Judgment :- O.P.15822/98 was filed by the petitioner, who is a Dance Teacher, praying for a direction to the Management of Marian Junior College, Kottayam, to reinstate her in service. O.P.17349/98 was filed by the Management of that school, challenging an order passed by the Secretary, Central Board of Secondary Education, holding that the termination of the services of the petitioner in O.P.15822/98 is illegal. So, there Original Petition are heard and disposed of, by this common judgment. 2. O.P.17349/1998. The petitioners are respectively, the educational agency and the Principal of Marian Junior College, which is a Higher Secondary School, affiliated to the Central Board of Secondary Education (CBSE). The 2nd respondent was a Dance Teacher in their school. The 1st respondent is the Secretary of the Central Board of Secondary Education. The brief facts of the case, as stated by the petitioners, are the following: 3. The 2nd respondent was appointed as a Dance Teacher in the petitioners school on a temporary basis. The initial engagement was for a period of one year from 7.8.1989 to 31.5.1990 on a consolidated pay of Rs.600/- per month. Ext.P1 is the agreement executed between the 1st petitioner and the 2nd respondent in this regard. The period of Ext.P1 agreement was being extended from time to time and the 2nd respondent continued as Dance Teacher, on temporary basis. She was lacking dedication to work and was highly irregular in attendance. She was habitually reporting late for work and used to remain absent from duty, even without prior intimation. Though, she was advised to improve her performance she continued with her irregular habits. Her poor performance reflected in the performance of the students also, in the competitions in which they participated. Therefore, they had to engage another Dance Teacher to train the students, which improved their performance in the third Youth Festival. There were complaints from the parents and others, about the conduct and character of the 2nd respondent and on enquiry, it was found that the allegations were correct. So, it was found that the retention of such a Teacher in the School, was not advisable in the interest of the students. Therefore she was terminated from service with effect from 31.12.1996, by letter dated 28.11.1996. 4. So, it was found that the retention of such a Teacher in the School, was not advisable in the interest of the students. Therefore she was terminated from service with effect from 31.12.1996, by letter dated 28.11.1996. 4. While so, the 2nd petitioner was served with Ext.P2 letter dated 14.7.1997 by the 1st respondent, calling upon him to defend his position by sending a self contained note of facts with documentary evidence, if any stating whether the 2nd respondent was removed from service, following the procedure contained in the Affiliation Bye laws of the C.B.S.E. In the said letter, reference to a judgment of this Court in O.P.No.8921/97 dated 28.5.1997 was also made. Ext.P3 is the copy of the judgment in that O.P. The said O.P. was disposed of at the admission stage without issuing notice to the petitioners herein and directing the 1st respondent herein who was the 3rd respondent in that O.P., to consider and pass orders on the complaint filed by the writ petitioner, who is the 2nd respondent herein. The 1st petitioner submitted Ext.P4 reply, detailing the circumstances, under which, the services of the 2nd respondent was terminated. It was stated that the petitioners’ school being a minority institution, is exempted from the procedures relating to disciplinary matters, contained in the Affiliation Bye-laws. It was further stated that the termination of the 2nd respondent was made legally and in good faith. The 2nd respondent was only a Part Time Dance Teacher, appointed to teach Indian dances. Because of her inefficiency the institution failed to get the Trophy during the first and second Youth Festivals. The School engaged another extra Dance Teacher to train the students and it got the maximum points and the Trophy, in the third Youth Festival. The 2nd respondent was remaining absent from the School, owing to her bad character and conduct. The Management received a written complaint from one Mrs. Sudha stating that the 2nd respondent is having an affair with her husband. It is also alleged in the said complaint that she stayed with her husband at Chennai for five days, when she was sent for a celebration in a sister concern of the School at Chennai. The Principal made an enquiry and found that the said allegation was correct. The 2nd respondent’s services were terminated for the above reasons. It is also alleged in the said complaint that she stayed with her husband at Chennai for five days, when she was sent for a celebration in a sister concern of the School at Chennai. The Principal made an enquiry and found that the said allegation was correct. The 2nd respondent’s services were terminated for the above reasons. On the above grounds, the Management prayed for dropping further proceedings, pursuant to Ext.P2. 