IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.07.2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.12253 of 2006 S.John Bosco .. Petitioner vs. 1. The Government of Tamil Nadu, by its Secretary to Government Elementary-Education Department, Fort St. George, Chennai 600009. 2. The Accountant General (Accounts and Entitlements) Chennai 600006 3. Assistant Educational Officer, Thurinjapuram 4. The Additional Assistant Elementary Educational Officer, Thurinjapuram 5. The Correspondent, R.C.M. Schools, Bhoodhamangalam, Vellore-632001. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Mandamus to direct the respondent to reinstate the petitioner in service as secondary Grade Teacher or in an alternative suitable employment with all service and monetary benefits with effect from 7.9.1992 in the light of Section 47(1) of the Persons with Debilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, basing on the 'status' recommendation made by the fourth respondent pursuant to his proceedings in R.c.No.1117/B1/2001 dated 06.12.2001 For Petitioner : Mr. A. Amalraj For Respondents : Mr. A. Suresh, Govt. Advocate [for R-1, R-3 and R-4] Mr.FR.A.Xavier Arulraj [for R-5] Mrs.T.S.Selvarani [for R-2] https://hcservices.ecourts.gov.in/hcservices/ ORDER The prayer in the writ petition is to direct the respondents to reinstate the petitioner in service as secondary Grade Teacher or in an alternative suitable employment with all service and monetary benefits with effect from 07.09.1992 in the light of Section 47(1) of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995, basing on the 'status' recommendation made by the 4th respondent pursuant to his proceedings made on 06.12.2001. 2. The case of the petitioner is that the petitioner was appointed as Higher Grade Teacher in 5th respondent school from 21.10.1972 in a leave vacancy. The said appointment was approved by the Education Department authorities for the purpose of payment of salary. His temporary appointment was extended from time to time. By Order dated 04.07.1975 the petitioner was appointed in a permanent vacancy (retirement vacancy). The said appointment was also approved by the District Educational Officer, Thiruvannamalai, by order dated 13.07.1975. On 28.12.1977 the petitioner's higher grade post was converted as Secondary Grade Teacher post and consequently Secondary Grade Teacher scale of pay was given to the petitioner. The petitioner was given selection grade by order dated 23.7.1987 in the cadre of Secondary Grade Teacher post. According to the petitioner, he fell ill due to hypertension and therefore the management sought medical opinion from the Joint Director of Health Services, who in turn on 16.9.1992 gave an opinion that the petitioner is unfit to serve as a teacher, based on which, the 5th respondent invalidated the petitioner from service on medical grounds. The petitioner's pension proposals were submitted by the management through the 4th respondent and the said proposal was returned by the 2nd respondent by order dated nil--.01.2002, stating that the proposal submitted on behalf of the petitioner is not in accordance with Rule 36(10) of the Tamilnadu Pension Rules, that the relieving order has not been countersigned by the Additional Assistant Elementary Educational Officer at page 63 of TSR Volume II and that the pension proposal with corrected TSR with original Medical Report may be sent to the second respondent for sanction of pension. 3. The learned counsel for the petitioner submitted that during the pendency of the matter before the second respondent regarding the sanction of pension, central Act namely, The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, came into force from 17.2.1996 and the petitioner having been medically invalidated by the management, he is entitled to get alternative employment in terms of Section 47 (1) of the said Act. Learned counsel for the petitioner also submitted that even assuming that the order of relieving the petitioner on medical grounds from 7.9.1992 is valid, there is unreasonable delay in sanctioning the terminal benefits to the petitioner and therefore the https://hcservices.ecourts.gov.in/hcservices/ petitioner is entitled to get sanction of terminal benefits with interest. 4. Learned counsel for the management submitted that the petitioner used to take alcohol/liquor during the school hours and therefore he was mentally and physically not doing well and he attends the school in intoxication mood; he was not able to stand and not able to write the Black Board and his continuance as teacher was found harmful to the children's education and therefore the Joint Director of Medical Services, Vellore Range was requested by letter dated 27.8.1992 to examine the physical fitness of the petitioner to serve as teacher, who certified that the petitioner is suffering with "Hypertension and Alcoholic Neuritis" and therefore he is not fit for further service as Teacher. 