C.K. Thakker, C.J.
1. The present reference reminds us observations of Bhagwati, C.J. (as His Lordship then was), in Zinabhai Ramchhodji Darji v. State of Gujarat and Ors., (1972) 13 GLR 1. Dealing with the provisions of the Gujarat Panchayats Act, 1961, speaking for the Division Bench, the learned Chief Justice observed :
'It is extraordinary and unique piece of legislation framed without much scientific accuracy of language and many of its provisions are so unhappily worded that it is difficult to penetrate their confusion and obscurity. This is not the first time that we are called upon to face the complexities of this legislation and with our growing acquaintance with its provisions, we must confess to a feeling of reluctant respect which one feels for an old touch sparring partner whom one has never been able to knock out.'
2. Reference in Writ Petition No. 285 of 1995 has been made by the Division Bench on August 7, 2001 as the Bench felt that the provisions in Rules 33 and 35 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, were, prima facie, conflicting. The Division Bench also observed that the decisions of this Court interpreting those rules were contradictory and the point deserved to be finally decided by a larger Bench. Accordingly, the Prothonotary and Senior Master was directed to place the papers before the Hon'ble the Chief Justice for appropriate orders.
3. Pursuant to the above order, Writ Petition No. 285 of 1995 (Original Side) as also other petitions on Original Side as well as Appellate Side have been placed for our consideration.
4. To appreciate the controversy in the present petitions, few facts in the first matter (Writ Petition No. 285 of 1995) may be stated.
5. The petitioner in the said petition was appointed in June, 1984 as Headmaster in Adarsh Vidya Mandir High School conducted by Adarsh Vidya Mandir, respondent No. 1. He was placed under suspension by an order dated 17th January, 1995 as various allegations had been levelled against him by the management. Admittedly, prior permission had not been granted by the Education Officer for such suspension. The petitioner, therefore, challenged the said action being contrary to law. In an affidavit filed on behalf of the management, it was stated that a show cause notice was issued to the petitioner on 21st November, 1994 in respect of illegalities and irregularities alleged to have been committed by the petitioner. The petitioner submitted his reply on 6th December, 1994. The management thereafter decided to hold inquiry against the petitioner. As the first respondent was of the view that during the pendency of inquiry, the petitioner should be placed under suspension, approval of Education Inspector was sought by the management vide a letter dated 9th December, 1994. No reply, however, was received by the first respondent from the office of Education Inspector. A reminder was, therefore, sent by the management on 28th December, 1994 which was also not replied. Again a second reminder was sent on 6th January, 1995 stating therein that if the management will not receive any reply within seven days, it would take an appropriate action in the matter. According to the management, even the said communication was not replied by Education Inspector and accordingly an order of suspension was passed by the management against the petitioner on 27th January, 1995.
6. The question before the Division Bench was whether the action of the first respondent-management in passing an order of suspension could be said to be in accordance with law. As we will point out hereafter, in view of statutory provisions as also conflicting decisions of this Court, the Division Bench felt it necessary that the point be decided by a larger Bench.
7. Before we deal with the rival contentions of the parties, it would be appropriate, if we consider the relevant provisions of the Act and the Rules, The parent Act is the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Maharashtra Act III of 1978) (hereinafter referred to as 'the Act')- It was enacted by the Legislature of the State of Maharashtra.
8. The Preamble of the Act reads thus:
'WHEREAS it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently:
AND WHEREAS, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education :
AND WHEREAS, it is also necessary to make certain supplemental, incidental and consequential provisions; It is hereby enacted in the Twenty-eighth year of the Republic of India, as follows :-'
9. It is not in dispute that the Act came into force with effect from July 15, 1981 which was 'appointed date' as defined in Clause (1) of Section 2. Clause (6) of the said section defines 'Director' as, inter alia, the Director of Education appointed as such by the State Government. The expression 'Deputy Director' has not been defined. 'Employee' is defined in Clause (7) as 'any member of the teaching and non-teaching staff of a recognised school'. 'Management' is defined in Clause 12 thus : ;
'Management' in relation to a school, means :--
(a) in the case of a school administered by the State Government, the Department;
(b) in the case of a school administered by a local authority, that local authority; and
(c) in any other case, the person, or body of persons, whether incorporated or not and by whatever name called, administering such school;'
The expressions 'private school', 'recognized' and 'school' are defined in Clauses (20), (21) and (24) respectively. 'Junior College of Education' as defined in Clause (10) means 'a school imparting teacher education to persons for being appointed as teachers in pre-school centres or primary schools'. 'Prescribed' means 'prescribed by rules' (vide clause 17).
10. Section 3 or the Act declares that the provisions of the Act 'shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not'. Section 4 prescribes terms and conditions of service of employees of private schools. Sub-section (6) of Section 4 it is relevant which reads thus:
'No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank, by the Management, except in accordance with the provisions of this Act and the rules made in that behalf.
11. Section 4A of the Act empowers the Director to hold or order holding of inquiries by the management. Section 5 imposes certain obligations on management of private schools. Section 6 deals with obligations of head of a private school. Section 7 prescribes procedure for resignation by employees of private schools. Sections 8 to 15 deal with constitution of Tribunals and powers and procedures of conduct of cases. They also prescribe penalty on the management for failure to comply with Tribunal's directions. Section 16 enables the State Government to make Rules for carrying out the purposes of the Act by issuing Notification in the Official Gazette. Sub-section (2) of Section 16 declares that in particular and without prejudice to the generality of the provisions in the Act, such rules could provide for matters enumerated in Clauses (a) to (g) of the said sub-section. Those clauses relate to qualifications for recruitment of employees of private schools, their pay scales and allowances, their post-retirement and other benefits, other conditions of service, duties of employees and code of conduct and disciplinary matters, manner of conducting inquiries, etc. Under Sub-section (3) of Section 16, such rules shall be subject to the conditions of previous publication.
