G. Ganesamoorthy, the Secy. Manager of Rangaswamy Memorial Primary School vs The Tribunal (Sub-Judge) and Others

S. Nainar Sundaram, J.—The management of a private school governed by the Tamil Nadu Recognised Private Schools Regulation Act,

1973 hereinafter referred to as the Act and represented by its Secretary-cum-Manager is the petitioner in these two writ petitions. The 3rd

respondent in each of the two writ petitions was a teacher under the employment of the petitioner. They are different from one another. They were

dismissed on disciplinary action by the petitioner. However, the second respondent on appeals by the teachers countenanced their pleas, set aside

the orders of dismissal and restored the teachers to services. The petitioner preferred appeals to the first respondent. The teachers filed

applications calling upon the petitioner to deposit the emoluments due to them as per Section 44(1) of the Act. On 18.8.1980, the first respondent

directed the petitioner to make the deposits on or before 8.9.1980. It must be noted, the petitioner at this time had not filed its counters and made

its say on the question of making the deposit. The petitioner before 8.9.1980, the time reserved for making the deposits, filed applications to set

aside the orders passed on 18.8.1980, as if those orders were passed ex parte and the petitioner wanted to file counters and make its say in the

main applications for deposits. These applications have been dismissed in limine on 9.9.1980 and consequently on the very same day, viz.,

9.9.1980, the appeals preferred by the petitioner were also dismissed. The orders of the first respondent dismissing the appeals and thereby

confirming the orders passed by the second respondent are being put in issue in these writ petitions, they being the ultimate orders passed in the

matters.

Mr. N.S. Sivam, learned Counsel for the petitioner, would submit that without affording sufficient opportunity to the petitioner, to make its say

on the question of making deposits in the applications taken out by the teachers in this behalf, directions to make the deposits had been given and

in any event before the lapse of the time reserved for making the deposits as directed by the first respondent on 18.8.1980, the petitioner wanted

to file its counters in the main applications for deposits and make its say on the question of deposits, and Sub-section (4) of Section 44 enables the

first respondent to consider this request of the petitioner even after directions to deposit have been given and on the simple ground that the

petitioner committed a technical error in calling the earlier orders dated 18.8.1980, as ex parte orders, wrongly declined to exercise the discretion

vested in him under Subsection (4) of Section 44 of the Act, and this only led to the ultimate orders of dismissal of the appeals themselves

preferred by the petitioner. The learned Counsel relies on a pronouncement of a Bench of this Court in Kalasanaha v. The Tribunal under the Tamil

Nadu Private Schools Regulation Act, 1973 cum-Sub Judge, Tirunelveli and Ors. W.A. No. 496 of 1978 dt. 6.9.1979, to state that the Tribunal

like the first respondent is conferred with a power to exercise a discretion in the matter of insisting upon making of the deposit before the appeal is

heard on merits and even this aspect could be pressed forth and the first respondent should have considered it and the orders passed by the first

respondent had completely shut out the petitioner from showing cause with regard to deposits called upon earlier by the first respondent on

18.8.1980. I need not dwell upon the merits of this contention because when the petitioner filed the application within time reserved for making the

deposits, to set aside the earlier orders and to make its say by filing counters in the main applications on the question of deposits, the first

respondent in fairness instead of taking too technical a view, ought to have permitted the petitioner to make its say, by receiving the counters in the

main applications Instead of dismissing the subsequent applications as not maintainable and consequently dismissed the very appeals themselves.

The matter require reinvestigation by the first respondent since the first respondent omitted to exercise the discretion vested in him under Sub-

section (4) of Section 44 of the Act on the question of making the deposits. It is not as if this aspect should not be considered even if orders to

make deposits had been made earlier because the above provision is generously couched, and the view of the Bench of this Court in the above

pronouncement is that the deposit is not always a sine qua non of universal application, and the Tribunal is not left without any discretion on the

question of directing deposits. The first respondent has not at all considered the question from these angles. This feature obliges me to interfere in

writ powers and accordingly the writ petitions are allowed as follows : The applications filed by the petitioner to set aside the orders in I.A. No. 77

of 1980 in C.M.A. No. 102 of 1979 and in I.A. No. 78 of 1980 in C.M.A. No. 103 of 1979 on the file of the first respondent will stand allowed

and consequently the orders in I.A. No. 77 of 1980 in C.M.A. No. 102 of 1979 and in I.A. No. 78 of 1980 in C.M.A. No. 103 of 1979 passed

on 18.8.1980 will stand set aside, and those applications will stand restored to the file of the first respondent, for him to consider those applications

first on merits on the question of making of the deposits permitting the petitioner to file its counters in those applications and pass fresh orders.

Consequently, the orders of dismissal of the appeals C.M.A. Nos. 102 and 103 of 1979 passed on 9.9.1980 are set aside and the said appeals

also will stand restored to the file of the first respondent. The first respondent will dispose of the applications in I.A. No. 77 of 1980 in C.M.A.

No. 102 of 1979 and I.A. No. 78 of 1980 in C.M.A. No. 103 of 1979 within a period of three months from the date of the receipt of the copy of

this order and thereafter he will take up the appeals preferred by the petitioner and dispose them of, taking note of and depending upon his

decision in the said applications, I make no order as to costs.

Mr. K.T. Palpandian, learned Counsel for the third respondent, in each of the writ petitions, says that no counter is referred to in the affidavits

filed in support of the writ petitions, nor a copy thereof is disclosed before this Court. But, here we find that the petitioner was not permitted to file

its counters and in the very applications, taken to file, counters have been dismissed. In the circumstances, this aspect is of no consequence at all.