IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.A.No.1001 of 2007 Swami Sadananda Secretary Vivekananda Higher Secondary School Thiruvedagam West Madurai District. .. Appellant versus 1. The Chief Educational Officer Thallakulam Post Madurai-625 002. 2. The Joint Director of School Education Higher Secondary Chennai-600 006. 3. M.Panneer Selvam Head Master (under suspension) Narendra Nagar Tiruvedagam West Post Madurai District. .. Respondents PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 29.1.2007 made in W.P.No.16064 of 1996 passed by the learned single Judge of this Court, praying to call for records of the 1st respondent respectively 6.12.95 in Na.Ka.No.6251/A1/95 as confirmed by the 2nd respondent order dated 25.6.96 in Mu.Mu.No.1535/W7/96 and quash the same and further directing the 1st respondent to give approval for the dismissal of the 3rd respondent from service of Head master of Sri.Vivekananda Higher Secondary School, Thiruvedagam West,Madurai District. For appellant : Mr.R.Muthukumaraswamy Senior Advocate for Mr.A.Sankarasubramanian For respondents-1 and 2 : Mr.S.Rajasekar Additional Government Pleader For 3rd respondent : Mr.C.Selvaraju Senior Advocate for Mr.N.Subramani https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT CHITRA VENKATARAMAN,J. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1973) provides for the regulation of recognised private schools in the state of Tamil Nadu. The Act seeks to regulate the establishment, management and control of private schools, apart from providing for regulation of the conditions of service of teachers and other persons employed in private schools. The Act further provides for the constitution and functions of the Managing Bodies of the private schools. Sub Section (8) of Section 2 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, defines "School Committee" as the School Committee constituted under Section 15. Sub section (3) of Section 2 defines "Educational Agency" as any person or body of persons which has established and is a dministering or proposes to establish and administer such minority school. In relation to any other private school, it means any person or body of persons permitted or deemed to be permitted under the Act to establish and maintain such other private school. Chapter IV (Sections 15 to 18) of the Act contains provisions relating to the constitution of the School Committee and the various functions of the School Committee. Section 15 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, provides for the constitution of the School Committee. Section 16 of the Act stipulates that the Committee shall have a Secretary who shall exercise such powers and functions as may be prescribed. Section 17 deals with meetings of the School Committee. It prescribes that the Committee shall meet at such times and places and observe rules and procedures in regard to the transaction of business at its meetings as may be prescribed. As per sub section (2), the President of the School Committee has to preside over the meeting of the Committee. However, where the President is absent, any member chosen by the members present, shall preside at the meeting of the School Committee. Sub Section (3) states that all decisions of the meeting of the School Committee shall be by a majority of the votes of the members present and voting. In the case of equality of votes, the President or, in his absence, the member presiding, shall have the second or casting vote. Section 18 outlines the functions of the School Committee and the responsibility of the educational agency under the Act. The functions entrusted are: (a)carrying on the general administration of the school; (b)to appoint teachers and employees of the school, fix their pay and allowances and define their duties and the conditions of their service; (c) to take disciplinary action against teachers and other employees of the private school. Sub Section (3) states that any decision or action taken by the School Committee in respect of any matter over which it has jurisdiction, shall be deemed to be the decision or action taken by the educational agency. Chapter V (Sections 19 to 28) deals with the terms and conditions of service of teachers and other persons employed in private schools. Section 19 deals with qualifications and conditions of services etc. of teachers and other persons employed in private schools. Section 20 is on the appointment of teachers and other employees in private schools. Section 21 states that teachers and other persons employed in private schools are to be governed by the Code of Conduct as may be https://hcservices.ecourts.gov.in/hcservices/ prescribed. The School Committee has todefine the standards of conduct to be observed by the teachers and other persons employed in the private school. The standards are to be consistent with the provisions of the Act and the Rules made thereunder. Section 22 contains the provisions relating to the dismissal, removal or reduction in rank or suspension of teachers and other persons employed in private schools. Sections 23 and 24 relate to the appeal and second appeal as against the punitive action taken. Section 56 of the Act empowers the Government to make rules to carry out the purpose of the Act. 2. In exercise of the power thus conferred, the Tamil Nadu Private Schools (Regulation) Rules, 1974 is formulated, providing for matters relating to the recognition as well as the constitution of the School Committee, meetings of the committee and the procedure relating to appeal as regards the punishment imposed. Rule 12 deals with the constitution of the School Committee. Rule 13 deals with the nomination of one of the representatives of the educational agency as the Secretary of the School Committee and the functions of the Secretary. Under the said Rule, the term of office of the Secretary is prescribed as three years. Sub Rule (4) stipulates that the Secretary shall function for and on behalf of the School Committee and the educational agency. The Secretary is required to act on the basis of the resolutions in the meetings of the School Committee. Rule 14 deals with the meetings of the School Committee. This is in furtherance of Section 17 of the Act dealing with the meetings of the School Committee. As per Rule 14, the meetings of the School Committee shall be convened by the Secretary of the School Committee with the approval of the President of the School Committee. Sub Rule (2) states that the meeting of the committee shall be conducted after giving seven clear days' notice in writing to the members of the Committee and the quorum for the meeting is given as 50% of the total members of the Committee present. 