AF^ A . - J a-^. .rS 7,^-oS (^ HIGH COURT OF CHHATTISGARH: BILASPUR WritPetition No. 2444 of 2000 Petitioner Respondents Versus Smt. Archana Agrawal Chairman-cum-Managing Director, National Mineral Development Corporation Limited and others Post for order on 7 -4-2008 JUDGE -^-4-2008 HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition No. 2444 of 2000 Petltioner Smt. Archana Agrawal, W/o. Shri Anil Kumar Agrawal, aged about 40 years, Teacher, Senior Secondary School, Kirandul, HSCL, Type-11, Quarter No.31, Teacher's Colony Village Kirandul, Distt. Bastar (MP). Versus Respondents 1) Chairman-cum-Managing Director, National Mineral Development Corporation Limited, Registered office:- 10-3 - 311-A Khanij Bhawan, Castle Hills, Masab Tank, Hyderabad - 500 028 (A). 2) Director (Prodn), National Mineral Development Corporation Limited, Khanij Bhawan, 10-3-311/A, Castle Hills, Masab Tank, Hyderabad 500 028 (A.P). 3) Senior Manager (Personnel) Baila Dila, Iron Ore Project NMDC Deposit No.14, Kirandul, Distt. Dantewada (Baster), Madhya Pradesh. 4) Vice Principal, BIOP, Sr. Secondary School, Deposit No.14, NMDC, Kirandul, Distt. Dantewada (Bastar) Madhya Pradesh. (Writ Petition underArticle 226/227 ofthe Constitution of India) (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present: Shri V.G. Tamaskar, counsel for the petitioner. Shri P.S. Koshy, counsel for the respondents. ORDER (Passedon 7-4-2008) This petition impugns the validity of (i) memo dated 28-4-1996 (Annexure P/7), whereby the petitioner was called upon to reply to the memo of charge-sheets issued under the provisions of the Certified Standing Orders of National Mineral Development Corporation (for short, NMDC") Limited by the Vice Principal of BIOP Secondary School, (ii) punishment order dated 2-9-1999 (Annexure P/8), whereby the petitioner was reduced to lower grade i.e., from Teacher (S-8) to Assistant Teacher (S- 4) with a basic pay of Rs.3106/- + PP 678/- p.m., under the provisions of the Standing Orders of NMDC Limited and (iii) the appellate order dated 16-1-2000 (Annexure P/11) whereby the appeal of the petitioner was rejected by the Director(Prodn) and Appellate Authority. 2) The brief facts, in nutshell, are that the petitioner was appointed as Assistant Teacher vide order dated 14-6-1987 (Annexure P/1) with the condition that for the purpose of conduct, service and disciplinary control, the petitioner would be governed by the "Standing Orders". In respect of the matters not governed by the Standing Orders, the petitioner would be governed by the rules and regulations of the Corporation. It was further provided that the management reserves the absolute right to terminate the appointment of the petitioner at its absolute discretion in terms of order-34 of the standing orders for all Projects and Feasibilities under the control of NMDC. Thereafter, according to the petitioner, pursuant to an advertisement, the petitioner applied for the post of Senior Teacher and participated in the interview and thereupon, she was appointed as Senior Teacher (Chemistry) on probation vide order dated 7-4-1992 (Annexure P/3) with the following terms and conditions. "5. For the purpose of conduct, service and disciplinary control as well as in all other matters, you will be governed by the "Standing Orders", for all the Projects and Feasibilities under the control of National Mineral Development Corporation Limited in respect of matters not a covered by these standing orders you will be governed by the rules and regulations of the corporation as may be in force from time to time. 6. Notwithstanding any of the clauses aforesaid the management reserves the absolute right to terminate, your appointment at its absolute discretion in terms of order-34, of the standing orders for all Projects and Feasibilities under the control of National Ministerial Development Corporation Limited. After you have been declared to have successfully completed your probation period you can resign from the service of the corporation only after giving one months prior notice in writing of our intention to resign or after paying to the corporation in lieu a sum equal to your wages for one month. This clause will not apply to your service during the period of probation which will be governed by provisions of clause-1 (i) above." 3) . During the course of service as Teacher (Chemistry), Vice Principal of the school (respondent No.4) issued a memo dated 28-4-1996 (Annexure P/7) containing two charges as follows "Article of Charae No.1. On 21.04.96 the notified date for declaring annual progress report for 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 1995-96 to all students of Class VI- B present in the school at 9.30 a.m. Allthrough the said Smt. Archana Singhal received all the progress report cards from the said "Smt. J.P. Singh, she deliberately kept the same with her till 6.30 p.m., in spite of several requests, reminders, presuation made to her by 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 althrough all the other students of all other classes received the same on 21-4-96 itself. She handed over the all progress reportcards to Vice Principal at about 6.30 p.m. only without distribution 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, teacher, 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 of all Projects and Feasibilities of NMDC Ltd., which are read as under- 28 (2) (i) Wilful insubordination of disobedience, whether along or in combination with others, to any lawful and reasonable order of a superior. 28 (2) (ii) Striking or slowing down work or inviting others to strike of slow down work in contravention of the provisions of any law or rule having the force of law. 28 (2) (vii) Drunkenness, fighting , riotous, disorderly or indecent behaviour within the premises ofthe Management 28 (2) (xxv) An act subversive of Discipline. Article ofCharge No.