Francis
John Vs. Director of Education & Ors [1989] INSC 358 (23 November 1989)
Venkataramiah,
E.S. (Cj) Venkataramiah, E.S. (Cj) Singh, K.N. (J) Kasliwal, N.M. (J)
CITATION:
1990 AIR 423 1989 SCR Supl. (2) 252 1989 SCC Supl. (2) 598 JT 1989 (4) 402 1989
SCALE (2)1142
ACT:
Goa, Damam and Diu Grant-in-aid Code:
Rule 74.2-Termination of services of permanent teacher--Dispute Settlement
Committee --Jurisdiction to enquire.
Constitution
of India: Article 226--Private School
receiving government aid under Grant-in-aid Code--Termination of services of a
teacher--Orders of Dispute Settlement Committee and Director of
Education--Amenable to High Court's Writ jurisdiction.
HEAD NOTE:
Disciplinary
proceedings were started against the appellant who was a headmaster in a
private school in accordance with the Rule 74.2 of the Grant-in-aid Code since
the school was a recipient of grant as per the code. The Director of Education
approved the findings of the Dispute Settlement Committee and permitted the
termination of the appellant by the Principal of the School. The said order of
termination was challenged by the appellant before the High Court of Bombay, Panaji
Bench, in a Writ Petition. The petition was dismissed by the High Court
upholding the preliminary objection that the petition was not maintainable
under Article 226 of the Constitution of India against the management of the
School which was a private body. Aggrieved by the decision of the High Court
the appellant fried this appeal by special leave.
According
to the relevant rule of the Grant-in-aid Code the management could not have
terminated the services of the appellant without the communication received by
it from the Director of Education who was a public functionary and was
discharging a governmental function as an authority constituted for the said
purpose by the government. Obviously in such circumstances it cannot be said
that the decision is just that of a private management governed by private law.
The
High Court erred in not properly following the ratio of the decision of this
Court in Tika Ram's case the facts of which were not substantially different
from the facts of the present case. This Court while setting aside the judgment
of the High Court and remanding the case to the High Court to hear the Writ
Petition on merits, 253
HELD:
Any private school which receives aid from the government under the
Grant-in-aid Code, which is promulgated not merely for the benefit of the
management but also for the benefit of the employees in the school for whose
salary and allowances the government was contributing from public funds under
the Grant-in-aid Code cannot escape from the consequences flowing from the
breach of the Code and particularly where the Director of Education who is an
instrumentality of the State is participating in the decision making process.
[260F-G] The High Court was wrong in upholding that the orders of the Director
of Education and of the Dispute Settlement Committee were not amenable to the
jurisdiction of the High Court under Article 226 of the Constitution of India.
[260G] Tika Ram v. Mundikota Shikshan Prasarak Mandal & Ors., [1985] 1 SCR
339, referred to.
CIVIL
APPEALLATE JURISDICTION: Civil Appeal No. 3586 of 1988.
From
the Judgments and Orders dated 18.8.1987 & 9.11.1987 of the Goa High Court
in W.P. No. 92/1986 & Misc. Civil Application No. 334 of 1987.
Dr.
R.S. Kulkarni, S.K. Mehta, Aman Vachher and Atul Nanda for the Appellant.
K.N. Bhat
and Mukul Mudgal for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, CJ. The appellant was
appointed as a Headmaster of a school which was being run by the Calangute Don Bosco
Educational & Welfare Foundation in 1974 in the State of Goa (which was at the relevant time a Union Territory). Disciplinary proceedings were started against him in
accordance with the Grant-in-aid Code which was in force at that time, since
the school was a recipient of the grant as per the Code. The findings .of, the
Dispute Settlement Committee were approved by the director of Education of the
Government of Goa by his Order dated July 12, 1984 who permitted the
termination of the services of the appellant:
The
Principal of the Don Bosco High
School, therefore,
terminated the services of the appellant 254 as Headmaster by his letter dated July 26, 1984 and the said order of termination
was challenged by the appellant before the High Court of Bombay, Panaji Bench, Goa in Writ Petition No. 92 of 1986. The petition was
dismissed by the High Court on the ground that the petition was not maintainable
under Article 226 of the Constitution of India against the Management of the
school, which was a private body. Aggrieved by the decision of the High Court
the appellant has filed this appeal by special leave.
