Madurai Institute of Social ScienceRep. by its Secretary,Alagar Koil Street,Maduriai-625 001 v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.08.2009C O R A M:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAandTHE HONOURABLE MR.JUSTICE RAJA ELANGOW.A.Nos.16 of 2008 & 105 of 2009Madurai Institute of Social ScienceRep. 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 2008Writ Appeal filed under Clause 15 ofthe Letters Patent Act against the Common order passed by the learnedsingle Judge of this Court in W.P.No.14368 of 2001, dated 10.09.2007.PRAYER IN W.A.NO.105 OF 2009Writ Appeal filed under Clause 15 of https://hcservices.ecourts.gov.in/hcservices/ the Letters Patent Act against the Common order passed by the learnedsingle Judge of this Court in W.P.No.15824 of 2001, dated 10.09.2007.Prayer in W.P.No.14368/2001: Writ Petition filed under Article 226 ofthe Constitution of India to issue a Writ of Certiorari Mandamus tocall for the records pertaining to G.O.(2D)No.112 Higher Education(D1) Department dated 03.07.2001 passed by the 1st respondent in sofar as it relates to the 4th respondent herein and quash the same.Prayer in W.P.No.15824/2001: Writ Petition filed under Article 226 ofthe Constitution of India to issue a Writ of Certiorarified Mandamuscalling for the records pertaining to the order passed by the 1strespondent in G.O.(2D) No.112, Higher Education Department dated03.07.2001 and quash the same in so far as the direction whereinGovernment directed to remit Rs.1,450/- to the management and toregulate the period of suspension as eligible leave are concerned,and direct the respondent to confer all the consequential benefits tothe petitioner. 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 TRAJA ELANGO, J. W.A.No.105 of 2009 has been filed against the order of thelearned single judge of this Court dated 10.09.2007 dismissingW.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 itrelates to the direction issued to the 4th respondent for refundingthe 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 thelearned single judge of this Court dated 10.09.2007 dismissingW.P.No.14368 of 2001 preferred by the Management of Madurai Instituteof Social Institute against G.O.(2D) No.112 Higher Education (D1) https://hcservices.ecourts.gov.in/hcservices/ Department dated 03.07.2001 ordering reinstatement of the 4threspondent into the services. As the above Writ Appeals are connected with each other, theydisposed of by this common order. For the sake of convenience, theparties are referred according to their status in W.P.No.14368 of2001. 1. The case in brief are as follows:-Mr.Narayanasami, the 4th respondent in W.P.No.14368 of 2001, wasworking as an Assistant in the Management of Madurai Institute ofSocial Science (hereinafter referred to as Institute). On 19.09.2003,the Institute issued a charge memo to the 4th respondent for removingof old iron rods and pipes belonging to the Institute unauthorisedlywithout prior permission and he was called upon to submit hisexplanation. A letter was addressed by the 4th respondent on19.09.2003 seeking for furnishing of documents for submitting hisexplanation. On 22.03.2003, documents were furnished to him and on02.04.1993, he submitted his explanation. Pending enquiry, the 4threspondent was placed under suspension on 19.04.1993. 2. By the proceedings dated 19.04.1993, the 4th respondent wasinformed about the disciplinary proceedings to be conducted on29.04.1993 and was called upon to be present in the College on 11.00a.m. on that day to participate in the enquiry The 4th Respondent wasgiven details as to the list of witnesses to be examined on the sideof the Management and was also furnished with the list of documentsthat are to be relied upon by the Appellant at the enquiry proceedings3. The enquiry was scheduled to commence on 29.04.1993. On22.04.1993, a letter was sent by the 4th respondent to the Instituteobjecting to the inclusion of the Director in the Committee. In thesaid letter, he also made a request for furnishing of copies ofstatements given by the Director and also further sought forassistance of an Advocate in the enquiry. On 28.04.1993, the 4threspondent was called upon to appear for enquiry on 10.05.1993. Inthe meantime, the 4th respondent filed O.S.No.798 of 1993 beforeAdditional District Munsif Court, Madurai for a permanent injunctionrestraining the Institute from proceeding with the enquiry.Initially, interim injunction was granted and subsequently, the samegot vacated on 08.07.1993. Aggrieved by the same, the 4th respondentpreferred C.M.A.No. 40 of 1993 which was allowed on 11.08.1993. Theorder dated 11.08.1993 was the subject matter of C.R.P.No.2662 of1993 before this Court. By the order dated 19.07.1996, this Courtdisposed off the Revision Petition observing that the trial court hasto decide about the constitution of the College Committee and gaveliberty to the 4th respondent to challenge the result of enquiry afterthe same is over and after the decision is communicated. https://hcservices.ecourts.gov.in/hcservices/

