Madras High Court
Tamilavel Uma Maheswaranar Karanthai vs The State Of Tamil Nadu on 25 June, 2012
Author: R. Karuppiah
Bench: K.B.K.Vasuki, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25/06/2012
Coram
THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI
and
THE HONOURABLE Mr.JUSTICE R.KARUPPIAH
Writ Appeal (MD) No.388 of 2012
and
Writ Appeal (MD) No.389 of 2012
W.A.No.388/2012
Tamilavel Uma Maheswaranar Karanthai
Arts College, Thanjavur-613 002
Rep. by the President
N.Kaliyamoorthi, Karanthai.
Thanjavur. .. Appellant
vs
1. The State of Tamil Nadu,
Rep. by the Secretary to Government,
Higher Education Department,
Secretariat, Chennai - 600 009.
2.The Director of Collegiate Education,
9th Floor, EVK Sampath Maaligai,
College Road, Chennai.
3. The Regional Joint Director
Race Course Road,
Jamal Mohamed College Road,
Tiruchirapalli.
4.Dr.S.Senthil Kumar,
No.7, Ramasamy Nagar,
Medical College Road,
Thanjavur-613 004. ... Respondents
W.A.No.389/2012
Tamilavel Uma Maheswaranar Karanthai
Arts College, Thanjavur-613 002
Rep. by the President
N.Kaliyamoorthi, Karanthai.
Thanjavur. .. Appellant
Vs
1.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Higher Education Department,
Secretariat, Chennai - 600 009.
2.The Director of Collegiate Education,
9th Floor, EVK Sampath Maaligai,
College Road, Chennai.
3. The Regional Joint Director
Race Course Road,
Jamal Mohamed College Road,
Tiruchirapalli.
4.Dr. Durai Panneerselvam
1156, National Pharma Nagar,
Medical College Road,
Thanjavur-613 004. .. Respondents
Writ Appeal No.388/2012 is filed under Clause 15 of Letters Patent to set
aside the order dated 27.04.2012 in WP (MD) No.12887 of 2011 passed by the
learned single Judge.
Writ Appeal No.389/2012 is filed under Clause 15 of Letters Patent to set
aside the order dated 27.04.2012 in WP (MD) No.12888 of 2011 passed by the
learned single Judge.
!For Appellant ... Mr.C.K.Chandrasekar
^For Respondents ... Mr.R.Karthikeyan
1 to 3 Addl. Government Pleader.
For Respondents
4 ... Mr.M.Ajmal Khan, Sr.Counsel
/Caveators ... for Mr.S.K.Mani
:COMMON JUDGMENT
R. KARUPPIAH, J.
The above Writ Appeals are directed against the common order of learned single Judge passed in W.P.(MD) Nos.12887 and 12888 of 2011. W.P.(MD) No.12887 of 2011 has been filed for issuance of writ of certiorarified mandamus calling for the records on the file of the respondents 3 and 2 in connection with the orders passed by them in their proceedings Na.Ka.No.5563/A3/2011 dated 4.10.2011 and Na.Ka.No.30702/F3/2011 dated 31.10.2011 respectively and quash the same and direct the respondents 2 ans 3 to grant approval to the order passed by the College Committee in R.C.No.3/2011 dated 01.10.2011 under Section 14-1(C) read with 19(2) of the Tamil Nadu Private College (Regulations) Act 1976 (for short "the Act") and the Rules and Regulations framed thereunder. W.P.No.(MD).No.12888 of 2011 has been filed for issuance of writ of certiorarified mandamus calling for the records on the file of the respondents 3 and 2 in connection with the orders passed by them in their proceedings Na.Ka.No.5563/A3/2011 dated 4.10.2011 and Na.Ka.No.30702/F3/2011 dated 31.10.2011 respectively and quash the same and direct the respondents 2 and 3 to grant approval to the order passed by the College Committee in R.C.No.2/2011 dated 1.10.2011 under Section 14-1(C) read with 19(2) of the Tamil Nadu Private College (Regulations) Act 1976 and the Rules and Regulations framed thereunder. The learned single Judge dismissed the Writ Petitions confirming the orders passed by respondents 3 and 2 in their proceedings dated 4.10.2011 and 31.10.2011 respectively.
2. At the time of admission itself, with the consent of learned counsel on both sides, the writ appeals were taken up and were heard.
