Dated : 24-11-2008

Coram

The Honourable Mr.Justice N.PAUL VASANTHAKUMAR

W.P.No.28196 of 2005

W.P.M.P.No.1085 of 2008

Little Flower Primary School,

rep.by the Secretary,

Chinnalapatti,

Dindugal District. ... Petitioner

Vs.

1. The Joint Director of Elementary Education,

College Road,

Chennai - 600 006.

2. The District Elementary Education Officer,

Dindugal District.

3. The Assistant Elementary Education Officer,

Chinnalapatti, Dindugal District.

4. G. Jothi ... Respondents

(R-4 impleaded as per the order of the Court dated 1.12.2006

in W.P.M.P.No.17034 of 2006)

Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the entire records connected with the impugned proceeding in Mu.Mu.No.20393/H3/05, dated 2.8.2005 passed by the first respondent and confirming the order of the second respondent passed in Na.Ka.No.616/A3/2001, dated 16.4.2002 and quash the same and direct the respondents to grant permission for the disciplinary action to dismiss the Headmistress on the basis of the petitioner's proposal dated 12.5.2001.

For Petitioner : Mr.S.N.Ravichandran

For Respondents 1 to 3: Mr.K.H.Ravikumar,

Government Advocate

For 4th Respondent : Mr.S.D.N.Vimalanathan

O R D E R

By consent of both sides the writ petition is taken up for final disposal.

2. This writ petition is filed challenging the order of the first respondent dated 2.8.2005 rejecting request of the management seeking prior approval to terminate the services of the 4th respondent, which confirms the order passed by the second respondent dated 16.4.2002 and direct the second respondent to grant prior approval to dismiss the 4th respondent on the basis of the proposal dated 12.5.2001.

3. The facts that are necessary for disposal of the writ petition as could be seen from the pleadings and documents filed in the writ petition are as follows:

