1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R. (1) S.B.CIVIL WRIT PETITION NO 2189/2005. (Managing Committee, v. Shri Jetha Ram Rao Tularam Rashtrya and Others. Unnati Vidyalaya No.2, Patel Nagar, Bikaner. (2)S.B.CIVIL WRIT PETITION NO.2230/2005. Managing Committee, v. Shri Ram Gopal Rao Tularam Rashtrya and Others. Unnati Vidyalaya No.2, Patel Nagar, Bikaner. (3)S.B. CIVIL WRIT PETITION NO.2312/2005 Managing Committee, v. Shri Udai Krishna Rao Tularam Rashtrya and Others. Unnati Vidyalaya No.2, Patel Nagar, Bikaner. All the above-mentioned writ petitions under Articles 226 and 227 of the Constitution of India. DATE OF ORDER: JUNE 2, 2005. PRESENT. HON'BLE MR. JUSTICE R.P.VYAS Mr.G.K.Vyas, for Petitioners. Mr.D.P.Sharma, for Respondents. BY THE COURT: REPORTABLE A common question is involved in all the aforesaid three 2 writ petitions, therefore, the above-mentioned petitions are decided by this order. By the aforesaid petitions, the petitioners – Management Committee seeks to quash and set aside the judgment dated 20.11.2004 (Annexure 5) delivered by the Rajasthan Non- Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as 'the Tribunal'). Brief facts giving rise to the instant petitions are that it has been averred in the appeal before the Tribunal that Shri Udai Krishna Yadav, Shri Jetha Ram and Shri Ram Gopal Yadav were appointed by the petitioner – Institution on the posts of L.D.C., Class IV, and Teacher Grade III, respectively. Their services were terminated by the Petitioner – Institution by order dated 16.5.2002. Against the impugned order of termination, they preferred an appeal before the Tribunal. The appeal was allowed by the Tribunal by a common judgment dated 20.11.2004 (Annexure 5) and the order dated 16.5.2002, passed by the petitioner - Institution, terminating the services of its employees, was quashed and set aside. The employees were ordered to be reinstated in service of the 3 petitioner – Institution, with all consequential benefits. Aggrieved from the order of the Tribunal dated 20.11.2004 (Annexure 5), the instant petitions have been filed. It is submitted by the learned counsel for the petitioner that the Institution is registered under the Rajasthan Societies Act and the services of its employees are governed by the Rules and Regulations framed under the the Rajasthan Non- Government Educational Institutions Act, 1989 (hereinafter referred to as 'the Act, 1989') and the Rajasthan Non- Government Educational Institutions (Recognition, Grants-in-aid and Service Conditions etc.) Rules, 1993 (for brevity, 'the Rules, 1993'). It is further submitted by the learned counsel for the petitioners that that the respondents were working against the aided posts and in the event of abolition of posts and curtailments of funds, the services of the respondents were dispensed with by order dated 16.5.2002 by the Institution. The petitioner-Institution is getting financial aid from the State Government in accordance with the Act, 1989 and the Rules, 1993. It is also submitted that the appeal, which was filed by the employees – respondents before the Tribunal was not maintainable under Section 19 of the Act, 1989, because the order dated 16.5.2002 is not a stigmatic order and it cannot be 4 termed as an order for removal, dismissal or reduction in rank. Learned counsel for the petitioner – Institution has invited my attention to Sections 18, 19, 21, 26 and 40 of the Act, 1989 and Rules 39 and 40 of the Rules, 1993 and submitted that the as per Section 18 of the Act, 1989, a recognised Institution can remove, dismiss or reduce in rank any of its employees . It is submitted by the learned counsel for the petitioner-Institution that from a bare perusal of the impugned order dated 16.5.2002, it is clear that this is not an order of removal or dismissal or reduction in rank. Moreso, it is passed on the basis of an order issued by the Government on 21.12.2002, whereby 8 posts of Teacher and 3 posts of Class IV employees were abolished by the Government. Therefore, the services of the employees were dispensed with. Thus, according to the learned counsel, it is obvious that the consent of the Government was there. Section 19 (1) of the Act provides that if a Managing Committee is aggrieved from the order of refusal made by the Director of Education under Section 18, it may prefer an appeal to the Tribunal constituted under Section 22 within 90 days of the date of receipt of the order. Similarly, as per Section 19 (2) an employee aggrieved by an order of the Managing Committee made under Section 18 may prefer an appeal to the said Tribunal within 90 days from the date of receipt of the said order, 5 meaning thereby is that as per Section 19 (2), if an employee is aggrieved from an order of the Managing Committee made under Section 18, he has a right to prefer an appeal to the said Tribunal within 90 days from the date of receipt of the order. Learned counsel for the petitioner-Institution has also invited my attention to Rule 39 (2) of the Rules, 1993. Rule 39 (2) provides that an employee can be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds, which makes the employee unsuitable for further retention in the service. It may be mentioned that before taking action of removal or dismissal from service under Rule 39 (2) of the Rules, 1993, the procedure laid down under sub-clauses (a) to (h) (iii) is required to be adopted by the managing committee (Petitioner – Institution). However, provisions of this rule shall not apply (i) where an employee is removed or dismissed from service on the ground of conviction on a criminal charge, or (ii) where it is not possible to give that employee an opportunity of showing cause, the consent of the Director of Education is obtained in writing, before the action of dismissal or removal from service is taken, or (iii) where the managing committee is of unanimous opinion that the services of an employee cannot be continued without prejudice to the interest of the institution, the services of such employees can be terminated after giving him six months notice 6 or salary in lieu thereof and the consent of the Director is obtained in writing. It is pertinent to mention here that under Section 18 of the Act, 1989, action of removal, dismissal or reduction in rank of the employees can be taken, but prior to taking that action, two conditions, as mentioned in Section 18, namely (i) a reasonable opportunity of being heard before the action proposed to be taken; and (ii) prior approval of the Director of Education; are required to be fulfilled by the managing – committee. Thus, in this view of the matter, none of the provisions, as mentioned in Section 18 of the Act, 1989, as well as in Rule 39 (2) of the Rules, 1993 was followed by the managing committee, prior to passing the order of termination of services of its employees. Nor the managing committee has specified in the termination order dated 16.5.2002 that under which Rule or Act, the said order of termination has been passed by it. The petitioner- Institution has given the ground of abolition of 8 posts of teachers and 2 posts of peon, which is a flimsy ground and not acceptable in view of the peculiar facts and circumstances of the instant case. It is submitted by the learned counsel that a legal objection to this effect was raised by the petitioner-Institution before the learned Tribunal, but the learned tribunal, while holding that the appeal is maintainable, allowed the appeal filed by the 7 respondent-employees and set aside the order of dispensing with the services of employees of the petitioner-Institution, defining that it is an order of termination and, subsequently, quashed and set aside the order dated 16.5.2002. Learned counsel for the petitioner-Institution submitted that the appeal under Section 19 was not maintainable before the Tribunal, yet the Tribunal passed the judgment dated 20.11.2004 and quashed and set aside the order dated 16.5.2002. The Tribunal also ordered for reinstatement of the employees with all consequential benefits. According to the learned counsel, the judgment of the Tribunal is illegal and is not in accordance with law, as the Tribunal has not looked into the provisions of the Act, 1989 and the Rules, 1993, in their right perspective. The Act of 1989 and the Rules, 1993 have been framed with a view to provide better organization and development in the Non-Government Educational Institutions. Before the commencement of the Act of 1989 and the Rules, 1993, there was practice of exploitation and harassment and the Legislature has regulated the terms and conditions of the Non-Government Educational Institutions running in the State of Rajasthan. Under Section 43 of the Act, 1989, the State Government has been conferred with the powers to make rules for regulating 8 the terms and conditions of the recognised institutions as well as for providing them grants-in-aid. The Legislature has prescribed the procedure for termination of services of the employees, which is mandatory in nature. It is worthwhile to mention here that under the Scheme of the Act of 1989 and the Rules, 1993, the services of an employee can be terminated, but only after compliance with the provisions of the Act of 1989 and the Rules, 1993, framed thereunder. In case of any inconsistency, the Act will prevail over the Rules, as the Rules are framed under the Act. Sections 18, 19, 21, 26 and 40 of the Act, 1989 and Rules 39 and 40 of the Rules, 1993, referred to by the learned counsel which are relevant for deciding the controversy in hand, read as under :- “Section 18. Removal, dismissal or reduction in rank of employees - Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken: Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained : Provided further that this section shall not 9 apply,- 1. to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or 2. where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or 3. Where the managing committee is of unanimous opinion that the services of an employee cannot be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.” Section 19. Appeal to the Tribunal – (1) If a managing committee is aggrieved from the order of refusal made by the Director of Education under Section 18, it may prefer an appeal to the Tribunal constituted under Section 22 within ninety days of the date of receipt of such order. (2) An employee aggrieved from an order of the managing committee made under Section 18, may prefer an appeal to the said Tribunal within ninety days of the date of receipt of such order.” “Section 21. Application to the Tribunal - (1) Where there is any dispute between the management of a recognised institution and any of its employee with respect of the conditions of service, the management or the employee may make an application in the prescribed manner to the Tribunal and the