*THE HONOURABLE SRI JUSTICE SANJAY KUMAR +W.P.NO.10098 OF 1997 %13-03-2009 #C.S.Radha Purnima D/o.C.Y.Sastry in Defence Laboratory School Kanchanbagh, Hyderabad R/o.10-16, P&T Colony, Dilsukhnagar, Hyderabad. … Petitioner Vs. $1 Management Committee of Defence Laboratories School Kanchanbagh, Hyderabad, rep. by its Secretary. 2 Defence Lab Schools Educational Society Kanchanbagh, Hyderabad, rep. by its Secretary. 3 Principal, Defence Laboratory School Kanchanbagh, Hyderabad. 4 Chairman, Defence Laboratory School Management Committee Kanchanbagh, Hyderabad, 5 Secretary - Ministry of Defence "B" Wing Sena Bhavan, New Delhi. … Respondents <GIST: >HEAD NOTE : !Counsel for petitioner : Sri G.Narender Raj ^Counsel for respondents : Sri P.S.Rajasekhar for R-1 to R-4. Ms.T.Balajaya Sree for R-5. ? CASES REFERRED : 1. AIR 1956 CALCUTTA 662 2. AIR 1969 DELHI 145 3. 1967 (1) LLJ 718 = Supreme Court Service Rulings (Vol.13) 328 4. AIR 1960 SUPREME COURT 992 5. 1997 (1) CRIMES 177 6. (2004) 13 SCC 418 7. 1967 SLR 471 (SC) 8. (1971) 1 SCC 780 9. 1968 SC (NOTES) 150 10. 1989 SUPP (1) SCC 331 11. (1995) 5 SCC 657 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 10098 of 1997 Between: C.S.Radha Purnima D/o.C.Y.Sastry in Defence Laboratory School Kanchanbagh, Hyderabad R/o.10-16, P&T Colony, Dilsukhnagar, Hyderabad ..... PETITIONER AND 1 Management Committee of Defence Laboratories School Kanchanbagh, Hyderabad rep.by its Secretary 2 Defence Lab Schools Educational Society Kanchanbagh, Hyderabad rep.by its Secretary 3 Principal, Defence Laboratory School Kanchanbagh, Hyderabad 4 Chairman, Defence Laboratory School Management Committee Kanchanbagh, Hyderabad 5 Secretary - Ministry of Defence "B" Wing Sena Bhavan, New Delhi .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or direction particularly one in the nature of writ of mandamus call for records pertaining to the case of the petitioner to declaring the action of the respondents in terminating the petitioner from service as irregular, illegal, contrary to the laws, contrary to the facts and arbitrary and in violation of principles of natural justice and consequently direct respondents to regularise the services of the petitioner by cancelling the order Dt.11th April 1997 with effect from 10/05/1997 and pass such other order. Counsel for the Petitioner:MR.G.NARENDER RAJ Counsel for the Respondent No.: MISST.BALAJAYASREE SC FOR CENTRAL GOVT. The Court made the following : THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.10098 OF 1997 O R D E R Is the petitioner’s termination from service invalid in law for want of an enquiry? This is the short question falling for consideration in this writ petition. The petitioner, a Teacher in the Defence Laboratories School, Kanchanbagh, Hyderabad, the third respondent, since 07.06.1988, sought extension of leave from 31.01.1997 to 06.02.1997 citing medical problems. The Defence Laboratories Education Society, the second respondent, which has administrative control over the third respondent school, acting through its Secretary, responded by issuing the show- cause notice dated 22.02.1997 stating that it had come to light that the petitioner was involved in a criminal case which led to the issuance of a non-bailable warrant against her; she was apprehended by the police on 31.01.1997 and had been remanded to judicial custody. It was pointed out that in the light of these facts, the petitioner’s statement that she was unwell during the said period was incorrect; the medical documents produced by her were false and that she had suppressed the facts. As these actions on her part amounted to serious misconduct, she was asked to show-cause as to why her services should not be terminated as per the rules and bye-laws of the Society. The show-cause notice required the petitioner to submit her reply by 03.03.1997. In her reply dated 03.03.1997, the petitioner denied the allegations levelled against her, while admitting that she had availed leave from 27.01.1997 to 30.01.1997 and sought further extension of leave upto 06.02.1997. According to her she met with an accident on 25.01.1997 resulting in grievous injuries, which constrained her to avail leave in the first instance and seek extension thereafter. She stated that the genuineness of the medical documents produced by her in this regard could not be doubted as they were issued by the Osmania General Hospital, Hyderabad, a Government Hospital. She denied that there was any suppression of facts on her part and that her actions constituted serious misconduct. The petitioner put-forth an explanation with regard to her involvement in the case filed before the Criminal Court, but stated that the same was purely civil in nature. Pertinent