WP(C) 3999/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT & ORDER 1. Heard Sri D. R. Gogoi, learned counsel for the petitioners in both the c ases, Sri A. K. Bora, learned Central Govt. Counsel appearing for the respondent s in WP(C) No.3999/2008 and Sri S. Chakraborty, learned Central Govt. Counsel ap pearing for the respondents in WP(C) No.4035/2008. As the facts of both the cas es are similar and issues involved are substantially the same, both the writ pet itions, with the consent of the parties, have been heard together and are being disposed of by this common order. 2. The pleaded case of the petitioners in both the cases are that their son s, Rahul Rathaur and Rahul Sarma, respectively, are studying in Class-IX of the Sainik School at Goalpara. According to the petitioners, on 25th of August 2008 they received a phone call from the Registrar of the School informing them of an incident of indiscipline in which the sons of the petitioners were involved. Th e Registrar of the School informed the petitioners that they should come and mee t the school Principal as early as possible. Thereafter, according to the petiti oners, they came and met the school Principal on 1st of September 2008. In the c ourse of the said meeting the petitioners contend that they were informed by the School Principal that their sons were involved in an incident of theft of certa in stationery items as well as a few eatables from the school Canteen which had occurred at about 3.00 A.M. of 13.8.2008. The petitioners also claim that they w ere informed that the school disciplinary committee had enquired into the matter and had found substantial proof of the involvement of the children of the petit ioners in the said incident. The petitioners have further stated that, according to the Principal of the school, such acts on the part of the children constitut ed gross misconduct and violation of the discipline of a Military School and the refore the petitioners should voluntarily take their sons away from the school f ailing which the Principal, according to the petitioners, stated that he will fi le a police case and also rusticate/ expel the children of the petitioners from the school. Accordingly, left with no choice the petitioners withdrew their sons from the school with effect from 1st of September 2008. Contending that their r espective sons were not in any way involved with the incident and furthermore th at the incident was a petty one which should not have resulted in the decision o f the Principal as referred to above these writ petitions have been filed seekin g appropriate relief. 3. The respondents in both the cases have filed their counter affidavits wh erein the first issue that has been sought to be struck is in regard to the main tainability of the writ petitions. Such maintainability has been questioned on t he ground that Sainik School is run by the Sainik School Society which is a regi stered body under the Societies Registration Act. The composition of the Board o f Governors of the school has also been mentioned in the affidavit filed. Furthe rmore, in the counter affidavit filed, the respondents have stated that though t he disciplinary committee of the school after an enquiry into the incident had f ound the involvement of five students in the incident including the sons of the two petitioners and the said committee had recommended disciplinary action again st the erring students no formal decision in this regard had been taken by the s chool authority. According to the respondents, in the meeting held between the p etitioners and the school Principal on 1.9.2008 the detail facts of the incident were placed before the petitioners who were left with the option of voluntarily withdrawing their sons from the school, an action which were subsequently adopt ed by the petitioners. The respondents, in the affidavit filed, further contend that the incident in which the sons of the two petitioners have been found to be involved amounts to acts of gross indiscipline which have the potential of crea ting similar situation in the future and therefore to prevent the same, exemplar y and stringent action was called for which, however, was not necessary in view of the voluntary action of the petitioners in withdrawing their sons from the sc hool. In the course of the arguments learned counsel for the respondents have al so placed before the Court the report of the disciplinary committee of the schoo l which had enquired into the incident in question. The same has been duly perus ed. 4. Insofar as the issue of maintainability of the writ petition is concerne d, the Court has taken note of the statements made in para 14 of the counter-aff idavit of the respondents with regard to the composition of the Sainik School So ciety which body is responsible for management of Sainik Schools in the country. The composition of the Board of Governors of the Society as well as the local b oard of administration for each school would indicate sufficient State control i n the management of each school. That apart, the queries made by the Court and t he statements made in paragraph 14 of the counter affidavit have indicated recei pt of finances by the school, almost exclusively, from the Central and State Gov ernments to run and manage the schools. Besides, the school is engaged in perfor mance of duties and functions which are public in nature. A Sainik School is not a commercial venture. Rather, it is a nursery for training the younger generati ons to join the Armed Forces. In such a situation, it cannot be held that merely because the management of the school is vested in a Society which is governed b y its own bye-laws, a writ petition will not be maintainable. The Court will the refore have to turn to the dispute brought before it by the rival parties. 5. The pleadings of the rival parties give rise to a highly disputed questi on of fact i.e. whether the withdrawal of the sons of the two petitioners was a voluntary act on the part of the two petitioners or the same was dictated by the Principal with the threat of further coercive action, if required. The very nat ure of the dispute and the materials on record do not permit the Court to arrive at any conclusive determination of the said question. However, what is clear an d evident is that till date no formal order imposing any disciplinary action aga inst the two students of the school has been passed by the Principal. In the afo resaid circumstances, the Court deems it proper to proceed on the basis that no formal orders having been passed, the withdrawal of the two students from the sc hool was by the petitioners themselves either out of fear of further coercive ac tion or voluntarily, as the case may be. Regardless of the cause(s) which had oc casioned such withdrawal what cannot escape the Court’s notice is that as no for mal order expelling/ rusticating the students from the school or in any way deba rring them from re-joining the school has been issued it is always open for the petitioners to bring their children back to the school which they may now do for thwith and without any delay. 6. Once the petitioners bring their children back to the school, naturally, it will be open for the school authorities to take disciplinary action against them in the light of the findings of the disciplinary committee. No such action having been taken, as yet, and the power of initiating disciplinary action or im posing punishment being primarily vested in the school authority who must be ack nowledged to be the best judge of the mode and manner in which discipline is to be maintained, it will be wholly inappropriate for the Court to fetter the said discretion of the school authorities in any manner. However, what cannot be lost sight of is the need for certain observations in this regard so that the discip linary authority while deciding on the next course of action, if any, against th e students, acts in a manner consistent with law. Such observations, the Court h as also deemed it necessary to include in the present order to obviate any futur e litigation in the matter which could be a natural consequence of the impositio n of any penalty which can be perceived to be excessive or disproportionate by a reasonable man. 7. Without entering into the debate as to whether the purpose of punishment is retributive or reformative it must be emphasized that the same must never be disproportionate. The students involved in the present case are young boys stud ying in Class-IX. They may have deviated from the right cause or path either on being misguided or out of misplaced a sense of adventure. The incident relates t o stealing of articles like boot polish, other similar items as well as some eat ables from the School canteen. The two students have been away from the school f or a period of nearly three months now. All the aforesaid facts, in the consider ed view of the Court, may indicate that if the school authorities decide to trea t the aforesaid period of absence of the sons of the two petitioners from the sc hool as a measure of punishment by way of suspension and allow them to continue with their studies and take part in the semester examination which is stated to be scheduled from 1st of December 2008, perhaps, the cause of justice will be a dequately met as well as the discipline that is required to be maintained in the school will not suffer. Beyond the above no further observation from the Court will be called for. 8. In view of the foregoing discussions both the writ petitions shall stand accordingly disposed of. The petitioners may forthwith take their sons back to the school and the school authority may take further action in the matter in the light of the observations recorded above.