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 of the Vice 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 by discharge his official duties from 3.00 p.m. to 6.30 p.m. as a result of which students, Teacher 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 workman of all 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 superior. 28 (2) (vi) Drunkenness fighting, riotous, disorderly or indecent behaviour within the premises of the Management 28 (2) (xxv) 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 Vice Prindpal" f^ 4) A departmental enquiry was conducted. After completion of departmental enquiry, the Senior Manager (P&A.) by order dated 29-7- 1999/2-8-1999 (Annexure P/8) imposed a major penalty of reduction to lower grade i.e., from Teacher (S-8) to Assistant Teacher (S-4) with a basic pay scale of Rs.3106/- + PP 678/-. The petitioner, thereafter, preferred an appeal to the Chairman-cum-Managing Director ( for short, "CMD"), NMDC Limited on 21-12-1999. On 16-1-2000 the Director (Prodn) and Appellate Authority dismissed the appeal (Annexure P/11). Thus, this petition. 5) Shri V.G.Tamaskar, learned counsel appearing for the petitioner would submit that the appointment of the petitioner on the post of Senior Teacher (Chemistry) is a fresh appointment. Thus, after completion of probation period of six months, the petitioner could not have been reverted back to the post thereon, thepetitioner was not initially appointed. Learned counsel would next submit that Rule 3 of the Industrial Employment (Standing Order) Act, 1946, which has been applicable to the case of the petitioner, defines - workman as permanent, probation, Badli, temporary, apprentice, casual. It was not provided therein that the teacher is a workman as held by Hon'ble the Supreme Court in the matter of Miss. A. Sundarmbal Vs. Government of Goa, Daman and Diu and others ( 1988 (4) SCC 42). 6) The National Mineral Development Corporation Limited Employees (Conduct, Discipline and Appeal) Rules 1978 (hereinafter referred to as "the Rules 1978") defines employees that "a person in the employment of the company including employees whose services are temporarily placed at the disposal of the Government or any other Pubic Undertaking, but does not include casual employees, work charged or contingent staff or workman as defined in the Industrial Employment (Standing Order) Act, 1946". Therefore, the provisions of Standing Orders are not applicable to the petitioner who happens to be a Teacher. It was next contended that that the application of the provisions of the Standing Orders in case of the petitioner, was improper and illegal. The departmental action could have been dealt with under the provisions ofthe Rules, 1978. Underthe Rules 1978, CMD alone has power to issue a charge-sheet, appoint enquiry officer and impose major penalty, whereas minor penalty can be imposed by the Director. Issue of charge- sheet by the Vice Principal of the School as per the provisions of Certified Standing Orders, is improper and contrary to the provisions of law. The school run by the respondents-authorities wherein the petitioner is working as Teacher, is governed by the Central Board of Secondary Education Affiliation Bye-laws also whereunder clause 48 provides for imposition of major penalty on the teachers/employees of the school. Lastly, learned counsel would contend that the appeal was preferred before CMD and disposal by the Director (Prodn) may not be held as proper disposal of appeal as CMD has not considered the appeal and passed any order. 7) Per contra, Shri P.S. Koshy, learned counsel appearing for the respondents would submit that this petition is not maintainable as the petition has been filed against individuals and not against the office. The petitioner was initially appointed on the post of Assistant Teacher and thereafter after interview on the post of Senior Teacher (Chemistry), the terms and conditions of the appointment order clearly provides that for the purpose of conduct, service and disciplinary control as well as in all other matters the petitioner would be governed by the Standing Orders, which has been accepted by the petitioner. At this stage, the petitioner cannot question the applicability of the provisions of the Standing Orders. The school of NMDC ^ is a part of the industry and not an independent establishment, independent of the respondents' industry. Thus, the petitioner is governed under the contract of employrrient, not by the Rules 1978. The petitioner has further accepted all the benefits and other facilities which the petitioners was entitled to on the applicability of the standing orders. The schools are situated in the mining area which are part of the mining project. The schools are meant for imparting education to the children of the employees working in the project. Therefore, no separate rules were framed for service conditions of the teachers. No prejudice is caused to the petitioner by applicability of the provisions of the Standing Orders as the petitioner has not challenged the enquiry report, punishment order and the appellate order on any other grounds, except on the ground that the petitioner could have been dealt with under the provisions of the Rules 1978. After having accepted all the benefits under the Standing Orders, the petitioner is estopped from raising the issue of applicability of the provisions of law. CBSE Bye-laws are also not applicable to the case of the petitioner. The order of appointment and order of punishment both have been passed by the same authority i.e., Senior Manager (P&A). Vice Principal being a superior officer to the petitioner has issued charge-sheet, but the punishment order was passed by the disciplinary authority who was appointing authority i.e., Senior Manager (P&A). Thus, this petition deserves to be dismissed. 