IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5508 OF 2003

Ms. G. Vallikumari … Appellants

Versus

Andhra Education Society and others … Respondents

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 restricted to unaided minority institutions, that Section 8(2) of the  

Act is not applicable to minority institutions and set aside the direction given  

by Delhi School Tribunal (for short, `the Tribunal’) for reinstatement of the  

appellant with all consequential benefits.

2. Respondent  No.1  is  a  registered  society  formed  with  the  primary  

object  of  imparting  education  to  the  children  belonging  to  Andhra  

community living in Delhi.  Respondent No.2 is a private linguistic minority  

school established 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 attending the training programme and also for preparing for the  

examination.  She reported for duty after three days of the expiry of leave  

period, but the management of respondent No.2 refused to accept her joining  

and initiated an inquiry against her on the charges of neglecting duties as  

UDC,  availing  leave  without  prior  permission,  absence  from  duty,  

misplacing  the  office  records,  failure  to  submit  important  office  

records/registers  to the  superiors  and flouting the directions  given by the  

management 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 accepted the same and sent letter dated 24.1.1996 to the Director  

seeking his approval in terms of Rule 120(2) of the Delhi School Education  

Rules,  1973 (for  short,  `the  Rules’).   The  latter  declined  to  approve  the  

proposal.   This  was  conveyed  to  the  management  vide  letter  dated  

4.11.1996.  Thereupon, the Managing Committee informed the Directorate  

of  Education  that  its  request  for  approval  of  the  decision  to  remove the  

appellant may be treated as withdrawn.  As a follow up, the Chairman of the  

Managing 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.  

Theclamma  v.  Union  of  India (1987)  2  SCC  516,  and  held  that  the

management  of  the  school  could  not  have  removed  the  appellant  from  

service without obtaining permission of the Director.

4. Respondent Nos. 1 and 2 challenged the order of the Tribunal in W. P.  

No.5088/2001 and made the following prayers:

“(a) Declare Section 8(2) of the Delhi School Education Act,  1973  being  not  applicable  to  the  aided  religious/linguistic  minority  institutions,  established  under  Article  30(1)  of  the  Constitution 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 of  Section  8(2)  of  the  Delhi  School  Education  Act,  1973,  is  required or contemplated and as such quash/set aside the order  dated 24.7.2001 passed by Respondent No.1 in the appeal filed  on  behalf  of  Respondent  No.3  and  uphold  the  decision  of  petitioners  thereby terminating the services of the respondent  No.3.”

5. The  Division  Bench  of  the  High  Court  briefly  noticed  the  factual  

matrix of the case and the provisions of the Act, referred to the judgments of  

this Court in  State of Kerala v. Very 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), Anjuman-

e-Mishbul Muslemin v. State of Bihar 1988 PLJR 1107,  Association of  

Teachers in Anglo-Indian School v. The Association Aids Anglo-Indian  

School in India and others AIR 1995 Calcutta 194,  All Bihar Christian  

Schools Association and another v. State of Bihar and others 1988 (1)  

SCC 206,  Bihar State Madarasa Education Board, Patna v.  Madarsa  

Hanfia Arabic College, Jamalia and others 1990 (1) SCC 428, Manohar  

Harries Walters v. Basel Mission Higher Education Center, Dharwad  

and  others  1992  Supp.  (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  Act,  or  a  provision is  made to  over-see  that  the

governing body complies with the principles of natural justice.

The Division Bench then considered the questions whether  Section  

8(2) of the Act read with Rule 120(2) of the Rules confers unguided powers  

upon the Director to refuse to approve the action proposed to be taken by the  

management  of  the  recognized  private  educational  institutions  against  its  

employee and whether the direction given by the Tribunal for reinstatement  

of the appellant was 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.   

In the instant case,  the Tribunal has not found fault with the  management  in the matter  of holding of domestic enquiry or  disciplinary proceedings against the respondent.  It was clearly  held that not only the principles  of natural  justice have been  complied with but also the provisions of Section 8 and Rule 120  have been complied with.  No reason has been assigned as to  why the approval was refused.  It clearly goes to show that the  Director of Education did not follow any principle which could  tantamount  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 and set aside the order passed by the Tribunal.

