JUDGMENT
B.L. Hansaria, C.J.
1. The two petitioners were serving as Assistant Teachers in Buxi Jagabandhu English Medium School, Bhubaneswar. As the monthly salary paid to the petitioners was nominal inasmuch as the same was Rs. 100/- in so far as the petitioner in O.J.C. No. 4119/88 is concerned and Rs. 250/- qua the other petitioner, to augment their income, they wanted to take up agency work of Peerless General Finance and Investment Company. By communication dated January 22, 1985, the Secretary of the School permitted the petitioners to undertake the above work beyond school hours without affecting the normal duty as teachers. Subsequently, however, the Secretary of the school called upon the petitioners to explain as to why disciplinary action should not be taken against them for “having agency of an insurance company”, which was regarded as highly irregular. The petitioners were further asked to dissociate themselves from the agency and report compliance. In the explanation submitted, the petitioner of O.J.C. No. 4119/88 stated that as she had taken the insurance agency in 1981 and the tenure was for a period of two years, she was no longer an agent. This is what finds place in Annexure-5 dated October 20, 1987. In so far as the other petitioner is concerned, her reply as at Annexure-4 was that her agency under the company was “almost dead” and she was doing nothing for the company under the agency taken previously. It was further stated in Annexure-6 dated October 18, 1987 that she had dissociated herself from the agency work for the last two years. These explanations were considered by the Managing Committee, and being of the view that the petitioners had committed gross misconduct violating the terms of agreement executed by them, a decision was taken to terminate their services with effect from October 26, 1987 F.N.
2. The validity of the termination order was assailed in appeal before the Director, Secondary Education, who allowed the same by quashing the orders of termination and directing the Managing Committee to reinstate the petitioners forthwith giving all service benefits. This order was passed on June 6, 1988. As the Managing Committee did not implement the order of the Director, the present applications were filed praying, inter alia, for a writ of mandamus directing opp. parties 1 and 2 to reinstate the petitioners in service pursuant to the order of the Director (o.p.No. 5), and for a direction to opp.parties 5, 6 and 8 to take appropriate action for reinstatement of the petitioners in service.
3. As common questions of law and fact are involved in both the petitions, they were heard together and are being disposed of by this judgment.
4. Shri Gajendra for opp.parties 2, 3 and 7 has first submitted that the Director having no jurisdiction to entertain the appeal, no direction can be given by this Court to opp.parties 1 and 2 to reinstate the petitioners pursuant to the order of the Director. It is then contended that as the order of the Director can be implemented even without taking aid of this Court, if the case of the petitioners be accepted, by taking recourse to Section 7-A of the Orissa Education Act, 1969 (for short, “the Act”), this Court ought not to have been approached for the aforesaid purpose inasmuch as the prayer is to execute the Director’s order and this Court may not discharge such a function.
5. The objection relating to the jurisdiction of the Director has been taken on the ground that the Government Order No. 13585-EYS dated March 27, 1983 under which the appellate power was exercised by the Director has no application to the school in question inasmuch as the same is not a recognised one, having been established by a body of private individuals registered under the Societies Registration Act having its own memorandum of association. There is no dispute before us that if the school would not be a recognised one, the aforesaid Government Order would have no application and the Director would have no jurisdiction to entertain the appeal.
6. It has also been contended by Shri Gajendra that the Director could not have acquired jurisdiction even otherwise, as Article 287 (28) of the Orissa Education Code, which is applicable by virtue of the agreement between the teachers and the management of the school, a copy of which is at Annexure-A/1 of O.J. C . No. 4119/88, under which the Inspector of Schools, and not the Director, has been given the power of entertaining appeal. But this contention would not hold good in view of what has been stated in Arjun Charan Jena v. Director of Secondary Education, 66 (1988) C.L.T. 293, wherein this aspect of the matter was examined, and it was held that the forum of appeal provided under Article 287 (28) of the Code became nugatory for the reasons indicated in the judgment, whereafter the State Government, to fill up the vacuum, took the decision reflected in Government Order No. 13585-EYS dated March 27, 983, under which power was given to the Director to hear and dispose of appeals by the teachers of the specified class of institutions.
