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Judgment
S.S. Subramani, J.—Petitioner in both these petitions is the same, though reliefs sought for are different.
Petitioner is the Headmaster of Swami Vivekananda Vidyalayam Higher Secondary School, Vairichettipalayam, Turaiyur Taluk, Trichy District. The School was founded by Late Shri S.R. Naga Reddiyar, father of the Petitioner. The same was registered under the Societies Registration Act. Father of the Petitioner, who was the Founder, styled himself as President of the School and he was in charge of the administration of the same. He was also the Secretary and he continued as the President of the Managing Committee. He was also acting as Secretary of the School Committee. Petitioner''s elder brother Rajasekaran was asked to manage the School from 1963 onwards on the request of the Founder, and also taking into consideration the provisions of the Bye-laws by which the School was established. Rajesekaran could not manage the School properly and he was asked to resign from the post of CorRespondent by Respondents 1 to 4 in W.P.7220 of 1998. Petitioner was appointed as B.T. Assistant, and finally he became the Headmaster of the School. When the elder brother of the Petitioner was asked to step down by the Respondents 1 to 4, his wife who is the fifth Respondent in W.P.7220 of 1998 was asked to act as CoRespondent, It is the case of the Petitioner that from the very date when the fifth Respondent assumed CorRespondentship, the condition of the School also deteriorated. But, due to the best efforts of the Petitioner, the School was getting good results. Fifth Respondent took absolute control of the Institution, and, after the death of Petitioner''s brother, she began to mismanage the same. The very purpose of the establishment of the School was to propagate the ideals of Swarai Vivekananda and also to impart good education to the children, But the same was given a goby, by the fifth Respondent, and there was complete mess in the affairs of the School, She roped in close relations as Members of the Committee. It is the case of the Petitioner that there is no proper School Committee and the Authorities have not recognised the fifth Respondent as Secretary or her relations as Members of the School Committee. So long as there is no recognised and proper School Committee, it cannot manage the affairs, and, as per the provisions of the Bylaws, there is a line of succession regarding management of the School. The Petitioner, after the death of his brother, informed the Authorities that the fifth Respondent and her associates are mismanaging the School and that they were collecting donations, etc., but they were not accounting for the same. Even representations to the Honourable Minister for Education were not taken into consideration seriously. Petitioner''s brother died on 16.6.1996, and the fifth Respondent constituted an illegal School Committee on 10.4.1997, for which the views of the Petitioner were not obtained, though as Headmaster of the School he is supposed to be Ex-Officio Member. Fifth Respondent constituted the illegal School Committee consisting of Members who would dance according to her tunes. Senior teachers had not been taken, and eeven in regard to non-teaching staff, the members who were selected were not eligible for being elected. The Agency has not elected the Secretary, In order to safeguard the Institution, Petitioner has already filed O.S.327 of 1997, on the file of District Munsifs Court, Turaiyur, for a declaration that he is the President of the Educational Agency and for a consequential injunction restraining Respondents 5 and 7 from interfering with the functioning and management of the School. In that suit, Petitioner has also sought for an interim order u/s 18A of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974), directing Respondents 2 and 3 to appoint a Special Officer to the School till the dispute with respect to the management of the School is finally settled. In that case, Respondents 2 and 3 who were Defendants 1 and 2 in that suit, admitted that there was no valid School Committee, and they also sought for appropriate direction for proper management of the School till the disputes are resolved. In spite of the fact that Defendants 1 and 2 have stated that there was no proper School Committee, and when there was admittedly a dispute regarding the management, Respondents 1 to 4 should have undated action for the appointment of a Special Officer, The same has to be done in the best interest of the Institution, protection of the teachers and for the education of the students. It is further submitted in the Writ Petition that even though the power of the Government to appoint a Special Officer is only a discretion, the discretion is coupled with a duty. When the Authorities themselves have found out that there was no proper management or that proper persons are not managing the affairs, a duty is cast on them to appoint a Special Officer. Section 53A(2) of the Tamil Nadu Private Schools (Regulation) Act gives necessary authority for such appointment.
In W.P. No. 8056 of 1998, Petitioner has challenged his suspension by the so-called School Committee, for the same reason, namely, that there is no proper School Committee empowered to take disciplinary action against the Headmaster. Apart from the same, the order of suspension is also challenged on the ground that the decision taken was on the basis of a Meeting in which this was not a subject matter included in the Agenda.
