Neel Kamal Mishra v. The Technological Institute of Textiles and Science and Another

INoTHEoHI HoC!"#To!$oP"N%&'o&N(oH&#)&N&o &ToCH&N(I &#Ho CWP-26578-2019 #e*er+e,oon:o23.02.2023 (ateoo-o,e.i*ion:o03.05.2023 NEE/oti&1&/o1I2H#& ...Petitioner 3E#2"2 THEoTECHN!/! IC&/oIN2TIT"TEo!$oTE4TI/E2o&N(o2CIENCE &N(o&N!THE#oo ...#e*5on,ent* C!#&1: H!N6'/Eo12.o%"2TICEo%&I2H#EEoTH&0"# Present:- Mr. Sandeep Kumar Goyat, Advocate for the petitioner. Mr. Kshitij Sharma, Advocate for the respondent No.1. **** %&I2H#EEoTH&0"#7o%.

¶1This is a petition that has been filed under Articles 226/227 of the Constitution of India, seeking issuance of a writ in the nature of certiorari for quashing judgment dated 19.08.2019 (Annexure P-9) passed by the District and Sessions Judge-cum-Educational Tribunal, Bhiwani, whereby the appeal filed by the petitioner against his termination order dated 06.07.2018 (Annexure P-5) has been dismissed and further for issuance of a writ in the nature of mandamus directing the respondent No.1-Institute to reinstate the petitioner with continuity of service along with back wages and other benefits.

¶2In brief, the facts as culled out are that the respondent No.1-Institute issued advertisement for the posts of Assistant Professor and Lecturer in the year 2004 for various subjects including Environment Science and Bio-Technology. Being fully eligible, the petitioner applied for the post of Lecturer, Environment Science and Bio-Technology and was called for written test/personal interview before the Selection Board on 27.06.2004. The petitioner appeared before the Selection Board on the said date and was selected for the post of Lecturer, Environment Science and Bio-Technology. He was issued appointment letter dated 16.08.2004 (Annexure P-2). The respondent-Institute sent approval of appointment of the petitioner after completion of his probation period to Maharshi Dayanand University, Rohtak and the Dean, Colleges Dev. Council approved the appointment of the petitioner on regular basis as Lecturer with effect from 16.08.2004 vide Annexure P-3. Thereafter, on the recommendation of the Screening Committee, the petitioner was placed in the senior scale of 10000-325-15200 with effect from 01.09.2008 and was given several extra-curricular activities. He was also issued various certificates and appreciation letters and was accordingly promoted as Assistant Professor. After availing the services of the petitioner for more than 14 years, the respondent-Institute terminated the services of the petitioner vide order dated 06.07.2018 (Annexure P-5) on the ground that there is no workload in the subject of Environment Science and Bio-Technology as per the new syllabus of B.Tech courses as prescribed by the AICTE. The respondents also issued a cheque of Rs.2,39,838/- as three months' notice pay in lieu of notice. Against the said order of termination, the petitioner herein filed an appeal before the District and Sessions Judge, Bhiwani (exercising the powers of Educational Tribunal, Bhiwani) which was dismissed vide judgment dated 19.08.2019 (Annexure P-9). Hence, the instant writ petition.

¶3Learned counsel appearing on behalf of the petitioner would contend that the services of the petitioner herein have been terminated without any notice and opportunity of hearing, which is against the provisions of the Haryana Affiliated Colleges (Security of Service) Act, 1979 and also against the rules of AICTE. He would submit that as per Section 7(2) of the Haryana Affiliated Colleges (Security of Service) Act, 1979, the penalty of dismissal or removal from service or reduction in rank shall not be imposed unless the same is approved by the Director and in the instant case, the same has not been done by the respondent-Institute. He would further submit that the word termination used in the impugned termination order is defamatory and used intentionally with mala fide intention, which would affect the future of the petitioner and nowhere in the termination order is it mentioned that the services of the petitioner are being dispensed with by way of retrenchment. The subject of Environmental Sciences was made a compulsory subject vide UGC letter dated