(a) The petitioner school was established in the year 1973 by the Weavers of the Hindu Devanga community and in particular, the Appukolluthar Dayathikal sect. It is a recognised private aided school. The School Committee was formed for three years, which was approved by the second respondent from 13.12.1996. The Committee consisted of seven members of the Educational Agency, two representatives of teachers and Headmistress. (b) On 25.1.2001, the 4th respondent, who was the Headmistress, distributed the pamphlets relating to Christianity to School students through teachers. Parents and public objected the same. One Siva, Hindu Munnani Activist, objected the said act of the Headmistress. The pamphlets were collected from the students and handed over to the said Siva. According to the petitioner, the said alleged action of the 4th respondent led to a turmoil and exchange of blows. A criminal complaint was lodged against the 4th respondent as well as two other teachers viz., Krishnaveni and Mahendran under sections 323, 324, 506(II) IPC in crime No.20 of 2001 on the file of the Chinnalapatty Police Station. (c) According to the petitioner, the parents as well as the public gathered in large numbers and demanded action against the 4th respondent/Headmistress. A written complaint was also lodged, for which the management on 27.1.2001 tried to issue a charge memo to the 4th respondent and sought for explanation. However, the 4th respondent absconded due to the pendency of the criminal case. The 4th respondent was absent on 29.1.2001. (d) To prevent the law and order problem, disciplinary action was initiated against the 4th respondent and she was suspended from service by invoking the powers conferred under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules, 1974 framed thereunder. The order of suspension was sent to the 4th respondent on 29.1.2001, which was received by her on 3.2.2001. Intimation was also given to the second respondent. The third and second respondents visited and inspected the School on 31.1.2001 and 6.2.2001 respectively. The suspension of the 4th respondent was also noted in the inspection book. (e) The 4th respondent applied and obtained anticipatory bail from the Judicial Magistrate Court No.III, Dindigul, on 3.2.2001 on condition to sign daily at Chinnalapatty Police Station. A registered letter containing charge memorandum was sent to the 4th respondent on 7.2.2001 and she was also informed to appear for enquiry on 14.2.2001, for which the 4th respondent sent a telegram to fix any date after 27.2.2001, for enquiry. As requested, the enquiry was adjourned to 15.3.2001. (f) The 4th respondent applied for medical leave on 29.3.2001 and submitted a reply on 1.3.2001 for the charge memo stating that the management had no right to suspend her and conduct enquiry and hence she would not appear for the enquiry. During the period of suspension, the 4th respondent submitted medical leave application and sent copy to the third respondent. The third respondent by proceeding dated 31.3.2001 directed the management to sanction her medical leave from 29.1.2001 to 24.4.2001 and permit her to join duty after the expiry of the medical leave. (g) The enquiry was posted on 2.5.2001 and 11.5.2001 for the purpose of appearance of the 4th respondent, however, the 4th respondent failed to participate in the enquiry. Consequently the School Committee on the basis of the charges, decided to recommend to the competent authority viz., the second respondent to terminate the 4th respondent from service by resolution dated 12.5.2001. (h) According to the petitioner school management, the 4th respondent was directed to submit the application in the prescribed form to claim subsistence allowance. However, the 4th respondent refused to submit the form by stating that she was on medical leave and therefore she cannot be suspended. The School Committee submitted the said proposal dated 12.5.2001 to the second respondent with evidences to prove the allegations against the 4th respondent and prayed for granting prior approval to terminate the 4th respondent's service. Since no action was taken, the management filed W.P.No.17454 of 2001 and by order dated 24.9.2001 this court directed to pass orders. (i) Petitioner further states that the second respondent directed the petitioner to conduct fresh enquiry on the charges by order dated 10.12.2001. After the said direction, the management called upon the 4th respondent to appear for enquiry on 19.2.2002, however, the 4th respondent failed to participate in the enquiry. The said fact was intimated to the second respondent and in spite of the same, the second respondent passed an order on 16.4.2002 by rejecting the request of the management seeking prior permission to dismiss the 4th respondent on the ground that enquiry was not properly conducted. The said order was challenged by filing appeal before the first respondent on 14.5.2002, who is the appellate authority. (j) The petitioner also challenged the order of the second respondent in W.P.No.21920 of 2003 and this Court by order dated 1.4.2005 directed the first respondent to consider the appeal and pass orders on merits within a period of six weeks and the first respondent rejected the appeal on 2.8.2005 and the said orders of the second respondent, confirmed by the first respondent are challenged in this writ petition by contending that the renewal of Secretaryship is a formality and it is the duty of the Department to pass orders and the failure on the part of the Department in not renewing the Secretaryship will not prevent the Secretary from functioning, as the renewal applications were submitted in time. The rejection of prior approval on the ground that Para 7 of Form-VII of the agreement signed by the petitioner and 4th respondent was not followed, cannot be sustained since the 4th respondent refused to attend the enquiry and even after the second chance given, posting the enquiry on 19.3.2002, she refused to participate in the enquiry. The petitioner management having completed the disciplinary proceeding within four months, the second respondent, who is the competent authority to grant approval of the proposed punishment is bound to grant prior approval to terminate the 4th respondent.

4. The second respondent filed counter affidavit on his behalf and on behalf of the respondents 1 to 3. It is stated in the counter affidavit that the petitioner management kept the 4th respondent under suspension beyond four months, the time limit prescribed under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and in spite of the directions issued by the second respondent to restore the 4th respondent in service and pursue the disciplinary action if necessary, the said directions were not complied with. The 4th respondent was not given any opportunity to face the charges framed against her and without conducting proper enquiry, she was dismissed from service and the second respondent even though directed to conduct enquiry by the petitioner, again no enquiry was conducted and final order was drawn and the said procedure adopted by the petitioner management is improper. Since the mandatory procedures having not been followed, the prior approval sought for to terminate the 4th respondent was not granted and the appellate authority also confirmed the order of the second respondent by order dated 2.8.2005.

5. The fourth respondent filed affidavit in support of W.P.M.P.No.1085 of 2008 and the learned counsel for the 4th respondent submitted that the said affidavit may be treated as counter affidavit in the main writ petition. According to the 4th respondent, the period of Secretary of the School Committee expired on 12.12.1999, and the same was not renewed and approved by the second respondent. The conditions contained in para 7 of the agreement entered into between the management and the 4th respondent under Form VII-A were violated. No enquiry was conducted and no resolution of the School Committee was passed to terminate the 4th respondent and the Secretary (whose term already expired) has no jurisdiction to terminate the service of the 4th respondent. By not permitting the 4th respondent to rejoin duty after the period of four months of suspension, the petitioner violated Rule 17(2)(iii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The writ petitioner has not impleaded the 4th respondent in the writ petition and attempted to get an order behind her back and only after filing impleading petition by the 4th respondent, she is made as a party in the writ petition. The Secretary has no jurisdiction to place the 4th respondent under suspension as well as to pass orders of termination. The subsistence allowance was not paid during the period of suspension. This Court in W.P.M.P.No.20935 of 2001 in W.P.No.14123 of 2001 ordered to restore the status of the 4th respondent and also to pay subsistence allowance and submit a report by order dated 30.10.2001. Writ appeal filed against the said order was dismissed and SLP No.7408 of 2007 was also dismissed with a direction to pay a sum of Rs.2,50,000/-. The 4th respondent reached the age of superannuation on 30.6.2008 and the competent authority having not granted prior permission to terminate the 4th respondent's service, the writ petitioner management is bound to pay salary upto the date of retirement of the 4th respondent i.e., till 30.6.2008 and also submit the pension proposal for sanction with all other terminal benefits.

