Madras High Court
The Secretary School Committee ... vs The Government Of Tamil Nadu Rep By ... on 17 August, 1999
Equivalent citations: 1999(3)CTC62
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the order of the first respondent in G.O.Rt.No. 418 Education dated 24.4.1991 the petitioner has filed the above writ petition to quash the same and also for direction to the respondents 1 to 3 to grant approval for the termination of the services of the fifth respondent as P.G. Teacher from the services of the petitioner School.
2. The case of the petitioner is briefly stated hereunder:
Petitioner is a Higher Secondary School one of the oldest and biggest Schools in the State. 5th respondent herein was directly recruited as P.G. Assistant for English in the year 1978. The performance of the 5th respondent was not satisfactory and he was highly irregular both in his attendance and in his teaching in the school. He used to leave the school in the middle, cancel the classes and ultimately he stopped attending the School from 1.12.1984 without prior permission. He has not chosen to intimate or applied for leave for his long absence. The students were put to loss. The class students and parents have complained about the failure on the part of the 5th respondent in not taking the classes regularly and leaving the class in middle. The 5th respondent was issued memos dated 4.1.1983, 28.8.1984, 31.8.1984 and 30.10.1984 by the Management calling upon him to explain his continued absence and for various acts of commissions and omissions. Ultimately, after his failure to reply for those memos, eight charges were framed against him.
5th respondent was called upon to submit his explanation for the charges framed against him within seven days from 22.1.1985. He ignored the charge memo and did not submit any explanation. The conduct of the 5th respondent was wanton, deliberate and he has willfully acted in not even submitting his reply to the various charges. Thereafter, the 5th respondent was wanton, deliberate and he has wilfully acted in not even submitting his reply to the various charges. Thereafter, the 5th respondent was issued with a show cause notice dated 13.5.1985 calling upon him to submit his explanation within 10 days. Even for this he did not send any reply. Thereafter, the School Committee in an unanimous resolution dated 30.5.1985 decided to terminate the service of the 5th respondent from 1.12.1984 and also passed a resolution to seek for the prior permission from the Chief Educational officer. The petitioner applied to the 3rd respondent for the approval of the termination as per Rule 17 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as "the Rules"). The proposal of the petitioner was referred to the District Education Officer to get his report. The Chief Educational Officer after keeping the proposal and also report of the District Educational Officer for more than three years passed orders on 24.4.1987 stating that the charges were not serious enough warranting the termination from service, accordingly rejected the approval. As against the said order the petitioner filed an appeal under Section 41 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "the Act") before the second respondent. The second respondent after holding that the 5th respondent was fit enough to work as a Teacher, confirmed the order of the Chief Educational Officer and dismissed the appeal. Thereafter, the petitioner preferred a revision before the Government first respondent herein. The first respondent by impugned order dated 24.4.1991 rejected the revision petition and confirmed the orders passed by the appellate and original authority. Against the said order of the Government, the petitioner School has filed the present writ petition.
3. On behalf of respondents 1 to 4, first respondent has filed a counter affidavit disputing various averments made by the petitioner. It is stated that, on receipt of the request for approval of termination of services of the 5th respondent, the Chief Educational Officer called for a report from the District Educational Officer. After careful consideration and detailed enquiry, the Chief Educational Officer, Vellore in his proceedings dated 24.4.1987 did not approve the proposal of the School Committee as the charges against the Teacher were not so grave in nature warranting the termination of services. Against the order of the Chief Educational Officer the Correspondent of the School preferred an appeal to the second respondent. The appeal was rejected by the second respondent by his proceedings dated 1.2.1988 and thereafter the petitioner filed a revision dated 9.3.1988 before the first respondent Government. The first respondent also after reviewing all the previous orders passed by the competent authorities issued orders rejecting the revision petition, the petitioner ought to have filed an appeal only in the Tribunal after depositing all back arrears of pay and allowances in the Court of District Judge at Vellore due to the Teacher from the date of his termination. However the petitioner has failed to do so and filed this writ petition in this Court without exhausting the available remedies under the Act, hence it is liable to be dismissed. It is also stated that the 5th respondent absented due to dispute between him and the Management School, moreover the petitioner has not allowed the 5th respondent to enter the School. Respondents 3 and 4 are the agents of the Governments to enforce the Act and Rules in force. The dispute between the Management and the 5th respondent has been decided as per Rules and final Orders were issued. So there was no deviation in this case. Inasmuch as the charges framed against the 5th respondent were so serious as to warrant termination of services, all the authorities including the Government have rightly rejected the case of the School, hence prayed for dismissal of the writ petition.
