1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:: O R D E R ::
(1) Central Academy Society Vs. Rajasthan Non-Government
Educational Institutions Tribunal,
Jaipur & Ors.
D.B.Civil Special Appeal (Writ) No. 344/2001
(2) Central Academy Society Vs. Rajasthan Non-Government
Educational Institutions Tribunal,
Jaipur & Ors.
D.B.Civil Special Appeal (Writ) No. 345/2001
(3) Central Academy Society Vs. Rajasthan Non-Government
Educational Institutions Tribunal,
Jaipur & Ors.
D.B.Civil Special Appeal (Writ) No. 346/2001
DATE OF ORDER :::: 31st May 2010.
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI
HON'BLE DR.JUSTICE VINEET KOTHARI
HON'BLE MR.JUSTICE SANGEET LODHA
Dr. P.S. Bhati with
Mr. Nikhil Dungawat, for the appellants.
Mr. Hemant Dutt, for the respondents.
Mr. D.P. Sharma, intervener.
....
Reportable BY THE COURT: (Per Dinesh Maheshwari, J.)
INTRODUCTORY
These three intra-court appeals have been placed before this
Bench by the orders of Hon’ble the Chief Justice for a reference
having been made by a Division Bench of this Court on the
question of applicability of Section 18 of the Rajasthan Non-
Government Educational Institutions Act, 1989 [hereinafter referred
to as ‘the Act/’the Act of 1989’] in the case of removal or termination
of services of the employee of an unaided recognised educational
institution. The Hon’ble Division Bench hearing these appeals was
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of the view that there had been conflict of opinions in different
Division Bench decisions on the question aforesaid and observed in
its reference order dated 14.01.2008 as under:-
“Heard learned counsel for the parties.
Learned counsel for the appellants has relied upon a
Division Bench judgment of this Court in Educational Society
of Sophia High School & Ors. Vs. Raj. Non-Govt.
Educational Ins. Tri. & Ors., reported in 2003 WLC (Raj.) UC
Page 638. On the other hand, learned counsel for the
private respondents relied upon another Division Bench
judgment of this Court in Managing Committee Through
Chairman (Brig.) Dy. G.O.C. Army School & Anr. Vs. Smt.
Pushpa Sharma & 4 Ors., reported in 2006 (3) WLC (Raj.)
Page 504 and Saint Meera Brotherhood Society Vs. State
of Rajasthan & Others, reported in 2006 (1) WLC (Raj.)
Page 677.In our view, from the reading of the three judgments,
there appears to be apparent conflict of opinion between the
different Division Benches on the question about
applicability of Section 18 in the matter of removal and
termination of services of recognized but un-aided
educational institutions. In our view, the matters are required
to be and are referred to Hon’ble the Chief Justice for
constitution of appropriate Larger Bench, to decide the
question as to whether requirement of Section 18 is
attracted even in case of un-aided recognized educational
institutions.”THE RELEVANT PROVISIONS
In view of the questions calling for determination in this
reference, appropriate it shall be to take note, at the outset, of
Section 18 and the other relevant provisions as contained in the Act
of 1989. Section 18 reads as under:-
18. Removal, dismissal or reduction in rank of
employees – Subject to any rules that may be made in this
behalf, no employee of a recognized institution shall be
removed, dismissed or reduced in rank unless he has been
given by the management a reasonable opportunity of being
heard against the action proposed to be taken :Provided that no final order in this regard shall be
passed unless prior approval of the Director of
Education or an officer authorised by him in this behalf
has been obtained :Provided further that this section shall not apply,-
(i) to a person who is dismissed or removed on the
ground of conduct which led to his conviction on a
criminal charge, or
3(ii) where it is not practicable or expedient to give that
employee an opportunity of showing cause, the
consent of Director of Education has been
obtained in writing before the action is taken, or(iii) Where the managing committee is of unanimous
opinion that the services of an employee can not be
continued without prejudice to the interest of the
institution, the services of such employee are
terminated after giving him six months notice or salary
in lieu thereof and the consent of the Director of
Education is obtained in writing.(emphasis supplied)
The relevant definitions as contained in Section 2 of the Act
of 1989 read as under:-
(a) “aid” means any aid granted to a recognised
educational institution by the State Government;(b) “aided institution” means a recognised institution which
is receiving aid in the form of maintenance grant from the
State Government;(c) “Board” means the Board of Secondary Education,
Rajasthan or the Central Board of Secondary Education,
Delhi and shall include the Council for the Indian School
Certificate Examinations;(p) “non-Government educational institution” means any
college, school, training institute or any other institution, by
whatever name designated, established and run with the
object of imparting education or preparing or training
students for obtaining any certificate, degree, diploma or any
academic distinction recognized by the State or Central
Government or functioning for the educational, cultural or
physical development of the people in the State and which is
neither owned nor managed by the State or Central
Government or by any University or local authority or other
authority owned or controlled by the State or Central
Government;(q) “recognised institution” means a non-Government
educational institution affiliated to any University or
recognised by the Board, Director of Education or any officer
authorised by the State Government or the Director of
Education in this behalf;Section 3 of the Act of 1989 deals with recognition of
institutions and provides as under:-
3. Recognition of institutions. (1) Except in the case of
institution affiliated to a University or recognised or to be
recognised by the Board, the Competent Authority may, on
an application made to it in the prescribed form and manner,
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recognise a non-Government educational institution on
fulfillment of such terms and conditions as may be
prescribed :Section 19 provides for an appeal to the Tribunal constituted
under Section 22 of Act in the following terms:-
“19. Appeal to the Tribunal – (1) If a managing committee
is aggrieved from the order of refusal made by the Director
of Education under section 18, it may prefer an appeal to
the Tribunal constituted under section 22 within ninety days
of the date of receipt of such order.(2) An employee aggrieved from an order of the managing
