Baidyanath Bose v. Sudha Roy — 1965 DIGILAW 219 (CAL)

JUDGMENT 1. THIS is a Second Appeal by the members of the Managing Committee of the Girls' School called Basanta kumari Balika Vidyapith of Chakdah. The dispute is between the acting headmistress Sm. Sudha Roy who was the plaintiff and the other members of the Managing Committee who were the defendants. The suit as framed has many peculiar features. The plaintiff brought the suit for a declaration that she was still a teacher of the school, for a declaration that the order of dismissal was ultravires, illegal and void and for an injunction restraining the principal defendants, or in the alternative, the Managing Committee from interfering with the plaintiff's right and duties as a teacher. 2. THE plaintiff is a permanent teacher of the school. She was appointed on or about 18th June, 1951 and had put in more than 10 years of service in this school. Sometime in July, 1953 she was appointed Assistant headmistress. Thereafter I am told by the learned advocate for the Managing committee of the School that she was appointed acting Headmistress in august, 1962. (?) It is her case that she was dismissed by a letter of termination of her service which is described also as a notice of the termination dated the 22nd January, 1962. By this notice of her termination, she was asked to hand over charge from the 24th January, 1962. This notice of termination of her service also offered her three months' pay in lieu of notice. By Circular No. 431 Oct. 153 dated the 1st October, 1953 on the subject of resignation by or termination of service of a teacher, of the Board of Secondary Education, west Bengal, it was provided inter alia as follows : - "It is notified that the service of a permanently appointed teacher may not be terminated without giving three months' notice." As three months' notice could not be given, therefore, three months' pay in lieu of a notice was offered to the plaintiff by the Managing Committee. 3. THE dispute has a long history and there is complete dis-agreement between the Secretary of the School and the plaintiff. There are mutual allegations against one another. The facts appear to be this that there was a previous suit by the plaintiff which was dismissed for default. 3. THE dispute has a long history and there is complete dis-agreement between the Secretary of the School and the plaintiff. There are mutual allegations against one another. The facts appear to be this that there was a previous suit by the plaintiff which was dismissed for default. There the secretary, Board of Secondary education directed the Managing Committee of the School to withdraw the suspension order which they had issued, but at the same time directed the Managing committee to proceed against the plaintiff de novo strictly according to the rules after her reinstatement. There was a charge sheet against the plaintiff again on the old grounds as well as on some other grounds. The Managing committee contends that those charges were serious and well founded. Both the courts have taken the view that the charges really were vague and not established and the trial court came to the finding that except charge No. 3, no other charge was established at all. Charge No. 3 was that the plaintiff had violated the code of conduct and official etiquette by sending series of chits to the Secretary of the nature of official correspondence which have been marked exts. A (19) and A (20 ). The breach of conduct appears to consist in the fact that the Secretary was not properly addressed, that the chits did not contain even the word 'sir'. But then the trial court had found that even, this charge was not so serious as to justify dismissal of a person. 4. ALTHOUGH the trial court came to the view that the plaintiff was not guilty of any of those charges except charge No. 3 and although that charge no. 3 was not so serious as to justify dismissal, yet he came to the conclusion that on that ground, the dismissal order could not be illegal and invalid. The main reason that weighed with the trial court was that this matter was within the realm and the domain of private contractual relationship and even when the dismissal was alleged to be wrongful by the master in the sense that there was no just cause or reason, yet the master has a right to dismiss, provided of course there is a proper notice of termination of service on payment of wages or salary in lieu of such notice. The trial court was apparently of the view that in case of such wrongful dismissal the only remedy for the plaintiff was a suit for compensation. On that ground the trial court dismissed the plaintiff's suit. On appeal the lower appellate court allowed the appeal and set aside the judgment and decree of the trial court. Bitter criticism has been made against the order and judgment of the lower appellate court. It will be appropriate and relevant to quote the relevant portions of the order and judgment of the lower appellate court which are as follows : - "The judgment and decree of the learned Munsif are hereby set aside and the original Title Suit no. 68 of 1962 of the Munsif Court of Ranaghat is hereby decreed on contest. The plaintiff do get a decree for declaration that the order of dismissal, passed against her from her service as a member of the teaching staff of Basanta Kumari balika Vidyapith, Chakdah, is illegal and