4. On 16.07.1993, the Institute addressed a letter addressed tothe 4th respondent calling upon him to appear for enquiry on17.07.1993. On 15.07.1993, the 4th respondent addressed by the 4threspondent requesting for postponement of enquiry on the ground thathe is contemplating to prefer an appeal against the dismissal ofinterlocutory application praying for temporary injunction. On16.07.1993, the Institute addressed a letter addressed to the 4threspondent calling upon him to attend the enquiry to be held on17.07.1993. As the 4th respondent did not participate in the enquirydespite being afforded opportunity, finally, on 24.07.1993, exparteenquiry was conducted and the Enquiry Officer held the chargesproved. On 01.08.1993, the College Committee came to a provisionalconclusion to dismiss from service. On 02.08.1993, second show causenotice was issued to the 4th respondent along with the copy of reportof the enquiry officer. On 12.08.1993, the 4th respondent submittedhis explanation. 5. On 17.08.1993, the recommendation of the College Committee ofthe Institute for imposition of punishment of removal from servicewas sent to the Director of Collegiate Education for approval. By theorder dated 15.02.1994, approval was rejected and reinstatement wasordered with effect from 20.08.1993. The order dated 15.02.1994 waschallenged by the Institute by preferring W.P.No.2993 of 1994. The 4threspondent also filed W.P.No.13228 of 1994 seeking direction forreinstatement. By the order dated 30.08.2003, this Court allowed theWrit Petition filed by the Management and the Writ Petitionpreferred by the 4th respondent was dismissed. 6. On 10.01.1997, the Institute sought approval from the JointDirector of Collegiate Education. By the order dated 12.02.1997, theJoint Director of Collegiate Education directed the Institute toreconstitute the Committee and to hold fresh enquiry. Aggrieved bythe same, Appeal was preferred on 21.02.1997 to the Director ofCollegiate Education. On 10.04.1997, the Director of CollegiateEducation directed the Institute to hold a fresh enquiry. Aggrievedby the said proceedings, the Management filed a Revision on24.04.1997 under Section 41 of the Tamil Nadu Private CollegesRegulation Act to the Government. By the order dated 28.10.1998, theGovernment set aside the order dated 10.04.1997 and remanded thematter back to the Director of Collegiate Education. By theproceedings dated 09.12.1998, the Director of Collegiate Educationallowed the appeal and directed the Joint Director of CollegiateEducation to either accord or refuse approval and pass orders withina period of six weeks. On 19.01.1999, the Joint Director ofCollegiate Education declined to grant approval. On 21.01.1999, aletter was sent by the Government to the Institute to hold discussionrelating to the termination of the 4th respondent and a copy of thesame was marked to the Director of Collegiate Education. On the verysame day, viz., 21.01.1999, the Director of Collegiate Educationdirected reinstatement of the 4th respondent. https://hcservices.ecourts.gov.in/hcservices/

7. Aggrieved by the order dated 21.01.1999, the Institutepreferred an appeal to the Government on 28.01.1999. As the Appealwas not disposed off by the Government, the Institute filedW.P.No.1972 of 2001 before this Court for issuance of Writ ofMandamus directing the Government to dispose of the Appeal. By theorder dated 02.02.2001, this Court disposed of the Writ Petitiondirecting the Government to dispose the appeal within a period of 3months. Pursuant thereto, by G.O.(2D) No.112 Higher Education (D1)Department dated 03.07.2001, the 1st respondent ordered reinstatementof the 4th respondent into the services of the Institute. TheGovernment Order dated 03.07.2001 ordering reinstatement of the 4threspondent was assailed by the Institute by preferring W.P.No.14368of 2001. The 4th respondent also filed W.P.No.15284 of 2001 againstthe Government Order dated 03.07.2001 in so far as it directed him torefund the sum of Rs.1,450/= to the Institute. 8. By the common order dated 10.09.2007, the learned singlejudge dismissed the Writ Petitions preferred by the Institute as wellas by the 4th respondent. 9. W.A.No.16 of 2008 has been preferred by the Institute againstthe order made in W.P.No.14368 of 2001 and W.A.No.105 of 2009 hasbeen preferred by the 4th respondent against the order made inW.P.No.15284 of 2001 directing him to refund the sum of Rs.1,450/= tothe Institute. 