Judgment 1 wp5522.16.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5522 OF 2016 Dr. [ENTITY], aged about 54 years, Ex-Professor and Head of the Department, [ENTITY] Mahatma Gandhi Institute of Medical Sciences, P.O.Sevagram, Wardha, R/o. 68, Tiwari Layout, Village : Warud, Post. :Sevagram Distt. Wardha (Maharashtra) PETITIONER. VERSUS 1) [ENTITY]. 2) [ENTITY] through its Secretary P.O. Sevagram-442102, District : Wardha. 3) The [ENTITY]. 4) The [ENTITY]. 5) The [ENTITY]. Uploaded on - 09/08/2018 Downloaded on - 10/08/2018 00:52:28 Judgment 2 wp5522.16.odt 6) The [ENTITY] 7) The [ENTITY], Govt. Dental College & Hospital Building, St. Georges Hospital Compound, Near CST Railway Station, Mumbai-400001. 8) [ENTITY], through its Dean, Sevagram- 442102, District : Wardha. 9) [ENTITY], through its Registrar, Nashik-422 101. RESPONDENT . Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent Nos.1, 2 and 8. Ms [ENTITY], Advocate for Respondent Nos.3, 4 and 5. Ms [ENTITY], A.G.P. for Respondent Nos.6 & 7. Shri [ENTITY], Advocate for Respondent No.9. CORAM : [ENTITY] AND [ENTITY], JJ. DATED : AUGUST 02, 2018. ORAL JUDGMENT : (Per : [ENTITY], J.)
1. Heard respective counsel.
2. The petitioner has approached this Court under [SECTION] of the [ACT] with a prayer to quash and set aside order dated 17/05/2016 by which the respondent Nos.1, 2 and 8 have closed Judgment 3 wp5522.16.odt down the departments of [ENTITY] and OPD in that discipline as also other order of same date by which his services as Professor and Head of the Department of [ENTITY] have been brought to an end. This later order is issued by the Secretary-Respondent No.2.
3. Advocate Shri [ENTITY] appearing for the petitioner has submitted that termination has been ordered all of a sudden after the petitioner had put in about 26 years of satisfactory service. Real reason is the grudge or mala fides. He submits that because of his outstanding performance the petitioner was on deputation as Director General of AYUSH between 2010 to 2013. For the said work though there was no reason on 27/10/2014 the Secretary wrote to President of [ENTITY] on the subject of action against the petitioner. He relies upon the last paragraph of the communication to urge that it itself brings on record the victimization of the petitioner.
He further adds that after the said termination the petitioner had appealed and pointed out good services rendered by him and his colleagues and requested reopening. However, that representation / appeal has not been properly considered.
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4. Shortly thereafter some services have been made available by the respondents at the centre for alternate systems of medicine and present working as Assistant Professor of the Department of which the petitioner was held has been entrusted with that responsibility. He submits that two other employees of closed department have also provided employment therein. According to him recruitment was not properly advertised and the petitioner therefore, could not apply. In this situation as the same service is resumed only after eliminating the petitioner therefrom the mala fides are apparent and therefore, the petitioner must be reinstated in original department under the respondent No.8 college or then in newly opened centre as its head.
5. He has relied upon the judgment in the case of [PRECEDENT] to urge that the respondent Nos.1, 2 and 8 constitute 'State' within the meaning of [SECTION] of the [ACT] and therefore, writ can be issued to them. He has also relied upon the judgment of the Hon'ble Supreme Court in the case of [PRECEDENT] to demonstrate that person like petitioner gets a status of permanent employee and he cannot be terminated arbitrarily or abruptly by giving him a notice of three months or pay in lieu Judgment 5 wp5522.16.odt thereof. To buttress his contentions about unconstitutionality of hire and fire he has relied upon the judgment of the Hon'ble Supreme Court in the case of [PRECEDENT] and in the case of [PRECEDENT].
6. Advocate Shri [ENTITY] on behalf of the respondent Nos. 1, 2 and 8 has opposed the petition. He has submitted that the petitioner was working in the college of respondent No.8 for imparting instructions in [ENTITY] to M.B.B.S. students. This was an additional facility made available by the respondent No.8 to give some idea of traditional medicine system to those students and did not form part of their curriculum. This was approved by the Government and hence, 50% of the pay-bill of the petitioner was shouldered by the Union of India, 25% was shouldered by the State Government and remaining 25% was paid by the respondent Nos. 1 and 2.
7. He further adds that the centre for alternate medicines was never under the respondent No.8 and it is part of '[ENTITY]' which since inception of the respondent Nos.1 and 2 is looked after and managed by them. Because of these developments though the respondent Nos.1 and 2 could not restore teaching to M.B.B.S. students Judgment 6 wp5522.16.odt as part of the health care services always extended at [ENTITY] [ENTITY] Services are also provided there. The service is rendered to OPD patients only and there is no training or research programme at that centre. He is relying upon the facts disclosed in paragraph Nos. 2, 3 and 4 of the amended affidavit of the reply filed by the respondent Nos.1, 2 and 8 on 09/04/2018. He points out that the factual assertions therein have not been rebutted by the petitioner. According to him, in this situation, the starting of [ENTITY] services in the centre for alternate medicines cannot be viewed as extension of teaching in [ENTITY] under the respondent No.8 or its substitute.
