Feeling aggrieved and dissatisfied with the impugnedcommon judgment and order dated 15.12.2016 passed by theDivision Bench of the High Court of Judicature at Rajasthan,Bench at Jaipur in D.B. Special Appeal ...
No Acts & Articles mentioned in this case
1
CORRECTED
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4806 OF 2019
[Arising out of SLP (C) NO. 11712 of 2017]
Khetri Vikas Samiti .. Appellant
Versus
Director College Education,
Government of Rajasthan & Ors. .. Respondents
WITH
Civil Appeal No.4808 of 2019 @ SLP (C) No. 12240 of 2017,
Civil Appeal No.4807 of 2019 @ SLP (C) No. 12066 of 2017 &
Civil Appeal No.4809 of 2019 @ SLP (C) No. 12102 of 2017
J U D G M E N T
M. R. Shah, J.
1.Leave granted in all the Special Leave Petitions.
2.As common question of law and facts arise in this group of
appeals and, as such, they arise out of the impugned common
judgment and order passed by the High Court, all these appeals
2
are being decided and disposed of by this common judgment and
order.
3.Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 15.12.2016 passed by the
Division Bench of the High Court of Judicature at Rajasthan,
Bench at Jaipur in D.B. Special Appeal Writ No. 735/2005,
764/2005, 807/2005 and 808/2005 by which the High Court
has dismissed the said appeals preferred by the appellant herein
and has confirmed the common judgment and order passed by
the learned Single Judge of the High Court dismissing the
respective writ petitions and confirming the order passed by the
learned NonGovernment Educational Institutions Tribunal,
Jaipur directing the appellant to reinstate the private
respondents herein, original appellantwrit petitionerKhetri
Vikas Samiti has preferred the present appeals.
4.For the sake of convenience, the facts of Civil Appeal arising
out of SLP (C) No. 11712 of 2017, arising out of the impugned
judgment and order passed by the Division Bench of the High
Court in Special Appeal Writ No. 808/2005 are considered, which
in nutshell are as under:
3
That the appellant hereinoriginal writ petitioner is a society
registered under the Rajasthan Societies Registration Act, 1958
which is running several educational institutions, including one
Vinodini P.G. College, a nonGovernmental Educational
Institution. That the private respondent herein was engaged as a
Lab Assistant/Lab Boy on 01.04.1999 in the aforesaid non
Government College of the appellant on a purely temporary basis.
Similarly, other private respondents in the connected matters
were engaged as Sweeper, Mechanic and Waterman respectively.
That on 20.07.2003, the Managing Committee of the appellant,
after considering the fact that the institution was running in
heavy losses, unanimously resolved to abolish the posts of Lab
Assistant/Lab Boy, Sweeper, Waterman and Mechanic. It was
also decided that the institution will pay salary of six months
which will be deposited in the bank accounts of those employees.
That, in view of the abolition of the posts, vide order dated
29.07.2003, the respondent was removed from his post. Similar
orders were passed for other six employees as per the resolution
of the Management Committee. The respective employees were
also paid the six months salary.
4
4.1Aggrieved by the order dated 29.07.2003, the private
respondent filed an appeal before the NonGovernment
Educational Tribunal, Jaipur (hereinafter referred to as the
‘learned Tribunal’) under Section 19 of the Rajasthan Non
Government Educational Institutions Act, 1989 (hereinafter
referred to as the ‘Act’), being Appeal No. 56 of 2003. Other
employees also preferred respective appeals before the learned
Tribunal. It was the case on behalf of the respective original
applicantsemployees that as, before the termination, a prior
approval of the Director as required under Section 18 of the Act,
has not been obtained and therefore their termination is bad in
law and in violation of Section 18 of the Act. On the other hand,
it was the case on behalf of the Management that as the
termination took place only as a result of abolition of the posts,
Section 18 of the Act shall not be applicable/attracted and prior
approval of the State authorities was not necessary.
4.2That, by common judgment and order dated 07.12.2004,
the learned Tribunal set aside the orders of removal of the private
respondents hereinemployees and directed their reinstatement
holding that it was mandatory to seek the prior approval of the
Director of Education before terminating the employees, as per
5
Section 18 of the Act, and as no such prior approval was taken,
the termination of the concerned employees is bad in law. That
being aggrieved by the order dated 07.12.2004 passed by the
learned Tribunal, the appellant hereinoriginal writ petitioner
filed writ petitions before the High Court, which came to be
dismissed by the learned Single Judge of the High Court vide
common judgment and order dated 18.07.2005.
4.3At this stage, it is required to be noted that before the High
Court, vide letter dated 25.01.2005 the Office of the
Commissioner, College Education, Rajasthan clarified that there
was no necessity for seeking Government approval for the
removal of the employees, as the posts to which they were
working were not aided posts and that their appointment was not
approved by the Education Department. That, on 08.04.2005,
the Commissioner, College Education issued a letter calling upon
the appellant and other similarly placed institutions to close the
uneconomical subjects and remove their surplus employees.
4.4By the judgment and order dated 18.07.2005, the learned
Single Judge dismissed the respective writ petitions holding that
it was mandatory for the Institution/Management to have
obtained written prior consent/approval of the Director,
6
Education before removing the respondentsemployees. The
learned Single Judge also did not consider the communication
dated 25.01.2005 of the Commissioner, College Education,
Rajasthan on the ground that the said documents were not part
of the record before the learned Tribunal.
4.5Feeling aggrieved and dissatisfied with the common
judgment and order passed by the learned Single Judge of the
High Court dismissing the writ petitions, the appellant herein
preferred the D.B. Special Appeals before the Division Bench of
the High Court. By the impugned common judgment and order
dated 15.12.2016, the Division Bench of the High Court has
dismissed the appeals and has confirmed the common judgment
and order passed by the learned Single Judge of the High Court.
