Writ Petition No. 9249 of 2004 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16..4..2007CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUWrit Petition Nos.9249 of 2004, 37756 of 2006 and 1469 of 2007W.P.No.9249 of 2004:Durai Ezhilan.. Petitioner Vs.

Aruna Sugars Higher Secondary Schoolrep. by its SecretaryEraiyurPennadamCuddalore District2.The Joint Director of Higher Secondary EducationDPI CampusCollege RoadChennai3.The Chief Educational OfficerCuddalore District.. RespondentsPetition filed under Article 226 of the Constitution of Indiafor issuance of writ of Certiorarified Mandamus calling for the records of the first respondent in the order e.f. vz; br/jM/36/2003-2004 dated 13.3.2004 and quash the same and to direct the respondents to forthwith reinstate the petitioner as Headmasterof Aruna Sugars Higher Secondary School, Main Road, Eraiyur, Pennadam, Cuddalore District and grant all consequential benefits, arrears, increments and other allowances incidental thereto. For Petitioner : Mr.AR.L.Sundaresan, SC for Ms.AL.GanthimathiFor Respondents 2&3: Mr.P.Gopiraja, GA https://hcservices.ecourts.gov.in/hcservices/ W.P.No.37756 of 2006:Durai Ezhilan.. PetitionerVs.The District Educational OfficerDistrict Educational OfficeVirudhachalamCuddalore.. RespondentPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling for the records of the respondent in his proceedingsNa.Ka.No.7109/Aa3/2006 dated 18.9.2006 quash the same and direct the respondent to pay the entire accrual of the Provident Fund to the petitioner directly without deducting the salary amount ofRs.2,68,515/- as proposed by the respondent. For Petitioner: Mr.G.SundaramFor Respondent: Mr.P.Gopiraja, GAW.P.No.1469 of 2007:Aruna Higher Secondary SchoolRep. by the SecretaryMain RoadEraiyurPennadamCuddalore District.. PetitionerVs.1.The Director of School EducationalCollege RoadChennai – 62. The District Educational OfficerDistrict Education OfficeVridhachalam3.Durai Ezhilan.. Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of Indiafor issuance of writ of certiorarified Mandamus calling for the records of the second respondent relating to Na.Ka.No.8901/A2/2005dated 25.01.2006 and quash the same and to direct him to act as per the proceedings of the first respondent dated 17.6.2005 inNa.Ka.No.64003/W8/4 and reimburse the petitioner school. For Petitioner: Mrs. Hema Sampath, SC for Mr.R.SubramanianFor Respondents 1&2: Mr.P.Gopiraja, GA- - -C O M M O N

O R D E RI have heard the learned counsels appearing for all the parties and have perused the records.

In W.P.No.9249 of 2004 and 37756 of 2006, the petitioner is the Headmaster of Aruna Sugars Higher Secondary School, Pennadam. In W.P.No.1469 of 2007, the petitioner is the SchoolManagement. Since the subject matter of these three writ petitions is common, all the three writ petitions are grouped together, heard and a common order is passed.

For convenience, the parties are referred to as the Headmaster, School Management and the official respondents.

The petitioner filed W.P.No.20962 of 2002 and challenged the order of suspension. Though initially stay was granted subsequently, by order dated 12.9.2002, the interim stay was vacated. As against the same, the Headmaster filed writ appeal being W.A. No. 3048 of 2002 and a Division Bench of this Court videits judgment dated 07.10.2002 held that the order of suspension passed by the Secretary of the School Committee was non-est in law since the Headmaster was placed under suspension as early as03.6.2002 and since the maximum period of four months have elapsed by the time, the Division Bench heard the matter and directed the School Management to pay the entire salary right from the date of suspension, ie., 03.6.2002 till the date of completion of the enquiry, in lieu of the reinstatement pending disciplinary action and directed the completion of the enquiry and thereafter, the enquiry was conducted and as stated already, the Chief EducationalOfficer, Cuddalore, refused to grant approval. But as the SchoolManagement has not reinstated him, the Headmaster filed W.P.No.11196 of 2003.For the disobedience of the order made inW.P.No.11196 of 2003, a Contempt Petition was filed in C.P.No.489 https://hcservices.ecourts.gov.in/hcservices/ of 2006 and the same was dismissed by this Court by an order dated19.10.2006.

