IN THE HIGH OOURT OF JUDIG&.TUR2 AT JABALPUR.. WRIT PETIIIOB^fi)DS> OF 1998. PETITIONER 8 ^i^-^ t^v^,^s^" •i.'...^^}!£"-—~-^_ wsr B.i.laspur. '.. ^^- ^\ ;§PONDEBTS: -Ravindra Nath Son o£ Late Sarad Chandra Nafh, aged about 57 years, Principal Bengali Higher Seeondary School,Bilaspur. ^1 -VEBSOS- t. tioint Dj.recter, Schoel Education, ;;'iviaj.®na Bilas^-ur. 2. Bengali Association Bilaspur, through its GeBeral Secretaiy. 3. Secretary, Bengali Associatien (Sehoal Section) Bi.laspur. PETITION ONDER ARTICLE 22B/227 OF THE CONSTITUTION OF INDIA. 'S^-HWK ww ^l ^ Bl HIGH COURT OF CHHAmSSARH AT BILASPUR WRIT PETITION No. 2803 of 1998 Ravindra Nath Versus District Educatfon Offieer and ottiers Order be posted tor 2^-1 1 -2008 Sd/- Judge ^-i" <^- 'f.. .^ HIGH COURT OF CHHATTISGARH AT BILASPU^ Writ Petition tto. 2803/1998 PETITIONER Ravindra Nath Versus RESPONDENTS Dlsfrict Educaflon Officer and ottiera Shri M.P.S. Bhatiacounsel (br the petlUoner. Shri SaBsh Gupta GA for responctent No.l/State. ORDER (^T-11-2006) The pefflfoner by this prtBon uncter Artteles 226/227 of tha Constitution of tndia has chaltonged the order cterted 2/17-6-93 (Annexure^) whereby the responctent No2 on the basis of inquiiy report of the inquiry ofRcer has removed the peBtionw ftwn the post of Prtoicipal, Bengali Higher Secondary School, wlth immediate effact. 2. The case of the p^itioner is that he was appointed as Princlpal and confirmed on Ihe sakl po^ victe Annexure -A in the year 1977. The Bengali Higher Secondary School is run by respondent hto^ whieh gels grant in aid from the State Govemment. Responctent hto.3 is the Secratary of ttie Schoot. The services of the trachere and employe» <rf non govemment school recehring grant in aid from the State Government are regulated by Chhattisgarh Ashasldya Shikshan SansUta (Adhyapakon Tatha Anya Karamchariyon Ke Vetan Ka Sandaya) AdWn^am, 1978 (hereinafter referred to as AdWniyam of 1978) and the State Sovamment has framed Rules known as ChhatUsgarh Ashaskiya Shitehan Sanstta (Adhyapakon Tatha Anya Karamchariyon Ko Padachyut Karrw Sewa Se Hatane Sambandhi Prakriya) Niyam 1983 wwci^r^ powers under Secton 10 of the Adhiniyam <rf 19TO. •<- —2-- 3. The petfUoner was served with memorandum <rf charge dated 26.2.1993 (Annexure-B). The petiUoner denied the charges vkto his reply dated 6.3.1993 victe Annexure^; whereupon the respondent No. 3 decided to conduct Departmental Enquiry and appointed one Mr. B.N. ChakraborU, rethred ASO as Enquiry Offteer to enqutro mto the cha^es against the pedttoner vide Annexure-D. The paUUoner agatn addressed memo dated 6.4.1993 of Annexure^ and chaltenged Ihe airthwily of r^pondent No.2 to nominate the Enquiiy Officer daiming ttiat rde does not authorize for ttie same and e)q»rassedhis dteaflreement to the advtee to attand Inquiiy. The Enquiry Offlcer vkto memorandum of Annexure^ addressed to the prtltioner again requested him to attend the inquiry as scheduled, failing whlch ex parte inqulry was threatened to be conduoted. The peUtfoner addressed a memorandum dated 10.4.1993 (rfAnnexure^ to fte respondent No.3 and reiterated that the proposed hiqwry to be conducted against him by a chosen inquiry ofteer is oontrary to law and rules. However, the Inquiry Offteer conducted ex parte hiquhy against Wm and submitted his inquiry report to ttie reqaondant No.2 who after considering the inqutry report and find'ings recorded, ordered removal of the petiUoner from fte post of Principal vlde Amiexure4. The peUtioner unsuccessfully chaltengedthe above order by way of cMI suit h the Court of 5th Civil Judge Class-11 Bilaspur, however, the same was dlsmissed vlde order of Annexure-J wtth a finding that the appellate authortty consUtuted under SecUon 6 of the Mhiniyam of 1978 has the jurisdictton to entertain the appeal against the order cS punishment imposed on the peUttoner. 