IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 29.09.2008 CORAM: THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN W.P.No.5250 of 1999 Carmel Higher Secondary School rep.by its Correspondent ..Petitioner -Vs.- 1. The State of Tamil Nadu rep. by the Secretary Education Department Fort St.George Chennai-600 009. 2. The Joint Director of School Education (Higher Secondary) College Road Chennai-600 006 ..Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandmus calling for the records of the second respondent in proceedings RC.No.5704/W6/96 dated 27.1.1998; quash the order dated 27.1.1998 and consequently direct the respondents to release the grant to the petitioner for the years 1992-93 and 1993-94 for payment of arrears of salary to the teachers covered by the common judgment dated 19.1.1996 made in W.P.Nos.10305 to 10309 and 10311 to 10340 of 1993 and also direct the release of the increments withheld for that period together with intrest at 12% per annum. For Petitioner : Mr.R.Yashodvaradhan, Senior Counsel for Mr.Sunil Kumar For Respondents : Mr.P.Subramanian, AGP https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition is directed against the proceedings of the second respondent dated 27.1.1998 whereby the claim made by the petitioner to release the grant for the academic years 1992-93 and 1993-94 for payment of arrears of salary to the teachers were rejected. 2. The factual matrix as culled out from the affidavit filed in support of the writ petition are as under:- Petitioner's Version The petitioner institution is a minority institution receiving cent percent grant from the Government for payment of salary to the teachers and other staffs. The institution has also been recognised as a minority institution by the Government. The institution was managed by the Bishop of Kottar on behalf of the Diocese of Kottar and in February, 1986 the management of the School was entrusted to South India Salesian Society. During the management of the School by the said Society, in October, 1992, serious disputes arose between the teachers and the management. As a result,in February, 1993, nine teachers were terminated from service on account of the alleged acts of misconduct. Again in April, 1993 another set of 27 teachers were terminated from service. The said termination was challenged by the teachers before this court in W.P.No.10305 to 10309 and 10311 to 10340 of 1993 and this court by an interim order dated 27.5.1993 restrained the management from appointing teachers in the place of the terminated teachers. 3. Subsequently the matter was mediated at the instance of the Arch Bishop of Madurai and accordingly settlement was arrived at between the South India Salesian Society and the Diocese of Kottar, whereby the Diocese of Kottar had taken over the management of the petitioner institution. In the agreement executed between the out going management with the Diocese of Kottar, it was agreed that South India Salesian Society would be discharged of any liability arising from their acts during their period of management. 4. Subsequently the management took steps for restoring the normalcy in the institution and accordingly 34 teachers were taken back and the other two teachers were permitted to retire from service as they have attained the age of superannuation. The salary in respect of these teachers were also claimed from the respondents from 1.7.1994 and the respondents have granted the same. In the meantime on 10.6.1995 the petitioner submitted an application to the respondents seeking release of the grant for the period 1992-93 and 1993-94 for effecting payment of salary to the teachers. https://hcservices.ecourts.gov.in/hcservices/ 5. In the meantime the writ petition preferred by the teachers in W.P.Nos.10305 to 10309 and 10311 to 10340 of 1993 were allowed by this court as per order dated 19.1.1996. This Court held that the orders of termination were illegal and the teachers were entitled to be reinstated with all attendant benefits such as backwages and continuity of service. It was also observed in the said order that the Supreme Court in similar circumstances in SLP (Civil) No.11671/95 had grated liberty to the management to seek reimbursement from the Government and accordingly liberty was given the petitioner to claim the salary from the Government. The order dated 19.1.1996 in W.P.Nos.10305 of 1995 etc., batch were challenged before a Division Bench by the second respondent. By an order dated 25.11.1997, the Division Bench held that no adverse orders have been passed against the State or the School and only a direction has been issued by the learned Single Judge. In the said order, the State was directed to decide the representation of the petitioner seeking grant within thirty days of the order. Since the Government have rejected the claim of the petitioner for grant for payment of salary to the teachers, the petitioner was granted liberty to challenge the order of the Government and the Writ Appeal was accordingly disposed of as per judgment dated 11.2.1998. 6. Subsequently the second respondent as per proceedings dated 27.1.1998 informed the petitioner that the Government was not responsible for the action of termination of the service of the teachers and as such the Government was not liable to pay the salary of the teachers upon such reinstatement. Even though the petitioner submitted series of representation to the first respondent no action was taken to pay the grant for the period in question and as such, the petitioner has come up with the present writ petition challenging the proceedings dated 27.1.1998 on the file of the second respondent. Nil Defence 7. Even though the writ petition was admitted and Rule Nisi was issued as early as on 31.3.1999, the respondents have not filed counter affidavit in answer to the contentions raised in the writ petition. Arguments on the side of the petitioner 8. Thiru R.Yashod Varadhan, learned Senior Counsel appearing on behalf of the petitioner contended that the termination of the teachers were set aside by this court as per order dated 19.1.1996 in W.P.No.10305/1993 etc. batch and as such the petitioner has no other way than to reinstate the teachers. It was only as a consequence of that reinstatement that the teachers have claimed their salary and https://hcservices.ecourts.gov.in/hcservices/ other benefits for the academic year 1992-93 and 1993-94. Since the petitioner was receiving cent percent grant from the Government for payment of salary to the teachers and other staffs the respondents were duty bound to pay the