Feeling aggrieved and dissatisfied thereby, the Management has
preferred the present appeals.
5.Shri Shubhranshu Padhi, learned Advocate has appeared
on behalf of the Management; Ms. Padhmalakshmi Iyengar,
learned AAG has appeared on behalf of the respondentState
authorities and Shri Ramjee Pandey, learned Advocate has
appeared on behalf of the private respondentsrespective
employees.
7
5.1Shri Padhi, learned advocate appearing on behalf the
Management has vehemently submitted that, in the facts and
circumstances of the case, the High Court has committed a
serious error in dismissing the appeals and confirming the
judgment and order passed by the learned Single Judge
approving/confirming the order passed by the learned Tribunal
directing the appellant to reinstate the private respondents.
5.2It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has not properly
appreciated and considered the fact that as it was a case of
abolition of posts which resulted in removal of the concerned
employees, Section 18 of the Act shall not be applicable/attracted
at all. It is submitted that the High Court has failed to
appreciate and consider the fact that Section 18 of the Act would
not be attracted as no penal action had been taken against the
concerned employees, as the termination took place only as a
result of the abolition of posts. It is submitted by the learned
counsel appearing on behalf of the appellant that as held by this
Court in the case of Shri Maheshwari Senior Higher
Secondary School v. Bhikha Ram Sharma (1996) 8 SCC 22, in
case of termination of service of an employee due to abolition of
8
post, the question of conducting the enquiry under the Rules
does not arise. It is submitted that despite the aforesaid decision
was cited before the Division Bench of the High Court, the
Division Bench has not at all dealt with and considered the same.
It is further submitted that even the Division Bench has not at all
considered the other decisions which are cited and relied upon by
the counsel appearing on behalf of the appellantManagement.
5.3It is further submitted by the learned counsel appearing on
behalf of the appellant that, as such, while deciding the appeals,
the Division Bench of the High Court has not at all dealt with and
considered in detail the specific case on behalf of the appellant
Management that in case of abolition of post and the consequent
action of removal, Section 18 of the Act shall not be applicable. It
is submitted that, however, erroneously the Division Bench of the
High Court has observed that no such contention was raised
before the learned Tribunal or before the learned Single Judge
and the same has been raised for the first time before the
Division Bench. It is submitted that in fact it was the case on
behalf of the Management right from the beginning and even
before the learned Tribunal that, in the facts and circumstances
of the case, Section 18 of the Act shall not applicable at all.
9
5.4It is further submitted by the learned counsel appearing on
behalf of the appellant that even the learned Single Judge
committed a serious error in not considering the communications
dated 25.01.2005 and 08.04.2005 received from the Office of the
Commissioner, College Education, Rajasthan on the ground that
the said communications were not placed before the learned
Tribunal. It is submitted that naturally the aforesaid two
communications could not have been produced before the
learned Tribunal as the same were subsequent to the decision of
the Tribunal dated 07.12.2004. It is submitted that, however,
the learned Single Judge and even the Division Bench of the High
Court ought to have considered the aforesaid two
communications and the stand of the State Government whether
in case of abolition of posts and/or the posts to which the
respective workers were working were not aided posts and their
appointment was not approved by the Education Department, the
prior approval/approval for removal of such employees was not
required.
5.5It is further submitted by the learned counsel appearing on
behalf of the appellant that the Division Bench of the High Court
has not at all appreciated and/or considered the fact that neither
10
the learned Tribunal nor the High Court was justified in holding
that the abolition of posts was erroneous and/or bad in law.
5.6It is submitted by the learned counsel appearing on behalf
of the appellant that a conscious decision was taken by the
Management to abolish the respective posts as the institution
was running in heavy losses. It is submitted that therefore a
conscious decision was taken to abolish the temporary posts. It
is submitted that merely because the Management might have
received some grant from the State Government and/or some
amount from the students as fees, unless and until the entire
balancesheet is considered and/or the entire financial position
of the institution is considered, the learned Single Judge ought
not to have held the abolition of posts as bad in law by observing
that the financial conditions of the University did not warrant
abolition of the posts.
5.7It is further submitted by the learned counsel appearing on
behalf of the appellant that accordingly the learned Single Judge
of the High Court has committed a grave error in observing and
holding that as the respective employees were paid six months’
salary which was deposited in their respective bank accounts, the
Management was required to follow the procedure as per Rule 39
11
of the Rajasthan NonGovernment Educational Institutions
(Recognition, GrantInAid and Service Condtions etc.) Rules,
1993 (hereinafter referred to as the ‘1993 Rules’) and it was
essential for the Management to receive written consent of the
Education Department. It is submitted that merely because to be
on a safer side, the Management might have paid/deposited the
six months’ salary, the same should not go against the
Management and, by that itself, Section 18 of the Act and Rule
39 of the 1993 Rules shall be made applicable. It is submitted
that what is required to be considered whether in a case of
abolition of posts, prior approval of the Commissioner as per
Section 18 of the Act is required or not. It is submitted that
therefore both, the learned Single Judge and the Division Bench
of the High Court have committed a serious error in making
Section 18 of the Act and/or Rule 39 of the 1993 Rules
applicable to the facts of the case.
5.8Making the above submissions, it is prayed to allow the
present appeals.
