Jain Samnopasak Senior Secondary ... vs Delhi Administration & Anr.
1999 Latest Caselaw 1278 Del

ORDER

Usha Mehra, J.

1. This appeal raises following questions namely:

(1) Whether the provisions of Section 8(2) of the Delhi School Education Act, 1973 (hereinafter called the Act) would apply to the school run by a minority aided institution; (2) whether getting of financial aid by itself is sufficient to cover the minority institution under the provisions of the Act; and finally (3) Whether the School run by the appellant can be called a minority school.

2. In order to answer the above questions, briefly stated the facts are that the respondent No. 2 who was working as PGT (English Teacher) was charge-sheeted on account of absenteeism, gross misbehaviour by creating riotous atmosphere, dereliction of duties, disobedience and insubordination. Before issuing charge-sheet, respondent No. 2 was placed under suspension vide order dated 30th March, 1991. The appellant school did not take prior approval of the Director of Education before suspending respondent No. 2. However, later on vide letter dated 4th April, 1991 ex-post facto approval of the Director of Education was sought of the suspension of respondent No. 2. The Director of Education conveyed the sanction vide letter dated 5th April, 1991. Enquiry on the charges against respondent No. 2 was initiated. The respondent No. 2 initially participated in the enquiry but subsequently choose not to appear. Enquiry Officer submitted his report on 19th February, 1992 holding him guilty of all the charges. Disciplinary authority of the school accepted the report. Pursuance thereto a show cause notice was issued to the respondent No. 2 to explain why his services be not terminated. When no reply was received from respondent No. 2, the Disciplinary Authority finding the charges grave and having been proved imposed the penalty of dismissal. The order of termination was served on respondent No. 2. The factum of termination of service of respondent No. 2 was communicated to the Director of Education on 9th March, 1992. No prior permission of the Director of Education was obtained before passing the order of dismissal.

3. Feeling aggrieved with the order of dismissal, respondent No. 2 filed an appeal before the Delhi School Tribunal (hereinafter called the Tribunal) under Section 8 of the Act. The same was dismissed on merits by the Tribunal on 19th September, 1995. Review was also dismissed on 26th October, 1995. Order of Tribunal was challenged by way of writ petition. The same was allowed vide the impugned order dated 9th November, 1998. The learned Single Judge while allowing the petition opined that prior approval of the Director of Education was a must before terminating the services of respondent No. 2. Since there was violation of Section 8(2) of the Act hence termination was bad. It has been further held that the appellant being a minority aided school is governed by the provisions of the Act, therefore, the provision of Section 8(2) of the Act are attracted in this case. While setting aside order of the Tribunal, the learned Single Judge remanded back the matter to the Tribunal to decide it on merits. It is this order of learned Single Judge which has been assailed by the appellant in this appeal.

4. While appreciating the facts we may also have quick glance at the relevant provisions of the Act, namely, Sections 8(2), 8(3), 8(4), & 8(5) of the Act and of Article 30 of the Constitution of India, which are reproduced as under:-

8. Terms and conditions of service of employees of recognised private schools

(1) x x x x

(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 2, 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, and employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable ground for such suspension, accord his approval to such suspension.

Article 30: Right of minorities to establish and administer educational institutions:

(1) All minorities, whether based on religion or language, shall have the right to establish and administer education institutions of their choice.

[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause].

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

5. Reading of sub-section (4) of Section 8 of the Act leaves no manner of doubt that before suspending a teacher it is incumbent on the School authorities to obtain prior approval of the Director of Education. However, where the school authorities find that the act committed by the teacher is grave and serious and suspension is eminent, it is in that eventuality the school authorities can suspend the teacher forthwith, but has to obtain approval of the Director of Education within fifteen days thereafter.

6. In the present case the respondent No. 2 was suspended vide order dated 30th March, 1993. That on account of serious misconduct on the part of respondent No. 2 immediate suspension was necessitated. Hence prior approval could not be obtained. But at the same time appellant got sanction from the Directorate of Education on 5th April, 1992 i.e. within 15 days from the order of suspension. Thus the appellant complied with the provisions of Sub-section (4) of Section 8 of the Act. Apex Court in the case of Frank Anthony Public School Vs. Union of India, , while explaining the power of the Director of Education interpreted the provisions of Section 8(4) of the Act as under:-

"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 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 ".

7. Therefore, so far as provision of Section 8(4) are concerned the appellant complied with the same. Thus the action of the appellant school was consistent with the said provisions. It is also apparent that the Director while according sanction vide letter dated 5th April, 1992 must have found adequate and reasonable ground for the suspension of respondent No. 2. That is why the Director accorded the approval of the suspension. for a minority school this is the only requirement which the minority institution has to comply under the Act. This, as already discussed above, has been complied with, Sub-section (2) of Section 8 of the Act envisages prior approval of the Director before any action of dismissal, removal or reduction in rank is taken. This prior approval which is envisaged under sub-section (2) of Section 8 is not required so far as minority schools are concerned. Question in this case is not of minority school but of a minority aided school. Therefore, we have to consider whether the provisions of Sub-section (2) of Section 8 would apply to minority aided school. We need not venture to find an answer to this question because the same has already been answered by the Supreme Court in the case of Frank Anthony Public School (Supra) wherein the Apex Court opined that by getting financial aid, the minority institution do not barter away their right provided and protected by the Constitution. In Frank Anthony Public School's case it has been observed:

"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 it from the Government".

