Vivekananda Middle School vs The State of Tamil Nadu and Others

G. Ramanujam, J.—Since the parties in both the appeals are more or less the same and they are interconnected, they are dealt with

together.

The appellant in these appeals is the Manager of a Middle School, called ''Vivekananda Middle School'' at Muthukrishnapuram, Kadayanallur,

P.O., Tenkasi Taluk, Tiruvelveli District. In the said school there was a permanent Secondary Grade teacher by name M. Ramiah handling VIII

standard. The said teacher applied for leave from 1st September, 1976 to 30th September, 1976, on the production of medical certificate from

Dr. Sailapathy of the Government Medical College Hospital Palayamkottai. On 1st October, 1976, he wanted to rejoin duty, but the management

insisted on the production of a medical certificate that he was fit to rejoin duty. When such certificate was not produced, the management did not

allow the teacher to join duty. On the ground that the management''s action in not allowing him to join duty amounted to termination of his service,

the teacher filed an appeal to the Chief Educational Officer, Tirunelveli, who allowed the appeal and directed the management to reinstate the

teacher. As against the said order of the Chief Educational Officer, the management filed an appeal before the Education Tribunal, (Principal)

Subordinate Judge, Tirunelveli, constituted under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, hereinafter referred to as

the Act. Since the said appeal was not accompanied by a deposit of the arrears of pay and allowance is due to the teacher, the Tribunal called

upon the management to deposit the amount by 10th August, 1978, as per its order dated 20th July, 1978. The management wanted three weeks''

time for payment. But even after the expiry of the said three weeks, the deposit was not made. The Tribunal had made it clear by its order dated

20th July, 1978, that if the deposit was not made on or before 10th August, 1978, the appeal would stand dismissed. Since the deposit was not

made, the Tribunal ultimately dismissed the appeal on 12th September, 1978.

Aggrieved against the said order of the Education Tribunal, the management filed W.P. No. 4938 of 1978. In the said writ petition, the

contention of the management was that the Tribunal had no power to dismiss the appeal, that u/s 44(4) of the Act, it could only stop all further

proceedings and that therefore the order of the Tribunal was bad. The said writ petition was contested by the teacher as well as by the Chief

Educational. Officer, Tirune Hveli, the first appellate authority. The defence to the writ petition was that though the order of the Education Tribunal

purported to be an order of dismissal, it virtually amounted to stoppage or closure of the proceedings which was in accordance with Section 44(4)

of the Act. It was also contended that the dismissal being one for non-deposit of the arrears of salary due to the teacher, it should be taken to fee

an order of stoppage of the proceedings, though in form it was an order of dismissal. Mohan, J., before whom the said writ petition came up for

hearing, held that since the management did not deposit the amount as per Section 44(1) read with Rule 30 of the Tamil Nadu Recognised Private

Schools (Regulation) Rules, 1973, the Tribunal had no other alternative except to close the proceedings and that on the failure to deposit the

amount by the management as per the above provision, the Tribunal was justified in invoking Section 44(4) of the Act and closing the proceedings

by order of dismissal of the appeal.

Before us, the learned Counsel for the appellant-management contends that inasmuch, as Section 44(4) of the Act gives a discretionary power

to the Tribunal to relax the provision for deposit of the arrears of salary and allowances, the Tribunal is in error in dismissing the appeal, without

going into the merits, only on the ground that the deposit has not been made as contemplated u/s 44(1) of the Act. Reliance is placed on a decision

of another Division Bench of this Court, in S. Kailasanathan v. The Tribunal under the Tamil Nadu Private Schools Regulation Act, 1973-cum-

Sub-Judge, Tirunelveli and two others W.A. No. 496 of 1978 Judgment, dated 6th September, 1979, in support of the case of the appellant that

the Tribunal has got power u/s 44(4) not to insist on the deposit before taking up the appeal for enquiry.

