Delhi High Court
The Sant Nirankari Mandal And Ors. vs Delhi School Tribunal And Anr. on 23 July, 1987
Equivalent citations: ILR1987DELHI311, 1989LABLC740
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The challenge in this writ petition is to the order of Delhi School Tribunal which had allowed the appeal of respondent No. 2 who was working ax a Teacher in a School set-up and un by petitioner No. 1.
(2) Petitioner No. 1 is a society registered under the provisions of the Societies Registration Act. Prior to its registration, Sant Nirankari Mandal was a movement which was started by its founder Baba Boota Singh. He was succeeded Baba Avtar Singh who, in turn, was succeeded by Baba Gurbachan Singh. With the registration under the provisions of the Societies Registration Act, all the assets and Liabilities vested with the registered Society. The Society has its own memorandum of association as well as rules and regulations of the Mandal.
(3) Petitioner No. 1 established a School known as Sant Nirankari Higher Secondary School at New Delhi. Respondent No. 2 was a Teacher in this School. The School is recognised by the Director of Education, Delhi and is governed by the provisions of the Delhi School Education Act, 1973 and the rules framed there under.
(4) The petitioners alleged that respondent No. 2 had been guilty of misconduct. A statement of .imputation of misbehavior and misconduct was drawn up levelling 5 charges against respondent No. 2. The same was served on respondent No. 2. An Enquiry Officer was appointed who conducted the enquiry which had been entrusted to him. In June, 1976 the Enquiry Officer submitted his report exonerating respondent No. 2 of all the charges. The report of the Enquiry Officer was not accepted by the Disciplinary Committee and it tentatively came to the conclusion that respondent No. 2 was not a fit person to be retained in service. On 15th December, 1976 a show cause notice was issued by the Disciplinary Committee to respondent No. 2 asking him why he should not be dismissed from service In the said show cause notice, it was stated that for the reasons contained in the Annexure to the show cause notice, the Disciplinary Committee did not agree with the conclusions arrived at by the Enquiry Officer. The respondent No. 2 submitted his reply and thereafter by order dated 24th December, 1976 respondent No. 2 was dismissed from service by the School.
(5) Being aggrieved, an appeal was filed by respondent No. 2 before the Delhi School Tribunal. When notice of appeal was served on the petitioners, a preliminary objection was taken to the effect that the School was a minority institution and, therefore, no appeal lay to the Tribunal. One of the contentions which had been urged by respondent No. 3 before the Tribunal was that before passing the order of dismissal the provisions of Section 8(2) of Delhi School Education Act, which required previous approval of the Director of Education, had not been obtained and, therefore, on this ground alone, the order of dismissal was liable to be set-aside. The case of the School was that as it was a minority institution the provisions of Section 8(2) were not applicable and as such it was not necessary to get the permission of the Director of Education.
(6) The Tribunal, by its order dated 24th January, 1979 came to the conclusion that the School was not a minority Institution. On merits, the Tribunal held that before the Disciplinary Authority could come to the conclusion that respondent No. 2 was guilty of the charts levelled against him and before it differed from the conclusions of the Enquiry Officer, it was incumbent upon the School Authorities to have given an opportunity of being heard to the delinquent employee. As this was not done, the Tribunal came to the conclusion that the order of dismissal stood vitiated. The Tribunal further came to the conclusion that the Disciplinary Committee included as one of its members a nominee of the Director of Education. The Arbitral found as a feat that on the day when the Disciplinary Authority decided not to accept the report of the Enquiry Officer, the said nominee of the Director had not attended Ihe meeting. Relying upon a decision of the Supreme Court in the case of Ram Bharosey Agarwal v. Har Swarup Maheshwari, , the Tribunal came to the conclusion that the decision of the Disciplinary Committee was not valid because the property constituted Disciplinary Committee had not taken a decision. The appeal filed by respondent No. 2 was accordingly allowed and it was held that respondent No. 2 was entitled to reinstatement and continuity of service in the said School.
