Gajanand Sharma vs Adarsh Siksha Parisad Samiti

CIVIL APPEAL NOS. 100-101 OF 2023 (@ SLP(C) NOS. 12645-12646 OF 2022)

Gajanand Sharma ...Appellant(S)

Versus

Adarsh Siksha Parisad Samiti & Ors. ...Respondent(S)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 06.05.2022 passed by the High

Court of Judicature for Rajasthan Bench at Jaipur in D.B.

Special Appeal Writ Nos. 1077/2005 (filed by the

management) and 826/2011 (filed by the employee), by

which the Division Bench of the High Court has allowed

the appeal preferred by the respondent(s) herein –

management and has quashed and set aside the

judgement and order passed by the learned Single Judge Signature Not Verified Digitally signed by and the order passed by the learned Tribunal quashing Neetu Sachdeva Date: 2023.01.19 16:40:11 IST Reason:

and setting aside the order of termination dated

1 06.08.1998 and consequently upheld the same, the

employee has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are

as under: -

2.1 That the appellant herein – employee was serving with

respondent Nos. 1 and 2. A disciplinary enquiry was

initiated against him under provisions of the Rajasthan

Non-Governmental Educational Institutions Act, 1989

(hereinafter referred to as the Act, 1989). That thereafter

on conclusion of the departmental enquiry services of the

appellant came to be terminated which was the subject

matter of challenge before the learned Tribunal. The

Tribunal set aside the order of termination by observing

and holding that the prior approval of the Director of

Education as mandatory under Section 18 of the Act, 1989

was not obtained. The learned Single Judge confirmed the

order passed by the learned Tribunal. By the impugned

judgment and order and despite the fact that the decision

of this Court in the case of Raj Kumar Vs. Director of

Education and Ors., (2016) 6 SCC 541 dealt with the

2 pari materia provisions of the Delhi School Education Act

(hereinafter referred to as the DSE Act), taking the view

that before termination of an employee, prior approval of

the Director of Education is mandatory and required, the

Division Bench of the High Court has not followed the

decision of this Court in the case of Raj Kumar (supra) by

erroneously observing that in the case of Raj Kumar

(supra), this Court had not considered the earlier decision

in the case of T.M.A. Pai Foundation Vs. State of

Karnataka; (2002) 8 SCC 481. That thereafter, after

following the decision of the Larger Bench of the High

Court in the case of Central Academy Society Vs.

Rajasthan Non-Govt. Educational Institutional

Tribunal; (2010) 3 WLC 21 reading down Section 18 of

the Act, 1989, observed that in case of a termination after

the disciplinary enquiry/proceedings prior approval of the

Director of Education is not required, the Division Bench

of the High Court has allowed the writ appeal and has set

aside the orders passed by the learned Tribunal as well as

the learned Single Judge and has upheld the order of

termination. That the impugned judgment and order

3 passed by the High Court is the subject matter of one of

the present appeals. At this stage, it is required to be noted

that letters patent appeal (D.B. Special Writ Appeal) No.

826/2011 was the subject matter of order dated

06.01.2011 passed by the learned Single Judge denying

the case of the appellant for equal pay for equal work.

However, since the termination order came to be upheld,

thereafter, without further entering into the merits of the

appeal, the Division Bench of the High Court has

dismissed the said appeal, which is also the subject matter

of one of the present appeals.

3. Now so far as the impugned judgment and order passed by

the Division Bench of the High Court upholding the order

of termination and quashing and setting aside the orders

passed by the learned Tribunal and the learned Single

Judge is concerned, it is vehemently submitted by the

learned counsel appearing on behalf of the appellant –

employee that as such the High Court has materially erred

in not following the binding decision of this Court in the

case of Raj Kumar (supra). It is submitted that though not

4 permissible, observing and holding that the decision of this

Court in the case of Raj Kumar (supra), the Division

Bench of the High Court has not followed the decision in

the case of Raj Kumar (supra) on the ground that in the

case of Raj Kumar (supra), this Court had not considered

the decision in the case of T.M.A. Pai Foundation (supra).

