Andhra HC (Pre-Telangana)
Keshav Memorial Educational Society, ... vs Government Of A.P., Education ... on 13 July, 1999
Equivalent citations: 1999(4)ALD338
ORDER
1. This is yet another case to establish the fact that the Executive in the State is passing orders without application of mind and without reference to the rule position whereby the lives of the citizens of this Country are made miserable.
2. Chapter XIV of the Andhra Pradesh Education Act, 1982 (for short 'the Act') deals with payment of salaries and allowances to and disciplinary action against employees of private institutions. Under Section 79 of the Act, no teacher or member of the non-teaching staff employed in any private institution shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The proviso to Section 79 says that no order of dismissal, removal or reduction in rank shall be passed under this sub-section against an employee other than an employee of a minority educational institution without the prior approval of such authority or officer as may be prescribed for different classes of private institutions.
3. Wayback in the year 1995 in the case of Rev. Joseph Thumma v. Dist. Educational Officer, 1995 (2) An.WR 117, this Court has taken the view that as the Government did not nominate the competent authority under Section 79 of the Act, the question of taking prior approval before passing an order of removal or dismissal does not arise. Having taken the said view, the order of the appellate authority in that case, whereunder the appeal preferred by the employee was allowed, was set aside. The view taken in the above case was followed in Vemuri Ramakania Sarma v. Adarsha Vidya Samithi, 1996 Lab.lC 1805. Thereafter, the Government seemed to have issued G.O. Ms. No.377-Education (Ser.V) Dept., dated 17-11-1997 in exercise of the powers conferred on it under Section 99 read with Sections 20, 21, 79, 80 and 83 of the Act, whereunder competent authorities were nominated to various classes of institutions. But the Government as well as its subordinates have forgotten about this G.O. completely. In fact, even the Government Pleader was not made known about the orders issued by the Government with the result when a similar case has come up before this Court, a Division Bench affirmed the earlier view in its judgment in Sri Vani Upper Primary School v. Secretary to Govt., , as the said G.O was not brought to the notice of the Court.
4. Having seen the sorry state of affairs, by order dated 15-6-1999, I have directed the Secretary to Government, School Education Dept., to appear before this Court to explain why the Government failed lo nominate competent authorities as required under the Act inspite of three judgments of this Court. Thereafter, the machinery moved and they placed the G.O. Ms. No.377 before this Court. This is how things are happening in the Government. It is for the head of the political executive to see how best the bureaucracy works for the welfare of the citizens of this Country, ours being a welfare State.
5. Coming to the facts of the case, respondent No.4 herein was working as a Junior Assistant in the petitioner-School since 1986 and he was kept under suspension pending enquiry on 21-3-1995. Thereafter, a regular charge-sheet was issued on 3-4-1995 and after completion of enquiry the management of the petitioner-Society having accepted the findings recorded by the Enquiry Officer, seemed to have addressed a letter on 8-9-1995 seeking approval of the District Educational Officer, Hyderabad-3rd respondent herein to dismiss respondent No.4 from service. Having waited for some time, the management issued a show-cause notice to the respondent No.4 on 18-10-1995 to submit his explanation why he should not be dismissed from service in the light of the report of the Enquiry Officer. On 28-12-1995, the Managing Committee of the petitioner-Society having considered the explanation submitted by the respondent No.4 came to the provisional conclusion to inflict the punishment of dismissal from service and having passed the order on 30-12-1995 dismissing respondent No.4, sought for permission of the DEO, on 24-1-1996 thinking that the DEO, is the competent authority to grant permission and the order of dismissal was kept in abeyance for want of approval from the competent authority as required under proviso to Section 79 of the Act and this fact was also informed to respondent No.4. Having received the communication, respondent No.4 herein filed an appeal before the Regional Joint Director of School Education-2nd respondent herein, upon which he seemed to have called for the remarks of the management. The management seemed to have informed the second respondent that the order of dismissal was kept in abeyance for want of approval from the DEO. Thereafter, perhaps on the legal advice in the light of the view taken by this Court in Rev. Joseph Thumma's case (supra), the management by its order dated 6-5-1996 gave effect to the dismissal order passed on 30-12-1995. Aggrieved by the same, respondent No.4 seemed to have filed an appeal before the Minister who seemed to have forwarded the same to the second respondent, who in turn set aside the order of dismissal by his order dated 27-9-1996 on the ground that the management did not obtain prior approval of the competent authority as required under Section 79 of the Act. Questioning the said order, respondent No.4 filed WP No.21860 of 1996 and the same was allowed by this Court on 30-3-1997 and the matter was remanded to respondent No.2 for fresh disposal after giving notice to both the parties as the order dated 27-9-1996 was passed without giving notice to the petitioner herein. On remand and after hearing the arguments of both the parties, respondent No.2 again passed the order allowing the appeal preferred by respondent No.4 by his order dated 6-8-1997. The management carried the matter in appeal to the Government and it passed a cryptic order dismissing the appeal by its order dated 9-2-1999. Aggrieved by the said order, the present writ petition has been filed.