5. Learned counsel for the 2nd respondent submitted that on the basis of the certificate issued by the Joint Director of Health Services, Vellore Range, the management of aided school by order dated 18.09.1992 relieved the petitioner on medical invalidation from 7.9.1992 by specifically stating that he is liable to get pensionary benefits from 07.09.1992. The Management also requested the Correspondent of RCM School, Boodhamangalam to make necessary entries in the service records. 6. Learned counsel also submitted that the Management has rightly made entries in the Service Register about the relieving of the petitioner. However, 4th Respondent made a wrong entry that the petitioner was dismissed from service. When the pension proposals were sent, the second respondent has raised question about the said endorsement made in the Service Register and returned the same to the 4th respondent to resubmit the pension proposal after explaining the same along with original Medical Report and therefore there is a delay in sanction of terminal benefits. 7. Learned counsel for the petitioner strenuously argued that since The Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995, (1 of 1996) came into force on 07.02.96, the petitioner is entitled to get alternative employment as he was medically invalidated from 7.9.1992. The said submission cannot be accepted on the facts of this case. It is the specific case of the 5th respondent that the petitioner who is a teacher employed in a middle school taking classes upto standard VIII, used to take alcohol/liquor during school hours. He is mentally and physically not doing well and he attends school in intoxication mood due to which he was not able to stand and not able to write the Black Board, his continuance as teacher was treated harmful to the children's education. Such a finding was given by the 5th respondent through letter dated 27.8.1992 and he requested the Joint Director of Medical Services, Vellore Range to examine the petitioner as to whether the petitioner is medically fit to continue https://hcservices.ecourts.gov.in/hcservices/ as teacher. The said certificate given by the Joint Director of Health Services, reads as follows: "FROM: TO: DR.P. GANASURIYAN,MBBS.,DCH The Manager, Joint Director of Health Services, R.C.M. Schools, Vellore, North Arcot Ambedkar Dist. Bishop's House, Vellore-632001. L.DIS.NO.20611/A5/92 DATED : 16-9-92 Sir, SUB: Medical Board – Thiru S.John Bosco, Secondary Grade Teacher – Medical Examination report - forwarded -regarding. REF: Your office Lr.No.17/92 dt.27-8-92. With reference to the letter cited, I am to inform that Thiru S.John Bosco, Secondary Grade Teacher was examined by the Medical Board on 7-9-92. He is a case of Hypertension with Alcoholic Neuritis. He is not fit for further service. He can be invalidated on medical grounds. His original Invalidation Certificate is forwarded herewith" 8. From a perusal of the above said certificate issued by the medical officer namely, the Joint Director of Health Services, it is evident that the petitioner is suffering from Hypertension with Alcoholic Neuritis and he is not fit for further services. The petitioner cannot be reinstated or reappointed as a school teacher, as it was found by the management that during his employment as teacher he used to take alcohol/liquor during school hours and is not able to stand and not able to write the Black Board and his continuance as teacher is harmful to the children's education. The Supreme Court in the following judgments held how a teacher employed in a school should behave. a. In JT 1996 (10) SC 461 : (1997) 2 SCC 534 (Avinash Nagra v. Navodaya Vidyalaya Samiti etc.) in paragraph 11 as under, "11. ............. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in https://hcservices.ecourts.gov.in/hcservices/ different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. .........." b. In 2006 (1) Supreme 575 : (2006) 2 SCC 269 (L.K.Verma v. HMT Ltd. & Another) the Honourable Supreme Court disapproved the conduct of a Teacher and held how the institution should act if an indiscipline is noticed, in paragraph 25 which reads thus, "25. These questions recently came up for consideration in Hombe Gowda Edn. Trust v. State of Karnataka. Upon considering a large number of cases, this Court held: (SCC pp.440-41, paras 29-30) “29. Indiscipline in an educational institution should not be tolerated. Only because the Principal of the institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the management was selectively vindictive but no management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils. 30. This Court has come a long way from its earlier view points. The recent trends in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow https://hcservices.ecourts.gov.in/hcservices/ the same (See also State of Rajasthan v. Mohd. Ayub Naz.)" By applying the said decisions to the facts of the present case, the prayer in the writ petition to consider the case of the petitioner for alternative employment cannot be sustained. 