M. Janardhan & Anr. v. State of A.P. rep., by Prl.Secretary, Department of School

(3) (a) No employee shall be placed under suspension except when an enquiry into the gross misconduct of such employee is contemplated. (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not started and completed within that period, such employee shall, without prejudice to the inquiry, be deemed to have been restored as employee: Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if in the opinion of such competent authority the inquiry could not be completed within the said period of two months for reasons directly attributable to such employee. (4) Every such employee as is placed under suspension under sub- section (3) shall be paid subsistence allowance at such rates as may be prescribed during the period of his suspension.

(5) Before imposing any penalty, other than the penalties specified in sub-section (1), an employee shall be informed in writing of the allegations on which action is proposed to be taken and be given an opportunity of making a representation, but it shall not be necessary to hold an oral inquiry into such allegations. The first proviso to Section 79 requires prior approval of the competent authority to be taken before an order of removal from service is passed under the said Section. It is the specific case of the petitioners, in ground No.3 of the affidavit filed in support of the writ petition, that in the case on hand no prior approval was obtained or sanctioned by the competent authority. Sri Pratap Narayan Sanghi, learned Counsel petitioner would place reliance on two Division Bench judgments of this Court in Vasavi College of Engineering, Hyderabad Vs. A. Suryanarayana [4] and Tagore Home Junior College, Secunderabad Vs.

P.P.A. Christian [5] In the counter-affidavit, filed on behalf of the 3rd respondent, it is stated that they had, in fact, sent a copy of the enquiry report and the explanation submitted by the petitioners for approval of the competent authority but the same was returned with endorsement that as their appointment had not been approved by the department the question of giving permission under Section 79 of the Education Act did not arise. I n Vasavi College of Engineering, Hyderabad4, the Division Bench of this Court observed thus: “…..All these provisions apply to private institutions as well. In other words, the scheme of the Act is such that it provides for regulation of the conduct of private institutions as also creates obligations on them. Though private in name, the institutions have rights and duties conferred by the statutes; and their functioning is regulated by the statutory provisions.

Even a non-aided institution is governed by such regulatory provisions. We are of the opinion that institutions of this nature are liable to be compelled to discharge their statutory obligations just as much as they are entitled to seek the assistance of court for enforcement of the rights conferred under the statute. Chapter XIV of the Act deals with “payment of salaries and allowances to and disciplinary action against employees of private institutions”. Chapter XV deals with their welfare and code of conduct and rules of conduct of the employees of educational institutions”. Dismissal, removal or reduction in rank or suspension etc, of employees of private institutions are governed by Section 79. A further appeal is provided to Government under Section 81 subject to special provision regarding appeal in certain past disciplinary cases as provided under Section 82. Power is granted to prescribe manner the same manner as of payment of pay and allowances of employees of private institutions in Section 84 of the Act.

In so far as the Act contains provisions relating to service conditions of teachers and other employees of the educational institutions, we have to give meaning to such provisions as intended to ameliorate the conditions of service of such employees. We have therefore, to understand such provisions ameliorative/welfare statutes are interpreted. On a scrutiny of these provisions we are of the opinion that the teachers and other employees are entitled to seek enforcement of their statutory rights against the management by approach of this court under Article 226 of the Constitution of India. We have therefore no hesitation to hold that the private institutions who have statutory duties to perform and whose orders are subject to scrutiny by public authorities by reason of statutory provisions are subject to jurisdiction and that this court is competent to entertain a complaint of violation of statutory obligations on the part of the managements of private institutions, and that it is competent for the High Court to enforce such obligations by mandamus or quash the offending orders by Certiorari.

We see considerable force in the submission that penal termination of service (dismissal or removal) and reduction in rank as also suspension are covered by Section 79 of the Act which requires that no teacher or member of the non-teaching staff employed in any private institution, shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. We hold that if the service of a teacher or other employee of a private educational institution is sought to be terminated by dismissal or removal, it shall be proceded by any inquiry as provided in Section 79 and such removal shall be effected only with the prior approval of the competent authority. Like-wise, in the case of any termination of service other than those covered by Section 79 of the Act, prior approval of such competent authority or the next higher authority is made a condition prcedent for any other termination of service under Section 83 of the Act.

We note that the statute makes no difference between a temporary employee and a regular employee. Section 79 of the Act dealing with dismissal, removal or reduction in rank undoubtedly applies to temporary employees as well, except in a case where a person was appointed for a specified term, on the expiry of which, or subject to specific condition, in compliance with which, his services are sought to be terminated. In the view which we have taken that Sections 79 and 83 supplement each other, and between them exhaust all terminations of service-penal or otherwise and that those provisions apply equally to regular as also temporary, non-regular employees, it is not necessary for us to consider the other aspects of this question. We hold this view in view of the fact that in either case where the termination penal or non-penal, it is obligatory to obtain prior approval of competent or higher authority, as a condition precedent for any such action which the employer may take against the teaching or non-teaching employees of institutions covered by the Act.

That seems to be the proper understanding of the salutary provisions which are ameliorative in character. If we are to understand Sections 79 and 83 to apply only to some categories and not to cover the entire gamut of terminations of services of employees of educational institutions, that will leave a grey area where the whims and fancies of the management will rule the roost. Such an interpretation frustrates the very purpose of the enactment…….” (emphasis supplied) I n Tagore Home Junior College Secunderabad5, the Division bench of this Court observed thus: “……The proviso appended to sub-section (1) of Section 79 of the Act has been enacted for a purpose of allowing the competent authority to consider the materials on record independent of the opinion formed by the enquiry officer and/or by the disciplinary authority so as to enable him to come to a conclusion that the matter is such where a major penalty is required to be imposed.

The competent authority before grant of such approval would, therefore, be required to apply its own mind and satisfy itself, prima facie, that rules of fair play and natural justice have been complied with. The requirement to take prior approval before a punishment can be imposed cannot be said to be an empty formality, which can be dispensed with only in a case where the proviso is attracted. With regard to the importance of complying with the principles of natural justice, reference may be made to a decision of the Calcutta High Court in Sri Hamanuman Steel Rolling Mills Vs. CESE Ltd., AIR 1996 Cal. 449, wherein one among us (S.B. Sinha, J.) observed: “In my opinion, the principles of natural justice are required to be complied with, be it pre-decisional hearing or a post decisional one depending on the facts and circumstances of each case”. In fact, the contextual interpretation of the Act and the Rules would clearly suggest that the same had been made for protecting the services of the employees and not for the purpose of granting an arbitrary power upon the authorities and any particular Officer thereof to likely twist a case of this nature, keeping in view the fact that right to continue in service is protected under Article 21 of the Constitution of India.

It was, therefore, obligatory on the part of the management to strictly comply with the statutory requirements. There cannot be any doubt, whatsoever, that where a delinquency of the nature of the present case is concerned, the delinquent cannot be treated with sympathy or mercy, as has been held by the Apex Court in Sugandhar Bishop’s case (supra) and Apparel Export Promotion Concil’s case (supra), but before a ratio decidendi is laid down and the said decisions of the Apex Court can be applied, the procedural safeguards provided for under the statute must be complied with……..” (emphasis supplied) If indeed, as contended by the 3rd respondent in their Counter-affidavit, the competent authority had rejected their request for grant of prior approval on the ground that the competent authority had not approved the appointment and had held that in such cases the question of permission under Section 79 did not arise, it would be an order contrary to the law laid down in the aforesaid judgments of the Division bench of this Court.