4. 5th respondent has filed a counter affidavit in WMP.No. 24907 of 1994, wherein disputed all the averments made by the petitioner. It is stated that, since he did not yield to the mal- practices of the School management in his supervision, the Management had a rough corner against him and the Secretary developed a enemity towards him. The Secretary of the School is highly influenced person in the society. The framing of charges against him are baseless. Because of the attitude of the Secretary of the School he did not submit explanation, however he appeared before the Chief Educational Officer and gave a oral statement explaining his grievance. After considering the entire facts, the third respondent rightly refused to grant approval in his proceedings dated 24.4.1987. All the authorities have rightly rejected the approval sought for by the petitioner, accordingly he prayed for dismissal of the writ petition.
5. In the light of the above pleadings, I have heard Mr.V.K. Muthusamy, learned senior counsel for the petitioner, learned Government Advocate for respondents 1 to 4 and Mr.P. Anand for 5th respondent.
6. There is no dispute that 5th respondent was directly recruitted as P.G. Assistant in the year 1978. It is the case of the petitioner - management that the behaviour and performance of the 5th respondent was not at all satisfactory and he was highly irregular both in the attendance and his teaching in the School. According to them 5th respondent used to leave the School in the middle, cancelled classes and ultimately he had stopped attending the School from 1.12.1984. He had also not completed the portions of the lessons for XI Standard till October, 1984. Hence, the 5th respondent was issued memos on various dated viz., 4.1.1983, 28.8.1984, 31.8.1984 and 30.10.1984 by the management calling upon him to explain for his continued absence and for various acts. Since he did not send any reply nor changed his way, the management issued a charge memo containing eight charges therein. The charges are as follows:
CHARGES:
"(i) that he had not passed Tamil language test as per the Rules. He had not replied for the Memos issued by the Management on 4.1.1983 and 29.8.1984 in this regard;
(ii) that he had left the School without prior permission of the Headmaster and when he was on duty and thereby failed to discharge his duties diligently. He had also not replied for the Memos dated 29.8.1984 and 31.8.1984 issued calling upon him for explanation in this regard;
(iii) that he had absented himself from the School without any prior permis-sion causing inconvenience and dislocation in the normal working of the School and he had not replied for the letters issued to him dated 29.8.1984 and 31.8.1984.
(iv) that he had failed to complete the portions in English for Standard 11 and the students have given a written compliant and that he had not replied for the memos issued to him by the Headmaster on 30.10.1984.
(v) that he had failed to give composition exercises upto the month of October, 1984 and thereby failed to discharge his duties.
(vi) that he had cancelled the classes of 11th standard on various dates without any excuse.
(vii) that he had violated the conditions of agreement and have failed to act honestly and deligently under the Orders and instructions of the Headmaster and he had not carried out the academic work property and absented himself without any permission application.
(vii) that he had stayed away from duty from 1st December, 1984 without any prior permission or intimation and thereby caused serious dislocation of work."
Even for the earlier memos as well as for the present charge memo, the 5th respondent Teacher had not submitted any explanation in respect of granting sufficient opportunity. Only in the counter affidavit filed before this Court it is stated that, because of the attitude of the Secretary of the School Committee he was prevented from attending School and also did not file any reply. In the absence of any explanation from the side of the Teacher, the decision was taken by the School Committee to terminate this services. Before passing the said order, a show cause notice dated 13.5.1985 was issued to the 5th respondent calling upon him to submit his explanation within 10 days from the date of receipt of the notice, as to why his services should not be terminated with effect from 1.12.1984. Since the Teacher did not respond to this, show cause notice also, the School Committee in their unanimous resolution dated 30.5.1985 decided to terminate the services of the 5th respondent from 1.12.1984 and passed a resolution to seek for prior permission from the Chief Educational Officer. Thereafter, the petitioner applied to third respondent for approval of the termination as per Rule 17 of the Rules. On receipt of the request from the Management, the Chief Educational Officer for his remarks. On the basis of the remarks of the District Educational Officer and after enquiring the 5th respondent and also after considering all the charges, the third respondent in his proceedings dated 24.4.1987 after holding that the charges levelled against the 5th respondent are not so serious warranting terminating him from service, rejected the request of the management for approval of their decision to terminate the services of the 5th respondent. The said order has been confirmed in the appeal and revision by respondents 1 and 2.