It is submitted that the aforesaid is factually incorrect. It is

submitted that as such while passing the judgment and

order in the case of Raj Kumar (supra) this Court had

taken into consideration at least in more than 8-9

paragraphs the decision of this Court in the case of T.M.A.

Pai Foundation (supra) (paragraphs 13, 42, 43, 47, 50-52,

61 & 64). It is submitted that therefore, the Division Bench

of the High Court has seriously erred in not following the

binding decision of this Court in the case of Raj Kumar

(supra).

3.1 It is further submitted by the learned counsel appearing

on behalf of the appellant that as such in the case of Raj

Kumar (supra) while dealing with and considering the pari

materia provisions of DSE Act, namely, Section 8 of the

5 DSE Act, this Court has specifically observed and held that

before terminating an employee even in case of a non-

aided institution, the prior approval of the Director of

Education is mandatory. It is submitted by the learned

counsel appearing on behalf of the appellant that while

holding so this Court did consider the decision of this

Court in the case of T.M.A. Pai Foundation (supra). It is

submitted that therefore, the Division Bench of the High

Court has materially erred in taking the contrary view than

the decision of this Court in the case of Raj Kumar (supra)

and the Division Bench of the High Court has materially

erred in relying upon the Larger Bench’s

judgment/decision in the case of Central Academy

Society (supra) and taking the view that in case of

termination followed by the disciplinary

proceedings/enquiry, Section 18 requiring the prior

approval of the Director of Education shall not be

applicable.

3.2 It is submitted that even in the case of Marwari Balika

Vidyalaya Vs. Asha Srivastava; (2020) 14 SCC 449 after

6 following the decision of this Court in the case of Raj

Kumar (supra), it is observed and held that before

terminating/dismissing an employee, the prior approval of

the Direction of Education is required/mandatory. 3.3 It is further submitted by the learned counsel appearing

on behalf of the appellant that the decision in the case of

Raj Kumar (supra) has been subsequently followed by the

Delhi High Court in the case of Mangal Sain Jain Vs.

Principal Balvantray Mehta Vidya Bhawan & Ors. [W.P.

(C) No. 3415/2020] against which the Special Leave

Petition filed by the management has been dismissed by

this Court in the case of Principal Balvantray Mehta

Vidya Bhawan Vs. Mangal Jain vide order dated

11.01.2021. Therefore, it is submitted that the Division

Bench of the High Court has materially erred in restoring

the order of termination by observing that in a case of non-

aided institution and in a case where the termination is

after the disciplinary enquiry/proceedings, the prior

approval of the Director of Education is not mandatory. 7 3.4 Making the above submissions and relying upon the

decision of this Court in the case of Raj Kumar (supra), it

is prayed to allow the present appeals.

4. Present appeals are vehemently opposed by the learned

counsel appearing on behalf of the management -

respondent(s).

4.1 It is vehemently submitted by the learned counsel

appearing on behalf of the management that as such the

decision of this Court in the case of Raj Kumar (supra)

and T.M.A. Pai Foundation (supra) shall not be applicable

to the facts of the case on hand as in the aforesaid

decisions, it was a case of termination without holding any

disciplinary enquiry/departmental proceedings. In the case

of Raj Kumar (supra) this Court was considering Section 8

of the DSE Act. It is submitted that in the present case as

such the order of termination was passed after following a

departmental enquiry and after all the charges and the

misconduct held to be proved. It is submitted that

therefore first part of Section 18 of the Act, 1989 shall not

be applicable.

8 4.2 Learned counsel appearing on behalf of the management

has heavily relied upon Larger Bench decision of

Rajasthan High Court in the case of Central Academy

Society (supra). It is submitted that the Larger Bench of

the High Court has dealt with and/or considered the very

provision, namely, Section 18 of the Act, 1989 and has

read down the same after considering the decision in the

case of T.M.A. Pai Foundation (supra) and has observed

and held that in case of termination of an employee after

departmental enquiry/proceedings, Section 18 of the Act,

1989 shall not be applicable and the prior approval of the

Director of Education is not required.

