Writ petition against recognised unaided school maintability
sona misti
(Querist) 11 April 2020
This query is : Resolved
Writ petition against recognised unaided school maintability does the maintability of a writ petition stands against a recognised unaided school regarding termination from job on the ground that my ex husband filed rti to that school & school answered & court ordered them to supply attendence register xerox.for that they show caused me & want to terminate me as they dont have any papers related to my personsl issue & are dragged in these. now plz enlight me .what the procedure of termination & how can i save it.the clause given in my appointment letter was displinary ground prior 3 months notice.
KISHAN DUTT KALASKAR
(Expert) 11 April 2020
Dear Madam,
Yes, it is maintainable provided the condition mentioned the following judgment are satisfied by you.
Writ Petition Challenging Dismissal Of Teacher Maintainable Against Private Unaided School : SC
The Supreme Court has held that a writ petition challenging the termination of services of a teacher is maintainable against a private unaided educational institution.
The bench of Justices Arun Mishra and Navin Sinha held so while dismissing an appeal by Marwari Balika Vidyalaya, a private school, against a Calcutta High Court judgment, which had directed the reinstatement of a dismissed teacher named Asha Srivastava with back wages by invoking writ jurisdiction under Article 226 of the Constitution of India.
She was dismissed on grounds of 'indiscipline' after she had filed a writ petition in High Court seeking expeditious action on the approval of her appointment.
The prime contention raised by the school was that powers under Article 226 of the Constitution of India could not have been invoked against a private entity.
While dismissing the appeal, the bench referred to the SC decision in Raj Kumar vs Director of Education and others, which had held that approval of the government education authorities was necessary even for dismissal of a private school employee. No such approval was obtained by the school in the instant case before retrenching the teacher.
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The bench also referred to the decision in Ramesh Ahluwalia vs State of Punjab, which had held that the employee of a private school can file writ petition in relation to service disputes. According to Ramesh Ahluwalia decision, a school is discharging a 'public function' and hence writ was maintainable against it.
"It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions", observed the bench in the order passed on February 14.
The appellant school had placed reliance on the SC decision in Committee of Management, Delhi Public School & Anr. v. M.K. Gandhi & Ors (2015) 17 SCC 353 which had dismissed a writ filed by a teacher seeking reinstatement as non-maintainable. However, that decision was distinguished by holding that question of prior approval by government authorities for dismissing a teacher was not involved there.
The decision Satimbla Sharma & Ors. v. St. Paul's Senior Secondary School & Ors referred by the appellant was a case demanding equal pay for private school teachers at par with government teachers. The SC had dismissed that claim holding that equality under Article 14 cannot be raised against a private entity. The next precedent relied by the appellant - Sushmita Basu v Ballgunge Siksha Samity- was a case for equal payment of dearness allowance to private school teachers as given to government school teachers. The SC had rejected that claim observing that writ against a private body cannot be claimed if there is no public law element involved.
The bench distinguished these cases holding that the facts were different.
"In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court", the Bench said.
It added that the direction to pay back wages was reasonable as the teacher was made to suffer a stigmatic order.
Contrary view taken by Kerala High Court
On February 28, the Division Bench of High Court of Kerala had answered a reference to hold that writ petition was not maintainable against a private school in relation to service matters of employees.
The bench of Justices V Chitambaresh and Narayana Pisharadai overruled two single bench decisions - Bincy Raj vs CBSE & Chitra v State of Kerala- which had held that the writ court can review disciplinary action against a CBSE teacher. These decisions had held writ to be maintainable on the ground that education amounted to discharge of a public function.
Rajendra K Goyal
(Expert) 11 April 2020
You asked:
maintainability of a writ petition stands against a recognized unaided school.
Reply: Yes.
You asked:
regarding termination from job on the ground that my ex husband filed rti to that school & school answered & court ordered them to supply attendance register xerox.for that they show caused me & want to terminate me
Reply:
For actions of others you cannot be punished. He is your ex-husband. Deny all charges in reply to show cause and inform that this was an act to trouble you by ex-husband.
You asked:
as they dont have any papers related to my personsl issue & are dragged in these.
Reply:
If they proceed, you have good grounds to take help of law.
You asked:
now plz enlight me .what the procedure of termination & how can i save it.
Reply:
Normally, charge sheet, inquiry, finding and action is the procedure. For each step proper fare chances to represent / save yourself to be given.
Rajendra K Goyal
(Expert) 11 April 2020
Expert Kishan Dutt retd. Judge has provided very good citation, may be of help.
Rajendra K Goyal
(Expert) 11 April 2020
Query repeated at:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718101.asp
Also at:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718106.asp
Raj Kumar Makkad
(Expert) 11 April 2020
If you have already raised the same query earlier then there is no need for posting again.
Raj Kumar Makkad
(Expert) 11 April 2020
The sole answer of your sole query is YES. A writ petition is maintainable before High Court against recognized unaided university/school.
Rajendra K Goyal
(Expert) 15 April 2020
Agree with the expert Raj Kumar Makkad ji, there are many citation available on the subject. However, it is not possible to refer all these at this place. Let the exercise be done by your lawyer.
sona misti
(Querist) 16 April 2020
my school principal show caused me on 18.03.2020 & asked for reply within 7 days as my ex had rti them 4 times regarding mine & other teachers sallry & other particulars & i didnot disclose my personal papers to them & now court told them to submit attendence register from my permanancy & verbally told not to come from next day.(when principal gave answer to rti he never asked my opinion or case).next day i went for my invigilation duty of class11 exam as board circular was there that every teacher had to be present.he didnot let me sign the register & did not gave me any written order.then i wrote about it and received it from clerk & came back.i went to school to submit my showcause reply on 23.03.2020 but clerk said school is closed & then i went to post through speedpost but due to lockdown the service was postponed.then i booked through courier but it didnot reach as school was closed.now school started online class but they didnot include my name.i whatsapp my prinicipal sir but he didnot respond. i apporached some society cum m.c member (our school is run by M.C) but they told until 10th june no communication.( in our state school is closed upto 10th june).