void, she do get also a further declaration to the effect that she is still a teacher of the school. The plaintiff do get also a decree for injunction restraining the principal defendants or the managing Committee of the said school from interfering with her right and duties as a teacher of the school. " 5. FROM this the Managing committee filed this Second Appeal. The main argument in this appeal is that the order for reinstatement cannot be made. In substance, the submission is that the service of a teacher or headmistress on the facts and records of this case does not came within the principles of (1) Civil servant of the State under Article 311 of the Constitution, or (2) re-instatement of workers under the Industrial Disputes Act, or (3) a statutory corporation or a statutory body governed by a statute. In support of this contention, reliance has been placed on certain decisions to which I shall make a brief reference. In the first place, the appellant relies on the decision of the Supreme Court in (1) Dr. S. Dutt v. University of delhi, reported in A. I. R. 1958 S. C. 1050, dealing with a case of an award under the Delhi University Act. In the first place, the appellant relies on the decision of the Supreme Court in (1) Dr. S. Dutt v. University of delhi, reported in A. I. R. 1958 S. C. 1050, dealing with a case of an award under the Delhi University Act. At page 1054 the Supreme Court obsereved : "As the award in this case directs specific enforcement of a contract of personal service, it involves a legal proposition which is clearly erroneous. " 6. THAT case was related to a dispute between the Professor of the university of Delhi and the University authorities. The next case to which reference may be made and on which really respondents relied is the subsequent Supreme Court decision in (2)S. R. Tewari v. The District Board, agra, reported in A. I. R. 1964 S. C. 1680, and specially on the observation made at page 1683 that Dr. S. B. Dutt's case was not a case in which the invalidity of an Act done by the University on the ground that it, would infringe any statutory provision was in issue. Nevertheless, it was pointed out by the supreme Court in Tewari's case at page 1683 that the declaration that the professor still continued to be a professor of the University disclosed an error apparent on the face of the award, because it sought to enforce a contract of personal service. On the basis of these decisions it is contended for the appellants that here also a teacher's service is a personal service and it canont be enforced in the manner in which the lower appellate court has tried to do by declaration and injunction in the form allowed. In fact, reliance is placed on section 21 (b) of the Specific Relief Act as a bar to such a suit. Reference in this connection is made by the appellants to the statutory illustrations to section 21 (b) of the Specific Relief act. I am inclined to accept the submission made on behalf of the appellants on this point. In fact, reliance is placed on section 21 (b) of the Specific Relief Act as a bar to such a suit. Reference in this connection is made by the appellants to the statutory illustrations to section 21 (b) of the Specific Relief act. I am inclined to accept the submission made on behalf of the appellants on this point. This court cannot make an order of re-instatement in the facts of the present case, the contract of service between the teacher and the Managing Committee of the school in this case is not a kind of contract to which can be applied the doctrines applicable to (a) cases under article 311 of the Constitution, or (b)cases under the Industrial Disputes Act for re-imstatement of workers in industrial establishment, or (c) cases of services under statutory corporations and bodies. The dismissal in this case is wrongful in the sense found by the trial court. A wrongful dismissal does not mean that court will have to reinstate the wrongfully dismissed person. In common law the ordinary remedy of an aggrieved person in such a case is damages for wrongful dismissal and not re-instatement. Unless, therefore, the plaintiff respondent in this case can show that she comes within any of these three exceptions of (1)Under Article 311 of the Constitution, (2) Industrial Disputes Act, and (3) a statutory Body, she cannot resist this appeal. Now plainly enough she is not a Civil Servant within the meaning of article 311 of the Constitution. Equally plainly enough she is not a worker under the Industrial Dispute Act. Mr. Sinha :for the respondent who very ably argued this appeal for the plaintiff naturally, therefore, fell upon the principles af Statutory Bodies. It is necessary to examine his submission on this point. 7. HIS argument is that the managing Committee of the School is a statutory body under the Secondary education Act. In support of this contention, he draws my attention to the rules for management of non-government high schools including aided schools made by the Government under powers conferred under Sections 61 and 62 of the West Bengal Secondary education Act, 1950. Incidentally, the present school is an aided school. In support of this contention, he draws my attention to the rules for management of non-government high schools including aided schools made by the Government under powers conferred under Sections 61 and 62 of the West Bengal Secondary education Act, 1950. Incidentally, the present school is an aided school. By rule 25 of those rules, it is prccvided inter alia "in the case of aided schools, the power of the Committee of appointing and removing teachers, granting promotion and increment shall be exercised subject to the approval of the board of Secondary Education who will consider the recommendation of the director of Public Instruction, West bengal, before granting approval in the matter." 