B.P. Dharmadhikari, J.
1. The petitioner - who is Secretary and Chief Executive Officer of the Pipla Education Society has questioned the order dt. 23-4-1990 passed by the respondent No 1 asking the petitioner to reinstate the respondent No. 3 after setting aside his termination dt. 10'th April, 1989. The facts, in brief, which are also not in dispute can be stated thus:
The respondent No. 3 was Head Master of the School by name 'Vikas Vidyalaya' administered by the petitioner Institution. He was appointed on 17-3-1988 and a charge-sheet for departmental enquiry was also served upon him. Before final action in the departmental enquiry could be taken, the respondent No. 1 - in exercise of powers under Section 3 of the Maharashtra Educational Institutions (Management) Act, 1976 (hereinafter referred to as 'the Management Act') - appointed an Administrator on the said School. The Deputy Education Officer of Zilla Parishad, Nagpur by name Mr. Marathe was appointed as Administrator. The Administrator after assuming charge by order dt. 10-4-1989 terminated his services. This termination was challenged by the respondent No. 3 by filing an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 before the Tribunal at Nagpur on 17-4-1989. The petitioner contends that the petitioner-Society through its Secretary and its Chief Executive Officer were joined as a party-respondent before the School Tribunal. During pendency of the said appeal, the respondent No. 3 filed another appeal under Section 3(7)(f) of the Management Act before the Director of Education challenging the termination order dt. 10-4-1989. He did not join the petitioner or its Chief Executive Officer as a party to that appeal. The Director of Education has ultimately on 23-4-1990 allowed that appeal. It is this order which is challenged before this Court.
2. We have heard Mr. A. Shelat, learned Counsel for the petitioner, Mr. S.R. Puranik, Adv. for the respondent No. 3 and Mrs. Wandile, A.G.P. for the other respondents.
3. Mr. A. Shelat, Adv. for the petitioner has stated that the respondent No. 1-Director passed on order in appeal even after he was communicated the fact that the appointment of the Administrator of Vikas Vidyalaya was set aside by the State Government in appeal preferred by the petitioner-Management challenging the order of appointment of Administrator. He states that these communications were dt. 4-9-1989, 6-10-1989 and 17-10-1989. He argues that the moment it was communicated to the Director that the appointment of the Administrator has been set aside, the Director could not have exercised appellate powers and in any case, the Director ought to have issued notice to the petitioner who was then Administrating the School. He contends that no notice of such appeal was issued by the Director-either to the Secretary of Society or to its Chief Executive Officer. He, therefore, argues that entertaining and allowing appeal by the Director, in these circumstances, is not only in breach of the principles of Natural Justice, but also without jurisdiction.
4. In the alternative, he has contended that the purpose of Management Act, 1976 is very limited and thereafter, a more elaborate and comprehensive Act regulating service conditions of employees of Private Schools has been brought into effect vide Act No. III of 1978 i.e. Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as 'the M.E.P.S. Act'). He has relied upon the preamble of the Management Act, 1976, as also the provisions of Section 3(7)(f) to point out the limited sphere in which the Administrator appointed under that Act could function and also to point out that the Director, therefore, could not have decided the appeal after the Administrator was removed. He has thereafter invited our attention to the preamble of the M.E.P.S. Act, 1977 and its Section 2(12) and Sections 8 to 13 to substantiate his argument that in view of the Scheme of M.E.P.S. Act, it will have to be held that after coming into force of the said Act, the provision of appeal before the Director under Section 3(7)(f) of the Management Act, 1976 is rendered redundant. He contends that Section 9 of the M.E.P.S. Act will have overriding effect over the provisions of said Section 3(7)(f). He also invites attention to the fact that Section 9 begins with non-obstante clause and in 1977 the Legislature was very much aware of existence of 1976 Act i.e. the Management Act and the provisions made therein.
5. In support of his contentions, the learned Counsel placed reliance upon the judgment of Division Bench of this Court reported at 2001(1) Mh.L.J. 887 Chandrakant Ganpat Narkhede v. State of Maharashtra and Ors. and also 1991 (1) Mh.L.J. 493 Jagruti Education Society, Bhandara v. Presiding Officer, School Tribunal, Nagpur Division, Nagpur and Ors. He, therefore, contends that in any case the impugned order dt. 23-4-1990 is unsustainable and deserves to be quashed and set aside.
