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Judgment
S.M. Abdul Wahab, J.—W.P. No. 8109 of 1987 has been filed by the original petitioner for quashing the order of the respondents dated
27.7.1987 terminating his services as a physical director from the third respondent school.
The case of the petitioner is that after obtaining a diploma in physical education, he joined the third respondent school in 1959. Even though he
possessed B.A. Degree, he joined the physical education diploma course. In 1961 he was appointed as Physical Director. His appointment was
confirmed in that year. His salary was in the scale of B.T. Assistant, which is payable to the post of Physical Director, periodical increment also
given. He reached the maximum in that scale in October, 1978. In 1978, the third respondent school became a Higher Secondary School. Even
though he was eligible to be given selection grade in 1978, he was given selection grade only in 1983 by the proceedings of the Director dated
15.3.1983. The order dated 15.3.1983 was not fully in his favour, he represented to the first respondent for reconsideration of the order passed
by the second respondent, while so, during 1986 the petitioner interfered on behalf of a teacher in the school as a senior member of the school staff
and office bearer of the association. The correspondent of the school became inimical. On 25.1.1986 he issued a charge. On 2.12.1986 an
explanation was submitted. A letter dated 7.6.1986 informed him to appear for an enquiry. Thereupon the petitioner filed O.S. No. 427 of 1986
before the Second Additional Sub-Court, Tiruchirapalli. In L.A. No. 596 of 1986 injunction was granted on 22.9.1986 not to proceed with the
enquiry. During March, 1987 he met with an accident and sustained discslip in his spinal cord. On 17.7.1987 the appeal preferred against the
order of injunction was allowed by the First Additional District and Sessions Judge. Hence, the injunction not to hold the enquiry was cancelled.
The petitioner was admitted in the hospital on 13.7.1987 for physiotherapy and treatment. When he applied for leave, it was rejected and he was
directed to appear for enquiry on 25.7.1987. He was set ex parte and the Enquiry Officer submitted his findings that all the charges were proved.
Thereupon on 27.7.1987, the order of termination was passed.
The Campion Higher Secondary School, Tiruchirapalli is an Anglo-Indian School and the Code of Regulations for Anglo-Indian School
regulates the affairs of the school. Regulation 68-A protects the petitioner''s interest. As per the agreement under Clause 7(1) of Appendix 48
previous permission of the Educational Authority is necessary for termination. A Division Bench of this Court has held that the procedure laid down
under the Rules should be strictly adhered to. The order of termination dated 27.7.1987 is without giving notice and without the previous sanction
is illegal and not valid.
In the common counter-affidavit filed in W.P. Nos. 8108 and 8109 of 1987, the third respondent has slated that the post of Physical Director
was created and recognised by the Department only from 5.7.1979. The petitioner was paid salary upto September, 1982. The pay was more
than what he was entitled to. He was given three years time for qualifying to be the Physical Director. As he failed to do so, he was given only Rs.
25 as induction allowance. The induction allowance was raised to Rs. 40 from 1981 to 1984. The petitioner was served with the charge memo for
various charges. He failed to submit a proper explanation. After receipt of the charge memo, the petitioner filed a suit and got injunction. The
injunction was vacated in appeal. C.R.P. filed by the petitioner also failed. The Case of the petitioner is that Article 119 of the Code of Regulations
of Anglo-Indian Schools alone will apply, Art.68-A of the Code of Regulations is not applicable. The ruling of this Court in P.D. Cruz v. St.
Dominies Anglo Indian Girls High School (1985) 1 M.L.J. 72, is in favour of the respondent. After giving several chances, the petitioner was given
final chance to appear for enquiry on 25.7.1987. As he did not appear on that date, he was set ex parte. Then the school management issued an
order of dismissal on 27.7.1987. The said order is valid. The respondent institution is a minority institution entitled for constitutional protection
under Article 30 of the Constitution of India. The writ petition is not maintainable in law.