1. can i be sacked without proper enquiry or process being a permanant teacher & my name goes to wb hs council for renewal/permission of a subject.
2.can i be sacked for not disclosing my matrimonial issue papers to them?or because ex husband filed rti & court told them to submit attendence register.
3.if they donot give me any written termination/ suspend order further what will be my due course of action?.
4.my appoint ment letter told on displinary ground i can be terminated prior 3 months notice. is it my displinary fault?or can they stop my sallary after 3 months?
5.if i donot/do get termination/ suspend order can i file writ petition ? how much time is will take if it is maintaiable?
6.how can i proceed nextt?
7.can i add up any other issue to terminate/suspend me.
Rajendra K Goyal
(Expert) 16 April 2020
You have repeated your above post in all your three repeated queries. There is no reason to repeat. The fact was pointed out previously also. Your above post has been duly replied at:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718106.asp
You can read reply given on above referred query for your following repeated query also:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718101.asp
T. Kalaiselvan, Advocate
(Expert) 17 April 2020
A writ petition seeking the relief of reinstatement with back wages is very well maintainable.
The school cannot take any such decision on their own without taking the legal recourse on such sensitive subjects.
Raj Kumar Makkad
(Expert) 17 April 2020
A person in litigation has every right to get the information of the employment of his opposite party through court process as has been done by your husband but on that ground, your services cannot be dispensed with. The school can provide the demanded information which may go against your interests also but this is not sufficient ground to dismiss you hence you have a very good case to get the order challanged before high court.
Raj Kumar Makkad
(Expert) 17 April 2020
The issue of not accepting any correspondance till 10th day of June 2020 is not understandable as the same is an illlegal act on the part of the school management. The denial to accept your registered letter or personal leter is nothing but a denial of justice which ultimately shall benefit you once you file the writ petition after expiry of this lockdown period.
Raj Kumar Makkad
(Expert) 17 April 2020
Your questionwise reply is as under:
1. No. You cannot be sacked from service without following the set procedure of discipline.
Raj Kumar Makkad
(Expert) 17 April 2020
2. No. These are not the valid grounds for sacking. Even if for the sake of argument, it is persumed that these are the grounds, even then you were required to be seved with a notice and a fair opportunity of hearing was required to be given.
Raj Kumar Makkad
(Expert) 17 April 2020
3. You shall have to serve the management with a notice mentioning therein entire facts and further demand to reinstate you with all past benefits with cost and interest. This notice should be sent through a lawyer dealing in the service matters.
Raj Kumar Makkad
(Expert) 17 April 2020
4. This term of the appointment comes to play its role if either of the parties want to terminate the appointment. 3 months prior notice is mandatory in that event without leveling any allegation in that event. This terms has fully been violated by the management.
Raj Kumar Makkad
(Expert) 17 April 2020
5. Yes, you can file writ petition even though the management has neither given you termination letter nor has responded to the legal notice sent by you. None can perdict how much time can be taken by the high court to dispose of the writ petition. Approximately 2 years time is required in my high court in such matters.
Raj Kumar Makkad
(Expert) 17 April 2020
You follow the advice given under reply of your question no. 3
Raj Kumar Makkad
(Expert) 17 April 2020
7. What are those issues? You have not mentioned those issues without which it is difficult for anyone to tell you exactly, however, it is advised to raise all issue in one writ petition if those are related with the main relief.
Rajendra K Goyal
(Expert) 18 April 2020
You said:
1. can i be sacked without proper enquiry or process being a permanant teacher & my name goes to wb hs council for renewal/permission of a subject.
Reply:
Without following proper procedure, one cannot be sacked / terminated / removed / punished. If they proceed, court case is the way after following internal process. Legal procedure is time and cost consuming
Rajendra K Goyal
(Expert) 18 April 2020
You said:
2.can i be sacked for not disclosing my matrimonial issue papers to them?or because ex husband filed rti & court told them to submit attendence register.
Reply:
School is not concerned with the matrimonial / personal disputes of any teacher till any employee is arrested and need to be suspended as per service rules. Court can call record from School or from any other department, you cannot be held responsible for it. If School has objection, it should raise /prey before the court.
Rajendra K Goyal
(Expert) 18 April 2020
You said:
3.if they donot give me any written termination/ suspend order further what will be my due course of action?.
Reply:
In such case you can send registered letter regarding your attendance and work not given to you. Mention that you were not allowed to mark attendance. If possible, try to have some evidence of such refusal to permit marking of attendance and giving dutiesby school. May discuss with local lawyer.
Rajendra K Goyal
(Expert) 18 April 2020
You said:
4.my appoint ment letter told on displinary ground i can be terminated prior 3 months notice. is it my displinary fault?or can they stop my sallary after 3 months?
Reply:
No termination notice has been issued to you till date. Show cause notice has been replied by you, wait for further development.
Rajendra K Goyal
(Expert) 18 April 2020
You said:
5.if i donot/do get termination/ suspend order can i file writ petition ? how much time is will take if it is maintaiable?
Reply:
If you do not get any such letter, send letter to release your due salary. No need / no case for writ petition at this stage.
Rajendra K Goyal
(Expert) 18 April 2020
You said:
6.how can i proceed nextt?
Reply:
You have been briefed above.
You said:
7.can i add up any other issue to terminate/suspend me.
Reply:
Hope for the best till something otherwise happens. They can frame no. of charges against you, they must prove all during inquiry.