committee made under section 18, may prefer an appeal to
the said Tribunal within ninety days of the date of receipt of
such order.Section 40 gives the provisions of the Act overriding effect
over anything inconsistent in any instrument having effect by virtue
of any law; and reads as under:-
40. Overriding effect of the Act – The provisions of this Act
shall have effect notwithstanding anything inconsistent
contained in any instrument having effect by virtue of any
law.THE BACKGROUND FACTS
Before adverting to the questions calling for determination in
this reference, appropriate it shall be to have a glimpse of the
background facts relating to these appeals. These three intra-court
appeals by the appellant Central Academy Society are directed
against the orders dated 07.03.2001 whereby the learned Single
Judge of this Court has dismissed the writ petitions filed by the
petitioner-Society in challenge to the common order dated
11.10.1999 passed by the Rajasthan Non-Government Educational
Institutions Tribunal, Jaipur [hereinafter referred to as ‘the Tribunal’]
in the appeals preferred by the private respondents-employees
against the order dated 22.02.1997 whereby their services were
sought to be terminated in the purported exercise of powers under
clause (iii) of second proviso to Section 18 of the Act. The Tribunal
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held that the provisions contained in Section 18 of the Act and soalso Rule 39 of the Rules framed thereunder were mandatory in
nature and the same having not been complied with, the orders of
termination were bad in law.
In challenge to the order so passed by the Tribunal, it was
urged by the employer Society in the writ petitions that the order of
termination having been passed by unanimous decision of the
Committee, it must be deemed to be an order of termination
simplicitor within the meaning of clause (iii) of the proviso to Section
18 of the Act of 1989 and not by way of punishment; and therefore,
the principles of natural justice were not required to be adhered to
and no opportunity of hearing was required to be given before
taking action under the said clause. A Circular issued by the
Government on 09.07.1998 was also relied upon under which, it
was envisaged that if the District Education Officer would not
communicate in writing within 30 days his disapproval of the
proposed termination of services of any employee, the approval
may be deemed to have been accorded; and it was submitted that
on the expiry of 30 days from the date of sending the decision to
the Director, it must be deemed to have received the required
approval.
In the impugned orders dated 07.03.2001, the learned Single
Judge of this Court referred to the requirements of the aforesaid
clause (iii) of the second proviso to Section 18 of the Act; and
rejected the contention based on the alleged Circular of the
Government for it being not in conformity with the statutory
provisions. The learned Single Judge said,-
“Neither any such contention has been raised nor any such
suggestion has been made in Ex. 2, the Circular, issued by
the State Govt. in that regard that any amendment in Sec.
18 has been made. The proviso (iii) leaves no room of
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doubt. Under the Act, for operation of proviso (iii) to Sec. 18,
the conditions requisite are; first is that the managing
committee is of unanimous opinion, second is that such
opinion must relate to the fact that the employee cannot be
continued without prejudice to the interest of the institution,
third is that before such unanimous decision, can be given
effect to, there must be fulfilled two pre-conditions: firstly that
before the services are terminated either six months notice is
to be served on the concerned employee or salary in lieu
there of is paid; and secondly for such termination consent
of the Director of Education is obtained in writing. No rule
much less executive order can dispense with the
requirement of the consent by director in writing by issuing
instructions to envisage that non receipt of the decision by
the Director in negative within 30 days of making of
application would tantamount to be deemed consent of the
Director to the proposed action of termination thus doing
away with the statutory requirement of such consent to be in
writing. The parent provision requires that before such order
became effective such consent of the authority, who has
been designated the function of according or withholding
such consent, must speak for itself through an order in
writing. A silence to speak cannot be equated with
requirement of an order in writing. It is not within the domain
of the delegated authority or executive authority of the State
to deviate from that and make rule of its own in derogation of
parent statute. Thus, even on admitted facts in absence of
any written consent by the Director the order cannot come to
life at all. In the present case, even the delegated authority
namely the District Education Officer has not given his
consent in writing. In view of this undisputed circumstance,
termination order which even if fulfils all other conditions
cannot be said to have ever come in operation and become
effective.”The learned Single Judge thereafter referred to the
requirement of ‘unanimous opinion’ of the Managing Committee
and observed that this requirement could not be delegated to any
smaller body for reaching to the conclusion as to whether
continuance of employee was not possible without prejudice to the
interest of the institution. The learned Single Judge observed
further, with reference to the contents of the impugned termination
order, that such had not been the opinion framed by the Committee
concerned but was the opinion held only by the Secretary of the
Committee. The learned Judge held that the order of termination
could not be considered on its own to be a unanimous decision by
the Managing Committee; and further that the impugned order was
punitive in nature and not an order of termination simplicitor. That
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being so, learned Single Judge said, unless the decision-makingauthority had given an opportunity of hearing to the delinquent, no
punishment of dismissal could have been imposed. The learned
Single Judge also referred to the antecedents where services of the
incumbents were sought to be terminated earlier and such an
action was not approved and rather, the Society was directed to
hold an enquiry; and held that the impugned propositions as
adopted by the Society were wholly arbitrary and unfair, being
calculated at nullifying the effect of binding orders.
