CW 5504/01 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5504/2001 Promila Verma Versus P.O. Rajasthan Non-Govt. Educational Institution Tribunal & Others. Date of Order ::: 28/08/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Mahendra Shah, for petitioner Mr. Ajeet Kr. Sharma, for respondents-College Instant petition has been filed by petitioner whose services have been terminated while working as Lecturer (Economics) in Agrawal College, Jaipur vide order dt.29/01/92 (Ann.2) which was assailed before Rajasthan Non-Govt. Educational Institution Tribunal (“Tribunal”) by way of appeal which was rejected vide judgment dt.20/08/2001 (Ann.15). Petitioner was appointed as Lecturer (Economics) on probation for one year vide order dt.21/01/85 which was extended for further one year and she was confirmed as Lecturer (Economics) w.e.f. 21/01/87 as per decision dt.28/02/87 of Managing Committee of the Agarwal college, Jaipur being run by Agarwal Education Society conveyed vide order dt. 22/08/87 (Ann.1). Petitioner while working on probation submitted application dt.17/08/86 seeking leave which was sanctioned upto 05/09/87 but CW 5504/01 //2// was extended upto 10/09/87 and granted without pay by ex post facto sanction vide order dt. 26/09/87. She again applied for leave on medical grounds for the period from 14/03/88 to 04/05/88 and after availing of medical leave, she resumed and returned on duty on 05/05/88. However, she applied for maternity leave for three months from 18/07/88 which was sanctioned vide order dt.17/08/88 and she resumed her duties on 15/10/88; and the College reopened after Diwali break on 14/11/88; but again she applied for leave without pay for two years from 14/11/88 vide letter received on 16/11/88 which was placed before Managing Committee in its meeting held on 24/12/88 wherein it was decided to grant her leave without pay upto 30/06/1989 with the stipulation to inform the College one month before 30/06/1989 for her return to duties and it was conveyed vide orders dt.11/01/89 & reminder dt.25/02/89. But before expiry of leave without pay, she applied for extension of leave from 01/07/89 to 28/02/90 on medical grounds and vide letter dt.08/03/90, Principal of the Institution informed that she willfully remained absent without prior sanction of leave from 01/07/89 to 28/02/90 which amounted CW 5504/01 //3// to break in service; to which she made representation. Managing Committee considered the same and decided to grant leave without pay in her favour from 01/07/89 to 28/02/90 with a warning not to proceed on leave in future without prior sanction as conveyed vide order dt.25/07/90 (Ann.R/5). Petitioner never reported for duty but sent application dt.23/10/90 (Ann.3) with medical certificate (Ann.4) praying for sanction of leave from 22/10/90 to 22/12/90; and correspondence took place between her & institution calling upon to submit sickness certificates. But the fact remains that since petitioner was not reporting for duty and sending applications one after the other extending leave on one pretext or the other, she was served with show cause notice (Ann.R.2) dt.06/02/91 as to why action should not be taken against her as she was absent continuously and therefore, neglecting duty deliberately. In reference to notice (Ann.R2), petitioner sent letter dt.19/02/91 (Ann.8) informing the Principal that she would join duty as and when she is physically fit. Taking note of her explanation, leave CW 5504/01 //4// applied for & extended by her was refused duly conveyed vide registered letter dt.27/05/91 (Ann.10). In reference thereto, she again sent letter dt.13/06/91 (Ann.11) to the Principal that she would join back whenever feels physically & mentally fit to discharge duties. Since her leave was never sanctioned but she continuously sent letters informing that she would join back only on her physical & mental fitness; because of her long absence, charge sheet dt.13/01/92 (Ann.R/3) was issued which as alleged by petitioner was never served but as is evident from letter of the Department of Posts dt.30/07/92 (Ann.R/2), it was delivered to petitioner on 16/01/92. It is pertinent to mention that apart from charge sheet dt.13/01/92, earlier correspondence had taken place at the self same address - to be more specific “C/o Shri GP Verma, IFS, Divisional Forest Officer, Murena (MP)”, who happens to be her husband, as was mentioned in letters sent by herself seeking extension of leave one after the other (supra) and all communications made on aforesaid address were served upon her. However, petitioner almost remained on leave after having been confirmed on 21/01/87. CW 5504/01 //5// No justification much less explanation came forward despite charge sheet being served upon her, Managing committee after examining complete record, took decision to terminate her services in terms of agreement executed as per provisions in Cl.