6. Admittedly, the second respondent who was nominated as the competent authority for High Schools under Sl.No.3 of G.O. Ms. No.377, dated 17-11-1997, without knowing this fact, as per the orders of this Court, passed the order on 6-8-1997 whereunder the appeal preferred by respondent No.4 was allowed on the sole ground that the management did not obtain the prior approval of the competent authority as required under the Act. On further appeal, the Government without applying its mind disposed of the matter by way of a one line cryptic order saying that the Government do not see any reason to interfere with the orders of the second respondent. While the order of the Government suffers from non-application of mind, the order of the second respondent in the light of G.O. Ms. No.377, dated 17-11-1997 cannot be upheld, to the extent of going into the merits of the dismissal order by myself sitting under Article 226 of the Constitution of India, I have no option except to remand the matter to the Regional Joint Director of School Education, Hyderabad-2nd respondent herein who was nominated as the competent authority for secondary schools under proviso to Section 79 of the Act for consideration of the request of the petitioner seeking approval for dismissing respondent No.4 from service, on merits and in accordance with law.
7. The next question that falls for consideration is whether the employee-respondent No.4 herein may be allowed to continue under suspension or he has to be reinstated to duty. Admittedly, the management of the petitioner-Society, without knowing the G.O. Ms. No.377, dated 17-11-1997 whereunder competent authorities for various classes of institutions were nominated, filed an application before the DEO, seeking approval of the action taken by it. The DEO, not being the competent authority, he did not choose to pass any order. The events that have taken place are already narrated supra and I do not want to repeat them again here for the sake of brevity. Thereafter, as per the law laid down by this Court, the management gave effect to the order of dismissal passed on 30-12-1995. Hence, the management cannot be found fault with the action taken by it and as such at this stage I cannot direct the petitioner-Society to reinstate the respondent No.4 to duty who is under suspension from 21-3-1995. But the Counsel for the respondent No.4 strenuously contended that the order of dismissal passed by the management cannot be given effect to as it was not passed in the manner in which it has to be passed i.e., with the prior approval of the competent authority and the learned Counsel tried to cite a number of decisions in support of his contention. But, I cannot shut my eyes atleast to the three judgments rendered by this Court wherein the Court simply said that the departmental authorities cannot interfere with the orders passed by the disciplinary authority having failed to nominate competent authorities as required under Section 79 of the Act. In no case this Court held that the order passed by the management is illegal, ab initio void and it cannot be implemented on the ground that the management did not obtain prior approval of the competent authority before passing such orders.' On the other hand, under the orders of this Court the managements were allowed to give effect to the orders passed by them. Hence, I cannot accept the argument of the learned Counsel for respondent No.4 that respondent No.4 is deemed to be in service as the order of dismissal is ab initio void, it cannot be given effect to. Accordingly, the contention of the learned Counsel for respondent No.4 is rejected. But, as the dismissal order was not yet approved by the competent authority as required under Section 79 of the Act, the respondent No.4 shall be deemed to be under suspension till the competent authority passes appropriate orders on the application of the management seeking approval, after going through the entire proceedings.
8. Accordingly, I direct the second respondent to consider the request of the petitioner-Society for according approval to dismiss respondent No.4 from service with reference to the records maintained by the Managing Committee and the enquiry officer in the domestic enquiry and pass appropriate orders on merits and in accordance with law without being influenced by the earlier orders passed by him under the directions of this Court, within a period of four weeks from the date of receipt of a copy of this order. Any order passed by the second respondent shall be a speaking order adverting to various contentions raised by the petitioner-Society. It is open to the second respondent to give an opportunity of hearing to the respondent No.4 if he so wishes. If by any chance the order of the second respondent goes against the petitioner-Society it shall forthwith reinstate respondent No.4 to duty, as for no fault of him the respondent No.4 is languishing under suspension from 21-3-1995. It is also needless to observe that if any subsistence allowance has to be paid to the respondent No.4, the petitioner shall pay the same within a period of two weeks from today.
9. The writ petition is accordingly allowed. No costs.