.,,,/

MANAGER, NIRMALA SENIOR SECONDARY

SCHOOL, PORT BLAIR

., v.

N.I. KHAN AND ORS.

NOVEMBER 21, 2003

(SHIVARAJ V. PATIL AND ARIJIT PASAYAT. JJ.]

Constitution of India-Article 30 {I)-Suspension of teacher by management for misconduct-State disapproving the suspension on ground

of not obtaining itNlr(or approval-Termination of the teacher by school C after conducting disciplnr; ry p,1:0, ceedings-Validity of-Held, on facts, without going into the allgg~~<wiand considering the welfare of the school and the teacher, order of termination to become operative on payment of Rs.4,50,000 to the teacher jointly by the State and the School-Delhi Education Code, 1965.

Respondent No.1-teacMr allegedly abused and attempted to assault lady principal of appellant's school. The teacher was suspended from the school on the same day. After a few days, the teacher allegedly picked up a quarrel again with the management and threatened to E burn the school. The respondent-State revoked the suspension order issued by the appellant and indicated that a separate enquiry will be conducted by the State against the teacher. The appellant objected to the proposed enquiry by the State being infringement of constitutional protection under Article 30(1) of the Constitution of India. The State did not respond to the permission sought by the appellant for sanction- F ing the suspension of the teacher. A fresh order of suspension was issued by the appellant to the teacher framing charges against him. The State reversed the order of suspension of the appellant since no prior approval was obtained. An Inquiry Officer was appointed by the appellant to inquire into the charges framed. The teacher refused to G attend the inquiry. The appellant held the teacher guilty of charges framed against him since he did not attend the inquiry despite granting several opportunities to him. The appellant constituted a punishing authority for initiating disciplinary proceedings against the teacher and requested the State to nominate its representative for the proceed- H

• .\ ings. The State refused to send its nominee since the suspension order was passed by the appellant without prior approval of the State. By a majority decision, the teacher was dismissed from the school. The teacher filed a Writ Petition before High Court challenging the order of dismissal issued by the appellant. Single Judge of the High Court B quashed the order of dismissal and directed payment of back wag<'s

to the teacher. The Division Bench of the High Court dismissed the appeal and the review petition filed by the appellant.

In appeal, the appellant-School contended that the respondent C State cannot apply the Delhi Education Code, 1965 in contravention to the_ constitutional protection guaranteed to it under Article 30(1) of the Constitution of India; that a fair and transparent procedure was adopted in conducting the inquiry and adequate opportunity was given to respondent no. 1 before issuing the order of dismissal; and that the continuance of respondent no. 1 in the school was undesirable and D would have adverse effects since the allegations are of a serious nature.

The respondents contended that the Delhi EducatiQn Code, 1965 is applicable in following the procedure of termination of a teacher; that constitutional protection under Article 30(1) of the Constitution E is not available to the school being an aided school; and that the proceedings was initiated by the appellant with bias.

Disposing of the appeals with certain directions, the Court

HELD : 1.1. This Court does not propose to go into the question of F constitutional protection under Article 30(1) of the Constitution oflndia.

The allegation made against the respondent no. I-teacher are of a serious nature and certainly, if proved, do not befit a teacher. The clay like mind of young children are shaped into beautiful moulds by teachers.

They shape future course of the students. To a great measure, their G behaviour, character, reputation leave imprints in the minds of the young children. If their conduct, behaviour and reputation is full of blemish that would not be for the interest and in the welfare of the students. It is not necessary to opine on the allegations one way or the other. This litigation has continued unabated for long years. It would neither be in H the interest of the teacher nor the school, if he is continued in the school.

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' I, I

MANAGER. NIRMALA SENIOR SECONDARY SCHOOL v. 1-i.I. KHAN 77

"'_,, By making this observation, it is not to be construed as if the allegations A were found to be true. On the contrary, the welfare of the school and the reputation of the teacher has been considered in the proper perspective.

...

If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him. [82-B-C, F-H; 83-A-BJ B

Union of India & Ors. v. K.K. Dhawan, AIR (1993) SC 1478; Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579; TMA.

Pai Foundation and Ors. v. State of Karnataka and Ors., [2002} 8 SCC 481; The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., (1975) I SCR 173 and Islamic Academy of Education C & Anr. v. State of Karnataka and Ors., (20031 6 SCC 697, referred to.