Counter-affidavit has been filed in W.M. Ps. in the respective cases by the Secretary of the Educational Institution, who is the 5th and 4th Respondent in the respective Writ Petitions. Learned Senior Counsel appearing for these Respondents submitted that the counter affidavits filed in the W.M. Ps. may be treated as counter-affidavit for the main Writ Petitions.
Regarding the contention that a Special Officer has to be appointed, the counter is mainly based on legal arguments, i.e., the suits now pending before the Civil Courts are not suits u/s 53-A of the Private Schools (Regulation) Act. It is said that so long as there is no suit u/s 53-A of the Act, the Government cannot invoke the powers for the appointment of a Special Officer. The allegation of mismanagement is also denied. But I do not find any answer in the counter-affidavit regarding the claim of the Petitioners in respect of bye laws of the Society. It is further said that the Petitioner himself has filed two suits as O.S. 155 of 1997 and O.S.327 of 1997 and both the suits are not suits coming u/s 53-A, and those suits themselves are incompetent. The Court has also no jurisdiction to try those suits.
It is further contended that after the suspension of the Petitioner by the School Committee, when the same was informed to the Authorities, a reply was communicated on 4.6.1998, asking the Secretary to revoke the suspension on the ground that it has no legs to stand. The same is challenged in another suit filed by the Secretary as O.S. 291 of 1998, on the file, of Sub Judge, Tiruchirappalli. In regard to the validity of the suspension order, it is said that the Petitioner had been mismanaging the institution and there had been many .allegations against him. The School Committee unanimously decided to take disciplinary action against him and to take a follow-up action and the power was given to the Secretary to implement the same. Pursuant to the Resolution passed by the School Committee, he was suspended and the Authorities under the Act are not entitled to interfere with the internal management of the School.
It is also said that the meeting was held after compliance of all provisions of law, and the same cannot be questioned in Writ proceedings. They prayed for dismissal of both the Writ Petitions.
Learned Counsel for Petitioner brought to my notice the Bye-laws of the Society under which the School was established. Petitioner is one of the Founder Members of the Society. As per the Bye-laws, the first president was the Founder himself, and his wife Kamalambal was the first Treasurer. It provided that the Headmaster for the time being will be the Secretary of the Society. It further provided that whenever the Office of the President falls vacant due to resignation or otherwise, the person nominated by the President, if any, shall succeed to the Office. In the event of no such nomination, the Executive Committee may choose any adult member especially from among the members of S.R. Naga Reddiar''s family, consisting of his sons and his descendants tracing their descent through males, and if no such member exists or if one such exists and he does not consent to act as President, then and until such a competent member comes into existence and is willing to act, an adult male member from among S.R. Naga Reddiar''s descendants tracing then-descent from him through a female or females. But that power is also restricted till a male is selected by the Executive Committee. It is an admitted case that on the basis of these bye-laws, the Management of the School has to take place. I do not want to go further into these bye-laws, for, one of the suits filed by Petitioner is to declare him as president of the Society, which is the Educational Agency. As I said earlier, in regard to the bye-laws, there is no answer in the counter affidavits in both the cases. So, in such cases, it cannot be said that the claim put forward by the Petitioner is without force. The present Secretary has also no case that after the death of the Founder, another President has been elected as per the provisions of the Bye-laws.
Regarding the School Committee also, Petitioner alleges that there is no proper elected School Committee as provided under the Private Schools (Regulation) Act. The School Committee, according to Section 15 read with Rule 12 of the Rules has to be elected every three years, though a member of the Committee shall be eligible for renomination. The School Committee shall consist of various categories of members. They are as follows:
(i) Representatives of the educational agency who shall be nominated by such educational agency: 6 numbers provided that the employees of the School shall not be nominated under this category.
(ii) Headmaster of the School (ex-officio) -1
(iii) Senior-most teachers of the School -3
(iv) Parent-Teacher Association nominee -1
(v) Senior-most Non-teaching staff (if available) -1
Regarding non-teaching staff, there is an Explanation and regarding seniority also, there is an Explanation. They are given as Explanations I and II. They read as follows:
Explanation Is-Non-teaching staff shall mean the ministerial staff belonging to Group C and above.
Explanation II: For purpose of this rule, the seniority shall be determined with reference to the total service rendered by teachers or Non-teaching staff as the case may be in any recognised School or Schools.
According to the Petitioner, the School Committee alleged to have been selected after the death of his brother, is not a properly selected School Committee, and he was also not heard on the same. Even though he is an ex-officio member, his views have not been asked for, and the so-called Secretary has selected some persons of her choice. It is also said that the Educational Authorities have not approved such a School Committee.