The
school in question was a private school and was a recipient of the grant-in-aid
under the Grant-in-aid Code issued by the Government in exercise of its
executive power.
The
relevant rule of the Grantin-aid Code, i.e., rule 74.2 on which the Management
relied read thus:
"74.2(1).
The services of an employee appointed to a permanent post shall not be
terminated except in accordance with the procedure prescribed here in under. No
order of termination, dismissal or imposition of any other penalty shall be
passed against such employee unless he has been informed in writing of the
grounds on which action is proposed to be taken and has been given an adequate
opportunity to defend himself. The grounds on which the action is proposed to
be taken shall be reduced to a form of a specific charge/charges which shall be
communicated to the employee together with statement of allegation on which
each charge is based.
(iii)
Management shall refer the case to the Director of Education in writing,
stating the date of the effect of the intended termination with a copy endorsed
to the employee concerned for his acknowledgement. The letter endorsed to the
employee shall enclose a copy of allegation with complete substantiating
evidence and other documents relevant to the case. The letter be issued to the
employee at least one calendar month prior to the date of effect of intended
termination. The issue of the letter shall be subject to rule 74.1(3).
(v)
The Director shall refer the case to the Disputes Settlement Committee within
seven days of the receipt of the letter in the Directorate of Education. The
Disputes Settlement Committee shall give a hearing to both the 255 parties and
also consider the written statements, if any, submitted by either or both the
parties, and give its decision within fifteen days from the date of reference.
In case any party fails to present the case, the Disputes Settlement Committee
shall take an ex parte decision.
(vi)
The decision of the Dispute settlement Commit-' tee shall be final and binding
on both the parties provided that it shall be open to either party to prefer an
appeal to the Administrative Tribunal established under the Goa, Daman and Diu
Administrative Tribunal Act, 1965 within thirty days of the date of receipt of
the decision of the Disputes Settlement Committee." Rule 74.2 provides
that the service of an employee appointed to a permanent post shall not be
terminated except in accordance with the procedure prescribed there under and
no order of termination, dismissal or imposition of any other penalty shall be
passed against such employee unless he has been informed in writing of the
grounds on which action is proposed to be taken and has been given an adequate
opportunity to defend himself. The grounds on which the action is proposed to
be taken shall be reduced to a form of a specific charge/charges which shall be
communicated to the employee together with statement of allegation on which
each charge is based. Then the Management is required to refer the case to the
Director of Education in writing, stating the date of the effect of the
intended termination with a copy endorsed to the employee concerned for his
acknowledgement. The letter endorsed to the employee shall enclose a copy of
allegation with complete substantiating evidence and other documents relevant
to the case. The letter shall be issued to the employee at least one calendar
month prior to the date of effect of intended termination.
The
issue of the letter shall be subject to rule 74.1(3).
The
Director is then required to refer the case to the Disputes Settlement
Committee within seven days of the receipt of the letter in the Directorate of
Education. The Dispute Settlement Committee shall give a heating to both the
parties and also consider the written statements, if any, submitted by either
or both the parties, and give its decision within fifteen days from the date of
reference. In case any party fails to present the case, the Disputes Settlement
Committee shall take an ex parte decision. The decision of the Dispute
Settlement Committee shall be final and binding on the parties. The Dispute
Settlement Committee acquires the jurisdiction to hear the case only on a
reference made to it by the Director of Education. The order passed in this
case by the 256 Director of Education on July 12, 1984 reads thus:
"No.
DE/Acad. I/BEZ. Bo/40/DBHS/Term. Serv. HM/Vol. III/82 Government of Goa, Daman and Diu, Directorate of Education, Panaji-Goa.
Dated:
12.7.1984.
Read:
1. This office order No. DE/AcadI/BEZ-Bo/40/ DBHS/PC15/Term. Serv. HM/Vol.
III/82 3610, dt. 3.9.1982.
2.
Letter No. 17 1-5-82-AE/1115 dt. 26.3.1983 from the Convenor of the Dispute
Settlement Committee and Asstt. Director of Education.