5. But, the 1st petitioner was served with Ext.P5 communication and also Ext.P5(a) order. By Ext.P5(a) the 1st respondent, after considering the version of the petitioners and the 2nd respondent, held that the termination order passed by the Management was unsustainable, for not following the procedure prescribed for taking disciplinary action in accordance with the Rules and Regulations. The 1st petitioner filed Ext.P6 petition, praying to review Ext.P5(a). But, by Ext.P7, the said petitioners was informed that no appeal or revision lies against Ext.P5(a). Therefore, this Original Petition was filed, challenging Ext.P5(a). 6. The impugned order is attacked mainly on the following grounds. The 1st respondent has no power to interfere with the order passed by the disciplinary authority. Going by clause 44(5) of Chapter VII of the Affiliation Bye-laws, only a court of law can interfere with any disciplinary action taken by the Management. As per clause 49 of Chapter VII of the Affiliation Bye-laws, the 2nd respondent had a right of appeal to the Disciplinary Committee. The motion made before the 1st respondent without invoking that remedy, is unsustainable in law. The termination can be described only as a premature termination of the contract of personal service and the remedy of the 2nd respondent was only to sue for damage. Since Ext.P5(a) is unsustainable. The 2nd respondent was only a temporary employee, appointed on contract basis. The finding in the impugned order that she was a permanent employee is not governed by the Affiliation Bye-laws. The termination of the agreement was necessitated on account of the unsatisfactory performance and neglect of duty by the 2nd respondent. The same cannot be termed as termination for misconduct. Clause 29 of Chapter VII of the Bye-laws deals with the termination of a permanent employee, owing to abolition of post. So, the reliance placed on the said clause vitiates the order. The 1st respondent failed to take into account, the interest of the students. The same cannot be termed as termination for misconduct. Clause 29 of Chapter VII of the Bye-laws deals with the termination of a permanent employee, owing to abolition of post. So, the reliance placed on the said clause vitiates the order. The 1st respondent failed to take into account, the interest of the students. The School in question is a minority educational institution and therefore, the provisions of the Bye laws, concerning disciplinary action are not applicable to it. 7. The 2nd respondent did not file any counter affidavit in this case. But, she has already filed O.P.15822/98, praying for a direction to respondents 1 and 2 therein, to reinstate her in service with backwages and allow her to continue to attend the work in the School. In the said O.P. the 2nd respondent’s case is that she was appointed in the School on a temporary basis, by order dated 7.8.1989 and later, her appointment was made permanent on 7.8.1998. Though, she was a devoted and hard-working teacher she was terminated from service on 31.12.1996, on false allegations. So, she approached this Court. Challenging her termination by filing OP.8921/97. The said O.P. was disposed of by judgment dated 28.5.1997 directing the Secretary, C.B.S.E. to look into her grievance. Pursuant to that the said authority by Ext.P3 order (in O.P.15822/98), which is Ext.P5(a) in this O.P. held that the termination of the 2nd respondent was illegal. In the light of this order, she submitted a letter dated 2.2.1998, before the Principal of the School, praying to reinstate her in service, which was followed by a representation dated 4.2.1998. Feeling aggrieved by the delay from the part of the Management to reinstate her in service O.P.15822/98 was filed, seeking appropriate reliefs. 8. Heard the learned counsel on both sides. The learned counsel for the petitioners only pressed the following points, at the time of hearing. (1) The 1st respondent has no appellate power over the petitioners. (2) Clause 44(5) of the Affiliation Bye laws would show that only the civil court has power to interfere with the termination of service. (3) The 2nd respondent did not invoke the appellate remedy available to her under Clause 49. (4) Against the termination of Ext.P1 contract of service, the only remedy available to the teacher was to file a civil suit. 9. (3) The 2nd respondent did not invoke the appellate remedy available to her under Clause 49. (4) Against the termination of Ext.P1 contract of service, the only remedy available to the teacher was to file a civil suit. 9. The learned counsel for the 2nd respondent made available to me, a copy of the Affiliation Bye-laws and relying on various provisions of the said Bye-laws, contended that the affiliation is granted, subject to satisfaction of the various conditions. If any of them is violated, the affiliation can be withdrawn, after following the due procedure. For taking disciplinary action, the bye laws provide a well-defined procedure. In this case. It was not followed and therefore the 1st respondent is competent