07.08.2014 and MDU letter dated 02.11.2016. It is argued that after terminating the services of the petitioner, the respondent-Institute engaged two more faculty members for the same subject, which the petitioner was teaching, as per the information received under the RTI Act. He would further argue that the respondent-Institute has not transferred three months' salary in the account of the petitioner and moreover, no benefit of GPF, Gratuity etc. has been given till date. He would rely upon a judgment rendered by the Supreme Court in LaloBahaduroGautamoversusoStateoofoU.P.oandoothers,o2019o(3)oSC o!1, wherein the petitioner therein was held entitled for reinstatement as the respondent-College was affiliated to the University and the termination order was held illegal as no prior approval from higher authorities was obtained.

¶4Per contra, learned counsel appearing on behalf of respondent No.1-Institute would contend that respondent No.1-Institute is not an aided institute but is a self-financed institute. The post on which the petitioner was working was surplus and by invoking conditions No.3 and 7 of the appointment letter, the services of the petitioner were terminated on payment of three months' salary in lieu of three months' notice. It is submitted that the petitioner is governed by rules/regulations of the TITS Service and Conduct Rules. In terms of the said Rules, termination of an engagement of a confirmed employee can be done with a three months' notice and based on this, respondent-Institute has a right to terminate the services of the petitioner. It is further submitted that the services of the petitioner were dispensed with as per the terms and conditions of the appointment letter on paying three months' notice pay amounting to Rs.2,39,838/-. His services have not been terminated stigmatically or by levelling any allegations. Hence, the issue of issuing a charge-sheet and conducting inquiry, does not arise and in fact his services were terminated by way of retrenchment being surplus. He would contend that the Educational Tribunal, Bhiwani has also not committed any error of law and has rightly dismissed the appeal of the petitioner after taking note of all the aspects. He would rely upon a judgment rendered by the Supreme Court in St.o"ar#$s %du&at'onoSo&'et#oversuso(a)endraoPrasadoBhar*ava,o2022o(!)oSC o9!, wherein the writ petition raising service dispute was held to be not maintainable against the private aided minority Institute.

¶5I have heard learned counsel for the parties, and with their able assistance, have gone through the pleadings of the case as well as case laws cited.

¶6The respondent-Institute is an unaided self-financed Institute and is governed by the rules/regulations of the TITS Service and Conduct Rules. These rules are called the TITS College Service and Conduct Rules, which are framed on the basis of rules governing the conditions of service and conduct described by Maharshi Dayanand University, Rohtak for teaching and non-teaching employees of non-government colleges affiliated to the University. The appointment letter that was issued to the petitioner herein clearly specified that the petitioner would be on probation for a period of two years and that the agreement during this period could be terminated without assigning any reason from either side by giving one month notice in writing during the period of probation or on payment of one month's salary in lieu thereof. After confirmation, the notice period required on either side shall be three months or three months' salary in lieu thereof. This clause is in consonance with Rule 25 of TITS Service and Conduct Rules. The services of the petitioner were dispensed with on account of new syllabus as prescribed by AICTE, where there was no workload for the subject of Environment Sciences and Biotechnology. The post on which the petitioner was working became surplus and his services were terminated with immediate effect and in view of three months' notice, three months' salary was paid to him. The impugned order dated 06.07.2018 is not stigmatic in nature, as it is a simplicitor order stating that there was no workload for the petitioner in the subject he was teaching.

