Madras High Court
G. Anbarasan vs District Educational Officer, ... on 19 April, 2000
ORDER
1. This Court ordered issuance of rule on 17.8.1999. The respondents have been served. On behalf of the second respondent a counter has been filed. With the consent of counsel for either side the writ petition itself is taken up for final disposal.
2. Heard Mr.S. Kamadevan, learned counsel appearing for the writ petitioner, Mr.K. Elango, learned Government Advocate, appearing for the first respondent and Mr.R. Viduthalai, learned counsel for Mrs.A.V. Bharathi, learned counsel appearing for the second respondent.
3. The petitioner prays for the issue of a writ of certiorari to call for and quash the proceedings relating to the order passed by the second respondent in his proceedings dated 6.7.1999 in suspending the petitioner.
Respondent's Case:
4. Against the petitioner, a Secondary-Grade Assistant in the second respondent school eleven others a crime was registered by one Sagayamary for alleged offences under sections 147, 341, 323 and 506(ii) of Indian Penal Code. The overt act alleged being that the petitioner handed over a match box to the fourth accused. The petitioner was taken to custody and enlarged on bail on 22.6.1999. The Sub Inspector of Police, Vadalur Police Station reported the arrest of the petitioner and custody to the second respondent-school. Based upon such report, the petitioner was suspended.
5. The petitioner claims that he is innocent in respect of the alleged criminal complaint, which is pending investigation. The petitioner had been placed under suspension by the impugned order dated 6.7.1999 as a criminal case is under investigation and he was placed under deemed suspension from 19.6.1999 and until further orders. The order of suspension is being challenged in this writ petition as illegal, arbitrary and without any authority of law.
6. According to the learned counsel for the petitioner the present order of suspension placing the petitioner under suspension proceed on the premise that a criminal case is pending or an investigation is pending, which contingency is not provided for in the Tamil Nadu Private Schools (Regulations) Act and the Rules framed thereunder to suspend and therefore the action is without jurisdiction and authority. It is further contended that the order of suspension had not been passed by the School Committee. Nor the School Committee had taken a decision to place the petitioner under suspension. But it has been passed without reference to school committee. It is also contended that the order of suspension has been passed without application of mind.
7. Mr.S. Kamadevan, learned counsel appearing for the petitioner contended that there is no provision under the Tamil Nadu Recognised Private Schools (Regulations) Act to suspend the petitioner or to hold that the petitioner is deemed to have been placed under suspension on the ground that a criminal case has been registered or pending investigation against him or pending or taken to custody and behind the bars for more than 48 hours. Such a wide contention has been raised.
8. A counter has been filed by the second respondent. It was reported to the second respondent that the petitioner is involved in an incident that took place on 18.6.1999 and consequently a crime has been registered against the petitioner and others for offences under Sections 147, 341, 323 and 506(ii) of IPC with eight others. The petitioner was arrested on 19.6.1999 and was remanded. The petitioner was enlarged on bail only on 22.6.1999. The Sub Inspector of Police, Vadalur Police Station reported the said incident and on receipt of the said communication, the School Committee met on 6.7.1999 at 10.00 A.M., and resolved to suspend the petitioner from service in view of the pendency of a criminal proceeding against the petitioner.
9. The resolution passed by the School Committee was communicated by the second respondent on 6.7.1999 to the petitioner. The criminal case is still under investigation. The alleged offences for which the petitioner had been implicated being attempt to set fire to the house of the complainant. It is incorrect to contend that the petitioner cannot be suspended from service for his alleged involvement in criminal offence outside the school premises or employment. The second respondent has the requisite authority and power to suspend the petitioner pending criminal investigation or trial in terms of the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act. The order of suspension is well within the power and jurisdiction of the School Committee. Such a power could be read into the provisions of the Tamil Nadu Recognised Private Schools (Regulations) Act.
10. In any event even assuming the order of suspension to be irregular or illegal it will not result in the petitioner being restored to service, as such course will demoralize the school going children. But it may enable the petitioner to get full salary for the period of improper suspension. The various contentions raised by the petitioner was devoid of merits and unsustainable in law.
11. The petitioner, a School Teacher who is implicated in a criminal complaint, if taken back to duty it would cause considerable prejudice to the morale and discipline in the institution, among the students and in the public interest the petitioner had been kept under suspension and this Court will not interfere with the order of suspension as there is every jurisdiction for the petitioner being placed under suspension.
