CORAMTHE HONOURABLE MR v. Joint Director of CollegiateEducation Chennai Region

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 3-9-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.33539 of 2003andWPMP Nos.1030 and 1031 of 2006N.K.T.National College ofEducation for womenrepresented by M.R.Vijaya ShankarSecretary21, Dr.Besant RoadTriplicane, Chennai 600 005... Petitionervs1.Joint Director of CollegiateEducation Chennai Region, Chennai 2.2.G.Premkumari.. RespondentsWrit petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorarified mandamus calling for the records ofthe first respondent in Rc.No.9547/D4/2001 dated 12.8.2003 confirming theorder passed in Na.Ka.No.9547/D4/2001 dated 15.7.2003 and quash the sameand direct the first respondent to consider the application for the grantof approval of the punishment proposed to be imposed on the secondrespondent.For Petitioner: Mr.R.ShankaranarayananFor Respondents: Mr.I.Paranthaman Additional Government Pleader for R1 Mr.K.Doraisami Senior Counsel for M/s.Muthumani Doraisami for R2ORDERThe petitioner management has brought forth this writ petition for awrit of certiorarified mandamus to quash the orders of the firstrespondent passed on 12.8.2003, in Rc.No.9547/D4/2001 confirming theorder passed in Na.Ka.No.9547/D4/2001, dated 15.7.2003.2.The Court heard the learned Counsel for the petitioner, the learnedAdditional Government Pleader for the first respondent and also thelearned Senior Counsel for the second respondent. Affidavit in support ofthe writ petition is perused. https://hcservices.ecourts.gov.in/hcservices/

3.After hearing both sides, this Court is of the considered opinionthat the writ petition itself could be disposed of as follows.4.The facts admitted by both sides, can be stated as follows:The second respondent was working in the petitioner educationalinstitution as Reader/Teacher. While so, certain charges were levelledagainst her. On enquiry, a charge memo was served upon her on 30.3.1999.She tendered her explanation on 14.5.1999. An Enquiry Officer wasappointed. On 20.7.1999, certain allegations were made by the secondrespondent against the Enquiry Officer. Under the circumstances, thefirst Enquiry Officer was removed, and a new Enquiry Officer wasappointed. The second respondent challenged the same by way of a writpetition in WP No.19952/99. On 24.12.1999, the said writ petition wasdismissed granting six months' time therefrom for the completion of theenquiry. Thereafter, the second respondent participated in the enquiry,and she was terminated. Then, the second show cause notice was served onher on 9.11.2001. She challenged the second show cause notice at thatjuncture on 16.11.2001 before this Court in WP No.22046/2001, and thematter came up for orders before this Court on 30.1.2003. The interveningcircumstance was the date of superannuation of the second respondent on30.4.2002. After the passing of that order, she did not participate.Under the circumstances, the matter was placed before the firstrespondent, the Educational Authority, for the approval of thetermination. But, it was denied by way of an order which is underchallenge, stating that actually she was to retire on 30.4.2002; that theorder of termination was passed only on 30.4.2003; that the services ofthe person who was in service, could not be extended for the purpose oftaking any action, and hence, approval could not be granted. Under thecircumstances, this writ petition has been brought forth before this Courtfor the said relief.5.In support of the writ petition, the learned Counsel for thepetitioner would submit that in the instant case, originally, when thechallenge was made by the second respondent as to the enquiry proceedingsby way of writ petition, it was dismissed granting time; that the secondrespondent also participated in the enquiry; that subsequently, the orderof termination was passed; that now, there was a communication addressedby the petitioner to the Educational Authority for the approval of thesame; that it is true that the date of superannuation of the secondrespondent was 30.4.2002; but, she could not retire or could not bepermitted to retire, since the proceedings were pending in this Court;that apart from that, an order came to be passed in WP No.22046/2001 onlyon 30.1.2003; that even in that order, this Court has made it clear thatin view of the circumstances, though the impugned order was set aside, thefourth respondent therein, the petitioner herein, was permitted to furtherproceed with the enquiry from the stage of giving show cause notice as thepetitioner had already been served with the report of the Enquiry Officer,and thus, it would be quite clear that on the date when the order came tobe passed by this Court in WP No.22046/2001 on 30.1.2003, her serviceswere actually in continuation; that apart from that, there was already apetition filed by the petitioner in WVMP No.462/2002 bringing to thenotice of the Court that the date of superannuation of the secondrespondent was 30.4.2002, and it must be taken note of; but, it was notconsidered; that it was kept pending; that the said WVMP was also given a https://hcservices.ecourts.gov.in/hcservices/ disposal along with WP