IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 31-03-2011 Coram THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.23593 of 2009 Sri Ramakrishna Mission Vidyalaya College of Education, rep.by its Secretary Swami Atmaramananda Sri Ramakrishna Vidyalaya Post, Coimbatore – 641 020. ... Petitioner Vs. 1. The Director, Directorate of College Education, Chennai. 2. The Joint Director of College Education, Coimbatore Division, Coimbatore – 18. 3. Dr.S.Sudarsan, Reader in History, Sri Ramakrishna Mission Vidyalaya College of Education, Sri Ramakrishna Mission Vidyalaya Post, Coimbatore – 641 020. ... Respondents Prayer: Petition filed under Article 226 of Constitution of India, seeking a Writ of Certiorarified mandamus calling for the entire records in connection with the impugned order of the first respondent in Pa.Mu.No.24907/F1/2009 dated 28.10.2009 and quash the same and consequently direct the first respondent to grant approval of the proposal of imposing the punishment of dismissal from the service on the third respondent on the basis of the charges held to be proved. For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram For Respondents 1 &2: Mr.K.H.Ravikumar, Government Advocate For 3rd respondent : Mr.V.Ayyadurai https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is to quash the order passed by the first respondent dated 28.10.2009 and consequently direct the first respondent to grant approval for the proposal of imposing punishment of dismissal from service of the third respondent on the basis of the proven charges. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner College is a private college established and administered by the Ramakrishna Mission, which is a registered society. The petitioner college is an autonomous college affiliated to the Tamil Nadu Teachers Education University, recognised by the NCTE and accredited with A Plus grade of NAAC. The institution was established in the year 1950 and granted autonomous status in the year 1981. (b) The third respondent was employed in the petitioner institution as a Reader in History Department. A Disciplinary Proceeding was initiated against the third respondent by the College Committee for certain delinquencies and after conducting enquiry and following the requirements under the Law, a punishment of dismissal from service was proposed and prior approval was sought for from the first respondent under Section 19 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. (c) The Joint Director of College Education, having participated in the College Committee meeting while taking the decision, was reluctant to pass orders and hence the petitioner filed W.P.No.11008 of 2009 and prayed for a direction to the first respondent to consider and dispose of the representation seeking prior approval. By order dated 22.6.2009 this Court directed the first respondent to pass orders within a period of six weeks. (d) The first respondent considered the enquiry report and concurred with the findings of the Enquiry Officer's report, however without giving any opportunity to the petitioner, refused to grant approval on the ground that the proposed punishment of dismissal was disproportionate. (e) The said reason stated by the first respondent is challenged on the ground that proportionality of the punishment cannot be gone into by the first respondent and it is for the disciplinary authority to decide the same; that the first respondent having found that the charges including misappropriation having been found proved and misuse of funds sanctioned by the UGC are serious delinquencies, and the College Committee being the statutory https://hcservices.ecourts.gov.in/hcservices/ authority under the Act and Rules, is empowered to take a decision regarding punishment; that the competent authority can interfere if there is infirmity in the procedure of proving charges and the first respondent has no power to adjudicate as the Judicial authority; that the charge of misappropriation of the public fund to the tune of Rs.32,000/- is a grave charge and therefore the punishment proposed is proportionate and the same is failed to be considered by the first respondent in the impugned order. 3. The third respondent has filed a counter affidavit opposing the writ petition and contending that the power vested with the first respondent in granting prior approval is on par with the power referred to under Section 33(2)(b) of the Industrial Disputes Act, 1947. Even if the first respondent has no jurisdiction to interfere in the matter of quantum of punishment, this Court can go into the issue and decide the matter on the ground of judicial review. According to the third respondent, the language used in Section 19 makes it clear that the first respondent is the competent authority. Therefore discretion is vested with the first respondent to state reasons as to why prior approval cannot be granted and one such reason is regarding proportionality of the punishment. The third respondent also raised certain grounds regarding bias, violation of principles of natural justice in inducting an advocate as member of the College Committee, who was later on appointed as Enquiry Officer, examining the member who was ex-officio member of the College Committee as management witness, failure to give assistance of a co- teacher during the enquiry is denial of reasonable opportunity, failure to furnish copy of the enquiry report to submit his remarks regarding irregularity in conducting the enquiry and all the said aspects were also raised before the first respondent in the written objection submitted by the petitioner on 19.8.2009. The same having not been considered by the first respondent even assuming the reason stated by the first respondent for refusing the approval on other grounds, the refusal is justified. 4. Heard Mr.M.Venkatachalapathy, learned Senior Counsel for the petitioner and Mr.V.Ayyadurai, learned counsel appearing for the third respondent. The first respondent even though was served on 30.11.2009 has not chosen to file any counter affidavit opposing the writ petition. 5. The issues arise for consideration are, (a) Whether the order passed by the first respondent in refusing to approve the prior permission/approval to terminate the third respondent is justified or not ? And (b) Whether the matter can be remanded to the first respondent if ultimately the finding is not found acceptable, leaving the matters to be considered afresh? https://hcservices.ecourts.gov.in/hcservices/ 6. The petitioner is a private college as defined under section 2(8) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The petitioner college was granted affiliation by the Bharathiyar University and after the Teacher Education University was formed, the College is now affiliated to the said University. 