Raju B. v. Bharatiya Vidya Bhavan and Others

W.P(c).No.17603/2013 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** ## **WP(C).No. 17603 of 2013** ## **PETITIONER/S:** **RAJU B., PHYSICAL EDUCATION TEACHER, BHAVANS VIDYA MANDIR, ELAMAKKARA, ERNAKULAM.** **BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** ## **RESPONDENT/S:** |**1**|**THE BHARATIYA VIDYA BHAVAN**| |---|---| ||**MUNSHI SADAN, BHARATIYA VIDYA CHOWK, KULAPATI K.M.**| ||**MUNSHI MARG, MUMBAI - 400 007, REPRESENTED BY ITS**| ||**PRESIDENT.**| |**2**|**THE BHARATIYA VIDYA BHAVAN,**| ||**KOCHI KENDRA, T.D. ROAD, ERNAKULAM,**| ||**KOCHI - 682 011, REPRESENTED BY ITS SECRETARY.**| |**3**|**E. RAMANKUTTY**| ||**DIRECTOR, BHARATIYA VIDYA BHAVAN, KOCHI KENDRA,**| ||**T.D. ROAD, ERNAKULAM, KOCHI - 682 011.**| |**4**|**NIRMALA VENKITESWARAN,**| ||**PRINCIPAL, BHAVANS VIDYA MANDIR,**| ||**GIRINAGAR, KCOHI - 682 020.**| |**5**|**THE CENTRAL BOARD OF SECONDARY EDUCATION**| ||**SHIKSHA KENDRA, 2 COMMUNITY CENTRE, PREET VIHAR,**| ||**DELHI - 110 092.**| ||**REPRESENTED BY ITS CHAIRMAN.**| |**6**|**THE REGIONAL OFFICER**| ||**CENTRAL BOARD OF SECONDARY EDUCATION, REGIONAL**| ||**OFFICE, NEW NO. 3 (OLD NO. 1630A), J BLOCK, 16TH**| ||**MAIN ROAD, ANNA NAGAR WEST, CHENNAI - 600 040.**| W.P(c).No.17603/2013 2 **7 THE PRINCIPAL, BHAVANS VIDYA MANDIR, ELAMAKKARA, KOCHI - 682 026.** **BY ADVS. NIRMAL. S, SC, CBSE SMT.LATHA ANAND SRI.K.ANAND (SR.)** **WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON 15.02.2019 DELIVERED THE FOLLOWING:** W.P(c).No.17603/2013 3 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.17603 of 2013-A ------------------------------------------- _Dated this the 15[th] day of February, 2019_ ## _**JUDGMENT**_ A Physical Education Teacher working in the Bharatiya Vidyamandir, Elamakkara has filed this Writ Petition challenging the initiation of disciplinary proceedings against him on various grounds including violation of the provisions in the Central Board of Secondary Education ('CBSE' for short) bye-laws. He is also challenging the authority and involvement of the 3[rd] respondent in the proceedings. 2. The petitioner was appointed as a Physical Education Teacher in the Bhavan's Vidyamandir, Girinagar in 1993. He was the Associate NCC officer also in that School since the year 2006. In the year 2013, the petitioner was transferred to Bhavan's Varuna Vidyalaya, Thrikkakkara, as per Ext.P5 order dated 01.01.2013 and thereafter to Bhavan's Vidyamandir, Elamakkara, as per Ext.P11 order dated 14.01.2013, where there are no NCC training to be imparted. While working at the School at Elamakkara, he received Ext.P19 memo of charges dated 23.05.2013 in connection with a representation he submitted, complaining harassment meted out to him from respondent no.3, the Director as well as from the 5[th] respondent, who was the Principal of Bhavan's Vidyamandir Giri Nagar. 3. The facts leading to the memo of charges, according to the petitioner, in W.P(c).No.17603/2013 4 brief is the following: There was one Sri. M.P.Thomas, another Physical Education Teacher in the School at Girinagar. There was a complaint from the girl students, who were NCC cadets, that he misbehaved towards them. As the Principal did not take any action against him, the parents of the girl cadets had preferred complaints before the Chairman, the Commanding Officer of NCC, etc. Serious allegations were raised by the parents that the Principal was protecting Sri. M.P.Thomas. The petitioner had submitted Ext.P2 report on the matter to the 4[th] respondent with copy to the Commanding Officer. The 3[rd] respondent thereupon issued Ext.P3 memo to the petitioner on 29.11.2012, whereby he was warned for having forwarded copy of his letter addressed to the Principal to the Commanding Officer, without permission of the Principal stating that it was a serious misconduct and that his responsibility was only to report the matter to the Principal. In the meanwhile, Sri. M.P.Thomas was placed under suspension, based on the complaints of parents submitted before the Chairman; though he was re-instated immediately an enquiry had to be conducted in which Sri.M.P.Thomas was found guilty of the charges and ultimately he was dismissed from service. Whileso, certain posters appeared against the Principal on the compound wall of the School at Girinagar and the Principal preferred a complaint before the Police implicating the petitioner as the person behind it. The Police very often summoned him to the Police station. Due to the harassment he submitted Ext.P18 petition before the Chief Minister with copy to Home Minister, Education Minister, District Collector and the Chairman, CBSE. Ext.P19 memo of charges was issued thereafter by the W.P(c).No.17603/2013 5 3[rd] respondent on 23.05.2013 as soon as the 2[nd] respondent received a copy of Ext.P18 petition from the Chairman of CBSE. The memo of charges issued by the Director/Manager started stating the following: “We are in receipt of a letter forwarded by the Chairman and ---------. The following charges were framed against him: _“1) You alleged that the Principal, Bhavan's Vidya Mandir, Girinagar tried to protect Sri.Thomas. You protested against this and naturally the Principal and Directordeveloped an ill feeling against you. This is absolutely a wrong statement and therefore a misconduct._ _2) Sending wrong and false statement to the Chief Minister, Education Minister, Home Minister and Chairman CBSE and mislead them against the institution and Heads of institutions is a serious misconduct._ _3) Your statement in your above letter that the Principal and Director are indulging in illegal activities and unethical Practices ignoring the eminent personalities in the Director Board is absolutely false and aimed at tarnishing the image of the officers and the institution and therefore a serious misconduct_ . _4) You have further stated that Hon. Secretary of Bharatiya Vidya Bhavan who also took action against Sri.Thomas was forced to resign on account of the machination of the Director. These allegations are false and made to tarnish the image of the Bhavan and with interior motives.”