P.D. Cruz vs St. Dominics Anglo Indian Girls High School

Maheswaran, J.—The plaintiff is the appellant. The suit out of which this second appeal arises was filed by her for a declaration that her

dismissal from service by the respondent is arbitrary, illegal and void and for a mandatory injunction directing the respondent to reinstate the

plaintiff-appellant into service. The plaintiff was employed in St. Dominics Anglo Indian Girls High School run by the defendant. She was having

indifferent health and often had to apply for leave and on this account there was estrangement of feelings between her and the Headmistress of the

institution who made some untenable charges against her and appointed one Sr. Hyachintha of St. Helens Girls High School as Enquiry Officer.

According to the plaint averments, the said enquiry officer conducted the enquiry, but no opportunity was given to the plaintiff to cross-examine the

witnesses and on the basis of that report, the services of the plaintiff were terminated on 27th April, 1978. According to the plaintiff, the

disciplinary proceedings were vitiated for want of jurisdiction and is against law and principles of natural justice. It is in these circumstances that she

filed the suit for the reliefs stated above. The suit was resisted by the respondent-school on the ground that the order of dismissal is correct as the

enquiry was conducted in accordance with the principles of natural justice. The defendant denied the allegation that no opportunity was given to the

plaintiff for cross-examining the witnesses.

The trial Judge held that the defendant-respondent has contravened the provisions of 11 of Art. 68-A of the Code of Regulations for Anglo-

Indian Schools (hereinafter referred to as the Regulations) and decreed the suit as prayed for. In appeal, the learned appellate Judge reversed that

finding and stated that the provisions of Art. 68-A are not attracted and that Art. 119 of the Regulations alone will apply and in the end, allowed

the appeal and dismissed the suit. The plaintiff has filed this second appeal.

While admitting the second appeal, a learned Judge of this Court has formulated the following substantial question of law:-

Whether the lower appellate Court erred in law with reference to interpretation of Art. 68-A of the Code of Regulations for Anglo-Indian

Schools? and

Whether the lower appellate Court omitted to take note of the fact that there was lack of opportunity to the appellant to cross-examine the

witnesses during the course of enquiry?

Dealing with the second question of law first, I must at once point out that the allegation that the appellant was not given an opportunity to cross-

examine witnesses during enquiry is not well-founded, for in the proceedings of the Enquiry Officer marked as Ex. B3 , it is found that the plaintiff

was given enough opportunity to cross-examine the witnesses examined by the Enquiry Officer. The Enquiry Officer, it is seen, has directed the

plaintiff to cross-examine the witnesses and in fact the plaintiff has cross-examined them also. Opportunity was given to the plaintiff to examine her

own witnesses also. To say that no opportunity was given to the plaintiff to cross-examine the witnesses, is not correct. The learned appellate

Judge has dealt with this question and it is wrong to say that the appellate Court has not taken note of this question. That disposes of the second

point of law.

The first point of law requires consideration. It is admitted that the services of the plaintiff are governed by a contract between the plaintiff and

the defendant, evidenced by Ex. B2 . Execution of Ex. B2 is also admitted. The trial Court relying on Art. 68-A of the Regulations was of the view

that there is a violation of the Regulations as neither the Inspector of Anglo-Indian Schools or any Officer deputed for that purpose, has enquired

into the charges framed against the plaintiff. Art. 68-A of the Regulation runs thus:

If the Headmaster or any other teacher of a school is found to be negligent in the discharge of his duties or is found to have committed any

irregularity, the Director shall, after due enquiry declare him unfit to be a Headmaster or a teacher for a specified period or permanently as the

circumstances of the case warrant.

Such declaration shall not be made until the teacher or Headmaster has been informed in writing of the charges against him and full enquiry has

been made either by the Inspector of Anglo-Indian Schools or any other officer deputed by the Director for the purpose, provided that this

procedure need not be followed in cases where the teacher or Headmaster has been convicted by a competent Court....

A careful reading of Art. 68-A would show that it would be attracted in the case of any Headmaster or any teacher being found negligent in the

discharge of his duties or found to have committed any irregularity. In such cases, the Director shall after due enquiry, declare the Headmaster or

the teacher unfit to be a Headmaster or teacher for a specified period or permanently as the circumstances of the case warrant. It is only when

such a declaration is to be made that Art. 68-A is to be resorted to. But this case appears to be one covered by Art. 119 of the Regulation which

runs thus:

In recognised schools every paid teacher shall be engaged under a written agreement with the management terminable on either side with three

months'' notice or three months'' salary In lieu of. The agreement shall be in the form prescribed in Appendix 48.

(Proviso omitted)

Now, a reading of Cl. 7(ii) of Appendix 48 would show that the school authorities shall have the power to terminate the services of a teacher when

he a becomes a permanent member of the staff (a) without notice for any or for all of the following reasons:

Wilful neglect of duty; serious misconduct; gross insubordination; mental unfitness; suspension or cancellation of teachers certificate by the Director

of Public Instruction under Code of Regulations for Anglo-Indian Schools, and

(b) With three months'' notice or there months'' salary in lieu thereof for the following reasons:

Incompetence, retrenchment, physical unfitness or any other good cause.

(Provise omitted)

A reading of both Arts. 119 and 68 A together would show that the provisions of Art. 68-A would be attracted only in the case where a

declaration has to be made that a Headmaster or a teacher is unfit to be a Headmaster or a teacher and the Headmaster or teacher is found to be

negligent in the discharge of duties, or found to have committed any irregularity. In this case, a reading of Ex. B2 will show that the wording in Cl.7

of Appendix 48 has been extracted and the plaintiff has signed in Ex. B2. Therefore, the lower appellate Court was right in coming to the

conclusion that Art. 119 of the Regulations alone applied and not Art. 68-A. It is contended by the learned counsel for the respondent that a suit

for declaration would not lie. This is a case where the services of the plaintiff under the management of the defendant-school is governed by the

contract, Ex. B2 . In such circumstances, only a suit for damages would lie. In my opinion, the relief as sought for by the plaintiff including the relief

of mandatory injunction to reinstate her into service, indirectly amounts to specific performance of contract for personal service. Such a declaration

is not permissible under the law of specific reliefs. But, in the case of a servant of the State or local authorities or statutory bodies, Courts have

declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the

provisions of the statute. But dismissal of what is described as pure contract of master and servant is not declared to be a nullity, however,

wrongful or illegal it may be. For the foregoing reasons, this second appeal is dismissed, but in the circumstances without costs.