IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16-6-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.8559 of 2011 M.P.Nos.1, 2 of 2011 V. Thiagarajan ... Petitioner Vs. 1. The Director of School Education, College Road, Chennai. 2. The Chief Educational Officer, Kanchipuram. 3. The District Educational Officer, Kanchipuram. 4. The Secretary, W.T.Masilamani Mudaliar Higher Secondary School, Walajabad, Kanchipuram. 5. S.S.Mariappan ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, seeking a Writ of certiorari calling for the records of the 4th respondent – Secretary, W.T.Masilamani Mudaliar Higher Secondary School, Walajabad, in R.C.No.84/2009, dated 3.1.2011 and quash the same. For Petitioner : Mr.S.Giridharan For Respondents 1 to 3 : Mr.P.Sanjai Gandhi Addl. Govt. Pleader For 4th Respondent : Mrs.G.Thilakavathi O R D E R The prayer in the writ petition is to quash the order of suspension passed against the petitioner, who is an Office Assistant https://hcservices.ecourts.gov.in/hcservices/ working in the 4th respondent Recognised Private Aided School. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) In the year 1995 the petitioner joined as Office Assistant in the 4th respondent Recognised Private Aided School, a private school as defined under Section 2(7) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred as 'the Act'). The 4th respondent School is a higher secondary school in which about 1000 students are studying. The School is fully aided by the Government of Tamil Nadu. (b) According to the petitioner, his great-grandfather founded a Trust by name "Ambalavanar Araporuppu Ayam" at Walajabad, Kanchipuram District in the year 1963. The said Trust started various schools. The 4th respondent School is coming under the management of the said Trust. (c) It is claimed in the affidavit that in the Trust deed it is stated that after the death of Masilamani Mudaliar, who is the founder of the Trust (petitioner's great-grandfather) one of his family member should be included in the Trust Board as a Trustee. The said position continued till the year 1995 i.e, till the 4th respondent assumed office as Secretary of the School. (d) Petitioner's mother sent various representations to the department and prayed for a direction to the 4th respondent to include her as a member of the Trust Board. The petitioner's mother also filed W.P.No.2468 of 2011 and this Court passed an interim order restraining the District Educational Officer, Kanchipuram from granting approval to the Trust Board for further period of 2011 to 2014. (e) The 4th respondent filed a civil suit against the petitioner's maternal uncle for declaration that the property belongs to the Trust. According to the petitioner declaration was granted in favour of petitioner's maternal uncle. It is claimed in the affidavit that one Sridharan sent various complaints to the authorities for taking action against one Soundar Rajan, who is working as Junior Assistant in the 4th respondent School for violating the code of conduct by marrying two wives. (f) It is further claimed in the affidavit that the 4th respondent, under an erroneous impression that only at the instance of the petitioner legal proceedings were initiated by the petitioner's mother and other third parties, issued a memo on 13.11.2009 alleging that the attendance register for 10th Standard 'D' Section was not found in the office on 10.8.2009 and 12th standard 'B1' section was not found from 22.10.2009 afternoon. Petitioner was https://hcservices.ecourts.gov.in/hcservices/ directed to give reply to the said allegation. (g) Petitioner submitted his reply on 18.11.2009 stating that the petitioner searched the entire office and the said attendance registers could not be found and the same was also intimated to the Headmaster of the School. It is claimed in the affidavit that the Headmaster directed the School to maintain new attendance register after copying all the particulars. (h) On 3.1.2011 i.e, after a period of two years, 4th respondent issued the charge memo along with suspension order. According to the petitioner, the School Committee has not passed the resolution to issue charge memo and the 4th respondent in his individual capacity has issued the charge memo and the order of suspension. (i) Petitioner submitted an appeal before the third respondent against the order of suspension dated 3.1.2011. Since no action having been taken, petitioner has filed the present writ petition challenging the order of suspension on the principal ground that the 4th respondent issued the suspension order without any authority or power as no resolution by the School Committee was passed; that the suspension order was not communicated to the third respondent in terms of Rule 17(2) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred as 'the Rules'); and that the enquiry officer was appointed without calling explanation from the petitioner. 3. The 4th respondent has filed counter affidavit contending that the petitioner has got alternate remedy of filing appeal before the Joint Director of School Education (Higher Secondary) and the petitioner also earlier withdrew the writ petition filed in W.P.No.1088 of 2011 on 21.1.2011 and the very same order of suspension is now challenged and therefore the writ petition is not maintainable. It is also stated in the counter affidavit that a charge memo was issued on 3.1.2011 taking note of the misconduct committed by the petitioner and the petitioner was placed under suspension by the School Committee. According to the 4th respondent, the School Committee was having jurisdiction to function upto 5.3.2011 and therefore appointment of the Enquiry Officer on 25.2.2011 by the School Committee is valid. It is also stated that the petitioner appeared on 28.3.2011 and submitted a request to peruse certain documents and on his request the enquiry was posted on 1.4.2011. On 6.4.2011 again the petitioner appeared and sought for adjournment on the ground that the petitioner has filed this writ petition. 