Contentions:
12. At the time of hearing, the following points were raised by Mr.S. Kamadevan, learned counsel for the petitioner:-
(i) Whether the order of suspension has been passed by School Committee or by the Secretary ? and
(ii) Whether the petitioner who is a school teacher against whom a criminal case has been registered and under investigation could be placed under suspension ?
13. There is no dispute that the writ petitioner is a Secondary Grade School Assistant in the second respondent-school and the school is governed by the Tamil Nadu Recognised Private Schools (Regulations) Act and the Rules framed thereunder. It is also not disputed that a criminal case is under investigation. Sub Section (3) of the Section 22 which is relevant reads thus:-
"22. Dismissal. Removal of Reduction In Rank or Suspension of Teachers or other Persons Employed In Private Schools--(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.
(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."
14. Sub-rule (2) of Rule 17 of the Tamil Nadu Recognised Private Schools (Regulations) Rules, 1974 which is relevant reads thus:
"17. Dismissal, Removal Or Reduction In Rank Or Suspension Of Teacher Or Other Persons Employed In Private School---(1)..............................
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:
(ii) On receipt of intimation regarding the suspension of a teacher or other person as mentioned in clauses (i) above the District Educational Officer concerned shall make payment of subsistence allowance to the Teacher 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.
(iii) Whenever the competent authority extended the period of suspension of a teacher or other persons 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 teacher or other person 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.
(iv) The District Educational Officer concerned shall send an intimation regarding the payment of the subsistence allowance under clauses (ii) and (iii) above to a teacher or other person who is placed under suspension to the Secretary of the School Committee.
(v) The payment of subsistence allowance shall be limited to maximum of four months in all."
15. In Annexure-11, the Code of Conduct for Teachers employed in a Private School are enumerated. The relevant clause in the Code of Conduct provides that a Teacher employed in a Private School who becomes involved in a criminal proceedings shall inform the School Committee of such proceedings.
16. While tracing the said provisions, Mr.S. Kamadevan, learned counsel for the petitioner contends that the petitioner could be placed under suspension, only when an inquiry into gross misconduct within the meaning of Code of Conduct prescribed under sub-section(1) of Section 21 is contemplated and such suspension shall remain in force for a period of two months from the date of suspension and if such an inquiry is not completed the teacher shall be deemed to have been restored as teacher.
17. Relying upon the said statutory provision it is being contended that there is no provision to place the petitioner under suspension, when a crime has been registered by a complainant before the police and the crime is under investigation against the petitioner. According to the learned counsel for the petitioner there is no provision which would enable the second respondent to place the petitioner under suspension when a criminal complaint has been registered and investigation is pending or even when the petitioner is facing criminal charge.
18. It is also pointed out that the second respondent has no authority to place the petitioner under suspension as there is no provision which would enable the second respondent to place the petitioner under suspension when a criminal complaint has been registered and is under investigation or even when a criminal case is pending against a teacher or other staff employed in a private school.
19. Per contra, Mr.R. Viduthalai, learned counsel for the second respondent contends that the provisions contained in the Tamil Nadu Recognised Private Schools (Regulations) Act and the Rules framed thereunder is not exhaustive, but it refers to inquiry into misconduct, which would not mean that the second respondent school as an employee has no right or authority to place the writ petitioner, who is employed, under suspension while exercising power of suspension which is an inherent power of an employer as against an employee.
20. Mr.R. Viduthalai, learned counsel for the second respondent referred to an unreported order of this Court dated 16th April 1998 made in G. James v. The Secretary, Bishop Heber College, Trichy and two others, W.P.No.18416 of 1997, in support of his contention that an employer like the second respondent has got the inherent power to suspend a teacher and even if the suspension in a particular case do not fail under Section 22(3), the School could always suspend its employee, but it has to pay full salary to the teacher. Such a suspension is by virtue of inherent powers of an employer.
21. In most of the service rules provide that an employee can be placed under suspension against whom any investigation or criminal complaint or a trial of the criminal case or inquiry relating to a criminal charge is pending. In those cases it has been well settled that there could be a suspension of an employee against whom an investigation or a criminal proceeding is initiated or pending. But such suspension pending investigation or trial or pending criminal charge can be made only when a criminal case has come correlation with the employment or with the morality.
