Madras High Court
The Ayya Nadar Janakiammal College vs A. Pandian And Ors. on 25 July, 1997
Equivalent citations: (1997)IILLJ885MAD, (1998)IMLJ14
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
ORDER A.R. Lakshmanan, J.
1. This writ Appeal is directed against the order dated June 26, 1996 of N. Y. Balasubramanian, J., in w.p. No. 13013 of 1985. The petitioner leollege is the appellant.
2. The Ayya Nadar Janaki Ammal College at Sivakasi, filed the writ petition to call for the records of the 3rd respondentl]Private Colleges Appellate Tribunal relating to its proceedings dated September 17,1985 made in Second Appeal (TAC) No. 4 of 1982 and quash the same.
3. The short facts that are relevant for the disposal of this appeal are as follows:-The lst respondent A. Pandian was appointed as Dem-onstrator in Chemistry in a temporary vacancy on August 6, 1977. The order of appointment clearly said that the appointment was purely temporary for 1977-78. On the expiry of the one year period, his services came to an end on the closure of the college. He was paid vacation salary upto June 15, 1978. For the year 1978-79, a regular vacancy for the post of Demonstrator arose and the lst respondent was appointed on probation for two years with effect from July 5, 1978. An agreement in Form 7-A was entered into between the appellant and the lst respondent. As his work was not found satisfactory, the probation period was extended by one year with effect from July 5, 1980. This extension was challenged by the 1 st respondent in appeal before the 2nd respondent. The 2nd 21 respondent dismissed the appeal. In the returns submitted by the appellant to the University, the Ist respondent was shown only as a probationer. On June 29, 198 1, the appellant college committee meeting was held to decide the service of the lst respondent and the majority of the members present decided to discharge him. On July 1, 1981 the order of termination of the I st respondent from service with effect from July 4, 1981 was issued.
4. The 1st respondent preferred an appeal to the 2nd respondent under Section 20 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 (hereinafter referred to as the College 34 Act). Tle said appeal was contested by the appellant by filing a counter statement. The 2nd respondent dismissed the appeal on December 26, 1981. A second Appeal was filed before the 3rd respondent/private colleges Tribunal ' The 3rd respondent held that the Ist respondent is 4(only a probationer and that the order of termination is not penal but only a termination simpliciter and that even in the case of termination si"liciter, prior approval of the competent., authority is necessary. Being aggrieved by the order of the 3rd respondent, the management of the college preferred the writ petition to quash the order of the 3rd respondent dated September 17, 1985 made in Second Appeal TAC No..4 of 1982.
5. The following grounds were raised in the writ petition :
a) The interpretation given by the 3rd respondent on the words "or otherwise terminated " occurring in Section 19(1) of the Act is unsustainable in law and without any substance.
b) The 3rd respondent ought to have read the said words in ejusdem geneds with the preceding words "dismissed, removed or reduced in rank" and held that only punitive termination will come within the ambit of the said words.
c) A specific provision for getting prior approval of the competent authority in the agreement in orm -prescribed under the Tamil Nadu Private Schools (Regulation) Rules, 1974, is conspicuously absent in dw College Act.
6. A counter affidavit was filed on behalf on the 2nd respondent by its Deputy Secretary, Education Department.
7. Before the learned Judge, elaborate arguments were advanced by the learned counsel ap'ther side. The learned Judge, on a pearing on ei detailed consideration of the rival submissions and also on a consideration of the authorities cited, came to the conclusion that Section 19 of the College Act would squarely apply to the facts of the case on hand and therefore, the prior approval of the competent authority is a condition precedent before putting an end to the services of the 1 st respondent. According to the learned Judge, since admittedly the prior approval of the competent authority was not obtained by the appellant before terminating the services of the I st respondent, the order of termination does not take effect or become effective unless approved by the competent authority and hence the order of the 3rd respondent does not require interference. With the result, the writ petition was dismissed by the learned Judge. The said order is under challenge in this Writ Appeal.
