1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10272 of 2011 M.P.(MD)No.1 of 2011 R.Deivalakshmi ... Petitioner -Vs- 1. The Director of School Elementary Education, College Road, D.P.I. Buildings, Chennai. 2. The District Elementary Educational Officer, Thanjavur. 3. The Assistant Elementary Educational Officer, Thanjavur Urban, Thanjavur. 4. The Secretary, Sri Konganeswara Vidhyasala Aided Primary School, Thanjavur. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records, calling for the records, relating to the impugned order of suspension bearing Na.Ka.No.02/2011, dated 13.06.2011, read with the proceedings of the fourth respondent, bearing Na.Ka.No.03/2011, dated 28.07.2011, quash the same and consequently, direct the fourth respondent to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr.B.Prasanna Vinoth For Respondents : Mr.Chandrasekar, Govt.Advocate O R D E R Challenge in this writ petition is to an order of suspension, dated 13.06.2011 and the extension of the same, dated 28.07.2011, by the Secretary, Sri Konganeswara Vidhyasala Aided Primary School, Thanjavur, the fourth respondent herein. 2. Petitioner is a Secondary Grade Teacher in the fourth respondent-School. A public interest litigation has been filed against the School-Management and unfortunately, the School Management has formed an opinion that the petitioner was behind the said litigation. On 31.05.2011, one Mr.V.Prakash, Headmaster of the School (retired). The retired Headmaster told the petitioner and others, that they could verify their service registers and if there was any blank to be filled up, the same could be done and counter signed by him. The petitioner requested the Headmaster to permit him to take photocopy of Volume No.2 of the petitioner's service register and that Headmaster permitted him to do so. Thereafter, he went to a nearest Xerox shop with the service register. https://hcservices.ecourts.gov.in/hcservices/ 2 When photocopy was taken, the Headmaster and his Assistant, Thiru.N.Nagapandian came there. Both the daughters of the School Secretary, who employed in the same School, objected to taking xerox copy of Service Register, and insisted the Headmaster that the petitioner should not be permitted to do so. Thereafter, the Headmaster and another staff came in a two-wheeler, when photocopying was done. Thereafter, the petitioner returned the service register to the Headmaster. However, the Headmaster insisted the petitioner to part with the xerox copy of the Service Register also. When the petitioner refused to give, the Management has given a false complaint to the local Police Station, based on which, a criminal case has been registered in Cr.No.282 of 2011, dated 31.05.2011, under Sections 379 and 294(b) IPC. Suppressing the fact that the Management had taken back the original Service Register, a complaint has been given, as if, the petitioner had unauthorisedly stolen the same. The petitioner was detained in judicial custody for six days. Based on which, he was suspended on 13.06.2011. Subsequently, on 28.07.2011, the Management has extended the suspension for a further period of two weeks. Both the orders are under challenge. 3. Assailing the correctness of the order of suspension, learned counsel for the petitioner submitted that except for an enquiry into charges or misconduct, within the meaning of Code of Conduct, as contemplated under the Tamil Nadu Recognised Private School (Regulation) Act (hereinafter referred to as "the Act") and the Rules framed thereunder, suspension cannot be invoked. 4. Inviting the attention of this Court to Section 22(3)(b) of the Act, he submitted that no such suspension shall remain in force for a period more than the period of two months, from the date of suspension and if inquiry is not completed within that period, a teacher or other person shall, without prejudice to the inquiry, be deemed to have been restored, as teacher or other employee. According to the learned counsel, the petitioner has not committed any misconduct. 5. Placing reliance on G.O.Ms.No.1304, Education, Science and Technology, dated 30.07.1983, learned counsel for the petitioner further submitted that the Management is not expected to retain the service register of a teacher and that therefore, the same ought to have been returned. Therefore, according to the counsel, taking xerox copy of the Service Register, is not a serious misconduct warranting suspension. 6. Mr.Chandrasekar, learned Government Advocate, who took notice, at the time of admission, submitted that the Government Order referred to by the learned counsel for the petitioner, speaks only about returning of educational and other certificates by the Management, after verification of the same, at the time of employment and that there is no reference about retention of Service Register. He further submitted that the employer can retain the Service Register for making necessary entries. He further submitted that the fourth respondent is competent to suspend a teacher, pending investigation in a crime and also extend the same under Section 20(3)(b) of the abovesaid Act. 7. Heard the learned counsel for the parties and perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 3 8. Material on record disclose that on the complaint of the Headmaster of the fourth respondent-School, the Sub-Inspector of Police, West Town Police Station, Thanjavur, has registered a criminal case against the petitioner in Cr.No.02 of 2011 under Sections 379 and 294(b) IPC., on 31.05.2011, alleging that the petitioner had stolen the service register, which was kept on the Headmaster's table, on the date of his retirement. According to the complainant, the service register of the petitioner and others were to be handed to the School Management. He has further stated in the complaint that the petitioner had committed theft and also abused him in filthy language. 9. Pursuant to the registration of the criminal case, the Inspector of Police, West Town Police Station, Thanjavur, has sent a letter, dated 06.06.2011, to the Assistant Elementary Educational Officer (Town), Sivagangai Thottam, Thanjavur, informing that in the abovesaid criminal case, the petitioner was under judicial custody. Thereafter, in proceedings in Rc.No.766/A1/2011, dated 08.06.2011, the Assistant Elementary Educational Officer, Thanjavur Town, has instructed the Management of the fourth respondent-School to take appropriate action and report. 