_ 4. The petitioner was asked to furnish explanation “before the undersigned” against the proposal to take disciplinary action against him for the alleged misconduct within seven days. The memo of charges was signed by the Director/Manager. The petitioner submitted his explanation Ext.P20 dated 29.05.2013, before the 3[rd] respondent-the Director/Manager denying the charges and challenging the competence of the 3[rd] respondent stating that disciplinary action can be initiated only by the School Management Committee (SMC) as per the provisions in the CBSE Bye-laws. He had also alleged that Ext P19 was issued at the instance of the 3[rd] respondent himself and without any decision by the SMC of the School at Elamakkara. He had stated that the allegations would not W.P(c).No.17603/2013 6 constitute misconduct, in view of the factual statements made in the letters of resignation of the Chairman and Board members. The 3[rd] respondent thereafter issued Ext.P21 letter dated 13.06.2013 stating: “ we have carefully gone through the explanation xxxxx”. He was informed that his explanation was not found satisfactory and it was decided to hold a domestic enquiry and that an Advocate of this Court was appointed as enquiry officer. Thereafter, the petitioner received Ext.P22 notice dated 02.07.2013 from the enquiry officer asking him to appear for the enquiry on 28.07.2013. This Writ Petition was filed at that stage on 12.07.2013, challenging the disciplinary action. At that time the Writ Petition filed by the petitioner (W.P.(C) No. 3211/2013) challenging his transfer was pending. 5. As per interim order dated 23.07.2013, this Court interdicted further proceedings pursuant to Exts.P19 and P20, reserving the right of the respondents to raise the issue with respect to maintainability. As per order dated 09.04.2015, the interim order was modified permitting the respondents to go on with the disciplinary action and directing that no penalty, if any, shall be imposed without getting orders from this Court. The enquiry was conducted during the pendency of the Writ Petition and the petitioner received Ext.P30 enquiry report along with Ext.P31 letter calling for his comments. The petitioner submitted Ext.P32 representation again questioning the authority to proceed. The Director thereafter issued Ext.P33 show cause notice intimating the proposal for dismissal of the petitioner from service and the petitioner submitted Ext.P34 representation again questioning the authority of the 3[rd] respondent. W.P(c).No.17603/2013 7 6. The petitioner is challenging the authority and involvement of the Director in initiating disciplinary action against the petitioner. It was alleged that the School Management Committee of the School at Elamakkara has not taken any decision to initiate disciplinary action against the petitioner. The petitioner is also alleging that the decision to conduct an enquiry is taken without placing the explanation before the School Management Committee and the 3[rd] respondent himself has taken the decision. It is also alleged that the issuance of the chargesheet and the further proceedings by the Director, against whom the petitioner raised grievances in the petition addressed to the Chief Minister and that he has acted as prosecutor and judge and thus vitiated the entire proceedings. 7. In the counter affidavit filed by the 2[nd] respondent and sworn to by the 3[rd] respondent, on 12.12.2013, they have questioned the maintainability of the Writ Petition. Bhavan's Vidyamandir is one of the educational institutions under the Bharatiya Vidyabhavan – the 1[st] respondent, which runs with the affiliation of the Central Board of Secondary Education (CBSE). The 2[nd] respondent is a unit of Central Bhavan's Trust. The Trust runs various educational institutions. The Kochi Kendra which runs educational institutions in and around the city is managed by a Board consisting of members nominated by the Trust, who are all private individuals. The governing Board has to report to the Central Trust where all the trustees are Private individuals. It does not get any grant from State or any of the instrumentalities. It does not come within the meaning of State under Article 12 of the Constitution of India. None of the fundamental rights of the petitioner are W.P(c).No.17603/2013 8 violated and the respondent institution is running unaided Schools and therefore no Writ Petition will lie against them. It is stated that it is the prerogative of the management to take disciplinary action. Ext.P19 memo is issued by the 2[nd] respondent and Ext.P21 is an intimation of the decision to hold enquiry and appointment of enquiry officer. 8. In the additional counter affidavit of the 2[nd] respondent sworn to by the 3[rd] respondent on 15.10.2018, it was stated that the School is functioning as per the rules of affiliation bye-laws and that there is a service rule of Bharateeya Vidyabhavan's Employees in Kerala Region framed in accordance with the rules of affiliation Bye-laws. Referring to Rules 20, 21, 22, 47, 49 etc. of the CBSE affiliation Bye-laws, it was stated that the 3[rd] respondent being the disciplinary authority has initiated and continued the disciplinary action against the petitioner with the approval of the SMC. It was stated that after receipt of Ext.P34 representation from the petitioner against the proposal to impose the penalty of dismissal, the SMC has as per Ext.R2(a) minutes dated 19.05.2017, accorded approval to the termination of service of the petitioner. 