to note, she did not touch upon her being apprehended by the Police on 31.01.1997 and being subjected to judicial custody and being sent to prison. The petitioner concluded her reply stating that she was the only bread-earner of the family; requesting that she should be shown mercy and the show-cause notice should be withdrawn on humanitarian grounds. Thereupon, the second respondent Society by its proceedings dated 11.04.1997 expressed dissatisfaction with the petitioner’s explanation and held that she had suppressed facts regarding her being in Jail and had given false medical certificates. The Management opined that this action constituted gross misconduct and terminated the petitioner’s services with effect from 10.05.1997 by invoking the powers contained in Para-12 of the Terms and Conditions of Services of Schools and Institutions under the second respondent Society. The proceedings provided for one month’s notice as required under the Terms and Conditions. These termination proceedings are challenged in the present writ petition. Pursuant to the interim orders granted by this Court, confirmed in appeal, the petitioner is still continuing in service. Heard Sri G.Narender Raj, counsel for the petitioner, Sri P.S.Rajasekhar, counsel for Respondents 1 to 4 and Ms.T.Balajaya Sree, counsel for Respondent 5. Sri Narender Raj, learned counsel, drew the attention of this Court to Paras-11 and 12 of the Terms and Conditions. The termination proceedings were issued in exercise of the powers conferred by Para-12, as stated supra. Paras-11 and 12 of the Terms and Conditions to the extent relevant, read as hereunder: “11. Discipline ……… ……… Any activity on the part of the staff members (teaching as well as non-teaching) which tends to create communal disharmony or anti-social/secular or bad feelings or ill-will amongst the different sections of the people of the country, including the pupils in secondary school, would amount to grave misconduct. Such act should be viewed very seriously by secretary, VMC who shall take suitable disciplinary action against such staff members after due inquiry, if found guilty of such activities. In case, the staff member wishes to appeal against the order of disciplinary authority, the appeal shall be referred to a disciplinary committee. The committee shall consist of :- (a) Secretary of the Vidyalaya Management Committee. (b) Principal of the school (in the case of staff member excluding Principal). (c) Two (three, in case of a principal) persons nominated by the Chairman. The disciplinary committee shall carefully examine the findings of the Inquiry Officer, reasons for imposing punishment recorded by the Disciplinary authority and representation of the staff member and pass orders as it may deem fit. 12. Termination of Service The VMC has the power to terminate service of the staff members of the school on regular as well as temporary/ad hoc type of appointments under the following conditions: With notice of one month or payment of one month salary (a) Incompetence (b) Retrenchment (c) Physical unfitness. (d) Any other reasonable cause like. anti national activity anti social activity moral turpitude. Without notice (a) Wilful neglect of duty (b) Serious misconduct (c) Gross insubordination (d) Mental unfitness (e) Suspension or cancellation of teacher’s certificate by the competent authority. In all cases mentioned above, the VMC shall inform the staff member concerned in writing the ground on which they intend to take action and give a reasonable opportunity for stating his/her case in writing and the VMC before taking a final decision, shall duly consider his/her statement and give him/her a personal hearing or conduct an inquiry, as the case may be, if the staff member so desires. … … …” The learned counsel for the petitioner sought to place reliance on Para-11 supra, to support his contention that it was mandatory on the part of the second respondent society to hold an enquiry before initiating disciplinary action against the petitioner. However, Para- 11 postulates that an enquiry should be held against staff members who indulge in any activity which tends to create communal disharmony or anti-social/secular or bad feelings or ill-will amongst the different sections of the people of the country, including the pupils in the school. It is only in the event of such activities on the part of the staff members that the Vidyalaya Management Committee of the school was required to take suitable disciplinary action against them after due enquiry finding them guilty of such activities. The petitioner in the present case was not charged with any of the activities which fall within the ambit of Para-11. The reliance sought to be