3. The appellant-College viz. Tamilavel Uma Maheswaranar Karanthai Arts College, is an aided educational institution governed by Tamil Nadu Private College (Regulations) Act 1976 and Rules. The 4th respondent in both the writ appeals viz. Dr.S.Senthil Kumar and Dr.Durai Panneerselvam are Associate Professors in the abovesaid college. The College Committee has issued charge memos and orders of suspension against both the 4th respondents and called upon explanation and both the 4th respondents had chosen to give their explanation on 31.8.2011. The charges levelled against the 4th respondent in W.A.(MD) No.388 of 2012 viz. Dr.S.Senthil Kumar as under:-
Charge No.1: That you, Thiru Dr.S.Senthil Kumar, Associate Professor of Tamil Department had allowed two old students, namely, Thiru S.Rajendran and Thiru Raju, who are now in Cine Field, inside the college and had talked with them in the Staff Room of Tamil Department during the college hours. Because of your encouragement, the old students had neither informed the office nor obtained permission to enter into the Staff Room and the College where lots of female teachers and students are present.
Charge No.2: That you Thiru Dr.S.Senthil Kumar, Associate Professor, Tamil Department had attempted to beat Thiru K.Balraj, Lab Attendant, Zoology Department and abused him in a filthy language in front of other Staff and the Principal in the office Room on 26.7.2011 at about 1.20 pm. Because of your encouragement, the old students had neither informed the office nor obtained permission to enter into the staff room and the college where lots of female teachers and students are present.
Charge No.3: That you Thiru Dr.S.Senthil Kumar had forwarded a letter dated 01.08.2011 to the Secretary levelling baseless allegations against the Principal of the College who had acted in accordance with law by directing you to give petition to the Police Station, Thanjavur West for appropriate action. Charge No.4: That you Thiru Dr.S.Senthil Kumar as admitted by you in your petition dated 1.8.2011 invited the AUT members to gather and raise slogans against the Principal and the College in front of the Principal's room affecting the interest of the students and other teachers.
Charge No.5: That you, Thiru Dr.S.Senthil Kumar by your above misconduct had not allowed the college to function peacefully. As a result the college was forced to have been closed for the period of 3 days from 27.7.11 to 29.07.11 to avoid any untoward incident. This was done only with a view to prevent you from causing any damage to the college and the students.
As a responsible teacher in the cadre of Associate Professor of Tamil Department you ought to have taken care of atleast the interest of the students and their education if not the college. Thus your conduct would not only amount to misconduct but also would amount to an interference with rights and interest of the students and other teachers.
Charge No.6: That you, Thiru Dr.S.Senthil Kumar, in reply to the charge memo dated 05.08.10 issued against you levelling serious charges had brought the influence of the Central Minister Thiru S.S.Palani Manickam of DMK Party of Thanjavur to revoke the suspension and take you back to duty by accepting a letter of regret from you. This has been claimed by you as a matter of right and threat against the college vide your letter dated 07.03.11 by which you have sought for salary for the suspension period.
Accordingly the college with a view to avoid any misunderstanding with the Minister had accepted your letter dated 14.08.10 regretting for the grave misconduct committed by you as exhibited in the form of various charges in the charge memo dated 5.8.10 and revoked the order of suspension dated 5.8.10 issued against you. In fact, further action on the charge memo dated 5.8.10 by the College Committee was deferred as the College Committee had decided to watch your future conduct towards the College and the students. Charge No.7: That you against your promise that you would not commit any misconduct in future have unnecessarily and unjustifiably entered into a scuffle with the Lab Attendant Thiru K.Balraj and thereby brought disrespect to the college and its administration.
Charge No.8: That as a responsible teacher in the cadre of Associate Professor of Tamil Department you should have been a model for the students studying in the college and other teachers. But forgetting that you are in a responsible post, have stooped down to enter into scuffle with the Lab Attendant Thiru K.Balraj and thereby driven Dr.Durai Panneerselvam to beat him in front of the Principal and other staff.
Thus you have violated the Code of Conduct and are liable to be dealt with departmentally.
Charge No.9: That Thiru Dr.Durai Panneerselvam has given a complaint in Thanjavur West Police Station, Thanjavur against Thiru K.Balraj in FIR No.401/11 for the offences under Sections 294(b), 323 and 506(ii) IPC and Thiru K.Balraj, Lab Attendant also has given a complaint against you both including Thiru Dr.S.Senthil Kumar in FIR No.400/11 on 26.7.11 under Sections 294(b) and 352 IPC.
The charges levelled against the 5th respondent viz. Dr.Durai Panneerselvam as under:-
Charge No.1: That you Dr.Durai Panneerselvam, Assistant Professor of Tamil Department had allowed two old students who are now in Cine Field inside the college and had talked with them in the Staff Room of Tamil Department during the College hours. Those old students entered the college campus and the gents Staff Room of Tamil Department without even informing the office about their entry and getting prior permission from the college. As the college is a co- educational institution and so many lady staff and girl students are in the college such a permission or atleast information is necessary for the outsider to enter the college and the staff room. As an Assistant Professor you know fully well the restriction and inspite of that you had allowed them freely to enter the staff room and thereby thrown the safety of the girl students and the staff and also the college to danger.
