http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SAYEEDUR REHMAN

       Vs.

RESPONDENT: THE STATE OF BIHAR & OTHERS

DATE OF JUDGMENT28/11/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  239            1973 SCR  (2)1043  1973 SCC  (3) 333

ACT: Principle of Natural Justice-Appellant dismissed on a charge of mis--appropriation-Board of Secondary Education  directed reinstatement  with  full salary-Later  on  revision,  Board ordered subsistence salary without giving of opportunity  to the  appellant of being heard-Whether principle  of  natural justice violated.

HEADNOTE: The appellant, a teacher in a school in Bihar, was dismissed from  service by the Managing Committee of the school  on  a charge  of  misappropriation of school fund.  On  appeal  by him, the President of the Board of Secondary Education,  set aside the order of dismissal and directed his reinstatement. The   Managing  Committee  reinstated  the  appellant,   but requested the President of the Board of Secondary  Education to  review  the whole matter especially with regard  to  the payment for the period of suspension.  The President,  after reviewing  the  matter,  modified his  earlier  order.   The appellant,  however,  was not given any hearing  before  the review order. The appellant thereupon filed an application under Art.  226 and  227 of the Constitution in the High Court where it  was contended  that  the  President of the  Board  of  Secondary Education, could not modify the earlier order without giving the petitioner an adequate opportunity of being heard.   The High Court following an earlier Bench decision, in  Liladhar Jha  v. Board of Secondary Education, Patna,  (1963)  B.L.R. 880,  held  the  order  of the President  of  the  Board  of Secondary  Education directing payment of full salary  etc., to be invalid.  Having so held, the High Court proceeded  to observe  that  the petitioner would gain nothing if  it  was further held that the subsequent review by the President was equally invalid on the ground that no opportunity was  given to the appellant. On appeal to this Court, HELD  : (i) On the facts and circumstances of this case,  it was  incumbent on the High Court to declare as  invalid  the review  order  of the President of the  Board  of  Secondary Education without affording to the appellant any opportunity of  being heard and also his order dated January  18,  1964.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

The impugned order of the High Court as also the order  made by  the President of the Board of Secondary Education  dated February  25,  1961, along with his subsequent  order  dated January 18, 1964, should be set aside. [ 1047 F] (ii) -After  setting  aside these orders,  the  parties  are relegated to the stage immediately prior to the order  dated February 25, 1961, with the result that the President of the Board  of  Secondary  Education, would now  dispose  of,  in accordance with law, the request of the Managing  Committee, to  reconsider  the order of April 22, 1960.  If  the  Board deems  it  proper  to  reconsider  that  order,  then,   the appellant  must  be  afforded a  reasonable  opportunity  of hearing and of adequately representing big case.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1222  of 1967. 15-L521Sup.CI/73 1044 Appeal  by special leave from the judgment and  order  dated September 3, 1965 of the Patna High Court in M. J. Case  No. 1257 of 1964. U.   P. Singh for the appellant. S.   C.  Agarwal,  V. J. Francis and P. D.  Sharma  for  the respondents No. 1-6, 8 & 9. The Judgment of the Court was delivered by DUA,  J.  This appeal is by special leave  and  is  directed against  the order of the High Court of Judicature at  Patna dated  September  3, 1965 dismissing  the  appellant’s  writ petition. The  appellant, a teacher of Araria Higher Secondary  School was dismissed from service by the Managing Committee of  the said  school  at a meeting held on February 27,  1958  on  a charge  of misappropriation of school money.  On  appeal  by him  the President of the Board of Secondary Education,  set aside  the order of dismissal by order dated April 22,  1960 and  directed  his reinstatement in service.   By  the  same order  of reinstatement a further direction was  given  that the appellant should be paid full salary, &men allowance and increment  from the date of his suspension till the date  of reinstatement after adjusting the amount already paid.  When this  order  was received by the Managing Committee  it  was obeyed so far as the reinstatement of the appellant is  con- cerned but the Managing Committee requested the President of the Board of Secondary Education "to review the whole matter especially  with  regard to the payments for the  period  of suspension".  The President by his order dated February  25, 1961,  reviewed  the matter and modified his  earlier  order made  on  appeal by providing that the  appellant  would  be entitled only to subsistence allowance for the period of his suspension.   That decision was conveyed by  the  Secretary, Board  of  Secondary  Education to  the  District  Education Officer  in  letter no. 2799-100-1 dated February  25,  1961 which reads :-               "With reference to your letter No. 957,  dated               29th  July, 1960, I have, under orders of  the               President to say that you direct the  Managing               Committee of the Araria High School, to  treat               the period during which Shri  Sayeed-ur-Rahman               remained off duty, as period of suspension and               pay him subsistence allowance according to the               rules." It  is  not  disputed before us that  this  order  was  made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

