Madras High Court
K. Kalyani vs The Chairman, Chengalvaraya Naicker ... on 9 September, 1997
Equivalent citations: (1998)2MLJ33
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. Heard all the parties.
2. Both the petitions are filed by the same petitioner against the respondents and therefore heard together.
3. In W.P. No. 7269 of 1997, the petitioner prays for issue of writ of certiorari calling for the records relating to the proceedings of the second respondent dated 19.3.1997 made in Ref. No. A/203/97 C.N.T. and quash the same.
4. In W.P. No. 9714 of 1997 the writ petitioner prays for writ of certiorari calling for the records dated 5.5.1997 in A/203/97 and quash the same.
5. The relevant facts of the above writ petitions are stated as follows:
The petitioner is working as a teacher in Chengalvaraya Naicker Primary School established by the first respondent trust, now being controlled and administered by the second respondent herein under the provisions of the Pachaiappas Trust (Takeover of the Management) Act, 1981 hereinafter referred to as Pachiappas Trust Takeover Act, read with G.O.Ms. No. 719, Education Science and Technology Department, dated 7.10.1996 wherein the Government has directed the Chairman of the Committee of the Pachiappa's trust to handover the Chengalvaraya Naicker Trust to the interim Committee functioning under the second respondent herein. Therefore, the Management of the Chengalvaraya Naicker Primary School hereinafter referred to as the C.N. Primary School is functioning under the management of the second respondent herein.
6. Admittedly, the service conditions of the petitioner is governed under the provisions of Tamil Nadu Recognised Private Schogls (Regulation) Act, 1973 hereinafter referred to as Private School Act read with Tamil Nadu Recognised Private Schools (Regulation), 1974 hereinafter referred to as Tamil Nadu Private Schools Rules. The second respondent by proceedings dated 19.3.1997, which is being impugned in the Writ Petition No. 7269 of 1997, placed the petitioner under suspension from her service as an enquiry into grave charges against the petitioner is contemplated, by invoking Rule 17(e) of Tamil Nadu Civil Services Rules.
7. The said proceedings dated 19.3.1997 in W.P. No. 7269 of 1997 briefs as follows:
Whereas Tmt. K. Kalyani, teacher has given punishment to a student (4th class) K. Bhaskar by removing his entire dress on 4.2.1997; And whereas an enquiry into grave charges against Tmt. K. Kalyani, Teacher is contemplated; And whereas in the circumstances of the case, it is necessary in the public interest to place the said Tmt. K. Kalyani Teacher under suspension from service;
Now therefore under Sub-rule (e) of Rule 17 of Tamil Nadu Civil Services Rules, the said Tmt. K. Kalyani, Teacher is placed under suspension from service with immediate effect.
2. During the period of suspension, the said Tmt. K. Kalyani will be paid subsistence allowance and D.A. admissible under F.R. 53 (1).
3. The Headquarters of the said Tmt. K. Kalyani, Teacher during the period of suspension shall be Chennai and the said Tmt. K. Kalyani, Teacher shall not leave the Headquarters without obtaining the prior permission of the authority concerned.
(Sd.) S. Subramaniam Member and Authorised Officer.
8. While challenging the said order of suspension dated 19.3.1997 pending an enquiry into contemplated charges, R. Shanmugam, Senior Counsel for the petitioner contends that
(i) The petitioner is not a Government servant as she is working only in the C.N. Primary School which is a Private School governed under the provisions of the said Private Schools Act and Rules. Therefore, the impugned order, since had been passed by the second respondent under Rule 17(e) of the Tamil Nadu Civil Services Rules, is totally without jurisdiction.
(ii) Even as per the provisions of Tamil Nadu Private Schools Acts and Rules, only the school committee shall have the power to take disciplinary action against the petitioner but not the second respondent herein.
(iii) In any event, no such suspension shall remain in force for more than a period of two months from the date of suspension as per Section 22(3)(b) of the Private Schools Act and therefore on the expiry of two months time from the date of the order of the suspension namely from 18.5.1997 the impugned order of suspension dated 19.3.1997 challenged in W.P. No. 7269 of 1997 cease to operate by the operation law on the expiry of two months from the date of suspension i.e., 19.3.1997.