Charge No.2: That you Thiru Dr.Durai Panneerselvam, Assistant Professor, Tamil Department had beaten Thiru K.Balraj, Lab Attendant, Zoology Department and abused him in a filthy language in front of other staff and the principal in the office room on 26.7.11 at about 1.20 pm. Charge No.3: That you, Thiru Dr.Durai Panneerselvam had forwarded a letter dated 26.7.2011 to the Secretary levelling baseless allegations against the Principal of the College who had acted in accordance with law. Charge No.4: That you, Thiru Dr.Durai Panneerselvam as admitted by you in your petition dated 26.07.2011 invited the AUT members to gather and raise slogans against the Principal and the College in front of the Principal's room affecting the interest of the students and other teachers. Charge No.5: That you, Thiru Dr.Durai Panneerselvam had by your above misconduct had not allowed the college to function peacefully. As a result the college was forced to have been closed for the period of 3 days from 27.7.11 to 29.07.11 to avoid any untoward incident. This was done only with a view to prevent you from causing any damage to the college and the students.
As a responsible teacher in the cadre of Assistant Professor of Tamil Department you ought to have taken care of atleast the interest of the students and their education if not the college. Thus your conduct would not only amount to misconduct but also would amount to an interference with rights and interest of the students and other teachers.
Charge No.6: That you, Thiru Dr.Durai Panneerselvam, in reply to the charge memo dated 05.08.10 issued against you levelling serious charges had brought the influence of the Central Minister Thiru S.S.Palani Manickam of DMK Party of Thanjavur to revoke the suspension and take you back to duty by accepting a letter of regret from you. This has been claimed by you as a matter of right and threat against the college vide your letter dated 07.03.11 by which you have sought for salary for the suspension period. Accordingly the college with a view to avoid any misunderstanding with the Minister had accepted your letter dated 18.08.10 regretting for the grave misconduct committed by you as exhibited in the form of various charges in the charge memo dated 5.8.2010 and revoked the order of suspension dated 5.8.2010 issued against you. There is no further decision taken on the charge memo by the College Committee as the College Committee had decided to defer further course of action.
Charge No.7: That you against your promise that you would not commit any misconduct in future have unnecessarily and unjustifiably entered into a scuffle with the Lab Attendant Thiru K.Balraj and thereby brought disrespect to the college and its administration.
Charge No.8: That as a responsible teacher in the cadre of Assistant Professor of Tamil Department you should have been a model for the students studying in the college and other teachers. But forgetting that you are in a responsible post, have stooped down to enter into scuffle with the Lab Attendant Thiru K.Balraj to support Thiru Dr.S.Senthil Kumar, Associate Professor of Tamil Department in front of the Principal and other staff. Thus, you have violated the Code of conduct and are liable to be dealt with departmentally.
Charge No.9: That you Thiru Dr.Durai Panneerselvam have given a complaint in Thanjavur West Police Station, Thanjavur against Thiru K.Balraj in FIR No.401/11 for the offences under Sections 294(b), 323 and 506(ii) IPC and Thiru K.Balraj, Lab Attendant also has given a complaint against you both in FIR No.400/11 on 26.7.2011 under Sections 294(b) and 352 IPC. Thus, you all the three are facing criminal investigation and by involving yourself in the criminal case you have brought disrepute to the college and the students.
4. At the time of disciplinary proceedings, 11 witnesses were examined as MW.1 to MW.11 and 42 documents viz. Exs.M1 to M42 were marked to prove the charges against the fourth and fifth respondentsS. But the fourth and fiftth respondents have neither examined any witness nor produced any document but confined to the oral evidence given by themselves and the explanation dated 31.8.2011 submitted to the charge memos.
5. The College Committee has considered the abovesaid oral evidence of MW.1 to MW.11 and the documentary evidence of MW.D1 to MW.D42 and finally held in both proceedings that charges 1 to 5 and 8 are proved and with regard to charge No.8, the College Committee has decided to take action separately on the basis of earlier charge memo dated 5.8.2010 and with regard to charge No.7, the Committe has held that the first part of the charge has been dropped and the second part of the charge was proved and with regard to charge No.9, the College Committee has reserved its rights to proceed further against the fourth and fifth respondents on the basis of final order passed by competent criminal court and the outcome of the two FIRs and passed an order on 24.9.2011 in Proc.Nos.2 and 3/2011 and then show cause notices were issued to the fourth and fifth respondents on the same date i.e on 24.9.2011 as to why they should not be dismissed from service and there was no reply from both of them.
6. On 1.10.2011, the College Committee issued proceedings in R.C.No.2/2011 and 3/2011 dated 1.10.2011 and passed final order in both the proceedings as follows:
" As there is a clear cut evidence which is cogent, unimpeachable and undisputably available to prove your gross misconduct in the college campus. The College Committee has unanimously decided to dismiss you from service and accordingly it has passed the present order dismissing you from service for the grave charges held proved against you by the College Committee for the above stated reasons and the College Committee has no other option except to act upon the independent evidence PW1 - PW11 and the documents marked before the College Committee.