8. The applicability of the provisions of Sub-Section (2) of Section 8 came up before the Supreme Court in the case of Mrs. Y. Theclamma Vs. Union of India & Ors., . The Court observed that:-

"Section 12 of the Act was void and unconstitutional except to the extent that it makes Section 8(2) in unaided minority educational institutions, and directed the Union of India, Delhi Administration and its officers to enforce the provisions of Chapter IV except Section 8(2) against the Frank Anthony Public School and unaided minority schools. It has further directed the Management of the School not to give effect to the impugned orders of suspension passed against members of the Staff. Such being the law declared by the Court in Frank Anthony Public School's case with regard to unaided minority educational institutionals, it stands to reason that the aided minority school run by Andhra Education Society and other linguistic minority educational institutions of Delhi will also be governed by the rovisions of Chapter-IV (except Section 8(2)) that is to say the exercise of the power of the management of such schools to suspend a teacher would necessarily be subject to the requirements of prior approval of the Director of Education under sub-section (4) of Section 8 of the Act". (Emphasis supplied)

9. Perusal of the above observation of the Apex Court leaves no manner of doubt that the provisions of Chapter IV except Section 8(2) of the Act would apply to minority schools whether aided or unaided. This shows that provision of Section 8(2) of the Act would not apply whether minority school is aided or unaided. Law laid down by the Court in Frank Anthony Public School (supra) and Mrs.Y.Theclamma (Supra) leaves nothing for interpretation except to hold that the provisions of Sub-section (4) of Section 8 would only apply to the minority school whether aided or unaided. At the same time the provisions of Sub-section (2) of Section 8 would not apply irrespective of the fact the minority school is aided or unaided. Hence if the management of a minority school has to suspend its employee it has to take prior approval of the director of Education as required under Subsection (4) of Section 8. Whereas prior approval for dismissal or removal or reduction in rank is not required because the provisions of Section 8(2) of the Act are not applicable to minority educational institution whether aided or unaided.

10. Similarly Article 30 of the Constitution envisages that the grant in aid or recognition or affiliation of the educational institution is no ground for the State to impose the condition thereby taking away the minority status of the educational institutions or violate their undamental right. That is the reason the Apex Court in Mrs. Y.Theclamma's case (Supra) observed that the provisions of Chapter-IV [except Section 8(2)] will govern the minority educational institutions of Delhi, because Section 8(2) imposes a condition that is prior approval of the Director of Education before dismissal, removal or reduction in rank. This restriction takes away the right of the educational institution so far as in the administration of its employees. That is why to give complete independence and autonomy to the minority educational institutions, the provisions of section 8(2) are not made applicable unlike Article 19(1) of the Constitution of India which imposes reasonable restriction. The right conferred on the minority educational institution whether aided or unaided is absolute and unfettered. It cannot be taken away simply because the minority school is an aided school.

11. Respondent No. 2 who was appearing in person took the plea that appellant school run by Jains is not a minority educational institution. To support his contentions he drew our attention to the provisions of The National Commission for Minorities Act, 1992 and the Notification issued thereunder dated 23rd October, 1993. Vide the said otification Government notified five categories as the minority communities namely (1) Muslims, (2) Christians, (3) Sikhs, (4) Buddhists and (5) Zoroastrians (Parsees). Thus Jains have been left out from the category of minority community. Since Jains are not minority community hence school run by it cannot be called minority institution. On the other hand Mr. Rajesh Goel appearing for the appellant contended that Director of Education has already declared the appellant institution as a minority educational institution. Counsel appearing for the Director admitted having recognised the appellant institution as a minority aided educational institution. Even otherwise this fact is apparent from the pleadings of the parties before the learned Single Judge. The appellant before the writ court had specifically took the stand that it was a minority aided school and the Director of Education, Delhi admitted it to be so. Even the respondent No. 2 had not challenged this fact before the learned Single Judge. The decision of the Tribunal that appellant herein was a religious minority institution has not been set aside by the learned Single Judge by the impugned judgment. Therefore, so far as minority status of the appellant is concerned that was never under challenge. The only question was the applicability of Section 8(2) of the Act keeping in view that appellant was getting financial aid. For this reason, we find no force in the submission of respondent No. 2. Admittedly, observation of this Court in S.S. Jain Vs. Union of India, that Jain community is a minority community fully apply to the facts of this case. The Notification relied by respondent No. 2 issued under the National Commission for Minorities Act, 1992 has no applicability in determining the issues involved in this appeal.

12. For the reasons stated above, the impugned order cannot be sustained. The appellant did comply with the provisions of the Act which was necessary at the time of suspension. However, for termination of services provisions of Section 8(2) were not required to be complied with. Hence the impugned order is set aside but with no order as to costs.