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PETITIONER: FRANCIS JOHN

       Vs.

RESPONDENT: DIRECTOR OF EDUCATION AND ORS.

DATE OF JUDGMENT23/11/1989

BENCH: VENKATARAMIAH, E.S. (CJ) BENCH: VENKATARAMIAH, E.S. (CJ) SINGH, K.N. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR  423            1989 SCR  Supl. (2) 252  1989 SCC  Supl.  (2) 598 JT 1989 (4)   402  1989 SCALE  (2)1142

ACT:     Goa, Damam and Diu Grant-in-aid Code: Rule 74.2-Termina- tion  of services of permanent  teacher--Dispute  Settlement Committee --Jurisdiction to enquire.     Constitution  of  India:  Article  226--Private   School receiving  government aid under Grant-in-aid  Code--Termina- tion of services of a teacher--Orders of Dispute  Settlement Committee  and  Director  of  Education--Amenable  to   High Court’s Writ jurisdiction.

HEADNOTE:     Disciplinary proceedings were started against the appel- lant who was a headmaster in a private school in  accordance with the Rule 74.2 of the Grant-in-aid Code since the school was  a recipient of grant as per the code. The  Director  of Education  approved the findings of the  Dispute  Settlement Committee and permitted the termination of the appellant  by the  Principal of the School. The said order of  termination was  challenged  by the appellant before the High  Court  of Bombay,  Panaji Bench, in a Writ Petition. The petition  was dismissed by the High Court upholding the preliminary objec- tion  that the petition was not maintainable  under  Article 226  of the Constitution of India against the management  of the School which was a private body. Aggrieved by the  deci- sion  of the High Court the appellant fried this  appeal  by special leave.     According to the relevant rule of the Grant-in-aid  Code the management could not have terminated the services of the appellant without the communication received by it from  the Director  of Education who was a public functionary and  was discharging a governmental function as an authority  consti- tuted  for the said purpose by the government. Obviously  in such  circumstances it cannot be said that the  decision  is just  that of a private management governed by private  law. The High Court erred in not properly following the ratio  of the  decision of this Court in Tika Ram’s case the facts  of which were not substantially different from the facts of the present case. This Court while setting aside the judgment of the  High Court and remanding the case to the High Court  to hear the Writ Petition on merits,

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253     HELD:  Any  private school which receives aid  from  the government under the Grant-in-aid Code, which is promulgated not  merely for the benefit of the management but  also  for the benefit of the employees in the school for whose  salary and  allowances the government was contributing from  public funds  under  the Grant-in-aid Code cannot escape  from  the consequences flowing from the breach of the Code and partic- ularly where the Director of Education who is an  instrumen- tality of the State is participating in the decision  making process. [260F-G]     The High Court was wrong in upholding that the orders of the  Director  of Education and of  the  Dispute  Settlement Committee were not amenable to the jurisdiction of the  High Court under Article 226 of the Constitution of India. [260G]     Tika  Ram v. Mundikota Shikshan Prasarak Mandal &  Ors., [1985] 1 SCR 339, referred to.

JUDGMENT:     CIVIL APPEALLATE JURISDICTION: Civil Appeal No. 3586  of 1988.     From   the  Judgments  and  Orders  dated  18.8.1987   & 9.11.1987 of the Goa High Court in W.P. No. 92/1986 &  Misc. Civil Application No. 334 of 1987.     Dr.  R.S.  Kulkarni, S.K. Mehta, Aman Vachher  and  Atul Nanda for the Appellant. K.N. Bhat and Mukul Mudgal for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH,  CJ.  The appellant was  appointed  as  a Headmaster of a school which was being run by the  Calangute Don  Bosco Educational & Welfare Foundation in 1974  in  the State of Goa (which was at the relevant time a Union  Terri- tory). Disciplinary proceedings were started against him  in accordance with the Grant-in-aid Code which was in force  at that time, since the school was a recipient of the grant  as per  the  Code.  The findings .of,  the  Dispute  Settlement Committee were approved by the director of Education of  the Government  of  Goa  by his Order dated July  12,  1984  who permitted the termination of the services of the  appellant: The  Principal  of  the Don Bosco  High  School,  therefore, terminated the services of the appellant 254 as Headmaster by his letter dated July 26, 1984 and the said order of termination was challenged by the appellant  before the High Court of Bombay, Panaji Bench, Goa in Writ Petition No. 92 of 1986. The petition was dismissed by the High Court on  the ground that the petition was not maintainable  under Article 226 of the Constitution of India against the Manage- ment  of the school, which was a private body. Aggrieved  by the decision of the High Court the appellant has filed  this appeal by special leave.     The  school in question was a private school and  was  a recipient  of the grant-in-aid under the  Grant-in-aid  Code issued by the Government in exercise of its executive power. The  relevant rule of the Grantin-aid Code, i.e., rule  74.2 on which the Management relied read thus:               "74.2(1). The services of an employee appoint-               ed to a permanent post shall not be terminated               except  in accordance with the procedure  pre-               scribed hereinunder. No order of  termination,               dismissal  or imposition of any other  penalty               shall  be passed against such employee  unless               he has been informed in writing of the grounds

