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2023 DIGILAW 1038 (AP)

T. Prithvi Raj v. State Of AP

2023-07-11

D.RAMESH

body2023
ORDER: This Writ Petition under Article 226 of the Constitution of India is filed for the following relief:- “……to issue an appropriate writ, order or direction more particularly one in the nature of the Writ of Mandamus declaring the actions of the 4th respondent-college in dismissing the petitioner from service vide Rc.No.42/A/En/2022-2023, dated 01.09.2022 and not reinstating the petitioner into service in compliance of the directions issued by the 3rd respondent Regional Joint Director of Collegiate Education vide Rc.No.267/A2/2021 dated 24.09.2022 and Rc.No.267/A2/2021 dated 24.09.2022 as void, illegal, arbitrary, violative of Section 79 of the A.P. Education Act, 1982 and Rules made there under and also in violation of Article, 14, 16 and 21 of the Constitution of India and consequently direct the 4th respondent-College to reinstate the petitioner and pass such other order or orders ……” 2. Heard the learned counsel for the petitioner and learned Government Pleader appearing for respondents. 3. The Writ Petition is filed declaring the action of the respondent No.4/College in dismissing the petitioner from service vide proceedings dated 01.09.2022 and not reinstating the petitioner into service in compliance of the directions issued by the respondent No.3/Regional Joint Director of Collegiate Education vide proceedings dated 20.09.2022 and 24.09.2022 is void and illegal. 4. The petitioner is appointed as Lecturer (Telugu) against an aided post and is working as such to the satisfaction of his superiors without any remarks. The petitioner has put in 22 years service as today. While so, a memo dated 07.10.2020 was issued by the respondent No.4/College alleging that the petitioner has made objectionable statements defaming the respondent No.4/College on social media. On such, the petitioner has given his explanation on 10.10.2020 stating that the statements made by the petitioner are nothing but irregularities and illegalities committed by the college. On 19.11.2020 the respondent No.4 has issued a show cause notice to the petitioner as to why the disciplinary action shall not be initiated for violating Rule 24(2)(d) and Rule 25 (1) of the A.P. Private Education Institution Employees Conduct Rules, 1985. Reply to the said show cause notice was submitted by the petitioner on 23.11.2020 and subsequently, the respondent No.4/College has passed an order dated 26.11.2020, suspended the petitioner without considering the explanation submitted by him. 5. Reply to the said show cause notice was submitted by the petitioner on 23.11.2020 and subsequently, the respondent No.4/College has passed an order dated 26.11.2020, suspended the petitioner without considering the explanation submitted by him. 5. Subsequently, a charge memo dated 15.01.2021 was served on the petitioner, leveling 12 charges for violating various Rules and guidelines under the A.P. Education Act, 1982 and the petitioner has made representation dated 16.01.2021 to the respondent No.3, stating that a private person cannot be appointed as an Enquiry Officer as per Rules in vogue and he cannot conduct such enquiry and subsequently the petitioner was reinstated into the service vide proceedings dated 27.01.2021. Thereafter, enquiry officer submitted report on 20.03.2021, concluding that the petitioner is liable for charges leveled against him. 6. While the things stood well, respondent No.4/College has requested respondent No.3 vide letter dated 27.04.2021 seeking permission for termination of the petitioner for the alleged misconduct and the respondent No.3 vide letter dated 21.03.2022 sought clarification from the respondent No.2 wherein directed the respondent No.3 to instruct the respondent No.4/college to conduct the fresh enquiry by appointing another enquiry officer of higher rank to that of Lecturer in cadre and the same instructions were communicated to the respondent No.4 by the respondent No.3 vide letter dated 31.03.2023. 7. Basing on the above said instructions of the respondent Nos.2 and 3, respondent No.4/College has issued another charge sheet cum show cause notice dated 02.05.2022 and the petitioner has submitted his explanation on 21.05.2022 to the respondent No.3 stated that he is unable to attend the enquiry as there is no provision in the A.P. Education Act, 1982 (herein after called as “Act”) for conducting an enquiry afresh. Besides, the petitioner has also made a request to the respondent No.3 vide letter dated 27.05.2022 to regularize the suspension period. But, surprisingly on 08.08.2022 an enquiry report was furnished to the petitioner attributing misconduct on the petitioner and he has submitted his detailed explanation dated 22.08.2022. But, based on the above report contrary to Section 79 (1) of the Act, respondent No.4 passed the present impugned order dated 01.09.2022. 