Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1183 (MAD)

Secretary, Arignar Anna College v. C. Krishnan

2019-04-16

N.KIRUBAKARAN, S.S.SUNDAR

body2019
JUDGMENT : S.S. SUNDAR, J. This Writ Appeal is preferred by the respondents 2 and 3 in the Writ Petition in W.P.(MD)No.1665 of 2019 as against the order passed in W.M.P.(MD)No.1421 of 2019 in W.P.(MD)No.1665 of 2019. 2. The first appellant is the Secretary of Arignar Anna College by designation and the second appellant is the person who is the Secretary of the said college. The first respondent in this appeal is the petitioner in W.P.(MD)No.1665 of 2019 and the Writ Petition was filed for issuance of Writ of Mandamus directing the respondents to extend the service of the petitioner as Associate Professor and Head of the Department till the end of this academic year 2018-2019 by considering his representation dated 11.10.2018. 3. The brief facts that are necessary for the disposal of this appeal are as follows: 3.1. The first respondent/writ petitioner joined Arignar Anna College in the year 1990 and he was promoted as Senior Lecturer in 1998 and at present he is working as Associate Professor in Physics and Head of the Department of Physics. The first respondent was to retire on 31.01.2019 on attaining the age of superannuation. 3.2. While the first respondent herein was on duty on 09.10.2017, there was a clash between the first respondent herein and one Mr.Kalaivanan, who is also an Associate Professor of the college. Both the teachers have given a complaint against each other as if the other had assaulted. The second appellant appointed an Advocate as an Enquiry Officer to enquire into the matter by communication dated 10.10.2017. The Enquiry Officer was requested to furnish a report within ten days to take further action on this issue. The Enquiry Officer also issued a notice to the first respondent calling upon him to appear for the enquiry on 13.10.2017 in the office of the Secretary. The first respondent filed a Writ Petition in W.P.(MD)No.19453 of 2017 before this Court to quash the communication dated 10.10.2017 by which the second appellant informed the first respondent regarding the appointment of the Enquiry Officer to enquire into the incident on 09.10.2017 and the subsequent notice dated 13.10.2017 issued to the first respondent to attend the enquiry. The first respondent filed a Writ Petition in W.P.(MD)No.19453 of 2017 before this Court to quash the communication dated 10.10.2017 by which the second appellant informed the first respondent regarding the appointment of the Enquiry Officer to enquire into the incident on 09.10.2017 and the subsequent notice dated 13.10.2017 issued to the first respondent to attend the enquiry. The said Writ Petition was filed mainly on the apprehension that the Enquiry Officer appointed by the second respondent is going to file an adverse report against the first respondent and that the first appellant would suspend the first respondent teacher. The first respondent made some allegations against the appellants. In the Writ Petition filed by the first respondent in W.P.(MD)No.19453 of 2017, the learned Single Judge of this Court has granted an order of interim stay of the proceedings dated 10.10.2017 and the notice dated 13.10.2017. 3.3. During the pendency of the Writ Petition, the first respondent submitted a representation to the first appellant requesting the first appellant to permit the first respondent to continue in service till the end of the academic year namely May, 2019 as his date of retirement fell on 31.01.2019. It is not in dispute that by virtue of Rule 16A of Grant in Aid Code, a teacher will be permitted to continue in service on re-employment till the closure of the college on summer vacation subject to the condition that the performance in work and conduct of the teacher is satisfactory and he is physically fit to continue in service. 3.4. It is also not in dispute that on the proposal submitted by the Secretary of the College, the Joint Director of Collegiate Education has to permit the teacher to continue in service on reemployment till the academic year on satisfying that the performance and conduct of the teacher are satisfactory and the teacher is physically fit to continue in service. In the present case, the physical fitness of the first respondent is not in question and the first respondent has also obtained a certificate from the Chief Civil Surgeon, Kanyakumari Medical College, regarding the physical fitness. The representation of the first respondent was placed before the College Committee of the appellants on 30.11.2018. In the present case, the physical fitness of the first respondent is not in question and the first respondent has also obtained a certificate from the Chief Civil Surgeon, Kanyakumari Medical College, regarding the physical fitness. The representation of the first respondent was placed before the College Committee of the appellants on 30.11.2018. After referring to the pendency of the Writ Petition filed by the first respondent, the College Committee passed a resolution not to recommend in favour of continuing the first respondent for reemployment till the academic year. The said resolution of the College Committee was forwarded to the second respondent herein along with the application submitted by the first respondent for reemployment. The proposal was submitted by the appellants on 17.12.2018 along with the resolution of the College Committee. 3.5. It is in the said circumstances, the first respondent filed the Writ Petition in W.P.(MD)No.1665 of 2019 for issuance of a Writ of Mandamus directing the appellants and the Joint Director of Collegiate Education/respondent in the Writ Petition to extend the service of the petitioner as Associate Professor and Head of the Department of the college till the end of the academic year 2018-2019. 