8. We have heard the arguments of Mr. R. Thiagarajan, learned Senior Counsel for the appellant, Mr. K. Chandru, learned counsel for the Ist respondent and Mr. K. P. U. Thu-lasiraman, learned Special Govt. Pleader (Education) for Respondents 2 and 3.
9. There is no dispute that the lst respondent was a probationer at the relevant point of time. As already seen, the 3rd respondent recorded a finding that the lst respondent was only a probationer and that the order of termination is not penal but only a termination simpliciter and that even in the case of termination simpliciter, the prior approval of the competent authority is necessary.
Hence, by order dated September 17,1985, the 3rd respondent allowed the Second Appeal and set aside the order of the appellant dated July 1, 1981. The same was challenged by the 2(appellant in the writ proceedings. The learned Judge referred to the observations of the Supreme Court in The All Saints High School v. The Gow. of Andhra Pradesh for concluding that it is the decision of the Supreme Court on the scope and ambit of Section 3(1) of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975, which is in pad mweria with Section 19 of the College Act, and that the 3rd respondent/ 3, Appellate Tribunal had incorporated Section 19 of the College Act in its own terms and on that basis came to the conclusion that the order of termination of the I st respondent cannot be sustained in law. The learned Judge had also held that the expression "otherwise" is an expansive term to include all cases other than the cases of dismissal, removal or reduction in rank and that Section 19 of the College Act is an additional protection.
10. The only question for our consideration in tifis writ Appeal is, whether the prior approval of the competent authority under Section 19(1) of the College Act is necessary in the case of termination of a probationer, when Form 7-A continuing the conditions does not make the prior approval of the competent authority nee-enary for termination of the probationer as in the case of the rules relating to the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as the Schools Act).
11. Mr. R. Thiagarajan, learned Senior 5 Counsel appearing for the appellant, made a comparative study of the two Acts (Schools Act and College Act) and submitted as follows: The Schools Act was passed in the year 1973. The rules thereunder were framed on November 29, 0 1974. The rules also comprise forms of agreement to be entered into between the School Committee and the permanent teachers. One of the clauses in that agreement reads as follows :
"Termination of the probationer shall be done only with the previous permission of the competent authority specified in Rule 17"
Placing reliance on the specific reference in the statute (Schools Act) requiring permission of the competent authority in the case of termination of a probationer, Mr. R.Thiagarajan submitted that in the statutory form prescribed under the rules framed under the College Act, for entering into agreement between the College Committee and the teacher concerned, there is no specific clause relating to terrnination of a probationer with the previous permission of the competent authority as is found in the Schools Act and the rules made thereunder. He submitted that when the Government passed the College Act, it must be presumed to have knowledge of the Schools Act and the rules carried thereunder and that the absence of the requirement of the prior approval of the competent authority for termination of a probationer in the case of College Act, is deliberate and conspicuous. According to him, Statutory Rule in the College Act bears intrinsic evidence to support the conclusion that the prior ap a] of the ,prov competent authority in the case ot termination of a probationer under Section 19(1) of the College Act is not necessary.
12. Mr. K. Chandru, learned counsel for the I st respondent submitted that the termination of a probationer will come within the definition of Section 2(oo) of the Industrial Disputes Act, 1947 and it will be a case covered by the term ecany termination whatsoever" found in ft said Section of the Industrial Disputes Act, 1947.
13. Arguing contra, Mr. R. Thiagarajan, learned Senior Counsel, submitted that for appreciating the status and the position of a probationer under the College Act, the prescriptions made in the rules and the forms regarding the conditions of service must hold the field and the les followed in deciding cases under the esitprial Disputes Act cannot at all be imported, as has been held in the decision reported in R.Jesudasan v. K.Selvaraj (1989-I-LLJ- 470)(Mad). According to Mr.R.Thiagarajan, Form 7-A under the College Rules cannot be brushed aside as a mere guideline. It is a statutory prescription made under the Rules and hence, full effect must be given to it.
