IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1628 of 1986 (O&M) Date of decision: 29 .11.2011 The Managing Committee, Arya Higher Secondary School, Dhuri, District Sangrur, through the Manager of the School and Shri R.P. Sharma, Principal of the School. ...Petitioners versus The State of Punjab, through the Secretary to Government, Punjab, Department of Education, Chandigarh, and others. ....Respondents II. Civil Writ Petition No.8400 of 1987 (O&M) Harbans Lal Goyal, M.A., Ed., Goyal Niwas, New Mandi, Dhuri- 148024, District Sangrur (Punjab). ...Petitioner versus The State of Punjab, through the Secretary to Government, Punjab, Education Department, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. S.P. Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate, for the petitioner in CWP No.8400 of 1987 and for respondent No.3 in CWP No.1628 of 1986. Mr. Chander Shekhar, Advocate, for Mr. Sudhir Mittal, Advocate, for the petitioners in CWP No.1628 of 1986 and for respondents 2 and 3 in CWP No.8400 of 1987. Mr. S.S.Sahu, Assistant Advocate General, Punjab. ---- Civil Writ Petition No.1628 of 1986 (O&M) - 2 - 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. Both these writ petitions address the validity of the order of dismissal from service of the teacher working in a college declared as a minority institution. The dismissal was found to be bad as one having been made without securing the previous consent of the State authorities in the Education Department as stated to be required under Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979. The impugned order was one passed by the Commissioner, Patiala Division in purported exercise of jurisdiction under Section 4 (2) of the 1979 Act referred to above. The Commissioner made a short work of the contentions raised on merits and proceeded to hold that in terms of the law laid down by the Hon'ble Supreme Court in DAV College Versus State of Punjab-AIR 1971 Supreme Court 1737, declaring the educational institution as a minority institution. As regards the decision of the Managing Committee to dispense with the services, which was contended to be not a subject of jurisdiction of the DPI (Schools), he observed that he would not sit in judgment of whether he had the competency under the Act or not and the plea of the educational institution should be addressed only to the High Court, as far as he was concerned. As per the Act, the approval of the DPI Civil Writ Petition No.1628 of 1986 (O&M) - 3 - (Schools), Punjab, was required to be obtained and if it was not done, the order was void ab nitio. The appeal filed by the teacher was accepted and the impugned order of termination of services was quashed. 2. Against this order, two writ petitions have been filed; CWP No.1628 of 1986 has been filed by the educational institution challenging the jurisdiction of the Commissioner to pass an order and CWP No.8400 of 1987 by the teacher himself finding that the decision to terminate taken by the Managing Committee was vitiated as violative of principles of natural justice. This, according to the learned senior counsel appearing on behalf of the teacher, has become necessary, since the impugned order itself does not examine the validity of the order of termination on merits but has dealt with only the issue of lack of previous sanction from the DPI as concluding the issue. 3. The extent of State intervention in matters relating to minority institutions have been the subject of several decisions but it would suffice for reconsideration to quote the case in The All Saints High School etc. etc. Versus The Government of A.P. and others etc. etc.-AIR 1980 Supreme Court 1042, where the Hon'ble Supreme Court held that while the State or any statutory authority had no right to interfere with the internal administration or management of the minority institution, it could take regulatory measures to promote the efficiency and excellence of educational Civil Writ Petition No.1628 of 1986 (O&M) - 4 - standards. However, under the cover or garb of adopting regulatory measures, it cannot take any action which would tend to destroy the administrative autonomy of the institution. It would, therefore, be open to a Government or University to frame rules and regulations governing the conditions of service of teachers in order to secure the tenure of service and to appoint even a higher authority with sufficient guidance to see that rules were not violated. The Hon'ble Supreme Court held that the provision for an appeal or a revision against the order of an authority of a minority institution by an aggrieved member of staff or setting up an arbitration tribunal shall not be permissible in the light of the law laid down by the Hon'ble Supreme Court in AIR 1974 SC 1389. Such a course of action would introduce an arena of litigation that would involve the institution in unending litigation, thus impairing the educational efficiency of the institution and create a new field for the teachers and thus draw them out of purely educational atmosphere of the minority institutions. In the course of judgment, the Hon'ble Supreme Court was striking down a provision in the Andhra Pradesh Recognized Private Educational Institutions Control Act providing for a State authority to conclude issues of termination, dismissal, etc. 4. Even while setting the contours of control by the State authority for preservation of excellence in education, the Hon'ble Supreme Court in T.M.A. Pai Foundation and others Versus State of Karnataka and others-(2002) 8 Supreme Court Cases 