22. The Apex Court has laid down in three cases namely, Hotel Imperial v. Hotel Workers Union, , R.P. Kapur v. Union of India, AIR 1964 SC 799, and T. Cajee v. U.Jormonic Siem, that it is well settled that under the ordinary law of Master and Servant, the power to suspend a servant without pay could not be inferred as a term in an ordinary contract of service between the master and the servant. But that must arise from an express term in the contract itself or statutory provision enabling such contract. It has been further held that an order of interim suspension could be passed against an employee even though there was no specific provision to that effect in its term of assignment or in the rules. But in such cases the employee would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld. In R.P. Kapur v. Union of India, AIR 1964 SC 799. It has been held thus:-
"On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No X of 1897, which lays down that where any Central Act of Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the Government, like any other employer would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension."
23. In B.R. Patel v. State of Maharashtra, , it has been held thus:-
"The general law on the subject of suspension has been laid down by this Court in three cases viz., Management of Hotel Imperial, New Delhi v. Hotel Worker's Union, ; T. Cajee v. U. Jormonic Siem, and R.P. Kapur v. Union of India, . It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. This principle of law of master and servant is well established; (See Hanley V. Pease and Partners, Ltd., 1915 (1) KB 698 : Wallwork v. Fielding 1922 (2) KB 66 and the judgment of Cotton L.J in Boston Deep Sea Fishing and Ice Co., v. Ansell, 1988 (39) Ch D 339. It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld.
4. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection, if there is such a provision the payment during suspension will be in accordance therewith. But if there is a no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the Government, like any other employer would have a right to suspend a public servant in one of two ways, it may suspend any public servant pending departmental enquiry or pending criminal proceedings, this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection."
24. In Y. Theclamma v. Union of India, , Their Lordships of the Supreme Court had occasion to consider the suspension of a teacher working in an minority institution and it has been held thus:-
"10. However, there was a difference of opinion as to the applicability of Ss.3(3)(a), 3(3)(b), 6 and 7. We need only notice Ss.3(3)(a) and 3(3)(b) which pertained to the power of suspension. S.3(3)(a) provided that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teacher is contemplated. S.3(3)(b) provided that no such suspension shall remain in force for more than a period of two months and if the enquiry was not contemplated within that period, the teacher shall be deemed to be reinstated. Proviso thereto however conferred power on the competent authority, for reasons to be recorded in writing, to extend the period for a further period not exceeding two months. Chandrachud C.J., found it difficult to agree with Fazal Ali, J. that these provisions were violative of Art. 30(1) thereby agreeing with Kailasam, J., that they were indeed regulatory. S.3(3)(a), in his own words, contained, but an elementary guarantee of freedom from arbitrariness to the teachers. The provision was regulatory in character since it neither denied to the management the right to proceed against an erring teacher nor indeed did it place an unreasonable restraint on its power to do so. It assumed the right of the management to suspend a teacher but regulated that right by directing that a teacher should not be suspended for more than a period of two months unless the inquiry was in respect of a charge of gross misconduct. In dealing with S.3(3)(a), the learned Chief Justice observed (at p.1051 of AIR 1980 SC):
"Fortunately, suspension of teachers is not the order of the day, for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educational excellence can be considered to be violative of the right given by Art. 30(1)."
He then stated:
"The limitation of the period of suspension initially to two months, which can in appropriate cases be extended by another two months, partakes of the same character as the provision contained in S.3(3)(a). In the generality of cases, a domestic inquiry against a teacher ought to be completed within a period of two months or say within another two months. A provision founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution, unless that right carried with it the right to maladminister."
He accordingly agreed with Kailasam, J., that Ss.3(3)(a) and 3(3)(b) which put restraints on the arbitrary power of suspension of teachers were regulatory in character and did not offend against the fundamental right of minorities under Art. 30(1)."
"12. It cannot be doubted that although disciplinary control over the teachers of a minority educational institution is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action. As the Court laid down in Frank Anthony Public School's case, the provision contained in Sub.S(4) of Section 8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the management's right to take disciplinary action. Although the Court in that case had no occasion to deal with the different ramifications arising out of Sub-Section(4) of Section 8 of the Act, it struck a note of caution that in a case where the management charged the employee with gross misconduct, the Director is bound to accord his approval to the suspension. It would be seen that the endeavour of the Court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under Art. 30(1) with the social necessity to protect the members of the staff against arbitrariness and victimization."
