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K.G.K.Post Graduate College v. Sri Bhupendra Shanker Sharma & Others - SECOND APPEAL No. 3128 of 1986  RD-AH 8542 (7 May 2007)
Second Appeal No. 3128 of 1986
K.G.K. Post Graduate College
Sri Bhupendra Shanker Sharma & Others
Hon. Dilip Gupta, J.
This Second Appeal has been filed by the defendant for setting aside the judgment and decree of the learned District Judge, Moradabad whereby the Civil Appeal that had been filed by the defendant for setting aside the judgment and decree of the learned Additional Civil Judge decreeing the suit for declaration was dismissed.
The Original Suit had been filed for a declaration that the plaintiff continues to be in service of defendant no.1 K.G.K. Post Graduate College, Moradabad (hereinafter referred to as the ''College') and for a decree of Rs. 9,151.50 as arrears of his pay with interest by way of damages from 1st March, 1971 to February, 1974. It was stated in the plaint that the plaintiff had been appointed as Physical Instructor to impart physical education to alumni of the said College on 5th January, 1970 on a consolidated pay of Rs.200/- which was subsequently raised to Rs.225/- per month. His pay was, however, withheld from March, 1971 without any justification and thereafter his services were terminated without complying with the principles of natural justice.
The suit was contested by the defendants. It was stated that the plaintiff had been appointed as a Physical Instructor in the College on 5th January, 1970 on a consolidated pay of Rs.200/- per month for a period up to 30th June, 1970. He joined the College on 15th January, 1970 and his employment ceased on 30th June, 1970. He was thereafter reappointed by the letter dated 1st August, 1970 on purely temporary basis on a consolidated salary of Rs.225/- per month and it was clearly stipulated in the letter that his services could be terminated at any time. The plaintiff absented himself from duty from March, 1971 and his services were terminated by the Committee of Management of the College w.e.f. 9th December, 1972 as he remained continuously absent. It was also stated that the post of Physical Training Instructor on which the plaintiff had been appointed was also abolished w.e.f. 1st July, 1973 and as such under no circumstances the plaintiff could claim continuance in service. It was also stated that the relationship between the plaintiff and defendant no.1 was purely that of Master and servant and, therefore, the plaintiff could claim a declaration for continuance in service. The Trial Court framed the following issues :-
1. Whether the plaintiff's service had been terminated illegally and the plaintiff still continues in service;
2. Whether the plaintiff is entitled to the arrears of salary claimed;
3. Whether the termination order is not justifiable; and
4. To what relief, if any, the plaintiff is entitled.
The Trial Court decided Issue Nos. 1 and 3 together. It noticed that the services of the plaintiff were terminated by the order dated 13th September, 1973 as he was found absent w.e.f. 9th December, 1972. The Trial Court then examined whether the termination order was simplicitor or it was based on some charge and concluded that absence from duty is a charge and, therefore, it was not an order simplicitor. It further found that as an enquiry was not held, the termination order was illegal. The Trial Court also noticed that under the provisions of the Agra University Act, the services of a member of staff of the College who were appointed on temporary basis or on probation could be terminated only by giving one month notice in writing or by tendering to the other party a sum equivalent to one month salary but neither one month notice was given nor there was any mention in the termination order that the plaintiff was being paid one month salary. For this reason also the Trial Court held that the termination order was illegal. The suit was accordingly decreed with a declaration that the plaintiff would continue to be in service. The suit was also decreed for a recovery of Rs.1,151.50 and the defendants were directed to pay the arrears along with 6% penal interest.
Before the Lower Appellate Court the main point that was urged was that the post on which the plaintiff was working was not a sanctioned post and nor was it approved by the University and the relationship between the plaintiff and the College was that of Master and Servant and since there was a term contained in the appointment letter that his services could be terminated at any time, there was no infirmity in the order terminating his services. The Lower Appellate Court noticed that the plaintiff had not come with the case that the post was created by the University under the Agra University Act and on the other hand there was evidence to show that at the relevant time, the post had neither been created by the University and nor was it approved by the University as it was only by the Government Order dated 28th March, 1978 that the Government created a post of Physical Education Superintendent. The Court, therefore, recorded a categorical finding that the post on which the defendant was working was not approved by the University and his termination also did not require approval from the University. Even after having recorded such a finding, the Lower Appellate Court agreed with the findings recorded by the Trial Court that as one month notice or one month pay was not given by the College before terminating his services, the termination order was illegal and even if there was a Master and Servant relationship and there was no statutory provision governing the termination of services then too the Management could not have terminated the services of the plaintiff too without holding any enquiry. The Appeal was accordingly dismissed.