7. The real point for determination, therefore, is whether the school at hand can be said to be a recognised school. To satisfy us in this regard, Shri Jena appearing for the petitioners refers to Annexure-A/1 (in O.J.C. 4119/88), which is a copy of the office order dated February 24, 1981 issued by the Director of Public Instructions speaking about provisional recognition being granted to the school in question for opening Class VIII in the year 1980-81. We are then referred to Annexure-11 in the aforesaid O.J.C, which is on the subject of grant of recognition of Classes DC and X to the school at hand and after referring to the application of the school for the aforesaid recognition the Director recommended to the Board of Secondary Education to permit opening of the aforesaid classes in the year 1982-83 and to present candidates in the examination scheduled in 1983. To further reinforce the submission, Shri Jena refers us to the affilation bye-laws framed by the Central Board of Secondary Education with which the school is admittedly affiliated. The learned counsel in particular refers to bye-law No. 2.3 (i) which speaks that the school should have formal recognition by the State Government.
8. Shri Gajendra, in his turn, submits that the aforesaid documents really relate to permission to establish and maintain the school of which mention has been made in Section 4 (3) (b) of the Act, which is distinguishable from recognition of an educational institution which aspect of the matter has been dealt by Section 4(3) (c) of the Act. In this connection, the learned counsel also refers to Sections 5 and 6 of the Act and contends that these sections would show that the act of recognition is different from permission to establish a school. It is further urged that the disqualifications attached to non-recognition, of which mention has been made in Section 6, has no application as the school is affiliated to the Central Board of Secondary Education which is not one of the institutions mentioned in Clause (a), nor is the school receiving any aid. As to the bye-law referred by Shri Jena, Shri Gajendra submits that the aforesaid bye-law does not speak only about recognition but permits affiliation if certificate is granted by the State Government to the effect that it has no objection to the affiliation of the school with the Central Board of Secondary Education. Shri Gajendra then refers to Annexure-A/3 (to O.J.C. No. 4119/88), which is a communication of the Education and Youth Services Department of the Government dated June 10, 1984 addressed to the Secretary of the school stating that the Government has no objection for affiliation of the school with the Central Board of Secondary Education. It is finally urged by Shri Gajendra that recognition of the school was not renewed by the Board of Secondary Education after January 24, 1987 as would appear from Annexure A/6 (to O.J.C. No 4119/88).
9. In support of his case Shri Jena has, however, further relied on the constitution of the managing committee of the school as per the provisions of the Act read with the concerned Rules and draws our attention in this connection to the judgment of this Court in O.J.C. No. 1788 of 1987 rendered on March 31, 1988. He also refers to paragraph 13.2 of the aforesaid bye-laws in which it is stated that in case the State/Union Territory has enacted an Education Act, the managing committee of a school will be constituted as per the Act. In this connection, Shri Jena also relies on Section 7 of the Act, according to which every private educational institution shall have a managing committee constitutied in accordance with the rules made in that behalf. It is urged that the requirement of having a managing committee constituted in accordance with rules applies to every educational institution, no matter whether it is recognised or not. This argument is repelled by Shri Gajendra by stating that the managing committee of the school has not been constituted in accordance with the Act and the Rules, but the same is in terms of the memorandum of association governing the school. In this connection, it is also contended that the aforesaid O.J.C. had, in fact, been dismissed by this Court and the constitution of the managing committee as per the direction of this Court was only ad hoc in nature.
10. The materials on record do not permit us to hold for definite that the school in question has to be taken to be a recognised institution inasmuch as the communications in Annexures-11 and A/1 are not clinching because of the facts noted above, and because the constitution of the managing committee in accordance with the rules made in that behalf is also not decisive as that provision applies to every private educational institution which may not be a recognised institution in view of the definition of this expression in Section 3 (j) of the Act. But then, this is not enough to reject the petitions inasmuch as the prayer of the petitioners to reinstate them in service can be allowed on another ground- the same being violation of the principles of natural justice while terminating their services – which aspect of the matter has been covered by a recent decision of this Court in Basanti Mohanty v. State of Orissa, 71(1991) C.L.T. 127. In that case it was held that a private educational institution would be amenable to the writ jurisdiction of this Court, and, if the service of a teacher of such a school is terminated violating the principles of natural justice, it would be open to this Court to order for his reinstatement. (It may be stated that a Special Leave Petition against this Court’s judgment in the aforesaid case has since been reportedly rejected by the Hon’ble Supreme Court).
