Partly allowed

Sonal Tiwari v. D.P. Vipra College

Chhattisgarh HC1 Aug 2023WA/29/2023

Case brief

AI extract

What is this about?

The High Court set aside the Single Judge's order directing a tribunal for a termination appeal, noting no such tribunal exists under the relevant Act or Code. The matter was remanded to the Single Judge to decide the writ petition on merits.

What did the court decide?

Impugned order setting aside tribunal direction set aside; matter remanded to Single Judge for disposal on merits.

Sonal Tiwari Vs D.P. Vipra College — Education and Admissions | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Judgment reserved on : 13/07/2023

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Judgment delivered on : 01/08/2023

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WA No. 29 of 2023

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Sonal Tiwari, S/o Late Shri Ram Pratap Tiwari, Aged about 52 years, R/o C-37, Parijat Extension, Nehru Nagar, Bilaspur (CG)

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---- Appellant/respondent No.2

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Versus

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D.P. Vipra College through its Principal, D.P. Vipra College, Old High Court Road, Bilaspur, District Bilaspur (CG)

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Smt. Anju Shukla, W/o Shri Pramod Shukla, aged about 58 years, Principal, D.P. Vipra College, Old High Court Road, -

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Bilaspur, Distt. Bilaspur (CG) Petitioners

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Atal Bihar Bajpayee University, Bilaspur a body constituted under the relevant provisions of the Chhattisgarh Vishwavidyalaya Adhiniyam, 1973, through its Registrar, Old High Court, Bilaspur, Distt. Bilaspur (CG) - Respondent No.1

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---- Respondents

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WA No. 39 of 2023

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D.P. Vipra College through its Principal, D.P. Vipra College, Old High Court Road, Bilaspur (CG)

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Smt. Anju Shukla, wife of Shri Pramod Shukla, aged about 58 years, Principal, D.P. Vipra College, Old High Court Road, Bilaspur (CG)

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---- Appellant/petitioners

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Versus

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Atal Bihar Bajpayee University, Bilaspur a body constituted under the relevant provisions of the Chhattisgarh Vishwavidyalay Adhiniyam, 1973, through its Registrar, Old High Court, Bilaspur (CG)

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Sonal Tiwari, son of Shri Ram Pratap Tiwari, aged about 52 years, resident of C-37, Parijat Extension, Nehru Nagar, Bilaspur (CG)

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---- Respondents

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WA No. 203 of 2023

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Atal Bihar Bajpayee University, Bilaspur, body constituted under the relevant provisions of the Chhattisgarh Vishvavidyalaya Adhiniyam, 1973, through it’s Registrar, Old High Court, Bilaspur, Distt. Bilaspur (CG)

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---- Appellant/Respondent No.1 in writ petition

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Versus

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D.P. Vipra College Through It’s Principal, D.P. Vipra College, Old High Court Road, Bilaspur, District Bilaspur (CG) – Petitioner No.1 in writ petition.

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Smt. Anju Shukla, wife of Shri Pramod Shukla, aged about 58 years, Principal, D.P. Vipra College, Old High Court Road, Bilaspur, District Bilaspur (CG) – Petitioner No.2 in writ petition

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Sonal Tiwari, S/o Shri Ram Pratap Tiwari, aged about 52 years, resident of C-37, Parijat Extension, Nehru Nagar, Bilaspur (CG) - Respondent No.2 in writ petition

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---- Respondents

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For Appellant(s)	:	Mr. Shivang Dubey, Advocate in WA No.29/2023, Mr. B.P. Sharma, Mr.
		Samdarsh Nirankari and Mr. M.L. Saket, Advocate in WA No.39/2023 and Mr. Alok Bakshi and Mr. Shrijan Shrivastava, Advocate in WA No.203/2023.
For Respondent/ University	:	Mr. Alok Bakshi and Mr. Shrijan Shrivastava, Advocates.
For Respondent Sonal Tiwari	:	Mr. Shivang Dubey, Advocate.

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Hon’ble Shri Ramesh Sinha, Chief Justice

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Hon’ble Smt. Rajani Dubey, Judge

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C A V JUDGMENT

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Per Rajani Dubey, J

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Since all these appeals arise out of the order dated

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30.11.2022 passed in WPS No.10347/2019 by the learned Single

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Judge, they are being disposed of by this common judgment. For the sake of convenience, the parties shall hereinafter be referred to as per their description before the learned Single Judge.

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Brief facts of the case are that the petitioner DP Vipra College is an added institution running Post Graduate College in Bilaspur district and respondent No.2 Sonal Tiwari was working as Head of Account Department in the said college, who was served with a show cause notice on 26-27/10/2018, which was replied by her. As per minutes of the meeting held on 3.12.2018 where the representative of respondent No.1/University was also present, a resolution to suspend the services of respondent No. 2 and to hold an impartial enquiry was taken. However, on 12.12.2018 (Annexure P/5), the representative of respondent No.1/University pointed out that no complaint with regard to charges has been given to respondent No.2 and approval regarding her suspension has not been obtained from the member of the committee who belongs to the government college. Thereafter, respondent No.1/University having taken cognizance of the said letter issued a memo dated 29.1.2019 (Annexure P/5) to the petitioner-college to submit reply within one week. Meanwhile, enquiry was conducted by Mr. K.P.S. Gandhi and as per the enquiry report (Annexure P/2), the charges leveled against respondent No.2 were found to be proved. Thereafter, the administrative committee of the College in its meeting dated 14.5.2019 took a decision to

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terminate the services of respondent No.2 and accordingly, she was served with a notice dated 15.5.2019 (Annexure P/3).

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Respondent No.1/University vide its letter dated 25.4.2019 (Annexure P/7) had informed the petitioner-college that the University has not agreed with the decision of the college and respondent No.2 has moved an application for her reinstatement, on the basis of which, a three member committee has been constituted and till decision is taken, status quo with regard to matter of respondent No.2 be maintained. In its reply dated 27.4.2019 (Annexure P/8) to the University, the petitioner-college alleged that it is undue interference in the management of the college. The petitioner has raised protest about the action taken by the University through various applications but as per minutes of the meeting of the Administrative Committee, a decision was taken on 14.5.2019 for terminating respondent No.2 Sonal Tiwari from service and it was given effect to vide order dated 15.5.2019.

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According to the petitioner, despite objection being raised by the petitioner, the University vide its notification dated 8.8.2019 (Annexure P/14) constituted a committee to examine the suspension of respondent No.2 afresh whereas the fact regarding termination of her service on 15.5.2019 was already brought to the notice of respondent No.1 as is evident from Annexure P/15 dated 21.8.2019. Thereafter, respondent No.1/University vide memo dated 3.10.2019 (Annexure P/16) directed the petitioner

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not to give effect to the suspension of respondent No.2 till approval is granted by the Executive Council of the University which was amended on 18.11.2019 and in place of suspension it has been corrected as termination on the count that termination has not been passed by the governing body and the same will not be given effect to till it is approved by the Executive Council. These two orders were challenged by the petitioners by filing petition WPS No.10347/2019 with the following relief(s):

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“A. A writ and/or an order in the nature of writ of mandamus do issue calling for the record from the respondent authorities pertaining to the petitioners’ case for its kind perusal.

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B. A writ and/or an order in the nature of writ of certiorari do issue quashing the order dated 3.10.2019 (Annexure P-1) (colly) & Corrigendum dated 18.11.2019 issued by the respondent No.2 and all action in interference with the administrative rights of the petitioners to manage its affairs be declared without authority of law and suitable direction be issued in the facts & circumstances of case.

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C. A writ and/or an order in the nature of writ of prohibition do issue restraining the respondent No.1 from interfering or intermeddling with the affairs of the petitioner college in any manner whatsoever including in respect of departmental proceedings ended into termination of respondent No.2., in the facts & circumstances of case.

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D. Any other relief which this Hon’ble Court may

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deem fit in the facts & circumstances of case.

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E. Cost of the petition may also be awarded.”

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Learned Single Judge, after hearing both the parties, by the impugned order dated 30.11.2022 allowed the writ petition with a direction to the University to constitute a Tribunal for deciding the appeal/representation of the petitioners afresh taking into consideration the entire material placed by all the parties and after affording opportunity of hearing to them. Aggrieved by the said order, these three writ appeals have been filed by the parties.

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WA No.39/2023 – This appeal has been filed by the petitioners-DP Vipra College and its Principal Smt. Anju Shukla. Mr. B.P. Sharma, learned counsel for the appellants/petitioners has challenged the order passed by the learned Single Judge on the ground that it makes out a new case for the parties and therefore, not in accordance with the settled principles of law as the reliefs claimed must be specifically stated and the petition can only be treated as allowed when the reliefs claimed are granted in toto and not by the Court itself making out a new case for the parties. The moulding of reliefs can be justified in cases involving grave element of public interest or constitutional necessity demonstrated by clear and cogent material. However, in this case, it is not permissible for the Court to decide an issue, not raised/agitated and the issue if not taken in the Court, cannot be dealt with, as held by the Hon’ble Apex Court in several matters.

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No Court can grant relief not asked for. The Court cannot confer jurisdiction on any authority much less appellate authority if preconditions for such exercise do not exist. The Court cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not prayed for.

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Reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Bharat Amritlal Vs. Doshu Khan Sindhi, AIR 2010 SC 475 .

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WA No. 29/2023 – This appeal has been filed by respondent No.2 Sonal Tiwari. Mr. Shivang Dubey, learned counsel for respondent No.2 submits that the impugned order being erroneous is liable to be set aside on the ground of judicial propriety. Learned Single Judge failed to consider that the governing body of the petitioner-College in its meeting dated 14.5.2019 took a decision to terminate the services of respondent No.2 for committing alleged misconduct. College Code-Statute No. 28 requires that where a decision is taken by the governing body to terminate the services of teacher, it must be sent to the Executive Council of the University for necessary approval whereas the petitioner-college did not send its decision to the Executive Council for requisite approval. In this background, the orders dated 3.10.2019 and 18.11.2019 were issued by respondent No.1/University to request the petitioner-college to complete the procedure by sending the proposal of termination to

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the Executive Council.

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Learned Single Judge also failed to consider that respondent No.1/University while issuing the order dated 3.10.2019 and corrigendum dated 18.11.2019 merely reiterated the provisions of College Code-Statute 28 which must be strictly observed by the petitioner-college. In fact, these orders are in no way declaratory in nature, instead it only clarifie the legal position with respect to Clause 31, sub-clause 3 of College Code-Statute No.28. The petitioner-college was obliged to send proposal of termination to the Executive Council to complete the process of termination. The procedure of termination remains incomplete sans the approval of the Executive Council and thus, respondent No.2 Sonal Tiwari continues to remain employee of the petitionercollege. The petitioner-college in similar case filed before this Court in WA No.18/2021 had admitted that no decision can be taken contrary to the mandate of Clause 31(3) of College CodeStatute No.28 including the proviso and the proceedings shall be finalized strictly in conformity with the provisions of the College Code applicable to the petitioner-college. Copy of the judgment passed in WA No.18/2021 is annexed as Annexure A/2. For all these reasons, the impugned order passed by the learned Single Judge is liable to be set aside.

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Reliance has been placed on the judgment dated 11.2.2021 of Division Bench of this Court in the matter of DP

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Vipra College Vs. Raseeka Lonkar and others, WA No.13 of

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2021 and other connected appeals.

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WA No. 203/2023 – This appeal has been filed by respondent No.1/University challenging the impugned order passed by the learned Single Judge contending that the same has been passed without proper appreciation of the provisions of law. It has been argued by Mr. Alok Bakshi, learned counsel for the University that from the documents on record it is clear that the termination of respondent No.2 from services was not complete as per rules, hence there could not be any appeal before the appellate committee and being so, the directions issued by the learned Single Judge ought not to have been issued and the same deserve to be quashed. Learned Single Judge erred by not properly appreciating the entire facts of the case. The findings and observations made in para 18 appear to be the outcome of incorrect appreciation of the documents placed on record. The order of termination was not complete in itself for want of approval by the Executive Council, hence no direction could be issued for filing of appeal and constituting the Tribunal for hearing the appeal as provided under Clause 32 of the Statute No.28. Therefore, in view of above illegalities and infirmities, the impugned order is liable to be set aside/quashed, and the letter dated 3.10.2019 and corrigendum dated 18.11.2019 be declared as legal and valid.

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All the parties strongly opposed the contentions of each

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other but they have filed appeals against the order of the learned Single Judge and sought for setting aside the same or modification thereof.

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We have heard learned counsel for the parties and perused the material available on record.

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It is clear from all the documents placed on record that the order of termination of respondent No.2 Sonal Tiwari was passed without approval of respondent No.1/University. The petitioner-DP Vipra College had earlier also filed writ appeals i.e. WA No.13/2021, WA No.14/2021 and WA No.18/2021 which were disposed of vide judgment dated 11.2.2021. In para 12 of the said judgment, the Division Bench of this Court observed as under:

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“12. Mr. B.P. Sharma, the learned counsel for the Appellant as well as Mr. Sudeep Agrawal, the learned Standing Counsel for the 4^th Respondent/University point out that the apprehension expressed by the 1^st Respondent /writ petitioner is quite baseless and premature, since a decision is yet to be taken on the alleged misconduct levelled against the employee and also as to the quantum of punishment, if any. The learned counsel for the Appellant however submits that no decision will be taken by the Competent Authority contrary to the mandate of Statute No.31(3) including the 'proviso' and that the proceedings will be finalized strictly in conformity with the provisions of the 'College Code' applicable to the 1^st Respondent / Writ Petitioner/Teachers.”

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Learned Single Judge in para 20 of the impugned order held as under:

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“20. The respondent No.1 has not followed the procedure provided under the Statue-28 which has statutory force of law and even the record of the case would show that the application submitted by the respondent No.2 has not been given to the petitioner College as the petitioner has written the letter dated 27.04.2019 to the University wherein they have categorically mentioned this fact but this fact has not been rebutted by respondent No.1 and 2. This shows the manner in which the respondent No.1 has acted, when the remedy of appeal is provided under the Statute it is incumbent upon the respondent No.1 to constitute a Tribunal which shall consist of one member to be nominated by the Kulpati, other than a member of the Executive Council who will act as the Chairman of the Tribunal; the aggrieved teacher's nominee to be named by the appellant in the appeal i.e the respondent No.2 and a nominee of the Governing Body of the College, therefore, the orders dated 03.10.2019 (Annexure P/16) and 18.11.2019 (Annexure P/19) deserve to be set aside…”

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With the aforesaid observation, the learned Single Judge allowed the writ petition with a direction for constituting a Tribunal for deciding the appeal of respondent No.2. However, in the previous paras of the impugned order, the learned Single Judge observed relevant provisions of Chhattisgarh Vishvavidyalaya Adhiniyam, 1973 (in short “the Adhiniyam, 1973”) and as per the

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Adhiniyam, 1973, there is no provision for constitution of such Tribunal. Being so, the directions issued by the learned Single Judge, in our considered opinion, are not according to the provisions of the Adhiniyam, 1973.

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In the previous writ appeal i.e. WA No.13/2021, the petitioner -DP Vipra College had undertaken that no decision will be taken by the competent authority contrary to the mandate of Statute No.31(3) including the proviso and that the proceedings will be finalized strictly in conformity with the provisions of the College Code applicable to the respondent/writ petitioner/teacher.

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Thus, looking to the facts and circumstances of the case, the provisions of the Adhiniyam, 1973, the impugned order of the learned Single Judge is not sustainable in law. Hence, the impugned order is hereby set aside and the matter is remanded back to the learned Single Judge to pass an order afresh in accordance with law.

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In the result, Writ Appeal No.29/2023 filed by respondent No.2 Sonal Tiwari and Writ Appeal No.203/2023 filed by respondent No.1/University stand allowed whereas Writ Appeal No.39/2023 filed by the petitioner/College is dismissed to the above extent.

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Needless to say that this Court has not expressed any

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opinion on the merits of the case and the learned Single Judge shall decide the writ petition on its own merits in accordance with

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law.

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Sd/ Sd/ (Rajani Dubey) (Ramesh Sinha) Judge Chief Justice

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Khan