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             on  which action is proposed to be  taken  and               has  been  given an  adequate  opportunity  to               defend  himself.  The  grounds  on  which  the               action  is proposed to be taken shall  be  re-               duced  to a form of a specific  charge/charges               which  shall be communicated to  the  employee               together with statement of allegation on which               each charge is based.                         (iii)  Management  shall  refer  the               case to the Director of Education in  writing,               stating the date of the effect of the intended               termination  with a copy endorsed to  the  em-               ployee concerned for his acknowledgement.  The               letter endorsed to the employee shall  enclose               a copy of allegation with complete  substanti-               ating evidence and other documents relevant to               the case. The letter be issued to the employee               at least one calendar month prior to the  date               of  effect of intended termination. The  issue               of  the  letter  shall  be  subject  to   rule               74.1(3).                         (v)  The  Director shall  refer  the               case  to  the  Disputes  Settlement  Committee               within seven days of the receipt of the letter               in the Directorate of Education. The  Disputes               Settlement  Committee shall give a hearing  to               both the               255               parties  and also consider the written  state-               ments, if any, submitted by either or both the               parties, and give its decision within  fifteen               days  from the date of reference. In case  any               party fails to present the case, the  Disputes               Settlement  Committee shall take an  ex  parte               decision.                         (vi)  The  decision of  the  Dispute               settlement  Commit-’  tee shall be  final  and               binding  on both the parties provided that  it               shall  be  open to either party to  prefer  an               appeal  to the Administrative Tribunal  estab-               lished  under the Goa, Daman and Diu  Adminis-               trative Tribunal Act, 1965 within thirty  days               of the date of receipt of the decision of  the               Disputes Settlement Committee."     Rule  74.2  provides  that the service  of  an  employee appointed to a permanent post shall not be terminated except in  accordance with the procedure prescribed thereunder  and no  order  of termination, dismissal or  imposition  of  any other  penalty shall be passed against such employee  unless he  has  been informed in writing of the  grounds  on  which action  is proposed to be taken and has been given  an  ade- quate  opportunity to defend himself. The grounds  on  which the  action  is proposed to be taken shall be reduced  to  a form of a specific charge/charges which shall be communicat- ed to the employee together with statement of allegation  on which each charge is based. Then the Management is  required to  refer the case to the Director of Education in  writing, stating  the date of the effect of the intended  termination with  a  copy  endorsed to the employee  concerned  for  his acknowledgement.  The letter endorsed to the employee  shall enclose  a copy of allegation with  complete  substantiating evidence  and  other  documents relevant to  the  case.  The letter shall be issued to the employee at least one calendar month  prior to the date of effect of intended  termination. The  issue of the letter shall be subject to  rule  74.1(3).

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The  Director  is  then required to refer the  case  to  the Disputes  Settlement  Committee  within seven  days  of  the receipt  of the letter in the Directorate of Education.  The Dispute  Settlement Committee shall give a heating  to  both the  parties  and also consider the written  statements,  if any,  submitted by either or both the parties, and give  its decision within fifteen days from the date of reference.  In case  any  party  fails to present the  case,  the  Disputes Settlement  Committee shall take an ex parte  decision.  The decision of the Dispute Settlement Committee shall be  final and binding on the parties. The Dispute Settlement Committee acquires the jurisdiction to hear the case only on a  refer- ence  made  to it by the Director of  Education.  The  order passed in this case by the 256 Director of Education on July 12, 1984 reads thus:               "No.  DE/Acad. I/BEZ.  Bo/40/DBHS/Term.  Serv.               HM/Vol. III/82               Government of Goa, Daman and Diu,  Directorate               of Education,               Panaji-Goa.               Dated: 12.7.1984.               Read:  1.  This  office  order  No.   DE/Acad-               I/BEZ-Bo/40/                              DBHS/PC15/Term.  Serv.  HM/Vol.               III/82 3610,               dt. 3.9.1982.                        2.  Letter No. 17 1-5-82-AE/1115  dt.               26.3.1983  from  the Convenor of  the  Dispute               Settlement  Committee and Asstt.  Director  of               Education.               ORDER                         Whereas a Dispute Settlement Commit-               tee  was constituted to enquire into the  pro-               posed case for Termination of Services of Shri               Francis John, the Headmaster of Don Bosco High               School,  Calangute,  Bardez, Goa,  vide  order               referred to above;                          And  whereas  the accused  Shri  F.               John participated in the deliberations of  the               Dispute  Settlement Committee along  with  his               nominee for some time and thereafter  remained               absent from the deliberation of the  Committee               inspite of all reasonable opportunities  given               to him by the Convenor;                          And whereas the said Committee,  in               majority, has decided that the termination  of               services of the said Shri F. John,  Headmaster               of Don Bosco High School, Calangute, is justi-               fiable.                          The  undersigned  is  inclined   to               agree with the findings of the Dispute Settle-               ment  Committee and it is hereby ordered  that               the  finding  of the majority  report  of  the               Committee is accepted and the Principal of the               School is permit-               257               ted to terminate the service of Shri F.  John,               as  per Rule 74 (amended) of the  Grant-in-aid               Code and the vacancy so caused be filled up as               per  Rules. The Principal is further  directed               to  revoke the order of  suspension  forthwith               under intimation to the undersigned.                                           Sd/-  L.  Khisngte               Director of Education."

