Laiq Ahmed vs Anglo Arabic Higher Secondary ...
1991 Latest Caselaw 717 Del

JUDGMENT

R.L. Gupta, J.

(1) The appellant in this second appeal filed a suit against the respondents, challenging an order passed by the Anglo Arabic Hr. Sec. School, respondent No 1 through its Secretary Mirza Mahmood Beg, respondent 4, terminating his services as a teacher in the aforesaid school being malicious, illegal, ultra vires and unsustainable in law and a declaration that he continues in service. In addition, he claimed Rs. 2785.00 on account of arrears of his pay and Rs. 80.00 on account of loss of interest on Provident Fund or in the alternative by way of damages of wrongful and malicious termination of the services.

(2) His case in short was that he was holding a permanent post as Assistant Teacher in the aforesaid school and as such was governed by the provisions of Punjab Education Code as amended and adopted by the Chief Commissioner of Delhi. He claimed to have been illegally suspended by the school authorities with effect from 26.8.60 and then illegally dismissed from service with effect from 31.8.61. The aforesaid action was taken against him because he was an active member of the school teachers Association on which account the Principal and members of the Managing Committee were un-happy with him.

(3) The respondents contested the suit on various pleas giving rise to the following issues:

1. Whether the suit as framed is maintainable ?

2.Whether the plaint discloses any cause of action for all or any of the reliefs claimed ?

3.Whether the order of terminating the services of the plaintiff is illegal, ultra vires and without jurisdiction? If so, with what effect ?

4.Is the plaintiff entitled to be declaration prayed for?

5.Is the plaintiff entitled to any damages for wrongful dismissal ? If so, how much ?

6.Is the plaintiff entitled to the arrears of salary and interest on the provident fund claimed ?

7.Whether the suit is properly framed and filed? If not, with what effect ?

8.Whether the suit is not maintainable as alleged in preliminary objection (e) of the written statement ?

9.Relief.

(4) Learned trial court answered issues 2 and 3 in favor of the appellant. On Issue I, it held that the suit in respect of the order terminating his services as well as the order of suspension was maintainable. But it was not maintainable for the declaration that he still continues in service in view of the fact that being in private service the relationship was purely of master and servant. On Issue 4, therefore, it held that such a declaration could not be granted to him On Issue 5, the appellant was held entitled to damages for wrongful termination of his services to be assessed and calculated in the facts and circumstances of the case. First part of issue 6 was answered in his favor while the second part regarding interest on provident fund was held not proved. Issue 8 was held infructuous because the plaint was amended. The appellant was, therefore, granted a decree for recovery of Rs. 906.00 and Rs. 355.00 on account of difference in salary during the period of suspension and loss of emoluments for the two months in which he remained out of employment with proportionate costs of the suit. Issue 7 was considered to be a repetition of issue No. 1 and so answered in favor of the appellant.

(5) The first appellate court (IAC for short) broadly accepted the findings of the trial court except that instead of damages for the unemployed period of two months, it said that the terms of service of the appellant being governed by the rules and regulations of the School (copy Ex. Dw 10/9), under its clause (v), if the termination is not brought about under clause (iv), the services of the appellant could be terminated on giving three calendar months notice, and, therefore in lieu of the notice he should be paid three months salary. So, in addition to the unpaid salary of Rs. 906.00 it granted him Rs. 532.50 as three months salary, and passed a decree for a total amount of Rs. 1438.50, leaving the parties to bear their own costs in the appeal.

(6) I have heard learned counsel for the parties. The short question of taw which has been pressed before me is that the Iac was not justified in assuming that the services of the appellant were governed by rules and regulations of the school (copy Ex. Dw 10/9), and not by law or rules having the force of law. The Iac noticed the judgment of the Supreme Court in Prabhakar Ramakrishna Jodh v. A.L. Pande which laid down that the conditions of service of the appellant P.R. Jodh were governed by the provisions of Ordinance Xx, otherwise called the college Code, and that the said provisions had the force of law which conferred-legal rights on the teachers of affiliated colleges. The attention of the Iac was also drawn to a ruling of this Court in Civil Writ No. 146 of 1969, Shital Prasad Tyagi v. Principal Central Institute of Education which, relying on P R. Jodh'a case (supra) held that Ordinance Xii made under Section 28 of the Delhi University Act, 1922, governed the service conditions of the petitioner, and since action, against the petitioner was contrary to the Ordinance, it could not be allowed to stand and had to be quashed. After. having noticed the aforesaid rulings, the Iao observed ; "IT will thus be seen that in both the cases cited above, the aggrieved party succeeded, because he could show to the court that his conditions of service were governed by law rather than by private contract between the parties. The plaintiff in the instant case has not been able to bring his case within the ambit of any law or rules made there under. The plaintiff case was that his conditions of service were governed by the Punjab Education Code as amended and adapted by the Chief Commissioner of Delhi from time to time. There is nothing on the record to show that the alleged adaptation and enforcement of the Punjab Education Code in Delhi by the Chief Commissioner was done under the provisions of any enacted law. For instance, we know, the said code might have been issued by the- Punjab Government in the exercise of its executive powers. The Chief Commissioner of Delhi might have enforced the said: Code in Delhi in the exercise of similar powers. I am, therefore, not prepared to hold that the conditions of service of the- plaintiff are governed by any law or rules having the force of law."

