K.M. Valliapan S/O. Kumarappan Vs. Joint Director of School Education, (Higher Education) and Appellate Authority and Madras Seva Sadhan Higher Secondary School, Rep. by Its Secretary of School Committee - Court Judgment

P.K. Misra, J.

1. Learned single Judge has referred W.P. No. 8335 of 2003 to a larger Bench to resolve the conflict of views between various decisions of this Court on the question relating to holding of disciplinary proceedings by School Committee as per the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as 'the Act).

2. Learned single Judge in his order of reference has referred to decisions of this Court in (i) P.S. Venkataramanujam v. National High School - W.A. No. 170 of 1978 dated 13.11.1979 (D.B.); (ii) P. Kasilingam v. Bharathiyar University and Ors. 1990 I LLJ 73 (D.B.); (iii) C. Ranganathan v. President/Secretary of the School Committee, Maruthamalal Sri. Subramania Swamy Devathanam and Anr. 1997 2 L.W. 872; and (iv) Management of M.G.R. Higher Secondary School, Kodambakkam v. NAG Balaji Singh and Ors. 1998 WLR 769 wherein it has been held that disciplinary enquiry can be held only by the School Committee as envisaged under the Act and such power and duties cannot be delegated to any other individual or body. The learned single Judge has noticed that a contrary view has been expressed by another Division Bench in the decision reported in (Saradha Balakrishnan v. The Director of Collegiate Education and Anr.).

3. In order to resolve such dispute, it is first necessary to notice the relevant provisions contained in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.

3.1 Section 2(3)(a) of the Tamil Nadu Recognsied Private Schools (Regulation) Act, 1973, relates to definition of Educational Agency relating to minority school and Section 2(3)(b) relates to any other private school. The 'School Committee' in relation to a private school means the school committee constituted under Section 15. Section 15 provides that a private school committee shall include the headmaster and the senior most teachers as provided in Sub-section (2). As per Sub-section (2), the number of representatives of the teachers on such constituted school committee shall be such as may be prescribed.

3.2 Rule 12 of the Tamil Nadu Recognised Private School (Regulation) Rules, 1974 (hereinafter referred to as 'the Rules') states that the School Committee shall consist of not more than the following number of members:

(i) Representatives of the Educational Agency who shall be nominated by such educational agency

(ii) Headmaster of the School

(iii) Senior-most teachers of the school

(iv) Parent-Teacher Association nominee

(v) Senior-most non-teaching staff, if available.

3.3 Under Rule 12(4), an educational agency shall nominate one of the representatives in the Committee as the President. Under Rule 13, the educational agency shall nominate one of its representatives as Secretary of the School Committee. Under Rule 13(3), the Secretary of the School Committee shall function for and on behalf of the School Committee and the educational agency. Under Rule 13(4), the Secretary shall act on the basis of the resolution of the School Committee.

3.4 Section 18(c) empowers the School Committee to take disciplinary action against teachers and other employees of the private school. Under Section 18(2), the educational agency shall be bound by anything done by the school committee in the discharge of its functions and under Section 18(3) any decision or action taken by the school committee within the jurisdiction shall be deemed to be the decision or action taken by the educational agency.

3.5 Section 16 envisages that the Secretary of the School Committee shall perform such functions as may be prescribed.

3.6 Chapter V relates to terms and conditions of service of teachers and other employees. Under Section 22(1), no order of dismissal, removal or reduction in rank of suspension of teachers shall be made except with the prior approval of the competent authority. Under Section 23, appeal lies to the prescribed authority and, under Section 24, second appeal lies to the Tribunal. Under Section 28, the provisions of such Chapter shall have effect notwithstanding anything contained in any other law. Section 56 contains the power to make Rules.