10. It is an admitted position that charges were framed againstthe 4th respondent for unauthorisedly removing the iron rods and pipesfrom the premises of the Institute without prior permission. It isalso an admitted fact that the 4th respondent did not attend theenquiry and that the Institute conducted ex-parte enquiry since the4th respondent refused to participate in the enquiry despite beingafforded fair and reasonable opportunity. It is also an admitted factthat the fairness of the enquiry proceedings has not been challengedby 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 andthis Court cannot go into the merits of the case and re-appreciatethe evidence. Further, the 4th respondent had not preferred an appealunder 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 the1st 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 ofCollegiate Education against the order passed by the Joint Directorof Collegiate Education. The Institute ought to have preferred anappeal against the order dated 19.01.1999 passed by the JointDirector of Collegiate Education to the Director of Collegiate https://hcservices.ecourts.gov.in/hcservices/ Education. But instead, Revision was filed before the Government. Thecompetent authority to decide the approval petition of the Instituteis the Director of Collegiate Education. 12. The above said factual aspects clearly shows both theinstitution as well as the employee approaches various forumsinvoking wrong provisions which were also entertained. Thelegislature enacted various laws to regulate various institutions,whereby authorise the authorities to decide the disputes. Theprivate schools Regulation Act empowers the competent authority onreceipt of proposal for dismissal of an employee is empowered todecide i) whether enquiry is proper; ii) the enquiry report isperverse or based on any evidence ; iii) whether the committee hasjurisdiction to propose the removal.13. If the enquiry is otherwise fair, enquiry report is notperverse and is based on evidence and proposal has been mooted by thecompetent committee, in such case it is also open to the competentauthority and the revisional authority to decide whether thepunishment is proportionate to the gravity of the charges.14. In the present case, it has not been alleged either by thecompetent authority or by the revisional authority that the enquirywas not proper or that the enquiry report is perverse and/or based onevidence or the committee proposed to punish is not competent. Inabsence of such finding as it is accepted that the fair enquiry wasmade after giving opportunity to the party, the enquiry report is notperverse and based on evidence and the committee had jurisdiction topropose punishment, in such case, the only question to be determinedis whether the competent authority could have altered the proposedpunishment by staying lesser punishment was called for. Similarly,whether the revisional authority could have computed the punishmentin terms of money by saying that the payment of Rs.1450/- willsuffice even for misconduct, like theft of materials. Both thecompetent authority and the revisional authority having found thatthe charges have been proved against the employee and that theemployee committed the misconduct, for charge like theft ofmaterials, the severe punishment of removal from service or anypunishment lesser than the same will be proportionate to be decidedby the competent authority. The Competent authority having suggestedfor lesser punishment and the revisional authority having imposed acondition of paying back the amount of Rs.1450/-, such order cannotbe sustained in the eye of law. The order passed by the revisionalauthority is accordingly interfered with and set aside, as the samewill give rise to another illegal order, i.e., order passed by thecompetent authority. The said order passed by the competentauthority is also set aside.15. Under the above circumstances, the matter is remitted backto the Director of Collegiate Education to consider the https://hcservices.ecourts.gov.in/hcservices/ recommendation of the College Committee of the Institute with regardto the imposition of punishment of removal from service on the 4threspondent. The Director of Collegiate Education shall complete theexercise and pass orders thereon within a period of three monthsfrom 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.Sd/-Asst.Registrar/True Copy/rrgSub.Asst.RegistrarTo1. The Secretary to the Government, State of Tamil Nadu Higher Education Department, Fort St. George, Chennai-600 009.2. The Director of Collegiate Education, Chennai-600 006.3. The Joint Director of Collegiate Education, Madurai. 4. The Secretary Madurai Institute of Social Science, Alagarkoil Road, Madurai-2. + 1 c.c. to M/s. Aiyar & Dolia, Advocates. S.R.No.36693.+ 1 c.c. to The Government Pleader. S.R.No.36951. W.P.No.16 of 2008 and W.A.No.105 of 2009RB (CO)GSK 24.08.2009.