The petitioner prays for the issue of certiorarified Mandamus to call for and quash the proceedings of the 1st respondent in Che.Mu.Na.Ka No. 660/94.A5 dated 18.03.1996 and direct the 1st respondent to continue the petitioner on duty with all benefit from 18.03.1996
2. The petitioner is holding the post of Headmaster in Maruthamali Sri Subramanya Devasthanam Higher Secondary School (herein after referred to as the school). The petitioner claims that he had worked hard in improving the school and there has been achievements on academic side. It has been stated that the present Deputy Commissioner who is the Secretary of the School Committee is having grudge against the petitioner due to confrontation on various aspects in the day-to-day administration of the School admission of the boys, holding of examination, etc. It is not necessary to set out the particulars regarding the alleged confrontation between the petitioner and the Deputy Commissioner at this stage. It is sufficient to refer to the contentions set out in paragraph 3 to 5 of the affidavit at the appropriate time.
3. According to the petitioner, the order of suspension and charge memo dated 18.3.1996 is without jurisdiction. The school committee alone is competent of initiate disciplinary proceedings and also suspend the petitioner, that no school committee was convened during March 1996 and that the impunged proceedings are without jurisdiction. It is also pointed out that there is no reference to the school committee or its meeting or its resolution in the impugned proceedings. It is contended that it is only the school committee, who is competent to pass the impugned proceedings and there can be neither a delegation nor it can be ratified on a later date. The petitioner further states that the school committee in the meeting convened on 27.3.1996 for the purpose of ratifying the illegal order of suspension dated 18.3.1996, which is per-se invalid, that the petitioner is continuing to hold the post of Headmaster, and that the impugned action is without jurisdiction and violative of the Tamil Nadu Private Schools (Regulation) Act 1973 and the rules framed thereunder.
4. The Writ Petition has been admitted on 26.3.1996 and an interim stay has also been granted by this Court on 23.4.1996 As there has been an order of interim stay, the petitioner is continuing in office.
5. The 1st respondent has filed W.M.P No. 6726 of 1996 to vacate the order of interim stay already granted in W.M.P No. 5836 of 1996 on 23.4.1996 The counter affidavit has been filed in support of W.M.P No. 6726 of 1996. The 1st respondent has also filed an additional counter affidavit on 4.3.1997 The petitioner has also filed a reply affidavit on 4.3.1997 The writ petitioner has also filed supporting affidavits of the following school committee members involving:
S. Angammal, R. Aravali Navalar, S.A Nagalakshmi.
This Court directed the 1st respondent to produce the minutes book of the school committee and the same was placed before this Court at the time of hearing After receiving orders the Court required the 1st respondent to produce the files relating to the disciplinary proceedings and the same has also been circulated by the 1st respondent.
6. In the counter affidavit filed by the 1st respondent, it has been stated that the 1st respondent is the President of the school committee and Secretary of the school. The 1st respondent has also denied the allegations of the grudge as well as the order allegations made by the petitioner with respect to confrontation which he had with the 1st respondent. With regard to averments set out in paragraphs 3, 4, and 5 of the affidavit of the petitioner, the 1st respondent had denied the same. The 1st respondent, however, admitted that he had visited the examination hall on the date of examination and made queries about the conduct of examination, etc. The 1st respondent states that the charge memo dated 18.3.1996 is very clear and that he is entitled to place the petitioner under suspension. The 1st respondent has stated that no motive or malice can be attributed to the impugned proceedings. With respect to impugned order of suspension, it is essential to incorporate the very portion of the counter affidavit which is relevant, reads thus:
“It is respectfully submitted that the initiation of proceedings by the Higher authorities is already recognised as a lawful exercise of power by the Apex court. Contrary contention is therefore devoid of any merits. Further, this respondent being the controlling authority is entitled to place the petitioner under suspension pending enquiry into the grave charges. In this case, the School Committee had already approved and ratified the action of this regard by its resolution dated 27.3.1996 Therefore, there is no merit in the case and in the contentions raised by the petitioner namely, Rules 12 and 13 of the Private Schools Regulation Act in no way provide for disciplinary proceedings as done in this case and the contention that this respondent has no jurisdiction, has no basis and deserves to be rejected. This respondent respectfully submits that the petitioner, with a view to protect and delay the matter has rushed to this Honourable Court even at the initiation of proceedings alleging invalid grounds. The very allegation in para 6, that there was no convening of school committee in March 1996 is facturally incorrect, in view of the fact that the school committee met on 27.03.1996 and approved and ratified my action. The claim that there cannot be delagauon or ratification by the school Committee is per se illegical and contrary to law. The Committee having ratified the impunged order, the petitioner has no grievance or case. The contrary contentions raised in para 7 is therefore liable to be rejected. The allegation that there is no jurisdiction for framing the charge and to suspend are all now pure question of academic interest and the school committee has clearly ratified my action. The claim in para 8 deserves to be rejected inlimini.”
