Madras High Court
Nirmala vs N.Krishnaswamy Mudaliar on 6 March, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.03.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.34169 of 2007 Nirmala ... Petitioner Vs. 1.N.Krishnaswamy Mudaliar Higher Secondary School, Rep. By its Secretary, Sainathapuram, Vellore - 632 001. 2.The Chief Educational Officer, School Education Department, Collectorate, Vellore. ... Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the first respondent to provide the petitioner duty and to pay the petitioner subsistence allowance from 12.01.2005 to 11.03.2005 and salary from 12.03.2005 till duty is provided. For Petitioner : Mr.V.Ajoy Khose For Respondents : Mr.T.V.Krishnamachari for R1 Mr.M.Dig Vijay Pandian, AGP for R2 O R D E R
The petitioner has come forward to file the present writ petition seeking for a direction to provide her duty and to pay the subsistence allowance from 12.01.2005 to 11.03.2005 and salary from 12.03.2005 till she was restored to service.
2. In the writ petition, notice of motion was ordered on 31.10.2007. On notice from this Court, the first respondent has filed a counter affidavit dated 10.11.2007 together with typed set of documents. On behalf of the Chief Educational Officer, viz., the second respondent, proceedings dated 18.06.2008 was also produced. The writ petition was subsequently admitted on 03.11.2010. Pending the writ petition, the application for interim direction came to be dismissed.
3. The petitioner is working as Graduate Assistant in Tamil in the first respondent school. She joined the school on 10.12.1990. The first respondent school is a recognised private school governed by the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder. The petitioner was placed under suspension with effect from 12.01.2005 pending enquiry into certain charges. A charge memo was issued on 17.01.2005 and again on 05.03.2005. She submitted her explanation on 31.01.2005 and 29.03.2005 denying the charges. Thereafter, an enquiry was conducted and she was given a show cause notice on 22.03.2006. The petitioner contended that she was not paid subsistence allowance and the charges were all false. Since the first respondent wanted to dismiss the petitioner from service, they sought approval from the competent authority.
4. When the approval was not forthcoming, the petitioner earlier filed a writ petition before this court being W.P.No.20161 of 2005 seeking to challenge the order of suspension. That writ petition was allowed by this Court by an order dated 27.02.2006. This Court held that keeping a Teacher under suspension beyond two months and thereafter, after getting prior approval of the competent authority for another two months, the question of further keeping the teacher under suspension will not arise. Hence, directed the petitioner to be restored to service.
5. Aggrieved by the same, the first respondent filed a writ appeal being W.A.No.504 of 2006 and that writ appeal was disposed of by an order dated 07.07.2006. The Division Bench in paragraph 5 held as follows:-
"5. ...As per Section 22(3) of the Act, the suspension could be valid only for a period of four months altogether. However, the fact remains that the Management had already approached the educational authorities on 21.04.2005 for approval for extension of suspension and the said request is still pending and the same should be disposed of one way or the other. In the circumstances, we are inclined to dispose of the writ petition with a direction that the first respondent/teacher is entitled to the subsistence allowance for the period from 12.1.2005 to 11.3.2005 from the State. The subsistence allowance for the further period of two months i.e. From 12.03.2005 till 11.05.2005 shall be paid presently by the management and such payment shall depend upon the orders that may be passed by the Chief Educational Officer, School Education Department, Vellore on the application of the Management dated 21.04.2005 seeking for approval for extension of period of suspension. In case, the approval is granted, the Management is entitled to claim and receive subsistence allowance from the State. The subsistence allowance to which the first respondent/teacher is entitled from 12.05.2005 till any final decision is taken on the disciplinary proceedings shall be paid only by the management."
6. Even thereafter, since subsistence allowance was not paid, the petitioner made representation. According to the Management, they have paid subsistence allowance as per the direction issued by the Division Bench and photocopy of the Demand Draft representing Rs.75,159/- being the subsistence allowance paid to the petitioner is also produced.
7. However, the fact remains till date the approval for dismissing the petitioner has not been forthcoming in terms of Section 22(1) of the Tamil Nadu Private Schools (Regulation) Act, 1973. It is the claim of the Management that necessary remarks have been forwarded to the second respondent and it is for the competent authority to pass orders. On the other hand, in the communication dated 18.06.2008, the second respondent has stated that unless subsistence allowance is paid, the question of granting approval will not arise.