In W.P.No. 9249 of 2004, the Headmaster challenges the order of the School Management dated 13.3.2004 wherein and by which he was dismissed from service with immediate effect. Accordingto the School Management, five charges were levelled against the Headmaster and after conducting an enquiry, when proposals were sent to the Chief Educational Officer, Cuddalore, prior approval for the dismissal of the Headmaster was refused by order dated04.3.2003 and the appeal filed by the School Management was allowed by the appellate authority by order dated 02.3.2004. Againstthe order of refusal, the School Management filed an appeal before the Joint Director of Higher Secondary Education. In the meantime, the Headmaster filed a writ petition being W.P.No.11196of 2003 challenging the order of suspension and sought for adirection to the School Management to reinstate him in service as the enquiry was not over.

The learned Judge pointed out that since the appeal ispending against the refusal to grant approval and if the Headmastersucceeds, he will get the salary towards the interregnum period and the Joint Director, being the appellate authority, was directed to dispose of the appeal within eight weeks from the date of receipt of a copy of the order. Pursuant to the direction, the appellate authority held that the refusal to grant approval by the ChiefEducational Officer, Cuddalore, was wrong and, therefore, accepting the appeal filed by the School Management, the appellate authority granted approval by order dated 02.3.2004. Pursuant to the said order, the School Management passed the order dated 13.3.2004dismissing the Headmaster from service.

As against the order of the School Management, the Headmaster has a right of appeal under Section 23 of the Tamil NaduRecognised Private Schools (Regulation) Act, 1973 [for short,'Private Schools Act'] failing which second appeal will lie before the Private Schools Tribunal under Section 24 of the PrivateSchools Act. The petitioner Headmaster instead of filing an appeal as contemplated under the Act, has come forward to file awrit petition and in the affidavit, he has stated that there is no remedy under the provisions of the Private Schools Act and, therefore, he has filed the present writ petition. This standof the Headmaster is unacceptable because against the order of dismissal, a right of appeal is granted to a teacher to the JointDirector of School Education and as against the order of the JointDirector, a second appeal is provided for before the PrivateSchools Tribunal under Section 24 of the said Act.

Learned counsel for the Headmaster relied on the decision of the Supreme Court in 2003 (1) CTC 189 [Harbanslal Sahnia and another vs. Indian Oil Corporation Ltd. And others] wherein it has been held that alternative remedy is not a bar for entertaining the writ petition. Since that question does not arise in terms of the Private Schools Act, the exception pointed out by the said judgment does not apply.

The second judgment relied on by the learned counsel for the Headmaster is JT 1995 (1) SC 471 [Dr.Bal Krishna Agarwal vs. State of Uttar Pradesh and others] and on the basis of the said judgment, he argued that once the writ petition is admitted and was pending in the High Court, the Court must go into the merits of the case. However, the Supreme Court in respect of the PrivateSchools Act which sections are in parimateria, held in the decision reported in AIR 1984 (1) SC 158 [S.Jagadeesan vs. Ayya NadarCollege and others] that necessarily the parties must follow the provisions of the Act and the Supreme Court directed the SchoolManagement to file a proper appeal. Therefore, these two decisions are of no help in the light of the direct judgment under the very same Act. 11. Further, the Supreme Court in more than one case dealing with the provisions of Section 33(2)(b) of the Industrial DisputesAct, 1947 [Provisions relating to grant of approval] has held that the decision under the said provision cannot be a bar in deciding the regular reference while the same Court is hearing matters under Section 10(1) of the said Act. The same reason will apply to the present case. In the present case, the stand of the Headmaster was that there is no alternative remedy in terms of the Act which does not have any legal basis. Therefore, W.P.No.9249of 2004 shall stand dismissed except to the extent indicated above.

In the second writ petition, viz., W.P.No.37756 of 2006,the Headmaster has challenged the order dated 18.9.2006 passed by the District Educational Officer, Virudhachalam, for ordering recovery of a sum of Rs.2,68,515/-. Since the Headmaster was dismissed by order dated 12.3.2004 and since the order of this Court directed that the back wages should be paid subject to the outcome of the final hearing, the School Management requested there fund of the amount of Rs.2,68,515/- from the General ProvidentFund of the petitioner and the District Educational Officer, https://hcservices.ecourts.gov.in/hcservices/ Virudhachalam, recovered the said amount by stating thatRs.2,68,515/- should be given to the School Management from the General Provident Fund amount of the Headmaster and the balance amount of Rs.39,357/- should be given to the Headmaster. Thiswas based upon the order passed by this Court in W.P.No.11196 of2003, which is extracted above.

