CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1222 of 1967. 15-L521Sup.CI/73
Appeal by special leave from the judgment and order dated September 3, 1965 of the Patna High Court in M. J. Case No. 1257 of 1964. U. P. Singh for the appellant. S. C. Agarwal, V. J. Francis and P. D. Sharma for the respondents No. 1-6, 8 & 9. The Judgment of the Court was delivered by DUA, J. This appeal is by special leave and is directed against the order of the High Court of Judicature at Patna dated September 3, 1965 dismissing the appellant’s writ petition. The appellant, a teacher of Araria Higher Secondary School was dismissed from service by the Managing Committee of the said school at a meeting held on February 27, 1958 on a charge of misappropriation of school money. On appeal by him the President of the Board of Secondary Education, set aside the order of dismissal by order dated April 22, 1960 and directed his reinstatement in service. By the same order of reinstatement a further direction was given that the appellant should be paid full salary, &men allowance and increment from the date of his suspension till the date of reinstatement after adjusting the amount already paid. When this order was received by the Managing Committee it was obeyed so far as the reinstatement of the appellant is concerned but the Managing Committee requested the President of the Board of Secondary Education "to review the whole matter especially with regard to the payments for the period of suspension". The President by his order dated February 25, 1961, reviewed the matter and modified his earlier order made on appeal by providing that the appellant would be entitled only to subsistence allowance for the period of his suspension. That decision was conveyed by the Secretary, Board of Secondary Education to the District Education Officer in letter no. 2799-100-1 dated February 25, 1961 which reads :-
"With reference to your letter No. 957, dated
29th July, 1960, I have, under orders of the
President to say that you direct the Managing
Committee of the Araria High School, to treat
the period during which Shri Sayeed-ur-Rahman
remained off duty, as period of suspension and
pay him subsistence allowance according to the
rules." It is not disputed before us that this order was made without affording the appellant any hearing. After the said order the appellant is said to have made several representations to the President the Board but reconsideration of the order dated February 25
1961, was declined and it was reiterated that the appellant was entitled only to subsistence allowance during the period of suspension. That order was conveyed by the Secretary, Board of Secondary Education to the appellant as per communication no. 233/4A-97-58 dated January 18, 1964 which reads :
"With reference to your representation dated
27th December, 1963, 1 have to state that the
President Board of Secondary Education, Bihar
had been pleased to order that Shri Sayeedur
Rehman should be paid subsistence allowance
only during his suspension period. The order
cannot be revised now." It is not disputed that this order was also made without affording any hearing to the appellant. The appellant thereupon filed an application under Arts. 226 and 227 of the Constitution in the High Court of Judicature at Patna in which it was contended on his behalf that the President of the Board of Secondary Education could not modify the earlier order dated April 22, 1960 without giving to the petitioner an adequate opportunity of being heard. The High Court considered this argument to be without merit, because according to an earlier Bench decision of the High Court in Liladhar Jha v. Board of Secondary Education, Patna(1), the President of the Board of Secondary Education, as appellate authority, was empowered only to direct reinstatement of a dismissed teacher and had no jurisdiction to make any order with regard to the payment of any arrears due to him. Though the correctness of this decision was questioned before the High Court by the counsel representing the appellant in that Court the Bench hearing the writ petition did not consider it to be a fit case for reference to a larger bench to re-examine the view taken in the case of Liladhar Jha (supra). On this view the High Court held the order of the President of the Board of Secondary Education dated April 22, 1960 directing payment of full salary, dearness allowance and increment to the petitioner from the date of his suspension till the date of reinstatement to be invalid. Having so hold the High Court proceeded to observe that the petitioner would gain nothing if it was further held that the subsequent order of the President dated January 18, 1964 modifying the earlier order of April 22, 1960 was held invalid on the ground that no opportunity of hearing was given to the appellant. This question, in the opinion of the High Court, had become somewhat academic because the appellant could not get any relief in that writ petition. Before us on behalf of the appellant it was strenuously contended that the appellant had approached the High Court with his. (1) [1963] B.L.J.R. 880.