(7)(i) of Appendix-III of Rules, 1963, duly conveyed vide letter dt. 01/02/92 (Ann.2) alongwith resolution passed in its meeting held on 29/01/92 – against which petitioner sent her written reply cum explanation dt.26/02/92 (Ann.13) and taking note whereof & other material on record, the committee finally affirmed its earlier decision dt.29/01/92 of terminating her services and conveyed vide letter dt.12/08/92 (Ann.14), which was earlier challenged by petitioner in CWP-5677/93 decided on 22/09/93 with the direction that she may file appeal before the Tribunal under Rajasthan Non-Govt Educational Institutions Act, 1989 (“Act 1989”). Appeal-326/96 was accordingly filed U/s 19 of the Act, assailing her termination. The Tribunal after taking note of material on record, upheld the decisions of Managing committee of the institution, of terminating her services by dismissing her appeal vide judgment dt. 20/08/01. Hence instant petition. CW 5504/01 //6// Counsel for petitioner submits that alleged charge sheet in fact was never served upon petitioner and even otherwise, it was merely a notice calling upon her explanation inasmuch as it did not contain statement of allegations/charges, which were required to be inquired into - in absence whereof, very initiation of proceedings as regards alleged wilful absence against her was in clear violation of principles of natural justice, having not been properly appreciated by Tribunal in right perspective vide judgment impugned; and deserves to be set aside. Counsel further submits that there was no material available on record before the Tribunal, by which absence could be inferred as wilful and respondent Institution has not recorded any justification for rejecting her application seeking leave or extension whereof and no reasonable opportunity was afforded in submitting her explanation. Counsel further submits that once as per Cl.(6) of agreement (Appendix-III to Rules, 1962), leave Rules of Rajasthan Service are applicable and in terms of R.86(3) of RSR, if at all there being wilful absence on the part of petitioner, respondent was under CW 5504/01 //7// obligation to hold inquiry under CCA Rules, but having failed to conduct inquiry as envisaged U/r 86(3) of RSR. Procedure adopted while terminating her services were not legally sustainable and learned Tribunal has committed an apparent error of law in upholding the decisions impugned, because procedure adopted in terminating her services is in clear violation of Art.14 of the Constitution and cannot be said to be in true compliance of principles of natural justice. In support, Counsel relied upon decisions of Apex Court in DK Yadav Vs. JMA Industries Ltd (1993 FJR (83) 271) & Managing Director UP Warehousing Corpn Vs. Vijay Narayan Vajpayee (1980(3) SCC 459). Counsel further submits that after petitioner was conveyed with decision of managing committee taken in its meeting held on 29/01/92, she submitted explanation which was rejected by respondents without assigning reasons inasmuch as it was not objectively considered by the committee while affirming its earlier decision vide order dt.12/08/92 (Ann.14) and the Tribunal has also committed serious error of law while passing judgment impugned. In support, reliance has been placed CW 5504/01 //8// upon judgment dt.29/01/96 in Malkiat Singh Vs. State of Punjab (1996(2) Supreme 541). Per contra, while supporting findings recorded by Tribunal vide judgment impugned, Shri AK Sharma, Counsel for Institution submits that no error has been committed by Tribunal while recording finding of fact vide judgment impugned which is based on proper appreciation of material on record, which may not call for interference by this Court within a limited scope of judicial review U/Art.226 & 227 of the Constitution. I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. Respondent-institution is an aided institution and at relevant time, service conditions of employee/teachers of such institution were regulated by Rules, 1963 and as regards holding of disciplinary inquiry, it is regulated in accordance with R.4(e) of Rules, 1963 and persons aggrieved by order passed U/r 4(f) was having remedy of appeal U/r 4(g) of Rules. Besides Scheme of Rules, 1963, Appendix III, being form of agreement, deals with Cl. (6) & (7) and as per Cl.(6) whereof, leave of a Teacher is to be regulated in accordance CW 5504/01 //9// with leave Rules of Government of Rajasthan. In regard to taking decision to initiate disciplinary action, being regulated in terms of Cl.