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2002 DIGILAW 753 (MAD)

Swamy Sadananda v. State of Tamil Nadu & Others

2002-08-06

N.V.BALASUBRAMANIAN, V.S.SIRPURKAR

body2002
Judgment :- V.S. SIRPURKAR, J. 1. Appellant/petitioner is a school-Management. The Management framed some charges against the teacher, fourth respondent herein, and in pursuance of the enquiry, dismissed the said teacher. Under Sec.22 of the Tamil Nadu Private Schools (Regulation) Act (in short 'The Act'), the order of dismissal cannot have any effect unless there is a prior approval of the competent authority under the Act. The Management applied for that approval and the approval was refused. Against that order refusing the approval for the dismissal or as the case may be termination, the Management filed an appeal under Sec.41 of the Act before the Joint Director. That appeal was also dismissed by the Joint Director and hence the Management filed a revision to the Government. During the pendency of the revision, however, a writ petition came to be filed by the Management challenging the order passed by the competent authority as well as the Joint Director. That writ petition, which was registered as W.P. No.16064 of 1996, is said to be still pending. The teacher was dismissed on 8-8-1995 whereas the order was passed by the competent authority on 6-12-1995 and the dismissal of the appeal by the Joint Director was on 25-9-1996 and the writ petition came to be filed in the year 1996. 2. After the pendency of this writ petition for about six years, for the first time, the present writ petition (W.P. No.3429 of 2001) came to be filed on the same set of facts before this Court challenging the constitutionality of Sec.22 of the Act on the ground that the section was bad as it provided untrammelled and uncontrolled power to the competent authority enabling the competent authority to act and decide the issue of approval arbitrarily even without giving any reasons or for that matter even without giving any opportunity for the Management to be heard. The section was dubbed as a provision which confers an arbitrary power on the competent authority and, therefore, contrary to the spirit of Art.14 of the Constitution. That was the main challenge. The other challenge was that the provision was opposed to and in contravention of the spirit of Art.19(1)(g) of the Constitution as the Management could not carry on its profession of running the school and that the restriction imposed by the section is unreasonable restriction. 3. That was the main challenge. The other challenge was that the provision was opposed to and in contravention of the spirit of Art.19(1)(g) of the Constitution as the Management could not carry on its profession of running the school and that the restriction imposed by the section is unreasonable restriction. 3. It is to be seen that all these constitutional challenges which ought to have been raised in W.P. No.16064 of 1996 were not raised there; instead they were raised for the first time in the year 2001 by the present writ petition and in this writ petition, a clear reference was made to the filing of W.P. No.16064 of 1996. The petitioner then says in paragraph 8 as under: "The prayer is general in nature. And it is of far reaching importance and consequences. The point involved in this writ as dealt with separately and finding given thereon." 4. Learned single Judge has dismissed this writ petition predominantly on the ground that firstly a similar and almost identical provision contained in the Gujarat Secondary Education Act, 1972 vide Sec.36 was upheld by the Supreme Court in BHARAT SEVASHRAM SANGH v. STATE OF GUJARAT (1988 -4- SCC 51). The learned single Judge also came to the conclusion that as per the decision of the Apex Court in UNNIKRISHNAN v. STATE OF A.P. (1993 -1- SCC 645), the activities of a school management or an educational management could not be called a 'profession' within the meaning of Art.19(1)(g) of the Constitution. The learned Judge also made a reference to the Division Bench judgment of this Court in T. RAMAMOORTHY v. THE SECRETARY, SRI RAMAKRISHNA VIDYALAYA HIGH SCHOOL ETC. AND OTHERS (1998 WLR 641). It is this judgment of the learned single Judge which is called in question before us by way of this writ appeal. 5. Learned counsel for the appellant Mr. Sankarasubramanian contended that Sec.22 of the Act gives unbridled and untrammelled powers in the hands of the competent authority to refuse the approval and, therefore, such power would tend to become arbitrary power and, therefore, on that count that part of the section is contrary to the spirit of Art.14 of the Constitution. We are afraid, we cannot go into this question for the simple reason in Bharat Sevashram Sangh case, cited supra, more particularly in paragraph 10 thereof, the Supreme Court has completely overruled this attack. We are afraid, we cannot go into this question for the simple reason in Bharat Sevashram Sangh case, cited supra, more particularly in paragraph 10 thereof, the Supreme Court has completely overruled this attack. The Supreme Court took into consideration that the decision of the competent authority was liable to be tested by way of an appeal provided in that Act. Though the learned counsel for the appellant contended that there was a provision of appeal in the Gujarat Act whereas there was none in the present Act, it was pointed out that