9. The learned Senior Counsel for the petitioner argued that the respondents are running educational institutions imparting education and hence performing public duty and that they are bound to comply with the CBSE Byelaws and therefore Writ Petition under Article 226 will lie. 10. At the same time, the learned Senior Counsel for the respondents argued that the Writ Petition is not maintainable under Article 226 the Constitution W.P(c).No.17603/2013 9 of India, as the impugned action does not involve any public element. Therefore, even though the institution as such is imparting education and performing a public duty, unless and until the action impugned is also having a public element, the Writ Petition is not maintainable. The disciplinary proceedings against the petitioner is purely a private affair involving the petitioner and the employer. Contentions are raised on merits also denying the allegations raised by the petitioner and justifying their stand in proceeding against the petitioner. It was argued that each case should be considered with reference to the circumstances under which the action is initiated, the institution in which the delinquent is working, the nature of allegations, etc. According to the respondents, they have taken action against the petitioner since he submitted a representation levelling serious allegations against the Director of the School as well as the then Principal, before the CBSE, the Chief Minister, Minister for Education etc. Proceedings were initiated against him for loss of reputation of the institution. The petitioner's attempt in the representation was to make it appear that the management including the Director as well the Principal wanted to protect Sri.M.P.Thomas without taking proper action against him which was contrary to the factual circumstances. It was stated that Sri. M.P.Thomas was dismissed from service. Thereafter, though he was re-instated in appeal, he quit the service. Pointing out that there was no reason to address the Chairman of the CBSE or Chief Minister or anybody else in connection with that issue, it was argued that the delay involved in proceeding against Sri.M.P.Thomas - the other Physical Education Teacher, can in no way be a ground for raising W.P(c).No.17603/2013 10 allegations against the Director or the Principal who, according to the respondents, have taken prompt action in time. According to the respondents, the conduct of the petitioner was highly prejudicial to the interest of the institution. 11. Having heard Sri. N.N.Sugunapalan, the learned Senior Counsel for the petitioner, Sri. Anand, the learned Senior Counsel for respondents 1 to 4 and 7 and Sri. S.Nirmal, learned Standing Counsel for respondents 5 and 6, the first question to be examined is as to the maintainability of the Writ Petition. 12. Learned Senior Counsel for the petitioner relied on the judgments of the Apex Court in _**K.K.Saksena vs. International Commission on Irrigation and Drainage and others : (2015) 4 SCC 670, K.Krishnamacharyulu and others vs. Sri.Venkateswara Hindu College of Engineering and another : AIR 1998 SC 295, etc**_ in support of the contention that the Writ Petition is maintainable against the School, as educational institutions are performing a public duty. 13. At the same time, the learned Senior Counsel for the respondents relied on the judgments in _**Bindu K.B. vs. State of Kerala and others : 2014 (4) KHC 772, Stimbla Sharma and Ors. vs. St.Paul's Senior Secondary School and Ors. : (2011) 13 SCC 760, Sushmita Basu and Ors. vs. Ballygunge Siksha Samity and Ors : (2006) 7 SCC 680**_ and argued that disciplinary action against the petitioner is purely a private matter arising between the employer and employee and there is no public element involved in it. 14. Article 226 of the Constitution of India, empowers every High Court to issue directions, orders or writs to any person or authority, including any W.P(c).No.17603/2013 11 Government for the enforcement of any of the rights conferred by Part III and for any other purpose. In the judgment in _**Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani**_ **: (1989)2 SCC 691,** the Apex Court held that a writ of mandamus cannot be issued if the management of the college is purely a private body without any public duty, as the rights would be purely of a private character. It was further held that the nature of the duty imposed on the body is the relevant factor and it must be judged in the light of positive obligation owed by the person or authority to the affected party, no matter by what means the duty is imposed. It was also held in para.22, as follows: _**“22.** Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.”[7] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”_ In that case the Trust was running an aided institution and hence it was discharging public function, like a Government institution, by imparting education to students. The rules and regulations of the affiliating University were found applicable to the aided institution. Hence it was found that the service conditions of academic staff were not purely of a private character. The decisions of the University with respect to the pay and allowances were found applicable to the staff of that college. There the staff of the College whose services were terminated sought directions for payment of terminal benefits and arrears of their salary. W.P(c).No.17603/2013 12 15. In _**Krishnamacharyalu**_ 's case ( _supra_ ) the teachers claimed pay parity. The Apex Court found that the educational institution was imparting education and was hence amenable to the writ jurisdiction under Article 226. However, in _**G. Bassi Reddy v. International Crops Research Institute**_ **:** (2003) 4 SCC 225, it was held that though the activity of the research institute (ICRI) enured to the benefit of the Indian public, that cannot be a guiding factor to determine the character of the Institute and to bring the same within the sweep of public function or public duty to attract Article 226. There the research activities of the institution were not found to be out of any public duty. In _**Federal Bank Ltd. v. Sagar Thomas**_ **: (2003)10 SCC 733** , where the dismissal of the respondent was under challenge, it was found that the bank was not under any obligation to discharge any function under Statute and hence no writ would lie and held that a writ is maintainable under Article 226 against a private body discharging public duty or positive obligation of public nature and a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. _**Binny Ltd. v. V. Sadasivan** : (2005) 6 SCC 657,_ it was held that the relevant factor to be determined is the nature of duty performed by such body and that such duty, if it is not statutory, should have public law element. The distinction with respect to the nature of duties to be enforceable, was discussed with reference to Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth. It was further held that Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority, provided that authority is W.P(c).No.17603/2013 13 discharging a public function and the decision sought to be corrected or enforced is in discharge of a public function. 16. After analysing all the aforesaid judgments, the Apex Court in _**K.K.**_ ## _**Saksena v. International Commission on Irrigation & Drainage : (2015) 4 SCC**_ _**670**_ **,** while considering the question of termination of service of the appellant, who was working in ICID, held that a private society may be amenable to the writ jurisdiction, if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it. In that case it was found that the respondent ICID does not come under Article 12 and it does not also carry on any public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution. However, analysing the judgments on Article 226, it was held that the power of the High Court under Article 226 of the Constitution, is not limited to the Government or “State” under Article 12; it is extended to any person or authority. It was also held that the said power is not limited to enforcement of fundamental rights guaranteed under Part III, but also for any other purpose. Reiterating the dicta in _**Andi Mukta Sadguru's**_ case and _**Krishnamacharyalu**_ 's case it was held that both the institutions were imparting education and hence discharging public functions creating interest of Government _._ It was held that Article 226 confers power on the High Courts to issue writs not only for enforcement of fundamental rights but also non-fundamental rights. What is relevant is the dicta of the Court that the term “authority” appearing in Article 226 W.P(c).No.17603/2013 14 of the Constitution would cover any other person or body performing public duty. The guiding factor, is the nature of duty imposed on such a body, namely, public duty to make it amenable to Article 226. 17. In the judgment in _**Bindu K.B v. State of Kerala and others**_ : 2014 (4) KHC 772, relied on by the learned Senior Counsel for the respondents, a learned Judge of this Court had after meticulous analysis of a series of judgments of the Apex Court as well as this Court on the maintainability of Writ Petition under Article 226, held that the action of the Socio Economic Unit Foundation in placing its employee under suspension and in calling for her explanation on the memo of charges cannot be interfered with, as a mere service dispute did not involve any element of public duty, despite the fact that it discharges duties of public nature. That judgment was affirmed by the Division Bench. 18. In the judgment in _**Satimbla Sharma v. St.Paul’s Senior Secondary School**_ **: (2011) 13 SCC 760,** the teachers of a private minority school, which was receiving grant in aid till the year 76-77, claimed pay and allowances on par with the teachers of the Government schools and Government-aided schools alleging discrimination and asserting their right to equal pay for equal work under Article 14 and the condition stipulated in provisional affiliation granted by the Council for the Indian School Certificate Examinations, according to which the service benefits of the staff of the School must be comparable to that prescribed by the State Department of Education. Section 23(3) of the Right of Children to Free and Compulsory Education Act, 2009 provided that the pay and allowance of teachers W.P(c).No.17603/2013 15 shall be as may be prescribed. It was held that a private unaided minority school is not under any duty to ensure equal pay for equal work **.** The present is not a case where a minority school is involved. 19. It is relevant to note that consequent to the enactment of Right of Children to Free and Compulsory Education Act, 2009 ('RTE Act' for short) even the unaided Schools are brought under the purview of the said Act and it has to follow the provisions therein. Even though the School Management Committee defined under Section 21 of the RTE Act 2009 does not include the Committee constituted in Schools defined under Section 2(2) of the Act, the education that is being imparted by the institution including the teachers therein come under the purview of the RTE Act, 2009. Therefore, the Writ Petition can be entertained against the respondents in order to enforce the duties prescribed in rules or even bye -laws. In the counter affidavit it is admitted that the 2[nd] respondent is following the provisions in the CBSE Affiliation Bye-laws and the disciplinary action is taken in accordance with the rules in the bye-laws. The complaint of the petitioner is as to non-compliance of the provisions in such bye-laws. 20. In this context it is relevant to note the judgment of the Apex Court in _**Ramesh Ahluwalia v. State of Punjab : (2012) 12 SCC 331,**_ where the termination of service of an Administrative Officer in DAV Public School, who was also governed by the CBSE affiliation bye-laws, came up for consideration. There the Apex Court found that the judgment of the High Court dismissing the Writ Petition on the ground that it cannot be entertained under Article 226, was not correct. W.P(c).No.17603/2013 16 However, seeing that there were factual disputes, the parties were allowed to approach the Tribunal constituted for determining disputes in Private educational institutions, established in terms of the decision of the Apex Court in _**TMA Pai**_ 's case. The decision in the appeal filed by the appellant therein was set aside, as the involvement of the Principal of the College who was a witness in the inquiry and against whom the appellant had serious complaints in the disciplinary committee, was found to have vitiated the decision in appeal. Reiterating the observations in the judgment in _**Andi Mukta Sadguru**_ case it was held that in order to issue a writ of mandamus, a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. 