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Judgment
HARPREET SINGH BRARHARPREET SINGH BRAR, J. (Oral), J. (Oral)
With the consent of all the parties, the aforementioned writ petitions are taken up together and are being decided by this common judgment. However, for the sake of brevity, the facts are being taken from CWP-13796-2024.
This Civil Writ Petition has been filed under Article 226/227 of the Constitution of India seeking issuance of a writ in the nature of Certiorari for quashing the impugned order dated 04.05.2024 (Annexure P-27) passed by Respondent No.1, whereby the appeal filed by Respondent No.2 has been allowed and the order of termination dated 14.05.2022 has been declared void ab-initio, illegal, non-est and without jurisdiction; and further for issuance of an ad interim ex parte order staying the operation of the impugned order dated 04.05.2024 (Annexure P-27) during the pendency of the present writ petition.
Learned counsel for the petitioner(s), inter alia, contends that the Education Tribunal has failed to appreciate the evidence led by the petitioner-school. The school was not bound to initiate an inquiry, as the misconduct on the part of the respondent was apparent and incontrovertible. As such, conducting an inquiry would have been an empty formality and a waste of time. A show-cause notice was issued on 24.02.2022 (Annexure P-16); therefore, it is not a case where the petitioner was condemned unheard. The principles of natural justice were duly adhered to, and the petitioner's explanation was called for vide show-cause notice dated 24.02.2022 (Annexure P-16). His reply to the said notice (Annexure P-17) was duly considered, and the intimation that an inquiry was going to be held against him was duly communicated on 08.03.2022 (Annexure P-19). As such, the judgment rendered by the learned Education Tribunal is liable to be set aside.
Per contra, learned counsel for the respondent submits that admittedly, the petitioner is a private unaided recognized school. As such, it is governed by the Haryana School Education Rules, 2003. Further, Rules 161 and 162 of the Rules ibid provide a complete mechanism for laying down the service conditions and execution of the contract of service, which also includes the code of conduct and penalties to be imposed upon the employees in terms of the Rules of 2003. The petitioner-school has framed its service rules known as the Service Rules & Regulations for the Employees and Teaching Staff of Jankidas Kapur Public School, Sector-14, Sonepat (Annexure P-10). Further, referring to the procedure prescribed for dismissal in the said service rules, learned counsel refers to the rules dealing with dismissal at page No.88 of the paper-book and submits that the aforesaid service rules clearly provide that the services of an employee can be terminated on account of misconduct only after conducting a regular inquiry or upon admission of charges, where the employee admits the charges at any stage including preliminary enquiry without issuance of a charge-sheet or during preliminary probing. He further refers to the charge-sheet dated 08.03.2022 (Annexure P-18), wherein reference to the service rules has been made and a major penalty has been proposed against the petitioner. Further, on 08.03.2022 (Annexure P-19), the petitioner was placed under suspension and it was clearly conveyed to him that an inquiry was going to be held against him. As such, the petitioner was suspended with immediate effect till the conclusion of the inquiry. However, to the shock and dismay of the petitioner, the inquiry contemplated under the service rules was never held and his services were terminated vide order dated 14.05.2022 (Annexure P-24), compelling the petitioner to approach the Education Tribunal.
Having heard learned counsel for the parties and after perusal of the record, it transpires that the State of Haryana has constituted the Education Tribunal in terms of the directions issued by the Constitution Bench of the Hon'ble Supreme Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481. Further, Division Bench of this Court in Management of S.D. Model Sr. Sec. School vs. District Judge-cum-Service Tribunal, 2014(1) SCT 652, has considered the scope and ambit of the powers of the Education Tribunal and has categorically held that, except in matters relating to gratuity, the Tribunal is fully equipped to deal with all service matters relating to the service conditions of employees of private unaided schools.
The main argument raised on behalf of the learned counsel for the petitioner is that the termination order dated 14.05.2022 cannot be interfered with by the Education Tribunal, as the same was effected in terms of the contract of employment. In order to appreciate the aforesaid contention, it would be relevant to notice that the respondent-School is a recognized school in the State of Haryana. Admittedly, the petitioner school is an unaided recognized school. It is also not in dispute that private unaided recognized schools are governed by the Haryana School Education Act, 1995 and the Haryana School Education Rules, 2003. Further, Rule 161 (supra) regulates the terms and conditions of employment of their employees. Rule 161 specifically contemplates that the relationship between the school management and its employees, though contractual in nature, is subject to the written contract of service prescribed under the Rules in Appendix-B. Thus, while the relationship between the employer and employee is contractual, such contract is not wholly unregulated and remains subject to the statutory framework governing recognized private unaided schools. In this context, Rules 161 and 162 of the Haryana School Education Rules, 2003 are reproduced hereinbelow for ready reference:-
“e. Contract of Service.
