Sarvodaya Inter College and Another vs Ram Daulat

N.K. Mehrotra, J.—This is Second Civil Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.1.1982 passed by the Civil Judge, Bahraich in Civil Appeal No.186 of 1980 (Ram Daulat v. Sarvodaya Inter College and another) allowing the appeal and setting aside the judgment and decree dated 14.7.1980 passed by the III Additional Munsif, Bahraich in Regular Suit No.388 of 1979 (Ram Daulat v. Sarvodya Inter College and another).

I have heard Shri Z. Jilani, Advocate for the appellants and Shri R.P. Pandey, Advocate for the respondent.

The plaintiffrespondent filed a suit for declaration that the order dated 3.12.1979 passed by the defendant No.2 dismissing the plaintiffrespondent from the post of Class IV employee in Sarvodaya Inter College Mehinpurwa, District Bahraich is illegal and without jurisdiction. The suit was dismissed by the IIIrd Additional Munsif, Bahraich. The plaintiff filed first Civil Appeal before the District Judge, Bahraich which was heard and disposed of by the Civil Judge, Bahraich. The appeal was allowed setting aside the judgment and decree passed by the learned IIIrd Additional Munsif, Bahraich. The suit for declaration that the dismissal order dated 3.12.1979 is illegal, was decreed. It is against this order in first civil appeal; the instant Second Civil Appeal has been filed.

PLEADINGS OF THE PLAINTIFFRESPONDENT

The case of the plaintiffrespondent is that he was appointed on the post of ''Daftari'' in Class IVth category by the defendant No.1 on 1.12.1973 in Sarvodya Inter College, Mehinpurwa, District Bahraich for a period of one year on probation. He was confirmed on this post on 1.12.1974. Sarvodaya Inter College, Mehinpurwa, District Bahraich is a recognized aided institution and the Payment of Salaries Act is also applicable in case of the employees of this college. The defendants illegally, out of malice and without giving reasonable opportunity of hearing dismissed the plaintiff from service on 3.12.1979. The order dated 3.12.1979 is illegal, void and full of malafides.

PLEADINGS OF THE DEFENDANTAPPELLANTS

The plaintiff has no right to file the suit. The services of the plaintiff have been terminated in accordance with the rules and law as provided under U.P. Intermediate Education Act on the ground of mispleading and misconduct for which the defendants have every right. Under Section 16G read with Regulation 31 of the Regulations made under U.P. Intermediate Education Act, the plaintiff should file an appeal before the Committee of Management of the college and if, he remains aggrieved by the decision of the Committee of Management, he should move a representation before the District Inspector of Schools but the plaintiff has not opted these remedies. Therefore, the suit of the plaintiff is barred under Section 41 of Specific Relief Act. The defendants also denied the allegations with regard to the malafides. The defendants also challenged the jurisdiction of the Civil Court. It was also alleged by the defendants that they cannot be compelled to take the services of the plaintiff by passing the decree by the Civil Court.

Following issues have been framed by the learned trial court:

(1) Whether the order dated 3.12.1979 of defendant No.2 is against law, void and with malafide intention?

(2) Whether the suit is barred by Section 41 of Specific Relief Act?

(3) Whether the suit is barred by time?

(4) Whether the court has no jurisdiction to try the suit?

(5) Whether the suit is undervalued and court fee paid is insufficient?

(6) To what relief if, any?

The first two issues were material issues and the rest of the issues were general legal pleas.

FINDING OF THE TRIAL COURT

On Issue No.(1) the trial court held that the dismissal order dated 3.12.1979 is according to the Rules and law and without any malafide. Issue No. (2) was decided against the plaintiff. On Issue No.(2) the trial court held that since it is not a suit for injunction, therefore, the suit is not barred under Section 41 of Specific Relief Act. After recording findings on Issue No.(1) the suit of the plaintiff was dismissed by the trial court.