placed by the learned counsel upon the said Para, in the factual milieu of this case, is completely misconceived. As stated in the termination proceedings dated 11.04.1997, the second respondent society resorted to termination of the petitioner’s services invoking it’s powers under Para-12 of the Terms and Conditions. Under this Para, the power to terminate the services of the staff members is by way of two methods – one, with notice of one month or payment of one month salary, and secondly, without notice. In the present case, the petitioner’s services were terminated with one month’s notice and such procedure could be resorted to, amongst other reasons, for any reasonable cause including moral turpitude. It is relevant to notice that this clause does not purport to be exhaustive and is merely indicative of what may constitute a reasonable cause. Para-12 further elaborates that the Management is required to inform the staff member in writing of the ground on which action was intended to be taken; a reasonable opportunity has to be afforded to the staff member to state his/her case in writing and the Management is required to duly consider such statement and give the staff member a personal hearing or conduct an enquiry, as the case may be, if the staff member so desired, before taking a final decision. The above provision clearly posits that what is required of the management is that it should put the employee on notice about the ground on which his/her services were proposed to be terminated, give the employee ‘a reasonable opportunity’ of stating his/her defence in writing and thereafter, basing upon the request of the employee, to give a personal hearing or conduct an enquiry, and then take a final decision in the matter. Para-12 of the Terms and Conditions requires that ‘a reasonable opportunity’ be given to the employee for stating his/her case in writing in response to the show-cause notice. Though the same expression has been used in Article 311(2) of the Constitution, it has not been defined in the Constitution or in the General Clauses Act. However, in the words of D.N.Sinha,J in A.R.S.CHOUDHURY V/s. THE UNION OF INDIA[1]: “The words have a legal meaning. It cannot be left to the vagaries of each individual, since that would introduce a thousand shades of reasonableness, which cannot be permitted. It must therefore mean ‘reasonable’ according to the rules of natural justice, which are rules of law. What are ‘Rules of natural justice’ has not been completely or absolutely defined. But some principles have been laid down, which are widely accepted. Two of these principles are generally applicable to all departmental enquiries, namely, (a) a person must be told clearly and specifically of the offences with which it is intended to charge him, and (b) he must not be condemned unheard.” Reference may also be made to the judgment of a Division Bench of the Delhi High Court in KRISHAN LAL VIJ V/s. UNION OF INDIA[2]. Para 4 of the said judgment is apposite of quotation and reads as hereunder: “4. The question of reasonable opportunity to show cause appears to me to be dependent on the peculiar facts of each case. What is reasonable is, not necessarily what is the best but, what is fairly appropriate under all the circumstances of the case. Reasonable opportunity to show cause does not necessarily include a right to be specifically and expressly granted time to produce evidence in defence even when a public servant does not choose to ask for it and does not express any desire to produce such evidence. …” In the present case, the second respondent society issued a show-cause notice clearly stating the reasons as to why the petitioner’s services were proposed to be terminated and the petitioner, in her reply dated 03.03.1997, did not seek either a personal hearing or an enquiry. The termination proceedings dated 11.04.1997 demonstrate that the petitioner’s reply was duly considered before a decision was taken in the matter. In the light of the principle laid down in KRISHAN LAL VIJ’s case (2 supra), the petitioner, having failed to take advantage of the opportunity given to her by Para-12, cannot complain that she was denied ‘a reasonable opportunity’ of stating her case or that no enquiry was held in the matter. Thus, as matters stand the second respondent acted in strict accordance with the procedure laid down in the Terms and Conditions and it is the petitioner herself who failed to avail the opportunity afforded to her by the rules by seeking a personal hearing or conduct of an enquiry. However, the learned counsel for the petitioner contended that as the second respondent society was visiting the dire punishment of terminating the petitioner’s services, the