(iv) Mr. R. Shanmugam, learned Senior Counsel draws my attention to the proceedings of the District Elementary Educational Officer in the proceedings dated 4.7.1997 made in Reference Na.Ka. No. 2281/A4/97 wherein the first and second respondent are advised to revoke the order of suspension dated 19.3.1997 as the same is contrary to the provisions of the Private Schools Act and Rules and contends that the said order of suspension shall not remain in force from the date of order of suspension dated 19.3.1997.
8. In the meanwhile, the second respondent also framed charges against the petitioner, the charge memo dated 21.4.1997 that was subsequently revised by the revised charge memo dated 5.5.1997, which was challenged by the petitioner in W.P. No. 9714 of 1997. Mr. R. Shanmugam, learned senior Counsel appearing for the petitioner, while challenging the revised charge memo dated 5.5.1997 in W.P. No. 9714 of 1997 contends that
(i) The respondents 1 and 2 have no authority and jurisdiction to initiate such proceedings against the petitioner.
(ii) No proper permission was obtained from the Educational authority before initiating such proceedings against the petitioner.
9. A detailed counter-affidavit was filed on behalf of the respondents 1 and 2 herein narrating the facts relating to the allegation levelled and charges framed against the petitioner for passing the impugned order of suspension dated 19.3.1997 and framing the charge memo dated 5.5.1997 in W.P. Nos. 7269 and 9714 of 1997 respectively. In the counter affidavit the respondent has stated as follows:
The petitioner herein is a Selection Grade Secondary Grade teacher in P.T. Chengalvaraya Naicker Primary School. The Headmaster of the said School Mr. Ekambaram has given a complaint against the petitioner herein stating that On 14.2.1997, she has given punishment of stripping of the cloths of a student Baskar and brought him nude to Headmaster's room. The said scene was witnessed by the students of the entire school and as well as other teachers. When explanation was called for by the Headmaster from the said teacher she has refused to give. I further submit that as per the report of the said Headmaster, the scene was also witnessed by several teachers particularly the teacher D.R. Suseela and T.M.N. Thirupurasundari. After receipt of the said complaint from the Headmaster and also other documentary evidence the committee of Management consisting of the chairman and the two members unanimously decided to initiate disciplinary action against the petitioner as she has behaved unbecoming of a teacher, polluted the entire cordial atmosphere of the school and impaired the reputation of the school, besides that her act amounts to gross misconduct. Ultimately, the existing committee of Management which is vested with the power under the Tamil Nadu Recognised Private Schools Regulations Act and Rules, placed her under suspension by its order dated 19.3.1997, as enquiry against gross misconduct was contemplated. Subsequently charge memo dated 21.4.1997 was issued and she was called upon to give her explanation if any. However, the wrong provisions were quoted in the order of suspension inadvertently which will not affect or invalidate the charges in any manner. After receipt of the said charge memo dated 21.4.1997, the petitioner herein has made certain allegations against the Headmaster. Hence the Committee of Management, after calling for the remarks from the Headmaster, issued a revised Charge memo dated 5.5.1997 and again the petitioner was given an opportunity to give her explanation if any. After receipt of the said revised charge memo the petitioner has submitted her explanation. After receipt of the explanation from the petitioner the Committee of Management felt that it was necessary to conduct proper enquiry appointed an Enquiry officer.
...
The Headmaster who is in overall control of the administration of the said school has filed a complaint before the Committee of Management pointing out the gross misconduct, illegal, crude and reprehensible, act of the petitioner on behalf of the affected student, hence the committee of management initiated necessary action against the petitioner.
10. With regard to the authority and jurisdiction of the respondents 1 and 2 herein, it is stated that the second respondent, representing the committee of management, is empowered to take disciplinary action against the petitioner and to issue order of suspension dated 19.3.1997 and to frame revised charge memo dated 5.5.1997 in view of G.O.Ms. No. 719, Education Science and Technology dated 7.10.1996. It is further stated that the second respondent is the competent authority not only to manage the school but also to maintain the discipline and cordial atmosphere in the school and to enquire into the complaint on behalf of the aggrieved student, particularly the act of the respondent not only affect the reputation of the institution but also violate the norms of teachers.