14. Mr. R. Thiagarajan submitted that there are three kinds of employment viz., (a) Government employment; (b) Public employment; Private employment. In order to highlight the position of an employee in Government employment, he cited the decision reported in Roshan Lal Tandon v. Union ofindian (1 968-1LU-576) (SC), wherein in para 6 it has been held as follows at P 582:
"It is true that the origin of Government Service is contractual. There is an offer and 30 acceptance in every case. But once appointed to his post or office the Government servant acquires a status'and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. oc But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, some in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are flxed by the law and in the enforcement of these duties society has an interest".
15. Mr. R. Thiagarajan then relied on the decision reported in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975-I-LU-399) (SC) for the case of public employment. The status of employee is very well brought out in the said judgment. In that decision, the Supreme Court has held thus at p 417:
"The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. However, 5 these employees are not servants of the Union or the State. These statutory bodies are 'authorities' within the meaning of Article 12. The employees of these statutory Corporations are entitled to claim protection of Articles 14 and 16".
16. In so far as private employment is concerned, according to Mr.R.Thiagaragan, it is purely one of contract. So far as the appellant is concerned, it is governed by the provisions of the College Act. The rules framed thereunder provide for the form in which the contract is to be entered into. The contract does not stipulate, to in the case of termination of a probationer, that the prior approval of the competent authority is necessary in the case of colleges as in the case of schools. Therefore, it is submitted by Mr.R.Thiagarajan, that if the requirement of the competent authority is insisted upon in the case of private colleges, then, it will amount to rewriting the very statutory form itself and consequently legislation by Court.
17. Mr. R. Thiagarajan drew our attention to a passage in Blacks Law Dictionary and particularly the term "probation as applied to Teachers ", which means, that the teacher is on trial, that his competence and suitability remaining to be finally determined. Ayyar's Judicial Dictionary also defines a'probationer' as follows :
"Probationer.. A probationer holds only a temporary appointment till he has proved himself to be fit to the permanent appointment (Nand Shankar v. State of Rajasthan, ).
Probationer on probation: Probation connotes a period of trial. On successful completion of the probation, the employee is confirmed in the appointment held by him. Obviously, the purpose of putting an employee on probation is to fmd out his suitability to hold that post substantively or permanently in the sense that he thereafter gets a right to hold the post. The fitness or suitability had to be judged, at the time of confirmation and not, unless any specific rules or term of contract of service so provides, as on the date of original appointment (Shri Ajudhis Nath Dhingra v. Union of In-&a 1976 ALL SL 1, 357 (Delhi) Full Bench) ".
18. The Supreme Court in the decision repoftd in Sanuher Singh v.State of Punjab (1974-II-LLJ-465) while considering the status of aprobationer, observed asfollows atp.479:-
"The position of a probationer was considered by this Court in Purshottam Lal Dhingra v. Union of India, (1958-I-LLJ-544). Das, C.J. speaking for the C said that where a person is appointed to a permanent post in Government service on probation the termination of his service during & or at the end of the period of probation will not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the ost, for he has no such right. Obviousi sucg a termination cannot be a dismissy, removal or reduction in rank by way of punishment ......... Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job, and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view 0 to give him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enqyiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2), he can claim protection"
Mr. R. Thiagarajan also relied on the judgmerit of the Supreme Court reported in Purshottam Lal Dhingra v. Union of India (supra) wherein the Supreme Court considered the position of a probationer. 'Re passage relied on by Mr.R.Thiagarajan in this decision has been quoted by the Supreme Court (supra) and the said passage is extracted while dealing with the decision reported (1 974-II-LLJ--465) (Supra).
19. Mr. R. Thiagarajan then relied on the decision reported in The Union of India v. OP. S.Bhalt (1981-I-LLJ-485) wherein the Supreme Court has held as follows at p 487-488 :
"The law in relation to termination of service of an employee on probation is well settled. If any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order '0 by way of punishment, there will be no question of the provisions of Article 311 being attracted .... Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be tenned as penalty or punishment. Mijs principle has been clearly enunciated and reiterated in the case of Oil and Natural Gas Commission v. Dr.Md.S.Iskander Ali (1980-II-LLJ-155) (SC)".