4. Learned counsel ft>r the peMxmer submNs ttat tt» StatB Govemment has framed rules cf 1983 in sxercise of the powws under Section 10 of the Adhiniyam of 1978 and the Inquny Officer appointod by the management has no authority under <he law to inquire Into the charges framed because as per Rute 7-B of the Rute 1983 ttie Inquiry Officer was to be appofnted by ttw Dwislonal Superintendent, EduwUon presentty posted as the Jdnt Director. He submits that Ruto 12 (3) (b) of the f^itos of 1983 spedfically provides that bdbre taMng a deGision in respect of "^. Ife.,: f^f ! inquiry held, the whole case along with the proposate of the wderintended to be passed is to be sent to the competent authorty for Bs appreval and in case of the pefBtioner <he Jolnt Director, CdtBatlon nas the compatent authority. However, th®respondents wtthout (Artalning appreval of ttte competent authority have passed ttfe order of puiishrmnt vlde Ann®(ure- 1 and therefore, the above order is nullity in Vhe eyes of law. 5. The respondents hto. 2 and 3 tn their ratum artxrttted ttet thair institullon Is a Linguistlc Mlnority histitirton being protacted under Aiticte 30 (1) of the Constihrtion of tndia vlde Annexure R-2(1). The psUtlonw was afforded full opportunlty to present hts cwe. The Inqulry Offtoer aetad impartlally and observed the princ^Bto <rf natural Justtee and onty after di» consideration the order of removal crf tha peUttonw from Vh» post of Principat was passed. Responctent No.1 In Us separate reply hrc stated that Rute of 1983 framed undw Uie Act of 1978 are applicabte to the respondents 2 and 3. The State Govemmeirt vlde circular datad 16.5.2000 of Annexure R-2 revoked eariier cireular dated 11.4.1984 Annexure R-1 and 12.7.1984 with immediate effect and clarified that fbr tha purpose of appointment in the aided insBtuttons, Religtous and Unyitefe MinorWes Group shall also observe various eligibility criterta fbced by the State Govemment from time to tune. 6. Leamed counsel for the petitioner submte that the instant petiUon was admitted by Uiis Court in ttie year 1998 and therefore, availabilily of the altemaflve remedy of statutory appeal under Sectfon 6 of the Adhtniyam 19TO and Uw rutes made thera under shall not ceme m tha way of this p^ition. He plaeed reliance on the deciston of fte Supreme Court in the matter of Dr. (Smt) Kuntesh Gupta reported in AIR 1987 2186. He further placed reliance on Uie decision of Supreme Courtln the matler of TMA Pai Foundation Vs. Slate of Kamatka reported in ABt 2003 SC %5, It is arguad that the ahted In^ihdfon run by UnguisUc Minority Group are subject to the Adhiniyam and Vne Rutos made ther& under. ~t- Ws^ sl I-1:1 •6(- 7. On the other hand leamed counset fw respondants 2 and 3 referring to the doeument of Annexure R-1 belng fca drcutar datect 11.4.1984 issued by Ihe Diredorate, Publte Educatlon, submtts that the provistons <rf SecUon 6-A sub secSon (iii) (iv), SeeUon 6-B and 6-C aS ttie Adhfniyam of 1978 shall not be applfcabte to an added Rel^kxis and Llnyiistic hfflnorify insBtuBon. He further submtts that tt<e respondente 2 and 3 is an UnguisUc MinorBy Institutkm and thus is prrtscted under Arttete 30(1) of the Constttution of tndia and fterefora, attia retovart time when general cireutar issued by the State Govemmert was in fcree, (here was no legal requirement on the part <rf <he insUtufon te> oblain sancUon /approval of the competent auUwrity uncter the Adhmiyam of 1978 bafore taking dlscipBnarxadionagainstthe peUfioner. 8. I have heard teamed counsel for the parti«,periBed tte (rioadin^ and the documents filed by the parties. 9. The petiUoner was seived a detaited charge shwt vlde Annexure- C. Artteles of charge framed agalnst» pettBoner were of the nature fcat whlte holding the post of Principal of the InsdtuUon he in^gated and misgulded the teachhig and non teaching staff of Bcnyill School to go on strike and he himself wss a s^natoiy to the sWka notfce. He got Ws son Ktenoj Kumar Natti admitted to cla»8* by ghrfng fetee declaration ami producing false Transfer CwWcaSs ht hte faivow. Howwer, fte petitfoner In staad of spedtfeatly reptylng the chargea tewted (^alnst Wm hurled counter altegafens that the asit of respondents 2 and 3 was biased and inclined to one side, reveng^U and mallcfous and tfierefore, denied. In these circumstances, the rospondent Soci^y ordered to conduct discipHnary procaedings and appointed the enquhing auttwrity to inqutre into th®cha^as <ranwd against the petWoner. Howm/er, the peUBonw instead of part'cipating In Ihe inquiiy proceedlngs rateed an oyecUon that the Inquiry dficer has been awiointed In vtolation afthe Rdas of1983. In these cireum^ances the Inquiry was held ®(parteand the petWoner was remoyed from the post of