3.7 Under Rule 15(2)(i) the School Committee is required to enter into an agreement with the teacher or other person in Form VII-A or VII-B. Under Clause 6 of Form VII-A, the school committee is required to conform to all the provisions contained in the Act and the Rules. Under Clause (7), the Committee can dismiss, remove or reduce in rank or terminate the services without informing the grounds on which they intend to take action and they are required to adopt the procedure indicated in Clause (7) before taking any final action regarding punishment to be imposed. As per Clause 7(a) a memorandum of charge is to be communicated giving reasonable time to give explanation to the School Committee. Under Clause 7(b), after considering the explanation, the School Committee shall communicate the finding and if so desired by the teacher conduct a personal hearing or enquiry, wherein the teacher shall be given the opportunity to examine or cross-examine any or all the witnesses and also produce witnesses. After personal hearing or enquiry, the School Committee is to give report of the personal hearing setting out the proposed punishment. Under Clause 7(d), the School Committee shall inform in writing about its final decision.

4. In the first Division Bench decision in W.A.No. 170 of 1978 dated 13.11.1979, it was held that enquiry has to be conducted by the School Committee and such enquiry cannot be delegated to any other Committee, Sub-Committee or person. This matter was however taken to the Supreme Court and the Supreme Court by the decision reported in (1992) 3 Supp. SCC 106 (The National High School, Tambaram East, By its Secretary v. P.S. Venkataramanujam and Anr.) had observed as follows:

4. The argument for the appellant before us is that there is no statutory obligation for the school committee to conduct the enquiry against the school teacher and the enquiry could be held either by the school committee or by any third person. In our opinion, it is unnecessary to decide this issue since the appeal could be conveniently disposed of on another ground. It is not in dispute that the respondent himself demanded that the enquiry should be held by the educationalists other than the school committee. That request seems to have been necessitated since he has made accusations against the Headmaster of the school. Accordingly a committee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did not at any time raise objection as to the jurisdiction of the Committee. He was therefore, estopped from raising the objection as to the jurisdiction of the school committee. Secondly, the Form No. VII(A) relied upon by the Division Bench of the High Court is a form under which the agreement shall be executed by the school committee while appointing a school teacher. By consent the terms of the agreement could be changed and that is what the parties seemed to have done in this case.

(Emphasis ours)

5. Then came the decision of the Division Bench in P. Kasilingam v. Bharathiyar University and Ors. reported in . In such decision, while considering the provisions contained in Grant-in-Aid Code relating to disciplinary power resting in Governing Council, which were similar to the provisions contained in the Act, the Division Bench observed that as per the agreement required to be executed in Form VII-A, which has been prescribed by the Rules, the Governing Council alone can conduct the enquiry and it cannot delegate such power to any other person. Such decision was again challenged in the Supreme Court which while declining to interfere with the decision of the High Court, observed as follows:

2. However, Sri U.R. Lalit, Senior Advocate, submitted that certain observations in the judgment as to the lack of the power in the Governing Council to ratify the action of the Principal may not be supportable and at all events unnecessary to support the conclusion reached and that, therefore, those observations maybe deleted. We think we should accept the submission and the question of correctness of these observations is left open. Sri Lalit also said that the management should be free to initiate fresh disciplinary proceedings. The High Court at paragraph 14 of the appellate judgment has reserved this liberty. It is, however, made clear that nothing in the order of the High Court nor the dismissal of this petition here should come in the way of either the Principal or the Governing Council, within respective fields of their powers, to initiate such fresh proceedings as they may consider appropriate in regard to the misconduct attributed to the first-respondent.

6. Subsequently a question relating to disciplinary proceedings under the Tamil Nadu Medical Registration Act came before a Division Bench in P. Andree v. The Tamil Nadu Medical Council rep. by its President and Anr. 1992 W.L.R. 124. The writ petitioner in the said case was functioning as a Registrar of the Tamil Nadu Medical Council. Some disciplinary action was initiated against him. After charges were framed by the Special Committee, the enquiry part was entrusted to a District Judge, who submitted his report before the Special Committee and such Special Committee issued second show cause notice. The petitioner challenged such charge-memo as well as the second show cause notice. Learned single Judge observed that the Special Committee had no jurisdiction to issue the second show cause notice as it was not the disciplinary authority. However, the charge-memo had not been quashed. The petitioner filed appeal contending that charge-memo itself should have been quashed. One of the contentions was to the effect that the Special Committee was not competent to issue charge-memo and the disciplinary action proceeded on the basis of such charge-memo is to be held to be incompetent. Upholding such contention, the Division Bench observed that the disciplinary jurisdiction was vested in the Executive Committee and the Special Committee, which has been constituted, was not the Executive Committee and in the absence of any provision for delegation, such authority to issue charge-memo could not have been delegated.