11. Shri Gajendra, however, contends that the conclusion arrived at in Basanti(supra) that a private educational institution is amenable to the writ jurisdiction of this Court needs a fresh look in view of the recent decision of the Apex Court in Chandra Mohand Khanna v. National Council of Education Research and Training,(1992-I-LLJ-331) in which it was held that the respondent-institution was not amenable to the writ jurisdiction of the High Court because of the fact that the same cannot be regarded as an instrumentality or other authority of the State within the meaning of Article 12 of the Constitution. Shri Gajendra contends that as the respondent- society in the aforesaid case had been registered under the Societies Registration Act and as by going through the various earlier decisions of the Court it was held that the society was not a ‘State’ under Article 12, the objection relating to the maintainability of the writ application has to be upheld as the school is also registered under the Societies Registration Act. As to this decision, we would like to state that even if it be conceded that the school in question is not a ‘State’ within the meaning of Article 12 of the Constitution , that would not clinch the matter in view of what has been held in S. M. V. S.J.M.S. Trust v. V.R. Rudani, (1989-II-LLJ-324) inasmuch as it was pointed out in paragraph 20 of that judgment that the term ‘authority’ used in Article 226 must receive a liberal meaning unlike this term in Artilce 12, because of which it was opined that the words ‘any person or authority’ used in Article 226 are not to be confined only to statutory authorities or instrumentalities of the State. In Basanti’s case(supra), reference was made to another decison of this Court in Antaryami Rath v. State of Orissa, (1992-II-LLJ-37) That decision dealt with the question as to whether private educational institutions are amenable to the writ jurisdiction of this Court. By relying on Rudani’s case (supra) it was held in paragraph 7 of Antaryami that private educational institutions would be amenable to the writ jurisdiction of this Court on the ground that they perform public duty. We are of the view that the cases at hand attract the ratio of Antaryami Rath and Basanti’s case(supra) rather than that of Chandra Mohan (supra), and we would, therefore, hold that the school at hand is amenable to the writ jurisdiction of this Court.
12. Now, let us see whether there was violation of the principles of natural justice while terminating the services of the petitioners. On this aspect of the matter Shri Jena submits that as the petitioners had informed the Secretary of the School that they were no longer agents of the Insurance Company and had dissociated themselves from the agency, the explanations submitted fulfilled the requirement of the notice served on the petitioners asking them to dissociate themselves from the agency, and as such, the termination of their services on the ground of doing agency work was not justified, and, if the managing committee did not feel satisfied with the explanations submitted and wanted some further clarification from the petitioners, they ought to have been given an opportunity to do so, failure of which caused violation of the priciples of natural justice. Shri Gajendra, however, submits that as the petitioners had not filed any dissociation letter having been issued by the Insurance Company (Peerless General Finance & Investment Company Limited ) as had been done by another teacher of the school Smt. Chhai Das, as would appear from Annexure-A/3 (to O.J.C. 4119/88), the managing committee did not feel satisfied with the explanations submitted by the petitioners speaking about their dissociation with the agency work. We have noted in this connection that by Office Memo No. 1844 dated October 10, 1987, as at Annexure-A/8 (of O.J.C. 4119/88), the two petitioners were informed that they had not given the dissociation letter from the Insurance Company and were asked to comply with this instruction by October 19, 1987, failing which appropriate action would be taken as deemed fit. The two petitioners stated in their replies dated October 20, 1987 and October 18, 1987, as at Annexure-5 in O.J.C 4119/88 and Annexure-6 in O.J.C. 424/89, that their agency had long expired and that they had got themselves dissociated from the agency work. As the petitioners were not, however, made known that their statements in their aforesaid replies relating to their dissociation from the Insurance work were not sufficient to satisfy the mind of the managing committee, for which purpose it needed a letter of the Insurance Company itself, we are of the view that natural justice did require giving of further opportunity to the petitioners to satisfy the mind of the managing committee regarding the statement made by them in their explanations relating to their dissociation from the Insurance work. As this was not done,we would hold that the termination orders were in violation of the priciples of natural justice. In this context, we would also mention about the submission of Shri Gajendra that if the petitioners would submit even now dissociation letters issued by the Insurance Company in question, the managing committee would have no objection to reinstate them as it has no malice against them, as would appear from the reinstatement of the aforesaid Smt. Chhabi Das to the post of Assistant Teacher following filing of Annexure A/3 by her.