(7) of agreement (Appendix- III), it is relevant to mention that Grant in- aid Rules, 1963 and so also Appendix appended thereto are administrative instructions having no binding force and the petitioner being a teacher employed in aided institution which is neither covered under terms “other authority” U/Art.12 of the Constitution, nor she was holding a civil post so as to make her entitle for protection of Art.311 of the Constitution. From the material on record it depicts that petitioner after being confirmed on 22/01/87, remained on leave for one or the other reason. Initially, she applied for leave on 17/08/86 which was sanctioned upto 05/09/87 but it was extended upto 10/09/87 and sanctioned without pay. She continued to remain on medical leave from 14/03/88 to 04/05/88 and thereafter on maternity leave from 18/07/88 for three months and resumed duties on 15/10/88 but after Diwali break she never turned up on 14/11/88 and requested for two years leave without pay from 14/11/88 which was considered by Managing committee in CW 5504/01 //10// its meeting held on 24/12/88 and decided to grant her leave without pay upto 30/06/1989 with the stipulation that she would inform institution one month before 30/06/1989 about her return to duties but instead of resuming duties, she continued to extend leave from 01/07/1989 to 28/02/90 on medical grounds. Again petitioner was issued notice on 08/03/90 about her remaining absence willfully from 10/07/89 to 28/02/90 amounting to break in service, to which she made representation on 20/03/90 and while considering the same, managing committee in its meeting dt.29/03/90, decided to grant leave without pay from 01/07/89 to 28/02/90 with a warning that in future she would not proceed without prior sanction of leave. However, again, petitioner proceeded in sending application seeking leave on medical grounds from 22/10/90 to 22/12/90 and continued to extend the leave and even at one time, she sent letter dt.19/02/91 (Ann.8) informing that she would join back only upon her physical and mental fitness, meaning thereby without mentioning the period of leave sought for and that being so, vide letter dt.27/05/91 (Ann.10) petitioner was informed CW 5504/01 //11// about rejection of her leave sought for; but again she sent a blank letter dt.13/06/91 (Ann.11) without disclosing period of leave while informing that she would join back only when she would be physically and mentally fit. Thus, ultimate fact remains that for all practical purposes, petitioner has not work as lecturer (Economics) effectively after date of her confirmation from January, 1987 and despite her leave as sought for being rejected and after giving her show cause notice on 27/05/91 (Ann.10) she never reported back for resuming her duties. In regard to absence from duty being a misconduct, procedure has been provided U/r 4 (e) of Rules, 1963 that before inflicting a penalty, one should be afforded a reasonable opportunity against action proposed to be taken against teacher which is to be adopted by institution regulated in terms of Cl.(7) in the form of Appendix-III and after the charge sheet being served and taking note of explanation of Teacher under Cl.(7)(iii), Managing committee took decision to terminate her services and it was communicated that if any written explanation submitted, the decision may be reviewed by the committee as CW 5504/01 //12// provided under Cl.(7)(i) of the agreement (Appendix-III). In instant case, after the petitioner was served with charge sheet dt.13/01/92, duly supported by letter from department of posts that article was delivered on 16/01/92 (Ann.R/2) that certainly disclosed her period of wilful absence without leave, which was never sanctioned by the authority and despite charge sheet being served upon her on 16/01/92, no explanation was submitted and managing committee after affording reasonable opportunity to petitioner taking note of material on record, took final decision in holding her guilty for wilful absence from duty and accordingly took decision for her termination which was also conveyed vide order dt.01/02/92 (Ann.2) and immediately after communication of her termination, she came with her explanation which does not disclose about justification of her absence or proceeding on leave for such long period, may be on medical ground. As already observed, after her confirmation in January, 1987, petitioner had never worked in the institution for all practical purpose and throughout remained absent and stayed with her husband in State of Madhya Pradesh. CW 5504/01 //13// It appears from the record and can be inferred that petitioner was maiden at the time when she joined service as lecturer and later on got married to an officer of Indian Forest officer of Madhya Pradesh cadre and shifted there and thus was seemingly interested to get her lien in the institution for one or the other reason and for all such practical purposes, she sent her application seeking leave one after the other to the institution which was rejected at a later stage. After her explanation was duly considered and taken note thereof, the committee did not consider it appropriate to review its earlier decision of terminating her services, and latter decision of review committee was conveyed vide order dt.10/08/92. Procedure adopted by respondents, in the opinion of this Court was certainly in consonance with agreement Cl.