I have heard Sri Pramod Kumar Pandey, learned counsel appearing for the appellant. No one has appeared for the respondents even though the list has been revised.
At the time of admission of this Second Appeal, following substantial question of law was framed by this Court :-
"Whether the learned Courts below erred in law in granting to the respondent the declaration sought for by him that he still continues in service and in granting him the consequential reliefs when the respondent's appointment was purely contractual and terminable with only 24 hours notice?
The initial appointment order dated 5th January, 1970 Exhibit A-1 clearly shows that the plaintiff had been appointed as a Physical Instructor in the College on a consolidated salary of Rs.200/- per month on temporary basis up to 30th June, 1970. The letter further shows that he was required to join the College at the earliest subject to the approval of the Vice-Chancellor of the University. He joined the College on 15th January, 1970 as is clear from the endorsement made on the said letter. It is the case of the defendants that the plaintiff was again appointed by the letter dated 1st August, 1970 on temporary basis on a consolidated salary of Rs.225/- per month and that his services could be terminated at any time without notice. The Lower Appellate Court has recorded a categorical finding that the post on which the plaintiff had been appointed was neither created nor approved by the University under the provisions of the Agra University Act.
It is not in dispute that the services of the plaintiff was purely temporary in nature and could be terminated at any time without notice. A temporary employee has no right to post as has been held by the Supreme Court in the cases of State of U.P. Vs. Kaushal Kishore Shukla (1991) 1 SCC 691; Triveni Shankar Saxena Vs. State of U.P. & Ors., AIR 1992 SC 496; Commissioner of Food & Civil Supplies Vs. Prakash Chandra Saxena, (1994) 5 SCC 177; Ram Chandra Tripathi Vs. U.P. Public Services Tribunal & Ors., (1994) 5 SCC 180; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain & Anr., (1995) 1 SCC 638.
The Lower Appellate Court has recorded a categorical finding that there was no sanctioned post against which the plaintiff had been appointed on a temporary basis. In the absence of any post, the appointment of the plaintiff was void and did not confer any right upon the him to continue in service.
In the present case the services of the plaintiff-respondent were terminated by the order dated 13th September, 1973 w.e.f. 9th December, 1972 on the ground that he was absent for a long period. Both the Courts below have held that even in such circumstances the services of the plaintiff could not have been terminated without giving him notice and without holding an enquiry as the order was not an order of discharge simplicitor but was stigmatic. It has, therefore, be seen whether the order was stigmatic.
In H.F. Sangati Vs. Registrar General, High Court of Karnataka & Ors., (2001) 3 SCC 117, Supreme Court considered whether the impugned order of discharge was stigmatic or a simple discharge and observed :-
"The impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of R.6. It does not cast any stigma on the appellants nor is it punitive. There was thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order."
In Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences & Anr., (2002) 1 SCC 520 the Supreme Court examined the nature of the order and observed :-
"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the ''form' test. If the order survives this examination the ''substance' of the termination will have to be found out.
Before considering the facts of the case before us one further, seemingly intractable, are relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
As was noted in Dipti Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra)
"At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma."
Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non stigmatic orders of termination. It is, therefore, safe to conclude that the impugned Order is not ex facie stigmatic.
We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exist here."
In the present case the order merely mentions that he was absent for a long period. The three facts enumerated above namely that a full scale formal enquiry should be held prior to termination into the allegations involving moral turpitude or misconduct which culminate in a finding of guilt, are not present. The Courts have held that even when it is mentioned in the termination order that the work and conduct was not satisfactory, it does not amount to casting stigma. In view of the aforesaid decisions it cannot be said that the order passed against the plaintiff-respondent terminating his temporary services on the ground that he was absent for a long period is stigmatic. It was, therefore, not necessary to hold any enquiry against the plaintiff before terminating his services. The finding to the contrary recorded by the Courts below is accordingly set aside.
