Kerala High Court
Suter Paul vs Sobhana English Medium High School on 28 October, 2003
Equivalent citations: 2003(3)KLT1019
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT A.K. Basheer, J.
1. Is a Writ Petition under Article 226 of the Constitution maintainable against the Manager of a recognized unaided school? In view of the difference of opinion, this question has been referred to the Division Bench by a learned Single Judge.
2. Before we consider the above question, it may be useful to refer briefly to the relevant facts of the case.
3. The petitioner was working as a Physical Education Teacher in Sobhana English Medium High School, Kothamangalam. It is admittedly a recognized unaided school. In March 1999, the Manager of the school, respondent No. 1, issued a notice to him to show cause why his service should not be terminated in view of several allegations of misconduct and, in particular, in the light of a complaint received from the parent of a student. The explanation given by the petitioner was not found to be satisfactory. A domestic enquiry was conducted by the management. By the report dated 8th June 1999, the Enquiry Officer found that all the charges except one, levelled against the petitioner were proved. By Ext. P7 communication dated 15th June, 1999, the Manager of the school terminated the services of the petitioner with effect from 16th June 1999.
4. Petitioner challenged the order of termination before the District Educational officer. An enquiry was conducted by the District Educational Officer. The Manager and the Headmistress of the school were also heard. In the enquiry report dated 10th August 1999, the District Educational Officer took the view that the charges levelled against the petitioner were only "partially" proved and therefore only a minor penalty was warranted against him in the facts and circumstances of the case. The District Educational Officer, therefore, directed the Manager to revoke the order of dismissal and reinstate the petitioner in service. The enquiry report of the District Educational Officer is on record as Ext. P9.
5. The Manager did not comply with the direction of the District Educational Officer. According to him, the District Educational Officer had no right or authority to direct the Manager of an unaided school to reinstate a teacher who was dismissed from service after conducting an enquiry. The petitioner therefore moved the Deputy Director of Education, the next higher authority. By Ext. P11 communication dated November 3,1999, the Deputy Director informed the Manager that termination of the services of the petitioner was not proper in asmuch as the petitioner was not given an opportunity of being heard before the action was taken against him. In the meanwhile, the petitioner approached the Government with a prayer to set aside the order of termination. By order dated January 28,2000 it was held by the Government that the punishment of termination was too excessive. The Manager was therefore directed to reinstate the petitioner in service. The District Educational Officer was further directed by the Government to ensure that the order is complied with by the Manager. He was also authorised to take appropriate further action against the Manager in the event of non-compliance. The order of the Government is on record as Ext, P15.
6. The Manager challenged Exts. P 11 and P15 orders issued by the District Educational Officer and the Government respectively, before this Court in O.P. No. 4650/2000. By judgment dated March 15,2002, a learned Single Judge of this Court directed the Manager "to pass fresh orders imposing appropriate punishment proportionate with the delinquency in question". It was further directed that the petitioner would continue under suspension until fresh orders were passed. A true copy of the above judgment of this Court in O.P. No. 4650/2000 is produced as Ext. P17.
7. As directed by this Court, the petitioner had submitted a detailed representation before the Manager. The petitioner was heard. Thereafter, the Manager issued Ext. P21order in compliance with the directions of this Court. The Manager took the view that the penalty imposed on the petitioner was not disproportionate to the charges which were proved. His continuance in service in the school would not be in the interest of the students and the institution. Accordingly, the Manager passed the order removing the petitioner from service with effect from June 16,1999.
8. In the Original Petition, it is prayed that a writ of certiorari be issued to quash Ext. P6 domestic enquiry report and Ext. P21 order of the Manager terminating the services of the petitioner. There is a further prayer for a direction to the Manager to reinstate the petitioner in service in compliance of Exts. P15 and P16 and also to implement Ext. P9 enquiry report of the District Educational Officer.
