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2026 DIGILAW 62 (RAJ)

Jain Shiksha Samiti v. Madhu Sudan Sharma S/o Shri Kunji Lal Sharma

2026-01-22

ANAND SHARMA

body2026
ORDER : 1. This writ petition has been filed by the petitioner, feeling aggrieved by judgment dated 23.11.2002 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur whereby termination order dated 11.03.2000 passed by the petitioner-Institution for terminating services of respondent No.1 has been quashed and set aside with relief of reinstatement along with all consequential benefits. 2. Brief facts of the case are that the respondent No.1 was appointed on 09.02.1994 as Teacher in Jain Higher Secondary School, Tijara, which was being run by Jain Shiksha Samiti, Tijara. Earlier, when probation period of the respondent No.1 was extended by the Management Committee of the Institution, he preferred applications before the Non-Government Educational Institution Tribunal, which were allowed vide order dated 30.07.1999 directing for confirmation of respondent No.1 under Rule 31 of the Rajasthan Non-Government Educational Institution Rules, 1993 (hereinafter to be referred as 'the Rules of 1993') and also directed for making payment of annual grade increment and DA. 3. Thereafter, an order dated 11.03.2000 was issued by the Chairman of petitioner-Samiti, terminating the services of the respondent No.1 in exercise of proviso III Rule 39(2)(h) of the Rules of 1993 after taking approval from District Education Officer, Secondary School, Alwar. Termination order dated 11.03.2000 was challenged by respondent No.1 by way of filing Appeal No.28/2000 before the Tribunal on the ground that after appointment, the respondent No.1 had rendered satisfactory services for which certificates were also issued in his favour by the competent authority. However, by levelling incorrect allegations, in quite mala fide manner, earlier his probation period was extended, which was challenged by him before the Tribunal and the Tribunal directed the respondent No.1 to confirm him in service and to grant other service benefits to him. 4. It was stated in the appeal that on 22.09.1999, the respondent No.1 received one questionnaire issued by the Principal of the School, which was followed by another similar letter dated 15.01.2000 issued by the Additional District Education Officer, Alwar. 4. It was stated in the appeal that on 22.09.1999, the respondent No.1 received one questionnaire issued by the Principal of the School, which was followed by another similar letter dated 15.01.2000 issued by the Additional District Education Officer, Alwar. Respondent No.1 stated that although there were directions of granting annual grade increments and other benefits after confirmation in the services of the petitioner, however, same was not complied with by the petitioner-Institution, therefore, respondent No.1 submitted representations and only on account of the fact that the petitioner/respondent No.1 had agitated his grievance before the competent forum, his services were discontinued and on 13.03.2000 when he reported in school, he was not allowed to put his signature in attendance register and upon inquiry was informed that his services have been terminated and termination letter has been sent through post. 5. It has further stated in memo of appeal that when the respondent No.1 received an envelope, after opening the same, he found the termination letter dated 11.03.2000 in the envelope mentioning therein that his services have been terminated in exercise of powers under proviso III to Rule 39(2)(h) of the Rules of 1993 after taking due approval. Although, it was also mentioned in the termination letter dated 11.03.2000 that as per proviso III, six months advance salary has been paid and a reference of cheque was also given in the termination letter but the respondent No.1 did not receive any such cheque, therefore, he wrote one letter dated 14.03.2000 to the petitioner-Institution mentioning therein that the cheque referred in the termination letter dated 11.03.2000 had not been received by him. Under these circumstances, respondent No.1 filed appeal on the ground that the order was malicious in nature and services of the respondent No.1 were terminated without giving any show cause notice or without conducting any inquiry whatsoever. Under these circumstances, respondent No.1 filed appeal on the ground that the order was malicious in nature and services of the respondent No.1 were terminated without giving any show cause notice or without conducting any inquiry whatsoever. Even, there was no compliance of Section 18 of the Rajasthan Non- Government Educational Institutions Act, 1989, where there was a mandate to obtain approval of the Director Education Department as well as to give notice of six months of salary in lieu thereof, yet petitioner was neither served with any notice of six months, nor was paid salary in lieu thereof, hence, for non-compliance of the mandatory provision, the order was illegal therefore, respondent No.1 prayed for quashing of the order dated 11.03.2000 with further relief of reinstatement along with all consequential benefits. 