IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.1109 and 1192 of 2004 S.P.Suseela .. Petitioner in WP:1109/2004 S.Sampath .. Petitioner in WP:1192/2004 Vs. 1. The District Educational Officer at Chengalpattu. .. 1st respondent in both WPs. 2. Sri Ramakrishna Mission Vidhyalaya Girls Higher Secondary School Chingleput, managed by Ramakrishna Mission, Hanumanthaputheri Chingleput – 603 002. .. 2nd respondent in WP:1109/2004 3. The Ramakrishna Mission managing the Ramakrishna Mission Vidhyalaya Boys Higher Secondary School, Chengalpattu, by its Secretary. .. 2nd respondent in WP:1192/2004 PRAYER in WP:1109 of 2004: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to claim and disburse the arrears of difference in pay due from 1992 towards yearly increment, special grade increment and its equivalent pay as per V Pay Commission report from 1.1.196 and disburse the same within a time to be fixed by this Hon'ble Court in terms of the representations of the petitioner dated 11.2.2002, 2.5.2002, 30.12.2002, 4.3.2003 and 25.12.2003, failing which to direct the second respondent to pay interest at the rate of 12% per annum from the date of which the second respondent has failed to claim and disburse it. PRAYER in WP:1192 of 2004: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the second respondent to enter all the service particulars and the https://hcservices.ecourts.gov.in/hcservices/ consequential monetary benefit in the petitioner's service register for approval by the first respondent and on such approval claim the arrears due up to 31.1.2004, to disburse the same, to pay the salary for the period as approved by the first respondent for the period 15.6.1992 to 5.9.2000 by the second respondent as per the orders of the Joint Director of School Education Secondary dated 19.12.1997 in RC.No.89468/G6/97, failing which to direct the second respondent to pay the amounts with interest at 12% per annum from the date it became due. For Petitioners: Mr.A.S.Narasimhan For Respondents: Mrs.Malarvizhi Udayakumar Special Government Pleader for 1st respondent Mr.J.R.K.Bhavanantham for 2nd respondent ORDER While W.P.No.1109 of 2004 is filed for a direction against the respondents to claim and disburse the arrears of difference in pay due from 1992 towards yearly increment, special grade increment and its equivalent pay as per V Pay Commission report from 1.1.196 in terms of the representations of the petitioner dated 11.2.2002, 2.5.2002, 30.12.2002, 4.3.2003 and 25.12.2003, failing which to direct the second respondent to pay interest at the rate of 12% per annum from the date on which the second respondent has failed to claim and disburse it, W.P.No.1192 of 2004 is filed for a direction against the second respondent to enter all the service particulars in the petitioner's service register, including the consequential monetary benefits, for approval by the first respondent and to claim arrears due to the petitioner and disburse the same and also to pay the salary for the period as approved by the first respondent for the period 15.6.1992 to 5.9.2000 by the second respondent as per the orders of the Joint Director of School Education (Secondary) dated 19.12.1997 in RC.No.89468/G6/97, failing which to direct the second respondent to pay the amounts with interest at 12% per annum from the date it became due. 2.1. Both the petitioners are employed in the second respondent/ Management and are wife and husband respectively. The petitioner in W.P.No.1109 of 2004 joined the services of the second respondent/ Management, which is an aided private school governed by the provisions of the Tamil Nadu Recognized Private Schools (Regulation) Act, 193 (for brevity, "the Act"), as a Record Clerk in the year 1973, while her husband, viz., the petitioner in W.P.No.1192 of 2004, had been working as a Teacher stated to be eligible for promotion as Assistant Head Master-cum-Post Graduate Teaching Assistant. https://hcservices.ecourts.gov.in/hcservices/ 2.2. The petitioner in W.P.No.1109 of 2004 was subsequently appointed as Secondary Grade Teacher on 17.10.1979 and she voluntarily retired from service on 31.5.2006 and her pension has not been paid, except the provisional pension. It is the case of the petitioner in W.P.No.1109 of 2004 that her husband (the petitioner in W.P.No.1192 of 2004), who is working as a Teacher in the second respondent/Management is an association activist and as he raised certain issues against the second respondent/Management, the second respondent/Management has developed grudge against both the petitioners and it was in those circumstances, the petitioner had to opt for voluntary retirement and she requested for settlement of the monetary benefits and in spite of repeated representations, her dues have not been paid and the status of selection grade has also not been conferred and the petitioner was harassed and increments have also not been paid to her. In spite of the complaint made by her to the educational authorities, no action has been taken. However, the Chief Educational Officer, Kancheepuram in the letter dated 20.1.2003 has directed the first respondent to claim the amount due to the petitioner in W.P.No.1109 of 2004 and in spite of it there was no response. 