8. Reply to the above said contentions, the respondent No.2 has filed counter. But, based on the above report contrary to Section 79 (1) of the Act, respondent No.4 passed the present impugned order dated 01.09.2022. 8. Reply to the above said contentions, the respondent No.2 has filed counter. Even according to the counter, filed by the respondent No.2 clearly states that the respondent No.4 while dismissing the petitioner from service has not followed the due process as envisage in Section 79 (1) of the Act, which reads as follows:- “79 (1) No teacher or member of the non-teaching staff employed in any Private institution (here in after in this chapter referred to as the employee) shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:” 9. Respondent No.4 has filed a separate counter denying all the allegations except which are admitted specifically. He has further contended that the respondent No.4 is a Private Educational Institution and it does not come under the scope of Article 226 of Constitution of India, hence no Writ under Article 226 of Constitution of India would lie against the private educational institution and further stated that as per the instructions of the respondent Nos.2 and 3, has conducted a fresh enquiry. Despite the enquiry conducted and request made by the petitioner respondent Nos.2 and 3 are not inclined to interfere with the fresh enquiry initiated by respondent No.4. Further, he has stated that as a matter of record the respondent No.4 has addressed a letter to the respondent No.3 with a copy to respondent No.2 wherein the respondent No.4 has placed all relevant correspondent/material, that took place during the relevant point of time including the serious and grave misconduct committed by the petitioner and how the enquiry committee found him guilty and submitted to the respondent No.3 that the proceedings dated 20.09.2022 and 24.09.2022 are not applicable to the instant case and clearly mentions that Section 79 (1) of the A.P. Education Act relied upon by the respondent No.3 has no application to the present case and therefore the orders of respondent No.3 and 4 are not binding. It has been clearly mentioned by the respondent No.4 in their reply dated 24.09.2022 that Section 79(1) relied upon by respondent No.3 as a proviso where it reads “provided no order of dismissal, removal or reduction in rank shall be passed under the sub section without prior approval of the competent authority”. 10. In view of the above, Proviso to Section 79(1) of the Act is applicable only for an order passed for such a situation of dismissal or removal or reduction in rank if it passed under that sub section; whereas the Order dated 01.09.2022 of dismissal of petitioner was passed by the respondent No.4 by virtue of powers conferred by the constituent body of the college which was approved by Syndicate of Andhra University way back in the year 1952. Further the employer-respondent No.4 has a choice either to follow the approved Constitution of college or proviso to sub section 1 of the Section 79 of the Act and the said proviso of Section 79 (1) of the Act does not have any specific embargo on the other options of the employer. Accordingly, the same is not applicable to the petitioner and passed the impugned order. 11. Based on the above pleadings, the learned counsel for the petitioner has submitted that the impugned order dated 01.09.2022 passed by the respondent No.4 is contrary to law, wherein removed the petitioner from service without obtaining permission/approval from the competent authority as required under Section 79 of the Act. Therefore, requested to direct the management i.e., respondent No.4/College to reinstate the petitioner into service immediately and submit compliance report. 12. Learned counsel for the petitioner, further submitted that in fact, as the issue was considered by the respondent No.2 and in his proceedings dated 21.03.2022 directed respondent No.3 to conduct fresh enquiry by appointing another enquiry officer higher rank to that of Lecturer cadre as per the Section 79 of the Act. When the respondent No.2 has given his direction on 21.03.2022 giving permission to the respondent No.3 to take appropriate action as per the Section 79 of the Act, the respondent No.4/college has taken action directly without taking prior permission from the respondent No.3, who is the competent authority. When the respondent No.2 has given his direction on 21.03.2022 giving permission to the respondent No.3 to take appropriate action as per the Section 79 of the Act, the respondent No.4/college has taken action directly without taking prior permission from the respondent No.3, who is the competent authority. He further submitted that, as the issue was already covered by this Hon”ble Court in catena of judgments stating that as per the Section 79 (1) of the Act, institution cannot pass orders either dismissal or removal or reduction of rank without obtaining permission from the competent authority. Hence, in the instant case also the respondent No.4 have passed an order, removing the petitioner from the service vide proceedings dated 01.09.2022 are contrary to Section 79 (1) of the Act. Hence, requested to set aside the same by directing the respondents for reinstatement of the petitioner into the service. 