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G. Vallikumari Versus Andhra Education Society & ors.

2010 (2) TMI 1248 - SUPREME COURT OF INDIA

Civil Appeal No. 5508 of 2003 - Dated:- 2-2-2010 - G. S. Singhvi And (Dr) B. S. Chauhan, JJ. JUDGMENT G. S. Singhvi, J. 1. This appeal is directed against order dated 10.4.2002 passed by the Division Bench of Delhi High Court whereby it allowed the writ petition filed by respondent Nos.1 and 2 and declared Section 12 of the Delhi School Education Act, 1973 (for short, the Act ) ultra vires the provisions of the Constitution and in so far applicability of the exclusion clause contained therein is .....

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by respondent No.1 and is aided by the Government of Delhi to the extent of 95%. The appellant was appointed as Upper Division Clerk (UDC) by respondent Nos. 1 and 2 w.e.f. 25.1.1988. Her appointment was approved by the Director of Education, Delhi (hereinafter referred to as the Director ). In January, 1992, the appellant was granted permission by the management for doing Postgraduate Diploma in Human Resources Development Programme. After some time, the appellant applied for study leave for at .....

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gement of the school. Shri Y.S. Rao, who was appointed as inquiry officer, submitted report dated 4.7.1995 with the findings that all the charges except charge No.4 have been proved against the appellant. A copy of the inquiry report was supplied to the appellant along with notice dated 9.11.1995 proposing her removal from service. She filed reply dated 20.11.1995. After considering the same, the disciplinary committee recommended the appellant s removal from service. The Managing Committee acce .....

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Committee passed order dated 30.11.1996 removing the appellant from service. 3. The appeal filed by the appellant against her removal from service was allowed by the Tribunal vide order dated 24.7.2001 mainly on the ground of violation of Section 8(2) of the Act and Rule 120(2) of the Rules. The Tribunal referred to the judgments of this Court in Lily Kurian v. Sr. Lewina and others (1979) 2 SCC 124, Frank Anthony Public School Employees Association v. Union of India (1986) 4 SCC 707 and Y. The .....

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of India. (b) Declare Section 12 of the Delhi School Education Act, 1973 in so far as it restricts its applicability to unaided minority schools, to be ultra vires of Article 30(1) of the Constitution of India. (c) Issue a Writ, order or direction thereby quashing the impugned judgment dated 24th July, 2001, passed by the Respondent No.1 and declare that even in the case of aided minority school established under Article 30(1) of the Constitution of India, no prior approval within the meaning o .....

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Rev. Mother Provincial Etc. 1970 (2) SCC 417, DAV College Etc. Etc. v. State of Punjab and others 1971 (2) SCC 269, Ahmedabad St. Xavier s College Society and another v. State of Gujarat and another 1974 (1) SCC 717, Lily Kurian v. Sr. Lewina and others (supra), All Saints High School, Hyderabad and others v. Government of Andhra Pradesh and other 1980 (2) SCC 478, Frank Anthony Public School Employee s Association v. Union of India and others (supra), Y. Theclamma v. Union of India (supra), Anj .....

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. (2) SCC 301, St. Johns Teachers Training Institute (For Women), Madurai and others v. State of Tamil Nadu and others 1993 (3) SCC 595 and held that any provision which seeks to take away the right of the managing committee to pass any order of dismissal, removal or reduction in rank, would be violative of Article 30(1) of the Constitution of India. Such a provision may, however, be upheld if an independent Tribunal wholly unconnected with the affairs of the institution as in the case of Delhi .....

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legally correct and answered the same in the following words: "It is further incorrect to contend that sub section (2) of Section 8 does not suffer from unbridled power. As to what are the matters which are to be taken into consideration for grant or refusal of approval are not specified. In terms of Rule 120 no guidelines have been provided. Even no time limit has been provided within which such order should be passed. Such unbridled and unguided power, in our opinion, cannot be upheld. I .....

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tamount to arbitrary exercise of power for exercising his statutory function. We, therefore, are of the opinion that sub- section (2) of Section 8 cannot be held to have any application so far as minority institutions are concerned. In the instant case, no guidelines have also been provided by reason of Rule 120 of the Rules." The Division Bench finally declared that Section 12 of the Act insofar as it restricts the applicability of the Act to unaided minority institutions is ultra vires an .....

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tution. Learned senior counsel submitted that even though in Frank Anthony Public School Employees Association s case, the two-Judge Bench did not notice an earlier Constitution Bench judgment in Lily Kurian s case, the legal position has been clarified in Y. Theclamma s case. Shri P.P. Rao submitted that in view of the law laid down in Frank Anthony Public School Employees Association s case and Y. Theclamma s case, it was neither necessary nor there was any justification for the Division Bench .....