21. In the present case also complaint of the petitioner is regarding violation of the provisions contained in the affiliation bye-laws of the CBSE. In this case the 2[nd] respondent does not dispute the applicability of the provisions contained in CBSE Bye-laws in taking disciplinary action against the petitioner. Rather it is admitted that they are running the school in strict adherence of the provisions in CBSE affiliation bye-laws. Therefore, when the petitioner challenges the disciplinary action alleging violation of those provisions in the bye-laws by an institution like respondents 1 and 2 imparting education in accordance with RTE Act 2009, a Writ Petition under Article 226 of the Constitution is maintainable. 22. The next question to be considered is whether the Director is competent to initiate disciplinary proceedings and whether the respondents cannot W.P(c).No.17603/2013 17 be allowed to proceed further with the disciplinary action. 23. According to the petitioner, the Director/Manager is not the Disciplinary Authority; as per Clause 21(xi) of the affiliation bye-laws it is only the School Management Committee which is competent to initiate disciplinary action and hence to issue memo of charge and act as the disciplinary authority. In this case Ext.P19 memo of charge, Ext.P21 letter informing the appointment of the enquiry officer, Ext.P31 letter calling for comments on the enquiry report and Ext.P33 proposal for imposing penaly are issued by the Director/Manager -the 3[rd] respondent. According to the petitioner, the 3[rd] respondent is not the Manager of the Bhavan's Vidya Mandir, Elamakkara. But he is issuing all the proceedings against the petitioner. As per Clause 22, the Manager/Correspondent of the School is competent only to implement the decision of the School Management Committee. However, the contention of the 2[nd] respondent is that the memo of charges was issued and continued with the approval of the SMC. 24. The contention of the learned Senior counsel for the respondents, is that Bharatiya Vidya Bhavan, Kerala Region has framed Service Rules of Bharatiya Vidya Bhavan Employees, Kerala in tune with Clause 10(3) of the Affiliation Bye-Laws and as per those Service Rules, Director/Secretary of the Kendra shall be the disciplinary authority. Despite the fact that the 3[rd] respondent - the Director/Manager was the disciplinary authority, he had been acting with the approval of the SMC at all stages wherever approval was required. The 3[rd] respondent has also admitted that he was compelled to take disciplinary action, he W.P(c).No.17603/2013 18 being the disciplinary authority. 25. As per Clause 6 of the Bye-laws, a School having affiliation should also have a School Managing Committee as stipulated in Section 21(1) of RTE Act, 2009 and as per provisions of Clause 20(1), 20(2), 20(3) and 21 of Affiliation Bye-Laws of the Board. Clause 20 of the Affiliation Bye-laws provides for Constitution of a School Management Committee ('SMC” for short). This SMC shall consist of not more than 15 members in the case of a recognized aided School and not more than 21 members in the case of a private unaided School. It shall consist of the Head of the School as Member Secretary of the Committee, two parents of students in the School, two teachers of the School, two other persons including one woman, who have been teachers of any other School or College to be nominated by the Trust or Society, two members from out of the panel recommended by the Trust/Society to be nominated by the Board. The remaining members are to be nominated or elected in accordance with the rules and regulation of the Society or Trust. Not more than two members might be nominated as per the conditions laid down in the NOC. The term of the Managing Committee is fixed as two years. Clause 21 provides for the powers and functions of School Management Committee. Sub clause xi thereof provides that the SMC “ _shall exercise powers to take disciplinary action against staff_ ”. Thus it is for the SMC to take action against the staff. 26. As per Clause 22 which provides for the powers and responsibilities of Manager/Correspondent, it is for the Manager to ensure that the directions of W.P(c).No.17603/2013 19 the Society are conveyed to the School Managing Committee and the Head of the institution; he is to exercise the general supervision of the School subject to the control of the Managing Committee; he shall sign the appointment letters; letters for disciplinary action against the staff and termination and suspension letters etc., on behalf of the Managing Committee. 27. Though Ext.P19 memo of charge begins with “we are in receipt of xxxx” it is seen signed by the Director/Manager. There is no reference to any meeting or decision of the committee to take disciplinary action against the petitioner. 28. Clause 47 of the Affiliation Bye-law deals with the procedure to be followed for imposing major penalty. A major penalty can be imposed only after conducting an enquiry in the manner prescribed in sub clause 1(a) to (d) of Clause 47. Clause 47(1)(a) provides that _**disciplinary authority**_ shall frame definite charges on the basis of the allegations on which the enquiry 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/she shall be required to submit his/her written statement of defence and also to state whether he/she desires to be heard in person. 