decision of the Tribunal thereon shall be final. (2) Any dispute of the nature referred to in sub- section (1) and any appeal of the nature referred to 10 in Section 19, pending before the State Government or any officer of the State Government immediately before the commencement of this Act, shall, as soon as may be after such commencement, be transferred to the Tribunal for its decision.” “Section 26. Decision of the Tribunal to be final-- The decision of the Tribunal shall be final and no suit or other proceeding shall lie in any Civil Court with respect to matters decided by it.” “Section 40. Overriding effect of the Act - The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any instrument having effect by virtue of any law.” Rule 39. Removal or Dismissal from Service - (1) The services of an employee appointed temporarily for six months, may be terminated by the management at any time after giving atleast one month's notice or one month's salary in lieu thereof. Temporary employee, who wishes to resign shall also give atleast one month's notice in advance or in lieu thereof deposit or surrender one month's salary to the management. (2) An employee, other than the employee referred to in sub-rule (1), may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. But the following procedure shall be adopted for the removal or dismissal of an employee :- (a) A preliminary enquiry shall be held on the allegations coming into or brought to the notice of the management against the employee. 11 (b) On the basis of the findings of the preliminary enquiry report, a charge sheet alongwith statement of allegations shall be issued to the employee and he shall be asked to submit his reply within a reasonable time. (c) After having perused the preliminary enquiry report and the reply submitted by the employee, if any, if the managing committee is of the opinion that a detailed enquiry is required to be conducted, a three member committee shall be constituted by it in which a nominee of the Director of Education shall also be included. (d) During the enquiry by such enquiry committee, the employee shall be given a reasonable opportunity of being heard and to defend himself by means of written statement as well as by leading evidence, if any. (e) The enquiry committee, after completion of the detailed enquiry, shall submit its report to the management committee. (f) If the managing committee, having regard to the findings of the enquiry committee on the charges, is of the opinion that the employee should be removed or dismissed from service, it shall; furnish to the employee a copy of the report of the enquiry committee. Give him a notice stating the penalty of removal or dismissal and call upon him to submit within a specified time such representation as he may wish to make on the proposed penalty. (g) In every case, the records of the enquiry together with a copy of notice given under sub-clause (f) (ii) above and the representation made in response to such notice if any, shall be forwarded by the managing committee to the Director of Education or any officer by authorised him in this behalf, for approval. 12 (h) On receipt of the approval as mentioned in sub-clause (g) above, the managing committee may issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned and also to the Director of Education or the officer authorised by him in this behalf: Provided that the provisions of this rule shall not apply :- 19. To an employee who is removed or dismissed on the ground of conduct which led to his conviction on a criminal charge, or 20. Where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of the Director of Education has been obtained in writing before the action is taken, or 21. Where the managing committee is of unanimous opinion that, the services of an employee cannot be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing” Rule 40. Appeal – (1) If the managing committee is aggrieved from the order of refusal made by the Director of Education under sub-rule (2) of rule 39, may prefer an appeal to the State Government within 90 days of the date of receipt of such order. (2) An employee aggrieved from an order of the Managing Committee made under sub-rule (2) of rule 39 may prefer an appeal to the State Government within 90 days of the date of receipt of such order.” It may be mentioned that the provisions of Section 18 of 13 the Act, 1989 and Rule 39 of the Rules, 1993 are mandatory in nature and the same ought to have been complied with before passing the order of termination. Section 18 provides that no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard. It further provides that no final order shall be passed by the Institution unless prior approval of the Director of Education is obtained in writing. However, Section 18 shall not apply (i) where a person is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or (ii) where it is not practicable to give an employee any opportunity of showing the cause, the consent of the Director of Education is also required to be obtained in writing, before the action is taken, or (iii) where the managing committee is of unanimous opinion that the services of an employee cannot be continued, without prejudice to the interest of the institution, then, in such a situation, services of that employee can be terminated, after giving him six months' notice or salary in lieu thereof. Not only that, in such a situation, even the