BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/10/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.10725 of 2006 and W.P.(MD)No.9362 of 2008 and M.P.(MD)Nos.1 of 2006 and 1 of 2008 The School Committee, Hindu Middle School, represented by its Secretary, Mrs.R.Lakshmi Prabha ... Petitioner in W.P.(MD)No.10725/2006 S.Rangaswami ... Petitioner in W.P.(MD)No.9362/2008 vs. 1.The Joint Director of Elementary Education, Directorate of Elementary Education, Chennai-600 006. 2.The Chief Educational Officer, Virudhunagar District, Virudhunagar. 3.The District Elementary Educational Officer, Collector Officer Complex, Virudhunagar-626 001. 4.Mr.S.Rangaswami 5.Educational Tribunal, Sub-Court, Srivilliputhur, Virudhunagar District. ... Respondents in W.P.(MD)No.10725/2006 1.Government of Tamil Nadu, Department of Elementary Education, rep. by its Secretary, Fort St. George, Chennai-600 009. 2.The Joint Director of Elementary Education, Directorate of Elementary Education, Chennai-600 006. 3.The District Elementary Education Officer, Virudhunagar, Collectors Office Complex, Virudhunagar-626 001. 4.Hindu Middle School, P.Kumaralingapuram, Valliyoor Post, Virudhuangar-626 005. ... Respondents in W.P.(MD)No.9362/2008 PRAYER in W.P.(MD)No.10725/2006 Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the second respondent to release the arrears of payments of the fourth respondent to the petitioner. PRAYER in W.P.(MD)No.9362/2008 Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the third respondent made in his proceedings Na.Ka.No.2559/A3/2008, dated 29.04.2008, quash the same, and direct respondents 1 to 4 to pay the petitioner's back wages from the date of suspension i.e., August 1974 and the petitioner's pension payable from the date of the petitioner's retirement i.e. August 1997 together with damages of Rs.10 lakhs for monetary loss and mental agony. W.P.(MD)No.10725/2006 !For Petitioner ... Mr.M.E.Ilango For Mr.M.Sheik Abdullah ^For Respondents 1to3&5 ... Mr.M.Govindan Special Government Pleader For Respondent No.4 ... Mr.S.Natarajan W.P.(MD)No.9362/2008 For Petitioner ... Mr.S.Natarajan For Respondents 1to3 ... Mr.M.Govindan Special Government Pleader For Respondent No.4 ... Mr.M.E.Ilango ******
:COMMON ORDER
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In W.P.(MD)No.10725 of 2006, the petitioner is the Management of a
School Committee. They have filed a Writ Petition seeking for a direction to
the State Government and its Subordinates to release the salary in respect of
payment due to the fourth respondent and to pass appropriate orders.
2. When the said Writ Petition came up for admission on 30.11.2006,
notice was directed to be served on the respondents. Subsequently, notice of
motion was ordered on 14.12.2006. The Writ Petition was directed to be posted
after the disposal of C.R.P.(NPD)(MD)No.193 of 2006. During the pendency of the
said Writ Petition, the fourth respondent, school teacher had filed another Writ
Petition being W.P.(MD)No.9362 of 2008. In that Writ Petition, he had challenged
the order of the District Elementary Educational Officer, Virudhunagar, dated
29.04.2008, wherein he had declined to entertain the request of the petitioner
for grant of wages for the period of non-employment and regularisation of his
services on the plea that the Writ Petition filed by the Management in
W.P(MD).No.10725 of 2006 was pending and it is only when the Management pays the
arrears of salary and sends proposal for regularisation, steps towards payment
of pension will be taken.
3. When that Writ Petition came up on 23.10.2008, this Court ordered
notice of motion to the respondents. Since both the Writ Petitions arose out of
the same transaction, they were directed to be heard together and a common order
is passed.
4. Heard the arguments of Mr.M.E.Ilango, learned counsel appearing
for the School Management and Mr.S.Natarajan, learned counsel appearing for the
school teacher and Mr.M.Govindan, learned Special Government Pleader appearing
for the official respondents.
5. The story of the petitioner-school teacher has a long history.
Initially, the teacher was working as a Headmaster of the Middle School. He was
placed under suspension in the month of August, 1974. Subsequently, he was
dismissed from service, by an order dated 01.11.1974. As against the said
dismissal, the teacher filed an appeal before the Chief Educational Officer. The
Chief Educational Officer also rejected his appeal. Thereafter, the teacher
filed a second appeal before the Educational Tribunal being C.M.A.No.14 of 1976.
It was allowed in favour of the school teacher and the matter was remitted back
to the Management for fresh enquiry. On such remand, the School Management
conducted enquiry and sought for approval from the District Elementary
Educational Officer.