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of the Act. Learned counsel submitted that even though Section 8(3) does not, in terms provide for an appeal by the management of the recognized private school, the same should be read as implicit in the language of that section, else it may be argued that the provision is discriminatory and violative of doctrine of equality. Shri P.P. Rao then argued that the High Court committed serious error by setting aside the reinstatement of the appellant without even adverting to the issue relating to le .....

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mited and another 2003 (8) SCC 9, Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others 2004 (4) SCC 560. 7. Learned counsel appearing for the NCT of Delhi adopted the arguments of Shri P.P. Rao and emphasized that the Tribunal did not commit any error by setting aside the appellant s removal from service because management of respondent Nos.1 and 2 had acted in clear violation of mandate of Section 8(2) read with Rule 120 (2) of the Rules. 8. Shri L.N. Rao, learned senior counsel ap .....

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y institutions would result in violation of Article 14. Shri L.N. Rao also relied upon the larger Bench judgment in T.M.A. Pai Foundation s case and submitted that right of the private aided minority institutions to regulate the discipline cannot be curtailed by a provision like one contained in Section 8(2) of the Act. 9. We have considered the respective submissions. Sections 8 and 12 of the Act and Rule 120 of the Rules which have bearing on the decision of this appeal read as under: 8. Terms .....

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urther that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act. (2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director. (3) Any employee of a recognised private school who is dismissed, removed or reduced i .....

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mployee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under section 9, of the employee: Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said p .....

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loyee any major penalty shall be made except after an inquiry, held, as far as may be, in the manner specified below: (a) the disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority, but not late .....

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quiry regarding his findings on each of the charges together with the reasons therefor; (d) the disciplinary authority shall consider the record of the inquiry and record its findings on each charge and if the disciplinary authority is of opinion that any of the major penalties should be imposed, it shall- (i) furnish to the employee a copy of the report of the inquiry officer, where an inquiry has been made by such officer; (ii) give him notice in writing stating the action proposed to be taken .....

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loyee against the penalty, the disciplinary authority shall record its findings as to the penalty which it proposes to impose on the employee and send its findings and decision to the Director for his approval and while sending the case to the Director, the disciplinary authority shall furnish to him all relevant records of the case including the statement of allegation charges framed against the employee, representation made by the employee, a copy of the inquiry report, where such inquiry was .....

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the vires of Section 12 of the Act on the ground that the same is violative of Article 14 of the Constitution. The two-Judge Bench noticed the scheme of the Act, referred to Article 30(1) and (2) and various judgments of this Court including Very Rev. Mother Provincial s case, Ahmedabad St. Xavier s College Society s case and observed: "Section 8(1) merely empowers the Administrator to make rules regulating the minimum qualifications for recruitment, and the conditions of service of recogn .....

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er who shall be a District Judge or who has held an equivalent judicial office, (3) to require prior approval of the Director if it is proposed to suspend an employee unless immediate suspension is necessary by reason of the gross misconduct of the employee in which case the suspension shall remain in force for not more than 15 days unless approval of the Director is obtained in the meanwhile. In the Nine-Judge Bench case Ray, C.J. and Palekar, J. took the view that Section 51-A of the Gujarat A .....

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g of one member nominated by the governing body, one member nominated by the member of the staff and an Umpire appointed by the Vice-Chancellor was also held to be violative of Article 30(1). It was said that this provision would introduce an area of litigious controversy in educational institutions and displace the domestic jurisdiction of the management. Jaganmohan Reddy, J. and Alagiriswami, J., agreed with the conclusions of Ray, C.J. Khanna, J. thought that the blanket power given by Sectio .....

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stitution by providing for arbitration in petty disputes also. Keeping in-mind the views of the several learned Judges, it becomes clear that Section 8(2) must be held to be objectionable. Section 8(3) provides for an appeal to the Tribunal constituted under Section 11, that is, a Tribunal consisting of a person who has held office as a District Judge or any equivalent judicial office. The appeal is not to any departmental official but to a Tribunal manned by a person who has held office as a Di .....

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sed make the provision for an appeal perfectly reasonable, in our view. The objection to the reference to an Arbitration Tribunal in the Nine-Judge Bench case was to the wide power given to the Tribunal to entertain any manner of dispute and the provision for the appointment of Umpire by the Vice-Chancellor. Those defects have been cured in the provisions before us. Similarly, the provision for an appeal to the Syndicate was considered objectionable in State of Kerala v. Very Rev. Mother Provinc .....