Respondents 1 and 2 who are Defendants 2 and 3 in the Civil Suit filed by the Petitioner have admitted in the written statement that there is any approved School Committee for the School in question. It is said that after the death of the father, the Department has never been informed about the constitution or change of constitution of the School Committee, and at any rate, the Department was not at all intimated about the new School Committee alleged to have been founded in 1997.
Petitioner contends that if the Government itself admits that there is no properly constituted School Committee which has to manage the affairs of the School, and when it also comes to the notice of the Government that there is an inter se dispute in the educational agency, it ought to have appointed a Special Officer. Learned Senior Counsel for Respondents submitted that the suit filed by the Petitioner is not u/s 53-A of the Act and, therefore, no Special Officer could be appointed. Which of the rival contentions is to be accepted, is to be decided in these Writ Petitions.
Before going into the rival submissions of learned Counsel for parties, it is better to extract Section 53-A of the Act, which reads thus:
53-A. Settlement of dispute as to educational agency, etc. - (1) Notwithstanding any thing contained in Section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private Schools, or as to the constitution of a School Committee, or as to the appointment of Secretary of the School Committee, arises such dispute may be referred by the persons interested or by the competent authority to the Civil Court having jurisdiction, for its decision.
(2) Pending the decisions of the Civil Court on a dispute referred to it under Sub-section (1), or the making of an interim arrangement by the Civil Court for the running of the Private School, the Government may nominate an officer to discharge the functions of the educational agency, the School Committee or the Secretary, as the case may be, in relation to the Private School concerned.
According to learned Senior Counsel, unless both parties admit that there is a dispute, there is no scope to invoke Section 53-A of the Act. One of the alleged claimants himself cannot invoke Section 53-A of the Act, and the suit ought to have been filed by persons interested (Emphasis), for resolving the dispute. Learned Counsel for Petitioner submitted that u/s 53, Civil Court''s jurisdiction itself is taken away, and this alone is an exception, and it requires strict interpretation. According to learned Counsel, all the persons interested in the educational agency has to move a Court to get opinion from that Court like an arbitration agreement. Learned Counsel further submitted that is why the Government has given power of reference to resolve the dispute, and the reference must be by a competent authority under the Act to the Civil Court having competent jurisdiction, for its decision. The argument is that all persons interested must join together and seek the view of the Court, or a competent authority must refer the matter to the Civil Court wherein all interested persons are made parties, and the inter se dispute could be resolved in such proceedings.
As against the said contention, learned Counsel for Petitioner submitted that even a claim put forward by one of the legal heirs of the Founder could be taken as a dispute for the purpose of Section 53-A of the Act, and if he proves & prima facie case, a Special Officer could be appointed under Sub-section (2) of that Section. It is also contended by learned Counsel that even though the word used therein is that the Government ''may'' nominate an Officer to discharge the functions of the Educational Agency, the discretion must correspond to the duty enjoined on the Government, taking into consideration the best interest of the Institution, the teachers and the students.
I find force in the contention of learned Counsel for Respondent that Section 53-A contemplates a case of submitting the dispute before a Court, i,e., all persons interested must submit to the jurisdiction of the Court, for its opinion. Order 36 of the CPC which deals with Special case provides for such contingencies. Taking into consideration the Scheme of the Act, it is clear that the jurisdiction of the Civil Court is completely ousted. Section 53-A itself was incorporated by an Amendment, and that is an exception to Section 53. Being an exception, it has to be given strict interpretation, and the words used as ''referred to by persons interested''. It is not the institution of a suit that is contemplated u/s 53-A. Likewise, if the persons interested do not refer the matter to Civil Court having jurisdiction, a competent authority is entitled to refer the matter to the Civil Court as in the case of an Inter-pleader suit under Order 35, CPC or like a Land Acquisition Reference and seek a decision of the Court,, as to which is the Educational Agency, and what are their inter se rights, etc. A person claiming himself to be an Educational Agency against another, cannot be said to be a Reference as contemplated u/s 53-A. But, even though this view I am taking, there are certain observations by a Division Bench of this Court which imply a different view. In fact, the scope of Section 53-A of the Act was not finally decided therein, but it is binding on me. That decision has been reported in 1994 1 L..W.506 (Karuppiah Pillai, A and 3 Ors. v. The District Educational Officer, Tenkasi and 5 Ors.). In that case, the only question that was raised was, what