10. Following which, the School Committee has convened a meeting on 10.06.2011 at 3.00 P.M., and unanimously decided to suspend the petitioner, with effect from 01.06.2011 and accordingly, issued orders on 13.06.2011. Subsequently, as the investigation in Cr.No.282 of 2011, dated 31.05.2011 has not been completed, it has been decided to extend the period of suspension by two months and accordingly, orders have been issued on 28.07.2011. Perusal of the order of suspension, dated 13.06.2011, shows that reference has been made to Section 21 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rule 16 of the Rules, 1974. That apart, the Management has also taken note of the detention of the petitioner, in judicial custody from 01.06.2011 to 06.06.2011 and the alleged violation of Clause 6 of the Code of Conduct and framed as per Rule 16, which states that, a teacher or other person, who is involved in a criminal proceeding shall inform the school committee of such proceeding. Thus, it is evident that for a misconduct under the provisions of the Statute and the Rules framed thereunder, the School Committeee, has resolved to suspend the petitioner from service, from 01.06.2011, the date on which, he was sent to judicial custody. 11. The question as to whether a School Management can place a teaching or non-teaching staff under suspension, pursuant to registration of a criminal case and during enquiry into a misconduct, not falling under Clause 6 of the Code of Conduct, framed as per Annexure II to Rule 16 of the Rules, 1974, has been considered in W.P.(MD) No.9231 of 2011, dated 17.08.2011. The said judgment is squarely applicable to the facts of the present case. The relevant portion of the said judgment is extracted hereunder:- In Manager, Nirmala Senior Secondary School, Port Blair, Vs. N.I.Khan and others, reported in AIR 2004 SC 249, speaking of the importance of a teacher and the sanctity of an educational institution, the Hon'ble Mr.Justice ARIJIT PASAYAT, (as he then was), observed as follows; https://hcservices.ecourts.gov.in/hcservices/ 4 "A teacher affects eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers. 2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important." 12.In the above said case, a teacher allegedly abused and attempted to assault a lady principal of the educational institution in front of the school, which led to the lodging of a First Information Report, following which, the teacher was suspended. A few days later, the said teacher picked up quarrel again and threatened to burn the school down. Again a complaint was lodged with the Police. The Director of Education revoked the order of suspension and indicated that a separate enquiry would be conducted by the Directorate. The school, which was a minority institution opposed the action of the Directorate, contending that it was an interference with their right guaranteed under Article 30(1) of the Constitution of India. On the one side, the school contended that the governmental authorities were trying to scuttle its efforts to enforce discipline and the management was prevented to keep an undisciplined teacher out of the institution to maintain purity in education and serene atmosphere of the institution. On the other hand, the educational authorities insisted on a different procedure. On the aspect of retaining a teacher against whom serious imputation were made in the midst of children, the Supreme Court at para No.10 observed as follows; "10..... The clay-like minds of young children are shaped into beautiful moulds by teachers. They shape the future course of the students. To a great measure their behaviour, character, reputation leave imprints in the minds of the young children. If their conduct, behaviour and reputation is full of blemish that would not be for the interest and in the welfare of the students. Respondent Khan has denied the allegations and has alleged bias. But we do not think it necessary to opine one way or the other. Whatever be the truth, the undisputed fact is that the litigation has continued unabated for long years. It would neither be in the interest of respondent Khan nor the institution if respondent Khan is continued in the institution. By making this observation, it is not to be construed as if we have found the allegations to be true. On the contrary, the welfare of the institution, the reputation of respondent https://hcservices.ecourts.gov.in/hcservices/ 5 Khan has been considered by us in the proper perspective. If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observations of Lopes, C.J. in Pearce v. Foster4 (QBD at p. 542): “If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.” 13.In P.A.Inamdar and others Vs. State of Maharashtra and others, reported in (2005) 6 SCC 537, where the Supreme Court, while considering the value and role of education in nation building at paragraphs Nos.81 to 85 and 87 to 90, has considered the importance of education as follows; 81. “Education” according to Chambers Dictionary is “bringing up or training; … strengthening of the powers of body or mind; culture”. 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) “education” is defined in very wide terms. It is stated: “Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with ‘learning’.” 83. In Sole Trustee, Lok Shikshana Trust v. CIT11 the term “education” was held to mean (SCC p. 262, para 5) “the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. … What education connotes … is the process of training and developing the knowledge, skill, mind and character of students by formal schooling.” 