IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.08.2009
C O R A M:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
and
THE HONOURABLE MR.JUSTICE RAJA ELANGO
W.A.Nos.16 of 2008 & 105 of 2009
Madurai Institute of Social Science
Rep. by its Secretary,
Alagar Koil Street,
Maduriai-625 001 ... Appellant
(in W.A.No.16 of 2008)
N.Narayanasamy ... Appellant
(in W.A.No.105 of 2009)
vs.
1.The State of Tamil Nadu
Rep. by its Secretary to the Government,
Higher Education Department,
Fort St. George,
Chennai-600 009.
2.Director of Collegiate Education,
Chennai-600 006.
3.Joint Director of Collegiate Education,
Madurai. ... Respondents 1 to 3
(in both writ appeals)
4.N.Narayanasamy ... 4th respondent
(in W.A.No.16 of 2008)
5.Secretary
Madurai Institute of Social Science,
Alagarkoil Road, Madurai-2. ... 4th respondent
(in W.A.No.105 of 2008)
PRAYER IN W.A.NO.16 OF 2008 Writ Appeal filed under Clause 15 of the Letters Patent Act against the Common order passed by the learned single Judge of this Court in W.P.No.14368 of 2001, dated 10.09.2007.
PRAYER IN W.A.NO.105 OF 2009 Writ Appeal filed under Clause 15 of the Letters Patent Act against the Common order passed by the learned single Judge of this Court in W.P.No.15824 of 2001, dated 10.09.2007.
For Appellant : Mr.C.Selvaraju, Senior Counsel
for M/s.S.Mani
(in W.A.No.105 of 2009)
Mrs.Rita Chandrasekaran
for Mr.M/s.Aiyar and Dolia
(in W.A.No.16 of 2008)
For respondent : Mr.D.Sreenivasan, AGP
for R1 to R3 (in both W.A's)
Mr.C.Selvaraju, Senior Counsel
for M/s.S.Mani for R4
(in W.A.No.16 of 2008)
C O M M O N J U D G M E N T
RAJA ELANGO, J.
W.A.No.105 of 2009 has been filed against the order of the learned single judge of this Court dated 10.09.2007 dismissing W.P.No.15284 of 2001 preferred by the Appellant against G.O.(2D) No.112 Higher Education (D1) Department dated 03.07.2001 in so far it relates to the direction issued to the 4th respondent for refunding the sum of Rs.1,450/= to the Appellant in W.A.No.16 of 2008.
W.A.No.16 of 2008 has been filed against the order of the learned single judge of this Court dated 10.09.2007 dismissing W.P.No.14368 of 2001 preferred by the Management of Madurai Institute of Social Institute against G.O.(2D) No.112 Higher Education (D1) Department dated 03.07.2001 ordering reinstatement of the 4th respondent into the services.
As the above Writ Appeals are connected with each other, they disposed of by this common order. For the sake of convenience, the parties are referred according to their status in W.P.No.14368 of 2001.
1. The case in brief are as follows:-
Mr.Narayanasami, the 4th respondent in W.P.No.14368 of 2001, was working as an Assistant in the Management of Madurai Institute of Social Science (hereinafter referred to as Institute). On 19.09.2003, the Institute issued a charge memo to the 4th respondent for removing of old iron rods and pipes belonging to the Institute unauthorisedly without prior permission and he was called upon to submit his explanation. A letter was addressed by the 4th respondent on 19.09.2003 seeking for furnishing of documents for submitting his explanation. On 22.03.2003, documents were furnished to him and on 02.04.1993, he submitted his explanation. Pending enquiry, the 4th respondent was placed under suspension on 19.04.1993.
2. By the proceedings dated 19.04.1993, the 4th respondent was informed about the disciplinary proceedings to be conducted on 29.04.1993 and was called upon to be present in the College on 11.00 a.m. on that day to participate in the enquiry The 4th Respondent was given details as to the list of witnesses to be examined on the side of the Management and was also furnished with the list of documents that are to be relied upon by the Appellant at the enquiry proceedings
3. The enquiry was scheduled to commence on 29.04.1993. On 22.04.1993, a letter was sent by the 4th respondent to the Institute objecting to the inclusion of the Director in the Committee. In the said letter, he also made a request for furnishing of copies of statements given by the Director and also further sought for assistance of an Advocate in the enquiry. On 28.04.1993, the 4th respondent was called upon to appear for enquiry on 10.05.1993. In the meantime, the 4th respondent filed O.S.No.798 of 1993 before Additional District Munsif Court, Madurai for a permanent injunction restraining the Institute from proceeding with the enquiry. Initially, interim injunction was granted and subsequently, the same got vacated on 08.07.1993. Aggrieved by the same, the 4th respondent preferred C.M.A.No. 40 of 1993 which was allowed on 11.08.1993. The order dated 11.08.1993 was the subject matter of C.R.P.No.2662 of 1993 before this Court. By the order dated 19.07.1996, this Court disposed off the Revision Petition observing that the trial court has to decide about the constitution of the College Committee and gave liberty to the 4th respondent to challenge the result of enquiry after the same is over and after the decision is communicated.