¶7However, before going into any of the contentions raised by the petitioner, would the present writ petition be maintainable in the light of the fact that the Supreme Court in its latest judgment has held that a writ petition raising service disputes against private educational institutions is not maintainable if they are not governed or controlled by the statutory provisions?oReference in this regard may be made to the judgment rendered in oSt.o"ar#$so%du&at'onoSo&'et#$ooso&aseoo (su+raoo)o, in which case one of the two questions framed was "Whetheroaoserviceodisputeoinotheoprivateorealmoinvolving aoprivateoeducationaloinstitutionoandoitsoemployeeocanobeoadjudicatedoinoaowrit petitionofiledounderoArticleo226oofotheoConstitution o!nootherowords,oevenoifoa bodyoperformingopublicodutyoisoamenableotoowritojurisdiction,oareoalloits decisionsosubjectotoojudicialoreviewooroonlyothoseodecisionsowhichohaveopublic elementothereinocanobeojudiciallyoreviewedounderotheowritojurisdiction "oThe appellant-Institute was an unaided Private Educational Minority Institute and the services of the respondent were terminated after issuance of a show cause notice a charge-sheet and holding a departmental inquiry. Appeal filed was ordered to be dismissed by the Disciplinary Committee, which was challenged in proceedings under Article 226 of the Constitution of India. The writ was dismissed by holding that writ was not maintainable as against a Private Aided Institute. However, the said judgment was set aside by the Division Bench. Thereafter, the Institute approached the Supreme Court. The Supreme Court discussedotheocaseolawoasocitedoonotheoquestionoofomaintainabilityoofotheowrit petitionoandoconcludedoasounder:-oooooooooo"68.oWeomayosumoupoourofinaloconclusionsoasounder:-

(a)oAnoapplicationounderoArticleo226oofotheoConstitutionois maintainableoagainstoaopersonooroaobodyodischargingopublic dutiesooropublicofunctions.oTheopublicodutyocastomayobe eitherostatutoryoorootherwiseoandowhereoitoisootherwise,othe bodyoorotheopersonomustobeoshownotoooweothatodutyoor obligationotootheopublicoinvolvingotheopublicolawoelement. Similarly,oforoascertainingotheodischargeoofopublicofunction, itomustobeoestablishedothatotheobodyoorotheopersonowas seekingotooachieveotheosameoforotheocollectiveobenefitoofothe publicooroaosectionoofoitoandotheoauthorityotoodoosoomustobe acceptedobyotheopublic.

(b)oEvenoifoitobeoassumedothatoanoeducationaloinstitutionois impartingopublicoduty,otheoactocomplainedoofomustohaveoa direct o nexus o with o the o discharge o of o public o duty. o It o is indisputablyoaopublicolawoactionowhichoconfersoaorightoupon theoaggrievedotooinvokeotheoextraordinaryowritojurisdiction underoArticleo226oforoaoprerogativeowrit.oIndividualowrongs orobreachoofomutualocontractsowithoutohavingoanyopublic elementoasoitsointegralopartocannotobeorectifiedothroughoa writopetitionounderoArticleo226.oWhereveroCourtsohave intervenedoinotheiroexerciseoofojurisdictionounderoArticleo226, eitherotheoserviceoconditionsowereoregulatedobyotheostatutory provisionsoorotheoemployerohadotheostatusoofo"State"owithin theoexpansiveodefinitionounderoArticleo12ooroitowasofound thatotheoactionocomplainedoofohasopublicolawoelement.

(c)oItomustobeoconsequentlyoheldothatowhileoaobodyomayobe dischargingoaopublicofunctionooroperformingoaopublicoduty andothusoitsoactionsobecomingoamenableotoojudicialoreview byoaoConstitutionaloCourt,oitsoemployeesowouldonotohaveothe rightotooinvokeotheopowersoofotheoHighoCourtoconferredoby Articleo226oinorespectoofomatterorelatingotooserviceowhere they o are o not o governed o or o controlled o by o the o statutory provisions.oAnoeducationaloinstitutionomayoperformomyriad functionsotouchingovariousofacetsoofopublicolifeoandoinothe societalosphere.oWhileosuchoofothoseofunctionsoasowouldofall withinotheodomainoofoao"publicofunction"ooro"publicoduty"obe undisputedlyoopenotoochallengeoandoscrutinyounderoArticle 226oofotheoConstitution,otheoactionsoorodecisionsotakenosolely withinotheoconfinesoofoanoordinaryocontractoofoservice, havingonoostatutoryoforceoorobacking,ocannotobeorecognised asobeingoamenableotoochallengeounderoArticleo226oofothe Constitution.oInotheoabsenceoofotheoserviceoconditionsobeing controlledoorogovernedobyostatutoryoprovisions,otheomatter wouldoremainoinotheorealmoofoanoordinaryocontractoof service.