12. In exercise of the powers conferred by Sub-sections (1) and (2) of Section 16 of the Act, the Government of Maharashtra framed Rules known as 'the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as 'the Rules'.). The Rules have been previously published as required by Sub-section (3) of Section 16 of the Act. 'Chief Executive Officer' is defined in Clause (c) of Rule 2 as the Secretary, Trustee, Correspondent or a person by whatever name called who is empowered to execute the decisions taken by the Management. 'Education Officer' is defined in Clause (e) thus:
'(i) in relation to a private secondary or higher secondary school or Junior College of Education in Greater Bombay, means an Educational Inspector.
(ii) in relation to a private primary school in the areas of any Municipal Corporation or Municipal Council, means the Education Officer or the Administrative Officer of a Municipal Corporation or a Municipal School Board, as the case may be, and
(iii) in relation to any private school in areas elsewhere in the State of Maharashtra, means an Education Officer in a Zilla Parishad.'
Under Rule 26, a permanent employee may be retrenched from service by the management in certain circumstances on conditions specified therein. Rule 27 deals with principles of termination of service in the event of retrenchment. Rule 28 provides for removal or termination of service. Rule 29 prescribes penalties. Rule 31 classifies penalties into two categories as minor and major. Minor penalties are as under:
(i) reprimand,
(ii) warning,
(iii) censure,
(iv) withholding of an increment for a period not exceeding one year,
(v) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Institution by negligence or breach of orders.
Major penalties are as under :
(i) reduction in rank,
(ii) termination of service.
Whereas Rule 32 prescribes procedure for imposing minor penalties. Rule 33 provides for inflicting major penalties. Rule 34 deals with payment of subsistence allowance and Rule 35 relates to conditions of suspension. All the three Rules are very material for the purpose of controversy in question. They may, therefore, be quoted in extenso.
33. Procedure for inflicting major penalties.-- (1) If an employee is alleged to be guilty of any of the grounds specified in Sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employees under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College of Educational and Technical High Schools, of the Deputy Director. Suspension, shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the Management decides to suspend the employee, such employee shall, subject to the provisions of Sub-rule (5) stand suspended with effect from the date of such order.
(2) If the employee tenders resignation while under suspension and during the pendency of the inquiry such resignation shall not be accepted.
(3) An employee under suspension shall not accept any private employment.
(4) The employee under suspension, shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. If such employee is the Head and also the Chief Executive Officer, he shall obtain the necessary prior approval of the President.
(5) An employee against whom proceedings have been taken on criminal charge or who is detained under any law for the time being in force providing for preventive detention shall be considered as under suspension for any period during which he is under such detention or he is detained in police for judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment, and he shall not be allowed to draw any pay and allowances for such period until the termination of the proceedings taken against him or until he is relieved from detention and is in a position to rejoin duty after producing documentary proof of his release (otherwise than on bail) for acquittal, as the case may be. An adjustment of his pay and allowances for such period shall be made according to the circumstances of the case, the full amount being given only in the event of the employee being acquitted of charge or detention being held by the Court to be unjustified.
(6) After the result of the criminal prosecution, a copy of the judgment shall be obtained by the Management and if the judgment is one of conviction for the charges and if an inquiry is also initiated by the Management against the employee on the basis of the same charges, it shall not be necessary to proceed with the inquiry on the same charges and the Management shall take action to terminate the services of the employee. The Management shall not however pass any order till the period upto which the employee is entitled to prefer an appeal or revision application to the higher Court against the conviction by the lower Court is over. If the appeal or revision application is preferred the Management shall not take any action till the conviction is finally confirmed by the higher Court. When the judgment in the criminal case appeal or revision application is one of acquittal, the Management shall consider in the light of the judgment whether it is necessary to institute or proceed with the inquiry. If the Management agrees that the acquittal is justified, it may drop the inquiry by certifying that it agrees with the findings of the Court. If the Management does not agree with the findings, it may proceed with the inquiry and inflict proper punishment.
34. Payment of subsistence allowance.-- (1) (a) A subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half pay and in addition, Dearness allowance based on such leave salary shall be payable to the employee under suspension.
(b) Where the period of suspension exceeds 4 months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first 4 months as follows, namely :--
(i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of first 4 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the employee.
(ii) The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first 4 months, if in the opinion of the said authority the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the employee.
(iii) The rate of Dearness allowance shall be based on the increased or on the decreased amount of subsistence allowance, as the case may be, admissible under Sub-clauses (i) and (ii).
(2) Other compensatory allowances, if any, of which the employee was in receipt on the date of suspension shall also be payable to the employee under suspension to such extent and subject to such conditions as the authority suspending the employee may direct. Provided that the employee shall not be entitled to the compensatory allowances unless the said authority is satisfied that the employee continues to meet the expenditure for which such allowances are granted :
Provided further that, when an employee is convicted by a competent Court and sentenced to imprisonment, the subsistence allowance shall be reduced to a nominal amount of rupee one per month with effect from the date of such conviction and he shall continue to draw the same till the date of his removal or reinstatement by the competent authority:
Provided also that, if an employee is acquitted by the appellate Court and no further appeal or a revision application to a higher Court is preferred and pending, he shall draw the subsistence allowance at the normal rate from the date of acquittal by the appellate Court till the termination of the inquiry if any, initiated under these rules :
Provided also that, in cases falling under Sub-rules (1) and (2) above, where the management refuses to pay or fails to start and continue payment of subsistence allowance and other compensatory allowances, if any, to an employee under suspension, payment of the same shall be made by the Education Officer or Deputy Director, as the case may be, who shall deduct an equal amount from the non-salary grant that may be due and payable or may become due and payable to the school.
