A.B Chaudhari, J.:— In W.P Nos. 722 of 2006 and 6162 of 2005 the learned Single Judge of this Court found that two Division Benches of this Court have taken divergent views as to whether the Head Master of a school is a Chief Executive Officer (C.E.O) as defined in Rule 2(c) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short M.E.P.S Rules) for the purposes of holding disciplinary enquiry against the Head Master. In the wake of divergent views, learned Single Judge by order dated 31-8-2006 held that since there were conflicting decisions of this Court on the issue, it was necessary to have the legal position settled by a larger Bench. Accordingly, the papers were placed before the Hon'ble Chief Justice who was pleased to constitute the Full Bench and that is how the Reference is now required to be heard and decided by this Full Bench.
2. The questions which arise for our consideration and which are required to be answered by this Full Bench are framed as under:
(i) “Whether the Head Master of a school by virtue of his position as such becomes the Chief Executive Officer, as defined in Rule 2(c) of the M.E.P.S Rules, 1981 as held in the case of Kankubai Shravikashram Trust v. Kamal w/o Dattatraya Khajurkar, reported in 1992 Mh. L.J 216, or whether “Such Headmaster would be the Chief Executive Officer only if he is empowered to execute the decisions of the management, as held in the case of Shri Govind Bal Mandir Shikshan Sanstha v. Suhas Dattatraya Kogekar, reported in 1988 (II) C.L.R 1.”
(ii) “Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2)(b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981.”
3. The facts leading to filing of the above petitions are as under:—
4. In W.P No. 722 of 2006, the School management challenged the judgment and order dated 23-1-2006 rendered by the School Tribunal, Nagpur, in Appeal No. STN/26/2005, by which the School Tribunal set aside the termination order dated 28-7-2005 of respondent No. 1-Headmaster. The Tribunal set aside the said termination order on the ground that the statement of allegations against respondent No. 1 was not issued by the President of the management and consequently in terms of the judgment in the case of Kankubai (supra) the enquiry stood vitiated rendering the termination illegal. The Tribunal also held that the judgment in the case of Kankubai was later in point of time than the judgment in the case of Shri Govind Bal Mandir Shikshan Sanstha (supra) and therefore the judgment in Kankubai's case was binding on it.
5. In W.P No. 6162/06, the petitioner who is the Head Master, challenged the judgment and order passed by the School Tribunal on 31-8-2005 rendered in Appeal No. STC 25 of 2001. One of the grounds of challenge in his appeal as well as in the present petition is that the petitioner/Head Master being the Chief Executive Officer, as held in Kankubai's case, statement of allegations were required to be issued by the President of the management and not by the Secretary of the management and, therefore, the enquiry was vitiated. The Tribunal also held that one Kashinath Nikhade was appointed as Chief Executive Officer by the management and that the petitioner had failed to show that he was empowered to act as Chief Executive Officer by the management within the meaning of Rule 2(c) of the Rules of 1981. Consequently, the Tribunal dismissed his appeal.
6. We have heard Advocate B.G Kulkarni and Advocate Parchure for the petitioners and Advocate Gode for respondent No. 1 in Writ Petition No. 722 of 2006 and Advocate Parchure for the petitioner and Advocate Jibhkate for respondent No. 1 in Writ Petition No. 6162/06 and A.G.P Mrs. Dangre for respondent No. 2 in both the petitions.
7. Advocate Kulkarni appearing on behalf of the petitioners in Writ Petition No. 722/2006 submitted that the view taken by this Court in the case of Shri Govind Bal Mandir Shikshan Sanstha (supra) is the correct view. Mr. Kulkarni invited our attention to the relevant Rules and submitted that the view taken by this Court in Kankubai's case does not lay down the correct law.