(d)oEvenoifoitobeoperceivedothatoimpartingoeducationoby privateounaidedotheoschooloisoaopublicodutyowithinothe expandedoexpressionoofotheoterm,oanoemployeeoofoaonon-teachingostaffoengagedobyotheoschooloforotheopurposeoofoits administrationoorointernalomanagementoisoonlyoanoagency createdobyoit.oItoisoimmaterialowhethero"A"ooro"B"ois employedobyoschoolotoodischargeothatoduty.oInoanyocase,othe termsoofoemploymentoofocontractobetweenoaoschooloandonon-teachingostaffocannotoandoshouldonotobeoconstruedotoobeoan inseparableopartoofotheoobligationotooimpartoeducation.oThis isoparticularlyoinorespectotootheodisciplinaryoproceedingsothat mayobeoinitiatedoagainstoaoparticularoemployee.oItoisoonly whereotheoremovaloofoanoemployeeoofonon-teachingostaffois regulatedobyosomeostatutoryoprovisions,oitsoviolationobyothe employeroinocontraventionoofolawomayobeointerferedobyothe court.oButosuchointerferenceowillobeoonotheogroundoofobreach ofolawoandonotoonotheobasisoofointerferenceoinodischargeoof publicoduty.

(e)oFromotheopleadingsoinotheooriginalowritopetition,oitois apparentothatonooelementoofoanyopublicolawoisoagitatedoor otherwiseomadeoout.oInootherowords,otheoactionochallenged hasonoopublicoelementoandowritoofomandamusocannotobe issuedoasotheoactionowasoessentiallyoofoaoprivateocharacter."

8.oooo InoMarwarioBalikaoVidhyalayaoversusoAshaoShrivastaga,o(2020) 14oSCCo449,otheoSupremeoCourtowhileorelyingoonotheojudgmentoasorenderedoin oRameshoAhluwaliaooversusooStateooofooPunjab,o(2016)o6oSCCo541ooheldothatoaowrit petitionoagainstoaoPrivateoSchoologettingogrant-in-aidotootheoextentoofoDearness Allowanceoisomaintainable.oHowever,o theojudgmentorenderedoin oSt.oMary's oEducationoSociety'oosocaseoo(oosooupra)ooodistinguishedotheojudgmentoasorenderedoin oMarwarioBalikaoVidhyalaya'osoocaseoobyoholdingoasounder:- "58.oInocontextowithoMarwarioBalikaoVidhyalayao(supra),owe remindoourselvesoofotheoBye-lawo49(2)owhichoprovidesothat nooorderowithoregardotootheoimpositionoofomajoropenalty shallobeomadeobyotheodisciplinaryoauthorityoexceptoafterothe receiptoofotheoapprovaloofotheodisciplinaryocommittee.oThus unlikeoMarwarioBalikaoVidhyalayao(supra)owhereoapproval wasorequiredoofotheoStateoGovernment,oinotheocaseoonohand the o approval o is o to o be o obtained o from o the o disciplinary committeeoofotheoinstitution.oThisodistinguishingofeature seemsotoohaveobeenooverlookedobyotheoHighoCourtowhile

59.oInoMarwarioBalikaoVidhyalayao(supra),otheoschoolowas receivingograntoinoaidotootheoextentoofodearnessoallowance. Theoappointment o and otheo removal,o as onoted o above, ois requiredotoobeoapprovedobyotheoDistrictoInspectoroofoSchool (PrimaryoEducation)oand,oifoanyoactionoisotakenodehorsosuch mandatoryoprovisions,otheosameowouldonotocomeowithinothe realmoofoprivateoelement"

