Madras High Court
K.Leelavathi vs Paneerselvam on 4 June, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 04.06.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.179 of 2007 1.K.Leelavathi, Wife of Gunasekaran, Secretary-cum-Correspondent, S.R.V.M. School, Manalmedu Village, Mayiladuthurai Taluk, 2.R.Saroja, Wife of Sambandam, Vice Principal, S.R.V.M. School, Manalmedu Village, Mayiladuthurai Taluk. ... Appellants vs. Paneerselvam, Son of Nagarathinam, Principal, S.R.V.M. School, Manalmedu Village, Mayiladuthurai Taluk. ... Respondent Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 24.08.2006, passed by the Sub-Court, Mayiladuthurai, in A.S.No.59 of 2006, confirming the judgment and decree, dated 20.10.2005 passed in O.S.No.202 of 2005, by the Additional District Munsif, Mayiladuthurai. For Appellants : Mr.Balan Haridass For Respondent : Mr.S.Sounthar J U D G M E N T
The present second appeal has been filed challenging the concurrent findings of the Courts below.
2. Brief facts leading to the filing of the second appeal are given as under:-
The plaintiff/respondent herein, who was working in the appellants' school for more than 25 years, was issued with a show cause notice framing four charges on 13.10.2004, calling for an explanation from the plaintiff/respondent herein. On receipt of the same, he had also sent his explanations. But, all of a sudden, without holding any enquiry, the defendants/appellants herein had terminated the service of the plaintiff and to that effect, issued termination order, dated 18.05.2005, as per the resolution passed by the Trust Members. Challenging the said termination order, the plaintiff/respondent filed a civil suit, wherein it was contended that, as per the Matriculation Rule 97(B) proviso (II), no teacher shall be removed without prior permission from the Inspector of the Schools. But, in this case, since the said procedure has not been followed, the plaintiff/respondent herein has filed a suit in O.S.No.202 of 2005, before the Additional District Munsif, Mayiladuthurai, seeking to declare that the termination order passed by the first defendant, dated 18.05.2005, as illegal, since the said order of termination is in total violation of the principles of natural justice, inasmuch as no enquiry was held against the teacher before passing the termination order and for permanent injunction restraining the first defendant from implementing the order, dated 20.05.2005.
3. Opposing the said relief, the defendants/appellants herein had also filed a detailed written statement stating that the plaintiff has committed several irregularities in discharging his function as Principal and on several occasions, he was given notice in respect of dereliction of duties and pursuant thereto, he had also given explanation, wherein it was stated that he would improve and discharge his duty properly in future. But, thereafter, there was no improvement on the work performed by him. Even, at the later stage, he has committed several irregularities and for which, he was issued with a show cause notice asking him to give his explanation within 15 days. But, the plaintiff took his own time and offered his explanation only after five months. Even when the school sent interim reminder to the plaintiff, there was no response from his end and one of the charges mentioned in the charge memo was relating to the receipt of donation of Rs.1,000/- from students. Further, one of the charges in the charge memo was relating to collection of arrears from the students before the quarterly examination and for which, the plaintiff had given his explanation stating that he had returned the money and also further stated that he would not commit the mistake and also further admitted that the act committed by him are not proper. Therefore, on receipt of the explanation, the School Authorities have passed the order of termination, which is not only in the interest of institution, but also for the welfare of the students, hence, the same cannot be questioned. Moreover, the Civil Court has no jurisdiction to entertain the suit, since the appeal will lie before the Director of the School Education.
4. Under these circumstance, the matter was taken up for trial. The learned trial Court also framed the following issues;-
i. Whether the plaintiff is entitled for the relief of declaration as sought for?
ii. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
Iii. To what other relief is the plaintiff entitled for?
On the side of plaintiff, P.W.1 was examined and Exs.A1 to A4 were marked. On the side of the defendants, D.Ws.1and 2 were examined and Exs.B1 to B11 were marked.
