BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/04/2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P(MD)No.9853 of 2007 and M.P.(MD)No.1 of 2007 S.Backiaraj .. Petitioner Vs. 1.Joint Director of School Education, (Higher Secondary), Chennai-6. 2.The Chief Educational Officer, Tuticorin, Tuticorin District. 3.Secretary, Karapettai Nadar Higher Secondary School, Tuticorin, Tuticorin District. .. Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent in his proceedings Mu.Mu.No.77500/Wl.5/E3/07 dated 2.11.07 as communicated by the 3rd respondent in his proceedings No.Nil dated 20.11.2007 and the order passed by the 3rd respondent to confer all consequential benefits to the petitioner. !For Petitioner ... Mr.C.Selvaraj, S.C., For Mr.V.Panneerselvam ^For Respondents ... Mr.Pala Ramasamy (R1 & R2) Spl.Govt.Pleader For Respondent-3 ... Mr.Isaac Mohanlal :ORDER
The writ petition could be disposed of on the ground that the first
respondent failed to give an opportunity while passing the order under Section
41 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (herein
after referred to as ‘the Act’). I am not going into the merits of the matter.
2.The writ petitioner was employed as Headmaster in the 3rd respondent
School. The 3rd respondent issued a charge sheet dated 26.10.2006 making
certain allegations against the petitioner. In pursuant to which, the
petitioner has submitted an explanation. According to the 3rd respondent, an
enquiry was conducted. But, according to the petitioner, no enquiry was
conducted. Ultimately, the School has decided to dismiss the petitioner and
accordingly, sent a proposal seeking approval of the second respondent. The
second respondent, by an order dated 31.07.2007, refused to approve the proposal
for dismissal. Thereafter, the 3rd respondent filed an appeal before the first
respondent under Section 41 r/w 43 of the Act. The first respondent, being an
appellate authority, passed the order dated 12.11.2007, reversing the order of
the second respondent, granting approval for dismissal. Aggrieved by which, the
petitioner has filed the present writ petition to quash the aforesaid order of
the first respondent.
3.Sections 41 and 43 of the Tamil Nadu Recognised Private Schools
(Regulation) Act, 1973 are extracted hereunder:-
“41.Appeal against orders of competent authority-(1) Any person aggrieved
by any order, decision or direction of the competent authority under [section 29
or under any other provision] (other than section 34) of this Act may prefer an
appeal against such order, decision or direction, to such authority or officer
as may be prescribed; and different such authorities or officers may be
prescribed for different classes of private schools.
(2) If the competent authority omits to communicate its decision to any
applicant within the period specified in clause (b) of section 6 or in clause
(b) of sub-section (2) of section 8 [or in sub-section(3) of section 29], such
applicant may prefer an appeal against such omission to the appellate authority
prescribed under this section.”
“43. Time for appeal and powers of appellate authority – (1) No appeal
under any provision of this Act shall be preferred after expiry of one month
from the date on which the order, decision or direction appealed against, was
received by the appellant.
Provided that the appellate authority may, in its discretion, allow
further time not exceeding one month for preferring any such appeal if it is
satisfied that the appellant had sufficient cause for not preferring the appeal
in time.
(2) On receipt of any such appeal, the appellate authority shall, after –
(i) giving the parties an opportunity of making their representations,
(ii) making, if necessary, such inquiry as it deems fit, and
(iii) considering all the circumstances of the case, make such order as it
deems just and equitable.
(3) The appellate authority may, pending the exercise of its power, pass
such interlocutory orders as it deems fit.
(4) Every appeal under this Act shall be disposed of as expeditiously as
possible.
4.Admittedly, the appeal is preferred under Section 41 of the Act.
Section 43(2) makes it clear that the parties should be heard before disposing
the appeal. But, the first respondent has not complied with the mandatory
Provisions of Section 43(2) of the said Act. Hence, the order of the first
respondent, impugned in this writ petition, is liable to be set aside.
5.At this juncture, the learned counsel appearing for the 3rd respondent
submits that the petitioner has an alternative remedy by way of filing an appeal
under Section 23 of the Act and therefore, the writ petition is not
maintainable.
6.I am not inclined to agree with the submission made by the learned
counsel appearing for the 3rd respondent. Firstly, this argument is
misconceived, since the appeal provided under Section 23 of the Act is not
against the order passed by the appellate authority under Section 41 r/w 43 of
the Act. Even otherwise, the learned counsel for the 3rd respondent School
admits that the first respondent, being an appellate authority, passed the
impugned order without hearing the parties. Thus, the first respondent passed
the impugned order in violation of principles of natural justice. Hence, this
Writ petition is maintainable. The first respondent passed the order in
contravention to Section 43(2) of the Act. Therefore, the impugned order is
liable to be set aside and accordingly the same is set aside and the matter is
remanded back to the first respondent to pass orders afresh, after hearing the
parties and in accordance with law. The first respondent is directed to dispose
of the matter within a period of three months from the date of receipt of a copy
of this order.
7.The writ petition is disposed of in the above terms. No costs.
Consequently, connected miscellaneous petition is closed.
MPK
To
1.Joint Director of School Education,
(Higher Secondary), Chennai-6.
2.The Chief Educational Officer,
Tuticorin, Tuticorin District.