FINDING OF THE FIRST APPELLATE COURT

The Enquiry Officer has not given full opportunity of hearing to the plaintiff during enquiry. The plaintiff was ill and the leave application of the plaintiff was wrongly refused out of malice. It is established from the statement of the defendants that the impugned order is full of malafides. The services of the plaintiff cannot be terminated only on the ground of taking leave on false ground. The principle of natural justice has been violated in conducting the enquiry. The defendants have no right to terminate the services of the plaintiff without any reason.

The following substantial questions of law have been formulated by the appellants in second appeal:

�I. Whether the defendants had no legal right to suspend the plaintiff and to give him show cause notice?

II. Whether the inference of bias, prejudice and malice could be drawn merely from the complaint allegedly sent to the higher authorities?

III. Whether the inference of bias and malice, which is based on, no evidence, was in any way justified and legal?

IV. Whether the Civil Court had jurisdiction to decide about the legality or illegality of the refusal to sanction the leave?

V. Whether the findings recorded by the court below are perverse and illegal and liable to be set aside?

VI. Whether the plaintiff''s suit could be decreed merely on the solitary testimony of the plaintiff?

Section 100 of the Code of Civil Procedure provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

MEANING OF PHRASE ''SUBSTANTIAL QUESTION OF LAW''

In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, a Constitutional Bench of the Supreme Court interpreted the phrase ''substantial question of law'' as follows:

�The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether, it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.�

In view of the interpretation of the phrase �substantial question of law� given by the Apex Court, the substantial question of law mentioned in the memo of appeal cannot be taken to be a substantial question of law.

SUBSTANTIAL QUESTION OF LAW FOR DECIDING THE SECOND APPEAL

Whether the dismissal order dated 3.12.1979 is illegal and void being not in accordance with the provisions of U.P. Intermediate Education Act and Regulations made thereunder?

Admittedly, the defendantappellant No.1 is a recognized aided institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter to be referred as ''Act'') and the Regulations made thereunder. Section 16G of the aforesaid Act provides the conditions of service of the Head of the institution, teachers and other employees. The provisions of Section 16G are as follows:

�16G. [Conditions of service of Head of Institutions, teachers and other employees]: (1) Every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is inconsistent with the provisions of this Act or with the Regulations shall be void.

(2) Without prejudice to the generality of the powers conferred by subsection (1), the Regulations may provide for:

(a) The period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment, (including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude) and the emoluments for the period of suspension and termination of service with notice;

(b) The scales of pay, and payment of salaries;

(c) Transfer of service from one recognized institution to another;

(d) Grant of leave and Provident Fund and other benefits, and

(e) Maintenance of record of work and service.

(3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations.

(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management:

Provided that in the cases of punishment, before passing orders, the Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.

(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In case the order under appeal was passed by the very person holding the office of Regional Deputy Director, while acting as Inspector the appeal shall be transferred by order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself.

(d) All appeals preferred under clause (c) as it stood before the date of commencement of the Intermediate Education (Sanshodhan) Adhiniyam, 1966, and appending decision immediately before the said date shall be decided by the Regional Deputy Director, Education, in accordance with clause (c) as substituted by the said Adhiniyam.

(4) An order made or decision given by the competent authority under subsection (3) shall not be questioned in any Court and the parties concerned shall be bound to execute the directions contained in the order or decision within the period that may be specified therein.

(5) No Head of Institution or teacher shall be suspended by the Management, unless in the opinion of the Management;

(a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank; or

(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him; or

(c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial.

(6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as may be prescribed and be accompanied by all relevant documents.

(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of the ''Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court.

(8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institution or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management to make representation revoke an order of suspension passed under this section.

(9) All appeals pending before the Deputy Director of Education (Women) immediately before the commencement of this subsection shall be transferred to the Joint Director of Education (Women) for disposal;

Provided that where the Deputy Director of Education (Women) has already commenced the hearing of any such appeal before the commencement of this subsection, the appeal shall be disposed of by the Deputy Director of Education (Women) herself.�

Chapter III of the Regulation made under U.P. Intermediate Education Act, 1921 provides the conditions of service of Head of Institutions, teachers and ministerial and inferior servants. Regulations 31 to 37 which relate to punishment, enquiry and suspension are as follow:

At the time of hearing of the arguments, the learned counsel for the defendantappellants has argued that for dismissal of a Class IV employee in a recognized aided institution, the approval of the District Inspector of Schools is not required and in this case no such approval was taken for dismissal of the plaintiffrespondent:

I do not agree with the arguments advanced by the learned counsel for the defendantappellants because after interpreting the aforesaid provisions, this Court has conclusively held that the approval of the District Inspector of Schools for dismissal of a Class IV employee of a recognized aided institution where the provisions of U.P. Intermediate Act apply, is essentially required.