Pearce v. Foster, (1866) 17 QBD 536, referred to.

1.2. However, in view of the facts and circumstances of the case, D the following directions are issued: [83-FJ

(i) A sum of Rs. 4,50,000 shall be paid within four months from date of the order to respondent-teacher out of which Rs.4,00,000 shall be paid by the respondent-State directly to the teacher and the balance amount shall be paid by the appellant's school to the teacher within E the said time. (83-GJ

(ii) The teacher would not be entitled to any other sum in respect of his service with in the Institution. On payment being made, the order of termination of his service shall become operative not on the ground F indicated therein, but because of the present order. (83-H; 84-AJ

(iii) The order shall not stand on the way of the teacher seeking employment elsewhere. (84-A-B)

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 5337- G 5339 of 1999.

From the Judgment and Order dated 11.11.98, 19.8.98 and 5.6.98 of . the Calcutta High Court Circuit Bench at Port Blair in C.A. No. 8/98, F .M.A.T. No. 8/98 and C.O. No. 19 of 1998.

WITH

W.P. (C) No. 189/1999.

Dr. Rajeev Dhavan, Dr. M.P. Raju, Ashwani Bhardaj, S.P. Sharma B and Abhishek Atrey for the Appellant.

Kailash Vasudev, Uday U. Lalit, Yatendra Sharma, S. Sharma, Prashant Kumar, Ms. Varuna Bhandari and D.S. Mahra forthe Respondents.

The Judgment of the Court were delivered by

ARJJIT PASA Y AT, J. A teacher affects the eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers.

Educational institutions are temples of learning.

The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher impaiis and the student receives, where there is complete dedication E of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest tht the appointment of teachers is an impo1iant part in educational institutions. The qualifications and the F character of the teachers are really important.

The case at hand has some unfortunate shades as it involves alleged misconduct of a teacher and the purported desire of the management of an educational institution to keep him out of the institution to maintain the G purity in educational sphere and serene atmosphere of the institution. The whole unsavoury episode started on 21.12.1995 when respoP-dent-N.I.

Khan allegedly abused and attempted to assault a lady Principal of the appellant's educational institution in front of the school. That led to lodging of a First Information Report. Khan was placed under suspension on the H same day. Subsistence allowance was sanctioned on 29.12.1995. A few

MANAGER, NIRMALA SENIOR SECONDARY SCHOOL"· N.I. KHAN [PASA Y AT, J.) 79

days thereafter in a second incident, Khan allegedly picked up quarrel A again and threatened to burn the school down. Again complaint was lodged at the Police Station. Thereafter began a legal battle involving not only the factual controversies, but also assertion of rights guaranteed and protected under Article 30( I) of the Constitution of India, 1950 (for short the 'Constitution') and the legal battle has continued unabated and reached this B Court in these appeals.

To continue the factual narration, on 9.2.1996 Director of Education (in short the 'Director') revoked the suspension order and indicated that a separate enquiry will be conducted by the Directorate. In response C thereto, started the controversies regarding applicability of Article 30(1) of the Constitution to the Institution. On 12.2.1996 the school wrote to the Director stating that he should not come to the picture as Article 30(1) of theConstitution authorized the Institution to adopt its own procedure. Few days thereafter, the Institution again wrote to the Director. Charges were issued. But on 6.3.1996 respondent-Khan claimed that he was governed D by the Delhi Education Code, 1965 (in short the 'Code') which was made applicable to the Andaman and Nicobar Islands with effect from 25. l 0.1968.

On 24.6.1996, the Assistant Secretary of Education called the school authorities to attend a meeting where the school requested that suspension may be sanctioned by the Director. Permission to sanction suspension was E sought for by the Institution on 2.7.1996. For about three months the Director did not respond, but threatened punitive action if the school did not settle issues positively. This was again the turning point of the controversy, because the school felt that the governmental authorities were trying to scuttle its effo1ts to enforce discipline and an undisciplined teacher F

who was undesirable in the Institution had been imposed on it.

On 29.10.1996, a fresh letter of suspension was issued on the ground that suspension was approved. Copy of the charges was served on respondent-Khan on 29.10.1996. He denied the charges on 8.11.1996. On G

25.11.1996 one Shri Ram Lal was appointed as the Inquiry Officer but he

declined to conduct the inquiry. On 26.12.1996 the Director issued

instructions to the Institution to permit Khan to report on duty and reversed

the school's order of suspension as according to him the prior approval had not been obtained to take action in the matter. On 22.1.1997 the School H

;..