6. The learned counsel for the petitioner management submitted that the rejection of prior approval, sought for to terminate the 4th respondent from service, cannot be sustained in view of the disciplinary action taken against the 4th respondent as the management conducted disciplinary proceedings properly and the management is the proper authority to initiate disciplinary action and pass final orders. The respondents have no jurisdiction to review the above decision and the impugned orders passed by the respondents are liable to be set aside. The learned counsel further submitted that if the procedural violation is upheld, the matter may be remitted to the petitioner to conduct fresh enquiry. The learned counsel also expressed the financial difficulties of the management in paying the entire backwages, if the writ petition is dismissed on any ground.

7. The learned Government Advocate appearing for respondents 1 to 3 submitted that charges were framed against the 4th respondent and she was suspended beyond four months and the same is in violation of the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules 1974. The direction to restore the 4th respondent subject to the disciplinary proceeding was not complied with by the petitioner management. The 4th respondent was set exparte and no enquiry report was drawn to prove the charges framed against the 4th respondent and straight away order of termination was proposed. The same is in violation of the mandatory provisions contained in Form-VII(A) of the agreement, which is binding on the petitioner and 4th respondent. Taking note of the above facts, the second respondent refused to grant approval. The second respondent being the statutory authority is bound to consider the regularity of the disciplinary proceeding to arrive at a conclusion. The appeal filed against that order was also rejected by the first respondent and the said orders are legal and valid.

8. The learned counsel for the 4th respondent submitted that the Secretary of the School Committee has no jurisdiction either to place the 4th respondent on suspension or issue charge memo, conduct enquiry and to take decision to terminate. The School Committee alone is the competent to initiate any proceedings against the teacher or other persons employed in the private schools and the Secretary can act only on the basis of the resolutions passed by the School Committee of the private school. The non-payment of subsistence allowance was taken note of by this Court and ordered to pay the arrears of subsistence allowance, which was confirmed by the Division Bench of this Court as well as the Honourable Supreme Court and thereafter only a sum of Rs.2,50,000/- was paid. The learned counsel further submitted that the petitioner School being a private Aided Recognised School, is bound to follow the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules, 1974. The mandatory procedures have not been followed by conducting proper enquiry and after submission of enquiry report proving the charges and only after proving the charges any punishment can be proposed and that too after giving show cause notice before the final order of punishment can be proposed. The said procedures having not been followed, the second respondent denied prior approval to terminate the services of the 4th respondent, which was also rightly upheld by the first respondent. The learned counsel also submitted that criminal complaint registered against the 4th respondent and two others was referred as mistake of fact and the incident alleged being one and the same, there is no cause of action to proceed against the charges.

9. I have considered the rival contentions of the learned counsel for the petitioner management as well as respondents.

10. The 4th respondent was admittedly the Headmistress of the petitioner school. The petitioner school is a Recognised Private Aided School. The provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and the Rules, 1974, are admittedly applicable to the petitioner school. The service conditions of the persons employed in a private schools is governed under Chapter-V of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The charges alleged against the 4th respondent reads as follows: "1. Tmt.G.Jothi/4th respondent, on 25.1.2001, in her capacity as Headmistress, at School hours, distributed the pamphlets regarding christianity to the students, and on the objections of the local people, withdrew the pamphlets.

2. Due to the distribution of pamphlets, dispute arose between G.Jothi/4th respondent and one Siva and a criminal complaint in crime No.20/2001 dated 25.1.2001 was registered on the file of the Chinnalapatti Police Station.