grievance only against the order made by the President of the Board reviewing his earlier order dated April 22, 1960 without hearing the appellant and that being the only relief claimed by him, if the said order of review was unconstitutional having been made to the appellant’s prejudice without affording him an adequate opportunity of being heard then the High Court could not decline him the relief of declaring it to be invalid, on the sole ground that the earlier order (which was not challenged by the petitioner in those proceedings and had not been got quashed by the Managing Committee in any appropriate proceedings) being ’contrary to law on the basis of Liladhar Jha (supra), it would be somewhat academic to declare as invalid the review order impugned by the appellant before that Court. According to the appellant so long as the order of the Board of Secondary Education reviewing the earlier order of April 22, 1960 was not expressly declared to be invalid, the Managing Committee or Araria Higher Secondary School was not likely to pay to him the arrears of salary due to him as a result of the order of his reinstatement in service. In this connection the appellant’s learned counsel drew our attention to r. 18 of the rules governing the service conditions of teachers in non-Govermnent High Schools framed as per Government resolution dated September 7, 1955. This rule reads :
"18. In case the Managing Committee violates
these rules or fails to carry out the orders
and instructions of the Board of Secondary
Education, or give effect to the decisions of
the Board, the Board shall have the right to
withdraw recognition of the school or suspend
the grant or take such other action or actions
as it may think fit." According to the submission, the Managing Committee is bound to carry out the orders and instructions of the Board and if the orders dated February 25, 1961 and January 18, 1964 are not quashed the Managing Committee may feel reluctant to ignore them. Our attention was also drawn to r, 12(2). Rule 12 provides
"12. The Managing Committee may impose the
following punishment on any member of the
staff including those on probation after
having finally considered his explanation and
the charges levelled against him in writing
(i) Warning, (ii) Censure, (iii) Withholding
of normal increments, (iv) Discharge, (V)
Dismissal.
Note.-(1) Proceedings are to be started
against teachers concerned by the Secretary on
the report of the Headmaster or by the
President, on the report of the Secretary, or
by the President himself, or by the Manag-
ing Committee as a whole. Ordinarily the
Managing Committee as a whole has the power to
suspend the teacher but in cases of urgency,
the Secretary in consultation with the
President may suspend a teacher but this bust
be approved by the Managing Committee within a
fortnight. Charges must be handed to the
teacher in writing within two days of the
suspension order. The teacher concerned must
submit his explanation within seven days of
the receipt of the charges. A meeting of the
Managing Committee shall be convened within a
fortnight from the date of suspension order,
for which a clear seven days’ notice shall be
given to every member. Such meetings should
have a quorum of two-third of the total number
of members (that is, eight members). If the
teacher member or the Headmaster himself is
involved, he shall not attend the meeting.
Orders of discharge or dismissal shall be
valid only if they have been passed by the
Managing Committee. In no case, however,
shall a teacher be kept, under suspension for
a period exceeding 30 days or in case he, has
filed an appeal up to two months or till the
disposal of his appeal.