6. Mr. Puranik, Adv. appearing for the respondent No. 3, on the other hand, has contended that the fact of appointment of Administrator to conduct affairs of Vikas Vidyalaya is not in dispute and the fact that termination order has been passed by the Administrator is also not in dispute. He contends that the M.E.P.S. Act does not contain any provision authorising respondent No. 1 to appoint Administrator and said contingency is taken care of only by the Management Act, 1976. It is, therefore, his contention that the 1976 Act is the Special Act and therefore, the remedy of appeal provided thereunder vide Section 3(7)(f) must prevail and the remedy of appeal provided under Section 9 is not available when the affairs of School are being looked after by the Administrator appointed under the Management Act, 1976. He further contends that the appeal has been decided on 23-4-1990 when the Administrator was still holding the charge and he points out from the affidavit filed on record that the charge has been handed over by the Administrator after about one month of passing of order dt. 23-4-1990. He further states that, after some dispute in this respect, the petitioner permitted respondent No. 3 to join his services and thereafter, the respondent No. 3 withdrew his Writ Petition filed before this Court vide Writ Petition No. 1137 of 1990 to implement the orders of Director dt. 23-4-1990. It is, therefore, his contention that, in such circumstances, the petition, as filed, is itself misconceived and deserves to be dismissed.
7. Mrs. S.S. Wandile, learned Assistant Government Pleader has adopted the arguments of Mr. Puranik, Adv. and contended that as the Management Act, 1976 is the only piece of legislation which provides for appointment of Administrator in certain contingencies, the provisions of said Act will prevail over the M.E.P.S. Act during continuation of said contingency and therefore, the order dt. 23-4-1990 passed by the respondent No. 1 cannot be held to be without jurisdiction.
8. During the course of hearing, it has been brought to our notice that the respondent No. 3 - who was allowed to join his services in view of order dt. 23-4-1990 by the petitioners, was latter on again found involved in some other misconduct and has been again dismissed from service. It is further stated that the litigation in that respect has now reached this Court and the petition filed by the Management is admitted for final hearing by this Court.
9. The question which falls for consideration of this Court is, therefore, whether the Director i.e. respondent No. 1 possessed jurisdiction to decide the appeal under Section 3(7)(f) of the Management Act, 1976 in view of the provisions of Section 9 of the M.E.P.S. Act. In other words, the issue to be decided is which provision will apply in the facts and circumstances of the case.
10. Perusal of the Management Act, 1976 reveals that it came into force on 13th day of January, 1976 and the purpose for enactment of the said Act is to provide for taking over management of the property of certain educational institutions for a limited period. Section 3 enables Director to take over management of educational institution if he is satisfied that the Management of any educational institution has neglected to perform any of the duties imposed on it by or under any law or by memorandum of association or by any instrument including its rules, regulations or bye-laws which regulates its administration or the institution is being managed in a manner detrimental to public interest. The Director has to be further satisfied that it is expedient in the public interest, and in particular, in the interest of education imparted in such institution to take over the management of such institution. The Administrator was appointed on petitioner's institution in exercise of said power and the fact is not in dispute before this Court. The provision of Section 3(7) prescribes certain limitations upon powers of Administrator during the period when the Management is accordingly taken over and said Sub-section (7) reads as under:
(7) During such period as any institution remains under the management of an Administrator,--
(a) the service conditions, as approved by the Director, of the employees shall not be varied to their disadvantage;
(b) such educational facilities as may be approved by the Director and which the institution had been affording immediately before the appointed date shall continue to be afforded;
(c) all fees, all grants and all other receipts of the institution (being fees, grants or receipts as relate to its activity of imparting education therein) shall continue to be available to the Administrator for being spent for the purposes of the institution;
(d) no resolution passed at any meeting of the Management of such institution shall be given effect to unless approved by the Director; and
(e) it shall be lawful for the Administrator to terminate the services of any employee who in his opinion is acting in any manner detrimental to the interest of the institution or education imparted therein after giving the employee a reasonable opportunity of showing cause against the proposed action;
(f) the employee who is aggrieved by any order of the Administrator may, within 21 days of receipt of the order terminating his services, appeal to the Director whose decision in the matter shall be final and conclusive and shall not be called in question in any court.
11. It is therefore, clear that these powers are available to the Administrator only during the period when he is at the helm of affairs and further clause (f) permits employee aggrieved by order of the Administrator to file appeal within 21 days with the Director. The 'Director' has been defined by Section 2(e) to mean the Director of Education or the Director of Technical Education or any Officer authorised by the State Government in this behalf.
