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2005 DIGILAW 38 (GAU)

Sanchita Saha v. State of Meghalaya

2005-01-18

TINLIANTHANG VAIPHEI

body2005
JUDGMENT T. Vaiphei, J. 1. This writ petition is directed against the order dated 15.12.2001 issued by the respondent No. 5 terminating the services of the petitioner from the post of Assistant Teacher of St. Anthony's Higher Secondary School, Shillong. Heard Mr. S. Chakraborty, the learned Counsel for the petitioner. Also heard Mr. N.D. Chullai, the learned Government Advocate appearing for the State-respondents and Mr. P.D.B. Barua, the learned Counsel appearing for the private respondents. 2. The facts and circumstances of the case, as emerged from the pleadings of the parties, are that in response to the advertisement issued in the newspaper, the petitioner on 28.1.2000 applied for the post of Assistant Teacher in the St. Anthony's Higher Secondary School, was interviewed on 9.2.2000 and was thereafter duly selected for appointment to the said post. Following her appointment she joined the post on probation for a period of two years, which could be extended upto six months and again upto another six months. Her appointment was subsequently approved by the respondent No. 3 with effect from the date of her joining the said post. i.e. 1.3.2000 vide the office order dated 13.4.2000. According to the petitioner, since she joined the post, she was rendering her services with sincerity and diligence and without any blemishes whatsoever and that there was never any complaint against her from any quarters. She states that by the letter dated 5.12.2001 (Annexure-3), she has been informed by the respondent No. 5 that the Managing Committee of the School had decided to terminate her services with effect from 1.1.2002 on the ground that she had failed to show necessary aptitude and diligence in her job. The petitioner further states that the proposed termination of her services was done without obtaining the prior, approval of the respondent Nos. 1, 2 and 3 or any other competent authority of the Government of Meghalaya as required by the provisions of the Meghalaya School Education Act, 1981 (hereinafter referred to as "the Act" for short). She also states that the termination order was made malafide and without issuing any show cause notice to her or without initiating any departmental proceeding against her before, issuing the impugned termination order. Aggrieved, by the same, the petitioner approaching this Court by way of this writ petition. 3. Opposing the writ petition, the respondent Nos. 4 and 5 filed their counter affidavit. Aggrieved, by the same, the petitioner approaching this Court by way of this writ petition. 3. Opposing the writ petition, the respondent Nos. 4 and 5 filed their counter affidavit. In the counter affidavit, the said respondents state that the petitioner was on probation for a period of two years which could be extended for a period of six months and again for another six months and that if the petitioner failed to show necessary aptitude and diligence in her job, her services would be terminated without any notice or without assigning any reason. It is further stated by the said respondents that by the letter dated 20.12.2000, the petitioner was served with a notice regarding her poor performance and was advised to rectify the anomalies and improve herself in discharging her duties within the probation period. It is also pointed out by the said respondents that there was an official complaint about her incompetence in invigilation duty on 22.11.2001, which was communicated to her (Annexure-C). It is also pointed out by the said respondents that Her poor performance was also recorded by the Managing Committee while reviewing the performance of the probationers vide minutes of the meeting of the Managing Committee dated 6.11.2001 (Annexure-E) and dated 13.12.2001 (Annexure-F). The said respondents also state that the termination of the services of the petitioner was duly communicated to the respondent NoT3 for approval. It is also pointed out by the said respondents that one Smt. Mandakini Hazarika, was already .appointed in her place and that having not impleaded Smt. Mandakini Hazarika in the writ petition, who is a necessary party, the writ petition is liable to be dismissed for non-joinder of a necessary party. The said respondents vehemently deny that there was any malafide, arbitrariness or illegality in their action of terminating the petitioner from her service. It is also stated by the said respondents that the Managing Committee of the School in the meeting held on 21.12.2001 decided to grant the petitioner one month's salary, i.e., for the month of January, 2002. It is thus submitted by the said respondents that this petition being devoid of merit is liable to be dismissed with cost. 4. The respondent No. 3 also filed his counter affidavit in which he fully supported the action of the private respondents in terminating the petitioner from her service on the ground of unsatisfactory performance of duty. It is thus submitted by the said respondents that this petition being devoid of merit is liable to be dismissed with cost. 4. The respondent No. 3 also filed his counter affidavit in which he fully supported the action of the private respondents in terminating the petitioner from her service on the ground of unsatisfactory performance of duty. The respondent No. 3 also endorsed the stand taken by the private respondents in their counter affidavit. It is also pointed out by the respondent No. 3 that the resolution No. 2 of the School Management Committee terminating the services of the petitioner was approved by him on 14.12.2001 by the letter at Annexure-2 to the writ petition. The petitioner thereafter filed re-joinder affidavit in reply to the counter affidavits of the private respondents and the respondent No. 3 denying the allegations and contentions made by them therein. 