Mrs. A. Shanmuga Devi vs Nirmal High School, The District Educational Officer North Madras, Thana Street, Purasawalkam, Madras-7 and The Chief Educational Officer, Chief Education Office, Saidapet, Madras-15

Raju, J.—The above writ petition has been filed for a writ of Certiorarified Mandamus to call for the records of all the proceedings of the 1st

respondent in Reference No. 10/89 dated 25-10-1989 and to quash the same and direct the 1st respondent to reinstate the petitioner as

Headmistress of Nirmal Primary School, Ayanavaram, Madras as per the order of the District Educational Officer dated 27-3-1989. The

petitioner, in the affidavit filed in support of the writ petition claims that she joined the service as a Secondary Grade Teacher in the year 1958 in

Davapriyam Henry Memorial Middle School and that she was later promoted as Head mistress on 1-4-1971 in the said school. The petitioner

would claim that the school in question was transferred in the year 1983 to the present management and thereafter the name was changed as

Nirmal Middle School. The school is receiving aid from the Government and is an aided institution, The petitioner would claim that the school in

question is not a minority institution, but due to certain civil proceedings, pending orders of the Civil Court, resulting in interim orders of injunction

pending final adjudication, some of the provisions of the Tamilnadu Private Schools (Regulation) Act, 1973 held not applicable to the minority

institutions, have been restrained from being implemented in respect of the 1st respondent-institution,

As against the claim of the petitioner, the Management would contend that it is a minority institution. Be that as it may, since the matter is

pending in a second appeal before this Court for declaration, I am not expressing any view on the competing claims of parties in this proceeding.

But, it is to be also noticed that as represented by the Learned Counsel for the 1st respondent-Management, the management had the benefit of

interim orders of this Court in their favour on this aspect.

The petitioner further claims that on receipt of a notice dated 3-3-1989 from the Management stating that consequent on the upgradation of the

1st respondent-School as High school, the petitioner cannot continue as Headmistress, she moved the higher Authorities of the Education

Department and infuriated on account of such action, the petitioner has been issued with a charge memo dated 10-3-1989, containing certain

charges. The petitioner claims to have submitted a reply on 4-4-1939, denying the charges. An Enquiry Officer appears to have been appointed

and the petitioner appears to have sought for the change of the Enquiry Officer. It also appears that on the representations of the petitioner, The

District Educational Officer passed orders u/s 22 (3) (b) of the Tamilnadu Recognised Private Schools (Regulation) Act of 1973 (hereinafter

referred to as ''the Act''), directing reinstatement of the petitioner as Headmistress of the Primary School and that without obeying the orders dated

25-7-198) passed by the District Educational Officer, the enquiry was pursued. Once again it appears that on 1-9-1989, the petitioner made a

representation that before proceeding with the enquiry, the petitioner should be reinstated as directed by the District Educational Officer, since the

petitioner cannot be kept under suspension beyond two months'' period. According to the petitioner, the Enquiry Officer premised to consider the

above representation after calling for remarks from the Correspondent of the school and, therefore, the petitioner had to leave the place bona fide

thinking that she would get intimation from the Enquiry Officer about the further date of enquiry. Bat unfortunately, to her shock she received only

the impugned order dated 25-10-1989 from the Manager and Correspondent of the school to the effect that she has been imposed with the

punishment of reduction in rank and she should work as Secondary Grade Assistant Teacher in the Nirmal High School. The order also enclosed a

report dated 10-10-1939 of the Enquiry Officer and that it is found from the said report that the enquiry has been conducted ex parte on 1-9-

1989 itself behind the back of the petitioner.

Both in the affidavit filed in support of the writ petition as well as at the time of hearing it has been contended for the petitioner that the ex parte

enquiry was wholly unjustified and that the impugned proceedings are violative of principles of all justice ,fair play and natural justice. It is also

contended that the charges are invented and have no basis and the charges were manipulated to achieve the object of the management expressed

in the communication dated 3-3-1989. In substance, the entire challenge is against the irregular method of conduct of the enquiry behind the back

of the petitioner and the irregular procedure adopted in passing the impugned order.

