Madras High Court
Mani Higher Secondary School, ... vs The Joint Director (Secondary) School ... on 11 March, 1988
Equivalent citations: (1989)ILLJ34MAD
ORDER
1. Petitioner School is the Higher Secondary School and it files this writ petition to quash the order of the second respondent dated 20th August 1985 and earlier order passed by the first respondent dated 7th November 1983, holding that third respondent-teacher is entitled to be restored to the post of Tamil Teacher with full benefits.
2. Petitioner states as follows :
Service conditions of the third respondent are governed by the terms of a service agreement entered into as prescribed in G.O.Ms. No. 587, Education, dated 22nd February 1978. According to clause 8 therein, if a teacher is found unfit to discharge his duties, the he is liable to be terminated on payment of three months' pay. Third respondent is the only qualified Tamil Teacher for Higher Secondary Classes, and there being no substitute to handle the said classes, and further as he was suffering from peptic ulcer, nervous debility, and exhaustion, he could not discharge his duties properly. In spite of oral warnings given, his absence being phenomenal, the Governing Council, after careful consideration, passed a resolution on 8th April 1983 to terminate his services. A sum of Rs. 4692/- representing three months' salary was also paid, and he received it without protest. After encashing it on 13th April 1983, curiously on 30th April 1983, he asked for reinstatement by questioning the order of termination. He then preferred an appeal under Section 23 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974 (hereinafter referred to as the Act) to the first respondent, claiming that his termination was done without prior approval of the competent authority under the Act, and without extending an opportunity to him. First respondent without giving opportunity to petitioner, set aside the order of termination on the ground that the termination order had been passed without approval of the competent authority and directed the third respondent to be reinstated. It is as against the said order, an appeal was preferred to the second respondent which confirmed it by impugned order dated 20th August 1985. When a teacher is terminated as unfit on medical grounds, and there being no need to secure a prior approval from the competent authority, the impugned orders being illegal, this writ petition is filed.
3. On behalf of third respondent, it is contended that the termination effected without prior approval is illegal, and that the termination could have been done only by the 'School Committee' and not by the 'Educational Agency', and that there being no medical opinion obtained by Management about his unfitness, the termination was illegal on either ground.
4. Mr. R. Gandhi, learned Counsel for the petitioner, would first submit that there was no need to secure prior approval of the competent authority when termination is due to unfitness of a teacher on medical grounds. He produces before Court the agreement signed between the Management and the third respondent. He submits that it is in the statutory Form VII-A as contemplated in Rule 15 of the Rules.
5. Mr. Chandru, learned Counsel for third respondent, would hasten to point out that the agreement is between the 'Managing Committee' of the school and the third respondent, whereas the prescribed form should be between the 'School Committee' and the teacher. Managing Committee is the 'Educational Agency' of the School. In the Act, these are different conceptuals. Section 2(3) defines 'educational agency' and Section 2(8) defines a 'school committee'. Section 15 prescribes how a school committee is to be constituted. Section 17 deals with meetings of the school committee. Section 18 deals with functions of the school committee and the responsibility of the educational agency under the Act. Therefore, he submits that the petitioner school had not known about the difference between a 'school committee' and the 'managing committee/agency' and therefore, the agreement relied upon itself is non-existent under the provisions of the Act. There is considerable force in this plea, because the petitioner Management has not placed before Court any agreement entered into between the 'school committee' and the third respondent as provided under Rule 15, and therefore, when the main thrust of the arguments of the petitioner is based on Clause 8 of the agreement, it has to be held that there was no proper agreement entered into under the provisions of the Act.
6. If for any reason it has to be held that the agreement is a valid agreement, then, whether under clause 8, a termination could take place without prior approval, is the other point for consideration. It is contended that, it is left to the discretion of the school committee to terminate the services of a teacher who is found to be unfit on medical grounds, and this power is absolute and cannot be intercepted by any authority, and there is no need to inform the competent authority, when such a termination takes place. For this contention Section 22 of the Act is relied upon which begins with the words "subject to any rule that may be made in this behalf.....". It is pleaded that, in the light of clause 8 of the agreement prepared under Rule 15 having not contemplated any prior approval being obtained, there is no need to comply with the requirements of Section 22(1). Rule 17 deals with the power to be exercised under Section 22. Termination on medical ground is not provided therein. Assuming for the sake of arguments that clause 8 in Form No. VII-A is a rule envisaged under Section 22(1), it cannot be read contrary to what is found in the Section. A rule framed under a section would never take away the powers contained in the section. Whether the termination results in dismissal or removal or reduction in rank or otherwise, Section 22(1) prescribes that prior approval of the competent authority must be obtained. Under Section 18(1)(b), it is the 'school committee' which appoints a teacher, and under Section 18(2) and (3), for any action done by the 'school committee'in the discharge of its functions under the Act, it would be binding upon the 'educational agency' and deemed to be the decision or action taken by the 'educational agency'. Therefore, when the power to terminate is so conceived of under the Act like dismissal, removal on the ground of unfitness, etc., they would all come within the ambit of Section 22(1). Termination may be on different grounds, and one of them would be on medical grounds. Once under the section itself, a pre-condition having been imposed, there is no need to repeat it, while framing a rule relating to a termination on a particular ground.
