In the High Court of Judicature at Madras Dated: 22.08.2008 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice S.PALANIVELU Writ Appeal No.68 of 2007 and M.P.No.1 of 2007 1. The Correspondent, Inter Christian Mission Middle School, Koilpatti, Tuticorin District. 2. K.Joseph Packiaraj ..Appellants /Respondents 2 & 3 ..vs.. 1. D.Jayakumar Ponnudurai 2. The District Elementary Educational Officer, Tuticorin, Tuticorin District. ..Respondents / Petitioner / 1st Respondent Writ Appeal filed under Clause 15 of the Letters Patent, against the Order passed in W.P.No.27431 of 2003 dated 07.07.2006 filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified mandamus calling for the records pertaining to the order passed by the 3rd Respondent in his proceedings No.Nil dated 22.09.2003 and quash the same and direct the respondents to confer all the consequential benefits. For Appellants : Mr.T.M.Hariharan For Respondents : Mr.T.Sellapandian for R1 Mr.R.Thirugnanam for R2 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by ELIPE DHARMA RAO,J.,) The above Writ Appeal is directed against the Order of the learned single Judge dated 07.07.2006 made in W.P.No.27431 of 2003, wherein the learned Judge set aside the order of dismissal passed by the 1st appellant, which was impugned in the writ petition. 2. The case of the 1st respondent/writ petitioner is that the writ petitioner was working as Secondary Grade Teacher from 1987 in the 1st appellant school and he was placed under suspension by order dated 31.07.2002 based on certain allegations levelled against him and the writ petitioner was directed to submit his explanation. He also submitted his explanation on 06.08.2002 denying the charges. Further, the petitioner was directed to appear for an enquiry on 20.08.2002. The petitioner had sent a telegram seeking for adjournment of the enquiry. But, a show cause notice was issued on 11.09.2002 stating that the enquiry has already been completed. Subsequently, by the order dated 22.09.2003, the petitioner was dismissed from service. Challenging the same, the 1st respondent filed the writ petition. 3. The learned single Judge, after considering the arguments of both sides, allowed the writ petition on the ground that the allegations levelled against the petitioner are not so serious and the dismissal order is disproportionate to the allegations, giving liberty to the 3rd respondent therein (2nd appellant herein) to proceed with the disciplinary proceedings, if necessary. Against that, the present writ appeal is filed. 4. Heard the learned counsel on either side. 5. Learned counsel for the appellants contended that the proved charge is grave enough for imposing the punishment of dismissal from service and therefore, the order passed by the learned single Judge is liable to be dismissed. 6. On a perusal of the order, the learned Judge found that the adjournment of enquiry sought for through telegram was rejected, and the enquiry was proceeded with and thereafter the second show cause notice was issued. When he had not participated in the enquiry, without considering his request, the final order was passed. Considering the facts and circumstances, the learned Judge observed that without giving an opportunity to the petitioner, the enquiry was conducted and no prior approval was obtained from the District Educational Officer before passing the order of removal from service and set aside the order of dismissal with a direction to reinstate https://hcservices.ecourts.gov.in/hcservices/ the petitioner with liberty to the Management to proceed with the disciplinary proceedings. Aggrieved over the same, the writ appeal is filed by the Management. 7. During the course of arguments, learned counsel for the writ petitioner contended that the petitioner was placed under suspension by order dated 02.07.2002 on three charges, which are not considered to be serious and the Correspondent, who issued the charge memo, cannot conduct the enquiry applying the principle 'No one is Judge of his own cause'. Secondly, the learned counsel strongly contended that though the writ petitioner was placed under suspension and the fact was intimated to the District Educational Officer as per Section Rule 17(2)(ii) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, by the Management of the appellant School, no payment was made by the District Educational Officer towards subsistence allowance. When the subsistence allowance is not paid, the order of suspension after conducting the enquiry, can go, as held by the Supreme Court in M.Paul Anthony ..vs.. Bharat Gold Mines Ltd., (AIR 1999 SC 1416), wherein the following was observed as follows: "33. Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the enquiry officer at such proceedings, which were held ex parte, stand vitiated". However, with regard to non-payment of subsistence allowance, the Apex Court held as follows: "31. On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc., is regulated by the terms of contract of service or service rules made by the https://hcservices.ecourts.gov.in/hcservices/ Central or the State Government under the proviso to Article 309 of the Constitution or other statutory rules including certified standing orders. The fundamental rights, including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan Tale12 struck down a service rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer13 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastava v. State of M.P. (1973)1 SCC 656:AIR 1973 SC 1183". But the fact of non-payment of subsistence allowance was not noticed by the learned single Judge of this Court and it was argued that even in the counter filed by the respondents the said fact was furnished. From the above stated facts, it is abundantly clear that there is no subsistence allowance given during the period of suspension and enquiry. Further, since the request for adjournment of the enquiry was not considered and he was not afforded an opportunity to participate in the enquiry, as held by the Supreme Court (cited supra), the ex parte enquiry is to be vitiated and the award of punishment is liable to be interfered with. In the above facts and circumstances, though the learned counsel for the Management argued that it is for the District Educational Officer to pay the subsistence allowance, as contemplated under Section 17(2)(ii) of the said Rules, both the appellants and the 2nd respondent are liable to pay the subsistence allowance. Rule 17(2) (ii) contemplates not only making payment of subsistence allowance but also dearness allowance. Therefore, the order of suspension and the consequential order of removal are liable to be set aside not only for non-payment of subsistence allowance and dearness allowance under Rule 17(2)(ii) but also for non-compliance of the principles of natural justice and not obtaining prior permission from the competent authority. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the writ appeal is dismissed. No costs. Consequently, connected WAMP.is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gl To 1. The District Elementary Educational Officer, Tuticorin, Tuticorin District. + 1 CC To Mr.T.M.Hariharan, Advocate SR NO.47124 + 1 CC To Government Pleader SR NO.47252 + 1 CC To Mr.S.Mani, Advocate SR NO.47457 Writ Appeal No.68 of 2007 BS(CO) SRA(14/10/2008) https://hcservices.ecourts.gov.in/hcservices/