Calcutta High Court
E. Mc. Gready vs Babbon Prosad on 7 May, 1993
Equivalent citations: (1993)2CALLT217(HC)
JUDGMENT M.G. Mukherji, J.
1. This appeal is directed against the order bearing No. 31 dated 29.4.91 passed by the learned Trial Judge, 9th Bench, City Civil Court, Calcutta in Title Suit No. 120 of 1990 whereby the learned Trial Judge on a petition having been filed by the plaintiff respondent No. 1 that he being put under suspension by the school authorities is not being paid subsistence allowance at the rate of 75% of his pay, the President, Hony, Secretary, Hony. Additional Secretary and the Principal of Frank Anthony Public School who are the defendants, were directed to effect payment of subsistence allowance at the admissible rate under the rules including the arrears of subsistence allowance by 17.6.91.
2. It is the contention of the appellant who happens to be the Principal of Frank Anthony Public School that on the face of the order of suspension and the initiation of the disciplinary proceedings, the plaintiff respondent could not have at all been entitled to file a suit in the manner he prayed for seeking the following declarations :
(a) Declaration that the notice dated 20.1.88 purporting to suspend the plaintiff is illegal, without jurisdiction, nullity and not binding on the plaintiff;
(b) Declaration that the enquiry held by the defendant No. 5 is illegal, bad in law and without any jurisdiction and as such the purported finding by him is not illegal and binding on the plaintiff ;
(c) Declaration that the purported resolution dated 16.11.89 asking the plaintiff to show cause and placing the plaintiff under tentative, removal, is illegal and mala fide;'
(d) Permanent injunction restraining the defendant, their men, agents and servants from imposing any penalty in furtherance of the resolution dated 16.11.89 and/or alleged enquiry report of the defendant No. 4 ;
(e) Permanent injunction restraining the defendants, their men, agents and servants from giving into effect and/or further effect of the notice dated 20.1.88 and/or taking any steps in aid of the said enquiry report and/or from giving effect to the purported resolution taken on 16.11.89;
(f) Damages for wrongful harassment and the alleged removal of the plaintiff from the said school.
3. It is an admitted position that even though an averment has been made in paragraph 20(g) of the plaint that the plaintiff is not provided with a subsistence allowance at the admissible rate at 75% of the wages, no specific prayer has been made in the prayer portion of the plaint to that effect. The plaintiff respondent No. 1 however, has liberty to pray for suitable amendments in this regard which he undertakes to do, once the matter goes back to the court below and we grant him liberty in this regard.
4, It is indeed correct that a suit merely with a prayer that the notice of suspension is to be declared as illegal, without jurisdiction or a nullity and not binding on the plaintiff, may not stand unless and until it is shown from the appropriate rules that the order of suspension is dehors the statutory rules holding the field. A demestic enquiry, however, could not per se be interfered with by a Civil Court without arriving at a conclusion that there has been any gross violation of the mandatory rules or infraction of the tenets of natural justice or the entire action has been taken mala fide and for a collateral purpose. Similarly a resolution taken at the conclusion of the domestic enquiry could not be challenged by the plaintiff unless any of the contingencies as cited above is attracted to the facts and circumstances of the present case. A permanent injunction restraining the school authorities from imposing any penalty pursuant to a resolution arrived by the managing committee based on the findings of an enquiry report a permanent injunction restraining the school authorities from giving effect to the second show-cause notice taken in aid of an enquiry report or a resolution taken with regard to the finding of guilt against the plaintiff, would also not be sustainable in the Civil Court. We are afraid similarly the claim for damages for wrongful harassment and/or alleged removal cannot be maintainable in the suit. We have however, to remember in this context that the plaintiff is still at liberty to amend his plaint suitably for appropriate reliefs he deserves including payment of subsistence allowance at the rate admissible in law,
5. There are some controversies as to whether the Delhi School Educa-cation Act, 1973 and the Rules framed thereunder viz. The Delhi School Education Rules, 1973 as amended by Delhi School Education Rules, 1990 do apply in the facts and circumstances of the case or not. According to the amended Rule 116 of Delhi School Education Rules an Employee under suspension shall, in relation to the period of suspension be entitled to a subsistence allowance at the amount equal to one-half of the pay last drawn by him and in addition to such pay, dearness allowance at the appropriate rate to be paid in the same manner as salary, provided, however, that where the period of suspension is extended beyond six months, the managing committee shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of past six months as follows :
