Lissy Roy vs Mar Gregorious English Medium Higher ... on 27 February, 2013

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Kerala High Court

Lissy Roy vs Mar Gregorious English Medium Higher ... on 27 February, 2013

The petitioner was working as Stores Clerk in Mar Gregorious English Medium Higher Secondary School, Njaliyakuzhy in Kottayam District (for short 'the School') and she is aggrieved by the termination from its service with effect from 31.3.2013. This writ petition has been filed seeking quashment of Ext.P2 notice and issuance of a writ of mandamus commanding the respondents 1 to 3 to reinstate the petitioner in service of the respondents as Stores Clerk with effect from 01.04.2013 and to disburse all service benefits due to her. The further prayer is for a declaration to the effect that the termination of the petitioner as per the decision of the 3rd respondent dated 07.02.2013, as has been mentioned in Ext.P2 notice, is arbitrary, illegal and violative of principles of natural justice.

2. It is common case that the School is a recognised unaided school under the Kerala Education Act. The petitioner was appointed as clerk in the school on 02.06.2001 and thereafter posted as Stores Clerk. At the outset, it is relevant to note that the petitioner relies on Rule 4(c ) of Ext.P1 to contend that it authorises W.P.C.NO.13602 OF 2013 2 the Governing Body only to give suggestion to the Manager without prejudice to the provisions of the Kerala Education Act and the Rules thereunder and that the existence of Ext.P1 has not been specifically disputed by the respondents. It is also nobody's case that the petitioner was so promoted and had been working in the Higher Secondary Wing of the School. The case is that while working so, the petitioner was issued with Ext.P2 notice dated 27.2.2013 intimating her of the decision to terminate her from service with effect from 31.3.2013 for commission of certain misconducts. It is stated therein that earlier the governing body of the 1st respondent arrived at a decision to terminate her service by way of penalty. It is the precise case of the petitioner that she stood terminated from service in terms of Ext.P2 and no other orders in relation to termination have been issued to her either prior to or subsequent to Ext.P2. Various grounds have been raised by the petitioner to assail Ext.P2 and to fortify her claim for the aforesaid reliefs. Firstly, it is contended that no enquiry whatsoever was conducted against her and therefore the imposition of the extreme penalty of termination from service is unsustainable for violation of the principles of natural justice and also the specific provisions under Rule III of Chapter XIV-AA of the Kerala Education Rules (for short the 'KER'). It is in the said circumstances that this writ petition has been filed with the aforementioned prayers.

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3. A counter affidavit has been filed on behalf of respondents 1 to 3. A perusal of the counter affidavit would reveal that their prime contention rather, objection is regarding the maintainability of this writ petition. According to them, no writ petition would lie against the 1st respondent as it is a private recognised unaided school. It is further contended that the petitioner is guilty of suppression inasmuch as O.S.No.97 of 2013 filed by her before the Munsiff Court, Changanasserry in the same subject matter was withdrawn only during the pendency of this writ petition viz., on 04.06.2013 and not prior to its filing. It is stated that in the said suit the petitioner had earlier filed a temporary injunction application and after hearing it was dismissed on 1.4.2013. (In fact, it was dismissed on 4.4.2013). It is also stated in the counter affidavit that though several complaints were received earlier against the petitioner considering her widowhood and the unconditional apology she was permitted to continue in service and it is commission of financial irregularities while holding charge of the school society that constrained the 3rd respondent to terminate her service. Further, it is contended that another clerk namely Elsamma Chacko who stood terminated from service along with the petitioner challenged her termination before the Labour Court, Kottayam and it is now pending. Ext.R3(c) is the minutes of the governing body held on 10.08.2005 that took the decision to divest the petitioner from the W.P.C.NO.13602 OF 2013 4 charge of the school society alleging commission of financial irregularities and as per Ext.R3(b) it was decided to seek explanation from the petitioner and vide the same she was also placed under suspension. As per Ext.R3(e), the Board of Directors decided not to give salary to the petitioner during the suspension period. To sum up, the pleadings in the counter affidavit would reveal that it was the allegation of commission of indiscipline and financial irregularities from the part of the petitioner that culminated in her termination from service.