2.3. It is stated that in the year 2001, for the first time, the second respondent has stated as if there was some punishment imposed on the petitioner in W.P.No.1109 of 2004 in the year 1992 in respect of which there was no enquiry conducted and that punishment was stated to be stoppage of increment for four years without cumulative effect. According to the petitioner in W.P.No.1109 of 2004, citing the said punishment, the second respondent has not paid her pension and other monetary benefits due to her and hence, she has filed the present writ petition for the relief stated above. 2.4. The petitioner in W.P.No.1192 of 2004, as stated above, is a Teacher in the second respondent/Management involved in the association activities to protect the interest of the teachers as per the provisions of the Act. In the year 1984, there has been a strike declared in the school against the removal from service of a teacher – P.S.Mani and due to the organization of the said strike, the second respondent has started harassing the petitioners by not granting leave, etc. It is stated that the said P.S.Mani, who was terminated, has approached this Court and thereafter the salary benefits were settled. 2.5. It is stated that the petitioner in W.P.No.1192 of 2004 was forced to be absent from the school in the year 1991 and the second respondent has refused to sanction leave to which the he was entitled to and also refused permission to join duty. It is stated that on 15.6.1992 when the petitioner in W.P.No.1192 of 2004 was directed to attend the school, under the guise of getting a signature in the attendance register, a resignation letter on a non- judicial stamp paper was obtained and that was notarised later and https://hcservices.ecourts.gov.in/hcservices/ thereafter he was not allowed to work in the school from 16.6.1992. 2.6. The petitioner in W.P.No.1192 of 2004 thereafter made a complaint to the Chief Educational Officer, Kancheepuram disputing the resignation. The first respondent has refused to accept the resignation of the petitioner for want of legal sanction. It was against the order of the first respondent, the second respondent has preferred an appeal to the Chief Educational Officer, Kancheepuram, who rejected the appeal of the second respondent on 6.1.1995. Thereafter, the second respondent has filed W.P.No.861 of 1995 and this Court, in the order dated 21.4.1997, has directed the Chief Educational Officer, Kancheepuram to give an opportunity to the second respondent. Thereafter, on giving opportunity, the Chief Educational Officer, Kancheepuram, by order dated 22.6.1997, has dismissed the appeal. It was as against the said order of the second respondent dated 22.6.1997, a further appeal has been filed to the Joint Director of School Education (Secondary) on 11.7.1997. The Joint Director of School Education (Secondary), on 19.12.1997, has dismissed the appeal and directed the second respondent to bear the responsibility of payment of salary and all other allowances payable to the petitioner during the said period. 2.7. The second respondent, as against the order dated 19.12.1997, approached this Court by filing W.P.No.3926 of 1998, which was dismissed on 30.1.1999 and the writ appeal filed against the said order in W.A.No.185 of 1999 was also dismissed on 1.8.2000. Thereafter, on 3.8.2000 itself the petitioner has approached the second respondent for reinstatement with all back-wages and monetary benefits. Even though the second respondent has directed the petitioner to appear before a Committee, nothing happened. It was thereafter on 8.8.2000, the second respondent has stated that the petitioner in W.P.No.1192 of 2004 will be permitted to join subject to the approval of the Joint Director of School Education (Secondary), who has already disposed of the appeal. It is stated that the first respondent on 18.12.2000 has directed the second respondent to regularize the period of service of the petitioner in W.P.No.1192 of 2004 and to claim and pay all the amounts due to the petitioner without delay. 