4. On 16.07.1993, the Institute addressed a letter addressed to the 4th respondent calling upon him to appear for enquiry on 17.07.1993. On 15.07.1993, the 4th respondent addressed by the 4th respondent requesting for postponement of enquiry on the ground that he is contemplating to prefer an appeal against the dismissal of interlocutory application praying for temporary injunction. On 16.07.1993, the Institute addressed a letter addressed to the 4th respondent calling upon him to attend the enquiry to be held on 17.07.1993. As the 4th respondent did not participate in the enquiry despite being afforded opportunity, finally, on 24.07.1993, exparte enquiry was conducted and the Enquiry Officer held the charges proved. On 01.08.1993, the College Committee came to a provisional conclusion to dismiss from service. On 02.08.1993, second show cause notice was issued to the 4th respondent along with the copy of report of the enquiry officer. On 12.08.1993, the 4th respondent submitted his explanation.
5. On 17.08.1993, the recommendation of the College Committee of the Institute for imposition of punishment of removal from service was sent to the Director of Collegiate Education for approval. By the order dated 15.02.1994, approval was rejected and reinstatement was ordered with effect from 20.08.1993. The order dated 15.02.1994 was challenged by the Institute by preferring W.P.No.2993 of 1994. The 4th respondent also filed W.P.No.13228 of 1994 seeking direction for reinstatement. By the order dated 30.08.2003, this Court allowed the Writ Petition filed by the Management and the Writ Petition preferred by the 4th respondent was dismissed.
6. On 10.01.1997, the Institute sought approval from the Joint Director of Collegiate Education. By the order dated 12.02.1997, the Joint Director of Collegiate Education directed the Institute to reconstitute the Committee and to hold fresh enquiry. Aggrieved by the same, Appeal was preferred on 21.02.1997 to the Director of Collegiate Education. On 10.04.1997, the Director of Collegiate Education directed the Institute to hold a fresh enquiry. Aggrieved by the said proceedings, the Management filed a Revision on 24.04.1997 under Section 41 of the Tamil Nadu Private Colleges Regulation Act to the Government. By the order dated 28.10.1998, the Government set aside the order dated 10.04.1997 and remanded the matter back to the Director of Collegiate Education. By the proceedings dated 09.12.1998, the Director of Collegiate Education allowed the appeal and directed the Joint Director of Collegiate Education to either accord or refuse approval and pass orders within a period of six weeks. On 19.01.1999, the Joint Director of Collegiate Education declined to grant approval. On 21.01.1999, a letter was sent by the Government to the Institute to hold discussion relating to the termination of the 4th respondent and a copy of the same was marked to the Director of Collegiate Education. On the very same day, viz., 21.01.1999, the Director of Collegiate Education directed reinstatement of the 4th respondent.
7. Aggrieved by the order dated 21.01.1999, the Institute preferred an appeal to the Government on 28.01.1999. As the Appeal was not disposed off by the Government, the Institute filed W.P.No.1972 of 2001 before this Court for issuance of Writ of Mandamus directing the Government to dispose of the Appeal. By the order dated 02.02.2001, this Court disposed of the Writ Petition directing the Government to dispose the appeal within a period of 3 months. Pursuant thereto, by G.O.(2D) No.112 Higher Education (D1) Department dated 03.07.2001, the 1st respondent ordered reinstatement of the 4th respondent into the services of the Institute. The Government Order dated 03.07.2001 ordering reinstatement of the 4th respondent was assailed by the Institute by preferring W.P.No.14368 of 2001. The 4th respondent also filed W.P.No.15284 of 2001 against the Government Order dated 03.07.2001 in so far as it directed him to refund the sum of Rs.1,450/= to the Institute.