Sub-sections (1) and (4) of Section 44 of the Act, which are relevant in this context, are as follows:

44(1). If the appellate authority referred in Section 23 has, in, any appeal under that section against the dismissal or removal or reduction in rank or

the termination otherwise of the appointment of any teacher or other person employed in private school, made an order restoring such teacher or

other employee as such, no appeal, against the order of such restoration shall be preferred to the Tribunal, and no appeal (against the order of such

restoration) which, u/s 25, stands transferred to the Tribunal shall be proceeded with by the Tribunal, unless the educational agency deposits with

the Tribunal all arrears of pay and allowances due to such teacher or other person from the date of his dismissal or removal or reduction in rank or

termination otherwise of his appointment up to the date of deposit, and continues to deposit the pay and allowances due to such teacher or other

person until the termination of the proceedings before the tribunal.

(4) If the educational agency fails to deposit the amount as aforesaid, the Tribunal shall, unless the educational agency shows sufficient cause to the

contrary, stop all further proceedings and make an order directing the educational agency to restore such teacher or other employee as such.

It is no doubt true that Sub-section (4) of Section 44 of the Act proceeds to say that if the deposit is not made as per Sub-section (1) of Section

44, the Tribunal shall, unless the educational agency shows sufficient cause to the contrary, stop all further proceedings; and make an order

directing the educational agency to restore such teacher or other employee as such. Thus, the aforesaid sub-section contemplates an educational

agency showing sufficient cause for not depositing the arrears, in which case the Tribunal may permit the said educational agency to continue the

appeal'' without the requisite deposit contemplated by Section 44(1). This is the interpretation placed on this section by another Division Bench in

the decision in W.A. No. 496 of 1978 referred to already. In that case, the Division Bench has observed as follows:

It may therefore be seen that the Legislature itself has provided that the prescription in Section 44(1) regarding the deposit of arrears of salary,

allowances etc., is not a sine qua non of universal application. Under Sub-section (4) the Tribunal has been conferred power to exercise its

discretion in the matter of insisting upon the management making the deposit before its appeal u/s 24 is barred on merits.

The Bench was of the view that the mandate contained an Section 44(1) of the Act was not inflexible in nature and that it was open to the Tribunal

to waive the deposit contemplated by Section 44(1) of the Act in exercise of its discretion in appropriate cases.

However, in the present case the management does riot appear to have shown any sufficient cause for not making the deposit as contemplated

in Section 44(1) of the Act. In the affidavit filed in support of the writ petition, the management has come forward with the plea that before the

Tribunal I am offer to give immovable property security was made in lieu of deposit, but the said offer was not accepted by the Tribunal and the

Tribunal insisted on cash deposit being made by the management. But the records do not indicate that any such offer was made before the

Tribunal. The order of the Tribunal merely states that three weeks'' time was asked for by the management to make the deposit and that even

though the said three weeks time and a further extension of time were granted by the Tribunal, the management did not deposit the amount. If really

the management had offered to give immovable property security towards the arrears of salary due to the teacher, the Tribunal would have made a

reference to such an offer. In the absence of such reference in the order of the Tribunal, it should be taken that no offer was made by the

management while the matter was pending before the Tribunal. Even before the single Judge, no such offer was made and the only plea taken was

as against the form of the order passed by the Tribunal and not as against the alleged rejection by the Tribunal of the offer made by the

management to give immovable property security. So long as the management has not shown sufficient cause to the contrary, the Tribunal has no

other alternative except to close the proceedings, in view of the provision contained in Section 44(4) of the Act.

Learned Counsel for the appellant then contended that whatever might have happened earlier, the management is now prepared to deposit the

full amount due to the teacher, provided the appeal is taken on; file by the Tribunal and disposed of on merits. We are of the view that, having

regard to the language used in Section 44(4) of the Act, the question of reopening the appeal proceedings, on the management depositing the

amount now, does not arise. In the event of the management failing to deposit the amount as provided in Sub-section (1) of Section 44, the

Tribunal shall stop all further proceeding is and make an order directing the management to reinstate the teacher. If Section 44(4) merely enabled

the Tribunal to stop all further proceedings, it is possible to construe that section as enabling the Tribunal to restore the proceedings on the deposit

being made later and to deal with the same on merits. Rut since u/s 44(4) of the Act, the Tribunal is not only enjoined to stop all further

proceedings but also direct the management to reinstate the teacher, the said provision cannot be construed as enabling the Tribunal to restore the

proceedings on deposit being made at a subsequent stage and at any later point of time. If, on, the other hand, the intention of the Legislature is to

enable the Tribunal to restore the proceedings at any later point of time on deposit being made by the management, then there will be a specific

provision to that effect to enable the Tribunal to vacate its earlier order stopping all further proceedings and directing reinstatement of the teacher.

