IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 31.10.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.1329 of 2010, M.P.No.1 of 2010 and M.P.Nos.1 to 3 of 2011 AVM Rajeswari Matric. Higher Secondary School, rep. By its Secretary, Mrs.Anita Shanmugham, No.10, AVM Nagar, I Street, Virugambakkam, Chennai 600 092. Appellant/(Defendant) cause title accepted vide order of court dated 27.10.10 made in MP.1/10 in SA.SR.94209/10 vs. N.R.Parameswari Respondent/Plaintiff) For appellant : Mr.S.Kamadevan For respondent : Mr.P.Sidharthan Prayer:- Second Appeal against the judgment and decree dated 8.4.2010 in A.S.No.526 of 2009 on the file of the V Additional Judge, City Civil Court, Chennai reversing the judgment and decree dated 17.7.2009 in O.S.No.4719 of 2007 on the file of the II Assistant Judge, City Civil Court, Chennai. JUDGMENT Defendant is the appellant. 2. The respondent filed the suit for declaration that the order issued by the appellant dated 24.2.2007 is null and void and for mandatory injunction directing the appellant to reinstate the respondent/plaintiff in service with backwages. The case of the respondent/plaintiff was that she was employed in the appellant school as Teacher and she was appointed on 5.7.1996 and she was https://hcservices.ecourts.gov.in/hcservices/ discharging her duties to the satisfaction of the appellant and she applied for maternity leave for three months from the first week of October 2006 and submitted a letter seeking for maternity leave on 10.8.2006 addressed to the correspondent seeking maternity leave from 4th October to 1st January 2007 and she was orally informed that her maternity leave was allowed and having given birth to the child on 6.10.2006, she sent a letter dated 21.12.2006 to the Correspondent of the appellant School informing that she would be joining duty from 3.1.2007. The appellant sent a letter dated 23.12.2006 stating that they have not granted any approval for her maternity leave and therefore, her service was placed under suspension as she has discontinued to attend regular work without any leave. As she was placed under suspension from 23.12.2006, she was further directed to submit all the documentary evidence before the appellant for considering the request of the respondent/plaintiff for reinstatement and the respondent/plaintiff also submitted the medical records and also stated that she applied for maternity leave during the period and she was also orally informed about the sanction of leave and on receipt of the documents, the appellants issued a letter dated 17.2.2007 stating that they would consider the respondent as a new recruit on temporary basis and directed the respondent to join duty on 20.2.2007 and the respondent informed that she is not willing to join duty as a fresh recruit on temporary basis and she is entitled to join duty without any break in continuity of service and requested the appellant to cancel the letter dated 17.2.2007 and without considering her request, the appellant sent letter dated 24.2.2007 informing her that she has not joined duty as per the letter dated 17.2.2007 and therefore, her certificates were returned and hence, letter dated 24.2.2007 was challenged in the suit by praying for declaration that it is null and void and for mandatory injunction as stated therein. 3. The appellant contested the suit stating that the relief prayed for cannot be granted and there is no termination order and the respondent/plaintiff was not employed as a regular worker and she was employed only on temporary basis and without getting permission to go on maternity leave and without informing the appellant- management, she absented herself and therefore, in her place, another teacher was appointed as the studies of the student should not be affected and after considering the request of the respondent/plaintiff on seeing the medical particulars, the management, out of sympathy, decided to consider her as new recruit on temporary basis and asked her to join duty on or before 20.2.2007 and as the respondent/plaintiff did not avail the opportunity, they have returned the certificates given by the respondent/plaintiff to enable her to seek employment in any other place. It was therefore, contested that the respondent/plaintiff cannot ask for reinstatement with backwages and the suit is also not maintainable as admittedly, the respondent/plaintiff challenged the order of the so-called termination by filing appeal before the appellate authority and https://hcservices.ecourts.gov.in/hcservices/ having availed the appeal forum as per the Rules, it is not open to the respondent to file the suit for declaration. It was further contended that there was no termination of the service of the respondent by the appellant in the letter dated 24.2.2007 and in the absence of termination, it is not open to the respondent to challenge the same. 4. The Trial Court dismissed the suit holding that there was no order of termination as per the letter dated 24.2.2007 and therefore, the respondent/plaintiff is not entitled to declaration and consequently, she is not entitled to the relief of mandatory injunction. 