12. In this connection, when the provisions of M.E.P.S. Act are looked into, it is clear that the Act has received the assent of the President on 20th March, 1978 and was published on the same day. The purpose of this Act is to regulate recruitment and conditions of service of employee in certain private schools. The fact that Vikas High School, in which the respondent No. 3 was working, is a private school within the meaning of M.E.P.S. Act is not in dispute. The provisions of Sub-section 2(12) define the term 'Management' and from such definition, it is apparent that its residuary clause i.e. 2(12)(c) includes the person or body of persons, whether incorporated or not and by whatever name called, Administrating such school. Therefore, the Administrator appointed under the Management Act, 1976 is very much covered by the phrase 'Management' as defined in said Section 2(12). Section 4 of the Act deals with terms and conditions of service of employees of private schools. Section 6 thereof prohibits the Management from suspending, dismissing or removing from service or otherwise terminating or reducing in rank any employee of a private school except in accordance with the provisions of M.E.P.S. Act or Rules made thereunder. Section 8 prescribes for constitution of a Tribunal known as 'School Tribunal' and Sub-section (3) thereof also prescribes qualifications of a person so as to enable him to work as a Presiding Officer of that Tribunal. Section 9 gives employee a right to appeal to the said Tribunal. Section 10 prescribes general powers and procedure of School Tribunal. Section 11 gives the details of appropriate reliefs and directions which School Tribunal can issue at the end of hearing before it. Section 12 makes the decision of the Tribunal to be final and binding. Section 13 prescribes penalty if the Management fails to comply with the directions of the Tribunal. In short, it is clear that the M.E.P.S. Act has been enacted with a view to regulate recruitment and conditions of service of employees like respondent No 3 and it is more comprehensive and elaborate in nature and it operates in a field which is not covered by the Management Act, 1976.
13. The question whether the Management Act, 1976 will prevail over the provisions of the M.E.P.S. Act has been considered by the Division Bench of this Court in the judgment reported in 2001 (1) Mh.L.J. 887 (cited supra) and the facts of that case are that the Administrator appointed under the Management Act, 1976 terminated the services of an employee merely by issuing a show cause notice and in breach of principles of natural justice. The question cropped up whether it was necessary to follow the procedure prescribed by the Rules framed under the M.E.P.S. Act, 1977 to find out whether the employee was guilty of misconduct or not. The issue has been considered in paragraphs 17, 21, 24 and 25 by the Division Bench. In paragraph 21, the Division Bench has observed that the service conditions prescribed by the M.E.P.S. Act are statutory service conditions and the same must be made applicable and followed in respect of each employee of the School, whether it is run by the private institute, or, if the Administration of the institute is taken over by the Government by appointing Administrator. It has been held that the 1977 Act (the M.E.P.S. Act) is a special Act and it will have overriding effect over the 1976 Act (the Management Act) Act which is introduced for a limited period for better administration of the Institute. In paragraph 24, the Division Bench has observed that if the Management is taken over by the Government by following the provision of the 1976 Act (Management Act), the said Management is covered by the clause (6) of Section 4 r/w. Clause (12) of Section 2 of the M.E.P.S, Act and therefore, the provision of 1977 Act are fully applicable while passing any order of termination of service of any employee by way of punishment. In paragraph 25, thereafter, it has been observed that it was not at all appropriate on the part of the Administrator appointed under the Management Act, 1976 to terminate services of the petitioner only after obtaining the explanation of the petitioner to the show cause notice and when the petitioner had denied all the charges levelled against him, then it was absolutely necessary to hold enquiry by following the provisions of the M.E.P.S. Act, 1977 and 1981 Rules framed thereunder, especially Rules 36 to 39.