(3) In case an employee under suspension attains the age of superannuation while under suspension he shall be deemed to have been retired on attaining the age of superannuation and any departmental or Judicial proceedings pending against him shall be continued even after his retirement. A provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the employee or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension shall be paid to him. But no amount of Death-cum-Retirement Gratuity shall be paid till his case is finally decided. Where an employee is acquitted of the charges and he is not proceeded against by the Management under Sub-rule (6) of Rule 33 his case shall be regulated by Sub-rule (5) if his suspension is held to have been wholly unjustified, and by Sub-rule (6) if it is held to have been wholly justified.
(4) When an employee who has been suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order --
(a) regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and
(b) regarding the said period being treated as a period spent on duty.
(5) Where the authority mentioned in Sub-rule (4) is of the opinion that the employee has been fully exonerated or, in the case of suspension that it was wholly unjustified, the employee shall be given the full pay, allowances and pension to which he would have been entitled had he not been dismissed removed or suspended, as the case may be. The management shall bear expenditure on pay and allowances of substitute, if any, appointed in place of the employee under suspension and such expenditure shall not be held admissible for the Government grant.
(6) In other case, the employee shall be given such proportion of pay and allowances and pension as the Management may decide :
Provided that, where the amount of provisional pension sanctioned to an employee during the period of suspension is more than the amount of pension finally held admissible, the difference of such amount shall not be recovered or adjusted from the amount of pension payable to him:
Provided further that, the payment of allowances under Sub-rules (5) and (6) shall be subject to all other conditions under which such allowances are admissible :
Provided also that in a case falling under Sub-rule (5) the period of absence from duty shall be treated as a period spent on duty, after the Management specifically directs that it shall be so treated (for specified purposes).
35. Conditions of suspension.-- (1) In cases where the Management desires to suspend an employee, he shall be suspended only with the prior approval of the appropriate authority mentioned in Rule 33.
(2) The period of suspension shall not exceed four months except with the prior permission of such appropriate authority.
(3) In case where the employee is suspended with prior approval, he shall be paid subsistence allowance under the scheme of payment through Cooperative Banks for a period of four months only and thereafter, the payment shall be made by the Management concerned.
(4) in case where the employee is suspended by the Management without obtaining prior approval of the appropriate authority as aforesaid, the payment of subsistence allowance even during the first four months of suspension and for further period thereafter till the completion of inquiry shall be made by the Management itself.
(5) The subsistence allowance shall not be withheld except in cases of breach of provisions of Sub-rules (3) or (4) of Rule 33.'
13. Rule 36 provides for Inquiry Committees and Rule 37 as to procedure of inquiry. Clause (f) of Rule 37 (2) is also relevant which may be reproduced
'The inquiry shall ordinarily be completed within a period of 120 days from the date of first meeting of the Inquiry Committee or from the date of suspension of the employee, whichever is earlier, unless the Inquiry Committee has, in the special circumstances of the case under inquiry, extended the period of completion of the inquiry with the prior approval of the Deputy Director. In case the inquiry is not completed within a period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuance of the inquiry.'
Rule 38 clarifies that the management shall not delegate to any subordinate authority other than the Chief Executive Officer, power to execute the decision of the inquiry Committee in respect of reduction in rank or termination of services.
14. On the basis of the above Rules, particularly, Rules 33 and 35, a question was raised in a number of cases as to whether it was obligatory on the management to pass an order of suspension only after prior approval of the authority specified in Clause (1) of Rule 33. Arguments were also advanced in several cases as to the effect of non-compliance with the provision of prior approval of the authority. The question became relevant in the light of the provisions in Sub-rules (3) and (4) of Rule 35 which provide for payment of subsistence allowance to suspended employee in cases where prior approval has been obtained as also where such prior approval has not been obtained.
15. It appears that within a short period after the promulgation of the Rules, a question came up before a Division Bench of this Court in Vanmala S. Aney v. National Education Society, Khamgaon and Ors. 1982 Mh.L.J. 403. In that case, departmental proceedings were initiated against the petitioner. The management approached the Education Officer for grant of permission to suspend her. The Education Officer declined to grant permission. The request was renewed by the management but without waiting for the permission, the Governing Body of the management suspended her. The action was challenged by the petitioner, inter alia, contending that she could not have been suspended without prior permission of the Education Officer and as Education Officer had not granted prior permission, the order was null and void. The question before the Division Bench was whether prior permission of Education Officer was sine qua non in view of the provisions of Sub-rule (1) of Rules 33 and 35. According to the petitioner, the provisions were mandatory in nature and infraction thereof rendered the order unlawful, ineffective and void. The contra-submission of the management, on the other hand, was that those provisions were directory and violation thereof would, at the most, made the suspension irregular and not void, illegal, or inoperative. For such submission, reliance was placed on Sub-rule (4) of Rule 35 which provides that if the management suspends an employee without obtaining prior approval, it has to pay subsistence allowance during the period mentioned in the said sub-rule.
16. Considering the arguments of both the parties, the Division Bench held that the provisions of Sub-rule (1) of Rule 33 as also Sub-rule (1) of Rule 35 mandatory which ought to have been complied with. The Bench observed :
'It would appear from Sub-rule (1) of Rule 33 that in cases involving major penalties the management has first to decide whether it should hold an enquiry and place the employee under suspension. If it decides to suspend him, it has to authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or in case of an employee attached to a Junior College of Education or Technical High School of the Deputy Director of Education......... Rule 35 prescribes the conditions of suspension and Sub-rule (1) thereof specifically provides that in case where the management desires to suspend an employee, he shall be suspended only with the prior approval of the appropriate authority. At this stage we may note that Sub-section (6) of Section 4 of the Act lays down that no employee of a private school shall be suspended, dismissed or removed or his service shall not be otherwise terminated or he shall not be reduced in rank by the management, except in accordance with the provisions of the Act and the rules made in that behalf. Reading these provisions together and particularly noting the language employed therein, it prima facie appears that they are imperative and mandatory. The words 'after' in the Rule 33(1) and 'only' and 'prior' in Rule 35(1) read in the light of Section 4(6) are a clear pointer in that direction,
17. The Court referred to 'Construction of Statutes' by Crawford wherein, it has been stated :
'No universal rule can be laid down to determine whether a particular provision in a statute or rule is mandatory or directory. The words of the statute must first be considered and then the nature, context and object of the statute as well as the consequences of various constructions. In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. The intention of the Legislature must be ascertained and given effect to even though mandatory or directory words are thereby given their opposite meanings. However the Court should not depart from the literal meaning of such words unless the intention of the Legislature to give them a different meaning is clearly evident. If the provision involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly and prompt conduct of public business, the provision may be regarded as directory; but where it directs acts or proceedings to be done in a certain way and indicates that compliance with such provision is essential to the validity of the act or proceeding or requires some antecedent and prerequisite conditions to exist prior to the exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory'.