9. In the counter affidavit filed by respondent No. 1, the Manager, the action taken against the petitioner has been stoutly defended and justified. It is contended that the petitioner was dismissed from service in the best interest of the students in particular, and also in the larger interest of the institution. A letter dated March 2, 1999 received from the President of the Parent Teacher Association requesting for action against the petitioner, has been placed on record as Ext. R1(a). It is contended on behalf of respondent No. 1 that an enquiry was conducted against the petitioner after according ample opportunity to him and in compliance with the principles of natural justice. Petitioner was dismissed from service since the enquiry officer found that all the charges except one were proved against him.
10. We have heard learned counsel for the petitioner and respondent No. 1. It was agreed by the learned counsel for the parties that the Original Petition can be heard on merits also.
11. The short question is whether the Management has acted arbitrarily in awarding the punishment to the petitioner in the facts and circumstances of the case?
12. Before we deal with the merits of the case on facts, it will be appropriate to decide the question of maintainability of the Writ Petition.
13. As mentioned earlier, there is no dispute that the educational institution wherein the petitioner was employed as Physical Education Teacher, is a recognised unaided school.
14. The question whether a Writ Petition under Article 226 of the Constitution is maintainable against a recognised unaided educational institution, was considered by a Division Bench of this Court in Annamma v. State of Kerala (1994 (1) KLT 309). In the above case, Ms. Annamma challenged her removal from service by the management of the recognised unaided school. The learned Single Judge dismissed the Original Petition holding that a Writ Petition would not lie under Article 226 of the Constitution. The Division Bench concurred with the view of the learned Single Judge and inter-alia held that "the mere fact that the recognised unaided school was imparting education to the students, cannot make the management a public authority amenable to the writ jurisdiction of this court". Though a private educational institution may "merely supplement the effort of the State in educating the pupil........." and "the function performed by the institutions of the State......... the said activity of the management cannot make the management a body amenable to the writ jurisdiction of the High Court".
15. In Sr. Cleta v. State of Kerala (2001 (1) KLT 937), the question arose whether a teacher in a recognised unaided school could be allowed to continue beyond the age of 55 years unlike in other Government and aided schools. The District Educational Officer directed the Manager of the school to terminate the service of the petitioner since she was more than 60 years of age. The management-challenged the said order of the District Educational Officer, in a Writ Petition before this Court. There was another Writ Petition praying for implementation of the order of the District Educational Officer. Both the Writ Petitions were considered by a Division Bench of this Court. After referring to the relevant statutory provisions under the Kerala Education Act and the Rules, the Division Bench took the view that a recognized unaided school was bound by the statutory provisions laid down under Chapter XIV-AA of the Kerala Education Rules. It was further held that "the age limit and the relaxation thereof for appointment under Government Schools/Aided schools shall mutatis mutandis apply to the candidates for appointment as member of staff of the unaided recognized schools".
16. The learned Single Judge has referred this Original Petition to the Division Bench, after noticing the above two judgments and also the decision of their Lordships of the Supreme Court in K. Krishnamacharyulu & Ors. v. Sri. Venkateswara Hindu College of Engineering & Anr., AIR 1998 SC 295.
17. In Krishnamacharyulu's case (supra), the Hon'ble Supreme Court held that even in the case of institutions which do not receive any grant in aid "there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens ........ When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226;.........".
18. It is in the above background that the question of maintainability of Writ Petition has to be considered. In this context a brief reference to the relevant provisions of the Kerala Education Act and the Rules may be necessary.
19. Section 2(8) of the Act defines a "recognized school" as a "private school recognized by the Government under this Act". Section 3 of the Act deals with establishment and recognition of schools. It provides that the Government may regulate the primary and other stages of education and course of institutions in Government and private schools. Sub-section (2) of Section 3 also mandates that "the Government shall take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education and for the training of teachers". Section 3(3)(c) empowers the Government to "recognize any school established and maintained by any reason or body of persons". In this context, it may also be pertinent to note that "educational agency" as defined under Section 2(2) means "any person or body of persons permitted to establish and maintain any private school under the Act".