6. Approval of his dismissal was granted. Aggrieved by the same, the
teacher filed a first appeal. The appellate authority dismissed the appeal. As
against the same, he filed a second appeal being C.M.A.No.1 of 1979 and that
appeal was transferred and re-numbered as C.M.A.No.47 of 1981. The said
C.M.A.No.47 of 1981 was dismissed by the Tribunal vide order dated 30.10.1981.
The teacher come before this Court by filing W.P.No.5555 of 1982. Once again, by
an order dated 28.02.1989, the matter was remanded for fresh disposal.
7. After a fresh enquiry, the Tribunal has passed the same order by
dismissing the appeal. Aggrieved over the same, the teacher filed a Writ
Petition being W.P.No.14584 of 1993. This Court allowed the said Writ Petition
by an order dated 27.07.2000 and remanded the case to the Tribunal. On such
remand, the Tribunal, by order dated 21.11.2001, allowed the appeal and held
that the charges levelled against the teacher were not properly proved and the
dismissal made by the Management was not valid. Hence, he was entitled for all
the consequential benefits.
8. Curiously, the Management did not challenge the said order. On
the contrary, the Chief Educational Officer, Virudhunagar filed
C.R.P.(NPD)(MD)No.193 of 2006, challenging the order passed by the Tribunal
dated 21.11.2001, granting declaration that the termination was illegal and that
he was entitled for all the consequential monetary benefits. The said Civil
Revision Petition came to be dismissed on 22.02.2007 by this Court. This Court
held that such a Civil Revision Petition filed under section 115 of the Code of
Civil Procedure is not maintainable, since the private school Tribunal has been
specially constituted under the Tamil Nadu Recognised Private Schools
(Regulation) Act. Therefore, no revision will lie. This Court also observed that
since the Management of the school did not file any appeal, the order became
final and all that, the Tribunal held that the teacher is entitled for monetary
benefits arising out of the declaration made by the Private School Tribunal.
9. It is surprising that the Chief Educational Officer should file a
Civil Revision Petition, when there was no provision for filing such Civil
Revision Petition. The jurisdiction of the civil Court is ousted by section 53
of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973. Under
Section 54 of the Act, any order made by any authority under the Act shall
subject only to appeal or revision, if any, provided under this Act, be final
and the same shall not be questioned in any other Court of law. Notwithstanding
the same, the Civil Revision Petition was entertained and the matter was kept
pending for more than one and half years by this Court.
10. Subsequent to the orders passed by the Tribunal, the teacher has
been continuously representing for payment of back wages. He had also moved the
Principal Bench in W.P.No.22559 of 2003. A learned Judge of this Court, by an
interim order dated 04.01.2005, directed the School Management to deposit the
entire back wages to the credit of C.M.A.No.47 of 1981 on the file of the
Educational Tribunal within four weeks. It is now stated by the counsel for the
teacher that pursuant to the direction, only Rs.3,00,000/- was deposited and
full arrears was not paid. Subsequently, by a communication dated 15.06.2007, a
show cause notice was issued to the School Management stating that the School
alone was responsible for payment of wages. If any contempt petition was filed,
the School Management alone will be held responsible. The School Management,
instead of implementing the Tribunal’s order, contended that they have already
filed a Writ Petition (i.e., W.P.(MD)No.10725 of 2006) seeking for release of
grant for making arrears of payment and that the Government alone is
responsible.
11. In the meanwhile, the claim for grant made by the Management was
returned by the department. Subsequently, on 29.08.2007, the District Elementary
Educational Officer, Virudhunagar informed the Management that if the order of
the Tribunal was not complied with, the recognition granted to the School will
be withdrawn. Thereafter, by an order dated 15.02.2008, a direct payment system
was also resumed. The extension of the post of the Secretary of the petitioner
School was also refused. The School Management, by a representation dated
29.01.2008, stated that so far they have been guided by the orders passed by the
appellate authorities and they will be obeyed by any decision granted by the
Court. On the basis of the said undertaking, the subsequent appointment made by
the School was approved on the condition that they will abide by the further
orders passed by the Court. The school teacher had filed an application for
payment out before the Tribunal and got the deposit of Rs.3,00,000/- released in
his favour.
12. Therefore, in the light of the rival pleadings, two questions
arise for consideration. The first question is with reference to the non-
employment of the teacher, the monetary liability arising out of the declaration
made by the Tribunal, whether it should be borne by the School Management or by
the State Government. The second question is that if the teacher is allowed to
retire during the pendency of the proceedings, whether the State Government is
bound to pay pensionary benefits and other terminal dues.
