PETITIONER:
MANMOHAN SINGH JAITLA, ETC. ETC
Vs.
RESPONDENT:
THE COMMISSIONER. UNION TERRITORY CHANDIGARH AND ORS. ETC.
DATE OF JUDGMENT19/12/1984
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
KHALID, V. (J)
CITATION:
1985 AIR 364 1985 SCR (2) 479
1984 SCC Supl. 540 1984 SCALE (2)991
CITATOR INFO :
R 1986 SC1571 (57)
R 1989 SC 341 (14)
ACT:
Punjab Aided Schools (Security of Service) Act, 1969-S.
3-Holding of inquiry before dismissing an employee of an
aided school is mandatory-S. 3 is beneficial provision-On
appointment teacher asked to enter into agreement with
school management-Agreement in derogation of mandatory
provision-Managing Committee terminated service of teacher
without holding inquiry by invoking conditions of agreement-
Whether amounts to colourable exercise of power-Whether
order of termination of service bad and ab initio void.
Constitution of India Art 227-Scope of writ
jurisdiction-Expression ‘Tribunal in Art. 227 comprehends
Deputy Commissioner and Commissioner which are statutory
quasi-judicial authorities under the Punjab Aided Schools
(Security of Service) Act 1969-Deputy Commissioner and
Commissioner are amenable to the writ jurisdiction.
Interpretation-Any agreement not in consonance with
the statutory provisions beneficial to a class in need of
protection cannot be given effect to it stands in
derogation of the mandatory provisions of the statute.
HEADNOTE:
Section 3 of the Punjab Aided Schools (Security of
Service) Act, 1969 (’1969 Act’ for short) provides that no
employee shall be dismissed or removed or reduced in rank
except after an inquiry to be held in the manner prescribed
therein. Sub-sec. (2) provides that no order of dismissal or
removal or reduction in rank of an employee shall take
effect unless it has been confirmed by the Deputy
Commissioner who may refuse to do so. if in his opinion, the
provisions of sub-sec. (I) have not been complied with. Sub-
sec. (S) permits an aggrieved person to prefer an appeal
against any decision or order of the Deputy Commissioner
under the section to the Commissioner.
The appellant in the civil appeal was appointed as
Headmaster of an aided school which received 95 percent of
its expenses as grant from the Government. As required by
the conditions of his appointment, the appellant entered
into an agreement with the management of the school. The
appellant’s appointment was confirmed by the concerned
authority. The appellant was confirmed in his post as the
Headmaster. The appellant was
480
awarded a certificate of honour by the Chandigarh
administration in token of appreciation of the outstanding
performance of the appellant. After the term of the Managing
Committee which appointed the appellant expired and the new
Managing Committee took over, the services of the appellant
were terminated invoking the conditions of the agreement
entered into by the appellant. The appellant’s appeal to the
Deputy Commissioner and the Commissioner were turned down.
The appellant’s writ petition was dismissed by the High
Court in limine. The High Court observed that as the school
cannot be said to be ‘other authority’ under Art. 12 of the
Constitution, it was not amenable to the writ jurisdiction
of the High Court. Hence this appeal by Special Leave.
The petitioner in the writ petition was appointed as a
Drawing Teacher in 1976. As required by the conditions of
his appointment the petitioner entered into an agreement
with the management. In 1983 the petitioner’s services were
terminated invoking the conditions of the agreement. The
petitioner approached the Deputy Commissioner and the
Commissioner without success. Thereupon he field the present
writ petition under Art. 32 of the Constitution.
Allowing both the appeal and the writ petition,
^
HELD: Any agreement not in consonance with the
statutory provisions beneficial to a class in need of
protection cannot be given effect to if it stands in
derogation of the mandatory provisions of the statute.