5. From the pleadings of both the parties, the following points emerged for consideration: (a) Whether the impugned order of termination was approved by the respondent No. 3 as required by law? (b) Whether the impugned order of termination, which was issued without showing cause to the petitioner or without holding departmental enquiry, is sustainable in law? 6. There is no dispute at the bar that the appointment of the petitioner to the said post of Assistant Teacher was temporary with a period of probation for two years which may be extended to six months and again for another six months. The terms and conditions of her appointment show that the petitioner being a probationer is liable to be discharged from service during or at the end of period of probation if she fails to give satisfaction or if on any information received relating to her nationality, age, health, character and antecedents, the appointing authority is satisfied that the probationer is ineligible or otherwise unfit for holding the appointment vide Rule 8 of the Amended Assam Aided High and Higher Secondary Employees Rules, 1965 (hereinafter referred to as "the Rules" for short). However, in terms of Section 9(2) of the Act, the prior approval of the competent authority is required for dismissal, removal or reduction in rank or the termination of the services of any employee of a recognized private School. There is no dispute at the bar that the said St. However, in terms of Section 9(2) of the Act, the prior approval of the competent authority is required for dismissal, removal or reduction in rank or the termination of the services of any employee of a recognized private School. There is no dispute at the bar that the said St. Anthony's Higher Secondary School is a private School within the meaning of Section 3(XVIII) of the Act. Therefore, it is obvious that the respondent-School must obtain the prior approval of the competent authority if it proceeds to terminate the services of the petitioner from the School. In other words, the termination of the services of the petitioner cannot become effective, until and unless the approval of the competent authority is obtained, therefore and. as such, the termination will become effective only after obtaining the approval of the competent authority. To my mind, it is not necessary that before issuing the termination notice, the managing committee should invariably obtain the approval of the competent authority. The competent authority in the instant case is admittedly the Inspector of Schools, i.e., the respondent No. 3 herein. 7. It is vehemently submitted by the learned Counsel for the petitioner that the impugned termination order was issued without obtaining the prior approval of the Inspector of Schools and, as such, the same being non-est, is liable to be quashed. The impugned termination order which is at Annexure-3 clearly shows that the Managing Committee of the School decided to terminate the services of the petitioner from the School with effect from 1.1.2002 and paid her one month's salary in lieu of one month's notice as per her appointment letter. In other words, the termination of the services of the petitioner from her post was to take place on a future date and not instantly. Annexure-2 to the counter affidavit of the respondent No. 3 shows that the resolution dated 13.12.2001 of the Managing Committee to terminate the services of the petitioner with effect from 31.12.2001 was approved by the respondent No. 3 on 14.12.2001. This evidently shows that the approval of the respondent No. 3 to the termination of the services of the petitioner was obtained by the Managing Committee before terminating the petitioner from her services. This evidently shows that the approval of the respondent No. 3 to the termination of the services of the petitioner was obtained by the Managing Committee before terminating the petitioner from her services. In that view of the matter, it cannot be said that there was no approval by the respondent No. 3 of the action of the Managing Committee in terminating her services. It is, however, contended by the learned Counsel for the petitioner that when Annexure-H to the writ petition shows that the information regarding this termination of services. of the petitioner was communicated by the Principal of the School to the respondent No. 3 only on 21.12.2001, the respondent No. 3 could not have approved the termination notice on 14.12.2001. She also draws my attention to the contents of the counter affidavit of the respondent No. 4 and 5, wherein there was no whisper of statement by the respondents regarding the communication of the said