consent of the Director of Education is required to be obtained in writing. In the instant case, prior to issuing the order dated 16.5.2002, neither a reasonable opportunity of hearing was given, nor prior approval of the Director of Education was obtained, nor six 14 months' notice or salary in lieu thereof was given by the petitioner – Institution. Thus, services of an employee can be terminated, only after following the due process of law prescribed under the Act as well as the Rules. Likewise, Section 19 (2) provides that if any employee is aggrieved by the order passed by the managing committee made under Section 18, such employee may prefer an appeal to the said Tribunal within 90 days of the date of receipt of such order. In the instant case, the employees being aggrieved by the order dated 16.5.2002, have rightly preferred an appeal before the Tribunal under Section 19 of the Act. Similarly, sub-section (1) of Section 21 of the Act, 1989 provides that when there is a dispute with regard to service conditions between the institution and its employee, the employee can move an application before the Tribunal and the decision of the Tribunal thereon shall be final. Here also, service conditions of employees have been affected by order dated 16.5.2002, thus, they have rightly filed an application before the Tribunal for redressal of their grievances. Section 26 of the Act, 1989 provides that the decision of the Service Tribunal shall be final and no suit or other proceeding shall be taken in any Court with regard to the disputes decided by the Tribunal. Lastly, Section 40 of the Act, 1989 provides that if there 15 is any inconsistency in the Act and the Rules, then the provisions of the Act shall have a overriding effect on the Rules, as the Rules have been framed under the Act and they are governed by the Act. The recognised Institutions are bound to comply with the provisions the Act as well as the Rules. Rule 39 of the Rules, 1993 pertains to the removal or dismissal of the employee from service. Sub-rule (1) of Rule 39 provides that the services of the employee, who is appointed temporarily for a period of six months, can be terminated by the management, at any time, after giving him one month's notice or one month's salary in lieu of notice. Similarly, sub-rule (2) provides that the employee as mentioned in sub-rule (1) can be removed or dismissed from service on the grounds of subordination, inefficiency, neglect of duty or misconduct or any other grounds, which make the employee not suitable for the institution to retain his services. But, prior to that, the procedure mentioned in clauses (a) to (h) of sub-rule (2) or Rule 39 has to be followed. It may be mentioned here that the controversy in the instant case is with regard to termination of services of the employees by the recognised Institution. Sub-rule (2) of Rule 39 clearly provides that the employees can be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which make the employee unsuitable for further retention in the 16 service of the Institution. But, prior to taking any action, referred to above, the procedure laid down in sub-clauses (a) to (h) shall have to be adopted. It may be pointed out here that sub-clause (h) of sub-rule (2) of Rule 39 clearly provides that on receipt of approval of the Director of Education as mentioned in sub- clause (g), the Managing Committee may issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned as well as to the Director of Education. It may also be pointed out here that sub- clause (h) (iii) provides that if the managing committee is of unanimous opinion that the services of an employee cannot be continued without prejudice to the interest of the institution, the services of such employee can be terminated after giving him six months' notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing. It may be mentioned that obviously, in the instant case, prior to issuing the order dated 16.5.2002, neither six months' notice or salary in lieu thereof was given to the employees, nor consent of the Direction of Education was obtained in writing by the petitioner - Institution as required under Rule 39 of the Rules. The petitioner-Institution has not followed the procedure laid down under sub-rule (2) of Rule 39 of the Rules, 1993. Rule 40 of the Rules, 1993 provides the procedure for 17 appeal by the managing committee as well as its employee. Sub- rule (1) of Rule 40 provides that if the managing committee is aggrieved by the order of the Director of Education made under sub-rule (2) of Rule 30, then it may prefer an appeal to the State Government within 90 days of the date of receipt of such order. Likewise, sub-rule (2) provides that if the employee is aggrieved from the order of the Managing Committee made under sub-rule (2) of Rule 39, then he may prefer an appeal to the State Government within 90 days of the date of receipt of such order. It may be mentioned here that Rule 40 (2) applies only in the case if the services of the employee have been dismissed or removed by the recognised Institution after following the procedure laid down under sub-rule (2) of Rule 39 of the Rules, 1993. Here, in the instant case, prior to issuing the order of terminating the services of the employees, the petitioner-Institution has not followed the procedure as required by sub-rule (2) of Rule 39 of the Rules. Learned counsel for the respondents has raised objection to the