But so long as such specific provision is not there, the Tribunal which makes a positive order directing the management to reinstate a teacher

cannot recall that order and I restore the appeal to file and proceed with the same on merits, if the management chooses to deposit the amount at a

later point of time. This contention of the appellant is not therefore tenable.

In this view of the matter, no interference is called for with the order passed by the learned Judge in W.P. No. 4938 of 1978 and the writ

appeal W.A. No. 315 of 1980 is therefore, dismissed.

For failure of the management to reinstate the teacher even after the appeal of the teacher before the Chief Educational Officer was allowed and

the management''s appeal before the Tribunal failed, the Chief Educational Officer issued a show cause notice to the management to show cause

why the recognition granted to the school should not be cancelled. To the said show-cause notice, dated 3rd November, 1978, the management

filed its representation on 9th November, 1978, contending that against the order of the Tribunal, it intended to file a revision to the High Court and

that therefore no steps need be taken: in pursuance of the show-cause notice and the same may be kept in abeyance till final orders are passed by

the High Court. Subsequently the management through its counsel informed the Chief Educational Officer on 8th December, 1978, about the filing

of the writ petition which might come up for orders the next week-and requested that all further action in pursuance of the show cause notice may

be kept in abeyance. Notwithstanding the representation of the management, the Chief Educational Officer actually withdrew the recognition given

to the school permanently by his order, dated 20th December, 1,978. Aggrieved by that order, the management has filed W.P. No. 136 of 1979.

The said writ petition having been dismissed, the management has filed W.A. No. 316 of 1980.

The learned Counsel for the appellant-management contends that the order withdrawing the recognition is vitiated for two reasons:

For the default in reinstating the teacher, as directed by the Chief Educational Officer, the Chief Educational Officer cannot invoke the provision

for withdrawal of recognition, in view of the policy laid down by the Government in G.O. No. 1664, Education, dated 4th September, 1978, and

therefore, the impugned order, dated 20th December, 1978, clearly contravenes the directions given by the Government in the said Government

Order.

Though by the show-cause notice, the management has been asked to show-cause why the recognition cannot be withdrawn for the default

committed by the management in not reinstating the teacher Thiru M. Ramiah and paying his salary and allowances, the actual order withdrawing

the recognition contains other grounds which were not set out in the show-cause notice, for withdrawal of recognition. In so far as the actual order

with drawing the recognition contains reasons which were not set out in the show-cause notice the same contravenes the provision in Section

12(2).

These two grounds were also urged before the learned single Judge at the time of the hearing of the writ petition. But the learned Judge has

rejected both the grounds. As regards the first ground, the learned Judge took the view that the Government Order in question has been issued

only for the guidance of the officers and therefore the management cannot place any reliance on the same. As regards the second ground, the

learned Judge has taken the view that the main ground for Withdrawing the recognition is the one which has been set out in the show-cause notice,

that is not reinstating the teacher Thiru M. Ramiah, and the other grounds given in the ultimate order, dated 20th December, 1978, by the Chief

Educational Officer are merely to highlight the main reason and therefore they need not be treated as separate grounds for withdrawal of

recognition.

The learned Counsel for the appellant contends that the view taken by the learned Judge is not tenable and that on both the grounds the

management is entitled to succeed and the order withdrawing the recognition has to be quashed. Paragraph 2 of the show-cause notice which

contains the reason for withdrawing the recognition is as follows:

The Manager, Vivenkananda Middle School, Muthukrishnapuram is directed to reinstate Thiru M. Ramiah, teacher in service forthwith and pay

him his salary for the entire period of his unemployment failing which he is requested to show cause as to why the recognition of the school should

not be withdrawn permanently u/s 12 of the Tamil Nadu Recognised Private School (Regulation) Act, for the reason of not complying with the

orders of the appellate authority issued u/s 23 of the Tamil Nadu Recognised Private Schools (Regulation) Act, and Rule 18 of the Rules framed

thereunder.

