IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.09.2007 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.Nos.14368, 17460, 13034 and 15824 of 2001 Madurai Institute of Social Science, rep. by its Secretary, Alagar Koil Street, Madurai - 625 001 ... Petitioner in W.P.No.14368/2001 and 4th respt. in 13034 & 15824/2001 M.Devarajan ... Petr. In W.P.Nos.17460 & 13034/2001 vs. 1. The State of Tamil Nadu rep. by its Secretary to the Government, Higher Education Department, Fort St. George, Chennai 600 009. ... 1st respt. in all W.Ps. 2. The Director of Collegiate Education, Chennai 600 006. ... 2nd respt. in all W.Ps. 3. Joint Director of Collegiate Education, Madurai 625 001. ..3rd respt. in all W.Ps. 4. N.Narayanasamy ... 4th rest. in W.P.No.14368/2001 and petr. in W.P.No.15824/2001 4. Secretary and Director, Madurai Institute of Social Sciences, Alagerkoil Road, Madurai 625 002. ...4th Respondent in WP.17460/2001 W.P.No.14368 of 2001 : Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records pertaining to G.O.(2D) No.112 Higher Education (D1) Department dated 03.07.2001 passed by the first respondent insofar as it relates to the fourth respondent herein and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.15824 of 2001 : Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, calling for the records pertaining to the order passed by the first respondent in G.O.(2D) No.112 Higher Education dated 03.07.2001 and quash the same, insofar as the direction wherein the Government directed to remit a sum of Rs.1450/- to the Management and to regulate the period of suspension as eligible leave are concerned; and direct the respondents to confer all the consequential benefits to the petitioner. W.P.No.17460 of 2001 : Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, calling for the records pertaining to the order passed by the fourth respondent in No.Nil, dated 20.08.2001 and quash the same, and direct the respondents to reinstate the petitioner in service, with all consequential benefits. W.P.No.13034 of 2001 : Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, calling for the records pertaining to the order passed by the first respondent in G.O.(2D) No.112 Higher Education dated 03.07.2001 and quash the same, insofar as the petitioner is concerned, and direct the respondents to reinstate the petitioner in service and confer all the consequential benefits. For Petr. in W.P.Nos.14368/2001 & 4th respt. in W.P.Nos.13034, 17460 & 15824/2001 : Ms.Rita Chadrasekar, for M/s.Aiyar & Dolia For Petr. In W.P.Nos.17460, 13034 & 15824/2001 : Mr.C.Selvaraj, Sr. Counsel for Mr.S.Mani For Respts. 1 to 3 in all W.Ps. : Mr.A.Shanmugam, Government Advocate C O M M O N O R D E R Since the case of the petitioners in all the writ petitions is inter-related, these writ petitions are decided by this common order. For the sake of convenience, the petitioners in these writ petitions shall hereinafter be referred to by their names. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the petitioners in all these writ petitions, in nutshell, is, as under : (i) Madurai Management of Social Science, (hereinafter referred to as 'the College Management') issued a Charge Memo to one N.Narayanasamy stating that on 14.01.1993, he had removed the iron rods and pipes from their premises with the help of one G.Malaisamy, Sanitary Worker working in their Management and sold the same for his personal use and he was called upon to submit his explanation. Pursuant thereto, the Government, by order dated 03.07.2001, passed orders directing the Management to reinstate Narayanasamy into service and to treat the period of suspension as Earned Leave. Aggrieved by the same, the College Management filed W.P.No.14368 of 2001 seeking to set aside the order of the Government. (ii) It is the case of M.Narayanasamy that he was issued a charge memo on 19.09.1993 stating that on 14.01.1993, he had removed the iron rods and pipes from their premises with the help of one G.Malaisamy, Sanitary Worker working in their Management and sold the same for his personal use. On 02.04.1993, Narayanasamy submitted his explanation to the charge memo, wherein he had stated that he removed the iron rods and pipes with the help of Malaisamy only upon prior permission of the Director of the College Management and that he had tendered a sum of Rs.50/- to the Cashier being the value of the sold iron materials and prayed for dropping of charges against him. Thereafter, the Committee of the College Management initiated disciplinary action against Narayanasamy and recommended imposition of punishment of removal from service. Pursuant thereto, the Government, by G.O. (2D) No.112 Higher Education (D1) Department, dated 03.07.2001, directed Narayanasamy to pay a sum of Rs.1,450/- to the Management and directed the Management to reinstate Narayanasamy into service and treat his period of suspension as Earned Leave. Insofar as the said Government Order relates to the direction issued for payment of Rs.1,450/- to the Management, Narayanasamy preferred a writ petition in W.P.No.15284 of 2001. (iii) In the case of M.Devarajan, who was working as a Record Clerk in the College Management, he was issued a memo dated 05.03.1993 by the College Management alleging that he had caused embezzlement in settling the bills. It is the case of Devarajan that the said transaction was in no way connected with