JUDGMENT
1. The appellant herein, who is the petitioner in W.P. No. 19911/94, has filed this appeal assailing the order of the learned single Judge dated 31-3-1995. Convenience warrants reference of the parties as per their array in the writ petition.
2. The petitioner filed the writ petition seeking a writ of mandamus declaring the action of respondents 2 and 3 in instructing respondent No. 4 to replace the petitioner in the office of the Manager of Sri Sarada Nilayam High School Committee and the consequential action of respondet No. 4 in seeking approval of his appointment as Correspondent and Secretary-cum-Manager of Sri Sarada Nilayam High School Committee and the action of respondents 2 and .3 in accepting respondent No. 4 as Manager, as illegal and void as opposed to the principles of natural justice and contrary to the provisions contained in Section 24 of the A. P. Education Act, 1982 and consequently to direct the respondents to refrain from in any way interfering with the petitioner to continue to function as Manager of Sri Sarada Nilayam High School Committee, Cuddapah.
3. The facts in a nutshell are that the petitioner became Secretary-cum-Treasurer on 27-10-1966 consequent upon the demise of his father who happened to be the founder of Sri Sarada Nilayam Middle School Committee. The change of the Correspondentship of the said Committee was approved in his favour by the District Educational Officer on 14-12-1966. Thereafter respondent No. 4 has became the President of the Committee. As the matter stood thus, the Regional Joint Director, respondent No. 2, has issued proceedings dated 29-10-1993 intimating that the Superintendent of his office would inspect the institution on 2-11-1993 regarding the deposits of provident fund of the teachers in the school, in view of the representation made by the teachers on 27-10-1993. Thereupon the petitioner requested the authorities to furnish
a copy of the representation of the teachers by his letter dated 31-10-1993 and on 4-11-1993 he requested further time for production of the records. Thereafter respondent No. 3 issued proceedings dated 3-1-1994 requiring the petitioner to explain the reasons for not crediting-the provident fund amounts into the credit of the teachers and to submit his explanation within three days. On 14-4-1994 respondent No. 4 was requested by the third respondent to replace the petitioner in terms of Section 24(2)(4) of the A. P. Education Act, 1982 (for short ‘the Act’) for nominating other person who is qualified to hold the post of Correspondent. This notice was issued by the third respondent to respondent No. 4 in view of certain proceedings purported to have been issued by respondents I and 2 on 16-3-1994 and 7-4-1994 respectively.
4. Mr. M.R.K. Chowdary, learned counsel for the petitioner, contends that no opportunity was given to the petitioner before the competent authority found him that he defalcated the amounts alleged to have been deposited by the teachers towards their provident fund nor any notice was issued to him calling his explanation. Further, no show cause notice is given for taking action on the ground that the petitioner neglected to produce the relevant records before respondent No. 3 and the order of the first respondent dated 16-3-1994 replacing the petitioner and appointing another person is against to the principles of natural justice and in violation of the provisions of Section 24(3)(b) of the Act. Therefore the consequential order issued replacing the petitioner is bad in law and liable to be set aside.
5. Mr. Surya Prakash Rao, learned counsel appearing for respondent No. 4, on the other hand, contended that at the directions of respondents 2 and 3 the entire Managing Committee was replaced and by the process of election, the new body was elected, which resulted in nominating respondent No. 4 as the Manager of the School. Therefore, the petitioner was replaced and respondent No. 4 was appointed and his appointment was approved by the competent authority. It is his further contention that after issuance of the
proceedings dated 16-3-1994, number of notices were sent to the petitioner but he has never appeared nor filed any explanation and that the allegation against the petitioner is that he misappropriated an amount of Rs. 92,000.00 which was deposited by the teachers of the institution towards their provident fund and other amount. Therefore replacement of the petitioner is quite in accordance with the provisions of the Act. Further, it is contended that the provisions of Section 24(3)(b) does not contemplate issuance of any notice before issuing orders. Hence the learned single Judge has considered all the contentions now raised and there is no merit in the writ appeal and the same is liable to be dismissed.
6. In view of the rival contentions put forth, the point that arises for consideration is whether the competent authority can direct the Management to replace the Manager without giving any opportunity to him on the ground that the allegations made against him are proved.
7. To appreciate the above contentions, it is relevant to extract Section 24 of the Act, which is as follows:
“24. Appointment and removal of manager of private institution:– (1) The management of every private institution shall be constituted in such manner and shall consist of such number of members as may be prescribed:
Provided that the board of trustees, or Governing Body of Wakf Board by whatever name called, constituted or appointed under any other law for the time being in force relating to the charitable and religious institutions and endowments and wakfs, shall be deemed to be a management constituted under this sub-section.
Provided further that the constitution of the management under this sub-section shall apply to a minority educational institution, insofar as it is not repugnant to clause (1) of Article 30 of the Constitution of India.
