Madras Seva Sadhan Higher Secondary School v. K.M. Valliappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 17.04.2008Coram :THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Appeals No.1528 of 2007 & 96 of 2008Madras Seva Sadhan Higher Secondary School, represented by its Secretary PremaKumarAppellant in W.A.No.1528 of 2007 &Respondent 2 in WANo.96 of 2008v.1. K.M.ValliappanRespondent 1 inboth the appeals2. The Joint Director of School Education (Higher Education) and AppellateAuthority, College road, Nungambakkam, Chennai 6.Respondent 2 in WANo.1528 of 2007 &Appellant in WANo.96 of 2008Writ Appeals are filed against the order dated 13.02.2007passed by a learned single Judge of this Court in writ petitionNo.8335 of 2003 to issue a cetiorarified mandamus calling for therecords pertaining to the order dated 22.10.2002 passed inCMA.No.170/00 on the file of the I Asst. City Civil Court , Chennai[Private Schools Appellate Authority] to quash the same and directthe 2nd respondent to reinstate the petitioner with all backwagesand attendant benefits]. https://hcservices.ecourts.gov.in/hcservices/ For appellant in WANo.1528 of 2007 &Respondent 2 in WANo.96 of 2008.:Mr.C.RavichandranFor Respondent 1 in both the appeals.:Mr.R.SubramanianFor appellant in WANo.96 of 2008 &Respondent 2 in WANo.1528 of 2007:Mr.S.Rajasekaran,Additional Government PleaderCOMMON JUDGMENTK.RAVIRAJA PANDIAN, J.These two appeals arise out of the order dated 13.02.2007 madein writ petition No.8335 of 2003. Writ Appeal No.1528 of 2007 isfiled by Madras Seva Sadan Higher Secondary School (hereinafterreferred to as 'the school' for short) and the Writ Appeal No.96 of2008 is filed by the Government, the Education Department(hereinafter referred to as 'the Government', for short) 2. By the impugned order the learned single Judge apportionedthe liability for payment of salary to the first respondent in boththe appeals, i.e., for the period from 07.12.1995 to 25.03.1999,the liability was fastened on the school and for the period from26.03.1999 till the date of retirement of the first respondent,i.e., on 31.05.2003, the liability for payment of the salary wasfastened on the Government. The school management as well as theGovernment, aggrieved by that portion of the order fastening theliability on them, have filed the respective appeals.3. The material facts which formed the basis for filing theappeals are :The first respondent Valliappan was working as a Headmaster inthe appellant school. When he was in service, charges were framedagainst him for certain irregularities and after conducting anenquiry he was dismissed from service on 07.12.1995. The ChiefEducational Officer has accorded approval for such dismissal on25.03.1999. The first respondent-Headmaster (hereinafter referredto as 'the Headmaster' for short) aggrieved by the said order ofdismissal, filed an appeal before the Joint Director of SchoolEducation (higher education) who is the first appellate authorityunder the provisions of the Tamilnadu Recognised Private School(Regulation) Act, who by his order dated 31.08.2000 has set asidethe order of dismissal and directed the school management toreinstate the Headmaster forthwith. Not accepting the order of thefirst appellate authority, the school management filed a furtherappeal to the Private School Tribunal in CMA No.170 of 2002. TheTribunal by its order dated 22.10.2002 allowed the appeal thereby https://hcservices.ecourts.gov.in/hcservices/ confirming the order of dismissal. The Headmaster filed writpetition which is the subject matter of these appeals pointing outcertain procedural irregularities in the conduct of thedisciplinary proceedings. In respect of the issue relating to theholding of the disciplinary proceedings by a sub committeeappointed by the school committee as there were conflict of views,the writ petition was referred to a Full Bench to resolve theissue. The Full Bench, by its order dated 04.09.2006 approved thatthe ratio of the decision of the Division Bench of this Court inthe case of Saradha Balakrishnan v. The Director of CollegiateEducation, 1995-I-MLJ 610 with certain clarifications, and quashedthe order of dismissal. After dictation of the order, theHeadmaster and the school management appear to have placed beforethe Full Bench a joint memo in respect of the liability of theschool management to make the payment of arrears of salary. 