A again referred to Article 30( 1) of the Constitution and requested the Director to re-consider the matter. On 27.2.1997 one M. Alphonse was appointed as the Inquiry Officer. The date of inquiry was fixed on 15.4.1997 but respondent-Khan did not attend. On 25.5.1997 according to the Institution, the Director approved pyment of subsistence allowance B and, therefore, , approved suspension. This stand was however, being disputed by respondent-Khan and we shall deal with this aspect later. On

13.6.1997, the School wrote to respondent-Khan that subsistence allowance will be paid for the period from December 1995 to 31st May, 1997 as per Director's order and he should not delay the inquiry. On 13.6.1997 Khan c objected to the appointment of Shri Alphonse as Inquiry Officer. On 9.7.1997 the School rejected Khan's objections about the appointment and sent to Khan the details of disciplinary inquiry invoking Article 30( 1) of the Constitution. On 19.9.1997 Khan was intimated that several oppottunities had been granted to him but he did not appear and was therefore guilty of the charges. On the punishment aspect, intimation was given to D respondent-Khan on 6.10.1997 and he was granted opportunity. Though Khan did not respond on the issue of punishment his stand was that all the charges were to be dropped. On 25.11.1997 the School requested the Director to nominate his representative for the disciplinary proceedings.

The request was re-iterated on 12.12.1997. The Director on 15.12.1997 E wrote back stating that since the suspension was without prior permission, necessarily no one would be sent for the disciplinary proceedings. On 22.1.1998, the School again requested the Director to send someone for the disciplinary proceedings which was scheduled to be taken out on 2nd February 1998. As no one appeared from the Director's office, by majority,

F it was decided that dismissal was a proper course to be adopted and order of dismissal was communicated to Khan on 20.2.1998. A writ application was filed by respondent-Khan on 25.2.1998 before the Calcutta High Court. The Director's stand was that since an order of termination was passed without prior approval same was not legal. The school explained

G its purported stand that prior approval was not required. By judgment dated 5.6.1998 learned Single Judge quashed its order of dismissal. An appeal was filed before a Division Bench, initially it granted stay on the direction for payment of back wages. On 13.7.1998, Khan reported for duty. The ...

Division Bench, by judgment dated 19.8.1998 dismissed the appeal and the

review filed by the Institution met a similar fate' of dBWiissal by judgment H dated 11.11.1998.

MANAGER, NIRMALA SENIOR SECONDARY SCHOOL r. N.1. KHAN [PASA YAT. J.]

8 J

These appeals have been filed by the management questioning A legality of the judgments passed by the High Coutt.

In support of the appeals Dr. Rajeev Dhavan, leaned senior counsel submitted that the approach of the Government has been clearly erroneous.

The Director proceeded on the basis as if the Code applied to the B Institution, unmindful of the constitutional protection afforded by Article 30(1) of the Constitution. The procedure adopted by the Institution was fair, transparent and adequate opportunity was granted to respondent-Khan to have his say in the matter. The allegations were of a very serious nature, unbecoming of a teacher. The good name of the Institution had suffered C because of the obnoxious conduct of the respondent and the gravity of the allegations can be seen from the fact that he had threatened to burn the institution itself. Nothing can be more shameful or objectionable for a teacher. Even if the approval for sanction is conceded for the sake of arguments, that has no relevance for the proceedings which were initiated D for awarding punishment. Same stood on a different footing. Even Clause 242 prescribes constitution of punishing authority, where nominee of the Director is required to be a member. Notwithstanding the stand relating to Artide 30(1) of the Constitution, the Institution requested the Director to send his nominee which was not responded. Ultimately, the Director E rendered the provision odious by not sending the nominee and thereby frustrating the very purpose of constituting the punishing authority. The continuance of respondent-Khan in the Institution was undesirable and was having adverse affects. Therefore, the procedurewas adopted by the Institution which was fair, transparent and in letters and spirit in line with the desirability of providing fair opportunity and thereafter taking a F

decision in the matter. Residually, it was submitted that when teacht'.r has lost confidence of the Institution by his conduct, it would be unfair, unreasonable and inequitable to force his continuance in the institution. It

would be detrimental to the interest of the Institution and the management.