The College Committee therefore having no other option open to it to save the students, staff and the College except to dismiss you from service accordingly you are dismissed by this order passed by the College Committee under Section 14-1(c) read with 19(2) of the Tamil Nadu Private College (Regulations) Act 1976 unanimously with effect from the receipt of this copy of this order by you.
An appeal shall lie to the Director of Collegiate Education under Section 20 read with 37 and 39 of the Tamil Nadu Private College (Regulations) Act 1976 and the same has to be preferred within thirty days."
7. The abovesaid dismissal orders were communicated to the fourth and fifth respondents on 2.10.2011. It further reveals that on 3.10.2011, fourth and fifth respondents had submitted representations before the third respondent herein viz. Regional Joint Director. On considering the abovesaid representations of both the fourth and fifth respondents, the third respondent had passed order in Na.Ka.No.5563/A3/11 dated 4.10.2011 that the dismissal orders dated 1.10.2011 in Na.Ka.Nos. 2 and 3/2011 issued by the College Committee are cancelled since no approval was obtained from the competent authority under Section 19(1) of the Tamil Nadu Private College (Regulations) Act 1976 and also directed the college authorities to permit fourth and fifth respondents to join duty and also called for explanation under what circumstances dismissal orders have been passed without obtaining prior approval of the competent authority.
8. On 5.10.2011, the Secretary of the appellant College addressed to 2nd respondent (i.e) the Director of Collegiate Education for approval of dismissal of the fourth and fifth respondents. On 9.10.2011, the Secretary of the appellant College has addressed to 3rd respondent (i.e) the Regional Joint Director in which made several allegations against the abovesaid officials (i.e) 3rd respondent. On 31.10.2011, the 2nd respondent in both the appeals has passed an order directing the College Authorities to comply with the direction of 3rd respondent (i.e.) Regional Joint Director. Aggrieved with the abovesaid proceedings of the respondents 2 and 3, the appellant has filed W.P.(MD) No.12887 of 2011 and W.P.(MD) No.12888 of 2011 with the abovesaid prayers.
9. The learned single Judge has discussed the relevant provisions i.e. Section 19(1) of the Tamil Nadu Private College (Regulations) Act 1976 and the decision reported in RV THEVAR MEMORIAL GIRLS HIGH SCHOOL v. THE DIRECTOR OF SCHOOL EDUCATION (2002 (4) CTC 129) and finally dismissed both the writ petitions on the ground that the appellant management has not obtained any approval which is mandatory under the Act 1973 for dispensing with the services of fourth and fifth respondents and so such orders cannot stand in the eye of law and also held that if interfered with the abovesaid orders, it amounts to revival of orders of termination passed by the appellant management.
10. Heard the learned counsel appearing on either side and perused the materials on record.
11. The learned counsel for the appellant has contended that the appellant's College Committee had initiated disciplinary proceedings against the fourth and fifth respondents and finally recommended on 24.9.2011 for dismissal of both of them from service subject to the approval of the Competent Authority and on 1.10.2011 the College Committee has issued the proceedings and dismissed the fourth and fifth respondents (i.e) as stated in para 6 with effect from receipt of copy of the order and also informed the fourth and fifth respondents that an appeal shall lie with the Director of Collegiate Educational and the abovesaid dismissal order was communicated to the fourth and fifth respondents on 2.10.2011 and on 3.10.2011 both of them have made representation before third respondent and the third respondent has passed order on the next day i.e on 4.10.2011 without giving any opportunity to the appellant and on 5.10.2011 the appellant has submitted petition for approval to the second respondent since the third respondent was biased against the appellant and even without there being any power under the Act to interfere at the stage of suspension of fourth and fifth respondents in both appeals, the third respondent intervened on its own volition and directed the cancellation of suspension on unacceptable grounds and similarly even before an application for approval was filed by the appellant, the third respondent could not have directed reinstatement of fourth and fifth respondents and therefore the appellant has submitted the petition for approval to the 2nd respondent. The 2nd respondent ought to have either entertained the petition or returned it for proper presentation, but the 2nd respondent could not have directed the implementation of the decision of the 3rd respondent without considering any of the records relevant to the disciplinary action taken by the appellant and therefore the entire action of the respondents 2 and 3 exposed, totally non- application of mind and biased in favour of the fourth and fifth respondents.
12. The learned counsel for the appellant has further contended that the learned single Judge has not referred to the decision relied on by the appellant in support of their case and the decision of the learned single Judge is erroneous and therefore prayed for setting aside the order of the learned single Judge.