18. The Court also relied upon the preamble of the Act and the phraseology in Section 4(6) and observed : 'In the first place it may be noticed that Sub-section (6) of Section 4 of the Act is couched in negative words. It prohibits inter alia the suspension of an employee of a private school except in accordance with the provisions of the Act and the Rules. It is a key to unlock the meaning of the relevant provisions. It is in the light of this provision that the relevant rules will have to be looked to and construed. This sub-section is a clear indication of the intention of the legislature. In this context it would be apt at this stage to look to the object of the legislation which is amply clear from the preamble of the Act.
The first para of the preamble says 'it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular and the institution and the society in general, effectively and efficiently. Though the second para is not relevant for our purpose we may refer to it in order to have a clear idea of the whole object of the Act. It says, 'it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education'. It is thus evident that this salutary piece of legislation has been brought about with the avowed object of providing security and stability of service to such employees for bettering the standard of education which is so vital for the progress of the Nation. It takes the relations between the management and employees of private schools out of the purview of the general law of master and servant and puts them on the pedestal of statutory protection. It saves the employees from the whim and caprice of their employees and the policy of hire and fire so often indulged in by the latter. If this be the object and purpose of the enactment they must be given their due weight in construing its provisions including the Rules.'
19. Negativing the contention of the learned counsel for the management that the provision was directory and dealing with Sub-rule (4) of Rule 35, the Court said:
'Mr. Madkholkar has laid down much stress on the absence of any provision to the effect that any infraction of the provisions contained in Rules 33 and 35 regarding suspension would render the suspension void, on the other hand he seeks assistance from Sub-rule (4) of Rule 35 to justify the power of the management to suspend without prior approval of the appropriate authority. Now, provision for the consequences of violation a statutory requirement is not the sole test to determine if it is directory or mandatory. It is one of the several considerations, which go in this process. If the other tests give a clear indication mere failure to provide for the consequences of the breach of the provision would not make it directory. Sub-rule (4) of Rule 35 in a way does provide for breach of Sub-rule (1) therein by penalising the management with payment of the subsistence allowance even for the first four months it would not have to pay had it obtained prior approval. It is not possible to construe this sub-rule as conferring an implied power on the management to suspend the employee without obtaining the prior approval or permission of the authority concerned. Such a construction would defeat the very purpose and object of the legislation and render Sub-rules (1) of Rules 33 and 35 a dead letter. In that case any management which has enough funds of its own could thwart these provisions with impunity and throw the security and stability of the service of the employee to the winds, which have been so preciously cherished in this enactment'.
20. The Court also followed the well-known principle of interpretation of statutes that when a power is granted to do certain thing in a certain way, the thing must be done in that way and all other methods of performance are necessarily forbidden [Maxwell on Interpretation of Statutes (6th Edition) pp. 649-650]. According to the Division Bench, since an action of suspension was forbidden by any other mode than by obtaining prior permission or approval of appropriate authority, no such action could be taken without such permission. Accordingly, the order was quashed and set aside with liberty to the management to suspend the petitioner after observing the formalities and abiding the conditions prescribed in the Rules.
21. Vanmala was followed in the following cases :--
(i) Dilip Venkatrao Patil v. State of Maharashtra and Ors. (1997) 3 Mh.L.J. 279
(ii) Dharamraj R. Lokhande v. Bharatiya R.B. Damle, Writ Petition No. 1196of 1985
(iii) Namdeo Newaji v. State of Maharashtra, Writ Petition No. 22 of 1999
(iv) Mrs. L.Y. Thakur v. Sindhu Education Trust (1994) 1 ESC 97(Bom);
22. In some other cases, however, a contrary view had been taken. In Shyamrao Tukaram Patil v. Chief Executive Officer, Writ Petition No. 3106 of 1992; decided on 27th July, 1992, the petitioner-Headmaster had been placed under suspension pending inquiry into acts of misconduct. He challenged the order of suspension on the ground that prior permission of the education authorities had not been taken as required by Sub-rule (1) of Rules 33 and 35 of the Rules. The Division Bench, however, dismissed the petition, inter alia, observing as under:
'We find the said contention is not tenable in view of the provisions of Rule 35 (4) which contemplates suspension without prior approval also.'
23. It may be stated that in Dharamraj, a prayer was made that Vanmala required reconsideration but the prayer was rejected. Again, a similar question arose in Chalke Keshav Laxman v. State of Maharashtra and Ors., Writ Petition No. 72 of 1999 and the Division Bench was prima facie satisfied as to prayer for reconsideration. Accordingly, the matter was referred to a larger Bench. In pursuance of the said order, the matter had actually been placed before a Larger Bench consisting of B.P. Singh (as His Lordship then was). S. Radhakrishnan and Dr. D.Y. Chandrachud, JJ. on 21st June, 2001. At the time of hearing of the petition, however, it was reported by the counsel that the dispute had been settled out of Court and the petitioner had been reinstated. No doubt, a prayer was made that the question of law involved in the petition and came up for consideration before the Full Bench was 'an interesting question of law' and would arise in other cases as well. The Court, however, could not be persuaded to consider the question as the parties had settled the dispute and there was no real contest in the writ petition. The larger Bench stated; 'So far as question of law is concerned, in an appropriate case, this Court may consider that question, if raised.'