the Institution. Thereafter, he was issued another show cause notice with regard to other settlements and disciplinary action was taken https://hcservices.ecourts.gov.in/hcservices/ against him. In the course of proceedings, the Regional Joint Director, the 3rd respondent herein rejected the termination proposal of Devarajan by his order dated 19.01.1999, against which the Management went on appeal on 28.01.1999 itself. Pending appeal, the Management filed W.P.No.1972 of 2001 and this Court, by order, dated 02.02.2001, directed the Government to review the matter. Without rejecting the review dated 28.01.1999 on the ground of legality, the Government entertained the review and held that Devarajan had misappropriated a sum of Rs.10,880/- and confirmed the order of his removal passed by the Management. Aggrieved by the order of the Government in G.O.(2D) No.112 Higher Education (D1) Department, dated 03.07.2001, Devarajan filed W.P.No.13034 of 2001 seeking to set aside the same. Pending disposal of W.P.No.13034 of 2001, the Management passed an order of termination dated 20.08.2001 of Devarajan retrospectively, from the date of suspension, i.e. 20.04.1993 and seeking to set aside the same, Devarajan has preferred W.P.No.17460 of 2001 before this Court. 3. Mr.C.Selvaraj, learned Senior Counsel, appearing on behalf of Narayanasamy, the petitioner in W.P.No.15824 of 2001, submitted that the removal of rustic old iron materials from the College premises by Narayanasamy upon prior permission from the Director of the Institution would not amount to theft. He contended that in the absence of any order passed by the Director, whether it is appeal or revision, the order of the Government is without jurisdiction and is liable to be set aside. He further contended that the charge imposed on Naryanasamy comes within 'mischief of code of conduct' and therefore, the College Management has no power to initiate any disciplinary action against Narayanasamy and it is liable to be set aside. 4. In the case of Devarajan, the petitioner in W.P.Nos.13034 and 17460 of 2001, Mr.C.Selvaraj, learned Senior Counsel appearing on his behalf, in brief, submitted that though the Enquiry Officer has given a finding that the amounts said to have been misappropriated are not relating to College funds, charges were framed against him, which are wholly without jurisdiction. Learned Senior Counsel further contended that while the Director of Collegiate Education is the appellate authority under Section 37 of the Act, he has returned the appeal filed by the Management on 05.07.1999 erroneously under Section 20 of the Act, directing to file an appeal under proper Section, i.e. under Section 37 of the Act. According to the learned Senior Counsel, in the absence of any order being passed under Section 37 by the Director of Collegiate Education, the appellate authority, the impugned order passed by the Government is without jurisdiction and is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5. In support of his contentions, Mr.C.Selvaraj, learned Senior Counsel has placed reliance on the decision of the Supreme Court reported in 2006 (3) CTC 494 in the case of G.M.Tank vs. State of Gujarat and another, wherein it was held as under: "It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of an the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the Appeal filed by the appellant deserves to be allowed." 6. Ms.Rita Chandrasekar, learned counsel appearing on behalf of the College Management in all these writ petitions, with regard to Narayanasamy contended that the allegation of Narayanasamy that the College Management did not prefer an appeal against the order of the Joint Director of Collegiate Education, Madurai, dated 19.01.1999 is false and that even according to Narayanasamy, the Management had preferred an appeal under Section 37 of the Tamil Nadu Private Colleges Regulation Act, 1993. It was her further contention that once misappropriation is proved, there is no room for showing sympathy and the fact remains clear that Narayanasamy had removed the scrap and iron rods belonging to the College Management without permission and had sold the same for his personal use and even the evidence of the Cashier does not improve his case, inasmuch as the Cashier had deposed that it is his job to give receipt for the amount paid and that he has no right to scrutinize as to the purpose for which the amount is remitted. 7. In the case of Devarajan, learned counsel, Ms.Rita Chandrasekar, contended that, though Devarajan, in his affidavit, has stated that the amount which is said to have been misappropriated is in no way connected with the Institution and it is the personal transaction of the Director, he ought to have https://hcservices.ecourts.gov.in/hcservices/ participated in the enquiry. She has further contended that despite being afforded an opportunity to defend himself, he has not participated in the enquiry. In all, learned counsel appearing for the College Management, contended that the averments of Naryanasamy and Devarajan are baseless and prayed for dismissal of the writ petitions filed by them against the College Management. 