7. A matter relating to Tamil Nadu Private Colleges (Regulation) Rules, 1976, which is exactly similar to the provisions contained in the Tamil Nadu Recognised Private School (Regulation) Rules, 1974, was examined by a Division Bench consisting of Srinivasan J., as His Lordship then was, and Justice S.S. Subramani in Saradha Balakrishnan v. The Director of Collegiate Education and Anr. .

In the said case, charge-memo was issued to the Petitioner-Professor by the College Committee. In such memo, it was stated that the charges-memo was placed before the College Committee and initialled by the Chairman. The Secretary of the College was authorised to appoint an enquiry officer to go into the charges and conduct and enquiry and submit his findings before the Committee. The Secretary was also authorised to suspend such petitioner. Such action was challenged by the petitioner by filing writ petition. Even though the writ petition was entertained, no stay was granted. Subsequently, the College Committee appointed a Sub-Committee to conduct the enquiry. Such Subcommittee consisted of three persons including the Secretary. Such subsequent action was also challenged by filing further writ petitions. Ultimately all the writ petitions were dismissed. In appeal, the Division Bench observed that the earlier Division Bench decision in P. Kasilangam's case was no longer binding as the observations made in such decision had been clarified by the Supreme Court. The Division Bench observed as follows:

17. Unfettered by the observations made by the Division Bench, if we consider the question on the basis of the fundamental principles of law and the judgments of the Supreme Court, it would be seen that there is no merit in the contention, advanced by learned senior counsel for the petitioner. Clause 7 in the agreement in Form 7-A would only mean that the disciplinary authority is the college committee of the college. The procedure to be followed by the college committee in holding a disciplinary enquiry is set out in the clause in order that the principles of natural justice are satisfied. The clause only points out that reasonable opportunity should be given to the person concerned to examine or cross-examine any of the witnesses and also produce witnesses. It is the college committee which has to apply its mind to the charges framed and evidence on record and come to a final decision. Nothing in the clause prohibits the appointment of any person or body to conduct or hold the enquiry. As there is no express prohibition, the normal rule applicable to such cases will come into play.

After referring to several other decisions relating to power of the High Court under Article 235 of the Constitution, it was further observed:

21. The same reasoning will apply to the present case. If the college committee is to consider the entire matter, it will be defeating the very purpose of the rules on enquiry. In our opinion, the college committee is, therefore, entitled to nominate a sub committee for the purpose of conducting the enquiry. It is a general principle of law that in any disciplinary matter, the disciplinary authority is entitled to nominate an enquiry officer, who will only record the evidence and submit his finding. Such finding is certainly not binding on the disciplinary authority. It is for the disciplinary authority to go into the evidence and other materials collected by the enquiry officer and come to a conclusion on its own. This position has been recognised by the Supreme Court in Union of India v. H.C. Goel : (1964)ILLJ38SC . The contention in that case was that the report of the enquiry officer was in favour of the delinquent officer and that should have been accepted by the disciplinary authority. That contention was rejected and the court held that the report of the enquiry officer is only to help the disciplinary authority to consider the matter and come to a conclusion and there is no rule that it should be accepted. It is for the disciplinary authority to decide whether the report should be accepted or not.

It was concluded that factually there was no basis for the contention that the charge has been framed by the Secretary and not by the College Committee.

8. Inspite of the aforesaid Division Bench decision relating to Tamil Nadu Private Colleges (Regulation) Rules, 1976, which is pari materia with Tamil Nadu Recognised Private School (Regulation) Rules, 1974, subsequently, the controversy continued.