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roval should be obtained within 15 days. The Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension. The provision appears to be eminently reasonable and sound and the answer to the question in regard to this provision is directly covered by the decision in All Saints High School where Chandrachud, C.J. and Kailasam, J. upheld Section 3(3)(a) of the Act impugned therein. We may also mention that in that case the right of appeal conferred by .....

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asses. There were no speeches, no chanting or shouting of slogans, no violence and no disruption of studies. The behaviour of the teachers appears to have been orderly and exemplary. One would have thought that the teachers were, by their silent and dignified protest, setting an example and the soundest of precedents to follow to all agitators everywhere. But instead of sympathy and appreciation they were served with orders of immediate suspension, something which would have never happened if al .....

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idered Section 11 while dealing with Section 8(3). We must, therefore, hold that Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minoriti .....

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the extent that it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, to enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of the Frank Anthony Public School. The management of the school is directed not to give effect to the orders of suspension passed against the members of the staff." (emp .....

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y nature and therefore did not have the effect of abridging the fundamental right guaranteed to the minorities under Article 30(1). It is enough to say that although there is no reference in the judgment to Lily Kurian case the observations made by the court with regard to the applicability of sub-section (4) of Section 8 of the Act which relates to the exercise of the power of suspension by the management, fall in line with the view expressed by the majority in All Saints High School case where .....

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ol case. In Lily Kurian case one of us (Sen, J.,) speaking for a Constitution Bench had occasion to observe: (SCC p. 137, para 36) "Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority s choice enshrined in Article 30(1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulatio .....

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of penalties including that of suspension was an abridgement of the right of administration conferred on the minorities under Article 30(1). The question was answered in the affirmative and it was held that the conferral of the power of appeal to the Vice- Chancellor under Ordinance 33(4) was not only a grave encroachment on such institution s right to enforce and ensure discipline in its administrative affairs but it was uncanalised and unguided in the sense that no restrictions were placed on .....

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d be seen that the decision of the Court in Frank Anthony Public School case with regard to the applicability of sub-section (4) of Section 8 of the Act to the unaided minority educational institutions is based on the view taken by the majority in All Saints High School case which, on its turn, was based on several decisions right from In re the Kerala Education Bill, 1957 down to St. Xavier, including that in Lily Kurian. It is therefore difficult to sustain the argument of learned counsel for .....

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the minorities under Article 30(1) of the Constitution to administer educational institutions established by them is answered in all the earlier decisions of this Court right from In re the Kerala Education Bill, 1957 down to that in All Saints High School case which have been referred to by the Court in Frank Anthony Public School case. These decisions unequivocally lay down that while the right of the minorities, religious or linguistic, to establish and administer educational institutions of .....

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laid down in Frank Anthony Public School case the provision contained in sub-section (4) of Section 8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the Managements right to take disciplinary action. Although the court in that case had no occasion to deal with the different ramifications arising out of sub-section (4) of Section 8 of the Act, it struck a note of caution that in a case where the management charged the emp .....

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ection 8(1), (3), (4) and (5) of the Act do not violate the right of the minorities to establish and administer their educational institutions. However, Section 8(2) interferes with the said right of the minorities and is, therefore, inapplicable to private recognized aided/unaided minority educational institutions. (ii) Section 12 of the Act, which makes the provisions of Chapter IV of the Act inapplicable to unaided private recognized minority educational institutions is discriminatory except .....

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tial benefits. Shri Y. S. Rao, who conducted inquiry against the appellant submitted report dated 4.7.1999 with the findings that all the charges except charge No.4 have been proved against the appellant. She was given a copy of the inquiry report along with show cause notice to which she filed reply dated 20.11.1995. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and representation submitted by her in the light of the findings rec .....

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si judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority. 14. A careful reading of the Tribunal s order shows that though it did not find any procedural infirmity in the inquiry against the appellant, the order passed by the .....

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Division Bench of the High Court dealt with and decided the appellant s challenge to the findings recorded by the inquiry officer and her plea that the extreme penalty of removal from service imposed on her was not justified because she was not found guilty of any serious misconduct. 15. Since the order of punishment passed by the Chairman of the Managing Committee is vitiated due to violation of the statutory rules and the principles of natural justice, we may have remitted the matter to the Tr .....

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held that if an order passed by the disciplinary authority is annulled on a technical ground, the concerned authority is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge. In Shri Bhagwan Lal Arya s case, a somewhat similar approach was adopted by this Court by recording the following observations: "Thus, the present one is a case wherein we are satisf .....

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In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Look .....

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