20. In conclusion, Mr. R. Thiagarajan said that a probationer does not have the right to hold the post and no right inheres in him and hence, it cannot be concluded that the requirement of Section 19 of the College Act is an additional safeguard in the case of a probationer, particu-Wiy when the 3rd respondent itself has found that the order of termination of the 1 st respondent is not punitive but is a termination simpliciter.
21. Mr. K. Chandru, learned counsel for the 1 st Respondent commenced his argument by inviting our attention to the aim and object of the College Act. The said Act is enacted inter alia for the regulation of the conditions of service of teachers employed in private colleges. The avowed purpose and object of the College Act is to confer protection to the teachers of private 3( educational institutions against arbitrary action of or victimisation by the management of such educational institutions.
22. Mr. K. Chandru next invited our attention to Section 19(1) of the College Act, which reads thus :
"19. Dismissal, removal or reduction in rank or suspension of teachers or other persons employed inxrivate colleges-(1) subject to any rule at may be made in this behalf, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his 44 appointment be otherwise terminate except with the prior approval of the competent authority. According to Mr. K. Chandru, the words found in the above Section has a history behind. The words "Dismissed. removed or reduced in rank" are found under Article 311(2) of the Constitution of India. The said Article verbadm incorporated the language used in Section 240(3) of the Government of India Act, 1935. The said provision is to give protection to the 5 Government servants."
23. According to Mr. K. Chandru, for the first time, a legislation was enacted to cover the private educational institutions in this State. 'Me Legislature not only borrowed the phraseology found in Article 311(2) of the Constitution of India but also added the words 'otherwise terminated' in the Section, which is to cover other forms of termination not covered by the earlier words. While construing the Seetion,the history behind the legislation, aim and object behind it must be taken into account. The first legislation to deal with a similar aspect is to the Schools Act. That Act was brought into the statute book with effect from January 1, 1974. Section 22(1) of the Schools Act is inpari mateda, with Section 19(1) of the College Act. Like-wise, Sections 23 and 24 of the Schools Act are in pan.materia with Sections 20 and 21 of the as College Act. Therefore, according to Mr.K.Chandru, the decisions rendered under the Schools Act will have a direct bearing on the College Act.
24. Mr. K. Chandru would submit that following the Schools Act, other States such as Delhi, Andhra Pradesh and Maharashtra have also made enactments to deal with private educational institutions. Section 3(1) of the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975, reads as follows :
"3(1) Subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated, except with the prior approval of the competent authority".
Section 8(2) of the Delhi School Education Act, 1973, reads as follows :
"Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director."
Section 4(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 reads as follows :
"No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank, by the Management, except in accordance with the provisions of this Act and the rules made in that behalf".
A reading of the above Section in the three Acts would show that there is an all India pattern in the introduction of the words "otherwise 20 terminated" in the legislations covering private educational bodies.
25. A Division Bench of our High Court in S. Jagadeesan v. Ayya Nadar Janaki Ammal College, Sivakasi 1981 (11) M.L.J. 415 construed the words "otherwise terminated' as to taking colour from the previous words. That is by applying the concept of ejusdem genesis to the words. The opinion of the Bench was that the said Section will apply only to punishments and that probationers cannot come within its purview. To come to the above conclusion the Bench heavily relied upon the decisions relating to Govermnent servants covered by Article 311(2) of the Constitution of India. The above matter was taken on appeal to the Supreme Court by the appellant 5.Jagadeesan. The Supreme Court in S.Jagadeesan v. Ayya Nadar Janaki 40 Amniat College allowed the appeal and set aside the judgment of a Division Bench of this Court without expressing any opinion on its correctness or otherwise. Therefore, as rightly pointed out by Mr.K.Chandru, 45 no reliance can be placed on the decision of a Division Bench of this Court reported in 1981 (II) MU 415 (supra).