(7) The Society as we'll as the School have tiled the present writ petition challenging the aforesaid decision of the Delhi School Tribunal. The case of the petitioners is that the decision of the Disciplinary Authority was valid on merits. It is further. argued that the petitioner is a religious and/or linguistic minority and, therefore, the provisions of Section 8(2) of the said Act were not applicable and, as such. it was not necessary to get the permission of the Director of Education before dismissing respondent No. 2.
(8) Before deciding the question as to whether the petitioner is a religious or a linguistic minority or not, it is necessary to see what are the relevant provisions of the Delhi School Education Act and how they are applicable with regard to the minority institutions.
(9) The Delhi School Education Act contains various Chapters. Chapter Iv deals with the terms and conditions of service of employees of recognised private schools. The said Chapter consists of Section 8, which deals with terms and conditions of service of employees of recognised schools; section 9 which provides for employees to be governed by a Code of Conduct, section 10 which deals with salaries of employees; section 11 which provides for constitution of a Delhi School Tribunal; and section 12 which states that the provisions of Chapter are not to apply to unaided minority schools. The petitioner professes to be a minority school. It is, however, admitted that it receives aid from the Director of Education. Therefore, the petitioner contends that it is an aided minority school.
(10) Section 12, as it stood, clearly states that the provisions of Chapter Iv are not applicable to unaided minority schools. Ipso facto the said provisions are applicable to aided minority schools. As aided minority schools were covered, the provisions of the Act were challenged by some minority institutions in this Court. In S. S. Jain Sabha (of Rawalpindi) Delhi and others v. Union of India and others 2nd (1976) Ii Delhi 61(2). a Division Bench of this Court came to the conclusion that, the termination of service of an employee, under section 8(2) of the Act need not get the approval of the Director but he may be kept informed. It was further held that such an employee will not be able to appeal to the School Tribunal under subsection (3) of Section 8 if he is an employee of minority school. The approval of the Director for suspension required by subsections (4) and (5) of Section 8 would also not be needed in case of a minority school. The Division Bench was not concerned, and. therefore, did not focus its attention, in interpreting section 12 of the Act because, as already observed, the petitioner in that case was aided minority school to whom the provisions of Chapter Iv of the Act clearly applied.
(11) The provisions of the Delhi School Education Act, and of Section 12 in particular, came up for consideration before the Supreme Court in the cases of Frank Anthony Public School Employees' Association v. Union of India and others, . Frank Anthony Public School was admittedly an unaided minority institution. Two of it? employees had been suspended but the permission of Director of Education had not been obtained. Section 12 of the Act. which made the provisions of sections 8 to 11 inapplicable to unaided minority schools, was challenged. The Supreme Court held the provisions of section 12 as void and discriminatory and inapplicable to unaided minority schools except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. The result was that all the provisions of Chapter Iv except section 8(2) became applicable as a result of the aforesaid decision. In arriving at this conclusion, the Supreme Court observed that, excepting the section 8(2), the other provisions of Chapter Iv did not encroach upon any rights of minorities to administer Their educational institutions. The Supreme Court did not specifically deal with the case of an aided minority school for the reason that the provisions of Chapter Iv were applicable to aided minority institutions. The decision of the Division. Bench of this Court in the case of S.S. Jain Sabha (supra) was not referred to or dealt with by the Supreme Court. It was, therefore, sought to be contended by the learned counsel for the petitioners that as far as aided minority schools are concerned, because of the decision in S.S. Iain Sabha's case the provisions of section. 8(2) aie not applicable. It is true that, as already mentioned, the Supreme Court did not specifically deal with S. S. Jain Sabha's case. The Supreme Court nevertheless examined all the provisions of Chapter Iv of the Delhi School Education Act and came to the conclusion that none of those provisions impugned upon any of the rights guaranteed under Articles 29 and 30 of the Constitution. This declaration of the law by the Supreme Court would be applicable both with regard to aided and unaided minority institutions. For the purposes of examining the validity of an Act in relation to the rights under Articles 29 and 30 of the Constitution, it is immaterial whether the institution is an aided or an unaided one. The provisions of an enactment have to be examined independently and whether the school receives aid or not is of no consideration. In S. S. Jain Sabha's case the provisions were examined not on the basis that the school was an aided one but were examined by treating the institution as minority institution. In my view, therefore. In view of the decision of the Supreme Court in Frank Anthony School's case, wherein it has been held that the provisions of Chapter Iv, excluding section. 8(2), do not encroach upon the rights of the minorities to administer their educational institutions. would have the effect of making the law laid down by S.S. Jain Sabha's case inapplicable to that extent.