9. Insofar as the claim for sanction of pension is concerned, the second respondent has already returned the proposal to the 4th respondent in January 2002 seeking the revised proposal, since the facts are not in dispute and the petitioner is medically invalidated he is eligible to get pension and other retirement benefits in view of the order passed by the Management dated 18.9.1992. 10. As there is unreasonable delay in settling the terminal benefits for about 18 years, the 2nd respondent is bound to sanction interest as per the Government Orders in force for the belated sanction of terminal benefits. The payment of interest for the delayed sanction of terminal benefits is well settled. The Supreme Court in the decision reported in (1987) 4 SCC 328 (O.P.Gupta v. Union of India), in paragraph 15, after taking note of the 20 years of protracted departmental enquiry, held as follows, "... It is clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration." In the said case, the Supreme Court awarded 12% interest in favour of the appellant for the delayed payment of pension. (b) In the decision reported in (1999)3 SCC 438 (Dr.Uma Agrawal v. State of U.P.), the Apex Court quantified the interest as Rs.1.00 lakh for the belated payment of retirement benefits. (c) In (1985) 1 SCC 429 (State of Kerala v. M.Padmanabhan Nair) also the Supreme Court endorsed the findings of the High Court in payment of interest for the belated settlement of retirement benefits. Further, in paragraph 5 of the judgment, the Court observed thus, "We are also of the view that the State Government is being rightly saddled with a liability for the culpable neglect in the https://hcservices.ecourts.gov.in/hcservices/ discharge of his duty by the District Treasury Officer who delayed the issuance of the L.P.C., but since the concerned officer had not been impleaded as a party defendant to the suit the Court is unable to hold him liable for the decretal amount. It will, however, be for the State Government to consider whether the erring official should or should not be directed to compensate the Government the loss sustained by it by his culpable lapses. Such action if taken would help generate in the officials of the State Government a sense of duty towards the Government under whom they serve as also a sense of accountability to members of the public." 11. The concept of public accountability is also explained by the Supreme Court in the decision reported in 2010 (3) L.W. 421 [Eureka Forbes Limited v. Allahabad Bank & Ors.]. In para 44 it is held thus:- 44. ... ... ... The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentatlities and/or by the financial institutions. In the case of Centre for Public Interest Litigation & Anr. v. Union of India & Anr. [(2005) 8 SCC 202], this Court declared the dictum that State actions causing loss are actionable under public law and this is as a result of innovation to a new tool with the court, which are the protectors of civil liberty of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action even in the case of appointment, which essentially must not lack bonafide was enforced by the Court. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable both for their inaction and irresponsible actions. What ought to have been done, if not done, responsibility should be fixed on the erring officers then alone the real public purpose of an answerable administration would be satisfied." 12. The 4th respondent is directed to call for all particulars in the prescribed format from the 5th respondent Management regarding sanction of pension and other terminal benefits to the petitioner within two (2) weeks from the date of receipt of copy of this order https://hcservices.ecourts.gov.in/hcservices/ and the 5th respondent is directed to furnish all the details in the required formats to the 4th respondent within a period of one week from the date of receipt of communication from 4th respondent. The petitioner is directed to meet the 5th respondent for signing the necessary documents. Second respondent is directed to sanction the terminal benefits including pension payable to the petitioner from 7.9.92, within a period of four weeks from the date of receipt of pension proposal from the 4th respondent with interest. 13. The writ petition is disposed of accordingly. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ggs To 1. The Secretary to Government, Elementary-Education Department, Fort St. George, Chennai 600009. 2. The Accountant General, (Accounts and Entitlements) Chennai 600006. 3. Assistant Educational Officer,Thurinjapuram. 4. The Additional Assistant, Elementary Educational Officer, Thurinjapuram. 5. The Correspondent, R.C.M. Schools, Bhoodhamangalam, Vellore-632001. + 1 CC to Mrs.T.S.Selvarani,Advocate,SR.48194 + 1 CC to M/s.A.Amal Raj,Advocate,SR.48067 W.P.No.12253 of 2006 NA(CO) EM/12.7.10 https://hcservices.ecourts.gov.in/hcservices/