4. The appellants herein filed a counter affidavit. In the counter, the enquiry that was pending and the stay obtained by the first respondent in earlier Writ Petition (MD) No.19453 of 2017 was highlighted while opposing the prayer sought for by the first respondent in the Writ Petition. Sum and substance, the incident of abusing a fellow teacher in filthy language in front of students and staff was projected as a gross misconduct of the first respondent for submitting a proposal disfavouring the first respondent's request for re-employment and continuance of service of the first respondent till the academic year 2018-2019. Along with the Writ Petition, the first respondent filed miscellaneous petition in W.M.P. (MD)No.1421 of 2019 to direct the respondents in the Writ Petition to permit the first respondent to continue to do work as an Associate Professor and Head of the Department in Physics in the college till the end of the academic year 2018-2019 pending disposal of the Writ Petition. The learned Single Judge of this Court allowed the miscellaneous petition in W.M.P.(MD)No.1421 of 2019 by directing the respondents in the Writ Petition to re-employ the petitioner till the end of the academic year i.e., 31.05.2019. The learned Single Judge of this Court allowed the miscellaneous petition in W.M.P.(MD)No.1421 of 2019 by directing the respondents in the Writ Petition to re-employ the petitioner till the end of the academic year i.e., 31.05.2019. The above appeal has been preferred against the order of the learned Single Judge granting interim direction which will have the effect of allowing the Writ Petition in W.P.(MD)No.1665 of 2019. 5. The appellants though raised several grounds, the learned Senior Counsel appearing for the appellants submitted that the management has no power in the matter of re-employment of teacher, staff and that the third respondent in the Writ Petition, namely, the second respondent herein who is the competent authority has to pass an order independently in the matter of reemployment of the first respondent. Since the learned Single Judge has not referred to 16A of Grant in Aid Code of Tamil Nadu Education Department, the learned Senior Counsel further submitted that the re-employment of the teacher in aided college is subject to the condition that their performance in work and conduct are satisfactory. Since the second respondent has to take a decision on the materials submitted by the appellants management, the order of the learned Single Judge directing the appellants to reemploy the petitioner till the end of academic year is not appropriate. The learned Senior Counsel further submitted that the main writ petition itself has been allowed by granting interim direction on the ground that the Enquiry Officer and the management is represented by the same counsel as if it would show that there is an attempt to victimise the petitioner. Pointing out that the re-employment is not an automatic one, the learned Senior Counsel further referred to Rule 16A of Grant in Aid Code of the Tamil Nadu Education Department regarding the procedure for permitting re-employment of the teaching staff. During the pendency of this appeal, this Court, passed order on 01.03.2019 in the following lines: “The learned Senior Counsel appearing for the appellant submitted that the appellant has already submitted its recommendation on the proposal regarding the reemployment of the first respondent in the appellant College. It is brought to the notice of this Court that as per the Government Order, the second respondent is the competent authority to decide, as to the eligibility of the first respondent to continue in the same College by way of re-employment. 2. It is brought to the notice of this Court that as per the Government Order, the second respondent is the competent authority to decide, as to the eligibility of the first respondent to continue in the same College by way of re-employment. 2. The learned Counsel for the first respondent states that he would also make his further submission on the proposal on or before 06.03.2019. On receipt of such further submission of the first respondent, the second respondent shall decide and pass final orders regarding the re-employment of the second respondent to the appellant college on or before 11.03.2019. 3. Post the matter on 12.03.2019.” 6. Pursuant to the direction of this Court, the second respondent herein on 13.03.2019 passed the following order. The relevant portion of the order is extracted below for convenience: xxx xxx xxx 7. Referring to the order passed by the second respondent herein, the learned Senior Counsel appearing for the appellants submitted that the order of the second respondent is not in terms of Rule 16A of Grant in Aid Code. The learned Senior Counsel pointed out that the fact whether charge sheet was issued or disciplinary proceedings is pending against the incumbent or not are not relevant in the present case inasmuch as the first respondent himself has obtained stay of the proceedings by which the management appointed an Enquiry Officer to submit a report after holding an enquiry as to the misconduct alleged against the first respondent. The learned Senior Counsel also pointed out that the second respondent by order dated 13.03.2019, has permitted the management to give reemployment to the first respondent and therefore, the order is not in discharge of the second respondent's official function in terms of Rule 16A of Grant in Aid Code. Going by the events, this Court asked the learned Senior Counsel appearing for the management that whether the management will recommend the first respondent for