14. The Judgment of other Division Bench - on which reliance has been placed is 1991 MhLJ 493 (cited supra). There when the services of an employee were terminated, the School Tribunal under Section 9 was not in existence and he had preferred appeal which was pending before the Education Officer, Zilla Parishad, Bhandara. The said appeal was rejected on 14-9-1981. Thereafter, the petitioner-Society received a notice from the School Tribunal and the School Tribunal allowed the appeal of the employee. The said order was challenged in Writ Petition before this Court. The contention of the Management was that, in view of the decision of appeal by the Education Officer in exercise of powers under the Bombay Primary Education Rules, 1949, the School Tribunal under Section 9 could not have exercised jurisdiction and taken cognizance of the issue. The controversy is considered by the Division Bench in paragraph 15 of the said Judgment and it has been observed that the petitioner before the High Court could not point out anything to show that the controversy was adjudicated by a Court of competent jurisdiction before the M.E.P.S. Act came into force. It has been thereafter observed that as there was no such adjudication before by the competent Court, the provisions of Sub-section 1(a)(b) (having a non-obstante clause) would prevail so that the jurisdiction of the School Tribunal becomes all-pervasive to the exclusion of the jurisdiction of other Authorities. In paragraph 21, the Division Bench has held that once the exclusive forum is granted by the Statute, the jurisdiction of other Authorities, who were otherwise competent, before coming into existence of the Tribunals, is ousted due to necessary implication. Only thing one has to see is whether the dispute falls within the four corners of Section 9(1)(a) and (b) of the M.E.P.S. Act, 1977. If the dispute fits within the Scheme provided by Section 9, the Public Authorities, who had jurisdiction before, ceased to have the same. It has been held that the Education Officer could not, therefore, decide the controversy as he ceased to have the requisite jurisdiction.
15. As already stated above, the purpose of Management Act, 1976 is very limited and it is for taking over management of property of certain educational institutions for a limited period. It, therefore, operates in different field. The provisions of the M.E.P.S. Act, 1977 squarely regulate the recruitment and the conditions of service of employee in private schools and therefore, govern the service condition of respondent No. 3. It is, therefore, apparent - insofar as the matters relating to recruitment termination, dismissal, promotion etc. are concerned, the M.E.P.S. Act, 1977 will have overriding effect over the provisions of the Management Act, 1976. The provisions of Section 9 begin with a non-obstante clause and it is clear that, therefore, said Section will supersede provisions of Section 3(7)(f) of the Management Act, 1976. In this respect, it is to be noted that when the Management Act, 1976 came into force, there was no such School Tribunal functioning. The M.E.P.S. Act has been later on enacted. Perusal of provisions of Section 8(3) of the M.E.P.S. Act, 1977 reveals that a person holding a judicial office not lower in rank than that of Civil Judge (Sr. Dn.) or a person practicing as an Advocate or Attorney for not less than seven years is eligible for being appointed as a Presiding Officer of the School, Tribunal. Perusal of Section 9 also shows that a right of appeal in the matter of dismissal, removal or termination or reduction in rank or supersession has been given to the employee and period of limitation is also prescribed. Therefore, subsection (2) of Section 10 - which prescribes general powers and procedure of Tribunal, specifically states that the Tribunal has powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908 and it has also been given powers to stay the operation of any order against which an appeal has been preferred. It has also been authorised to decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings. Section 11 also lays down the scope and parameters of other appropriate reliefs which can be given by the School Tribunal to employee while allowing the appeal either partially or wholly. Section 8 makes adjudication of School Tribunal final and Section 13 provides for penalty to Management for its failure to comply with the Tribunal's directions. The M.E.P.S. Rules, 1981 framed under the M.E.P.S. Act deal with all provisions and aspects of employer-employee relationship like eligibility, qualifications for recruitment and promotions, recruitments for backward classes, leave, resignation, abolition of posts, retrenchment, absorption of surplus staff in other schools, code of conduct, procedure of departmental enquiries, termination, dismissal etc. Management Act, 1976 does not deal with or prescribe these matters and the M.E.P.S. Act with 1981 Rules framed thereunder reveal unequivocal intention of framers to enact complete code and law in this respect. This later law, therefore, provides a more effective and impartial forum for decision of such disputes and to that extent, eclipses the jurisdiction under Section 3(7)(f) of the Management Act.
16. Thus, it is clear that an elaborate and more comprehensive Scheme in the matter of termination, dismissal etc. of employees of private school has been brought into force by M.E.P.S. Act, 1977 later on i.e. later in point of time than the Management Act, 1976. Grievance of employees of private schools in relation to any order passed by the Administrator under the Management Act, 1976 will have to be redressed only under Section 9 of the M.E.P.S. Act and 1981 Rules if such order is covered under Section 9 and jurisdiction is conferred upon the School Tribunal about it. We have, therefore, no doubt in our mind that the Section 9 of the M.E.P.S. Act will prevail over the provisions of the Management Act, 1976 to that extent. Therefore, it is held that the Director did not have jurisdiction to decide the appeal filed by the present respondent No. 3 under Section 3(7)(f) of the Management Act, 1976. Consequentially, the order dt. 23-4-1990 is found to be without jurisdiction. The same is accordingly quashed and set aside. The petition is accordingly.allowed.
Rule is made absolute in the above terms with no orders as to costs.