Aggrieved by the orders so passed by the learned Single
Judge in dismissing the respective writ petitions, the appellant-
Society has preferred these intra-court appeals. During the course
of hearing of these appeals, the appellant-Society relied upon a
Division Bench decision in the case of Educational Society of
Sophia High School & Ors. Vs. Raj. Non-Govt. Educational Ins.
Tri. & Ors.: 2003 WLC (Raj.) UC 638 to argue that the provisions of
Section 18 ibid would not apply for itself being an unaided
institution. On the other hand, the respondents relied upon the
Division Bench decisions in (i) Saint Meera Brotherhood Society Vs.
State of Rajasthan & Ors.: 2006 (1) WLC (Raj.) 677 and (ii) the
Managing Committee through Chairman (Brid.) Dy. G.O.C., Army
School & Anr. Vs. Smt. Pushpa Sharma & 4 Ors.: 2006 (3) WLC
(Raj.) 504 to submit that the provisions of Section 18 are mandatory
in nature and applicable to the appellant-Society as well.
As noticed, this reference came to be made when the
Division Bench hearing these appeals found the views expressed in
the aforesaid Division Bench decisions on the question about
applicability of Section 18 of the Act in relation to an employee of an
unaided recognised institution not in uniformity; and standing rather
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in conflict. Hence, appropriate it shall now be to have a close lookat the decisions said to be expressing different views.
THE CASE OF SOPHIA SCHOOL
The appellant had relied upon the decision of the Hon’ble
Division Bench of this Court in the case of Educational Society of
Sophia High School & Ors. Vs. Raj. Non-Govt. Educational Ins.
Tri. & Ors.: 2003 WLC (Raj.) UC 638 [D.B. Civil Writ Petition No.
601/2002 – Decided on 07.04.2003] to submit that the requirements
of Section 18 shall not apply in the case of an unaided recognised
institution. In Sophia School’s case, the respondent No.2 was
serving as a teacher with the petitioner, a recognised private
educational institution not receiving any aid from the Government;
and her services were terminated by the order dated 19.02.2000 as
a result of the proved misconduct in a departmental enquiry
conducted by the petitioner. The respondent No.2 challenged the
termination order before the Tribunal, inter alia, on the ground that
before effecting such termination, prior approval of the Director
Education was not obtained as required by the proviso to Section
18 ibid. Such a contention found favour with the Tribunal and solely
on the ground that the petitioner had not obtained prior approval of
the Director of Education or any Officer authorised by him in this
behalf, the termination order was held to be void ab initio and was
set aside.
In the writ petition preferred by the Institution, the Division
Bench of this Court in its order dated 07.04.2003 found the
question no more res integra while observing that in the case of
T.M.A. Pai Foundation & Ors. Vs. State of Karnataka and Ors.
(2002) 8 SCC 481 [hereinafter referred to as ‘Pai Foundation’ case],
the Hon’ble Supreme Court had made it clear that in a recognised
9
private education institution not receiving any aid from the State,there has to be least interference by the State. The Division Bench
was of opinion that in view of the law declared by the Hon’ble
Supreme Court, the requirement in Section 18 ibid, of seeking prior
approval of the Director, has to be read confined to the aided
institutions only and not applicable to the unaided institution private
institutions. The Division Bench said,-
“6. The aforesaid question is now no more resintegra. In
T.M.A. PAI Foundation & Ors. Vs. State of Karnataka and
Ors. (2002) 8 SCC 481, the Supreme Court has made it
clear that any recognised private education institution which
is not receiving any aid from the State, there has to be least
interference by the State in the managerial functions of such
institution. Making specific reference to the requirement of
obtaining prior approval before terminating services of an
employee of an educational institution which is not receiving
any aid from the state in the context of disciplinary action
taken by any such institution, it was stated by the Court:“We see no reason why the management of a private
unaided educational institution should seek the
consent or approval of any governmental authority
before taking any such action. In the ordinary
relationship of master and servant, governed by the
terms of a contract of employment, anyone who is
guilty of breach of the terms can be proceeded
against and appropriate relief can be sought.
Normally, the aggrieved party would approach a court
of law and seek redress.”7. The Court found that in the case of private institution, the
relationship between the management and the employees is
contractual in nature. The Court also found that ordinarily
requiring a teacher or a member of the Staff to go to Civil
Court for the purpose of seeking redress. Education
disputes between the management and the staff of
educational institutions must be decided speedily, and
without the excessive incurring of costs. It would, therefore,
be appropriate that an Educational Tribunal in a State – the
object being that the teacher should not suffer through the
substantial costs that arise because of the location of the
Tribunal. The Court also said that till a specialized tribunal is
set up, the right of filing the appeal would lie before the
District Judge or Additional District Judge as notified by the
Government. The Court further declared:“It will not be necessary for the institution to get prior
permission or ex post facto approval of a
governmental authority while taking disciplinary action
against a teacher or any other employee.”8. In view of the aforesaid, the Proviso to Section 18 has
to be read in the light of aforesaid pronouncement of law
and in a manner that it does not fall foul with the law
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declared by the apex court on the subject in the light of
constitutional provisions. Requirement to seek approval of
the Director Education before taking disciplinary action
against the teacher or its employee by any recognised
institution has to be read in the light of the Supreme Court’s
decision in T.M.A. Pai Foundation Vs. State of Karnataka’s
case and the proviso has to be confined to the private
recognised educational institutions which are receiving
aid from the State Government to sustain its
constitutional validity. Such requirement of prior
approval of Director Education before final disciplinary
action is taken by way of removal, dismissal or
reduction in rank of any employee amounts to
interference in managerial function and such power
cannot extend to such recognised private Educational
Institution which do not receive any aid from the State.