3. Rule 15 relates to the qualifications and conditions of service of teachers and other persons. Under this provision, School Committee of every school has to enter into an agreement with the teacher or other person appointed. If a person is appointed for a period exceeding three months, the agreement has to be in Form VII-A or VII-B. In respect of Junior Grade teachers, the agreement shall be in Form VII-C. 4. Form VII-A, which is the agreement to be executed by the School Committee of a private school in respect of permanent teachers, stipulates the terms of appointment and the responsibilities of the teacher appointed. Clause 6 therein states that the teacher and the School Committee shall conform to all the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. Clause 7 deals with situations of dismissal, removal and reduction in rank or termination of services of the teacher. The said clause reads as follows: "7. That the School Committee shall not dismiss, remove or reduce in rank or terminate the services of the said teacher without informing him/her in writing on the grounds on which they intend to take action and shall adopt the following procedure before taking https://hcservices.ecourts.gov.in/hcservices/ any final decision regarding the punishment to be imposed. (a) The memorandum of charge shall be communicated to him/her in writing giving him/her reasonable time to send his/her explanation to the School Committee. (b) After considering his/her explanation, the School Committee shall communicate to him/her findings and if so desired by the said teacher conduct a personal hearing or enquiry, wherein he/she shall be given the opportunity to examine or cross-examine any or all the witnesses and also produce witnesses. (c) After the conduct of the personal hearing or enquiry by the School Committee the report of such personal hearing or enquiry shall be furnished to the teacher and a notice shall be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to defend himself/ herself against the proposed punishment. (d) After the receipt of the statement of defence from him/her and taking into consideration the School Committee shall inform him/her in writing about its final decision." 5. A reading of the said clause clearly shows the role of School Committee in matters of disciplinary action. The elaborate procedure given thereto leaves no doubt that none other than the School Committee is empowered to deal with matters relating to punishment of the teacher or the employee. The said clause contemplates the memorandum of charge to be communicated to the delinquent teacher or the employee by the School Committee to whom the explanation has to be submitted. It also contemplates an enquiry by the Committee. The report on the personal hearing and enquiry has to be furnished to the teacher by the School Committee. The show cause notice setting out the proposed punishment has to be given to the teacher granting the reasonable time to defend against the proposed punishment. Thereafter, the School Committee has to take a final decision after considering the defence made by the teacher or the employee concerned. Under Clause 10, the School Committee is empowered to impose major punishment such as dismissal, removal, reduction in rank or termination or any of the minor punishments set out therein for any irregularity or breach of the code of conduct. Rule 17 deals with dismissal, removal or reduction in rank or suspension of teacher of other persons employed in private schools. The Rule also contemplates payment of subsistence allowance to a teacher or person employed on a suspension order issued. It also stipulates the period for which the suspension shall remain in force. 6. The conduct of the meeting in the manner prescribed in the Rules and in the Act assumes significance in every aspect of administration, which includes disciplinary action taken against erring teacher or an employee. In particular reference to the facts of the case, we need to note one more provision -- Section 22 of the Tamil Nadu Private Schools (Regulation) Act. This deals with dismissal, removal or reduction in rank or suspension of teacher or other persons employed in private schools. Sub section (1) states that no teacher or other person employed in any private school shall be dismissed, removed or reduced in https://hcservices.ecourts.gov.in/hcservices/ rank nor his appointment be otherwise terminated except with the prior approval of the competent authority. Sub Section (3)(a) states that no person or teacher employed in any private school shall be placed under suspension except when there is an enquiry into the gross misconduct of such teacher or person within the meaning of the Code of Conduct prescribed under sub section (1) of Section 21. As per sub clause (b), the suspension order shall remain in force for a period of two months from the date of suspension. If the enquiry is not completed within that period for reasons to be recorded in writing, the period of suspension could be extended for a further period not exceeding two months. There is further a qualification that the competent authority must form an opinion that the enquiry could not be completed within the said period of two months on grounds attributable to the teacher or other person. Section 23 provides for the appeal remedy against an order of dismissal, removal and reduction in rank. Section 24 refers to a second appeal as against the order passed in the appeal preferred under Section 23. 