161. Signing of contract.
The Managing Committee of every recognized private school shall enter into a written contract of service in appendix B with every employee of such school. A passport size photo of each employee shall be affixed on the filled in proforma of contract of his service.
B. Service rules for employees of unaided recognized schools and employees working in aided schools on
unaided posts.
162. Service conditions -
(1)Every Managing Committee of Recognized school i.e. running under self finance scheme shall frame Rules and regulations of their employees with regard to
(i)service conditions of the employees
(ii)recruitment procedure
(iii)salary to the teacher (not less than minimum wage policy of the state)
(iv)service benefits i.e. contributory provident fund, medical, leave, increments etc.
(v)qualification of teaching and non teaching staff (not less than prescribed 2003 Rules)
(vi)Code of Conduct and penalties
(vii)constitution of disciplinary committee etc.
(viii)the school authority shall pay the salary to the staff through bank or cheque"
The perusal of the aforesaid Rules clearly indicates that the School Management is under an obligation to enter into an agreement/contract of employment as per Appendix B and, further, to frame rules and regulations governing the service conditions of its employees. Further, Rule 162(1)(i) to (viii) provides for framing of rules regarding service conditions, recruitment procedure, salary, code of conduct and penalties, amongst other matters. It is not disputed that, in terms of the mandate of the aforesaid Rules, the petitioner has framed the Janki Dass Public Service Rules, 2012. The rules framed by the petitioner-school lay down a complete mechanism from the initial appointment of an employee and provide for the service conditions, including the age of superannuation and a detailed procedure in cases of suspension, inquiry and penalty to which an employee can be subjected. Once the service rules have been framed by the petitioner-school in terms of Rules 161 and 162, the petitioner-school is bound to follow the procedure prescribed therein and cannot deviate from the same in any manner. Similar observations were made by a three-Judge Bench of the Hon'ble Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, wherein, speaking through Justice N.V. Ramana, it was held as under:-
“98.We also direct that all the above procedural safeguards, as elucidated by us need to be mandatorily followed. In this context, this Court in the Hukam Chand Shyam Lal (supra) and observed the following:- “18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other amodes (sic) of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature. ”
Admittedly, after issuance of the charge-sheet and placing the petitioner under suspension, the departmental inquiry contemplated under the Service Rules, 2012 was not initiated, and the petitioner was terminated without holding the inquiry. The argument advanced by learned counsel for the petitioner that the misconduct was apparent and that holding an inquiry was, therefore, unnecessary, is required to be rejected. There is no material on record to indicate that the facts of the present case fall within the category of exceptional cases where holding an inquiry would be meaningless. Moreover, the scope of interference by this Court with the findings recorded by the Tribunal is well settled.
It is trite law that a writ of certiorari is issued to correct jurisdictional errors or illegality in the exercise of jurisdiction, including violations of the principles of natural justice. However, the power is supervisory in nature and not appellate. Accordingly, while errors of law apparent on the face of the record are amenable to correction, findings of fact arrived at by the competent authority upon appreciation of evidence cannot be reappreciated or interfered with under writ jurisdiction. Reliance in this regard can be placed on the judgement of the Constitution Bench of the Hon’ble Supreme Court in Syed Yakoob v. K. S. Radhakrishnan, 1964 AIR SC 477, wherein, speaking through Justice P. B. Gajendragadkar, the following was observed:
“7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104: Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh, AIR 1960 Supreme Court 1168.
8.It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”
(Emphasis added)
Furthermore, a two-Judge Bench of the Hon’ble Supreme Court in General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Sri Giridhari Sahu, 2019(10) SCC 695, speaking through Justice K.M. Joseph, has observed as follows in this regard:
“29.On the conspectus of the decisions and material, we would hold as follows: The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of Certiorari will not don the cap of an Appellate Court. It will not reappreciate evidence. The Writ of Certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a Tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to Certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a Writ of Certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter 'off bounds' for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath (supra), as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down [See M/s. Perry and Co. Ltd (supra)].”
(Emphasis added)
Adverting to the facts of the present case, learned counsel for the petitioner(s) could not point out any jurisdictional error, violation of the principles of natural justice, or any other ground that would warrant interference with the impugned orders in exercise of the writ jurisdiction of this Court.
In view of the discussion above, this Court does not find it appropriate to invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India. Accordingly, both the present petitions stand dismissed.
Pending miscellaneous application(s), if any, shall also stand disposed of.
Photocopy of this order be placed on the files of connected case(s).