8. Mr. Gode, learned counsel appearing for respondent No. 1 submitted that the view taken in Kankubai's case is the correct view. He submitted that in the definition of Chief Executive Officer, “correspondent” is included and as per Rule 9.1 of the Secondary School Code, the Head of each recognised school shall act as correspondent. Consequently, as held in Kankubai's case, the Headmaster being a correspondent, as mentioned in Rule 9.1 of the Secondary School Code, is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules. Mr. Gode further submitted that it is not necessary for the Secretary, Trustee, correspondent that they should be empowered by the management to act as Chief Executive Officer because according to him the definition of Chief Executive Officer shows that the Secretary, Trustee or the correspondent are the Chief Executive Officer. He then argued that if the management wants to empower any other person by whatever name called then such person is required to be especially empowered by the management. He, therefore, concluded by saying that the view taken in Kankubai's case is correct.
9. Mrs. Dangre, A.G.P appearing on behalf of respondent No. 2 (in both the petitions) submitted that the view taken by this Court in Govind Bal Mandir Shikshan Sanstha's case is the correct view. In support of her submission, she placed reliance upon sub-rule 4(1) of Rule 33 of the Rules.
10. Before considering the submissions made by learned counsel, it would be appropriate to have a close look at some of the provisions of the Act and Rules. Section 2(g) of the Act, reads as under:—
“2(g) “Head of a school” or “Head” means the person, by whatever name called, in-charge of the academic and administrative duties and functions of a school conducted by any management and recognised or deemed to be recognised under this Act, and includes a Principal, Vice-Principal, Headmaster, Headmistress, Assistant Headmaster, Assistant Headmistress, or Superintendent thereof;
Rule 2(c) defines Chief Executive Officer as under—
“Chief Executive Officer” means the Secretary, Trustee Correspondent or a person by whatever name called who is empowered to execute the decisions taken by the Management.”
11. From the above definition it is clear that it is for the management to empower the Secretary, a Trustee, a correspondent or a person by whatever name called to execute its decisions. What is therefore contemplated is a positive act on the part of the management in specifically empowering a person to act as Chief Executive Officer. Rule 15 relates to writing of confidential reports etc. and sub-rule (1), which is relevant, is quoted below:
“The confidential reports shall be written annually in the respective Form in Schedule “G”. The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively…….. If the Head or a teacher is the Secretary of the management the confidential report in his respect shall be written by the President of the management.
(2) The confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief Executive Officer and the President of the management, respectively. The confidential report of the Head or a teacher written by the President shall be reviewed by the Managing Committee.”
12. It is also necessary to quote Rule 16(1) which reads thus:
“Leave shall not be claimed as a matter of right. Discretion to grant, refuse or cancel leave (other than casual leave) is reserved — (i) in the case of the teaching and non-teaching staff (other than the Head), with the School Committee and (ii) in the case of the Head, with the management.
13. Rule 16(4) reads as under:
“Casual leave may be granted to the teaching and non-teaching staff other than the Head, by the Head, and to the Head by the Chief Executive Officer or by the management if the Head himself is the Chief Executive Officer…..”
14. Rule 18(1) which relates to discharge certificate reads as under:
“The Head shall issue a Discharge Certificate in the form in Schedule “H” to an employee (other than the Head himself) who leaves service after due notice or to an employee whose services are terminated. In the case of the Head, such a Discharge Certificate shall be issued by the Chief Executive Officer, and if the Head himself is the Chief Executive Officer, by the President.”
15. Rule 33(4) reads as under:
“The employee under suspension shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. If such employee is the Head and also the Chief Executive Officer, he shall obtain the necessary prior approval of the President.”
16. Schedule D in Rules of 1981 which provides for order of appointment, reads as under:
SCHEDULE ‘D’
[See rule 9(5)]
Order of Appointment
No.Date
Shri/Smt……………………………………………
With reference to your application dated …….. I have the pleasure to inform you that you are hereby appointed as ………….. on Rs.……… per month in the scale of Rs. ……… with effect from ……… or the date you report for duty. You will be entitled to allowances such as compensatory local allowance, house rent allowance and dearness allowance as specially sanctioned by Government from time to time.
