BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner challenges the order passed by the Rajasthan Non-Government Educational Institutions Tribunal dated 11. 10. 99 (Ex. 6) by which the dismissal order passed in case of the respondent No. 3 dated 22. 2. 1997 (Ex. 1) has been set aside being in violation of Sec. 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 and in violation of Rule 39 (2) of the rules of 1993 framed thereunder. The facts, in brief, leading to the present case are that the respondent No. 3 was appointed as a Teacher at the petitioner institution in October, 1986. In the first instance, her services were terminated vide order dated 3. 07. 1995, which order was set aside on appeal vide order dated 1. 1. 96 and the matter was remanded back to the Society for deciding the question afresh. Thereafter the order dated 22. 2. 97 was passed in purported exercise of power under proviso (iii) to Sec. 18. The termination order was also sent to the Director for approval, however, no consent as such has been accorded by the Director but the petitioner relies on a Circular issued by the Govt. under which the District Education Officers of the concerned districts have been authorised to accord sanction and it has further been envisaged that if the District Education Officer do not communicate in writing within 30 days his disapproval with the proposed termination of the services of any employee, the same may be deemed to have accorded approval of the order. Relying on this, it is contended that on expiry of 30 days from the date of sending of the decision referred to in Ex. 1 to the Director, it must also be deemed to have received the required approval u/sec. 18 of the Act. This order of termination was challenged before the Tribunal. The Tribunal has found the order to be punitive and not an order of termination simplicitor as is provided under proviso (iii) to Sec. 18 of the Act and has accepted the contention of the respondent of necessity to hold a disciplinary enquiry and to impose punishment only in accordance with findings recorded during the course of such enquiry after affording opportunity of hearing to the delinquent. The Tribunal also found on the basis of material before it that in the facts and circumstances of the case that there were clear instructions already existing from the Directorate of Education not to remove the respondent from service unless the disciplinary proceeding is complete for which an enquiry officer has been appointed by the Department and directing the institution to strictly abide by the instructions of not removing the respondent from service during the pendency of that enquiry, there cannot be considered to be a deemed sanction of the action taken by the petitioner. Thus, finding the orders to be in violation of Sec. 18, Rule 39 (2) and in breach of principles of natural justice, the impugned order dated 22. 2. 97 was set aside and the respondent No. 3 was ordered to be reinstated with continuity of service and all consequential benefits. Learned counsel for the petitioner urged that since the order Ex. 1 has been passed by unanimous decision of the committee, it must be deemed to be an order of termination simplicitor within the meaning of proviso (iii) to Sec. 18 and not by way of punishment, and therefore, the principles of natural justice were not required to be adhered to and no opportunity of hearing was required to be given to the petitioner before taking action under the said proviso. It was also contended that in view of the Govt. circular Ex. 2 dated 9. 7. 98 it must be deemed that the competent officer has accorded approval to the decision of Management Committee and therefore it also fulfils the condition of the proviso that the order of termination can be made after giving six months notice or salary in lieu thereof and the consent by Director of Education is obtained in writing. In the light of the aforesaid contentions, it will be relevant to notice the provisions of Sec. 18 of the Act of 1989 itself:- 18. Removal, dismissal or reduction in rank of employees: Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken: Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained: Provided further that this section shall not apply,- (i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or (iii) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudiced to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.
(3.) NEITHER any such contention has been raised nor any such suggestion has been made in Ex. 2, the Circular, issued by the State Govt. in that regard that any amendment in Sec. 18 has been made. The proviso (iii) leaves no room of doubt. Under the Act, for operation of proviso (iii) to Sec. 18, the conditions requisite are; first is that the managing committee is of unanimous opinion, second is that such opinion must relate to the fact that the employee cannot be continued without prejudice to the interest of the institution, third is that before such unanimous decision, can be given effect to, there must be fulfilled two pre-conditions; firstly that before the services are terminated either six months notice is to be served on the concerned employee or salary in lieu there of is paid; and secondly for such termination consent of the Director of Education is obtained in writing. No rule much less executive order can dispense with the requirement of the consent by director in writing by issuing instructions to envisage that non receipt of the decision by the Director in negative within 30 days of making of application would tantamount to be deemed consent of the Director to the proposed action of termination thus doing away with the statutory requirement of such consent to be in writing. The parent provision requires that before such order became effective such consent of the authority, who has been designated the function of according or withholding such consent, must speak for itself through an order in writing. A silence to speak cannot be equated with requirement of an order in writing. It is not within the domain of the delegated authority or executive authority of the State to deviate from that and make rule of its own in derogation of parent statute. Thus, even on admitted facts in absence of any written consent by the Director the order cannot come to life at all. In the present case, even the delegated authority namely the District Education Officer has not given his consent in writing. In view of this undisputed circumstance, termination order which even if fulfils all other conditions cannot be said to have ever come in operation and become effective. Apart from the aforesaid, it is apparent that proviso (iii) to Sec. 18 only authorises the managing committee to act collectively in unision in holding opinion that the service of any employee cannot be continued without prejudice to the interest of the institution. The expression "unanimous" is very pregnant in its requirement. It envisages deliberation of each member of the committee to consider the facts that come to light and hold same opinion viz. undesirability of any incumbent to be continued which is considered to be prejudicial to the interest of institution. The word `unanimous' and `unanimity' convey the state of affairs where all persons present to take a decision on any point do not dissent. It cannot refer to opinion of persons outside the decision making plateform on the issue. ;