26. In the decision reported in ne AY Saints High School v. Re Goyt. of Andhra Pradesh (supra), the Supreme Court had occasion to inter-pret a similar section found in Section 3(1) of the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975. In paragraph 8, the Supreme Court has observed as follows :
"But I find it difficult to read down Section 3(1) so as to limit its on to these or 0 similar considerations. first place, the Section does not itself than its operation in that manner; on the contrary, it gives an unqualified mandate that no teacher shall be dis-dssed, removed, etc., except with the prior 5 approval of the competent authority. Under the proviso, contravention of the Section results in a total invalidation of the proposed action. If the Section is contravened the teacher shall be deemed to be in service. Secondly Section 3(1) not only applies to cases in vaich a teacher is, what is generally termed as punished ' by an order of dismissal, retrival or reduction, but it also applies to cases in which an appomtment is othermdse terminated. An order of termination sinipliciter which involves no stigma or wpersion and which does not result in any evil consequences is also required to be submitted for tne prior approval of the competent authority. The argument that the principles of natural Mtice have not been complied with or the argument of nwlafides and victimisation has seldom any relevance if the services are terminated in accordance with the terms of a contract by which the tenure of the employment is limited to a specified period. This shows that true object of Section 3(1) is not that which one could liberally assume by reading down the Section."
27. Mr. K. Chandru also cited a decision of S. Mohan, J., (as he then was) reported in K. Selvarqi v. R. Jesudasan 1983 Ul) M.L.J. 406 wherein the learned Judge has held that the words otherwise terminated" will cover only the posi tive act of an employer terminating the services of a teacher and not the cases relating to resignation. 'ffie learned Judge quoted with approval the passage found in paragraph 8 of the decision of the Supreme Court in The All Saints Schools case (supra).
28. The above decision of 8.Mohan, J., as he then was, in (1983 (11) MLJ 406) (Supra) was dissented by K.Shamnukham, J., in the decision reported in Rajaji Middle School v. Mat-iapushpam 1987, Writ L.R. 333 K.Shan-mukham. I., by applying the principles laid down by the Supreme Court in (supra) held that the clause "whose appointment is otherwise terminated" found in Sections 22 and 23 of the Schools Act will also 10 embrace a case where the termination was brought about by the management of the educational institution accepting the letter of resignation of the teachers or other persons employed in private educational institutions. According to the learned Judge, a provision has to be interpreted principally bearing in mind the object and purpose that are sought to be achieved by the Act as the object and purpose of the Act are to save the teachers and other employees in a private educational institution from being victimised by arbitrary and capricious action on the part of the management. The learned Judge has also rejected the application of the concept of ejusdem generis to the words found in Section 25 22(1) of the Schools Act. The learned Judge has further observed that on his understanding of Section 22 of the Schools Act there is a clear indication that the expression 'otherwise terminated' has no nexus to other modes of 3C termination such as dismissal or removal.
29. When these two rulings were taken on appeal before a Division Bench of this Court in R. Jevudasan v. K. Selvaraj (supra) the Division Bench upheld the view of K. Shanmukham, J., and reversed the ruling of S.Mohan, J., (as he then was). In paragraphs 6 and 7, the Bench has observed as follows at p. 478 :
"The private school cannot and in fact is not pleading ignorance of law. If the teacher had not conformed to the statutory prescription, the private school oxight to have ignored the letters of resignation and insisted for satisfying the statutory prescription. If it had not done so, it had to, and -in fact it has, run the risk and must face the'wrath, consequent upon breach of law ....... If the letters of resignation dated April 9, 19761 51 stand ignored, as not conforming to statutory 80. prescriptions, then we are left with the act of the private school no longer entertaining the service.of the Headmaster or excluding him from service. The private school can no longer fall back upon the letters of resignation as the basis for the Headmaster going out of service. Hence, the aspect of the Headmaster resigning, be it so voluntarily, cannot be brought to the forefront and no 10 argument can be built that since it is a case of voluntary resignation it will not fall within the set of expressions of 'otherwise terminated', occurring in Section 22 of the Act, so as to warrant the obtaining of the prior is approval. The resignation being no resignation in the eye of law, the non-entertaining or discontinuing the services of the Head-master will certainly fall within the ambit of the above set of expressions. If so, violation to being patent with reference to non-obtaining of the approval as per Section 22 of the Act, the termination has got to be set aside."