grant for making payment to the teachers for the period in question. The learned Senior Counsel also pointed out the observations made by the learned Judge about the liberty granted by the Supreme Court to the management to seek for reimbursement from the Government in similar case as well as the liberty granted by the learned Judge to seek grant from the first respondent and as such, according to the counsel, the second respondent was not justified in rejecting the claim made by the petitioner for such grant. The learned Senior Counsel also placed reliance on the judgment of this court in SECRETARY, ULAGAPPAR HIGHER SECONDARY SCHOOL ETC. v. JOINT DIRECTOR OF SCHOOL EDUCATION AND ANOTHER (1997-3-L.W.359) in support of his contention that the Government was bound to pay the grant to those teachers, who were terminated and later reinstated on account of the orders of the court. Contention of the Government Pleader 9. The learned Additional Government Pleader appearing on behalf of the respondents contended that it was only on account of the dispute between the then Management and the teachers that the teachers were terminated and though subsequently they are reinstated as per the orders of the High Court, the respondents were not liable to pay the salary for the period of termination as the Government was in no way responsible for the situation. It was his further contention that as the teachers have not worked for the period and the petitioner alone was responsible for such a situation, the liability was only on the petitioner to pay the salary for the teachers and they cannot compel the Government to pay grant for the purpose of payment of such salary. Factual Analysis 10. It is found from the pleadings as well as the material papers produced along with the typed set of papers that the then Management of the petitioner institution terminated 36 teachers from service for the alleged acts of misconduct. Subsequently the teachers were taken back as per the direction of this court in the Writ Petitions preferred by the respective teachers. However it was the case of the petitioner that even before the issue of such direction by the High Court the management had decided to reinstate the teachers. However the fact remains that there was a direction by this court in the respective writ petitions preferred by the teachers to reinstate all of them in service. 11. The writ petition preferred by the teachers were allowed by this court as per order dated 19.1.1996 in W.P.No.10305 of 1993 batch https://hcservices.ecourts.gov.in/hcservices/ mainly on the ground that no enquiry was conducted by the management before resorting to the act of termination. There was a clear finding in the order of this court that the order of termination was ex facie illegal and against the principles of natural justice. Therefore it is evident that the order of termination passed against the teachers were illegal, which made this court to pass comments against the management. Grant in Aid 12. The petitioner was given grant subject to the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "The Act"). Section 14 (1) of the said Act 29 of 1974 provides that the Government may continue to pay the grant to the private schools receiving grant from the Government, before the date of commencement of the academic year 1991-92 at such rate and for such purpose as may be prescribed. Section 14(2)(i) provides that the Government may withhold permanently or for any specified period the whole or part of any grant referred to in sub- section (1) in respect of any private school which does not comply with any of the provisions of the Act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private school. Therefore it is evident that the petitioner was expected to comply with the provisions of the Act and compliance of the same was found to be a mandatory requirement for payment of grant. 13. Section 22 of the Act mandates that no teacher or other person employed in any private school shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. Sub- clause (2) of Section 22 provides that the competent authority should satisfy that there were adequate and reasonable grounds for the proposal given by the management for terminating the services of a teacher. Therefore it was possible for the petitioner to terminate the services of 36 teachers only with the prior permission of the competent authority appointed by the Government. "Competent Authority" is defined as any authority, officer or person authorised by the Government, by notification, to perform the functions of the competent authority under the Tamil Nadu Recognised Private School (Regulation) Act,1973 for such area or in relation to such class or private schools, as may be specified in the notification. In the present case termination of the teachers were made without conducting any enquiry and the same was found to be illegal by this court while considering the writ petitions preferred by the teachers, who were terminated. https://hcservices.ecourts.gov.in/hcservices/ Violation of mandatory provision 14. It is evident that the petitioner has violated the provisions of Section 22 of the Act by not taking the previous permission of the competent authority for terminating the services of 36 teachers. Section 14 of the Act gives a clear authority to the Government to withhold permanently or for any specified period the whole or part of any grant in respect of any private school, which does not comply with any of the provisions of the Act. Admittedly, the petitioner has violated the mandatory provisions as contained in Section 22 of the Act and as such the second respondent was justified in rejecting the claim preferred by the petitioner for payment of salary and allowances to the terminated teachers for the period 1992-93 and 1993-94. Legal position 15. In SWAMY SADANANDA v. STATE OF TAMIL NADU(2002(3) CTC 553), a Division Bench of this court while considering the challenge to the constitutionality of Section 22 of the Tamil Nadu Private School Regulations Act observed that the order of dismissal cannot have any effect unless there was a prior approval of the competent authority under the said Act. 16. The Apex Court in STATE OF ASSAM v. AJIT KUMAR SARMA (AIR 1965 SC 1196) held that the condition under which grants in aid were given by the Government was binding on the educational institutions and observed thus. "11. What grant the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of statutory rules................sWhere such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will