2.8. The second respondent, thereafter, has sent a letter to the Medical Board on 19.1.2001 to verify the health condition of the petitioner in W.P.No.1192 of 2004 for the period between 21.11.1991 and 26.4.1992, after nine years. In spite of the repeated representations when the second respondent has failed to regularize the services of the petitioner in W.P.No.1192 of 2004, he had to again give a complaint to the first respondent on 18.6.2001, followed by a notice dated 24.6.2001. However, a reply has been given stating that the second respondent/Management is waiting for approval from the Joint Director of School Education (Secondary), which, according to the petitioner in W.P.No.1192 of 2004, is not https://hcservices.ecourts.gov.in/hcservices/ required, since the appeal was disposed of by the Joint Director of School Education (Secondary) and the writ petition and writ appeal were also dismissed, and it was intended to only harass the petitioner in W.P.No.1192 of 2004, who was sufficiently harassed for a period of eight years. It is also stated that as against the salary of ` 13,000/- per month to which the petitioner in W.P.No.1192 of 2004 is entitled to, he was allowed to draw only ` 5,900/-. Therefore, it was clear that the educational authorities have found it difficult to make the second respondent act as per law. 2.9. It is stated that, curiously, the second respondent in the letter dated 14.8.2003 has stated that the matter is pending with the authorities. However, the increment up to 15.6.1992 was fixed based on the recommendation of the VI Pay Commission, but for the subsequent period there was no fixation of any pay and increment. In these circumstances, the said petitioner has filed W.P.No.1192 of 2004 for the relief stated above. 3.1. In the counter affidavit filed by the second respondent in respect of W.P.No.1109 of 2004, it is stated that the said petitioner was appointed as a Record Clerk on 12.6.1973 and was promoted as a Secondary Grade Teacher on 17.10.1979 and she became selection grade teacher after 10 years of service. It is stated that the said petitioner has applied for voluntary retirement on 31.5.2006 and she was allowed to go on voluntary retirement from 31.5.2006. It is stated that the petitioner has been in continuous service from 12.6.1973 to 31.5.2006, except for a break between 10.11.1991 and 14.6.1992 and she voluntarily retired from service on 31.5.2006. 3.2. It is stated that the said petitioner was inflicted with a punishment of stoppage of increment for four years without cumulative effect and that punishment was recorded in the service register and that was known to the petitioner. It is stated that the petitioner is not eligible for fixation of increased pay from 1992 to 30.12.2002. It is stated that the punishment of stoppage of increased was effected on the petitioner and in the affidavit sworn to by her on 15.6.1992, she has accepted the charges and it is stated that the petitioner is not eligible for increment as per Rules. 3.3. It is further stated that the petitioner in W.P.No.1109 of 2004 had obtained leave on loss of pay for 218 days; that she was on medical leave for 501 days out of eligible 540 days; that she availed 119 days earned leave out of 180 days and that she had encashed 121 days; and that she availed half pay leave of 32 days. 3.4. It is stated that both the petitioners have been running private chit fund and it is to avoid the payment to subscribers and https://hcservices.ecourts.gov.in/hcservices/ creditors they have made various allegations against the second respondent and they were frustrated and gave their resignation letters and have now turned against the same. It is also stated that the second respondent is ready to forward the proposal claiming the dues in respect of the arrears, increment, special grade pay fixation, etc. in accordance with the Rules and as per her eligibility. 4. The first respondent, in the counter affidavit in respect of the W.P.No.1109 of 2004, has stated that the second respondent has imposed a punishment of stoppage of increment for four years, originally with cumulative effect, which was subsequently modified as without cumulative effect vide resolution dated 6.11.1992 and a proposal was sent for approval of increment and the first respondent has sought particulars from the second respondent as to whether the said petitioner has filed any appeal against the said order and the second respondent was also directed to re-fix the pay of the petitioner, for which the second respondent has not given any reply so far. It is stated that the petitioner has applied for voluntary retirement with effect from 31.5.2006 and that has been accepted by the second respondent and approval was accorded by the first respondent for the same. It is also stated that as and when the second respondent sends proposal in correct shape for granting increments, special grade, pay fixation, etc., the same will be attended to by the first respondent immediately. 