JUDGMENT
Sunil Kumar Garg, J.
1. The instant writ petition has been filed by the petitioner under Article 226/227 of the Constitution of India with the prayer that the impugned order dtd. 18.7.98 (Annex.10) passed by the Learned Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as the Tribunal) in appeal No. 319/96 (S. Prabhakaran v. School Managing Committee Shri Jain Adarsh Vidya Niketan Sr. School, Nokha) by which the learned Tribunal set aside the order dtd. 31.7.96 whereby the services of the respondent No. 2 were terminated orally and respondents No. 2 was ordered to be reinstated with 50% back wages, be set aside.
2. It arises in the following circumstances:
i) That the petitioner i.e. School Managing Committee Shri Adarsh Vidya Niketan Sr, School, Nokha is a non-government educational institution recognised by the State Government and affiliated with the Central Board of Secondary Education, New Delhi situated at Nokha in Dist. Bikaner.
ii) that respondent No. 2 Shri S. Prabhakaran was given appointment on the post of Post Gradate Teacher (Physics teacher) on probation vide order dtd. 22.9.94 (Annex.1) for a period of one year from the date he joined the post.
iii) That thereafter in want of better job as told by respondent No. 2 verbally to the petitioner-School, he submitted his resignation on 11.9.95, but however it was withdrawn vide letter dtd. 12.9.95 in which he stated that he was regretting for happening and assurance was also given that in future this would not happen.
iv) That thereafter on account of unsatisfactory services, the probation period of respondent No. 2 was extended upto 30.4.96 vide letter dtd. 2.11.95.
v) That thereafter since the performance of respondent No. 2 was not satisfactory, he was given further chance to improve his performance and further in continuation to the previous letter dtd. 2.11.95, his probation period was further extended for a period of one year w.e.f. 1.5.96 to 304.97 vide letter dt. 14.5.96 (Annex.3) in which it was stated that it be confirmed whether he was willing or not to continue in the institution. Thereupon the matter was discussed with the respondent No. 2 and respondent No. 2 told that he was trying for better prospectus and therefore, his continuation in service be issued in July.
vi) That thereafter in the month of July, 1996, the services of the respondent No. 2 were extended upto 31.7.96 vide letter dtd. 18.7.96 (Annex.4). Thereafter neither his services were confirmed nor extended as his work was not found satisfactory despite given further chance to improve his performance.
vii) That it was further submitted by the petitioner that respondent No. 2 was not willing to work with the petitioner- school. The respondent No. 2 through letter dtd. 1.8.96 (Annex.5) demanded experience certificate, last pay certificate and relieving order.
viii) That thereafter through letter dtd. 19.9.1996 (Annex.6); the petitioner demanded the following:
1)
one month salary security deposit
Rs.
3600/-
2)
July, 96 salary
Rs.
3600/-
3)
One month notice period salary as per
rules mentioned in the appointment order dtd. 22.9.1990
Rs.
3600/-
Rs.
10,800/-
ix) That in response to letter dtd. 19.9.96 (Annex.6), the petitioner-School sent a letter dtd. 24.9.96 (Annex.7) to the respondent No. 2 and advised to receive due amount as demanded by respondent No. 2 at any working day of the petitioner-School.
x) That the respondent No. 2 never turned up and presented himself in the petitioner-School on any working day for receiving his dues as admissible because he could not appear on any working day as he had already joined his services in another Institution.
xi) It is further submitted by the petitioner that from above fact, it is clear that the respondent No. 2 was neither wiling to work nor interested in setting his dues and nor he worked with effect from 1.8.96 in the petitioner – school and he had left the services of the petitioner-School voluntarily.
xii) Thereafter surprisingly, the respondent No. 2 preferred an appeal under Section 19 of the Rajasthan Non- Government Educational Institutions Act, 1989 (hereinafter referred to as the Act of 1989) before the Tribunal at Jaipur and that appeal was registered.
xiii) That the learned Tribunal vide its judgment dtd. 18.7.98 (Annex. 10) allowed the appeal filed by the respondent No. 2 and set aside the verbal termination order dtd. 31.7.96 and the respondent No. 2 was ordered to be reinstated with 50% back wages. Hence this writ petition with the abovementioned prayer.
3. In this writ petition, the learned counsel for the petitioner has raised following submissions:-
i) That as a matter of fact, the learned Tribunal has committed error of law in setting aside the termination order dtd. 31.7.96 whereas the services of respondent No. 2 were not terminated by the petitioner -School, but he himself left the services of the petitioner – school voluntarily as he was appointed in another Institution. Therefore, no question of termination arises in this case and the impugned judgment dtd. 18.7.98 (Annex. 10) passed by the learned Tribunal is liable to be set aside.
ii) That from perusing letter dtd. 1.8.96 (Annex.5) and letter dtd. 19.9.96 Annex.6), which were written by the respondent No. 2 himself, the case that the respondent No. 2 left the services voluntarily is well established.
