CWP No.6887 of 1987 -1- CWP No.4730 of 1988 ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CWP No.6887 of 1987 Date of decision:31.05.2011. The Managing Committee of Arya College, Panipat and another ...Petitioners Versus The State of Haryana and another ...Respondents (2) CWP No.4730 of 1988 Date of decision:31.05.2011. Smt. Pushpa Sharma ...Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. S.P.Jain, Senior Advocate, with Mr. Dheeraj Jain and Mr. Davesh Moudgil, Advocate, for petitioner in CWP No.6887 of 1987 and for respondent No.3 in CWP No.4730 of 1988. Mr. Balram K. Gupta, Senior Advocate, with Mr. Vijay Saini, Advocate, for petitioner in CWP No.4730 of 1988 and for respondent No.2 in CWP No.6887 of 1987. Ms. Sushma Chopra, Addl. A.G., Haryana for the respondent State in both the writ petitions. ***** RAKESH KUMAR JAIN, J. These two writ petitions are being decided together by this common order because parties to the lis and issues involved are the same. In CWP No.6887 of 1987 titled as `The Managing Committee of Arya College, Panipat and another Vs. The State of Haryana and another' [for short “first writ petition”], the petitioners have assailed validity of orders passed by the Director, Higher Education, Haryana [for short “DHE”] and the Commissioner and Secretary to Government, Haryana Education Department CWP No.6887 of 1987 -2- CWP No.4730 of 1988 ****** [for short “the Secretary”] respectively by which the appeal filed by Smt. Pushpa Sharma [for short “the employee”] against the order of the Managing Committee, Arya College, Panipat [for short “the Managing Committee”] dated 31.07.1986 by which her services were dispensed with, was allowed by the DHE vide order Annexure P-9 and further appeal filed by the Managing Committee was dismissed by the Secretary vide order Annexure P-11. CWP No.4730 of 1988 titled as 'Smt. Pushpa Sharma Vs. The State of Haryana and others' [for short “second writ petition”] is directed by the employee questioning jurisdiction of the Managing Committee in extending the period of probation by its decision taken vide Annexure P-3, the decision taken for dispensing with her services vide Annexure P-8 and order Annexure P-9 by which she had been asked to demit the office. The second writ petition was admitted on 06.09.1988 with the following order: - “Contends that orders Annexures P12 and P14 in this petition are already under challenge on behalf of the Management in CWP No.6887/87 which stands admitted. Admitted. To be heard along with that case.” In view of this order, both the writ petitions have been heard and are being disposed of together. It is pertinent to mention here that in the second writ petition, the employee had filed CM No.178 of 1996 for ad-interim stay in order to restrain the Arya College, Panipat [for short “the College”] from filling up the post of Lecturer in the Department of Chemistry, but the said application was disposed by this Court on 01.02.1996 with the following order: - “This is an application for ad-interim stay restraining the respondents from filling up the post of Lecturer in the Department of Chemistry in Arya College, Panipat. The grievance being that the petitioner's services were wrongly terminated, which is subject-matter of challenge in the writ petition and in case the writ petition is allowed, then there will be no vacancy to be filled in for the post of lecturer in CWP No.6887 of 1987 -3- CWP No.4730 of 1988 ****** the Deptt. Of Chemistry. After hearing the learned counsel for the parties, I am of the view that if the respondents wish to fill in the aforesaid post, they are at liberty to do so, but the same shall be subject to the final order that may be passed in the writ petition. This should be clearly mentioned in the appointment order, if at all an appointment is made during the pendency of the writ petition. The C.M. Application is disposed of in the above terms.” In order to appreciate the controversy, a brief narration of undisputed facts is necessary. The employee was a confirmed Lecturer of Chemistry in S.D.College of Education, Narwana (Jind). On closure of the said college, she was adjusted with protected salary in the College by order of the Government. On 05.08.1984, the Managing Committee issued her an appointment letter appointing her as a Lecturer in Chemistry in the college subject to approval of the Vice Chancellor in the pay scale of `700-1600 plus allowances, but decided to be paid a monthly salary of `860/-. She was kept on probation as per University Rules and her service was governed by the Service and Conduct Rules for teachers of the Non-Government affiliated colleges. On 22.05.1985, the meeting of the Managing Committee was held in which it was decided that “at the end, Sh. Om Parkash Ji Singla was given this authority that he can extend the probation period of all the lecturers who are on probation. It is worth-mentioning that the letters extending the period of probation be delivered to Smt. Pushpa Sharma and Sh. Raj Pal Singh before the completion of one year”. Pursuant to that, the probation period of the employee was extended for one year on 01.08.1985 w.e.f. 06.08.1985. Admittedly, the employee did not challenge the wisdom of the Managing Committee at that time when her probation period was extended, rather on 14.01.1986, she wrote a letter to the DHE for seeking a direction to the College to appoint her on regular basis. In reply, the DHE, vide his letter dated 03.02.1986, informed the employee that “in this matter, it is