7. The third respondent is a Teacher/Reader appointed in the petitioner private College. The College Committee is the competent authority to initiate disciplinary proceeding under Section 2(2) and 14 of the Act. The College Committee in exercise of its powers, framed charges against the third respondent on 14.6.2008 the College Committee passed resolution, which reads as follows: "Resolved that based on the evidence of documents available with the Secretary, Sri Ramakrishna Mission Vidyalaya College of Education, it has been found that Dr.S.Sudarsan, Reader in History, Sri Ramakrishna Mission Vidyalaya College of Education, Coimbatore, had submitted dubious vouchers and fraudulently availed funds of the University Grants Commission. Under such circumstances, taking into consideration the seriousness of the issue, it is resolved that the Secretary of the College be and is hereby authorized by the members of the Governing Council and College Committee to issue a show-cause notice to Dr.S.Sudarsan, Reader in History, and take all necessary steps including disciplinary action against him." Based on the said resolution passed by the College Committee, the Secretary of the College on the same day framed the following three charges against the third respondent. Charge No.1: It was found that Dr.S.Sudarsan, the claimant, had not travelled on the dates mentioned by him using the mentioned tickets. He had submitted photocopy of tickets and received money from UGC funds for unlawful enrichment. Charge No.2: As per the travel details, the distances travelled by the claimant for data collection in connection with the project from Perianaickenpalayam to other places are far more than the actual distances. The claimant submitted false records by producing inflated distance schedule in order to claim more money from the allotted funds of the UGC. Charge No.3: The bill Nos.451 and 453 were settled on 18.10.2007 and 11.10.2007 whereas the bill Nos.454 and 456 were settled on 14.9.2007 and 13.9.2007 respectively. The later bill was prepared on an earlier date, and earlier bill prepared on a later date. The https://hcservices.ecourts.gov.in/hcservices/ bills produced above for availing funds are improper and intended to misuse the UGC funds (Bills are bogus and bill numbers are not sequential). 8. The terms and conditions of services of teachers and other persons employed in Private Colleges including the third respondent are coming under Chapter IV of the Tamil Nadu Private Colleges (Regulation) Act, 1976. Section 19 of the Act deals with dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private colleges. As per section 19(1) prior approval of competent authority before dismissing, removing or reducing the rank of teacher has to be obtained by the College Committee and proposal has to be submitted under Rule 19(2). The competent authority shall record his satisfaction that there are adequate and reasonable ground for such proposal before approving such approval, rejection or reduction or termination of approval. Section 19(1) and (2) reads as follows: "19(1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private college 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 college 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." The proposal seeking prior approval to terminate the services of the third respondent was sent by the petitioner management, which is now rejected on the ground of proportionality of punishment alone. 9. The charges alleged and proved against the third respondent includes misappropriation of money. It is well settled proposition of law that if the charge of misappropriation is proved, the management will lose confidence on such member and he/she cannot be retained in service and for the proven charge of misappropriation dismissal can only be the punishment. Therefore the reason given by the first respondent for denying the approval only on that ground is unsustainable. 10. The learned counsel for the third respondent submitted that https://hcservices.ecourts.gov.in/hcservices/ the third respondent submitted written submission on 19.8.2009 and raised 13 points for consideration by the first respondent while deciding the prior approval and all the issues may be directed to be reconsidered as the reason stated by the first respondent in rejecting the approval, if not found valid by this Court. As per the scheme of the Act and Rules the competent authority to grant prior approval being the first respondent, who is the statutory authority, this Court cannot grant permission as prayed for in this writ petition. Therefore the matter has to be necessarily remitted back to the first respondent to pass fresh orders. 11. The order passed by the first respondent dated 28.10.2009 is in favour of the third respondent. The third respondent has not chosen to challenge the earlier portion of the said order where a finding is given regarding the regularity in the proceedings conducted by the management. The objection raised in the written submission placed before the first respondent dated 19.8.2009 is not considered in detail. The learned counsel for the third respondent is justified in arguing that the entire matter may be decided afresh by the first respondent. 12. Mr.M.Venkatachalapathy, learned Senior Counsel submitted that the third respondent is not justified in contending that the entire matter should be left open to be decided, particularly when he has not chosen to challenge the findings given by the first respondent regarding the regularity in proceedings. The said submission is too technical in nature. As rightly contended by the learned counsel for the first respondent, the occasion to challenge the order has not arisen as he got a favourable order from the first respondent. Now the said order having been set aside by remanding the matter to the first respondent to consider all aspects will not cause any prejudice to the petitioner management. The power of the High Court under Article 226 of the Constittion of India is to take cognisance of the entire facts and circumstances of the case and pass appropriate orders. The supreme Court in the decision reported in AIR 2009 SC 713 (Ramesh Chandra Sankla v. Vikram Cement) held that Article 226 is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Court to reach injustice wherever it is found. It was held that the Constitution does not place any fetters on the exercise of the extraordinary jurisdiction of the High Courts under Article 226. It was further held that the restrictions on the exercise of power, self imposed or statutory then stand removed and no rule or technicality on exercise of power can stand in the way of rendering justice. 13. Since the matter is now remitted to the first respondent, the first respondent is not precluded from considering the grounds urged by the third respondent in his written submission dated 19.8.2009 submitted before the first respondent while considering the matter afresh. https://hcservices.ecourts.gov.in/hcservices/ 14. In the result, the impugned order dated 28.10.2009 is set aside and the matter is remitted back to the first respondent to consider all the issues afresh in the light of the above findings and pass fresh orders in accordance with law, within a period of eight weeks from the date of receipt of copy of this order. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vr To 1. The Director, Directorate of College Education, Chennai. 2. The Joint Director of College Education, Coimbatore Division, Coimbatore – 18. 1 cc to Mr.M.Sriram, Advocate, Sr.No.23149 Order in W.P.No.23593 of 2009 DM {CO} TP/1.4.2011. https://hcservices.ecourts.gov.in/hcservices/