(12) In any case, I am in agreement with the conclusion of the Tribunal that the petitioner cannot be regarded as a minority institution.
(13) There are two types of minority institutions which are recognised by our Constitution. One of them are those institutions which are run by religious minorities and secondly those which arc run by linguistic minorities.
(14) According to the petitioners, Sant Nirankari Mandal and the School set-up by it is a religious institution. It was vehemently argued by Shri Marwaha on behalf of the petitioners that the founders have brought into existence a new religion and it is entitled to the rights guaranteed under Article 30 of the Constitution. The Tribunal has referred to various documents and literature which had been placed on record before it and came to the conclusion that it is not a separate religion. The documents referred to by the Tribunal in its decision have not been placed on record in this petition. It will, therefore, be more convenient and proper to quote the relevant part of the order of the Tribunal wherein reference, is made to the said literature. The same reads as under :
"22,And now I advert to the crucial controversy as to whether the respondent school can be treated as a minority school. In this regard a large number of documents have been placed on record from the side of the appellant in order to show that the founder as well as the present head of the Sant Nirankari Mission have been consistently and unequivocally representing that the Mission was not founding any new religion and it was also not confined to any particular religion. Instead the followers of all religions, Hindus, Sikhs, Muslims, Buddhist, Christians etc. were all invited to join it for better understanding of spiritualism, humanism and righteous life.
23.I now briefly advert to those documents.
24.The first of them is the memorandum of the Association of the Sant Nirankari Mandal as registered under the Societies Registration Act, 1860. It clearly mentions one of its aims and objects as not to have any interest or concern what so ever with any communal, political or religious institution anywhere, in India and the world. Its membership is next made upon to any caste, creed, colour, sex or nationality. In the booklet "International Mission" published by the Mandal, it is mentioned at page 9 that it would suffice to say that the Nirankari Mission is neither a 319 new religion nor a sect and further that it has no connections whatsoever with any sect or religion. Rather it has been stated that the Nirankari Mission is a family of such God-realized people who no longer belong to any sect or community, race, religion or nationality. At page 11 it is mentioned that the followers of the Mission are free to have their own religions. Reverence is paid to all the past prophets of different religions. Similar Views were mentioned in the booklet "Our Mission". It was made clear that the Mission does not prescribe to any sect or religion, nor identifies itself to any particular religion or community. In another pamphlet "Nirankari-Mission Brotherhood" a letter of the present head of the Nirankari Mission is published to the effect that his duties include revealing God to one and glorify the holy prophets of all religions. His message is for the human being and not for members of any particular religion, community or nationality.