No.22046/2001; that the hands of the petitionermanagement were thoroughly tied; that it could not permit the secondrespondent to retire on 30.4.2002; that under the circumstances, there wasno fault on the part of the petitioner management; that withoutconsidering these aspects of the matter, the first respondent has deniedapproval, and hence, the order of the first respondent has got to bequashed, and a direction be given for the approval of the same.6.Contrary to the above contentions, the learned Senior Counsel forthe second respondent would submit that in the instant case, thesuperannuation fell on 30.4.2002; that it is true that the proceedingswere pending; but, it did not mean that she could be stopped fromretiring; that in short, the case of the petitioner as could be seen, isthat the person against whom charges were framed and enquiry wasconducted, must be continued in service, and her services must be kept incontinuance till the enquiry proceedings are over, and only for thepurpose of taking action and termination of service, the services could beextended even after the date of superannuation, which cannot be done inlaw; that even if it is true that a writ petition was filed in WPNo.22046/2001 bringing to the notice of the Court that the date ofsuperannuation of the second respondent was 30.4.2002, a duty was castupon the petitioner-management to bring to the notice of the Court and getearly orders, but not done so; that they cannot find fault with the secondrespondent in the guise of the pendency of the proceedings; thatsubsequently, the second respondent filed a writ petition before thisCourt seeking for retirement benefits and bringing to the notice of theCourt that she retired on 30.4.2002, in WP No.26413/2003; that in thatwrit petition, this Court has passed an order stating that in view of thefact that she retired on 30.4.2002, all the pensionary benefits and otherbenefits to which she was entitled, must be given to her; that in thatorder, it has also been recorded that she retired on 30.4.2002; that underthe circumstances, it would be futile on the part of the petitioner tocome forward to state that she did not retire and she could not bepermitted to retire since the proceedings were pending, and the samecannot be heard; that the pendency of the proceedings cannot be a reasonto stop her from retiring or to retire her; that if the contention putforth by the learned Counsel for the petitioner has got to be accepted,then it would be nothing but going against the settled principles of law,and hence, the writ petition has got to be dismissed. 7.In answer to the above, the learned Counsel for the petitioner wouldsubmit that as far as WP No.26413/2003 in which the petitioner herein wasshown as third respondent, was concerned, nobody represented for the thirdrespondent; that apart from that, they had no notice of the same; and thatthough it was recorded that the retirement date was 30.4.2002, and thesecond respondent was also entitled to the retirement benefits, the samewould not have any binding force.8.In answer to the above, the learned Senior Counsel for the secondrespondent would submit that the order of the Court made in that WP wasimmediately brought to the notice of the petitioner-management within ashort span of time; and that the management had got the prior knowledge ofthe same; but, they have not taken any steps to set it aside or bring tothe notice of the Court. Added further the learned Senior Counsel thatthere was a communication addressed by the management calling for amedical certificate and also her consent for the continuance of service; https://hcservices.ecourts.gov.in/hcservices/ that she was not inclined to continue or the period need not be extended;that under the circumstances, she was not willing as per the communicationaddressed by the management, and hence, the writ petition has got to bedismissed.9.The learned Additional Government Pleader for the first respondentwould make his submissions in order to affirm the denial of approval bythe first respondent. 10.The Court paid its anxious consideration on the submissions made. 11.It is not in controversy that the second respondent was working asReader/Teacher in the petitioner management. Some charges were levelledagainst her in March 1999. The explanation was tendered by her. AnEnquiry Officer was appointed; but, she was not satisfied with the same.Under the circumstances, the appointment of the first Enquiry Officer wasactually withdrawn, and again someone was appointed. The same wasoriginally challenged by the petitioner in WP No.19952/99. While it wasdisposed of, time stipulation was made for completing the enquiry. It isalso not in controversy that the second respondent participated in thesame, and final orders came to be passed. Thereafter, the second showcause notice was served upon her. At that juncture, she filed WPNo.22046/2001 and that writ petition was pending till 30.1.2003 when theorders came to be passed by this Court. It would be more appropriate toreproduce the order of this Court passed in that writ petition as follows:"In view of the above, the impugned order is set aside. The 4threspondent is permitted to proceed with further proceedings fromthe stage