IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.16498 of 2009 and M.P.NOs.1 and 2 OF 2009 N.Balasubramanian .. Petitioner Vs. 1.Director of School Education-cum- Appellate Authority (Private Schools), Directorate of School Education, Govt. of Puducherry, Puducherry-605 005. 2.Principal, Amalorpavam Higher Secondary School, Vanarapet, Puducherry-605 001. 3.G.Ragesh Chandra, (Former Director of School Education) Additional Secretary (Revenue)- cum-Collector, Revenue Complex, Govt. of Puducherry, Saram, Puducherry-605 013. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records connected with the order dated 05.11.2008 passed by the first respondent in proceedings No.2901/DSE/HSW/AC/A1/2008 and quash the same and to direct the second respondent school to allow the petitiner to resume duty immediately and to pay him all the attendant service benefits from the month of August 2007 till the date of resumption of duty. For Petitioner : Mr.K.V.Subramanian, SC for Mr.M.A.Abdul Wahaf For Respondent : Mrs. Mala, Spl.G.P.(Pondy) Mr.T.P.Manoharan for R2 - - - - ORDER
The petitioner has filed a writ petition seeking to challenge the order, dated 5.11.2008 passed by the first respondent and after setting aside the same, for a consequential direction to the second respondent School to permit the petitioner to resume duty and to pay him all attendant benefits from August, 2007.
2.Heard the arguments of Mr.K.V.Subramanian, learned Senior Counsel leading for Mr.M.A.Abdul Wahaf, counsel appearing for the petitioner and Ms.Mala, learned Special Government Pleader (Puducherry) and Mr.T.P.Manoharan, learned counsel for second respondent School.
3.The petitioner was appointed by the second respondent School as Secondary Grade Teacher by an order, dated 1.7.2005. Subsequently, on 19.6.2007, he was given a show cause-cum-charge memo. The petitioner was given several instances of his violating the Code of Conduct prescribed for teachers. Therefore, he was asked to show cause as to why disciplinary action should not be taken against him. The petitioner gave his explanation, dated 25.6.2007 and also by letter, dated 10.7.2007, he asked the School to furnish time table. The petitioner also stated that he was threatened by the school to quit the staff association and that was impossible for him to do. Subsequently, after several correspondence, the petitioner gave several complaints against the School management and issued a legal notice, dated 1.12.2007. The petitioner also sent an appeal petition to the first respondent, dated 28.1.2008 complaining about the management’s action in removing him from service and sought for a direction to the school to restore him in service.
4.In response to the legal notice issued by the petitioner, the second respondent gave a reply notice, dated 26.2.2008 through their counsel denying all allegations. The petitioner further sent a reminder towards his appeal, which was filed under Section 21(1)(b) of the Puducherry School Education Act, 1987. The school gave a reply, dated 14.5.2008, justifying the action taken by them against the petitioner. They also stated that the school is a minority school entitling protection under Article 30(1) of the Constitution of India. The first respondent, by the impugned order, dated 5.11.2008, dismissed the appeal. In the appellate order, the first respondent stated that in the absence of any final order, the appellate authority has no power to go into the issue and it is only when a punishment order is given after completion of the enquiry, any order can be passed. Therefore, if at all the petitioner wanted any grievance to be attended to, it could be done only by filing an appropriate appeal under Section 21(1)(b) of the Puducherry School Education Act. He also stated that so far the petitioner had not attended the disciplinary proceedings and had not obtained any order and he was simply wasting the time of the appellate authority. It is this order the petitioner has come forward to challenge.
5.When the matter came up on 17.9.2009, this court directed private notices to be issued to the respondents. On notice from this court, the second respondent has filed a counter affidavit, dated 28.10.2009. In the counter affidavit, it was stated that the School has been conferred minority status by the National Commission for Minority Educational Institutions, by an order dated 1.7.2009 and they are eligible to have constitutional protection. Therefore, the provisions relating to the appeal will not apply. It was also stated that in W.P.No.19445 of 1998, the Society of the Sisters of Charity Avila Primary School represented by its Manager, has got an interim injunction against the enforcement of several provisions of the Private Schools Act including Section 21 of the Act. Further, on merit they also stated that the petitioner was kept under probation and when he was misbehaving, there is no necessity for them to retain him in service with violation of several Codes of Conduct.
