IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) WRIT APPEAL No. J^£lj2QQS (Dsyiaien • Bench) APPELLANTS (Petitioner) .^./^ ^o" ^•^•^ RESPONDENTS: 1. SMT. ARCHANAAGRAWAL W/o Shri Anil Kxainar Agrawal aged about 47 years ^ Teacher Senior Secondary Sch(M)l Kiraiuiul HSCL Type H Teacher's Colony Village : Kirandul Distt.: Bastar (MP/CG) VERSUS Chaiasnan cuin Managing Director National Mineral Etevelopiiient Corporation Limited Registered office : 10-3-311/A Khanji Bhawan Castle HiUs, Masab Tank Hyderabad 500028 (AP) 2. Du-ector (Prodii.) Natioiial Mineral Development Corporation Lunited Registered office : 10-3-311/A Khanji Bhawan Castie Hills, Masab Tank Hyderabad 500028 (AP) 3< SCTiior Maiiaser (PersonneD Baila DOa Iron ore Project NMDC Deposit No. 14 Kirandui Distt.: Dantewara (Bastar) MP/CG 4. ¥icePrmcipal BIOP, Sr. Secondary School NMDC Deposit No. 14 Kirandul Distt.: Dantewara (Bastar) MP/CG WRIT APPEAL UNDER SECTION 2 OF THE CHHATTISGARH HIGH COURT (Appeal to Benchl ACT. 2006 ^^®^a^-» HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justjce Prashant Kumar Mishra Writ Appeal No.125 of 2008 Smt. Archana Agrawal versus Chairman-cum-Managing Director, National Mineral Development Corporation Limited and others JUDGMENT FOR CONSIDERATION Sd/- JUDGE 25-09-2010 Hon'ble Shri I.IVI. Quddusi. J.: J^&^ tTC^--, Sd/- LM. Quddusi Judge Po?l_fQ^13^ft<!»-901 PL Sd/- Prashant Kumar Mishra Judge / a: ^'% 5 '%^ 1 A ^^ i 'lf / -:^.JS?^ '~^^-,^^' HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra Writ Appeal No.125 of 2008 Appellant Respondents versus Smt. Archana Agrawal Chairman-cum-Managing Director, National Mineral Development Corporation Limited and others Present: Shri V.G.Tamaskar, counsel for the appellant. Shri P.S.Koshy, counsel forthe respondents. Writ Appeal under Section 2 of the Chhattisaarh Hiah Court fAppeal to Division Bench) Act JUDGMENT (Delivered on^')--03-2010) Per Prashant Kumar Mishra. J.: This writ appeal is directed against the order passed by the learned Single Judge dismissing the appellant's writ petition. 2. In the writ petition, the petitioner has impugned the validity of the memo dated 28-4-1996 (Annexure P-7 with the writ petition). (The Annexures shall be referred to as have been numbered in the writ petition). By this memo, the petitioner was called upon to reply to the charge-sheet issued under the provisions of the certified standing orders of respondent National Mineral Development Corporation Limited (for short 'the NMDC') issued by the Vice- Principal of BIOP Secondary School. The petittoner has also challenged the punishment order dated 2-8-1999 (Annexure P-8) ..^••^ and the appellate order dated 16-1-2000 (Annexure P-11). The petitioner has been visited with the penalty of reduction to lower grade, i.e., from Teacher (S-8) to Assistant Teacher (S-4) with a basic pay of Rs.3106+P.P. of Rs.678 under the standing orders. 3. The petitioner was appointed as Assistant Teacher vide order dated 14-6-1987 (Annexure P-1). In the appointment order, it was mentioned that for the purpose of conduct, service and disciplinary control, the petitioner would be governed by the standing orders and in respect of the matters not governed by the standing orders, the petitioner would be governed by the rules and regulations of the NMDC. According to the petitioner, subsequently, pursuant to an advertisement, she applied for the post of .Senior Teacher and participated in the interview and thereupon she was appointed as Senior Teacher on probation vide order dated 7-4-1992 (Annexure P-3). The provisions of standing orders of the NMDC was made applicable as would be seen from the petitioner's appointment letter as Senior Teacher. 4. While the petitioner was serving as Teacher (Chemistry), a memo dated 28-4-1996 (Annexure P-7) was issued by the Vice- Principal containing the followingcharges: "ARTICLE OF CHARGE N0.1. On 21.04.96, the notified date for declaring annual progress report of the year 1995-96 in respect of all students of BIOP School. Smt. Archana Singhal being the Class Teacher of Section VI-B was advised by the Teacher Incharge Smt. J.P. Singh, BIOP (Middle) School, main campus to hand over the annual progress report for -7^\ ^ 1995-96 to all students of Class VI-B present in the school at 9.30 A.M. Although the said Smt. Archana Singhal received all the progress report cards from the said "Smt. JR Singh, she deliberately kept the same with her till 6.30 p.m.,. inspite of several requests, reminders, persuation made to herby the students, teachers, Vice Principal and as a result of which the students of Class VI-B could not receive their progress reports on 21.4.96 although all the other students of all other classes received the same on 21.4.96 itself. She handed over the all progress report cards to Vice Principal at about 6.30 p.m. only without distributing the same to the students of Class VI-B. The above act on the part of said Smt. Archana Singhal caused embarrassment to the students, teachers, parents, Vice Principal and the Management of the Project. It has also damaged the reputation and image of the Project school. Therefore, the above act on the part of the said Smt. Archana Singhal is a major misconduct violating the following Certified Standing Orders applicable to all workmen ofall Projects and Feasibilities of NMDC Ltd., which are read as under:- 28 (2) (i) Wilful insubordination or disobedience, whetheralong or in combination with others, to any lawful and reasonable order of a superior. 