(2) The management shall, for the purposes of this Act, nominate a person to
manage the affairs of the institution, whether called by the name of secretary, correspondent or by any other name, and intimate such nomination within thirty days thereof to the competent authority.
(3) (a) Where the competent authority is satisfied that the management is responsible for the lapses or irregularities of the institution, the competent authority may, after giving to such management an opportunity to make representation and for the reasons to be recorded in writing, suspend the management and appoint a special officer till the reconstitution of the management:
Provided that in relation to a private institution, under the management of a charitable or religious institution, charitable or religious endowment and a wakf, the competent authority shall be the Government or an authority or officer authorised by the Government in this behalf.
Provided further that no management of minority educational institution shall be suspended under this sub-section save for mismanagement.
(b) Where the competent authority is satisfied that the manager alone is responsible for the lapses or irregularities of the institution, action shall be taken against him by the management, as recommended by the competent authority.
(4) The competent authority may, for reasons to be recorded in writing, declare a person to be unfit to be the manager of a private institution after giving to such person an opportunity of making his representation against such declaration and under intimation to the management and on such declaration, the person aforesaid shall cease to be the manager of the private institution and the management of such institution shall nominate another person as a manager in his place in accordance with the provisions of subsection (2).
Provided that no manager of a minority educational institution shall be declared to be so unfit under this sub-section save for mismanagement.
(5) x x x x (omitted by Act 27 of 1987).
(6) For the removal of doubts, it is hereby declared that any failure or wilful negligence on the part of a management to take action against the manager as required under clause (b) of sub-section (3) or to nominate another person as manager under sub-section (4) shall constitute an act of mismanagement and action shall be taken against the private institution under this Act accordingly.”
8. By reading the above provisions, it is clear that every private institution constituted shall have a management consisting of members as may be prescribed. In cases of wakf board and other religious institutions under the Endowments Act, the said institutions and wakf boards shall be deemed as management constituted. However, to the extent of minority educational institutions, the management under this section will also apply to them insofar as it is not repugnant to clause (1) of Article 30 of the Constitution of India. Sub-section (2) empowers the management to nominate a person to manage the affairs of the institution, whether called by the name of Secretary, Correspondent or by any other name and the same has to be intimated to the competent authority within thirty days. Clause (a) of sub-section (3) provides that the competent authority is empowered to take action against the management when it is satisfied that the management is responsible for lapses or irregularities of the institution, after giving an opportunity to make representation and after recording reasons in writing, it can suspend the management and appoint a special officer till the reconstitution of the management. However, in relation to a private institution, under the management of a charitable or religious institution, charitable or religious endowment and wakf, the competent authority shall be the Government or an authority or officer authorised by the Government in this behalf, and that the minority institution cannot be suspended except for mismanagement. As per clause (b) of subsection (3) if the competent authority is satisfied that the manager alone is responsible for lapses or irregularities of the institution, action shall be taken against him by the
management, as recommended by the competent authority. Sub-section (4) empowers the competent authority to declare a manager as unfit after giving an opportunity to make a representation and from the date of such declaration, the manager will cease to be manager of the private institution and management shall nominate another person in that place in accordance with the provisions of sub-section (2). Sub-section (6) provides that failure on the part of the management to take action against the manager, constitutes an act of mismanagement and action shall be taken against the private institution accordingly under this Act.
9. It is evident that if the competent authority is satisfied that there are lapses or irregularities on the part of the management of the institution, it can take action against the management after giving opportunity to make representation, and if it comes to a conclusion that the manager alone is responsible for the lapses or irregularities of the institution, action shall be taken against him by the management, as recommended by the competent authority. In this case the competent authority after receiving the representations considered the case of the institution and directed replacement of the correspondent by proceedings dated 16-3-1994. It is also to be noticed that as per sub-section (6) of Section 24 of the Act, it is the bounden duty of the management to take action, as recommended by the competent authority, under clause (b) of sub-section (3) and failure to do so amounts to mismanagement and action is liable to be taken against the institution. Hence the recommendation made by the competent authority to management for taking action against the correspondent is binding on the institution. By reading clause (b) of sub-section (3) it is clear that the competent authority can recommend any action, since no action is specifically provided for. Therefore, it is clear that on a consideration of the material on record and the evidence the competent authority comes to a conclusion that the manager is guilty of lapses, it can recommend management of the institution to impose penalty on the manager including replacement or in a given case direct recovery
of the amount or warn the manager basing on the facts and circumstances. Now the question is whether the competent authority before coming to a conclusion that the manager of an institution is guilty and directing the management to take action against the manager, notice has to be given to the manager or not. It has to be noticed that as per clause (a) of sub-section (3) of Section 24 of the Act, the competent authority has to give an opportunity of making representation to the management before coming to a conclusion that the management is responsible for the lapses or irregularities of the institution. Similarly an opportunity of making representation is contemplated as per subsection (4) of Section 24 of the Act before the competent authority declares that the manager is unfit to be the manager of the institution. Whereas clause (b) of sub-section (3) of Section 24 of the Act is silent with regard to giving an opportunity of making representation by the manager before the competent authority recommends action against the manager of the institution. Therefore the recommendation made by the competent authority depends upon the nature of the gravity of the allegations or the penalty. In a case of trivial nature or where the competent authority did not indicate any penalty to be imposed but only directs conducting enquiry and take action according to law, there is no necessity to give notice or opportunity of making representation. In that case, the management of the institution itself should give notice to the manager before taking any action as recommended by the competent authority. But in the present case where there is recommendation to replace the correspondent, the rights of the correspondent are affected since the correspondent is losing his office to which he was appointed/selected, as per sub-section (2) of Section 24 of the Act. Therefore, as per the principles of natural justice, it is required to issue notice.