7. A reading of the provisions makes it clear that a valid punitive action contemplated must necessarily have its firm footing in the holding of an enquiry by the School Committee in the manner prescribed under the Act and the Rules. These provisions are not mere procedural ones to be taken for a substantive compliance. On the other hand, the scheme of the provision clearly show that they demand a strict compliance. 8. Section 22 stipulates that any order of dismissal, removal or reduction in rank would be effective only on the satisfaction of the competent authority that there are adequate and reasonable grounds for such proposal for dismissal, removal or reduction in rank. Dealing with the expression "adequate and reasonable ground" required for the authority to approve the action contemplated, in the decision reported in 2003 (2) CTC 175 (SECRETARY SCHOOL OF COMMITTEE Vs. GOVERNMENT OF TAMIL NADU), the Apex Court held that "While considering whether adequate and reasonable ground exist for giving approval, the authority is certainly required to look into the gravity of the proved charges and whether the punishment as proposed commensurates with it." 9. Touching on the scope of interference with the decision of the competent authority, the Apex Court further pointed out that "when after consideration of the material, it comes to a conclusion that then proposed punishment is harsh or disproportionate to the proved charges, the scope of interference with the finding is rather limited. This is because the approving authority has to consider whether the proved charges on the facts and the materials justify a particular action. " 10. Dealing with the nature of authority exercised by the competent authority, in the decision reported in 1996 (II) CTC 577 (RUKMANI DEVI,M. Vs. CHIEF EDUCATIONAL OFFICER & 2 OTHERS), a Division Bench of this Court held that the power of approval is given to the statutory authority as an essential check on the arbitrary exercise of powers of a school management. The Division Bench viewed, the said provision really concerns a substantial restriction on the power of the management to dispense with the services of the teacher or any person employed therein. https://hcservices.ecourts.gov.in/hcservices/ 11. It is seen that in the decision reported in 2002 (3) CTC 553 (SWAMY SADANANDA Vs. STATE OF TAMIL NADU), a Division Bench of this Court rejected the challenge made to the vires of Section 22 on the ground that it gave unbridled power to the competent authority as regards the order passed by the School Committee. The said appeal was preferred by the present appellant herein. Following the decisions of the Supreme Court rendered in connection with a similar provision under Section 36 of the Gujarat Secondary Education Act, 1972 reported in (1988) 4 SCC 51 (BHARAT SEVASHRAM SANGH Vs. STATE OF GUJARAT) and (1993) 1 SCC 645 (UNNIKRISHNAN Vs. STATE OF A.P.), this Court rejected the challenge to the provisions of Section 22 of the Act and held that the language of sub section (2) of Section 22 clearly showed that the competent authority has to give reasons to the satisfaction that there are adequate and reasonable grounds to confirm or reject the order passed by the School Committee. 12. Dealing with Sections 17 and 18 and Rule 17, in the decision reported in 1998 W.L.R. 769 (MANAGEMENT OF M.G.R. HIGHER SECONDARY SCHOOL ETC. Vs. NAG BALAJI SINGH & 3 OTHERS), learned single Judge of this Court (Justice P.Sathasivam as His Lordship then was), pointed out that the object of the Act was to provide for the regulation of the conditions of service of teachers employed in private schools. The said decision relates to a case where the show cause notice was issued by the Secretary who framed the charges, conducted the enquiry and acted as one of the School Committee members. Referring to the decisions of the Apex Court, this Court held that the right to impose penalty carries with it the duty to act justly and in accordance with the provisions of the Act; that the School Committee could not authorise the Secretary to perform its functions. It was further held that as per the Rules, the Secretary has to act on the basis of the resolutions passed in the meeting of the School Committee and that he could not take the role of the School Committee. Pointing out to Section 21 on the Code of Conduct and Rule 16 that teachers and other persons employed in private schools are governed by the Code of Conduct as specified in Annexure-II to the Tamil Nadu Private Schools (Regulation) Rules, 1974, and that as per Clause 7 in Form VII-A, it is for the School Committee to take action against the delinquent teacher, this Court held that the functioning of the Committee could not be performed by the Secretary even by an authorisation and hence, he could not take the role of the School Committee. Referring to the decision of this Court in P.S.VENKATARAMANUJAM Vs. NATIONAL HIGH SCHOOL TAMBARAM AND ANOTHER in W.A.No.170 of 1978 dated 13.11.1979, this Court held that the provisions of the Act and the Rules must be complied with in toto. Where the enquiry conducted is not in accordance with law, the termination order could not be sustained. This Court referred to the unreported decision of the Division Bench in extenso which may usefully be extracted here too: " ... Thus a perusal of paragraph 7 of Form VII-A makes it clear that a personal hearing or enquiry has to be conducted by the School Committee, and there is no provision in Form VII-A for the School Committee delegating its power to conduct an enquiry to any other person or body. " https://hcservices.ecourts.gov.in/hcservices/ 13. Dealing with the question as to whether the School Committee could ratify the order of suspension issued by the Secretary, in the decision reported in (1995) 2 MLJ 488 (VALLIAPPAN Vs. THE MADRAS SEVA SADAN HIGHER SECONDARY SCHOOL), learned single Judge of this Court (R.Jayasimha Babu,J), held that Section 16(1) of