Orissa High Court
Basanti Mohanty vs State Of Orissa And Ors. on 1 January, 1800
Equivalent citations: 1991(II)OLR141
JUDGMENT B.L. Hansaria, C.J.
1. The petitioner was appointed as an Assistant Teacher with effect from 1-1-1981 by the Vivekananda Education Society (hereinafter referred to as "the Society") She continued-as such till 31-1- 1982. She was reappointed in the same post on 1-8-1932 and was put in charge of morning section of Oriya medium classes in the Vivekananda Vidya Mandir from 1-8-1983 which post she continued to hold till 26-7-1986 on which date she was dismissed from service. Prior to this, she was put under suspension with effect from 21-7-1986. On 24-7-1986, she was asked to submit her explanation within 24 hours relating to some activities which were regarded in the nature of gross indiscipline and anti-institutional. The petitioner denied the charges by filing her reply on 26-7-1986 in which a point was also taken that the principles of natural justice had been violated by giving only 24 hours' time to reply. On the same day her services were terminated by stating that the explanation was not satisfactory.
2. Feeling aggrieved the petitioner preferred an appeal before the State Educational Tribunal as provided in Section 10-A (3; of the Orissa Education Act, 1969 (for short, "the Act"). The learned Tribunal has however dismissed the appeal on the ground that the same is not maintainable because the educational institution in which the petitioner was employed having been established and administered by the minorities as contemplated by Art. 30(1) of the Constitution, the provisions of Act including Section 10-A (3) have no application because of what has been stated in Section 2 of the Act. The petitioner has assailed this order of the Tribunal as well as her order of termination, in this application under Arts. 226 and 227 of the" Constitution.
3. Shri Patnaik appearing for the petitioner his advanced these arguments :
(1) The institution in question is not a minority institution as contemplated by Art. 30(1) of the Constitution.
(2) Section 2 of the Act is hit by Art. 14 of the Constitution as it excludes application of all the provisions of the Act to the minority educational institutions.
(3) The appeal Under Section 10-A(8)) of the Act was maintainable.
(4) Even if the appeal before the Tribunal be not maintainable, the petitioner can invoke the writ jurisdiction of this Court in assailing the order of termination, (5) The order of termination being hit by the principles of natural justice is illegal and, therefore, the petitioner is entitled to reinstatement.
4. POINT No. 1 :_lt is the admitted position that the school in question has been established and is being administered by the Society. The Society was formed to foster academic activities and to help the poor students in pursuit of their studies to undertake cultural activities in the town of Rourkela. Under the rules and regulations of the Society, any citizen of India, irrespective of caste, creed and sex, is eligible to be the same cannot be said to be a minority institution. The question however is not whether the Society is a minority institution, 1 he point for decision is whether Vivekananda Vidya Mandir, whieh has been admittedly established and is being administered by the Society can be said to be a minority institution as contemplated by Art. 30(1) of the Constitution. As to this Shri Rath appearing for the Society draws our attention to certain documents which were filed before the Tribunal. The first of such document is at page 59 of the records which, is an office memo. Bearing No. 3442 dated 30-5-1979 of the office of the inspector of Schools, Sundargarh Circle which states about provisional recognition of Vivekananda Vidya Mandir (Bengali Medium). He has then referred to a communication of the Government of West Bengal addressed to the Secretary to the Govt. of Orissa, Education Department, as at page 61 of the records, which speaks about the school having been established and run by linguistic minorities for a community of students who speak a minority language. There is another document at page 63 of the records, which is a letter of the Government of Orissa in the Education and Youth Services Department addressed to the Director of Secondary Education, Orissa which has stated that after careful consideration, the Government had been pleased to recognise the status of Vivekananda Vtdya Mandir as a minority educational institution. Reference may also be made to a communication from the Assistant Commissioner of Linguistic Minorities in India, as at page 60 of the records, which speaks about the School in question being a Bengali medium school. These documents leave no manner of doubt that the Vivekananda Vidya Mandir has to be regarded as a minority institution. The first submission of Shri Patnaik cannot, therefore, be accepted.
5. POINT Nos. 2 & 3 :__To appreciate these submissions of Shri Patnaik, we may note Section 2 of the Act as amended by Act 6 of 1984.
"2. Act not to apply to certain institutions: Nothing contained in this Act shall apply to educational Institution of their choice established and administered by minorities having the right under Clause (1) of Art. 30 of the Constitution:
Provided that the State Government may by notification apply or adopt to an educational institution established and administered by minorities, such of the provisions of the Act, so however that the rights under Art. 30 of the Constitution are not infringed."