6.The first question is whether the second respondent school is a “minority institution” entitled for protection under Article 30(1) of the Constitution. Though it was contended by Mr.K.V.Subramanian, learned Senior Counsel appearing for the petitioner that there is no declaration that it was a minority institution, the contesting respondents have produced an order passed by the National Commission for Minority Educational Institutions constituted by the Government of India, dated 1.7.2009, stating that the school is a “minority institution” coming within Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004.
7.The petitioner relied upon the provisions of Puducherry Schools Education Act, 1987, which applies to private schools. The provisions of the Act are more or less in parimeteria with the provisions of the Tamil Nadu Recognized (Private Schools) Regulation Act, 1973. Sections 21 and 22 of the Act provide for an appeal against dismissal, removal and reduction in rank and a further appeal to the Tribunal against the order of the appellate authority. Though it was contended that the appeal provisions are not available in respect of minority educational institutions, a reading of Sections 20 and 21 do not make any distinction in respect of minority schools. They were not granted any exemption from entertaining any appeal against the order of dismissal, removal or reduction in rank or whose appointment is otherwise terminated.
8.Mr.T.P.Manoharan, learned counsel for the second respondent pressed into service a judgment of the Supreme Court in N. Ammad v. Emjay High School reported in (1998) 6 SCC 674 and placed reliance upon the passage found in paragraph 15, which is as follows:
“15. A Constitution Bench of seven Judges of this Court in Kerala Education Bill, 1957, Re1 has examined the constitutional validity of the Bill which was the precursor to the Act when the President of India had sought the advice of the Supreme Court under Article 143 of the Constitution. One of the propositions laid down by the said Constitution Bench in the said decision is this: the right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution.”
It is not clear as to how this passage will help the case of the second respondent school.
9.On the contrary, the Supreme Court while considering the provisions for teachers who file an appeal against the punishment order given even by the minority management, had held that such appeal provisions are regulatory and will not affect the right of management in administering the school. The judgment relied on by the counsel for management was rendered in that context and not dealt with the scope of any appeal provisions.
10.However, the following judgments of the Supreme Court help the case of the petitioner.
a)All Saints High School v. Govt. of A.P. reported in (1980) 2 SCC 478
b)Y. Theclamma v. Union of India reported in (1987) 2 SCC 516;
c)Christian Medical College Hospital Employees’ Union v. C.M.C. Vellore Assn. reported in (1987) 4 SCC 691;
d)All Bihar Christian Schools’ Assn. v. State of Bihar reported in (1988) 1 SCC 206;
e)Frank Anthony Public School Employees’ Assn. v. Union of India, reported in (1986) 4 SCC 707.
11.These issues once again were considered by a larger bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481. In answering the various queries including the provisions for right of appeal in respect of minority institutions in paragraph 161 in respect of question No.5-C, the Supreme Court held that for addressing the grievance of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved. In their opinion, an appropriate Tribunal can also be constituted presided by a District Judge to go into such complaints of unjust termination. Therefore, the argument that no such appeal will lie either under Section 21 or Section 22 of Pondicherry School Educational Act as contended by the respondents will have to be rejected. It will not be out of place to refer to the decision in A.Balavendran Vs. The Joint Director of School Education and others reported in 2010 (1) C.W.C. 343, wherein a division bench had analysed the T.N. Act vis a vis the T.M.A.Pai’s case.
12.Though Mr.T.P.Manoharan, learned counsel contended that at every stage, the proceedings of the School cannot be interdicted by the authority constituted under the Act, yet he stated that in case of major penalty, Rule 54(2) of the Pondicherry School Education Rules, 1996 read with Section 21 of the Pondicherry School Education Act, 1987 provides for an appeal. This fact has also been admitted in the counter affidavit in paragraph 9, which may be extracted herebelow:
“9….Only against the Final Decision of the Managing Committee of the school, imposing penalty on the delinquent teacher, a remedy by way of an Appeal under Rule.54(2) of the Rules 1996 is provided to the 1st Respondent….”
13.But, in the present case, the question turns for consideration is whether the order of the Director of School Education being the appellate authority suffers from any infirmity. The authority in the impugned order had held that only after punishment is imposed, an appeal will lie merits acceptance in terms of Section 21(1)(a). But in respect of Section 21(1)(b), there is no requirement of any punishment and an appeal will lie where teachers’ pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage. In such a case, there is no necessity for any punishment and that section is a broader section. However, the Court haves interpreted the word otherwise terminated can cover the cases of involuntary resignation obtained from teachers. Therefore, the scope of such section cannot be curtailed for other purposes also.
