IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.Nos.13753 of 2002, 14031 and 14251 of 2002 M.Suriyan ... Petitioner in W.P.No.13753/2002 C.Kalaiselvan ... Petitioner in W.P.No.14031/2002 C.Thirugnanasambandam ... Petitioner in W.P.No.14251/2002 Vs. 1. The Govt. of Tamilnadu Rep. By Secretary & Commissioner, Department of Education, Chennai 600 009. 2. Directorate of Collegiate Education, College Road, Chennai 6. 3. The Regional Joint Director of Collegiate Education, Tirunelveli. 4. Principal, Arulmigu Kumaragurupara Swamigal Arts College, Arulandi Nagar, Padmanaba Mangalam P.O., Srivaigundam 628 619. Tuticorin 5. The Secretary, Arulmigu Kumaragurupara Swamigal Arts College, Arulandi Nagar, Padmanaba Mangalam P.O., Srivaigundam 628 619. Tuticorin ... Respondents in all W.Ps. Writ petitions have been filed under Article 226 of the Constitution of India to issue a writ of Certiorari calling for the records pertaining to the proceedings No.1/KGS/DIS/2001-2002 dated 22.3.2002 issued by the 5th respondent and quash the same. For petitioners : Mr.R.Subramanian For respondents 1 to 3 : Mr.R.Suresh, G.A. For respondents 4 & 5 : Mrs.Usha Ramanan https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER As the common question of law and facts are involved in all these writ petitions, common order is being passed. 2. All the petitioners are working as Lecturer in Arulmigu Kumaragurupara Swamigal Arts College, Arulandi Nagar, Srivaigundam, Tuticorin. 3. All the three petitioners were issued a charge memo alleging that they were responsible for false complaint given by the hostel students against the management in respect of functioning of the hostel. 4. On receipt of the charge memo, a request was made by the petitioners to supply all the documents relating to the allegations levelled in the charge memo. The requisite documents were furnished to the petitioners to which they submitted a detailed reply. The petitioners were also supplied copy of preliminary enquiry report before issuing charge memo to them. The petitioners denied allegations and submitted a detailed explanation to the charge memo. 5. The case of the petitioners is that after submission of the explanation, no enquiry was held and impugned order was passed by the Secretary of the College, the fifth respondent herein. The impugned order reads as under: "Arulmigu KumaraGurupara Swamigal Arts College Arulandi Nagar, Padmanabhamangalam (P.O.) Pin: 628 619 Srivaikuntam, THOOTHUKUDI DT. Thiru A.Srinivasan Secretary Dr.S.Sankaranarayanan, M.A.,M.Phil. Ph.D., Principal ProceedingsNo.1/KGS/Dis/2001-2002, dated 22.3.2002 Sub: Irregularities committed by Thiru C.Thirugnanasambantham, Sl.Gr.Lecturer in Tamil, Thiru M.Suriyan, Sl.Gr.Lecturer in Economics and Thiru C.Kalaiselvan, Sl.Gr.Lecturer in Tamil – charges framed – disciplinary proceedings initiated – Punishment imposed – final orders passed – Regarding. https://hcservices.ecourts.gov.in/hcservices/ Ref: 1) The complaint of the hostel inmates dated 26.1.2002. 2) The statements of Muthuselvan, Arumuga Kumar Arulprasad and K.Kathirkaman 3) The report of the enquiry comiittee held on 7.1.2002. 4) The office memo dated 23.1.2002 issued by the Principal 5) The explanation of Mr.C.Thirugnasambandam, Mr.M.Suriyan and Mr.C.Kalaiselvan, 29.2.2002 6) The office memo dated 11.02.2002 issued by the Principal 7) The explanation by Mr.C.Thirugnana- sambantham, Mr.M.Suriyan and Mr.C.Kalaiselvan, 20.2.2002. 8) The letter of the Principal dated 5.3.2002 9) The Office memo dated 5.3.2002 issued by the Secretary. 10)The reply by Mr.C.Thirugnana- sambantham, Mr.M.Suriyan and Mr.C.Kalaiselvan, dated 11.03.2002. The inmates of the hostel attached to A.K.G.S. Arts College, preferred a written complaint to the Principal on 26.11.2002, marking copies to the Government Officiates making allegation against the Management. Immediately, after preferring the said complaint, the inmates of the hostel vacated the hostel subsequently, the 4 students Arumugakumar, Muthuselvan, Kathirkaman and Arulprasad, who represented the students at the time of preferring the complaint and other students gave written requisitions seeking apology and the willingness to come to the hostel and to continue to stay there. The 3 students specifically referred to above in their statement categorically stated that they were instigated by Mr.C.Thirugnanasambantham, Sl.Gr.Lecturer in Tamil, Mr.M.Suriyan, Sl.Gr. Lecturer in Economics and Mr.C.Kalaiselvan, Sl.Gr. Lecturer in Tamil the members of the faculty and the instigation was made by them at the office of MUTA. In the above circumstances with a view to maintain discipline in the hostel and in the college the Principal