reemployment if the first respondent tenders an unconditional apology and withdraw the statement against the management in the writ petition filed by him. The first respondent filed an affidavit which was not convinced to the management. Hence, the learned Senior Counsel submitted that this Court may pass orders on merits taking into account the conduct of the first respondent and Rule 16A of the Grand in Aid Code of Tamil Nadu Education Department. The first respondent filed an affidavit which was not convinced to the management. Hence, the learned Senior Counsel submitted that this Court may pass orders on merits taking into account the conduct of the first respondent and Rule 16A of the Grand in Aid Code of Tamil Nadu Education Department. He also relied upon the judgment of the Division Bench of this Court in the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442. Before the Hon'ble Division Bench, the direct question posed for consideration was whether it is for the Regional Joint Director to take a decision on the materials submitted by the management or the management by itself can take a decision not to recommend for continuation of service of the teacher till the end of academic year. After referring to the Rule 16A of the Grant in Aid Code and some other precedents, the Hon'ble Division Bench has held as follows: “29. For the reasons and analysis made hereinabove, we are of the considered view that reemployment or continuation in service after attaining the age of superannuation in the middle of the academic year till the end of the academic year, is subject to the conditions stipulated in the proviso to Rule 16A of the Code. Consequently, the Management is under an obligation to submit all the information/materials while recommending for continuation or non-continuation to the Regional Joint Director and it is for the Regional Joint Director alone, to take a final call in respect of continuation or not of the college teacher concerned.” 8. Relying upon the principles reiterated by the Division Bench in the above said judgment, the learned Senior Counsel appearing for the appellants submitted that the order passed by the second respondent on 13.03.2019 is neither in consonance with Rule 16A of the Grant in Aid Code nor in terms of the judgment of the Division Bench above referred to. Mr. G. Prabhurajadurai, learned Counsel appearing for the first respondent, however, submitted that the order passed by the second respondent dated 13.03.2019 in favour of the first respondent is not challenged by the appellants in the present proceedings and that the Writ Appeal can be dismissed giving liberty to the appellants to challenge the order passed by the second respondent. Mr. G. Prabhurajadurai, learned Counsel appearing for the first respondent, however, submitted that the order passed by the second respondent dated 13.03.2019 in favour of the first respondent is not challenged by the appellants in the present proceedings and that the Writ Appeal can be dismissed giving liberty to the appellants to challenge the order passed by the second respondent. The learned Counsel further submitted that in terms of Rule 16A of Grant in Aid Code and the judgment of the Division Bench of this Court in the case of the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442 and the order of second respondent cannot be called in question without challenging the order in the manner known to law. Referring to the credentials of the teacher concerned, the learned Counsel further submitted that the continuance of the teacher till the end of the academic year will be in the best interest of the students and that the object of reemployment of a teacher till the end of academic year is only to get the service of teacher till the end of academic year for the benefit of the students and that therefore, the mere opinion of the management about the conduct of the first respondent cannot influence the second respondent who has to act independently. It was submitted by the learned Counsel for the first respondent that the first respondent was serving as a Lecturer and then as Senior Lecturer and now as Associate Professor and the Head of the Department of Physics and that he has unblemished record throughout except the incident that happened in 2017. Since the first respondent had served for more than 28 years with dedication and produced 100% result, the management cannot be allowed to victimise the first respondent. The learned Counsel submitted that the judgment of the Division Bench in the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442 would only support the case of the first respondent and not the stand taken by the appellants. The learned Counsel further relied upon the following judgments. 9. The learned Counsel submitted that the judgment of the Division Bench in the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442 would only support the case of the first respondent and not the stand taken by the appellants. The learned Counsel further relied upon the following judgments. 9. The decision of the Division Bench of this Court in the case of the Secretary, Sridevi Girls Higher Secondary School, Kollamcode and Post, Kanyakumari District v. S.Vijayalakshmi Amma and others reported in (2004) 4 M.L.J. 542 was relied upon and this Court find it irrelevant in the present context. 10. Yet another judgment of the Hon'ble Division Bench of this Court in the case of Reynold Jayasekaran v. Director of School Education, (Elementary Schools), Chennai – 600 006 and others reported in (2015) 4 MLJ 571 was relied upon by the learned Counsel for the first respondent for the proposition that the object of providing extension of service to teachers till the completion of academic year is to cope up with the curriculum, as the students should not suffer in the middle of the academic year for want of a teacher. Another judgment of a Division Bench of this Court in W.A.No.93 of 2012, dated 20.04.2012 in the case of the Secretary, Gandhi Aided Primary School v. R.Girija and another is also relied upon by the learned Counsel for the first respondent. 