3. Tmt.G.Jothi/4th respondent failed to intimate to the management about her obtaining anticipatory bail order and her reporting before the Police Station.

4. On 29.1.2001 did not attend the School without any prior intimation."

The criminal case registered in Cr.No.20 of 2001 on the file of the Chinnalapatty Police Station against the 4th respondent and other two teachers was referred as mistake of fact. For the charge memo dated 7.2.2001, the 4th respondent was directed to explain in person on 14.2.2001. The 4th respondent sent a reply on 1.3.2001 stating that due to her ill-health she was on medical leave and therefore she could not appear for the enquiry as directed. It is also seen from the charge memo dated 7.2.2001 that the 4th respondent was directly called upon to attend the enquiry. The said action of the petitioner is in violation of Form-VII(A) agreement and also unknown to the service jurisprudence. If charges are framed and explanations are not found satisfactory, Enquiry Officer can be appointed. Thus the procedure adopted by the petitioner is clearly improper.

11. The conditions of service of a private school teacher is governed by an agreement executed by the management and teachers viz., Form VII-A, which was framed under Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The Headmaster of a private school is also a teaching staff in that private school. In clause 6 of the said statutory agreement, it is stated that the teacher and the School Committee shall confirm to all the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules. Clause 7 states that the School Committee shall not dismiss, remove or reduce in rank or terminate the service of the said teacher, without informing him or her in writing on the ground on which they intend to take action and adopt the following procedures before taking any final decision before the punishment to be imposed: "(a) The memorandum of charge shall be communicated to him/her in writing giving him/her reasonable time to send his/her explanation to the School Committee.

(b) After considering his her explanation the School Committee shall communicate to him/her findings and if so desired by the said teacher conduct a personal hearing or enquiry, wherein he/she shall be given the opportunity to examine or cross-examine any or all the witnesses and also produce witnesses. (c) After the conduct of the personal hearing or enquiry by the School Committee the report of such personal hearing or enquiry shall be furnished to the teacher and a notice shall be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to defend himself/herself against the proposed punishment. (d) After the receipt of the statement of defence from him/her an taking into consideration the School Committee shall inform him/her in writing about is final decision."

As per section 22 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, if any teacher or other person employed in any private school is to be dismissed, removed or reduced in rank, prior approval of the competent authority shall be obtained. Section 22 reads as follows: "22. Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools.- (1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. (2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private school is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment." Thus, it is evident from the statutory provisions that the petitioner management is bound to follow the above said procedures, namely, frame charge memo; give reasonable time to submit reply; if the reply is not satisfactory, conduct enquiry; draw a report of the enquiry; serve a copy of the report to the delinquent; serve the final show cause notice with regard to the proposed penalty; and after the receipt of reply, consider the same before decision is taken. The said decision can be implemented only after getting the prior approval of the competent authority, viz., the second respondent under section 22(1) of the Act.

12. It is clear from the records filed in this writ petition, though charges were framed against the 4th respondent, no time to submit explanation was given, no enquiry was conducted and admittedly no enquiry report was drawn holding that the charges levelled against the 4th respondent were proved. In the absence of any enquiry report to prove the charges against the 4th respondent, the petitioner management has chosen to terminate and applied before the second respondent seeking prior approval. The said approval request was rejected by the second respondent by order dated 25.5.2005 by specifically stating that the terms and conditions governing the petitioner and the 4th respondent has not been followed as per Form VII-A. No enquiry was conducted. The second respondent is entitled to find out the regularity of the proceeding initiated and if the same is not satisfied, approval can be rejected. The said decision taken by the second respondent was confirmed by the first respondent in appeal. Section 22(2) clearly states that the competent authority should be satisfied about the decision on adequate and reasonable grounds not only with regard to the procedures followed, but also can look into the gravity of the charge and whether the proposed punishment is commensurate with such proved charges and it is an inbuilt mechanism provided under the statutory Rule. Therefore, the petitioner management is not justified in its contention that the second respondent is not justified in refusing prior approval.