Section 3 of the 1969 Act makes it obligatory to hold a
disciplinary inquiry before an employee of an aided school
can be either dismissed removed or reduced in rank. In order
to circumvent this mandatory provision, a resort to the
provisions of the agreement in the context of the fact that
an inquiry was commenced and given up clearly indicates the
true nature of the order as well as colourable exercise of
power. And this was done by the new Managing Committee which
appeared to be keen to dispense with the service of persons
appointed by the outgoing Managing Committee. This smacks of
malafide. For these reasons the order of termination of
service of the appellant is bad and ab initio void. [485E-G]
The High Court declined to grant any relief on the
ground that an aided school is not ‘other authority’ under
Act. 12 of the Constitution and is therefore not amenable to
the writ jurisdiction of the High Court. The High Court
clearly overlooked the point that Deputy Commissioner and
Commissioner are statutory authorities operating under the
969, Act. They are quasi-judicial authorities and that was
not disputed. Therefore, they will be comprehended in the
expression ‘Tribunal’ as used in Art. 227 of the
Constitution which confers power of superintendence over all
courts and tribunals by the High Court throughout the
territory in relation to which it exercises jurisdiction.
Obviously, therefore, the decision of the statutory quasi-
judicial authorities which can be appropriately described as
tribunal will be subject to judicial review namely a writ of
certiorari by the High Court under Art. 227 of the
Constitution. The decision questioned before the High Court
was of the Deputy Commissioner and the Commissioner
exercising power under Sec. 3 of the 1969 Act. And these
statutory
481
authorities are certainly amenable to the writ jurisdiction
of the High Court. [485G-H; 486A-C]
After the decision of the Constitution Bench of this
Court in Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors.
etc. the aided school receiving 95% of expenses by way of
grant from the public exchequer and whose employees have
received the statutory protection under the 1969 Act and who
are subject to the relations made by the Education
Department of the Union Territory of Chandigarh as also the
appointment of Headmaster to be valid must be approved by
the Director of Public Instructions , would certainly be
amenable to the writ jurisdiction of the High Court. [486C-
D]
Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors.
etc., [1981] 2 SCR 79, referred to.
The Deputy Commissioner and the Commissioner in terms
held in both the cases that because of the terms of the
agreement entered into by each of the teachers with the
management of the school, it would not be open to them to go
behind the order and to find out the true nature of the
order. Now if the management of the school intends to
circumvent the mandatory provisions of Sec. 3 of the 1969
Act, it has merely to terminate the service by giving one
month’s notice as provided in the agreement and the
provisions controlling the arbitrary powers of the
management to hire and fire can be rendered nugatory. The
Deputy Commissioner cannot take an easy recourse becoming
oblivious to his duties merely to pay lip sympathy to the
order made by the management and decline even to examine the
allegation of malafide as also the true nature and character
of the impugned order. [484B-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2137 of
1984.
From the Judgment and Order dated 24.2.83 of the
Punjab and Haryana High Court in Civil Writ No.1086/83.
WITH
Writ Petition No. 11238 of 1983
Under Article 32 of the Constitution
K.G. Bhagat, Additional Solicitor General and Vimal
Dave for the appellant in CA. No. 2137/84.
K.G. Bhagat, Additional Solicitor General and Ms. Asha
Rani Jain for the petitioner in WP. N o. 11238/83.
Prithvi Raj and R.C. Pathak for the respondents.
The Judgment of the Court was delivered by
482
DESAI, J. Guru Nanak Khalsa High School ( ‘ School’ for
short) an aided school and hence governed by The Punjab
Aided Schools (Security of Service) Act, 1969 (’1969 Act’
for short) in its application to the Union territory of
Chandigarh dispensed with the service of the Headmaster of
the School, appellant Shri Manmohan Singh Jaitla, and the
drawing teacher Amir Singh claiming to exercise power under
an agreement executed by each of them with the management of
the school. Admittedly, the school receives 95% of its
expenses as grant from the Government and for contribution
5% of the expenses claims thoroughly arbitrary powers to be
presently pointed out which appears to be anachronistic. The
action of the Managing Committee of the school in dispensing
with the services of both the aforementioned persons is
questioned in these two matters on more or less identical
grounds and therefore they were heard together and are being
disposed of by this judgment.