From the above it is seen that the management is asked to show cause why the recognition of the school should not be withdrawn permanently u/s

12 of the Act ""for the reason of not complying with the orders of the appellate authority issued u/s 23 of the Tamil Nadu Recognised Private

Schools (Regulation) Act and Rule 18 of the Rules framed there under .Thus, the only reason for the proposed withdrawal of recognition is the

management''s default in not complying with the orders of the Chief Educational Officer, Tirunelveli, dated 22nd February, 1977, directing the

reinstatement of the teacher Thiru M. Ramiah, in the school by the management. But the ultimate order, dated 20th December, 1978, withdrawing

the recognition contains apart from the reason set out in the show-cause notice, dated 2nd November, 1978, the following other reasons as well:

(1) The Manager has failed to comply with Section 22 of the Act, which is mandatory, while terminating the services of another teacher in the same

school by name Thiru R. Subbaram with effect from 11th September, 1978, and thus the management has failed to Safeguard the interests of the

teachers and the pupils in the school.

(2) The management did not disburse the second instalment of Additional Dearness Allowance Deposit Account amount due to M. Ramiah,

though the cheque was encashed by the management during the second week of November, 1977 and that amounted1 to a misappropriation of

Government funds which called for separate action.

(3) Another teacher of the same school, namely, R. Sankaran was also not paid his due arrears of salary though the same was released by the

Department and this also amounted to misappropriation of the Government funds.

Thus, though the show-cause notice contained only one ground for withdrawal of the recognition, the order actually withdrawing the

recognition gave four reasons for the withdrawal of the recognition. Sub-section (2) of Section 12 states as follows:

Before withdrawing the recognition under Sub-section (1), the competent, authority shall give the educational agency an opportunity of making its

representation.

As already stated, an opportunity was given to the management to make its representation as regards the reason given in the show-cause notice for

the proposed withdrawal of the recognition. But as regards the other grounds set out in the ultimate order withdrawing-the recognition, the

management was not given any opportunity to make a representation. If such an opportunity had been given, the management might have properly

explained its conduct in regard to the other reasons given in the order withdrawing the recognition. But so long as that opportunity has not been

given in relation to the other reasons which are mentioned in the actual order withdrawing the recognition, the mandate contained in Section 12(2)

of the Act cannot be taken to have been complied with by the Chief Educational Officer. Before the learned single Judge, it was argued on behalf

of the Chief Educational Officer that the other reasons were given only to highlight the issue and not to make them as separate grounds for taking

action u/s 12 of the Act. The learned Judge appears to have taken the view that a mere reference to the other reasons in the order withdrawing the

recognition will not affect the validity of the order, so long as the same could be sustained on the main ground of disobedience of the order of the

appellate authority issued u/s 23 of the Act.

On due consideration of the matter, we are not inclined to agree with the view of the learned ''Judge that out of four grounds referred to in the

order, only one ground is the main ground and others are mere references and that they did not weigh with the officer in withdrawing the

recognition. As a matter of fact, in the final paragraph of the order withdrawing the recognition, all the reasons are stated to toe the reasons for the

withdrawal of the recognition. The said final paragraph is as follows:

Considering the indifferent attitude of the Manager of the school in carrying out the orders of the Chief Educational Officer in his proceedings Roc.

No. 60373-43176, dated 22nd February, 1977, and his failure to safeguard the interest of the teachers and the pupils of the school, without

having any regard to the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules, it is concluded that the continuance

of this mismanaged school will not serve the educational needs of the locality to the satisfaction of the Department. Hence the Chief Educational

Officer under the powers vested in Section 12 of the Tamil Nadu Recognised Private Schools (Regulation) Act hereby withdraws, the

''recognition'' of the school permanently from the date of these orders.