4. A reply affidavit was filed by the petitioner admitting the fact that the writ petition was filed prior to the withdrawal of O.S.No.97 of 2013 rather, getting it dismissed as not pressed. The circumstances under which the alleged misleading statement that it was withdrawn was made have been explained in the reply affidavit. In fact, the said original suit was dismissed as not pressed only on 04.06.2013.

5. Firstly, I will deal with the various grounds raised on the question of maintainability of this writ petition. It is contended that this writ petition was filed during the pendency of O.S.NO.97 of 2013 before the Munsiff Court, Changanasserry for the same cause of action and though, it is stated in the writ petition that it was withdrawn the suit was actually dismissed as not pressed only on 04.06.2013. As noticed hereinbefore, in the reply affidavit the petitioner has narrated the W.P.C.NO.13602 OF 2013 5 circumstances that resulted in making such a statement in the writ petition. The learned counsel appearing for the respondents, however, submitted that the question germane for consideration is the impact of dismissal of an original suit as withdrawn in the light of Rule I (4) of Chapter XXIII of the Code of Civil Procedure (for short 'the Code'). It is submitted that in the light of the provisions under Rule I (4) of Order XXIII this writ petition is not maintainable. It is contended that the withdrawal of the aforesaid suit would amount to abandonment of her claim and therefore, the petitioner is precluded from filing any fresh proceedings on the same subject matter. That apart, the learned counsel contended that in the light of the doctrine of election and also taking into account the fact that the said suit was maintainable the petitioner ought to have pursued with O.S.No.97 of 2013. Per contra, the learned counsel appearing for the petitioner submitted that a conjoint reading of the provisions under Rule 1 (4) of Order XXIII and the explanation under Section 141 of the Code would reveal the untenability of the contention based on Rule (1) 4 of Order XXIII. The petitioner also relied on the decision of the Hon'ble Apex Court in S.J.S.Business Enterprises (P) Ltd V. State of Bihar and Others reported in 2000 (4) KHC 1485 and that of this Court in Muhammed Vs Canara Bank reported in 1991 (2) KLT 455 to resist the said rival contentions.

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6. It is only proper to consider the scope of Rule 1(4) of Order XXIII of the Code in the context of the rival contentions and it reads thus :-

Order XXIII

1. Withdrawal of suit or abandonment of part of claim:-

               (1)            XX            XX
               (2)             XX           XX
               (3)             XX           XX
               (4)     Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule(1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(emphasis added) A scanning of the said provision would reveal that institution of a fresh suit is barred by Rule 1(4) of Order XXIII of the Code, in a case where the concerned plaintiff abandons any suit or part of a claim under sub rule (1) of Rule I of Order XXIII of the Code or withdraws any suit or part of a claim without permission referred to in sub-rule (3) of Rule 1, Order XXIII of the Code. In this case, evidently, the suit was dismissed as not pressed based on a petition filed by the petitioner in that regard. Thus, evidently, there is absolutely no chance of prosecution of the same cause of action, by the petitioner, simultaneously before this Court and also before the Civil Court. Therefore, the question to be considered is what is the impact of the sub-rule (4) (b) of Rule I, Order XXIII of the Code on the maintainability of a writ petition moved on the W.P.C.NO.13602 OF 2013 7 same subject matter. Undoubtedly, if a suit is withdrawn without the permission referred to in sub-rule (3) of Rule 1, Order XXIII of the Code it would clearly bar institution of a fresh suit in respect of such subject matter or such part of the claim. But the question is whether the said provision would render this writ petition not maintainable in the facts and circumstances expatiated earlier. A Full Bench of the High Court of Karnataka in Harunautha Rao V. State of Mysore reported in (1963) 2 Mys.L.J.164(FB) and a Division Bench of the Allahabad High Court in State of U.P V. M.M.Khanna reported in 1977 All.L.J 262 (DB) held that the provisions of Rule 1, Order XXIII of the Code do not apply to petitions under Articles 226 and 227 of the Constitution of India. In this case, the petitioner filed this writ petition prior to the dismissal of the said suit as not pressed. In the contextual situation it is also apposite to refer to Section 141 of the Code and also the decision of the Hon'ble Apex Court S.J.S.Business Enterprises (P) Ltd's case (supra).

