and quashing an order whereby the services of Sri I. P. Gupta, respondent No. 1 were terminated. 2. Sri Gupta was selected for appointment to the post of the Principal of the College and he started functioning as such with effect from 1st July, 1967. The District Inspector of Schools approved his candidature by an order passed on 22nd August, 1967. Thereafter, on 28tn August, 1967, the management issued an order of appointment placing Sri Gupta on probation of one year. Shortly prior to the expiry of the period of probation, namely, on 22nd August, 1968, the management passed a resolution extending the period of probation by one year. It appears that the functioning of Sri Gupta was not quite happy. The Managing Committee met on 27th April, 1969, to consider the question of confirmation of Sri Gupta. After considering the report of the Manager, the Committee resolved to terminate the services of Sri Gupta and directed the Manager to take requisite steps in that behalf. The Manager sent his report along with the resolution of the termination of the services of Sri Gupta to the District Inspector of Schools for his approval to the resolution. The District Inspector of Schools accorded his approval on 30th June, 1969, whereupon the Managing Committee passed an order dated 1st July, 1969, terminating the services of Sri Gupta, respondent No. 1 with immediate effect. 3. Aggrieved, respondent No. 1 came to this Court by way of a writ petition. The learned Single Judge held that the termination appears to have been effected by way of punishment owing to various charges against Sri Gupta. The procedure provided by the Regulations relating to imposition of the punishment of dismissal or removal from service not having been followed, the order was held invalid. The plea that since the Managing Committee was not a statutory body, no writ could be issued against it, was repelled. On these findings, the writ petition was allowed and the order of termination and the order of the District Inspector of Schools according approval to the order of termination were quashed. 4. The plea that since the Managing Committee was not a statutory body, no writ could be issued against it, was repelled. On these findings, the writ petition was allowed and the order of termination and the order of the District Inspector of Schools according approval to the order of termination were quashed. 4. We are not satisfied that the materials on record established that the Managing Committee terminated the services of Sri Gupta as a measure of punishment. The resolution passed by the Managing Committee on 27th April, 1969, shows that the Manager's report was read out. The Principal was also present. The matter was discussed with him. It was then resolved that since the report of the Manager contained serious matters which were not in the interest of the institution, the services of the Principal should be terminated. In the letter sent by the Management to the District Inspector of Schools, it was stated that the Manager's report, the resolution of the Managing Committee and the documentary evidence in support of the report were enclosed, and that the documentary evidence was so serious that on its basis, even a permanent Principal could be removed, but since it was only a matter of termination of a probationer's service, the management was not adducing any oral evidence and was content with relying upon the documentary evidence alone. It is clear that the intention of the Management was not to impose the punishment of dismissal or removal from service, but only to terminate the services of the probationer. They did not want to establish the various charges to the guilt, because, obviously, that may debar the Principal from any future employment and would have cast a stigma upon his character. In this context, when the Inspector accorded his approval to the resolution of simple termination of service, it cannot be said that he accorded the approval on the footing that any punishment of dismissal or removal from service was being imposed upon Sri Gupta. 5. It is apparent that the decision to terminate the probationer's service was taken after evaluating and assessing the respondent's worth and performance on the post of the Principal for more than 1 years. This is not a case where, even according to the respondent, the action of termination was impelled by any particular incident that may have happened within short proximity of the order of termination. This is not a case where, even according to the respondent, the action of termination was impelled by any particular incident that may have happened within short proximity of the order of termination. This feature distinguishes the case from the category of cases like State of Bihar v. Shiv Bhikshuk Mishra, AIR 1971 S.C. 1011 . In that case, Sri Misra slapped his orderly on the night of September 22, 1950. The Commandant made an informal enquiry and held that Sri Misra had actually slapped his orderly, instead of bringing a complaint against the orderly to higher authorities. The Commandant racommended that Sri Mishra, who was then officiating on the post of Subedar Major, be censured. The Deputy Inspector-General of Police that Sri Mishra appears to have tripped very badly and a mere transfer was no cure. He recommended that Sri Mishra should be reverted to his substantive rank of sergeant. The Inspector-General agreed with this recommendation and Sri Mishra was referred. In this contest, the Supreme Court held that the order of reversion was, in law, founded upon the charge of misconduct. The form of the order was merely a cloak and camouflage for an order founded on misconduct. This was a case in which the action was based upon an occurrence of misconduct within a short proximity of the action. The fact that cases where reversion or termination is made on an assessment or evaluation of the officer's performance on a particular post over a long period of time, stand on a different footing, is apparent from the fact that in this very case, the case of Union of India v. R. S. Dhaba, AIR 