In Daya Shankar Tewari v. Principal, R.D.B.M. Uchchatar Madhyamik Vidyalaya, Neogaon, Mirzapur and others, (1998) 2 UPLBEC 1101, it has been held that in the case of Class IV employee the prior approval of the Inspector or Regional Inspector is required. The relevant findings of the Hon''ble Single Judge of this Court in the aforesaid case are as follows:

�Subsection (3) of Section 16G of the U.P. Intermediate Education Act, 1921 clearly provides for approval of Inspector in case of discharge, removal, dismissal from service, reduction in rank diminution in emoluments and termination of service but this provision only makes reference of Principal, Headmaster and teachers and no categorical reference of ClassIV employee has been made therein. But subsection (1) of Section 16G provides that the condition of service of every person employed in a recognized institution shall be governed by Regulations. Therefore, Statute permits framing of Regulations providing conditions of service of every person employed and therefore, this includes ClassIV employees also. Regulation 31 of ChapterIII of the Regulations so framed under the U.P. Intermediate Education Act, 1921, provides for prior approval in case of certain punishments including termination. Regulation 100 of the said Regulations though does not categorically make Regulation 31 applicable in case of classIV employees but it also does not categorically exclude Regulation 31 from its applicability to ClassIV employees. Therefore, the only provision of Regulation 31 indicates its scope of applicability. It is true that first paragraph of Regulation 31 while providing for prior approval in case of some punishment, does not refer to ClassIV employees specially but the said first paragraph providing for prior approval refers to all employees and there is no reason to presume exclusion of ClassIV employees from the applicability of the said Regulation. The subsequent paragraphs in Regulation 31 clearly refer to ClassIV employees.

This Court is, therefore, of the opinion that the provision of Regulation 31 read with Section 16G (1) of the Act makes it clear that in case of ClassIV employees prior approval of Inspector or Regional Inspector is required.

A perusal of Regulations 36 and 37 of the said Regulations indicate that they provide for procedure in respect of disciplinary proceeding. Provisos to Regulation 37 only excludes ClassIV employees to the extent the said Regulation 37 requires sending of the report and the recommendation to the District Inspector of Schools for approval making it clear that the said entire proceedings relating to ClassIV employees are to be performed by the appointing authority. This has been done as in respect of ClassIV employees the appointing authority is the Principal whereas in respect of teachers the appointing authority is Committee of Management and Regulation 37 provides for sending of report and recommendation of the Enquiry Officer to Committee of Management which was to consider the same and take a decision and then to send the entire record to the Inspector for his approval. Therefore, proviso of Regulation 37 was required making it clear that for ClassIV employees ending of papers to the Inspector was to be made by the Principal, being the appointing authority and in this case papers were not to be sent by the Committee of Management which is not the appointing authority.�

Subsequently, a Division Bench of this Court in Principal, Rastriya Inter College, Bali Nichlaul, District Maharajganj and another v. District Inspector of Schools, Maharajganj and others, (2000) 1 UPLBEC 707 approved the judgment in Daya Shankar Tewari v. Principal, R.D.B.M. Uchchatar Madhyamik Vidyalaya, Neogaon, Mirzapur and others (supra) and held as follows:

�We are in respectful agreement with the aforesaid decision of the learned Single Judge in Daya Shanker Tewari''s case. The decision of the Full Bench of this Court in Magadh Ram Yadav v. Dy. Director of Education and others, 1979 ALJ 1351, which is relied upon by the learned Counsel for the appellant is in our opinion not applicable as it has not considered Regulations 31 and 100 of the U.P. Intermediate Education Regulation.�

Besides the aforesaid two decisions in Raj Kumar Sharma v. Joint Director of Education (Girls), Directorate of Education U.P. Allahabad and others, (1993) 2 UPLBEC 1402 and Committee of Management, Dr. Sudama Prasad Bal Vidya Mandir Kanya Inter College v. District Inspector of Schools, 2002 ALJ 155, the same view was taken by this Court that prior approval of the District Inspector of Schools for dismissal of a Class IV employee of a recognized aided institution is required under the provisions of U.P. Intermediate Education Act and the Regulations made thereunder.

In view of the above, it is settled that if, the prior approval for dismissal of a Class IV employee in a recognized aided educational institution is not taken the dismissal order cannot be said to be in accordance with the provisions of U.P. Intermediate Education Act and the Regulations made thereunder. Admittedly, in this case, the approval of the District Inspector of Schools for dismissal of the plaintiffrespondent has not been taken. A perusal of the pleadings of the plaintiff before the trial court goes to show that no specific ground of not taking approval of the District Inspector of Schools has been taken in the plaint and there is no averments in the written statement that any such approval was taken but the dismissal order has been challenged on the ground that it is illegal and void and not in accordance with the provisions of the law and Rules. I have taken into consideration this ground after giving opportunity to both the learned counsel for the parties to argue on this aspect of the matter. In Ram Kristo Mandal and another v. Dhankisto Mandal, AIR 1969 SC 204, it has been held by the Supreme Court that a point of pure law apparent on the face of record and involving no further development by the averments may be taken in second appeal even though it has not been raised during the course of the first appeal.

A point of law not depending upon the examination of the evidence and not requiring fresh investigation of the facts may be taken for the first time in second appeal. I am of the view that plea of the law which goes to the root of the case can be taken up even for the first time in second appeal.

The learned counsel for the defendantappellants has argued that there is alternative remedy by way of appeal before the Committee of Management and representation before the District Inspector of Schools under the Regulations referred to above and therefore, the Civil Court should have dismissed the suit of the plaintiff. I do not agree with this contention of the defendantappellants. In Principal, Swami Rama Nand Mahavidyalaya Inter College v. Smt. Leelawati and others, 1980 (6) ALR 532, it has been held by this Court that if, the suit is based on breach of mandatory provisions of the U.P. Intermediate Education Act, the Civil Court has jurisdiction to issue declaration that the services of the plaintiff still continues.

The learned counsel for the defendantappellants has further argued that the rights and obligations of an employee of a private institution are governed by the terms and contract entered into between the parties and a contract of personal service cannot ordinarily be specifically enforced and a court would not give a declaration that contract subsists. It has been argued that if, the dismissal is wrongful, a decree for damages can be awarded and not an order of reinstatement. In support of his arguments, the learned counsel for the defendantappellants has placed reliance on two decisions of the Apex Court in Smt. J. Tiwari v. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, AIR 1976 SC 888.

In the instant case the suit was filed not for the specific performance of the personal service contract. The plaintiffrespondent had sought a relief by way of declaration that the order dated 3.12.1979 is illegal, void, full of malice and he is entitled to his salary, allowances alongwith other perks of the post and for a decree of payment of salary during the pendency of the suit and for future also. The learned first appellate court has not directed the reinstatement by specifically enforcing the contract of personal service. The learned first appellate court has granted the decree in terms of the reliefs claimed.

In view of the aforesaid decision of the Supreme Court, the relief of declaration under the provisions of the Specific Reliefs Act being purely discretionary, it can be granted in view of the fact that the termination order dated 3.12.1979 is illegal and in violation of the statutory Regulations framed under the U.P. Intermediate Education Act.

In view of the above the second appeal against the decree of declaration that the impugned order dated 3.12.1979 being illegal and consequential relief of entitlement of salary is dismissed but it is partly allowed against the decree, which amounts to specific enforcement of the service contract. Both the parties shall bear their own costs.

(Appeal allowed partly)