The 1st respondent has filed a counter affidavit, contending that in as much as the Education Department his granted permission to upgrade the

school with 1st standard to 10th standard and since the school is a minority school, the petitioner cannot have the relief of reinstatement as

Headmistress. While contending that the 1st respondent-Management has already informed the Departmental authorities that in view of the interim

orders of Court, provisions contained in Sections 22 to 26 of the act are not applicable and that, therefore, the direction to reinstate cannot be

enforced against the management. On the merits of the charges and legality and propriety of the impugned order, it is contended that the petitioner

only left the enquiry and abandoned the same as noticed by the Enquiry Officer in his report, that the charges made against the petitioner are very

grave and serious and the impugned order came to be passed only after proper enquiry and on valid findings rendered by the Enquiry Officer, It is

also contended for the 1st respondent-Management that the procedure adopted in the matter of conduct of the enquiry and the consequent

proceedings passed on the basis of the report of the Enquiry Officer, is quite in accordance with law and, therefore, not vitiated by any of the

infirmities alleged, or on account of the alleged violation of principles of natural justice or fair play and justice,

I have carefully considered the submissions of the Learned Counsel appearing on either side. In my view, the grievance of the petitioner about

me mode and method of conduct of enquiry is welt justified. The failure on the part of the Enquiry Officer to issue notice to confirm the position as

claimed by the 1st respondent-Management that the petitioner left the place of enquiry and abandoned it, undermines the credibility of the claim

itself. On the other hand, the claim made for the petitioner appears to be more plausible and reasonable too, in that, in view of the objection raised

in writing regarding the competency of the enquiry to he proceeded with before reinstatement, the Enquiry Officer only assured the petitioner to

communicate after getting the view of the Management, the further date of the enquiry. The conduct of enquiry on 1-9-1989 in the absence of the

petitioner in my view is a serious error and irregularity, which vitiated the very enquiry and that the findings rendered or materials gathered behind

the back of the petitioner in the ex parte enquiry cannot be sustained and in my view, they are violative of the principles of natural justice. Even that

apart, the impugned order does not also disclose proper application of mind based on the so called findings rendered and the general and casual

manner in which the impugned order his been prepared and sent to the petitioner, which involves serious consequences, affecting the career of the

petitioner can be hardly justified to be one in conformity with the requirements of law. On this ground alone, the impugned order is liable to be set

aside and the same is hereby quashed. So far as the consequential remedy to be allowed as claimed by the petitioner is concerned, the 1st

respondent-Management would contend, that in the light of the changed circumstances on account of the up-gradation of the school into a High

School and orders passed by the 1st respondent-management on 3-3-1989 as well as due to the inapplicability of Sections 22 to 26 of the Act,

the claim regarding reinstatement as Headmistress cannot be countenanced. Since I am quashing the impugned order on the ground of irregularity

and defective enquiry the right of the respondent-1st Management to proceed further by conducting a proper enquiry into the charges, cannot be

denied. Likewise, the claim regarding the reinstatement as Headmistress requires to be considered in the light of the rights claimed by the

Management and the changed circumstances on account of the upgradation of the erstwhile school into a High School. Though the petitioner has

not challenged separately, the proceedings dated 3-3-1989, it might have been apparently due to the directions of the 2nd respondent as well as

on account of the supervening disciplinary proceedings, culminating in the impugned order, which has since bean quashed in this proceeding. In the

light of the above circumstances. I consider it to be more appropriate to leave these matters open to both the parties to work out their remedies in

accordance with law and the order passed in this proceedings shall not be construed to mean any expression of opinion on any such controversies.

While quashing the impugned order, the parties are left with the liberty to vindicate their rights in the manner reserved for them as above.

Accordingly the writ petition shall stand partly allowed. No costs.