| SooperKanoon Citation | sooperkanoon.com/782442 |
| Subject | Labour and Industrial |
| Court | Chennai High Court |
| Decided On | Sep-14-1988 |
| Case Number | Writ Petition No. 5575/88 |
| Judge | M. Srinivasan, J. |
| Reported in | (1989)ILLJ269Mad |
| Acts | Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 - Sections 3 to 7, 19, 20, 21(1), 27, 29(1), 29(2), 30 and 37 to 40; Constitution of India - Articles 12 30(1), 226, 311 and 311(2); Tamil Nadu Co-operative Societies Act; Uttar Pradesh Intermediate Education Act, 1921; Private Schools (Regulation) Rules - Rules 8, 15, 25 and 27; Assam Aided College Employees Rules, 1960; Assam Aided College Management (Amendment) Rules, 1965 |
| Appellant | C. Marianandam |
| Respondent | The Govt. of Tamil Nadu and ors. |
| Cases Referred | I. P. Gupta v. Model Inter College (supra). In |
1. The facts of the case which are not in dispute lie in a very short compass. The petitioner was serving as the Headmaster in Hajee Mansoorsha Oriental Arabic High School, the correspondent of which is the third respondent herein. He was dismissed from service by an order dated 1st January 1988 with effect from 4th January 1988. The order of dismissal set out the following six reasons therefor :-
1) Misbehaviour with a lady teacher by name Sumathi Elizabeth;
2) English coaching to X Std. students was insufficient;
3) Using bad words when speaking to students;
4) Insulting the organizer of Nutritious Meals Centre of Sulthan Ahamed Primary School;
5) Compelling the teachers improperly and getting their signatures : and
6) Non-co-operation with the management and misuse of power thereby causing confusion and disturbance to the proceedings in school and speaking in loud voice openly degrading the management.
2. Admittedly, no notice was given to the petitioner calling upon him to explain his conduct or show cause against the termination of services. No enquiry of any type was held by the management. The petitioner filed an application on 5th January 1988 before the Chief Educational Officer. Villupuram, complaining against the dismissal order, passed by the management. He sent a reminder on 11th January 1988. The Chief Educational Officer is said to have forwarded the same to the District Educational Officer for action under intimation to the petitioner dated 25th January 1988. As there was no development, the petitioner approached this court under Article 226 of the Constitution of India with a prayer for issue of a writ of certiorarified Mandamus for quashing the order of termination and directing the third respondent school to reinstate the petitioner in service with all back wages.
3. On receipt of notice of motion, the third respondent had entered appearance and filed a counter affidavit. The third respondent raises three contentions as follows :
1) The writ petition is not maintainable as the third respondent in not amenable to the jurisdiction of this court under Article 226 of the Constitution of India :
2) The provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 are not applicable in entirety to the third respondent as it is a minority institution; and
3) The petitioner is virtually seeking a decree for specific performance of contract of service in this writ petition and such relief cannot be granted by the court even in a civil suit.
4. The first contention of the third respondent is that the third respondent is not an 'authority' within the meaning of Article 12 of the Constitution of India and that it is only a private institution and not a statutory body and, therefore, a writ cannot issue against the same. Though in the counter affidavit it is stated that the third respondent is an un-aided school and had not received any aid till the date of the filing of counter affidavit from the Government, in the course of argument it was admitted that the third respondent has secured an order from this Court in W.P. No. 9901 of 1986 directing the Government to pay the Teachers' Grant from the date of recognition of the school. In Sivanarul v. State of Tamil Nadu : (1985)IILLJ133Mad , Mohan, J. has held that a recognised school receiving aid from the Government or teaching grant is amenable to writ jurisdiction. That judgment is clearly applicable to the present case.
5. Learned counsel for the third respondent referred to a number of decisions including those of the Supreme Court as to the meaning of the word 'authority' in Article 12 of the Constitution of India. He invited my attention to the decisions of this Court holding that a writ will not issue against a co-operative society registered under the Tamil Nadu Co-operative Societies Act. I do not think it necessary to refer to the decisions cited by learned counsel for the third respondent in view of the pronouncements of the Supreme Court which have a direct bearing on the facts of this case.