11. Heard the learned Counsels on either side elaborately. 12. Having regard to the admitted facts and the precedents relied upon by the Counsels on either side, this Court is of the view that the present case has to be considered purely on its merits in the light of peculiar facts in the present case. As held by the judgment of the Hon'ble Division Bench in the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442, the final decision in the matter of reemployment should be as per the Rule based on the inputs given by the management in the case of private college. As held by the judgment of the Hon'ble Division Bench in the Principal, Sir Theagaraya College, Old Washermanpet, Chennai – 600 021 and another v. Veerappan and others reported in 2015-5-L.W. 442, the final decision in the matter of reemployment should be as per the Rule based on the inputs given by the management in the case of private college. Following the judgment of Division Bench of this Court in the case of Reynold Jayasekaran v. Director of School Education, (Elementary Schools), Chennai – 600 006 and others reported in (2015) 4 MLJ 571 , this Court also reiterate the position that the object of providing re-employment to the teachers till the completion of the academic year is in the interest of students who may suffer if a teacher has to go in the middle of the academic session due to retirement. Absence of a teacher would certainly affect the students and there will be much inconvenience when a teacher retires in the middle of academic year. Though the retiring teacher has no right to continue in service till the academic year by way of reemployment, denial of permission to a teacher to continue in service on reemployment can be only if the teacher does not satisfy the conditions stated in Rule 16A of the Grant in Aid Code for Tamil Nadu Education Department. When the performance in work and conduct of the teacher are satisfactory and the teacher is physically fit to continue in service the management cannot resist the educational authorities to permit the teacher to continue in service on reemployment till the end of the academic year. In Reynold Jayasekaran v. Director of School Education, (Elementary Schools), Chennai – 600 006 and others reported in (2015) 4 MLJ 571 , the Division Bench dealt with a different situation where the management refused to send the proposal either for or against the teacher in terms of Government Orders. Therefore, the said judgment may not squarely apply in the present case. Therefore, the said judgment may not squarely apply in the present case. Similarly, the Division Bench of this Court in the case of the Secretary, Sridevi Girls Higher Secondary School, Kollamcode and Post, Kanyakumari District v. S.Vijayalakshmi Amma and others reported in (2004) 4 M.L.J. 542 has no application to the facts of the present case as the Division Bench has only interpreted the words “middle of the academic year” in the context where the learned Single Judge of this Court in the Writ Petition held that the Government Order would enable the teacher to get reemployment only if the teacher happens to retire from service in the academic year in the month of December of the previous year or thereafter. However, the Division Bench did not accept the view of Single Judge. No other issue was decided. Hence, the said judgment of the Division Bench has no relevance to the facts of the present case. In the unreported judgment in W.A.No.93 of 2012, dated 20.04.2012 in the case of the Secretary, Gandhi Aided Primary School v. R.Girija and another, the Hon'ble Division Bench accepted the view that right of reemployment is not automatic and found on merits that the management in the said case had refused to receive the application from the teacher for reemployment. When the management took a stand that the teacher had not even made a request for reemployment, the conduct of the management was commented and relief was granted to the teacher. Hence, the said judgment also has no application to the facts of the present case. 13. In the counter affidavit filed by the appellants in the Writ petition except the incident in 2017, no adverse remarks or complaint has been referred to by the management. No doubt it is true that the Enquiry Officer/Fact Finding Committee appointed by the management was stalled by the first respondent by getting a stay of further proceedings, pursuant to the enquiry notice issued by the Enquiry Officer. No other disciplinary proceedings is pending against the first respondent. The academic performance of the first respondent is neither questioned nor disputed by the management. If the object of continuing the teacher to serve till the academic year by giving reemployment is only in the interest of students, it is neither a privilege of the teacher nor the discretion of the management that has any role in reemployment. The academic performance of the first respondent is neither questioned nor disputed by the management. If the object of continuing the teacher to serve till the academic year by giving reemployment is only in the interest of students, it is neither a privilege of the teacher nor the discretion of the management that has any role in reemployment. The second respondent is the competent authority to decide whether the teacher can be permitted to continue in service till the end of the academic year upon satisfying the essential conditions that the performance in work and conduct of the teacher is satisfactory; that the teacher is physically fit to continue in service; that the teacher had put in at least a minimum period of one year service in the particular institution. 