6. Shri  P.P.  Rao,  learned  senior  counsel  appearing  for  the  appellant  

argued  that  negative  declaration  made  by  the  High  Court  on  the  

constitutionality of Section 12 was totally uncalled for because this Court  

has  already  held  in  Frank  Anthony  Public  School  Employees’  

Association’s  case that  Section  12,  which  excludes  the  applicability  of  

Chapter IV of the Act to unaided minority institutions except Section 8(2), is  

violative of Article 14 of the Constitution.  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 of the High Court to have  

pronounced upon the vires of Section 12 of the Act.  Learned senior counsel  

extensively referred to the provisions of the Act and the Rules as also the  

judgment  of  the  larger  Bench  in  T.M.A.  Pai  Foundation  v.  State  of

Karnataka (2002)  8  SCC 481 and submitted  that  when the ratio  of  the  

judgment in Frank Anthony Public School Employees’ Association’s case  

has been approved by the larger  Bench, the Division Bench of the High  

Court  was  not  justified  in  nullifying  Section  12  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  legality  of  the  action  taken  by  the  

management  of  respondent  Nos.1  and  2.   Learned  senior  counsel  also  

invoked  the  doctrine  of  proportionality  and  submitted  that  the  extreme  

penalty  of  removal  from  service  imposed  upon  the  appellant  may  be  

substituted with a lesser penalty.  In support of this argument, Shri P.P. Rao  

relied upon the judgments of this Court in Ashok Kumar v. Union of India  

1988 (2) L.L.J. 344,  Union of India v. M.B. Patnaik  1981 (2) SCC 159,  

Dev Singh v. Punjab Tourism Corporation Limited 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 appearing for respondent Nos.1  

and 2 supported the impugned order and argued that in view of the judgment  

in Frank Anthony Public School Employees’ Association’s case, Section  

8(2) cannot be treated applicable to aided minority institutions and Section  

8(3) cannot be read as providing an effective remedy to the management of  

the school against an order passed by the Director.   He submitted that if  

Section  8(2)  is  not  applicable  to  unaided  minority  institutions  then  its  

applicability  to  aided  minority  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  and  conditions  of  service  of  employees  of  recognised private schools.– (1) The Administrator may make  rules  regulating  the  minimum  qualifications  for  recruitment,  and  the  conditions  of  service,  of  employees  of  recognised  private schools:

Provided that neither the salary nor the rights in respect of leave  of absence, age of retirement and pension of an employee in the  employment of an existing school at the commencement of this  Act shall be varied to the disadvantage of such employee:

Provided further 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  in  rank  may,  within  three  months from the date of communication to him of the order of  such  dismissal,  removal  or  reduction  in  rank,  appeal  against  such order to the Tribunal constituted under section 11.

(4) Where the managing committee of a recognised private  school intends to suspend any of its employees, such intention  shall be communicated to the Director and no such suspension  shall be made except with the prior approval of the Director:

Provided  that  the  managing  committee  may  suspend  an  employee 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  period.

(5) Where  the  intention  to  suspend,  or  the  immediate  suspension of an employee is communicated to the Director, he  may, if he is satisfied that there are adequate and reasonable  grounds  for  such  suspension,  accord  his  approval  to  such  suspension.

12.  Chapter  not  to  apply  to  unaided  minority  schools.–  Nothing  contained  in  this  Chapter  shall  apply  to  an unaided  minority school.