13. The learned Senior Counsel appearing for the fourth and fifth respondents would contend that the appellant has dismissed the fourth and fifth respondents without seeking approval of the Competent Authority prescribed under the Tamil Nadu Private College (Regulations) Act 1976 and it is well settled principles laid down by several decisions of the Honourable Apex Court and this Court that prior approval of Competent Authority is mandatory under the abovesaid Act and if not obtained any prior approval the order of termination cannot stand in the eye of law and therefore in these cases admittedly prior approval not obtained from the concerned Authority viz., the third respondent or the appellate Authority, the 2nd respondent and therefore the order of respondents 2 and 3 are valid and the learned single Judge also correctly confirmed the abovesaid orders and dismissed the writ petitions.
14. In these cases, admittedly the dismissal orders against both the fourth and fifth respondents were passed on 1.10.2011 as under:-
""The College Committee therefore having no other option open to it to save the students, staff and the College except to dismiss you from service accordingly you are dismissed by this order passed by the College Committee under Section 14-1(c) read with 19(2) of the Tamil Nadu Private College (Regulations) Act 1976 unanimously with effect from the receipt of this copy of this order by you.
An appeal shall lie to the Director of Collegiate Education under Section 20 read with 37 and 39 of the Tamil Nadu Private College (Regulations) Act 1976 and the same has to be preferred within thirty days."
It is not disputed that the abovesaid orders were served to the fourth and fifth respondents on 2.10.2011 and on the basis of the representation of the fourth and fifth respondents dated 3.10.2011 the 3rd respondent has passed an order on 4.10.2011 by stating that the abovesaid dismissal orders are not valid, non-est and also directed the appellant to reinstate the 4th respondent in both appeals in service and also called for explanation from the appellant. After passing the abovesaid final order, the appellant has filed one representation to 2nd respondent on 5.10.2011 in which it is stated as a mere perusal of the dismissal orders itself would reveal that they cannot be allowed to join in service as their continuance would be against the interest of students and other staff and the public and hence the appellant requested to tender approval for the dismissal orders passed against the fourth and fifth respondents. On 9.10.2011, the appellant has sent a letter to the third respondent with several allegations against the third respondent and copy communicated to several officials.
15. A perusal of the letter dated 9.10.2011 reveals that the appellant has not sought approval of the dismissal of the fourth and fifth respondents as per Rule 19(1) of the Tamil Nadu Private College (Regulations) Rules 1976 before 3rd respondent but made allegation against the 3rd respondent as if she has passed orders in favour of fourth and fifth respondents according to her whims and fancies for unlawful consideration and undue influence.
16. The abovesaid facts reveal that the appellant College Committee has dismissed fourth and fifth respondents on 1.10.2011 without obtaining any approval from the Competent Authority as prescribed under Section 19 (1) and (2) of the Tamil Nadu Private Colleges (Regulation) Act 1976.
17. In this connection, the learned single Judge has stated without discussion the decisions reported in (i) Ayya Nadar Janaki Ammal College Vs. A.Pandian & two others ( 1996 (II) CTC 337), (ii) Secretary School Committee, Thiruvallur Higher Secondary School by Thiru K.N.Govindarajan Vs. Government of Tamil Nadu rep by Secretary to Govt., Education Dept., Madras-9 & four others (1996 (III) CTC 62), (iii) A.B.Narasimhan Vs. Management of Olcott Memorial School and others (1996 Writ L.R. 543) and after detailed discussion about the decision reported in (iv) Secretary School Committee, Thiruvallur Higher Secondary School Vs. Govt of Tamil Nadu and others (2003) 5 SCC 200) and finally held that the appellant has not obtained any approval which is mandatory under the Act 1973 and dismissed the Writ Petitions.
18. It is necessary to mention the relevant provisions i.e. Section 19(1) and (2) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 to decide the appeals. Section 19(1) and (2) reads as follows:
"19(1). Subject to any rule that may be made in this behalf, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority.
(2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private college is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment.
19. The learned counsel appearing for the respondents have further contended that Section 22(1) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 is also similar to Section 19(1) and (2) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. Section 22(1) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 reads as follows:-
"22. Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private schools.- (1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private school shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority."
20. A Full Bench of this Court in the decision in S.CHATTANATHA KARAYALAR Vs. THE JOINT DIRECTOR, TAMIL NADU (AIR 1965 SC 1856) dated 9.3.1965 held as follows:-
"5. .... Therefore, when under Section 19(1) of the Act it has been mandatorily provided that prior to the issuance of the order of dismissal or termination, prior approval of the competent authority should be obtained and in the case on hand, when the petitioner has, as a matter of fact, preferred on 11.3.2002 necessary application seeking for permission before the Director of Collegiate Education, I am of the view that the issuance of the subsequent order dated 30.4.2002 being patently illegal, the same will have to be construed as non-est in law. When once the petitioner has chosen to flout the legal provision while passing the order of termination dated 30.4.2002 as against the respondents 2 to 11 it cannot lie in the mouth of the petitioner to contend that irrespective of the position that the said order is in total contravention of the statutory provisions, it should be held that the first respondent who is the concerned competent authority exercising powers over the Private Colleges situate within his jurisdiction, to be so powerless and that he should be a silent spectator in spite of such illegal order having been passed by the petitioner as against respondents 2 to 11. I am of the view that the petitioner being an educational Institution ought to have, in the event of the concerned authority not having passed any orders on the petitioner's application for permission instead of taking the law into its own hands and pass an order which is in total violation of the provisions of the Act."