W.P. Nos. 8271 of 1987 and 6973 of 1988 relate to another teacher by name A. Jesudoss. During the pendency of the writ petitions, he died,
his wife Mrs. Theresa Jesudoss has been added as the sole representative of the deceased. The facts in the above cases are also similar to the one
in W.P. No. 8109 of 1987. Jesudoss, was a B.A., B.T. assistant in the third respondent school. On account of the dispute between the newly
appointed headmaster, Thiru Sebastian and other teachers, the Headmaster issued charge memo against several members of the staff on flimsy and
non-existent materials, against Jesudoss also charges were issued. He filed O.S. No. 221 of 1987 before Sub-Court, Tiruchirapalli for declaration
that the school is not a Minority Institution. He obtained an injunction also against the third respondent restraining the third respondent from taking
disciplinary proceedings against him. Injunction was vacated in C.M.A. No. 48 of 1987. Hence, C.R.P. No. 4176 of 1987 was preferred by him
and it is pending before this Court. He also filed W.P. No. 8271 of 1987 for quashing enquiry notice dated 5.8.1987. As there was no stay or
injunction, the enquiry proceeded with, ex parte order passed, Based on the enquiry officer''s report, Finally he was dismissed from service on
1.5.1986. Hence, he has filed another W.P. No. 6973 of 1988 challenging the order of dismissal.
The grounds urged in the said two writ petitions are similar to one in W.P. No. 8109 of 1987, the third respondent is bound to act in
accordance with the Code of Regulations for Anglo-Indian Schools. Hence, all the three writ petitions have been taken up together for
consideration.
The main contention urged by the learned Counsel for the petitioner in all the three writ petitions is that the procedure contemplated by
Regulations 68-A of Clause 7 of the Appendix, Code 48 of the Code of Regulations for Anglo-Indian Schools was not followed. Therefore, the
order of dismissal cannot be sustained.
In the case of Dennis, (deceased) the third respondent has terminated his service without giving any notice and the impugned order has been
without previous sanction of the educational authorities. The attracts Clause 7(ii) of Appendix of the Code of Regulations for Anglo-Indian
Schools. Similarly in the case of Jesudoss (W.P. No. 6973 of 1987) also the said procedure has not been followed. These facts are not denied by
the third respondent. The third respondent has admitted in paragraph 5 of the counter filed in W.P. Nos. 8108 and 8109 of 1987 that the
relationship between the petitioner and the respondent is governed by the Rules and Regulations of the Code of Regulations for Anglo-Indian
Schools. It is also admitted that Article 119 of the Code of Regulations for Anglo-Indian Schools alone will apply.
Code of Regulation 119, states that ""Every paid teacher shall be engaged under a written agreement with the management terminable on either
side with three months notice or three month''s salary in lieu of. The agreement shall be in the form prescribed in Appendix 48. As we have already
stated Clause (7) is contained only in Appendix 48. Clause 7(ii) empowers the school authority to terminate the services of a teacher without
notice for all or any of the reasons viz., wilful neglect of duty, serious misconduct, gross insubordination. In these two cases, the dismissal order has
been issued after finding that there was serious misconduct on the part of the petitioners. Even though the findings have been arrived at ex parte,
the findings have been arrived after informing the petitioners in writing, and after giving a reasonable opportunity for petitioners'' as provided in
Clause 7(ii)(a) read with proviso (1)(i).
In W.P. No. 8109 of 1987, the petitioner contended that after the enquiry, the management concurred with the findings of the Enquiry Officer
and had taken the decision; dismissed the petitioner from service; no further opportunity was given to him. At the end of the para 10, it is stated so.
Even though in para 10 of the counter, the third respondent states that the facts leading to the dismissal order dated 27.7.1987 there is no denial of
the contention that without affording any further opportunity, the third respondent has passed orders terminating him from service. Perusal of the
order dated 27.7.1987 also shows that there was no second opportunity given to the petitioner enclosing the report of the Enquiry Officer. Final
order has been passed on the ground that the proved charges were grave and the management had lost faith and confidence in the petitioner.
In this situation, they have to consider whether the condition contained in Clause 7(ii)(a) read with proviso (1)(i) has been complied with or
not. The proviso referred to is as follows:
(1)(i) The School Authority shall not terminate the services of the said teacher whether summarily or otherwise without informing him in writing of
the grounds on which they intend to take action and giving him what in their view is a reasonable opportunity for stating his case in writing and
before coming to a final decision, shall duly consider his statement and if he so desires give him a personal hearing.
The said proviso contains two portions, one is informing him in writing of the grounds on which action is intended and giving reasonable opportunity
to state the case. Second part is considering the statement and giving personal hearing if desired before final decision. In the case of Thiru
Dennison, this has not been done. Therefore there is non compliance of the conditions contained in Clause (7) of the Code of Regulations for
Anglo-Indian Schools.