5. After examination of the witnesses as well as perusing the documents as mentioned above, the trial Court, finding that the termination order was passed without holding any enquiry, decreed the suit in favour of the plaintiff, by holding that there is a clear violation of principles of natural justice and further the mandatory provision of rules and regulations to get prior sanction from the Inspector of the School and prior approval from the Government for terminating a teacher, has not been followed. However, the trial Court has given liberty to the defendants/appellants herein to take steps after following the due process of law with respect to the charges framed against him. But, without following the procedure in accordance with law and exercising the liberty given, the defendants filed an appeal before the Sub-Court, Mayiladuthurai, in A.S.No.59 of 2006. The learned first appellate Court also, in its judgment and decree, dated 24.08.2006, upheld the judgment and decree passed by the learned trial Court, by holding that the order of termination is appealable under Rule 22(a) of the Tamil Nadu Matriculation Schools. As against the concurrent findings of the Courts below, the present second appeal has been filed by the defendants/appellants herein.
6. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law;-
"i. Whether contract of personal service can be specifically enforced, when there is bar under Section 14(1)(a) of the Specific Relief Act?
ii. Whether the Code of Regulations for Matriculation Schools provide for an appeal remedy under Clause 22A, whether the Civil Court has got jurisdiction to try the suit?
iii. When clause 20(B)(a) of the Code of Regulation for Matriculation Schools provide for termination of services of a teacher without notice for serious misconduct, whether the Civil Court is competent to order for enquiry contrary to the code?"
7. While addressing on the substantial question of law, learned counsel appearing for the appellants submitted that the plaintiff, in his own explanation admitted that what was done by him was wrong, and for which, again when he has apologized before the management/appellants herein, then as per the law, the Management is entitled not to hold any enquiry, therefore, basing on his own admission, passing the order of termination terminating his service, cannot be found fault with. In support of his submission, he has also relied upon a judgment of this Court in AVM Rajeswari Matric. Higher Secondary School v. N.R.Parameswari (2012 (1) CTC 726) for a proposition that contract for personal service cannot be enforced by filing of a suit for declaration. In the said judgment, learned Single Judge relied upon a judgment of the Apex Court in S.R.Tewari v. District Board, Agra (1964 (3) SCR 55, which held thus:-
"Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Art.311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do"
9. The above principle enunciated by the Apex Court brings the point raised by the appellant for consideration as to whether or not the case of the plaintiff/respondent fell within the exceptions laid down by the Apex Court to the general rule that the contract of personal service is not specifically enforceable.
10. Learned counsel for the appellant also further contended that the suit filed by the plaintiff/respondent herein is legally not maintainable, since the Civil Court has no jurisdiction. As against the order of termination, there is an appeal remedy under Rule 22A before the Director of the School Education and as against the order of the Director, appeal lies to the Government. Therefore, instead of filing an appeal against the order of termination under Rule 22A before the Director of School Education, the plaintiff filed an appeal before the Civil Court, therefore, he pleaded, the same is not legally maintainable.
10. In reply, it was contended that admittedly, in this case, the plaintiff, who has worked for more than 25 years in the defendants-school, was not given compliance of principles of natural justice before he was thrown out from the school. Therefore, both the Courts below also having set aside the order of termination, rightly given an opportunity to the defendants to hold fresh enquiry after following the due process of law with respect to the charges framed against him. Therefore, the appellants' school, on receipt of the judgment and decree passed by the learned trial Court in O.S.No.202 of 2005, dated 20.10.2005, should have proceeded against the plaintiff by giving all reasonable opportunities by complying with the principles of natural justice as per the law.
11. Learned counsel for the respondent also submitted that since the plaintiff, who served as Principal for about 25 years, was sent out without giving him reasonable opportunity to explain his case on the basis of the charge memo issued, he challenged the termination order dated, 18.05.2005, before the competent Civil Court. The learned trial Court also finding that the plaintiff, who had rendered his services for about 25 years, was unceremoniously thrown out from the school without following the principles of natural justice, to find out whether the allegation mentioned in the charge memo are true or not, by setting aside the order of termination, given them liberty to proceed afresh by giving reasonable opportunities on the very same charges. Therefore, till now the appellants are entitled to proceed against the plaintiff in the manner known to law. As they have not done so, it is not open to them to challenge the concurrent findings of the Courts below.