4. An additional counter affidavit is also filed by the 4th respondent stating that the suspension order dated 3.1.2011 was based on the resolution passed by the School Committee dated 2.1.2011 and the petitioner has not co-operated, pursuant to which the enquiry https://hcservices.ecourts.gov.in/hcservices/ could not be completed within two months, which necessitated the management to pass further resolution on 19.2.2011 seeking extension of the period of suspension and request was also submitted on 2.3.2011 before the second respondent, who is the competent authority. The third respondent by communication dated 23.3.2011 sought for certain clarification, which was also furnished by the management on 5.4.2011. Then the third respondent by communication dated 15.4.2011 directed to forward the extension request along with salary claimed to be made by the management. 5. The resolutions passed by the School Committee on 2.1.2011, 19.2.2011, the request submitted to the second respondent dated 2.3.2011 for extension of suspension, etc. are filed in the additional typed set of papers. The request seeking extension of suspension was also rejected by the third respondent on 29.4.2011. In the said order third respondent is referring an order of the second respondent dated 27.4.2011. 6. Mr.S.Giridharan, learned counsel appearing for the petitioner submitted that even assuming that the order of suspension dated 3.1.2011 is based on a resolution passed by the School Committee, the said order can remain in force only till 2.3.2011 and no extension order having been passed by the competent authority, namely the second respondent as required under Section 22(3)(b) of the Act, the petitioner shall be deemed to be restored in service from 3.3.2011 with salary and other benefits. The learned counsel also submitted that the said issue is already considered by this Court in several decisions and the same is no longer res integra. 7. Mrs.G.Thilakavathi, learned counsel appearing for the 4th respondent submitted that the resolution seeking extension of the period of suspension for another two months was also passed and the request was made to the second respondent as early as on 2.3.2011 and not passing order by the second respondent cannot be put against the management and the petitioner has no right to demand restoration when charges are pending against him. 8. I have considered the rival submissions made by the learned counsel for the petitioner, learned Additional Government Pleader on behalf of respondents 1 to 3 as well as learned counsel appearing for the 4th respondent. 9. The point arises now for consideration in this writ petition is as to whether the petitioner is entitled to be restored in service on completion of two months period of suspension, in the absence of any extension order passed by the competent authority. 10. The 4th respondent School is a recognised and fully aided private School as defined under section 2(7) of the Act. For administration of the School, the 4th respondent School is bound to https://hcservices.ecourts.gov.in/hcservices/ constitute a School Committee under Section 15 of the Act. How the School Committee should function in the discharge of its statutory functions is mentioned in Sections 15 and 17 of the Act. The functions of the School Committee is mentioned in Section 18 of the Act. Section 18(c) empowers the School Committee to take disciplinary action against Teachers and other employees of the Private School. Section 22 of the Act deals with dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools. Section 22 reads as follows: "22. Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools.- (1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed, or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. (2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private school is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment. (3) (a) No teacher or other person employed in any private school shall be placed under suspension, except when an inquiry into the gross misconduct, within the meaning of the Code of Conduct prescribed under sub-section (1) of section 21, of such teacher or other person is contemplated. (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher or other person shall, without prejudice to the inquiry, be deemed to have been restored as teacher or other employee: Provided that the competent authority may, for reasons to be recorded in writing extend the said period of two months, for a further period not exceeding two months, if in the opinion of https://hcservices.ecourts.gov.in/hcservices/ such competent authority, the inquiry could not be completed within the said period of two months for reasons directly attributable to such teacher or other person." 11. The petitioner is a non-teaching staff appointed in the 4th respondent School as Office Assistant in the year 1995. His appointment has been approved by the department. Therefore his service conditions are governed under Chapter-V of the Act. 12. The allegation levelled against the petitioner is that the petitioner lost Pupils' attendance register of 10th Standard 'D' Section on 5.8.2010. Therefore the management resolved to place the petitioner under suspension under Rule 17(2)(i) of the Rules, until further orders. The order of suspension was communicated to the petitioner on 3.1.2011. As per Section 22(3)(b) the suspension order passed against a teacher or other person employed in a private school can remain in force only for a period of two months from the date of suspension and it can be extended by the competent authority for reasons to be recorded in writing for a further period of two months only. Though it is contended in the counter affidavit that resolution was passed by the School Committee on 19.2.2011, appointing enquiry officer pursuant to which a representation was submitted to the competent authority/2nd respondent on 2.3.2011 seeking extension of the period of suspension for a further period of two months, no order extending the period of suspension was issued by the competent authority viz., the second respondent till date. The statutory provision viz., Section 22(3)(b) clearly states that no order of suspension shall remain in force for more than a period of two months from the date of suspension unless the competent authority extends the period of suspension for a further period of two months by recording reasons in writing and one such reason is that the enquiry could not be completed within two months for reasons directly attributable to such teacher or other person. 