29. The charge memo which is produced before this Court does not contain any statement of allegations. It does not also ask whether he required any personal hearing. However, he has submitted his explanation in which he has also stated that the charges are vague. Clause (b) provides that on receipt of the written W.P(c).No.17603/2013 20 statement of defence, or where no such statement is received within the specified time, the disciplinary authority may itself inquire into such of the charges as are not admitted or if it considers it necessary, appoint an inquiry officer for the purpose. Clause (d) provides as follows: _“The disciplinary authority shall consider the report 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 enquiry officer, where an inquiry has been made by such officer;_ _ii. give him/her notice in writing stating the action proposed to be taken in regard to him/her and calling upon him/her to submit within the specified time, not exceeding two weeks, such representation as he/she 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 committee for its 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 committee for its approval and while doing so the disciplinary authority shall furnish to the employee all relevant records of the case including the statement of allegations, 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.”_ 30. Enquiry was conducted and Ext.P30 enquiry report was submitted finding the petitioner guilty of the charges. As per Ext.P31 letter the copy of the enquiry report was forwarded to him by the Director calling for his comments. Thereafter the Director issued Ext.P33 letter informing the petitioner: “We have considered the submissions against the enquiry reportxxxxx. Xx we accept the enquiry reportxxx”. He was informed about the proposal to dismiss him from service and his comments were called for. The petitioner has submitted his explanation Ext.P34. However, from Ext.R2(a) it is seen that the SMC meeting held on 19.05.2017, recommended termination of service of the petitioner, even before the enquiry report was forwarded to the petitioner calling for his remarks W.P(c).No.17603/2013 21 on 22.05.2017. 31. It is not clear to whom the SMC has recommended termination of services, in Ext.R2(a) meeting. As per Ext.P33 letter, the petitioner was asked to submit his comments against the proposal to dismiss him from service. As per the provisions in clause 47(1)(d)(iii) and Clause 47(2) of the affiliation bye-laws, prior approval from the committee is necessary for imposing the penalty. From these provisions, it is not clear which is the committee from which prior approval is to be obtained. It is also not clear from Ext.P33 letter also, from whom the SMC is getting prior approval. At any rate, it is stated that there is a “kendra committee” for the Bharateeya Vidya Bhavan. However, the CBSE bye-laws do not make it clear. 32. Clause 49 provides for a Disciplinary Committee consisting of the Chairman of the School Managing Committee, Manager of the School, a nominee of the Board, the Head of the School and one teacher. 33. It is pertinent to note that the memo of charge was issued by the 'Director/Manager'. The letter intimating appointment of enquiry officer was also issued by the 'Director/Manager'. However, subsequent to the enquiry the letters are sent by the 'Director'. 34. On directions issued by this Court, to produce the records relating to disciplinary action against the petitioner, the 2[nd] respondent has filed I.A.No.2 of 2019, producing Ext.R2(b) minutes of the meeting of SMC of Bhavan's Vidyamandir, Girinagar, held on 05.11.2012, presided over by Justice W.P(c).No.17603/2013 22 Padmanabhan Nair and attended by 13 others including Sri. V.V.Asokan and the 3[rd] respondent, who was designated as Director, Principal, who was designated as Secretary also. Referring to the action of the petitioner in forwarding a copy of his letter to the Principal to the NCC office, it was stated that such serious matters would be done by higher authorities in normal course. It was decided to issue a warning letter to him. Taking note of the internal friction and ego clash between, the 3 permanent Physical Education Teachers, it was decided to transfer all the three teachers and the transfer of the petitioner was from 01.01.2013 and sri. M.P.Thomas from after the athletic meet. 35. Ext.R2(c) is the minutes of the meeting of SMC, Bhavan's Vidya Manadir, Elamakkara, held on 21.05.2013, presided over by Smt. C.M.Sreekumari and attended by the 3[rd] respondent and 5 others, including the Principal. In the meeting, the 3[rd] respondent informed the members that the special SMC was held to discuss about a complaint the petitioner had lodged with the Chief Minster, Home Minister, Education Minister and the Chairman CBSE, against the Principal, Bhavan's Vidyamandir, Girinagar and Bhavan's Director raising several false allegations. The copy is received from the CBSE; the contents of the letter are absolutely malicious, false and defamatory, the petitioner being a teacher of the Bhavan's school it is a serious misconduct on his part to raise false allegations against senior officers of the Bhavan's. The 3[rd] respondent also gave a detailed back record of the petitioner when he was in the School at Girinagar, as teacher in charge of NCC, his transfer to Elamakkara, the writ filed by the petitioner against W.P(c).No.17603/2013 23 his transfer; Police has summoned him to the Police Station and questioned him about the involvement in an untoward incident that took place at the School, Girinagar. And the Director-the 3[rd] respondent sought the opinion of the members; after hearing the complaint lodged by the petitioner, the committee