4.3 It is further submitted that even otherwise in the present

case, the order of termination is not required to be set

aside on the ground that the prior approval of the Director

of Education was not obtained as the disciplinary

committee was consisted of District Education Officer. It is

submitted that the Committee, of which a nominee of the

District Education Officer was a member, held all the

charges and the misconduct alleged proved. It is submitted

9 that the charges and the misconduct proved against the

appellant were very serious of abusing, misbehaving, and

threatening the school Principal, embezzlement of school

funds and being negligent in handling school property. It is

submitted that therefore, when in the disciplinary

committee a nominee of the District Education Officer was

member, the order of termination without even the prior

approval of the Director of Education is not required to be

set aside.

4.4 Making the above submissions, it is prayed to dismiss the

present appeals.

5. At the outset, it is required to be noted that and it is an

admitted position that parties are governed by the

Rajasthan Non-Governmental Educational Institutions Act,

1989. Section 18 provides that no employee of a recognized

institution shall be removed, dismissed, or reduced in rank

unless he has been given by the management a reasonable

opportunity of being heard against the action proposed to

be taken and that no final order in this regard shall be

passed unless prior approval of the Director of Education

10 or an officer authorized by him in this behalf has been

obtained. The learned Tribunal set aside the order of

termination on non-compliance of Section 18 of the Act,

1989 inasmuch as before terminating the services of the

appellant – employee prior approval of the Director of

Education was not obtained. The same came to be

confirmed by the learned Single Judge, however, by the

impugned judgment and order taking a contrary view, the

Division Bench of the High Court has allowed the appeal

and has restored the order of termination.

5.1 From the impugned judgment and order passed by the

High Court, it appears that before the High Court the

decision of this Court in the case of Raj Kumar (supra)

taking a contrary view and taking the view that before

terminating the services of an employee of a recognized

institution prior approval of the Director of Education is

required was pressed into service. However, though

impermissible the Division Bench of the High Court has

not followed the said binding decision by observing that in

the case of Raj Kumar (supra), this Court had not

11 considered the decision of this Court in the case of T.M.A.

Pai Foundation (supra). Apart from the fact that the same

is wholly impermissible for the High Court even the said

observations are factually incorrect. If the decision in the

case of Raj Kumar (supra) is seen in more than 8-9

paragraphs, this Court had referred to and as such dealt

with the decision of this Court in the case of T.M.A. Pai

Foundation (supra). Even the decision in the case of

T.M.A. Pai Foundation (supra) was explained and

considered by this Court in the case of Raj Kumar (supra). Therefore, the Division Bench of the High Court is factually

incorrect in observing that while deciding the decision in

the case of Raj Kumar (supra) this Court had not

considered the decision of this Court in the case of T.M.A.

Pai Foundation (supra). Before commenting upon the

decision of this Court in the case of Raj Kumar (supra) the

Division Bench of the High Court ought to have thoroughly

read and/or considered the decision in the case of Raj

Kumar (supra). Even after making the incorrect

observations that in the case of Raj Kumar (supra) this

Court had not considered the decision of this Court in the

12 case of T.M.A. Pai Foundation (supra) the Division Bench

of the High Court has considered few decisions of judicial

discipline which were not applicable at all. Judicial

discipline also requires that the judgment/decision of this

Court should be considered and read thoroughly. As

observed hereinabove, the decision of this Court in the

case of Raj Kumar (supra) was binding upon the High

Court. Therefore, the Division Bench of the High Court has

seriously erred in not following the decision of this Court

in the case of Raj Kumar (supra).

5.2 Now so far as the decision of this Court in the case of Raj

Kumar (supra) is concerned, this Court was considering

pari materia provisions under the DSE Act. This Court was

considering Section 8 of the DSE Act, which reads as

under:-

“8. (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.”

5.3 Similar is the provision so far as Section 18 of the Act,

1989 is concerned which reads as under: -

13

“18. Removal, dismissal or reduction in rank of employees.- Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken;

Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained.”

5.4 In the case of Raj Kumar (supra) while dealing with the

pari materia provision under the DSE Act and after

considering the decision of this Court in the case of T.M.A.