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50% of the subsistence allowance admissible for the period of first six months, if in the opinion of the managing committee, to be recorded in writing, the period of suspension has been prolonged, for reasons not directly attributable to the employee ;
(ii) the amount of subsistence allowance may be reduced by a suitable amount not exceeding 50% of the subsistence allowance admissible for the first six months, if in the opinion of the managing committee, to be recorded in writing, the period of suspension has been prolonged due to reasons directly attributable to the employee;
(iii) any other compensatory allowance admissible, from time to time, on the basis of pay of which the employee was in receipt on the date of suspension; provided that the employee shall not be entitled to the compensatory allowance unless the managing committee is satisfied that the employee continues to meet the expenditure for which such compensatory allowance is admissible and no payment of subsistence allowance shall be made unless the employee furnishes a certificate to the effect that he is not engaged in any other employment, business, profession or vacation.
6. It is also provided in the Rules under the Delhi School Education Rules, 1973 as it stands amended in 1990 that if the managing committee fails to pay any subsistence allowance or compensatory allowance within thirty days from the date from which the payment becomes due, the employee may appeal to the Director, who may pass appropriate orders. If any doubt arises with regard to the application of this rule, the same shall be resolved in accordance with the orders issued by the Central Government in respect of its employees. Where a suspended employee is exonerated after disciplinary proceeding, the salaries and allowances of such employee minus the subsistence allowance received by him, shall be paid to him from the date on which he was suspended.
7. As was observed in Daughters of the Cross and Ors. v. State of West Bengal and Ors., reported in 83 CWN 358, there is a Code of regulations for Anglo Indian Schools in West Bengal but there are no regulations or statutory powers entitling the making of the said code. In Rules 3 and 4 of Chapter III of the said code as amended, it is provided that no teacher may be dismissed either summarily or with due notice save by the Governing Body, who shall in all cases of dismissal immediately report the fact with full particulars to the Inspector. A teacher who considers himself unjustly dismissed shall be permitted to make a representation to the Inspector of Anglo Indian Schools and the governing body shall in such a case defer final action until they have received from the Inspector an expression of his views. The governing body is also immediately to report to the Inspector the name of the teacher who wilfully breaks the existing written agreement.
8. We do not think that in the facts and circumstances of the present case, the rules and regulations as framed by the Association of Christian Schools which are incorporated as special rules in management of secondary schools established and run by Christian Charity Missionary Society or Religious Society are applicable where under the powers given under Rule 8 of the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided) 1969 framed under the Board of Secondary Education Act, 1963, such rules were framed. It must be remembered as was held in Daughters of the Cross v. State of West Bengal (ibid) the Government has no powers under the law to direct reinstatement or to interfere in a case of termination of employment. We are afraid the Civil Court has no power to sit on judgment over the decisions arrived at in a domestic disciplinary enquiry. In State of West Bengal v. Daughters of the Cross, a similar view was taken that the Regulations 3 and 4 of Chapter III of the Code of regulations for Anglo Indian Schools in West Bengal are violative of Article 30(1) of the Constitution. The right of the minority institutions to initiate disciplinary proceedings against their teachers arid employees and to impose penalties on them was to be one of the vital aspects of the fundamental rights of the minority institutions to administer the institutions in their own way and in an independent manner and if such right or any part thereof is either taken away or interfered with by any rule or regulation framed by the Government and imposed on such institutions as regulatory measure, such a rule or regulation was held violative of Article 30(1) of the Constitution and the Division Bench struck down such rules and regulations as inoperative in law.
