Andhra HC (Pre-Telangana)
Sri Vani Upper Primary School vs Secretary To Govt., Education ... on 27 June, 1997
Equivalent citations: 1999(1)ALD260, 1999(1)ALT225
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER P.S. Mishra, C.J.
1. Heard.
2. Instant appeal under Clause 15 of the Letters Patent of the Court has arisen from the judgment in WP 16249 of 1993 disposing of the petition under Article 226 of the Constitution of India. Learned single Judge has held that the order of removal of the fifth respondent from the service by the petitioner has suffered invalidity of having been not approved by the competent authority.
3. According to the appellant the fifth respondent was charged of gross misconduct and indiscipline and after notice to show-cause, enquiry and other formalities she was removed from service. Even though under the scheme of the relevant rules in this behalf the petitioner-appellant could think of the third respondent as the competent authority and several times approached him for the approval of the order, instead, however, of approving the order the concerned authority directed that the fifth respondent be reinstated into service.
4. Case of the fifth respondent, however, has been that she was protesting against the malpractices of the management of the school which brought the impugned action against her by way of victimisation.
5. It is not in controversy that all disciplinary actions against the teaching staff of a Government aided educational institution is governed by the provisions under the Andhra Pradesh Education Act. Section 79 of the Act reads as follows:
"79. Dismissal, removal or reduction in rank or suspension etc., of employee of private institutions :--(1) No teacher or member of the non-teaching staff employed in any private institution (hereinafter in this chapter referred to as the employee) shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that no order of dismissal, removal or reduction in rank shall be passed under this sub-section against an employee other than an employee of minority educational institution without the prior approval of such authority or officer as may be prescribed for different classes of private institutions."
Rules have been framed called the Andhra Pradesh Private Institutions Employees (Disciplinary Control) Rules, 1983 and a prescription under Rule 3 therein is made in respect of the functions of the competent authority under Sections 79, 80 and 83 of the Act of 1982. Proviso to Section 79(1) aforequoted, however came into force with effect from 1-6-1987. Long prior to the introduction of the proviso, however, the rule aforementioned existed and no separate rules were issued by the State Government so as to take care of the proviso by naming the authority or officer whose prior approval was/ is required for passing an order of dismissal, removal or reduction in rank against an employee by a private educational institution. In more than onejudgment starting from Rev. Joseph Thitmma v. District Educational Officer, 1995 (2) An.WR 117, including a judgment by the learned single Judge in V. Ramakanta Sarma v. Adarsha Vidya Samithi, , who has delivered the impugned judgment, this Court has considered the effect of the proviso aforementioned and the State Government's not prescribing the authority or officer whose prior approval is required for passing an order of dismissal, removal or reduction in rank against an employee by a private educational institution. Discussions in this behalf in the latter judgment are as follows:
"The learned Counsel for the Management of the college contends that as no such authority or officer has been prescribed so far, the proviso to Section 79 is not operative and therefore, the question of obtaining the prior approval of such authority before passing the impugned order arises in the present case. In support of this contention, the learned Counsel for the Management of the college has placed reliance on the judgment of a learned single Judge of this Court in Rev. Joseph Thumma and another v. District Educational Officer (supra). This judgment is directly in point and lends support to the said contention of the learned Counsel for the Management. The learned Counsel for the petitioner, however, sought to contend that the competent authority, who is empowered by Rule 3 of the A.P. Private Institutions Employees (Disciplinary Control) Rules, 1983 to perform the functions of the competent authority under Sections 79, 80 and 83 of the Act, can also perform the function of according or refusing approval for an order of dismissal, removal or reduction in rank as per the proviso to Section 79(1) of the Act and that there is no need to prescribe or create any separate authority for this purpose. The learned Counsel for the petitioner contends that such a construction, which makes the proviso to Section 79 operative, must be preferred to one that renders the proviso inoperative and it would be unreasonable to take the view that the Legislature has left a lacuna either by negligence or by lack of foresight or because it did not know its job. In support of this argument, the learned Counsel for the petitioner has relied upon Mothibhai F.P. & Co., v. Collector, Central Excise, AIR 1970 SC 829, and M.G. Wagh v. Jay Engineering Works Ltd., . There can be no dispute about these propositions but on a reading of Sections 79, 80 and 83 of the A.P. Education Act, it is manifest that the competent authority prescribed by Rule 3 for the purpose of exercising appellate power is quite different from the authority or officer contemplated by the proviso to Section 79(1) for the purpose of granting or refusing prior approval for an order of dismissal, removal or reduction in rank passed against an employee. This question also has been considered by the single Judge in Rev. Joseph Thumma and another v. District Educational Officer (supra) and the learned single Judge has repelled such a contention. Though the learned Counsel for the petitioner has submitted that the said judgment requires reconsideration, I am not inclined to accept this submission of the learned Counsel for the petitioner. I am in respectful agreement with the view taken by my learned Brother Justice P. Venkatarama Reddi in the said decision. I have, therefore, no hesitation in negativing the first contention raised by the learned Counsel for the petitioner."