7. In the additional counter affidavit with respect to passing of resolution, the 1st respondent has set out thus:
“It submit that I have already filed a counter affidavit, wherein which an important factor has not been specifically stated though a reference has been made in the counter affidavit. Hence, this additional counter affidavit.
I submit that the impugned order of suspension was virtually subsequent to a circular resolution of the school committee dated 17.3.1996 The said circular resolution has been passed by six of the committee members and three of the committee members voted against the resolution. A copy of the resolution dated 17.3.1996 has been included in the typed set of papers which may be read as part and parcel of this affidavit. The decision of the Honourable Court in this regard, therefore., has no application to the facts of the case. It is further necessary to submit that the said impugned order of suspension was subsequently also ratified by the next committee meeting held on 27.3.1996, wherein which the same three members have not subscribed to the resolution and the other six members have passed the resolution”.
8. The petitioner has reiterated that no school committee met on 17.3.1996 and no circular resolution had been passed as suggested by the 1st respondent. Even assuming that the school committee can pass a circular resolution, it is essential to serve the agenda to all the members of the school committee: Three members of the school committee namely S. Angammal, R. Aravali Navalar, S.A Nagalakshmi have filed supporting affidavits, wherein it has been sworn to by them, that no such circular resolution was passed and no agenda has also been circulated and only a notice dated 19.3.1996 was served for the meeting dated 27.3.1996 and that they have not ratified the illegal action taken on 18.3.1996 by the secretary. The writ petitioner further contends that the statutory rule with reference to the convening of the school committees had not been followed in the passing of resolution by the school committee, that the alleged circular resolution dated 17.3.1996 is a nullity and has no legal effect and consequently the order of suspension passed by the secretary which does not refer to the alleged circular resolution dated 17.3.1996 is liable to be quashed as one without jurisdiction. The circular resolution dated 17.3.1996 had not been referred to in the agenda dated 23.3.1996, that very many facts or ommission on the part of the 1st respondent will disclose that no circular resolution had been passed on 17.3.1996 and that as an after thought at the stage of final disposal, the first respondent had invented a new case of passing a circular resolution in the additional counter affidavit. It has also been suggested by the petitioner that after grant of stay by this Court, the 1st respondent had placed the subject before the school committee on 27.3.1996, which according to the petitioner is contemptuous, it is not only a stay of order dated 18.3.1996, but also all further proceedings. It is further stated by the petitioner that the order of suspension is not based on any resolution and the very case of the 1st respondent that the suspension has been ratified will belie the inconsistent stand taken by the 1st respondent. It is further contended that no amount of ratification will cure the inherent defect in the impunged order.
9. In the affidavits of committee members namely, S. Angammal, R. Arayali Navalar, S.A Nagalakshmi, it has been stated that no school committee meeting was convened before 27.3.1996 and no notice for the school committee was issued or served prior to 19.3.1996 They also state that the alleged circular resolution dated 17.3.1996 was not circulated nor served on them and that they were not aware of the same. The subject relating to suspension passed by the 1st respondent, Secretary was placed before the school committee for the first time for ratification on 27.3.1996 and the said three committee members have recorded their dissent. The three members reiterated that no school committee was convened on 17.3.1996 and no circulor resolution was passed on 17.3.1996 and no notice of meeting as prescribed under Rule 14(2)(a) of the Regulations had been served on them.