13. Whether the competent authority has got powers to look into all aspects while deciding an issue under section 22(2) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, was considered by the Honourable Supreme Court in the decision reported in (2003) 2 CTC 175 (Secretary, School Committee v. Government of Tamil Nadu)(SC) and in paragraphs 10 and 11, it is held as follows: "10. Though attempt was made to contend that at the stage of consideration under Section 22(1) and 22(2) and Rule 17(1), there is no scope for looking into the proportionately of punishment aspect, the same is clearly without any substance. What an authority is required to do at that stage is to see whether the proposed punishment is to be approved. Obviously, it has to consider whether the punishment as proposed is proper one; otherwise there is no need for seeking its approval. The crucial words used in sub-section (2) of Section 22 are "adequate and reasonable ground" for the proposal. The proposal relates to dismissal, removal or reduction in rank or otherwise termination of appointment of any teacher or any other person employed in a private school. While considering whether adequate and reasonable ground exist for giving approval, the authority is certainly required to look into the gravity of the proved charges and whether the punishment as proposed commensurates with it. Any other interpretation would make the question of approval an exercise in futility.

11. Stand of the learned counsel for the Management is that if adequate and reasonable grounds exist for the action, then no other question needs to be looked into. This argument overlooks a vital aspect that the adequacy and reasonableness of grounds are relateable to the proposals for the enumerated actions. The proposed actions being punishments, there is an inbuilt requirement to see whether the quantum of punishment commensurates with the gravity of the proved charges. Therefore, clearly the authority has jurisdiction to decide the question as to whether the punishment proposed commensurates with the proved charges. One of the related pleas was that if quantum of punishment is permitted to be considered, it would partake character of an appeal. This plea is equally untenable. Sections 22 and 23 operate in different field. At the stage of consideration under section 22 and 23 operate in different fields. At the stage of consideration under section 22, the teacher does not get any opportunity for presenting his side of the case. This opportunity is provided under Sections 23 or 24 as the case may be. The authority under Section 22 takes decision on the material placed before it by the management. So the question of action under Section 22 partaking appellate characteristics does not arise."

From the order of the second respondent and as admitted by the learned counsel for the petitioner during the course of the argument, no enquiry report proving the charges levelled against the 4th respondent was drawn. Decision was taken based on the charges and complaints and prior permission was sought from the second respondent. Thus the impugned order passed by the second respondent confirmed by the first respondent is legal and valid. Hence no case is made out to interfere in the orders passed by the respondents 1 and 2.

14. The submission of the learned counsel for the petitioner for granting liberty to hold enquiry afresh cannot be granted in view of the following reasons. The charges relate to an alleged incident said to have taken place on 25.1.2001. For the very same alleged incident, a criminal complaint was registered by the Police, which was also referred as mistake of fact. The 4th respondent also reached the age of superannuation on 30.6.2008. If liberty is given to conduct fresh enquiry for the alleged occurrence that took place about eight years ago, the rights of the 4th respondent will be prejudiced due to the delay. Further, the charges are framed by the Secretary without any resolution passed by the School Committee. As per Rule 13(3) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, the Secretary of the School Committee shall act on the basis of the resolutions passed at the meetings of the School Committee. Hence I am of the view that in the facts and circumstances of this case, the petitioner is not justified in seeking liberty to conduct fresh enquiry.

15. The 4th respondent attained the age of superannuation on 30.6.2008. Since no prior approval was granted to terminate the 4th respondent, she is treated to have been in service till 30.6.2008. The petitioner management is bound to pay salary to the 4th respondent for the period in which she was kept out of service/not allowed to work as Headmistress.

16. The learned Counsel for the petitioner submitted that the School is not having sufficient funds to pay the entire arrears of salary to the 4th respondent. The financial status of the management is also to be considered while ordering payment of arrears of salary. In similar circumstances, the Honourable Supreme Court in the above referred judgment ordered 60% backwages. Hence I am of the view that the interest of justice would be met by directing the management to retire the petitioner with effect from 30.6.2008 and pay 60% of the arrears of salary, payable from the date of suspension till 30.6.2008, after adjusting the sum of Rs.2.50 lakhs, already paid pursuant to the order of the Honourable Supreme Court. The writ petitioner management is also directed to send the proposal for the sanction of pension and other terminal benefits to the second respondent, within a period of two weeks from the date of receipt of copy of this order. The arrears of salary payable as ordered above is directed to be paid within a period of six weeks from the date of receipt of copy of this order.

The writ petition is ordered with the above direction. No costs. Connected M.P.No.1085 of 2008 is closed.

vr

To

1. The Joint Director of Elementary Education,

College Road, Chennai - 600 006.

2. The District Elementary Education Officer,

Dindugal District.

3. The Assistant Elementary Education Officer,

Chinnalapatti,

Dindugal District