We accordingly do so.”(emphasis supplied)
For the conclusions aforesaid, and after finding that in the
State of Rajasthan, an Educational Tribunal had already been
established and the appeal had been preferred before the said
Tribunal, the Division Bench held that there was no impediment for
the respondent No.2 in seeking remedy before the Tribunal against
her dismissal order. The Division Bench, accordingly, allowed the
writ petition, set aside the order passed by the Tribunal and
directed the Tribunal to decide the appeal of respondent No.2
afresh in accordance with law while ignoring the issue about the
absence of prior approval before making an order of
dismissal/removal.
THE CASES OF SAINT MEERA BROTHERHOOD SOCIETY AND
ARMY SCHOOL
In counter to the submissions made by the appellants, the
respondent employees had relied upon two Division Bench
decisions purportedly taking a view different than that expressed in
Sophia School (supra); the one being the case of Saint Meera
Brotherhood Society Vs. State of Rajasthan & Ors.: 2006 (1) WLC
(Raj.) 677 [D.B. Civil Special Appeal (Writ) No. 69/2001 – Decided
on 16.12.2005]. In this case, the services of the respondent No.5,
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who was appointed as Teacher Gr.III with effect from 01.07.1981on ad hoc basis by the appellant Society, were terminated by the
order dated 15.05.1993 because of abolition of posts but without
the prior approval of the Director, Education Department. The
respondent No. 5 assailed the order of termination by filing an
appeal before the Tribunal; and the Tribunal proceeded to allow the
appeal by its order dated 13.05.1994 essentially on the ground that
the Society had not complied with the mandatory provisions of
Section 18 of the Act of 1989; and quashed the order of
termination. The order passed by Tribunal was challenged by the
Society by filing the writ petition, which was dismissed by the
learned Single Judge with a short order that the impugned order,
being a well-reasoned one, required no interference; and the
Tribunal had rightly reached to the conclusion that there was non-
compliance of the mandatory requirement of Section 18 ibid.
The order so passed in the writ petition was challenged in
intra-court appeal on the grounds that the learned Single Judge
dismissed the petition with a practically non-speaking order; and
that because of abolition of posts, there was no necessity of prior
approval of the authority. The Hon’ble Division Bench rejected the
contention that the order passed by the learned Single Judge was a
non-speaking one and further rejected the contention that because
of abolition of posts, the approval by the authority was not required
while observing that the provisions contained in Section 18 of the
Act were mandatory in nature. The Division Bench said,-
“7. A look at section 18 of the 1989 Act and the Rules
made thereunder provide that no employee of the
recognised Institution shall be removed, dismissed or
reduced in rank unless he has been given a reasonable
opportunity of being heard against the action proposed to be
taken. As per proviso (iii), Section 18 shall not apply where
the managing committee is of unanimous opinion that the
service of an employee cannot be continued without
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prejudice to the interest of the institution, the services of
such employee are terminated after giving him six months
notice or salary in lieu thereof and the consent of the
Director of Education is obtained in writing.8. Since the proviso (iii) of Section 18 of 1989 Act has
not been followed in letter and spirit by the Institution in
terminating the services of the employee, we do not find any
infirmity in the impugned order of learned Single Judge. The
Tribunal has proceeded within its parameters…..… … …
9. We find ourselves unable to accept the arguments of
learned counsel for the appellant that because of abolition of
posts the provisions contained in Section 18 of 1989 Act
were not applicable. We are of the view that the
provisions contained in Section 18 of 1989 Act are
mandatory and it was incumbent on the appellant society to
follow the same.”(emphasis supplied)
The other decision relied upon by the respondents had been
in the Managing Committee through Chairman (Brid.) Dy. G.O.C.,
Army School & Anr. Vs. Smt. Pushpa Sharma & 4 Ors.: 2006 (3)
WLC (Raj.) 504 [D.B. Civil Appeal (W) No. 62/2001 with connected
cases – Decided on 31.03.2006]. In this decision, the Hon’ble
Division Bench considered five appeals involving common
questions together. The private respondents therein had been
appointed as teacher with the appellant Society on different dates
and were dismissed from service by different orders issued in the
year 1997. The dismissal orders were challenged before the
Tribunal; and the Tribunal, by a common order dated 06.06.2001,
allowed the appeals and set aside the dismissal orders. The writ
petitions preferred by the Society were dismissed by the learned
Single Judge of this Court after finding non-compliance of Section
18 ibid.
In the intra-court appeals, it was contended that the Society
was not covered by the provisions of the Act of 1989 for having not
taken any recognition from the Government under Section 3
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thereof; that Section 18 was not applicable because the actiontaken was not penal in nature; and that the rules and regulations
framed by the society will hold the field and the orders of
termination were required to be adjudged as per such rules and
regulations. The Hon’ble Division Bench rejected the contention on
inapplicability of the Act of 1989 for alleged want of taking
recognition from the State Government with reference to the
definitions contained in clauses (c), (p) and (q) of Section 2 of the
Act; and also rejected the contention about the effect of the rules
and regulations of the society with reference to Section 40 ibid,
giving the provisions of the Act overriding effect.