6.The present appeals have been vehemently opposed by Shri
Ramjee Pandey, learned counsel appearing on behalf of the
respective employees. It is vehemently submitted by Shri
12
Pandey, learned counsel appearing on behalf of the respective
employees that, as the resultant effect of abolition of posts was
removal of the concerned employees from service, Section 18 of
the Act would be applicable. It is submitted that therefore, as
such, no error has been committed by the High Court in holding
that the removal/termination was hit by Section 18 of the Act. It
is further submitted that, even otherwise, on merits also, the
learned Tribunal as well as the learned Single Judge have
specifically observed and held that the abolition of posts was bad
in law. It is submitted, therefore, once the abolition of posts
was held to be bad in law, there was no further question to be
considered whether prior to removal the approval/consent of the
Director/State authorities is required or not.
6.1It is further submitted that there are concurrent findings of
all the Courts below on the applicability of Section 18 of the Act
and, therefore, the same is not required to be interfered with by
this Court.
6.2Making the above submissions, it is prayed to dismiss the
present appeals.
7.Learned AAG appearing on behalf of the State has reiterated
on the communication dated 25.02.1005 and has submitted that
13
as the posts to which the respective employees were working were
not aided posts and their appointment was not approved by the
Education Department, there was no necessity for seeking
Government approval for the removal of such employees.
8.Heard learned counsel appearing on behalf of the respective
parties at length and perused/considered the orders passed by
the leaned Tribunal, learned Single Judge of the High Court as
well as the impugned common judgment and order passed by the
Division Bench of the High Court.
9.At the outset, it is required to be noted that all the
respective employees were appointed and working on a purely
temporary basis. That a conscious decision was taken by the
Management to abolish the posts on which the respective
employees were working, namely Lab Assistant/Lab Boy,
Sweeper. Waterman and Mechanic. A conscious decision was
taken by the Management to abolish the temporary post/posts in
question on the ground that the institution was running in heavy
losses. Consequent upon the abolition of posts, the respective
employees were removed from the services. The respective
employees were also paid six months’ salary which was deposited
in the bank accounts of the concerned employees. Learned
14
Tribunal as well as the learned Single Judge directed the
reinstatement of the respective employees and set aside the
removal on the ground inter alia that: (i) before removal the prior
consent/approval of the State authorities was not taken as
required under Section 18 of the Act and (ii) that the abolition of
posts was bad in law. The judgment and order of the learned
Tribunal as well as the learned Single Judge of the High Court
have been confirmed by the Division Bench of the High Court by
the impugned common judgment and order.
10.From the common judgment and order passed by the
Division Bench of the High Court, it appears that the learned
Division Bench has not at all given any reasons on the
applicability of Section 18 of the Act in a case where the removal
of the concerned employees was due to abolition of posts. In
Paragraph 14, the Division Bench of the High Court has observed
that no such contention was raised before the Tribunal or before
the learned Single Judge and it has been raised for the first time.
The aforesaid finding does not seem to be true. From the
decision of the Tribunal as well as the learned Single Judge, it
emerges that from the very beginning the case on behalf of the
Management was that as the removal of the employees was due
15
to abolition of posts, Section 18 of the Act shall not be attracted.
Be that as it may, we propose to consider independently the issue
with respect to the applicability of Section 18 of the Act in a case
where the removal was due to abolition of the posts. Therefore,
the questions which are posed for consideration of this Court are
whether: (i) in case of removal due to abolition of posts and more
particularly when the respective employees were working on
temporary basis and the posts were not approved/sanctioned
and their appointments were not approved by the Education
Department and the posts to which they are working were not
aided posts, Section 18 of the Act would be applicable and (ii)
whether the learned Tribunal and the learned Single Judge were
justified in holding the abolition of posts bad in law?
11.While considering Question No. 1 referred to hereinabove,
the relevant provisions of the Act and 1993 Rules are required to
be referred to.
11.1Section 18 of the Act and Rule 39 of the 1993 Rules read as
under:
“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
16
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,
(i) to a person who is dismissed or removed 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 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 cannot 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.”
Rule 39:
“39. Removal or Dismissal from Service. (1) The
services of an employee appointed temporarily for six
months, may be terminated by the management at
any time after giving at least one month's notice or
one month's salary in lieu thereof. Temporary
employee, who wishes to resign shall also give atleast
one month's notice in advance or in lieu thereof
deposit or surrender one month's salary to the
management.
17
(2) An employee, other than the employee referred to
in subrule (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 :
(a) A preliminary enquiry shall be held on the
allegations coming into or brought to the
notice of the management against the
employee;
(b) On the basis of the findings of the preliminary
enquiry report, a charge sheet alongwith
statement of allegations shall be issued to the
employee and he shall be asked to submit his
reply within a reasonable time;
(c) After having pursued the preliminary enquiry
report and the reply submitted by the
employee, if any, if the managing committee is
of the opinion that a detailed enquiry is
required to be conducted, a three member
committee shall be constituted by it in which
a nominee of the Director of Education shall
also be included;
(d) During the enquiry by such enquiry
committee the employee shall be given a
reasonable opportunity of being heard and to
defend himself by means of written statement
as well as by leading evidence, if any;
(e) The enquiry committee, after completion of
the detailed enquiry, shall submit its report to
the management committee;
(f) If the managing committee, having regard to
the findings of the enquiry committee on the
charges, is of the opinion that the employee
should be removed or dismissed from service,
it shall
18
(i) furnish to the employee a copy of the
report of the enquiry committee,
(ii) give him a notice stating the penalty of
removal or dismissal and call upon him to
submit within a specified time such
representation as he may wish to make on
the proposed penalty;
(g) In every case, the records of the enquiry
together with a copy of notice given under
subclause (f)(ii) above and the representation
made in response to such notice if any, shall
be forwarded by the managing committee to
the Director of Education or an officer
authorised by him in this behalf, for approval;
(h) On receipt of the approval as mentioned in
subclause (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 cannot 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.”