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   It was on the basis of the approval given by the  Direc- tor  of.  Education, as stated above, the  services  of  the appellant were terminated.     From a reading of the relevant rule of the  Grant-in-aid Code  which is a part of the Public Law of the land  it  be- comes obvious that the reference of the dispute between  the Management  of the school and the appellant to  the  Dispute Settlement  Committee was made by the Director of  Education in  exercise of the powers confened on him by the  Grant-in- aid  Code, which is issued by the Government in exercise  of its  executive power, even though it may not have been  done under  a statute. The Director of Education who is a  public functionary  has given his approval to the decision  of  the Dispute  Settlement Committee before it was communicated  to the  School. While granting his aproval to the decision  the Director of Education is discharging a governmental function as  an  authority constituted for the said  purpose  by  the Government.  It is obvious that the Management, in the  cir- cumstances  could  not have terminated the services  of  the appellant without the communication received by it from  the Director  of Education. In such circumstances it  cannot  be said that the decision is that of a just private  management governed  by private law. It is the part of the  process  of the public law which affects public exchequer.     When the matter came up before the High Court a prelimi- nary  objection  was taken by the Management  regarding  the maintainability  of the Writ Petition under Article  226  of the Constitution.     The  appellant contended in the Writ Petition  that  the proceedings of the disciplinary Committee are in  contraven- tion  of the principle of natural justice and fair play  and the  approval given by the Director of Education was  unsus- tainable.  The  appellant relied upon the decision  of  this Court  in Tika Ram v. Mundikota Shikshan Prasarak  Mandal  & Ors., [1985] 1 SCR 339 and contended that he was not  asking for any relief against the private body but he was challeng- ing 258 the  order  of  the Director of Education  who  had  granted approval  to his removal on the basis of a report  submitted to  him  by the Dispute Settlement Committee and  hence  the Director of Education, who was a public authority and  whose orders had been questioned before the Court was amenable  to the jurisdiction of the High Court under Article 226 of  the Constitution. The High Court distinguished the above case by observing in Para 11 of its judgment thus:               "... Mr- Kakodkar had placed reliance on  Tika               Ram v. Mundikota Shiksha Prasarak Mandal,  AIR               1984  SC  1621 in support of  his  proposition               that  a writ petition would be maintanable  in               the  case of a Headmaster of a private  school               who  is dismissed by the management of a  pri-               vate school. In Tika Ram’s case, the petition-               er  was  not seeking any  relief  against  the               management on the basis of the clauses in  the               Schools Code. But the Court has observed:               ’In the instant case the appellant is  seeking               a  relief  not  against  a  private  body  but               against an officer of Government who is always               amenable to the jurisdiction of the Court.’               Obviously,  no decision of an Officer  of  the               Government is being challenged in the  present               case  and  hence, Tika Ram’s  case  is  easily               distinguishable."     With great respect to the High Court we should say  that