2. *Your appointment is purely temporary for a period of ………. months/years from ………. in the leave/deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice.
Your appointment is on probation for a period of two years.
3. The terms of your employment and conditions of service shall be as laid down in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules made thereunder.
4. You shall have to undergo a medical examination by Dr. …….1 within three months from the date of joining the post. Your appointment shall be conditional pending the receipt of physical fitness certificate from the doctor whose name is mentioned above.
5. You are requested to acknowledge receipt of this order of appointment and communicate the acceptance of the appointment within ……… days from the date of receipt of the same.
6. If no reply accepting the appointment is received within the period mentioned in paragraph 5 the order shall be treated as cancelled.
Yours faithfully,
Head Master and Secretary of the School Committee (in the case of appointment order of teaching and non-teaching staff of the school excluding the Head Master/Assistant Head Master).
(SEAL) Chief Executive Officer (in the case of order of appointment of Head Master/Assistant Head Master).
SCHEDULE ‘I’
[See Rule 22(1)]
Duties of employees
1. Duties of the Head—
(1) ……….
(2) Duties with regard to general administrative matters-
17. The Head shall—
(h) supervise, control and co-ordinate the work of his assistants, be responsible for their efficiency and discipline and report forthwith to the Chief Executive Officer of the Management, cases, if any, which may come to his notice of misconduct or breach of discipline among his assistants.
18. Upon careful consideration of the above Rules, we find that the Head is the Head simpliciter and he is subordinate to the Chief Executive Officer However, if the Head is also empowered by the Management as Chief Executive Officer, he becomes subordinate to the President.
19. Now looking to the definition of Chief Executive Officer we find that after the word “correspondent” the word “or” occurs in the said definition. It is well settled that the word “or” and the word “and” are at times read as vice-versa to give effect to the manifest intent of the legislature. In the case of Fakir Mohd. (Dead) By Lrs. v. Sita Ram., reported in (2002) 1 SCC 741, the Apex Court observed in paragraphs 6 and 7 as under:
“We find it difficult to agree with the interpretation so sought to be placed by the learned counsel for landlord. In our opinion, clause (a) and (b) of sub-section (3) are separated by the word “or” which is disjunctive and failure of payment by any of the two methods for the fault of the landlord would enable the tenant to deposit rent in the Court and such deposit shall be a valid deposit so as to be deemed to be a payment or tender of rent due within the meaning of sub-section (4) of section 19-A. The opening part of sub-section (3) of section 19-A provides for three modes of payment without intervention of Court. These are: (i) personal payment of rent to the landlord, (ii) remitting the amount by postal moneyorder, and (iii) depositing the rent due in the bank. The use of the word “or” therein manifests the legislative intent that such personal payment, remittance or deposit are three alternative methods of payment. This conclusion is reinforced by the legislative drafting of sub-section (4) which provides that the obligation of the tenant to pay or tender the rent due, as contemplated by sub-section (1), shall be deemed to have been fulfilled if the rent due has been paid, remitted or deposited by any of the methods specified in sub-section (3) i.e paid personally or remitted by postal money order or deposited in the bank. However, clause (c) of sub-section (3), while speaking of the several methods of payment, uses the word “and” in between methods of remittance by postal money order and of depositing in bank account, which must, in the context, be read as disjunctive. It is well settled that “and” is capable of being read as “or”, if the context demands it to be so read. The rule of homogenous construction also dictates the said “and” in clause (c) being read as “or” failing which there will be an apparent conflict between clauses (a) and (b) of sub-section (3) read with sub-section (4) and clause (c) of sub-section (3) of section 19-A.
The word “or” is normally disjunctive and the word “and” is normally conjunctive. But at times they are read as vice-versa to give effect to the manifest intent of the legislature as disclosed from the context. It is permissible to read “or” as “and” and vice-versa if some other part of the same statute, or the legislative intent clearly spelled out, require that to be done.”
