RSA No.1204 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1204 of 1993 Date of Decision: 6.05.2009 Rattan Singh Rathi ..Appellant Vs. Management Committee of S.D.Higher Secondary School, Narwana, ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.S.Narula, Advocate, for the appellant. None for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 5.2.1993 passed by the learned courts below, vide which RSA No.1204 of 1993 2 suit filed by the plaintiff for declaration to challenge the order of termination/dismissal dated 8.1.1984, stands dismissed. The plaintiff/appellant brought a suit pleading therein that he instituted a suit (No.41 of 8.1.1987 on 7.1.1987) to challenge the order dated 8.1.1984 passed by the defendant/respondent to be illegal, null and void on the ground that the school of the defendant/respondent was a recognized institution, and the service of plaintiff/appellant was governed by the Haryana Aided School (Security of Services) Act, 1971 (for short the Act) and the Rules framed thereunder. The school was said to be getting grant in aid from the Government. The plaintiff/appellant joined as JBT Teacher with the defendant/ respondent in September, 1974, and in view of unblemished service record and good behaviour the plaintiff/appellant, he was granted selection grade on 1.8.1979 by taking into consideration the seniority. His pay was accordingly fixed at Rs.660/-. The plaintiff/appellant was paid the revised pay fixed till, 31.8.1983, during this period there was no complaint against the appellant/plaintiff.; Vide order dated 21.9.1983/11.1.1984 received by the plaintiff on 25.1.1984 selection grade granted to the plaintiff/appellant was withdrawn, without giving an opportunity of hearing in violation of the provisions of the Act. The plaintiff/appellant claimed that the selection grade was granted to him on the basis of seniority which could not be withdrawn. It was also pleaded that the order passed was mala fide with an intention to harass the plaintiff. The plaintiff/appellant also challenged the order of termination dated 1.12.1984 against which he has already filed an RSA No.1204 of 1993 3 appeal before the DPI, Haryana. On notice the suit was contested by the defendant/respondent wherein it was pleaded that the selection grade was not legally given, as no resolution was passed by the Managing Committee nor any order was passed by competent authority. It was also pleaded that excess amount was wrongly paid to the plaintiff/appellant from 1.8.1979 to 18.9.1983. which was recoverable from the plaintiff/appellant. It was also alleged that the selection grade given to the plaintiff/appellant was in contravention of registered constitution, of the Management Committee and also against the Rules and Regulations. The defendant/Management claimed that grant of selection grade came to the knowledge of the defendant only when Ghansham Dass another teacher filed an application with the Management Committee seeking selection grade by referring to the grade granted to the plaintiff/appellant. By that time audit objection had already been raised against grant of selection grade to the plaintiff/appellant. It was the case of the defendant that on coming to know about wrong grant of selection grade it was withdrawn. It was also the stand of the defendant, that the plaintiff/appellant was not senior as he was on probation for a period of one year and aforesaid Shri Ghansham Dass was senior to the plaintiff/appellant. By way of resolution dated 18.9.1983 selection grade of the plaintiff was withdrawn and it was resolved that the seniority list be prepared. That the plaintiff/appellant was personally called by the Management Committee and after hearing him his plea was rejected vide RSA No.1204 of 1993 4 resolution dated 28.9.1983. The plaintiff/appellant thereafter filed an appeal against the decision of the Management Committee which was unanimously dismissed on 8.1.1984, after hearing the plaintiff. The plaintiff/appellant had a remedy of filing an appeal before the District Education Officer under the Act but he never bothered to file appeal before the appellate authority, but chose to challenge the order in a suit. Plea of suit being barred by limitation was also taken. Objection was also raised with regard to the maintainability and jurisdiction of the court. Objection of estoppel was also taken. It was claimed that the suit was barred by principles of res judicata because of his having filed an earlier suit against the defendant/respondent on 14.2.1984, which was dismissed. In the replication filed the averments made in the plaint were reiterated and that of the written statement were denied. The regular second appeal filed against the judgment and decree also stands dismissed. The plaintiff/appellant filed another suit No.262 of 6.4.1987 seeking a decree for declaration to the effect that the orders dated 16.10.1984, 26.11.1984, 30.4.1984 and 