20. Chapter XIV-AA which deals with conditions of service of teaching and non-teaching staff of recognized unaided schools was incorporated in the Kerala Education Rules in March, 1990. R. 1 of Chapter XIV-AA obligates the Managers of recognized unaided schools to appoint "only such candidates as teaching and non-teaching staff who possess the qualifications prescribed for the respective posts in Government Schools". It is also provided in unambiguous terms in clause (b) of R. 1 that the Manager shall follow the directions issued by the Government in the matter of appointment of qualified hands to fill up the vacancy in the school. Clause (c) stipulates that the age limit and the relaxation thereof of the candidates for appointment under Government Schools/Aided Schools shall "mutatis mutandis apply to the candidates for appointment as members of staff of the unaided schools. R.2 ensures that the teaching and non-teaching staff of unaided schools are paid salary every month by cheques drawn on managements accounts in Nationalised or Scheduled Banks. R.3 provides sufficient safeguards to the members of teaching and non-teaching staff of unaided schools. It provides that "any member of the teaching or non-teaching staff shall not be terminated by the management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry". Thus, Chapter XIV-AA read with the other provisions of the Act and the Rules clearly indicates that the provisions of the Kerala Education Act and the Rules have a pervasive control over the affairs of the unaided schools.
21. It is also pertinent to note that clause (5) of Section 3 of the Act provides that "the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of this Act". It is true that Section 7 of the Act gives right to any educational agency to appoint any person to be the Manager of the school. Section 19 stipulates that the provisions contained in Section 7 shall apply to recognized schools to the same extent and in the same manner as they apply to aided schools. R.17 of Chapter V deals with conditions to be satisfied for grant of recognition. Clause (vi) of R.17 specifically provides that a recognized school "must be conducted in accordance with the provisions of the Kerala Education Act, the Rules under it, and the directions issued by the Government or the Department from time to time". R.22 of Chapter V enumerates various situations under which the recognition granted to a school may be withdrawn by the Government. R.23 provides that the Government can withdraw recognition if the authorities of the school have been guilty of any serious contravention of the Rules.
22. We have referred to the above statutory provisions in extenso, to show that a recognized unaided educational institution is bound to function only in terms of the mandate contained in the Act and the Rules. It is evident that a recognized unaided school cannot arrogate to itself any power or authority of its own. It has to function confining itself within the four corners of the relevant statute. Its powers and duties are well delineated and well defined. It is true that an unaided educational institution has certain special rights and privileges. These are circumscribed by constitutional and statutory restrictions.
23. The powers of the High Court to issue prerogative writs and directions and orders under Article 226 of the Constitution, have been a subject of consideration by the Apex Court as well as various High Courts from time to time. Their Lordships of the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors., AIR 1989 SC 1607, observed as follows:
"Art. 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued for the enforcement of any of the fundamental rights and for any other purpose."
It was further observed by their Lordships as hereunder:
"The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied".
24. As observed by their Lordships in the above decision, the words "any person or authority" used in Article 226 need not be confined only to statutory authorities and instrumentalities of the State. In Krishnamacharyulu 's case (AIR 1998 SC 295), the Supreme Court took the view that "when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees.............When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226 ..........".
25. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, the majority view of the 7 Judges Bench of the Supreme Court is relevant. It is extracted hereunder :-
"The picture that ultimately emerges is that the tests formulated in Ajay Hasia, (1981) 1 SCC 722, are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State".
Following the observations of the Constitution Bench of the Supreme Court in Rajasthan Section E.B. v. Mohan Lal (AIR 1967 SC 1857), their Lordships, in Pradeepkumar Biswas's case (supra) observed as follows:
"The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people".
26. While dealing with the power of the High Courts under Article 226 in issuing writs or such other directions or orders, His Lordship Justice Subba Rao, in Dwarkanath v. ITO. ((1965) SCR 536) had observed as follows:
"This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders, or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
27. Having considered the pervasive control of the educational authorities over the recognized unaided institutions in the State, we have no hesitation to hold that such institutions are amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. We take this view since the provisions of the Act and the Rules clearly indicate that the Government have reserved to itself a great deal of control over these institutions. It is also to be noted that the unaided educational institutions are liable to be de-recognised if the Government is of the view that they are guilty of contravention of the provisions of the Act and the Rules.