The Hon’ble Division further rejected the contention urged on
behalf of the Society that Section 18 of the Act would apply only in
case of disciplinary action and not for simple termination with the
observations that the main Section 18 and proviso (iii) would cover
both type of cases; and that the said Section had been enacted with
a view to check the arbitrary action of the management in removing,
dismissing, reducing in rank and termination also. The Hon’ble
Bench said,-
“11. As regards further submission on applicability of
Section 18 of the Act of 1989, only in case action is taken
by way of disciplinary action and not simple termination, we
are of the view that the main Section 18 and Proviso (iii) of
the Act of 1989 will cover both type of cases and said
Section has been enacted with a view to check the arbitrary
action of the management in removing, dismissing,
reducing in rank and termination also. Therefore, the
provisions of reasonable opportunity/unanimous resolution
of Managing Committee and approval/consent of the
Director are made mandatory in the order to ensure the
fairness of the action. Neither there is unanimous
resolution of the Managing Committee no six months notice
was given nor payment of six months salary in lieu of notice
was given nor consent of the Director was taken.
Therefore, even if the case is taken to be of termination,
then also mandatory Proviso (iii) of Section 18 of the Act of
1989 has been violated. The said Section is applicable in
respect of all the employees whose services have been
dismissed by way of disciplinary action or simple
termination.”14
WHETHER THERE IS CONFLICT OF OPINIONS
Though the Hon’ble Division Bench while making the instant
reference inferred that the aforesaid two sets of decisions, Sophia
School’s case on one hand and Saint Meera Brotherhood Society
and Army School’s cases on the other, represent conflicting
opinions but, after having taken into comprehension the fact
situation in, and the ratio from, the aforesaid decisions, we are of
the considered view that strictly speaking, they cannot be said to
be expressing conflicting opinions as such. In the cases of Saint
Meera Brotherhood Society and Army School, the question as to
whether Section 18 or the requirements therein were applicable to
unaided institution or not did not arise for consideration nor any
such arguments appear to have been advanced that the concerned
Societies were unaided institutions. In fact, after going through the
decisions in Army School and Saint Meera Brotherhood Society, we
are unable to find any reference to the fact as to whether the said
education institutions were aided or unaided. Moreover, Saint
Meera Brotherhood Society and Army School’s cases were not
relating to the disciplinary proceedings by the institution. In Saint
Meera Brotherhood Society, the services of the employee were
terminated because of the alleged abolition of posts. In Army
School too, it was alleged that the dismissal was not punitive in
nature and was not of disciplinary action. On the other hand, in
Sophia School’s case, the question was considered precisely with
reference to the fact that the petitioner-Society was an unaided
institution and it was held that for taking of disciplinary proceeding
by such an unaided institution, the requirements of prior or post
approval by the authorities of the Government would not apply per
15
the dictum of the Hon’ble Supreme Court in Pai Foundation.In our considered view, even though in Saint Meera
Brotherhood Society and Army School, the observations have been
made in broad and general terms on the import and effect of
Section 18 of the Act in relation to the termination of services of the
employee of a recognised institution; but not in relation to the
specific case of disciplinary proceedings by an unaided recognised
institution. The decision in Sophia School being related to the
specific case of disciplinary proceedings by an unaided institution,
in our opinion, operates on such distinctive and particular class of
cases irrespective of general observations in other two decisions,
rendered later.
It is also noticed that in those later decisions i.e., Saint
Meera Brotherhood Society and Army School, neither the decision
in Sophia School nor that in Pai Foundation were referred at all. The
reason for this omission essentially lies in the difference of the
nature of the impugned action. The later decisions were not
concerning disciplinary action, which was the subject matter in
Sophia School.
Thus, strictly speaking, the two sets of decisions aforesaid
cannot as such be construed as expressing discordant views.
While the decisions in Army School and Saint Meera express the
broad and general opinion on the mandatory nature of Section 18 in
relation to all classes of institutions but relate to the cases other
than those of disciplinary matters whereas Sophia School relates
only to the disciplinary proceedings by an unaided institution and
states the law as per the dictum of the Hon’ble Supreme Court in
Pai Foundation. Hence, when it comes to the question of
applicability of Section 18 in relation to the disciplinary proceedings
16
by an unaided institution, only the specific decision in SophiaSchool appears having relevance.
We do not propose to dilate further on this aspect of the
matter because even when finding that the two sets of decisions
cannot strictly be said to be in conflict, the question yet remains
about the correctness of the view expressed in Sophia School and
about the operation and effect of Section 18 of the Act qua an
unaided institution particularly in the light of the principles
propounded by the Hon’ble Supreme Court in Pai Foundation’s
case.
IMPORT AND EFFECT OF PAI FOUNDATION:
As noticed, in Sophia School, the learned Division Bench
read down the provision of Section 18 in the light of the decision of
the Hon’ble Supreme Court in Pai Foundation; and held that in view
of the law so declared by the Hon’ble Supreme Court, the
requirement of Section 18 cannot be made applicable to an unaided
institution taking disciplinary action. Thus, imperative it is to refer to
the relevant ratio from Pai Foundation.
