Case: L. N. Mishra Institute of Economic Development and Social Change Patna Vs. State of Bihar and Others

to decide in respect of each member of teaching staff on the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract etc. Sub-paragraphs (2) and (3) relate to the members of teaching staff of the concerned institution. Sub-paragraph (4) of paragraph 6 of the Ordinance deals with the cases of other categories of staff of the institution. It provides that the State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the institution. It is clear that there is some distinction between sub-paragraph (3) and sub-paragraph (4). While under sub-paragraph (3), the State Government is to decide, among other things, whether the service of a member of teaching staff will be terminated or not, under sub-paragraph (4), the State Government has not been enjoined to decide whether the service of any member of a non-teaching staff will be terminated or not. All that has been directed to be decided by the State Government under sub-paragraph (4) relates to the term of appointment and other conditions of service. 42. Admittedly, the petitioner Dr. Jagadanand Jha was not a member of the teaching staff, but, as noticed already, he was the Registrar of the Institute, which comes within the expression other categories of staff under sub-paragraph (4). It is true that under sub-paragraph (4) it has been provided that sub-paragraphs (2) and (3) shall apply mutatis mutandis but, such application will be limited to the term of appointment and other conditions of service of a member of non-teaching staff of the institution. In other words, the State Government may appoint a committee for the purpose of considering the term of appointment and other conditions of service of the members of the non-teaching staff and the State Government has to decide accordingly. 43. It is thus apparent that the State Government proceeded on the basis that under sub-paragraph (4) of paragraph 6 of the Ordinance, the State Government was to consider the question of termination of the services of members of non-teaching staff as in the cases of members of teaching staff, as provided in sub-paragraph (3) of paragraph 6 of the Ordinance. Even then, we are not impressed with the manner and haste in which the order of termination has been passed. The Ordinance was promulgated on April 19, 1986 and the order of termination was made on April 21, 1986. Although it is alleged that a committee was formed and the State Government terminated the services of the petitioner on the report of the committee, we fail to understand the necessity for such haste and, in the circumstances, it will not be unreasonable to infer that the committee or the State Government had not properly applied its mind before the order of termination of the services of Dr. Jha was made. 44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard. 45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained. 46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. The contention made on behalf of the petitioner-Society is wholly misconceived. The Ordinances were not promulgated and Act was not passed for the purpose of nationalisation of the Institute only. It is apparent from the provisions of the Ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose as mentioned in the Preambles to the Ordinances and the Act in a phased manner. All the institutions which answer the description as given in Section 2(a) of the Act are to be nationalised. It is, therefore, not correct to say that the Institute has been singled out for the purpose of nationalisation15. There can be no doubt that when nationalisation has to be done in a phased manner, all the institutions cannot be taken over at a time. The nationalisation in a phased manner contemplates that by and by the object of nationalisation will be taken over. Therefore, in implementing the nationalisation of private institutions in a phased manner, the legislature has started with the Institute. Therefore, the question of singling out the Institute or treating it as a class by itself does not arise, for as the provision of the Act and the Ordinances go, all the private educational institutions as defined in Section 2(a) of the Act, will be nationalised in a phased mannerIn the circumstances, we are unable to accept the contention made on behalf of the petitioner - Society that the professed object of nationalisation in phases is a mere pretence and a colourable device to single out the Institute or that the facts of exclusion of the three other Institutes impart vice of discrimination to the impugned Act. As has been stated already, the question of discrimination or discriminatory treatment of the Institute does not arise and the contention of the petitioner - Society in this regard is rejectedIn the circumstances, the contention made on behalf of the petitioner - Society that because of the acquisition of the Institute, the Society lost its right of management over the Institute and the Institute being the main or the only activity of the Society, the impugned legislations interfere with the right of the Society to form and continue the association and are, as such, unconstitutional and void under Article 19(1)(c) of the Constitution, is unsound and rejected44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement