Kripa Nidhi Tewari vs Khetri Vikash Samiti

We have heard learned counsels appearing for the parties.

These Special Appeals are directed against the judgment dated 06.11.2012, passed by learned Single Judge, by which, after setting aside the impugned order of the Rajasthan Non-Government Educational Institutions Tribunal (for short, ''the Tribunal''), constituted under the Rajasthan Non-Government Educational Institutions Act, 1989 (for short, ''the Act of 1989''), by which the Tribunal dismissed the appeals, filed by the appellants against the orders of their dismissal, on the ground of misconduct, learned Single Judge has, in view of agreement to the amount of compensation, to be paid towards pay and allowances which the appellants would have drawn, allowed compensation of Rs. 65,000/- for each of the appellant/petitioner, in lieu of reinstatement and salary. Learned Single Judge further directed that the amount shall be paid by the respondents within three months. They will be at liberty to seek reimbursement of the amount from the Government, to the extent of grant-in-aid, provided to them at the time of order of their dismissal. The operative portion of the judgment of learned Single Judge is quoted as below:-

"Taking note of the facts and circumstances of this case, I am of the opinion that petitioners should be granted lump sum compensation because even if they are reinstated, the respondents would be at liberty to pass a fresh order of dismissal in view of the approval granted by the Director. In that event, if the petitioners are already settled in other services, they would necessarily be unsettled. It is also not to be ignored that if respondents are directed to reinstate the petitioners then in that eventuality, liability of wages of same period will on them. To balance the equity, learned counsel for both the parties were asked to make proposal.

Learned counsel for the respondents proposed compensation of Rs. 50,000/- whereas learned counsel for the petitioners made a claim of Rs. 75,000/- towards compensation. I have taken both the proposals and award Rs. 65,000/- towards compensation to each petitioner.

Accordingly, while setting aside the impugned order of the Tribunal, the petitioners are allowed compensation of Rs. 65,000/- in lieu of reinstatement and salary. The amount aforesaid would be paid by the respondents within a period of three months from today. They would be at liberty to seek reimbursement of the amount from the Government to the extent of grant-in-aid provided to them at the time of order of dismissal. As per the rules, if claim for reimbursement is made, the State Government is directed to consider the case for grant of amount in favour of the respondent-institution within shortest possible time and if possible then within a period of four months from the date of making claim by the respondent-institution.

With the aforesaid, all the writ petitions stand allowed."

Brief facts, giving rise to the present Special Appeals, are that the Vinodini P.G. College, Khetri, run by Khetri Vikas Samiti, was 90% aided Institution. The appellants were serving as lecturers in the college. They made a complaint against the management of the college with regard to irregularities in payment of salaries, contribution for the provident fund, and other financial matters. A High Level Committee, constituted by the Directorate, College Education, conducted an enquiry and found the allegations made in the complaint, to be established. The management of the college retaliated by suspending the appellants. They were not given charge-sheet for a long period of time, despite order of suspension dated 27.02.2003. After acquiring knowledge of the charge-sheet from the proceedings of the writ petition, a reply was given by the appellants on 24.04.2004.

In the disciplinary enquiry, it is alleged that the dates were fixed without giving any notice to the appellants; the enquiry was conducted ex parte, after which the orders were passed on 07.05.2004 dismissing them from service without prior approval of the Director of Education under Section 18 of the Act of 1989.

The appellants challenged the orders of dismissal of their services in the Tribunal, which dismissed their appeals on the ground that the appellants were given sufficient opportunity of hearing, and that since the orders of approval were subsequently received for termination of their services, no useful purpose will be served, to hold a disciplinary enquiry all over again.

Learned Single Judge was of the view that the appellants could not be dismissed from service without seeking prior approval of the Director. If the approval was asked, or denied, or even granted later on, it could not be said to be in satisfaction of the provisions of Section 18 of the Act of 1989. Having arrived at a conclusion that the appellants were dismissed from service without prior approval and thus, the order of dismissal could not be sustained, learned Single Judge passed an order, quoted as above, allowing the writ petitions by directing the compensation to be paid to the petitioners in lieu of reinstatement and salary.

Learned counsel appearing for the appellants would submit that after arriving at a conclusion that the order of dismissal was illegal and the Tribunal erred in law in dismissing the appeals, learned Single Judge erred in law and in exercise of his discretion to allow the writ petitions with an order of compensation. The final order passed by him is only on assumption that the appellants/petitioners were already settled in other services, and would be unnecessarily unsettled. Further, learned Single Judge assumed that if the respondents are directed to reinstate the appellants/petitioners, the management will be liable to pay the salary, and on that assumption, he proceeded to ask the parties to make proposals for compensation. It is submitted that learned counsel appearing for the appellants did not agree for compensation, to be paid in lieu of reinstatement. The compensation was agreed only with regard to the salary for the period upto reinstatement. The principle of no work no pay is even otherwise not applicable to the post of lecturer, as the appellants do not fall within the category of ''workman''.

