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4. However, it is contended by Shri Kukday, that as found by the Deputy Director of Education , Rule 71.4 of the Secondary Schools Code has no application to the facts and circumstances of the present case According to him, none of these Rules, namely, 71(4) and 76(1) to 76(1)(v) are applicable in the case of the respondent No. 2 and, therefore, the Deputy Director of Education was right in coming to the conclusion that the said charge was not proved. It is not possible for us to accept this contention of Shri Kukday. Under the provisions of the Secondary Schools Code it is open for the Management of a school to dismiss its employee including a teacher from service if, after due inquiry, he is found guilty of insubordination, neglect of duties or misconduct which is of a serious nature. The term "misconduct" is not defined in the rules. Rule 76(1) which deals with the duties and responsibilities of the full-time teaching staff reads as under :

From the bare reading of these rules it is obvious that the Secondary Schools Code expects from a full-time teacher that he will devote all his time and energy to his teaching job in the school. Rule 76(1)(i) lays down that Heads and Assistant Heads of schools should not undertake any regular private tuition even without remuneration. Rule 76(1)(ii) then states that no teacher should do private tuition for more than two hours in a day or teach more than five pupils during his whole period of tuition in the day, and for that also he must obtain the previous permission of the Head of the school. Rule 76(1)(iv) then makes it clear that no teacher will be allowed to associate himself directly or indirectly with any coaching classes to prepare pupils for the internal or external examination of secondary schools or any other examining body. Then in Rule 77(3)(1) the procedure for inquiry is prescribed providing for punishment of removal or dismissal if ultimately on an inquiry it is found that an employee of a school including a teacher is guilty of insubordination, neglect of duties or misconduct (in each case of serious nature). As to what would constitute misconduct is neither defined nor specified in the Secondary Schools Code. In the absence of a definition of the term "misconduct" it would be open to the employer to consider reasonably as to what conduct can be properly treated misconduct. As observed by the Supreme Court in Again v. Badri Das and others, [1963 - I L.L.J. 684], what is misconduct will entirely depend upon the circumstances of each case and it is not possible to lay down any general rule in that behalf. In the absence of any specification or definition, therefore, the question will have to be dealt with reasonably and in accordance with the commonsense having regard to the nature of employment and the corresponding duties and obligations. A conduct which would be quite incompatible with the express and implied norms of the relationship of the employee with the employer will obviously amount to misconduct. Certain species of misconduct are enumerated in the Secondary Schools Code itself which, to some extent, provides guidelines in that behalf. Chapter III, Section III, of the Secondary Schools Code prescribes the rules of discipline and leave. Rule 71(2) lays down that all employees shall, during the period of their service, employ themselves honestly and efficiently under the orders of the Head of the school and shall make themselves in all respects useful to the school. The rule further says that they shall not on their own account or otherwise, either directly or indirectly, carry on or be concerned in any trade or business. Rule 73(1) casts a duty on a full-time teacher that he shall be present on the school premises during the working hours of the school. From the various rules incorporated in Section III of Chapter III of the Code, it is quite clear that the School Management has a right to expect from its full-time teacher that he will devote all his time and energy to his duties as a teacher. In this view of the matter, in our opinion, it will not be open to a full-time employee to carry on such activities which are inconsistent with the faithful discharge of his obligations undertaken by him either expressly or impliedly in accepting the full-time job. When a teacher accepts a full-time job, by necessary implication he agrees to so conduct himself that his activities would not be inconsistent with the nature of his job. This aspect of the matter has been considered by this Court in Madhosingh v. State of Bombay, [1960 - I L.L.J. 291], though in a different context. While considering the law relating to disciplinary action, this Court observed as under :

6. However, a contention was raised by Shri Kukday that the writ petition filed by the petitioner-school is not maintainable under Arts. 226 and 227 of the Constitution of India. According to Shri Kukday, the provisions of the Secondary Schools Code are merely administrative instructions and any right or obligation flowing from the said provisions of the Code are not enforceable in a writ petition under Arts. 226 and 227 of the Constitution of India. For this proposition Shri Kukday has relied on a decision of this Court in Sohanlal Fulchand v. Deputy Director of Education, 6, 1975 Mh. L.J. Note 20. It is not possible for us to accept this contention. It is no doubt true that it has been held by this Court as well as by the Supreme Court that the rules contained in the Secondary Schools Code are only executive instructions issued by the State Government for the purposes of managements of schools receiving grant-in-aid. However, Sohanlal Fulchand's case on which reliance is placed by the learned counsel for the respondent No. 2 was a case which was filed by a teacher. In this context, it was observed by this Court that a breach of any of the provisions of the Secondary Schools Code does not confer any right on a third party like a teacher in a private school. This Court further found that so far as a teacher in a privately managed school receiving grant-in-aid is concerned, even if his dismissal is held, to be wrongful being in breach of Rules of the Secondary Schools Code or for non-observance of rules of natural justice, he is not entitled to a relief of reinstatement as the case does not fall within the well recognised exceptions to the general rule that a contract of personal service is incapable of specific performance as this is not a case of a Government servant enforcing fundamental right under Art. 311 of the Constitution of India. It was further held that the contract of service is the basis on which the relief could be granted in such a case and for breach of contract of personal service the only relief the servant would be entitled to would be a claim for damages and, therefore, such a contract is not enforceable under Art. 226 of the Constitution of India. The earlier decision of this Court in Mithailal v. S. V. Joag, (1974) Mh. L.J. 220, was, therefore, distinguished. In Mithailal's case, a reference was made to a decision of the Gujarat High Court in Amratlal v. State, . In the said case a petition was entertained by the Gujarat High Court under Art. 226 of the Constitution of India. The learned Judge of the Gujarat High Court in this context observed as under :

After making a reference to the Gujarat decision, the learned Judge in Mithailal's case observed in paragraph 14 of the judgment as under :

"The acceptance of the Secondary Schools Code is condition precedent imposed by the State Government to the recognition of a school or of a grant in aid to it. It cannot be said that the school can refuse to carry out the decision of the Deputy Director and the consequence would at the most be that it would be deprived of the aid. In the field of education, it is extremely difficult for an educational institution to survive without the Stare aid and to extend educational facilities at reasonable fees to people of average means. It is the duty of the State to aid educational institutions in the State from public funds. Even if the rules contained in the Secondary Schools Code are mere executive instructions, the Government issues those executive instructions as a condition precedent to the disbursement of public funds. I agree with the learned Judge of the Gujarat High Court which he observes that we are not living in ancient times or in an autocratic regime where an educational institution must carry out the unjust behests of the authority in order to get aid. The executive instructions are contained in rules framed by the Government which provide for, an appeal against an order in an inquiry against a member of the staff of a school and I have no doubt in my mind that in hearing the appeal the appellate authority must observe rules of natural justice and if it does not do so its decision will be liable to be corrected by the High Court in exercise of its powers under Art. 226 of the constitution of India. This is the only safeguard that the educational institutions have against the arbitrary actions of officers of the Government hearing appeals under R. 77 of the Secondary Schools Code. The concept of rule of law would undoubtedly lose its vitality if the authorities are not charged with the duty of discharging their functions in a fair and just manner and are allowed to foist an unwanted employee or a corrupt teacher on the Management arbitrarily or in a despotic manner. This would do harm to the cause of education itself. I, therefore, hold that the present petition is maintainable."