6. In Indra Pal v. Managing Committee. M.I. College, Thors (A.I.R) 1984 S.C. 3 an order of termination of the services of Principal of an Inter College (Private) on probation during the extended period of his probation was challenged. The termination of probation was brought about by a letter from the Manager of the Managing Committee of the College accompanied by a copy of the resolution of the Committee which referred to a report of the Manager stating that the facts contained in the report were 'serious' and 'not in the interests of the institution' an therefore, the services of the Principal were terminated. In that case also, there was no enquiry whatever before the termination of the services. The contention put forward by the management was that the Principle was only on probation and it was a case of termination of probation and there was no necessity to follow the regulations prescribed for the purpose of termination of services. While the single Judge of the High Court allowed the writ petition filed by the Principal, a Division Bench of the High Court reversed the conclusion of the single judge and dismissed the writ petition. The Division Bench took the view that the order of termination was an innocuous one and did not carry any stigma. On appeal by special leave, the Supreme Court set aside the judgment of the Division Bench and restored that of the single judge. The Supreme Court declared that the appellant continued to be in service of the college, entitled to all the benefits as if there was no break in his service. The report does not show whether the question of maintainability of the writ petition was raised on the ground that the college was a private institution. However, the Supreme Court pointed out that the college was an institution recognised under U.P. Intermediate Education Act (2 of 1921) and bound by the regulations prescribed thereunder. A procedure was prescribed under Regulations 35 and 36 for conduct of disciplinary proceedings and termination of services. As the said procedure was not followed by the management, the Supreme Court struck down the order of termination as it carried stigma.
7. Again in Prabodh Verma v. State of U.P. : [1985]1SCR216 , the Supreme Court directed certain institutions managed and conducted by private management to reinstate the teachers whose services were terminated by those institutions pursuant to certain directions issued by Government consequent to a judgment of the Allahabad High Court passed in another writ petition. It is not necessary for the purpose of this case to discuss in detail the facts and conclusions in that case. It is sufficient to note that writs have been issued against private managements under certain circumstances.
8. In Manmohan Singh v. Commissioner, Union Territory, Chandigarh : (1985)ILLJ514SC the question whether an aided school was amenable to writ jurisdiction or not was considered. The Statement of Law on that aspect of the matter is found in paragraph 8 of the judgment, which reads thus :-
'8. The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi : (1981)ILLJ103SC the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately did not even refer to the decision of the Constitution Bench in Ajay Hasia's case rendered on November 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia's case, Bhagwati J., speaking for the Constitution Bench inter alia observed that if the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. Add to this 'the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency or instrumentality'. Substituting the words 'public trust' in place of the 'corporation' the reasons will mutitis mutandis apply to the school. Therefore also, the high Court was in error in holding that the third respondent school was not amenable to the writ jurisdiction of the High Court.'
9. Thus, it is seen that the receipt of the aid from the Government, the statutory protection given to the employees and administration being governed by statutory rules and regulations are the relevant factors to be considered for deciding whether an institution is amenable to the writ jurisdiction of the High Court. In the present case, there is no dispute now that by an order of this court in W.P. No. 9901 of 1986 the Government has been directed to pay the teaching grant to the third respondent from the date of recognition of the school. The teachers employed in the school are entitled to the protection afforded by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act. No doubt, the third respondent, being a minority institution, all the provisions of the Act are not applicable. It is admitted that Section 3 to 7, 19, 20, 21(1), 27, 29(1) and (2), 30 and 37 to 40 excepting 39(4) of the Act are applicable to minority institutions as per the judgment of this court. It is also admitted that Rules 8, 15, 25 and 27 of the Private Schools (Regulation) Rules are applicable. Under Section 19 of the Act, the Government is empowered to make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respects disciplinary matters) of the teachers and other employees in any private school. Rule 15 of the Private Schools (Regulation) Rules requires the School Committee of every private school to enter into an agreement with the teacher in the prescribed from in Form VII (A), if the appointment is for a period exceeding three months. In Form VII (A), clause 7 prescribes the procedure for terminating the services of the teacher on disciplinary grounds. The clause is in the following terms :-
'7. That the School Committee shall not dismiss, remove or reduce in rank or terminate the services of the said teacher without informing him/her in writing of the grounds on which they intend to take action and shall adopt the following procedure before taking any final decision regarding the punishment to be imposed :
(a) the memorandum of charges shall be communicated to him/her in writing giving him/her reasonable time to send his/her explanation to the School Committee.