5. The first appellate court set aside the findings of the Trial Court and allowed the appeal and decreed the suit holding that without conducting proper enquiry, the appellant placed the respondent under suspension and also refused to permit her to join duty and the respondent was not given reasonable opportunity before her services were terminated and the respondent has gone on maternity leave which is permitted under the statute and therefore, a person cannot be punished for having gone on maternity leave and as the service of the respondent was terminated without giving reasonable opportunity, the order of the appellant is liable to be set aside and granted decree of declaration and mandatory injunction. Hence, the second appeal. 6. The following substantial questions of law were framed at the time of admission:- "1. Whether the lower appellate court is justified in decreeing the suit and directing the reinstatement with backwages, continuity of service and other attendant benefits in favour of the plaintiff holding that the proceedings dated 24.2.2007 will amount to termination of service? 2. Whether the lower appellate court is justified in maintaining the suit holding that the proceedings dated 24.2.2007 is the termination of service of the plaintiff? 3. Whether the lower appellate court is justified in granting permanent status and other benefits to the plaintiff when admittedly she was working on temporary basis before the institution of the suit? 4.Whether the lower appellate court is justified in applying the provisions of Maternity Benefits Act, 1961, the Rules and Orders applicable to the Government Servants when the appellant school is https://hcservices.ecourts.gov.in/hcservices/ governed by the Code of Regulations applicable to the Matriculation Schools? 5. Whether the lower appellate court is justified in decreeing the suit when admittedly the respondent preferred an appeal against the alleged order of termination dated 24.2.2007 and the same is pending before the competent authority? 6. Whether the lower appellate court is justified in ordering reinstatement and other benefits to the respondent automatically holding that there is violation of principles of natural justice and without remanding the matter to the appellant for fresh consideration?" 7. Mr.Kamadevan, learned counsel for the appellant submitted that the respondent was not appointed on permanent basis though she was working in the School from 1996 onwards and she absented herself without applying for leave and the management did not receive any letter as alleged by the respondent and only in December 2006, they received a letter about the date of joining duty by the respondent and thereafter, they have taken steps to conduct enquiry and also placed her under suspension and on seeing the medical records, they took a sympathetic view and permitted the respondent to join duty on temporary basis as before and the respondent did not avail the opportunity and therefore, her certificates were returned and there is no termination order. He further submitted that as per the provisions of the Matriculation Schools Act, remedy by way of appeal to the educational authorities is provided and admittedly, the respondent has availed the opportunity and filed an appeal to the authorities and therefore, she is not entitled to file a suit seeking for a declaration and her remedy is to pursue the appeal and get the relief as per the provisions of the Act. He, therefore, submitted that the suit filed for declaration and mandatory injunction is not maintainable and the respondent is not entitled to seek the relief of declaration as the letter dated 24.2.2007 cannot be considered as a letter terminating the services of the respondent and this was rightly considered by the Trial Court and therefore, the suit has to be dismissed. He also relied upon the judgment reported in VAISH DEGREE COLLEGE v. LAKSHMI NARAIN ((1976) 2 SCC 58), LILLY BAI v. CHINNA THAI (1996 (1) MLJ 131) and SUPERINTENDING ENGINEER, VIRUDHUNAGAR ELECTRICITY DISTRIBUTION CIRCLE v. MURALI RAJA (2008(3) CTC 395) in support of his contention. 8. On the other hand, Mr.Sidharthan, learned counsel for the respondent submitted that admittedly, the respondent was working in the appellant School from 1996 onwards and she was paid consolidated salary and they have also deducted Provident Fund and she was treated as a regular employee and she having put in more than ten years of https://hcservices.ecourts.gov.in/hcservices/ service, it cannot be stated that the respondent was only a temporary employee and having regard to the length of service and the statutory deductions made by the appellant, the respondent must be considered as a permanent employee of the appellant School. He further submitted that the respondent submitted maternity leave letter dated 10.8.2006 through the Principal and she was also confirmed by the Correspondent that her leave was sanctioned and on that basis, she went on leave for delivering a child and that was also known to the appellant and she also sent a letter on 21.12.2006 informing the date of her rejoining the duty after the leave and only after receipt of that letter, the appellant sent a letter dated 23.12.2006 as if the respondent did not inform them about the maternity leave availed by her and placed her under suspension and without conducting enquiry, they also offered to re-employ her and in their letter dated 17.2.2007, it was stated that she would be re-appointed on temporary basis and she was informed that