24. The resultant effect is, that even today, there are conflicting decisions on the point. One view is of the Division Bench in Vanmala followed and reiterated in other cases holding suspension without prior approval of Education Officer as null and void. The other view is in Shyamrao taking the view as suspension to be valid albeit without referring to Vanmala. It is also on record that correctness of law laid down in Vanmala was doubted at more than one occasion. In Dharamraj, decided in 1985, it was argued on behalf of the management that Vanmala required reconsideration. A prayer was, therefore, made to refer the matter to a larger Bench but the prayer was rejected. In Chalke, the Court was prima facie satisfied that Vanmala required reconsideration and accordingly the matter was referred to larger Bench. Since the matter got settled in the meanwhile, the larger Bench refused to answer and disposed of the petition. Even, in the present group of petitions, reference has been made not only by the Division Bench in Writ Petition No. 285 of 1995 referred to above but in other matters as well. In Writ Petition No. 5755 of 2001 (Appellate Side), a learned single Judge of this Court made such reference by an order dated 15th January, 2002. The question, therefore, is undoubtedly an important one and, in our opinion, it must be decided by the Apex Court of the State so that the law gets settled by this Court.
25. The learned counsel for the parties invited our attention to relevant decisions of the Hon'ble Supreme Court as also of this Court in support of their submissions.
26. On behalf of the petitioners, undoubtedly, strong reliance was placed on Vanmala, We have already referred to the said decision by reproducing extensively the relevant paras of judgment. As far as other cases are concerned, to repeat, Vanmala was either followed or reiterated.
27. It was, however, submitted that the primary object of the Act and the Rules is to provide security and stability of service to employees and to enable them to discharge their duties effectively. If it is so, the argument proceeded, the provisions of the Act and the Rules should be interpreted to ensure such 'security and stability' of service of such employees. Sub-section (4) of Section 6 was also pressed in service which provides that no employee of a private school shall be suspended except in accordance with the provisions of the Act and the Rules. When the Rules provide for prior permission of the Education Officer, the said provision must be held mandatory and has to be complied with. Non-compliance would make the order unlawful, inoperative and non-est. Vanmala considered the relevant provisions with reference to well settled principles of interpretation of statutes and posited that if prior permission is not obtained, the action cannot be termed legal or lawful.
28. It was also submitted that apart from Vanmala laying down correct law, it stood the test of time and for about twenty years, actions have been taken on that basis. It was, therefore, submitted that even if two views are possible, the view which has been taken before two decades may not be disturbed.
29. Moreover, it is well settled that when a particular mode has been laid down by a statute for exercise of power, the power must be exercised in that manner or not at all. Sub-rule (1) of Rules 33 and 35 enable the management to place an employee under suspension by obtaining prior approval of the Education Officer. If the management intends to exercise such power, it is incumbent on the management to get prior permission.
30. On behalf of the management, it was submitted that Vanmala was not correctly decided. The counsel urged that all the provisions of a statute must be read together and interpreted harmoniously and not in isolation. If the contention of the petitioners is accepted and upheld, Sub-rule (4) of Rule 35 would become nugatory, meaningless and otiose. A Court of law cannot read one provision of a statute which would make another provision surplus, redundant or nonfunctional. Acceptance of argument of the petitioners will make Sub-rule (4) of Rule 35 useless as no action can ever be taken under the said provision. Such a course is not open to a Court of law. The counsel endeavored that both the provisions must be read together and can be given effect to. According to them, the rule making authority was conscious of different situations and has laid down different consequences in cases where prior permission is obtained and cases where no such permission is obtained. It was urged that prior permission has something to do with payment of subsistence allowance and nothing more.
31. It was vehemently urged that it is not true that Vanmala has stood the test of time. The Rules were framed in 1981. Immediately thereafter Vanmala was decided. Correctness or otherwise of the law laid down in Vanmala was doubted at several occasions. Contrary view has been taken in some cases. A prayer for referring it to a larger Bench was rejected and at times the prayer was granted and the matter was referred to larger Bench. True it is, that no final decision had been taken by the larger Bench in past but it was not because the ratio laid down in Vanmala was found to be correct but because the matter was settled between the parties. Normally, a Court does not decide academic questions. It, therefore, cannot be said that the Law laid down in Vanmala is 'well-settled' and 'needs no re-consideration'.
32. It was also submitted that it is well settled that an action of suspension can always be taken by an employer. According to the counsel, suspension in the cases on hand, is not punitive but preventive in nature. There is, therefore, no necessity of taking prior permission of any authority. Such right is vested in the employer. His liability is either to pay wages/salary or subsistence allowance as per terms and conditions of the relevant statute.
33. The counsel also submitted that the Division Bench has committed an error of law in deciding Vanmala inasmuch as the question was not considered in its proper perspective. The question was not whether a particular provision was mandatory or directory, but the power and authority of the management. The Court ought to have considered the effect of taking one view or the other in the light of all the provisions of the Rules. The Court stated that it was not possible to construe Sub-rule (4) of Rule 35 as conferring an implied power on the management to suspend an employee without obtaining prior approval or permission of the authority. According to the counsel, there was no question of conferring implied power on the management under Sub-rule (4). The power has been conferred on the management and rule making authority has laid down consequences of exercise of such power. Vanmala, therefore, requires to be overruled.
