IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4583 of 2006 MD.ZAHID HUSSAIN, SON OF MD. HAZUR HUSSAIN, RESIDENT OF VILLAGE- SAADIPUR, NEAR ICE FACTORY, MUNGER, DISTRICT- MUNGER. .. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. DEPUTY LABOUR COMMISSIONER, MUNGER DIVISION, BEGUSARAI. 3. NOTRE DAME ACADEMY, MUNGER, P.S. AND DISTRICT- MUNGER. 4. PRINCIPAL NOTRE DAME ACADEMY, MUNGER, P.S. AND DISTRICT- MUNGER. 5. PRESIDENT, EDUCATION BOARD MANAGING COMMITTEE, NOTRE DAME ACADEMY, PATLIPUTRA, PATNA. 6. SECRETARY EDUCATION BOARD, MANAGING COMMI9TTEE, NOTRE DAME ACADEMY, PATLIPUTRA, PATNA. .. RESPONDENTS. For the Petitioner: M/s. Abdul Mannan Khan, Md. Najmul Hoda, and Binay Kumar, Advocates. For the State : Mr. Binay Kumar, AC to GP-13. For the Respondent Nos. 3 to 6 : M/s. K.M. Joseph and Jose K.P. Advocates. ----------- 12. 13.05.2011. Learned counsel for the petitioner is permitted to correct the averments made in paragraph-6 of the writ petition. 2. Heard learned counsel for the petitioner, AC to GP-13 for the State and Mr. K.M. Joseph for Respondent Nos. 3 to 6. 3. Petitioner at the relevant time served as a P.T. 2 Instructor in the Notre Dame Academy, Munger (hereinafter referred to as the Academy). He has filed this writ petition challenging the order of the Principal of the Academy dated 09.07.1998, Annexure-3, whereunder his services has been terminated on the ground that he remained under unauthorized absence for the period between 01.07.1998 to 08.07.1998, violating his own undertaking dated 04.07.1997 that he shall not absent himself from duty without information to the authorities of the Academy. Aforesaid order dated 09.07.1998 was earlier challenged before the Labour Court under Section 26 of the Bihar Shops and Establishment Act, 1953 (hereinafter referred to as the Act) but the challenge to the said order was rejected under orders dated 14.09.1999, Annexure-4 relying on a judgment of the Patna High Court, Ranchi Bench passed in L.P.A. No. 15/1989(R) dated 20.11.1998 holding that the teachers of the Educational Institution including Minority Education Institutions are not entitled to maintain their service dispute under the Act. Petitioner assailed the aforesaid order dated 14.09.1999 by filing C.W.J.C. No. 12253 of 1999 which was taken up for admission on 24.06.2004 3 when prayer for adjournment of the writ petition was made but the same was refused on the ground that the writ petition is an old one as it was filed on 15.12.1999 and adjournment was allowed on 29.04.2004. In the light of the aforesaid observation, learned counsel for the petitioner did not press the application on merit which was dismissed under order dated 24.06.2004, Annexure-7 without considering its merit. By filing the present writ petition on 07.04.2006, the petitioner has again challenged the order of termination of his service dated 09.07.1998, Annexure-3 on the ground that the order terminating his service dated 09.07.1998 was passed by the Principal in violation of service conditions framed for the teaching/non teaching staff of the Academy, copy whereof is contained in Annexure-6 to this application. In this connection, reference is made to Paragraph-XIII, Rules-68 and 69 of the Service Conditions which empower the Managing Committee to pass orders for removal or dismissal of the teachers after following the principles of natural justice. In this connection, it is further pointed out in para-6 of the petition that petitioner, his wife and children had gone to Delhi to avail the summer vacation in June, 1998 when 4 petitioner and his son met with road accident on 29.06.1998 whereafter his son Danish was admitted as Indoor Patient in Safdarjang Hospital, New Delhi. Copy of the registration form of the Out Patient Department (O.P.D.) dated 29.06.1998 is annexed as Annexure-2 wherefrom it appears that Danish suffered road accident. Petitioner has also produced the certificate granted by the office of the Medical Superintendent, Safdarjang Hospital, New Delhi dated 03.07.1998 wherefrom it appears that the son of the petitioner suffered fracture of left clavicle on 29.06.1998 and was treated at the Central Institute of Orthopedics, Safdarjang hospital vide fracture no. 11794 of 1998. Petitioner appeared before the Principal on 09.07.1998 when he was served with the impugned order removing him from the post of P.T. Instructor of the Academy. It is submitted on