481, by Civil Writ Petition No.1628 of 1986 (O&M) - 5 - raising the question as to what extent could the rights of aided private minority institutions to administer be regulated said that the State or University could provide for the qualifications and minimum eligibility conditions. The right to administer itself is not absolute even for a minority institution and, therefore, regulatory measures could be imposed for ensuring educational standards and maintaining excellence thereof. Both for aided and unaided minority institutions, the Management must evolve a rationale procedure for selection of teaching staff and for taking disciplinary action. The right to administer cannot include a right to mal-administer. There shall, therefore, be a fair procedure adopted by a minority institution in the manner of exercising discipline over its staff but the State cannot make any interference over such decision. Apply the principles of law, the question of securing sanction from a Government simply does not arise. The impugned order could not have been passed by the Commissioner to hold that the want of prior sanction from the DPI vitiated the order of termination. On the other hand, there was no such requirement in law. The impugned order in so far as it holds the prior sanction of DPI was necessary is clearly wrong and against the constitutional scheme. In the decision of the Hon'ble Supreme Court in Secretary Malankara Syrian Catholic College Versus T. Jose and others-2007(1) Supreme Court Cases 386, the Hon'ble Supreme Court underscored that the right to administer an educational institution by a minority would Civil Writ Petition No.1628 of 1986 (O&M) - 6 - include a right to appoint teaching staff and to take action. If there is a dereliction of duty on the part of its employees, the State can regulate the service conditions of the employees of minority institution to ensure quality of education by requiring certain minimum educational qualifications. The extent of regulations which is permissible would be, (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments; (ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff; (iii) a mechanism for redressal of the grievances of the employees; and (iv) the conditions for the proper utilization of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions. The law is too well established to reopen the said issue. 5. The issue shall still be whether the decision to terminate a teacher had been taken after appropriate enquiry and whether the charges if established justified an extreme penalty of removal from service. The charges against the master of the school were: he did not obey the written order of the principal dated 20.12.1984 to submit the consolidated result of the December test of 1984 and did not mark the answer books of his students; instead, he had submitted a fictitious award list by giving extra marks of his own, without any authority or orders from the principal. When explanation was called Civil Writ Petition No.1628 of 1986 (O&M) - 7 - for by the principal for such dereliction, he had used unparliamentary, threatening and insulting language against the principal. Explanation had been called for from the teacher and the Managing Committee, which was not satisfied with the explanation appointed, an Enquiry Officer to enquire to the charges. From the records, it is seen that the Enquiry Officer Shri Dev Kumar Jindal had informed the teacher that he had been appointed as an Enquiry Officer and fixing the case for enquiry on 09.02.1985 at Bagh Road near State Bank of India, Sangrur. The teacher submitted a reply expressing that it would not be possible for him to participate in the enquiry on 09.02.1985 at the time and place specified since he was out of station for personal work on business. He had also asked for the photostat copies of all documents on which the Management was relying on for proving the facts of the charge-sheet. He had asked the Enquiry Officer to secure appropriate directions from the Management/Principal to allow him to go to the place of enquiry, namely, Sangrur with provision for TA and DA. He would complain further that he was unable to attend the hearing beyond duty hours at 2 PM, he being a domestic and social being (sic). He was, therefore, asking for a fresh date to be provided. 6. The Enquiry Officer has responded to this letter making an adjournment of hearing to 19.02.1985 and informing the teacher that the documents which the Management were relying on, were with him and that he was at liberty to make an inspection of the Civil Writ Petition No.1628 of 1986 (O&M) - 8 - same. The documents were: (i) A (answer) books of the students; (ii) the order of the principal regarding the commencement of December test; (iii) Attendance Register of 8, 9 and 10th classes for the month of December 1984; (iv) Order No.16, dated 20.12.1984. It was stated that he was not entitled to any TA and DA for attending to the enquiry proceedings and that the next date of hearing was fixed for 19.02.1985 at 2.30 PM. The teacher has responded to this information provided by the Enquiry Officer that he was unable to be present at the place unless TA/DA was provided to him. A mere inspection of the document was not sufficient and he should be provided with copies of the documents. However, if TA/DA could not be provided at least the venue of sitting must be shifted to Dhuri which was the place of residence of the teacher and it could not be done at Sangrur. According to him, justice required that the enquiry was to be conducted