4. On the other hand, the learned counsel for the respondent No. 3 has also submitted the the respondent No. 2 was rightly removed from the services and hence, the writ petition filed by the petitioner should be allowed.
5. It may be stated here that in this writ petition, the respondent No. 2 has not appeared despite service.
6. I have perused the impugned judgment dt. 18.7.98 (Annex. 10) passed by the Tribunal and the basis of impugned judgment dt. 18.7.98 (Annex.10) passed by the Tribunal is that services of respondent No. 2 were terminated by verbal order with effect from 31.7.96 and for that notice should have been given to respondent No.2 before termination his services as provided in Regulation 27 of the CBSE Affiliation Bylaws and, therefore, the learned Tribunal ordered reinstatement of respondent No.2.
7. In my considered opinion, the judgment of the learned Tribunal suffers from basic error of law apparent on the face of record and further more, the findings recorded by the learned Tribunal are perverse and are based on no material.
8. In the present case, the main question which arises for determination is whether verbal termination order dtd. 31.7.96 was ever passed by the petitioner school against the respondent No.2 or not?
9. From perusing the record, it is very much clear that initially the respondent No. 2 was appointed on probation for a period of one year vide order dtd. 22.9.94 (Annex.1) and thereafter the period of probation was extended from time to time and lastly his period of probation of extended upto 31.7.96 and thereafter the period of probation of respondent No. 2 was not extended and for that letter dtd. 18.7.96 (Annex.4) may be referred to.
10. From letter dtd. 1.8.96 (Annex.5) written by the respondent No. 2 himself and addressed to the petitioner-School, it reveals that by that letter he demanded experience certificate, last pay certificate and relieving order. This letter dtd. 1.8.96 (Annex.5) itself shows that after 31.7.96, the respondent NO. 2 was not in service of petitioner- School and that is why he demanded last pay certificate and the last pay certificate is issued to those persons who have left the job.
11. From letter dtd. 19.9.96 (Annex.6) written by the respondent No. 2 himself, it further reveals that he demanded one months salary security deposit, salary for the month of July, 1996 and one month notice period salary and in that letter, nowhere he mentioned that he be treated in service with effect from 1.8.96 or nowhere he made a prayer or requested that he should be kept in service of the petitioner – School or nowhere he mentioned that he was still in the service of petitioner- school, meaning thereby that after the period of probation came to an end on 31.7.96, the respondent No. 2 did not turn up for doing the job as teacher in the petitioner – school and he was interested in taking his last pay certificate etc., therefore, from above facts, only one conclusion can be drawn and the same is that respondent No. 2 was not in service of the petitioner-School after 31.7.96 and his probation period was not extended and he himself left the services of petitioner-School. Further more, not only this, he himself did not raise the dispute before the management of the petitioner – School that he should be taken in service after 31.7,96. That being the position, the impugned order dtd. 18.7.98 (Annex.10) passed by the tribunal cannot be sustained especially when the respondent No. 2 himself has not appeared before this Court.
On the Point of Applicability and Scope of Article 227 of the Constitution of India.
12. It is well established that it is only when an order of a tribunal is violative of the fundamental basic principles of justice and fair play or where as patent or flagrant error in procedure of law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution of India.
13. the power of general superintendence conferred by Article 227 involves a duty on the part of the High Court to keep all courts and tribunals within its territorial jurisdiction within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner, this means that the High Court can interfere in cases of –
a) Erroneous assumption or excess of jurisdiction.
b) Refusal to exercise jurisdiction.
c) Error of law apparent on the fact of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction.
d) Violation of principles of natural justice.
e) Arbitrary or capricious exercise of authority, or discretion.
f) Arriving at a finding which is perverse or based on no material.
14. Under Article 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable.
15. So far as present case is concerned, the findings of the Tribunal are not based on correct appreciation of law and facts. From perusing the judgment dtd. 18.7.98 (annex. 10) passed by the Tribunal, it reveals that there is patent irregularity or error of law apparent on the face of record and the findings recorded by the Tribunal are perverse. Hence, the present case is covered by Clause (f) of the grounds just mentioned above as to when this Court under Article 227 of the Constitution of India can interfere.
16. For the reasons mentioned above, the impugned judgment dtd. 18.7.98 (Annex. 10) passed by the Tribunal cannot be sustained and is liable to be set aside and this writ petition is liable to be allowed.
For the reasons mentioned above, this writ petition is allowed and the judgment dt.18.7.98 (Annex.10) passed by the learned Rajasthan Non-Government Educational Institution Tribunal, Jaipur is set aside.
Cost made easy.