25.In an article published on the Nirankaris in the Illustrated Weekly of 4th January, 1977, it was mentioned that the Nirankaris do not hold any one religious book to be holy though they may quote from Gita and Quran, the Bible, the Guru Granth and any religious texts. In the publication "Men Awaz" the present head of the Mission has further clarified at page 152 that he was not attached with any religion and that he was a man singularly attached with God. In a publication of the Mission on its Silver Jubilee Samagam in the year 1972 also there was a clear statement that Nirankari Mission is neither a new religion nor a sect. It has also no concern whatsoever with any religion, and instead is purely a spiritual mission which has a programme of reclaiming the errant humanity by way of imparting the Divine knowledge of all human beings. The Mission, it was stated, commands a following of about 10 millions people belonging to different religions, sects and nationalities in India and abroad. It is also not for or against any religion but stands for bringing unity in diversity by uniting people of all religions while allowing them to retain their respective outer symbols of culture and nationality. The Mission also does not require anyone to change his religion but enables them to become true Christian, Hindu, Mohammedan or Sikh. Similar views are expressed in booklet and pamphlet "Sant Nirankari Mission" published by the Mission. The book "Nirankari Baba" by Balwant Gargi also brings out the non-attachment of the Mission with any religion. At page 7 it is specifically mentioned that songs in different languages are sung at the mission. As would be clear from the memorandum of the Association of the Sant Nirankari Mandal about its aim and object, it has no concern with any specific religion nor identifies itself as such. Its membership is left open to the followers of all religions. The heads of the Mission have also been making it clear that no new religion has been brought into vogue and the disciples are left free to follow the tenets of their own religions. No conversion, from one's own religion is required. Respect is paid to prophets and holy books of all religions. Its followers are as well drawn from all regions and the activity is also not confined to Punjabi speaking areas of people only."
(15) From the aforesaid, it is clear that the founders have categorically asserted that a new religion or sect or order was not being set-up and that the Nirankaris were merely a Brotherhood. Even in the Memorandum of Association, as already noted, one of the aims and objects of the Mandal is to spread the message of fraternity and universal brotherhood among people of all kinds. Another aim and object is "The Sant Nirankari Mission shall have no interest or concern whatsoever with any communal, political or religious institution anywhere in India and the world". Baba Gurbachan Singh, former Head of the Sant Nirankari Mandal has stated in his book "Meri Awaz" at page 127 para 3 (translated in English as under) :
"I do not have any aim to establish any new religion. I. request all of you to follow only that religion upon which you have faith. Understand the reality of that religion and stick to that. Whichever religious book you like, follow that but it will not be advantageous nearly to read but to follow that." Further in the same book at page 118 para 2 it is stated : "THERE can be various Holy Books in which several ways of realisation of God are shown according to one's own experiences. But the people of today instead of getting advantage from them halve indulged in quarrels of showing superiority of one religious book over the other. I want to communicate to these people that they should mould their lives according to those religious books which they like." It is clear that it was not a new religion which was sought to be brought into existence, even though the followers of the Mission may be religious minded people.
(16) It is then contended by Shri Marwaha that the petitioner should be regarded as a linguistic minority. According to the learned counsel, the provisions of Article 29 of the Constitution were applicable as petitioner represented a section of Society which had its own language. Elaborating his arguments, the learned counsel submitted that the founders of the Mission were Sikhs and the language in which they spoke and preached was Punjabi. It was also submitted by the learned counsel that the followers of the Mission also speak Punjabi and that the discourses are also given in Punjabi. While it is not denied by the respondent that the founders of the Mission may have been followers of the Sikh religion but it is vehemently denied that the Nirankaris can be regarded as a linguistic minority. The case of the respondent is that the petitioner is not a linguistic minority and it does not have a distinct spoken language. The question as to who can be regarded as a linguistic minority came up for consideration before a Division Bench of this Court in the case of Sindhi Education Society (Regd.) v. Director of Education and others. Civil Writ No. 940 of 1975 decided on 14th July, 1982(4). In that case the contention was that the petitioner was managing the school and its affairs were conducted under the influence and guidance of the people who are well-versed in the tenets of the teachings of Baba Nebh Raj and in the language as spoken by the Sindhies. According to the petitioner, they were linguistic minority and following the decision