The Delhi School Education Rules, 1973

120. Procedure for imposing major penalty.– (1) No order  imposing  on  an  employee  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 later than  two weeks, a written statement of his defense and also to state  whether he desires to be heard in person;

(b) on receipt of the written statement of defence, or where  no  such  statement  is  received  within  the  specified  time,  the  disciplinary authority may itself make inquiry into such of the  charges as are not admitted or if considers it necessary so to do,  appoint an inquiry officer for the purpose;

(c) at the conclusion of the inquiry, the inquiry officer shall  prepare a report of the inquiry 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 in regard to him and calling upon him to submit within  the  specified  time,  not  exceeding  two  weeks,  such  representation  as  he may wish to make against  the proposed  action;

(iii) on  receipt  of  the  representation,  if  any,  made  by  the  employee,  the  disciplinary  authority  shall  determine  what  penalty,  if  any,  should  be  imposed  on  the  employee  and  communicate its tentative decision to impose the penalty to the  Director for his prior approval;

(iv) after  considering  the  representation  made  by  the  employee 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  made,  and  the  proceedings  of  the  disciplinary  authority.

(2) No order with regard to the imposition of a major penalty  shall  be  made  by  the  disciplinary  authority  except  after  the  receipt of the approval of the Director.

(3)  Any  employee  of  a  recognised  private  school  who  is  aggrieved  by  any  order  imposing  on  him  the  penalty  of  compulsory  retirement  or  any  major  penalty  may  prefer  an  appeal to the Tribunal.

10. In  Frank Anthony Public  School  Employees’  Association’s  case  

the petitioner challenged 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  recognised  private  schools.  Section 8(1) is innocuous and in fact Section 13 which applies  to  unaided  minority  schools  is  almost  on  the  same  lines  as  Section  8(1).  The  objection  of  the  respondents  is  really  to  Section 8(2), 8(3), 8(4) and 8(5) whose effect is (1) to require  the prior approval of the Director for the dismissal,  removal,  reduction in rank or other termination of service of an employee  of a recognised private school, (2) to give a right of appeal to a  Tribunal consisting of a single member 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 Act  which  provided  that  no  member  of  the  staff  of  an  affiliated  college shall be dismissed, removed or reduced in rank except  with  the  approval  of  the  Vice-Chancellor  was  violative  of

Article  30(1)  as  it  conferred  arbitrary  power  on  the  Vice- Chancellor  to  take  away  rights  of  the  minority  institutions.  Similarly, Section 52-A which contemplated reference of any  dispute  connected  with  conditions  of  service,  between  the  governing body and any member of the staff to an Arbitration  Tribunal consisting 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  Section  51-A  to  the  Vice- Chancellor to veto the disciplinary action and the power given  by Section 52-A to the Vice-Chancellor to nominate an Umpire  were  both  objectionable,  though  he  observed  that  there  was  nothing objectionable in selecting the method of arbitration for  settling major disputes. Mathew, J., also objected to the blanket  power given to the Vice-Chancellor by Section 51-A. He also  thought that Section 52-A was too wide and permitted needless  interference in day-to-day affairs of the institution 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  District  Judge  and  who  is  required  to  exercise his powers not arbitrarily but in the same manner as a  court of appeal under the Code of Civil Procedure. The right of  appeal  itself  is  confined to  a  limited  class  of  cases,  namely,  those  of  dismissal,  removal  or  reduction  in  rank  and  not  to  every dispute between an employee and the management. The  limited right of appeal, the character of the authority constituted  to hear the appeal and the manner in which the appellate power  is  required to be exercised 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 Provincial as it conferred the right on the  University.

Section 8(4) would be inapplicable to minority institutions if it  had  conferred  blanket  power  on  the  Director  to  grant  or  withhold  prior  approval  in  every  case  where  a  management  proposed to suspend an employee but we see that it is not so.  The management has the right to order immediate suspension of  an employee in case of gross misconduct but in order to prevent  an abuse of power by the management a safeguard is provided  to  the  employee  that  approval  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 Section 4 of the Act was  also  upheld.  How necessary  it  is  to  afford some measure  of  protection  to  employees,  without  interfering  with  the  management’s right to take disciplinary action, is illustrated by  the action taken by the management in this very case against  some of the teachers. These teachers took part along with others  in a “silent march”, first on April 9, 1986 and again on April  10,  1986,  despite  warning  by  the  principal.  The  march  was  during the break when there were no classes.  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 all  the provisions of Section 8 were applicable to the institution.

Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon  any  right  of  minorities  to  administer  their  educational  institutions.  Section  8(2),  however,  must,  in  view  of  the  authorities, be held to interfere with such right and, therefore,  inapplicable  to  minority  institutions.  Section  9  is  again  innocuous since Section 14 which applies to unaided minority  schools is  virtually on the same lines as Section 9. We have  already considered 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 minorities  under Article 30(1) is evident from the fact  that  Chapter  IV applies  to  aided  minority  institutions  and  it  cannot for a moment be suggested that surrender of the right  under  Article  30(1)  is  the  price  which  the  aided  minority  institutions have to pay to obtain aid from the Government.”

The  result  of  our  discussion  is  that  Section  12  of  the  Delhi  School Education Act which makes the provisions of Chapter  IV  inapplicable  to  unaided  minority  institutions  is  discriminatory  and  void  except  to  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.”

(emphasis added)

11. In  Y.  Theclamma’s  case,  the  issue  considered  by  this  Court  was  

whether the suspension of the appellant pending departmental inquiry was  

legally  correct  and  justified.   The  Court  referred  to  earlier  judgments  

including  the  Constitution  Bench  judgment  in  Lily  Kurian’s  case  and  

observed:

“It is not necessary to go through all the cases relied upon by  the Court in  Frank Anthony Public School case for the view  taken that the provisions of Chapter IV of the Act were of a  regulatory  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 such power was held to be, on consideration of all the  decisions starting from In re the Kerala Education Bill, 1957, a  permissible  restriction  being  regulatory  in  character.  Presumably the court in Frank Anthony Public School case felt  that  it  was not  necessary to refer  to  Lily  Kurian case as the  extent of the regulatory power of the State had been dealt with  by  the  court  in  In  re  the  Kerala  Education  Bill,  1957  and  reaffirmed in  the  subsequent  decisions,  including  that  in  All  Saints High School 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; regulation, so that   the right to administer may be better exercised for the benefit of   the institution, is permissible;”

(emphasis supplied) In that case, the question was whether the conferment of a right  of appeal to an external authority like the Vice-Chancellor of  the University under Ordinance 33(4) framed by the Syndicate  of the University of Kerala under Section 19(j) of the Kerala  University  Act,  1957  against  any  order  passed  by  the  management of a minority educational institution in respect 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 the  exercise of the power. It was further said that in the absence of  any guidelines it could not be held that the power entrusted to  the Vice-Chancellor under Ordinance 33(4) was merely a check  on maladministration.”

The Court rejected the argument that the decision in Frank Anthony Public  

School Employees’ Association’s case was in conflict with the Constitution  

Bench  judgment  in  Lily  Kurian’s  case.   Paragraphs  11  and  12,  which  

contain discussion on this issue, read thus:

“11. It would 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 the respondents that the decision in  Frank

Anthony  Public  School  case holding  that  sub-section  (4)  of  Section 8 of the Act was applicable to such institutions was in  conflict  with  the  decision  of  the  Constitution  Bench  in  Lily  Kurian  case and  therefore  required  reconsideration.  The  contention  of  learned  counsel  for  the  respondents  that  sub- section (4) of Section 8 of the Act requiring the prior approval  of the Director for the suspension of a teacher was a flagrant  encroachment  upon  the  right  of  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  their  choice  cannot  be  interfered  with,  restrictions  by  way  of  regulations  for  the  purpose  of  ensuring  educational  standards  and  maintaining  excellence thereof can validly be prescribed.

12. It  cannot  be doubted that  although disciplinary  control  over the teachers of a minority educational institution is with  the management, regulations can be made for ensuring proper  conditions of service for the teachers and also for ensuring a  fair procedure in the matter of disciplinary action. As the court  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  employee  with  gross  misconduct,  the  Director  is  bound  to  accord his approval to the suspension. It would be seen that the  endeavour  of  the  court  in  all  the  cases  has  been  to  strike  a  balance between the constitutional obligation to protect what is  secured to the minorities under Article 30(1) with (sic and) the  social  necessity  to  protect  the  members  of  the  staff  against  arbitrariness and victimisation.”