19
11.2On a fair reading of Section 18 of the Act and Rule 39 of the
1993 Rules, we are of the opinion that Section 18 of the Act and
Rule 39 would not be applicable in case of removal of an
employee due to the abolition of posts, more particularly when
the post to which the employee is working was not aided and that
his appointment was not approved by the Education Department.
In the case of Bhikha Rm Sharma (supra), this Court has
specifically observed and held that in case of termination of the
service of the employee due to abolition of post, the question of
conducting the enquiry under the Rules does not arise. Though
the said decision was cited and relied upon by the counsel
appearing on behalf of the appellant before the Division Bench of
the High Court, the Division Bench thereafter has not at all dealt
with and/or considered the same. Therefore, the learned
Tribunal, learned Single Judge and learned Division Bench of the
High Court have materially erred in applying Section 18 of the Act
and in holding the removal of the concerned employees which as
such was due to the abolition of the posts was hit by Section 18
of the Act. At this stage, it is required to be noted that even the
State Government also made its stand clear before the learned
20
Single Judge vide letter dated 25.01.2005 which was placed
before the learned Single Judge pursuant to the order passed by
the High Court, in which it was specifically stated that there is no
necessity for seeking Government approval for the removal of the
employees, as the posts to which they were working were not
aided posts and that their appointment was not approved by the
Education Department. The learned Single Judge has refused to
take into consideration the communication dated 25.01.2005 on
the ground that the said communication was not placed before
the learned Tribunal. The said communication could not have
been produced before the learned Tribunal as the said
communication was after the decision of the learned Tribunal.
When the said communication was placed on record by way of an
additional affidavit and that too pursuant to the direction issued
by the learned Single Judge, the learned Single Judge ought to
have considered the same. Therefore, even as per the State
Government also, the prior approval of the State authorities was
not required. Therefore, the impugned judgment and order
passed by the Division Bench of the High Court, learned Single
Judge of the High Court and the learned Tribunal holding that
the removal of the concerned employees was hit by Section 18 of
21
the Act, cannot be sustained and the same deserves to be
quashed and set aside.
12.Now, so far as question No. 2, namely whether the learned
Tribunal and the learned Single Judge were justified in holding
the abolition of posts bad in law is concerned, it is required to be
noted that a conscious decision was taken by the Managing
Committee of the institution/Management to abolish the posts as
the institution/Management was facing the financial constraint
and running in heavy losses. Therefore, unless and until the
said decision is found to be arbitrary and/or mala fide and/or
with some oblique reason, it was not open for the learned
Tribunal and/or the High Court to interfere with such decision of
the Management to abolish the posts. Considering the reasoning
given by the High Court and the Tribunal as such there is no
specific finding that the decision of the Management to abolish
the posts was mala fide and/or with the oblique motive. It is
required to be noted that the question before the learned Tribunal
was with respect to the removal and not with respect to abolition
of the posts. The decision of the Management/Managing
Committee to abolish the post was not under challenge.
Therefore, in absence of challenge to the decision of the Managing
22
Committee to abolish the posts in question, it was not open for
the Tribunal and/or the High Court to hold that abolition of posts
was bad in law.
12.1Even otherwise, on merits also, the decision of the High
Court in holding the abolition of posts bad in law, cannot be
sustained. The learned Singh Judge of the High Court has held
the abolition of posts bad in law by observing that as the
institution/Management received the grant and the fees from the
students, it cannot be said that the financial condition of the
Management was weak which warranted abolition of posts.
However, it is required to be noted that before the learned Single
Judge the entire financial position/balancesheet was not placed
before the High Court. Merely some grant might have been
received by the institution/Management and/or the Management
might have received the fees from the students, unless and until
the balancesheet and the entire expenditure are considered, it
was not open for the High Court to come to the conclusion that
the financial condition was not such poor which warranted the
abolition of posts. Therefore, even the reasoning given by the
High Court to hold that the abolition of posts bad in law, cannot
be sustained.
23
13.Even the observation made by the learned Single Judge that
as the Management deposited six months salary, as required
under Rule 39 of the 1993 Rules, it was incumbent upon the
Management to follow the procedure as provided under Rule 39 of
the 1993 Rules before the removal of the concerned employees.
However, it is required to be noted that Rule 39 shall be
applicable only in a case where an employee, other than the
employee referred to in subsection (1) is removed or dismissed
from service on the ground that of insubordination, inefficiency,
neglect of duty, misconduct or any other ground, which makes
the employee unsuitable for further retention in service. On a fair
reading of Rule 39, it appears that only in the aforesaid cases, the
procedure provided under Rule 39 is required to be followed.
Rule 39 further provides that when the Managing Committee is of
the unanimous opinion that the services of an employee cannot
be continued without prejudice to the interest of the institution,
the services of such employee can be terminated after giving him
six months notice or salary in lieu thereof and the consent of the
Director, Education is obtained in writing. Therefore, in case of
removal of an employee due to abolition of the post, Rule 39 of
the 1993 Rules shall not be applicable at all. Merely because, for
24
whatever reasons and may be, to be on a safer side, the
management deposited six months salary, by that itself, Rule 39
of the 1993 Rules shall not be made applicable, if otherwise, the
same is not applicable.
14. In view of the above and for the reasons stated above, the
present appeals are allowed. The impugned common judgment
and order passed by the Division Bench of the High Court dated
15.12.2016, learned Single Judge of the High Court as well as the
learned Tribunal directing the appellant to reinstate the private
respondents herein are quashed and set aside. No costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI, ……………………………….J.