13. In normal course, we would have set aside the orders of termination on the ground of violation of the principles of natural justice, but in view of the aforesaid submission of Shri Gajendra and the action of the managing committee in having reinstated Smt. Chhabi Das on her filing Annexure-A/3, we are of the view that ends of justice and demand of law would be better met if the two petitioners are called upon even now to file official letters confirming their dissociation from the agency work from the years about which they had mentioned in their explanations. On this being done, the petitioners shall be reinstated in service which shall be deemed to have taken place on October 26, 1987. Arrear pay shall also be made available to the petitioners.
14. The petitions are disposed of with the aforesaid observation and direction.
15. Before parting, we may deal with some technical points raised by Shri Gajendra. The first is that the approach by the petitioners to this Court to seek implementation of the order of opp. party No. 5 (Director of Secondary Education) is not justified inasmuch as this Court ought not to be converted into an executing Court; more so, as Section 7-A of the Act has laid down the consequences of failure by the managing committee to perform any of the duties imposed by or under the Act or to give effect to the order or direction issued by the Tribunal under Section 24-A. Without deciding whether the provision contained in Section 7-A is adequate, we would observe that as ultimately we are not directing the opposite parties to implement the order of opposite party, this contention has lost its relevance in so far as the cases at hand are concerned.
16. Shri Gajendra has something to say about impleading of the managing committee of the school as opp. pary No. 1 in these proceedings through its Secretary Duryodhan Rout. It is contended by the learned counsel that Duryodhan was not the lawful Secretary of the school and as such he could not have represented the managing committee of the school. This contention has no cutting edge inasmuch as the managing committee did appear in the cases, inter alia, through Shri Gajendra and so, whether the managing committee could have been impleaded as a party through Duryodhan has no significance.
17. Shri Gajendra has also contended that we should not entertain these petitions as one of the petitioners has preferred an appeal before the Central Board of Secondary Education, which is pending. We have not felt inclined to accept this submission inasmuch as taking recourse to an alternative remedy is not a bar in all cases to invoke the writ jurisdiction of this Court, as held in K.S. Shivaji & Co. v. Joint Commercial Tax Officer.(A.I.R) 1967 Mds.135 and Bidyut Prakash Raha v. I.T.O., (A.I.R.) 1970 Assam & Nagaland.125.
18. We would also state that though in the applications as filed there was no specific prayer seeking any direction to quash the orders of termination, we have not deemed this as a sufficient cause for not issuing appropriate direction or order, as there is a prayer ‘to pass any other order or orders as this Court may deem fit and proper’. It is a well settled position in law that Courts have very wide discretion in the matter of framing writs to suit the exigencies of particular cases and an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for, as stated in Charanjit Lal v. Union of India, (A.I.R.) 1951 S.C 41. In Satyanarain v. District Engineer, (A.I.R.) 1962 S.C. 1161, appropriate relief was granted due to changed circumstances and because of the prayer for grant of any other relief in the petition. Reference may also be made to State of Haryana v. Haryana Co-operative Transport Ltd.,(A.I.R) 1977 S.C.237, in which the mere circumstance of the petitioner not asking for issue of a writ of quo warranto in so many words was not regarded as sufficient not to entertain that question as facts necessary for challenging the appointment in question had been clearly stated in the petition. It was stated in this regard that the petitioner had invoked the Court to issue such other suitable writ as the Court may deem fit and proper. The view taken in B.R. Ramabhadraiah v. Secretary, F & A. Department,(1981-II-LLJ-263) was that relief should be suitably moulded and it should not be denied on purely technical and narrow procedural grounds.
B.N. Dash, J.
I agree.