11. I have given anxious consideration to the submissions of both the sides.
12. Considering the scope of the above writ petitions and the relief sought for namely challenging the order of suspension dated 19.3.1997 and the revised charge memo dated 5.5.1997, I do not propose to go into the merits and demerits of the facts relating to the case as it is suffice to confine the legal contentions raised and the relief prayed for in the above writ petitions.
13. The Pachaippas Trust Takeover of Management Act is intended to provide for taking over the Management of the Pachiappas Trust and for the matters connected therewith. The statement and object of reasons for bringing out the said Pachaiyappas Trust Management Act is stated as follows:
The management of Pachaiyappas Trust has been taken over by the Government under Pachaiyappa's Trust (Taking over of Management) Act, 1981 (Tamil Nadu Act 11 of 1981). Under Sub-section (2) of Section 3 of that Act a committee of management consisting of certain officials specified therein has been appointed to exercise and perform the powers, duties and functions of the Board of Trustees. Whenever officials specified in the said sub-section are transferred to other posts than their successors in office become members of the Committee of management. If any particular officer has to be retained in the Committee of Management in view of his experience in the management of the affairs of the said Trust, it will necessitate the amendment of the said Act for the purpose. In order to obviate this difficulty, it is proposed to amend Sub-section (2) of Section 3 of the Act, so as to empower the Government to appoint the members of the committee of management by notification without resorting to the amendment of the Act.
14. The legislative intention for enacting the said Act is thus stated in the preamble of the Act as follows:
WHEREAS it has been brought to the notice of the State Government that the Board of Trustees of the Pachaiyappa's Trust has, for the past few years, committed irregularities in the management of the charities and institutions (including educational institutions) and properties under its control:
AND WHEREAS it has been brought to the notice of the State Government that the members of the present Board of Trustees of the Pachaiyappa's Trust have also committed irregularities in the management of the Charities and institutions (including educational institutions) and properties under its control:
AND WHEREAS it has been represented to the State Government that the continuance of the management of the Pachaiyappa's Trust by the present Board of Trustees will not be proper in the public interest;
AND WHEREAS the State Government have after careful consideration taken a policy decision that for a limited period the management of the Pachaiyappa's Trust should be taken over by the State Government in the public interest and in order to secure the proper management of the Pachaiyappa's Trust and that for this purpose the power, duties and functions exercised and performed by the Board of Trustees should be exercised and performed by the Government either directly or through a committee of management appointed by the Government;
AND WHEREAS any delay in taking over the management of the Pachaiyappa's Trust would highly be detrimental to the interests and objects of the said Trust.
15. Section 2 of the Pachaiyappa's Trust (Take over of Management) Act, 1981, defines the Board of Trustees, Pachaiyappa's Trust and Pachaiyappa's Trust Scheme. Section 3 deals with the vesting of Management of Pachaiappas Trust in the Government and Section 4 declares that the members of the Board of Trustees of Pachaiyappa's Trust shall cease to hold office as members of such Board and the Committee of Management shall exercise the powers of the Board of Trustees and perform the duties and functions of the Board, notwithstanding anything contained in any other Act or in the Pachiappa's Trust. Section 5 of the Act deals with the taking over of the properties etc. and Section 6 deals with the penalty for not handing over the records and other properties of Pachiappa's Trust to an officer authorised by the Government. Section 7 declares the overriding effect of the Act. The other provisions of the Act deal with the reconstitution of the Board of Trustees on the expiry of the Act, bar of the jurisdiction of Civil Court, protection of action taken in good faith, construction of reference to the Board of Trustees, relinquishment of Management of Pachaiyappa's Trustees, rule making power of the Government etc.
15. It is sufficient to extract the Sections 4 and 7 of the Pachaiyappa's Trust (Take over of Management) Act, 1981 for the purpose of the disposal of the above writ petitions.