Principal vide wdar of Ann«(ure'4on the basis <- \^ —s' </• •of cwN suit in the court cf 5th Chril Judge Ct^s4t BUaspur whteh was dismissed v^ a fineNngfl^ tha or<to^^ (^^ before the appeNate auttiortty under Seetton 6 ofthe Act <rf 1978. Howwer, ttie petitioner instead of preferrtoig an appeal under secton 8 ofthe Act, has preferred fcls writ pelitkm sotofy on technkal ground ttat the appoinfcnent of the inquiiy cfflcer was contrary to ttie rules of 1^3 and thsrt the respondents before proceeding against the peUUoner on the l»sfe of inquiry report dkl not forward the report akmg witti ttie doeumwits and proposed imp<alt!on of penalty a^iinst fte petiUoner. 10. Th&only objecfionttiat tK®be«tralsed t^lhe petNioner fe that the appointmecrt of <he inquiry dSGcw for conducUng inquiry agalnst the petitioner was made In contravenBon <rf Rute 7(i) (b) <rfthe Rutes of 1983 and ttie order oftenninaUon is ateo in contraventton of Rute 12^)9>) of the rutos of 1983. Clrcular dated 11.4.1984 - Annexure R-1 pertarfns to the staff recruBment/dtecipUnary actton again^ #ie aided InstUutton established by Rellgious and LinguisSc Minority gmip anet in the said cireular il has been categorically menttoned ttiat pr®vlsk)nsof SecUon &4i 0'ii) Civ) 6(c) and (d) <rf Rutes of 1983wlH have no aw>lkK<ton to an ahted Minority and Linguistlc insUtuUons. Th®consUtutloral vdldity of thls circuter was quesfioned and the High Court of Madh^i PrsKtosh in th® msrfter of S. Ram, Prlncipal Vs. G.P. Shrivastava, ftegBtiw and othere reported in 1992 MPU 49 has approved ttie rafio laid down by the Dhriston Bench in fte matter of Siddhl Bala Bose Ubrary Assoclatton Vs. StateofBlhar reported in AIR 1979 MPU 379 hetdas under "The only tegisMve change, after flw above decisten, was amendment of sectton 6(a)(ili) (rfttie Act and prescribing procedure of hokfing dtedpBnary enquiiy by lules whteh indude the prwiston for geWmg approval from the competont authority before tenninating or removing or dispensirgwittt the servlce <rf an employee oT an educattonal in^Uuflon. On the same reasoning, on whteh unamaided provisions in the Act, were held vtolaBve of Artfcte 30 of the 'fr' (o- B Con^itution of India. Similar provisfons in ttia rutes intendlng to interfere with the right of discipllnary control of minority rutos intending to Interfere with the right of disciplinary control of minority over their instifaitions can be held invalid under Article 30(1) <rf the Constitution. We cto not find anyttiing in ttie Wer decisions of <he Supreme Court (supra) tatdng a different view wtth regard to Uie power af ftie disciplinary control of Authority af an alded minority institution. The circutar of fhe Govenmient, is therefore, in tune wffli the spirit and content of ^ticte 30(1) of Bie Constitution and the rutes quoted above on whteh reliance has been phued by the peUUoner can be no appllcaUon to the rtinortty in^itutfons. A passage in Frank Authority Publte School (supra) to which our attentfon was speGialty invited by the teamed counsel for the peUUoner fully supports Uie view taken by <he DMsion Banch of ttiis Court In the case of Siddhl Bala Bose Ubraiy (supra). The permissible regutatory provisfons for Ure aittod minority institutions, which were made inappUcable to unaided instttutions by the provistons of secUon 12 of the Delhi School Education Act, have been held discriminatory by the Suprem®Court in the case of Frank Anthony F'ubllc School (supra). But the provisions of section 8(2) of Delhi Act, requiring approval to disciplinary acUon, te substanttatly simjlar to section 6(a)(lii) <rf the Act and Regulation 78 of the Board of Secondary Education (quoted above), have been held violative of ArUcte 30(1) of the ConsUtution of Indla. Even otherwise, on facts B is seen thart the peUttoner withoirt danylng the chaiges proposed agalnst him has taten a technteal view and refcised to particlpate in the inqulry proceedings and Uiereafter on the basis of inquiry conducted by inquiry oflicer who has sfforded reasonabte opportuniUes to the peUtioner to partteipate in the inqulry proceedings, however, tha petitioner dkl not partteipate and refused to avall of the right ofdefence. 11. Consequently, in view of above discussion the petiUon faite and it is hereby dismfssed. Sd/- Dhirendra Misfara Judge ^r'