is the scope of the discretion to be exercised by the State Government. In fact, this point whether there should be a reference by all the persons interested together, was not decided in that case. But the decision was taken in a suit filed by one of the rival claimants, who had already filed a suit before the Civil Court. He moved for an interim order, but he was not successful. In that case, an argument was taken that if a dispute arises as to who is the Educational Agency, a duty is cast on the Government u/s 53-A of the Act to nominate an Officer to discharge the functions of an Educational Agency. A Writ Petition was filed" to compel the Government to appoint a Special Officer on the ground that it is only a discretion on the part of the Government to decide whether a Special Officer should be appointed or not. The same was challenged before the Division Bench. While considering the same, in paragraph 6 of the judgment, it was held thus:
We are now concerned with Sub-section (2) of Section 53-A. It is not disputed that there is a dispute relating to the Constitution of educational agency, pending before the Civil Court. As per Sub-section (2) of Section 53-A, the State Government is entitled to exercise the power and nominate an officer to discharge the functions of the educational agency, pending the decision of the Civil Court on a dispute referred to it under Sub-section (1) or making an interim order by the Civil Court for the running of a private School. Sub-section (1) enables a person interested in the educational institution to refer the dispute to a Civil Court having jurisdiction over the institution relating to the constitution of any educational agency or as to whether any person or body of persons is an educational agency in relation to any Private School or as to the constitution of a School Committee or as to the appointment of,Secretary of the School Committee. In the instant case, the dispute relates to constitution of educational agency in respect of which the suit has been filed. It is no doubt that the context in which the expression ''may'' in Sub-section (2) of Section 53-A of the Act, it is coupled with duty and it has to be exercised when there is a dispute relating to the matters touching the very administration of a Private School, which dispute, if allowed to continue would seriously affect the very teaching in the School and thereby the interest of the students will suffer and more so, when there is no likelihood of the Civil Court deciding the suit early or making an interim arrangement for running the Private School pending the suit, it becomes obligatory for the State Government to nominate an officer to discharge the functions of the educational agency, the School Committee and the Secretary as the case may be. It is to ensure that during the interregnum, viz., pending decision in the suit or making an arrangement by the Civil Court for running the School, the Legislature has thought it fit to empower the State Government to nominate an Officer to discharge the function of an educational agency, the School Committee or the Secretary as the case may be in relation to the Private School concerned pending decision of the Civil Court, when a dispute is referred to it or pending making an interim arrangement by the Civil Court for the running of the Private School. Of course, it may depend upon the facts and circumstances of each case whether the State Government should immediately exercise the power or to wait the decision of the Civil or the interim arrangement to be made by the Civil Court for running the School. If there is going to be an undue delay, it would cause damage to the educational institution affecting the teaching and thereby the interests of the students will be affected, the State Government should act and exercise the power and pass an order nominating an officer to discharge the functions of the educational agency. Of course nomination of such Officer would come to an end once the suit is decided or an interim arrangement is made by the Civil Court for running the School. In the instantt case, as there is already a suit filed and an application for interim arrangement is also filed by the Plaintiff therein, and as any order passed by the State Government nominating an officer to discharge the functions of the educational agency would be operative only pending the decision of the Civil Court on the dispute referred to it on making of an interim arrangement by the Civil Court for running the School and as the application filed in this regard in the suit can be directed to be decided within a short period, we consider it appropriate to direct the Civil Court to take up the application on file for making an interim arrangement by the Civil Court for running the Private School in question and decide the same within a month, instead of directing the Government to immediately take up the matter and nominate an officer to discharge the functions of the educational agency, as that order has to cease to operate, if ultimately the Civil Court were to make an interim arrangement for running the School.
In that paragraph, the Division Bench has said that Sub-section (1) enables ''a person interested in the educational institution to refer a dispute to a Civil Court. If I go by the said sentence alone, the views expressed may not be correct. But, as I said already, is it competent to file the suit u/s 53-A of the Act was not decided therein, and the correctness of the order of the learned Judge alone was in issue, and it was decided.