Section 4: Members of the Board of Trustees to cease to hold office: (i) Notwithstanding anything contained in any other Act or in the Pachaiyappa's Trust Scheme, every person, who, on the date of the commencement of this Act, is a member of the Board of Trustees of the Pachaiyappa's Trust shall cease to hold office as member of such Board.
(2) During the period of which the committee of management is exercising the powers and performing the duties and functions exercised and performed by the Board of Trustees, no election under the Pachaiyappa's Trust scheme shall be held to fill up any vacancy in the Board of Trustees.
Section 7: Overriding effect of the Act: (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in Section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908), or any other law for the time being in force or the Pachaiyappa's Trust scheme or any other scheme settled under any law for the time being in force.
(2) If any provisions contained in the Pachaiyappa's Trust Scheme is repugnant to any provision contained in this Act or the rules made thereunder, the latter provisions shall prevail, and the former provisions shall, to the extent of repugnancy, be of no effect.
(2) For the removal of doubts, it is hereby declared that the provisions of the Pachaiyappa's Trust scheme including the bye-laws made thereunder except in so far as they relate to the matters dealt with by this Act, shall continue in force.
16. A reading of the above provisions in the light of the legislative objects and the scheme of the Pachaiyappa's Trust (Take over of Management) Act, would make it clear that the Committee of Management, constituted under the provisions of the Pachaiyappa's Trust (Take over of Management) Act, is intended only for the purpose of managing the Pachaiyappa's Trust, Charities, the institutions, including the educational institution and the properties under its control.
17. Admittedly, the C.N. Primary School in which the petitioner is working, is one of the educational institutions that was taken over under the Pachaiyappa's Trust (Take over of Management) Act, while constituting a committee of management under the said Pachaiyappa's Trust Take over Management Act, interim committee was constituted by an order dated 10.10.1996 of this Court and the Government has directed the committee of management of Pachaiyappa's Trust to handover the Management of Chengalvaraya Naicker Trust to the interim Committee of management by G.O.Ms. No. 719, Education, Science and Technology Department, dated 7.10.1996.
18. The interim committee of Management of the Chengalvaraya Naicker Trust, which forms part and parcel of the Pachaiyappa's Trust, governed by the Provisions of the Pachaiyappa's Trust Take over of Management Act, 1981, is intended only for the purpose of management of the Trustees, institutions, including educational institutions, to which C.N. Primary School also belongs to.
19. The non obstante Clause found in Sections 4 and 7 of the Pachaiyappa's Trust (Taking over of Management) Act, 1981, in any event, shall not enable the interim Management Committee to prevail over the competent authorities prescribed under Private Schools Act and Rules in the matter of any internal administration of the said school or in connection with the control and functions relating to the disciplinary action against the teachers of the school inasmuch as the terms of service condition of the teachers and the disciplinary control over the said teachers are governed by the Provisions of the Private Schools Act and Rules. The Committee of Management under the Pachaiyappa's Trust (Take over the Management) Act, much less the interim Committee of Management constituted and empowered under the G.O. dated 7.10.1996 therefore shall have power, authority and jurisdiction only with regard to the Management of the C.N. Primary School in the instant case. The non obstante Clause mentioned in Sections 4 and 7 of the Pachaiyappa's Trust (Taking over of Management) Act, 1981 Act shall not enable the interim committee of the Management to intrude into the powers and functions prescribed to the competent authority, viz., the School Committee, provided under the Tamil Nadu Private Schools Act and Rules. While giving effect to the non obstante clause provided under Sections 4 and 7 of the Pachaiyappa's Trust (Take over of the Management) Act, 1981, due care and uncompromised consideration of Section 18 of the Private Schools Act has to be given in the light of the objects, reasons and legislative intention for enacting the respective statutes namely Pachaiyappa's Trust (Take over of the Management Act and Tamil Nadu Private Schools Act.
20. It is in this connection the following provisions of the Tamil Nadu Private Schools Act and Rules are relevant to be mentioned.
Section 2(3)(b): "Educational Agency" in relation to: (b) any other private school, means any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private school.
2(7) "Private School" means a pre-primary, primary, middle or high school or higher secondary school or any other institution imparting education or training, established and administered or maintained by any person or body of persons, and recognised by the competent authority under this Act but does not include a school or an institution:
(a) imparting technical or professional education;....
