Madras High Court
K.M. Valliappan vs The Madras Seva Sadan Higher Secondary ... on 9 August, 1995
Equivalent citations: (1995)2MLJ488
ORDER Jayasimha Babu, J.
1. The petitioner who was a Headmaster of the 1st respondent school has, in this writ petition challenged the order issued by the Secretary of the School on 5.6.1995, placing him under suspension with immediate effect.
2. The petitioner's case is that certain charges were levelled against him and a show cause notice was served on him on 28.1.1995, to which he has sent a reply. The school committee at its meeting held on 28.4.1995, having formed the opinion that the reply given by the petitioner was not satisfactory resolved that an enquiry officer be appointed to enquire into the charges levelled against him. Copy of minutes of the meeting held on that date has been produced by the petitioner as also by the respondents. The resolution that has been recorded on that date has been set out, It reads thus:
It is therefore, resolved that an enquiry officer may be appointed to go into the charges levelled against him. The Secretary is hereby authorised to take all such follow up action as may be necessary in this matter.
3. About six months after that resolution was passed, the impugned order was passed by the Secretary. The principal legal submission made for the petitioner is that the Secretary who issued the order had no legal authority to place the petitioner under suspension, as under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, it is the school committee which is vested with the responsibility of taking disciplinary action against teachers and other employees of the private school. It is useful in this context to extract the relevant Section 18.
Functions of the school committee and responsibility of educational agency under the Act:
(1) Subject to the provisions of this Act and the rules made thereunder, the school committee shall have the following functions, namely:
(a) to carry on the general administration of the private school excluding the properties and funds of the private school:
(b) to appoint teachers and other employees of the private school, fix their pay and allowances and define their duties and the conditions of their service: and
(c) to take disciplinary action against teachers and other employees of the private school.
4. The further submission for the petitioner is that the subject of dismissal and other matters are dealt with in Section 22 of the Act and the suspension is under the Act, treated as a matter which is incidental taking of the disciplinary action, as is evident from the provision in Section 22(3)(a) of the Act, which reads thus:
No teaching or other person employed in any private school shall be placed under suspension, except when an inquiry into the gross misconduct, within the meaning of the Code of Conduct prescribed under Sub-section (1) of Section 21, of such teacher or other person is contemplated.
It was submitted by the counsel for the petitioner that suspension can be effected only if an enquiry is contemplated or is being held into a gross misconduct of the person, and such gross misconduct is one coming within the meaning of the Code of Conduct prescribed under Sub-section(1) of Section 21. It was submitted that the suspension is not necessarily called for, nor is it mandatory in all cases where the enquiry is or to be instituted.
5. Learned Counsel relied upon the decision of the Supreme Court in the case of The Marathwada University v. Seshrao Balwant Rao Chavan . It has submitted that if an action is taken by an authority which is not competent to take such action, then the action is void ab initio, and cannot be ratified even at a subsequent stage by the authority which is duly vested with the power (sic) such action. Counsel also relied upon the decision of the Division Bench of this Court in the case of P. Kasilingam v. Bharathiar University and Ors. (1990)1 L.L.J. 73, in which similar view has been taken.
6. Learned Counsel also submitted that there has been friction between the petitioner and the Secretary of the school, on account of the wrongful insistence on the part of the Secretary to collect certain amounts from those seeking admissions, which the petitioner was unwilling to collect. This allegation is however refuted by the respondent- school.
7. For the respondent- school, the allegations of mala fides made by the petitioner as against the Secretary has been denied. On the question of the power of the Secretary to suspend, the contention is that the Secretary has the power to suspend the teachers or other persons employed in the school, and that even it was to be held that the Secretary is not vested with the power, the resolution of the school committee, which resolved to hold the enquiry had also authorised the Secretary to take follow up action. The authority so given to take follow up action, it was submitted, would include the power to suspend, which was incidental to the holding of the enquiry. The further submission was that even if it could be held that the Secretary does not have the power and the resolution of the school committee did not include the authority to the Secretary to suspend, nevertheless by the subsequent resolution passed by the school committee on 27.7.1995, the action taken by the Secretary in placing the petitioner under suspension has been ratified. Learned counsel for the respondent- school in this context relief upon the decision of this Court in the case of Dr. G. Srihari v. Madras Dock Labour Board and Anr. (1989) 1 L.L.J. 105.
8. The substantial question which therefore, to be considered is whether under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, the power to effect suspension is vested solely in the school committee or whether it is a power which is vested in the Secretary. The further question that arises it whether the school Committee can ratify an order of suspension, if such order of suspension had been issued by the Secretary, without specific authority to do so having been given by the school committee. Section 16 of the Act deals with the Secretary of the school committee which reads thus:
16(1) Every school committee shall have a secretary who shall exercise such powers and perform such functions as may be prescribed.
(2) Every person holding office as President, Secretary, Manager or Correspondent of a private school or exercising the powers of secretary under this Act on the date of the commencement of this Act shall be deemed to be a secretary under this Act.
Section 16(1) of the Act empowers the Secretary to exercise such powers and perform such functions as may be prescribed. Rule 13 of the Rules framed under the Act deals with the powers of the Secretary of the School Committee. Sub-rule (3) of Rule 13 requires the Secretary to function for and on behalf of the school committee. Sub-rule (4) requires the Secretary to act on the basis of the resolutions passed at the meeting of the School Committee.