It may be noticed that the decision in Pai Foundation ‘s case
(supra) was delivered by a Bench of 11 Judges of the Hon’ble
Supreme Court essentially when the questions were referred on the
scope of right of minorities to establish and administer educational
institutions of their choice under Article 30 (1) read with Article 29
(2) of the Constitution of India; and on the correctness of the
decision in St. Stephen’s College case: (1992) 1 SCC 558. During
the course of hearing, the questions were formulated and recast by
the Hon’ble Supreme Court and various questions broadly
encompassing the issues as to whether there is a fundamental right
17
to set up educational institutions and to what extent the rights ofprivate minority institution to administer could be regulated etc. were
taken up for consideration. For the present purpose, suffice is to
notice that the Hon’ble Supreme Court in Pai Foundation dealt with
the issues not only on the rights of and permissible restrictions upon
the minority institutions but as well on the rights in general of non-
minorities to establish and administer aided or unaided institutions.
It has been in relation to such issues that one of the pertinent
questions came up before the Hon’ble Apex Court as to whether in
the case of private institutions, could there be government
regulations in relation to disciplinary matters; and if so, to what
extent? The submissions, as noticed by the Hon’ble Court on such
questions, had been as under:-
“63. It was submitted that for maintaining the excellence of
education, it was important that the teaching faculty and the
members of the staff of any educational institution performed
their duties in the manner in which it is required to be done,
according to the rules or instructions. There have been
cases of misconduct having been committed by the teachers
and other members of the staff. The grievance of the
institution is that whenever disciplinary action is sought to be
taken in relation to such misconduct, the rules that are
normally framed by the Government or the university are
clearly loaded against the management. It was submitted
that in some cases, the rules require the prior permission of
the governmental authorities before the initiation of the
disciplinary proceeding, while in other cases, subsequent
permission is required before the imposition of penalties in
the case of proven misconduct. While emphasizing the need
for an independent authority to adjudicate upon the
grievance of the employee or the management in the event
of some punishment being imposed, it was submitted that
there should be no role for the Government or the university
to play in relation to the imposition of any penalty on the
employee.”It was in the context of the aforesaid questions and
submissions that the Hon’ble Supreme Court in its majority opinion
held against governmental interference in disciplinary matters dealt
with by unaided private institutions as under:-
18
“64. An educational institution is established only for the
purpose of imparting education to the students. In such an
institution, it is necessary for all to maintain discipline and
abide by the rules and regulations that have been lawfully
framed. The teachers are like foster parents who are
required to look after, cultivate and guide the students in
their pursuit of education. The teachers and the institution
exist for the students and not vice versa. Once this principle
is kept in mind, it must follow that it becomes imperative for
the teaching and other staff of an educational institution to
perform their duties properly, and for the benefit of the
students. Where allegations of misconduct are made, it is
imperative that a disciplinary enquiry is conducted, and that
a decision is taken. In the case of a private institution, the
relationship between the management and the employees is
contractual in nature. A teacher, if the contract so provides,
can be proceeded against, and appropriate disciplinary
action can be taken if the misconduct of the teacher is
proved. Considering the nature of the duties and keeping
the principle of natural justice in mind for the purposes
of establishing misconduct and taking action thereon, it
is imperative that a fair domestic enquiry is conducted.
It is only on the basis of the result of the disciplinary
enquiry that the management will be entitled to take
appropriate action. We see no reason why the
management of a private unaided educational institution
should seek the consent or approval of any
governmental authority before taking any such action. In
the ordinary relationship of master and servant, governed by
the terms of a contract of employment, anyone who is guilty
of breach of the terms can be proceeded against and
appropriate relief can be sought. Normally, the aggrieved
party would approach a court of law and seek redress. In the
case of educational institutions, however, we are of the
opinion that requiring a teacher or a member of the staff to
go to a civil court for the purpose of seeking redress is not in
the interest of general education. Disputes between the
management and the staff of educational institutions must
be decided speedily, and without the excessive incurring of
costs. It would, therefore, be appropriate that an Educational
Tribunal be set up in each district in a State, to enable the
aggrieved teacher to file an appeal, unless there already
exists such an Educational Tribunal in a State — the object
being that the teacher should not suffer through the
substantial costs that arise because of the location of the
Tribunal; if the tribunals are limited in number, they can hold
circuit/camp sittings in different districts to achieve this
objective. Till a specialized tribunal is set up, the right of
filing the appeal would lie before the District Judge or
Additional District Judge as notified by the Government. It
will not be necessary for the institution to get prior
permission or ex post facto approval of a governmental
authority while taking disciplinary action against a
teacher or any other employee. The State Government
shall determine, in consultation with the High Court, the
judicial forum in which an aggrieved teacher can file an
appeal against the decision of the management concerning
disciplinary action or termination of service”.(emphasis supplied)
19
The learned counsel for the parties have referred to thesubsequent decisions in the cases of Islamic Academy: (2003) 6
SCC 697 and P.A.Inamdar: (2005) 6 SCC 537 wherein the Hon’ble
Supreme Court dealt with different issues cropping up after Pai
Foundation but then, essentially such issues had been on regulation
of admissions, quota in admissions, regulating of fee structure etc.
Of course, observations have been made in P.A.Inamdar that
merely because Article 30 (1) has been enacted, the minority
educational institutions do not become immune from operation of
regulatory measures because the right to administer does not
include the right to maladminister; and that once an educational
institution is granted aid or aspires for recognition, the State may
grant aid or recognition accompanied by certain restrictions or
conditions which must be followed as essential to the grant of such
aid or recognition, however, noticeable it is that in P.A.Inamdar
itself, the Hon’ble 7-Judges’ Bench made it clear that the said
decision was not of expression of any opinion variant of Pai
Foundation while saying,-
“….At the very outset, we may state that our task is not to
pronounce over own independent opinion on the several
issues which arose for consideration in Pai Foundation.