ORDER
Whereas a Dispute Settlement Committee was constituted to enquire into the
proposed case for Termination of Services of Shri Francis John, the Headmaster
of Don Bosco High School, Calangute, Bardez, Goa, vide order referred to above;
And
whereas the accused Shri F. John participated in the deliberations of the
Dispute Settlement Committee along with his nominee for some time and
thereafter remained absent from the deliberation of the Committee inspite of
all reasonable opportunities given to him by the Convenor;
And
whereas the said Committee, in majority, has decided that the termination of
services of the said Shri F. John, Headmaster of Don Bosco High School, Calangute,
is justifiable.
The
undersigned is inclined to agree with the findings of the Dispute Settlement
Committee and it is hereby ordered that the finding of the majority report of
the Committee is accepted and the Principal of the School is permit257 ted to
terminate the service of Shri F. John, as per Rule 74 (amended) of the
Grant-in-aid Code and the vacancy so caused be filled up as per Rules. The
Principal is further directed to revoke the order of suspension forthwith under
intimation to the undersigned.
Sd/L. Khisngte
Director of Education." It was on the basis of the approval given by the
Director of. Education, as stated above, the services of the appellant were
terminated.
From a
reading of the relevant rule of the Grant-in-aid Code which is a part of the
Public Law of the land it becomes obvious that the reference of the dispute
between the Management of the school and the appellant to the Dispute
Settlement Committee was made by the Director of Education in exercise of the
powers confened on him by the Grant-inaid Code, which is issued by the
Government in exercise of its executive power, even though it may not have been
done under a statute. The Director of Education who is a public functionary has
given his approval to the decision of the Dispute Settlement Committee before
it was communicated to the School. While granting his aproval to the decision
the Director of Education is discharging a governmental function as an
authority constituted for the said purpose by the Government. It is obvious
that the Management, in the circumstances could not have terminated the
services of the appellant without the communication received by it from the
Director of Education. In such circumstances it cannot be said that the
decision is that of a just private management governed by private law. It is
the part of the process of the public law which affects public exchequer.
When
the matter came up before the High Court a preliminary objection was taken by
the Management regarding the maintainability of the Writ Petition under Article
226 of the Constitution.
The
appellant contended in the Writ Petition that the proceedings of the
disciplinary Committee are in contravention of the principle of natural justice
and fair play and the approval given by the Director of Education was
unsustainable. The appellant relied upon the decision of this Court in Tika Ram
v. Mundikota Shikshan Prasarak Mandal & Ors., [1985] 1 SCR 339 and
contended that he was not asking for any relief against the private body but he
was challenging 258 the order of the Director of Education who had granted
approval to his removal on the basis of a report submitted to him by the
Dispute Settlement Committee and hence the Director of Education, who was a
public authority and whose orders had been questioned before the Court was
amenable to the jurisdiction of the High Court under Article 226 of the
Constitution. The High Court distinguished the above case by observing in Para
11 of its judgment thus:
"...
MrKakodkar had placed reliance on Tika Ram v. Mundikota Shiksha Prasarak Mandal,
AIR 1984 SC 1621 in support of his proposition that a writ petition would be maintanable
in the case of a Headmaster of a private school who is dismissed by the
management of a private school. In Tika Ram's case, the petitioner was not
seeking any relief against the management on the basis of the clauses in the
Schools Code. But the Court has observed:
'In
the instant case the appellant is seeking a relief not against a private body
but against an officer of Government who is always amenable to the jurisdiction
of the Court.' Obviously, no decision of an Officer of the Government is being
challenged in the present case and hence, Tika Ram's case is easily distinguishable."
With great respect to the High Court we should say that we do not find any
substantial difference at all between the facts of this case and the facts
involved in the Tika Ram's case (supra). In Tika Ram's case (supra) the facts
were these.
The appellant
in that case was also working as a Headmaster in a private school. On account
of certain earlier events the Management instituted a disciplinary enquiry
against the appellant and on July 7, 1975, the appellant was informed by the
Management that it had imposed on him the punishment of reversion to the post
of Assistant Teacher which according to the Management was the substantive post
held by him. Aggrieved by that order of reversion, the appellant filed an
appeal before the Deputy Director of Education, Nagpur Division, contending
that the enquiry had been vitiated on account of violation of principles of
natural justice and that he had never held the post of an Assistant Teacher to
which he had been reverted. After hearing both the parties, the Deputy Director
of Education passed an order 259 dated October 3, 1975 setting aside the
decision of the Management and remanding the case to the Management for fresh
decision on the ground that the enquiry had been vitiated on account of
violation of principles of natural justice. Instead of filing an appeal against
that order, the Management filed a review petition before the Deputy Director
himself on October 17,
1975. That was
rejected by the Deputy Director by his order dated November 11, 1975 on the ground that no such review could be filed before
him.