of S. S. Jain Sabha's case (supra), it should be held that the provisions of the Delhi School Education Act and the Rules framed there under should not be applicable. Dealing with the question of minority it was observed as under : "THE question which immediately arises is as to what is a minority. Has the minority to be determined with reference to a district or a State or the whole of India. Such a question did come up for consideration before the Supreme Court hi the Presidential reference in the Kerala Education Bill. While noticing that a minority community would be one which is numerically less than 50 per cent, the question arose as to 50 per cent of what ? The Supreme Court observed that as the bill before it extended to the whole of the State of Kerala, therefore, the minority had to be determined by reference to the entire population of that State. The implication of this is -clear, namely, that the question as to who can be regarded as a minority, religious or linguistic, has to be decided having regard to the numerical strength in the area in which a given enactment is applicable. Where, in a given State, a section of the people belong to a religion which is not a religion of the majority of the persons residing therein then that section of the people would be regarded as a religious minority. Similarly, where the mother-tongue of a section of the people, whatever be their religion, is not the language of the majority of the people in an area then such a section of the people would be regarded as a linguistic minority. In the present case the Delhi School Education Act is applicable only to the Union territory of Delhi. It is with reference to this Territory that one has to consider as to whether Sindhi is a language spoken by the majority or minority of the people. On this, there can be no doubt. Sindhi is not spoken by majority of the people in Delhi and, therefore, the Sindhi community in Delhi can legitimately be regarded as a linguistic minority. Just as a religious minority may be composed of persons whose mother-tongue may not be the same, similarly a linguistic minority may not necessarily be composed of people who belong to a religious minority of the State. As such, every person, who is a Sindhi, would be regarded as belonging to a linguistic minority irrespective of the fact as to whether he is a Hindu, or a Muslim or a Christian or belongs to any other religious community."
(17) The question as to whether the petitioner is a linguistic minority or not is a question of fact. I have already held that the petitioner is not a religious minority. The petitioner, however, claims that it is a linguistic minority as its spoken language is Punjabi. It is true that a linguistic minority may consist of people belonging to different religion as long as their mother tongue is the same. It is also the case of the respondent that persons belonging to different religions are members of the NiranKari Mission, but, and this is crucial question, do persons belonging to the Mission have the same or distinct mother-tongue and is that mother-tongue Punjabi ? There is no evidence on record on the basis of which I can possibly come to the conclusion that the petitioner is a linguistic minority.
(18) In order to succeed, the petitioner has to first establish that Punjabi, in the present day and age, can be regarded as a minority language in the Union Territory of Delhi. Assuming that Punjabi is not the mother-tongue of the majority of the population of Delhi arid is, therefore, entitled to have a minority status here, there is, to my mind, lack of evidence to show that the mother-tongue of the members of the Mission is Punjabi. The mere fact that the founders of the Mission may have had Punjabi as their mother-tongue would not mean that the mother-tongue of the entire members of the Mission is Punjabi. In order to constitute a linguistic, minority the section of the community, assuming Nirankaris can be regarded as such, have to have a common mother-tongue. The respondent has) in his affidavit in reply, referred to the fact that the literature of the petitioner is printed and published in different languages. What is, however, important to note is that in the book "Meri Awaz" by Nirankari Baba it has been stated in Hindi that "in reality and truth none of the principles of the Mission is artificial. The followers of this Mission have no religious, political, social or linguistic restrictions. Only for this reason the followers of this Mission do not find themselves tied with any bindings". It is further contended by the respondent that the Nirankaris command allegiance of about 10 million people belonging to different religions and nationalities all over the world. It is, therefore, difficult for me to come to the conclusion that the petitioner can be regarded as a linguistic minority. Merely because discourses in this part of India are given in Punjabi would not make Nirankaris a linguistic minority. To give an example, Christians services are held, in India, not only in English but in different regional languages. This would not mean that Christians are a linguistic minority. In order to be a linguistic minority, as already observed, all members of that section of community must have a common mother-tongue. I am not satisfied that in the present case it is possible to come to the conclusion that all members of the Mission have Punjabi as their mother-tongue. The petitioner cannot, therefore, be regarded as being linguistic minority.
