Madras High Court
A.B. Narasimhan vs The Management Of Olcott-Memorian High ... on 26 April, 1996
Equivalent citations: 1996(1)CTC711, (1996)IIMLJ128
ORDER S.M. Abdul Wahab, J.
1. This writ petition is for a certiorari to quash the order passed in C.M.A. No. 220 of 1985, dated 22.8.1986, on the file of the 1st Assistant Judge, City Civil Court, Madras.
2. The petitioner is the Headmaster of the 1st respondent school. A disciplinary proceeding was instituted against him by the 1st respondent by issuing a charge memo dated 16.6.1982 containing 13 charges. An enquiry officer appointed by the management found on 25.11.1983 that all charges were proved. Thereafter permission was sought for terminating the services of the petitioner. But the Chief Educational Officer refused to give permission as per his order dated 26.10.1984. On appeal to the Joint Director on 24.11.1984, the Joint Director permitted the management to impose any punishment except the removal. However, the management chose to terminate the services of the petitioner as per the order dated 27.2.1985.
3. The petitioner preferred an appeal to the Joint Director who allowed the same on 12.6.1985. As against the said order of the Joint Director, C.M.A. No. 220 of 1985 was filed by the management, before the tribunal under the Tamil Nadu Recognized Private Schools, (Regulation) Act (1st Assistant Judge, City Civil Court, Madras-104). The tribunal allowed the appeal and modified the order of the Joint Director. It has also issued a direction to the appellant to apply to the Chief Educational Officer for approval of the proposed punishment of termination. Hence the petitioner has preferred this writ petition.
4. The learned counsel for the petitioner contended that he has chosen to file the writ petition in view of the sentence inserted in para 8 of the judgment of the tribunal. In fact, he also vehemently contended that the said sentence has been inserted after the pronouncement of the judgment as the said sentence is written in ink while the rest of the judgment is in typewritten. The disputed sentence is as follows:-
"The findings of the Joint Director that the charges have been proved is upheld".
5. I sent for the original judgment and also perused the same. I also perused the extract from 'B' diary of the 3rd respondent, dated 22.8.1986 relating to C.M.A. No. 220 of 1985. Even though the disputed words have been inserted in ink, it is not possible to impute any motive for the same. The tribunal might have thought fit to insert those words after preparing the judgment in type. The learned counsel for the petitioner fairly conceded that he was not present when the judgment was pronounced. Therefore, I do not agree with him that the aforesaid sentence was inserted in any improper or illegal manner.
6. The main contention of the learned counsel for the petitioner is that his appeal before the Joint Director was allowed on 12.6.1985 on the ground that the termination order was not legal inasmuch as the permission for termination was not obtained from the competent authority. There was no discussion of the case on merits by the Joint Director, Similarly, in C.M.A. No. 220 of 1985 also the tribunal has not discussed the merits of the case and rendered any finding that the charges were proved. Hence, it is not proper on the part of the tribunal to state that the findings of the Joint Director that the charges have been proved is upheld.
7. After going through the judgment of the tribunal, I am of the view that the point urged in the appeal was that the appellate authority erred in allowing the appeal of the petitioner herein on technical grounds that the permission of the Chief Educational Officer was not obtained and the appellate authority failed to appreciate the matter on merits. In fact the contention before the tribunal by the management was that the order of the Joint Director dated 12.6.1985 must be tantamount to prior approval for punishment. But the tribunal did not agree with the same and the relevant portion of the judgment is as follows:-
"I, therefore, find that the termination of service by the school authorities without the approval of the Chief Educational Officer cannot be upheld. But at the same time, I find that merely on this technical ground, it will not be fair to hold that the entire proceedings are vitiated. The Joint Director having found that the charges have been proved should have merely set aside the punishment of termination of service and directed the school authorities to approach the Chief Educational Officer for approval with regard to the proposed punishment of termination of service".
After holding as aforesaid the tribunal has directed the management to approach the Chief Educational Officer for approval. As rightly contended by the learned counsel for the petitioner the tribunal has got gone into the merits of the charges issued against the petitioner.
8. In my view the tribunal has erred in allowing the appeal and directing the 1st respondent herein to approach the Chief Educational Officer for approval of the proposed punishment of termination against the petitioner herein.
9. The appeal before the tribunal was with reference to an order of dismissal by the management without the prior approval of the competent authority. Section 22 of the Tamil Nadu Recognized Private Schools (Regulation) Act is as follows:-
"Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority."
Admittedly, the permission as contemplated under Section 22 was not obtained by the petitioner before passing the order of termination. The termination order dated 27.2.1985 of the petitioner refers to the proceedings of the Joint Director of School education dated 2.2.1985. The Joint Director has specifically stated in para 3 as follows:-
In para 5 of the said order it is further stated as follows:-
Therefore, the Joint Director has come to the conclusion on considering the nature of charges that the punishment of removal was not justified. Yet, the 1st respondent has chosen to terminate the service of the petitioner. This is quite contrary to the provisions of Section 22 of the Tamil Nadu Recognized Private Schools (Regulation) Act 29 of 1974. But, unfortunately, when an appeal was preferred before the tribunal even without consideration of the charges the tribunal has chosen to issue a direction to get an approval for imposing the punishment of termination. I can understand that the punishment was at the proposal stage. But, in this case, the punishment has been already imposed. Therefore, the point that was to be considered by the tribunal was whether the punishment imposed was legal, valid, and in accordance with the provisions of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1974. When the tribunal found that there was no prior approval which is a condition precedent for imposing the punishment, the order should have been one of confirming the order of the Joint Director of School Education (Secondary Education), dated 12.6.1985, in which he has held that since there was violation of the rules, the appeal of the petitioner was accepted, and the management could pay him the arrears of salary without claiming aid from the Government.
10. It is also to be seen in this case, that if the 1st respondent petitioner was aggrieved and was very particular to impose the punishment of removal from service, they could have preferred a revision petition to the Government as against the order of the Joint Director of School Education dated 2.2.1985 in which he has granted only a limited permission to impose punishment as provided under Section 45 of the Tamil Nadu Recognized Private Schools (Regulation) Act, read with Rules. Even if they had failed before the government, they had an opportunity to agitate their grievance in this Court under Article 226 of the Constitution of India, since, according to them, the charges found to be proved, and the observation of the Joint Director of School Education that the charges were not so serious as to warrant a major penalty of dismissal from service. They have not done so. The tribunal has also not adverted to this vital spect.
11. The tribunal has to consider an order challenged before it. After agreeing with the Joint Director and holding as stated earlier that the termination of service of the school authorities without the authority of the Chief Educational Officer could not be upheld, he has no jurisdiction to grant any liberty to the petitioner to obtain an approval. As stated earlier, even if the approval is granted, it will not be in strict compliance with the requirement of Section 22 of the Act. The intention of the legislature is that permission should be obtained before an order of termination or dismissal is imposed. There is no scope for any post-approval. The provisions of the Act or the Rules do not contemplate such post-approval. The Section noted earlier contemplates only with the prior approval of the competent authority. Therefore, I am inclined to interfer with the order passed by the 1st respondent. Accordingly, the writ petition is allowed. However, there will be no order as to costs.