2 (8) "School Committee", in relation to a private school, means the school committee constituted under Section 15;
Section 5: Constitution of School Committee: (1) Every private school shall have a duly constituted School Committee which shall include the headmaster of the private school and the seniormost teachers employed in the private school as provided in Sub-section (2).
(2) The number of representatives of the teachers on such constituted School Committee shall be such as may be prescribed and different number of representatives may be prescribed for different classes of private schools.
Section 2(9) "Secretary", in relation to a private school, means the secretary referred to in Section 16:
Section 16: Secretary of the School Committee: (1) Every School Committee shall have a Secretary who shall exercise such powers and perform such functions as may be prescribed.
(2) Every person holding office as President, Secretary, Manager or Correspondent of a private school or exercising the powers of secretary under this Act on the date of the commencement of this Act shall be deemed to be a secretary under this Act.
Section 18(1)(c): Functions of School Committee and responsibility of educational agency under the Act:- (1)...
(1)(a)...
(1)(b)...
(1) (c) to take disciplinary action against teachers and other employees of the private school.
Section 18(2): The educational agency shall be bound by anything done by the School Committee in the discharge of the functions of that committee under this Act.
Section 18(3): For the purpose of the Act, any decision or action taken by the School Committee in respect of any matter over which the School Committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency.
Section 22 (1):...
(2)...
(3) (a) No teacher or other person employed in any private school shall be placed under suspension, except when an inquiry into the gross misconduct, within the meaning of the Code of Conduct prescribed under Sub-section (1) of Section 21, of such teacher or other person is contemplated.
(3) (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher or other person shall, without prejudice to the inquiry, be deemed to have been restored as teacher or other employee:
Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months, for a further period not exceeding two months, if, in the opinion of such competent authority, the inquiry could not be completed within the said period of two months for reasons directly attributable to such teacher or other person.
Rule 17(2)(i): Whenever a teacher or other person employed in a private school is kept under suspension, such suspension shall, immediately on the date of issue of the suspension order, be intimated by the Secretary of the School Committee to the District Educational Officer concerned along with a copy of the suspension order. Rule 17(2)(ii): "On receipt of intimation regarding the suspension of a teacher or other person as mentioned in Clause (i) above, the District Educational Officer concerned shall make payment of subsistence allowance to theteacher or other person who is placed under suspension every month from the date of suspension for not more than two months at half the rate of pay which he was drawing at the time of suspension and in addition, the Dearness Allowance if admissible on the basis of such pay.
Rule 17(2) (iii): Whenever the competent authority has extended the period of suspension of a teacher or other person under the proviso to Clause (b) of Sub-section (3) of Section 22 of the Act, he shall intimate such extension of suspension to the District Educational Officer concerned. On receipt of such intimation, the District Educational Officer concerned shall make payment of subsistence allowance to the teachers or other persons who is placed under suspension for a further period not exceeding two months at half the rate of pay which he was drawing at the time of suspension and in addition the Dearness allowance if admissible on the basis of such pay.
Rule 17(3)(i): Where after enquiry, including the appeal, a suspension is found to be not justified, the management shall remit the amount of subsistence allowance paid to the teacher or other person employed in that private school to the Government in one lump sum under the appropriate head of account. The educational agency shall however, pay such teacher or other person the full pay and allowance he would have drawn but for his suspension less the amount of subsistence allowance already paid to the teacher or other person for the suspension period from the funds of the management without any claim from grant.