Pai Foundation (supra), it is specifically observed and

held by this Court that in case of a recognized institution,

before terminating the services of an employee, prior

approval of the Director of Education is required.

Therefore, a contrary view taken by the Larger Bench of

the High Court relied upon by the Division Bench of the

High Court is not a good law. It is required to be noted that

the decision of this Court in the case of Raj Kumar (supra)

has been considered by this Court in the case of Marwari

Balika Vidyalaya (supra) and also by the Delhi High Court

in the case of Mangal Sain Jain (supra). In the case of

Marwari Balika Vidyalaya (supra) this Court considered

14 the decision in the case of Raj Kumar (supra) and object

and purpose of Section 8 of DSE Act in paragraphs 13 and

14 as under: -

“13. In Raj Kumar v. Director of Education [Raj Kumar v. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. Moreover, this Court also considered the Objects and Reasons of the Delhi School Education Act, 1973 and came to the conclusion that the termination of service of the driver of a private school without obtaining prior approval of Director of Education was bad in law. This Court observed : (SCC p. 560, para

45)

“45. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent school. Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school.”

14. This Court has laid down in Raj Kumar v. Director of Education [Raj Kumar v. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short “the DSE Act”) was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. While the

15 functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to the reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.”

5.5 Even on fair reading of Section 18 of the Act, 1989, we are

of the opinion that in case of termination of an employee of

a recognized institution prior approval of the Director of

Education or an officer authorised by him in this behalf

has to be obtained. In Section 18, there is no distinction

between the termination, removal, or reduction in rank

after the disciplinary proceedings/enquiry or even without

disciplinary proceedings/enquiry. As per the settled

position of law the provisions of the statute are to be read

as they are. Nothing to be added and or taken away. The

words used are “no employee of a recognized institution

shall be removed without holding any enquiry and it

further provides that no final order in this regard shall be

passed unless prior approval of the Director of Education

16 has been obtained.” The first part of Section 18 is to be

read along with first proviso. Under the circumstances,

taking a contrary view that in case of dismissal/removal of

an employee of a recognized institution which is after

holding the departmental enquiry the prior approval of the

Director of Education is not required is unsustainable and

to that extent the judgment of the Larger Bench of the

Rajasthan High Court in the case of Central Academy

Society (supra) is not a good law.

5.6 Therefore, on true interpretation of Section 18 of the Act,

1989, it is specifically observed and held that even in case

of termination/removal of an employee of a recognized

institution after holding departmental enquiry/proceedings

prior approval of the Director of Education has to be

obtained as per first proviso to Section 18 of the Act, 1989.

6. In view of the above and for the reasons stated

hereinabove, the impugned judgment and order passed by

the Division Bench of the High Court restoring the order of

termination which as such was without obtaining the prior

approval of the Director of Education deserves to be

17 quashed and set aside and is accordingly quashed and set

aside. The order of learned Tribunal setting aside the order

of termination confirmed by the learned Single Judge is

hereby restored. Consequently, the appellant shall have to

be reinstated in service and considering the fact that the

respondent(s) is/are un-aided institution and the order of

termination was passed as far as back in the year 1998,

we direct that the appellant shall be entitled to 50% of the

back wages, however, he shall be entitled to all other

benefits notionally including the seniority etc., if any.

6.1 Civil appeal No. 100/2023 arising out of the impugned

judgment and order passed in D.B. Special Appeal Writ No.

1077/2005 is hereby allowed according to the aforesaid

extent.

6.2 Now so far as Civil Appeal No. 101/2023 arising out of the

impugned judgment and order passed in D.B. Special

Appeal Writ No. 826/2011 is concerned, the Division

Bench of the High Court has not at all dealt with the said

appeal on merits while upholding the order of termination.

Therefore, we set aside the order passed by the High Court

18 in D.B. Special Appeal Writ No. 826/2011 and remand the

matter to the High Court to decide the same afresh in

accordance with law and on its own merits.

Both the appeals are accordingly allowed to the

aforesaid extent and in terms of the above. In the facts and

circumstances of the case there shall be no order as to

costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (C.T. RAVIKUMAR) NEW DELHI, JANUARY 19, 2023.

19