7. Mr.V.K. Muthusamy, learned senior counsel for the petitioner after pointing out the agreement in Form VII-A executed between the Teacher and the Management as well as the Code of Conduct as found in Annexure II would contend that, the School, Committee is justified in terminating the services of she petitioner. According to him, in the light of the various charges, in the absence of any explanation, the third respondent ought to have accepted the approval as claimed by the petitioner. He also commended the order of the third respondent in keeping the approval petition for a period of three years. He also stated that both the appellate and revisional authorities have committed an error in dismissing the appeal and revision. On the other hand, learned Government advocate for respondents 1 to 4 and Mr. P. Anand, learned counsel for the 5th respondent - Teacher would contend that, inasmuch as all the authorities taking note of the nature of the charges levelled against the Teacher, in view of the conduct of the School management, particularly, the Secretary, rightly refused to accept the approval, since the punishment of termination from service is not at all warranted. They also contended that, in such circumstances, and in the light of the factual conclusion arrived by the third respondent, confirmed by appellate and revisional authorities, interference of this Court by exercising power under Article 226 of the Constitution is very limited.
8. As per the provisions of the Act and Rules, after the appointment in Form VII-A was entered into between the 5th respondent-Teacher and the petitioner School. No doubt, both the parties have agreed to abide by certain terms and conditions therein. As per Rule 16, the teachers and other persons employed in the private School shall be governed by the Code of Conduct as specified in Annexure II. Annexure II contains 11 clauses. Mr. V.K. Muthusamy, learned senior counsel by pointing out clause 1 and 2 would contend that, in the light of the said clauses, in view of the misconduct of the 5th respondent in not attending classes regularly, not completing the portions for XI Standard, absenting without prior permission etc., the School management is entitled to take action including terminating him from service. No doubt, the agreement between the parties as well as the Code of Conduct mentioned in Annexure II enables the School Management to take appropriate action. Likewise, Rule 16 (2) and (3) also enables the School Management to take appropriate action against the Teacher including terminating the services of the Teacher concerned.
9. Apart from the statutory provisions referred above, learned senior counsel for the petitioner has very much relied on a decision of Srinivasan, J. (as His Lordship than was) reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu 1990 W.L.R. 62. By pointing out that, even though proposal for termination was sent to the third respondent even on 9.5.1985, the third respondent had passed orders rejecting the proposal only on 24.4.1987. He also submitted that, even the District Educational Officer had submitted his report on 3.12.1985. Because of the delay and in view of various clauses in the agreement and Code of conduct by relying on the said decision he has submitted that the order of the third respondent is liable to be quashed. No doubt, in a similar circumstance, and in an identical case, after noting the fact that there was a delay of nearly one year in passing orders in the approval application by the Chief Educational Officer and after referring the relevant statutory provisions as well as agreement and the Code of Conduct the learned Judge has quashed the order of the said authority rejecting the claim of the School for approval and ultimately upheld the orders of the School terminating the services of the 4th respondent therein. Even though the learned senior counsel has very much relied on the said decision, he himself fairly stated that the very same decision has been overruled by the Division Bench in T. Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School etc., and others, 1988 W.L.R. 641. After considering various provisions from the Act and Rules, after disapproving the view expressed by the learned Judge, the Division Bench (D. Raju (as his Lordships then was) and V. Kanagaraj, JJ.) has held that, "...As pointed out earlier, there is no vacuum or gaps to be filled in the provisions contained in Section 22(1) which, in unmistakable terms, stipulate that no teacher or other person employed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. There is no scope for dispensing with the requirement of prior approval of the competent authority under any pretext except by mutilating or re-enacting the provision which is not the course permissible for the Court to do. The issue before us involves not with any filing up of gaps but as to the necessity to comply with a mandatory requirement of law which has been imposed as a pre-condition for getting rid of an employee of the school and there can be no compromise with such an obligation to comply with the same. Even if there was any grievance based on any indifference or lethargy or inordinate delay for according approval by the appellate authority as sought for, Courts can be justified only to the extent of issuing directions if need be, to complete performance of duty within any stipulated time, but cannot, for that reason alone, dispense with the very requirement incorporated in the statute stipulated time, but cannot, for that reason alone, dispense with the very requirement incorporated in the statute with definite purpose and also a safeguard in favour of the teacher, in public interest. Consequently, we have no hesitation to hold that the learned single Judge was not right in holding that on the facts and circumstances of the case, having regard to the delay on the part of the Competent Authority exercising his powers, the approval must be deemed to have been accorded or that the school management can terminate the services even without such prior approval. The judgment of the learned single Judge is, therefore, hereby set aside. At the same time, we also set aside all the observations made and conclusions expressed and arrived at by the learned single Judge touching on the merits of the charges and the other incidental observations pertaining to the claim on merits.