Against
that order the Management filed an appeal before the Director of Education and
that was dismissed on May
12, 1976 affirming the
order of remand passed by the Deputy Director of Education to reconsider the
case. The Management again filed a petition before the Director of Education to
reconsider the case. This petition for review was allowed by the Director of
Education on November
26, 1976 and the order
passed by the Deputy Director on October 3, 1975 remanding the case to the Management for a fresh decision
was set aside. Aggrieved by the said order dated November 26, 1976, the appellant filed a writ petition before the High Court
of Bombay on the principal ground that the Director had no jurisdiction to
review his earlier order May
12, 1976 by which he
had dismissed the appeal against the order of the Deputy Director. The High
Court dismissed that writ petition holding that the appellant could not file a
writ petition under Article 226 of the Constitution against the order passed by
the Director on the ground that the teachers working in private schools could
not enforce their right under clause 77 and connected clauses of the School
Code which were not statutory rules. It was against that order the appellant in
that case had filed the appeal before the SUpreme Court under Article 136 of
the Constitution. Allowing the said appeal this Court observed thus:
"In
the writ petition the appellant was not seeking any relief directly against the
management on the basis of the clauses in the School Code. If the management
does not obey the order passed by the Deputy Director or the Director, it is
open to the State Government to take such action under the School Code as may
be permissible. In such an event, the recognition accorded to the school may be
withdrawn or the grant-in-aid may be stopped.
In the
instant case the appellant is seking a relief not against a private body but
against an officer of Government who is always amenable to the jurisdiction of the
Court. The appellant has merely sought the quashing of the impugned order dated
November 26, 1976 passed by the Director on review setting aside the order of
the Deputy Director. What .
260
consequences follow from the quashing of the above said order in so far as the
management is concerned is an entirely different issue.
In the
circumstances, the High Court was wrong in holding that a petition under
Article 226 of the Constitution did not lie against the impugned order passed
by the director. We are aware of some of the decisions in which it is observed
that no teacher could enforce. a fight under the School Code which is non statutory
m character against the management.
But
since this petition is principally directed against the order passed in a quasijudicial
proceeding by the Director, though in a case arising under the School Code and
since the Director had assumed a jurisdiction to review his own orders not
conferred on him, we hold that the appellant was entitled to maintain the
petition under Article 226 of the Constitution." In the instant case also
we are concerned with the Grant-in-aid Code. The decision which was challenged
before the High Court was the order of the Director of Education dated July 12,
1984 which is fully extracted above. It is further seen that a copy of the
above order has been communicated by the Director of Education not merely to
the Management of the School but also to the Zonal Officer, North Education
Zone, Mapsa and the Grant-in-aid Section of the Directorate of Education. If
the impugned orders of the director of Education and of the Dispute Settlement
Committee to which he had referred the case are set aside then the order of
termination of service of the appellant, which is pursuant to them would also
have to fall. Any private school which receives aid from the Government under
the Grant-inaid Code, which is promulgated not merely for the benefit of the
Management but also for the benefit of the employees in the School for whose
salary and allowances the Government was contributing from the public funds
under the Grant-in-aid Code cannot escape from the consequences flowing from
the breach of the Code and particularly where the Director of Education who is
an instrumentality of the State is participating in the decision making
process. Under these circumstances we find that the High Court was wrong in
upholding that the orders of the Director of Education and of the Dispute
Settlement Committee were not amenable to the jurisdiction of the High Court
under Article 226 of the Constitution since the matter squarely falls within
the principles laid down by this Court in Tika Ram's case (supra).
261
We, therefore, set aside the judgment of the High Court holding that the writ
petition was not maintainable before it. Since the High Court has not gone into
the merits of the case we remand the case to the High Court and direct it to
hear the writ petition on merits in accordance with law. The appeal is
accordingly allowed, but there shall be no order as to costs.
R.N.J.
Appeal allowed.
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