9. In 1997 2 L.W. 872 (C. Ranganathan v. The President/Secretary of School Committee, Maruthamalai Sri Subramanya Devasthanam Higher Secondary School, Coimbatore and Anr.), the question related to the order of suspension of a Headmaster issued by the Secretary. The main contention before the learned single Judge was to the effect that the order of suspension and the charge-memo were without jurisdiction as such orders had been passed by the Secretary and not by the School Committee. It was also contended that such illegal order cannot be subsequently ratified by the School Committee. Learned single Judge while relying upon another order of a learned single Judge reported in (Valliappan v. The Madras Seva Sadan Higher Secondary School) observed that the School Committee alone was authorised to initiate any disciplinary proceedings against the Headmaster and as such the School Committee could only place the Headmaster under suspension.

10. Similar view appears to have been taken by another single Judge in the decision reported in 1998 WLR 769 (cited supra). That was a case relating to order of dismissal pursuant to the disciplinary proceedings initiated and enquired into by the Secretary.

11. In many of the decisions referred to above, the contract required to be executed between the management and the concerned employee has been held to be a statutory contract and, therefore, having the same force as a statute. However, the Supreme Court in (1992) 3 Supp. SCC 106 (cited supra) has observed that such contract can be changed by both the parties. The object of the statute is to regulate the service conditions of the employees. Certain provisions have been incorporated in Form VII-A obviously with a view to regulate the disciplinary control and proceedings relating to various employees, which cannot be unilaterally changed by the management.

12. The statutory provisions themselves contemplate certain powers as well as laid down certain procedures. Section 18(c) of the Act contemplates that the School Committee is empowered to take disciplinary action against the teachers and other employees of the private school. It is obvious that the essential features relating to disciplinary control vested with the School Committee, which is also envisaged in the contract entered into in Form VII-A, cannot be whittled down. Essential functions as to the decision to initiate any disciplinary proceedings, to frame charge, to consider finally the guilt or otherwise of the delinquent and to impose appropriate punishment are matters which are coming within the specific jurisdiction of the School Committee and such essential functions obviously cannot be delegated. However, holding of an enquiry cannot be said to be one of the essential functions which is required to be performed by the School Committee in all events and by none-else. Following the well settled principle in Service Jurisprudence, holding of actual enquiry can be delegated to any other Sub-Committee or person. It is obvious that the report made by such subcommittee or enquiry officer is to be placed before the School Committee for consideration and obviously the School Committee is free to take any decision and it is not bound by the decision taken by the sub-committee. The fact that the disciplinary authority is not required to hold the enquiry itself is quite well recognised in service jurisprudence.

13. In : [1955]2SCR1331 (Pradyot Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court), the question was whether the Chief Justice of the High Court could delegate to another Judge an enquiry relating to charges against a member of the High Court. The Supreme Court observed that a statutory functionary in the absence of any specific prohibition while exercising disciplinary control can delegate the power of holding the enquiry to another Judge, but ultimately the decision has to be taken by the disciplinary authority.

Similarly the Supreme Court in 1978 A.L.J. 477 (State of Uttar Pradesh v. Batuk Deo Pati Tripathi) observed that the disciplinary control vested with the High Court may be exercised, however, the essence of power cannot be permitted to be diluted.

Similar view has been expressed by the Supreme Court in : (1964)ILLJ38SC (Union of India v. H.C. Goel) relating to exercise of disciplinary authority in other organisations.

14. In B & C Mills v. B & C Mills , the Company's Mill-manager issued the charge-sheet, but the senior Labour Officer recorded the evidence. Thereafter on scrutiny of the enquiry report, the Mill-manager passed the order of dismissal. The contention that the Mill-manager had no jurisdiction to delegate to another officer the power to hold the enquiry was accepted and it was held that the Mill-manager could delegate the function of collecting necessary evidence.

15. In A. Krishnaswamy v. Tamil Nadu Electricity Board 1981 I LLJ 374, a Division Bench of this Court had observed that the Board being a statutory body composing of numerous members could delegate its functions in conducting an enquiry against its employee to its subordinate officer, so long as there is no prohibition against such delegation under the statute.

16. It is no doubt true that on a cursory reading of the contents of Form VII-A, one may prima facie come to a conclusion that the enquiry in the disciplinary proceedings has to be conducted by the School Committee. We do not think that it was the intention of the Legislature that the matter relating to collection of evidence and even submission of report thereon has to be done by the School Committee and not by any other sub-committee or person. Such a conclusion would give rise to many impracticable situations which could not have been the intention of the Legislature.