7. Section 141 of the Code and explanation thereto read thus:-

Section 141:- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made, applicable, in all proceedings in any Court of civil jurisdiction. Explanation:- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. Prior to the insertion of the explanation to section 141, the question W.P.C.NO.13602 OF 2013 8 whether an application under Article 226 of the Constitution of India is a procedure in a Court of civil jurisdiction within the meaning of section 141 of the Code had been a subject of controversy. Taking into consideration the cleavage on opinion between various High Courts the Law Commission of India in its 54th report recommended for an express amendment to section 141 of the Code to include in its scope, proceedings under Order IX and to exclude from its scope, proceedings under Article 226 of the Constitution of India. It was subsequent to the said recommendation that the explanation was inserted to section 141 of the Code by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1.2.1977. Thus, from the Explanation to Section 141 of the Code it is clear that the expression 'proceedings' employed under section 141 of the Code would not take in 'the proceedings under Article 226 of the Constitution of India'. That apart, no adjudication was made in the suit and the suit was dismissed as not pressed. Nonetheless the respondents 1 to 3 also contend that this writ petition is liable to be dismissed for suppression of material facts. True that this writ petition was filed on 29.05.2013 and O.S.No.97 of 2013 was dismissed as not pressed only on 04.06.2013 and that in this writ petition it is averred that the said suit was dismissed as not withdrawn. Therefore, essentially, the question is whether the writ petition is liable to be dismissed for suppression of W.P.C.NO.13602 OF 2013 9 facts. While the respondents contend that this writ petition is liable to be dismissed on that score the petitioner contends that in the light of the decision of the Hon'ble Apex Court in S.J.S.Business Enterprises (P) Ltd case (supra) the mere fact that such a statement was made in the writ petition would not and could not be a ground for dismissing the writ petition.

8. In S.J.S.Business Enterprises (P) Ltd case (supra) the appellant instituted a suit on 04.04.2002 challenging the action of Bihar State Credit and Investment Corporation Ltd., ('BICICO'). An application for interim relief was made to restrain BICICO from selling the hotel. The prayer for interim injunction was refused by the learned Sub Judge on 08.04.2002 and notice was directed to be issued to BICICO. The next day, the appellant filed a writ petition seeking the same relief as has been prayed for in the suit. Thereupon, an interim order was passed in the writ petition on 09.04.2002 after hearing the counsel for the appellant. Before the said writ petition came up for hearing the said suit was withdrawn. However, when the writ petition came up for disposal the learned Single Judge dismissed the writ petition holding that the appellant had suppressed the fact that he had filed a suit prior to the initiation of writ proceedings and that the conduct of the petitioner therein tantamount to fraud disentitling her to get any relief. An appeal was preferred against the judgment of the W.P.C.NO.13602 OF 2013 10 learned Single Judge and ultimately a Division Bench of Hon'ble Patna High Court dismissed that appeal rejecting the explanation given by the appellant. After taking into account the facts involved in that case the Hon'ble Apex Court held that if a party had availed of the alternative remedy before invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition and that the rule is based on public policy and the motivating factor is the existence of a parallel jurisdiction in another Court. It was further held that where the parallel proceedings have been initiated instead of dismissing the writ petition on the ground that the alternative remedy was availed by the party concerned the court may call upon the party to elect whether he/she would proceed with the alternative remedy or with the petition under Article 226. In that view of the matter it was held that the suppression made by the appellant therein could not have been taken as vital or inevitably entailing dismissal of the writ petition on the ground of suppression of facts. Ultimately, after considering all those aspects, the decision of the High Court was set aside and the appellant therein was granted the reliefs sought for in the writ petition. In the case on hand, admittedly the petitioner moved O.S.No.97 of 2013 before the Munsiff Court, Changanasserry. True that, in paragraph 7 of the writ petition it was stated that the said suit was not prosecuted and it was withdrawn. The petitioner has explained the W.P.C.NO.13602 OF 2013 11 circumstances under which such a statement came to be made in the reply affidavit. Admittedly, as on today, the position is that the suit stood dismissed as not pressed on 4.6.2013 and therefore, there is absolutely no question of invocation of parallel jurisdiction on the subject matter as this writ petition alone is surviving for consideration and no adjudication whatsoever touching the merits of the case was taken in the suit. Taking into account all the aforesaid circumstances I do not propose to decline jurisdiction on the aforesaid ground raised by respondents 1 to 3.