MAY 09, 2019. [M. R. SHAH]
25
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4806 OF 2019
[Arising out of SLP (C) NO. 11712 of 2017]
Khetri Vikas Samiti .. Appellant
Versus
Director College Education,
Government of Rajasthan & Ors. .. Respondents
WITH
Civil Appeal No.4808 of 2019 @ SLP (C) No. 12240 of 2017,
Civil Appeal No.4807 of 2019 @ SLP (C) No. 12066 of 2017 &
Civil Appeal No.4809 of 2019 @ SLP (C) No. 12102 of 2017
J U D G M E N T
M. R. Shah, J.
1.Leave granted in all the Special Leave Petitions.
2.As common question of law and facts arise in this group of
appeals and, as such, they arise out of the impugned common
judgment and order passed by the High Court, all these appeals
are being decided and disposed of by this common judgment and
order.
26
3.Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 15.12.2016 passed by the
Division Bench of the High Court of Judicature at Rajasthan,
Bench at Jaipur in D.B. Special Appeal Writ No. 735/2005,
764/2005, 807/2005 and 808/2005 by which the High Court
has dismissed the said appeals preferred by the appellant herein
and has confirmed the common judgment and order passed by
the learned Single Judge of the High Court dismissing the
respective writ petitions and confirming the order passed by the
learned NonGovernment Educational Institutions Tribunal,
Jaipur directing the appellant to reinstate the private
respondents herein, original appellantwrit petitionerKhetri
Vikas Samiti has preferred the present appeals.
4.For the sake of convenience, the facts of Civil Appeal arising
out of SLP (C) No. 11712 of 2017, arising out of the impugned
judgment and order passed by the Division Bench of the High
Court in Special Appeal Writ No. 808/2005 are considered, which
in nutshell are as under:
That the appellant hereinoriginal writ petitioner is a society
registered under the Rajasthan Societies Registration Act, 1958
which is running several educational institutions, including one
27
Vinodini P.G. College, a nonGovernmental Educational
Institution. That the private respondent herein was engaged as a
Lab Assistant/Lab Boy on 01.04.1999 in the aforesaid non
Government College of the appellant on a purely temporary basis.
Similarly, other private respondents in the connected matters
were engaged as Sweeper, Mechanic and Waterman respectively.
That on 20.07.2003, the Managing Committee of the appellant,
after considering the fact that the institution was running in
heavy losses, unanimously resolved to abolish the posts of Lab
Assistant/Lab Boy, Sweeper, Waterman and Mechanic. It was
also decided that the institution will pay salary of six moths
which will be deposited in the bank accounts of those employees.
That, in view of the abolition of the posts, vide order dated
29.07.2003, the respondent was removed from his post. Similar
orders were passed for other six employees as per the resolution
of the Management Committee. The respective employees were
also paid the six months salary.
4.1Aggrieved by the order dated 29.07.2003, the private
respondent filed an appeal before the NonGovernment
Educational Tribunal, Jaipur (hereinafter referred to as the
‘learned Tribunal’) under Section 19 of the Rajasthan Non
28
Government Educational Institutions Act, 1989 (hereinafter
referred to as the ‘Act’), being Appeal No. 56 of 2003. Other
employees also preferred respective appeals before the learned
Tribunal. It was the case on behalf of the respective original
applicantsemployees that as, before the termination, a prior
approval of the Director as required under Section 18 of the Act,
has not been obtained and therefore their termination is bad in
law and in violation of Section 18 of the Act. On the other hand,
it was the case on behalf of the Management that as the
termination took place only as a result of abolition of the posts,
Section 18 of the Act shall not be applicable/attracted and prior
approval of the State authorities was not necessary.
4.2That, by common judgment and order dated 07.12.2004,
the learned Tribunal set aside the orders of removal of the private
respondents hereinemployees and directed their reinstatement
holding that it was mandatory to seek the prior approval of the
Director of Education before terminating the employees, as per
Section 18 of the Act, and as no such prior approval was taken,
the termination of the concerned employees is bad in law. That
being aggrieved by the order dated 07.12.2004 passed by the
learned Tribunal, the appellant hereinoriginal writ petitioner
29
filed writ petitions before the High Court, which came to be
dismissed by the learned Single Judge of the High Court vide
common judgment and order dated 18.07.2005.
4.3At this stage, it is required to be noted that before the High
Court, vide letter dated 25.01.2005 the Office of the
Commissioner, College Education, Rajasthan clarified that there
was no necessity for seeking Government approval for the
removal of the employees, as the posts to which they were
working were not aided posts and that their appointment was not
approved by the Education Department. That, on 08.04.2005,
the Commissioner, College Education issued a letter calling upon
the appellant and other similarly placed institutions to close the
uneconomical subjects and remove their surplus employees.
4.4By the judgment and order dated 18.07.2005, the learned
Single Judge dismissed the respective writ petitions holding that
it was mandatory for the Institution/Management to have
obtained written prior consent/approval of the Director,
Education before removing the respondentsemployees. The
learned Single Judge also did not consider the communication
dated 25.01.2005 of the Commissioner, College Education,
30
Rajasthan on the ground that the said documents were not part
of the record before the learned Tribunal.
4.5Feeling aggrieved and dissatisfied with the common
judgment and order passed by the learned Single Judge of the
High Court dismissing the writ petitions, the appellant herein
preferred the D.B. Special Appeals before the Division Bench of
the High Court. By the impugned common judgment and order
dated 15.12.2016, the Division Bench of the High Court has
dismissed the appeals and has confirmed the common judgment
and order passed by the learned Single Judge of the High Court.