6. Reply to the appeal was filed by the respondents, wherein it was submitted that due process was followed by the petitioner before terminating services of respondent No.1. It was emphasized that cheque of Rs.22,752 was enclosed with termination letter dated 11.03.2000. When the petitioner wrote a letter by mentioning an incorrect fact that the cheque was not received by him, it was clarified by the respondents by writing a letter dated 24.03.2000 in counter to reiterate that the cheque had already been sent along with letter dated 11.03.2000. It was also submitted in the reply to the appeal by the petitioner that prior to terminating services of respondent No.1, a unanimous resolution was taken by the Management Committee of petitioner, where on account of consistent indiscipline of the respondent No.1, it was not feasible, in the larger interest, to continue the services of respondent No.1. Hence, the Management Committee recommended for terminating services of respondent No.1 in exercise of powers under proviso III to Rule 39(2)(h) of the Rules of 1993. Thereupon, the approval of District Education Officer, Secondary Education, Alwar was also obtained and thus, after following the process, services of the respondent No.1 were terminated vide termination letter/order dated 11.03.2000. Hence, the petitioner prayed for dismissing the appeal filed by respondent No.1. 7. Thereafter, the appeal filed by respondent No.1 was decided by the Tribunal vide order dated 23.11.2002, whereby the appeal filed by respondent No.1 has been allowed and termination order/letter dated 11.03.2000, has been quashed with further direction to reinstate him back in service along with all consequential benefits. 8. 7. Thereafter, the appeal filed by respondent No.1 was decided by the Tribunal vide order dated 23.11.2002, whereby the appeal filed by respondent No.1 has been allowed and termination order/letter dated 11.03.2000, has been quashed with further direction to reinstate him back in service along with all consequential benefits. 8. Learned counsel for the petitioner submits that learned Tribunal has passed order/judgment dated 23.11.2002 in total ignorance of the facts of the case, material on record, and law prevailing at the relevant time. Learned counsel submits that the Tribunal has travelled under erroneous assumptions as if it was a case, where services of respondent No.1 were terminated after conducting departmental inquiry for misconduct, whereas the case of respondent No.1 falls within the purview of Rule 39(2)(h) of the Rules of 1993, which has got no relation with regard to disciplinary action and where services of an employee can be terminated in the interest of the institution after making the compliance enshrined therein. Learned counsel also submits that the entire findings given by the Tribunal rest upon violation of principles of natural justice and not following the procedure of inquiry, which is nothing but misreading the record as well as the termination order dated 11.03.2000, and the appeal has been allowed on totally misconceived grounds. On the basis of aforesaid submissions, learned counsel for the petitioner prayed for quashing the judgment dated 23.11.2002, and to dismiss the appeal filed by respondent No.1 before the Tribunal. 9. Per contra, learned counsel for respondent No.1 opposed the writ petition and submitted that there is no substantial irregularity or material illegality in judgment dated 23.11.2002, nor is there any jurisdictional error in the judgment passed by the Tribunal. Learned counsel submits that learned Tribunal has examined the order of termination dated 11.03.2000 at the touchstone of provision of Rule 39(2)(h) of the Rules of 1993, and has given a categorical finding that the petitioner utterly failed to make compliance of provision with regard to giving six months' notice or salary in lieu thereof, therefore, order dated 11.03.2000 has been found illegal and on account of non- compliance of mandatory provisions of Section 18 and the Rules of 1993, the order was quashed, in which there is no manifest error, therefore, learned counsel for respondent No.1 prayed for dismissing the writ petition. 10. 10. Learned counsel for respondent No.1 also relied upon the judgment of Hon'ble Supreme Court in the case of Gajanand Sharma Vs. Adarsh Siksha Parisad Samiti & Ors. passed in Civil Appeal Nos. 100-101 of 2023 decided on 19.01.2023 and judgment dated 08.04.2025 passed by the Co-ordinate Bench of this Court in a batch of writ petitions led by S.B. Civil Writ Petition No. 3668/2017 (Managing Committee, D.A.V. Vs. Saurabh Upadhayaya & Anr.) 11. Heard learned counsel for the parties and perused the record. 12. It is not in dispute that the respondent No.1 was appointed as teacher earlier on probation, yet learned Tribunal vide its order dated 30.07.1999 directed the petitioner to confirm the services of respondent No.1 as well as to grant him consequential benefits of annual grade increment and D.A. Thus, it can be said that respondent No.1 was substantively holding the post of teacher in the institution run by petitioner-Samiti. The dispute has arisen on issuance of termination order dated 11.03.2000 issued by the Chairman of Jain Siksha Samiti, Tijara, which reflects that services of respondent No.1 have been terminated in exercise of powers under proviso III to Rule 39(2) (h) of the Rules of 1993, after giving six months advance salary as well as obtaining approval of District Education Officer. 