to hold that the termination is contrary to the provisions of the bye-laws. The petitioners are bound by the declaration made by the 1st respondent that the 2nd respondent’s termination is illegal and they are liable to act accordingly. Otherwise, it will be a good ground to withdraw the affiliation. Though, the 1st petitioner is a private institution, while running a Higher Secondary School affiliated to the C.B.S.E, it is discharging a public function and therefore, any action taken by it, contrary to the Affiliation Bye-laws, can be subjected to judicial review by this Court and this Court can issue appropriate writs against the Management. It is also contended that in view of the judgment of the Apex Court in T.M.A. Paid Foundation v. State of Karnataka (2002) 8 SCC 481), minority institutions are not exempt from the protection granted to teachers, in the matter of their service conditions. It is also submitted that in view of the judgment of the Apex Court in Sri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (AIR 1989 SC 1607) and also that of this Court in Academy of Medical Sciences v. Regina (2004 (3) KLT 628), the Management is amenable to the writ jurisdiction of this Court and so, this Court can issue appropriate directions to them. 10. The learned counsel also took me through some of the relevant provisions of the Affiliation Bye-laws. Clause 4(I) provides for provisional affiliation for three years, subject to fulfilling of all the terms and conditions of the Affiliation Bye-laws within the said three year period. 10. The learned counsel also took me through some of the relevant provisions of the Affiliation Bye-laws. Clause 4(I) provides for provisional affiliation for three years, subject to fulfilling of all the terms and conditions of the Affiliation Bye-laws within the said three year period. Clause 4(II) provides for regular affiliation of schools, which satisfy all the conditions of the Bye-laws for a period of three years and renewable, thereafter. The institution shall be subject to periodical inspection by the Board to ensure that all the Rules and Regulations of the Board and the Affiliation Bye-laws are obeyed by it. Clause 10(3) provides that the teachers should have well defined conditions of service as per the norms applicable to the State/Union Territory Government Schools. Sub-clause (5) of Clause 10 provides that the teachers should have well defined conditions of service, as per the norms applicable to the State/Union Territory Government Schools. Sub-clause (5) of Clause 10 provides that normally, a teacher should be engaged as a full time teacher, except, in cases where the workload does not justify the engagement of a full time teacher. Clause 17 provides the grounds for withdrawal of affiliation. The violation of the Affiliation Bye-laws can be a ground for withdrawal of affiliation. Clause 13 provides the procedure for withdrawal of affiliation. Under sub clause (1) of Clause 18 the school shall be given an opportunity to rectify the deficiencies and give adequate time. Chapter VII deals with Service Rules for the employee of the schools. Clause 27 deals with probation and Clause 28 deals with confirmation. Clause 42 enumerates the Code of Conduct for the employees. Clause 44 provides the procedure for disciplinary action. Clause 45 deals with the penalties that can be imposed on an employee. Clauses 46 and 47 deal respectively with the procedures to be followed for imposing minor penalty and major penalty. Clause 47 provides for service of charge-sheet, getting an explanation from the employee and also an enquiry into the charges. If the disciplinary authority accepts the findings, a copy of the enquiry report shall be served on the employee. A notice in writing, stating the proposed action shall also be served on him. Only after considering the explanation of the employee, a major penalty can be imposed. Such a major penalty can be imposed by the disciplinary authority, only after getting the approval of the School Management Committee. A notice in writing, stating the proposed action shall also be served on him. Only after considering the explanation of the employee, a major penalty can be imposed. Such a major penalty can be imposed by the disciplinary authority, only after getting the approval of the School Management Committee. Clause 47, which is relevant in this case, is extracted below for convenient reference: “47. Procedure for imposing Major Penalty (1) No order imposing on any employee any major penalty shall be made except after an inquiry is held as far as may be, in the manner specified below: (a) The disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry 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 employee and he/she shall be required to submit within such time as may be specified by the disciplinary authority but not later than two weeks a written statement of his/her defence and also to state whether he/she desired to be hears in person. (b) On receipt of the written statement of defence, or where no such statement is received within the specified time, the disciplinary authority may itself make inquiry into such of the charges as are not admitted or if it considers it necessary to do so appoint an inquiry officer for the purpose. (c) At the conclusion of the inquiry, the inquiry officer shall prepare a report of the inquiry recording his findings on each of the charges together with the reasons thereof. (d) 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,-- (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. (2) No order with regard to the imposition of a major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Committee.” 