8. In the counter affidavit filed by the first respondent, it was stated that the petitioner shall be paid subsistence allowance in terms of F.R.53(1)(a). it was further stated that temporarily Tamil Pandit has been appointed in the place of the petitioner to teach Tamil by paying salary from the school fund. Their request for grant of approval is pending before the Chief Educational Officer.
9. The learned counsel for the petitioner placed reliance on the judgment of this Court in Dr.I.Ismail v. MSS Wakf Board College through the Chairperson reported in 2004-2-L.W. 270, to contend, while interpreting similar provision under Section 19(3)(b) of the Tamil Nadu Private Colleges Regulation Act, this Court in paragraph 11 held as follows:-
"11. In this case, the nature of the complaint also justifies the apprehensions of the respondent that the petitioner should not be allowed to attend office as the "Principal". There is support for the respondents even in the language used in Section 19(3)(b) since it only says that the teacher shall be deemed to have been restored. Perhaps advisedly the legal fiction was introduced instead of using the words "the teacher shall be restored". The Legislature perhaps foresaw a situation where the teacher would not be permitted to work but would be entitled to subsistence allowance at the rate prescribed if the period of suspension is prolonged. Of course this point was not argued and therefore, no finding is given with regard to the effect of the word "deemed" in the section. The order of suspension cannot be quashed since the failure to extend the period of suspension by giving reasons will not render the order void ab initio. It will only result in the petitioner being deemed to have been restored as "Principal". The mandamus asked for cannot also be granted as prayed for since the period of suspension has not been extended beyond the period of two months. However, the petitioner will be entitled to his full emoluments as if he has been restored to service on the expiry of two months from 27.08.2003. But the respondent is entitled to restrain the petitioner from discharging his duties as "Principal"."
10. It must be noted so long as the approval is not obtained from the competent authority, no order can be final. If any order is passed imposing punishment of dismissal, such dismissal order without any approval will become void ab initio as held by this Court in THE AYYA NADAR JANAKI AMMAL COLLEGE V. A.PANDIAN & ORS reported in 1996 2 CTC 337 = 1996 WLR 252. Para 23 reads as follows:-
"23. Learned counsel for the first respondent is well-founded in his submission that the order of termination of the service of the first respondent is void ab initio. As already seen, he relied on following decisions (1) K.Rajeswari v. T.P.Sankaran and Another (1997 T.L.N.J.537);(2)Selvaraj v.Jesudasan (1983 (II) M.L.J.406 = 96 LW 348);3 R.Jesudasan v. K.Selvaraj & Others (1989(1) L.L.J.470=1989-2-L.W.86);4.Rajaji Middle School v. Mariapushpam (1987 Writ.L.R.333); 5.M.Committee v. S.D.Gupta (1974 A.L.J.465 = 1974 L.I.C.page 1036);6.Prabhu Narain v. Dy.Director, Education, Varanasi (1977 Lab.I.C.1095) and 7. Rama Bhadoor and another v. Thungabadra Sugar Works (P) Ltd (1979 S.L.J.489). In these cases, it has been held that where there is a termination of violation of the provisions of the Act, the order of termination contrary to the provisions of the Act is only a null and void order and it has no effect at all."
11. Pending such approval the power of the management to keep a teacher under suspension is restricted by Section 22(3) of the Tamil Nadu Recognised Private School (Regulation) Act. Only for two months that power can be exercised. Even assuming that an extension of time sought for from the competent authority and if it was granted, that too for two more months thereafter, there will be a deemed restoration of the teacher.
12. A learned Judge of this Court (M.Srinivasan,J. as he then was) while interpreting Section 22(1) r/w proviso to 22(3)(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act has held that if an enquiry is over and approval application is pending and no decision was taken by the Government, it will result in a deemed grant of approval. The matter was taken before the Division Bench of this Court vide its judgment in T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, Tirupparaithurai, Tiruchirapalli District & Ors reported in 1998 WLR 641. In that case the Division Bench presided by D.Raju,J.(as he then was) held that the decision given by the learned Single Judge was not correct. In that context, the Division Bench in paragraph 4 held as follows:-
"4.The decision in 1996(II) CTC 577 also arose under the Act which is under our consideration and the respondent before the Division Bench appears to have placed a strong reliance upon the decision of the learned single Judge which is under challenge in this appeal before us. The judgment which is the subject matter of appeal before us has also been reported in 1990 Writ L.R.62 (The Secretary, Sri Ramakrishna Vidhyalayam High School, Tirupparaithurai v. The State of Tamil Nadu and others.) In such circumstances, the Division Bench was obliged to consider the legality and propriety of the conclusions arrived at by the learned Single and ultimately came to the conclusion not only to disapprove the view taken, but also to over-rule the same in the following terms.