9. The next ground raised by respondents 1 to 3 to challenge the maintainability is that the school in question is only a recognised unaided school and therefore, no writ will lie against it in the matter of termination of an employee of a school. It is further submitted that in the case of a non-teaching staff of a recognised unaided school, under such circumstances, the remedy lies under the Industrial Disputes Act. The learned counsel appearing for the petitioner submitted that if at all there is such a remedy that by itself cannot be a reason for canvassing the position that no writ petition will lie especially, in the light of the decision in S.J.S.Business Enterprises (P) Ltd's case. It is further submitted by the learned counsel for the petitioner that this writ petition is maintainable in view of the violation of statutory right under Rule 3 of Chapter XIV-AA of the K.E.R. and the decisions W.P.C.NO.13602 OF 2013 12 in K.Krishnamacharyulu and Others V. Sri.Venkateswara Hindu College of Engineering and Another reported in AIR 1998 SC 295; Sr. Cleta V. State of Kerala reported in 2001 (1) KLT 937; Suter Paul V. Sobhana English Medium High School reported in 2003 (3) KLT 1019; St. Josephs Model High School V. Varghese reported in 2009 (3) KLT 237; Francis V Carmel English Medium High School reported in 2004 (3) KLT 149 and also Ramesh Ahluwalia v. State of Punjab & Ors.[2013 JT (7) SC 149].

10. The fact that 'the school' is a recognised unaided school is not disputed before me. Therefore, essentially, the question is whether a writ petition filed under Article 226 of Constitution of India by a non- teaching staff of such a school challenging the termination from service passed without conducting any enquiry whatsoever, could be entertained by this Court. The contention of the respondents regarding the maintainability of this writ petition on the aforesaid ground is founded on a Division Bench decision of this court in Annamma v. State of Kerala reported in 1994(1) KLT 309. It was held therein that the management of an unaided recognised school is not amenable to the writ jurisdiction of this Court. Finding that such schools are not in receipt of any Governmental aid and they are finding their own means for running the institution and that apart, no Governmental control is exercised over it, this Court held that the mere fact that the school is W.P.C.NO.13602 OF 2013 13 imparting education to the students could not make the management a public authority amenable to the writ jurisdiction of this Court. The private educational institutions are merely supplementing the effort of the State in educating the pupil and that their activities are closely alike and supplemental to the activity of the State and therefore, the said activity of the management could not make the management a body amenable to the said jurisdiction of the High Court, it was further held. Subsequent to the decision in Annamma's case (supra) such an issue came up for consideration before the Hon'ble Apex Court in K.Krishnamacharyulu and other's case (supra). When there is only executive instructions issued by the Government giving employees of private educational institutions, the right to claim pay at par with Government employees and no statutory rules are issued in that regard whether the employees of such an institution not in receipt of any grant-cum-aid could maintain a writ petition under Article 226 of the Constitution of India to claim pay parity, was the question that arose for consideration in that case. It was held that a teacher duly appointed to a post in the private institution is also entitled to seek enforcement of the orders issued by the Government. In the case from which the said case arose the High Court of Andhra Pradesh held, in fact, that the remedy was available to those teachers only under the Industrial Disputes Act. That finding was also reversed by the Hon'ble W.P.C.NO.13602 OF 2013 14 Apex Court and it was held that when an element of public interest is created and the institution is catering that element, the teacher being an arm of the institution is also entitled to avail of the remedy provided under Article 226 of the Constitution of India. Subsequent to the said decision by the Hon'ble Apex Court a Division Bench of this Court considered the question whether a petition under Article 226 of the Constitution of India is maintainable against the manager of a recognised unaided school in Suter Paul's case (supra). It is evident from the decision in Suter Paul's case that the Division Bench considered the decision in Annamma's case rendered by the earlier Division Bench and also the decision in K.Krishnamacharyulu's case (supra). In fact, paragraph 31 of the decision in Suter Paul's case (supra) deals with the contentions relying on Annamma's case (supra). Evidently, the Division Bench held that the view of the Division Bench in Annamma's case (supra) is unsustainable in the light of the decision of the Hon'ble Apex Court in K.Krishnamacharyulu's case (supra). It is after considering the fact that in Annamma's case (supra) a Division Bench of this Court held that a dismissed employee of a recognised unaided institution could not maintain a writ petition under Article 226 of the Constitution that the later Division Bench in Suter Paul's case (supra) held in the contrary, relying on the decision in K.Krishnamacharyulu's case (supra). True that in that case after W.P.C.NO.13602 OF 2013 15 holding thus the Division Bench considered the entitlement of the petitioner therein and declined to interfere with the proceedings on the ground that the petitioner therein had failed to substantiate how and under what authority the D.E.O., was entitled or empowered to hold an enquiry of his own to find out whether a delinquent teacher of a recognised unaided school was guilty or not. The learned counsel appearing for the respondents relied on the decision in Binny Ltd Vs. Sadasivan reported in 2005 (4) KLT 315 (SC) as well to contend that a petition under Article 226 of the Constitution of India by a dismissed employee of a recognised unaided institution would not lie before the High Court. A scanning of the said decision would, however, dissuade me from accepting the said contention. In Binoy's case (supra), in fact, the Hon'ble Apex Court held that a writ of mandamus would lie against a private body of person if such private body or person is discharging a public function and going by the decision the source of power of such body or person is immaterial and it could be statutory or otherwise and what is required is that there must be public law element in such action. True that it was held therein that Article 226 could not be invoked to exercise purely private contracts entered into between the parties. In the said circumstances it cannot be said that the said decision is in conflict with the dictum laid down in K.Krishnamacharyulu's case (supra). The learned counsel appearing W.P.C.NO.13602 OF 2013 16 for the respondents further attempted to fortify the stand on the question of maintainability relying on a decision of a learned Single Judge of this Court in Toji Joseph Vs. State of Kerala reported in 2009(3) KLT SN 2 (C.No.2). The contention of the respondents is that in Toji Joseph' case (supra) it was held that though a writ petition is maintainable under Article 226 even against a private management for enforcing a public duty cast upon them it would not be available for enforcement in the terms and conditions of service of teachers/employees. It is contended that the decision in K.Krishnamacharyulu's case (supra) and Suter Paul's case (supra) were also taken into consideration while rendering the said decision. In the context of the contentions it is relevant to refer to paragraph 10 of the said decision. A close scrutiny of the said decision would reveal that the exact situation that dissuaded the Division Bench, (stated in paragraph 40 of Suter Paul's case (supra)), existed in Toji Joseph's case (supra) as well. The petitioner therein had failed to substantiate the source of power of an educational authority like D.E.O. to conduct an enquiry of teachers/employees to find out the guilt or innocence. Moreover, it is stated in paragraph 10 of Toji Joseph's case (supra) thus:-