the Act empowers the Secretary to exercise powers and perform such functions as may be prescribed. Rule 13(3) requires the Secretary to function for and on behalf of the School Committee. Sub Rule (4) empowers the Secretary to act on the basis of the resolutions passed in the meeting of the School Committee. Hence, as per Section 18, the power to take disciplinary action against the teachers and employees is vested only with the School Committee. Rejecting the contention of the Management that certain amount of flexibility is essential in internal management and a rigid view of the sub rule should not be taken, learned Judge held that the powers of the Secretary are limited by the Rules framed and the statutory provisions do not empower the Secretary to suspend the officials or teachers pending enquiry and that the principles of ratification by the Committee on the action done by the Secretary has no application in regard to the exercise of powers conferred under the statutory provision. The statutory authority could not act beyond the powers conferred and any action done without power suffers a legal infirmity that it is ab initio void and cannot be ratified. 14. We are in entire agreement with the view expressed in the aforesaid decision of this Court. 15. In the background of these decisions laying down the law on the scope of the provisions relating to the appointment, disciplinary proceedings to be taken, the role of the school committee, the extent of authority of the Secretary and that of the competent authority, covered under Section 17, 18 and 22 and Rules 14, 15 and 17, the following position emerges: (i) The meetings of the School Committee have to be in strict compliance of Section 17; (ii) The Secretary of the School Committee cannot assume the role of the School Committee and that in terms of Rule 13, the Secretary has to carry out the resolutions of the School Committee; (iii) The disciplinary proceedings have to be conducted only by the School Committee in terms of Rule 16 and Form VII-A; (iv) The charge memo has to be issued by the School Committee; (v) The enquiry has to be conducted by the School Committee; (vi) The copy of the enquiry report has to be furnished to the delinquent officer. (vii) The decision on the disciplinary action taken must be by the School Committee after observing the procedure of giving an opportunity to the teacher or the employee to defend himself; (viii) The School Committee cannot authorise the Secretary to perform its functions nor can it validate the action taken by the Secretary; (ix) Where the procedure contemplated are not followed, which are mandatory in character, any order passed in violation thereof would be void ab initio; (x) The competent authority is required to look into the gravity of the proved charges whether the punishment as proposed is commensurate https://hcservices.ecourts.gov.in/hcservices/ with the charges established and the competent authority has to record whether there are adequate and reasonable grounds existing for giving his approval to the action taken; (xi) Where the competent authority applies his mind to the materials to the proposed action and records his reasons for approval or disapproval, the scope of interference with the finding is limited. The above-said position of law flowing from the settled principles of law, from the various decisions referred to above and relied on by the learned senior counsel for the third respondent, certainly tilt the case in favour of the third respondent. Before considering the merits of the contentions of the appellant herein, the facts leading to the filing of the writ petition need to be noted and are as follows: 16. The third respondent was appointed as Headmaster in the appellant/writ petitioner – Vivekananda Higher Secondary School, Thiruvedagam West, Madurai District. The allegation is that the third respondent had issued transfer certificates to five students who had failed in their respective annual examinations as though they had passed their respective annual exams. The Chief Educational Officer visited the school on 30.3.1995. After going through the counterfoils of the respective candidates' transfer certificates, the Chief Educational Officer pointed out that though the candidates had failed in their exams, the third respondent had issued the Transfer Certificates as though they had passed their exams. Hence in the letter dated 18.4.1995, addressed to the school management, the Chief Educational Officer directed that stringent disciplinary action be taken against the third respondent. The third respondent was placed under suspension on 5.4.1995. A show cause notice dated 5.4.1995 was issued framing four charges for enquiry. After receiving the explanation from the third respondent, the Secretary issued a revised charge memo dated 5.5.1995, containing five charges. 17. The charges under the first show cause notice dated 5.4.1995 framed were that the third respondent had entrusted the work of preparing the Transfer Certificates to the Watchman of the school instead of entrusting the work to a Clerk. The second, third and fourth charges related to the certificate of transfer issued to three students as though they had passed their respective exams, whereas, as per the school records, they had failed in their final exams. Apart from including the first four charges, the second charge memo dated 5.5.1995 included a fifth charge that the letters given by two students G.Ramaswamy and Kasilingam were unauthorisedly kept by the Headmaster, the third respondent herein, in his custody. It is seen that an enquiry was held on 16.6.1995, wherein, the third respondent participated. After conducting the enquiry and furnishing a copy of the evidence recorded and giving an opportunity to the third respondent, the School Committee decided to dismiss the third respondent from service. An order dated 8.8.1995 was passed to that effect under the signature of the Secretary as the Secretary and President of the Committee. The approval of the first respondent, namely,