Feeling aggrieved and dissatisfied thereby, the Management has
preferred the present appeals.
5.Shri Shubhranshu Padhi, learned Advocate has appeared
on behalf of the Management; Ms. Padhmalakshmi Iyengar,
learned AAG has appeared on behalf of the respondentState
authorities and Shri Ramjee Pandey, learned Advocate has
appeared on behalf of the private respondentsrespective
employees.
5.1Shri Padhi, learned advocate appearing on behalf the
Management has vehemently submitted that, in the facts and
circumstances of the case, the High Court has committed a
31
serious error in dismissing the appeals and confirming the
judgment and order passed by the learned Single Judge
approving/confirming the order passed by the learned Tribunal
directing the appellant to reinstate the private respondents.
5.2It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has not properly
appreciated and considered the fact that as it was a case of
abolition of posts which resulted in removal of the concerned
employees, Section 18 of the Act shall not be applicable/attracted
at all. It is submitted that the High Court has failed to
appreciate and consider the fact that Section 18 of the Act would
not be attracted as no penal action had been taken against the
concerned employees, as the termination took place only as a
result of the abolition of posts. It is submitted by the learned
counsel appearing on behalf of the appellant that as held by this
Court in the case of Shri Maheshwari Senior Higher
Secondary School v. Bhikha Ram Sharma (1996) 8 SCC 22, in
case of termination of service of an employee due to abolition of
post, the question of conducting the enquiry under the Rules
does not arise. It is submitted that despite the aforesaid decision
was cited before the Division Bench of the High Court, the
32
Division Bench has not at all dealt with and considered the same.
It is further submitted that even the Division Bench has not at all
considered the other decisions which are cited and relied upon by
the counsel appearing on behalf of the appellantManagement.
5.3It is further submitted by the learned counsel appearing on
behalf of the appellant that, as such, while deciding the appeals,
the Division Bench of the High Court has not at all dealt with and
considered in detail the specific case on behalf of the appellant
Management that in case of abolition of post and the consequent
action of removal, Section 18 of the Act shall not be applicable. It
is submitted that, however, erroneously the Division Bench of the
High Court has observed that no such contention was raised
before the learned Tribunal or before the learned Single Judge
and the same has been raised for the first time before the
Division Bench. It is submitted that in fact it was the case on
behalf of the Management right from the beginning and even
before the learned Tribunal that, in the facts and circumstances
of the case, Section 18 of the Act shall not applicable at all.
5.4It is further submitted by the learned counsel appearing on
behalf of the appellant that even the learned Single Judge
committed a serious error in not considering the communications
33
dated 25.01.2005 and 08.04.2005 received from the Office of the
Commissioner, College Education, Rajasthan on the ground that
the said communications were not placed before the learned
Tribunal. It is submitted that naturally the aforesaid two
communications could not have been produced before the
learned Tribunal as the same were subsequent to the decision of
the Tribunal dated 07.12.2004. It is submitted that, however,
the learned Single Judge and even the Division Bench of the High
Court ought to have considered the aforesaid two
communications and the stand of the State Government whether
in case of abolition of posts and/or the posts to which the
respective workers were working were not aided posts and their
appointment was not approved by the Education Department, the
prior approval/approval for removal of such employees was not
required.
5.5It is further submitted by the learned counsel appearing on
behalf of the appellant that the Division Bench of the High Court
has not at all appreciated and/or considered the fact that neither
the learned Tribunal nor the High Court was justified in holding
that the abolition of posts was erroneous and/or bad in law.
34
5.6It is submitted by the learned counsel appearing on behalf
of the appellant that a conscious decision was taken by the
Management to abolish the respective posts as the institution
was running in heavy losses. It is submitted that therefore a
conscious decision was taken to abolish the temporary posts. It
is submitted that merely because the Management might have
received some grant from the State Government and/or some
amount from the students as fees, unless and until the entire
balancesheet is considered and/or the entire financial position
of the institution is considered, the learned Single Judge ought
not to have held the abolition of posts as bad in law by observing
that the financial conditions of the University did not warrant
abolition of the posts.
5.7It is further submitted by the learned counsel appearing on
behalf of the appellant that accordingly the learned Single Judge
of the High Court has committed a grave error in observing and
holding that as the respective employees were paid six months’
salary which was deposited in their respective bank accounts, the
Management was required to follow the procedure as per Rule 39
of the Rajasthan NonGovernment Educational Institutions
(Recognition, GrantInAid and Service Condtions etc.) Rules,
35
1993 (hereinafter referred to as the ‘1993 Rules’) and it was
essential for the Management to receive written consent of the
Education Department. It is submitted that merely because to be
on a safer side, the Management might have paid/deposited the
six months’ salary, the same should not go against the
Management and, by that itself, Section 18 of the Act and Rule
39 of the 1993 Rules shall be made applicable. It is submitted
that what is required to be considered whether in a case of
abolition of posts, prior approval of the Commissioner as per
Section 18 of the Act is required or not. It is submitted that
therefore both, the learned Single Judge and the Division Bench
of the High Court have committed a serious error in making
Section 18 of the Act and/or Rule 39 of the 1993 Rules
applicable to the facts of the case.
5.8Making the above submissions, it is prayed to allow the
present appeals.
6.The present appeals have been vehemently opposed by Shri
Ramjee Pandey, learned counsel appearing on behalf of the
respective employees. It is vehemently submitted by Shri
Pandey, learned counsel appearing on behalf of the respective
employees that, as the resultant effect of abolition of posts was
36
removal of the concerned employees from service, Section 18 of
the Act would be applicable. It is submitted that therefore, as
such, no error has been committed by the High Court in holding
that the removal/termination was hit by Section 18 of the Act. It
is further submitted that, even otherwise, on merits also, the
learned Tribunal as well as the learned Single Judge have
specifically observed and held that the abolition of posts was bad
in law. It is submitted, therefore, once the abolition of posts
was held to be bad in law, there was no further question to be
considered whether prior to removal the approval/consent of the
Director/State authorities is required or not.