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we do not find any substantial difference at all between the facts of this case and the facts involved in the Tika  Ram’s case  (supra).  In Tika Ram’s case (supra)  the  facts  were these.     The  appellant in that case was also working as a  Head- master  in a private school. On account of  certain  earlier events  the  Management instituted  a  disciplinary  enquiry against the appellant and on July 7, 1975, the appellant was informed  by the Management that it had imposed on  him  the punishment  of  reversion to the post of  Assistant  Teacher which  according to the Management was the substantive  post held  by  him.  Aggrieved by that order  of  reversion,  the appellant  filed  an appeal before the  Deputy  Director  of Education, Nagpur Division, contending that the enquiry  had been  vitiated  on  account of violation  of  principles  of natural  justice and that he had never held the post  of  an Assistant  Teacher  to  which he had  been  reverted.  After hearing  both the parties, the Deputy Director of  Education passed an order 259 dated  October  3, 1975 setting aside the  decision  of  the Management  and  remanding the case to  the  Management  for fresh  decision  on  the ground that the  enquiry  had  been vitiated  on account of violation of principles  of  natural justice. Instead of filing an appeal against that order, the Management filed a review petition before the Deputy  Direc- tor  himself on October 17, 1975. That was rejected  by  the Deputy Director by his order dated November 11, 1975 on  the ground  that  no  such review could  be  filed  before  him. Against that order the Management filed an appeal before the Director of Education and that was dismissed on May 12, 1976 affirming the order of remand passed by the Deputy  Director of  Education to reconsider the case. The  Management  again filed a petition before the Director of Education to  recon- sider the case. This petition for review was allowed by  the Director  of  Education on November 26, 1976 and  the  order passed  by the Deputy Director on October 3, 1975  remanding the  case  to the Management for a fresh  decision  was  set aside. Aggrieved by the said order dated November 26,  1976, the appellant filed a writ petition before the High Court of Bombay  on  the principal ground that the  Director  had  no jurisdiction  to  review his earlier order May 12,  1976  by which  he had dismissed the appeal against the order of  the Deputy Director. The High Court dismissed that writ petition holding  that the appellant could not file a  writ  petition under  Article  226 of the Constitution  against  the  order passed  by  the  Director on the ground  that  the  teachers working  in  private schools could not enforce  their  right under  clause  77 and connected clauses of the  School  Code which  were not statutory rules. It was against  that  order the  appellant in that case had filed the appeal before  the SUpreme Court under Article 136 of the Constitution.  Allow- ing the said appeal this Court observed thus:               "In  the writ petition the appellant  was  not               seeking  any relief directly against the  man-               agement  on  the basis of the clauses  in  the               School  Code. If the management does not  obey               the order passed by the Deputy Director or the               Director,  it is open to the State  Government               to  take such action under the School Code  as               may  be  permissible. In such  an  event,  the               recognition  accorded  to the  school  may  be               withdrawn or the grant-in-aid may be  stopped.               In the instant case the appellant is seking  a               relief not against a private body but  against

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             an officer of Government who is always  amena-               ble  to  the jurisdiction of  the  Court.  The               appellant  has merely sought the  quashing  of               the  impugned  order dated November  26,  1976               passed by the Director on review setting aside               the order of the Deputy Director. What .               260               consequences  follow from the quashing of  the               above  said order in so far as the  management               is  concerned is an entirely different  issue.               In the circumstances, the High Court was wrong               in  holding that a petition under Article  226               of  the Constitution did not lie  against  the               impugned order passed by the director. We  are               aware of some of the decisions in which it  is               observed  that  no teacher  could  enforce.  a               fight  under  the School Code  which  is  non-               statutory m character against the  management.               But since this petition is principally direct-               ed against the order passed in a quasijudicial               proceeding  by the Director, though in a  case               arising  under the School Code and  since  the               Director had assumed a jurisdiction to  review               his  own orders not conferred on him, we  hold               that  the appellant was entitled  to  maintain               the petition under Article 226 of the  Consti-               tution."     In  the  instant  case also we are  concerned  with  the Grant-in-aid Code. The decision which was challenged  before the  High Court was the order of the Director  of  Education dated  July 12, 1984 which is fully extracted above.  It  is further seen that a copy of the above order has been  commu- nicated  by  the  Director of Education not  merely  to  the Management  of  the School but also to  the  Zonal  Officer, North Education Zone, Mapsa and the Grant-in-aid Section  of the Directorate of Education. If the impugned orders of  the director of Education and of the Dispute Settlement  Commit- tee to which he had referred the case are set aside then the order  of termination of service of the appellant, which  is pursuant to them would also have to fall. Any private school which receives aid from the Government under the Grant-inaid Code, which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in  the School  for whose salary and allowances the  Government  was contributing  from the public funds under  the  Grant-in-aid Code  cannot escape from the consequences flowing  from  the breach  of the Code and particularly where the  Director  of Education who is an instrumentality of the State is partici- pating  in the decision making process. Under these  circum- stances  we find that the High Court was wrong in  upholding that  the  orders of the Director of Education  and  of  the Dispute Settlement Committee were not amenable to the juris- diction of the High Court under Article 226 of the Constitu- tion  since the matter squarely falls within the  principles laid down by this Court in Tika Ram’s case (supra). 261     We, therefore, set aside the judgment of the High  Court holding  that the writ petition was not maintainable  before it. Since the High Court has not gone into the merits of the case  we remand the case to the High Court and direct it  to hear the writ petition on merits in accordance with law. The appeal  is accordingly allowed, but there shall be no  order as to costs. R.N.J.                                          Appeal   al-

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lowed. 262