13. Respondent No.1 has denied receipt of any cheque with regard to six months advance salary as referred to in the termination letter dated 11.03.2000 and by way of writing a letter dated 14.03.2000, he had communicated this fact to the petitioner also that respondent No.1 did not receive any cheque along with the termination order. The fact of receiving letter dated 14.03.2000 has also been admitted by the petitioner, however, the petitioner tried to justify that by way of giving reply to such letter issued by respondent No.1, it was clarified that the cheque was in fact issued to respondent No.1. This Court also examined judgment dated 23.11.2002, where although there is reference of some discrepancies on account of not conducting any departmental inquiry in accordance with the procedure, yet this Court cannot overlook the fact that the issue with regard to compliance of Rule 39 specifically on the point of payment of six months' salary has been meticulously examined by the Tribunal. 14. 14. It is settled proposition of law that each and every error would not make order of the Tribunal vulnerable to judicial review and there should be manifest jurisdictional error or apparent illegality, which may cause serious prejudice and miscarriage of justice to petitioner, then only can it attract the writ jurisdiction under Article 226 and 227 of the Constitution of India. 15. Learned Tribunal after examining the facts and material on record has come to the conclusion that no concrete evidence was placed by the petitioner before Tribunal so as to establish that either six months' notice or salary in lieu thereof was given to respondent No.1 in his termination vide order dated 11.03.2000. 16. It is an undisputed fact that the petitioner has never asserted that six months' notice was given by the petitioner to respondent No.1 prior to issuance of termination order dated 11.03.2000 rather case of the petitioner is that cheque of six months' salary was tendered by the petitioner along with termination letter dated 11.03.2000. At this stage, it would be relevant to refer the provision of Rule 39(2)(h) of the Rules of 1993, which is being reproduced as under:- " 39. Removal or Dismissal from Service: (2) An employee, other than the employee referred to in sub-rule (1), may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. Removal or Dismissal from Service: (2) An employee, other than the employee referred to in sub-rule (1), may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. But the following procedure shall be adopted for the removal or dismissal of an employee ; (h) On receipt of the approval as mentioned in sub-clause (g) above, the managing committee may issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned and also to the Director of Education or the officer authorised by him in this behalf : Provided that the provisions of this rule shall not apply- (i) to an employee who is removed or dismissed on the ground of conduct which led to his conviction on a criminal charge, or (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of the 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 an 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." 17. Bare perusal of the aforesaid Rule would make it clear that in case, the Management Committee invokes the above provision for terminating services of any employee in exercise of powers under proviso III to Rule 39(2)(h) of the Rules of 1993, then burden of proof to show compliance of the provisions solely rests upon the shoulders of the Management Committee. In the instant case, it has not been disputed by the Management Committee that soon after receiving termination order dated 11.03.2000, the petitioner had pointed out by sending a letter that the alleged cheque was never received by him. Under these circumstances, it was all the more necessary for the Management Committee to place categorical evidence in this regard before the Tribunal. 18. Although, it has been argued by learned counsel for the petitioner that cheque is also a valid negotiable instrument and is acceptable mode of payment. Under these circumstances, it was all the more necessary for the Management Committee to place categorical evidence in this regard before the Tribunal. 18. Although, it has been argued by learned counsel for the petitioner that cheque is also a valid negotiable instrument and is acceptable mode of payment. Burden placed upon the Management under proviso III to Rule 39(2)(h) stands discharged at the moment when cheque is issued in favour of the employee. Merely, by raising an unfounded dispute with regard to not receiving the cheque, respondent No.1 cannot be allowed to create a ground, which is not otherwise available to him. This Court finds that such argument is of no help to the petitioner and the petitioner is having bounden duty to follow the procedure contemplated in the aforesaid Rule in its letter and spirit. 