34. So far as the State Government is concerned, the learned Assistant Government Pleaders supported the petitioners and the ratio decidendi in Vanmala. We specifically asked the respective lawyers appearing for the State as to the effect of Sub-rule (4) of Rule 35 in case Vanmala was correctly decided and reference is answered accordingly. The Assistant Government Pleaders conceded that in no case power under Sub-rule (4) of Rule 35 can be exercised by the management They had gone to the extent that Sub-rule (4) of Rule 35 is redundant. We wanted to know since they were appearing for the State Government and the State Government has framed rules in exercise of power under the Act, whether they were making the said submission of Rule 35(4) being redundant under the instructions of the State Government. They replied in the affirmative, and stated that they had received such instructions.
35. Having given anxious and thoughtful consideration to the rival contentions, we are of the view that Vanmala did not lay down correct law. The view taken in Vanmala is neither in consonance with the general principles of service jurisprudence nor on interpretation of the provisions of the Act and the Rules and deserves to be overruled.
36. So far as the general principle as to master and servant relationship is concerned, such an action is always permissible, subject to intervening statute. In K.P. Kapur v. Union of India and Anr., : (1966)IILLJ164SC , a Constitution Bench of the Supreme Court had an occasion to examine the right of Government in the matter of suspension of public servant, pending departmental inquiry or criminal trial. Considering the power of an employer to suspend an employee pending inquiry, the Court stated;
'The general principle therefore is that an employer can suspend an employee pending and enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rule framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him.'
37. Again, in Balvantrai Ratilal Patel v. State of Maharashtra, : (1968)IILLJ700SC , the above doctrine was reiterated. Referring to R. P. Kapur, the Court stated:
'It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.
' It was also observed :
'It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey.'
38. In V.P. Gidroniya v. State of Madhya Pradesh and Anr., : (1970)IILLJ143SC , again a Constitution Bench of the Supreme Court upheld the right of an employer to suspend an employee pending inquiry. The Court stated :
'The general principle is that an employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid an employee to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee's wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey.'
39. In Government of India, Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh, : (1971)ILLJ299SC , the Supreme Court observed that when prima facie case has been made out against an employee, he may be placed under suspension. It is the exigency of conditions of service, which requires or calls for an order of suspension.
40. In State of Orissa through Its Principal Secretary, Home Department v. Bimal Kumar Mohanty, : (1995)ILLJ568SC , the Apex Court referred to all the leading decisions and made the following pertinent observations :
'It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine Or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegation imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and an indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.'
41. Reading of the above decisions makes it abundantly clear that it is always open to an employer not to take work from his employee. Such an act, however, may not be termed as 'suspension' in the sense in which it is understood in service law. It is merely an act refraining an employee to work. It, therefore, requires an employer to pay full wages/salary.
42. It is equally clear that an action of suspension pending inquiry or contemplated inquiry can be taken only if a contract or a statute empowers or authorises an employer to do so and subject to the terms and conditions of the contract or intervening legislation. Obviously, therefore, the employer is bound by such contract or statutory provision regarding placing an employee under suspension and payment of subsistence allowance.
43. Now, so far as Rules are concerned, to us, it is clear that such a power has been conferred on the management. It is no doubt true that Sub-rule (1) of Rule 33 as also Sub-rule (1) of Rule 35 provide for prior approval of education authorities. In our considered opinion, however, both the said provisions have to be read with Sub-rules (3) and (4) of Rule 35. Conjoint reading of Rules 33 and 35 in their entirety leaves no room of doubt that failure to obtain prior permission of education authorities does not affect an action of suspension pending inquiry. It has its repercussions and consequences in payment of subsistence allowance. If requisite prior permission of education authorities is obtained before an action of suspension is taken by the management, Sub-rule (3) of Rule 35 would get attracted and suspended employee will be paid subsistence allowance under the scheme of payment through Co-operative Banks for a period of four months. After the said period, payment will be made by the management. On the other hand, if an employee is suspended by the management without obtaining prior approval of education authorities, the payment of subsistence allowance even during the first four months of suspension and for further period till the completion of inquiry shall be made by the management itself. Had the intention of rule making authority was not to permit the management to place an employee under suspension in any circumstance without prior permission of 'Education Officer' ('Deputy Director') ('appropriate authority'), there was no necessity at all of enacting Sub-rule (4) of Rule 35. To us, therefore, it is clear that rule making authority was conscious and mindful of two situations :
(1) placing an employee under suspension with prior approval of the authority; and
(2) placing an employee under suspension without prior approval of such authority.
Making distinction between the two, the rule making authority deliberately and consciously made two provisions in Sub-rules (3) and (4) of Rule 35. Whereas in the former, it provided that for a period of four months, subsistence allowance to a suspended employee will be paid 'under the scheme of payment through Cooperative Banks' in latter, even during that period, the management has to bear the burden of paying subsistence allowance. In both types of suspension, after a period of four months, the liability of payment of subsistence allowance is on the management. Thus, even on consideration of relevant statutory provisions, it is clear to us that the management in certain circumstances, without obtaining prior permission of education authorities, may take an action of suspension against an employee. Then and then only all the provisions of the Rules can be harmoniously construed and appropriately applied.
44. In O.P. Singla v. Union of India, : (1985)IILLJ309SC , Rule 7 of the Delhi Higher Judicial Service Rules, 1970 provided recruitment by promotion as also by nomination. Proviso to the said rule stated : 'Provided that no more than one-third of the substantive posts in the service shall be held by direct recruits'. By plain language thus, it imposed ceiling but did not provide quota. Rule 8, however, declared that seniority of direct recruits vis-a-vis promotees should be determined in order of rotation of vacancies based on the quotas of vacancies reserved for both categories.
45. Reading both the rules harmoniously, the Court held that one-third posts must be reserved for direct recruits. Chandrachud, C.J. stated; 'One must have regard to the scheme of the fascicules of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other interrelated provision becoming otiose or devoid of meaning '.
46. Moreover, no universal rule can be laid down as to when a provision ina statute should be read as mandatory and when it should be read as directory. In determining the question, the nature of the act, the purpose for which it has beenmade, the intention of the legislature, the general inconvenience or injustice topersons resulting therefrom and other similar considerations have to be taken into account.