19. Of course, while reading the provisions of the Private Schools Act and Rules, Section 18-A cannot be lightly disregarded. Section 18-A deals with appointment of special officers in certain cases where the Government are satisfied that the management of any private school is responsible for the maladministration, lapses, or irregularities of the private school. Explanation (a) to Section 8-A of the Private Schools Act makes it clear that for the purpose of this Chapter namely Chapter 4-A under which Section 18-A was inserted, Management includes the School Committee or any person, body of persons, committee or any other governing body, by whatever name called, in whom the power to manage or administer the affairs of private school is vested. But, Section l8-A has no application to the facts of the instant case, because, no Special Officer was appointed under Section 18-A of the Act and the interim committee constituted and functioning under the control of the second respondent herein is not appointed under Section 18-A of the Private Schools Act, but under the provisions of the Pachaiyappa's Trust Take over of Management Act, 1981 as already explained above. Therefore, the interim committee of management functioning under the second respondent herein as per the provisions of Pachaiyappa's Trust Take over of Management Act, 1981, read with G.O.Ms. No. 719, Education Science and Technology Department, dated 7.10.1996 can not be said to include the School Committee in view of the Explanation A to Section 8-A of the Private Schools Act. Consequently, the functions and authorities of the School Committee under the provisions of the Private Schools Act and Rules remain unaltered in spite of the provisions of the Pachaiyappa's Trust.
20. In the light of the above background, even though the interim committee of management is constituted under the provisions of the Pachaiyappa's Trust (Takeover of Management) Act read with G.O.Ms. No. 719, Education Science and Technology Department, dated 7.10.1996 for the management of the C.N. Primary school, the service conditions of the teachers including the petitioner herein employed in the C.N. Primary School, are still governed by the provisions of the Private Schools Act and Rules and therefore, as per Section l8(1)(c) of the Act, only the School committee shall have the power to take disciplinary action against the petitioner. Further, as per Section 18(2), the respondents 1 and 2 who are deemed to be the educational agency, shall be bound by anything done by the school committee in discharge of the functions of the school committee under this Act. Furthermore, as per Section 18(3), any decision or action taken by the school committee in respect of any matter over which the school committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency.
21. Even though, I do not agree with the contention of Mr. R. Shanmugam, the learned Senior Counsel for the petitioner that the impugned order of suspension is without jurisdiction as the same was passed by invoking Rule 17(e) of the Tamil Nadu Civil Services Rules, because a mere mentioning of the incorrect provisions of law will not take away the power of the competent authorities under the statute, if such powers are traceable under the provisions of the statute, I am satisfied that the impugned order of suspension dated 19.3.1997 and the revised charge memo dated 5.5.1997 are without jurisdiction inasmuch as they have not been passed by the school Committee as per Section 18(1)(b), (2) and (3) of the Act. Therefore, the impugned order of suspension dated 19.3.1997 and the revised charge memo dated 5.5.1997 being passed by the first and second respondent herein but not by the School Committee, is totally without jurisdiction.
22. That apart, as rightly pointed out by the District Elementary Educational Officer, the impugned order of suspension dated 19.3.1997 is contrary to provisions of the private School Act and Rules inasmuch as it attracts Section 22(3)(a) and (b) read with Rule 17 and consequently the order of suspension dated 19.3.1997 shall not remain in force after the lapse of 2 months from the date of suspension namely, 19.3.1997 and therefore cease to be in force from 18.5.1997 by operation of law. In fact, the decision of the Division Bench in Rukmani Devi v. The Chief Educational Officer and 2 Ors. (1996) II C.T.C. 577 is squarely applicable to the instant case, wherein the Division Bench has held as follows:
We have carefully considered the submissions of the learned Counsel appearing on either side. It is an indisputable fact on record that the appellant was placed under suspension pending framing of charges with effect from 17.12.1992 and, as admitted by the third respondent in its communication dated 15.4.1993 to the second respondent, four months period by which final orders have to be passed expired on 17.4.1993 and that no final orders have been passed, terminating the services of the appellant. Consequently, in view of Sub-section 3 (b) of Section 22 of the Act, the order of suspension must be considered to be of no force and effect after the expiry of four months from the date of suspension.
23. Therefore, for all the reasons stated above, I am obliged to quash the impugned order of suspension dated 19.3.1997 and the revised charge memo dated 5.5.1997. However, it is open for the respondents 1 and 2 to proceed with the impugned disciplinary proceedings against the petitioner as per law, if they are so advised. In the result the writ petitions are allowed with consequential service benefits. In the circumstances, there will be no orders as to costs. Consequently W.M.P. Nos. 15467 and 11841 of 1997 are also dismissed.