28. In Annamma's case (1994 (1) KLT 309), the Division Bench took the view that a dismissed employee of a recognised unaided educational institution "cannot enforce a contract of personal service by resort to Article 226 of the Constitution". The Bench observed that the management of a recognised unaided school was not "discharging any statutory obligations". The school was not receiving any financial aid from the Government. No Governmental control was being exercised over it. "The mere fact that the school is imparting education to the students cannot make the management a public authority amenable to the jurisdiction of this Court". It was in the above premises that the Division Bench in Annamma's case took the view that a writ petition under Article226 of the Constitution was not maintainable against a recognised unaided school.
29. However, in the light of the dictum laid down by Their Lordships of the Supreme Court in Krishnamacharyulu's case (AIR 1998 SC 295) and a series of other subsequent pronouncements of the Apex Court, the above view can be easily distinguished. The decision of Their Lordships of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481) also lends support to our view in this regard. In Sister Cleta 's case, 2001 (1) KLT 937, the Division Bench was not addressed about the maintainability of the Writ Petition under Article226 of the Constitution. Therefore the Bench had not considered the said question.
30. As observed by His Lordship Justice Subba Rao, in Dwarakanath's case, 1965 SCR 536 (supra), this court can reach wherever there is injustice. If it is brought to the notice of the Court that "any injustice is being done by any person or authority", this court can exercise its jurisdiction under Article 226 of the Constitution. Its power under Article 226 to issue writs for enforcement of the fundamental rights as well as non-fundamental rights is very wide. Similarly as laid down by Their Lordships in Andi Mukta Trust's case, AIR 1989 SC 1607, the term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover "any other person or body performing public duty". In view of the above, we hold that a Writ Petition under Article 226 is maintainable against a recognized unaided educational institution.
31. Since the view of the Division Bench in Annamma's case (1994 (1) KLT 309) is unsustainable in view of the judgment of their Lordships of the Supreme Court in Krishnamacharyulu's case (AIR 1998 SC 295), we do not deem it necessary to refer the matter to a Larger Bench.
32. We may now consider whether the petitioner is entitled to any relief in the Original Petition, on the facts of the case.
33. There is no dispute that a domestic enquiry was held by the management after affording adequate and sufficient opportunity to the petitioner. In Ext. P6, the enquiry officer had found that all charges except one levelled against the petitioner were proved. Accepting the findings in the enquiry report, the management had dismissed the petitioner from service. However, the District Educational Officer had conducted an enquiry of his own and held that the dismissal was unwarranted. The management was, therefore, directed to reinstate the petitioner. The Deputy Director approved the above order and issued Ext. P11 directing the Manager to comply with statutory formalities. Subsequently, Ext. P11 was affirmed by the Government in Ext. P15. The management had challenged Exts. P11 and P15 orders before this Court in O.P. No. 4650/2000.
34. It is revealed from Ext. P17 judgment in O.P. No. 4650/2000 that this Court had found that Exts. P11 and P15 orders were bad and unenforceable. These findings were not challenged by the petitioner. Therefore, they have become final. In that view of the matter, the prayer of the petitioner for a direction to implement Ext. P15 is bound to fail.
35. It is also admitted by the petitioner that Exts. P11 and P15 orders passed by the Deputy Director of Education and the Government respectively, were based on Ext. P9 report of the District Educational Officer. Ext. P16 order was issued by the District Educational Officer in terms of the direction issued by the Government in Ext. P15. It is a sequel to Ext. P15 order. Since this Court had held that Exts. P11 and P15 orders are bad in the eye of law and are not consequently enforceable, it necessarily follows that Ext. P9 cannot also be held to be valid or enforceable.
36. There is yet another reason for such a conclusion. It is contended by learned counsel for respondent No. 1 that the District Educational Officer had no authority to conduct an enquiry of his own. It is therefore urged that Ext. P9 is illegal and unsustainable.