6.1It is further submitted that there are concurrent findings of
all the Courts below on the applicability of Section 18 of the Act
and, therefore, the same is not required to be interfered with by
this Court.
6.2Making the above submissions, it is prayed to dismiss the
present appeals.
7.Learned AAG appearing on behalf of the State has reiterated
on the communication dated 25.02.1005 and has submitted that
as the posts to which the respective employees were working were
not aided posts and their appointment was not approved by the
37
Education Department, there was no necessity for seeking
Government approval for the removal of such employees.
8.Heard learned counsel appearing on behalf of the respective
parties at length and perused/considered the orders passed by
the leaned Tribunal, learned Single Judge of the High Court as
well as the impugned common judgment and order passed by the
Division Bench of the High Court.
9.At the outset, it is required to be noted that all the
respective employees were appointed and working on a purely
temporary basis. That a conscious decision was taken by the
Management to abolish the posts on which the respective
employees were working, namely Lab Assistant/Lab Boy,
Sweeper. Waterman and Mechanic. A conscious decision was
taken by the Management to abolish the temporary post/posts in
question on the ground that the institution was running in heavy
losses. Consequent upon the abolition of posts, the respective
employees were removed from the services. The respective
employees were also paid six months’ salary which was deposited
in the bank accounts of the concerned employees. Learned
Tribunal as well as the learned Single Judge directed the
reinstatement of the respective employees and set aside the
38
removal on the ground inter alia that: (i) before removal the prior
consent/approval of the State authorities was not taken as
required under Section 18 of the Act and (ii) that the abolition of
posts was bad in law. The judgment and order of the learned
Tribunal as well as the learned Single Judge of the High Court
have been confirmed by the Division Bench of the High Court by
the impugned common judgment and order.
10.From the common judgment and order passed by the
Division Bench of the High Court, it appears that the learned
Division Bench has not at all given any reasons on the
applicability of Section 18 of the Act in a case where the removal
of the concerned employees was due to abolition of posts. In
Paragraph 14, the Division Bench of the High Court has observed
that no such contention was raised before the Tribunal or before
the learned Single Judge and it has been raised for the first time.
The aforesaid finding does not seem to be true. From the
decision of the Tribunal as well as the learned Single Judge, it
emerges that from the very beginning the case on behalf of the
Management was that as the removal of the employees was due
to abolition of posts, Section 18 of the Act shall not be attracted.
Be that as it may, we propose to consider independently the issue
39
with respect to the applicability of Section 18 of the Act in a case
where the removal was due to abolition of the posts. Therefore,
the questions which are posed for consideration of this Court are
whether: (i) in case of removal due to abolition of posts and more
particularly when the respective employees were working on
temporary basis and the posts were not approved/sanctioned
and their appointments were not approved by the Education
Department and the posts to which they are working were not
aided posts, Section 18 of the Act would be applicable and (ii)
whether the learned Tribunal and the learned Single Judge were
justified in holding the abolition of posts bad in law?
11.While considering Question No. 1 referred to hereinabove,
the relevant provisions of the Act and 1993 Rules are required to
be referred to.
11.1Section 18 of the Act and Rule 39 of the 1993 Rules read as
under:
“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.
40
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,
(i) to a person who is dismissed or removed 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 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 cannot 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.”
Rule 39:
“39. Removal or Dismissal from Service. (1) The
services of an employee appointed temporarily for six
months, may be terminated by the management at
any time after giving at least one month's notice or
one month's salary in lieu thereof. Temporary
employee, who wishes to resign shall also give atleast
one month's notice in advance or in lieu thereof
deposit or surrender one month's salary to the
management.
(2) An employee, other than the employee referred to
in subrule (1), may be removed or dismissed from
service on the grounds of insubordination,
inefficiency, neglect of duty, misconduct or any other
41
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 :
(a) A preliminary enquiry shall be held on the
allegations coming into or brought to the
notice of the management against the
employee;
(b) On the basis of the findings of the preliminary
enquiry report, a charge sheet alongwith
statement of allegations shall be issued to the
employee and he shall be asked to submit his
reply within a reasonable time;
(c) After having pursued the preliminary enquiry
report and the reply submitted by the
employee, if any, if the managing committee is
of the opinion that a detailed enquiry is
required to be conducted, a three member
committee shall be constituted by it in which
a nominee of the Director of Education shall
also be included;
(d) During the enquiry by such enquiry
committee the employee shall be given a
reasonable opportunity of being heard and to
defend himself by means of written statement
as well as by leading evidence, if any;
(e) The enquiry committee, after completion of
the detailed enquiry, shall submit its report to
the management committee;
(f) If the managing committee, having regard to
the findings of the enquiry committee on the
charges, is of the opinion that the employee
should be removed or dismissed from service,
it shall
(i) furnish to the employee a copy of the
report of the enquiry committee,
42
(ii) give him a notice stating the penalty of
removal or dismissal and call upon him to
submit within a specified time such
representation as he may wish to make on
the proposed penalty;
(g) In every case, the records of the enquiry
together with a copy of notice given under
subclause (f)(ii) above and the representation
made in response to such notice if any, shall
be forwarded by the managing committee to
the Director of Education or an officer
authorised by him in this behalf, for approval;
(h) On receipt of the approval as mentioned in
subclause (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 cannot 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.”
