IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.21287 of 2010 and 24911 of 2010 and connected M.Ps. V.Subramanian ..Petitioner in both the WPs Vs. 1.The Chief Educational Officer Cuddalore, Cuddalore District 2.The District Educational Officer Cuddalore, Cuddalore District 3.The Secretary Arumuga Navalar Higher Secondary School Chidambaram-608 001 Cuddalore District 4.S.Radhakrishnan ..Respondents in both the WPs. Prayer in W.P.21287/2010 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records culminating in passing the order in R.C.No.074/10-11 dated 04.09.2010 on the file of the third respondent, quash the same and consequently direct the respondents to reinstate the petitioner in service as Headmaster of the third respondent school with all consequential service and monetary benefits. Prayer in W.P.24911/2010 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the charge Memo Ka.No.077/10-11 dated 07.09.2010 and the consequential memo Ka.No.120/10-11 dated 25.10.2010 both issued by the 4th respondent and quash the same and direct the respondents to confer all the consequential benefits. For Petitioner :: Mr.T.Sellapandian for C.S.Associates For respondents :: for R1 and R2 :: Mr.A.Suresh, Govt.Advocate Education for R3 and R4 :: Mr.Srinath Sridevan https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard both sides. 2. Both the writ petitions are filed by one and the same person. The first writ petition in W.P.No.21287 of 2010 is filed by the petitioner, who is working as a Post Graduate Assistant in the third respondent school challenging the order dated 04.09.2010, wherein and by which, the third respondent had placed him under suspension in public interest and also for conducting an enquiry into the charges levelled against him. The third respondent had also been cited as the fourth respondent in his individual capacity and certain malafides are attributed to him. 3. According to the petitioner, since the fourth respondent was earlier a teacher of the school and when given the post of Headmaster, in view of the appeal filed by the petitioner, the promotion given to the fourth respondent was not approved and retired on 31.05.2010. After the retirement of the fourth respondent, he became the Secretary of the School Committee. As Secretary of the School Committee, he vindictively proceeded against him and suspended him in his individual capacity without any authorisation by the school committee. 4. In the writ petition, notice of motion was ordered on 17.09.2010. On notice from this court, the second respondent – District Educational Officer had filed a counter affidavit dated 02.03.2011. Apart from other disputes, within the school, in paragraph 9, the second respondent has stated that the suspension period of the petitioner had expired on 03.11.2010. In the absence of any extension of suspension for a further period of 2 months, by the competent authority, his suspension cannot continue and the petitioner was entitled to get restored to his service with effect from 04.11.2010. 5. On behalf of the third and fourth respondent, a counter affidavit was filed on 09.02.2011. In that counter affidavit, it is claimed that the suspension was necessitated in view of the grave charges leveled against the petitioner and the school committee had authorised the fourth respondent to proceed to conduct the enquiry and in the light of the said authorisation, the proceedings initiated by him is in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 6. The petitioner had filed a rejoinder dated 04.03.2011. In the rejoinder, apart from pointing out the vagueness of the charges and also improper constitution of the School committee in accordance with law and with the rules framed, once again the statutory requirements of the restoration of service was reiterated. 7. While the earlier writ petition was pending, the petitioner preferred second writ petition in W.P.No.24911 of 2010 challenging the proceedings of the School Committee and also show cause notice on his attempt to go away from the Head Quarters. In that writ petition, this court directed private notice to be served on the respondents. On such service of notice, the third respondent has filed a counter affidavit dated Nil (February 2011). 8. In that writ petition, the challenge to the charge memo was made essentially on the ground that the Secretary of the School Committee had issued the suspension order without knowledge of the school committee and the school committee has not been convened in the manner known to law. There is no requirement of the law that the petitioner cannot leave Head Quarters under suspension. 9. So far as the petitioner's suspension is concerned, it must be stated that the stand of the second respondent is that any order in the absence of any prior approval obtained as per proviso to Section 22(3)(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1923, the suspension can be last for 2 months and the teacher kept under suspension is without prejudice to the enquiry deemed to be restored to service as a teacher of the school. 