37. It is pertinent to note that under Sub-section (1) of Section 12A of the Act, the Government or such officer not below the rank of an Educational officer as may be authorised by the Government, shall have power to take disciplinary proceedings against the teacher of an aided school and to impose upon him all or any of the penalties specified under the Rules made under the Act. Sub-section (2) of Section 12A empowers the Government or the authorised officer to suspend a teacher of an aided school when any disciplinary proceeding is to be taken against him. The proviso to Sub-section (2) of Section 12A reads as under:
"Provided that:-
(a) before exercising the powers under Sub-section (1) the Government or the authorised officer as the case may be, may intimate the manager regarding the circumstances requiring disciplinary action against the teacher concerned and give the manager a reasonable opportunity of taking disciplinary action; and
(b) if the manager fails to take appropriate action it shall be open to the Government or the authorised officer to take appropriate disciplinary action against the teacher concerned."
The above proviso unambiguously shows that the power to take disciplinary proceedings against a teacher of an aided school can be exercised by the Government or the authorised officer only after the Manager of the school has been intimated regarding the circumstances requiring disciplinary action against the teacher. Clause (b) of the proviso further stipulates that the said power can be exercised by the Government or the authorised officer if the manager fails to take appropriate action.
38. Chapter XIV-A does not contain any specific provision regarding the procedure for imposing minor or major penalties on any member of the teaching or non-teaching staff of recognized unaided schools. As mentioned in the earlier part of this judgment, Rule 3 of Chapter XIV-AA only stipulates that the service of any member of the teaching or non-teaching staff of a recognized unaided school shall be terminated by the management with out conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry.
39. Even in the case of Aided Schools the District Educational Officer gets jurisdiction to take disciplinary proceedings only after intimating the manager about the circumstances requiring such action. Further, any such proceeding can be initiated only if the manager fails to take appropriate action. The power of the officer to conduct any parallel inquiry is not contemplated even in the case of Aided School. The position is still worse in the case of recognized unaided schools. Thus it is clear that the District Educational Officer is not vested with any power or authority under the Act or the Rules to conduct an enquiry of his own, especially in a case where the manager of the school had already conducted a domestic enquiry.
40. The petitioner has not been able to substantiate as to how or under what authority the District Educational Officer was entitled or empowered to hold an enquiry of his own to find out whether a delinquent teacher of a recognized unaided school was guilty or not. In the absence of a provision of law to support the power exercised by the District Educational Officer to conduct an enquiry and prepare a report, we are not inclined to accept the contention of the petitioner. In that view of the matter, Ext. P9 enquiry report prepared by the District Educational Officer cannot have any legal validity or force. Therefore the prayer of the petitioner to issue a writ of mandamus to the manager to implement Ext. P9 report is unsustainable. Since Exts. P9, P11 and P15 cannot be enforced, it necessarily follows that Ext. P16 also cannot be implemented.
41. The other prayer in the Original Petition is to issue a writ of certiorari to quash Ext. P6 domestic enquiry report and Ext. P21 order issued by the Manager removing the petitioner from service. It is pertinent to note that in Ext. P17 judgment, this Court had directed the petitioner (Manager) to take a decision on the question of "appropriate punishment" to be awarded to the petitioner on the basis of Ext. P6 report. This necessarily implies that Ext. P6 report was found to be valid and acceptable by this Court. As mentioned earlier, Ext. P17 judgment was not challenged by the petitioner. Therefore, the prayer for issuance of a writ of certiorari to quash Ext. P6 fails. Hence, the said prayer is rejected.
42. The only other question to be decided is whether the petitioner is entitled to succeed in his challenge against Ext. P21. It is admitted by the petitioner that he was heard by respondent No. 1 before the impugned order was passed. Petitioner had submitted a detailed representation as directed by this court in Ext. P17 judgment. We have gone through the impugned order carefully. After considering the impugned order, we do not find any reason to interfere with the conclusion arrived at by respondent No. 1. In our view, the punishment imposed by the management on the petitioner does not call for any interference at the hands of this Court. The decision making process is found to be faultless and fair. Petitioner was heard. It has not been urged before us that there is infraction or violation of any of the principles of natural justice. In that view of the matter, we are not inclined to accept the contention of the petitioner to quash Ext. P21 order.
In the result, the Original Petition fails and it is accordingly dismissed. No costs.