10. Before framing the points that arises for consideration, it is essential to refer to the earlier pronouncement of this Court reported in Valliappan v. The Madras Seva Sadan Higher Secondary School (1995-2-M.L.J 488) Jayasimha Babu. J, while analysing the case law on the issue of suspension of teacher employed in a private school and initiation of disciplinary proceedings for other employees of a private school has held thus:
“11. The statutory scheme therefore, is that the power to take disciplinary action against teachers and other employees of the institution is vested in the school committee. The power to suspend being a power which is incidental to the taking of such disciplinary action, has also to be held to be a power which is vested in the school committee and not in any other individual. Suspension can only be made when the person against whom an enquiry is contemplated has committed not any misconduct, but gross misconduct in relation to the Code of Conduct prescribed under Sub-section (1) of Section 21 of the Act.
12. The period of suspension should not normally exceed a period of two months and if suspension is sought to be continued beyond that period, the approval of the competent authority is required. Thus, it is clear that suspension effected against the provisions of the Act (sic) and such suspension must be effected by the authority competent, only when an enquiry is contemplated into gross misconduct.
13. The person placed under suspension suffers certain disadvantages. The impact of such suspension is that he will cease to have the right to perform his normal official work. In monetary terms, his emoluments get reduced substantially, as he would only be entitled to subsistence allowance, the amount of which is much less than his normal salary. This is yet another reason why the power to suspend should be regarded one which is incidental to the taking of the disciplinary action, even if it cannot he held to be a penalty. The Act has vested the power in the school committees and not in the Secretary of the school committees, who is only required to act for and on behalf of the committee, and on the basis of the resolution passed in the school committee, Sec. 16 of the Act, specifies the powers and functions of the Secretary of the school committee with reference to the rules, that may be framed under the Act. The Rules to framed clearly show that the primary duty of the secretary is to act on the basis of the resolutions passed at the meeting of the school committee. The action of the Secretary can only be for and on behalf of the school committee to the extent authorised by the committee.
14. Having regard to the statutory scheme, it must be held that the action of the Secretary in suspending the petitioner was one which the Secretary was not authorised to do under the terms of statute. The secretory has no independent power to suspend the teacher or other persons, even when an enquiry is contemplated into a misconduct.
15. Learned counsel for the respondent school submitted that a certain amount of flexibility is essential in internal management, and a rigid view of the statute is not warranted, having regard to the nature of the functions required to be performed by the Secretary. This argument though attractive cannot be accepted, in view of the statutory scheme, which vests this power in the school committee. The powers of the secretary are limited by the Rules framed, and the statutory provisions do not empower the Secretary to suspend the officials or the teachers pending enquiry. No rule also has been framed to vest such power in the secretary.
16. As regards the ratification said to have been done, once it is held that the Secretary of the school committee had no power to suspend and that power was vested only in the school committee, it must follow that in the absence of express authority being conferred on the Secretary to suspend, the suspension has been declared as void, it must follow, that the school committee should not ratify such a void act. The principle laid down by the Supreme Court in the case of The Marathwada University v. Seshrao Balwant Rao Chavan, A.I.R 1989 S.C 1582, would be attracted considering the fact that the Secretary of the School Committee is required to function in accordance with the Statute, unlike the Board of Directors of the Company, which functions with considerable degree of freedom, in matters relating to its internal management, and wherein the general body of shareholders have the necessary authority to ratify such actions of the Board as the general body of the shareholders may regard such actions as necessisating ratification, even though such action was initially not authorised.