8. IN fact the resolution of the managing Committee of the School in this case itself resolved and did send this resolution to the Board of secondary Education in compliance with rule 25. No approval of the Board, has been obtained in this case. The appellant managing Committee of the School points out that there is no fault oi the appellant at all. The Managing committee sent it for approval of the Board of Secondary Education. The fact remains that the plaintiff carne to the court on the 6th February 1962, almost within a fortnight after her dismissal on the 22nd January, 1962. Naturally while the suit was pending, the Board of Secondary Education held its hands in abeyance. These rules for management of aided schools provide inter alia for the constitution of the Managing Committee and the register of eligible voters for the Constitution of the Managing committee. The Headmaster under these rules is an ex-officio member of the managing Committee. The constitution of the Committee is subject to the approval of the Beard of Secondary education which retains the power to approve of Special Constitution of committee in special cases or classes of cases and also to supersede a Managing committee under Rule 6, 9. IT is also noteworthy that the west Bengal Secondary Education Act, 1950, makes express reference to the managing Committees of the Schools under various Sections such as Section 2 (i), Section 4 (16), Section 25 (1) (g), section 30 (1) (f), Section 34 (3) or (4)and proviso to Section 35 (2) of the Act. IT is also noteworthy that the west Bengal Secondary Education Act, 1950, makes express reference to the managing Committees of the Schools under various Sections such as Section 2 (i), Section 4 (16), Section 25 (1) (g), section 30 (1) (f), Section 34 (3) or (4)and proviso to Section 35 (2) of the Act. The rule-making power under which the rules of management and constitution of the aided schools are being guided have already been noticed to have been made under Sections 61 and 62 of the Act. 10. PURSUING his argument to establish the point that the Managing committee of an aided school is guided by statute and statutory rules, Mr. Sinha for the respondent makes a final bid to say that re-instatement is an expressly recognised remedy in case of a dismissed teacher as provided in Rule 7 of the regulations providing for the manner of hearing and determining appeals from decisions in dispute between the teacher and Managing Committee of the High Schools by the Appeal committee under Notification No. 1016-EDb /sb-14/54 dated the 8th February, 1955 of the Education Department. It is necessary to appreciate what the appeal Committee in this connection is. I have already made a reference to section 30 (1) (f) of the West Bengal secondary Education Act, 1950, which is the Act which governs this case. I shall now refer to Sub-section (3) of section 30 of that Act which provides as follows : -"it shall be the duty of the committee (Appeal Committee) to hear and determine appeals from decisions in disputes between teachers and Managing Committee of high Schools referred to the committee in accordance with regulations made in this behalf. " It is those regulations which have been made and which I have just mentioned. " It is those regulations which have been made and which I have just mentioned. Now regulation 7 (2)provides inter alia as follows : - "The Appeal Committee may, on a consideration of all the materials before it, (2) in an appeal against an order of discharge or dismissal, (a) allow the appeal and order either that the teacher be reinstated, or be paid a gratuity calculated at the rate of one month's salary for each completed year of service subject to a maximum of 12 months' salary, if it is of the opinion that the grounds of discharge or dismissal are insufficient and inadequate or (b) dismiss the appeal, if it is of the opinion that there are no good grounds for interference with the order. " Regulations 8 and 9 provide inter alia that the Appeal Committee may also grant interim relief to the appellant find also dispose of the appeal as expeditiously as possible without any avoidable delay. 11. ON the strength of these Secs. of the West Bengal Secondary educacaticn Act, the rules and the regulations and the circulars mentioned above, Mr. Sinha very forcefully contends before me that here is an appropriate case of the Managing Committee of a school regulated by statutes, statutory rules, statutory regulations and statutory circulars and is not to be treated as just an ordinary case of a private master and servant under a private contract of service. He contends that reinstatement is expressly recognised by regulation 7 as quoted above. 