28 (2) (ii) Striking or slowing down work or inciting others to strike or slow down work in contravention of the provisions of any law or rule having the force of law. 28(2)(vii) Drun^enness, fighting, riotous, disorderly or indecent behaviour within the premises of the Management. 28 (2) (xxv) An act subversive of Discipline. ARTICLE OF CHARGE N0.2. While keeping the progress report cards of VI-B with her, Smt. Archana Singhal, Teacher, Token No. 16294, by flouting of the disciplinary norms without the permission oftheVice Principal entered into his room on 21.4.96 at 3.00 P.M. and without his consent she occupied one chair and continued to sit in front of him till 6.30 p.m. Inspite of several requests made by Vice Principal, she did not care to leave his chamber and also did not allow him to discharge his official duties from 3.00 PM to 6.30 PM, as a result of which students, teachers, and parents who were desirous to meet him for official purpose could not meet him and Vice Principal was not allowed to move from his chamber by her and he was not even allowed by her to respond to nature's call. The above act on the part of Smt. Archana Singhal, constitutes major misconduct as the same was violation of the Certified Standing Orders - applicable to all workmen ofall Projects and feasibilities of NMDC Limited which are read as under: 28 (2) (i) - Wilful insubordination or disobedience, whether along or in combination with others, to any lawful and reasonable order of a superlor. 28(2)(vii) Drunkenness, fighting, riotous, disorderly or indecent behaviour within the premises of the Management. 28 (2) (x) Causing damage to work in process or to any property of the Management willfully or through negligence or carelessness. 28 (2) (xxv) An act subversive of Discipline. By Order Sd/-28/4/96 Vice Principal" @ '-<' 5. On completion of the disciplinary enquiry, the Senior Manager (P&A) by his order dated 29-7-1999/2-8-1999 (Annexure P-8), imposed a major penalty of reduction to lower grade, i.e., from S-8 to S-4. Her appeal against the punishment order was also rejected by the appellate authority vide Annexure P-11. The contention of the petitioner before the learned Single Judge was that her appointment on the post of Senior Teacher was a fresh appointment, therefore, she could not have been reverted to the post of Assistant Teacher. It was also contended that the standing order are not applicable with respect to a Teacher inasmuch as Teacher is not a workman. It was further argued by the petitioner that the NMDC Employees (Conduct, Discipline and Appeal) Rules, 1978 are applicable wherein CMD alone has the power to issue a charge-sheet, therefore, issuance of charge-sheet by the Vice-Principal was bad in law and that the issuance of charge-sheet and imposition of penalty is also in violation of the Central Board of Secondary Education Affiliation Byelaws. It was lastly contended that her appeal preferred before the CMD was decided by the Director (Production) which is not proper. Stand of the NMDC before the learned Single Judge was that the petition being preferred against individual officers and not against the NMDC is not maintainable; in the terms and conditions of the appointment order, it was clearly mentioned that the standing orders would be applicable and since the petitioner is bound by the terms of appointment, she is estopped from contending otherwise; School of NMDC is a part of industry and is not an independent establishment and thus the petitioner is governed by the contract of 'l- - . . • f employment and not by the Rules, 1978; the petitioner having 1 ^ accepted all the benefits and other facilities, which the petitioner was entitled to on the applicability of standing orders, she cannot be allowed to raise a grievance that standing orders are not applicable; no prejudice is caused to the petitioner by applying thestanding orders as the petitioner has not challenged the enquiry report, the punishment order and the appellate order on the ground that the findings are perverse. 6. The learned Single Judge has dismissed the writ petition by the impugned order. 7. In this writappeal, both the learned counsel have reiterated their respective stand taken before the learned Single Judge. 8. Learned counsel for the appellant has argued that learned Single Judge has not properly appreciated the ground raised in the writ petition and the order calls for interference. On the other hand, learned counsel for the respondents has supported the order by submitting that in the absence of any prejudice having been caused to the petitioner by application of standing orders and the petitioner having not challenged the enquiry report the order passed by the learned Single Judge does not call for any interference. Learned counsel for the respondents would further submit that the petitioner was appointed to S-8 grade which is equivalent to L-8 grade in the cadre of workman and that there being no post of the grades L-5, L- 6 or L-7 for a Teacher and the petitioner having been initially appointed as Assistant Teacher in S-4 grade and was thereafter ^appointed as Teacher in S-8 grade, the reversion is made on the ^, ' w .. /:: (^ immediate lower grade for a Teacher and the same is in accordance with law. The respondents have produced the record and we have perused the same. 9. In the letter of appointment as Assistant Teacher (Annexure P- 1) and thereafter as a Teacher in Annexure P-3, it is clearly mentioned that for the purpose of conduct, service and disciplinary control as well as in all other matters, the appointee will be governed by the standing orders for all the projects and feasibilities under the control of the NMDC and in respect of matters not covered by the standing orders, she shall be governed by the rules and regulations of the NMDC as may be enforced from time to time. Under clause 29 of the standing orders reduction to a lower grade or post or lower stage in a time scale is a punishment for committing major misconduct. Annexure P-8 is the order of punishment imposed upon the petitioner. 