14. Considering Rule 16A of Grant in Aid Code, this Court is of the view that the incident involving the conduct of first respondent may be a reason for the management not to recommend in favour of the first respondent to get reemployment. There is no serious allegations of mala fides in this case as against the management. Similarly, the first respondent cannot be held guilty of any misconduct unless the enquiry as proposed earlier by the management goes of and a finding is rendered by the Fact Finding Committee. Thereafter, the management may or may not initiate disciplinary proceedings against the first respondent. In these circumstances, this Court is not in a position to hold that the first respondent does not satisfy the requirements. The management in the present case has not recommended in favour of the first respondent only by citing the incident in 2017 for which a Fact Finding Committee was appointed. The allegation against the first respondent is that he abused a fellow teacher in filthy language in front of students and staff. It is also to be noted that the first respondent himself has also given a complaint against the fellow teacher for physically assaulting him. The second respondent has already taken a decision that the first respondent can be permitted to continue in service on reemployment till the end of academic year. In the affidavit filed by the first respondent before this Court in the appeal he has stated as follows: “4. The second respondent has already taken a decision that the first respondent can be permitted to continue in service on reemployment till the end of academic year. In the affidavit filed by the first respondent before this Court in the appeal he has stated as follows: “4. I submit that I have high regard for the founder of the college M.Sankaralingam and that I will not indulge in any activity which may cause disrepute to his name and the institution he has established. I express my gratitude to the management as well as the Secretary for providing me an opportunity to work for the college. I sincerely express my unconditional apology for any of my action which the management considers as misconduct. I have no ill will either against the management and my colleague Mr. Kalaivanan who filed a complaint against me and I undertake to withdraw all my complaints and charges against Mr. Kalaivanan. I want to retire peacefully and leave the college with happy and good memories without any dent in my dignity and self respect. I pray the secretary and the Management of the Arignar Anna College to accept my sincere apology and to permit me to retire in dignity on 31.05.2019. I further undertake that I will not indulge in any activity against the management either during the remaining period of my service or after my retirement.” 15. Though the contents of the affidavit are not up to the expectations of the management, this Court is able to see that the first respondent has expressed his unconditional apology for any of his actions which the management considers as misconduct. In case, where the first respondent does not admit the misconduct alleged against him, we cannot expect anything more than that was stated by the first respondent in the affidavit. The first respondent expect only a retirement in dignity after the end of the academic year. Incidentally, the students also will be benefitted. No doubt it is true that the conduct of the teacher cannot be judged by the second respondent. However, based on the inputs given by the management, he may take a decision. In the present case, the management has no other material except the complaint. Incidentally, the students also will be benefitted. No doubt it is true that the conduct of the teacher cannot be judged by the second respondent. However, based on the inputs given by the management, he may take a decision. In the present case, the management has no other material except the complaint. If it is not the discretion of the management but the duty of second respondent to decide as to the continuance of a teacher by reemployment, this Court has no reason to disapprove the order passed by the second respondent dated 13.03.2019. 16. Though the learned Single Judge has granted an interim order which will have the effect of allowing the main Writ Petition itself and the order is not either in conformity with the principles laid down by this Court in several precedents or in terms of Rule 16A of Grant in Aid Code, having regard to the subsequent developments and the admitted facts, this Court is inclined to dispose of the appeal with the following directions. 17. The order passed by the second respondent dated 13.03.2019 be accepted as the final order passed on the proposal submitted by the appellants regarding continuance of first respondent in service on reemployment till the end of academic year 2018-2019 in terms of Rule 16A of Grant in Aid Code. The first respondent is entitled to get the monetary benefit in tune with the order passed by the second respondent dated 13.03.2019. The first respondent is directed to fulfil his academic obligations as the Head of the Department without giving any room for any conflict with management till he demit office by the end of May, 2019. The appellants are advised to take this as a winning situation for them also by accepting the apology tendered by the first respondent by filing the affidavit to maintain absolute cordiality and in the best interest of students. No costs. Consequently, the connected miscellaneous petition is closed.