12. He has also further argued, by relying upon a judgment of the Apex Court in Dhulabhai v. State of M.P. (AIR 1969 SC 78(1)) to state that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The above said arguments carries merits and substance. It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Useful reference can be had from a judgment of the Apex Court in Ramendra Kishore Biswas v. State of Tripura and others (AIR 1999 SC 294), wherein para 6 thereof held thus:-
"6. Again the opinion expressed by the learned single Judge to the effect, "It is my firm conviction that in the present case the Civil Court cannot make a declaration Under Section 34 of the Specific Relief Act as its jurisdiction has been taken by the special rules i.e.. CCS(CCA) Rules, 1965. Under the circumstances, it means a Civil Court does not have jurisdiction in respect of matters which are entertained and decided by the statutory tribunal in conformity with the powers conferred by the enactment."
is clearly erroneous and cannot be sustained. Service Rules, neither expressly nor by implication have taken away the jurisdiction of the civil courts to deal with service matter. The opinion of the learned single Judge does violence both to the code of Civil Procedure, the Specific Relief Act and the Service Rules. As a matter of fact it appears to us that the learned single Judge failed to exercise the jurisdiction vested in him while non-suiting the appellant. It, therefore, appears appropriate to us to allow this appeal, set aside the order of the learned single Judge and remit the matter to the High Court for a fresh decision of the regular second appeal and the cross objections on their own merits. The appeal, therefore, succeeds and is allowed. The RSA and cross- objections are remitted to the High Court for fresh disposal on merits in accordance with law"
13. The above ruling of the Apex Court clearly answers the issue raised in the present second appeal that Service Rules, neither expressly nor by implication have taken away the jurisdiction of the Civil Courts to deal with service matter. In any event, since the Courts below have concurrently held that the plaintiff was straight away issued with termination order, dated 18.05.2005, without subjecting him to proper enquiry giving him an opportunity to explain his case, it goes without saying that the principles of natural justices have not been followed by the school against the plaintiff-Principal, who served for about 25 years thereon, hence, as held by the Apex Court in Ramendra Kishore Biswas's case (cited supra), service Rules neither expressly nor by implication have taken away the jurisdiction of the Civil Court.
14. Further, it is also pertinent to note that, as held by the Apex Court in Ramendra Kishore Biswas's case (cited supra), the trial Court has set aside the termination order passed by the first defendant, in its judgment and decree, dated 20.10.2005, relegating the parties to execute the remedy following the due process of the law. But, now, after the matter has been litigated in Civil Courts for more than 7 years and that too after 7 years from the date of termination, to hold that the Civil Court has no jurisdiction while hearing a second appeal, to say the least, is not proper.
15. Though the learned counsel for the appellants has heavily relied upon a judgment of this Court in AVM Rajeswari Matric. Higher Secondary School's case (cited supra) to press his point that the Civil Suit filed challenging the termination order seeking reinstatement is not maintainable, the case on hand is distinguished on more than one reason. Firstly, as I held in para 13 above, when the school authorities/appellants herein had straight away issued the order of termination without following the principles of natural justice by subjecting the Principal for proper enquiry, it was found that there was a clear violation of principles of natural justice and further the mandatory provision of rules and regulation to get prior sanction from the Inspector of the school and further approval from the Government has also not been followed. Under these circumstances, the learned Civil Court held that the suit is not barred. However, the defendants/appellants herein were given liberty to take steps, after following the due process of law with respect to the charges framed against him. Therefore, even now, when a liberty is available to the School Authorities to proceed against the Principal-plaintiff/respondent herein, the contention that the Civil Court has committed wrong, is absolutely unacceptable. Secondly, when the Civil Court had already passed its judgment in O.S.No.202 of 2005, dated 20.10.2005, even after 7 years from the date of the judgment, they failed to hold any enquiry. Therefore, at this juncture, it is not open to the appellants to argue that the impugned judgment, as confirmed by the first appellate Court, is erroneous.
16. In that view of the matter, judgment and decree passed by the Courts below by setting aside the termination order and giving them liberty to proceed afresh against the plaintiff-Principal on the basis of the charges framed against him, cannot be found fault with. Accordingly, answering the substantial questions of law against the appellants, this Court dismisses the second appeal. Consequently, judgment and decree passed by the Courts below are hereby confirmed. M.P.No.1 of 2007 is closed. No Costs.
04.06.2012.
Index : yes/no Internet : yes/no rkm To
1. The Sub-Court, Mayiladuthurai.
2. The Additional District Munsif Court, Mayiladuthurai.
T.RAJA, J.
Rkm Pre Delivery Order in Second Appeal No.179 of 2007 04.06.2012.