21. In the decision in NARASIMHAN, A.B. v. MANAGEMENT OF OLCOTT MEMORIAL SCHOOL (1996 Writ L.R. 543), a learned single Judge of this Court has held as follows:-
"11. After agreeing with the Joint Director and holding as stated earlier that the termination of service of the School Authorities without the authority of the Chief Educational Office could not be upheld, he had no jurisdiction to grant any liberty to the petitioner to obtain an approval. Even if the approval is granted, it will not be in strict compliance with the requirement of S. 22 of the Act. The intention of the Legislature is that permission should be obtained before an order of termination or dismissal is imposed. There is no scope for any post-approval. The provisions of the Act or the Rules do not contemplate such post approval. The Section noted earlier contemplates only the prior approval of the competent authority."
22. A Division Bench of this Court in the decision reported in R.V.THEVAR MEMORIAL GIRLS HIGH SCHOOL V. THE DIRECTOR OF SCHOOL EDUCATION (2002 (4) CTC 129), after discussing several decisions of the Honourable Apex Court, finally held in para Nos. 24 and 25 as follows:-
"24. In view of the above, it is clear that the requirement under Sec. 22 of the Act 1973 to get a prior approval before effecting the termination of service of a teacher or other person employed in a recognised private school is not a mere formality, but it is a substantial restriction of the power on the management and it is mandatory. If such an approval is not obtained before termination, the order of termination has to be construed as illegal and ab initio void. So, such an order cannot have any effect and the management cannot rely on the said orders of termination before the authorities to sustain their case either to approve the appointment of Tmt. Selvasundari in the place of Tmt. M.Chinnathai or to defend the case of Tmt. K.Vatsaladevi saying that she should not be permitted to continue her duty.
25. According to the appellant-management, the orders passed by the 1st respondent in both the cases were passed without following the principles of natural justice and so they have to be set aside and remitted back to the authority concerned for fresh disposal. The learned Judge has rightly rejected the said contention stating that if such submission is accepted it amounts to revival of the illegal orders of termination. When the orders passed by the appellant-management terminating the services of the 4th respondent in the respective Writ Appeals are illegal and ab initio void, there is no illegality in the orders passed by the 1st respondent directing the appellant-management to permit the 4th respondent in the respective Writ Appeals to continue their work."
23. A perusal of the abovesaid discussions reveal that to get prior permission before effecting termination of service is not a mere formality and it is mandatory and if such approval is not obtained before termination, the order of termination has to be construed as illegal and ab initio void.
24. In these cases, as already discussed, the appellant has dismissed the fourth and fifth respondents on 1.10.2011 without applying for approval or obtained approval from the Competent Authority viz. the 3rd respondent or 2nd respondent. The competent authority viz. 3rd respondent, on the basis of representation of fourth and fifth respondents dated 3.10.2011, has passed orders on 4.10.2011 cancelling the dismissal orders and directed to reinstate the fourth and fifth respondents. After passing the abovesaid final order by competent authority viz. 3rd respondent, the appellant has filed representation before 2nd respondent for approval of the dismissal order passed against the abovesaid 4th respondents.
25. In these cases, the appellant has not contended that the 3rd respondent is not competent authority for approval of the dismissal order but only contended that the 3rd respondent even at the time of suspension of charge memo, pre-concluded the issue on the basis of representation of 4th respondents and also the 3rd respondent was biased against the appellant and hence the appellant has submitted approval petitions before 2nd respondent and the 2nd respondent also one-sided along with 3rd respondent and hence the 3rd respondent has not given any reasonable opportunity to the appellant and therefore the impugned orders passed by the respondents 2 and 3 are not valid in law.
26. The learned counsel for the appellant has cited an unreported decision of a Division Bench of this Court in Dr.P.Murphy Alexander Vs. The Director of Collegiate Education, Chennai and five others in W.A.(MD) No.642 of 2010 and W.P.(MD) No.12304 of 2010. Para Nos. 12 and 36 of the above decision are relevant and the same are extracted below:
"12. Further, a mere perusal of the order clearly shows that the 4th respondent on the basis of the resolution and also for the charges of disobedience, non-cooperation and breach of trust, had passed the impugned order removing the appellant from the post of 3rd respondent College with effect from 30.04.2010. Nowhere, the records filed by the both sides, indicate the compliance of notice or holding of any enquiry against the appellant for the charges as mentioned in the impugned order. Therefore, in our considered view, the impugned order seeking to remove the appellant from the post of Principal without giving any show cause notice and without holding any enquiry, is illegal and further, being a flagrant violation of the principles of natural justice, the same is liable to be set aside.