4. The Full Bench, however, relegated the issued as to whetherthe school or the Government is liable to pay the arrears of salaryand whether the liability could be apportioned between them to bedecided by the learned single Judge. It is pertinent to state herethat when the matter was pending before the authorities concerned,the Headmaster reached the age of superannuation on 31.05.2002.The learned Judge, by the order impugned in these writ appeals, hasheld that the management is liable to pay the salary for the periodfrom 07.12.1995, i.e., date of the order of dismissal to 25.03.1999the date on which approval was accorded for such the dismissal, byholding that the order of dismissal during that period has not inaccordance with law. For the subsequent period, i.e., from26.03.1999 till the date of retirement of the Headmaster 31.05.2003because of the approval granted by the Chief Educational Officer,the learned Judge was of the view that the Government has to bearthe amount towards arrears of salary payable to the Headmaster.The correctness of the said order is canvassed before us by theSchool as well as the Government.5. We heard the learned counsel Mr.C.Ravichandran, whorepresented the school and Mr.Rajasekaran, Additional GovernmentPleader representing the Government and Mr.R.Subramanian, learnedcounsel for the Headmaster. We have also perused the materialsavailable on record.6. In order to appreciate the reasoning given by the learnedsingle Judge we are of the view that it is necessary to extract therelevant portion of the order :"The first appellate authority, namely the JointDirector of School Education (Higher Education), the firstrespondent herein by the order dated 31.08.2000 by relyingupon the section 17(1) of the Act, (sic Rule 17(1) of theTamilnadu Recognised Private Schools (Regulation) Rules,1974) has held that the dismissal of the petitioner fromservice from 07.12.1995 is not valid in law and directedthe second respondent to reinstate the petitioner asHeadmaster. It is also seen on record that after theChief Educational Officer passed orders dated 25.03.1999 https://hcservices.ecourts.gov.in/hcservices/ in and by which he has accorded permission for dismissalof the petitioner, it is at the most valid only from thesaid date of permission as per section 17(1) of the Act.The petitioner immediately, thereafter, has filed theappeal before the first respondent on 24.04.1999 itself.It is well within the period of limitation and thereafter,the first respondent being the first appellate authority,as stated above, has directed the petitioner'sreinstatement as Headmaster. Therefore, for the periodbetween 07.12.1995 and 25.03.1999 during which time, thesecond respondent has dismissed the petitioner fromservice without following the provisions of the Tamil NaduPrivate Recognised Private Schools (Regulation) Act, 1973(sic – Tamil Nadu Recognised Private Schools (Regulation)Act, 1973), namely without obtaining prior permission fromthe Chief Educational Officer, I am of the view that theamount towards pay arrears payable to the petitioner forthis period, i.e., 07.12.1995 to 25.03.1999 has to beborne only by the second respondent management.As far as the payment of salary from 26.03.1999 tillthe date of retirement of the petitioner, i.e.,31.05.2003, when the Chief Educational Officer who is theauthority under the Act has accorded permission, I am ofthe view that it is the first respondent who has to bearthe amount towards arrears of pay payable to thepetitioner for this period, since ultimately the Hon'bleFull Bench by its judgment dated 04.09.2006 has set asidethe order of dismissal and therefore, there is absolutelyno difficulty to come to conclusion that the salary forthe period from 26.03.1999 till the date of retirement ofthe petitioner, i.e., 31.05.2003 has to be borne by thefirst respondent."7. Let us consider as to who is liable to pay the arrears ofsalary with reference to the statutory provisions. Section 22(1)of the Tamil Nadu Recognised Private School (Regulation) Actprovides as follows :"22. Dismissal, Removal or reduction in rank orsuspension of teachers or other persons employed inprivate schools.