While the W.P.No.37756 of 2006 was pending for hearing, the School Management has filed writ petition being W.P.No.1469 of2007 challenging the proceedings dated 25.01.2006 passed by the second respondent and seeking for a direction to the second respondent to act as per the proceedings of the first respondent dated 17.6.2005 wherein the Director of School Education gave adirection to the District Educational Officer stating that there was no provision by which any recovery can be made from one'spension, gratuity and Provident Fund and, therefore, the Headmastermust receive all the terminal benefits without any reduction and since the Headmaster was dismissed prospectively and since he was not reinstated in service, the question of regularising hisservices during the period of suspension does not arise. Basingupon the same, the District Educational Officer revised his order impugned in the earlier writ petition and passed an order dated25.01.2006 stating that no recovery can be made from the GeneralProvident Fund of the Headmaster and if any recovery is to be made from him, the School Management must have a contractual arrangement with the Headmaster and the Department is unable to make any recovery from the terminal benefits of the Headmaster. TheSchool Management has challenged the said impugned order and in view of the same, these two writ petitions have to be dealt with together.

In the present case, the Headmaster was suspended by an order dated 03.6.2002. Since the enquiry was not completed within four months as contemplated under Section 22(3) of the PrivateSchools Act, he is liable to be reinstated in service without prejudice to the disciplinary action. Thereafter, the SchoolManagement failed to get prior approval under Section 22(1) of the Act and thus, he is deemed to be in service. It was only by the order of the appellate authority dated 02.3.2004, the SchoolManagement got permission to dismiss the Headmaster. Such an approval can be only prospective under the Act. The provision for prior approval under Section 22(1) of the Act is held to be mandatory and any dismissal without approval is held to be abinitio void. Therefore, whether the Headmaster has been dismissed for a misconduct or not, he is entitled to salary for the entire period from 03.6.2002 till 12.3.2004 when he was dismissed by the Management. Even if any amounts are paid, the question of recovery does not arise. Therefore, the School Management seeking for recovery of the said amount from the salary of the Headmaster https://hcservices.ecourts.gov.in/hcservices/ does not arise. Rule 17 of the Private Schools Act fixes the responsibility on the School Management to pay the salary to the Teachers and only for the period of suspension they can getGovernment grant. The order of the learned Judge, which is extracted above, will have to be understood only in this context because the Court cannot create any right for any person nor extinguish any right if it is otherwise available under any law to any person. Therefore, when this Court in paragraph 4 of its order dated 28.8.2003 directed the payment of salary to the Headmaster by the School Management, it only reiterated the legal position that the Headmaster was liable to be reinstated in service in terms of Section 22(3)(b) of the Private Schools Act and since the School Management was resisting a physical requirement, their liability to pay the salary was made because what the Managementwas doing is contrary to the provisions of the Act and the Courtthought that monitory compensation can be a sufficient ground to deny physical restoration.

The second portion found in the order in paragraph 4 has to be understood that if the School Management ultimately becomes successful in the appeal and the removal was upheld by the appellate authority, it was merely stated that it is open to the School Management to recover whatever salary paid to the petitioner from out of the benefits that has been accrued for the services rendered to the School. It has to be seen only in the context of the legal liability of the Management to recover such amount. When under the Scheme of the Act, the maximum period of four months of suspension has been prescribed under Section 22(3)(b) of the Actand when a restraint on the School Management from terminating aTeacher without prior approval as per Section 22(1) of the Act has also been made, any salary paid to the teacher is pursuant to the Private Schools Act. 16. In the present case, admittedly, the approval was refused by the approving authority, viz., Chief Educational Officer, Cuddalore and only the appellate authority granted approval and finally with that approval, the Headmaster was dismissed by an order dated 13.3.2004 and the order of dismissal has been made by the Management only prospectively, i.e., with effect from 13.3.2004and, therefore, he is entitled for salary as if he is inemployment.