10. The petitioner had earlier preferred Writ Petition No.2035/1 997 to challenge the issuance of charge-sheet. Another Writ Petition No.4900/1999 was preferred for a direction to the appellate authority to decide her appeal. Both the petitions were disposed of by order dated 26-11-1999. 11. True it is that a Teacher is not a workman as held by the Supreme Court in the judgments referred to in paragraph 1 O of the order passed by the learned Single Judge but in the facts of the present case, it would be noticed that the standing orders have been made applicable as a condition in the order of appointment. The ^ petitioner has never been treated as a workman. The standing orders have only been made applicable for the purpose of conduct, service and disciplinary control as well as in all other matters to the Teacher including the petitioner. The petitioner has accepted the terms of appointment and has also been granted benefits whichare more beneficial to the petitioner under the provisions of the standing orders through out her career which are otherwise not available to a Teacher. Thus, applicability of the standing orders has become a part of the contract of employment between the employee, i.e., the petitioner and the employer. The learned Single Judge has also found that under the standing orders, the authorities, i.e., the Principal and the CMD or Director (Production) are competent to impose punishment and dispose ofthe appeal. 12. At the time of hearing, the learned counsel for the respondents has shown to us a copy of memorandum of settlement arrived at on 8-10-1994. In the said settlement, the management has considered and revised the line of promotion (LOP) for teaching staff. The said part ofthe settlement is reproduced hereunder: "3. REVISION OF LOP FOR TEACHING STAFF The Memorandum of Settlement dated 5 May 1985 already covers the LOP for the teaching category as Asst. Teacher (L-4 scale) - Teacher (L-8 scale) - Sr. Teacher (JO's scale). At BIOP Dep-14, where the Corporation has established its own school in the first instance and being the oldest Institution some of the Teachers in L-8 scale, even though they have rendered useful service for the ibetterment of the children of employees, are stagnating in that scale for want of vacancies at the ^ '^ 's^»sa '""^ai 3) '•^} level of Sr. Teacher, subject-wise, or for want of PG qualification in the required subject, whereas in the ministerial and allied categories, there exists promotion avenue covering L-9 and L-10 scales for personnel only with Graduate qualifications. Therefore, in order to provide relief to this category, it is hereby agreed that - a. Teachers in L-8 scale who are minimum Graduates with B. Ed. qualification shall have further promotion avenue for L-9 and L-10 scale. Thus the revised LOP of teaching staff covered under workmen category shall be as under: Asst. Teacher (L-4) - Evaluation by Screening Committee in DPC - Teacher (subject-wise) (L-8) - Sr. Teacher Grade II (L- 9) - Sr. Teacher Grade 1 (L-10). b. The existing designation of teaching category in workmen cadre shall be changed as given at (a)above. c. At the level of Asst. Teacher, persons shall be inducted depending upon requirements, subject-wise, with the minimum qualification of Graduation with B.Ed. with required experience in teaching. Teaching staff in L-4 to L-10 shall be required to teach any class for not less than two subjects, depending upon needs and requirement as per the practice in vogue in the respective Educational Board of the State/CBSE. d. Filiing up of posts beyond workmen cadre, i.e., in JO's scale of pay shall be based on 'vacancies in a particular subjecVdiscipline ^^ys I.1 e. 10 with post-graduate qualification as approved/prescribed by the respective Board to which the school is affiliated and subject to suitability to he adjudged by the selection committee based on interview. Whenever such vacancy arises, existing teachers with the required qualification who have completed minimum three years service as Teacher (in L8 to L10 scale) are eligible for consideration for promotion on selection basis for particular/discipline. In case no such internal candidates are available/suitable, external recruitment shall be resorted to. Other provisions of the Settlement dated 5 May, 1985 shall remain unchanged." 13. On a reading of the above-quoted settlement, it would be noticed that the next lower post for a Teacher (L-8 scale equal to S-8 scale) is to the post of Assistant Teacher (L-4 scale equal to S-4 scale). Thus, the contention of the petitioner that she has been brought to several scales down by imposing the subject punishment, is not correct as there is no scale between S-8 to S-4 in the teaching line. 14. There is no infirmity in the order passed by the learned Single Judge dismissing the petitioner's writ petition. The writ appeal has no substance, which deserves to be and is hereby dismissed. There shall be no order as to costs. Sd/- LM. Quddusi Judge Sd/- Prashant Kumar Mishra Judge ^