unanimously recommended disciplinary action against the petitioner as per Rules. The minutes shows that 4 members were absent on that day. 36. Ext.R2(d) is a copy of notice dated 17.05.2017 towards the extraordinary meeting of the SMC, Bhavan's Vidyabhavan, Elamakkara scheduled on 19.05.2017 to study the enquiry report of the petitioner and to decide further course of action. Ext.R2(e) is same as Ext.R2(a) minutes produced along with the additional counter affidavit i.e, the minutes of the meeting held on 19.05.2017. It is stated that the 3[rd] respondent informed the purpose of the meeting and the committee studied the charges levelled against the petitioner and the enquiry report and since the action of the petitioner is a case of anti-institutional, the committee unanimously recommended termination of service of the petitioner, in which Ext.R2(a) decision was taken with respect to the enquiry report. There were 9 members present in the meeting including the 3[rd] respondent. 37. The respondents stated that Ext.R2(e) is the list of the members of SMC of Bhavan's Vidyamandir, Elamakkara for 2016-17. It consists of one Mini Manoharan as Chairperson; the 3[rd] respondent- Sri. E. Ramankutty as Manager/Director, one Girija as Principal and Member Secretary, 2 parent members, Vice Principal, 2 Board members, who are Principals of other Schools W.P(c).No.17603/2013 24 and 3 persons nominated by the Trust. All these, especially, Ext.R2(c) minutes, would show the active involvement of the 3[rd] respondent against whom the representation was sent to the Chief Minister and others. In none of these meetings, the SMC has authorised the Director to issue the memo of charge. Nothing is produced even to show that the SMC was at least informed about the charges alleged against the petitioner; or the explanation submitted by the petitioner. Respondents did not also produce the decision, if any, of the SMC to conduct an enquiry or to appoint an enquiry officer. 38. Moreover, the petitioner has also produced additional documents alleging that there are separate Managers for each Schools and that one Sri. G.K.Pillai was stated to be the Senior Manager of the School at Elamakkara in Ext.P36 letter received on application under Right to Information Act. 39. Apart from the fact that there is no decision authorising the 3[rd] respondent either to issue the memo of charge or to take a decision to conduct domestic enquiry or to appoint an enquiry officer, etc., no ratification is also seen with respect to those decisions. There is no materials to show whether the explanation was placed before SMC before taking the decision to conduct the domestic enquiry and before appointing enquiry officer. The proceedings right from Ext.R2(c) meeting in which it was decided to take disciplinary action is tainted with bias. From the minutes of all these meetings – Exts.R2(c), R2(e), R2(a) etc., it is clear that it was the 3[rd] respondent who was steering the proceedings right from even framing of the charges. The involvement of the 3[rd] W.P(c).No.17603/2013 25 respondent is admitted in the counter affidavit stating that he happened to be the disciplinary authority. It is the case of the petitioner as well as the respondents that serious allegations were raised against the 3[rd] respondent and the Principal in the representation submitted by the petitioner before the CBSE, as well as the Chief Minister and other Ministers. 40. The involvement of the Director from the very commencement of the proceedings, even assuming that the decisions are of the SMC, vitiates the enquiry, as the 3[rd] respondent is a member of the SMC. The 3[rd] respondent himself has sworn to the counter affidavit stating that he had to take action as he happened to be the disciplinary authority. Therefore, there is force in the contention of the petitioner that the involvement of the 3[rd] respondent at all stages of the proceedings vitiates the enquiry. The allegations in the memo of charges relate to the allegations raised by the petitioner against the 3[rd] respondent himself as also the Principal. The 3[rd] respondent himself explained before SMC and SMC decides to initiate action as per Ext.R2(b) minutes. The 3[rd] respondent himself issued memo of charges. He himself found the explanation not satisfactory. He himself decided to conduct the domestic enquiry and appointed the enquiry officer. The SMC including himself decided to terminate the services of the petitioner. 41. In the judgment in _**Ramesh Alhuwalia'**_ s case similar allegations were raised and the Apex Court held that: > _**“19.** In the petition before the High Court as well as the appeal before this Court, the appellant has submitted that the entire disciplinary proceedings are vitiated due to the participation of the Principal, who was biased against the appellant. In our_ W.P(c).No.17603/2013 26 _opinion, the order passed by the Disciplinary Committee cannot be sustained on the short ground that Smt Neera Sharma was a member of the aforesaid Disciplinary Committee. In our opinion, she was clearly disqualified from participating in any deliberations of the Disciplinary Committee as she had appeared as Management Witness 2._ _**20.** It is well-settled principle of law that no person can be a Judge in his own cause. Having supported the case of the management, it was not appropriate for Smt Neera Sharma to participate in the proceedings of the Disciplinary Committee. Given the background of the allegations made by the appellant at all stages of the enquiry not only against the Principal, but also the Manager of the School, it was necessary for her to disassociate herself from the proceedings, to nullify any plea of apprehended bias.”