"That apart, it is also not stated whether the respondent's school is a 'recognised school' or not, coming within the meaning of Section 2 (8) of the Kerala Education Act. As such, the reliance placed by the petitioners on the above decision is not correct or sustainable". W.P.C.NO.13602 OF 2013 17

11. In fact, it is evident from paragraph 10 of Toji Joseph's case itself that the fact that the decision of the Division Bench in Suter Paul's case (supra) answered the maintainability of the writ petition in the affirmative was also taken note of. The question whether a writ petition moved by an employee terminated from the service of 'a recognised unaided school' without conducting a domestic enquiry and without affording an opportunity of being heard in the light of the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules was not posed for consideration specifically in Toji Joseph's case (supra). In the context of the contentions it is relevant to refer to sections S.2(7) and 2(8) of the Kerala Education Act and they read thus:-

2.(7). 'Private school' means an aided or recognised school.

(8). 'recognised school' means a private school recognised by the Government under this Act.

The observations of the learned Single Judge in paragraph 10 of the judgment in Toji Joseph's case (supra), the finding of the Division Bench in Suter Paul's case (supra) regarding the maintainability of a writ petition against a recognised unaided school before the High Court in the affirmative, the indisputable position regarding the status of the first respondent in this case as a 'recognised unaided school' and also the specific averment in the writ petition regarding the violation of the specific mandate under Rule 3 of Chapter XIV-AA of the Kerala W.P.C.NO.13602 OF 2013 18 Education Rules persuade me to hold that the contention of the learned counsel for the respondents relying on the decision in Toji Joseph's case (supra) could not create any impediment in entertaining this writ petition. That apart, in St.Joseph's Model High School Vs. Varghese reported in 2009 (3) KLT 237 it was held by a Division Bench, in which I was also a party, that the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules is generally applicable to the managers of recognised unaided schools. In fact, in that case the question whether a manager of a recognised unaided school is bound to follow the provisions under Rule 3 of Chapter XIV- AA of the Kerala Education Rules was considered. The further question raised for consideration therein was whether in case of failure of Manager of a recognised unaided school to observe mandate of a statute, a writ of mandamus could be issued to compel him to discharge his duty under statute. The decision of a learned Single Judge of this Court holding that termination of a teacher in violation of Rule 3 of Chapter XIV-AA of the Kerala Education Rules and the consequential direction to the concerned educational authority to take appropriate action in tune with the provisions under Rule 7 of Chapter III against the manager were taken up in appeal in that case. It was held therein that in view of Rule 3 of Chapter XIV-AA of the Kerala Education Rules a teacher of an unaided, recognised school shall not W.P.C.NO.13602 OF 2013 19 be terminated from service without conducting a domestic enquiry and without affording an opportunity of being heard in that enquiry. In other words, the said provision makes it mandatory to the manager of the concerned recognised unaided school to comply with the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules and in case the manager of a such recognised unaided school fails to observe mandatory provisions of the said statute a writ of mandamus could be issued to compel him to discharge his duties under the statute. The direction issued by the learned Single Judge to the competent educational authority to take action in tune with the provisions under Rule 7 of Chapter III of the Kerala Education Rules was also upheld holding that the provisions under Chapter III are generally applicable to the manager of a recognised unaided school as well and that for failure to discharge the duties mandated under the statute a writ of mandamus could be issued. In view of the aforesaid decisions and factual positions, the position that 'the school' is a recognised, unaided school could not be a reason for holding that the writ petition moved by the petitioner herein who was dismissed from service without conducting a domestic enquiry and without affording an opportunity of being heard in violation of the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules is not maintainable and in fact it is maintainable.