5.1. In respect of W.P.No.1192 of 2004, in the counter affidavit of the second respondent, it is stated that the petitioner in W.P.No.1192 of 2004 has abstained from duty from 15.6.1992 to 5.9.2000 due to private chit fund activities. It is stated that the said petitioner has voluntarily submitted his resignation with attestation of Notary Public, which was accepted by waiving three months notice as requested by him and the same was sent to the Chief Educational Officer and the first respondent has refused to grant approval of the same on 23.6.1992, since there is non-compliance of Rule 17-A of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (for brevity, "the Rules"). The Chief Educational Officer, Kancheepuram in his proceedings dated 6.1.1995 by quoting the said Rule has directed the second respondent to reinstate the petitioner with continuity of service, stating that the resignation letter has been obtained and relieving order has been passed against the provisions of the Rules. 5.2. It was against the said order, W.P.No.861 of 1995 was filed and the matter was referred to the Chief Educational Officer for fresh disposal and an appeal was filed to the Joint Director of School Education (Secondary) and that was dismissed stating that the second respondent was liable to pay back-wages from 15.6.1992 till reinstatement and that was challenged in W.P.No.3926 of 1998, which was dismissed and the writ appeal filed against the said order was https://hcservices.ecourts.gov.in/hcservices/ disposed with a direction and as per the direction, the second respondent has sent a representation to the Joint Director and stated that the petitioner in W.P.No.1192 of 2004 is willing to forego the monetary benefits without prejudice to his rights and there was no response from the Joint Director of School Education (Secondary). 5.3. In the meantime, the Director of School Education in the letter dated 9.10.2001 has called upon the second respondent/management to give explanation for non payment of salary to the petitioner in W.P.No.1192 of 2004 from 6.9.2000, even after the lapse of 15 months, for which a reply was sent. It is stated that the second respondent/ management has claimed salary of the said petitioner and paid the same till the date of voluntary retirement, viz., on 31.5.2002. It is stated that the said petitioner is not entitled to salary or monetary benefits for the period from 15.6.1992 to 5.9.2000. 6.1. In the counter affidavit filed by the first respondent in W.P.No.1192 of 2004, it is stated that on the basis of resignation letter stated to have been given by the said petitioner on 15.6.1992, accepting the same the second respondent has sent a proposal and approval was not granted by the first respondent and when that was challenged by the second respondent/management it was held void by the High Court in W.P.No.3926 of 1998 and W.A.No.185 of 1999. 6.2. It is stated that thereafter, the said petitioner in the letter dated 7.8.2000 addressed to the second respondent stated that he may be permitted to join duty without any loss of service and foregoing the monetary benefits, without prejudice to his rights and it was subsequently, by order dated 5.9.2000, the second respondent has permitted the said petitioner to join duty. Thereafter, it is stated that the petitioner has tendered voluntary retirement on 8.3.2006 and that was accepted by the second respondent and also approved by the first respondent on 8.3.2006 and he was relieved from 8.3.2006 and it is stated that he is now getting monthly pension from the Government. 6.3. It is stated that while dealing with the appeal the Joint Director of School Education (Secondary) in the order dated 19.12.1997 rejecting the appeal of the second respondent has stated that the second respondent has to pay the salary because of the disobedience of the direction by the authorities. It is stated that the first respondent in the order dated 26.3.2003 has informed the second respondent to regularise the period of absence of the petitioner from 15.6.1992 to 5.9.2000, however the second respondent has not replied so far and the second respondent has to pay the salary for the said period. It is stated that the petitioner has joined duty without losing his right of service and he has not https://hcservices.ecourts.gov.in/hcservices/ foregone the monetary benefits and it is stated that the second respondent has to regularise the services of the petitioner from 15.6.1992 to 5.9.2000 and pay back-wages to the petitioner as per the order of the Joint Director of School Education (Secondary) dated 19.12.1997. However, the second respondent in the letter dated 23.2.2006 has stated that the management will not pay the amount on the basis of no work no pay and that it has no objection for claiming salary for the period of no work in the school. 7.1. Mr.A.S.Narasimhan, learned counsel for the petitioners would vehemently submit that on the factual matrix of the entire case, it is a clear case of harassment by the second respondent. It is submitted that when the Joint Director of School Education (Secondary) has passed final order, which has been confirmed by this Court, it is the duty of the second respondent to regularise the service of the petitioner in W.P.No.1192 of 2004 from 15.6.1992 to 5.9.2000 and pay salary along with interest. 