Damodar Shukla vs Committee of Management Aditya Birla Public School and Others

Narayan Shukla, J.—Heard Mr. Santosh Kumar Mishra, learned Counsel for the Petitioner as well as Mr. Dhruv Mathur, learned Counsel for the Respondents.

The Petitioner has challenged the order dated 30th of March, 2010, issued by the President of the Indo Gulf Residents Society, whereby his services have been terminated. The grounds for termination are that he has been found indulging in meeting out corporal punishment to the students from time to time and despite warning he again beaten a student Vishal Sharma of Class VI-B on 19th of November, 2009.

The brief facts of the case are that the Petitioner was appointed on the post of T.G.T. (PE) on 1st of August, 2004 in Aditya Birla Public School, Jagdispur on certain terms and conditions laid down in the appointment order. The Petitioner was a confirmed teacher, therefore, he claims protection under condition No. 7 and 22 of the appointment order, which are reproduced hereunder:

As a confirmed teacher you will be required to give three months advance notice or salary in lieu of 2 before resigning the job. Similarly the Competent Authority/Principal may terminate your services by giving you an advance notice of three months or salary in lieu of without assigning any reason.

In case of any act or commission constituting misconduct of which President, Indo Gulf Residents Society/Principal shall be the sole judge, is alleged against you, you shall be placed under suspension pending enquiry and shall be paid subsistence allowance as admissible to you as per decision of Competent Authority.

In view of the above, the learned Counsel for the Petitioner further invited the attention of this Court towards the condition No. 25, which empowers him to keep control over the students and other employees of the Institution to behave in a rowdy or disorderly manner or commit or cause to commit any act subversive or related to indiscipline in the premises of the institution. It is also stated that time to time the Petitioner was issued certificates of honour for his commendable contribution for procuring an excellent result in Board Examination. It is further stated that whatever action he took against the students only just to control them from being undisciplined or to maintain the law and order in the premises of the Institution, without having any intention to punish them. He also denies from beating the students. It is further stated that before issuance of order of termination he has not been provided opportunity of hearing, therefore, the same is in violation of condition No. 7 and 22 of the appointment order.

On the other hand learned Counsel for the Respondents raised objection against the maintainability of the writ petition on the ground that the Respondent No. 2 is a private society, which runes the Aditya Birla Pubic School. Being purely private body, it cannot be said to be State or its instrumentality, therefore, it is not amenable to the writ jurisdiction by this Court. In support of his submission he cited a decision of Full Bench of this Court i.e. M.K. Gandhi and Ors. v. Director of Education (Secondary), U.P., Lucknow and Ors. reported in (2005) 3 UPLBEC 2187. Further it is stated that the Petitioner has been offered the salary of three months alongwith the order of termination as per terms and conditions of the appointment order, therefore, it cannot be said that there is any violation of condition No. 7 of the appointment order. Further an enquiry committee was appointed, which investigated the matter and recorded the statement of students as well as the witnesses, on the basis of which the order has been passed, therefore, there is No. error in the order impugned in the eye of law.

In reply to the question raised against the maintainability of the writ petition, the learned Counsel for the Petitioner further cited a decision of this Court passed in Special Appeal No. 1501 of 2007:Shreyaskar Tripathi v. State of U.P. and Ors. which has also considered the judgment rendered in M.K. Gandhi''s case (Supra), in which it has been held that a writ petition under Article 226 of the Constitution of India is maintainable against the State, and authorities exercising powers of the State, statutory body, and instrumentality or agency of the State, a company financed and owned by the State, private body run substantially on State funding, a private body discharging public duty or public obligations of public nature and person or a body under liability to discharge any function under any statute, to compel it to perform statutory functions, a writ of mandamus may also be issued to any person or authority performing public duty owing positive obligation to the affected party.

The School in question is affiliated with the Central Board of Secondary Education, which is said to be the State within the meaning of Article 12 of the Constitution of India, as has been held by the Full Bench of this Court in M.K. Gandhi''s case also. It is not in dispute that the Aditya Birla Public School is imparting education to the students, thus it is discharging the public duty, therefore, it is well amenable to the writ jurisdiction before this Court and thus the objection raised by the learned Counsel for the Respondents is hereby ruled out and the writ petition is entertained to decide on its merits.

So far as the commendable works of the Petitioner are concerned those are not denied by the Respondents, rather they claim that the Petitioner has been in habit of repeatedly to commit the lapses.

Through the counter affidavit the investigation report has been brought on record. The Investigation Officer recorded the statements of the Petitioner as well as Vishal Sharma and other students. Mr. Vishal Sharma stated that the Petitioner did beat on his back and he fell down. For few seconds he could not breath. Then the Petitioner massaged on his chest.

Upon perusal of the whole statement of the students, it appears that some incident took place for the teasing of the girl students, for which the students became out of control during the course of sports.

Mr. Vishal Sharma has reported for beating up by the Petitioner in presence of Shubham, but Shubham through his statement has not reported any such incident, rather it is stated by him that "the Petitioner has beaten Vishal, Amulya, Dilesh, Ashish. Vishal cried for silly reasons in the class all the times. The punishment was medium and was not very hard". In the presence of the monitor the punishment was given, which leads that only just to control the incidents, the Petitioner took some hard steps, but it cannot be said to be deliberate to punish any student without any reason. Therefore, the Petitioner, who is the Game Teacher, cannot be said to be at fault for his conduct of giving punishment to the students for their unwanted and uncontrolled activities.

Thus, as per investigation report the Petitioner''s action can be covered under condition No. 25 of the appointment order, for which he was empowered, therefore, in light of the investigation report, I am of the view that the Petitioner''s action does not attract any punishment for his conduct. The Petitioner is a game/sports teacher. He is always supposed to take some hard steps to control the students in order to keep the discipline in the premises. It is also pertinent to mention here that the disciplinary authority has formed its opinion to punish the Petitioner with termination order for the action which is not supported with the investigation report. Therefore, I am of the view that the order of punishment impugned dated 30th of March, 2010 (Annexure No. 1) is unsustainable and the same is hereby quashed.

The writ petition is allowed with the direction to the Respondents to reinstate the Petitioner in service forthwith alongwith all consequential benefits.