47. In the leading case of Raza Buland Sugar Co. v. Rampur Municipality, : [1965]1SCR970 , the Supreme Court stated :
'The question whether a particular provision of a statute which on the face of it appears mandatory - inasmuch as it uses the word 'shall' as in the present case - or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing, with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.'
48. Another equally important consideration which cannot be overlooked by a Court of law is whether the provision relates to performance of a public duty which may result in injustice to persons who have no control over those entrusted with such duty.
49. In Montreal Street Railway Company v. Normandin 1917 AC 170, the Judicial Committee of the Privy Council stated :
'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.
Under Sub-rule (1) of Rule 33 as also Rule 35, the management may apply to the Education Officer (Deputy Director) (appropriate authority) for grant of permission (approval) for suspension of an employee. The power to grant permission, however, lies with the authority. If such authority does not take an action which it is required to take in accordance with law, the management cannot be blamed. In such cases, therefore, Sub-rule (4) of Rule 35 can be applied and an appropriate action can be taken.
50. It is no doubt true that on behalf of the Government it was submitted that Sub-rule (4) of Rule 35 is redundant. On two well established principles of law, we are unable to uphold the contention. Firstly, a Court of law cannot proceed on the basis that a provision of law either in a parent statute or in a child legislation is redundant, surplus or nugatory. It is not only the power but the duty of the Court to read all the provisions conjointly and harmoniously and give effect to them. It is only when it is impossible to give effect to all the provisions that the Court may have to give effect to one or some of them.
51. In the instant case, however, effect can be given to Rules 33 and 35 if both the Rules are read conjointly, reasonably and harmoniously. To us, it appears that the provisions have been made by the rule making authority dealing with two types of cases. The rule making authority was conscious and mindful of different types of cases and deliberately made separate provisions dealing with different situations by providing payment of subsistence allowance differently. The rule making authority, enacting Sub-rule (1) of Rules 33 and 35, with the same pen and ink enacted Sub-rules (3) and (4) of Rule 35 providing payment of subsistence allowance where prior approval has been obtained by the management and where such prior approval has not been obtained. We are, therefore, unable to subscribe to the submission of the learned Assistant Government Pleaders that Sub-rule (4) of Rule 35 is redundant.
52. There is another reason also why the submission on behalf of the State Government cannot be accepted. Enacting a law is a legislative function. When legislature delegates such power on an executive, it is permissible for the executive or Government to exercise such power. In the light of express provisions in Section 16 of the Act empowering the State Government to frame rules, it was open to the Government to frame rules. In exercise of such powers, the Rules have been framed by the State Government. To that extent, therefore, no objection can be raised. But the function ends there. It is not open to the Government to come forward, interpret those Rules and insist that the interpretation adopted by the Government should be accepted by the Court. Interpretation of statutory provision - primary or delegated - is judicial function -pure and simple. The Government cannot do both, use words in a statute and give meaning to those words. In our judgment, the former is the power of the Government, the latter is of the Judiciary. Therefore, once a provision has been made, it is for the Judiciary to give meaning to the words used by the rule making authority, to interpret, them and to apply to concrete cases.
53. A similar contention was raised before this Court in Anil Dattatraya Ade v. Presiding Officer, School Tribunal Amravati Region Amravati and Ors. : 2003(3)BomCR465 . Considering an affidavit in reply on behalf of the State Government in an earlier case, interpreting the provisions of a statute and expressing an opinion that the provisions would not apply to certain institutions, one of us (C.K. Thakker, C.J.) stated :
'But, even otherwise, in our judgment, whether or not an Act would apply to a particular institution would depend upon the interpretation of the relevant provisions of law. This is 'exclusively' a 'judicial Junction' and expression of opinion by the petitioner, by the respondent or by the State Government is immaterial and cannot bind the Court'.
Thus, even on the basis of settled principle of law, the submission on behalf of the State Government has no substance and must be rejected.
54. Vanmala also held that when a statute confers power to do a thing in a particular manner, it can be done only by that manner or not at all.
55. There can be no two opinions about the above proposition of law. Before more than a century, in Taylor v. Taylor (1875) 1 Ch. D 426, Jessel, M.R. stated:
'When a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted'
The oft-quoted observations of Frankfurter, J. in Viteralli v. Saton 359 US 535 are pertinent and apposite. The great Judge proclaimed :
'An executive agency must be rigorously held to the standards by which it professes its action to be judged. . . .. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.'
The question, however, is whether one and only one mode has been laid down in the Rules for making an order of suspension against an employee, i.e. after prior approval of education authority. If it is so, that mode alone can be used and power exercised. If that is the procedure prescribed, it has to be followed. With respect, however, the Division Bench in Vanmala was not right in reading the provisions of the Rules in their entirety and in proper perspective. Prior approval of education authority/appropriate authority is but one of the modes of exercising power of suspension and not the sole mode. If prior approval is obtained, the case would fall under Sub-rule (3) of Rule 35 and certain consequences will ensue, such as payment of subsistence allowance to a suspended employee for first four months 'under the scheme of payment through Co-operative Banks'. But the other mode is also provided in Sub-rule (4) of Rule 35. That mode can equally be invoked by the management. And if the power is exercised under the said provision, different consequences will ensue, such as, payment of subsistence allowance even during the first four months of suspension by the management. Hence, the principle that the power cannot be exercised in any manner other than provided by law, though well settled and well established, does not apply to the rules in question.
56. Vanmala has also placed reliance on Sub-section (6) of Section 4 of the Act, a parent provision, and observed that 'it is couched in negative words'. It prohibits, inter alia, the suspension of an employee of a private school except in accordance with the provisions of the Act and the Rules. The Division Bench, therefore, proceeded to state that 'it is a key to unlock the meaning of the relevant provisions'.