informed that it is CWP No.6887 of 1987 -4- CWP No.4730 of 1988 ****** not possible for the department to give any such direction to the College that they may appoint you as a teacher, on regular basis. In this matter, necessary action has to be taken by the Managing Committee, only”. Thereafter, the Managing Committee met on 30.07.1986 in which its 16 members participated. Though discussion on the confirmation of the employee was not included in the agenda which was circulated to the members of the Managing Committee, but one of the item of the agenda was that “any other necessary item with the permission of the Chair”. Hence, with the permission of the Chairman, issue of confirmation of the employee was discussed. The Principal of the College informed that the overall strength of the students in the College has diminished and workload in the Department of Science has reduced. He suggested that the post of the Lecturer in Chemistry be abolished. The reference was also made to the letter dated 25.07.1986 issued by the DHE, the work and conduct of the employee was discussed in detail which was not found satisfactory and a decision was taken by majority of 12 members to dispense with the services of the employee. Thereafter, vide order dated 31.07.1986, the services of the employee were dispensed with by paying her one month's salary in lieu of one month's notice. The employee then challenged the order of her termination by way of an appeal before the DHE which was allowed on the ground that she was a confirmed employee of S.D.College of Education, Narwana and was adjusted as a confirmed employee in the College and cannot be regarded as a fresh appointee and that her probation was not extended by the Competent Authority and as such she was held entitled to relief under the Haryana Affiliated Colleges (Security of Service) Act, 1979 [for short “the Act”]. Consequently, the order dated 31.07.1986 was set aside and it was ordered that she may be deemed to be in service from that date. The order of the DHE was challenged by the Managing Committee by way of an appeal before the Secretary. The Secretary took the same view that the employee was adjusted in the College on the order of the Government and was given pay protection as a confirmed employee and if her performance was unsatisfactory or there was reduction in workload, the College should have approach the DHE and requested for her absorption in some other institution instead of dispensing with CWP No.6887 of 1987 -5- CWP No.4730 of 1988 ****** her services. It was observed that since the employee was confirmed, therefore, her case could not have been considered to be of a fresh appointee and in that circumstance, her services could not have been terminated without following the due procedure in terms of the Act. Aggrieved against the orders of the DHE and the Secretary, the Managing Committee has filed the first writ petition and aggrieved against the manner in which the Managing Committee has taken the decision to dispense with his service, the employee has come up in the second writ petition. These are the broad facts which I have culled out from both the writ petitions. While assailing the orders of DHE (Annexure P-9) and the Secretary (Annexure P-11) in the first writ petition filed by the Managing Committee, Shri S.P.Jain, Senior Advocate, has argued that the contract of employer and employee came into being between the parties by virtue of appointment letter dated 05.08.1984 in which it was clearly spelt out that the employee is kept on probation and has not been inducted on regular basis which is further evident from the letter dated 03.02.1986 issued by the DHE to the employee in which it was brought to her notice that the Education Department cannot give a direction to the College for her appointment on regular basis as it would be a decision to be taken by the Managing Committee only. He further submitted that there is no documentary evidence on record from which it could be ascertained that at the time of passing of the order of adjustment by the Government, protection was also given for appointing the employee on regular basis especially when the Managing Committees of both the Colleges are altogether different as the employee was earlier working in the S.D.College of Education, Narwana (Jind) and has been adjusted in the College. He submitted that letter dated 03.02.1986 by which her prayer was declined was not challenged by her in the writ petition nor she ever challenged action of the Managing Committee for retaining her on probation till her services were dispensed with. He also argued that the decision was taken by the Managing Committee to extend the probation period in its meeting dated 22.02.1985 after taking into account her work and conduct of 6 months and when it was found that the College is suffering from financial constraints on account of substantial CWP No.6887 of 1987 -6- CWP No.4730 of 1988 ****** reduction in the students strength and the work and conduct of the employee was not found satisfactory, an innocuous order of dispensing with her services was issued on 31.07.1986. He has, thus, submitted that there is no error of law in passing the order of termination, rather the orders passed by the DHE (Annexure P-9) and by the Secretary (Annexure P-11) are illegal which are liable to be set aside. Dr. Balram K. Gupta, Senior Advocate, appearing on behalf of the employee, has submitted that after the closure of the S.D.College of Education, Narwana (Jind), the employee