In M. Ayyasamy Vs. The District Educational Officer, (Elementary Education), District Education Officer and Another, , certain guidelines have been given, and also the circumstances under which a Special Officer could be appointed. The decision in Karuppiah Pillai''s case (supra) was distinguished on facts. It was held thus:
It may be seen from the above decision 1994 1 L.W. 506 (supra) that it is not merely the pendency of the suit that was responsible for the directions issued to have recourse to Section 53A of the Act, but the further fact that there was no dispute that there existed a dispute relating to the constitution of the Educational Agency pending before the Civil Court. It is not clear from the reported decision as to whether there was in that case also a duly elected and registered committee in accordance with law, as in this case. Under the Tamil Nadu Societies Registration Act, it is not the mere conduct of election or a claim or counter claim made of any election that gives person a right and status of the Committee but after such election, the necessary form has to be filed before the District Registrar duly furnishing the required materials and there upon, the District Registrar shall, if he is satisfied of the legality or the regularly of the claim made, register the Committee under the Act and issue a certificate thereof. All these have been done in this case and as a matter of fact after registration and the obtaining of the certificate of registration, the Appellant has moved the first Respondent and not only had the same duly approved, but also got the charge held by the second Respondent of the School handed over to him. When there had been a statutorily recognised and duly registered election and elected office bearers of Committee in accordance with law, merely because another person purports to challenge the same, before the competent authority, it does not have the effect of rendering the said committee which was duly registered under and in accordance with law, either nebulous or totally non-existent, unless the Civil Court has granted any prohibiting orders. If the mere challenge by one or a particular group to a factually existing Committee or the filing of a suit, without obtaining any further prohibiting orders of such Court in the said suit, however, vexatious or frivolous such challenge or the suit may be, is to be held sufficient in law to render the Committee extinct or treat it as wholly non-existent, it will lead to startling results and throwing overboard the legality and regularity to be attached to a properly recorded and registered proceedings by a Competent Authority under the Tamil Nadu Societies Registration Act. On a careful consideration of the peculiar facts and circumstances of the present case and the decision of the Division Bench, we are of the view that the said decision will have no application to the case on hand. Recourse to Section 53A(3) of the Act mechanically and invariably, as a matter of course, would have the consequence of depriving the legitimate rights of a duly elected Committee of its term or tenure of office since there is no scope for recoursing their term if ultimately the suit is dismissed. "That is why certain amount of discretion must be allowed to vest with the Government or the Competent Authorities exercising jurisdiction under the Act to act reasonably and with great care, caution and circumspection and on certain well-settled principles.
We are of the view that the following principles and norms, if applied, in invoking the powers u/s 53A(2) of the Act, may help to avoid arbitrariness:
(1) Wherever there is a properly and validly elected Educational Agency or School Committee duly registered and certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act and the Rules made thereunder, the same should be allowed to function and not stultified.
(2) Whenever any competent Court or Statutory Authority vested with such powers under the Act stays or suspends the operation of the proceedings recorded under the said Act by the grant of any order of stay or injunction, the fate of the Committee shall abide by such orders and the Authorities under the Act must give due weight and implement these orders.
(3) If there is no impediment in recognising or approving the elected Committee by any order "as noticed in (2) above, the Authorities exercising jurisdiction under the Act shall be at liberty to recognise and approve the same so as to enable the Committee to function effectively, subject to the result of any judgment/decree of any Court or the orders of any of the Statutory Authorities legally entitled to interfere with the said position.
(4) If the Authorities of the Educational Department themselves entertain any reasonable doubt about the legality and propriety of the claims made by anyone, it shall always be open to such authorities or members of the society to take action u/s 53-A(1) of the Act followed by separate action u/s 53-A(3) of the Act.
(5) If the Authorities of the Educational Department are satisfied with the claims made which are duly certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act, 1975, and the Rules made thereunder, such Authorities shall be at liberty to recognise or approve of the same under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and there is no necessity to have recourse to Section 53-A (2) of the Act and such recognition or approval shall, of course, be subject to the orders of any Court interim or final, or Competent Statutory Authority in exercise of its powers under the Statute.
(Emphasis supplied)
In this case, there is a dispute between the School Committee and the Members who are entitled to be the School Committee. Regarding the status of the persons, Petitioner claims as President of the Educational Agency being one of the male descendants of the Founder. Respondents 1 and 2 herein have admitted in the Civil Suit that there is no approved School Committee and they have not been informed about the appointment of the Secretary, etc. Under these circumstances, the further question that arises for consideration is, whether, on the basis of the Guidelines, a Special Officer could be appointed. If at all, the suit already filed can be construed as a suit filed u/s 53-A of the Act. According to me, even if this point has been settled by the Division Bench in Karuppiah Pillai''s case (supra), regarding the scope of Section 53-A of the Act, I do not think that there will be any difficulty in this case. In that view, I have to accept the contention of the Petitioner that he has already instituted a proceeding and there is a dispute regarding the constitution of the Educational Agency or that there is an inter se dispute over the right of management. Even if I am to accept the contention of learned Senior Counsel for Respondents, that does not prohibit this Court from giving necessary direction to compel the Respondents to make a Reference u/s 53-A if I find that in this case there is a bona fide dispute between the members of the educational Agency regarding the right of management including the Members of the Selection Committee. According to me, in this case, the educational authorities themselves have a reasonable doubt about the propriety of the claim made by the so-called School Committee. That is evident from the written statement filed by them in O.S. 327 of 1997, which is part of the typed set of papers. It is also seen from the written statement that the School Committee has not been approved, nor the so-called Secretary got the approval as such.