9. It is a case where it was alleged by the school authorities against the plaintiff respondent No. 1 that he inflicted corporal punishment on the students by physically assaulting them. Whether in such a matter a major penalty to the extent of removal from service or dismissal from service, is at all warranted or not and whether a minor penalty would have been sufficient, are not matters which are ultimately in the domain of the Civil Court. The Civil Court can at best look into the legality of the procedure adopted in the disciplinary proceedings and as to whether the order of suspension was contrary to the rules so as to be declared illegal and nothing more. As regards the plaintiff respondent No. 1's right to get subsistence allowance, there is no controversy at all and the only contention raised by the school authorities including the present appellant is that he was not amenable to the subsistence allowance under the West Bengal Payment of Subsistence Allowance Act, 1969 which puts an obligation on the school authorities as employees to pay after 90 days of suspension, subsistence allowance at the rate of 75% of the wages which he has been drawing immediately before such suspension. If the Delhi School Education Act, 1973 and the Delhi School Education Rules, 1973 as it stands amended by the Delhi School Education Rules (1990) are applicable and the West Bengal Payment of Subsistence Allowance Act is not called into operation, the school authorities may reasonably contend that nothing beyond 50% is payable including such allowance which are admissible according to the rules.
10. On 29.4.93 in order to prove their bona fides the school authorities have already paid Rs. 46,460/- to the plaintiff respondent: No. 1 by a cheque bearing 251849 on ANZ Grindlays Bank. The plaintiff respondent No. 1 made a claim that his total subsistance allowance till the date of suspension was to the tune of Rs. 75,960/- if he was found entitled to subsistence allowance at the rate of 75% of his substantive pay after three months from the date of the suspension. In case the plaintiff respondent No. 1 amends his plaint by incorporating an appropriate prayer with regard to the claim of subsistence allowance, the Trial Court would specifically adjudicate at what rate subsistence allowance is to be paid by the school authorities to the plaintiff respondent No. 1 keeping in view the broad principles enunciated in Balvantrai Ratilal Patel v. State of Maharashtra, .
11. Mr. Malay Kumar Basu, Senior Advocate appearing for the plaintiff respondent No. 1 pointed out before us the decision in Mrs. Y. Theclamma v. Union of India and Ors., for the proposition that if according to the school authorities it was a case governed by Delhi School Education Act, and Rules framed thereunder, it was propounded in the-said Supreme Court decision that although the disciplinary control over the teachers of a minority educational institution is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action. Consequently the provision contained in section 8(4) of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the management's right to take disciplinary action. Consequently, before suspending a teacher, it is incumbent on the management of a minority institution to obtain prior permission of the Education Officer. That not having been so done in the facts and circumstances of the present case, according to Mr. Basu, the entire order of suspension could not be sustained. That is ultimately a matter in the domain of the Civil Court and the Civil Court would take an appropriate decision at the apposite stage. If according to the contention of plaintiff respondent No. 1, the Delhi School Education Act and the Rules are not applicable at all, the Court may hold the order of suspension to be valid if there has not been any infraction of the Rules and no violation of the natural justice principle was caused, provided, of course the allegation of mala fides or an action being taken collaterally cannot be sustained by the plaintiff respondent No. 1. In fact what the Civil Court will be called upon to adjudicate will be within a specific framework as indicated hereinbefore and we cannot really sit upon judgment at this stage as to whether in the facts and circumstances of the present case the disciplinary authority could at all find the plaintiff respondent No. 1 guilty or not and whether on such charges a dismissal is at all justified. The Civil Court must bear in mind that it has not the power of reinstatement in the facts of the case and in a contractual relation between employer and employee, unless a specific statute is there to protect the interests of the employee concerned and the same stands violated and nature' justice principle is flouted or a case of mala fides is proved, the Court cannot interfere.
12. On the face of the application dated 19.6.90, we do not set aside the order impugned date 29.4.91 but we direct the learned Trial Judge, on such apposite amendments being made to the plaint, to adjudicate upon the exact rate of subsistence allowance.
With this observation, the appeal as also the connected application stand disposed of. There will be no order as to costs.
N. K. Bhattacharyya, J.
13. I agree.