W.P.C.NO.13602 OF 2013 20

12. In the context of the rival contentions the decision of the Hon'ble Apex Court in Ramesh Ahluwalia Vs State of Punjab reported in 2012 (12) SCC 331 also assumes relevance. Going by the said decision imparting education to children is a public function and for issuance of a writ the authority or person performing public duty need not be one performing public duty necessarily imposed by a statute. The fact that the unaided school is not getting any grant from the Government and is not under the control of the Government are also not reasons to hold that the management of a recognised unaided school is not amenable to the writ jurisdiction of this Court even when the clear mandate under Rule 3 of Chapter XIV-AA of the Kerala Education Rules is violated. Rule 3 of Chapter XIV-AA reads thus:-

"The services of any member of the teacher 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"

(emphasis added)

13. A bare perusal of Rule 3 of Chapter XIV-AA of the Kerala Education Rules would reveal that the requirement to conduct a domestic enquiry and to afford an opportunity of being heard in that enquiry, to an employee before termination of service in a recognised unaided school is not confined to the teaching staff but it is extended to the case of non-teaching staff as well. In such circumstances, the fact W.P.C.NO.13602 OF 2013 21 that the petitioner is a non-teaching staff is no ground for not adhering to statutory mandate and therefore, the action of the management of the school in terminating the services of the petitioner without following the mandates under Rule 3 of Chapter XIV-AA of the Kerala Education Rules viz., without conducting a domestic enquiry and without affording an opportunity of being heard in that enquiry is bad in law and therefore liable to be interfered with. In this case no material whatsoever was produced to show that an enquiry as contemplated under Rule 3 of Chapter XIV-AA was conducted by the management. In other words, the respondents cannot be heard to contend that there is no violation of the mandatory provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules in the matter of termination of the petitioner herein. When once it is established that the petitioner herein was terminated from the service of the school in violation of the mandatory provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules I am of the considered view that a writ of mandamus could be issued to compel the Manager of the school to discharge his duties under the statute which are mandatory in nature. The respondent management also cannot be heard to contend that the petitioner being a member of non-teaching staff could resort to the provisions under the Industrial Dispute Act and therefore this writ petition is to be held as not maintainable. There cannot be any doubt W.P.C.NO.13602 OF 2013 22 with respect to the position that existence of an alternative remedy would not create an absolute bar for maintaining a writ petition. Certain other aspects have also to be looked into in this case. In the light of the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules there cannot be any doubt with respect to the position that the manager is an authority for the purpose of the Kerala Education Act and Rules even in respect of unaided recognised school. The fact that the manager is bound to follow the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules also cannot be disputed when once it is admitted that the school in question is a recognised unaided school under the Kerala Education Rules. In that context, the provisions under Chapter V of the Kerala Education Rules dealing with the recognition of the school have to be looked into. The conditions to be satisfied for granting recognition under Rule 17 of Chapter V of the Kerala Education Rules would reveal that it is one of the conditions that a recognised school under the Kerala Education Rules must conduct itself in accordance with the provisions of the Kerala Education Act and Rules and the directions issued by the Government or the department from time to time. What exactly is the impact of the failure to adhere to the provisions of the Kerala Education Act and Rules is evident from Rule 22 of Chapter V which deals with the withdrawal of the recognition.