Learned counsel appearing for the appellants would submit that in the meantime, the State Government, in exercise of powers conferred by Proviso to Article 309 of the Constitution of India, has framed the Rajasthan Voluntary Rural Education Service Rules, 2010. All the employees of the Non-Government Aided Educational Institutions, were to be considered on their option, after they were screened for permanent absorption, and to become members of the Rural Education Services in the regular pay scales. Since the appellants were not reinstated, they could not receive the benefits of the Rajasthan Voluntary Rural Education Service Rules, 2010, to be absorbed under the rural services on regular basis. He has relied upon the judgment of a learned Single Judge of this Court in Mrs. Jyotsna Kulshrestha vs. Management Committee, Shri Khandelwal Vaish Post Graduate Women College & Ors. (S.B. Civil Writ Petition No. 10246/2005), decided on 14.10.2011, in which, in almost similar situation, after setting aside the order of dismissal of the petitioner serving as Lecturer in the aided college, she was given relief to the extent that she was directed to be reinstated with continuity in service on the post of Lecturer held by her on substantive basis in the respondent-management, and for notional fixation of pay, with further direction that the respondents will consider and screen the candidature of the petitioner under the Rajasthan Voluntary Rural Education Service Rules, 2010.

Learned counsel appearing for the respondents would submit that the Special Appeals are not maintainable inasmuch as the judgment under appeal, has been passed on a consent given by petitioners'' Counsel. After having arrived at a conclusion that the order of dismissal from service was bad in law as prior approval of the Director was not taken, the parties agreed to accept the amount in lump sum of Rs. 65,000/- for each of the petitioner in lieu of reinstatement and salary. The appellants cannot turn around now and claim reinstatement, whereas they had consciously given up their rights of reinstatement, in lieu of lump sum compensation.

After hearing learned counsel appearing for the parties, we find that learned Single Judge adopted a curious procedure in deciding the writ petitions. Having arrived at a conclusion that the order of dismissal was bad in law, inasmuch as prior approval of the Director was not taken, he could not have assumed, in the absence of necessary facts, that the appellants/petitioners have secured employment elsewhere and will be unsettled. He also assumed that in case of reinstatement, the onerous liability of the wages will be put on the respondents, and that in any case, the Director will again approve the order of dismissal. On these assumptions, he proceeded to enquire from the parties regarding proposed compensation, and arrived at a conclusion that Rs. 65,000/- will be sufficient compensation for both, the reinstatement and the salary.

In our view, learned Single Judge could not have denied the right of reinstatement of the petitioners on assumptions. The agreement between the parties was only with regard to payment of lump sum compensation, for the salary to which the appellants would have entitled, if they were reinstated. The right of reinstatement could not have been compromised in such a casual manner, especially when the State Government had made the Rajasthan Voluntary Rural Education Service Rules, 2010, in which all the lecturers serving in the private aided colleges, were given option to be appointed to the college in rural areas in regular pay scale. The appellants'' right to opt for absorption in college in rural areas on regular pay scale was taken away from them, by an order passed by learned Single Judge on assumptions without ascertaining full facts.

Learned counsel appearing for the appellants submits that the petitioners'' Counsel had never agreed for lump sum compensation towards reinstatement inasmuch as they were not employed elsewhere, and that during the pendency of their writ petitions, they had acquired the right as they were working on substantive post in the aided college, to be absorbed in rural services.

We are of the view that the order passed by learned Single Judge, by which he has allowed the compensation, in lieu of reinstatement and salary, has not been passed by way of compromise or settlement between the parties for giving up of their rights. After having setting aside the dismissal order, ordinarily the consequence of setting aside the dismissal order is a direction of reinstatement. The circumstances in which the impugned order was passed, support the contention of learned counsel appearing for the appellants that there was no settlement or any agreement for lump sump compensation for reinstatement and salary, and that in any case, such negotiation could not have been permitted to compromise with the career of the appellants.

In the facts and circumstances, we allow the Special Appeals, and set aside the judgment passed by learned Single Judge, to the extent that the compensation directed to be paid to the appellants, as agreed by their Counsel, will only be towards the right to receive the salary for the period the appellants had not worked in the Institution. The appellants will be reinstated in service, and will be entitled for notional fixation of pay for the intervening period for which, they had not worked. They will not get monitory compensation other than Rs. 65,000/-, for the period, for which they had not worked. The State Government is directed that, if the appellants opt, they will be screened for consideration for appointment under the Rajasthan Voluntary Rural Education Service Rules, 2010, and for which, an appropriate order will be passed within two months.

A copy of the judgment will be placed in the connected files.