One of the settled principles of law is that a rule which has existed from before and is not in conflict with a provision which is subsequently introduced in the Act and it embraces the purpose for which the new provision is introduced the same can be followed and applied to avoid any ambiguity or to remove the defect in the law. If the above is applied and Section 79 as mentioned in Rule 3 of the A.P. Private Institutions Employees (Disciplinary Control) Rules, 1983 is taken to be supplemented by the rule it can be inferred that the competent authority for the purposes of the proviso under Section 79(1) of the Act is the authority named under the rule. The oilier possible view, however, is one which has been taken by the learned single Judge in V. Ramakanta Sarma, supra, and it for more than one reason can be said to be a reasonable view. If it is held that the competent authority who is named under Rule 3 of the A.P. Private Institutions Employees (Disciplinary Control) Rules, 1983 is the authority for the purposes of the proviso under Section 79(1) the result would be that the approving authority of the action of the management of the school would become the appellate authority against his own action. It would serve rather better the interest of the employee if the action of the management is subjected to an appeal instead of and any interpretation of the Act and the rules which would render the appellate authority incompetent be avoided. The view taken in V. Ramakanla Sartna, supra, thus is beneficial to the employee. It is also a well considered principle that if two views are possible and one view has already been taken by the Court or a Judge of the Court, then only because another view is also possible, any other Judge or the appellate Court would not find fault with such view of the Court or Judge. We are inclined in the instant case thus to approve the view in V. Ramakantha Sarma, supra, as a reasonable view and decline to pursue further investigation as to the validity of the other view.
6. Reverting to the facts of the case, to call the order of removal from service only for want of approval by the competent authority in the light of the judgment aforementioned and the view which we have taken thus will be legally wrong. Management's order of removal of the employee is subject to appeal under Section 80. The authority before whom appeal lies is named under Rule 3 aforementioned. Fifth respondent has a right of appeal against the order of management and the appellate authority has a duty to afford opportunity of being heard to the appellant-employee as well as the respondent-management before it. Nothing of this sort, however, has been done by the third respondent and thus the order passed by him in favour of the fifth respondent is hit by one of the fundamental principles of natural justice that no person be subjected to a civil consequence without affording to him a reasonable opportunity of being heard. The appellate authority shall obviously be exercising quasi-judicial power. He shall be obliged to give opportunity to all parties of being heard and would do wrong if he failed to do so and would do violation of yet another principle of natural justice if he will not make a speaking order. The third respondent has violated these abovementioned principles of natural justice. Moreover, in respect of the first of the two principles, proviso to Section 80(2) leaves no scope for departure as it says:
"the competent authority shall not pass any order prejudicial to the management unless an opportunity of making a representation is given."
7. It is one thing for a Court to say that it has not found any force in the case of the petitioner before it or that it has found the case of the respondent before it erroneous or fallacious and another to entertain a third case altogether to decide upon as in the instant case, upon an issue which is completely de hors the matter before the Court. Extraordinary power under Article 226 of the Constitution of India carries no inhibitions and in facts of a case so warrant the Court can mould the relief or even provide extra relief to a party before it. Yet the power is well canalized and controlled by the self imposed restrictions of not travelling beyond the pleadings and not entering into matters which most often are speculative. Learned single Judge has after pronouncing upon the controversy proceeded to add as follows:
"This is a case where a teacher, who has put in more than 16 years of service is sought to be removed from service by the management without obtaining the prior approval of the competent authority on the ground that the teacher has been guilty of gross misconduct and indiscipline ........... considering the fact that the fifth respondent has been kept out of service by the petitioner and having regard to the facts and circumstances of the case, I feel that it would be just and proper to direct the petitioner to pay half of the salary to the fifth respondent ...............
Respondents 1 to 4 are directed to transfer the fifth respondent to some other school."
Reinstatement on the facts as above and for the technical defect if at all the case was accepted by the learned single Judge could invite a direction that the matter would be remitted to the competent authority for approval and/or in the absence of the competent authority the fifth respondent would be entitled to prefer appeal in accordance with law against the order of the management. Transfer and that too a direction to transfer the fifth respondent to another school, to the authorities who are unconnected with the action which is impugned in the instant proceeding, in our view, has entered into the forbidden area.
8. For the reasons aforementioned, we do find merit in the appeal. The impugned judgment is set aside. The writ petition on the facts in the instar case is ordered as follows:
(1) The fifth respondent shall be entitled to appeal against the order of the appellant before the competent authority. The competent authority shall proceed to dispose of the appeal in accordance with law.
(2) The appellate authority would take decision whether to grant reinstatement or to reduce or change the punishment and whether any back wages would be payable to the fifth respondent.
(3) Notwithstanding the period of limitation, if any, in case appeal is filed by the fifth respondent against order of the management within 15 days from the date of receipt of this order, the competent authority shall entertain the same and dispose of the same on merits. The appellate authority shall dispose of the appeal expeditiously preferably within a period of two months from the date of filing of the appeal.
9. The appeal is accordingly allowed.