Even if we are inclined to disagree with any of the findings
amounting to declaration of law by the majority in Pai
Foundation we cannot: that being a pronouncement by an
eleven-Judge Bench, we are bound by it. We cannot
express dissent or disagreement howsoever we may be
inclined to do so on any of the issues….”Therefore, the law as declared by the Hon’ble Supreme Court
in Pai Foundation remains binding, unaltered and unaffected by
any other observation made in any other decision; and hence, for
the purpose of the issue at hands, there does not appear any
necessity to refer to other past and later decisions as referred by
the learned counsel for the parties.
20
A bare reference to the above-quoted passage from Pai
Foundation and particularly the highlighted portions leaves nothing
to doubt or even to ponder that so far unaided private educational
institution is concerned, as per the dictum of the Hon’ble Supreme
Court, there cannot be any requirement to seek consent or approval
of any governmental authority before taking any disciplinary action;
and that it is not necessary for the institution to get prior permission
or even ex post facto approval while taking disciplinary action
against a teacher or any other employee. Thus, so far disciplinary
actions are concerned, as per the law declared by the Hon’ble
Supreme Court, the matters are to be left for the unaided institution
itself to take appropriate action about; and for such an action, the
unaided institution need not go on seeking approval whether prior or
post from the governmental authorities.
READING DOWN OF SECTION 18:
As noticed, the Division Bench of this Court in Sophia
School’s case has said, with reference to the law declared by the
Hon’ble Apex Court in Pai Foundation, that the proviso to Section
18 is required to be read down by confining it to the private
recognised educational institutions which are receiving aid from the
government to sustain its constitutional validity. The Hon’ble
Division Bench has said that the requirement of prior approval of
the Director Education before taking final disciplinary action by way
of removal, dismissal or reduction in rank of any employee amounts
to interference in managerial function and such power cannot be
extended over the institutions not receiving any aid from the
government.
Now, a look at Section 18 ibid makes it clear that the
provisions contained therein make no distinction between aided and
21
unaided institution and have been made as if applicable in relationto all the recognised institutions.
Though, ordinarily, it is the literal rule of interpretation that is
applied for interpretation of any statutory provision. The rule of
literal interpretation is that in construing a written instrument,
grammatical and ordinary sense of the words is adhered to unless
that would lead to some anomaly, or some oddity, or some
absurdity, or some repugnancy or inconsistency. We find the
position in relation to the first proviso to Section 18 to be very much
that of an anomaly where, if the same be read literally and applied
indiscriminately to all the recognised institutions, it would fall foul
with the dictum of Pai Foundation so far the unaided institutions are
concerned for whom the Hon’ble Supreme Court has laid down in
no uncertain terms that for the purpose of disciplinary action against
the employees, such unaided institutions need not seek prior or
even ex post facto approval from the any governmental authority. In
the given situation and particularly in view of the law declared by the
Hon’ble Supreme Court in Pai Foundation, we are inclined to agree
with the course adopted by the learned Division Bench in Sophia
School (supra) so as to read the provision as contained in the first
proviso to Section 18 down as being applicable only to the aided
institutions and not to the unaided institutions. The Hon’ble
Supreme Court in the case of Arun Kumar & Ors. Vs. Union of India
& Ors.: (2007) 1 SCC 732 has indicated the doctrine of reading
down in the following:-
“55. The doctrine of ‘reading down’ is well-known in
the field of Constitutional Law. Colin Howard in his well-
known work “Australian Federal Constitutional Law” states;Reading down puts into operation the principle that so
far as it is reasonably possible to do so, legislation
should be construed as being within power. It has the
practical effect that where an Act is expressed in
22
language of a generality which makes it capable, if
read literally, of applying to matters beyond the
relevant legislative power, the Court will construe it in
a more limited sense so as to keep it within power.”
The position obtainable in relation to the proviso to Section 18
is that it is not as such beyond the legislative competence nor could
be said to be directly against any constitutional provision but then,
the same would be hit by the law declared by the Hon’ble Supreme
Court in Pai Foundation (supra) if sought to be employed and
applied in relation to an unaided private institution. Thus, in our
opinion, reading down of the same as being applicable only to aided
institution is the only way of its correct interpretation so as to keep it
within the legislative competence and constitutionality. For the
reasons foregoing, we approve the ratio in Sophia School’s case
(supra).
A submission has been made on behalf of the respondents
that in the scheme of the Act of 1989, there is provided an appeal
under Section 19 that could be taken recourse of by the managing
committee in case of refusal made by the Director of the approval
required under Section 18 and hence, for sufficient safeguard
having been provided in the enactment against governmental
interference, the proviso to Section 18 does not offend the dictum of
Pai Foundation. The submission remains untenable so far
disciplinary action by an unaided private educational institution is
concerned. When such an institution need not seek prior or even ex
post facto approval for its disciplinary action, the question of refusal
or according of such approval does not arise at all.
However, we would hasten to make it clear that what has
been observed above relates only to the disciplinary action by the
unaided institution and not all and other actions, as discussed infra.
23
COMPREHENSIVE INTERPRETATION OF SECTION 18 QUA
UNAIDED INSTITUTION:
Even when have concurred with the ratio in Sophia School in
reading down of first proviso to Section 18 of the Act of 1989 as
being confined only to aided institutions and not applicable to the
unaided institutions, this does not completely answer the real
question before us about applicability of the provisions contained in
Section 18 ibid to the unaided institutions.