Sec.41 of the present Act provided an appeal against the order of the competent authority. Considering the language of Sec.22(1) of the Act and further considering that this section is almost pari materia to Sec.36 of the Gujarat Act, which fell for consideration in Bharat Sevashram Sangh case, cited supra, we are of the clear opinion that the matter is governed by the aforementioned judgment of the Supreme Court in Bharat Sevashram Sangh Case, cited supra. Under subsection (2) of the Sec.22, there is an inbuilt protection offered against the competent authority acting in a capricious or arbitrary manner. The very language of the section requires that the competent authority should be satisfied that there are adequate and reasonable grounds for such proposal before approving the dismissal or removal or reduction in rank or termination of appointment. Therefore, it would be incumbent upon the competent authority to give reasons. In this case also, there is no dispute that the competent authority has passed the orders giving the reasons. Be that as it may, even if we do not go to the facts of the present case, the language of subsection (2) is sufficient to suggest that the competent authority has to give reasons. This is besides the fact that his decision is liable to be tested by the appellate authority under Sec.41 of the Act which is identical with the appellate powers in the Gujarat Act. Therefore, the question of Sec.22 of the Act being opposed or contrary to the spirit of Art.14 stands concluded by the aforementioned judgment of the Supreme Court. The contention is, therefore, rejected. 6. Therefore, the question of Sec.22 of the Act being opposed or contrary to the spirit of Art.14 stands concluded by the aforementioned judgment of the Supreme Court. The contention is, therefore, rejected. 6. As regards the second contention that the impugned provision imposes unreasonable restriction on the Fundamental Right of the petitioner to carry on profession, that position also stands concluded in Unnikrishnan Case, cited supra as also the Division Bench judgment of this Court in Ramamoorthy case, cited supra. It must be mentioned here that the petitioner herein is a 'Managing Committee' and not a 'citizen'. We fail to understand as to how the challenge under Art.19(1)(g) could be raised by the Managing Committee but that is quite besides the point. 7. Learned counsel then relied upon the decisions in B.B. Rajwanshi v. State of U.P. and others ( AIR 1988 SC 1089 ); Excel Wear v. Union of India and others ( AIR 1979 SC 25 ) and HARI CHAND SARDAR v. MIZO DISTRICT COUNCIL ( AIR 1967 SC 829 ). All these cases are completely besides the point. They do not consider any provision which is even distantly similar to the provision in question. In Rajwanshi case, cited supra, the provisions of Sec.6(4) of U.P. Industrial Disputes Act fell for consideration and the Supreme Court held that the power of the State Government is unguided and uncanalised. There is not even a distant similarity between Sec.6(4) of the U.P. Industrial Disputes Act and Sec.22 of the present Act. The argument is, therefore, clearly incorrect. Similar is the position with Excel Wear Case, cited supra, which dealt with the challenge to Sec.25-O of the Industrial Disputes Act. There also there is not even a trace of similarity between the sections. Similar is the case with the decision in Hari Chand Sardar case, cited supra. 8. Lastly, learned counsel relied upon the decision in A.N. PARASURAMAN v. STATE OF TAMIL NADU ( AIR 1990 SC 40 ) and more particularly invited our attention to the observations made wherein the Supreme Court had found that where a provision does not lay down any guideline for the exercise of the power by the delegated authority, as a result of which the authority is in a position to act according to his whims and fancies, such provision tends to be arbitrary and discriminatory. There can be no dispute with the proposition of law. However, we fail to follow as to how the present provision can be said to be without any guidelines. The guidelines are loud and clear which can be appreciated from the language of subsection (2) which requires the competent authority to record his reasons for the satisfaction that there are adequate and reasonable grounds for the proposal of dismissal or removal, as the case may be. The guidelines are included in the language of the provision itself. Again, the provisions of the Tamil Nadu Private Educational Institutions (Regulation) Act, have no similarity whatsoever with the impugned section. Therefore, even this challenge fails. 9. Before parting with the judgment, we must express our anguish that the time of the Court should have been taken in prosecuting the writ petition and the writ appeal that too in a writ petition which has been filed six years after the cause of action arose. All these challenges could have been and should have been raised in the earlier writ petition which was filed in the year 1996. Learned counsel for the appellant was fair enough to agree that they were not raised in that writ petition. We fail to follow as to how the said challenges could be raised in a subsequent writ petition even during the pendency of the first writ petition, viz. W.P. No.16064 of 1996. In our opinion, the judgment of the learned single Judge is absolutely correct. We, therefore, dismiss this writ appeal with a cost of Rs.2000/-.