20. We are aware of the fact that in a trust there are minimum seven trustees and there can be more than one Secretary (also called as Joint Secretary) or more than one correspondent. Unless we read “or” as “and” in the definition of Chief Executive Officer, the intention of the rule making authority to allow the management to empower/appoint Chief Executive Officer of its choice to execute its decisions, cannot be accomplished. Apart from the above, from the hierarchy that is noticed by us hereinbefore, the Head of a School is subordinate to the Chief Executive Officer and as a correspondent if the Head Master were to become Chief Executive Officer automatically, the intention of the rule making authority to allow the management to have the Chief Executive Officer of its choice other than the Head, Secretary or Trustee would be clearly defeated. Further, when there are more than one trustee in a trust, each would claim to be the Chief Executive Officer creating a chaotic situation. When the management runs more than one school or junior college there would be more than one Head Master and in that case the Head Masters of all the schools would claim to be the Chief Executive Officers. Therefore, the word “or” would appear to be rather inappropriate. We follow the golden rule of interpretation as observed by the Apex Court in the case of Gurudeo Datta VKSSS Maryadit v. State of Maharashtra, reported in (2007) 4 SCC 534 in para 26 is as under:
“Further we wish to clarify that it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.”
21. The language of Rule 2(c) of Rules 1981 is plain and unambiguous and requires plain and literal interpretation. In the case of Hiralal Ratan Lal v. The Sales Tax Officer, Section III, Kanpur, reported in AIR 1973 SC 103 the Apex Court held as under:
“In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear.”
22. It is also worthwhile to note that there is no definition of “correspondent” to be found either in The Secondary School Code or in the Act of 1977 or in the Rules of 1981. What is stated in Rule 9.1 of the School Code is that the Head of a school shall act as a correspondent of the department. It is, therefore, wrong to assume that the Head alone can be correspondent. In that view of the matter, we hold that the Chief Executive Officer has to be a person whether Secretary, Trustee or Correspondent empowered by the management to execute its decisions.
23. Rule 36(1)(2) of the Rules of 1981 reads thus:
“36(1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub-rule (5) of Rule 28] and the management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the management) shall communicate to the employee or the Head concerned by registered post acknowledgment due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations.
(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in sub-rule (1) is not satisfactory, he shall place it before the management within fifteen days from the date of receipt of the explanation. The management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say,—
(a) …….
(b) in the case of the Head referred to in sub-rule (1)—
(i) one member who shall be the President of the management;
(ii) one member to be nominated by the Head from amongst the employees of any private school;
(iii) one member chosen by the President from the panel of Head master on whom State/National Award has been conferred.”
24. Perusal of Rule 36(1)(2)(b), in the light of the above discussion, shows that the Chief Executive Officer shall communicate the statement of allegations to an employee. If the statements of allegations are required to be issued to the Head, who is also empowered to act as Chief Executive Officer, the same will have to be issued by the President of the management. Further, looking to the hierarchy as seen above, if the statement of allegations are required to be issued to the Head (who is not empowered to act as Chief Executive Officer by the management), then such statement of allegations can be issued by the Chief Executive Officer and it is not necessary that the President should issue the same.
25. We shall now deal with the second issue as to whether the President of the Management has to be member of the Inquiry Committee for holding disciplinary inquiry under the Head whether or not he is Chief Executive Officer within the meaning of Rule 2(c) of the Rules.
26. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of “Head” in terms of section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa, reported in (1987) 3 SCC 279 : AIR 1987 SC 1454. In para 9, the Apex Court observed as under:
“………… Just as Parliament is not expected to use unnecessary expressions. Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily……”
27. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981.
28. The reference is answered accordingly. Let the petitions be placed before the appropriate bench for disposal in accordance with the findings given above.
Reference answered accordingly.
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