17. As observed by the Supreme Court in the case on Marathwada University the principles of ratification apparently do not have any application in regard to the exercise of powers conferred under the statutory provisions. The statutory authority cannot act beyond the power conferred and any action without power, no legal validity, it is ab initio void and cannot be ratified.”
The above proposition laid down by Jayasimha Babu, J., squarely applies to the facts of the present case.
11. In the light of the said pronouncement, in this case, the following points have to be decided:
i) Whether the impugned proceedings have been passed on the basis of resolution of the school committee?
ii) Whether the school committee had passed a circular resolution on 17.3.1996?
iii) Whether the ratification pleaded by the 1st respondent is valid in Law?
The answer to these points would ultimately decide the validity of the impunged proceedings.
12. On the third issue, there could be no quarrel that ratification, even if it is true it will not cure the defect and in law there could be no ratification of an action, which is void. The resolution dated 27.3.1996 purported to be a ratification by the school committee is of little value and no consequence. This resolution dated 27.3.96 cannot cure the defect at all and it is not necessary to find out as to whether there was a meeting on 27.3.1996 and the details of members who have taken part in the meeting and the details of the members of the school committee who have dissented from the resolution. The agenda dated 19.3.1996 for the meeting dated 27.3.1996 is relevant only for the purpose of deciding the main dispute as to whether there was a circular resolution as pleaded by the 1st respondent. The meeting notice dated 19.3.1996 is only a mere intimation of the date of meeting and admittedly no agenda or subject set out in the notice dated 19.3.1996 nor does it refer to the earlier circular resolution dated 17.3.1996
13. The two other questions that arises for consideration can be dealt with simultaneously. Sub-section 1(0) of Sec. 18 of the Tamil Nadu Recognised Private School (Regulation) Act 1973 (hereinafter referred to as Schools Act) provides that the school committee has to take disciplinary action against teachers and other employees of the private school. Sec. 17 provides for the meeting of the school committee. Rule 14 of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 (hereinafter referred to as the Rules) provides that the meeting of the school committee shall be convened by the secretary with the approval of the president of the school committee. Sub-Rule 2(14) which is relevant reads thus:
“No meeting of the School Committee shall be conducted unless:
a) atleast seven days clear notice in writing has been given to the members of the committee.
b) atleast fifty percent, of the total members of the committee are present.
Explanation: If the total number of members of the committee is an odd number, the next higher even number shall be taken for purpose of this sub-rule.”
In terms of this Sub-rule, which is mandatory, at least seven clear days notice in writing has to be given to the members of the committees before conducting a meeting. Rule 14 does not provide for a resolution being passed by circulation by the school committee nor a school committee is enable to pass a circular resolution in terms of Rule 14 nor any other provisions have been pointed out in this respect. Rule 17 provides for dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools. As already held by JJayasimha Babu, J., it is only the school committee that could initiate disciplinary proceedings and suspend the writ petitioner.
14. In the present case, the impugned order has been passed by the 1st respondent, the Secretary of the school committee and there has been no reference to the resolution passed by the school committee. The impugned proceedings is dated 18.3.1996, by which the 1st respondent framed the charges and placed the petitioner under suspension by invoking the powers under Sec. 22(3) of the Act. The impugned proceedings passed by the 1st respondent is very much silent about the alleged circular resolution dated 17.3.1996 nor such a resolution has been relied upon as the basis for the impugned proceedings. A perusal of the impugned proceedings dated 18.3.1996 would so that the 1st respondent had taken disciplinary action on his own and independently without reference to the school committee and so also the order of suspension. It is not as if the impugned proceedings has been issued based upon any earlier circular resolution of the school committee. The portion of the impugned order which reads thus:
It has been repeatedly pointed out by the learned counsel for the petitioner that there is no reference at all to the alleged circular resolution nor there is anything on record to show that the impugned proceedings has been issued on the basis of the alleged circular resolution dated 17.3.1996 Alleged circular resolution has been recorded in the minutes book and so also the meeting of the school committee dated 27.3.1996, but there is a serious challenge to the alleged circular resolution dated 17.3.1996 by the three committee members. According to the three committee members, no such circular resolution has been circulated to them and no school committee meeting had been convened prior to 27.3.1996 Both the resolutions have been written by S. Nallian, one of the committee member who is junior assistant working under to 1st respondent.
