- (1.) The petitioner has impugned three orders viz order dated 14.11.1981 placing him under suspension charge memo dated 13.9.1982 and the order of termination dated 4.10.1985 respectively in this petition under Articles 2267227 of the Constitution.
(2.) A reference to relevant facts is necessary to appreciate the questions arising for determination in this writ petition.
(3.) The petitioner was appointed as a Lecturer in Commerce in Shri Lal Nath Hindu College, Rohtak on 3.9.1973 and was confirmed 3.9.1975. He was chargesheeted on 18.1.1982 and a regular enquiry was conducted. The Enquiry Officer found that all the allegations of charge were proved against the petitioner. Respondent No. 3 imposed the punishment of dismissal from service and the matter was referred to the Director, Higher Education Haryana in accordance with Section 7(4) of the Haryana Affiliated Colleges (Security of Service) Act, 1979 (for brevity the Act) for approval. The Director took the view that the petitioner was not given an opportunity for his defence and he ordered for holding a fresh inquiry. Thereafter fresh enquiry was held and the Enquiry Officer again proposed punishment of dismissal from service to which proposal the management of Shri Lal Nath Hindu College (for short the college) agreed. The Hindu Education Society (for short the society) again proposed the punishment of dismissal from service against the petitioner and referred the matter to the Director, Higher Education, Haryana. The Director vide his order dated 18.5.1993 turned down the recommendation for the second time on the ground that the Enquiry Officer's report suffered from procedural infirmity. The management of the college and the society assailed the order of the Director dated 18.5.1993 in Revision before the State Government under Section 11 of the Act. The Revision Petition was dismissed by the Secretary to Government Haryana, Education Department vide his order dated 26.10.1993. The order of the State Government affirming the order of the Director Higher Education was challenged by the management of the College in C.W.P. No. 387 of 1984 on various grounds. The Writ Petition was disposed of by a learned single Judge of this Court observing thus:- "While exercising powers under Section 7(4) of the Act on remittal of the matter to him, he inter alias would taken into consideration whether he should approve the proposed or reduce it too the extent permissible under the Rules." The judgment rendered in C.W.P. No. 387 of 1984 was unsuccessfully challenged by the petitioner in L.P.A. No. 1132 of 1984 which was dismissed on 113.1985. Thereafter the Director Higher Education started proceeding in the matter and under its order the management made payment of arrears of subsistence allowances to the petitioner which was accepted by him. The Director controverted the penalty of dismissal from service into simple termination of service vide order dated 5.9.1985. The order of the Director dated 5.9.1985 was challenged in a revision before the State Government under Section 11 of the Act. The revision petition was disposed of Smt. Sharda Rani, Education Minister Haryana who accepted the same on 6.4.1987. She set aside the order of the Director dated 5.9.1985 and orders the petitioner's reinstatement in service with all benefits and continuity in service. The order of the Education Minister dated 6.4.1987 was challenged by the society of the governing body of the college in C.W.P. No. 2845 of 1987. The solitary ground of challenge was that while acting as the revisional authority, the Education Minister had exceeded the limit of sphere of authority within which the case had to be decided as directed by the learned Judge who disposed of C.W.P. No. 387 of 1984. The writ petition filed by the society and the management of the college was allowed vide order dated 1.9.1987. The respondent unsuccessfully challenged the order of the learned Single Judge in L.P.A. No. 25 of 1988 and the same was dismissed vide order dated 17.1.1990. During the pendency of C.W.P. No. 2845 of 1987 the petitioner filed this writ petition challenging the order of suspension charge memo and the order of termination from service. The only ground of attack is that the governing body of the college was not competent to suspend, terminate or dismiss the petitioner from Service. According to Rule 20(a) of the Rules and Regulations of the Hindu Education Society, the power to suspend or dismiss the member of the teaching staff of the college rests in the executive committee of the society. The executive committee has to exercise its power subject at to the general control of the managing committee of the society. The Governing body of the college had no power to suspend or terminate the petitioner's service. The order of suspension dated 14.11.1981, charge memo dated 13.9.1982 and the order of termination dated 4.10.1985 were passed by the president governing body of the society and not by executive committee of the society. Rule 20 of the Rules and Regulations of the society reads thus:- "20. The executive committee shall exercise the following power subject to the general control of die Managing Committee and the society. (a) To appoint, confirm, promote, fine, degrade, suspend or dismiss members of the teaching staff and clerical staff, Laboratory Asstt. Physical Instructor and employees of the Managing Committee. The Executive Committee may delegate this power to any sub-committee constituted for the purpose. The subordinate staff shall be appointed by the Head of the Institution, in consultation with the Manager of the Institution concerned under the general guidance of the Executive Committee." Rule 6 of the Rules and Regulations of the society shows that the society shall consist of the following functioning bodies:- 1. A General House. 2. A Managing Committee. 3. An Executive Committee. There is no provision in the rules for appointments of a governing body for the respondent college. The society through its functional body controls this college. Rule 20 as reproduced in para 32 of the Writ Petition was not denied. A bare perusal of this rule points out that it is the Executive Committee of the society which can suspend or dismiss members of the teaching staff of the college. In the instant case, the order of suspension and termination of services were not passed by the Executive Committee of the society. Further, more the power of the Executive Committee for suspending or dismissing member of the teaching staff is subject to general control of the Managing Committee of the society meaning thereby that the actions of the executive committee suspending or dismissing a member of the teaching staff is to be affirmed by the Managing Committee of the society. As observed earlier the orders of the suspension termination from service and charge memo, were not passed by the executive committee of the society. These orders were passed by the the authority not competent, to do so and as such these orders are null and void. The learned counsel for the respondent could not dispute that the orders under challenge were not passed by the competent authority. He further maintained that this plea that the orders of suspension and termination from service were not passed by the competent authority is not available to the petitioner as in the earlier litigation he did not take this plea and as such the objection is barred on the principle of constructive res judicata. The submission is devoid of any merit. In the earlier litigation, the question whether the order of suspension or termination from service was issued by the competent authority was not in issue. The only question in the earlier litigation as observed by the learned single Judge while disposing of C.W.P. No. 2845 of 1987 was whether the order of the Education Minister was within the sphere of the authority? She was only called upon the decide the revision petition within the ambit of the order passed by the learned single Judge while deciding C.W.P. No. 387 of 1987. In order to attract the provisions of Section 11 of the Code of Civil Procedure, the following conditions must be satisfied:- (i) There must be two suits one former suit and the other subsequent suit; (ii) The Court which derded the former suit must be competent to try the subsequent suit; (iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits; (iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit, (v) The parties to the suits or the parties under whom they or any of them must be the same in both the suits; (vi) The parties in both the suits must have litigated under the same title. In the instant case condions No. (iii) and (iv) are not satisfied and as such Section 11 of the Code of Civil Procedure is not applicable to the facts of the instant case. There is no escape from the conclusions that the orders of suspension, charge memo and termination from service were issued by the authority not competent to do so.;