3.2.1987 passed by the defendant were null and void as they were against the prescribed procedure as well as against the principles of natural justice. It was also the case set up that the orders impugned were in gross violation of Rules framed in exercise of powers vested under the Act. The plaintiff pleaded that he was appointed as JBT Teacher by way of transfer in S.D.School, Narwana and he joined RSA No.1204 of 1993 5 services with the defendant on 19.9.1974 in the grade of 125-250 plus usual allowances. Keeping in view the long experience of the plaintiff/appellant he was allowed the same basic pay in the grade of 125-250 which he was drawing in the Arya Higher Secondary School, Narwana where he was employed earlier. It was stipulated in the appointment letter issued by the defendant/respondent that he was earlier drawing the basic salary of Rs.170/-. He was also taken as a member of the Managing Committee as one of the representative of school teachers. He claimed to have served the institution efficiently and honestly and after the expiry of probation period, he was confirmed as JBT teacher. The plaintiff claimed that grade of JBT teacher was revised by Haryana Government, he was also granted selection grade on 1.8.1979 on the basis of his outstanding performance and unblemished record of more than 16 years. The plaintiff/appellant thereafter was nominated as member of Market Committee, Narwana by the Haryana Government. The plaintiff/appellant made an application to the Headmaster on 22.5.1976 seeking permission to act and function in the aforesaid capacity. The application was received in the office of Headmaster on 22.5.1976 and permission was granted to the plaintiff/appellant. It was also the case set up by the plaintiff/appellant that his wife started a business under the name and style 'Phulpati Candle Work Narwana' on June, 12, 1978, and in that regard also the plaintiff/appellant intimated the school on 12.6.78 for seeking permission, on receipt of application the defendant/respondent assured the plaintiff/appellant that no objection RSA No.1204 of 1993 6 would be raised by the Managing Committee. On 27.3.1984 the plaintiff was suffering from low blood pressure, and was under medical treatment of Dr.Ramesh Gupta, he was advised rest for 3 days. He applied for leave from 31.3.1984 to 3.4.1984. However, in order to harass the plaintiff, the respondent/defendant withheld the pay of the plaintiff for that month. The order was challenged by the plaintiff/appellant on the ground that the Managing Committee was not legally competent to take any action punitive, or otherwise against the plaintiff/appellant because the management of the school was lastly approved by the Education Department of Haryana on 9.1.1976. Since then, several changes were made in the Constitution of the Management committee which were never notified to the department. It was also alleged that the management committee did not include the teachers representative, required under the provisions of Haryana Education Code. The plaintiff claimed that he was illegally and unauthoisedly placed under suspension w.e.f. 1.5.1984, whereas at that time no change sheet was served nor any departmental inquiry was pending against the plaintiff/appellant. Action, therefore, was said to be illegal. It was also pleaded that the defendant/respondent had failed to obtain approval of the District Education Officer regarding suspension of the plaintiff/appellant beyond a period of 3 months, thus violated the provisions of Rule 26 (5) of the Rules of 1974 made under the Act. The charges levelled were said to be false and baseless and not connected with the departmental inquiry initiated against the plaintiff/appellant. RSA No.1204 of 1993 7 The orders were said to be totally illegal and void as during the pendency of inquiry relevant record was not supplied to the plaintiff nor he was allowed to inspect the whole record which resulted in denial of opportunity of being heard. The punitive action taken against the plaintiff/appellant was claimed to be not sustainable. The plaintiff/appellant also pleaded that the action of the defendant/respondent was mala fide, arbitrary and motivated as the reply to show cause notice submitted by the plaintiff/appellant was not considered by the Managing Committee. It was also pleaded that the decision to remove the plaintiff/appellant from service was taken by the Management on 16.10.194 without looking into the evidence. The plaintiff/appellant thereafter moved the District Education Officer, Jind under the provisions of Section 3( 3) of the Act. On 29.10.1984 without deciding the application of the plaintiff/ appellant the District Education Officer approved the decision of the Managing Committee for removal of the plaintiff/appellant from service. The order of the District Education Officer dated 26.11.1984 was said to be illegal. The plaintiff also claimed that after