19. This Court finds that requirement of six months' salary before termination is couched in mandatory terms and operates as a condition precedent to the exercise of power of termination. The deliberate use of the expression 'termination after giving six months' notice or salary in lieu thereof', unmistakably reflects the intent of Rule making Authority that the provision should be construed strictly. Above provision is a substantive safeguard designed to afford effective and meaningful protection to the employee. Compliance thereof must be real, complete and not illusory. A bald assertion by the Management that the cheque was tendered along with the termination order, an assertion specifically denied by the employee, cannot discharge the statutory burden cast upon the employer. The onus completely lies on the Management to establish actual payment by cogent and conclusive evidence, such as bank statements, passbook entries, or other reliable financial records. In this context, a clear distinction must be maintained between the assertion of tendering and the act of effectually giving it; whereas the Rules mandate the latter, the former is legally insufficient. This protection is neither ornamental nor a matter of empty formality and any dilution thereof would defeat the very object of the Rule. Consequently, non-compliance with this mandatory requirement vitiates the termination ab-initio and renders the impugned order illegal and in direct violation of Rule 39. 20. This protection is neither ornamental nor a matter of empty formality and any dilution thereof would defeat the very object of the Rule. Consequently, non-compliance with this mandatory requirement vitiates the termination ab-initio and renders the impugned order illegal and in direct violation of Rule 39. 20. In the case of Gajanand Sharma (supra) , the Hon'ble Supreme Court was considering the provisions of Section 18 of the Act of 1989, which are analogous to the provisions of Rule 39 of the Rules of 1993, and rather gives more strength to the Rule being statutory provision under the act. After examining the provisions of Section 18 of the Act of 1989, the Hon'ble Supreme Court has held that compliance of Section 18 is mandatory before terminating services of any employee. 21. In the case of Managing Committee, D.A.V. (supra), the Co-ordinate Bench of this Court has held as under:- "31. Applying the above propositions of law, as laid down in the above noted judgments, it can safely be concluded that in the case of termination of service of both the regular and temporary employee of a recognised educational institution, the provisions contained under Section 18(iii) is required to be followed. Their services cannot be terminated without giving six months' notice or at least six months' salary. 32. The whole purpose behind enactment of the Act of 1989 and Rules of 1993 and the provisions made therein i.e. Section 18 and Rule 39 is to check arbitrary action on the part of the unscrupulous management of the educational institutions. The Act of 1989 and the Rules of 1993 made thereunder are social legislation enacted to ameliorate and improve educational system. Intention of the Act and the Rules formed thereunder, is to check the various malpractices and mischiefs committed by the mighty management to exploit its employees whether appointed on regular or temporary basis. The language contained under Section 18 and Rule 39 is clear and specific and it requires no other interpretation. These provisions are available to all employees, whether he/she is appointed on regular or temporary basis. 34. In the instant matters, the respondent- employees were neither given six months notice nor salary in lieu thereof and without following the mandate contained under Section 18(iii) of the Act of 1989, the services were terminated. The service of the respondents were terminated by the petitioner in any arbitrary manner. 34. In the instant matters, the respondent- employees were neither given six months notice nor salary in lieu thereof and without following the mandate contained under Section 18(iii) of the Act of 1989, the services were terminated. The service of the respondents were terminated by the petitioner in any arbitrary manner. The same was found to be illegal by the Tribunal by passing a reasoned and speaking order which requires no interference of this Court." 22. In the light of foregoing discussions as well as in view of the judgments referred hereinabove, after analysing the entire record, this Court finds no error in the judgment dated 23.11.2002 passed by the Tribunal and therefore, there is no scope of interference in the instant writ petition, which is devoid of any merit and substance and deserves to be dismissed. 23. Writ petition stands dismissed accordingly. 24. Consequently, the petitioner is directed to make compliance of judgment dated 23.11.2002 within a period of two months from the date of receipt of a certified copy of this judgment.