at the place of incident, namely, Dhuri and not at Sangrur. I have checked to find the distance between Dhuri and Sangrur was about 15 kilometers. Apart from responding to the Enquiry Officer, the petitioner has also raised his objection for the appointment of the particular Enquiry Officer, Shri Dev Kumar Jindal by addressing a communication to the Manager/President. He has raised the issue of bias against the Enquiry Officer by saying that, (i) he was staunch Arya Smajist and was under the influence of the Management; (ii) he was personally known to the Management and the impartiality and justice are highly doubted; (iii) some Civil Writ Petition No.1628 of 1986 (O&M) - 9 - persons from DPI office alone can render justice and impartially; (iv) the enquiry shall be held at Dhuri and providing of TA/DA as well. 7. The Enquiry Officer turned down the requests and proceeded to carry on with the enquiry even when the teacher did not turn up. I will find no error in the procedure adopted by the Enquiry Officer. It was unreasonable for the teacher to be demanding the shifting the place of enquiry when the enquiry was set at a place of mere 15 kilometers. Again, it was not appropriate for a teacher to demand that the enquiry could not be held at 2 PM. His insistence that it should be during only the school hours (duty hours) and that he should also be provided with TA/DA, did not seem appropriate. If it was a far off place, the provision of TA/DA would have been understandable. I would infer that the petitioner was merely picking up some lame excuses for not attending the enquiry. The imputation of partiality to the enquiry does not also cut much ice. There is no thumb rule that in all cases that copies of documents must be provided. If the Enquiry Officer was providing to him a right to inspection of the documents that included answer sheets of the students, I would think, they were fair enough. The petitioner was unnecessarily denying to himself a right of participation in the enquiry. The procedure for the enquiry, I cannot find to be defective at all. 8. The next question would be whether the Enquiry Officer Civil Writ Petition No.1628 of 1986 (O&M) - 10 - has taken a correct decision on the basis of the materials placed before him and whether tangible evidence were at all placed by the Management in proof of the charges. On the date of enquiry on 09.02.1985, the Enquiry Officer had before him a letter of the teacher refusing to associate himself with the enquiry. The principal and peon of school had come present. The principal had brought the records to show that he had given instructions to his teachers to give the answer sheets duly corrected before 05.01.1980. Instead of marking the answer books, he had given an award list to the principal. All the answer sheets remained uncorrected. When the principal had asked him why he did not mark the answer sheets for his subjects in history for 10th, English for 9th as well as for 8th, the teacher was said to have not given any explanation but he proceeded to use foul language against the principal. The answer sheets themselves were before the Enquiry Officer and he found that none of the answer sheets had been marked. The Enquiry Officer observed that if there was any justification for not marking any them, such as copying or any such irregularity, the same ought to have been brought to the knowledge of the principal and a fresh test ought to have been conducted. There was no room for brazen disobedience of the directions given by the principal. The manner of making his own appraisals and choosing to give fresh question papers was again an impermissible act. The principal was the overall incharge and the teacher cannot independently decide how Civil Writ Petition No.1628 of 1986 (O&M) - 11 - he will hold the test and how he will mark them. 9. As regards the finding that the teacher had used unparliamentary language, the words said to have been used were, “May we know why so” and “Hoping it will serve the purpose” and “ that either they are not at fault or closely related to you people”. I do not find any of these expressions to be unparliamentary, but there was a clear case of insubordination and an attempt to browbeat. The charges were clearly established. The findings entered by the Enquiry Officer that the charges had been proved were perfectly justified. 10. After the enquiry report, the petitioner had been given again an opportunity to show cause against the acceptance of the Enquiry Officer's report and he had also been given a personal opportunity to explain. The petitioner had not availed of personal hearing saying that he had nothing to say except what was stated in his reply. Nothing substantial came out of the reply and the Management has chosen to terminate his services. The gravity of evidence against a teacher for not marking answer sheets and betraying insubordination to the principal's order were serious enough to take a decision for terminating the services. I cannot find any fault with the findings of the Enquiry Officer. The decision to accept the report and the ultimate punishment meted out to him by its decision to terminate the services was, therefore, perfectly justified. Civil Writ Petition No.1628 of 1986 (O&M) - 12 - 11. The writ petition filed by the Management in CWP No.1628 of 1986 is allowed and the impugned order of the Commissioner is quashed. The order of termination of service is maintained and the writ petition filed by the teacher in CWP No.8400 of 1987 is dismissed. (K. KANNAN) JUDGE 29.11.2011 sanjeev