https://hcservices.ecourts.gov.in/hcservices/ naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in- aid." (emphasis supplied) 17. The materials available on record also shows that there was no enquiry conducted by the petitioner before terminating the services of 36 teachers. In fact this court in the order dated 19.1.1996 in W.P.No.10305 of 1993 etc. batch strongly condemned the action of the petitioner in terminating the services of the teachers without conducting domestic enquiry and observed that the teachers cannot be deprived of their salary and other emoluments for the period in question. While terminating the services of the teachers, the petitioner should have conducted necessary enquiry and absence of conduct of such enquiry was termed as ex facie illegal by this court. Conduct of Departmental enquiry 18. The Apex Court in D.K. YADAV v. J.M.A. INDUSTRIES LTD. reported in (1993 (3) SCC 259) underlined the necessity of conducting departmental enquiry before termination of the service of an employee and held thus:- "14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee / workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/ workman fair play requires that a https://hcservices.ecourts.gov.in/hcservices/ reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice." Decision relied on by the petitioner 19. The facts of the case in SECRETARY, ULAGAPPAR HIGHER SECONDARY SCHOOL, etc. v. DIRECTOR OF SCHOOL EDUCATION AND ANOTHER (1997(3) L.W 359) relied on by the learned Senior Counsel were entirely different. In the said case, the termination of the teachers were approved by the Chief Educational Officer and the consequential grant was also reduced in proportion to the salary payable to the four teachers. In such factual situation, the learned Judge observed that, it was not the case of the Government that the management has not complied with any of the directions of the Government nor has violated any rules or notifications so as to enable the Government to withdraw the grant. It was in such circumstances only the learned Judge held that it was the duty of the Government to pay the grant, in case reinstatement was ordered. However the facts of the present case is entirely different. There was no enquiry conducted by the management before terminating the services of the petitioner. There was total non compliance of the mandatory provisions of Section 22(1) of the Private Schools Regulation Act, inasmuch as prior permission of the competent authority has not been obtained before terminating the services of the teachers. Therefore the judgment in SECRETARY, ULAGAPPAR HIGHER SECONDARY SCHOOL case has no application to the present case. 20. The learned Senior Counsel for the petitioner also relied on the order of the Apex Court dated 12.7.1995 in S.L.P.(Civil) No.11671 of 1995 wherein the Apex Court granted liberty to the petitioner to ask for reimbursement from the Government. It is found from the order of the Apex Court that while dismissing the appeal preferred by the management against the order of the High Court, the management represented before the Apex court that the implementation was possible only after getting funds. In the said factual context, the Apex court directed the management to implement the order of the High Court within a period of two months and liberty was granted to the management to seek reimbursement from the Government. It is true that while allowing the writ petition, this court also granted liberty to the petitioner to approach the Government seeking grant for the period in question. The application submitted by the petitioner for payment of the grant was rejected by the Government and the said rejection was taken note of by the Division Bench while disposing of Writ Appeal Nos.1246 to 13280 of 1997 filed by the second respondent. In the impugned order dated 27.1.1998 the second respondent clearly indicated that the order of termination issued by https://hcservices.ecourts.gov.in/hcservices/ the management was illegal and to compensate the teachers on account of such illegal termination and the Government cannot be made to pay the salary to the teachers for the year 1992-93 and 1993-94, when admittedly teachers were not worked during that period. 21. The factual matrix projected in the writ petition also shows that it was only during the management of the petitioner institution by the South India Salesian Society that the act of termination was resorted to and ultimately the petitioner was compelled to take back the management from the said society. Conclusion 22. Therefore it is evident that it was only the illegal act of the petitioner in terminating the services of the teachers without conducting any enquiry that culminated in passing the order in favour of the teachers by this court. The respondents are liable to pay the grant only for conducting the affairs of the institution in a legal manner and the Government cannot be made liable to pay the grant for payment of salary and other benefits to the teachers on account of the illegal action taken by the management. There is no question of reimbursement in such cases when the payment was necessitated only on account of the unwarranted as well as illegal action of the management. The Government was expected to pay only the amount necessary for meeting the expenses for conducting the affairs of the institution in a legal and orderly manner. The Government cannot be burdened with such claims which has arisen solely on account of the illegal acts resorted to by the management. The tax payers money cannot be directed to be paid to enable the management to pay the salary to the teachers for the period in question, as the said situation was the creation of the petitioner themselves. Since the illegal termination was made solely by the petitioner and such termination has not been approved by the respondents which was a condition precedent for termination, the respondents are not liable to pay the salary and other benefits to the teachers for the relevant period and it is the responsibility of the petitioner alone to pay the arrears. 23. For the aforesaid reasons, I do not find any merits in the contention of the petitioner and accordingly the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Tr/ To 1. The Secretary to State of Tamil Nadu Education Department Fort St.George Chennai-600 009. 2. The Joint Director of School Education (Higher Secondary) College Road Chennai-600 006. 1 CC To Mr.R.Yashodvaradhan, Advocate, SR NO.56256 W.P.No.5250 of 1999 rsm(co) pmk/14.10.2008. https://hcservices.ecourts.gov.in/hcservices/