constitutional protection afforded by Article 311(2) should be extended to her and that the action of the second respondent society in not conducting an enquiry before taking a decision against her vitiated the entire proceedings. He contended that the third respondent school was run by the Defence Research and Development Organization (DRDO), Kanchanbagh, Hyderabad through the Management Committee and that the over all control of the school was under the Ministry of Defence, Government of India. Consequently, according to him, the teachers and other staff of the third respondent school should be treated as employees of the defence establishment in the service of the Union. The learned counsel drew the attention of this Court to the fact that the counter-affidavit was filed by the Principal of the third respondent school but it was filed on behalf of all the respondents, including the Secretary, Ministry of Defence, New Delhi, the fifth respondent. This, stressed the learned counsel, clearly demonstrated that the third respondent school was part and parcel of the Ministry of Defence and the protection of Article 311(2) of the Constitution should be extended to the employees of the third respondent school, including the petitioner. It is true that the counter-affidavit was filed by the Principal of the third respondent school stating that he was authorized to file the same on behalf of the other respondents. However, in the vacate stay petition filed therewith, being WVMP No.3217 of 1999, only respondents 1 to 4 were shown as vacate stay petitioners and the Secretary, Ministry of Defence, New Delhi, the fifth respondent, was shown as the second respondent in the petition. Further, the fifth respondent is represented independently through a separate counsel. Be that as it may, in the said counter-affidavit it is stated that the second respondent society, which has administrative control over the third respondent school is run with the funds provided by the Defence Laboratories, student fees and the welfare grants of the Ministry of Defence. Basing on this averment, the learned counsel for the petitioner contended that the petitioner, being an employee of the third respondent school, which was funded by the Ministry of Defence, Union of India, is entitled to the protection of Article 311(2) of the Constitution and accordingly, her dismissal from service without an enquiry was legally unsustainable. He placed reliance on the Constitution Bench judgment of the Supreme Court in SHRI A.G.BENJAMIN V/s. UNION OF INDIA[3]. The said case however dealt with the scope and difference between a preliminary enquiry and a regular enquiry and as to whether a temporary servant was entitled to the protection of Article 311(2) of the Constitution. The procedure to be followed by the employer in the event of taking action by way of punishment was detailed in para 5 of the said judgment and is pressed into service by the learned counsel for the petitioner. However, the procedure under Article 311(2) of the Constitution would be required to be followed in the present case only if the petitioner is entitled to such constitutional protection. The other Constitution Bench judgment of the Supreme Court relied upon by the learned counsel for the petitioner is that in AMALENDU GHOSH V/s. DISTRICT TRAFFIC SUPERINTENDENT, NORTH EASTERN RAILWLAY, KATIHAR[4], wherein the Supreme Court held that in the context of Article 311(2), it was necessary that the employee should be given a chance to show his innocence by holding an enquiry in respect of the charge. This judgment also would have application to the present case only if the petitioner is entitled to the protection of Article 311(2) of the Constitution. The learned counsel also sought to rely on the fact that the petitioner had been acquitted in the criminal case, being C.C.No.204 of 1995, and a copy of the judgment dated 06.10.1997 passed by the XII Metropolitan Magistrate, Hyderabad, was produced. He also placed reliance on the judgment of a Division Bench of the Kerala High Court i n SASEENDRAN NAIR V/s. GENERAL MANAGER[5], wherein it was held that an offence under Section 138 of the Negotiable Instruments Act, 1881 does not normally involve moral turpitude. It is however to be noticed that the termination of the petitioner from service did not proceed on the petitioner’s involvement in the criminal case, but upon the fact that she suppressed actual facts and produced false documents. Therefore, the issue of the petitioner being acquitted and whether the offence involved moral turpitude has no relevance. The learned counsel further contended that even if Article 311(2) of the Constitution is held to be not applicable to the petitioner, the