13. In order to decide the question of law for payment, one has to
ascertain the nature of relationship between the School Management and the
teacher. The question is no longer res integra. The Supreme Court vide judgment
in Andi Mukta S.M.V.S.S.J.M.S.Trust v. V.R.Rudan i reported in 1989 (2) SCC 691,
categorically held that in respect of Aided Private School, the relationship
between the teacher and the Management is that of the employer and employee and
in paragraph No.10 of the said judgment, it was stated as follows:
“10. Having heard the counsel for both parties, we are left with an
impression that the appellants are really trying to side-track the issue and
needlessly delaying the legitimate payments due to the respondents. The question
whether the State is liable to recompense the appellants in respect of the
amount payable to the respondents was not considered by the High Court and
indeed could not have been examined since the State was not a party to the
proceedings. However, by the persuasive powers of the counsel in this Court, the
State has been impleaded as a party in these appeals. Perhaps, this Court wanted
to find out the reaction of the State on the appellants’ assertion for
reimbursement. We heard counsel for the State. He disputes the appellants’
claim. In fact, he challenges the claim on a number of grounds. He says that the
State is under no obligation to pay the appellants as against the sum due to the
respondents. We do not think that we need rule today on this controversy. It is
indeed wholly outside the scope of these appeals. We are only concerned with the
liability of the management of the college towards the employees. Under the
relationship of master and servant, the management is primarily responsible to
pay salary and other benefits to the employees. The management cannot say that
unless and until the State compensates, it will not make full payment to the
staff. we cannot accept such a contention.”
14. Rule 17 of the Tamil Nadu Recognised Private Schools
(Regulation) Rules, 1974, deals with the suspension of a school teacher and it
also regulates the liability for payment during the period of suspension. With
reference to the dismissal of a teacher, Rule 17(3)(iii) deals with the same and
it reads as follows:
“Where the appellate authority has decided against the imposition of the
penalty of dismissal or removal from service or placement under suspension of a
Teacher or other person employed in a private school by the management of that
school, the management of every private school, not being a minority school,
shall implement the order of the appellate authority and reinstate the Teachers
or other persons with all back wages for the period of dismissal or suspension
or removal within one month from the date of order of the appellate authority,
failing which, apart from resumption of the post, recognition shall be
withdrawn.”
15. In the present case, the termination of the teacher was held to
be invalid by the Tribunal. Since the Management did not file any appeal, the
order of the Private School Tribunal had become final, as observed by this Court
in the Civil Revision Petition. Therefore, the liability for making payment of
salary from the date of dismissal, till the date of reinstatement or as in the
present case, till the date of retirement solely vests with the School
Management and not with the State Government.
16. Though Mr.M.E.Ilango, learned counsel placed reliance on a
judgment of this Court in Secretary, Ulagappar Higher Secondary School, etc. v.
Joint Director of School Education & another reported in 1997(3) LW 359, in that
case, there is no reference to rule 17(3)(iii), wherein the liability has only
fastened on the Management. Secondly, the reasoning given by the learned Judge
was certainly not approved by other judges of the Division Bench of this Court.
Therefore, the first Writ Petition filed by the School Management in
W.P.(MD)No.10725 of 2006, seeking for a direction to the State Government to
release the grant in favour of the fourth respondent is clearly against the
provisions of law. Hence, there is no case made out for entertaining the Writ
Petition and hence, the same stands dismissed.
17. Insofar as the second Writ Petition filed by the school teacher
viz., W.P.(MD)No.9362 of 2008 is concerned, relating to payment of back wages, a
direction will issue to the fourth respondent School to pay the back wages,
after giving credit to the amounts already paid. With reference to the payment
of terminal benefits including pension, the order holding that the petitioner’s
dismissal was not justified had become final and the attempt by the State to
revise the same curiously, by a Civil Revision Petition was also repelled by the
Court. Further, the State had undertaken the liability to pay pension to all the
Aided School staff. Hence, it is for the State Government to pay the terminal
benefits including pension.
18. Therefore, the fourth respondent is directed to forward
appropriate pension proposals, within one month from the date of receipt of a
copy of this order, as if the petitioner has continued service till the date of
superannuation. On such proposal being received by the department, they should
take earnest steps to get the pension sanctioned by forwarding it to the
appropriate quarters and that exercise should be undertaken within three months
from the date of receipt of the pension proposals from the School Management.
Hence, W.P.(MD)No.9362 of 2008 is disposed of with the above direction. The
prayer made by the school teacher for grant of damages of Rs.10 lakhs cannot be
considered, in the facts and circumstance of the case and also due to pendency
of various proceedings before this Court and other authorities. Consequently,
the connected miscellaneous petitions are closed. No costs.
SML
To
1.The Joint Director of
Elementary Education,
Directorate of Elementary Education,
Chennai-600 006.
2.The Chief Educational Officer,
Virudhunagar District,
Virudhunagar.
3.The District Elementary Educational Officer,
Collector Officer Complex,
Virudhunagar-626 001.
4.The Educational Tribunal,
Sub-Court,
Srivilliputhur,
Virudhunagar District.
5.The Secretary,
The Department of Elementary Education,
Fort St. George,
Chennai-600 009.