In response, learned counsel for the respondent-Khan and the State

submitted that Article 30(1) has no application to the tacts of the case, more paiticularly, when the Institution is an aided one. On trumped up allegatio11s,

proceedings were initiated, and bias of the management is apparent from

the actions taken. The Code is clearly applicable and there is no scope for H

A taking a departure from the prescribed prncedures. Judgments of the High Court do not suffer from any infirmity to warrant interference.

Learned counsel for the parties referred to several decisions of this

Court, more particularly, Elev'en-Judge Bench decision in TMA. Pai B Foundation and Ors. v. State of Karnataka and Ors., [2002] 8. SCC 481; The Ahl11f!dabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., [1975] I SCR 173 and Islamic Academy of Education and Anr. v. Sta_te of Karnataka and Ors., [2003] 6 SCC 697. Though

complex iss'ties of law relating to ever baffling question cente

0 ring round C A1ticle 30( I) of the Constitution has been pressed into service by learned

counsel for the appellant, and non-applicability thereof emphasized by

learned counsel for tire respondents, we do not propose to go into that

question. It is relevant to note that at some stages during hearing on earlier

occasions, it was suggested that to give a decent burial to the controversies D involving a teacher and the management and a reasonable settlement should be arrived at. Prima facie, learned counsel for the State and the appellant agreed that some amount as may be fixed may be paid in full

and final settlement of the claims of the respondent-Khan and his continuance

in his establishment would be put to an end. Though, there appeared to be E no controversy on the amount to be paid to respondent-Khan, he insisted

that the State Government should consider him for appointment in some other institution. This was not found acceptable by learned counsel for the

State as according to him it is for the Institution to select the candidate and

send the name for approval by the Government. Therefore, no final say

could be given to the proposal.

The allegations made against respondent-Khan are no doubt of a

very serious nature and certainly if proved do not befit a teacher. The clay like mind of young children are shaped into beautiful moulds by teachers.

They. shape the future course of the students. To a great measure their G behaviour, character, reputation leave imprints in the minds of the young

children. If their conduct, behaviour and reputation is full of blemish that

would not be for the interest and in the welfare of the students. Respondent-

Khan has denied the allegations and has alleged bias. But we do not think

it necessary to opine one way or the other. Whatever be the truth, the H undisputed fact is that the litigation has continued unabated for long years.

....

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MANAGER, NIRMALA SENIOR SECONDARY SCHOOL.-. N.I. KHAN [PASAYAT. J.) 83

It would be neither in the interest of respondent-Khn nor the Institution A if respondent-Khan is continued in the Institution. By making this observation, it is not to be construed as if we have found the allegations to be true. On the contrary, the welfare of the Institution, the reputation of respondent-Khan has been considered cy us in the proper perspective.

I fan act or omission of an employee reflects upon his character, reputation, B integrity or devotion to duty or is an unbecoming act, certainly the employer can take action. , aga, inst him. In this context, reference may be made to the following ob'sZSations of Lopes C.J. in Pearce v. Foster, [1866] 17 QBD 536, p. 542:

"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service

of the business. It is sufficient if it is conduct which is prejudicial D or is likely to be prejudicial to the interests or to the reputation Of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."

This view was re-iterated by a three-Judge Bench of this Court in Union of India and Ors. v. K.K. Dhawan, AIR (1993) SC 1478 and Indian Raiiway Construction Co. Ltd. v. Ajay Kumar, [2003) 4 SCC 579.

Without therefore deciding the contentjltus pleas raised by learned F counsel for the parties, we direct as follows-:

(I) A sum of Rs. 4,50,000 shall be paid w_ithin four months from today to respondent-Khan out of which R.s. 4,00,000 shall be paid by the State Gove1nment directly to respondent-Khan and the balance amount shall be paid by the Institution to respondent-Khan within the indicated G time.

(2) The inte1im order passed by this Court shall continue till payment is made. The respondent-Khan woui"d not be entitled tO 'iny other sum in , respect of his service with the Institution. On payment bei~~~ made, the H

A order of termination of his service shall become operative not on the ground indicated therein, but because of the present order.

(3) This order shall not stand on the way of the respondent-Khan seeking employment elsewhere.

The appeals are disposed of accordingly, without any order as to costs.

WRIT PETITION (C) NO. 18911999

C In view of the order passed in Civil Appeal Nos. 5337-5339/1999, no further order is necessary to be passed in the writ petition.

B.S.

Appeals disposed of.