From the above circumstances, I feel that the following directions will meet the ends of justice:
I direct Respondents 1 to 3 in W.P. No. 7220 of 1998 to refer the dispute before the competent Court having jurisdiction where the School is situated, to resolve the dispute as to the constitution of the Educational Agency, i.e., persons who are entitled to be members of such Educational Agency and also as to the constitution of the School Committee including the appointment of Secretary for the same, and also decide the question whether the fifth Respondent herein is entitled to continue as Secretary taking into consideration the bye-laws of the Society. The Competent Authority of Respondents 1 to 3 shall refer such dispute to the Competent Civil Court within one month from to-day, and in case they fail to do so, I direct the District Munsif''s Court, Turaiyur, before whom O.S. 327 of 1997 is pending, to resolve the dispute. Apart from the relief sought for in that plaint, i.e., in O.S. 327 of 1997, the learned District Munsif, Turaiyur, shall also decide the question directed by this Court, taking into consideration Section 53-A of the Act. If necessary, the Petitioner may also seek necessary amendment of the plaint which he has already filed, taking into consideration the directions given above.
Sub-section (2) of Section 53-A of the Act enables the Government to appoint a Special Officer to discharge the functions of the Educational Agency, pending decision of the "Civil Court or making of an interim arrangement by the Civil Court. So, the Government can appoint a Special Officer even pending making of an interim arrangement by the Civil Court. Now that I have already held that there is a prima facie case and there is a dispute regarding Educational Agency and also about the constitution of the School Committee, a discretion will have to be exercised by the Government as to whether a Special Officer has to be appointed or not. As per Karuppiah Pillai''s case (supra), it becomes obligatory on the part of the State Government to nominate an Officer to discharge the functions of the Educational Agency. Even though the word used in Sub-section (2) of Section 53-A of the Act is ''may'', the same is coupled with a duty that has to be exercised when there is a dispute touching the administration of the Private School. Taking into consideration the decision in that case, viz. 1994-1-L.W. 506 (supra), I direct Respondents 1 to 4 to pass necessary orders as to whether a Special Officer has to be appointed till an interim arrangement is made by the Civil Court or pending decision by it either on the reference which I have directed to be made, or in the Civil Suit already pending before the District Munsif''s Court, Turaiyur. W.P. No. 7220 of 1998 is allowed as indicated above.
W.P. No. 8056 of 1998:
This Writ Petition is also to be disposed of in accordance with the final decision that has to be arrived at in the Civil Suit. The issue in this case is also regarding the Educational Agency, i.e., who is the Educational Agency. Unless and until the Respondent therein is declared as duly constituted educational agency and there is a Secretary for School Committee, the question of taking disciplinary action against the Petitioner may not arise. The constitution of an elected School Committee itself is in dispute, and until that is resolved, Respondents by themselves cannot take any disciplinary action. If a Special Officer is appointed by the Government, it is for him to decide as to whether proceedings will have to be initiated against the Petitioner or not.
Apart from the above reason, the order suspending the Petitioner is also not valid. It is true that the Petitioner was given a notice on 11.2.1998 asking him to explain his conduct, alleging five irregularities. Petitioner did not send a reply. Therefore, a reminder was sent on 26.3.1998. On 3.4.1998, Petitioner wrote a reply informing the School represented by its alleged Secretary, namely Prema, that she has no right to initiate disciplinary proceedings since there is no legally constituted School Committee. Thereafter, on 20.5.1998, a notice was issued informing that the School Committee Meeting shall be held on 1.6.1998, It is better to extract the entire proceedings. It reads as follows:
Kindly take notice that the School Committee Meeting shall be held on 01.06.98 in Room No. 8 at 5 P.M. to consider the following subjects:
To discuss about the suspension of Thiru V.P. Natarajan, Tamil Pandit, S.V.V.H.S.S.
To consider the reply letter of the Headmaster.
Continuation of School Development Committee.
To consider such other subjects necessary for the School.
The Headmaster is kindly requested to be present at the meeting on the said date.
The notice to the Petitioner was sent by Certificate of posting on the same date. Thereafter, on 1.6.1998, the following decision was taken. It reads thus:
In respect of the proceedings dated 11.2.98 Issued by the Secretary of the School, you did not send a reply for a long time and hence a reminder was issued to you on 26.3.98 and thereupon you submitted a defiant and evasive reply on 3.4.98.
