MANAGING COMMITTEE RUKMANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Managing Committee of an aided High School is before us in this proceeding initiated under Articles 226 and 227 of the Constitution of India. The Managing Committee challenges the order of the State Educational Tribunal. Orissa dated 12.7.1999 in Appeal No. 13 of 1998 an appeal filed under Section 10 Aof the Orissa Education Act, to. the extent it is against the contentions of the Managing Committee and subsequent order of the Director of Secondary Education dated 10.4.2000 in its entirety. Respondent No. 4 in the writ petition was appointed as an Assistant Teacher by the Managing Committee on 29.9.1990. She was a Science graduate but she was not trained. The Inspector of Schools therefore did not approve her appointment. On 7.9.1993, Respondent No. 4 became trained graduate. Her appointment was approved on 16.10.1995. For her unauthorised absence. a notice was issued to her on 10.11.1995 to show cause why action should not be taken. This was followed by another notice dated 25.11.1995 calling upon her to show cause why action should not. be taken for misbehaviour and neglect of duty. Her unauthorised absence was also noticed by the Administrative Officer of the Inspector Schools when he made a surprise visit. After issuance of the further notice to show cause, charges were framed against Respondent No. 4 on 20.1.1996. Respondent No. 4 filed an answer in which she raised the contention that there was no Managing Committee in existence which could issue her a notice of show cause and that the charges framed against her are not ' finite. Thereupon, definite charges along with documents were issued to Respondent No. 4 calling upon her to submit her defence. Respondent. No. 4 did not bother to submit any defence. She was therefore suspended. The approval of the Inspector of Schools was sought for the suspension. For want of approval of the Inspector of Schools, the first order of suspension dated 2.4.1996 was quashed by the High Court. But the subsequent order of suspension dated 18.9.1996 was not dealt with or interfered with by the High Court. In spite of repeated opportunities being given. Respondent No. 4 failed to furnish her defence. The Managing Committee thereupon appointed one of its member as Enquiry Officer to conduct a departmental enquiry against Respondent No. 4. This fact was communicated to the Respondent No. 4. The Enquiry Officer directed Respondent No. 4 to attend the enquiry on the date fixed. Respondent No. 4 did not attend the same. Yet another notice was issued to Respondent No. 4 calling upon her to attend the enquiry. Again, she did not chose to attend the enquiry. The Enquiry Officer eventually completed the enquiry and submitted his report to the Managing Committee with a finding that the charges framed against the Respondent No. 4 have been proved. The Managing Committee sent a copy of the enquiry report to the Director of Public Instruction, for his advice under Rule 22 (12) of the Orissa Education (Recruitment and Condition of Service of Teachers and Members of Staff of Aided Educational Institution) Rules, 1974. The Director of Public Instructions, chose not to terminate the services of the petitioner or to adopt any other appropriate course. Since no intimation was received from the Director of Public Instruction, the Managing Committee terminated the services of the petitioner. Meanwhile, the Director of Public Instructions purported to direct the Management to re instate the petitioner pursuant to the setting aside of the original order of suspension by the High Court in OJG No. 8496 of 1996 and to pay Respondent No. 4 the arrears of salary. The Director followed this up by issuing a notice to the Managing Committee proposing withdrawal of grant in aid to the school for not implementing his order. Challenging the order of the Director of Public Instructions, the Managing Committee filed OJC No. 338 of 1998 before this Court. This Court stayed the implementation of the order of the Director. In spite of the order of stay, the Director purported .to reiterate or enforce his order. Respondent No. 4 in her turn filed OJC No. 3004 of ,1998 before this Court challenging her termination. The. ground raised was that there was no valid Managing Committee for the school and hence the entire proceeding was bad. The Writ petition filed by the Managing Committee and Respondent No, 4 were heard and by judgment dated 7.1 1.1998 the High Court held that the order of termination was an appealable order and it was for Respondent No. 4 to pursue her remedy by way of appeal before the Orissa Education Tribunal. In the writ petition filed by the Managing Committee, the Court directed the Director to pass necessary orders on the request sent by the Managing Committee under Rule 22 (12) of the Orissa Education (Recruitment and Condition of Service of Teachers and Members of Staff of Aided Educational institutions) Rules, 1974 within six weeks of the date of the decision of the High Court. On 12.7.1999, the Education Tribunal finally disposed