appointed an enquiry committee consisting of the members of the faculty. The said committee enquired the matter on 7.1.2002 https://hcservices.ecourts.gov.in/hcservices/ and forwarded the report finding fault with Mr.C.Thirugnanasambandam, Mr.M.Suriyan and Mr.C.Kalaiselvan. On the basis of the said report, the Principal issued a memo on 23.1.2002 calling for explanation from the above three members of the Teaching staff on 29.1.2002, they sent the reply denying the allegations and sought for the copies of the relevant documents. Accordingly, on 11.2.2002, the Principal furnished the copies of all the relevant documents on 20.2.2002, they submitted a detailed explanation. The Principal along with his letter dated 5.3.2002, forwarded the papers to the Secretary for follow up action if necessary on going through the papers, the Secretary not being satisfied with the explanation offered by the three teachers, framed specific charge and charge memo dated 5.3.2002 was served upon the 3 teachers. Though they did not offered any further explanation for the charges they reiterated what they had explained to the Principal. A perusal of the papers reveal that though the students vacated the hostel on 27.12.2001, immediately after preferring the complaint on 26.12.2001, within a week, they came forward with the statements, seeking apology from the management for having preferred false complaint and they sought permission to join the hostel. In the statement of three students namely Muthuselvan, Arulprasad and Arumuga Kumar, who represented other students at the time of preferring the complaint confessed that they were instigated by Mr.C.Thirugnana- sambandam, Mr.M.Suriyan and Mr.C.Kalaiselvan to prefer the false complaint at the office of MUTA. Hence an enquiry by the enquiry committee was conducted and the enquiry report found false with the above three teachers. Explanations were called for by the Principal from the above three teachers and the papers have been forwarded to the Secretary for follow up action if necessary. I do not see any reason or motive for the students to implicate the 3 teachers. The three teachers also have not come forward with any specific ground for disbelieving the statement of students. The enquiry committee after detailed enquiry has found fault with the said three teachers. The report of the committee cannot also https://hcservices.ecourts.gov.in/hcservices/ be discharged. In the absence of any proper explanation, I do not find any reason to drop the charge levelled against the teachers. On the other hand, the charge levelled against the three teachers, that they instigated the students to prefer a false complaint against the hostel Management and made them to vacate the hostel with an intention of causing indiscipline and unrest among the students of the college stands proved beyond doubts. I held Mr.C.Thirugnanasambandam, Mr.M.Suriyan and Mr.C.Kalaiselvan guilty of the charges levelled against them. So far as the punishment is concerned, Mr.C.Thirugnanasambandam, while working at S.K.S. Arts College, Thirupanathal, another college established by the same educational agency was subjected to disciplinary proceedings for similar charge and had been punished stopping one increment with cumulative effect. Being members of the faculty, the duty of the lecturers to cultivate and maintain discipline among the students contrary to that, the 3 teachers are the root cause for the indiscipline among the students. Though they deserve severe punishment considering the future of lecturers and hoping that good sense will prevail upon them, the following final orders are passed. There will be a reduction of 2 stages in the present pay of the scale of pay of Mr.C.Thirugnanasambandam, Mr.M.Suriyan and Mr.C.Kalaiselvan." 6. The petitioners challenged the impugned order on the ground that the impugned order cannot be sustained in law, being in violation of statutory provisions of Tamilnadu Private Colleges (Regulation) Act 1976. 7. In support of this contention, the learned counsel for the petitioner referred to Form 7-A i.e., the statutory agreement executed with the College committee of a College which provides that no punishment can be awarded to the Teachers except by following due process laid down in the agreement. The Clause 7(b) of the agreement in form 7-A, stipulates personal hearing and enquiry before imposing punishment. 8. The case of the petitioners is that the respondents violated the statutory provisions of the agreement, in imposing the punishment without enquiry. Furthermore, the Secretary of Managing Committee proceeded on the presumption as if an enquiry was held by https://hcservices.ecourts.gov.in/hcservices/ taking preliminary enquiry to be the enquiry against the petitioners. 