resolution and of the receipt of the approval of the respondent No. 3 prior to 21.12.2001. I have given my anxious consideration to the submission of the learned Counsel for the petitioner. However, the petitioner has never challenged the genuineness of this document. Consequently, it is hot possible for this Court to conclude that this document is a false or fabricated document after all, there is always presumption of regularity of an official act. It is true that the unusual speed with which the resolution dated 13.12.2001 with a forwarding letter dated 14.12.2001 landed up before the respondent No. 3 on 14.12.2001 and the equally hastiness in according the approval by him on the same day is quite incomprehensible in the ordinary functioning of the Government. But in the absence of proof that the same was a product of fraud, the mere fact that such approval was accorded by the respondent No. 3 with supersonic speed, cannot necessarily persuade me to conclude that there was no approval by him to impugned termination order as mala fide See Bahadursingh Lakhubhai Gohil case and V.K. Khanna case : (2001) 2 SCC 330 . Under the circumstances, I have no alternative but to hold that the approval was given by the respondent No. 3 to the impugned termination order in accordance with law. Therefore, this point is decided against the petitioner. 8. Under the circumstances, I have no alternative but to hold that the approval was given by the respondent No. 3 to the impugned termination order in accordance with law. Therefore, this point is decided against the petitioner. 8. The other contentions of the petitioner are that the impugned termination notice was bad in law inasmuch as there never was any complaint against her and that neither a show cause notice was issued to her nor was a departmental proceeding initiated against her prior to the termination notice. As noticed earlier, the petitioner was appointed to the post of Assistant Teacher by the respondents No. 4 and 5 on the following terms and conditions vide Annexure-'A' to the writ petition: 1. Your appointment is temporary and subject to formal approval of the Inspector of Schools. 2. You will be on probation for a period of two years, and you may apply for confirmation in due time. Your probation period may be extended for a period of six months and again for another six months. If you fail to show necessary aptitude and diligence in your job your service will be terminated without notice and without assigning any reasons. 3. Your appointment is terminable by a month's notice from either side during probation. This management also reserves the right to terminate your services by paying you a month's salary in lieu of a month's notice. 4. You will receive a basic salary as per the scale 5100-140-5940-EB-150-7140-160-8740. 5. You will be entitled to leave and holidays as per rules. 6. You will be governed by the service rules to employees of your rank. And new rules may be enacted from time to time. 7. Your duties will be assigned to you by the Head of the institution. 8. Irregular attendance, habitual negligence of duty, inability to discharge the duties of your rank, drunkenness, and behaviour contrary to good moral tone will invite termination from service. 9. It is thus seen from above that the petitioner must show necessary aptitude and diligence in her job, failing which her service is liable to be terminated without notice and without assigning any reason. It is also clear from the foregoing terms and conditions that habitual negligence, inability to discharge the duties of her rank, among others, will attract termination from service. It is also clear from the foregoing terms and conditions that habitual negligence, inability to discharge the duties of her rank, among others, will attract termination from service. It is worthy of notice that on 20.12.2000, vide the letter at Annexure-"C" to the counter affidavit of the private-respondents, some observations were made by the School in the performance of the petitioner, which are extracted below: 1. That your method of teaching is unsatisfactory; 2. That your ways of teaching and talking is too fast; 3. That you fail to enforce discipline; 4. That your written work is slipshod, careless and lackadaisical which is unbecoming of an English teacher. The petitioner was advised to rectify the above anomalies and improve her method of discharging her duties within the next one year of her probationary period. However, on 22.11.2001 vide the letter at Annexure-'D', the respondent No. 5 was informed of one boy's missing script in a class invigilated by the petitioner. Thereafter, in a meeting of the Managing Committee held on 6.11.2001, a review on the performance of the petitioner, among others, was made and it was observed in her case as follows (vide Annexure-E'): * * * 5. With regard to the performance of Ms. Sanchita Saha, the meeting noted live following: (a) It is found that she cannot enforce discipline in class and often calls for the intervention of the superiors, (b) In connection with the responsibilities that are due of a teacher, like written work to the students, setting of question paper etc. she fails to come up to the mark of a teacher. 