Reliance placed upon the provisions of Statute 30(7) contained in Chapter XVIII of the First Statutes of the Agra University is also misplaced as admittedly the post on which the plaintiff was working had not been created by the University and nor was the appointment approved by the University. The appointment order clearly provided that the service could be terminated at any time without notice. In such circumstances, there is no infirmity in the termination order.
The Courts below have also held that the services of plaintiff could not have been terminated without giving him one month notice or one month pay in lieu of notice. In the first instance, as observed above, Statute 30(7) of the First Statutes of the Agra University is not applicable in the present case and the conditions of service of the plaintiff are governed by the terms of the appointment order which provides that his appointment was on temporary basis and that his services could be terminated at any time without notice. However, even assuming that the services of the plaintiff could be terminated only under the provisions of Statute 30(7) of the First Statutes of the Agra University then too a perusal of Statute 30(7) of the First Statutes indicates that the services of a temporary member of a staff can be terminated by giving to the other party at least one months notice in writing or by paying to the other party a sum equivalent to one month salary. In the present case, the Courts below have found that as neither one month notice was given and nor was one month salary tendered to the plaintiff at the time of terminating his services, the plaintiff was entitled to reinstatement.
In Rakesh Kumar Singh Vs. Committee of Management, Raibarali, AIR 1996 SC 3070 the Supreme Court examined the provisions of Regulation 25 contained in Chapter III of the U.P. Intermediate Education Act, 1921 which provides that the services of a temporary employee or of a probationer during the terms of his probation, may be terminated at any time by giving him one month's notice or one month's pay in lieu thereof. The High Court while construing Regulation 25 held that one month's notice or one month's pay in lieu thereof is not a condition precedent to the exercise of power under that Regulation and, therefore, even if one month's notice was not given or one month's pay was not paid at the time of termination, the order terminating his services would not become invalid but will make the employee entitled to one month's salary. The Supreme Court observed:-
"A bare reading of Regulation 25 indicates that it is more similar to the rule which fell for consideration in Dinanath's case. It gives an option to the management either to give one month's notice or one month's pay in lieu thereof. It does not provide for the mode or time for payment. Thus the rule only entitles the temporary employee or the probationer to pay for the period of notice. As we are of the view that Regulation 25 does not provide payment of one month's pay in lieu of notice as a condition precedent to the effective termination of service, the High Court was right in setting aside the order of the Deputy Director who had taken a contrary view. The view taken by the High Court is correct and, therefore, this appeal is dismissed."
In State of U.P. & Ors. Vs. Adya Prasad Pandey, 1995 Supp. (3) SCC 238, the Supreme Court examined this issue in the light of the provisions of Rule 4(2) contained in the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 and observed :-
"............. According to Rule 4(2), the period of notice for termination of the temporary service was one month subject to the proviso which reads as under :
"(2) The period of notice shall be one month: Provided that the service of any such government servant may be terminated forthwith, and on such termination the government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, for the period by which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of his services:"
We have no doubt that the High Court overlooked the impact of the proviso contained in clause (2) of Rule 4 which is sufficient to indicate that the requirement of such a notice was not a condition precedent for a valid termination but it had the effect of making the government servant entitled on such termination to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be for the period by which such notice fell short of one month, and no more. (Bachi Ram v. Union of India, 1986 Supp SCC 179). The judgment of the High Court which is based only on this ground cannot, therefore, be sustained."
Thus, in view of the aforesaid decisions of the Supreme Court, the plaintiff was best entitled to one months salary but the termination order could not be set aside.
This apart, the relationship between the College and the plaintiff was that of Master and servant. The Courts below have held that even in a case of Master and Servant relationship where there are no statutory rules, reinstatement could be granted if the services had been terminated without complying with the principles of natural justice.
