Full Judgment Text
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CASE NO.:
Appeal (civil) 5337-5339 of 1999
Writ Petition (civil) 189 of 1999
PETITIONER:
Manager, Nirmala Senior, Secondary School, Port Blair
RESPONDENT:
N.I. Khan & Ors.
DATE OF JUDGMENT: 21/11/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, 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 imparts and the student receives, where there is complete
dedication 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
that the appointment of teachers is an important part in educational
institutions. The qualifications and the 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 purity in educational sphere and serene
atmosphere of the institution. The whole unsavoury episode started on
21.12.1995 when respondent-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 same day. Subsistence allowance
was sanctioned on 29.12.1995. A few days thereafter in a second
incident, Khan allegedly picked up quarrel 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(1) of the Constitution of India, 1950 (for short the
’Constitution’) and the legal battle has continued unabated and reached
this 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 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
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picture as Article 30(1) of the Constitution 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 by the Delhi Education Code, 1965 (in
short the ’Code’) which was made applicable to the Andaman and Nicobar
Islands with effect from 25.10.1968. 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 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 efforts to enforce discipline and an undisciplined teacher
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
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 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 payment of
subsistence allowance 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 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 opportunities 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 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 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, 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 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
dismissal by judgment dated 11.11.1998.
These appeals have been filed by the management questioning
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legality of the judgments passed by the High Court.
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 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 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 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 Article 30(1) of the
Constitution, the Institution requested the Director to send his nominee
which was not responded. Ultimately, the Director 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 procedure was 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
decision in the matter. Residually, it was submitted that when teacher
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 facts of the
case, more particularly, when the Institution is an aided one. On
trumped up allegations, 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 taking a departure from the
prescribed procedures. 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, Eleven-Judge Bench decision in T.M.A. 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 (1) SCR 173) and Islamic Academy of Education and
Anr. v. State of Karnataka and Ors. (2003 (6) SCC 697). Though complex
issues of law relating to ever baffling question centering round Article
30(1) of the Constitution has been pressed into service by learned
counsel for the appellant, and non-applicability thereof emphasized by
learned counsel for the 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 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 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
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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 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 undisputed fact is that the litigation
has continued unabated for long years. It would be neither in the
interest of respondent-Khan nor the Institution 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 by us 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. In this context, reference may be
made to the following observations 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 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 Railway
Construction Co. Ltd. v. Ajay Kumar (2003 (4) SCC 579).
Without therefore deciding the contentious pleas raised by learned
counsel for the parties, we direct as follows:
(1). A sum of Rs.4,50,000/- shall be paid within four months from today
to respondent-Khan out of which Rs.4,00,000/- shall be paid by the State
Government directly to respondent-Khan and the balance amount shall be
paid by the Institution to respondent-Khan within the indicated time.
(2). The interim order passed by this Court shall continue till payment
is made. The respondent-Khan would not be entitled to any other sum in
respect of his service with the Institution. On payment being made, the
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. 189/1999
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.
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