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CASE NO.: Appeal (civil)  5337-5339 of 1999 Writ Petition (civil)  189 of 1999

PETITIONER: Manager, Nirmala Senior, Secondary School, Port Blair            

RESPONDENT: N.I. Khan & Ors.                                                 

DATE OF JUDGMENT: 21/11/2003

BENCH: SHIVARAJ V. PATIL & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       A teacher affects the eternity. He can never tell where his  influence stops; said Henry Adam. Any educational institution for its  growth and acceptability to a large measure depends upon the quality of  teachers.  

       Educational institutions are temples of learning.  The virtues of  human intelligence are mastered and harmonised by education.  Where  there is complete harmony between the teacher and the taught, where the  teacher imparts and the student receives, where there is complete  dedication of the teacher and the taught in learning, where there is  discipline between the teacher and the taught, where both are worshipers  of learning, no discord or challenge will arise.  An educational  institution runs smoothly when the teacher and the taught are engaged in  the common ideal of pursuit of knowledge.  It is, therefore, manifest  that the appointment of teachers is an important part in educational  institutions.  The qualifications and the character of the teachers are  really important.

       The case at hand has some unfortunate shades as it involves  alleged misconduct of a teacher and the purported desire of the  management of an educational institution to keep him out of the  institution to maintain the purity in educational sphere and serene  atmosphere of the institution. The whole unsavoury episode started on  21.12.1995 when respondent-N.I. Khan allegedly abused and attempted to  assault a lady Principal of the appellant’s educational institution in  front of the school. That led to lodging of a First Information Report.  Khan was placed under suspension on the same day. Subsistence allowance  was sanctioned on 29.12.1995. A few days thereafter in a second  incident, Khan allegedly picked up quarrel again and threatened to burn  the school down. Again complaint was lodged at the Police Station.  Thereafter began a legal battle involving not only the factual  controversies, but also assertion of rights guaranteed and protected  under Article 30(1) of the Constitution of India, 1950 (for short the  ’Constitution’) and the legal battle has continued unabated and reached  this Court in these appeals.  

       To continue the factual narration, on 9.2.1996 Director of  Education (in short the ’Director’) revoked the suspension order and  indicated that a separate enquiry will be conducted by the Directorate.  In response thereto, started the controversies regarding applicability  of Article 30(1) of the Constitution to the Institution. On 12.2.1996  the school wrote to the Director stating that he should not come to the

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picture as Article 30(1) of the Constitution authorized the Institution  to adopt its own procedure. Few days thereafter, the Institution again  wrote to the Director. Charges were issued. But on 6.3.1996 respondent- Khan claimed that he was governed by the Delhi Education Code, 1965 (in  short the ’Code’) which was made applicable to the Andaman and Nicobar  Islands with effect from 25.10.1968. On 24.6.1996, the Assistant  Secretary of Education called the school authorities to attend a meeting  where the school requested that suspension may be sanctioned by the  Director. Permission to sanction suspension was sought for by the  Institution on 2.7.1996. For about three months the Director did not  respond, but threatened punitive action if the school did not settle  issues positively. This was again the turning point of the controversy,  because the school felt that the governmental authorities were trying to  scuttle its efforts to enforce discipline and an undisciplined teacher  who was undesirable in the Institution had been imposed on it.  