15. This Court for the followings reasons holds that the school committee had not passed any circular resolution much less on 17.3.1996 and only for the purpose of meeting the petitioner's contention, the 1st respondent has come out with such a false plea.
a) The impugned order dated 18.3.1996 is silent about the circular about the circular resolution nor the circular resolution has been read in the said proceedings dated 18.3.1996
b) The circular resolution dated 17.3.1996 had not at all been pleaded in the counter affidavit filed by the 1st respondent. While moving the vacate stay petition and only in the additional counter affidavit, for the first time the 1st respondent had chosen to mention about the circular resolution dated 17.3.1996
c) The impugned proceedings nowhere indicates or relies upon the circular resolution, dated 17.3.1996
d) The resolution dated 27.3.1996 is also silent about the alleged circular resolution dated 17.3.1996
e) The meeting notice dated 19.3.1996 is also silent about the alleged circular resolution dated 17.3.1996 and agenda for the proposed meeting.
f) Three of the members of the school committee have filed the affidavit stating that no such resolution was circulated, no resolution was passed by circulation on 17.3.1996 and in this respect, no reply affidavit has been filed by the 1st respondent controverting the affidavit filed by the three staff members of the school. In all there are 12 members of the school committee consisting of Executive Officer of the temple, Manager of the temple, Superintendent of the temple, Assistant Engineer in the temple, Accountant in the temple, Clerk in the temple. Out of the remaining six, Headmaster is one member, besides there are three teaching staff members. Apart from the three teaching staff members, one Junior Assistant is a member and President of Parents Teachers Association. Thus five of the members of the committee who have signed the Resolution subordinate of the 1st respondent.
g) At the bottom of the circular resolution dated 17.3.1996, ten names of the committee members had been set out which includes the 1st respondent and 9 others. Four of the signatures of the circular resolution are the subordinates of the 1st respondent, employed in the temple. The three teacher members had, according to the 1st respondent refused to sign the minutes of the said resolution, as recorded in the minutes book. While the three teacher members have sworn to an affidavit, where they have stated that there was no such circular resolution at all, no resolution had been circulated to them nor was there a meeting prior to 27.3.1996
16. Based upon the above reasonings and the failure on the part of the 1st respondent to mention the alleged resolution in the impugned proceedings, as well as the failure to disclose the resolution in the 1st counter affidavit filed by the 1st respondent this Court holds that no resolution had been passed by the school committee on 17.3.1996 much less a circular resolution and the 1st respondent had come out with a false plea just to meet the contention raised by the petitioner. This Court hastens to add that the malafides alleged by the writ petitioner against the 1st respondent is not without any basis. This court holds that the 1st respondent's action is also vitiated by malafide besides being arbitrary.
17. It has also been pointed put by the learned counsel for the petitioner that apart from there being no circular resolution as alleged by the 1st respondent, such a resolution is also, even assuming to be true, invalid and inoperative. The school committee which is a creature under the Tamil Nadu Act 29 of 1974 has to act in terms of the said enactment on the Rules framed thereunder. Sub-rule 2 of Rule 14, already set out above, provides that no meeting of the school committee shall be conducted unless at least 7 days clear notice in writing has been given to the members of the committee. Rule 14 does not authorise or provide for passing of a circular resolution by school committee. The school committee being a creature of the School Act has to act strictly in accordance with the provisions of the Act and the rules framed thereunder. The school committee cannot act in any other manner. Rule 14 provides for the meetings of the school committee, which has to be convened by the Secretary of the school committee with the approval of the President. There is no provision which enables the 1st respondent to get a resolution passed by the school committee by circulation. It is fundamental, that the school committee being a creature of the statute has to act according to the Rules and it cannot act in a different manner than what has been prescribed by the statutory provisions. When a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all and the other methods of performance are necessarily forbidden.