was adjusted by the Government order with her protected pay in the College which cannot be termed to be an initial appointment. He has supported the orders Annexures P-9 and P-11 of the DHE and the Secretary respectively while contending that the employee was adjusted as a regular employee whose status could not have been changed on account of her adjustment in the present College on the order of the Government. He further challenged the correctness of the meetings of the Management Committee dated 22.02.1985 and 30.07.1986, in which probation period of the employee was extended and she was not confirmed, on the ground that if assuming for the sake of arguments though not admitted, that the employee was on probation as projected by the Managing Committee, there was no occasion for the Managing Committee for adjudging her work and conduct within six months and delegating powers to Shri Om Parkash Singla in this regard. He has referred to a letter of the Dean of Colleges dated 22.05.1981 to contend that the Governing Bodies may not grant ex-post facto approval to a decision taken by the office bearers of the Management on their own. In respect of the meeting dated 30.07.1986, he has first referred to the agenda dated 09.07.1986 in which the issue of confirmation of the employee on probation was conspicuous by its absence and has also referred to another letter of the Dean of Colleges dated 19.09.1985 in which it is provided that all the important issues including the suspension, termination, confirmation, withholding of increments, award of punishments etc. may be decided in the meeting of the Governing Body after taking into confidence all the members and the notice of the meeting, copy of the agenda and proceedings of the meeting must be supplied CWP No.6887 of 1987 -7- CWP No.4730 of 1988 ****** to the University as well as Government well in time. He has submitted that no details have been given about the shortcomings in the work and conduct of the employee which had been made the basis for dispensing with her service, therefore, it is alleged that the action of the Managing Committee was unfair, unjust and arbitrary. In support of his submission, he has relied upon a decision of the Supreme Court in the case of Chandra Prakash Shahi V. State of U.P. And others, (2000) 5 Supreme Court Cases 152 and drawn the attention of this Court to the observations that in the relationship of master and servant there is a moral obligation to act fairly. The defect in working of the employee should be brought to his notice so that he may be put on the right track and without any such communication it is arbitrary to give a movement order on account of unsuitability. On the contrary, Shri S.P.Jain has relied upon the decisions of the Supreme Court in the case of Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 Supreme Court Cases 520, Dhanjibhai Ramjibhai V. State of Gujarat, 1985(1) SLR 595 and a Full Bench judgment of this Court in the case of Guru Nanak University V. Dr. (Mrs.) Iqbal Kaur Sandhu and others, AIR 1976 Punjab & Haryana 69. I have heard both the learned counsel for the parties and perused the record with their able assistance. As I have already observed that the facts are not much in dispute. Hence, the question which is to be decided in these writ petitions is as to “whether the employee was appointed by the College on regular basis and was not on probation and whether the decision taken by the Managing Committee to dispense with her service was in accordance with law”. There is no evidence brought on record by the employee from which this Court could gather that she was adjusted in the College by the Managing Committee on regular basis. The relationship of employer and employee came into being between the parties by virtue of appointment letter dated 05.08.1984 in which it has been categorically mentioned that she was kept on probation. She did not challenge the order of her appointment. After six months of her service, the Managing Committee had an occasion to meet and discuss her work and CWP No.6887 of 1987 -8- CWP No.4730 of 1988 ****** conduct on 22.02.1985 in which it was decided to extend her probation period which was ultimately extended vide letter dated 01.08.1985 w.e.f. 06.08.1985 for a period of one year which was not again challenged by her at that time and has been challenged now. Thereafter, she had written a letter to the DHE on 14.01.1986 in order to get a direction to the College for appointing her on regular basis which was declined and she was informed on 03.02.1986 in this regard that it is not possible for the Education Department to give a direction to the College for her appointment on regular basis as it would be within the purview of the Managing Committee alone. The said communication was never challenged by the employee and she remained satisfied with her appointment on probation till she was asked to leave the College on 31.07.1986. From these facts, coupled with the fact that the employee was appointed on regular basis by a different management in a private College and was not adjusted by the Government on regular basis in the College, she cannot, in the garb of pay protection, claim that she had been inducted as a regular Lecturer. In view thereof, I do not agree with the first contention of the learned counsel for the employee as well as observations of the DHE and the Secretary that she was a confirmed employee of the College. In respect of the second submission that the proceedings of the Managing