8. In support of her contentions, learned counsel, Ms.Rita Chandrasekar, relied on: (i) the judgment of the Supreme Court reported in 1989 (II) LLJ 57 in the case of Union of India vs. Parma Nanda: "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty, unless it is malafide, is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter." (ii) another judgment of the Supreme Court reported in (2007) 1 SCC 222 in the case of A.P.SRTC vs. Raghuda Siva Sankar Prasad: "20. The learned Judges of the High Court have also failed to appreciate that once an employee has lost the confidence of the employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is just and reasonable and proportionate to the proved misconduct. https://hcservices.ecourts.gov.in/hcservices/ 23. Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and genorosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of the punishment. " (iii) yet another judgment of the Supreme Court reported in (2006) 1 SCC 118 in the case of U.P.SRTC vs. Mahendra Nath Tiwari and another: "7. We have no hesitation in coming to the conclusion that the respondent did not deserve the award of back wages to him. In fact, he must consider himself lucky to have been reinstated and that we are not interfering with that reinstatement. When a conductor drives a bus for which he is not authorised, he is endangering the public as well as the property of his employer. This by itself is a serious misconduct justifying dismissal of a conductor. Similarly, the fact that one passenger was found travelling and had not been issued a ticket for that journey, constitutes a grave charge against a conductor who is really in a position of trust as far as the employer Corporation is concerned. He is duty-bound to collect the fare from every passenger on behalf of his employer. Same is the position regarding the unexplained twelve used tickets, found in his possession. That prima facie suggests that there is room to doubt the honesty of the respondent. He did not even try to explain the circumstances in that regard. The charges are such that they show a betrayal of the trust placed on the conductor by the employer and that the employee endangered an asset of the Corporation in addition to endangering the lives of the other users of the road. 8. It is a misconception to consider that the amount involved in an offence of this nature has a material bearing, while considering whether there has been misconduct on the part of an employee. It may be relevant in a criminal prosecution when considering the https://hcservices.ecourts.gov.in/hcservices/ quantum of punishment to be imposed. When a person like the conductor of a bus, who has the obligation to make proper collection of the charges from the passengers on issuing tickets to them, is found to have passengers in the bus, even if it be only one, to whom he had not issued a ticket, it clearly amounts to a clear violation of the duty imposed on him. It is really a breach of the duty cast on the conductor who is acting on behalf of the employer. Whether it be one passenger or ten passengers it would make no difference in principle in the absence of any explanation in that behalf. It was simply the case of a conductor who had violated the regulations or the terms of his employment and had betrayed his employer, in any event, is a grave misconduct justifying a dismissal." (iv) one more judgment of the Supreme Court reported in 2000 (II) LLJ 1395 in the case of Janatha Bazaar South Kanara Central Co-operative Wholesale Stores Ltd. & others vs. Secretary, Sahakari Noukarara Sangha and Others: "7. In view of the aforesaid settled legal position, the High Court materially erred in confirming the directions given by the Labour Court in reinstating the respondent workmen with 25% back wages. For giving the aforesaid direction, the Labour Court considered that there is no evidence regarding past misconduct by the employees and, therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the Management." 9. I have considered the submissions made by the learned counsel on either side and also the various rulings relied on by them. It is seen that the delinquents, namely, M.Narayanasamy and M.Devarajan are non-teaching staff governed by the Tamil Nadu Private Colleges (Regulation) Act, 1976. They were placed under suspension on 20.04.1993 pending enquiry into the grave charges framed against them. A charge memo had been issued to them on 19.04.1993 stating that they have misappropriated substantial amount of money. A Police complaint is said to have been lodged immediately after the misappropriation came to light. Initially, the delinquents, Naryanasamy and Devarajan have approached the Civil Court on 02.05.1993 by filing two suits in O.S.No.798 of 1993 and O.S.No.802 of 1993 on the file of the District Munsif, Madurai seeking permanent injunction to restrain the Management from holding any enquiry. However, the College Management appears to have given an undertaking on 07.05.1993 that no enquiry would be conducted till the disposal of the application for interim injunction. On 08.07.1993, the applications in I.A.Nos.499 and https://hcservices.ecourts.gov.in/hcservices/ 501 of 1993 for interim injunction were dismissed. Against the dismissal of these applications, the delinquent employees filed appeals in C.M.A.Nos.39 and 41 of 1993 before the Sub Court, Madurai on 23.07.1993 and those appeals were allowed on 11.08.1993, in and by which the matter was remanded back to the Trial Court for fresh consideration. 