       On 29.10.1996, a fresh letter of suspension was issued on the  ground that suspension was approved. Copy of the charges was served on  respondent-Khan on 29.10.1996. He denied the charges on 8.11.1996. On  25.11.1996 one Shri Ram Lal was appointed as the Inquiry Officer but he  declined to conduct the inquiry. On 26.12.1996 the Director issued  instructions to the Institution to permit Khan to report on duty and  reversed the school’s order of suspension as according to him the prior  approval had not been obtained to take action in the matter. On  22.1.1997 the School again referred to Article 30(1) of the Constitution  and requested the Director to re-consider the matter. On 27.2.1997 one  M. Alphonse was appointed as the Inquiry Officer. The date of inquiry  was fixed on 15.4.1997 but respondent-Khan did not attend. On 25.5.1997  according to the Institution, the Director approved payment of  subsistence allowance and, therefore, approved suspension. This stand  was however, being disputed by respondent-Khan and we shall deal with  this aspect later.   On 13.6.1997, the School wrote to respondent-Khan  that subsistence allowance will be paid for the period from December  1995 to 31st May, 1997 as per Director’s order and he should not delay  the inquiry. On 13.6.1997 Khan objected to the appointment of Shri  Alphonse as Inquiry Officer. On 9.7.1997 the School rejected Khan’s  objections about the appointment and sent to Khan the details of  disciplinary inquiry invoking Article 30(1) of the Constitution. On  19.9.1997 Khan was intimated that several opportunities had been granted  to him but he did not appear and was therefore guilty of the charges. On  the punishment aspect, intimation was given to respondent-Khan on  6.10.1997 and he was granted opportunity. Though Khan did not respond on  the issue of punishment his stand was that all the charges were to be  dropped. On 25.11.1997 the School requested the Director to nominate his  representative for the disciplinary proceedings. The request was re- iterated on 12.12.1997. The Director on 15.12.1997 wrote back stating  that since the suspension was without prior permission, necessarily no  one would be sent for the disciplinary proceedings. On 22.1.1998, the  School again requested the Director to send someone for the disciplinary  proceedings which was scheduled to be taken out on 2nd February 1998. As  no one appeared from the Director’s office, by majority, it was decided  that dismissal was a proper course to be adopted and order of dismissal  was communicated to Khan on 20.2.1998. A writ application was filed by  respondent-Khan on 25.2.1998 before the Calcutta High Court. The  Director’s stand was that since an order of termination was passed  without prior approval same was not legal. The school explained its  purported stand that prior approval was not required. By judgment dated  5.6.1998 learned Single Judge quashed its order of dismissal. An appeal  was filed before a Division Bench, initially it granted stay on the  direction for payment of back wages. On 13.7.1998, Khan reported for  duty. The Division Bench by judgment dated 19.8.1998 dismissed the  appeal and the review filed by the Institution met a similar fate of  dismissal by judgment dated 11.11.1998.  

       These appeals have been filed by the management questioning

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legality of the judgments passed by the High Court.  

       In support of the appeals Dr. Rajeev Dhavan, leaned senior counsel  submitted that the approach of the Government has been clearly  erroneous. The Director proceeded on the basis as if the Code applied to  the Institution, unmindful of the constitutional protection afforded by  Article 30(1) of the Constitution. The procedure adopted by the  Institution was fair, transparent and adequate opportunity was granted  to respondent-Khan to have his say in the matter. The allegations were  of a very serious nature, unbecoming of a teacher. The good name of the  Institution had suffered because of the obnoxious conduct of the  respondent and the gravity of the allegations can be seen from the fact  that he had threatened to burn the institution itself. Nothing can be  more shameful or objectionable for a teacher. Even if the approval for  sanction is conceded for the sake of arguments, that has no relevance  for the proceedings which were initiated for awarding punishment. Same  stood on a different footing. Even Clause 242 prescribes constitution of  punishing authority, where nominee of the Director is required to be a  member. Notwithstanding the stand relating to Article 30(1) of the  Constitution, the Institution requested the Director to send his nominee  which was not responded. Ultimately, the Director rendered the provision  odious by not sending the nominee and thereby frustrating the very  purpose of constituting the punishing authority. The continuance of  respondent-Khan in the Institution was undesirable and was having  adverse affects. Therefore, the procedure was adopted by the Institution  which was fair, transparent and in letters and spirit in line with the  desirability of providing fair opportunity and thereafter taking a  decision in the matter. Residually, it was submitted that when teacher  has lost confidence of the Institution by his conduct, it would be  unfair, unreasonable and inequitable to force his continuance in the  institution. It would be detrimental to the interest of the Institution  and the management.  

       In response, learned counsel for the respondent-Khan and the State  submitted that Article 30(1) has no application to the facts of the  case, more particularly, when the Institution is an aided one. On  trumped up allegations, proceedings were initiated, and bias of the  management is apparent from the actions taken. The Code is clearly  applicable and there is no scope for taking a departure from the  prescribed procedures. Judgments of the High Court do not suffer from  any infirmity to warrant interference.  