17. Two of the earlier Division Bench decisions had lost their sting by virtue of the subsequent observations made by the Supreme Court arising out of those cases. The other Division Bench decision in 1992 WLR 124 is distinguishable and had been rendered on a different fact situation.

18. In our opinion, the ratio of the decision of the Division Bench in (Saradha Balakrishnan v. The Director of Collegiate Education and Anr.) can be said to be reflecting the correct position, subject to certain clarifications.

19. From the provisions contained in the Act along with the contents of Form VII-A, it is evident that the decision as to whether a disciplinary proceeding should be initiated or not, whether an employee should be placed under suspension or not, whether charges should be framed or not has to be taken by the School Committee. These powers are essential powers of the School Committee and the provisions contained in the Act do not envisage that such essential powers can be delegated. However, the duty of holding the enquiry can be delegated by the School Committee of course and not by any other authority. The Sub-Committee or the person appointed, as enquiry officer is required to hold the enquiry and can submit his report. In view of the decision of the Supreme Court in : (1994)ILLJ162SC ((Managing Director, Ecil, Hyderabad, Etc. v. B. Karunakar, Etc.,), copy of such report is required to be served on the delinquent to enable him to make his submission. Such report is required to be considered independently by the School Committee and obviously such report is not binding on the School Committee. Once the School Committee comes to an independent conclusion regarding the delinquency of the charged employee, the question of punishment is again a matter to be decided by the School Committee and such authority cannot be delegated.

20. Learned Counsel appearing for the petitioner has submitted that even adopting the aforesaid yardstick, there is no material to indicate that the School Committee has specifically delegated such power to hold enquiry and, therefore, the enquiry must be taken to be vitiated. This aspect is, however, combated by the learned Counsel appearing for the school.

21. In normal course, we would have requested the learned single Judge to decide such aspect by scanning the materials on record. However, we find that the impugned order of dismissal of the petitioner is bound to be quashed on another ground. It is apparent that initially an enquiry was held by the School Committee as a whole, but subsequently before finalisation it was decided to entrust the enquiry to a sub-committee. Some of the members belonging to the School Committee deposed at such enquiry held by the sub-committee and ultimately some of those members also sat in the School Committee while deciding about the guilt of the concerned employee and while considering the question of punishment. It is thus obvious that such proceedings of the School Committee became vitiated because some of the witnesses sat as members of the School Committee and took the decision and participated in the ultimate decision whereunder it was decided to punish the concerned employee. Therefore, the principles of natural justice stood violated and the order passed cannot be upheld.

22. In AIR 1958 SC 86 (State of U.P. v. Mohammad Nooh), a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile and the officer holding the enquiry left the enquiry and gave evidence against the employee and resumed to complete the enquiry and passed the order of dismissal. Such action was quashed by the Supreme Court by holding that the rules of natural justice were grievously violated.

Such principle was followed in : (1993)IILLJ549SC (Rattan Lal Sharma v. Managing Committee. Dr. Hariram (Co-Education) Higher Secondary School and Ors.).

23. The proceedings had been initiated long back and has undergone several vicissitudes. Even though some of the allegations are relatively serious, it is obvious that in the meantime the petitioner had reached the age of superannuation. Having regard to all these aspects, it would not be in the interest of justice to remit the matter for fresh disposal before the School Committee by eschewing the persons who appeared as witnesses.

24. After hearing of the matter before the Full Bench was over, a Joint Memo signed by the petitioner and the second respondent was filed, wherein the financial benefit to be paid to the petitioner on quashing the order of dismissal has been spelt out. However, it is not possible for the Full Bench to deal with such aspect in this judgment. Therefore, while quashing the order of dismissal, the question relating to the extent of financial benefit to be extended to the petitioner and the question as to whether such amount has to be paid by the second respondent or by the first respondent is left open to be decided by the learned single Judge. The Joint Memo filed by the petitioner and the second respondent shall be considered while considering the aforesaid aspect. The matter shall be listed before the learned single Judge on 9.10.2006.