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2013 DIGILAW 707 (PNJ)

Ravinderjit Kaur v. Punjab School Education Board

2013-05-24

Rakesh Kumar Garg

body2013
JUDGMENT Mr. Rakesh Kumar Garg, J. (Oral):- By filing the instant writ petition, the petitioner is seeking issuance of a writ of certiorari for quashing of order dated 01.08.2007 whereby, his services were terminated, with a further prayer to reinstate her with all consequential benefits. 2. Suffice is to say that the petitioner is an employee of a privately managed recognized school/ institution i.e. respondent No.6. Against his termination order dated 01.08.2007, the petitioner has approached the Educational Tribunal, Punjab, Chandigarh by way of appeal No.17 of 2009. However, vide order dated 16.12.2009, the appeal has been dismissed, holding, that the educational tribunal has no jurisdiction to entertain the petition filed on behalf of an employee of unaided privately managed school. 3. At this stage, it may be noticed that in Civil Writ Petition No.5471 of 2012 titled as Sandesh Kumar vs. The State of Punjab and others, [2013(2) Law Herald (P&H) 1721] : decided on 27.11.2012, filed by an employee of unaided privately self financed college, it has been specifically held that the educational tribunal has the jurisdiction to entertain the issue with regard to service disputes between the management and the employees. Para Nos.3 to 10 of the aforesaid judgment read thus:- 3. Learned counsel for respondent no.5 raised a preliminary objection stating that the College is unaided private self financed institution. The services of the petitioner are governed by the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974, hence, the jurisdiction pertaining to the service matters of respondent no. 5 college lies with the Educational Tribunal. In support of his plea, reliance was placed upon the observations made by Hon’ble the Supreme Court in T. M. A. Pai Foundation and others vs State of Karnataka and others JT 2002 (9) SC 1, where it was required that for redressal of the grievances of the teachers, Educational Tribunal be set up. Amendment was made in the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for short, ‘the Act’) providing for constitution of Tribunal in the State of Punjab. The petitioner, if so, advise, has to avail of his remedy before the Tribunal. 4. Amendment was made in the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for short, ‘the Act’) providing for constitution of Tribunal in the State of Punjab. The petitioner, if so, advise, has to avail of his remedy before the Tribunal. 4. On the other hand, learned counsel for the petitioner submitted that in terms of the provisions of the Act, dismissal or removal or reduction in rank of an employee cannot be ordered except after enquiry for which there is a procedure provided in Section 4 thereof. For imposition of penalty of dismissal or removal, approval of the Director is mandatory. It is only the order of the Director which is appealable before the Tribunal. As in the present case no approval of the Director has been sought, the order passed by the College Authorities itself is not appealable before the Tribunal. 5. Heard learned counsel for the parties on the issue of maintainability of the writ petition in this court. 6. The fact which is not in dispute is that the respondent college is an affiliated college. Hon’ble the Supreme Court in T.M.A. Pai Foundation’s case (supra), observed as under:- 64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like fosterparents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriately relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.” 7. In terms of the observations made by Hon’ble the Supreme Court in the aforesaid judgment, amendment was made in the Act and Section 7-A was added therein for constitution of Educational Tribunal. The Statement of Objects and Reasons as provided in the Act are as under:- “Whereas Hon’ble Supreme Court of India in C.W. P. No. 317/ 1993 and other connected writ petitions (T.M.A. Pai Foundation versus State of Karnataka and others) had directed, - vide its judgment dated 31st October, 2002, to create Educational Tribunals for redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service. 2. Whereas the Government of Punjab has decided to create Educational Tribunal and for that purpose it has been decided to amend “The Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974” so that the judgment of Hon’ble Supreme Court of India is complied with.” 8. In terms of provisions of Section 7-A (12) of the Act, the Tribunal has the jurisdiction to hear all cases of disputes between the ‘Managing Committees’ and the ‘employees’, as defined in the Act and the Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1979. The term affiliated college has been defined in Section 2 (a) of the Act. Respondent no. 5 is an affiliated college, is not in dispute. Section 2 (e) defines the term “employee” which means a person in the employment of an affiliated college and excludes a work-charged employee. Hence, the Educational Tribunal constituted under the Act will have jurisdiction to entertain a lis between the management and the employee. 9. Respondent no. 5 is an affiliated college, is not in dispute. Section 2 (e) defines the term “employee” which means a person in the employment of an affiliated college and excludes a work-charged employee. Hence, the Educational Tribunal constituted under the Act will have jurisdiction to entertain a lis between the management and the employee. 9. The contention of learned counsel for the petitioner that the procedure provided under the Act has not been followed, hence, the petitioner will not have the remedy to approach the Tribunal is merely to be noticed and rejected. Violation of an established procedure, if applicable, may be a ground to challenge an order passed against an employee. The same itself will not oust the jurisdiction of the Court/ Tribunal to entertain the list. 10.For the reasons mentioned above, in my opinion, the preliminary objection raised by learned counsel for respondent no. 5 is sustainable. The Tribunal will have the jurisdiction to entertain the issue. Hence, the present writ petition is transferred to the Tribunal for adjudication of the lis between the parties. The Tribunal shall not decide the same as a writ petition rather it should be assigned a number as is given by the Tribunal to the cases filed before it.” 4. It may be noticed at this stage that there is hardly any difference in the provisions of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 and the Punjab (Security of Service) Privately Managed Recognized Schools Employees Act, 1979, so far as definition of the employees is concerned. 5. Thus, in view of the aforesaid proposition of law as answered by this Court in CWP No.5471 of 2012, this Court is of the opinion that the Education Tribunal has jurisdiction to entertain the service disputes with regard to an employees of unaided Privately Managed Recognized Schools, consequently Annexure P-10 is quashed and matter is remanded back to the Education Tribunal for a fresh direction on merits. 6. Parties are directed to appear before the Educational Tribunal on 08.07.2013, for further proceedings. Writ petition stands disposed of. --------0.B.S.0------------