(2) During the period of suspension the
teacher shall be allowed to draw half his
salary plus dearness allowance and upon
exoneration, the balance shall be paid to
him." On behalf of the respondents Shri S. C. Agarwal appearing for the State of Bihar and the Board of Secondary Education, did not challenge the view taken by the Patna High Court in the case of Liladhar Jha (supra). He tried to justify the impugned order only on the reasons stated by the High Court. In our opinion on the facts and circumstances of this case it was incumbent on the High Court to declare as invalid, the order of the President of the Board of Secondary Education dated February 25, 1961 reviewing the earlier order dated April 22, 1960, without affording to the appellant any opportunity of being heard, ,and also his order dated January 18, 1964. The appellant had approached the High Court with a grievance against that order and the order dated April 22, 1960, which was in his favour, was advisedly not challenged by him. To decline to the appellant the relief claimed by him to which, according to the High Court’s own reasoning, he was without doubt entitled, on the mere ground that it would be academic to do so, seems to us to be highly unfair and unjust to the appellant, because. as represented before us the Managing Committee might well take a different view and feel that the orders passed by the President of the Board of Secondary
Education, reviewing the earlier order dated April 22, 1960 having not been specifically quashed and set aside by the High Court, are still operative, demanding compliance. Under r. 18 and S. 5 of the Bihar High Schools (Control and Regulation of Administration) Act (Bihar Act XIII), 1960 the Managing Committee is expected to obey the directions of the Board. It may also be pointed out that under S. 6 of the above Act orders of the Board are final. It is not stated before us that the order dated April 22, 1960 was ever got set aside by the Managing Committee or even assailed by it in appropriate proceedings, but we express no considered opinion on that question, the same having not been canvassed before us. In our view, the only just and fair order to be made in these proceedings is to allow this appeal, set aside the impugned order of the the Court as also the order made by the President of the Board of Secondary Eduaction dated February 25, 1961 (reviewing his earlier order dated April 22, 1960) along with the subsequent order of the President of the Board dated January 18, 1964 rejecting the appellant’s representation and reiterating the order that he should be paid subsistence allowance only during his suspension period. After setting aside these orders the position is that the parties are relegated to the stage immediately prior to the order dated February 25, 1961, with the result that the President of the Board of Secondary Education would now have to deal with and dispose of in accordance with law, the request of the Managing Committee of Arari Higher Secondary School for re-considering the order of April 22, 1960. If the Board deems it proper to reconsider that order then the appellant must be afforded a reasonable opportunity of hearing and of adequately representing his case. Rule 16 provides for appeal from the orders made under r. 15, and r. 17 provides for hearing the appellant and the Secretary of the Managing Committee. Rule 17 reads
"17. The appeal of the person concerned shall
be heard by the President of the Board of
Secondary Education or any member of the Board
of Secondary Education duly nominated by the
President or any officer ordinarily not below
the rank of Inspector of Schools. The
appellant the Secretary of the Managing
Committee may be heard in person by the
President, Board of Secondary Education or his
nominee who may even authorise them to be
represented by a representative." This rule embodies the principle of natural justice requiring the appellate authority to hear the parties. The order dated April 22, 1960 must have, therefore, beer. made after hearing both sides as provided by this rule. There is no express provision for review in the rules to which our attention was drawn. But we are not asked and, therefore, not required to express any considered opinion on
the competence of review and we express none. We are, however, clear that if the order dated April 22, 1960 is to be reconsidered then the appellant must be afforded adequate opportunity of hearing and presenting his case. This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The President of the Board of Secondary Education would be deciding a controversy affecting the rights of the parties before him if and when he chooses to reconsider the order dated April 22, 1960, whatever be the source of his power to do so-a point left open by us. He is required to decide in the spirit and with a sense of responsibility of a tribunal with a duty to meet out even-handed justice. The appellant would thus be entitled to a fair chance of presenting his version of facts and his submissions on law as his rights would be directly affected by such proceeding. The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order dated April 22, 1960 is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasijudicial authorities when deciding controversial points affecting fights of parties. We also express no opinion on the question of the correctness or otherwise of the view taken by the Patna High Court in the case of Liladhar Jha (supra) nor do we express any opinion about the the and effect of r. 12(2) referred to above or of any other rule or rules which may be attracted to the appellant’s case. Indeed, this order is not to be construed as containing any opinion on the merits of the controversy except that the aforesaid orders of the President made in 1961 and 1964 have been quashed. The appellant is entitled to his costs from the contesting respondents. On facts of C.M.P. No. 4775 of 1968 no orders are called for. S.C. Appeal allowed.