10. It is well settled principle of law that when the principles of natural justice are not eschewed specifically by the statute, it is deemed and implied that the principles of natural justice are applicable and therefore there is a bounden duty to give an opportunity to the affected party. That means
where the provisions of a statute is silent regarding providing opportunity before imposition of penalty, it is deemed that providing opportunity is implied in the statute itself by implication of principles of natural justice. In the present case no such opportunity was given to the petitioner before issuing the proceedings dated 16-3-1994 by the first respondent to the correspondent of the institution. Hence it is in violation of the principles of natural justice.
11. Mr. Surya Prakash Rao, learned counsel appearing for respondent No. 4, firstly contended that replacement of the petitioner was done at the instance of the letter issued by the first-respondent on 16-3-1994. On the other hand when the competent authority directed the management to replace the correspondent, the election so held to the entire body of the management and new correspondent i.e., respondent No. 4 was elected according to the bye-laws of the society and his nomination was approved by the competent authority. Therefore it cannot be said that the petitioner was replaced at the recommendation of the competent authority. We are unable to accede to this contention for the reason that in the proceedings issued by the Regional Joint Director on 7-4-1994 it is stated that the management has complied with the recommendation made by the competent authority dated 16-3-1994. That means the replacement of the petitioner was done at the instance of the competent authority. Further the members elected the Secretary as per the bye-laws of the society. But the correspondent or the Secretary has to be nominated in accordance with Section 24(2) of the Act. Merely a person is elected as secretary or correspondent, he cannot become the manager or correspondent under Section 24(2) of the Act unless such person is nominated by the management and approved by the competent authority.
Therefore, merely because the elections are held to the Managing Committee and R. 4 is elected as Secretary, it does not automatically mean that R. 4 is the manager or correspondent as contemplated under Section 24(2) of the Act. Further, no other person can be
nominated unless the person who is holding the office is replaced.
12. It is secondly contended that after the competent authority issued orders on 16-3-1994 directing the management to replace the petitioner, number of notices were issued to the petitioner, for which he has not responded nor offered any explanation. So, it cannot be said that no opportunity was given to the petitioner as contemplated under the Act. It has to be seen that by proceedings dated 16-3-1994 the management was directed to replace the petitioner. Hence issuance of notice-subsequent to 16-3-1994 is immaterial as the management has no option than to replace the petitioner, otherwise it amounts to mismanagement on the part of the management as per the provisions of Section 24(6) of the Act. Therefore the subsequent notices issued to the petitioner after the proceedings dated 16-3-1994 cannot be said to be proper opportunity. Hence, for this reason, we cannot accede to the above contention.
13. It is lastly contended that there are allegations against the petitioner that he defalcated an amount of Rs. 92,000.00 and other amounts of the institution and since respondent No. 4 is nominated as the correspondent of the institution, at this stage if the appeal is allowed, again the petitioner has to be reinstated, which would cause great loss to the institution. It is no doubt true that there is an allegation against the petitioner that he misappropriated an amount of Rs. 92,000.00 and other amounts of the institution, but the same has to be enquired into after giving an opportunity to the petitioner and without notice to any person, no action can be initiated; lest it amounts to violation of principles of natural justice. If the bye-laws provide that a person elected as a secretary or correspondent shall only be nominated as correspondent under Section 24(2) of the Act by the management, then the management has to bring it to the notice of the competent authority. But in this case this is not done. On the other hand the report of the Regional Joint Director specifically says that the management has complied with the directions issued by the Director of School Education
on 16-3-1994. For these reasons, we find no force in this contention of the learned counsel.
14. In the result and for the foregoing discussion, the writ appeal is allowed and the impugned order of the learned single Judge is set aside. It is made clear that if the petitioner is reinstated as correspondent, he shall not deal with the financial matters of the institution till the enquiry is completed and exonerated from the allegations. No costs.
15. Appeal allowed.