8) I have heard learned counsel for the parties, perused pleadings and documents appended thereto. 9) It is evident that the appointment order of the petitioner clearly provides that for the purpose of conduct, service and disciplinary control as well as in all other matters, the petitioner was governed by the Standing Orders. Further, the petitioner has been dealt with for all the purposes, benefits under the provisions of the Standing Orders. If the Standing Orders are made applicable to the petitioner, then there is no irregularity in issue of charge-sheet by the Vice Principal of the school, conduct of enquiry, order of punishment passed by the Senior Manager (P&A) and the appellate order passed by the Director (Prodn). In the event, the contention of learned counsel appearing for the petitioner is that the petitioner being a Teacher shall be governed by the Rules 1978, is accepted, all the benefits granted through out from the initial date of appointment as Senior Teacher (Chemistry) on 7-4-1992, till issue of charge-sheet vide memo dated 28-4- 1996 have to be returned back to the management. The petitioner, having accepted the terms and conditions of the appointment and thereafter other benefits, cannot be permitted to raise issue of applicability of the provisions of the Rules 1978, at this stage, when the memo of charge-sheet was issued. 10) With regard to status of a Teacher, the Supreme Court in the matter of Miss. A Sundarambal Vs. Government of Goa, Daman and Diu and others , while considering the definition of 'workman" as provided under Section 2 (s) & (j) of the Industrial Disputes Act, 1947, held that even though an educational institution has to be treated as an 'industry', in view of Bangalore Water Supply & Sewarage Board v. R. Rajappa teachers in an educational institution cannot be considered as workmen. Subsequently the Supreme Court in the matter of Ahmedabad Pvt. Primary Teachers' Association Vs. Administrative Officer and others , while dealing with the definition of "employee" under the provisions of under the Payment of Gratuity Act, 1972, held that the teachers who are mainly employed for ' (1988) 4 SCC 42 2 (1978) 2 SCC 213 3(2004)1.SCC755 imparting education cannot be held as workmen for extending gratuity benefits under the Payment of Gratuity Act, 1972. 11) Thus, the teachers are not workmen for the benefits under the provisions of Industrial Disputes Act as well as Payment of Gratuity Act. In the present facts of the case, wherein the petitioners are not held as workman, but the provisions of the Standing Orders are made applicable for the purpose of conduct, service and disciplinary control as well as in all other matters, to the teachers including the petitioner. The conditions of the appointment have been accepted by the petitioner and according to learned counsel for the respondents, the petitioner was granted benefits which are more beneficial to the petitioner under the provisions of the Standing Orders through out. Thus, it is clear that though the teacher is nota workman, but the provisions of the Standing Orders have been made applicable to the petitioner in the appointment order. Thus, it has become a part of the contract of employment between the employee i.e., the petitioner and the employer. 12) In the matter of M.P. State Textile Corporation Ltd. v. Mahendra and others , the Supreme Court observed as under: "We think that the respondent workmen who have accepted their employment on a contract, the terms of which specified the pay scale of each of these workmen, cannot claim the pay scale of the appellant Corporation when their services were retrenched by Indore Textile, Ujjain. In our opinion, since the respondents accepted the pay scale and did not challenge the same for more than a decade, it is not open for them to demand the pay scale that may be available to similarly situated workmen in the appellant Corporation. To that extent we are of the opinion that the Labour Court has erred." (2005) 10 SCC 675 10 '? 's''t--~i»> Y"^- 13) The preliminary objection of Shri P.S. Koshy that the writ petition is not maintainable against the individuals, deserves to be rejected as the writ petition has not been filed against the individuals, but against the various officers holding the post and were involved in the proceedings. 14) Having held that the provisions of the Standing Orders would be applicable to the facts of the case of the petitioner, though it is not necessary to go into other aspects asto whether charge-sheet can be issued by an authority, who is not an appointing authority, but superior to the delinquent employee and secondly whether CMD or Director (Prodn) is the appellate authority or not. Admittedly, under the provisions of the Standing Orders the authorities are competent authorities to issue charge-sheet, pass punishment order and dispose of the appeal as the appellate authority. 15) It is wel] settled that the initiation can be by an officer subordinate to the appointing authority. Only the dismissal or removal shall not be by an authority subordinate to the appointing authority (See: Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy (para 8) and Inspector General of Police and another Vs. Thavasiappan (para 8)). Thus, the objection of the petitioner that the charge-sheet was not issued by the appointing authority, is not sustainable in law. 16) In view of the foregoing and for the reasons mentioned hereinabove, the petition is dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge Raju (1995) 1 SCC 332 (1996) 1 SCC 145