Learned counsel for the appellant invited out attention to the conclusion of the learned single Judge about the legality and validity of Rule 16(3) of the Tamil Nadu Private Schools (Regulation) Rules, 1974. In the light of the view taken by us on the scope of Section 21 and the other order passed, we are of the view that it would be unnecessary for the learned single Judge to have pronounced upon the validity of the Rule 16(3) holding that it is contrary to the terms of Section 21. The reasons assigned by the learned single Judge in para 48 of his judgment do not justify such a conclusion that Rule 16(3) is contrary to Section 21. In our view, the rule has not been shown to be in any manner inconsistent with Section 21 and we set aside the finding of the learned single Judge in this regard also both on the ground that those conclusions are unwarranted and uncalled for."
10. Apart from this, another Division Bench consisting of K.A. Swami, Hon'ble Chief Justice and Raju, J. (as His Lordship then was) in Rukmani Devi v. The Chief Educational Officer & 2 others disapproved the view expressed in Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu, 1990 Writ Law Reporter 62. In the light of the two decisions and in view of the fact that the decision in 1990 WLR 62, (cited supra) has been overruled, reliance on the said decision and elaborate argument made by the learned senior counsel for the petitioner cannot be countenanced.
11. Learned senior counsel has also very much relied on,
(a) Avinash Nagra v. Navodaya Vidyalaya Samiti etc. ; and
(b) N. Raharathinam v. State of Tamil Nadu .
By pointing out the above decisions, it is contended that, if all the relevant facts and circumstances and evidence on record are taken into consideration and if it is found that the evidence establishes misconduct, the Disciplinary Authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. He also pointed out that, once there is a finding as regards the proof of misconduct, what should be the nature of punishment to be imposed is for the. Disciplinary Authority to consider. By pointing out the above proposition of law as well as the unanimous decision taken by the School Committee based on materials, according to him it is not open to the Chief Educational Officer to reject the approval of termination for the 5th respondent. There is no dispute with regard to the legal position. However, in the light of the statutory provisions in the Acts and Rules and also considering the interest of the Teacher, the Authorities are competent to take a decision and there is no need to" fall in line with the decision of the School Management.
12. Learned senior counsel has also relied on the Full Bench decision of the Allahabad in Shakir Hussain v. Chandoo Lal A.I.R. 1931 All. 567 F.B. wherein their Lordships have distinguished the "approval" and "permission". According to them it is stated that, ordinarily the difference between the approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act. He also very much relied on the decision of the Supreme Court reported in Neelima Misra v. Harinder Kaur Paintal, and contended any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution, Even though learned senior counsel by pointing out the above decisions has contended that the third respondent has committed an error in rejecting the approval sought for by the School, in the light of the direct decisions on the point in issue viz., Rukmani Devi v. The Chief Educational Officer & 2 others and T. Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School etc., and others, 1998 W.L.R. 641. I am of the view that decisions cited by the learned senior counsel for the petitioner are not helpful to his case.