Rule 22 withdrawal of recognition:- (a) would reveal that the W.P.C.NO.13602 OF 2013 23 recognition granted to a school or standard to be withdrawn

(i) if it does not continue to conform to the conditions of recognition.

Rule 22 (a) (ii) provides that if such a school commits any breach of the provisions of the Act and the Rules; the departmental Rules and directions issued in conformity with the provisions of the Act and the Rules issued thereunder recognition could be withdrawn.

It is evident from Rule 22 that in respect of a school which was granted recognition under the Kerala Education Rules the school concerned which obtained recognition under the Kerala Education Rules cannot be heard to say that it is not under an obligation to conduct the school in accordance with the provisions of the Kerala Education Acts and the Rules. It is in that context the provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules has to be looked into. As noticed hereinbefore, Rule 3 of Chapter XIV-AA Kerala Education Rules itself casts a duty on the Manager of an unaided recognised school to conduct a domestic enquiry and to afford an opportunity of being heard to a delinquent employee being a teaching or non- teaching staff in such enquiry and in the light of the provisions under Rule 17 (vi) of Chapter V of the Kerala Education Rules the Manager is bound to follow that provision. If such provisions are not complied with it may entail initiation of appropriate action viz., withdrawal of a recognition. Under the provisions of Rule 3 of Chapter XIV-AA of the Kerala Education Rules the Manager of an unaided recognised school also has to function as an authority in respect of a teaching or non- W.P.C.NO.13602 OF 2013 24 teaching staff of such an institution to take appropriate disciplinary action and certainly such disciplinary actions could be conducted and completed only after adhering to the salutary principles of natural justice and in accordance with the mandates thereunder. When such authority under the Act fails to comply with the statutory directions thereunder and the provisions under the Kerala Education Act and the Rules do not provide for a further statutory remedy against such an action it has to be taken that there is absence of a statutory remedy. There cannot be any doubt with respect to the fact that when no statutory remedy is provided and at the same time, a statutory right is infringed this Court will be justified in exercising the extraordinary jurisdiction under Article 226 of the Constitution of India to compel the authority under the Act to act in accordance with the provisions. In such circumstances, I am inclined to allow this writ petition to the following extent. The impugned Ext.P2 order is set aside inasmuch as, it is issued in violation of the mandatory provisions under Rule 3 of Chapter XIV-AA of the Kerala Education Rules. The learned counsel appearing for the respondents, in the said circumstances, submitted that the respondents, may be given liberty to initiate action against the petitioner in accordance with law. I am of the view that whether the action on the part of the petitioner calls for initiation of disciplinary proceedings or whether it could be initiated or not, are not matters for W.P.C.NO.13602 OF 2013 25 consideration in this case as it is nobody's case that memo of charges has been served on the petitioner. There is no doubt with respect to the position that even in a case where memo of charges is issued the question whether an enquiry is to be conducted or not, would depend upon the decision on the explanation submitted by the delinquent employee to such memo of charges. In such circumstances, consideration of such a question is uncalled for and it is made clear that this Court has not made any observation with regard to such matters. Since the impugned order is set aside respondents 1 to 3 are bound to take consequential steps including steps for reinstatement. Respondents 1 to 3 shall also pass appropriate orders relating regularisation of the period between the dates of dismissal and reinstatement and also the consequential benefits. In case of their failure to take such necessary action within a period of three months from the date of receipt of copy of this judgment the concerned competent authority shall take appropriate action bearing in mind the observation made hereinbefore and also in the decision in St.Joseph's school case (supra).

Sd/-

C.T.RAVIKUMAR, JUDGE R.AV

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