The proceedings dated 11.2.98 and your reply dated 3.4.98 were duly considered by the School Committee Meeting held on 1.6.98.
In view of the grave allegations in the proceedings dated 11.2.98 and your evasive reply by you on 3.4.98 to the same were considered by the Management as facts warranting immediate disciplinary action against you.
So, the Secretary of the School was empowered by unanimous resolution to institute disciplinary action against you on the facts referred in the proceedings dated 11.2.98.
In view of the gravity of the case and also to maintain morale of the Institution, the School Management had empowered the Secretary to suspend you from the office of Headmaster, pending the finalisation of the disciplinary action against you.
In view of the decision of the School Management on 1.6.98, I, as the Secretary of the School, hereby do order suspension of you from the services as Headmaster of the S.V.V. Hr. Section School from 02.06.98 pending initiation of disciplinary proceedings against you.
(Sd. in Tamil) R. Prema, Secretary, S.V.V. Hr. Section School, Vairichettiapalayam, Trichy Dt.
Copy to: 1. The Chief Educational Officer, Trichy. 2. The District Educational Officer, Musiri.
The validity of the same is challenged in this Writ Petition.
One of the main grounds of attack is that in the Agenda, the only question that was to be taken up for discussion in the Meeting was ''to consider the reply letter of the Headmaster''. So, disciplinary action to be taken or suspension of Headmaster cannot be the subject matter of discussion in that Meeting. It is beyond the scope of the Meeting.
According to me, the said contention also deserves consideration in this case. In regard to the first item in the Agenda, namely, suspension of a teacher, it is a matter of separate discussion. The impugned Order has been passed against the Petitioner taking into consideration Subject No. 2 in the Agenda, i.e., to consider the reply of the Headmaster. In the reply, he has only said that there is no properly constituted School Committee and it has no jurisdiction to take disciplinary action. Under normal circumstances, that could have been the only question taken up for decision in that meeting.
In ''Shackleton on the Law and Practice of Meetings'' - 7th Edition (1983), in Chapter 6 at page 32, learned Author has said as to what are the essentials of a valid notice, he also says that the purpose for which notice is issued should be stated. Relevant portion at pages 32 and 33 of that book reads thus:
Essentials of a valid notice A valid notice must:
State the date, time and place of the meeting.
State with sufficient fullness the purpose of the meeting.
Give notice of any special business to be conducted at the meeting.
Comply with any statutory obligations as to form and content, and with the requirements of any other regulatory body, such as the Stock Exchange.
Be clear, honest, unambiguous and definite.
Be issued on good authority.
Be given in the prescribed manner (hand, post, advertisement or other means).
Allow the appropriate length of time between service and the date of meeting.
Be sent to every person entitled to receive it.
Comply in all respects with the regulations, rules or byelaws of the body issuing it", (page 32) "The purpose to be stated It is well established that a notice, to be valid, must clearly state the business to be transacted at the meeting and give all material information to enable it to be fully understood.
Examples of cases are as follows:
Following an incident, the name of a member of a club was removed from the list of members. The notice for the committee meeting, at which it had been decided to remove her name did not state the fact that there was an intention to expel her. This omission was deemed to be a defect in the notice.
In a scheme for variation of class rights attaching to "hares, the necessary resolutions were, in the first instance, passed by the requisite majority, but it was subsequently discovered that in the notice of the meeting, disclosure had not been made of the existence of an agreement which would affect the interests of the preference shareholders; for this reason the resolutions approving the scheme were held to be invalid.
A notice convened an Extraordinary Meeting, for the purpose of altering the articles of a company. The new articles contained, among other things, clauses confirming an agreement to pay a retiring Managing Director a pension, increasing the director''s remuneration, appointing three directors for life and extending the board''s borrowing limit. Held, that the notice was insufficient, because the nature of the alterations was not specified therein, and that as the meetings were irregularly convened the resolution were invalid. It made no difference that the new articles were available for inspection", (page 33) (Emphasis supplied) Learned Author, at pages 44 and 45, has said as to what is an ''Agenda'' and what all should be stated therein. Relevant portions of those pages read thus:
The function of the agenda is to disseminate information relating to the business to be discussed at the meeting. As we have seen, the notice of the meeting should state with sufficient fullness the purpose of the meeting. If, as is common, the agenda is sent with the notice, or forms part of the same document, then this requirement is observed.