       Learned counsel for the parties referred to several decisions of  this Court, more particularly, Eleven-Judge Bench decision in T.M.A. Pai  Foundation and Ors. v. State of Karnataka and ors. (2002 (8) SCC 481),  The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of  Gujarat and Anr. (1975 (1) SCR 173) and Islamic Academy of Education and  Anr. v. State of Karnataka and Ors. (2003 (6) SCC 697). Though complex  issues of law relating to ever baffling question centering round Article  30(1) of the Constitution has been pressed into service by learned  counsel for the appellant, and non-applicability thereof emphasized by  learned counsel for the respondents, we do not propose to go into that  question. It is relevant to note that at some stages during hearing on  earlier occasions, it was suggested that to give a decent burial to the  controversies involving a teacher and the management and a reasonable  settlement should be arrived at.  Prima facie, learned counsel for the  State and the appellant agreed that some amount as may be fixed may be  paid in full and final settlement of the claims of the respondent-Khan  and his continuance in his establishment would be put to an end. Though,  there appeared to be no controversy on the amount to be paid to  respondent-Khan, he insisted that the State Government should consider  him for appointment in some other institution. This was not found  acceptable by learned counsel for the State as according to him it is  for the Institution to select the candidate and send the name for  approval by the Government. Therefore, no final say could be given to

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the proposal.

The allegations made against respondent-Khan are no doubt of a  very serious nature and certainly if proved do not befit a teacher. The  clay like mind of young children are shaped into beautiful moulds by  teachers. They shape the future course of the students. To a great  measure their behaviour, character, reputation leave imprints in the  minds of the young children. If their conduct, behaviour and reputation  is full of blemish that would not be for the interest and in the welfare  of the students. Respondent-Khan has denied the allegations and has  alleged bias. But we do not think it necessary to opine one way or the  other. Whatever be the truth, the undisputed fact is that the litigation  has continued unabated for long years. It would be neither in the  interest of respondent-Khan nor the Institution if respondent-Khan is  continued in the Institution. By making this observation, it is not to  be construed as if we have found the allegations to be true. On the  contrary, the welfare of the Institution, the reputation of respondent- Khan has been considered by us in the proper perspective. If an act or  omission of an employee reflects upon his character, reputation,  integrity or devotion to duty or is an unbecoming act, certainly the  employer can take action against him. In this context, reference may be  made to the following observations of Lopes C.J. in Pearce v. Foster,  (1866 (17) QBD 536, p.542):   

"If a servant conducts himself in a way inconsistent  with the faithful discharge of his duty in the  service, it is misconduct which justifies immediate  dismissal. That misconduct, according to my view, need  not be misconduct in the carrying on of the service of  the business. It is sufficient if it is conduct which  is prejudicial or is likely to be prejudicial to the  interests or to the reputation of the master, and the  master will be justified, not only if he discovers it  at the time, but also if he discovers it afterwards,  in dismissing that servant."  

This view was re-iterated by a three-Judge Bench of this Court in Union  of India and Ors. v. K.K. Dhawan (AIR 1993 SC 1478) and Indian Railway  Construction Co. Ltd. v. Ajay Kumar (2003 (4) SCC 579).

Without therefore deciding the contentious pleas raised by learned  counsel for the parties, we direct as follows:

(1).    A sum of Rs.4,50,000/- shall be paid within four months from today  to respondent-Khan out of which Rs.4,00,000/- shall be paid by the State  Government directly to respondent-Khan and the balance amount shall be  paid by the Institution to respondent-Khan within the indicated time.  

(2).    The interim order passed by this Court shall continue till payment  is made. The respondent-Khan would not be entitled to any other sum in  respect of his service with the Institution. On payment being made, the  order of termination of his service shall become operative not on the  ground indicated therein, but because of the present order.         

(3)     This order shall not stand on the way of the respondent-Khan  seeking employment elsewhere.            The appeals are disposed of accordingly, without any order as to  costs.  

WRIT PETITION (C) NO. 189/1999                                                          In view of the order passed in Civil Appeal Nos.5337-5339/1999, no  further order is necessary to be passed in the writ petition.

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