(7) of Appendix III & R.4(e) of Rules, 1963 while taking decision as regards terminating her services. Learned tribunal has extensively examined complete record and being court of appeal after appreciating material, recorded finding of fact that the petitioner was unable to justify her wilful absence and found the CW 5504/01 //14// misconduct proved; in such circumstances, penalty of termination has rightly been inflicted upon her in exercise of powers U/r 4 (f) of Rules, 1963. This Court after going through impugned judgment and material on record, does not find manifest error being committed by Tribunal which may call for interference. As regards submissions made by Counsel for petitioner that communication dt.13/01/92 was not the charge sheet and very procedure adopted by respondents in calling for explanation from her is not in consonance with scheme of Rules, 1963, is without merit for the reason that explanation having been earlier called for with regard to her wilful absence vide notice dt.06/02/91 (Ann.R/2) and only thereafter, she was served with charge sheet dt.13/01/92 (Ann.R/3) disclosing the fact that petitioner remained absence from duty without any reasonable explanation and her reply was called for and that apart, petitioner was completely aware of the charge levelled against her wilful absence and no prejudice can be said to have been caused to her. As regards submission made by Counsel CW 5504/01 //15// for petitioner that once as per Cl.(6) of the agreement (Appendix-III), leave Rules of State Government employees, are applicable upon employees of aided institutions; therefore, respondents were under obligation U/r 86(3) of RSR while holding regular inquiry under CCA Rules, is without substance for the reason that Cl.(6) only deals with sanction of leave in terms of leave rules applicable to State employees as per RSR. As regards disciplinary action against employee of institution it has to be regulated as per R.4(e) of Rules, 1963 read with Cl.(7) of agreement (Appendix) executed between employee & institution. Once there is special provision provided for holding disciplinary action against employee of institution whose services were governed under Rules, 1963. R.86 (3) RSR has no application in the facts of instant case. Next submission made by Counsel for petitioner that in the final communication dt. 13/08/92, neither reasons were assigned nor her explanation was considered objectively. Suffice it to say that her written explanation does not disclose any reasonable justification for her wilful absence, which was considered CW 5504/01 //16// by the review committee while affirming it earlier decision. Judgments on which Counsel for petitioner has relied in DK Yadav Vs. JMA Industries (supra), it was a case where petitioner was workman covered under industrial disputes Act and there was a clause that if workman remains absent without sanction of leave or beyond period of leave originally granted or subsequently extended, appellant looses its lien of employment unless he returns on duty within eight calendar days of its commencement and since workman remained absent for more than eight days after expiry of leave sanctioned, his services were deemed to be terminated, which the Apex Court considered that it was retrenchment U/s 2(oo) of ID Act and termination without due compliance of S.25F of the Act was held to be bad. It is of no assistance in the facts of instant case. In M.D UP Warehousing Corpn. vs. Vijay Narayan Vajpayee (supra), it was a case of persons working in a statutory body and was not a case of pure master & servant relationship but was of a statutory character. That apart, it was observed by Apex Court that CW 5504/01 //17// rule of natural justice in the facts of instant case required for holding inquiry and denial of opportunity to cross examine witnesses. Applicability of principle of natural justice has to be examined in the facts of each case. Next judgment in Malkiat Singh Vs. State of Punjab (supra) is also of no assistance for the reason that in peculiar facts of the case where employee concerned remained absence on three occasions; on first occasion, he was called upon for report of duty but he reported lately of six hours and on 2nd occasion, he was absent from night duty and on 3rd occasion, because of his wife's delivery and certain complications having arisen, he could not attend his duty on Monday, and Apex Court considered that such absence cannot be said to be deliberate absence from duty. In the facts of instant case, she was confirmed as Lecturer (Econ.) in January, 1987; and for all practical purpose, she has never worked in the institution and remained on leave for one pretext or the other despite show cause notice being served and called for explanation about her persistent absence, CW 5504/01 //18// inasmuch as after leave application being rejected on 27/05/91, she never reported for duty and the fact which has come on record clearly depicts that her wilful absence having remained unexplained and in the facts of instant case, the authority had not committed any error in taking decision of terminating her services vide orders impugned. This Court does not find any manifest error being committed by the Education Tribunal in passing order impugned, which may call for interference. Consequently, writ petition fails and is hereby dismissed. No costs. (Ajay Rastogi), J. K.Khatri/p.18/5504CW01Aug28Rsr.doc