13. Here in this case, the enquiry officer was appointed by the 4th respondent management by resolution dated 17.2.2011. In the counter affidavit it is stated that on 28.3.2011 the petitioner submitted a request to permit him to peruse certain documents. The said request itself was after two months. Thus the delay in not completing the enquiry for the allegation levelled against the petitioner till 2.3.2011 is not attributable to the petitioner and the management should be blamed for taking such a long time. Further, the request for extension of the period of suspension was made on 2.3.2011 and in the said request letter it is not stated how the petitioner is responsible for not completing the enquiry within two months. On the contrary, it is stated in the said representation addressed to the second respondent that the enquiry could not be completed within two months and therefore extension is to be granted. The said reason cannot be a reason to seek extension of the period of https://hcservices.ecourts.gov.in/hcservices/ suspension as it is in violation of the statutory provision contained in section 22(3)(b) of the Act, which specifically states that the reasons for not completing the enquiry should be directly attributable to the petitioner (delinquent). 14. Rule 17 of the Rules is also the other provision connected with the issue in this writ petition. Rule 17(2)(iii) states that the competent authority if extends the period of suspension in terms of Section 22(3)(b), shall intimate such extension to the District Educational Officer concerned. As per Rule 17(2)(v) payment of subsistence allowance is limited to a maximum of four months in all. Thus, it is abundantly clear from the statutory provisions that a teacher or other person employed in a Recognised Private Aided School can be suspended for a period of two months initially, which can be extended for a further period of two months if permission is granted by the competent authority under section 22(3)(b) of the Act and not beyond that. 15. The very same issue as to whether on expiry of the period of two months, a person employed in a Private School will get automatic extension if extension is not obtained from the competent authority, was considered by the Division Bench of this Court in the decision reported in 1991 MLJ 278 (S.N.Muthusamy v. The Joint Director of School Education). In paragraph 4 of the said judgment the Division Bench held thus, "4. A plain reading of the provisions do speak to the effect as advanced by the learned counsel for the petitioner. When Sec.22(3)(b) speaks about the restoration into service of the teacher after the period spoken to therein, of course, subject to the extension of the suspension for a period of two months as per the proviso thereto, the restoration must be in full sense and a restoration without emoluments will be a meaningless proposition. We cannot conceive of restoration into service as per that provision without emoluments. Furthermore, when the suspension is found to be not justified Rule 17 (3)(i) casts obligation on the educational agency to pay the teacher the full pay and allowances for the period of suspension. In the present case, the order of suspension was simply left in the air much to the chagrin of the petitioner until it was revoked, on 29.9.1984, when the petitioner was reinstated into service. There was also no extension of the period of suspension within the meaning of the proviso to Sec.22(3)(b) of the Act. No disciplinary action was taken and prosecuted against the petitioner. Nothing https://hcservices.ecourts.gov.in/hcservices/ convincing is stated before us for the third respondent in justification of the order of suspension. In the said circumstances, there cannot be any other say than the one characterising the order of suspension as wholly unjustifiable. It is true, Mr.G.Masilamani, learned senior counsel appearing for the third respondent would say that the conviction of the petitioner by the Criminal Court prompted the third respondent to order the suspension of the petitioner. But, this submission of the learned senior Counsel for the third respondent, does not advance any justification that could be acceptable for us for placing the petitioner under suspension, even when no disciplinary action was contemplated and prosecuted. This is apart from the question as to whether any disciplinary action could be validly taken at all against the petitioner for any misconduct within the meaning of code of conduct, in the stated facts and circumstances. In our view, the statutory provisions, referred to above, speaking about restoration into service after the lapse of the permissible period of suspension, which has been found to be not justified, we cannot find any difficulty to spell out the statutory basis for the claims of the petitioner so as to issue the writ of mandamus, directing the third respondent to disburse the emoluments for the period during which the petitioner was under suspension. .............." In the decision reported