receiving approval from the District Education Officer no order was conveyed to the plaintiff by the Managing Committee, and no final order was passed by the Managing Committee. The plaintiff claimed that he was attending the school regularly. The plaintiff/appellant also claimed that he was not bound by the order passed at his back. Challenge was also made to the order passed by the DPI Haryana on the ground that DPI Haryana, had not given due weight to the irregularities committed by the Managing Committee. RSA No.1204 of 1993 8 The suit was contested by the defendant/respondent by taking a plea that the plaintiff/appellant was not appointed as JBT Teacher by way of transfer from S.D.School. He was given a fresh appointment as he had resigned from service of Arya Higher secondary School. The plaintiff/appellant joined the service of S.D. Higher Secondary School in the grade of 125-250. Under the Instructions of Haryana Education Department the Management Committee, protected the pay and grade of every teacher who resigned from Arya Higher Secondary School, Narwana and joined S.D.High School, Narwana. It was pleaded that the benefits granted to the plaintiff/appellant were not on account of the past service of the plaintiff/appellant. It was, however, admitted that the plaintiff was confirmed on completion of probation period along with other teacher. It was pleaded that the selection grade was wrongly granted and when it came to the knowledge of the defendant, it was withdrawn. It was denied that the plaintiff had ever taken permission to act as the member of the Market Committee, Narwana. It was also denied that the plaintiff/appellant had moved any application seeking permission to act and function as a member of Market Committee, Narwana from the Headmaster of the School. It was also the case of the defendant that it was the plaintiff himself, who started the business of manufacturing the candles in the name of his wife, and that he never intimated the school in this regard as alleged. It was also denied that the plaintiff was ever assured that no objection will be taken by the Managing Committee for starting business. The case of the defendant/respondent was that it was on account RSA No.1204 of 1993 9 of charges levelled that the plaintiff/appellant was charge-sheeted. The defendant also submitted that the plaintiff was not at all ill from 28.3.1984 to 3.4.1984. The plaintiff/ appellant while moving medical leave application for 28.3.1984 to 3.4.1984 had assured that the medical certificate would be produced. The plaintiff was asked by the Headmaster on 29.3.1984 to produce the medical fitness certificate from the Chief Medical Officer, Narwana. Instead of producing the medical certificate, he submitted his joining report on 4.4.1984 with a photo copy of medical certificate issued by a private doctor. On being asked to produce the medical certificate from Senior Medical Officer, Narwana he forcibly marked his presence in the attendance register. The school was thereafter closed from 5.4.1984 to 15.4.1984. The plaintiff/appellant again marked his presence on 16.4.1984 in the attendance register without the permission of the Headmaster. The plaintiff/ appellant was asked vide letter dated 16.4.1984 to show cause why the plaintiff/appellant had marked his presence without permission and was further directed to produce medical certificate issued by the Chief Medical Officer within 3 days but the plaintiff never obeyed these orders. The case set up by the defendant/respondent was that necessity to ask the plaintiff to produce certificate from CMO arose as he was never ill. The plaintiff was said to be healthy during the period from 28.3.1984 to 3.4.1984 as during that period he had attended the courts in connection with his case and also visited the school and received the cheque of his salary from the office of the school, which he had later on encashed from RSA No.1204 of 1993 10 the bank. On merit, the case set up by the defendant management committee was that it was legally competent to take any action punitive or otherwise against the plaintiff. It was registered committee under the law, duly approved by the Government of Haryana. The committee was functioning as per its constitution, no change was made in the constitution of the Management Committee, as alleged. It was also the case of the defendant/respondent that the Management Committee was never biased with the plaintiff/appellant. He was not placed under suspension illegally and unauthorisedly as contended. The plaintiff was placed under suspension as punitive measure as he had failed to comply with the order of school authorities. The plea was taken that the departmental inquiry held against the plaintiff/appellant, was legal and valid, and that the relevant record was supplied to the plaintiff who inspected the concerned document. That the plaintiff/appellant was given due opportunity of being heard and