without affording the appellant any hearing.  After the said order   the   appellant  is  said  to  have   made   several representations    to   the   President   the   Board    but reconsideration of the order dated February 25 1045 1961, was declined and it was reiterated that the  appellant was entitled only to subsistence allowance during the period of  suspension.  That order was conveyed by  the  Secretary, Board  of  Secondary  Education  to  the  appellant  as  per communication no. 233/4A-97-58 dated January 18, 1964  which reads :               "With  reference to your representation  dated               27th December, 1963, 1 have to state that  the               President Board of Secondary Education,  Bihar               had  been pleased to order that Shri  Sayeedur               Rehman  should be paid  subsistence  allowance               only during his suspension period.  The  order               cannot be revised now." It  is  not disputed that this order was also  made  without affording any hearing to the appellant. The appellant thereupon filed an application under Arts. 226 and 227 of the Constitution in the High Court of  Judicature at  Patna in which it was contended on his behalf  that  the President  of  the Board of Secondary  Education  could  not modify the earlier order dated April 22, 1960 without giving to  the petitioner an adequate opportunity of  being  heard. The High Court considered this argument to be without merit, because  according to an earlier Bench decision of the  High Court  in  Liladhar  Jha v. Board  of  Secondary  Education, Patna(1), the President of the Board of Secondary Education, as  appellate  authority,  was  empowered  only  to   direct reinstatement of a dismissed teacher and had no jurisdiction to make any order with regard to the payment of any  arrears due  to  him.  Though the correctness of this  decision  was questioned before the High Court by the counsel representing the  appellant  in  that Court the Bench  hearing  the  writ petition did not consider it to be a fit case for  reference to  a larger bench to re-examine the view taken in the  case of  Liladhar Jha (supra).  On this view the High Court  held the  order  of  the  President of  the  Board  of  Secondary Education  dated  April 22, 1960 directing payment  of  full salary,  dearness allowance and increment to the  petitioner from   the  date  of  his  suspension  till  the   date   of reinstatement to be invalid.  Having so hold the High  Court proceeded to observe that the petitioner would gain  nothing if  it  was further held that the subsequent  order  of  the President dated January 18, 1964 modifying the earlier order of  April  22, 1960 was held invalid on the ground  that  no opportunity  of  hearing was given to the  appellant.   This question, in the opinion of the High Court, had become some- what academic because the appellant could not get any relief in that writ petition. Before us on behalf of the appellant it was strenuously con- tended that the appellant had approached the High Court with his. (1)  [1963] B.L.J.R. 880. 1046 grievance  only against the order made by the  President  of the  Board reviewing his earlier order dated April 22,  1960 without hearing the appellant and that being the only relief claimed   by   him,  if  the  said  order  of   review   was unconstitutional   having  been  made  to  the   appellant’s prejudice  without affording him an adequate opportunity  of being  heard then the High Court could not decline  him  the relief  of  declaring it to be invalid, on the  sole  ground