1969 N.S.C. 21 (V56) was distinguished. In Dhaba's case, the Commissioner of Income-tax had received a large number of complaints against the integrity of the officer. Several had reports were also received from superior officers. The Supreme Court held that the order of reversion had not been made by way of punishment. It is evident that this conclusion was reached because the order of reversion in that case could not be fastened upon any particular incident of misconduct. The present case, in our opinion, falls in the category of cases like Dhaba's case. The Supreme Court held that the order of reversion had not been made by way of punishment. It is evident that this conclusion was reached because the order of reversion in that case could not be fastened upon any particular incident of misconduct. The present case, in our opinion, falls in the category of cases like Dhaba's case. The mere fact that the order was passed on the satisfaction that the officer was inefficient, or negligent, or lacking in integrity is by itself not decisive upon the question whether these considerations formed the motive or the foundation for the order. Whenever a question of confirmation of probationer or a temporary officer arises, the appointing authority has to evaluate his performance before making up his mind. If that is not done, the order will be invalid on the ground of being arbitrary. So the action of evaluation preceding the decision cannot, in any event, be the foundation for the order. It can, in law, only be the motive therefor. 6. In Apar Singh v. State of Punjab, 1970 (3) S.C.C. 338 at 349, the Suprema Court held:- "If the State is able to establish its plea that the enquiry conducted by the two Deputy Directors was only to find out the suitability of the appellant to be continued as Principal and that as he was found unsuitable, he was reverted then the order cannot be considered to be by way of punishment." 7. We are satisfied that the impugned order of termination cannot in law be held to have been passed by way of imposing the punishment of dismissal or removal from service so as to attract regulations 35 to 40 of the Regulations. We are unable to agree with the learned Single Judge that the impugned order is invalid for non-compliance with the procedure prescribed in those regulations. 8. It was urged that a perusal of the Manager's report shows that grave and serious charges of misconduct of various kinds were raised against the respondent. Therefore, the order of termination did, in fact, go to cast a stigma upon the character of the respondent. Firstly, the order of termination is innocuous. It does not refer to any allegations or even to the report of the Manager. Further, the procedure prescribed by the Regulations requires the recording of a report relating to the work of a probationer. Firstly, the order of termination is innocuous. It does not refer to any allegations or even to the report of the Manager. Further, the procedure prescribed by the Regulations requires the recording of a report relating to the work of a probationer. Regulation 10 of the Regulations contained in Chapter III provides that a person placed on probation shall be confirmed if, he fulfils the requirements of Regulation 9, has worked with diligence and has otherwise proved himself fit for the post for which he was recruited and his integrity is certified. Therefore, the authority which is to take a decision whether the probationer should be confirmed, has to satisfy himself in regard to these various factors. In order to appraise the Managing Committee of the work and conduct of the respondent with reference to these prescribed factors the Manager had to prepare a report. Regulation 13 provides that in the case of Principal, confirmation paper shall be prepared by the Manager and placed before the Managing Committee along with his own remarks and the character roll. It goes on to provide that the decision of the Committee of Management shall in each case be recorded in the form of resolution. Under Regulation 14, the resolution of the Managing Committee has to be supplied to the Principal and forwarded to the Inspector. Under Sec. 16-G of the U. P. Intermediate Education Act, the resolution of the Managing Committee docs not take effect until the District Inspector of School accords his approval to it. It is evident that the procedure prescribed by these provisions postulate a written report from the Manager and a resolution of the Managing Committee giving its views, so that the Inspector may apply his mind and came to an appropriate conclusion whether the resolution should be approved or not. In the context of these 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 s stigma upon the Principal. Our attention was invited to the decision in Kashi Agarwal Samaj v. Regional Inspectress of Girls Schools, 1970 A.L.J. 1238. Our attention was invited to the decision in Kashi Agarwal Samaj v. Regional Inspectress of Girls Schools, 1970 A.L.J. 1238. In that case, the order of termination itself mentioned the various reasons which had impelled the Managing Committee to terminate the services of a teacher. It was held that mere communication of a resolution in which reasons are recorded does not amount to casting a stigma on the probationer. We are in agreement with this decision. 9. Learned counsel for the respondent urged that the order of termination was bad for not making the payment of a month's salary simultaneously with the service of the notice of termination. We find that this plea was not taken either in the appeal or even in the grounds taken in the writ petition. If the respondent had taken this plea at the earliest opportunity, the Managing Committee could well have rectified the defect, if any, by passing a fresh order of termination and accompanying it with the requisite salary. We arc hence not inclined to permit learned counsel to take this plea at this late state. 10. In the result, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside and the writ petition is dismissed. But we make no order as to costs.