57. This is undoubtedly true. But it may not be forgotten that Sub-section (4) of Section 6 does not provide for prior permission of any authority before placing an employee under suspension. The provisions of the Act are totally silent on placing an employee under suspension. Such provisions are found only in Rules. Hence, when an action of suspension is taken by the management, the relevant Rules which have to be considered are Rules 33 and 35 and if they permit such suspension, the action cannot be held non-est.
58. So far as Preamble and objects of the Act are concerned, no doubt, one of the objects of the Act is to provide security and stability of service to employees so as to enable them to discharge their duties towards pupils and their guardians. The said object has been highlighted in Vanmala. But their duties are also towards the institution and the society in general. Keeping in view all those objects, duties and functions have been laid down for employees with a view to ensuring that they become accountable to the management and contribute their mite for meeting the standard of education. It is, therefore, abundantly clear that the Act has been enacted to provide security and stability of service to employees so that they discharge their duties towards pupils and their guardians and accountable to management and contribute in larger public interest. While interpreting the provisions of the Act and the Rules, therefore, over and above the interest and safety and security of employees, a Court of law has to keep in mind larger interest of students' community and accountability of employees towards management and endeavour to give effect to the provisions of law. Keeping in view the relevant provisions of the Act and the Rules, therefore, an action of suspending an employee by a management without the prior approval/permission of education authority is not necessarily illegal, unlawful, void or inoperative.
59. For the foregoing reasons, our conclusions are as under :
(i) Normally, an employee of a recognised school may be placed under suspension by the management after obtaining prior permission/approval of an authority in accordance with Sub-rule (1) of Rules 33 and 35 of the Rules;
(ii) In extraordinary circumstances and emergent situations, where an employee is alleged to be guilty of grave charges and there is reason to believe that in the event of the guilt being proved against him/her, he/she is likely to be reduced in rank or removed from service and the management decides to hold an inquiry, he/she may be placed under suspension under Sub-rule (4) of Rule 35 without obtaining prior approval of education authority;
(iii) Where an employee of a recognised school is placed under suspension with prior approval as required by Sub-rule (1) of Rules 33 and 35, Sub-rule (3) of Rule 35 will operate and subsistence allowance will be paid in accordance with the said provision;
(iv) Where an employee of a recognised school is placed under suspension without approval, Sub-rule (4) of Rule 35 will apply and subsistence allowance will be paid by the management as laid down in the said provision;
(v) Vanmala did not lay down correct law on the point and is hereby overruled. All subsequent decisions either following or reiterating Vanmala also stand overruled;
(vi) Shyamrao Tukaram is approved as laying down correct law on the point.
60. Before parting with the matter, we are constrained to observe that the statutory provisions in the Act and the Rules are not clear, consistent and coherent. Section 4 of the parent Act lays down terms and conditions of service of employees of private schools. Sub-section (6) of the said section declares that no employee shall be suspended, dismissed or removed nor his services shall be terminated nor he shall be reduced in rank except in accordance with the provisions of the Act and the Rules. No provision, however, is found in the Act dealing with any such matters.
61. No doubt, the Rules have made certain provisions. Rule 28 provides for removal or termination of services of employees. Whereas Rule 29 specifies penalties, Rule 31 classifies penalties. Major penalties are (i) Reduction in rank; and (ii) Termination of service, which would, no doubt, include dismissal.
62. Rule 33 prescribes procedure for inflicting major penalties and permits the management to place an employee under suspension if an employee is likely to be reduced in rank or removed from service. Does it mean that an action of suspension can be taken only in two types of cases referred to in the rule? Dismissal from service is indisputedly extreme penalty in service matters, some times described as 'economic death penalty'. In cases of such nature, an employee cannot be suspended at all? In Rules 29 and 31, expression 'Termination of Service' has been used. As it relates to major punishment, it would include 'dismissal'. Rule 33, however, speaks of 'removal' only,
63. Further, under Rule 33, an employee can be suspended if there is reason to believe that in the event the employee is found to be guilty for which he can be removed from service or reduced in rank. No such condition, however, is necessary when an employee is placed under suspension under Rule 35. Under the said rule, 'desire' of the management is sufficient.
64. If, under Sub-rule (1) of Rule 33 as well as Sub-rule (1) of Rule 35, permission or approval of Education Officer, Deputy Director or appropriate authority is necessary, why two separate provisions have been enacted by the rule making authority? No doubt, Rule 35 uses the word 'only', meaning thereby that only after prior approval of appropriate authority, an employee may be placed under suspension. Does it imply that if the case falls under Sub-rule (1) of Rule 33, such requirement may not be absolutely necessary? Again, Sub-rule (1) of Rule 33 deals with situations wherein allegations have been made against an employee and there is reason to believe that in the event of guilt being established against him, he is likely to be removed from service or reduced in rank and the management decides to hold an inquiry. There is no whisper in Rule 35(1) of any allegation, holding of inquiry or reason to believe that an employee may be guilty of any misconduct Thus, Sub-rule (1) of Rule 33 lays down 'objective criteria', Sub-rule (1) of Rule 35 has only 'subjective element'.
65. Finally, the rule (Rule 33), which has objective considerations and necessary materials such as serious allegations against an employee, decision as to holding of inquiry, etc. provides for suspension of an employee after obtaining permission of Education Officer (Deputy Director). The other rule (Rule 35) which is purely subjective ('desire'), contains a specific provision [Sub-rule (4)] and allows suspension of an employee without approval of appropriate authority.
66. In our opinion, thus the rules require reconsideration and fresh outlook.
67. We hope and trust that the State Government will seriously consider the provisions and lacunae therein and take appropriate steps so as to avoid future complications.
68. In view of our conclusions, the Reference stands disposed of. The Registry is directed to place the matters before an appropriate Court taking up such matters for their disposal on merits.