"10)We have carefully considered the submission of the learned counsel for the 3rd respondent based on the ratio of the above decision. On the facts, we find that in the case before the learned Single Judge in the decision reported in Secretary, Sri Ramakraishna Vidhyalayam High School V. The State of Tamil Nadu and Others, 1990 Writ L.R.62, after a particular time the school management passed the order of termination itself and served it on the teacher concerned on the view that the management has waited for sufficient time and since the approval was not forthcoming they are entitled to serve the order of termination. On facts, it may be noticed that in the case before us no such final order has been passed and communicated to the appellant and consequently it cannot be contended that the disciplinary proceedings have been properly concluded culminating in an order of punishment. Even that apart, with great respect to the learned Single Judge, we are unable to either subscribe to or approve the view taken as expressed in paragraph 38 of the decision referred to supra. The statutory power of approval like the one conferred on the competent authority under Sec.22(1) of the Act to approve or refuse approval of termination of a teacher or other person has been devised as an essential check on the arbitrary exercise of 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 conferred with a power 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. The power conferred under Sub-sec(1) of Sec.22 of the Act which 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. The reasoning of the learned single Judge that if the competent authority under sec.22 of the Act does not exercise the power combined with the duty to pass orders on an application for approval within reasonable time he loses his jurisdiction over the matter and he shall not exercise the same thereafter to the prejudice of the School management cannot be justified while dealing with the nature, purpose and character of the powers conferred upon the competent authority under the said provision which would appear to be meant more to protect the teaching or other staff or an aided school. Approving such a ratio merely on the basis of a possible prejudice to the School management would mean totally ignoring the prejudice and damage that may be caused to the teacher or other person concerned for whose protection such stipulation has been made providing for prior approval before termination of services. If there is any lapse or indifferent attitude exhibited by the competent authority, it is always open to the school management concerned to move the appellate or revisional authorities or this Court under Art.226 of the Constitution of India to direct the competent authority to discharge his duties expeditiously within a reasonable time. But that is not the same thing as to completely deny the statutory power of approval conferred upon the competent authority so as to efface the statutory stipulation once and for all. Doing so would amount to rewriting a specific statutory provision with a definite purpose in public interest. Further, we are also unable to approve the view expressed by the learned Single Judge that through Sub-sec.(1) is not fully satisfied in cases of the nature dealt with by the learned single Judge, it will be a case of substantial compliance with the provisions of Sub-sec.(1) which will be sufficient in the eye of law to uphold the validity of termination. The theory or principle of substantial compliance can be applied only in cases or situation which relates to more observance of certain procedural formalities. The provision contemplated for securing the approval of the competent authority before effecting termination of services 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 services of a teacher or other person employed therein at its whim and a corresponding right in the teacher or other person employed in the institution. To put it more crisply it is a condition precedent contemplate 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. Consequently, we do not approve the ratio contained in paragraph 38 of the decision reported in Secretary, Sri Ramakrishna Vidhyalayam High School v. The State of Tamil Nadu and others, 1990 Writ L.R.62 and over rule the same."
13. Apart from the passage quoted above, the Division Bench referred to several other judgments under the Private Colleges and Private Schools and in paragraph 6 the Division Bench had observed as follows:-
"6. .... We may also add that if the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any other manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the powers as also its exercise by the management under Section 22 of the Act."
14. In view of the above, the writ petition stands allowed. No costs. The first respondent is directed to restore the petitioner to service and pay full wages due to her two months from the date of initial suspension. The petitioner shall be restored forthwith. However, this will be without prejudice to the outcome of any approval to be granted by the competent authority.
svki To The Chief Educational Officer, School Education Department, Collectorate, Vellore