It may be staged that the proviso to Section 2 was inserted in the Act by an amendment affected by Act 6 of 1984 which came into force with effect from 10 2-1984. But then it is an admitted position that no notification has been issued by the State Government applying any of the provisions of the Act to the minority institutions. The position thus is that none of the provisions of the Act applies to minority institutions. By strongly relying on Frank Anthony Public School Employees' Association v. Union of India, AIR 1987 SC 311, it is contended by Shri Patnaik that non-application of even the beneficial provisions like Section 10-A (3) has to be regarded as discriminatory in view of what has been stated in the above decision, and so, we should declare Section 2 as violative of Art. 14 of the Constitution, as were some sections of the Delhi Education Act declared discriminatory in Frank Anthony.
5.1. May it be pointed out that in the aforesaid decision, a pro- vision for appeal confined to a limited class of cases as is in the present case to a Tribunal consisting of a person who has held office as a District Judge (He member of the tribunal in the case at hand is also required be a member of the Orissa Superior Judicial Service Senior Branch) as stated in Section 24-A(2) of the Act) was held to be not violative of Article 30(1) of the Constitution. It is, therefore, urged by Shri Patnaik that even if all the provisions of the Act may not be made applicable to minority institutions, Section 10-A(3) which deals with appeal to the Tribunal has to be applied to these institutions; otherwise, Section 2 would be discriminatory to this extent.
5.2. We have duly considered the submissions of Shri Patnaik. The contention being to declare Section 2 of the Act as violative of Art. 14, we would have agreed with the learned counsel, though not whole hog, but to the limited extent of excluding some of the beneficial provisions of the Act from application to the minority institutions. But then the proviso to Section 2 stands in our way of striking down the main part of the section as violative of Art. 14. The proviso has really saved the section from being discriminatory. But it is regrettable that no notification as contemplated by the proviso has yet been issued by the State Government. According to us, ft is high time that such provisions of the Act which do not violate An. 30 of the Constitution are made applicable to minority institutions as well, 5.3. The further question is, can this Court in exercise of its writ power state that among other provisions of the Act Section 10-A(3) would apply to the minority institutions also though no notification to that effect as permissible by the proviso has been issued by the State Government ? As presently advised, we "are of the view that such a thinking would be out- side our purview as the proviso has given this power to the State Covt. What we can reasonably do is to direct the State Government to exercise its power under the proviso and to apply such provisions of the Act as do nor infringe Art. 30 of the Constitution to the minority institutions as well. But then of our own, we cannot say that Section 10-A (3) is applicable to minority institutions also.
5. 4 The position which thus emerges is that we cannot strike down Section 2 even partially in view of the proviso inserted in 1984, nor can we state that Section 10-A (3) applies to minority institutions, because of which the appeal before the Tribunal was maintainable.' For these reasons, we do not find ourselves in a position to accept the second and third submissions of Shri Patnaik.
6. POINT No. 4 :__This takes us to the question as to whether the petitioner could have approached this Court directly in its writ jurisdiction seeking redress. So far as this aspect of the case is concerned, learned counsel for both sides have relied on a recent Bench decision of this Court in Antaryami Rath v. State of Orissa, 70(1990) CLT 642. That decision dealt with the question as to whether private educational institutions are amenable to writ jurisdiction of this Court. Two reasons were given for answering the question in the affirmative- The first was that these institutions ha,ve to be regarded as statutory bodies because of the definition of the expression "Existing Educational Institutions" given in Section 3(f) of the Act to mean "any aided, recognised or Government educational institution established before the commencement of this Act and continuing as such at such commencement" and because of the provision in Section 4 (4) of the Act stating that all existing educational institutions shall be deemed to have been established in accordance with this Act. Shri Rath contends that this reason is not available in the present case because of none of the provisions of the Act being applicable to a minority institution like that of Vivekananda Vidya Mandir. Shri Patnaik counters this submission by stating that recognition and grant-in-aid are not creatures of the Act inasmuch as recognition is dealt with by the Board of Secondary Education's regulations and grant-in-aid is governed by provisions independent of the Act. Though then is force in this submission of Shri Patnaik, yet we do not think if we would be justified on holding that the Society is amenable to writ jurisdiction of this Cour because of it being a statutory body which conclusion was arrived at in Antaryami by referring to the aforesaid provisions of the Act.
6.1 The aforesaid, however, is not enough to close the doors of this Court inasmuch as in Antaryami it had also been held after referring to Shri Anadi Mukta Sadguru S M. V. S.J. M. S. Trust v. V. R. Rudani. AIR 1989 SC 1607, that the word "authority" in Art 226 would not be confined only to statutory authorities but would cover any other person or body performing public duty. It was then held that there cannot be any doubt that private education ill institutions also perform public duty inasmuch as they perform a most useful social function in imparting education and that too in accordance with the curricular prescribed by respective statutory bodies. So, it was observed that they discharge a very important public (unction. It was, therefore, concluded that private educational institutions would be amenable to the writ jurisdiction of this Court on the ground that they perform public duty. (See para 7 of the judgment).