As noticed, Section 18 of the Act of 1989 in its principal
provision ordains that no employee of a recognised institution shall
be removed, dismissed, or reduced in rank unless he has been
given by the management a reasonable opportunity of being heard
against the action proposed to be taken. Then, Section 18 carries
two provisos, the first one being of the requirement of obtaining
prior approval in relation to removal, dismissal or reduction in rank.
However, the second proviso to Section 18 is essentially of
exception to the provisions preceding it. The second proviso says
that this Section (i.e., Section 18) shall not apply in three
eventualities: (i) when a person is dismissed or removed on the
ground of conduct which led to his conviction on a criminal charge;
(ii) where it is not practicable or expedient to give that employee an
opportunity of showing cause and the consent of Director of
Education has been obtained in writing before the action is taken;
and (iii) where the managing committee is of unanimous opinion
that the services of an employee cannot be continued without
prejudice to the interest of the institution; and the services of such
employee are terminated after giving him six months notice or
salary in lieu thereof and the consent of the Director of Education is
obtained in writing.
24
The three eventualities as referred in second proviso
wherefor Section 18 would be inapplicable are clearly carving out
exceptions to principal provision of Section 18; and after examining
the scheme of the Section 18 as a whole and applying the dictum
from Pai Foundation, even when we hold the first proviso
inapplicable to the unaided institution in disciplinary action, the
same cannot be said to be true for the second proviso too.
The second proviso is essentially an exception whereby, in
the given eventualities, the principal provision of Section 18 is
altogether ruled out of application. The principal provision of Section
18 is that no employee of a recognised institution shall be removed,
dismissed or reduced in rank unless he has been given a
reasonable opportunity of being heard by the management. This is
on the very first principles of natural justice. Even when the Hon’ble
Supreme Court in Pai Foundation has ruled against the requirement
of obtaining prior or post approval of the governmental authorities
by an unaided institution while taking disciplinary action, the Hon’ble
Court has not ruled that the institution, whether aided or unaided,
could otherwise obviate the necessity of extending a reasonable
opportunity of hearing to the employee concerned while taking an
action prejudicial to him in his service. Even in the case of an
unaided institution, the requirements of principal provision of
Section 18, of extending reasonable opportunity of hearing to the
employee against the proposed action, remains mandatory.
However, as per the second proviso, which is essentially carving out
three exceptions, such a requirement of extending reasonable
opportunity of hearing could be dispensed with in the given
eventualities but then, only with the given conditions. The first one
is when the person is dismissed or removed for his conviction on a
25
criminal charge. The second one, per clause (ii), is when it would be
impracticable or inexpedient to give the employee an opportunity of
showing cause. For this eventuality, the requirement of obtaining
the consent of Director of Education does not, in our considered
opinion, contradict the dictum of Pai Foundation. The provision itself
being for the purpose of dispensing with the normal procedure of
opportunity of hearing, its requirements are to be strictly adhered to.
Similarly, clause (iii) of second proviso is also of dispensing
with the requirement of reasonable opportunity of hearing but here
the managing committee has to form unanimous opinion that
services of an employee cannot be continued without prejudice to
the interest of the institution; and, upon such unanimous opinion,
the services of such an employee can be terminated after giving
him six months notice or salary and obtaining the consent of
Director of Education. Here again, for the permissibility of
dispensing with regular enquiry and opportunity of hearing, the
requirements as stated are to be strictly complied with and cannot
be ignored. The requirement of obtaining consent in this clause is
also, in our opinion, not such a consent which may stand at
contradiction to the dictum in Pai Foundation. Here, in clause (iii),
the Institution is not taking disciplinary action but is dispensing with
the services on a unanimous decision. The necessity of obtaining
consent in this provision is also a mandatory one and cannot be
avoided.
Thus, we find that even while the first proviso to Section 18 of
the Act of 1989 would not apply in the disciplinary action by the
unaided private educational institution, the other provisions of
Section 18 are, without any doubt, applicable to all the institutions,
aided or unaided.
26
Before concluding, we may point out that a decision by the
learned Single Judge of this Court in the case of Managing
Comimittee S.S. Jain Subodh Siksha Samiti, Jaipur & Anr. Vs.
Rajendra Kumar Rao & Ors.: 2005(5) RLW 288 has been referred
during the course of arguments. In this case, the learned Single
Judge observed that the decision in Pai Foundation overrules
clause (iii) of the second proviso to a limited extent that it would not
be necessary for the unaided institution to obtain the consent of
Director of Education but other mandates of this clause (iii) ought to
be followed in letter and spirit. With respect, we are unable to
endorse the first part of the views so stated in this decision. In our
considered opinion, as stated supra, nothing contained in second
proviso to Section 18 is hit by Pai Foundation. What is eclipsed by
the ratio of Pai Foundation in relation to an unaided institution is
only the first proviso to Section 18; and not the other provisions
contained in Section 18 viz., the principal provision, and so also the
second proviso. These other provisions of Section 18 do apply, as
they are and in mandatory form, to unaided institution as well.
THE ANSWERS:
In view of what has been discussed above, our answer to this
reference is that the first proviso to Section 18 of the Act of 1989
does not apply in relation to the disciplinary action by private
unaided recognised institution but the other provisions of Section 18
including the second proviso do apply to such unaided private
recognised educational institution too.
The record be now placed before the concerned bench for
decision of the appeals on their merits.
MK (SANGEET LODHA),J. (DR. VINEET KOTHARI),J. (DINESH MAHESHWARI),J.
27