(b) After considering his/her explanation the School Committee shall communicate to him/her findings and if so desired by the said teacher conduct a personal hearing or enquiry, wherein he/she shall be given the opportunity to examine or cross-examine any or all the witnesses and also produce witnesses.
(c) After the conduct of the personal hearing or enquiry by the School Committee the report of such personal hearing or enquiry shall be furnished to the teacher and a notice shall be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to defend himself/herself against the proposed punishment.
(d) After the receipt of the statement of defence from him/her and taking it into consideration, the School Committee shall inform him/her in writing about its final decision.'
The three requisites referred to above are satisfied in this case. Hence, the contention that the third respondent is not amenable to writ jurisdiction has to fail.
10. The second contention urged by learned counsel is that the third respondent being a minority institution is not governed by all the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act. No doubt, it is so, But, the third respondent is governed by some of the provisions of the Act and the Rules which are set out already. In Frank Anthony Public School Employees' Association v. Union of India : [1987]1SCR238 , the Supreme Court considered in detail the rights of minority institutions guaranteed by Article 30(1) of the Constitution of India and held that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education do not impinge upon the rights guaranteed by the said Article. Dealing with the provisions in the Delhi School Education Act, similar to the provisions contained in the Tamil Nadu Private Schools (Regulation) Act, the Supreme Court held that some of them would be applicable to minority institutions, while others are not so. It is not necessary for the purpose of this case to go into the details of the said judgment. The position in law was reiterated by the Supreme Court in Y. Thaelamms v. Union of India and others : [1987]2SCR974 , wherein the Supreme Court held that regulations can be made by the State for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action against them. As on this date, there is no dispute that the Sections and Rules referred to earlier are applicable to institutions. The fact that these provisions afford protection to the teachers and govern the administration of the minority institutions is sufficient to make the third respondent amenable to Article 226 of the Constitutions of India. Hence, the second contention urged by learned counsel for the third respondent also fails.
11. Before dealing with the third contention put forward by learned counsel for the third respondent, it is necessary to refer to a decision of the Supreme Court on the scope of Article 226 of the Constitution of India. In Rohtas Industries v. Its Union : (1976)ILLJ274SC , the Court held that Article 226 of the Constitution of India was wide enough to affect even a private individual. The relevant portion of the judgment is in the following terms at p. 278 :
'The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose, even one for which another remedy may exist. The amendment to Art. 226 in 1963 inserting Art. 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a China shop. This Court has spelt out wise and clear restrains on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentious prospect, the writ power has, by and large, been the people's sentinel on the Quivive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash.'
In my view, the monstrosity of the situation in the present case would undoubtedly warrant the issue of writ to the third respondent even if it is a private institution. On the admitted facts of the case, it is seen that the services of the Headmaster of the School are terminated on a very serious charge of misbehaviour with a lady teacher and other charges without giving an opportunity to him to deny the same. It is a shocking state of affair that the management of an educational institution should throw to the winds the elementary principles of natural justice in dealing with its Headmaster, who is at the helm of affairs on the academic side. This is a case in which the Court should exercise its prerogative power and would be failing in its duty if it chooses to remain a mute witness to the situation on the ground that the third respondent is not a statutory authority.
12. Now turning to the third contention, it is urged by learned counsel that the relief prayed for in the writ petition is one of specific performance of a contract of service between the petitioner and the third respondent and such a relief could not be granted even in civil suit. Strong reliance is placed on the judgment of the Supreme Court in Vaish Degree College v. Lakshmi Narain : (1976)IILLJ163SC . It was held in that case that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. That rule was held to be subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the status.
13. I had an occasion to consider the question in detail in Central Co-operative Bank Ltd., v. M. Parthasarathi 1986 I L.W. 479. I had referred to the decision of the Supreme Court in Vaish Degree College case (supra) and some other decisions and held that the specific relief of enforcing a contract of service or declaring the termination of service to be ineffective or null and void, could be granted in certain circumstances.