spirit thereof should be imported into the Terms and Conditions extracted supra. He submitted that Articles 14 and 16 of the Constitution mandated that this Court should interpret and mould the provisions in such a manner as to extend the constitutional protection enabled by Article 311(2) to the petitioner also. Refuting the above contentions, Sri P.S.Rajasekhar, learned counsel for Respondents 1 to 4, contended that the conduct of the petitioner, as evidenced by the material filed by him, clearly showed that she did not deserve to be continued in service. He stated that being a teacher, her conduct in suppressing the truth and relying on false documents, clearly constituted misconduct and moral turpitude. He pointed out that the management had filed a petition seeking the vacating of the stay granted by this Court and upon its rejection by order dated 23.11.1999, they had carried the matter in appeal by way of W.A.No.218 of 2000. He produced a copy of the order dated 10.03.2000 passed by the Division Bench dismissing the said Writ Appeal and directing the writ petition be listed for final hearing on 20.03.2000 subject to part-heard. He submitted that the petitioner’s continuance in service for all these years did not warrant further indulgence to be shown to her in the light of the facts and circumstances of the case. He contended that it was his clients who had been prejudiced by the delay in the hearing of the writ petition as they had to continue the petitioner in service notwithstanding her conduct and involvement in several cases. This Court is not inclined to consider or take into account the conduct of the petitioner, past or otherwise, which did not form the subject matter of her termination from service. Therefore, the contentions of the learned counsel in this regard and the material produced by him are eschewed from consideration. Sri P.S.Rajasekhar further contended that even if the second respondent Society constituted a ‘State’ for the purpose of Article-12, it did not mean that its employees were entitled to the protection of Article 311(2) of the Constitution. He placed reliance upon the judgment of the Supreme Court in RAJASTHAN STATE ROAD TRANSPORT CORPORATION V/s. GURUDAS SINGH[6], wherein the Supreme Court held that merely because the Rajasthan State Road Transport Corporation was treated as an authority for the purpose of Article-12, it did not mean that its employees would be entitled to protection under Article 311 of the Constitution. He therefore contended that the petitioner, having failed to ask for a personal hearing or an enquiry as posited by Para-12 of the Terms and Conditions, could not be permitted to assert at this stage that the lack of an enquiry rendered her termination from service illegal and invalid. The issue in the present case turns upon whether the petitioner can claim the protection of Article 311(2) of the Constitution of India. Article 311 of the Constitution, to the extent it is relevant to this case reads as hereunder: “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.–– (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. ………” It is the case of the petitioner that the third respondent school, being funded in part by the Ministry of Defence, as confirmed by Ms.T.Balajaya Sree, learned counsel for the fifth respondent, would form part of the Defence establishment and consequently, a service under the Union. In this regard, reference may be made to the Constitution Bench judgment of the Supreme Court in JAGATRAI MAHINCHAND AJWANI V/s. UNION OF INDIA[7]. In the said case the issue was as to whether an Engineer in military service was entitled to the protection of Article 311(2) of the Constitution. Paras 4 and 5 of the said Judgment are relevant for the purposes of this case and are extracted hereunder: “4. The principal question which falls to be determined in this appeal is whether the appellant was holding a “civil post” under the Union and could be dismissed from service only after an enquiry made in accordance with the procedure prescribed by Art.311 of the Constitution. It is common ground that if Art.311 of the Constitution applied to the appellant, the requirements of cl.(2) of that Article have not been complied with. By Art.310(1) every person who is a member of a defence service or of a civil service of the Union or of an All India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every persons who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Government of State. The first part of Art.310 classifies the servants of the Union into five categories: (i) members of the defence service; (ii) members of civil service of the Union; (iii) members of an all-India service; (iv) members holding