_ In this view of the matter, I find that the issue herein is also covered by the aforesaid judgment of the Apex Court. In order to nullify the apprehended bias, as held by the Apex Court, the 3[rd] respondent should not have been allowed to be involved in any proceedings right from the issuance of charge memo. The respondents have admitted that the disciplinary action is taken following the affiliation bye-laws. Even assuming that the Director – the 3[rd] respondent, was authorised to take any action by the SMC or that he is the disciplinary authority under the service rules, the involvement of the 3[rd] respondent has vitiated the entire proceedings. Therefore, over and above the violations in the affiliation bye-laws, the enquiry is seen to be vitiated by bias, which amounts to violation of principles of natural justice. 42. Therefore, the entire proceedings starting from Ext P19 are set aside. It is made clear that respondents 1 and 2 are free to proceed against the petitioner afresh without the involvement of the 3[rd] respondent, in accordance with law. The Writ Petition is allowed to the above extent. Sd/ ## _**(P.V.ASHA, JUDGE)**_ _rtr/rkc_ W.P(c).No.17603/2013 27 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 10/03/2006 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE MEMO DATED 29/11/2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 17/10/2012 ADDRESSED BY THE COMMANDING OFFICER NCC TO THE 4TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 01/01/2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO. 34132/A2/99/H.EDN. DATED 07/06/2000.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO. 12556/A2/05/H.EDN. DATED 11/05/2005 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 03/01/2013 ADDRESSED BY THE COMMANDING OFFICER NCC TO THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 01/08/2006 ISSUED BY THE COMMANDING OFFICER NCC TO THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 12/01/2013 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 14/01/2013 TRANSFERRING THE PETITIONER TO BHAVANS VIDYA MANDIR, ELAMAKKARA.** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 14/01/2013 ADDRESSED BY THE COMMANDING OFFICER NCC TO THE 3RD RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN W.P(C) 1597/2013 OF THE HIGH COURT OF KERALA.** W.P(c).No.17603/2013 28 |**EXHIBIT P14**|**TRUE COPY OF THE INTERIM ORDER IN W.P(C)**| |---|---| ||**2046/2013 OF THE HON'BLE HIGH COURT.**| |**EXHIBIT P15**|**TRUE COPY OF THE LETTER DATED 01/02/2013**| ||**ISSUED BY THE 3RD RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P16**|**TRUE COPY OF THE LETTER DATED 01/02/2013**| ||**ISSUED BY THE PRINCIPAL, BHAVANS VIDYA**| ||**MANDIR, ELAMAKKARA TO THE PETITIONER.**| |**EXHIBIT P17**|**TRUE COPY OF THE JOINING REPORT DATED**| ||**05/02/2013 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE VICE PRINCIPAL, BHAVANS VIDYA**| ||**MANDIR, GIRINAGAR.**| |**EXHIBIT P18**|**TRUE COPY OF THE PETITION FILED BY THE**| ||**PETITIONER BEFORE THE CHIEF MINISTER.**| |**EXHIBIT P19**|**TRUE COPY OF THE CHARGE MEMO DATED**| ||**23/05/2013 ISSUED BY THE 3RD RESPONDENT TO**| ||**THE PETITIONER.**| |**EXHIBIT P20**|**TRUE COPY OF THE EXPLANATION DATED**| ||**29/05/2013 SUBMITTED BY THE PETITIONER.**| |**EXHIBIT P21**|**TRUE COPY OF THE NOTICE DATED 13/06/2013**| ||**ISSUED BY THE ENQUIRY OFFICER TO THE**| ||**PETITIONER.**| |**EXHIBIT P22**|**TRUE COPY OF THE NOTICE DATED 02/07/2013**| ||**ISSUED BY THE ENQUIRY OFFICER TO THE**| ||**PETITIONER.**| |**EXHIBIT P23**|**TRUE COPY OF THE RESIGNATION LETTER**| ||**SUBMITTED BY THE CHAIRMAN JUSTICE K.**| ||**PADMANABHAN NAIR.**| |**EXHIBIT P24**|**COPY OF THE RESIGNATION LETTER SUBMITTED BY**| ||**THE BOARD MEMBER SRI. M.G. RAMEN (IPS**| ||**RETD).**| |**EXHIBIT P25**|**TRUE COPY OF THE RESIGNATION LETTER**| ||**SUBMITTED BY THE PRESIDENT, PTA, EXECUTIVE**| ||**COMMITTEE OF BHAVANS VIDYA MANDIR,**| ||**GIRINAGAR.**| |**EXHIBIT P26**|**TRUE COPY OF THE COMPLAINT SUBMITTED BY THE**| ||**PTA MEMBERS OF THE OTHER SCHOOLS UNDER**| ||**BHARATIYA VIDYA BHAVAN.**| W.P(c).No.17603/2013 29 **EXHIBIT P27 TRUE COPY OF THE LETTER ADDRESSED BY THE CHAIRMAN TO THE PRINCIPAL AND SHCOOL MANAGEMENT COMMITTEE. EXHIBIT P28 TRUE COPY OF THE FIR FILED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION.** EXHIBIT P29 TRUE COPY OF THE TESTIMONY OF SENIOR ADVOCATE SRI V.V.ASOKAN. EXHIBIT P30 TRUE COPY REPORT OF THE ENQUIRY OFFICER. EXHIBIT P31 TRUE COPY OF THE LETTER DATED 22.5.2017 ADDRESSED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P32 TRUE COPY OF THE LETTER DT.29.5.2017 ADDRESSED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P33 TRUE COPY OF THE SAID LETTER DT.7.7.17 ADDRESSED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P34 TRUE COPY OF THE LETTER DT.21.7.2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P35 TRUE COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY IN THE APPEAL FILED BY MR.M.P.THOMAS. EXHIBIT P36 TRUE COPY OF THE LETTER 6.12.2013 ISSUED BY THE PUBLIC INFORMATION OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION. EXHIBIT P37 TRUE COPY OF THE REPLY DATED 25.7.2014 ISSUED TO SRI JOHN NUMPELI. EXHIBIT P38 TRUE COPY OF THE LETTER DATED 1.2.2013 ISSUED BY THE PRINCIPAL, BHAVANS VIDYA MANDIR, ELAMAKKARA TO THE PETITIONER. EXHIBIT P39 TRUE COPY OF THE LETTER DATED 1.2.2013 ISSUED BY THE PRINCIPAL, BHAVANS VIDYA MANDIR, GIRI NAGAR TO THE PETITIONER ADDRESSED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P40 TRUE COPY OF THE LETTER DT.19.10.2015 ISSUED BY THE 3RD RESPONDENT TO THE ENQUIRY OFFICER. EXHIBIT P41 TRUE COPY OF THE PROCEEDINGS OF THE ENQUIRY OFFICER DATED 19.10.2015. RESPONDENTS' EXHIBITS EXT.R2(a) TRUE COPY OF THE MINUTES OF THE MEETING OF THE MANAGEMENT DT.19.5.2017.S EXT.R2(b) TRUE COPY OF MINUTES OF THE MEETING OF THE SCHOOL MANAGEMENT COMMITTEE DATED 5.11.2012 ALONG WITH LIST W.P(c).No.17603/2013 30 OF MEMBERS. EXT.R2(c) TRUE COPY OF THE MINUTES OF THE MEETING OF THE SCHOOL MANAGEMENT COMMITTEE DATED 21.5.2013. EXT.R2(d) TRUE COPY OF THE NOTICE OF THE MEETING DT.17.5.2017. EXT.R2(e) TRUE COPY OF THE MINUTES OF THE MEETING OF THE SCHOOL MANAGEMENT COMMITTEE DATED 19.5.2017.