At this juncture, we have to consider the decision of the Supreme Court in Union of India Vs. S.B. Mishra, With reference to second show-
cause notice. There was no furnishing of enquiry report. In Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , wherein the
Supreme Court has clarified that Union of India and others Vs. Mohd. Ramzan Khan, , would apply prospectively from the date of the judgment
only to the cases in which decisions are taken and orders made from that date and does not apply to all the matters which either have become final
or are pending decision at the appellate forum or in the High Court or the Tribunal or in the Supreme Court. As per the said decision, failure to
furnish enquiry report to the delinquent employee and passing final order of punishment prior to 20.11.1990 will not vitiate the disciplinary
proceedings. The said clarification is also confirmed by the subsequent decision of the Supreme Court in Union of India v. S.B. Mishra AIR 1966
S.C. 613.
Learned Counsel for the third respondent relying upon the aforesaid decisions and contended that the non-furnishing of the enquiry report to
the petitioner and giving him a second show-cause notice will not vitiate the disciplinary proceedings. This view is not correct. The said decisions
have arisen under Article 311 of the constitution of India, after 42nd amendment. After the 42nd amendment it was no longer necessary to issue a
notice to the delinquent employee against whom punishment is proposed. However, the Supreme Court took the view that if the enquiry was held
by a person other than the disciplinary authority the copy of the enquiry report has to be furnished, to the dilinquent. The Supreme Court took the
view on the principles of natural justice. Only in that view, the Supreme Court directed that even in cases which were disposed of after 20.11.1990
where the second show cause notice was issued furnishing the enquiry reported, the matter may be remitted back to the punishing authority to
proceed further after furnishing the enquiry report and the second show-cause notice. But in the present case, there is a specific provision
contained in proviso (1)(i) to Clause 7(ii)(a) of Appendix 48 of Code of Regulations for Anglo-Indian Schools. Therefore, the proceedings in this
case are vitiated and hence the order of dismissal has be set aside.
Learned Counsel for the petitioner contended that even though Clause (7) in Appendix 48 is not applicable, the procedure contemplated under
Regulation 68-A of the Code of Regulations for Anglo-Indian Schools would be applicable. In my view, the said contention is not correct.
Regulation 68-A contemplates cases of negligence in discharge of duties or commission of any irregularity. Only in the aforesaid two cases the
procedure adopted in Regulation 68-A of the Code of Regulations for Anglo-Indian Schools has to be adopted. A reading of the Regulation 68-A
of the Code of Regulations for Anglo-Indian Schools and Clause (7) in Appendix 48 go to show that the two offences mentioned in Regulation 68-
A viz., negligence to discharge duty and commission of irregularity are not found in Clause (7). In Clause (7) the offence of irregularity is omitted.
With reference to negligence simpliciter is mentioned in Regulation 68-A. Therefore, the intention of the framers of the Code is very clear. In case
of the offence mentioned in Regulation 68-A separate procedure has to be adopted. But with reference to the offence contemplated under Clause
(7) different procedure has to be adopted. My view is supported in P.D. Cruz v. St. Dominic Anglo Indian Girls High School (1985) 1 M.L.J. 72.
In the said judgment Justice Maheswaran, has held that,
A reading of both Articles 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.
Another contention of the learned Counsel for (he petitioner that the order of dismissal is bad because the prior permission of the Inspector of
Schools has not been obtained. This is also unsustainable, because the prior approval is only with reference to the incompetence. But in this case,
the dismissal is based on serious misconduct, which is governed by the procedure contemplated under Clause (7)(ii)(a) of the Code of Regulations
for Anglo-Indian Schools. That too particularly for incompetency alone, prior permission is necessary.
For the aforesaid reasons, the Writ Petition No. 8109 of 1987 has to be allowed.
In the case of Thiru AJesudoss also I find that the enquiry report was not furnished to him before (he final order was passed. He was also not
given a second show-cause notice before passing the final order of dismissal. Even though there is no specific averments in the writ petition, a
reading of the final order itself dated 6.8.1988 showns that the copy of the enquiry report, that is, finding was enclosed to the final order only.
There is also no reference to any second show cause notice in the final order. Under these circumstances, this writ petition has also to be allowed.
For the foregoing reasons, W.R Nos.8190 of 1987 and 6973 of 1988 are allowed. However there will be no order as to costs. As regards the
other W.R No. 8271 of 1987, since the prayer has become infructuous, there is no necessity for passing any separate order.
As regards the relief to be granted in both the writ petitions, I am of the view that the dismissal orders have been set aside; the legal
representatives of the original petitioners are entitled for the arrears of salary after deducting the subsistance allowance already paid, from the date
of suspension till date of superannuation of the original petitioner the other pension benefits if any due to the petitioners and all other monetary
benefits like Provident Fund, Family Pension etc.