Basically, an agenda can (and often does) consist of list of items, but preferably there will be included a brief note of guidance as to what precisely the meeting is intended to discuss and form decisions upon. If a formal resolution has been submitted for discussion, the full text should be given, and similarly where there will be legal consequences flowing from the passing of the resolution.
The standing order of the body concerned may prescribe what is to be included in the agenda; otherwise, the responsibility for determining the contents of the agenda will rest with the governing committee of the body sponsoring the meeting, or its Chairman. The Secretary frequently acts on his own initiative in preparing the agenda, with such consultation as is necessary to ensure that no item of business has been overlooked. If there is a dispute as to whether an item should be included in the agenda or not, the Secretary should err on the side of the inclusion, leaving the matter for the ultimate decision of the meeting itself. In order to preserve impartiality, the Secretary should, at the request of member, include any matter which can be regarded as the proper business of the meeting.
(Emphasis supplied)
It is usual to include in the agenda the item "Any other business" and matters of an informal or unimportant nature could be transacted under this heading. The chairman should not however permit a matter of major importance to be raised under this item unless it is urgent, Le., that action needs to be taken before the next meeting. He should be vigilant to ensure that those whose main interest lies in the passing of resolutions do not use "other business" to bounce a resolution through a meeting most of whose members may by then be ready to go home.
If this is the purpose of notice and Agenda, I do not think that the notice dated 20.5.1998 satisfies the legal requirements. Petitioner who is also a member of the School Committee as per the Act, is entitled to know beforehand that he is liable to be proceeded with so that he could explain his position if any action is contemplated. Notice and Agenda are intended as the basic requirements of natural justice. Petitioner, even though he has sent a reply that the so-called School Committee has no jurisdiction, is further entitled to inform the so-called Members that even if they have got jurisdiction, charges levelled against him are not sufficient to take disciplinary action against him. The opportunity is denied by lack of notice and not including the same in the Agenda. When the same is not included in the Agenda, his absence from the Meeting does not affect him. Even if the reply is not accepted as valid, and even if the School Committee ignores the same, no consequences follow on mere discussion of the reply notice. Consequences will follow only when Respondents think of initiating disciplinary proceedings. He is entitled to be heard before the same. To that extent, the notice dated 20.5.1998 is not valid. If that be so, it cannot be said that the order of suspension passed against the Petitioner is valid.
In view of my earlier finding that there is no duly constituted School Committee, there cannot be a declaration that the suspension is valid. That apart, when the same is not part of the Agenda, Petitioner cannot be suspended, since it violates the principles of natural justice. For that reason also, the order suspending the Petitioners as per the decision taken in the meeting held on 1.6.1998 is declared as invalids 26. Learned Counsel for Petitioner also brought to my notice the decision of Jayasimha Babu, J. in 1995 11 M.L.J. 488 (KM. Valliappan v. The Madras Seva Sadan Higher Secondary School), wherein learned Judge has held that an order of suspension can be passed only by a School Committee and not by the Secretary alone. The said decision was followed by E. Padmanabhan, J. in the decision reported in 1997 W.L.R. 489 (Ranganathan, C. v. The President Secretary of School Committee, etc. and Anr.). I agree with those findings. But I do not think that those decisions have any application to this case. In the Order communicating the suspension, it is said that the School Committee has taken the decision suspending the Petitioner and the Secretary has been directed to implement the same. On factual basis, I hold that the decisions of Jayasimha Babu, J. and Padmanabhan, J., referred to above, may not have any application to the facts of this case.
In the result, W.P. No. 7220 of 1998 is allowed with directions given in paragraphs 17 and 18 of this Order. No costs.
W.P. No. 8056 of 1998 is also allowed. The order suspending the Petitioner-Headmaster is quashed. Petitioner is entitled to discharge his duties as Headmaster of the School without any obstruction from any of the Respondents, and I restrain the Respondents from causing any impediment to the Petitioner discharging his duties as Headmaster. Some of the Respondents have filed O.S. No. 291 of 1998, on the file of Sub Court, Trichy, challenging the order of Chief Educational Officer (2nd Defendant therein) as invalid. Now that I have found that the suspension itself is invalid, I do not think that any purpose will be served in prosecuting that suit. Petitioner herein (Dr.N. Rangarajan) may produce a copy of this order before the Sub Judge, Trichy before whom O.S.291 of 1998 is pending. On such production of copy of this order, the Sub Judge will strike off that suit from the file. There will be no order as to costs in this Writ Petition also. The connected W.M. Ps. in both these Writ Petitions are closed.