12. I am considerably impressed by this argument of Mr. Sinha for the respondent. But then his difficulty is that the respondent never made a reference to the Appeal Committee. It is the Appeal Committee alone which has the power to order reinstatement. Therefore, the respondent without going to the Appeal Committee cannot come to a Civil Court and ask for reinstatement. I have not been able to find out any authority where a Civil court independently on its own in the facts such as a case as the present can pass a decree or order for reinstatement even in case of wrongful dismissal. The remedy appears to me to be only for damages in that eventuality. I have not been able to find out any authority where a Civil court independently on its own in the facts such as a case as the present can pass a decree or order for reinstatement even in case of wrongful dismissal. The remedy appears to me to be only for damages in that eventuality. If the plaintiff respondent wants reinstatement then she has got to adopt the procedure laid down by the Statute and ask for reinstatement from the statutory body which the Statute has created and which the statute has expressly clothed with the power of re-instatement. It is not for this court to be the substitute for the Appeal Committee in tacts of this case. This point can also be viewed from another angle. In making an order under section 21 of Specific Relief act or making a declaration that the plaintiff is still continuing as a, teacher of the School under Section 42 of the specific Relief Act or even granting an injunction to the plaintiff restraining the School Committee from interfering with her duties as a teacher the Court exercises a discretionary power in the nature of an equitable relief although in India granted by the Statute of specific Relief Act. Nevertheless the discretion is always with the Court. To force a teacher on the Managing committee where she is not wanted may not in the facts of this case be conducive either to the cause of education, school or even the plaintiff teacher herself. On that ground the court would be justified in not exercising that discretion to grant reinstatement even if it had the power to do 90, as it has the power to grant injunction. This is only on the exercise of the court's discretion in respect of such a relief as reinstatement or injunction where there has been a wrongful dismissal from service. In that view of the matter it will not be necessary to discuss such decisions as (3) State medical Faculty of West Bengal v. Kshiti Bhusan Dutt, 64 C. W. N. 842, at pages 854 to 857, the Special Bench, decision in (4) Nripendra Nath Bagchi v. Chief Secretary, Government of West bengal, 65 C. W. N. 361, at page 383 which is recently affirmed by the supreme Court, and (5) Barada Kanta adhikari v, The State of West Bengal, a. I. R. 1963 Cal. 161. 13. 161. 13. FOR these reasons while allow the appeal and set aside the judgment and decree of the lower appellate court as quoted above, I make it quite clear that : (1) The Managing Committee of the School can remove the teacher only subject to the approval of the Board of the Secondary Education under rule 25 of the rules for the management of nongovernment high schools including aided schools; (2) Here in the facts the approval not having yet been obtained the removal cannot in law be complete unless such approval is given; (3) I direct the appellant to move the Secondary Board of Education as expeditiously as possible under rule 25; (4) I also direct the Secondary board of Education to consider this question under rule 25 whether it should grant approval or withhold approval in the light of the fact that almost all the charges have failed and even the one charge that has succeeded has been held by the trial court not to justify the dismisssal; and (5) Whatever the result of the decision of the Board of Secondary education under rule 25 as above the parties will have further liberties to take proceeding before the Appeal committee under section 30 of the Act and regulations made thereunder for an appropriate decision on them. In other words, this appeal is allowed without prejudice to the rights of the parties specially mentioned in the five points enumerated above. There will be no order as to costs of this appeal. 14. MR. Sinha for the respondent drew the attention of the Court that even the plaintiff's arrears of salary including the permissible allowances before the termination of her service have not been paid and are due. Mr. Saha for the appellant has rightly agreed to pay all arrears of salary including the permissible allowances due to the plaintiff prior to the institution of the suit. In calculating such salary etc., the period for which she actually worked as acting Headmistress, she should be paid at the rate of salary including the permissible allowances of the head mistress. Saha for the appellant has rightly agreed to pay all arrears of salary including the permissible allowances due to the plaintiff prior to the institution of the suit. In calculating such salary etc., the period for which she actually worked as acting Headmistress, she should be paid at the rate of salary including the permissible allowances of the head mistress. This payment for arrears of salary are agreed by the learned Advocates on either side to be paid as soon as possible and if necessary for that purpose the appellant will be at liberty to withdraw the money already deposited in Court and make such payment to the plantiff for the arrears of her salary due at the lime of the tilling of the suit.