14.While interpreting the identical provisions found under Section 20(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976, this Court in N.S.Manvizhi Vs. Government of Tamil Nadu and others in W.P.No.5796 of 1986, dated 9.9.1987 held that even for the denial of promotion contrary to rules, an appeal will lie by the affected teachers. But, in the present case, the definite stand of the school management before the authority as well as before this court was that the proceedings of enquiry could not be completed because of non cooperation by the petitioner.
15.This stand was also accepted by the authority in the impugned order. In paragraph 5 of the impugned order, it was stated as follows:
“5.In the absence of any such petition enclosing the orders issued by the school authorities, it is not clear whether he has cooperated with the disciplinary proceedings alleged to have been initiated by the school authorities. It is not clear, what is the punishment mooted out to him. In the failure of production of these vital records by the appellant, the Appellate Authority cannot take any further course of action in this cae and it can only be deemed that the appellant has failed to cooperate with the disciplinary proceedings and has abscond from attending the disciplinary enquiry, as stated by the Principal. If this presumption is correct, then it would go against the interest of the appellant. The allegation of the Principal is that the appellant has deserted his duties and is indulging in organizational activities to threaten the school authorities. The fundamental duty of the charged teacher is to attend the disciplinary proceedings and file appeal petition with the Appellate Authority on the Final Order issued by the Disciplinary Authority. It should be remembered by all that discipline is fundamentally important in management of any institution and especially an educational institution. If the activities of the appellant like demonstration with placards tied to his neck in front of the appellant Authority’s chamber is an example such discipline fundamental is missing in the appellant himself. This is evident from the fact that he has not so far attended the disciplinary proceedings, obtained any orders in this regard and filed proper petition….”
16.Even in the counter affidavit, dated 28.10.2009 filed before this court, the second respondent has averred as follows:
“9….However, as the Petitioner himself had abandoned the job on and from 31.08.2007 and went away, the School was not able to proceed with the Disciplinary Action initiated against him. However, he had suppressed all the above facts, made false and misleading allegations and claims, including that he was not permitted to sign the Attendance Register etc. and filed an Appeal before the 1st Respondent. Hence, the said Appeal is unmaintainable and clearly false, malafide, an after thought and untenable.”
Therefore, there is no illegality in the order passed by the first respondent appellate authority. But since the school management had framed definite charges , it is for the petitioner to participate in the enquiry.
17.Mr.K.V.Subramanian, learned Senior counsel for the petitioner stated that the petitioner has been prevented from reporting to work and he has not been paid salary and he is virtually in the streets. Therefore, in the light of the stand taken by both sides, while upholding the order of the first respondent, the following directions are given.
i)The second respondent school will give a definite consolidated charge sheet against the petitioner within 15 days’ from the date of receipt of copy of this order.
ii)While appointing an enquiry officer to conduct an enquiry, the petitioner if he so desires can give his written explanation within 15 days thereafter.
iii)In case of denial of charges, the school can proceed with its enquiry and complete the enquiry within three months from thereafter after affording all opportunities to the petitioner.
iv)Both sides shall cooperate in getting on with the enquiry and complete it within the time stipulated above.
v)Without going into the merits of the rival contentions i.e. prevention of reporting from duty as alleged by the petitioner or abandonment of employment as alleged by the second respondent, the second respondent school shall pay Rs.1,00,000/- (One lakhs only) to the petitioner towards subsistence allowance. It shall be paid along with the charge memo given to the petitioner.
vi)In case the petitioner succeeds, that shall be adjusted from the wages payable to him. But in case he loses, the amount cannot be recovered as if it is only in the nature of subsistence allowance since the matter has been pending from July, 2007.
vii)In case the petitioner is imposed with a penalty, he is entitled to have recourse to appeal provided under the P.S.E. Act.
18.In the light of the above, the writ petition is disposed of with the above directions. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk
To
1.Director of School Education-cum-
Appellate Authority (Private Schools),
Directorate of School Education,
Govt. of Puducherry,
Puducherry-605 005.
2.Principal,
Amalorpavam Higher Secondary School,
Vanarapet,
Puducherry 605 001