10. Mr.Srinath Sridevan, learned counsel for the third respondent fairly submits that they have not obtained prior approval from the competent authority and as on date, there was no order passed by the department even though they had applied for the grant of permission. 11. Therefore, in the light of the stand taken by the District Educational Officer, the petitioner is entitled to get restored to his service with effect from 04.11.2010. It will be without prejudice to the enquiry which is ordered by the third respondent. Hence, W.P.No.21287 of 2010 will stand allowed to the extent indicated above. https://hcservices.ecourts.gov.in/hcservices/ 12. With reference to W.P.No.24911 of 2010, except the charge relating to the petitioner leaving the Head Quarters, in respect of other charges, the school is entitled to conduct an enquiry. Regarding the charge relating to the petitioner leaving his Head Quarters, the petitioner can always give proper explanation. On that score, the charge need not be quashed. However, in the interest of school, the respondent 3 and 4 need not to pursue with an enquiry as it is no way connected with the other charges. But so far as the said contention, the School Committee had not been convened properly and the Secretary itself on his own conducted proceedings, it is seen from the records that in the present case, the third respondent had been authorised by the School Committee to pursue action against the petitioner. There was no requirement in law at every stage of the enquiry, the School Committee has to be convened. 13. Mr.Srinath Sridevan, learned counsel for the third respondent in this regard produced a judgment of the Full Bench in K.M.Valliapan S/o. Kumarappan Vs. Joint Director of School Education (Higher Education) and Appellate Authority, College Road, Nungambakkam, Chennai-6 and another reported in 2006(4) CTC 471. The Full Bench of this Court after referring to all the previous cases held as follows:- " 19. From the provisions contained in the Act along with the contents of Form VII-A, it is evident that the decision as to whether a disciplinary proceeding should be initiated or not, whether an employee should be placed under suspension or not, whether charges should be framed or not has to be taken by the School Committee. These powers are essential powers of the School Committee and the provisions contained in the Act do not envisage that such essential powers can be delegated. However, the duty of holding the enquiry can be delegated by the School Committee of course and not by any other authority. The Sub-Committee or the person appointed, as enquiry officer is required to hold the enquiry and can submit his report. In view of the decision of the Supreme Court in Managing Director, ECIL, Hyderabad, etc. V. B.Karunakat etc., AIR 1994 SC 1074 : 1993(4) SCC 727, copy of such report is required to be served on the delinquent to enable him to make his submission. Such report is required to be considered independently by the School Committee and obviously such report is not binding on the School Committee. Once the School Committee comes to an independent conclusion regarding the delinquency of the charged employee, the question of punishment is again a matter to be decided by the School Committee and such authority cannot be delegated." https://hcservices.ecourts.gov.in/hcservices/ 14. The fact that School Committee was not convened within time limit prescribed therein is not a ground which the petitioner can urge which is purely internal matter of the School Committee. This court is not inclined to go into the allegations of malafide at this stage. After enquiry, if any adverse order is passed against the petitioner and it relates to a major penalty, it can be done only after getting prior approval from the appropriate authority. Against such order, there is a provision for second appeal and further judicial review by this Court and the Supreme Court. There are sufficient safeguards provided for the petitioner in the light of the Full Bench decision cited supra. 15. Therefore, the contentions raised by the petitioner cannot be countenanced by this Court. It is open to the petitioner to offer his explanation and participate in the enquiry conducted by the third respondent. In the result, W.P.21287 of 2010 stand allowed to the extent indicated above and W.P.No.24911 of 2010 stand dismissed. No costs. Consequently, connected M.Ps are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1.The Chief Educational Officer Cuddalore Cuddalore District 2.The District Educational Officer Cuddalore Cuddalore District 2 cc To M/s.C.S.Associates, Advocate, SR.19100 & 19101. 1 cc To The Government Pleader, SR.19302. W.P.Nos.21287 of 2010 and 24911 of 2010 and connected M.Ps. KSJ(CO) RVL 05.04.2011 https://hcservices.ecourts.gov.in/hcservices/