of the appeal filed by Respondent No. 4. The Tribunal held that there was valid Managing Committee when the order of termination was passed and the order of termination was passed after necessary opportunity was given to Respondent No. 4 to put forward her case. Thus, it was held that the order of termination was not violative of principles of natural justice or want of competence because of non existence of the valid Managing Committee. But the Tribunal took the view that the order of termination was bad since the Managing Committee passed that order without prior approval of the authority concerned, Thus the Tribunal set aside the orders of termination and directed Respondent No. 4 to be reinstated and also held that she will be entitled to service benefits except financial benefits for the period she was out of service. In the meanwhile, the Director, on 10 4.2000, ignoring the finding of the Tribunal proceeded to pass an order holding that principles of natural justice had not been adhered to in the process of inquiry against the Respondent No. 4 and since no advice was obtained from him, the order of termination was bad. It is that part of the order of the Tribunal declaring termination of Respondent No. 4 bad for want of prior approval of the concerned authority and the order of the Director purported to go against even the finding of Tribunal that are challenged by the Managing Committee in this writ petition.

(2.) WE may notice that Respondent No. 4, the teacher has not challenged the findings of the Tribunal either by way of separate writ petition or by way of defence to the writ petition filed by the Management challenging ultimate decision of the Tribunal. The findings that there has been a proper enquiry and the rules of natural justice have been adhered to have thus become final. On going through the order of the Tribunal and reference to the facts narrated earlier we are also satisfied that adequate opportunity was given to Respondent No. 4 to put forward her defence and pursue the same and there has been a proper enquiry conducted by the Managing Committee. We also see no reason not to accept the finding that there was a valid Managing Committee in existence when the order of termination was passed. As earlier noticed, there was no argument before us on behalf of the Respondent No. 4 questioning that finding of the Tribunal It is therefore, clear that a valid proceeding had been initiated by the Managing Committee against a teacher for alleged unauthprised absence and other related misderneanorus. A proper enquiry had been conducted and a punishment proposed.

(3.) BUT as observed by the Tribunal, in the light of decision of the Supreme Court in Managing Committee, Syed High School v. State of Orissa, 1995 (6) SLR 46, it is clear that prior approval of the authority concerned is a must for termination the services of a teacher of an aided school. Due to inaction of the Director, of Public Instructions or otherwise, the Managing Committee had not got the prior approval for terminating the services of Respondent No. 4 based on the domestic enquiry it had conducted. To that extent therefore, the termination of Respondent No. 4 was rightly found to be invalid by the Educational Tribunal. Therefore, to the extent the Education Tribunal set aside the order of dismissal and ordered that Respondent No. 4 be reinstated in service has to be affirmed. But the order of Director of Public Instructions purporting to find that there was no proper enquiry of that there was violation of natural justice has to be found to be totally improper. Apart from everying, in the order dated 12.6.1999, the Education Tribunal had clearly found that Respondent No. 4 had been given adequate opportunity to put forward her case and that there was no violation of natural justice. That finding was clearly binding on the Director of Public Instructions. We find it somewhat susprising that the Director of Public Instructions was imprudent enough to brush aside the finding of the Education Tribunal constituted under the Act, a quasi judicial Tribunal, the decision of which is equally binding on the Management, the member of the staff and on authorities under the Orissa Education Act. Therefore, when the Director of Public Instructions found that natural justice has been violated; he has acted Without jurisdiction. On the facts also, he has clearly erred in finding that there was violation of natural justice. If in spite of repeated notice, Respondent No. 4 failed to take advantage of the opportunity to present her defence, Respondent No. 4 has to thank herself for the consequence. Her failure, deliberate failure to attend the enquiry cannot justify the finding that there was no proper enquiry or that there was violation of natural justice; The further direction of the Director to the extent of directing Respondent No. 4 to be reinstated in service can be read as consistent with the finding of the Tribunal and can be sustained because it can be related to the conditional direction Of Tribunal which we have upheld in the earlier part of the judgment.