18. The Apex Court in Antulay v. Ramdas Srinivas Nayak (1984 S.C.C Vol. 4 (S.C) 500) has reiterated and held that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. It has been held thus:
“It is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor; Nazir Ahmad v. King Emperor and ending with Chettiam Veettil Ammad v. Taluk Land Board, laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.”
19. It has also been reiterated by the Apex Court in Union of India v. Tulsiram Patel (A.I.R 1985 (S.C) 1416) and held thus:
“The maxim expressum facit cessare taciturm (when there is express mention of certain things, then anything not mentioned is excluded) applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore (1969) 3 SCR 112: (A.I.R 1969 SC 453 at P. 459), this well known maxim is a principle of logic and common sense and not merely a technical rule of construction.”
20. In the light of the said pronouncement, this Court holds that the school committee has to meet as prescribed in Rule 14 and no meeting of the school committee shall be conducted unless atleast 7 days clear notice in writing has been given to the members. This statutory rule mandatorily provides that the school committee has to meet after issue of 7 days clear notice. As such, passing of resolution by circulation by a school committee is not at all permissible in-law. Thus, even assuming that the resolution was passed by circulation it is void as passing of circular resolution is excluded by implication.
21. In the circumstances, this Court holds that the plea of the 1st respondent that a circular resolution was passed on 17.3.1996 cannot be accepted and actually no such circular resolution has been passed as pleaded by the 1st respondent. The very ratification resolution passed on 27.3.1996 also does not lend support to the plea of the 1st respondent that there was a circular resolution on 17.3.1996 The 1st respondent should have pleaded the circular resolution as the foremost in the counter affidavit filed by him and also should have set it out in the impugned proceedings. To meet the plea of the writ petitioner that the committee has not passed the resolution and the committee had not decided to intimate disciplinary proceedings and to suspend the petitioner, the 1st respondent as an afterthought has come out with a false plea at the belated stage. The various reasons stated above and the very conduct of the 1st respondent and the manner in which the 1st respondent is maintaining the files regarding the disciplinary proceedings in loose sheets without even date-wise arrangement and not as prescribed by the rules, leads to irresistible conclusion that the plea of the 1st respondent is false.
22. As already held, no circular resolution had been passed and the affidavit sworn to by the teachers, who are also members of the school committee has to be accepted and the conduct of the 1st respondent has to be deprecated. It would have been fair on the part of the 1st respondent, if the 1st respondent had come out with truth and stated that the matter had not been placed before the committee and there could be no difficulty for this Court accepting the same and grant him leave to the 1st respondent to convene the school committee and place the matter to the decision of the school committee as to framing of charge and suspension of the petitioner. The 1st respondent, a Deputy Commissioner in the Hindu Religious and Charitable Endowments Board, Administrative Department, Officer of the State cadre, for obvious reasons and with a view to get over the formidable challenge to the impugned proceedings had come out with a false case.
23. In this respect, the allegations of mala fides made by the petitioner in the affidavit and against the 1st respondent has to be viewed and the allegations of the mala fides have to be accepted. Further, the charges framed by the 1st respondent and most of the imputations set out relate to the year 1993-1994. The learned counsel for the petitioner is justified in contending that the very charges have been framed by the 1st respondent without reference to the school committee and the belated framing of the charges at any rate on the very imputation will not warrant a suspension. This Court is not expressing any opinion on this aspects and also on the contention that the imputations may not constitute a mis-conduct. This Court is not expressing anything with respect to the imputations alleged against the writ petitioner at this stage.
24. In the circumstances, this Court allows the writ petition with the cost of Rs. 3500/-. Consequently, W.M.P No. 5836 and 6726 of 1996 are dismissed.
25. It is made clear that it is open to the 1st respondent to take appropriate action according the Tamil Nadu Act 1974 and the Rules framed thereunder.
KA/RR/VCS