13. Learned senior counsel has also commended the order of the Appellate and Revisional Authority for merely confirming the order of the third respondent. I am unable to accept the said contention, since the Appellate Authority - second respondent has considered all the charges separately and after enquiring the 5th respondent - Teacher in person, confirmed the order of the third respondent and dismissed the appeal. Likewise, even the Revisional Authority viz., the Government after narrating all the eight charges and also considering the order of Chief Educational Officer as well as Joint Director of School Education and also after examining the entire matter came to the conclusion that the charges framed against the 5th respondent - Teacher are not so serious warranting termination of service, accordingly rejected the revision of the petitioner - School. The Appellate and Revisional Authorities have passed considered orders and not a non-speaking one, as contended.
14. Though the learned counsel for the 5th respondent highlighted his arguments by pointing out Fundamental Rules, I am of the view that those rules are not applicable, since there is a separate Rule (Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, hence it is unnecessary to refer the same. Likewise, he projected very much on the non-payment of salaries and other amounts as directed by the Government. In view of the fact that, we are concerned with the impugned order of the first respondent confirming the order of the Original and Appellate Authority refusing to accept the approval sought for by the School Management, it is unnecessary to consider the same in this writ petition. Learned counsel for the 5th respondent by drawing my attention to the order of Y.Venkatachlam, J. in Writ Petition No.3329 of 1988 dated 10.4.1997 and the subsequent order passed by the very same learned Judge on 17.10.1997 has contended that the present writ petition is liable to be dismissed by applying principle of res judicata. The said writ petition was filed by the very same Management seeking a writ of mandamus directing the respondents 1, 2 and 3 therein to forbear from taking any action or making direct payment to the Teachers of the petitioner School. The said writ petition was dismissed by the learned Judge for default of the petitioner and even the subsequent petition viz., W.M.P.No.9333 of 1997 seeking restoration of the writ petition was also dismissed. In the light of the relief sought, for in the said writ petition and in view of the issue in the present writ petition, I am unable to accept the contention raised by the learned counsel for the 5th respondent.
15. In the light of what is stated above, merely because the third respondent had taken longer time for passing orders in the application filed by the School seeking approval of their action, the order cannot be interfered. The statutory power of approval like the one conferred on the competent authority, here in our case, the third respondent herein under Section 22(1) of the Act to approve the termination of the Teacher or other person has been devised as an essential check on the arbitrary exercise as powers by a School Management. The stipulation of obtaining approval before termination has been made to safeguard the rights of a teacher or other person under the management of an aided private school and merely because a statutory authority with a powers of supervision and control commits a lapse or shows some indifference that by itself is no ground to totally deny and deprive the competent authority of the right to exercise such power for all times to come on account of the initial lapse or delay in so exercising the power of approval. As observed by their Lordships in Rukmani Devi v. The Chief Educational Officer, , the power conferred under sub-section (1) of Section 22 of the Act is not for the benefit of the competent authority or the department concerned, by the legislature must have thought of such a devise, more in order to protect a teacher or other employee of an aided educational institution and while that be the position the lapse or the delay on the part of the competent authority in diligently exercising the power cannot have the effect of denying the protection and safeguard statutorily devised in favour of the teacher or other person employed in an aided educational institution. As also rightly observed, if there is any lapse or indifferent attitude exhibited by the competent authority, it is always open to the school management concerned to more the appellate or revisional authorities or this Court under Article 226 of the Constitution of India for appropriate direction to the said authority to discharge his duties expeditiously within a reasonable time. Admittedly, the petitioner has not taken any such steps. The provision contemplated for securing the approval of the competent authority before effecting termination of service of a teacher or other person employed in an aided school is not a mere procedural formality, but really concerns a substantial restriction on the power of the management of an aided school to dispense with the service of a teacher or other person employed therein. In other words, it is a condition precedent contemplated by the statute for dispensing with the services of an employee and in respect of such a matter there is no scope for negotiating with rigor of law having recourse to the principle of substantial compliance.
16. Under these circumstances, I do not find any error or infirmity in the order impugned. Consequently, the writ petition fails and the same is dismissed. No costs.
17. In view of the dismissal of the main writ petition, connected WMP No.12892 of 1991 is also dismissed.