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

that  the  earlier order (which was not  challenged  by  the petitioner in those proceedings and had not been got quashed by  the Managing Committee in any  appropriate  proceedings) being ’contrary to law on the basis of Liladhar Jha (supra), it  would  be somewhat academic to declare  as  invalid  the review  order impugned by the appellant before  that  Court. According to the appellant so long as the order of the Board of Secondary Education reviewing the earlier order of  April 22,  1960  was  not expressly declared to  be  invalid,  the Managing Committee or Araria Higher Secondary School was not likely  to pay to him the arrears of salary due to him as  a result  of  the order of his reinstatement in  service.   In this  connection  the appellant’s learned counsel  drew  our attention  to  r.  18 of the  rules  governing  the  service conditions of teachers in non-Govermnent High Schools framed as per Government resolution dated September 7, 1955.   This rule reads :               "18.  In case the Managing Committee  violates               these  rules or fails to carry out the  orders               and  instructions  of the Board  of  Secondary               Education, or give effect to the decisions  of               the  Board, the Board shall have the right  to               withdraw recognition of the school or  suspend               the grant or take such other action or actions               as it may think fit." According to the submission, the Managing Committee is bound to carry out the orders and instructions of the Board and if the orders dated February 25, 1961 and January 18, 1964 are not  quashed  the Managing Committee may feel  reluctant  to ignore  them.   Our attention was also drawn  to  r,  12(2). Rule 12 provides               "12.   The Managing Committee may  impose  the               following  punishment  on any  member  of  the               staff  including  those  on  probation   after               having finally considered his explanation  and               the charges levelled against him in writing               (i)   Warning, (ii) Censure, (iii) Withholding               of  normal  increments,  (iv)  Discharge,  (V)               Dismissal.               Note.-(1)   Proceedings  are  to  be   started               against teachers concerned by the Secretary on               the  report  of  the  Headmaster  or  by   the               President, on the report of the Secretary,  or               by the President himself, or by the Manag-               1047               ing  Committee  as a  whole.   Ordinarily  the               Managing Committee as a whole has the power to               suspend  the teacher but in cases of  urgency,               the   Secretary  in  consultation   with   the               President may suspend a teacher but this  bust               be approved by the Managing Committee within a               fortnight.   Charges  must be  handed  to  the               teacher  in  writing within two  days  of  the               suspension order.  The teacher concerned  must               submit  his explanation within seven  days  of               the receipt of the charges.  A meeting of  the               Managing Committee shall be convened within  a               fortnight  from the date of suspension  order,               for which a clear seven days’ notice shall  be               given  to every member.  Such meetings  should               have a quorum of two-third of the total number               of  members (that is, eight members).  If  the               teacher  member or the Headmaster  himself  is               involved,  he  shall not attend  the  meeting.               Orders  of  discharge or  dismissal  shall  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             valid  only  if they have been passed  by  the               Managing  Committee.   In  no  case,  however,               shall a teacher be kept, under suspension  for               a period exceeding 30 days or in case he,  has               filed  an appeal up to two months or till  the               disposal of his appeal.               (2)   During  the  period  of  suspension  the               teacher  shall  be allowed to  draw  half  his               salary   plus  dearness  allowance  and   upon               exoneration,  the  balance shall  be  paid  to               him." On  behalf of the respondents Shri S. C.  Agarwal  appearing for the State of Bihar and the Board of Secondary Education, did not challenge the view taken by the Patna High Court  in the  case of Liladhar Jha (supra).  He tried to justify  the impugned order only on the reasons stated by the High Court. In  our opinion on the facts and circumstances of this  case it  was incumbent on the High Court to declare  as  invalid, the  order  of  the  President of  the  Board  of  Secondary Education  dated  February 25, 1961  reviewing  the  earlier order  dated  April  22,  1960,  without  affording  to  the appellant  any  opportunity of being heard,  ,and  also  his order dated January 18, 1964.  The appellant had  approached the  High Court with a grievance against that order and  the order  dated  April 22, 1960, which was in his  favour,  was advisedly  not  challenged  by  him.   To  decline  to   the appellant  the relief claimed by him to which, according  to the  High  Court’s  own  reasoning,  he  was  without  doubt entitled, on the mere ground that it would be academic to do so,  seems  to  us to be highly unfair  and  unjust  to  the appellant,  because. as represented before us  the  Managing Committee might well take a different view and feel that the orders passed by the President of the Board of Secondary 1048 Education, reviewing the earlier order dated April 22,  1960 having  not been specifically quashed and set aside  by  the High  Court,  are  still  operative,  demanding  compliance. Under r. 18 and S. 5 of the Bihar High Schools (Control  and Regulation of Administration) Act (Bihar Act XIII), 1960 the Managing Committee is expected to obey the directions of the Board.   It may also be pointed out that under S. 6  of  the above  Act orders of the Board are final.  It is not  stated before  us that the order dated April 22, 1960 was ever  got set aside by the Managing Committee or even assailed by  it in  appropriate  proceedings, but we express  no  considered opinion  on  that question, the same having  not  been  can- vassed before us. In  our  view, the only just and fair order to  be  made  in these  proceedings  is to allow this appeal, set  aside  the impugned  order of the the Court as also the order  made  by the  President  of the Board of  Secondary  Eduaction  dated February  25, 1961 (reviewing his earlier order dated  April 22,  1960) along with the subsequent order of the  President of   the  Board  dated  January  18,  1964   rejecting   the appellant’s representation and reiterating the order that he should  be paid subsistence allowance only during  his  sus- pension  period.   After  setting  aside  these  orders  the position  is  that the parties are relegated  to  the  stage immediately prior  to the order dated February  25,  1961, with the result that the President of the Board of Secondary Education  would  now have to deal with and  dispose  of  in accordance  with law, the request of the Managing  Committee of  Arari  Higher Secondary School  for  re-considering  the order  of April 22, 1960.  If the Board deems it  proper  to reconsider that order then the appellant must be afforded  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