13. Reply to the said contentions the learned Government Pleader for the respondents, has vehemently argued that the Section 79 (1) of the Act is not applicable to the present case as the respondent No.4 has passed the impugned order as per the Constitution of the institution. While passing the impugned order dated 01.09.2022, the respondent No.4 has not invoked Section 79 (1) of the Act; they have passed as per the regulations of the institution. Hence, the Section 79 (1) of the Act would not applicable to the present case. 14. Further, learned counsel appearing on behalf of the respondent No.4 has also taken objection with regard to the maintainability of the Writ Petition as the respondent No.4 is a private institution; the Writ Petition is not maintainable against the private institution. To support his contention he relied on the orders passed by the Allahabad High Court in Tanishk Srivasatava vs State of U.P. Thru. Prin. Secy. Basic Education, Lko. And Others, reported in Writ-C-No.2377 of 2022, wherein the issue raised was Writ against private unaided institution is maintainable or not. 15. The Allahabad High Court as made the following observations as under:- “The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Basic Education, Lko. And Others, reported in Writ-C-No.2377 of 2022, wherein the issue raised was Writ against private unaided institution is maintainable or not. 15. The Allahabad High Court as made the following observations as under:- “The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a “state” within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the CBSE for interfering with the termination of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any.” Hence, as per the above observations Allahabad High Court in the above said Writ Petition has held that the Writ Petition is not maintainable against the private institution. Hence, in the instant case also, the respondent No.4 is a private institution; accordingly, the Writ is liable to be dismissed. 16. Considering the submissions made and on perusing the record, it is clear that Section 79 (1) of the Act starts with the sentence that “No teacher or member of the non-teaching staff employed in any private institution”. Hence, the above proviso of Section 79 (1) of the Act, clearly indicates that it is applicable to all teaching and non-teaching staff of a private educational institution. Hence, the private educational institution is not an exception. Also, it is strange to note that in fact by applying Section 79, the respondent No.4 has requested the respondent No.3 vide proceedings dated 27.04.2021, the permission to take action against the petitioner. The contents of the respondent No.4 vide letter dated 27.04.2021 reads as follows:- “Hence, we request you kindly approve our proposals of imposing penalty of dismissal from service of Dr.T.Prithvi Raj as per education act 1982 under section 79 and college byelaws we haven’t any workload of Telugu”. When the respondent No.4 has invoked the Section 79 of the Act vide letter dated 27.04.2021 and requested the respondent No.3 permission for imposing penalty against the petitioner; now he is taking u-turn and saying that the said provisions is not applicable to the respondent No.4/college. The case law referred by the respondents is not applicable to the facts of this case. The case law referred by the respondents is not applicable to the facts of this case. As per the Section 79 (1) of the Act, clearly demonstrates that if any private educational institution wants to initiate action against their employees (both teaching and non-teaching) for dismissal, removal or reduction in rank or suspension they have to obtain clear permission from the competent authority. 17. No doubt, it is clear that in the present case respondent No.4 had passed an impugned order dated 01.09.2022 without obtaining the permission from the competent authority. Accordingly, the same is declared as contrary to the proviso of Section 79(1) of the Act and accordingly, it was set aside and further directing the respondent No.4 to take immediate action as per the directions issued by the respondent No.3 dated 20.09.2022 by reinstating the petitioner into the service with all consequential benefits. 18. With the above said directions, the present Writ Petition is allowed. There shall be no order as to costs of the Writ Petition. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.