6. 2 In view of the above, we would accept the fourth submission of Shri Patnaik and would hold that the petitioner could have approached this Court under Art. 226 of the Constitution in assailing the order of termination.
7. POINT No. 5 -This leaves for consideration the o question of relief. Two points need determination in this context. The first is whether the order of termination was violative of the principles of natural justice and the second, if so, whether this Court can set aside the' order of termination on that ground in a petition under Art. 226 of the Constitution.
7.1 So far as the first aspect of the matter Is concerned, we entertain no doubt inasmuch as the charge-sheet which is . dated 24-7-1986 (and which was received by the petitioner on 25-7-1986) had given 24 hours' time for submitting explanation. The time within which the explanation was required would itself show that the petitioner did not get reasonable opportunity to have her say in the matter. This apart, on the face of the denial of the charges, the order of termination passed on 26-7-1986 without any inquiry was definitely in violation of the principles of natural justice, It may be stated that from the reply to the charges it appears that the petitioner was the General Secretary of the Association because of which it was stated that the charge was vindictive in nature.
7. 2 The next question is when the termination is in violation of the principles of natural justice, whether a writ Court can grant relief of reinstatement 1 As to this, Shri Rath strongly relies on the view expressed in Antaryami wherein also the termination orders had been issued without holding any inquiry, despite which this Court held that a writ Court could not grant the relief of reinstatement. The view was taken because of what has been held in a long line of decisions of the Supreme Court that relief of reinstatement can be granted only in three exceptional cases-the same being ; (1) where a public servant is sought to be removed from service in contravention of Art. 311 of the Constitution; (2) where a workman governed by industrial law is dismissed from service ; and (3) where in terminating the service of the incumbent the statutory body acts in breach or violation of the mandatory provisions of the statute. It is the third exception which was relied on in Antaryami and is being pressed in this case also.
7.3 In Antaryami, though the services of the two teachers were terminated without holding any inquiry, all that was urged was that there was breach of the mandatory provision of Rule 287 (28) of the Orissa Education Code which was given statutory status by Section 27(4) of the Act. As this Court was, however, not satisfied about the breach of that rule, it was held that the termination was not in violation of any statutory provision.
7.4 Shri Patnaik has, however, contended that as natural justice has been regarded to be a part of Art. 14 of the Constitution, violation of natural justice would amount to violating the requirement of Art. 14 itself. It is, therefore, urged that in the present case there was violation, not to speak of a statutory provision, but of a constitutional provision, which is suprema lex. which, therefore, stands on a higher pedestal than statutory law. It is apparent that violation of constitutional provision would proprio vigore attract the third of the aforesaid exceptions, and more so, if violation is of fundamental right, as in this case.
7. 5 As to natural justice being a part of Art 14, there is nothing to doubt in view of two Constitution Bench decisions of the Apex Court__ the same being Union of India v. Tulsiram Patel, AIR 1985 SC 116 (oara-72) and Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 (paras 42, 109 and 110/
7. 6 In the aforesaid view of the matter, we would hold, departing from the view taken in Antaryami, that in the case of a termination hit by the principles of natural justice, it would be open to a writ Court to grant the relief of reinstatement. As violation of the principles of natural justice in the present case is writ large on the face of the record, we are of the opinion that the order of termination merits to be set aside.
8. In the result, we allow this petition by setting aside the order of termination and by ordering reinstatement of the petitioner with all service benefits. Necessary order in this regard shall be passed within a period of one month from the date of receipt of writ from this Court. In the facts and circumstances of the case, we make no order as to costs,
9. Before parting;, we would stite that we have noted with dismay that though a proviso was addec to Section 2 of the Act in 1984 giving power to the State Government to apoly such of the provisions of the Act to minority educational institutions which do not infringe the right conferred by Art. 30 of the Constitution, the power has remained unsheathed. According to us, it is high time that the power conferred by the proviso is exercised and the employees of the minority institutions also reap the advantage of those provisions of the Act which do not violate Art. 30 of the Constitution. We, therefore order to issue a writ in the nature of mandamus to the State Government to consider within a period of three months as to which provisions of the Act should be made applicable to the minority educational institutions We are pissing- this part of the order keeping in view what was state in Aeltemash Rein v. Union of India, AIR 1988 SC 1768.
D.M. Patnaik, J.
10. I agree.