10. The College Management appears to have made an application on 19.08.1993 for stay of the order passed by the Sub Court, Madurai. But the Trial Court has directed them to maintain status quo till the disposal of the application. This order of the Trial Court has been taken on revision before this Court in C.R.P.Nos.2662 and 2664 of 1993. This Court, on 13.09.1993, passed an order of interim stay of further proceedings in O.S.Nos.798, 800 and 802 of 1993, subject to the condition that the delinquent employees shall not proceed with the enquiry against the respondents or make any further application in pursuance of the enquiry already conducted till the disposal of these Civil Revision Petitions. 11. From the chronology of events set out above, between 08.07.1993 and 11.08.1993, there was no order passed by any Court which stood in the way of College Management proceeding in the enquiry, although the right to hold such an enquiry, which was the subject matter of the suit was initiated by the delinquent employees. It is also seen that it is the case of the College Management that after the completion of the enquiry, no order of injunction was in force and that it has sought the permission of the competent authority to remove the delinquent employees from service. Therefore, it is evident from the letter written by the Deputy Director of Collegiate Education on 15.10.1993, that the College had sought its approval for imposing penalties upon the delinquent employees. Therefore, the delinquent employees moved before this Court in W.P.Nos.13327 and 13328 of 1994 to hold the College Management from proceeding further and the College Management has filed W.P.No.2993 of 1994 against the delinquent employees. On consideration of all these writ petitions, this Court, passed the following order : "20. In this case, while it is contended by the petitioners that enquiry could not have been held, in view to the pendency of the legal proceedings, it is the case of the college that the enquiry has in fact been concluded and that the enquiry was held during the period when no order of any court operated against the college with regard to such enquiry. The competent https://hcservices.ecourts.gov.in/hcservices/ authority has not addressed itself to this issue. The employer college has been directed to reinstate the employees only on the ground that the period of suspension cannot exceed four months under any circumstance. 21. The order impugned in the writ petition filed by the College is therefore quashed. The subsistence allowance for past period if remained unpaid, shall be paid by the College immediately, and such allowance continue to be paid as on as the employee continue to be kept under suspension. If the competent authority finds that the enquiry has not been held within the prescribed period or that the suspension is not justified the employer College shall be liable to pay full salary to the employee petitions for the period of their unjustified suspension. W.P.2993/94 filed by the College is allowed and W.Ps.13327 and 13328/1994 are dismissed, subject to the directions as above. W.M.Ps.4846,20179 and 20180 of 1994 do not survive and are dismissed. " 12. After the disposal of the above writ petitions, the College Management had written a letter to the Joint Director of Collegiate Education, Madurai on 02.01.1997 and 10.01.1997 with a request to give prior approval for the proposal of dismissal of the delinquent employees, namely, Narayanasamy and Devarajan along with one Malaichamy. The Management also brought to the notice of the competent authority that the provisions of Section 19 of the Act and Rule 13 would clearly show that the allowance is not limited to the period during which the enquiry is pending. However, the Joint Director of Collegiate Education, Madurai, the competent authority, on consideration of the Letters written by the Management and taking note of all the overall circumstances, passed an order on 12.02.1997, which reads, as under: (1) The College Committee constituted on 18.04.1993 to make enquiry about the charges framed against the three non-teaching staff of your College, namely Thiruvalargal M.Narayanasamy, M.Devarajan and G.Malaichamy was not constituted properly in accordance with Rule 8 of Tamil Nadu Private Colleges (Regulation) Rules 1976. According to Rule 8(3) (d) a person nominated by the University should be present in the Committee, which was not fulfilled by the College. Further, as per Rule 8(3)(c) of the above Rules, two senior most professors should be present in the https://hcservices.ecourts.gov.in/hcservices/ Committee. But the Committee has been formed by the College with Thiru.P.N.Narayanaraja (who is junior in service) in the place of a senior-most Professor. Therefore, the College Committee constituted on 18.04.1993 to make enquiry about the charges framed against the above three non-teaching staff, was not properly constituted in accordance with law and hence the entire proceedings on the enquiry conducted by the above college committee which was not properly constituted in accordance with law, will be null and void. It is, therefore, informed to constitute a College Committee in accordance with law, as per Rule 8 of the Tamil Nadu Private Colleges (Regulation) Rules 1976, and reconduct the enquiry about the charges framed against the above said non-teaching staff, by giving them adequate opportunities to attend the enquiry and submit the findings of the Committee