behalf of the petitioner that aforesaid order dated 09.07.1998 is violative of principles of natural justice as also of Chapter-XIII, Rules-68 and 69 of the Service Regulation as before terminating the service of the petitioner neither show-cause notice was given to the petitioner nor the matter considered by the disciplinary authority i.e. the Managing Committee of the Academy. It 5 is submitted on behalf of the petitioner that initially challenge was made to the impugned order before the Labour Court in the light of the provisions of the Act, but the Labour Court relying on the judgment of the Ranchi Bench of this Court appears to have rejected the challenge under order dated 14.09.1999, Annexure-4 as not maintainable. Aforesaid order of the Labour Court appears to be erroneous in the light of Hon’ble Supreme Court decision in the case of T.M.A. PAI FOUNDATION AND OTHERS Vrs. STATE OF KARNATAKA AND OTHERS reported in (2002) 8 Supreme Court Cases 481, paragraph-64 which inter alia provide that the teachers of the Minority Institution may not be relegated to seek adjudication of their service dispute by filing suit in the Civil Court. Alternative tribunal is required to be constituted by the State but until constitution of such tribunal the District Judge or the Additional District Judge as notified by the Government is to adjudicate the service dispute between the teacher of a Minority Institution and the Management of the said institution. In the State of Bihar neither any tribunal in the light of the direction of the Hon’ble Supreme Court has been created nor has the 6 District Judge or Additional District Judge been notified to consider the service dispute of the teacher of the Minority Institution. 4. In the circumstances, there is no difficulty for me to hold that petitioner has not been provided with any forum to challenge the aforesaid order dated 09.07.1998, Annexure-3 which is violative Rules 68, 69 of Chapter XIII of the Service Regulation. From the counter affidavit also, it does not appear that petitioner was given any show-cause or the matter was ever considered by the Managing Committee of the Academy. In the circumstances, there is no difficulty for me to hold that the order dated 09.07.1998 has been passed by the Principal of the Academy overreaching the provisions of Chapter-XIII, Rules- 68 and 69 of the Service Regulation. 5. When this order was dictated Mr. Joseph brought to my notice the provisions of Rule-46 of the Service Regulation which inter alia provide that an employee who does not return to duty within 8 days of the expiry of his originally sanctioned leave shall be deemed to have abandoned his service. On the 9th day his service will be considered terminated. Service Regulation 7 however does not provide that in case(s) governed by Rule-46 the provisions of Chapter-XIII, Rules 68, 69 i.e. application of principles of natural justice shall not be resorted to. It is well settled that principles of natural justice has to be read in the Rules unless it is specifically excluded. From perusal of Rule-46 it does not appear that principles of natural justice shall have no application to the cases cover by Rule-46. 6. In view of my discussion above, I set aside the termination order dated 09.07.1998, Annexure-3 and remit back the matter to the Managing Committee of the Academy so as to enable the Managing Committee to issue show-cause notice to the petitioner and to pass final order after considering the show-cause reply received from the petitioner. The arrears of salary of the petitioner for the period between 09.07.1998 till the date of the passing of this order shall be subject to the result of the further inquiry which shall be made by the Managing Committee in compliance of this order. It is directed that the Managing Committee should serve show-cause notice on the petitioner within two weeks of the receipt of the order and petitioner is directed to file show-cause reply within 8 another two weeks and Managing Committee shall pass appropriate resolution considering the show-cause reply of the petitioner within another two weeks. The entire exercise be completed within six weeks from the date of receipt of a copy of this order by the Principal of the Academy. Aforesaid time- frame has been fixed in the light of the fact that the matter is about 13 years old. 7. The writ application stands disposed off. AFR/Ibrar ( V. N. Sinha, J.)