12. The prepositions which can be culled out from the above noted two  

judgments are:

(i) Section 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  to  

extent of Section 8(2).  In other words, Chapter IV of the Act  

except Section 8(2) is applicable to private recognized aided as  

well  as  unaided  minority  educational  institutions  and  the  

concerned authorities of the education department are bound to  

enforce the same against all such institutions.

13. We shall now deal with the question whether the Division Bench of  

the  High  Court  was  justified  in  setting  aside  the  direction  given  by  the  

Tribunal for reinstatement of the appellant with consequential 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 recorded by the inquiry officer  

but without even adverting to the contents of her representation and giving a  

semblance  of  indication  of  application  of  mind  in  the  context  of  Rule  

120(1)(iv) of the Rules, he directed her removal from service.  Therefore,  

there is  no escape from the conclusion that  the order of punishment was  

passed by the Chairman without complying with the mandate of the relevant  

statutory  rule  and  the  principles  of  natural  justice.   The  requirement  of  

recording reasons by every quasi 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 Chairman of the Managing Committee was nullified only on  

the ground of violation of Section 8(2) of the Act read with Rule 120(2) of  

the Rules inasmuch as permission of the Director was not obtained before  

removing the appellant from service.  The High Court set aside the order of

the Tribunal and indirectly restored the order passed by the Chairman of the  

Managing Committee because it  was of the view that Section 8(2) is not  

applicable to the minority institutions.  Neither the Tribunal nor the 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  

Tribunal with a direction to consider whether or not the penalty of removal  

from  service  imposed  upon  the  appellant  was  disproportionate  to  the  

misconduct found against her or the action taken by the management was  

wholly arbitrary or unjust but keeping in view the fact that the appellant was  

removed from service more than 13 years ago, we do not consider it proper  

to  adopt  that  course.  In  Superintendent  (Tech.I)  Central  Excise  I.D.D.  

Jabalpur and others v. Pratap Rai, 1978 (3) SCC 113, this Court 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 satisfied that  the  punishment  of  removal  from  service  imposed  on  the  appellant is not only highly excessive and disproportionate but  is also one which was not permissible to be imposed as per the  Service  Rules.  Ordinarily  we  would  have  set  aside  the  punishment  and  sent  the  matter  back  to  the  disciplinary  authority  for  passing  the  order  of  punishment  afresh  in  accordance with law and consistently with the principles laid  down in the judgment. However,  that would further lengthen  the life of litigation. 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. Looking at the nature of partial relief allowed hereby to  the  appellant,  it  is  now  not  necessary  to  pass  any  order  of  punishment  in  the  departmental  proceedings  in  lieu  of  the  punishment of removal from service which has been set aside.  The appellant must report on duty within a period of six weeks  from today to take benefit of this judgment.”

(emphasis supplied)

16. In  Dev Singh’s case, the two-Judge Bench held that punishment of  

dismissal on the ground of misplacement of file without any ulterior motive  

was too harsh and totally disproportionate to the misconduct alleged and the  

same would certainly shock the court’s judicial conscience.   

17. In view of the above noted judgments, we feel that ends of justice will  

be met by substituting the punishment of removal from service imposed on  

the  appellant  with  the  penalty  of  stoppage  of  three  increments  without  

cumulative effect  and directing  that  she  shall  be paid only 20% of back  

wages during the intervening period.   

18. In the result, the appeal is allowed.  The impugned order of the High  

Court is set aside.  The punishment of removal from service imposed on the  

appellant  is  substituted  with  the  penalty  of  stoppage of  three  increments  

without cumulative effect.  We also direct that instead of full back wages,  

the appellant shall be entitled to 20% of the salary and allowances for the  

period  between  the  dates  of  removal  from  service  and  this  order.  

Respondent Nos.1 and 2 are directed to reinstate the appellant without delay.  

The parties are left to bear their own costs.  

……………………. J. (G.S. Singhvi)

…………………….J. (Dr. B.S. Chauhan)

New Delhi, February 02, 2010.