In Re: C.A. No. 2137/84:
Pursuant to an advertisement inviting application for
the post of Headmaster of the School, appellant- Shri
Manmohan Singh Jaitla applied for the same. He was
interviewed on March 28, 1976 and on the same day by the
order of the same date, he was offered the post of
Headmaster in the school in the prescribed scale with usual
allowances sanctioned by the Education Department, Chandi-
garh Administration for grant-in-aid Schools. The order of
appointment provided that the appointee will be on probation
for a period of one year and that he will be required to
enter into an agreement with the school. The appellant
accepted the appointment order and joined service. As
required by the regulations of the Education Department of
Chandigarh Administration, his appointment was subject to
confirmation by the Director of Public Instruction. The
confirmation was granted as per the order dated August 11,
1976. By the resolution of the Managing Committee of the
School dated June 2, 1977, the appellant was confirmed with
effect from May 1, 1977 in post as the Headmaster. In token
of the appreciation of the outstanding performance of the
appellant as Headmaster in the field of academic work/co-
curricular activities and administration during the session
1980-81, he was awarded a certificate of honour by the
Finance and Education Secretary, Union Territory of
Chandigarh, on August 10, 1981. It appears that the term of
the earlier Managing Committee expired and a new Managing
Committee took over with effect from March 24,1982. On
January 31,1983, the Education Managing Committee of’ the
school informed the appellant that his
483
services were no longer required with effect from that very
day i.e. January 1983 and in terms of Condition No. (iii) of
the agreement entered into by him, he would cease to be in
the employment of the school and was directed to hand over
charge to Mrs. Gurcharan Kaur. The appellants application
for relief to the Deputy Commissioner under sub-sec. (2) of
Sec. 3 of the 1969 Act was turned down. After an
unsuccessful appeal to the Commissioner, the appellant
approached the High Court of Punjab and Haryana at
Chandigarh under Art. 227 of the Constitution. The High
Court rejected the writ petition in limine but by a speaking
order observing that as the school] cannot be said to be
‘other authority’ under Art. 12 of the Constitution, it was
not amenable to the writ , jurisdiction of the High Court.
Hence this appeal by special leave.
In Re W. P. No. 11238/83:
Petitioner Amir Singh was appointed by the Managing
Committee of the School on March 21, 1976 as a Drawing
Teacher as per the appointment order No.1265 dated March 21,
1976. This appointment was made upon an application made by
the petitioner and after he was interviewed by the concerned
committee of the school. The appointment order spells out
some of the conditions of appointment, one of them may be
noticed. The appointee had to enter into an agreement with
the management of the school. The petitioner was informed by
a letter dated February 28, 1983 that as per the resolution
adopted by the Managing Committee of the school, it was
resolved to terminate the service of the petitioner as no
longer required with effect from the fore-noon of March 4,
1983 in terms of first part of clause (6) of the agreement
entered into between the petitioner and the Management. The
petitioner approached the Deputy Commissioner and the
Commissioner without success. Thereupon he filed present
petition under Art. 32 of the Constitution.
It is not in dispute that the school is governed by
the 1969 Act. It is an aided school receiving aid from the
State Government to the tune of 95% of its expenses. Sec. 3
of the 1969 Act provides that no employee shall be dismissed
or removed or reduced in rank except after an inquiry to be
held in the manner prescribed therein. Sub-sec. (2) provides
that no order of dismissal or removal or reduction in rank
of an employee shall take effect unless it has been
confirmed by the Deputy Commissioner who may refuse to do
so, if in his opinion, the provisions of sub-sec. (1) have
not been complied with. Sub-sec. (5) permits an aggrieved
person to prefer an appeal
484
against any decision or order of the Deputy Commissioner
under the section within a period of thirty days to the
Commissioner. Sub-sec. (6) provides that the order of the
Commissioner shall be Final and binding between the parties.