the action against the appellant plaintiff was taken in accordance with law. Stand was also taken that the appeal filed by the plaintiff/appellant before the District Education Officer and DPI Haryana, Chandigarh was duly considered by the authorities and were ordered to be rejected after due consideration. Objection was also taken that the suit was bad for non-joinder of necessary parties. Plea of estoppel was also raised. Jurisdiction of the civil court to entertain and try the suit was also challenged. In the replication the averments made in the plaint were RSA No.1204 of 1993 11 reiterated and that of the written statement were denied. Learned trial court was pleased to frame the issues in Civil Suit No.41 of 8.1.1987 and 16.10.1987. However, we are not concerned with the issues so framed as the suit filed to challenge the order dated 8.1.1984 was dismissed by the learned courts below being not maintainable, and the judgment and decree stands upheld by this court in RSA No.1203 of 1993 by way of separate order. In the suit on the pleadings of the parties the following issues were framed:- 1. Whether the order dated 16.10.1984, 26.11.1984, 30.4.1984 and 3.2.1987 are null and void as alleged? 2. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 3. Whether the plaintiff is estopped from filing the present suit? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether no notice was served upon the defendant before filing the present suit if so its effect? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Relief. Both the suits were ordered to be consolidated. The evidence was recorded only in Civil Suit No.262 of 1987 as statement was made that RSA No.1204 of 1993 12 the evidence recorded in the suit be read in both the suits. The plaintiff in support of his case examined Dr.Ramesh Gupta as PW 1 and himself appeared as PW 2, besides placing on record the doctor certificate dated 3.4.1984 Ex.P.1, appointment letter Ex.P.2, letter of suspension Ex.P.3, copy of letter No.12/84 dated 18.2.1984 Ex.P.4., letter serial No.55/84 dated 17.5.84 Ex.P.5, charge sheet Ex.P5/A, copy of letter dated 4.5.84 Ex.P.6, copy of reply to charge sheet Ex.P.7, coy of letter dated 28.5.84 Ex.P.8, copy of letter No.45/84 dated 30.6.84 Ex.P.9, copy of letter No.47/84 Ex.P.10, Management Committee list Ex.P.11, letter dated 12.6.78 Ex.P.12, copy of letter dated 29.10.84 Ex.P.13, letter No.667 dated 1.12.1984 Ex.P.14, letter No.6/28-84 dated 6.10.1986 Ex.P.15, letter No.6/28/84 dated 31.10.1986 Ex.P.16, letter No.6/28/84 dated 12.6.84 Ex.P.18, postal receiptEx.P.19, letter No.56/84 dated 5.10.84 Ex.P.20, letter No.61/84 dated 16.10.84 Ex.P.21 and P.22, prospectus of school Ex.P.23, copy of statement of plaintiff Ex.P.23, letter dated 13.11.81 mark A,letter dated 9.7.84 mark B,and B/1, copy of letter from DEO regarding approval of action of termination of services of plaintiff mark C, letter dated 22.5.76 mark D, letter dated 20.10.86 mark E, representation of plaintiff mark F, representation dated 15.12.86 mark H, letter dated 26.11.84 Ex.P.24, appointment letter mark K, letter dated 21.9.83 mark L, letter dated 11.1.84 mark M and closed his evidence. Defendant/respondent on the other hand examined Jawahar Lal as DW 1 and placed on record copy of plaint dated 18.8.74 Ex.D.1, copy of letter dated 6.12.84 Ex.D.2, copy of letter dated 25.184 Ex.D.3, copy of RSA No.1204 of 1993 13 letter dated 16.10.84 Ex.D.4, copy of letter dated 30.5.90 Ex.D.5, copy of letter dated 9.8.90 Ex.D.6, copy of letter dated 25.1.84 Ex.D.7, copy of letter dated 9.7.84 Ex.D.8, copy of letter dated 29.6.84 Ex.D.9, copy of letter dated 16.4.84 Ex.D.10, copy of address dated 16.4.84 Ex.D.11, copy of letter dated 6.10.84 Ex.D.12, UPC postal receipt Ex.D.13, copy of letter dated 1.1.84 Ex.D.14, Postal receipt Ex.D.15, copy of plaint in file No.197 of 15.2.84 Ex.D.16, copy of issues dated 27.8.84 Ex.D.17, copy of order dated 1.2.1985 Ex.D.18, copy of show cause notice Ex.D.19, copy of show cause notice Ex.D.20, Inquiry report Ex.D.21, copy of seniority list Ex.D.21/A, appointment letter Ex.D.22, copy of application Ex.D.23, copy of letter dated 29.3.84 Ex.D.24, copy of application Ex.D.25, copy of order dated 4.6.90 Ex.DW 1/A certificate of registration of societies Ex.DW2//B, copy of order dated 29.9.74 Ex.DW 1/C, copy of letter No.150-86 Ex.DW7/D, certificate of registration of societies Ex.DW 2/B, copy of memo No.SO-83-84/6660 dated 26.11.84 Ex.DW7/E. In the Additional evidence the defendant/respondent placed on record copy of order dated 1.6.84 Ex.Z-1, reply of termination letter Ex.P.2 copy of order dated 19.10.89 Ex.Z-3, copy of judgment dated 22.11.88 Ex.Z-4 copy of order of DEO Jind, Ex.Z-5. Learned trial court took up issues No.1 and 2 together. The contention of the learned counsel for the appellant that though in the show cause notice it was proposed that why the services be not terminated, but the letter