This paragraph makes it clear that the reasons for the withdrawal of the recognition are not only the default on the part of the management is not

carrying out the orders of the Chief Educational Officer, dated 22nd February, 1977, but also the failure of the management to safeguard the

interest of the other teachers and the pupils of the school and the management''s action in disregarding the provisions of the Act and the Rules. In

the order, incidents of termination of the service of one K. Subbaram without regard to Sections 18 and 22 of the Act and of the attendance of

pupils in the school coming down considerably, have been taken to show that the management has failed to safeguard the interest of the teachers

and pupils of the school. The non-payment of the arrears of salary to one R. Sankaran, bad also been referred to. But reasons do not find a place

in the show-cause notice. Before these grounds are taken into account for considering the question of withdrawal of the recognition, the

management should have been given an opportunity to put forward its case so far as these grounds are concerned. It is not in dispute that the

management had no opportunity at any time to rebut the other grounds set out in: the final order withdrawing the recognition. We are not inclined to

agree with the contention of the learned Government Pleader that if the order of withdrawal could be sustained on any one ground, then this Court

cannot treat the order as invalid. In this case, the invalidity of the order, dated 20th December, 1978, withdrawing the recognition arises from the

lack of opportunity to the management for making representation in relation to the other grounds set out in the order. Further, as it is not possible

to scan the mind of the Chief Educational Officer, while passing the order, dated 20th December, 1978, and say that he passed the order only on

the ground of non-compliance with his order, dated 22nd February, 1977, and the other grounds set out in his order did not weigh with him at the

time of passing the final order withdrawing the recognition. We have to infer that the cumulative effect of all the grounds set out in the ultimate order

formed the basis for his conclusion and not the only ground set out in the show-cause notice.

The learned Government Pleader has drawn our attention to certain decisions of this Court and the Supreme Court in support of his contention

that where an order of punishment has been imposed on a Government servant on various charges and if certain charges are later found to be bad

by the appellate authority or by the Court, the order imposing punishment need not be set aside, if it could be sustained on the other charges. We

do not see how these decisions are relevant to the point in question. Here, the question is whether the mandatory provision in Section 12(2) of the

Act has been complied with that is whether before passing the impugned order, the Chief Educational Officer has given the management an

opportunity of making its representations against all the grounds on the basis of which the recognition is sought to be withdrawn. Though the

management had an opportunity of making its representation in relation to the ground set out in the show-cause notice, that is, the disobedience of

the order of the Chief Educational Officer, dated 22nd February, 1977, it was not given any opportunity to make its representations as regards the

other grounds set out in the final order withdrawing the recognition. Therefore the final order should be taken to have been without giving an

effective opportunity to the management to make its representation against the withdrawal of the recognition.

We find that a similar view has been taken by another Division Bench of this Court in the State of Tamil Nadu, represented by the

Commissioner and Secretary Government Education Department, Madras-9 and Ors. v. Dr. K. Padmanabnan and K. Padmanabhan W.A. Nos.

590 and 591 of 1981, dated 30th June, 1982. That case replaced to Government''s action taking over the management of a private college widen

the Tamil Nadu Private Colleges (Regulation) Act, 1976. The said Act provided that before taking over the management of a private college, the

Government shall give the educational agency an opportunity of making its representation. In that case also a show-cause notice was given setting

out some grounds as the basis for the proposal to take over the management. But after the management made its representations, the ultimate

order taking over the management of the college contained various other grounds, which were not set out in the show-cause notice. The order of

taking over of the college was challenged on the ground that it violated the provision giving opportunity to the educational agency to make its

representation. In the writ petitions which came up for hearing before Sathiadev, J., it was contended that the management had no effective

opportunity to make its representation. The learned, Judge allowed the writ petition and quashed the order taking over the management. That was

challenged in appeal and another Division Bench of this Court upheld the view taken by Sathpadev, J., in W.A. Nos. 590 and 591 of 1978

already referred to.

In this view, the order of the Chief Educational Officer dated 20th December, 1978, withdrawing the recognition has to be quashed, and the

writ appeal W.A. No. 316 of 1980 has to be allowed. Accordingly the writ appeal W.A. No. 316 of 1980 is allowed and the impugned

order/dated 20th December, 1978, of the Chief Educational Officer, Tirunelveli, will stand quashed. This order will not, however, prevent the

educational authorities from taking any fresh proceedings in accordance with law.

In view of the fact that the order of withdrawal is quashed on the ground that it is violative of Section 12(2) of the Act, it is not necessary to go

into the other ground raised by the learned Counsel for; the appellant that the impugned order is contrary to the policy contained in G.O. No.

1664, Education, dated 4th September, 1978.

There will be no order as to costs either of the writ appeals.