The Deputy Commissioner and the Commissioner in terms
held in both the cases that because of the terms of the
agreement entered into by each of the teachers with the
management of the school, it would not be open to them to go
behind the order and to find out the true nature of the
order. It was also submitted on behalf of the respondent
that under the relevant regulations of the Education
Department of the Chandigarh Administration every employee
of an aided school has to enter into an agreement with the
management of the school. Now if the management of the
school intends to circumvent the mandatory provisions of
Sec. 3 of the 1969 Act, it has merely to terminate the
service by giving one month’s notice as provided in the
agreement and the provisions controlling the arbitrary
powers of the management to hire and fire can be rendered
nugatory. The Deputy Commissioner cannot take an easy
recourse becoming oblivious to his duties merely to pay lip
sympathy to the order made by the management and decline
even to examine the allegation of malafide as also the true
nature and character of the impugned order. In the garb of
enforcing a term of the agreement what was sought to be done
in this case was to impose the penalty of removal. And there
is sufficient material on record to show that the action was
malafide.
Turning to the case of Manmohan Singh Jaitla, the
Headmaster, the facts herein above narrated would
affirmatively show that he was fully qualified and that he
was appointed after interview and selection. He was
confirmed. He received a certificate of merit from the
Chandigarh Administration. The moment the Managing Committee
changed exposing the inter-se squabbles amongst persons
trying to usurp control of the management of the school,
almost wholly financed by the public exchequer, to wreck
vengeance against those who were appointed by the outgoing
management which may have been defeated at the hustings, the
agreement was invoked and the services terminated. Throwing
out persons appointed by out going management is only one
side of the coin. The moment the vacancy occurs, nepotism or
corruption will have field day. Since the new management
took, over quietly within a few months, service of the
Headmaster was terminated on the ground that his service was
no longer required. We repeatedly asked Mr. Prithvi Raj,
485
learned counsel for the respondent-school management as to
how it would run a school without a Headmaster. We naggingly
persisted with the question as to why it became necessary,
obviously in the middle of the term or session on January
31, 1983, to dispense with the service of a Head Master and
a Drawing teacher on the ground that they were no longer
required. We waited for the answer in vain. Obviously, there
could be none and that provides proof, if any was needed, to
expose the chink in the cupboard revealing the malafides of
the newly elected Managing Committee. We cannot efface the
feeling that ignoring the meritorious service for a period
of seven years the service of the appellant was dispensed
with for a reason wholly untenable but only because he was
appointed by the outgoing Managing Committee ignoring that
his appointment was confirmed by the competent authority of
the Chandigarh Administration. Coupled with this is the fact
that a charge-sheet was served on the appellant on April 9,
1979 and a disciplinary enquiry was commenced by the school
management. But the same was withdrawn and the power to
terminate the service under the agreement was invoked and
exercised. This gives a clear indication as to the punitive
character of the order namely punishment for a possible
misconduct and also colourable exercise of power by
resorting to the agreement. Any agreement, not in consonance
with the statutory provisions beneficial to a class in need
of protection cannot be given effect to if it stands in
derogation of the mandatory provisions of the statute. Sec.
3 makes it obligatory to hold a disciplinary enquiry before
an employee of an aided school can be either dismissed,
removed or reduced in rank. In order to circumvent this
mandatory provision, a resort to the provisions of the
agreement in the context of the fact that an enquiry was
commenced and given up clearly indicates the true nature of
the order as well as colourable exercise of power. And this
was done by the new Managing Committee which appeared to be
keen to dispense with the service of persons appointed by
the outgoing Managing Committee . This smacks of malafide.
For all these reasons the order of termination of service of
the appellant is bad and ab initio void.
The High Court declined to grant any relief on the
ground that an aided school is not ‘other authority’ under
Art. 12 of the Constitution and is therefore not amenable to
the writ jurisdiction of the High Court. The High Court
clearly overlooked the point that Deputy Commissioner and
Commissioner are statutory authorities operating under the
1969 Act. They are quasi-judicial authorities and that was
not disputed. Therefore, they will be comprehen-
486
ded in the expression ‘Tribunal’ as used in Art. 227 of the
which confers power of superintendance over all courts and
tribunals by the High Court throughout the territory in
relation to which it exercises jurisdiction. Obviously,
therefore, the decision of the statutory quasi-judicial
authorities which can be appropriately described as tribunal
will be subject to judicial review namely a writ of
certiorari by the High Court under Art. 227 of the
Constitution. The decision questioned before the High Court
was of the Deputy Commissioner and the Commissioner
exercising powers under Sec. 3 of the 1969 Act. And these
statutory authorities are certainly amenable to the writ
jurisdiction of the High Court.
