AI Structured Summary
Not yet generated for this judgment
Judgment
P.D. Dinakaran, J.—This is an appeal from an order of the learned Single Judge dated 1.3.2005 made in W.P. No. 10984 of 1996 allowing
the writ petition filed by the first respondent herein.
2.1. Brief facts of case, requiring notice, are these : The first respondent was appointed in '' the appellant/Aided Elementary School on 12.9.1990.
When the first respondent attended the school after summer vacation on 30.6.1991, he was prevented from attending the school from 4.7.1991 on
the ground that he submitted his resignation, which was of course denied by the first respondent.
2.2. Being aggrieved by the abovesaid act of the appellant, the first respondent herein filed W.P. No. 9459 of 2001, wherein this Court directed
the first respondent to pursue his remedies by way of appeal under the provisions, of the Tamil Nadu Recognition of Private Schools (Regulation)
Act, 1973.
2.3. The first respondent herein preferred an appeal before the third respondent, who by order dated 27.9.1991 directed the appellant to allow the
first respondent to join duty. The said order of the third respondent was challenged in W.P. No. 14-623 of 1991 on the ground that no notice has
been given to the appellant, and this Court by order dated 2.12.1991 allowed the writ petition and remanded back the matter to the third
respondent to pass fresh orders after giving an opportunity to the parties.
2.4. After hearing both sides, the third respondent, by order dated 6.8.1992, allowed the appeal in favour of the first respondent and directed the
appellant management to reinstate the first respondent. As against the said order of the third respondent dated 6.8.1992, the appellant filed a suit in
O.S.No.''690 of 1992 on the file of the District Judge, Tiruchirapalli, which was subsequently dismissed by decree and judgment dated 28.3.1994
with costs.
2.5. As the appellant refused to reinstate the first respondent, the first respondent filed W.P. No. 14894 of 1994 seeking a writ of Mandamus to
direct the appellant to reinstall him in service or in the alternative to redeploy him in some other Government School, if necessary by recalling the
post from the appellant. The said writ petition was resisted by appellant stating that they have filed a revision against the order of the third
respondent dated 6.8.1992 to the Joint Director of Elementary School and the same is pending, even though there is no provision to file a revision
against the order of the third respondent.
2.6. This Court, by order dated 8.9.1995 in W.P. No. 14894 of 1994 directed the Director of School Education, Chennai and the third
respondent herein to ascertain as to whether any revision petition has in fact been filed by the appellant against the order dated 6.8.1992 of the
third respondent, and if the same is pending, it was directed to dispose of the same on merits, after due notice to the parties. It was further
observed that, if no revision has been filed, the authorities shall take action in accordance with G.O.Ms No. 1664, dated 4.9.1978 and provide for
direct payment to the first respondent and also to transfer the first respondent along with the post to any other needy school.
2.7. As no relief was granted by the order, dated 8.9.1995 in W.P. No. 14894 of 1994 to the first respondent, the first respondent preferred
W.A. No. 1129 of 1995 and the Division Bench of this Court, by judgment dated 18.1.1996, having satisfied that the resignation relied upon by
the first respondent was not accepted by the authorities as required u/s 17A of the Tamil Nadu Recognised Private Schools (Regulation) Act,
allowed the appeal with a cost of Rs. 2000/- and directed the appellant to reinstate the first respondent in accordance with the order of the third
respondent dated 6.8.1992 on or before 29.2.1996. For better appreciation of not only the facts and circumstances, but also the extent of trauma
the first respondent underwent, it is apt to extract relevant portions of the judgment dated 18.1.1996, which read as under:
...4. In the present appeal, the contention is that no revision was maintainable against the order of the second respondent and in any event, there.
was no revision pending before the Government of Tamil Nadu. It was further contended that the pendency of a revision petition cannot be a bar
to the implementation of the order of the second respondent.
The question to be decided in the writ appeal is whether the observation of learned single Judge relating to the revision petition is justified and
whether a revision petition is at all, pending with the appropriate authority. Even if such a revision petition is pending, could it be a bar to the
implementation of the order of the second respondent?
We have gone through the scheme of the provisions relating to the: termination of the service of a teacher and the remedy available by way of
appeal or revision to the aggrieved teacher and the management. We have to determine whether in the facts and circumstances of the case, the
management has a right to file a revision petition under the provisions of the Act and-the Rules.