84. In “India — Vision 2020” published by the Planning Commission of India, it is stated (at p. 250): “Education is an important input both for the growth of the society as well as for the individual. Properly planned https://hcservices.ecourts.gov.in/hcservices/ 6 educational input can contribute to increase in the gross national products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self- examination, self-monitoring and self-criticism.” “The term ‘knowledge society’, ‘information society’ and ‘learning society’ have now become familiar expressions in educational parlance, communicating emerging global trends with far-reaching implications for growth and development of any society. These are not to be seen as mere clichés or fads but words that are pregnant with unimaginable potentialities. Information revolution, information technologies and knowledge industries, constitute important dimensions of an information society and contribute effectively to the growth of a knowledge society.” (ibid., p. 246) “Alvin Toffler (1980) has advanced the idea that power at the dawn of civilisation resided in the ‘muscle’. Power then got associated with money and in the 20th century it shifted its focus to ‘mind’. Thus the shift from physical power to wealth power to mind power is an evolution in the shifting foundations of economy. This shift supports the observation of Francis Bacon who said ‘knowledge itself is power’; stressing the same point and upholding the supremacy of mind power, in his characteristic expression, Winston Churchill said, ‘the empires of the future shall be empires of the mind’. Thus, he corroborated Bacon and professed the emergence of the knowledge society.” (ibid., p. 247) 85. Quadri, J. has well put it in his opinion in Pai Foundation1: (SCC p. 635, para 287) “287. Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others.” 86.... 87.... Education is a national wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. “Tireless striving stretching its arms towards perfection” (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education. 88. Education is: “… continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment https://hcservices.ecourts.gov.in/hcservices/ 7 from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain.” (See Eternal Values for A Changing Society, Vol. III — Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19.) “We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one's own feet. … The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.” (Swami Vivekanand as quoted ibid., at p. 20.) 89. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though an occupation, it cannot be equated to a trade or a business. 90. In short, education is national wealth essential for the nation's progress and prosperity." 14.In an educational institution which imparts education, discipline, virtues of human life and promotes moral and educational standards, a teacher, who is convicted of an offence, cannot contend that the disciplinary authority should retain him in service, and allowed him to work. If such an argument is accepted, it would have a demoralising effect not only on the students, but also on others, working in the institution. An educational institution is a temple, where convicts cannot be allowed to work, that too in teaching post. Yet another aspect to be noted is that, as per Section 18(2) of the Act, the College may also define the standards to be observed by teachers and other persons employed in the private college, such standards not being inconsistent with the provisions of the Act and the rules made thereunder. Therefore, the instances mentioned in the Code of Conduct, are not the only acts of misconduct, for which disciplinary action can be taken. 15.The other contention raised by the learned counsel for the petitioner that the impugned order is liable to be set aside, for invoking fundamental rules is also liable to be rejected, for the simple reason that Courts have consistently held that quoting a wrong provision of law or rule would not invalidate an order of suspension. The disciplinary authority, the College Committee is empowered to place the petitioner under suspension and that the Secretary can carry out its decisions. There is no lack of jurisdiction. Power of the College Committee to place a teacher under suspension, for criminal acts, not mentioned in Code of Conduct, is no longer integra, in view of the decision of this Court in G.Anbarasan vs. District Educational Officer, Cuddalore District and another reported in 2001(1) CTC 292, wherein this Court at paragraphs 22 to 27 has held as follows; "22. The Apex Court has laid down in three cases namely, Hotel Imperial v. Hotel Workers Union, AIR 1959 SC 1342, R.P. Kapur v. Union of India, AIR 1964 SC 799, and T. Cajee v. U.Jormonic Siem, 1961 (1) SCR 750 : AIR 1961 SC 276 that it https://hcservices.ecourts.gov.in/hcservices/ 8 is well settled that under the ordinary law of Master and Servant, the power to suspend a servant without pay could not be inferred as a term in an ordinary contract of service between the master and the servant. But that must arise from an express term in the contract itself or statutory provision enabling such contract. It has been further held that an order of interim suspension could be passed against an employee even though there was no specific provision to that effect in its term of assignment or in the rules. But in such cases the employee would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld. In R.P. Kapur v. Union of India, AIR 1964 SC 799. It has been held thus:- "On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No X of 1897, which lays down that where any Central Act of Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the Government, like any other employer would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension." 23. In B.R. Patel v. State of Maharashtra, AIR 1968 SC 800, it has been held thus:- "The general law on the subject of suspension has been laid down by this Court in three cases viz., Management of Hotel Imperial, New Delhi v. Hotel Worker's Union, 1960 (1) SCR 476 : AIR 1959 SC 1342; T. Cajee v. U.Jormonic Siem, 1961 (1) SCR 750 : AIR 1961 SC 276 and R.P. Kapur v. Union of India, 1964 (5) SCR 431 : AIR 1964 SC 787. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. https://hcservices.ecourts.gov.in/hcservices/ 9 Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. This principle of law of master and servant is well established; (See Hanley V. Pease and Partners, Ltd., 1915 (1) KB 698 : Wallwork v. Fielding 1922 (2) KB 66 and the judgment of Cotton L.J in Boston Deep Sea Fishing and Ice Co., v. Ansell, 1988 (39) Ch D 339. It is equally well settled that an order of interim suspension can be