conveying the order of termination mentioned it to be order of dismissal and therefore, could not be sustained. The plea RSA No.1204 of 1993 14 was rejected by the learned trial court by observing that mere mention of the word dismissal, in the forwarding letter could not be the basis to set aside an order as in the show cause notice as well as in the order passed by the competent authority the appellant was ordered to be terminated and not dismissed from service. The learned trial court further held that even the District Education Officer while granting approval had approved the termination of service of the plaintiff/appellant and therefore, he could not draw any benefit from the mentioning of word dismissal in the forwarding letter. The plea of the plaintiff/appellant that the order was bad for non supply of inquiry report along with show cause notice, was also rejected along with the plea of denial of reasonable opportunity, by holding that the plea that the plaintiff was not given an opportunity of hearing could not be accepted. The finding was recorded as the learned trial court held that in spite of notice to the plaintiff/appellant, he did not appear before the Inquiry Committee, therefore, he could not find fault with the inquiry committee report. The learned court also took note of documentary evidence on record, vide which intimation was issued to the plaintiff to appear before the inquiry committee, which he chose not to avail. Learned trial court also rejected the plea of the plaintiff/ appellant that the termination of services is mala fide. That the inquiry report was biased document, by holding that it was for the plaintiff/ appellant to prove the plea of mala fide. The learned court also held that RSA No.1204 of 1993 15 the plaintiff/appellant failed to prove mala fide on the part of the defendant/ respondent in terminating the services of the plaintiff. The learned trial court further held that the plaintiff/appellant had failed to prove the pleas taken by him that the permission was granted to him to become member of the Market Committee, or that permission was sought, permitting his wife to carry out business of candle was not proved before the inquiry committee. The learned courts, therefore, held that there was no evidence at all to show that the plaintiff/appellant had taken permission of the Management Committee regarding two of the allegations i.e. being member of the Market Committee and starting business of candles. The learned trial court held that as the plaintiff/appellant was to stand on his own legs, it was for him to prove the stand taken by him. The learned court held that as the plaintiff/appellant failed to lead best evidence available and adverse inference was, therefore, drawn against him. The learned court further held that the plea of the plaintiff/appellant that there was violation of Article 311 of the Constitution of India, also could not not be accepted as the plaintiff was not a Government servant, so the benefit under Article 311 of the Constitution of India was not available to him. The learned court also held that the appeal filed by the appellant was dismissed by the appellate authority by recording a finding that the plaintiff/appellant had himself evaded to appear before the inquiry committee to support his contention, nor he was able to prove bias of the members of the inquiry committee against him. The learned court, therefore, held that the order passed by the Managing Committee of suspension and termination of RSA No.1204 of 1993 16 services could not be challenged in court because of the observation of the appellate authority i.e. Director, School Education, Haryana, Chandigarh. The learned trial court, was further pleased to hold that when special remedy is provided under the Act itself then the general remedy of suit was barred. The learned court also held that the civil suit filed by the plaintiff/ appellant was not competent because of availability of statutory appeal under the statute. The learned trial court decided issues No.1 and 2 against the plaintiff/appellant. On issue No.4 Learned trial court was pleased to hold that though the plaintiff/appellant had challenged the order dated 26.11.1984 passed by the District Education Officer, Jind and order dated 3.2.1987 passed by the Director, School Education, Haryana, Chandigarh but failed to implead the District Education Officer, Jind and Director of School, Education, Haryana, as party to the suit and therefore, the suit was not maintainable on account of non-joinder of necessary parties. The learned trial court was further pleased to hold that even though no relief in general was claimed against the authorities, however, order passed by them were impugned. The suit was held to be bad for non joinder of necessary parties. Issues No.3, 5 and 6 were decided against the defendant- respondent as these were not pressed. In view of the findings recorded above,