Committee in not confirming her and terminating her services at the stage of probation is illegal, in that regard the decision was taken by the Managing Committee on 22.02.1985 and only authority was given to the Secretary of the Managing Committee to communicate. The said extension of probation, which came into effect on 01.08.1985, was never the bone of contention. Insofar as the meeting dated 30.07.1986 is concerned, the contention of learned counsel for the employee is not tenable that there is a violation of the instructions of the DHE in not including the item of confirmation in the agenda which was discussed in the said meeting because item No.4 in the agenda circulated on 09.07.1986 for the meeting which was held on 30.07.1986, it was provided that any necessary item with the permission of the Chair will be discussed and accordingly the matter was taken CWP No.6887 of 1987 -9- CWP No.4730 of 1988 ****** up for discussion with the order of the Chairman. In this meeting, there were 16 members present. The Managing Committee had discussed the issue of confirmation of the employee on the touchstone of workload and suitability. On the issue of workload, it was observed that there were overall reduction in the students' strength from 1600 to 1200 in that year, meaning thereby that there was a substantial loss of ¼th of the students of the College and in the Science Stream of 10+2, the reduction was from 123 to 82. It was decided to abolish the post of the Lecturer in Chemistry and in that regard, letter dated 25.07.1986 issued by the DHE was also read over in which it was stated that workload of the previous years shows that there is one post extra in the College each in Physics and Chemistry. In respect of the work and conduct of the employee, it was recorded in the minutes that a lot of discussion was held, the Principal gave a detailed explanation and the Chairman obtained opinion from the members and except for 4 members, 12 members were in favour of the termination of the employee and ultimately only two members recorded their dissent votes. Therefore, the overwhelming majority of the members decided that the employee did not enjoy the confidence of the Management due to her unsatisfactory work and conduct. Insofar as the judgment relied upon by learned counsel for the employee in Chandra Prakash Shahi's case (supra) is concerned, the Supreme Court in Pavanendra Narayan Verma's case (supra) had discussed this judgment to the following effect: - “The case of Chandra Prakash Shahi V. State of U.P. related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held in to the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The CWP No.6887 of 1987 -10- CWP No.4730 of 1988 ****** order was held to be punitive and set aside.” Thus, this judgment is not applicable as in that case the probation period of the employee was over and in this case the employee was still on probation. In Dhanjibhai Ramjibhai's case (supra), the Supreme Court had observed as under: - “A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. Such candidates may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation.” In Guru Nanak University's case (supra), in respect of marshaling each and every defect/shortcoming of the work and conduct of the employee, this Court had observed as under: - “We have, however, found considerable difficulty in appreciating the viewpoint that because the relevant reports etc., did not furnish all the factual details and did not specify or opine as to how the work and conduct of the respondent were not satisfactory, therefore, these reports were either meaningless or could not be acted upon. If the learned single Judge CWP No.6887 of 1987 -11- CWP No.4730 of 1988 ****** meant to opine that for arriving at a plain assessment of the work of a probationer, the competent authority is compelled by law to marshal each and every one of the facts and incidents from which his subjective satisfaction as to the work and conduct has been derived, then we must in no uncertain terms differ and reject that view. Neither any authority nor any principle has been cited before us nor we are aware of any such proposition which requires the employer to marshal all the facts regarding the alleged unsatisfactory nature of the work and conduct of a probationer and then to arrive at a concise finding qua each of them for holding that he is subjectively satisfied or otherwise about the work of his probationer employee. Indeed, we take it as well- settled that the matter of the satisfaction of an employer about the work and conduct of his employee is entirely personal to the former and it is he alone who can opine about the same. It appears to us that it is not the province of the Courts to ordinarily go behind that view arrived at within the four corners of his right to do so. To our mind, it is entirely erroneous to consider the matter of satisfaction of the employer about the work and conduct of his employee as if it were a lis between them in which each side must marshal up his facts and arguments in extenso and then a speaking and rational order be recorded for holding whether the work was satisfactory or otherwise. Unless binding authority says to the contrary, we are on record to hold that satisfaction in these cases is the personal satisfaction of the employer. The learned Judge was, therefore, in error CWP No.6887 of 1987 -12- CWP No.4730 of 1988 ****** in requiring and wanting details of factual material and each instance of unsatisfactory work and conduct as