8. By the common order dated 10.09.2007, the learned single judge dismissed the Writ Petitions preferred by the Institute as well as by the 4th respondent.
9. W.A.No.16 of 2008 has been preferred by the Institute against the order made in W.P.No.14368 of 2001 and W.A.No.105 of 2009 has been preferred by the 4th respondent against the order made in W.P.No.15284 of 2001 directing him to refund the sum of Rs.1,450/= to the Institute.
10. It is an admitted position that charges were framed against the 4th respondent for unauthorisedly removing the iron rods and pipes from the premises of the Institute without prior permission. It is also an admitted fact that the 4th respondent did not attend the enquiry and that the Institute conducted ex-parte enquiry since the 4th respondent refused to participate in the enquiry despite being afforded fair and reasonable opportunity. It is also an admitted fact that the fairness of the enquiry proceedings has not been challenged by the 4th respondent in a manner known to law. In view of the above, the findings of the Enquiry Officer cannot be held to be perverse and this Court cannot go into the merits of the case and re-appreciate the evidence. Further, the 4th respondent had not preferred an appeal under Section 20 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 challenging the punishment imposed on him.
When once the charge is held to be proved, the direction given by the 1st respondent to the 4th respondent to refund the sum of Rs.1,450/= will not absolve the 4th respondent of the charges framed against him.
11. Section 37 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 contemplates preferring of an appeal before the Director of Collegiate Education against the order passed by the Joint Director of Collegiate Education. The Institute ought to have preferred an appeal against the order dated 19.01.1999 passed by the Joint Director of Collegiate Education to the Director of Collegiate Education. But instead, Revision was filed before the Government. The competent authority to decide the approval petition of the Institute is the Director of Collegiate Education.
12. The above said factual aspects clearly shows both the institution as well as the employee approaches various forums invoking wrong provisions which were also entertained. The legislature enacted various laws to regulate various institutions, whereby authorise the authorities to decide the disputes. The private schools Regulation Act empowers the competent authority on receipt of proposal for dismissal of an employee is empowered to decide i) whether enquiry is proper; ii) the enquiry report is perverse or based on any evidence ; iii) whether the committee has jurisdiction to propose the removal.
13. If the enquiry is otherwise fair, enquiry report is not perverse and is based on evidence and proposal has been mooted by the competent committee, in such case it is also open to the competent authority and the revisional authority to decide whether the punishment is proportionate to the gravity of the charges.
14. In the present case, it has not been alleged either by the competent authority or by the revisional authority that the enquiry was not proper or that the enquiry report is perverse and/or based on evidence or the committee proposed to punish is not competent. In absence of such finding as it is accepted that the fair enquiry was made after giving opportunity to the party, the enquiry report is not perverse and based on evidence and the committee had jurisdiction to propose punishment, in such case, the only question to be determined is whether the competent authority could have altered the proposed punishment by staying lesser punishment was called for. Similarly, whether the revisional authority could have computed the punishment in terms of money by saying that the payment of Rs.1450/- will suffice even for misconduct, like theft of materials. Both the competent authority and the revisional authority having found that the charges have been proved against the employee and that the employee committed the misconduct, for charge like theft of materials, the severe punishment of removal from service or any punishment lesser than the same will be proportionate to be decided by the competent authority. The Competent authority having suggested for lesser punishment and the revisional authority having imposed a condition of paying back the amount of Rs.1450/-, such order cannot be sustained in the eye of law. The order passed by the revisional authority is accordingly interfered with and set aside, as the same will give rise to another illegal order, i.e., order passed by the competent authority. The said order passed by the competent authority is also set aside.
15. Under the above circumstances, the matter is remitted back to the Director of Collegiate Education to consider the recommendation of the College Committee of the Institute with regard to the imposition of punishment of removal from service on the 4th respondent. The Director of Collegiate Education shall complete the exercise and pass orders thereon within a period of three months from the date of receipt of copy of this order.
16. With the above observations, the Appeals are disposed off. But however there shall be no order as to the costs.
rrg
To
1.The Secretary to the Government,
The State of Tamil Nadu
Higher Education Department,
Fort St. George,
Chennai-600 009.
2.Director of Collegiate Education,
Chennai-600 006.
3.Joint Director of Collegiate Education,
Madurai.
4.The Secretary
Madurai Institute of Social Science,
Alagarkoil Road,
Madurai 2