reasonable   opportunity  of  hearing  and   of   adequately representing his case.  Rule 16 provides for appeal from the orders made under r. 15, and r. 17 provides for hearing  the appellant and the Secretary of the Managing Committee.  Rule 17 reads               "17.  The appeal of the person concerned shall               be  heard  by the President of  the  Board  of               Secondary Education or any member of the Board               of  Secondary Education duly nominated by  the               President or any officer ordinarily not  below               the   rank  of  Inspector  of   Schools.   The               appellant   the  Secretary  of  the   Managing               Committee  may  be  heard  in  person  by  the               President, Board of Secondary Education or his               nominee  who  may even authorise  them  to  be               represented by a representative." This   rule  embodies  the  principle  of  natural   justice requiring the appellate authority to hear the parties.   The order dated April 22, 1960 must have, therefore, beer.  made after hearing both sides as provided by this rule.  There is no  express provision for review in the rules to  which  our attention  was drawn.  But we are not asked and,  therefore, not required to express any considered opinion on 1049 the  competence  of  review and we express  none.   We  are, however, clear that if the order dated April 22, 1960 is  to be reconsidered then the appellant must be afforded adequate opportunity  of  hearing  and  presenting  his  case.   This unwritten right of hearing is fundamental to a just decision by  any  authority  which  decides  a  controversial   issue affecting  the rights of the rival contestants.  This  right has its roots in the notion of fair procedure.  It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before  coming to  its decision, for nothing is more likely to  conduce  to just and right decision than the practice of giving  hearing to  the  affected parties.  The President of  the  Board  of Secondary   Education  would  be  deciding   a   controversy affecting  the rights of the parties before him if and  when he  chooses  to reconsider the order dated April  22,  1960, whatever  be the source of his power to do so-a  point  left open by us.  He is required to decide in the spirit and with a sense of responsibility of a tribunal with a duty to  meet out  even-handed  justice.   The  appellant  would  thus  be entitled to a fair chance of presenting his version of facts and  his submissions on law as his rights would be  directly affected  by  such  proceeding.   The  omission  of  express requirement of fair hearing in the rules or other source  of power  claimed for reconsidering the order dated  April  22, 1960 is supplied by the rule of justice which is  considered as  an  integral  part of our judicial  process  which  also governs    quasijudicial    authorities    when     deciding controversial points affecting fights of parties. We   also  express  no  opinion  on  the  question  of   the correctness or otherwise of the view taken by the Patna High Court in the case of Liladhar Jha (supra) nor do we  express any opinion about the the and effect of r. 12(2) referred to above  or of any other rule or rules which may be  attracted to  the appellant’s case.  Indeed, this order is not  to  be construed  as  containing any opinion on the merits  of  the controversy   except  that  the  aforesaid  orders  of   the President  made  in 1961 and 1964 have  been  quashed.   The appellant  is  entitled  to his costs  from  the  contesting respondents.  On facts of C.M.P. No. 4775 of 1968 no  orders are called for.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

S.C.                        Appeal allowed. 1050