This issue was examined at length by the Supreme Court in Executive Committee of Vaish Degree College, Shamli & Ors. vs. Lakshmi Narain & Ors., AIR 1976 SC 888. The Vaish Degree College was affiliated to the Agra University initially and thereafter to the Meerut University. The Executive Committee of Vaish Degree College terminated the services of the plaintiff. In the suit it was contended that the removal of service was without jurisdiction and he must be deemed to have been continued in service. The Supreme Court examined whether the Executive Committee could be said to be a statutory body and in this context observed :-
"............ It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. The High Court, in our opinion, was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body. In fact the Full Bench of the High Court relied on three circumstances in order to hold that the Executive Committee was a statutory body, viz., (i) that it was affiliated to the Agra University which was established by the statute; (ii) that there were certain mandatory provisions in the Agra University Act which were binding on the Executive Committee; and (iii) that the Executive Committee was governed by the statutes framed by the Agra University. In our opinion, none of these factors would be sufficient to alter the character and nature of the Executive Committee and convert it into a full-fledged statutory body. To begin with the Executive Committee had an independent status having been registered under the Registration of Co-operative Societies Act and was a self-governed or an autonomous body. It was affiliated to the Agra University merely for the sake of convenience and mainly for the purpose that the courses of studies prevalent in the College may be recognised by the University."
The Supreme Court then examined whether the case of the plaintiff fell within the exceptions laid down by the Court to the general rule that contract of personal service was not specifically enforceable and in this context observed :-
"In view of our finding that the Executive Committee of the College in the instant case was not a statutory body, the present case does not fall within any of the excepted categories mentioned above, and hence prima facie, the plaintiff/respondent is not entitled to any declaration or injunction."
The Supreme Court also observed that even if the Executive Committee was bound by the statutory provisions of law then too the plaintiff would not be entitled to the relief of discretionary of declaration and in this context observed :-
"Assuming for the sake of arguments, but not deciding that this decision has extended the scope of the exceptions, so that the appellant Executive Committee though a non-statutory body will still be bound by the statutory provisions of law. .................The question remains whether even if there has been a violation of the mandatory provisions of the statute, should we in the exercise of our discretion grant a declaration or an injunction to the plaintiff/respondent in the peculiar facts and circumstances of the present case? It is well settled that a relief under the Specific Relief Act is purely discretionary and can be refused where the ends of justice do not require the relief to be granted."
The Supreme Court then in the context of Sections 20(1) and Section 34 of the Specific Relief Act observed :-
"It seems to us that neither the First Additional Civil and Sessions Judge nor the High Court, while decreeing the plaintiff's suit, considered this aspect of the matter whether this was a fit case in which the discretion should have been exercised in favour of the respondent. It is manifestly clear from the authorities discussed above that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum."
On the basis of the aforesaid principles, the discretionary relief was not granted by the Supreme Court as the plaintiff had served the institution only for a short period of two years and if the declaration was granted he would have to be paid full salary with interest which would perhaps wipe out the institution.
The aforesaid decision of the Supreme Court was followed in Smt. J. Tiwari Vs. Smt. Jawala Devi Vidya Mandir & Ors., AIR 1981 SC 122 and it was observed :-
"........But the appellant is an employer of a private institution and their mutual rights and obligations are governed by the terms of the contract, Exhibit 1, which was entered into by them in 1953. Since under those terms the appellant's services were liable to be terminated on three month's notice, all that she would be entitled to, even if the dismissal is wrongful, is a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of her services she continued to be in service. The judgment of this Court in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain (1976) 2 SCR 1006: (AIR 1976 SC 888) is a direct authority for this conclusion."
This decision was also followed by the Supreme Court in M/s. Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi 2004 AIR SCW 273 and it was observed :-
"Learned counsel for the appellant argued that the prayers in the suit seek reinstatement of the plaintiff as an employee of the defendant-Company which really amounts to specific performance of a contract of personal service which is specifically barred under the provisions of the Specific Relief Act. It is well settled principle of law that a contract of personal service cannot be specifically enforced and a Court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer."
The position of K.G.K. Post Graduate College is akin to that of the Vaish Degree College and, therefore, in view of the principles laid down by the Supreme Court in Vaish Degree College (supra), the Courts below could not have granted the relief of reinstatement.
Thus, for all the reasons stated above, this Second Appeal deserves to be allowed and is allowed. The judgment and decree of the Court below is set aside and the suit of the plaintiff is dismissed. The parties shall bear their own costs.
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