(1) Subject to any rule that may be made in thisbehalf, no teacher or other person employed in anyprivate school shall be dismissed, removed or reduced inrank nor shall his appointment be otherwise terminatedexcept with the prior approval of the competentauthority.Section 44 of the Act reads as under :Section 44. Deposit with the Tribunal of pay and allowancesof teachers and other persons employed in private schoolsin certain cases :1. If the appellate authority referred to in section 23has, in any appeal under that section against thedismissal or removal or reduction in rank or thetermination otherwise of the appointment of any teacher https://hcservices.ecourts.gov.in/hcservices/ of other person employed in any private school, make anorder restoring such teacher or other employee as such,no appeal against the order of such restoration shall bepreferred to the Tribunal and no appeal (against theorder of such restoration) which, under section 25,stands transferred to the Tribunal shall be proceededwith by the Tribunal unless the educational agencydeposits with the Tribunal all arrears of pay andallowances due to such teacher or other person from thedate of his dismissal or removal or reduction in rank ortermination otherwise of his appointment up to the dateof deposit, and continues to deposit the pay andallowances due to such teacher or other person until thetermination of the proceedings before the Tribunal.2. The deposit under sub-section (1) shall be made withinsuch time and in such manner as may be prescribed.3. Where there is any dispute as to the amount to bedeposited under sub-section (1), the Tribunal shall, onapplication made to it either by the educational agencyor by such teacher or other person, and after making suchinquiry as it deems fit, determine summarily the amountto be so deposited.4. If the educational agency fails to deposit the amount asaforesaid, the Tribunal shall, unless the educationalagency shows sufficient cause to the contrary, stop allfurther proceedings and make an order directing theeducational agency to restore such teacher or otheremployee as such.5. (a) Where, as a result of any final order made by theTribunal at the conclusion of the proceedings before it,such amount of pay and allowances as becomes due to suchteacher or other person, shall be paid to him out of theamount deposited under sub-section (1).(b) If there is any balance left of the amount depositedunder sub section (1) after payment under clause (a) ofthe pay and allowances referred to in that clause, suchbalance or, where no amount becomes due as aforesaid tosuch teacher or other person, the whole of the amountdeposited under sub-section(1) shall be returned to theeducational agency.Rule 17(1) of the Tamil Nadu Recognised Private Schools(Regulation) Rules, 1974 reads as under :17. Dismissal, removal or reduction in rank or suspensionof teacher or other persons employed in private school.--(1) The competent authorities to accord prior approvalof the dismissal, removal or reduction in rank of a teacheror other person employed in any private school shall be theDistrict Educational Officer in respect of teacher or otherperson employed in Pre-primary, Primary and Middle schoolsand the Chief Educational Officer in respect of teacher or https://hcservices.ecourts.gov.in/hcservices/ other person employed in High Schools, Higher SecondarySchools and Teacher Training Institutes.(2)(i) Whenever a teacher or other person employed ina private school is kept under suspension, such suspensionshall immediately on the date of issue of the suspensionorder be intimated by the Secretary of the School Committeeto the District Educational Officer concerned along with acopy of the suspension order.(ii) On receipt of intimation regarding the suspensionof a teacher or other person as mentioned in clause (i)above the District Educational Officer concerned shall makepayment of subsistence allowance to the Teacher or otherperson who is placed under suspension every month from thedate of suspension for not more than two months at half therate of pay which he was drawing at the time of suspensionand in addition the Dearness Allowance if admissible on thebasis of such pay.(iii) Whenever the competent authority has extendedthe period of suspension of a teacher or other person underthe proviso to clause (b) of sub section (3) of section 22of the Act, he shall intimate such extension of suspensionto the District Educational Officer concerned. On receiptof such intimation the District Educational Officerconcerned shall make payment of subsistence allowance tothe teacher or other person who is placed under suspensionfor a further period not exceeding two months at half therate of pay which he was drawing at the time of suspensionand in addition; the Dearness Allowance if admissible onthe basis of such pay.(iv) The District Educational Officer concerned shallsend an intimation regarding the payment of the subsistenceallowance under clauses (ii) and (iii) above to a teacheror other person who is placed under suspension to theSecretary of the School Committee.