We wholly agree with the opinion expressed as by the Division Bench in the above case, which, in our opinion, squarely covers the issue on hand. Apart from this, the said decision was followed by another Division Bench of this Court comprising of D. Raju and V. Kanakaraj, 30 JJ., in C.B.M. College v. Y. R. Palaniswami (W.A. No. 839 of 1992, judgment dated April 15, 1997).
30. In the above cited judgment in 35 W. A. No. 839 of 1992, D. Raju, I., speaking for the Bench, held as follows :
"In the view we have taken of the nature of the letter, said to be a letter of resignation dated August 31, 1979 and the manner in which it has been dealt with and the legal implications flowing therefrom and the illegalities and infirmities involved in the action taken by the Secretary, viewed in the context of the law declared by the Division Bench in the decision in R.Jesudasan's case (supra), it is unnecessary for us to enter into consideration of the other aspects of the matter."
The Bench also did not agree with the contention of the learned counsel for the appellant that there is conflict between the decision of the 2(1 Division Bench in R. Jesudasan's case (supra) on the one hand and the decision in Grama Committee High School v. I. Arunachalam 100, L. W., 543 on the other. While rejecting the said contention, the Bench has observed as follows :
"These cases turned on the respective provisions of the Tamil Nadu Private Schools (Regulation) Act and the rules framed thereunder and the statutory form of contract prescribed in Form 7-A carrying a similar Ac clause like clause 9 in Form 7-C relating to tht the Tamil Nadu Private Colleges (Regulation) Act. So far as the School Act and the rules are concerned, Rule 17-A has come to he introduced to deal with a peculiar situerr ation arising out of the claims of minority tht institutions and it is in the teeth of existence dit of Rule 17-A on the one hand and the statutory contract with a clause like clause 9 on or(the other, the learned Judges of the Division Bench, who decided the case in Grama Committee High School's case (supra) seem to think that there have been two avenues different in form and procedure available to an employee under the Schools Act to get his services terminated. So far as the College Act and the conditions prescribed therein are concerned, there is no such parallel rule similar to Rule 17-A of the Schools Act and therefore, the principles laid down in R.Jesudasan's case (supra), would squarely apply to the case on hand and consequendy, we see no conflict or even any 3'S possibility of conflict arising among the ratio laid down by the two Division Bench judgments referred to above. Consequently, we are of the view that the learned single Judge was right in applying the principles laid down in R.Jesudasan's case (supra), to this case and in arriving at the conclusion that the resignation letter given in this case did not conform to the statutory requirements and particularly clause 9 of Form No. 7-C 45 and therefore, relief of the.Ist Respondent could not be said to have been a termination brought about on the volition of the employee."
31. The term 'Teacher' is defined in Section so 894 2(1 0) of the College Act, which. runs thus :
"'Teachers' means such Professors, Assistant Professors, Readers, Lecturers, Demonstrators, Tutors, Librarians and other like ersons as may be declared to be teachers gy the statutes framed under any law for the time being in force governing a university."
The said term is used throughout the College Act and the rules framed thereunder. Nowhere there is any distinction made between temporary, permanent or probationer teachers.