in (1990) 1 MLJ 437 (The Correspondent, Seaforth Aided Primary School v. The Chief Educational Officer) also this Court took the same view and in paragraph 21 held thus, "21. I have already referred to the provisions of Section 22(3) of the Tamil Nadu Recognised Private Schools (Regulation) Act. Under that sub-section, any order of suspension shall not remain in force for more than a period of two months from the date of suspension. Under the proviso, to Sub-clause (b), the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period of exceeding two months if in his opinion, the enquiry could not be completed within the said period of two months for reasons directly attributable to such teacher or other person. In the present case, there is no extension of the https://hcservices.ecourts.gov.in/hcservices/ period of suspension by the competent authority. Hence, under Sub-clause (b) of clause (3), the period of suspension came to an end with 15.1.1984. By virtue of the statutory fiction, the Headmaster is deemed to have been restored as such. Consequently, the prayer of the petitioner herein has to be granted in a modified form. There is no necessity for direction to reinstate, as there is a statutory restoration of the position of the petitioner as Headmaster. What remains to be done is only to declare that the petitioner is restored to the post of Headmaster from 16.1.1984 and as such he will be entitled to all emoluments as well as the benefit of seniority." 16. The issue as to whether a person employed in a private School can be kept under suspension beyond four months in toto was considered by the Division Bench of this Court in the decision reported in 1996 (2) CTC 577 (M.Rukmani Devi v. The Chief Educational Officer & 2 others). In paragraph 7 the Division Bench held that if no final order is passed by the School management against the teacher or other person employed in the private school, the said teacher or other person employed is entitled to be restored in service as the suspension order will have no effect after the expiry of the period of four months from the date of suspension even if extended. In fact, the Division Bench set aside the order of the learned single Judge regarding the grant of deemed permission if no order is passed if the application submitted before the competent authority is pending without passing any order. 17. The department/authority who is placing a person under suspension should scrupulously follow the statutory rule, was considered by the Supreme Court in the decision reported in 2010 AIR SCW 158 (Union of India v. Dipak Mali). In the said decision the Honourable Supreme Court taking note of Rule 10(6),(7) of the Central Civil Services (CCA) Rules, 1965, which require review of suspension within 90 days as a mandatory requirement to continue the order of suspension, held that the suspension beyond 90 days without review cannot be continued. The Honourable Supreme Court in the said judgment confirmed the view taken by the Madhya Pradesh High Court, which in turn affirmed the decision of the Central Administrative Tribunal. 18. The mandatory provision is bound to be followed by the authorities, and what will be the consequence of not following the rule is considered by the Honourable Supreme Court in the decision reported in 2010 (8) Supreme 611 (Paramjit Singh v. Director, Public Instructions & Others). In the said case a privately managed School terminated the probation of a teacher without obtaining prior https://hcservices.ecourts.gov.in/hcservices/ approval from the Director as required under Rule 4 of the Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1979, which was held illegal. In paragraphs 11 and 12 the Supreme Court held thus, "11. ........ we are of the view that prior approval under Section 4 of the Act ought to have been obtained from the Director as it is mandatory. Even in case of termination of service of a probationer, prior approval is must. 12. We, therefore, hold that the termination was not in accordance with law because no prior approval of the Director was obtained by the appellant-management before terminating services of the respondent teachers. ........." 19. The petitioner's conditions of service being specifically prescribed under Chapter-V, particularly Section 22 read with Rule 17, the petitioner is entitled to seek restoration in service on the expiry of two months as no order of extension was obtained from the second respondent/competent authority, all these days. 20. In the light of the above statutory provisions as well as the judgments cited supra, I am of the view that the order of suspension passed against the petitioner dated 3.1.2011 can remain in force only upto 2.3.2011 and the petitioner shall be treated to be restored in service with salary and other benefits from 3.3.2011. How to regulate the suspension period from 3.1.2011 to 2.3.2011 is to be decided by the 4th respondent after final order is passed in the disciplinary proceedings initiated against the petitioner based on the charge memo already issued. The respondents 1 to 4 are directed to restore the petitioner in service from 3.3.2011 with full salary and other benefits within a period of two weeks from the date of receipt of copy of this order. Arrears of salary payable to the petitioner shall be calculated and paid to the petitioner within a period of two weeks thereafter. The writ petition is ordered with the above directions. No costs. Connected M.P.Nos.1 and 2 of 2011 are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Director of School Education, College Road, Chennai. 2. The Chief Educational Officer, Kanchipuram. 3. The District Educational Officer, Kanchipuram. 1 cc to Mr.S.Giridharan, Advocate, Sr.No.34735 1 cc to Mrs.G.Thilakavathi , Advocate, Sr.No.34866 W.P.No.8559 of 2011 nsm(co) pmk.17.6.2011 https://hcservices.ecourts.gov.in/hcservices/