43
11.2On a fair reading of Section 18 of the Act and Rule 39 of the
1993 Rules, we are of the opinion that Section 18 of the Act and
Rule 39 would not be applicable in case of removal of an
employee due to the abolition of posts, more particularly when
the post to which the employee is working was not aided and that
his appointment was not approved by the Education Department.
In the case of Bhikha Rm Sharma (supra), this Court has
specifically observed and held that in case of termination of the
service of the employee due to abolition of post, the question of
conducting the enquiry under the Rules does not arise. Though
the said decision was cited and relied upon by the
counsel appearing on behalf of the appellant before the Division
Bench of the High Court, the Division Bench thereafter has not at
all dealt with and/or considered the same. Therefore, the learned
Tribunal, learned Singh Judge and learned Division Bench of the
High Court have materially erred in applying Section 18 of the Act
and in holding the removal of the concerned employees which as
such was due to the abolition of the posts was hit by Section 18
of the Act. At this stage, it is required to be noted that even the
State Government also made its stand clear before the learned
Single Judge vide letter dated 25.01.2005 which was placed
44
before the learned Single Judge pursuant to the order passed by
the High Court, in which it was specifically stated that there is no
necessity for seeking Government approval for the removal of the
employees, as the posts to which they were working were not
aided posts and that their appointment was not approved by the
Education Department. The learned Single Judge has refused to
take into consideration the communication dated 25.01.2005 on
the ground that the said communication was not placed before
the learned Tribunal. The said communication could not have
been produced before the learned Tribunal as the said
communication was after the decision of the learned Tribunal.
When the said communication was placed on record by way of an
additional affidavit and that too pursuant to the direction issued
by the learned Single Judge, the learned Single Judge ought to
have considered the same. Therefore, even as per the State
Government also, the prior approval of the State authorities was
not required. Therefore, the impugned judgment and order
passed by the Division Bench of the High Court, learned Single
Judge of the High Court and the learned Tribunal holding that
the removal of the concerned employees was hit by Section 18 of
45
the Act, cannot be sustained and the same deserves to be
quashed and set aside.
12.Now, so far as question No. 2, namely whether the learned
Tribunal and the learned Single Judge were justified in holding
the abolition of posts bad in law is concerned, it is required to be
noted that a conscious decision was taken by the Managing
Committee of the institution/Management to abolish the posts as
the institution/Management was facing the financial constraint
and running in heavy losses. Therefore, unless and until the
said decision is found to be arbitrary and/or mala fide and/or
with some oblique reason, it was not open for the learned
Tribunal and/or the High Court to interfere with such decision of
the Management to abolish the posts. Considering the reasoning
given by the High Court and the Tribunal as such there is no
specific finding that the decision of the Management to abolish
the posts was mala fide and/or with the oblique motive. It is
required to be noted that the question before the learned Tribunal
was with respect to the removal and not with respect to abolition
of the posts. The decision of the Management/Managing
Committee to abolish the post was not under challenge.
Therefore, in absence of challenge to the decision of the Managing
46
Committee to abolish the posts in question, it was not open for
the Tribunal and/or the High Court to hold that abolition of posts
was bad in law.
12.1Even otherwise, on merits also, the decision of the High
Court in holding the abolition of posts bad in law, cannot be
sustained. The learned Singh Judge of the High Court has held
the abolition of posts bad in law by observing that as the
institution/Management received the grant and the fees from the
students, it cannot be said that the financial condition of the
Management was weak which warranted abolition of posts.
However, it is required to be noted that before the learned Single
Judge the entire financial position/balancesheet was not placed
before the High Court. Merely some grant might have been
received by the institution/Management and/or the Management
might have received the fees from the students, unless and until
the balancesheet and the entire expenditure are considered, it
was not open for the High Court to come to the conclusion that
the financial condition was not such poor which warranted the
abolition of posts. Therefore, even the reasoning given by the
High Court to hold that the abolition of posts bad in law, cannot
be sustained.
47
13.Even the observation made by the learned Single Judge that
as the Management deposited six months salary, as required
under Rule 39 of the 1993 Rules, it was incumbent upon the
Management to follow the procedure as provided under Rule 39 of
the 1993 Rules before the removal of the concerned employees.
However, it is required to be noted that Rule 39 shall be
applicable only in a case where an employee, other than the
employee referred to in subsection (1) is removed or dismissed
from service on the ground that of insubordination, inefficiency,
neglect of duty, misconduct or any other ground, which makes
the employee unsuitable for further retention in service. On a fair
reading of Rule 39, it appears that only in the aforesaid cases, the
procedure provided under Rule 39 is required to be followed.
Rule 39 further provides that when the Managing Committee is of
the unanimous opinion that the services of an employee cannot
be continued without prejudice to the interest of the institution,
the services of such employee can be terminated after giving him
six months notice or salary in lieu thereof and the consent of the
Director, Education is obtained in writing. Therefore, in case of
removal of an employee due to abolition of the post, Rule 39 of
the 1993 Rules shall not be applicable at all. Merely because, for
48
whatever reasons and may be, to be on a safer side, the
management deposited six months salary, by that itself, Rule 39
of the 1993 Rules shall not be made applicable, if otherwise, the
same is not applicable.
14. In view of the above and for the reasons stated above, the
present appeals are allowed. The impugned common judgment
and order passed by the Division Bench of the High Court dated
15.12.2016, learned Single Judge of the High Court as well as the
learned Tribunal directing the appellant to reinstate the private
respondents herein are quashed and set aside. No costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI, ……………………………….J.
MAY 09, 2019. [M. R. SHAH]
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