32. In dealing with a case of non-teaching employees and the application of Section 19 of the College Act, K.Venkataswami, J., (as he then was), held in A.Elliot v. The Director of 0 Collegiate Education (W. P. No. 6955 of 1983, order dated January 31, 1984) as follows:
"The petitioner, as stated above, is a Watchman and therefore he will come under the category of other persons employed in a private college. There is no definition definin 'other persons'. Chapter IV of the Act gals with terms and conditions of services of teachers and other persons employed 0 in private colleges. Section 15 deals with qualification of teachers and other persons employed in private colleges. Section 16 of the Act deals with appointment of teachers and other persons in private colleges. Section 19 deals with dismissal, removal, or reduction in rank or suspension of teachers or other persons employed in private colleges. A perusal of the provisions of the Act as well as the rules framed thereunder will show that no distinction is made between a regular non-teaching employee and a contingent non-teaching employee. Mr. Vijayakumar, relied on Rule 1 1 and Form 7-C in support of his contention that the et'l-tioner being a contingent employee wilrnot be entitled to invoke the provisions of the Act. As pointed out earlier, no distinction is made either in the Act or in the rules between a regular non-teaching employee;o and a contingent non-teaching employee. Therefore, I am unable to accept the contention put forward by the learned counsel for the 2nd Respondent. Consequently, 1 hold t that the petitioner is entitled to invoke the a provisions of the Act."
33. J. Kanakaraj, J., has followed the decision of K.Venkataswami, J., (as he then was), t in W. P. Nos. 8293 and 8294 of 1987 (Meenakshi College for Women v. T. Mohan) by order dated 1 January 25, 199 1, and held as follows:
"Further, there is also the judgment of this Court in A.Elliot v. The Director of Collegiate Education, Madras (W.P. No. 6955 of 1983 dated January 31, 1984) in support of the proposition raised on behalf of the gardener. In that case, the services of a Watchman were the subject matter of the Writ Petition. After referring to the relevant provisions of the Act, Venkataswami, J., came to the conclusion that the Act will app y to the case of a watchman also. In particular, the learned Judge held that the Act does not make any distinction between a regular nonteaching employee and a contingent non-teaching employee. In these writ petitions also, the stand taken by the college is that the gardeners are paid from the contingency fund. No other point arises in these writ petitions. I am in respectful agreement with Venkataswami, J., and I also hold that the provisions of law are also very clear and unambiguous. Accordingly, the order of the Tribunal is sustained. The writ petitions fail and they are accordingly dismissed."
34. The decision of J.Kanakaraj, J., was taken on appeal before a Division Bench and the Bench by its judgment dated August 13, 1991 in W.A. Nos. 857 and 858 of 1991, affirmed the view of J.Kanakaraj, J. Therefore, we are of ,40 the opinion, that the contention of Mr. R. Thiagarajan that the probationer teachers are outside the scope of the College Act cannot at all be countenanced and in our view, such a construction will be opposed to the aim, object and the scheme of the College Act.
35. In the decision reported in T. N. Chandra v. South India Corporation (Agencies) Ltd 0 (1992-I-LLJ-739) (Mad), a question arose as t' so 891 whether a probationer can maintain an appeal under Section 41(1) of the Tamil Nadu Shops and Establishments Act, 1947. A Division Bench of our High Court comprising of Dr. A. S. Anand, C.J., (as he then was) and D.Raju, J., held that a probationer is also enti tled to file an appeal against his termination. In paragraph 12, the Bench has held as follows at pp.743-744:
"The fact that till confirmation he has no right to the post held by him does not by itself deny him the status of an employee and reduce him to nothing. A careful reading ts and analysis of Section 2(12) of the Act does not in any manner run counter to the above principles. In our view, the primary and basic requirement of the said provision appears to be that he should be a 'person to wholly or principally employed' in connection with the business and it is not the case of the respondent that the appellant was one who did not satisfy this criteria. Consequently, we are unable to endorse die view as of the learned single Judge that before completion of probation and confirmation, no jural relationship of an employer and employee exists. In our view, neither the decision of the Division Bench of Karnataka 30 High Court nor the decision of the Supreme Court relied upon by the learned counsel for the Ist Respondent can be claimed to be the basis or an authority for such a proposition and consequently, we hold that for the purposes of the Shops Act, the appellant has to be treated as a 'person employed' and inevitably entitled to the benefits of Section 41 of the Act."