(19) It was lastly submitted by the petitioners that if Section 8(2) applies then it could be given permission to apply to the Director of Education for permission to dismiss respondent No. 2. If the order of dismissal did not suffer from any other infirmity, the request of the petitioners' counsel could be justified. In the present case, however, this is not so. The Tribunal has, on merits of the case, come to the conclusion that the Disciplinary Committee was not properly constituted at the time when it took a decision to disagree with the findings of the Enquiry Officer. The Disciplinary Committee is statutorily constituted. Rule 118 of the Delhi School Education Rules provides for the composition of the Committee. The only independent member out of the 5 member Committee is a nominee of the Director of Education. In the present case the nominee of the Director of Education, who happened to be a principal of another school, admittedly did not attend the meeting on the day when it was decided that the report of the Enquiry Officer should not be accepted. Thereafter show-cause notice was issued to respondent No. 2 to show cause why he should not be dismissed from service. Reply to the same dated 22nd December, 1976 was sent by respondent No. 2 on 24th December, 1976 the Chairman of the Disciplinary Committee passed the order of dismissal. In the said order there is nothing to indicate that the entire Disciplinary Committee, including the nominee of the Director of Education, applied its mind to the reply which had been sent by the said respondent vide his letter dated 22nd December, 1976. The impugned order reads as follows: "WHEREA Sit is alleged that Sh. Om Parkash Gupta while functioning as Pgt Commerce (i) indulged in and encouraged different forms of malpractices connected with examination and other similar activities (ii) was irregular in attendance and reached the school late and left the school early on many occasions and while being present in the school did not mostly teach the Xi class students (iii) accepted jobs of remunerative character by giving private tuitions to many students unlawfully at House No. 5055, Gali Brahman Wali, Paharganj, Delhi, (iv) charged certain sums of money from some students for getting them through in their examinations (v) Gave a wrong residential address and cheated the exchequer by producing forged rental receipts. And, whereas, the said acts constitute an offence punishable under law. And, whereas, I chairman of the Disciplinary Committee as well as Secretary-cum- Manager of the school, being the authority competent to remove the said Shri Om Parkash Gupta from his post as Pgt Commerce after fully and carefully examining the material before me in regard to the said allegations and the circumstances of the case, considered that the said Shri Om Parkash Gupta is not fit person to be retained in service. And, whereas, the Disciplinary Committee of the school has unanimously decided to dismiss Sh. Om Parkash Gupta, Pgt Commerce from Service on the basis of the conclusion arrived at by the Disciplinary Committee. Now, therefore, I on behalf of the Disciplinary Committee of the school hereby dismiss Sh. Om Parkash Gupta, Pgt Commerce from service w.e.f. 24-12-1976 (A.N.). The reading of the order as a whole clearly leaves the impression that the Chairman was acting on behalf of the Disciplinary Committee in passing the order of dismissal as is evident from the last sentence of the order wherein it is said "I on behalf of the Disciplinary Committee of the school hereby dismiss Sh. Om Parkash Gupta. ..........".Earlier in the order he had referred to his examining the material on record and coming to the conclusion that respondent No. 2 was not a fit person to be retained in service. The reference to the unanimous decision of the Disciplinary Committee to dismiss respondent No. 2 appears to be a reference to the meeting held in November, 1976 in the absence of the nominee of the Director of Education when it was decided not to accept the report of the Enquiry Officer and to issue a show cause notice to respondent No. 2. As there is this infirmity in the order of dismissal, the question of allowing the petitioner to seek permission from the Director of Education under section 8(2) docs not arise.
(20) Before concluding, I might refer to another finding of the Tribunal wherein it has been held that "before issuing a show cause notice the petitioner should have given respondent No. 2 an opportunity of being heard". Mr. Joseph, the learned counsel for respondent No. 2 very frankly and fairly concedes that the conclusion of the Tribunal in this behalf cannot be supported. The petitioners did give respondent No. 2 an opportunity of making a representation vide its show cause notice dated 15th December, 1976. Along with the show cause notice, the reasons why the Disciplinary Committee differed from the Enquiry Officer and was of the opinion that the charges were proved were contained. Respondent No. 2, therefore, had adequate opportunity of defending himself and it cannot be said that principles of natural justice were violated in this behalf. For the aforesaid reasons I find no merit in the writ petition. This petition is dismissed with costs. Counsel's fee Rs. 1000.