9. It is also the contention of the learned counsel for the petitioners that the impugned order is also without jurisdiction, in as much as the power to appoint and take disciplinary action against the teachers vest with the College committee and not with the Secretary. It was not open to the Secretary of the College to pass the impugned order. 10. Sec.14 of the Tamilnadu Private Colleges (Regulation) Act, 1976 reads as under: "14. Functions of the college committee and responsibility of educational agency under this Act - (1) Subject to the provisions of this Act and the rules made thereunder, the college committee shall have the following functions, namely:- (a) to carry on the general administration of the private college excluding the properties and funds of the private college; (b) to appoint teachers and other persons of the private college, fix their pay and allowances and define their duties and the conditions of their service; and (c) to take disciplinary action against teachers and other persons of the private college. (2) The educational agency shall be bound by anything done by the college committee in the discharge of the functions of that committee under this Act. (3) For the purpose of this Act, any decision or action taken by the college committee in respect of any matter over which the college committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency." 11. It is also the contention of the learned counsel for the petitioners that the punishment awarded to the petitioners is also not the one falling under the punishment stipulated under the statutory rules. 12. Though the petitioners have alternative remedy of filing statutory appeal under Sec.20 of the Tamilnadu Private https://hcservices.ecourts.gov.in/hcservices/ Colleges (Regulation) Act, 1976, it would not be appropriate at this stage, to relegate the petitioners, to statutory remedy of appeal, in view of the fact that, this writ petition was admitted by this Court in the year 2002, and is pending in this Court for the last nine years. It will therefore not be appropriate to relegate the petitioner to alternative statutory remedy of appeal especially when the impugned order on the face of it, is without jurisdiction, having been passed by the authorities not competent to impose punishment. The statutory provisions required to be followed by the authorities, before imposing punishment, were also violated. Therefore, it will be appropriate to consider the case on merit. 13. The form 7-A i.e. the statutory agreement, is binding on the teachers as well as management. It was not open to the competent authority to impose punishment of reduction in pay scale, without following due process of law i.e. to hold departmental enquiry, and give personal hearing. 14. The impugned order is also without jurisdiction, as no jurisdiction vests with the Secretary to pass the impugned order. 15. The punishing authority is the management of the College, and not the Secretary. The order on the face of it is without jurisdiction. Furthermore, not only the order is without jurisdiction, but it suffers from non application of mind, as the Secretary of the College proceeded on the presumption as if the enquiry had been conducted against the petitioners, though it was only a preliminary enquiry conducted at the back of the petitioners. It was on the basis of the enquiry that the charge memo was issued, to which explanation was submitted by the petitioners. The enquiry was required to be conducted thereafter by following the procedure laid down for holding departmental enquiry. 16. For the reasons stated, the writ petition is allowed. The impugned order is quashed. The petitioners shall be entitled to all consequential benefits arising from quashing of the impugned order. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vaan https://hcservices.ecourts.gov.in/hcservices/ 1. The Secretary & Commissioner, Govt. of Tamilnadu, Department of Education, Chennai 600 009. 2. Directorate of Collegiate Education, College Road, Chennai 6. 3. The Regional Joint Director of Collegiate Education, Tirunelveli. 4. Principal, Arulmigu Kumaragurupara Swamigal Arts College, Arulandi Nagar, Padmanaba Mangalam P.O., Srivaigundam 628 619. Tuticorin 5. The Secretary, Arulmigu Kumaragurupara Swamigal Arts College, Arulandi Nagar, Padmanaba Mangalam P.O., Srivaigundam 628 619. Tuticorin. 3 cc to Mr.R.Subramanian, Advocate, Sr.No.14759, 14760, 14763 1 cc to Government Pleader, Sr.No.15059 W.P.Nos.13753 of 2002, 14031 and 14251 of 2002 MS {CO} TP/16.3.2011. https://hcservices.ecourts.gov.in/hcservices/