(v) The payment of subsistence allowance shall belimited to maximum of four months in all.(3) (i) Where after enquiry, including the appeal, asuspension is found to be not justified, the managementshall remit the amount of subsistence allowance paid to theteacher or other person, employed in that private school tothe Government in one lumpsum under the appropriate head ofaccount. The Educational Agency shall however, pay suchteacher or other person the full pay and allowances hewould have drawn but for his suspension less the amount ofsubsistence allowance already paid to the teacher or otherperson for the suspension period from the funds of themanagement without any claim from grant.(ii) Where a substitute is appointed in the place of ateacher or other person employed in a private school keptunder suspension, the management shall not be entitled toany grant in respect of such a substitute.(iii) Where the appellate authority has decidedagainst the imposition of penalty of dismissal or removalfrom service or placement under suspension of a Teacher or https://hcservices.ecourts.gov.in/hcservices/ other person employed in a private school by the managementof that school, the management of every private school, notbeing a minority school, shall implement the order of theAppellate Authority and re-instate the teachers or otherpersons with all back wages for the period of dismissal orsuspension or removal within one month from the date oforder of the Appellate Authority, failing which, apart fromresumption of the post, recognition shall be withdrawn.8. A cursory reading of the above provisions make it clearthat no teacher employed in a private school shall be dismissed norhis appointment be otherwise terminated, except with the priorapproval of the competent authority.9. Hence, the order dated 07.12.1995 by the school managementdismissing the Headmaster is not in accordance with the statutoryprovisions. It is also undisputed that the Joint Director, thefirst appellate authority has set aside the order of dismissal on31.08.2000 and directed the school management to reinstate theHeadmaster forthwith. Section 44 casts a duty upon the schoolmanagement to deposit the entire amount of salary when the appealis pending before the Tribunal and as a matter of fact, in thiscase also such deposit has been made. Sub clause 5 of section 44provides that where, as a result of any final order made by theTribunal at the conclusion of the proceedings before it, suchamount of pay and allowances as becomes due to such teacher orother person, shall be paid to him out of the amount depositedunder sub-section (1). Rule 17 (2) of the Rules provides thatduring the period in which a teacher was kept under suspension thathas to be intimated to the District Educational Officer concernedand on such intimation, the District Educational Officer concernedshall make payment of subsistence allowances to the teacher who wasplaced under suspension every month. Sub-Rule (3) to Rule 17provides that where after enquiry, including the appeal, asuspension is found to be non justified, the management shall remitto the amount of subsistence allowance paid to the teacher or otherperson, employed in that private school to the Government in onelumpsum under the appropriate head of account. The Educationalagency shall however pay such teacher or other person the full payand allowances he would have drawn, but for his suspension less theamount of subsistence allowance already paid to the teacher andother persons for the suspension period from the funds of themanagement without any claim from grant. Sub clause (iii) to Rule17 (3) provides that where the appellate authority has decidedagainst the imposition of the penalty of dismissal or removal fromservice by the management, the management of the private school notbeing the minority school, shall implement the order of theappellate authority and reinstate the teacher with all back wagesfor the period of dismissal within one month from the date of theorder of the appellate authority. In default, the Government,apart from the resumption of the post, can withdraw the recognitionto the school. https://hcservices.ecourts.gov.in/hcservices/