Before determining that question, we consider the objection based on Rule 17-A of the Tamil Nadu Recognised Private Schools (Regulation)
Rules, 1974 (hereinafter referred to as % ""the Rules"") introduced by G.O. Ms. No. 586, dated 2.4.1981. Rule 17-A of the Rules has been
inserted with an object of putting an end to the malpractices adopted by the educational agencies in forcing the teachers to resign, or obtaining
undated or pre-dated resignations even at the time of appointment. Therefore, Sub-rule (1) of Rule 17-A specifically provides that whenever
resignation of appointment is tendered by a teacher or other person employed in a private school, he shall inform the District Educational Officer
Inspector of Schools or the Deputy Inspector of Schools concerned, the fact of his resignation in writing by registered post with acknowledgement
due. Sub-rule (2) thereof further provides that he shall not give any undated or pre-dated resignation letter to a private school. Sub-rule (3) further,
provides that no educational agency shall insist or compel any teacher or other person employed, in a private school to give at any time undated or
pre-dated resignation letter. Sub-rules (4) to (6) lay down the further procedure to be followed in the event of receipt of the written information by
the District Educational Officer, Inspector of Schools or Deputy Inspector of Schools. Such a stringent procedure has been laid down only to
eliminate the malpractice that was prevalent in the private schools relating, to tendering of resignation and obtaining resignation letter from the
teacher or any other person by the school agencies.
In this case, if really there was a resignation submitted by the appellant the procedure required by Rule 17-A ought to have been followed.
Therefore, rightly the case of the third respondent as to the resignation alleged to have been submitted by the petitioner/appellant, has not been
accepted by the authorities exercising power under the Act and the Rules.
It is no doubt true that Rule 17-A does not provide for any separate remedy to the teacher or other person for challenging an order of
termination based on the, letter of resignation. The fact remains that in the instant case as against the refusal of the management to permit the
appellant to continue in service in the school, as he had not tendered resignation, as it amounted to ""otherwise terminated"", he filed an appeal to the
competent authority prescribed under Rule 18 of the Rules, viz., the Chief Educational Officer as the petitioner/appellant was secondary grade
teacher in the elementary school. Therefore, the appeal by the petitioner/appellant before the second, respondent was perfectly maintainable and
his ultimate order dated 6.8.1992 is enforceable.
To understand the scope of the power to dismiss or remove a teacher from a private school and the remedies available to the teacher as well
as the management, the following provisions of law have to be noticed:
Section 22 of the Act says that no teacher shall be dismissed or removed except with the prior approval of the competent authority, in this case,
we cannot forget the fact that no such prior approval was taken by the third respondent. Therefore, the aggrieved teacher has a right of appeal u/s
23 of the Act and as already stated the appeal is maintainable before the second respondent as per Rule 18 of the Rules. To complete the
narration, a teacher will also have a second appeal to the Tribunal u/s 24 of the Act if the Appellate Authority does not give him the relief. A
question may arise as to what is the remedy of the management if the competent authority had refused to accord approval to the proposal to
dismiss or remove a teacher u/s 22(1) of the Act. For this purpose, we to Section 41 of the Act which says that any person aggrieved by any
order, decision or direction of the competent authority u/s 29 or any other provision may prefer an appeal to such authority as may be prescribed
under the Rules. Rule 29 is the corresponding Rule to Section 41 of the Act and it prescribes, the appellate authority in respect of various sections
under which an order or decision could be rendered. As against Section 22 of the Act, the competent authority is the Chief Educational Officer so
far as pre-primary, primary and Middle Schools. Therefore, it follows that if the third respondent management had applied for approval u/s 22(1)
of the Act and they had suffered a prejudicial order, they could have filed an appeal u/s 41 of the Act, to the Chief Educational Officer under Rule
29 of the Rules. On the facts of this case, such a thing did not take place. No decision of any court can be divorced from the facts and
circumstances of each case which alone will enable the Court to find out the remedy by way of appeal or revision. Here and now on the facts of
the case, we would like to make it clear that the third respondent-Management had no right of appeal u/s 41 of the Act because they do not ask
for approval before terminating the services of the appellant. Lastly, the power of revision u/s 45 of the Act enables the Government to Call for and
examine the record of any authority or officer prescribed for the purpose of Section 41 in respect of any proceedings to satisfy themselves as to
the regularity of such proceedings etc., Therefore, if the third respondent had a right of appeal u/s 41 of the Act, then they might have had a power
of revision to the Government u/s 45 of the Act. The sum and substance of our analysis of the provisions of law vis-a-vis the facts of the case
clearly show that the management has no right to file a revision petition against the order of the second respondent dated 6.8.1992.
The above result can also be reached by following the judgment of this Court in Saravanamuthu, R. v. The School Committee of Sengunthar
Higher Secondary School 1996 (1) Current Tamil Nadu Cases, 59 where the very same provisions have been analysed. But the said judgment
was concerned with the competency of an appeal before the Educational Tribunal u/s 24 of the Act and the Division Bench observed as follows:
Consequently, on the undisputed facts of the case and on reading of Sections 23, 24, 41 and 45 of the Act, r/w. Rule 29 of the Rules we come to
the conclusion that the second appeal preferred before the Educational Tribunal against the order passed by the Joint Director of School Education
(Higher Secondary) refusing to accord approval for termination of the services of the petitioner/appellant passed by the first respondent is not
maintainable.
Coming back to the directions of learned single Judge in W.P. No. 14894 of 1994, the operative portion of which we have already extracted,
it follows that the reference to the existence of a revision petition has to be deleted.