7.2. It is his submission that the first respondent, being the educational authority, has a duty to enforce its order and therefore, the first respondent has to be directed to pay the amount and recover the same from the second respondent/management for having disobeyed their order. 7.3. It is his submission that entries in the service records should be made and all amounts due to the petitioners have to be paid with interest. 8. On the other hand, it is the contention of the learned counsel appearing for the second respondent that the petitioners have not come with clean hands. It is submitted that as far as the petitioner in W.P.No.1192 of 2004 is concerned, he has given in writing foregoing his monetary benefits and therefore, in spite of the order of the Joint Director of School Education (Secondary) there is no obligation on the part of the second respondent to regularise the service of the said petitioner from 15.6.1992 to 5.9.2000. 9. I have heard the learned counsel for the petitioners and the learned counsel for the second respondent, apart from the learned Special Government Pleader appearing for the first respondent. 10.1. On the facts narrated above there is no much difference. As far as the petitioner in W.P.No.1109 of 2004 is concerned, admittedly, there has been a punishment of stoppage of increment without cumulative effect for a period of four years in the year 1992 and the petitioner therein has worked till 31.5.2006, the date on which she has given voluntary retirement. Simply because there has been a punishment imposed in the year 1992, that cannot be at any cost a reasonable excuse on the part of the second respondent in https://hcservices.ecourts.gov.in/hcservices/ postponing the payment of monetary benefits due to her. There is absolutely no difficulty to conclude, as submitted by the learned counsel for the petitioners, that the attitude of the second respondent is vindictive and intended to harass the petitioners. There is absolutely no justification on the part of the second respondent in not settling the retirement benefits to the petitioner in W.P.No.1109 of 2004. 10.2 Showing a minor punishment imposed some time in the year 1992 for the purpose of depriving the petitioner in W.P.No.1109 of 2004 of her right to get her benefits on voluntary retirement on 31.5.2006 can only be treated as inhuman and atrocious, which cannot be tolerated in a civilized society. It is unfortunate that the second respondent/ Organization which has got a worldwide reputation as a service organization, started in the name of an unparallel person in the religious history of India in this century, has treated one of its teachers in this manner. Even if there are some faults committed by the petitioner in W.P.No.1109 of 2004, the second respondent, which is a mission started by a person like Swami Vivekananda, should have stood as an example in treating its teachers. It is not known as to how the second respondent has such a mind to deal with its own teachers. While treating the petitioners so, it is not as if their conduct which is unbecoming of teachers is being condoned. The conduct of the second respondent in dealing with the petitioners cannot be accepted by any prudent person. For a flimsy reason of certain punishment stated to have been inflicted on the petitioner in W.P.No.1109 of 2004 in the year 1992, the second respondent cannot deny the right of the said petitioner to survive after her retirement. There is no other word to explain the conduct of the second respondent than terming it as inhuman. It is unfortunate that in spite of the educational authorities directing the second respondent to act properly, the second respondent has not chosen to realise its status. 10.3. Therefore, I have no hesitation to hold that in respect of the petitioner in W.P.No.1109 of 2004, it is totally the second respondent who is responsible for the entire misdeed committed to her. However, taking note of the fact that the second respondent/Organization is one of the biggest organization in the world working for the cause of the poor and needy, I only feel that one more opportunity should be given to the second respondent to redress the grievance of the said petitioner. 10.4. In such view of the matter, the second respondent is directed to settle the entire claim of the petitioner in W.P.No.1109 of 2004 as per law from the date of her recruitment till the date of her voluntary retirement, viz., 31.5.2006 and send the proposal to the first respondent within a period of two weeks from the date of receipt of a copy of this order and on the first respondent receiving the said proposal, the first respondent shall grant proper https://hcservices.ecourts.gov.in/hcservices/ approval by passing appropriate