9. The power to take disciplinary action against teachers and other employees of the private schools is however vested not in the Secretary, but in the school committee, by Section 18 of the Act. Section 18 of the Act does not mention suspension, all that is stated in Section 18(1)(c) is disciplinary action against teachers, and other employees of the school.
10. Section 22 has to be read along with Section 18(1)(c) of the Act. Section 22 of the Act deals with dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools. The heading of the section itself clearly indicates that suspension is regarded as a matter which is incidental to the taking of the disciplinary action, which could result in any one of the penalties including dismissal, removal or reduction in rank, being imposed on the person found guilty of misconduct. Section 22(1) of the Act, makes the prior approval of the competent authority mandatory for dismissal, removal or reduction in rank or the termination of the appointment be otherwise. Sub-section (2) deals with the power of the competent authority to grant approval for such action. Sub-section (3) deals with suspension. As noticed already, the suspension can only be when an enquiry is contemplated into a gross misconduct, provided that such misconduct can be regarded as one under the Code of conduct, which has been prescribed under Section 21(1) of the Act. Sections 23 and 24 of the Act provide for appeals against orders of dismissal, removal or reduction in rank or termination. There is no provision for appeal against an order of suspension.
11. The statutory scheme therefore, is that the power to take disciplinary action against teachers and other employees of the institution is vested in the school committee. The power to suspend being a power which is incidental to the taking of such disciplinary action, has also to be held to be a power which is vested in the school committee and not in any other individual. Suspension can only be made when the person against whom an enquiry is contemplated has committed not any misconduct, but gross misconduct in relation to the Code of Conduct prescribed under Sub-section(1) of Section 21 of the Act.
12. The period of suspension should not normally exceed a period of two months and if suspension is sought to be continued beyond that period, the approval of the competent authority is required. Thus, it is clear that suspension effected against the provisions of the Act and such suspension must be effected by the authority competent, only when an enquiry is contemplated into gross misconduct.
13. The person placed under suspension suffers certain disadvantages. The impact of such suspension is that he will cease to have the right to perform his normal official work. In monetary terms, his emoluments get reduced substantially, as he would only be entitled to subsistence allowance, the amount of which is much less than his normal salary. This is yet another reason why the power to suspend should be regarded as one which is incidental to the, taking of the disciplinary action, even if it cannot be held to be a penalty. The Act has vested the power in the school committee and not in the Secretary of the school committee, who is only required to act for and on behalf of the committee, and on the basis of the resolution passed in the school committee, Section 16 of the Act, specifies the powers and functions of the secretary of the school committee with reference to the rules, that may be framed under the Act. The Rules so framed clearly shows that the primary duty of the Secretary is to act on the basis of the resolutions passed at the meeting of the school committee. The action of the Secretary can only be for and on behalf of the school committee to the extent authorised by the committee.
14. Having regard to the statutory scheme, it must be held that the action of the Secretary in suspending the petitioner was one which the secretary was not authorised to do under the terms of statute. The Secretary has no independent power to suspend the teachers or other persons, even when an enquiry is contemplated into a misconduct.
15. Learned counsel for the respondent school submitted that a certain amount of flexibility is essential in internal management, and a rigid view of the statute is not warranted, having regard to the nature of the functions required to be performed by the Secretary. This argument though attractive, cannot be accepted, in view of the statutory scheme, which vests this power in the school committee. The powers of the Secretary are limited by the Rules framed, and the statutory provisions do not empower the Secretary to suspend the officials or the teachers pending enquiry. No rule also has been framed to vest such power in the Secretary.
16. As regards the ratification said to have been done, once it is held that the Secretary of the school committee had no power to suspend and that power was vested only in the school committee, it must follow that in the absence of express authority being conferred on the Secretary to suspend, the suspension effected would be void ab initio. Once that suspension has been declared as void, it must be follow that the school committee should not ratify such a void act. The principle laid down by the Supreme Court in the case of The Marathwada University v. Seshrao Balwant Rao Chavan , would be attracted, considering the fact that the Secretary of the School Committee is required to function in accordance with the Statute, unlike the Board of Directors of the Company, which functions with a considerable degree of freedom, in matters relating to its internal management, and wherein the general body of shareholders have the necessary authority to ratify such actions of the Board, as the general body of the shareholders may regard such actions as necessiating ratification, even though such action was initially not authorised.
17. As observed by the Supreme Court in the case on Marathwada University the principles of ratification apparently do not have any application in regard to the exercise of powers conferred under the statutory provisions. The statutory authority cannot act beyond the power conferred and any action without power, no legal validity, it is ab initio void and, cannot be ratified.
18. The impugned order has therefore to be declared as illegal and void ab initio. The petitioner shall be entitled to all the consequential, benefits flowing from the impugned order being declared as illegal. None of the observation made in this writ petition, in the course of this order are to be taken into account in the enquiry, that may be held against the petitioner and the merits of the case have to be necessarily be gone into by the enquiry officer all that is decided in this writ petition is regarding the power of the Secretary to suspend the petitioner and as to competence the school committee to ratify such an action.
19. It is necessary to advert to the arguments of the counsel for the respondent- school that the resolution of the school committee passed in the month of May, 1995, directing the Secretary to take follow up action would include the power to suspend. It is not possible to agree with the contention, as the follow up action in that context necessarily refers to the following up of the enquiry and not to exercise substantive power to suspend the master and servant relationship, which has the effect of keeping the holder of the office away from his duties, and also deprives him to a substantial extent of his emoluments during the period of suspension.
20. This writ petition is therefore, allowed, but in the circumstances of the case without order as to costs.