25. In V.P. Gindroniya v. State of M.P. , a larger Bench of the Supreme Court laid down that the power to suspend is not an implied term in an ordinary contract, but such a power can only be the creature either of a statutory governing the contract or of an express term in the contract itself. In that context it has been held thus:-
"8. The same view was reiterated by this Court in T. Cajee v. U. Jomanic Siem, . The rule laid down in the above decisions was followed by this Court in R.P. Kapur v. Union of India, . The law on the subject was exhaustively reviewed in Balvantray Ratilal Patel v. State of Maharashtra, . Therein the legal position was stated thus: The general principle is that an employer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid a employee to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee's wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract if subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey."
26. In Hotel Imperial v. Hotel Workers Union, , it has been held thus:-
"10. The first question therefore that fails for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he do so in the sense that he forbid the employee to work, he will have to pay wages during the so called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have not been disputed before us by either party. Reference in this connection may be made to Hanky v. Peas and Partners Ltd,, 1915 (1) KB 698, Wallwork v. Fielding, 1922 (2) KB 66, Secretary of State v. Surendra Nath, ILR 1939 (1) Cal. 46 : AIR 1938 Cal. 759 and Rura Ram v. Divisional Superintendent, N.W.Railway, ILR 1954 (7) Pun. 415 : AIR 1954 Pun. 288. "
27. Though the statutory provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder do not make a provision for placing a teacher or other person employed in a school under suspension pending investigation or the crime or a complaint or pending a criminal case, the employer of such a teacher could very well place him under suspension even when the statutory provision do not provide for such a contingency, by exercise of its powers of suspension, but the employer has to pay the salary.
28. Very many statutory rules or provisions provide for suspension under such contigency, but the statutory provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act as well as the Tamil Nadu Recognised Private Colleges (Regulation) Act had not made a provision in this respect. It is high time, the Legislature steps in and introduce a provision.
29. One other incidental question that has been raised is whether the suspension could be continued beyond two months or the extend the period as provided in Section 20(3) of the Act. The statutory provision provides the period of suspension to be confined to two months at the first instance and an extension for identical period shall be by appropriate authority. The object of the statutory provision being that there shall not be any delay in the disciplinary proceedings against a teacher working in a private school. Merely because a restriction is imposed, it cannot be held that beyond the said period the teacher cannot be placed under suspension. However if a teacher is kept under suspension beyond the period stipulated in Section 20(3), the employer namely the School Management has to pay full salary for any period beyond the period stipulated by the statutory provisions or extended under the proviso to Section 20(3) from its funds.
30. It is equally well settled that an order of suspension of an employee does not put an end to his service, but he is not permitted to work and during his period of suspension he is entitled for subsistence allowance as provided by the statutory provision if such suspension falls under the statutory provisions and if it is not covered by the statutory provision, then the management has to pay the salary and keep him away from the office. This legal position is also well settled as seen from the decisions referred above.
31. In the present case, as against the petitioner for offences under sections 147, 323, 341 and 506(ii) of the Indian Penal Code a crime has been registered and criminal investigation is under progress. The alleged criminal complaint against the petitioner involves moral turpitude and it is likely to embarrass him besides the second respondent, being a school where number of young children are attending classes and as continuance of the petitioner during the investigation of a serious crime in the locality would also demoralize and/or have a effect on the psychology of the school going children, this Court is of the considered view that the second respondent-school is well justified in placing the petitioner under suspension.
32. In the circumstances, this Court holds that on the facts of the case and in the light of the above pronouncements, the order of suspension cannot be held to be without jurisdiction or authority and it is valid in law. Further this Court also on a perusal of the records submitted by the second respondent holds that it is the School Committee which had met and resolved to place the petitioner under suspension. Since the order of suspension has been passed by the competent authority namely the School Committee, this contention also fails.
33. In the circumstances, the writ petition fails. But insofar as the order of suspension in the present case not failing under Section 20(3) of the Act or the Rules made thereunder, the second respondent-school has to pay full salary for the period of suspension.
34. While dismissing the writ petition, the following directions are issued:-
(i) The second respondent-school shall pay full salary for the period of suspension;
(ii) The second respondent-school shall ascertain the progress of the criminal case from the investigating officer and receive a report, review the suspension without delay while taking note of the fact that the petitioner had already been enlarged on bail and the criminal investigation is under progress. Such review shall be undertaken within a period of two months from today; and
(iii) So long as the petitioner is kept under suspension, the second respondent-school shall pay full salary for the period of suspension.
35. The parties shall bear their respective costs in this Writ Petition.