The matter can be viewed from a slightly different
angle as well. After the decision of the Constitution Bench
of this Court in Ajay Hasia etc.v. Khalid Mujib Sehrvardi &
Ors. etc-(l) the aided school receiving 95%- of expenses by
way of grant from the public exchequer and whose employees
have received the statutory protection under the 1969 Act
and who is subject to the regulations made the Education
Department of the Union Territory of Chandigarh as also the
appointment of Head Master to be valid must be approved by
the Director of public Instructions, would certainly be
amenable to the writ jurisdiction of the High Court. The
High Court unfortunately, did not even refer to the decision
of the Constitution Bench in Ajay Hasia’s case rendered on
November 13, 1980 while disposing of the writ petition in
1983. In Ajay Hasia’s case, Bhagwati, J. speaking for the
Constitution Bench inter alia observed that ‘the financial
assistance of the State is so much as to meet almost entire
expenditure of the corporation, it would afford some
indication of the corporation being impregnated with
governmental character.’ Add to this the existence of deep
and pervasive State control may afford an indication that
the Corporation is a State agency or instrumentality
Substituting the words ‘public trust’ in place of the
‘corporation’ and the reasons will mutatis mutandis apply to
the school. Therefore, also the High Court was in error in
holding that the third-respondent school was not amenable to
the writ jurisdiction of the High Court.
It would thus appear that the order of termination of
service is unsustainable for more than one reason and
therefore, the order of termination of service No. 58/83/20
dated January 31,1983 is quashed and set aside and the
appellant Manmohan Singh Jaitla is reinstated in service as
the Headmaster of the school with continuity
(1)[1981] 2 S.C.R. 79.
487
in service and full backwages. If under the orders of this
Court A dated March 2, 1983, May 2, 1983 and subsequent
orders, the appellant-Headmaster is paid his monthly salary,
credit shall be taken for the same.
Amir Singh, the Drawing Teacher has met with the same
fate. He was appointed pursuant to his application for a
vacant post of a Drawing Teacher. Right from the inception,
he was a confirmed hand in the sense that he was not put on
probation. Suddenly, after the new Managing Committee got
into saddle, his service was terminated with effect from
March 4, 1983 on the ground that it was no longer required.
No attempt was made before us to sustain the order on this
untenable ground. Therefore, the only distinguishable
feature of this case with the case of the Headmaster
Manmohan singh Jaitla is that no charge-sheet was served
upon the petitioner teacher. Save and except this
difference, all the reasons which weighed with us in
quashing the order of termination of service of Headmaster-
Mr Jaitla would mutatis mutandis apply to the case of this
Drawing Teacher. To restate these reasons would merely add
to the length of this judgment. As a corollary, the rule
will have to be made absolute after quashing and setting
aside the order of termination of service dated February 28,
1983 and directing reinstatment of Drawing Teacher Amir
Singh in service with continuity in service with full
backwages.
Accordingly, C. A. No. 2137/84 is allowed and the
order terminating the service of Headmaster Manmohan Singh
Jaitla is quashed and set aside as also the decisions of the
Deputy Commissioner and the Commissioner and the Judgment of
the High Court are quashed and set aside. The appellant
Headmaster Shri Manmohan Singh Jaitla is reinstated in
service with continuity in service and full backwages
subject to the fact that if backwages have been paid under
the orders of this Court, credit may be given for the same.
Rule is made absolute in the writ petition filed by
Drawing Teacher Amir Singh and the order terminating his
service dated February 28, 1913 is quashed and set aside as
also the orders of the Deputy Commissioner and Commissioner
and he is reinstated in service with continuity in service
with back-wages.
The respondent-School management shall pay the costs
to both the employees separately quantified in each case at
Rs 1, 500.
H.S.K. Petition and appeal allowed.
488