36. ... In the present case, while applying the above principles enunciated by the Apex Court, if we look at the case of the appellant herein, he was removed, unheard and no witnesses were examined in support of charges levelled against him. Therefore, the entire proceedings were thus vitiated being in violation of principles of natural justice."
27. A perusal of the abovesaid decision reveals that the impugned order seeking to remove the 4th respondent in both appeals were passed without giving show cause notice and without holding any enquiry and therefore the Court has held that the entire proceedings of the appellant were vitiated being the violation of principles of natural justice.
28. In the present cases, as already discussed the appellant has violated the Tamil Nadu Private Colleges (Regulation) Rules, 1976 and dismissed the 4th respondent in both appeals without prior approval of competent authority as per Section 19(1) and 19(2) of the Act and there is no necessity for giving notice or enquiry by 2nd or 3rd respondent and therefore the abovesaid decisions are not helpful to the appellant herein.
29. The learned counsel for the appellant has relied on another decision of the Honourable Apex Court in ALIGARH MUSLIM UNIVERSITY AND OTHERS Vs. MANSOOR ALI KHAN (2000) 7 SCC 529). A perusal of the above decision reveals that admittedly no notice under Rule 5(8)(i) of the 1969 Rules has not been given and therefore in violation of principles of natural justice. A reading of the abovesaid decision further reveals that the facts of that case are completely differ from this case and it is clearly held in para Nos.33 and 35 as follows:
" 33. But so far as leave for purposes of job continuance in Libya is concerned, he has been fully put on advance notice that no further extension will be given. It must be held that no prejudice has been caused even though no notice is given under Rule 5(8)(i).
35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L.Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr Mansoor Ali Khan under Point 5."
30. The learned counsel for the appellant has relied on the unreported decision of a Division Bench of this Court in N.K.T.National College of Education for Women Vs. Joint Director of Collegiate Education, Chennai and another in W.A.No.704 of 2008 dated 6.8.2009. Para No.22 is relevant in the above decision and it is extracted as under:-
"22. In the present case, since the impugned order is devoid of reasons for declining to grant approval except to state that the age of superannuation has passed which for reasons given above, we hold as being unsustainable, it is quashed. All orders which were consequent to and subsequent to the order refusing to grant approval will have no effect, since we are quashing both the orders. The matter is sent back to the first respondent to consider the request for approval under Section 19(1) and exercise the discretion as required and pass orders in accordance with law within one month from the date of the order. All that we have said above are only to show the extent to which there has been no application of mind by the authorities. The authorities shall decide independently, whether the proved charges justify the particular decision and give reasons for the orders that they pass."
31. A perusal of the abovesaid decision reveal that the second respondent in the abovesaid case viz. G.Premkumari gave a final explanation on 18.3.2003 which was considered by the Committee on 30.4.2003 and they resolved to dismiss her with effect from 31.5.2002 and applied for approval under Section 19(1) of the Act. The Director of Collegiate Education by its proceedings dated 27.6.2003 delegated the powers to the first respondent. The first respondent by proceedings dated 15.7.2003 decided that the second respondent ought to have been superannuated on 30.4.2002 and the extension of time till 31.5.2002 without permission of the first respondent was not correct and therefore the order of dismissal taking effect from 31.5.2002 could not be upheld and she ought to have retired with effect from 30.4.2002. There is no indication that the 2nd respondent had taken notice of the disciplinary proceedings. Thereafter the Committee met and resolved to amend the application for approval and they forwarded a letter dated 17.7.2003 amending the request to grant approval for dismissal from 30.4.2003. The respondents rejected it by saying that there is no possibility of revising the request. This Court after considering the abovesaid contentions had held that the impugned order is devoid of reasons for declining to grant approval except to state that the age of superannuation has passed and held the impugned order being unsustainable and therefore it was quashed.
32. In the instant case, admittedly the appellant has dismissed the 4th respondents without applying or obtaining approval from the Competent Authority as per Section 19(1) and 19(2) of the Act which is mandatory and therefore the above facts of the case are not applicable to the present case and not helpful to the appellant.