11. Going by the provisions contained in Chapter IX of the Affiliation Bye laws, the post of Dance Teacher is included among the various posts in it. Therefore, a Dance Teacher is liable to be engaged on a regular basis. In the Affiliation Bye-laws, there is no provision for appointment of teachers on temporary basis or contract basis and to continue them for long periods. As per the C.B.S.E. records, as evident from Ext.P2, the 2nd respondent was a regular teacher from 1990. The Management might have forwarded such a communication to the C.B.S.E. to satisfy the requirement of law. Further, the Management was bound to follow the procedure prescribed by the Affiliation Bye-laws, before terminating the 2nd respondent from service. It is common case that the procedure prescribed in Clause 47 of the Affiliation Bye-laws was not followed for terminating her services. So, the finding of the 1st respondent that the termination of the 2nd respondent was illegal is perfectly legal and valid. 12. It is true the 1st respondent has no appellate power over the Management. But, he has got the power to dis-affiliate the School if it is found that the School is run not in accordance with the Affiliation Bye-laws. He can embark upon an enquiry and find whether the termination was made following the procedure prescribed in the Affiliation Bye-laws, which bind the Management of the School. But, he has got the power to dis-affiliate the School if it is found that the School is run not in accordance with the Affiliation Bye-laws. He can embark upon an enquiry and find whether the termination was made following the procedure prescribed in the Affiliation Bye-laws, which bind the Management of the School. Only that exercise has been done, by the impugned order. The finding in the impugned order is not vitiated for any of the grounds urged by the Management. Of course, the teacher has a right to sue the Management for damages. But, the action taken by the 1st respondent in holding that the termination is illegal, is perfectly within jurisdiction. If the Management does not obey the declaration contained in Ext.P5(a), the 1st respondent can take further action to die affiliate the School. The contention made relying on Clause 44(5) of the Affiliation Bye-laws that the only remedy of a dismissed employee from an affiliated school is to move the civil courts is unsustainable. The said provision only provides the usual general condition in Service Rules that on the termination being set aside by a court of law, the employee shall be deemed to be under suspension. 13. In this case, it is worthwhile to refer to the allegations raised by the Management against the 2nd respondent. In a competition or Youth Festival, all the schools cannot get trophy. If a school fails to get the trophy and the Dance Teacher could be terminated for that every year, teachers of all the schools except the teacher of the school which wins the trophy, will have to be terminated. Further, the complaint of Mrs. Sudha dated 30.3.1997 and the report of the Principal on it, are long after the termination of the 2nd respondent, ordered on 28.11.1996. So, the allegations made in Ext.P4 reply, to support the termination of the 2nd respondent, are plainly untenable. It reminds one of the fable of the Wolf and Lamb. For all the above reasons, the Original Petition is dismissed. 14. O.P.15822/1998. Since, the C.B.S.E. has already taken action in accordance with law, against the Management, it is unnecessary for this Court to decide on the petitioner’s prayer to directly interfere with the matter and issue a writ of mandamus against the Management, to reinstate her in service. For all the above reasons, the Original Petition is dismissed. 14. O.P.15822/1998. Since, the C.B.S.E. has already taken action in accordance with law, against the Management, it is unnecessary for this Court to decide on the petitioner’s prayer to directly interfere with the matter and issue a writ of mandamus against the Management, to reinstate her in service. Having regard to the facts of the case, the 1st respondent is directed to take further action in accordance with law, to compel the Management to implement Ext.P3 order (Ext.P5(a) in O.P.17349/98) and to take action for dis-affiliation of the School. If the said order is not implemented. Action in this regard shall be completed by the 1st respondent within four months from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.