10. It is undisputed fact that on 25.03.1999 the ChiefEducational Officer accorded approval to the order of the dismissalby the management. Thereafter, the Headmaster filed an appeal andobtained an order on 31.08.2000 from the first appellate authoritysetting aside the order of dismissal and directing the managementto reinstate him with due backwages. The management did not onlyaccept the order setting aside the dismissal order, but also thedirection of the first appellate authority for reinstatement of thepetitioner and thought it fit to file an appeal. Of course, in theappeal filed before the Tribunal, the management school obtained afavourable order. However, this Court has passed orders on04.09.2006 setting aside the order of dismissal. 11. On the basis of the above statutory provisions, we are ofthe considered view that that part of the order fastening theliability upon the Government is not in consonance with thestatutory provisions. It is only the school management which isliable for the payment of salary to the Headmaster. The schoolreceiving aid from the Government cannot militate the issue in itsfavour. The Joint memo filed before the Court reads as follows :"JOINT MEMO FILED BY THE PETITIONER AND 2ND RESPONDENT"The petitioner and the 2nd respondent hereby agree on thefollowing terms of compromise.1. The parties agree that the total amount payable to thepetitioner by the 2nd respondent towards pay arrears isRs.3,40,000/- (three lakhs and forty thousand only) infull and final settlement of all his claims against theinstitution, except PF and other terminal dues payableby the authorities.2. The parties agree that the order of dismissal dated21.04.1999 may be set aside and the petitioner is deemedto have retired on 31.05.2003, i.e., attaining onsuperannuation. The school committee shall passappropriate resolution after complying with thestatutory formalities within four weeks from the date oforder and shall communicate the same to the educationalauthority.3. The 2nd respondent is permitted to claim from the 1strespondent the salary arrears and subsistence allowancepaid by the 2nd respondent to the petitioner and on suchclaim the 1st respondent shall reimburse the same withinfour weeks from the date of receipt of claim by the 2ndrespondent.4. The 2nd respondent will forward the proposals forterminal benefits to the concerned educational authoritywithin 8 weeks from the date of order and on receipt ofthe same, the authorities shall sanction the same withinfour weeks thereafter.5. The petitioner shall be paid by the pension arrearsfrom 01.05.2003 within 12 weeks from the date of orderand continue to be paid every month the pension amountby the Education Department authority. https://hcservices.ecourts.gov.in/hcservices/

6. The petitioner is permitted to withdraw the sum ofRs.3,40,000/- mentioned in clause 1 from the amountdeposited to the credit of CMANo.170 of 2000 on the fileof the I Assistant City Civil Court, Chennai (PrivateSchools Appellate Tribunal). Similarly the 2ndrespondent is permitted to the remaining amount withaccrued interest. On such payment-out petitions filedby the petitioner/2nd respondent herein, the sum shallbe ordered within two weeks from the date of productionof order copy.7. There will be no order as to costs.12. The Joint memo is filed by the school and the Headmaster– the school agreeing to pay and the teacher agreeing to receivethe pay arrears of Rs.3,40,000/- in full and final settlement ofthe claim against the institution except the statutory relief ofprovident fund and other terminal dues. The joint memo between theschool management and the headmaster cannot legally fasten aliability on the Government against the statutory provisions. Theconditions agreed between the school and the Headmaster are bindingon them, but not the Government. 13. For the foregoing reasons that portion of the order ofthe learned single Judge fastening the liability on the Governmentis hereby set aside. As per the statutory provisions extractedabove, it is the management which is alone liable to pay the salaryarrears to the Headmaster. 14. In the result, W.A. No.1528 of 2007 filed by the school isdismissed and the W.A. No.96 of 2008 filed by the Government isallowed. However, there will be no order as to costs. Theconnected miscellaneous petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mf https://hcservices.ecourts.gov.in/hcservices/ To1. The Joint Director of School Education (Higher Education) and Appellate Authority, College road, Nungambakkam, Chennai 6.+ 1 CC To Mr.R.Subramanian, Advocate SR NO.22050+ 1 CC to the Government Pleader SR NO 22012+ 2 CCs to Mr.C.Ravichandran, Advocate SR NO 21960, 21959W As No.1528 of 2007 & 96 of 2008bv[co]gp/24.4.