He has relied upon the following judgments of the Hon'ble Supreme Court to buttress his submissions:
[PRECEDENT]M.Ramanatha Pillai Vs. State of Kerala)
ii) (1976) 2 SCC 844 (State of Haryana Vs. Des Raj Sangar)
iii) (2006) 4 SCC 132 (Avas Vikas Sansthan Vs. Avas Vikas Sansthan Engineers Assn.)
iv) (2008) 2 SCC 65 (State of Haryana Vs. Navneet [ENTITY])
8. Advocate Shri [ENTITY] for the respondent No.9 [ENTITY] has submitted that the respondent No.8 college is awarding education in Allopathic Medicine only and it is regulated by syllabus Judgment 7 wp5522.16.odt prescribed by Medical Council of India. [ENTITY] Teaching Centre is part of that syllabus, hence, the respondent No.9 has not recognized any [ENTITY] Department in the respondent No.8 college and has not granted any approval to the petitioner as a Professor in the respondent No.8 college. He submits that the arrangement made by the respondent No.8 is not with consent or consultation with the respondent No.9.
9. The learned A.G.P. adopts arguments of advocate Shri [ENTITY].
10. After hearing the respective counsel, we find that closure effected on 17/05/2016 is not in dispute. The petitioner has made following prayers :
"i) Call for the record of the Respondents concerning the matter;
ii) quash and set aside the impugned order under Ref.
No.484 dated 17-05-2016 to close down the Department of [ENTITY] and O.P.D. of [ENTITY] and the impugned order under Ref. No.485 dated 17-05- 2016 to terminate the service of the petitioner from the post of Professor & Head of the Department of [ENTITY], issued by the Respondent No.2 the Secretary [ENTITY] Sevagram, Distt. Wardha (Annexure-I),
iii) order immediate reinstatement in service of the petitioner in his original post of permanent/ confirmed Professor and Head of the [ENTITY] Department & its OPD by granting seniority without break in service or to absorb the petitioner in the Judgment 8 wp5522.16.odt newly set up Centre for Alternative Systems of Medicine as its Head with Seniority and pay protection and by retaining his status of confirmed/ permanent Professor;
iii-A) hold that the action of the Respondent [ENTITY] by closing down the [ENTITY] Department and starting the same [ENTITY] Department and its OPD by giving different name as Centre for Altrnative Systems of Medicines is with mala fide intention to terminate the services of the petitioner.
iv) grant back wages, arrears of salaries by treating the intervening period as duty period;
v) grant any other relief which may deem fit by this Hon'ble Court in the interest of justice; and
vi) saddle the cost of this Petition on the Respondents." The prayer (iii-A), mentioned supra, has been specifically added after amendment.
11. The facts pointed out by the respective counsel are not in dispute. It is not the case of the petitioner that at [ENTITY] the respondent Nos. 1 and 2 are engaging any lecturers and lessons or instructions are being imparted to the students undergoing [ENTITY] graduation.
12. The law on the point of closure is looked into by the Hon'ble Apex Court way back in 1974 in the case of [PRECEDENT] vs [PRECEDENT] and in 1978 in case of [PRECEDENT]. The Hon'ble Apex Court has then held that a person managing or running industry or any establishment has a right to close it down. It has also held that if closure as a matter of fact is established, the intention of person closing it down is not relevant. In the facts before us, the fact of closure is not in dispute.
13. Reliance upon three judgments by Advocate Shri [ENTITY] to point out how hire and fire is deprecated by the Hon'ble Apex Court is not relevant in present facts. Had [ENTITY] Department continued with the respondent No.8, after termination of the petitioner, the situation would have been otherwise. Had the petitioner established continuation of the very same work with the respondent No.8 again some cognizance of his grievance against termination order could have been taken.
14. [ENTITY] is Health Care Service managed by the respondent Nos.1 and 2 since their inception. The respondent Nos. 1 and 2 are not imparting instructions to M.B.B.S. graduate. That work is done by the respondent No.8 college. The petitioner or other employees were working with the college. The work done by them is discontinued after 17/05/2016. Only the Ayurvedic Health Care is made available thereafter in [ENTITY] by the respondent Nos. 1 and Judgment 10 wp5522.16.odt
2. This, therefore, cannot be seen as continuation of very same activity. The services provided by the respondent Nos. 1 and 2 at its centre for alternate medicine therefore, are independent and distinct. The petitioner, therefore, cannot stake any right to it.
15. Advocate Shri [ENTITY] had submitted that vacancies in centre for alternate medicines for [ENTITY] have been filled in without issuing proper advertisement. We find the grievance unsustainable because the respondents have stated that on notice board the available workload was made known.
16. Affidavit in paragraph No.3 shows that the employees at the said centre are paid consolidated salary that too only from the fund of the respondent No.1 society. No grant is received for that work.
In this backdrop it is apparent that the question of mala fides is not relevant at all.
17. Reliance by Advocate Shri [ENTITY] upon four judgments mentioned supra also need not be delved into since those judgments deal with right of the employer to abolish the post. Here the entire discipline itself has been closed down resulting in cessation of the work, leading to termination of the employees engaged in that activity.
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18. In so far as contention that because of the grudge or malice entertained by the respondents closure has been ordered, we have to refer to communication dated 27/10/2014 sent by the respondent No.2 to respondent No.1. That communication is on the subject of action against the petitioner on the basis of the enquiry report of the Department of AYUSH. In last paragraph, the communication states that although institutional enquiry committee did not find any adverse material against the petitioner, the Department of AYUSH recommended the disciplinary proceedings against him. Because of these recommendations, the Secretary has proposed imposition of major penalty upon the petitioner. The suggestion no doubt is unsustainable, however, the subsequent events do not show any punishment imposed upon the petitioner because of this communication. Closure and consequential termination cannot be viewed as an act of punishment. The punishment after departmental enquiry is in the domain of Service Rules and Service Conditions.
19. We, therefore, find no merit in the petition. The petition is accordingly dismissed. Rule discharged. No costs.
( [ENTITY], J ) ( [ENTITY], J.) RRaut