14. I had already referred to the decision of the Supreme Court in Indra Pal Gupta v. The Managing Committee. Model Inter College. Thors (supra), in which the Supreme Court granted the relief of declaration that the appellant continued to be in the service of the private college and held that he was entitled to all the benefits flowing from the declaration as if there was no break in his service. That decision was referred to by the Supreme Court in Dipak Kumar Biswas v. Director of Public Instruction and others : (1987)ILLJ516SC . In that case, the appellant got and order of appointment as lecturer in a private aided college in Meghalaya. The order of appointment stated that it was subject to the approval by the Director of Public Instruction, Meghalaya. The appellant's services were terminated by the College on the ground of want of Director's approval. The Gauhati High Court affirmed the Judgment of the first appellate Court holding that the Director of Public Instruction acted wrongly in refusing to give approval to the appellant's appointment and as such, the order of termination of service of the appellant was manifestly wrong. However, the High Court differed from the District Judge in the matter of grant of relief and held that reinstatement of the appellant in service was not possible as the appellant did not belong to any of the three categories, viz., (1) Government servants, (2) industrial workmen and (3) employees of statutory bodies. Accordingly, the High Court awarded one year's salary and allowances as damages to the appellant. It was that judgment of the High Court which was challenged before the Supreme Court. While the Supreme Court confirmed the view taken by the High Court, it granted further amounts by way damages to the appellant.
15. On the question whether the college would be a statutory body, the Supreme Court held that though the college was governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the college may be receiving financial aid from the Government, it would not be a statutory body as it was not created by any statute and its existence was not dependent upon any statutory provision.
16. The decision in Indra Pal Gupta's case : [1984]3SCR752 was distinguished on the ground that the same pertained to termination of service by way of disciplinary action. The following passage in the judgment may be referred to with advantage :-
'The appellant, however, placed reliance on another decision of this Court in I. P. Gupta v. Model Inter College (supra). In that case Shri I. P. Gupta who was appointed as Principal of the college on probation for one year was placed on further probation for one more year. During the period of the extended probation his services were terminated. Although the order of termination was innocuous in its terms lit was accompanied by an enclosure containing the resolution of the Managing Committee with a reference therein to an adverse report given by the Manager against the Principal. It was, therefore, contended that the order of termination case a stigma on the Principal and hence his services ought not to have been terminated without due notice and enquiry. It was this contention which was the principal issue in that case. Dealing with that contention this Court found that the college was an institution recognised under the Intermediate Education Act and was governed by the provisions of the Act and the regulations made thereunder and that Regulations 35 to 38 prescribed the procedure to be followed before the services of an employee can be terminated by way of punishment. The management, however, did not follow the procedure prescribed by the regulations which were virtually the same as provided by Article 311(2) of the Constitution. This Court, therefore, held that the principles which should govern the case should be the same as those underlying Article 311(2). It was in that view of the matter, this Court allowed the appeal and restored the judgment of the Single Judge of the High declaring that the appellant continued to be in the service of the college and that he was entitled to all the benefits flowing from the declaration including the salary and allowances as if there was no break in his service. The facts of the above said case are clearly distinguishable because the case pertained to termination of service by way of disciplinary action. In the instant case, there is no such violation of the provisions of any Act or any regulations made thereunder. This is a case where the first respondent had proceeded on the erroneous assumption that the Assam Aided College Employees Rules, 1960 and the Assam Aided College Management Rules, 1965 had been adopted by the State of Meghalaya and therefore, the appellant's appointment is in contravention of the rules and consequently he should decline to approve the appointment of the appellant. No doubt his action has been held to be wrongful but even so it is not in contravention of any statutory provisions or regulations or procedural rules. We are, therefore, unable to accept the appellant's contention that he should be granted a declaration that he continues to be in the service of the college and that he is entitled to all the benefits flowing from the declaration.'
17. The reasoning of the Supreme Court appears to be that the Court could grant specific relief when the termination of service is by way of disciplinary action or when the order of termination is in contravention of any statutory provision or regulation or procedural rule. In the present case, there is a clear violation of the relevant rules as the procedure prescribed in clause 7 of the agreement has not been followed. As there is an infraction of the statutory rule, the Court is entitled to declare the order of termination of service to be illegal. The natural consequence is that the petitioner should be deemed to continue in service without any break therein.
18. In the result, the writ petition is allowed and the order dated 1st January 1988 passed by the third respondent terminating the services of the petitioner is quashed. The petitioner is declared to be service without any break. The third respondent is directed to pay the salary and all allowances to the petitioner as if there was no break in his service. This order will not prejudice the third respondent from holding an enquiry against the petitioner on the charges set out in the order dated 1st January 1988 and passing an appropriate order after giving due opportunity to the petitioner to take part in each enquiry. The third respondent shall pay the costs of this writ petition to the petitioner. Counsel's fee Rs. 500/-.