she may not be accommodated in the same post and she was asked to appear before the Principal with request for such appointment on or before 20.2.2007 and thereafter, sent a letter dated 24.2.2007 returning the certificates and the consequence of events would prove that the letter dated 24.2.2007 is only a termination letter, as otherwise, there was no necessity for the appellant to return the certificates. The learned counsel for the respondent further submitted that if really the respondent had absented herself without applying for leave, the appellant would have taken action immediately thereafter and they would not have kept quiet for three months and only after the respondent informed the date of joining duty as 3.1.2007, they sent a letter dated 23.12.2006 placing the respondent under suspension and even without conducting enquiry, they offered to appoint the respondent on temporary basis and therefore, it is a clear case of violation of principles of natural justice and going on maternity leave is statutorily recognised and a female teacher cannot be penalised for availing maternity leave and it cannot be contended that the respondent is only a temporary teacher and as the service of the respondent was terminated without conducting any proper enquiry, the suit for declaration is maintainable and the respondent is entitled to join duty with continuity of service and she is also entitled to backwages. The learned counsel for the respondent also relied upon the decisions in MUNICIPAL CORPORATION OF DELHI v. FEMALE WORKERS (MUSTER ROLL) AND ANOTHER (AIR 2000 SC 1274), BENJAMIN J. v. MANAGEMENT OF BHARAT EARTH MOVERS LTD. (2006-I-LLJ 975), M/S.HINDUSTAN TIN WORKS PVT LTD. v. THE EMPLOYEES OF M/S.HINDUSTAN TIN WORKS PVT. LTD. AND OTHERS (AIR 1979 SC 75), REGISTRAR (ADMN.), HIGH COURT OF ORISSA v. SISIR KANTA SATAPATHY (AIR 1999 SC 3265) and HARI PALACE v. LABOUR COURT (1980-II-LLJ 294) in support of his contention. 9. Mr.Kamadevan, the learned counsel for the appellant further submitted, on instructions from the appellant management, that the appellant is prepared to take the respondent into service with https://hcservices.ecourts.gov.in/hcservices/ continuity of service without backwages, but, the learned counsel for the respondent submitted that the respondent was not employed regularly after the termination and she was employed intermittently for some time and unless the appellant takes back the respondent into service with backwages, the respondent is not willing to join duty. 10. In this case, it is not disputed that the respondent was appointed in the year 1996 and she was taking classes for kindergarten without any complaint. It was alleged by the appellant that the respondent absented herself without applying for leave and the case of the respondent was that she sent leave application seeking maternity leave to the Principal and she was orally confirmed by the Correspondent that her leave was sanctioned. 11. The appellant did not examine the Principal to rebut the case of the respondent that she sent leave letter for maternity leave through the Principal and the appellant only examined the Correspondent. Further, as submitted by the learned counsel for the respondent, if really the respondent had absented herself without applying for leave as contended by the appellant, the appellant would have taken action against the respondent immediately thereafter and they would not have waited till they received a letter from the respondent in the last week of December 2006. Further, it cannot also be accepted that the respondent was appointed on temporary basis considering the length of service and also the fact that statutory deductions were made from her salary. Therefore, having regard to the conduct of the appellant in not examining the Principal, making statutory deductions and the length of service put by the respondent, it cannot be stated that the respondent was only a temporary employee and I hold that she was a permanent employee of the School and therefore, the third substantial question of law is answered against the appellant. 12. It is admitted that the respondent was placed under suspension and even without conducting any enquiry, the appellant sent a letter dated 23.12.2006 offering to re-appoint the respondent but, informed her that she would not be placed in the same post. Further, under letter dated 17.12.2007, it was stated that the respondent would be appointed on temporary basis. Therefore, from the tenor of the letters dated 23.12.2006 and 17.2.2007, it can be held that the appellant was not prepared to take back the respondent in service with continuity of service and they offered to re-appoint her as a new recruit. Further, under letter dated 24.2.2007, the service of the respondent was not terminated and the respondent was only informed that she failed to avail the opportunity in joining the duty as per letter dated 17.2.2007. Therefore, a reading of the three letters of the appellant, it can be held that by letter dated 24.2.2007, the service of the respondent was not terminated and even prior to that, the appellant made it clear that they are prepared to take back the respondent into service and they only offered to give https://hcservices.ecourts.gov.in/hcservices/ her new employment. Therefore, it cannot be contended that the appellant terminated the services of the respondent by issuing letter dated 24.2.2007 and that termination is null and void. Even assuming that the services of the respondent were terminated even prior to the letter dated 24.2.2007 and not under letter dated 24.2.2007, whether the respondent is entitled to the relief of mandatory injunction can be answered having regard to the provisions of the Tamil Nadu Matriculation Schools Act and also the judgments rendered by the Honourable Supreme Court in that regard. 