¶9InooK.K.oSaksenaooversusooInternationaloCommissionoonoIrrigationo andoDrainageoandoothers,o(2015)o4oSCCo670,oafteroanoexhaustiveoreviewoofoits earlierodecisionsoonotheosubject,otheoSupremeoCourtoheldoasofollows:- "43.oWhatofollowsofromoaominuteoandocarefuloreadingoofothe aforesaidojudgmentsoofothisoCourtoisothatoifoaopersonoor authorityoisoao'State'owithinotheomeaningoofoArticleo12oofothe Constitution,oadmittedlyoaowritopetitionounderoArticleo226 wouldolieoagainstosuchoaopersonoorobody.oHowever,oweomay addothatoevenoinosuchocasesowritowouldonotolieotooenforce privateolaworights.oThereoareocatenaoofojudgmentsoonothis aspectoandoitoisonotonecessaryotooreferotoothoseojudgmentsoas thatoisotheobasicoprincipleoofojudicialoreviewoofoanoaction underotheoadministrativeolaw.oReasonoisoobvious.oPrivateolaw isothatopartoofoaolegalosystemowhichoisoaopartoofoCommon Lawothatoinvolvesorelationshipsobetweenoindividuals,osuchoas lawoofocontractoorotorts.oTherefore,oevenoifowritopetition wouldobeomaintainableoagainstoanoauthority,owhichoiso'State' underoArticleo12oofotheoConstitution,obeforeoissuingoanyowrit, particularlyowritoofomandamus,otheoCourtohasotoosatisfyothat actionoofosuchoanoauthority,owhichoisochallenged,oisoinothe domainoofopublicolawoasodistinguishedofromoprivateolaw. xxxx-xxxx-xxxx-xxxx

52.oItoisotriteothatocontractoofopersonaloserviceocannotobe enforced.oThereoareothreeoexceptionsotoothisorule,onamely:

(i)owhenotheoemployeeoisoaopublicoservantoworkingounderothe UnionoofoIndiaooroState;

(ii)owhenosuchoanoemployeeoisoemployedobyoanoauthority/ bodyowhichoisoaoStateowithinotheomeaningoofoArticleo12oofothe ConstitutionoofoIndia;oand

(iii) o when o such o an o employee o is o 'workmen' o within o the meaningoofoSectiono2(s)oofotheoIndustrialoDisputesoAct,o1947 andoraisesoaodisputeoregardingohisoterminationobyoinvoking theomachineryounderotheosaidoAct. Inotheofirstotwoocases,otheoemploymentoceasesotoohaveoprivate law o character o and o 'status' o to o such o an o employment o is attached.oInotheothirdocategoryoofocases,oitoisotheoIndustrial Disputes oAct o which o confers o jurisdiction o on o the o labour court/industrialo tribunal o to o grant o reinstatement o ino case terminationoisofoundotoobeoillegal."

¶10Applyingotheoratiooofotheoaforesaidodecisions,oitoisoclearothatothe presentowritopetitionoisonotomaintainable.oTheorespondentoisoanounaidedoprivate Institute,oandothoughoaffiliatedowithoMaharishioDayanandoUniversity,oitohasoits ownoServiceoandoConductoRules,oinotermsoofowhichotheopetitionerowasoappointed andothenohisoservicesowereoterminatedobyogivingothreeomonths'osalaryoinolieu thereof.oThereoisonooGovernmentoaidooroeffectiveocontrolooverotheorunningoofothe respondent-Institute.oThoughoimpartingoeducationoisoaopublicofunction,obutothe terminationoofoserviceoofotheopetitioneroisobasicallyoonotheobasisoofotheocontract ofoserviceoandotheoServiceoandoConductoRules.oItohasobeenoheldoinotheojudgment renderedoinooVaishoDegreeoCollegeovoersusooLaxmioNarain,o1976o(2)oSCCo58o,othat a contract of personal service cannot ordinarily be enforced unless a public servant is sought to be removed from service in contravention of Article 311 of the Constitution of India, where a worker is sought to be reinstated on being dismissed under Industrial Law and where a statutory body acts in breach of mandatory provision of the statute. Such is not the issue herein. The respondent-Institute is also not a statutory body as it has not been established that it is created under a statute and in fact is an unaided Institute.

¶11Consequently, the instant writ petition stands dismissed, leaving it open to the petitioner herein to avail his remedy, in accordance with law. 8%&I2H#EEoTH&0"#9

03.05.2023 %"( E C:etanoT:a;ur