In fine, we modify the order of learned single Judge and give only the following directions:
(i) The third-respondent-Management is directed to reinstate the appellant in accordance with the order of the second respondent dated 6.8.1992
on or before 29.2.1996.
(ii) If the third respondent does not comply with the above direction, the, first respondent is directed to withdraw the sanctioned post which was
held by the appellant, from the third respondent school, and allot the same to some other Government School where there is a vacancy and
appoint, the appellant in such a school where there is a vacancy along with the post. The first respondent should undertake, this exercise if the
appellant is not reinstated by the third respondent on or before 29.2.1996 and complete the exercise on or before 31.3.1996.
The writ appeal is allowed in the above manner with costs payable by the third respondent. Counsel''s fees Rs. 2,000/-.
Concededly, the said Judgment of the Division Bench of this Court dated 18.1.1996 made in W.A. No. 1129 of 1995 has become final.
2.8. The appellant, however, refused to reinstate the first respondent and as a result, the District Elementary Educational Officer, by proceedings
dated 6.3.1996 transferred the post and incumbent, viz., the first respondent, to Chidambaram Middle School, Chinnavenmani, Periyavenmani
Post.
2.9. The first respondent, thereafter, filed W.P. No. 10984 of 1996 seeking a writ of Mandamus to direct respondents 2 to 5 herein to pay the
salary for the period from 4.7.1991 to 17.3.1996 with interest. The appellant resisted the petition stating that the first respondent is in a better
position with future prospects, he got the post itself transferred from the appellant and the same is a loss to the appellant and not to the first
respondent.
2.10. The learned Single Judge, by order dated 1.3.2005 in W.P. No. 10984 of 1996 finding that respondents 2 to 5 are not at all responsible for
not reinstating the first respondent during the relevant period, directed the appellant to pay the salary and other emoluments to the first respondent
for the period from 4.9.1991 to 17.3.1996 within a period of three months from the date of receipt of the said order. Hence, the present writ
appeal.
The only point argued by Mr. V.S. Jagadeesan, learned Counsel for the appellant is that the relief sought for cannot be granted as the filing of
the writ petition itself is barred by the principles of res judicata or constructive res judicata.
Mr. C. Selvaraj, learned Senior Counsel for the first respondent and Mrs. Dakshiyayini Reddi, learned Government Advocate for the
respondents, reiterated the submissions that were made before the learned Single Judge and accepted by him.
We have given careful consideration to the submissions of both sides.
In the case on hand, the reinstatement-ordered is not a consequence of setting aside an order of dismissal made pursuant to a disciplinary action
initiated against the first respondent with regard to any misconduct, but it is an order setting aside the illegal non-employment of the first respondent
for the period from 4.9.1991 to 17.3.1996. In the earlier writ petition in W.P. No. 14894 of 1994, what was sought, considered and weighed was
only a prayer to implement the order of reinstatement dated 6.8.1992 passed by the third respondent herein. Once the District Elementary
Educational Officer, by proceedings dated 6.3.1996 transferred the post and incumbent, viz., the first respondent, to Chidambaram Middle
School, Chinnavenmani, Periyavenmani Post, the first respondent is entitled to seek his consequential relief for payment of salary and other
emoluments for the period of his non-employment, viz., from 4.7.1991 to 17.3.1996. We are, therefore, convinced that the doctrine of res judicata
or constructive res judicata is not attracted.
Our above view is also fortified with the decision of the Apex Court in State of Haryana and Others Vs. M.P. Mohla, , wherein it is held that a
dispute between the parties once adjudicated must reach its logical conclusion. If a specific question was not raised and vas not decided, the same
would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or
constructive res judicata. If a subsequent cause of action has arisen in the matter of implementation of a judgement, a fresh writ petition may be
filed as a fresh cause of action has arisen.
That apart, it is trite law that where the Court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct,
as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention,
the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination vide J.K. Synthetics Ltd. Vs. K.P.
Agrawal and Another, .
The history of this case would show how the first respondent has been shuttling up and down for nearly 16 years between all the Courts for
various causes and the fact remains that till, date, the appellant had not paid the first respondent the salary and other emoluments due to him for the
period from 4.7.1991 to 17.3.1996. The appellant never honoured either the orders of the Educational authorities or the orders of this Court, even
though the earlier writ appeal was allowed with costs. This is nothing but gross injustice, done to the first respondent by the appellant.
We, therefore, dismiss this appeal finding no reason to interfere with the order of the learned Single Judge dated 1.3.2009 made in W.P. No.
10984 of 1996, with costs of Rs. 10,000/-. We, further, direct respondents 2 to 5 to work out the arrears payable to the first respondent for the
period from 4.7.1991 to 17.3.1996 and to see that the said sum is settled to the first respondent by the appellant within four weeks from the date
of receipt of copy of this, order. In default of compliance of the above condition, the second respondent sha.ll take appropriate action against the
appellant under the provisions of the Tamil Nadu Recognition of Private Schools (Regulation) Act, 1973. Consequently, W.A.M.P. No. 1432 of
2005 is closed.