Kanupuri Subba Rao v. Divisional Inspector Of Schools, Kakinada And Others

(1) This is a petition under article 226 of the constitution of india for the issue of a writ of cerliorari quashing the order of the 4th respondent, dated 22nd july, 1955, as confirmed by the appellate order of the 2nd respondent, dated 3rd april, 1956 and the second appellate order of the 1st respondent, dated 26th september, 1957. The petitioner was a teacher in sri ramakrishna town aided elementary school, rajahmundry. He was appointed, as such, on 1st july, 1950. The 4th respondent is the manager of the said school. It is apparent from the affidavits filed in the case that the 4th respondent was not satisfied with the conduct of the petitioner and from time to time was issuing staff orders calling upon the petitioner to comply with his directions. On 28th february, 1955, he issued a staff order calling upon the petitioner to show cause why action should not be taken against him for dereliction of duty and insubordinate behaviour. The petitioner sent no reply. The 4th respondent sent him a reminder on 29th march, 1955. What happened thereafter is not precisely known. The 4th respondent, however, had not taken any action against the petitioner till 22nd july, 1955. On that day, he passed an order terminating the services of the petitioner. Therein it is stated that on 2oth july, 1955, the petitioner was guilty of improper behaviour towards the manager and that he had defied the management in the presence of his co - teachers thus bringing the institution into ill - repute. It was also stated that on 21st july, 1955, the petitioner came late to the school and that he corrected the entry in register showing the time of his arrival from 7 - 30 to 7 - 20 and that on 22nd july, 1955, also he came late. The order finally stated that in view of his prior conduct and the conduct on 20th july, 1955 and 21st july, 1955, the petitioner's employment in the school was terminated with effect from 22nd july, 1955.

(2) The petitioner filed an appeal to the district educational officer under sub - rule (vii) of rule 13 (2) of the rules relating to the elementary schools. On 3rd april, 1956, the district educational officer passed the following order : -

"the removal of the teacher sri k. Subba rao from service for gross insubordination, is justified under rule 13 (2) (ii) (a). The appeal of the teacher, sri k. Subba rao, is rejected. The deputy inspector may inform the teacher accordingly. " the petitioner filed a further appeal to the divisional inspector of schools, who, by an order, dated 26th september, 1957, dismissed the same in a brief and peremptory sentence which is as follows : - "the appeal under reference is rejected. "

This order was communicated to the petitioner through the district edcuational officer in a communication, dated 30th march, 1958, i. E. , nearly after 6 months after the pronouncement of the final appellate order.

(3) In this petition, it is contended on behalf of the petitioner first that the order of the 4th respondent is in contravention of rule 13 (2) (ii) of the rules relating to elementary schools read with the proviso thereto. The relevant portion of the rule may be extracted : -

"13 (2) (ii). - the management of a school shall have power to terminate the services of any permanent member of the staff only as provided hereunder : - (a) without notice, for any or all of the following reasons, viz. , wilful neglect of duty, serious misconduct, gross insubordination mental unfitness, suspension or cancellation of a teacher's certificate by the director of public instruction under rule 154 of the madras educational rules or when action is taken against the teacher under rule 14 of these rules and ; if the termination of the services of a teacher under this rule is held unjustified on appeal by the teacher, the management shall take back the teacher, treating the period of his absence of duty without any claim for government grant for the period of such absence. If the teacher, having sought employment subsequent to the termination of his services, claims only compensation for the loss due to unemployment, the management shall be liable to pay to the teacher full salary and allowances for the period of his unemployment, which shall be limited to the maximum period of three months. (a) with three months' notice or three months' salary in lieu thereof, for the following reasons, viz. , incompetence, retrenchment, physical unfitness or any other good cause provided that in all these cases coming under (a) and (b) above, the teacher shall be informed in writing of the view of the management in the matter and shall be given a reasonable opportunity for stating his case in writing or in person and the statement made by him, if any, shall be taken into consideration before a final decision is taken by the management. For termination of the services of teachers who have put in not less than five years efficient service in the school for 'incompetence' or 'any other good cause' the previous approval of the deputy inspector of schools concerned shall be obtained."

(4) A fair reading of this proviso would indicate that where action is taken under clause (a) or (b) it is obligatory on the part of the management to inform the teacher in writing of the view of the management in the matter and the teacher should be given a reasonable opportunity for stating his case in writing or in person; and the statement made, if any, should be taken into consideration before a final decision is taken. This is based upon a very salutary rule of natural justice that no man shall be condemned and robbed of his living without an opportunity being given to him of stating what he had got to say. That has not been done in this case. An attempt has been made by the learned government pleader and the learned counsel appearing for the 4th respondent to show that there was a notice given by the 4th respondent on 28th february, 1955 and a reminder thereof on 29th march, 1955, to neither of which the petitioner has sent a reply. It it therefore contended that the petitioner has had ample opportunity of meeting the case that was put forward by the management against him and that therefore the requirements of the proviso are substantially satisfied. I do not think that this argument is well - founded. In the order of termination made by the 4th respondent on 22nd july, 1955, there is absolutely no reference to the alleged notice stated to have been given on 28th february, 1955, or the reminder thereof, dated 29th march, 1955. It is also argued by the learned counsel appearing for the respondents that after the appeal was lodged with the district educational officer, the deputy inspector of schools was directed to make an enquiry and when he made investigation and called upon the petitioner to be present, the petitioner declined to assist the deputy inspector of schools in the enquiry on some wholly untenable grounds. I do not know whether the enquiry by the deputy inspector of schools at that stage was called for. When an appeal had been presented to the district educational officer who is the first appellate authority, it was his duty to apply his mind to the facts and circumstances connected with the order appealed against and render the decision.

(5) The report alleged to have been sent by the deputy inspector of schools to the district educational officer subsequent to the filing of the appeal by the petitioner may not be strictly relevant, for, all that the appellate authority at that stage should have decided was whether the terms of the proviso to the sub - rule requiring an opportunity to be given to the teacher before his services are terminated, has been complied with or not. The disposal of the appeal by the divisional inspector of schools is also equally unsatisfactory. The appellate authorities are expected to apply their minds to the grounds of appeal and give an order which is in the nature of a speaking order setting out the reasons upon which their decision is based. In this case, i have no doubt, that the termination of the services of the petitioner by the 4th respondent in and by his order, dated 2nd july, 1955, is manifestly opposed to the terms of the proviso to sub - rule (ii) of rule 13 (2) of the rules relating to elementary schools and also is in violation of the principles of natural justice.

(6) It is urged that, in any event, this petition has now become infructuous as the school had been taken over by the government. I do not think that that is a reason why the order of the 4th respondent should not be quashed. It is also urged, and not denied by the counsel for the 4th respondent, that the petitioner has been employed since the termination of his services in other schools and for that reason also he is not entitled to any relief in this petition. The fact that he is employed elsewhere will not affect the correctness or otherwise of the order of dismissal.

(7) There shall issue a writ of cerliorari quashing the order of the 4th respondent, dated 22nd july, 1955, the order of the and respondent, dated 3rd april, 1956, and the order of the 1st respondent, dated 26th september, 1957. The petition is allowed with costs. Advocate's fee rs. 100. Writ issued.