10. The matter did not end there. On 13.12.2001, the Managing Committee of the School made a report on the conduct of the petitioner vide Annexure-'F', and the same is extracted below: * * * 2. The Secretary informed the MC that Ms Saha fails to show necessary aptitude and diligence in her job. She is still under probationary period and was issued a warning letter in December, 2000. The Managing Committee decided to terminate the services of Ms. Sanchita Saha as it is not satisfied with her performance with effect from 31.12.2001. * * * Pursuant to the said report that the Managing Committee passed the resolution on 21.1.2.2001 vide Annexure-'G', which is reproduced hereunder: Resolution The Managing Committee of St. The Managing Committee decided to terminate the services of Ms. Sanchita Saha as it is not satisfied with her performance with effect from 31.12.2001. * * * Pursuant to the said report that the Managing Committee passed the resolution on 21.1.2.2001 vide Annexure-'G', which is reproduced hereunder: Resolution The Managing Committee of St. Anthony's Higher Secondary School, Shillong in its resolution No. 2001/A/1/b dated 13.12.2001 has decided to terminate the services of Ms. Sanchita Saha. Assistant Teacher with effect from 31.12.2001. In view of her termination note issued on 15th December, 2001, the Management has also decided to grant her the salary for the month of January, 2002, which she will have to come and claim from the School Office. The Managing Committee shall advertise the post by the 20th January, 2002, and a fresh candidate shall be appointed with effect from 1st February, 2002. Sd/- Headmaster-cum-Secretary St. Anthony's Higher Secondary School, Shillong. 11. The aforesaid resolution appears to be the death-knell for the petitioner. The rest of the story has been highlighted earlier, which need not be repeated now. The petitioner in her reply-affidavit has, however, denied the observations on her performance adversely made against her in Annexure-'C', 'D' and 'E'. Since the petitioner cannot claim the protection of Article 311(2) of the Constitution, even assuming without admitting that the termination order/notice in substance is stigmatic or punitive, whether she has, in terms of her appointment order, the right to demand show cause notice or departmental/disciplinary enquiry against her before terminating her services? At this stage, it may be pointed out that the Apex Court in Dr. Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.) and Ors. : held that the term "civil post" referred to in Article 311 of the Constitution of India comprehends persons employed in civil capacities under Union pf India or a State and that mere payment of salary from the State fund or certain control by the State over the post is not determinative. Accordingly, it held that the Post Graduate Institute of Medical Education and Research, Chandigarh (PGIMER) is an entity separate from a State and that the employees of PGIMER are not holders of civil posts under the State so as to entitle to protection under Article 311. Accordingly, it held that the Post Graduate Institute of Medical Education and Research, Chandigarh (PGIMER) is an entity separate from a State and that the employees of PGIMER are not holders of civil posts under the State so as to entitle to protection under Article 311. It further held that Article 311 cannot be automatically invited in all instances where a person is given an opportunity of hearing since only persons who are holding "civil posts" can claim the protection provided under Article 311. It is never the case of the petitioner that she was holding any of the aforesaid posts. Therefore, a probationer belonging to the aforesaid service or holding a civil post under the Union of India or a State is entitled to a reasonable opportunity of hearing prior to termination of her service if the termination order is punitive or stigmatic. But a probationer like the petitioner holding none of the aforesaid posts and was an employee of a private School like the St. Anthony's Higher Secondary School cannot claim reasonable opportunity of hearing prior to termination of her services even if the termination order is punitive or stigmatic. 12. The next question to be determined then is whether the petitioner is entitled to the protection of Articles 14 and 16 of the Constitution of India. The scope or the nature and reach of Article 14 and 16 has been succinctly explained by Justice P.N. Bhagwati when he states that Articles 14 and 16strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid principles applicable alike to all similarly situated persons and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Article 14 ensures equality before law and strikes at arbitrariness and discriminatory State action. Arbitrariness is the sworn enemy of the rule of law. It has now been firmly settled that the principles of natural justice is an integral part of the guarantee of equality assured by Article 14. Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Whenever there is arbitrariness in State action--whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 and 21 spring into action land strikes down such an action. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Therefore, the provision of the statute, the regulation or the rule which empowers an employer to terminate the Services of an employee whose, service is of an indefinite period till he Attains the age of superannuation, by serving a notice or pay in lieu thereof must be conformable to the mandates of Articles 14, 19(1)(g) and 21--See Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1990 (61) FLR 768 (SC). 13. This much is crystal clear. Fairness in action or the requirement to observe the principles of natural justice, which necessarily includes the right of hearings or the right to notice prior to punitive action or action having civil consequences can be pressed into service against the action or decision of public authorities referred to in Article 12 of the Constitution. The question then is whether the St. Anthony's Higher Secondary School can be regarded as one of the institutions within the meaning of "other authorities" of Article 12 of the Constitution. No materials are available, in the instant case to decide as to whether the School in question will fall within, the authorities contemplated under Article12. Nor is any pleading made by the petitioner to that effect. In the absence of such materials or pleadings, it is not possible to hold that the concerned School is an "authority" within the meaning of Article 12. Needless to say, if the concerned School were to be held as an "authority", the consequence, which follows, will be that in all its actions, it must be governed by Article 14 and that it cannot afford to act with arbitrariness or capriciousness, or violate principles of natural justice. Needless to say, if the concerned School were to be held as an "authority", the consequence, which follows, will be that in all its actions, it must be governed by Article 14 and that it cannot afford to act with arbitrariness or capriciousness, or violate principles of natural justice. A half-hearted attempt has been made by the petitioner to show that the School has the trapping of the "State" by staling in paragraph No. 2 of the writ petition that the respondent No. 4 is a recognized private School of Shillong which receives deficit grant in-aid from the Government of Meghalaya and enjoys all other benefits and advantages being provided by the Government of Meghalaya...." One of the tests laid down by the Apex Court in Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. : (1981) 1 SCC 722 , for determining if a body is an instrumentality or agency of the State is whether the State exercise deep and pervasive control over the body. The pleadings made by the petitioner in this writ petition are not sufficient to hold that the Slate exercises pervasive control over the School, much less, to determine that the School is an instrumentality of the State. 14. Once it cannot be held, on the materials available on record, that the St. Anthony's Higher Secondary School is an "authority" within the meaning of Article 12 of the Constitution, it follows that Article 14 and 16 of the Constitution cannot be invoked by the petitioner. The inevitable outcome of this finding is that the procedure for terminating the petitioner from the service of the respondent No. 4 shall be regulated by the terms and conditions of her appointment. Consequently, the concept of termination simpliciter or punitive or non-arbitrariness applicable to an employee protected by Articles 311(2) or Articles 14 and 16 of the Constitution cannot be pressed into service in the instant case. Consequently, the concept of termination simpliciter or punitive or non-arbitrariness applicable to an employee protected by Articles 311(2) or Articles 14 and 16 of the Constitution cannot be pressed into service in the instant case. As noticed earlier, in terms of the appointment order, the petitioner was appointed on probation for a period of 2 years, which period may be extended initially by six months arid thereafter for another six months and that within that period of probation, if she did not show necessary aptitude and diligence or was found to be irregular in attendance, habitual negligence in duty, inability to discharge the duties of her rank etc., her service would be terminated without notice and without assigning any reasons. The aforesaid terms and conditions of the appointment of the petitioner undoubtedly show that her employment under the School is a contractual appointment. Therefore, if the contract gives a power to the School to terminate the services of the petitioner, on her violation of the terms and conditions of her appointment, without assigning reasons and by giving a notice or salary in lieu thereof, the School is certainly entitled to adopt that course. The respondents did not find the petitioner to be fit enough for retention in their School. On the available facts and circumstances of the case, there is no material to show that the termination of the services of the petitioner was in violation of or contrary to the terms and conditions of her appointment. In that view of the matter, I do not find any ground for interference with the impugned notice/order of termination of the services of the petitioner. 15. For the reasons stated in the foregoing, this writ petition is devoid of merits and is liable to be dismissed, which I hereby do. However, on the facts and circumstances of the case, the parties are directed to bear their own cost. Petition dismissed.