7. Mr. Gandhi, learned Counsel for petitioner, submits that, in clause 8 of the agreement, it is not stated that prior approval must be obtained. But, when clause 8 termination falls within the ambit of Section 22(1), it is the pre-condition in the agreement. It does not stand on its own, without reference to the pre-condition in Section 22(1). As stated, when any sort of termination of service of a teacher would come under Section 22(1), there is no substance in the contention that clause 8 of the agreement is outside its applicability. It must be stated that clause 8 of the agreement cannot be treated as a statutory rule, but only as a condition of service, as found in a statutory form of agreement.
8. To substantiate the contention that prior approval is pre-requisite, the following decisions are relied upon. In Miss Ratna Bablani v. Director of Education (Delhi Admn.) & Ors. (1978) SLJ 44 dealing with identical provision found in Delhi School Education Act, it was held that prior approval as provided under the Act is a must, before ever a teacher is terminated, failing which, it will be an illegal termination. Likewise, in The Managing Committee of Bhagabati Middle English School v. Baikunthanath Mohapatra and others (1977) (2) SLR 37 (Orissa), it was held that in the absence of approval of the prescribed authority, the order of termination is void. So is the view taken in Chhabinath Rai v. Principal, Adarsh Higher Secondary School, Chozipur and others (1977) (2) SLR 184 (Allahabad) wherein a permanent teacher of a recognised and aided institution was terminated from service without prior approval from the District Inspector of Schools. It was held that such a termination is illegal.
9. Yet, learned Counsel for the petitioner relied upon the decision in Jagadeesan v. Ayya Nadar Janaki Ammal College (1983-II-LLJ-190) taking the view "other termination" in Section 19(1) of T.N. Act 19 of 1976 should be read ejusdem generis with the preceding words "dismissed, removed or reduced in rank", and therefore, a termination order simpliciter does not require prior approval. The termination in the instant case comes under Tamil Nadu Act 29 of 1974, and hence, the said decision has no binding effect for the purposes of this Act. Therefore, when petitioner had failed to obtain prior approval, the termination of third respondent's services was not valid.
10. Though petitioner would claim that between 1980 and 1983 third respondent had absented for nearly 50% of the working days in each academic year, third respondent's learned Counsel would point out that, during the 29 years of his service, he had never taken any leave on medical grounds; and when during the three relevant years, because of unforeseen illness, he had to apply for leave, and it was also sanctioned on proof of illness, and on every occasion, when he reported to duty, he had furnished a medical fitness certificate obtained from the hospital run by the School Management. At no point of time, any medical certificate had been obtained by the Management, that third respondent was unfit to discharge his duties. Long absence on medical grounds would not mean that he is medically unfit to discharge his duties, at the time when the order of termination was passed.
11. Mr. Gandhi, learned Counsel for the petitioner, would state at this juncture that, in spite of the teacher being called upon to appear before the Medical Board, he has avoided it, but there is nothing on record to show that before passing the order of termination, any medical opinion was obtained by the Management that he was unfit to continue in service as a teacher. Therefore, there has been a failures on the part of the petitioner in complying with clause 8, which it relies upon.
12. Third respondent relies upon Anglo-French Mills v. Goulam Cader (1966-II-LLJ-700) in which it was held that before a termination is effected by the employer on the ground that the workman is suffering from illness, he should be given an opportunity to avail of the enablement provided in the Code by giving him required time to get himself cured, and that no opportunity was ever extended, even though such a provision is not found, but on principles of natural justice, an opportunity should have been given regarding the claim made by petitioner, that he was unfit on medical grounds. In the instant case, except to take into account that the third respondent had suffered illness during long periods for three academic years, the Management had not collected any material to hold that the teacher was unfit to discharge his duties, when the order of termination was passed. Whenever he rejoined, he gave a fitness certificate. Here again, a decision in Motor Industries Co. Ltd. v. B. N. Keshava 58. F.J.R. 20) is relied upon to contend that when medical certificates are filed and leave obtained, that cannot form the grounds to treat that the absence was illegal or that his attendance was irregular warranting termination. In any event, when the decision had been arrived at by petitioner without obtaining a medical opinion about the unfitness of third respondent to continue in service, his absence during the preceding three years for which leave had been sanctioned cannot tantamount to unfitness on medical grounds, when on every occasion he had reported to duty with a fitness certificate.
13. Yet another contention put forth by Mr. Chandru, learned Counsel for the third respondent, is that by virtue of Section 28, any agreement entered into which is not strictly in accordance with the terms of Form VII-A would not be binding between the parties, and that the provisions of the Act alone would prevail. As already held, the agreement entered into by the Managing Committee which is the 'educational agency' as defined in Section 2(3) of the Act, is contrary to the provisions of the Act.
14. Therefore, for all the reasons above stated, this writ petition is dismissed with costs. Counsel fee Rs. 500/- payable to third respondent.