(7) I am of the view that the Iac in making the aforesaid observation seems to have traveled into the realm of surmises and conjectures. It may possibly be because of the fact that its attention was not drawn even to the pleadings of the parties in this case. For instance, the appellant alleged in paras 2, 3 and 4 that defendant I is aided by the Directorate of Education, Delhi Administration, getting 95ø/o grant-in aid, governed by the provisions of Punjab Education Code as amended and adopted by the the Chief Commissioner, Delhi up to date and also governed by the Notifications and Circulars of the Ministries of Education, Finance, Home, Govt. of India, Chief Commissioner, Delhi Administration, Director of Education etc. All these allegations in the plaint arc admitted in the written statement except with a little wrong twist that it is not the school but the Managing Committee which is funded to the extent of 95ø/o, as if the grant was given for the personal use of the Managing Committee. Suffice it to say, that the grant was given to the Committee because the school existed and, therefore, what had been alleged by the appellant was admitted as correct. In the face of the admissions made by the respondents in their written statement, it must be said that the service conditions of the appellant were governed by the Punjab Education Code, as amended and adopted by the Chief Commissioner of Delhi from time to time. Therefore, once it is held by the trial court that the action of the respondents in suspending the appellant was illegal, the inquiry was held against him in violation of the principles of natural justice and hence his dismissal was also illegal, it must further be held that the conditions of service of the appellant will be governed by the admitted; rules and regulations, issued from time to time by the aforesaid authorities under the Punjab Education Code as amended and adopted by the Chief Commissioner, Delhi. Therefore, the appellant being dismissed from service on the basis of an inquiry held exparte against him against all the principles of natural justice, he will as a matter of light be ordinarily entitled to the declaration that he still continues in service- The principle of the pleasure of the master and servant will definitely not be applicable to him. The findings of the Iac by applying the principle of master and servant on the basis of an agreement Ex. Dw 10/9 between the appellant and Management and granting the appellant 3 montns' salary in lieu of notice is, therefore, bad in law. In a land mark judgment in the case of Monmohan Singh v. Commissioner, Union Territory Chandigarh , an aided school governed by the Punjab Aided Schools (Security of Services) Act, 1969, ignoring the meritorious service of the Head Master for a period of seven years confirmed by the Competent Authority, disciplinary inquiry was commenced by the School management simply because he was appointed by the out-going Managing Committee. It was then dropped and the power to terminate the service under the agreement entered into with the Managing Committee was invoked and exercised. In these facts, the Supreme Court held that such schools receiving 95ø/o grant fell within the definition of 'State' under article 12 of the Constitution, and their employees could not be dismissed, removed or reduced in rank in a mala fide manner and an agreement not in accordance with the Statutory provisions beneficial to a class in need of protection could not be given effect to if it stood in derogation of the mandatory provisions of the Statute. In the present case, the application of the Statutory provisions contained in the Punjab Education Act has been avoided by the Iac although it was no where denied in the written statement that the Code is not applicable. Therefore, the appellant was entitled to its protection and his services could not be validly terminated by taking resort to the agreement Ex. Dw 10/9:

(8) Therefore, as already said, the appellant ordinarily would be entitled to the grant of a declaration that he still continues in service. But another feature of this case is that the appellant took up employment in another school after expiry of a period of about ? months only and continued to serve in that school till he attained age of superannuation. In these circumstances, I am of the view that the only declaration that can now be granted to the appellant is that he will be deemed to be in service of the school for the purposes of obtaining financial benefits excluding emoluments received by him in the other school till the age of superannuation. I order accordingly. Such benefits shall be calculated and made available to the appellant within a period of three months from today. Costs will also follow the event throughout.