36. Mr. K. Chandru, learned counsel for the 1st Respondent, also cited the decision of the Supreme Court reported in Management of Karnataka State Road Transport Corporation v. Boraiah, M. (1984-I-LLJ110) in support of his contention that the probationer is also covered as defined in Section 2(oo) of the Industrial Disputes Act. In that case, the Karnataka State Road Transport Corporation terminated the services of some of the employees either during so the initial period of probation or during the extended period of probation on the ground of un-suitability. On the employees raising an industrial dispute, the matter was referred for adjudication to the Labour Court. The Ldhour Court overruled the stand of the employer that Section 25-F of the Industrial Disputes Act had no application and therefore the discharge was not invalid. The employer unsuccessfully challenged the award before the High Court. Disrnissing the appeal preferred by the employer, the Supreme Court held as follows at p 115 :
"Once the conclusion is reached that retrenchment as defined in Section 2(oo) of the Industrial Disputes Act covers every case of the termination of service except those which have been embodied in the definition, discharge from employment, or termination of service of a probationer would also amount to retrenchment. Admittedly the requirements of Section 25-F had not been complied with in these cases. Very appropriately there was no dispute that the necessary consequence of non-compliance of Section 25-F of the Industrial Disputes Act in a case where it applied made the order of termination void."
37. Mr. R. Thiagarajan in his reply contended that some of the decisions cited by Mr. K. Chandru are not an authority for the proposition that the termination of a probationer cannot be done without the prior approval of the competent authority. According to him. the question whether the prior approval of the competent authority is necessary in th-case of termination of probationer under the provisions of the College Act did not at all arise for consideration in those cases. Those cases assume importance only as an authority for what it actually decides and not what logically follows from it. 40 Hence, those judgments cannot be taken as deciding the question like the one before us nor the requirement of approval for the termination of a probationer as essential.
38. Mr. R. Thiagaraj an also contends that all the cases cited on behalf of the I st respondent were cases of permanent employees and some of them arose under the Industrial Disputes Act and Shops and Establishments Act and therefore, no support can be drawn from those judgments. In winding up his argument, he submitted that the employment of the Ist respondent with the appellant being a private employment, it is governed by the statutory form of agreement, which does not require the prior approval as in the case of private schools employment, and therefore, consideration under other enactments should be totally es-10 chewed. We are unable to accept the argument of Mr. R, Thiagarajan. It has been clearly held in (supra) that Section 3(1) not only applies to cases in which a teacher is, what is generally termed as 'punished' by an order of dismissal, removal or reduction in rank, but it also applies to cases in which an appointment is otherwise terminated. Therefore, the question now raised by Mr. R. Thiagarajan has already been answered by the Supreme Court in (supra) which says that an order of termination simpliciter which involves no stigma or aspersion and which does not result in any evil consequences is also required to be submitted for the prior approval of the competent authority.
39. In the instant case, no prior approval has been obtained by the appellant before passing the order of termination against the Ist respondent' N. V. Balasubramanian, J., has also in his order under appeal considered the arguments of Mr. R.Iliagarajan and Mr. K. Chandru and held that the provisions of the College Act have to be construed in the context of statutory scheme, the object and purpose of the College Act and that Section 19 of the College Act applies to all teachers and other persons employed in any private college, whether permanent teachers,permanent employees or probationary to teachers or probationary employees. 'Re reasoning given by the learned Judge in arriving at such a conclusion is very sound. We wholly concur with the opinion expressed by the learned Judge, which is under appeal before us. us.
40. For the foregoing reasons, we hold that there are no merits in the Writ Appeal. The Writ Appeal fails and is dismissed. We direct the parties to bear their own costs.