13. In the judgment reported in (1976) 2 SCC 58 cited supra, the Honourable Supreme Court held as follows:- "We would first deal with the important question, which has been the sheet-anchor of the arguments of the learned counsel for the respondent as also the main basis of the judgment of the Full Bench of the Allahabad High Court, as to whether or not the appellant Executive Committee can be said to be a statutory body in the circumstances of the present case. It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi(AIR 1975 SC 1331) this Court clearly pointed out as to what constitutes a statutory body. In this connection my Lord A. N. Ray, C.J., observed as follows: (SCC p.435: SCC (L&S) p.115, para 25) "A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute." It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come https://hcservices.ecourts.gov.in/hcservices/ into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. The High Court, in our opinion was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body. In fact the Full Bench of the High Court relied on three circumstances in order to hold that the Executive Committee was a statutory body, viz., (i) that it was affiliated to the Agra University which was established by the statute; (ii) that there were certain mandatory provisions in the Agra University Act which were binding on the Executive Committee; and (iii) that the Executive Committee was governed by the statutes framed by the Agra University. In our opinion, none of these factors would be sufficient to alter the character and nature of the Executive Committee and convert it into a full-fledged statutory body. To begin with the Executive Committee had an independent status having been registered under the Registration of Co-operative Societies Act, 1860 and was a self- governed or an autonomous body. It was affiliated to the Agra University merely for the sake of convenience and mainly for the purpose that the courses of studies prevalent in the College may be recognised by the University. 11. Statute 14-A of the Agra University Hand- Book (1965-66) runs thus: "Each College, already affiliated or when affiliated, which is not maintained exclusively by Government must be under the Management of a regularly constituted Governing body (which term includes Managing Committee) on which the staff of the college shall be represented by the Principal of the college and at least one representative of https://hcservices.ecourts.gov.in/hcservices/ the teachers of the college to be appointed by rotation in order of seniority determined by length of service in the college, who shall hold office for one academic year." All that the statute of the Agra University required was that the Managing Committee of the College must co-opt the Principal of the College and one representative of the teachers of the college by rotation as members of the Committee. It is manifest that by co-opting these members the Managing Committee did not lose its independent status but continued to remain a non-statutory and autonomous body. Similarly the mere fact that the statutes of the University were adopted by the Managing Committee and it was as a matter of convention bound to follow the statutory provisions of the Act would not clothe the Managing Committee with a statutory status or character. In fact the adoption of the statutes was agreed to by the appellant Executive Committee for the better governance, administration and extension of the educational activities of the institution. In fact an identical argument which forms the basis of the judgment of the Full Bench of the High Court had been advanced before this Court and rejected outright. For instance in Sabhajit Tewary v. Union of India (AIR 1975 SC 1329, 1330) the question was whether the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act, as the present appellant is, was a statutory body. It was urged that because the Council of Scientific and Industrial Research had government nominees as the President of the body and derived guidance and financial aid from the Government, it was a statutory body. A.N. Ray, C.J., rebutted these arguments and observed as follows: (SCC pp.486-487: SCC (L&S) p.100 para 4) "The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, https://hcservices.ecourts.gov.in/hcservices/ guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner. Similar view was taken by this Court in Kumari Regina v. St. Aloysius Higher Elementary School (AIR 1971 SC 1920, 1924) where this Court observed as follows: "But it cannot also be gainsaid that as the Government has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers, dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The Management of a school, therefore, would commit a breach or non-compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as