of giving show cause notice as the petitioner hadalready been served with the report of the Enquiry Officer."12.From the reading of the above order, it would be quite clear thaton the date when the orders came to be passed by this Court, this Courtwas of the opinion that she was in service at that time. Further, in thatorder, nowhere it is mentioned that the date of superannuation was30.4.2002. The contention put forth by the learned Counsel for thepetitioner that WVMP No.462/2002 was already filed bringing to the noticeof the Court that she was due to retire on attaining superannuation, on30.4.2002, and that petition was also given a disposal along with WPNo.22046/2001 cannot be countenanced. Once the date of retirement isknown as 30.4.2002 and the petitioner management thought it fit to make anapplication, it must be brought to the notice of the Court immediately.What the management should do is to immediately bring to the notice of theCourt the date of retirement namely 30.4.2002, but not done so. Now, thelearned Counsel for the petitioner would submit that the said WVMP wasalso pending along with the WP, and it was given disposal along with thewrit petition cannot be an answer to that. Apart from that, what isnoticed is the date of superannuation as 30.4.2002. But, actually orderswere passed on 30.4.2003, and that too, after a period of one year. Theonly explanation given by the petitioner's side, is that there was a staygranted by this Court, and it was also pending, and under thecircumstances, nothing could be done. In the instant case, they havefiled WVMP No.462/2002 seeking for vacating the stay and bringing to thenotice of the Court that the date of retirement was 30.4.2002. Hence, thependency of the proceedings cannot in any way help the petitioner in viewof the circumstances narrated above. https://hcservices.ecourts.gov.in/hcservices/

13.In the instant case, the date of retirement was 30.4.2002. Asrightly pointed out by the learned Senior Counsel for the secondrespondent, the period of service after superannuation, if the contentionof the petitioner's side has got to be accepted, has got to be extendedfor the purpose of proceeding with the enquiry and passing an order oftermination. This Court is of the considered opinion that now, theproceedings were over. Once the person has reached superannuation and theretirement is due, no question of further extending the service for thepurpose of taking action or imposing any punishment would arise. Underthe circumstances, mere pendency of the proceedings in this Court or thegrant of stay, in the absence of any immediate steps taken by thepetitioner, the petitioner has to take the result of the same, and theycannot find fault with the respondents' side. 14.Added further, in the instant case, subsequent to the date ofretirement, a writ petition was filed by the second respondent in WPNo.26413/2003 bringing to the notice of the Court that she is entitled tothe pensionary benefits and that should be ordered, in which thepetitioner management is shown as third respondent. The contention putforth by the learned Counsel for the petitioner herein and the thirdrespondent in that writ petition that there was no notice served, and themanagement was not represented, and hence, that order would not be bindingon them cannot be countenanced for the simple reason that immediatelyafter the orders were passed by this Court, it was brought to the noticeof the management by a proper communication by the second respondent; but,the petitioner did not take any steps to rescind the order. Under thecircumstances, that order has become final. 15.Added further, there was a communication made by the petitionermanagement to the second respondent just preceding the due date ofretirement, calling for her consent for continuation in service and alsocalling for medical certificate for which there was an immediate replystating that she was not willing, and her services need not be extended.Thus, the cumulative circumstances would clearly indicate that themanagement despite the date of superannuation on 30.4.2002, allowed her tocontinue in service for the purpose of proceeding with the enquiry andpassing an order of termination against her, which cannot be justified.Mere pendency of the proceedings in which the petitioner has not takensteps immediately to bring to the notice of the Court that her date ofretirement was 30.4.2002 would suffice to refuse the relief. In suchcircumstances, the authority below was perfectly correct in denying theapproval of the order of termination of the second respondent. https://hcservices.ecourts.gov.in/hcservices/

16.Therefore, this writ petition must fail. Hence, the same fails andis, accordingly, dismissed. However, the authority concerned is directedto give effect to the earlier order of this Court passed in WPNo.26413/2003 dated 22.9.2003, within a period of eight weeks herefrom.No costs. Consequently, connected WPMPs are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Joint Director of CollegiateEducation Chennai Region, Chennai 2.1 CC To Mr.Muthumani Doraisami, Advocate, SR NO.54770.1 CC To Mr.R.Shankara Narayanan, Advocate, SR NO.55030.WP No.33539 of 2003AKR(CO)RVL 05.09.2007