33. As already discussed earlier, the appellant has dismissed the 4th respondents herein who are fourth respondent in both appeals without applying for prior approval from the competent authority under Section 19(1) and (2) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and as per several decisions cited on the side of the respondents, the abovesaid approval from the competent authority is mandatory and therefore the dismissal orders passed on 1.10.2011 by college committee and served to fourth and fifth respondents on 2.10.2011 are illegal orders and therefore the impugned orders passed by the respondents 3 and 2 in Na.Ka.No.5563/A3/2011 dated 4.10.2011 and Na.Ka.No.30702/F3/2011 dated 31.10.2011 respectively are valid in law, as rightly contended by the learned counsel for the respondents. Therefore, the learned single Judge has also discussed in detail about the provisions and also considered various reported decisions and correctly held that the impugned orders passed by the respondents 2 and 3 are valid in law.
34. At the time of argument, the learned counsel for the appellant has stated that the charges against 4th respondent in both appeals are grave in nature and several charges have been proved by sufficient oral and documentary evidence and the College Committee reserved right to proceed further since the criminal cases are pending before the competent criminal court and await the outcome of the criminal court finding and also reserved its right to deal with separately on the basis of earlier charge memo dated 5.8.2010 and therefore if the 4th respondent in both writ appeals are permitted to join duty, the appellant college will suffer and therefore to save the students and staff of the college prayed for setting aside the proceedings of the respondents 3 and 2 and also for setting aside the dismissal order of the learned single Judge and for direction to respondents 2 and 3 to grant approval to the orders passed by the College Committee.
35. Per contra, the learned counsel for the 4th respondent in both the appeals would seriously oppose the submissions so made on the ground that in the event of such liberty being given to the College Committee to approach the authority concerned for approval, the same amounts to revival of illegal orders of termination which are already set aside. The learned counsel for the 4th respondent in both the appeals would seek to call in aid the observation of the Division Bench of this Court in the decision reported in 2002(4) CTC 129 (RV Thevar Memorial Girls High School Vs. The Director of School Education, Madras and others) in support of such contention.
36.On the contrary, the learned counsel for the Management by relying upon the unreported Division Bench judgments of our High Court, dated 06.08.2009, in W.A.No.704 of 2008 (N.K.T.National College of Education for Women, rep. by Secretary Vs. Joint Director of Collegiate Education, Chennai) and dated 29.11.2010 in W.A.No.642 of 2010 and W.P.(MD).No.12304 of 2010 (Dr.P.Murphy Alexander Vs.Director of Collegiate Education, Chennai and others) would seriously argue that the orders so passed by the competent authority are only upon the representations given by the individuals and the teachers' association, and not upon the representation given by the Management for approval. It is also contended that the impugned orders refusing to grant approval are passed solely on the ground of want of approval and not on merits by going into the correctness of findings of the disciplinary authority and the quantum of proposed punishment of termination for the charges proven, as such the failure of the authority concerned to pass detailed orders with reasons for disagreeing with the finding of the disciplinary authority and disagreeing with nature and quantum of the proposed punishment are not in accordance with law and amounts to failure on the part of the authority concerned to exercise jurisdiction vested with them, warranting direction to the competent authority to dispose of the representations of the Management for approval on merits.
37. This Court finds bona fide in such contention raised on the side of the Management. It may be true that the Division Bench of this Court in the reported judgment in 2002 (4) CTC 129 was against granting fresh opportunity to the School Management to proceed with the matter in accordance with law, but the decision made therein is not applicable to the facts of the present case which is distinguishable. In the reported case decided by the Division Bench no enquiry was initiated and no enquiry report holding the charges as proved against the delinquent was available. But the staff was terminated from service. Pending appeal against the order of termination the staff absented herself and the Management treated the same as vacancy and filled up the vacancy and the fresh appointment was challenged for want of approval to earlier order of termination. Under such circumstances, the High Court was pleased to observe that the order of termination is illegal and void ab initio and the same cannot be permitted to be revived.
38. Whereas in the unreported case of the Division Bench of this Court in W.A.No.704 of 2008 cited on the side of the Management disciplinary enquiry is initiated and completed and charges are held to be proved. What was challenged and set aside was the proposed punishment of termination of service without obtaining approval from the competent authority in one case and refusing to grant approval without assigning any reason in another case. In the first case show cause notice for proposed punishment was issued to the teacher concerned five months before the date of superannuation and the same was challenged by her by way of writ petition and status quo was ordered thereby further proceeding is stalled. In the meanwhile, the teacher attained superannuation. The writ petition was disposed of during 2003 and the appellant was directed to continue from the stage of second show cause notice. The Committee found the teacher's explanation unsatisfactory and wanted to dismiss her from service and sought approval from competent authority for her termination with effect from 31.5.2002, the date of her superannuation and the approval was declined mainly on the ground that the age of superannuation has passed. The Hon'ble Division Bench having found the impugned order declining to grant approval as devoid of reasons is pleased to hold it unsustainable. The Division Bench arrived at such a conclusion following the observation of the Apex Court in the judgment reported in 2003 (5) SCC 200 (Secretary, School Committee, Thiruvallur Higher Secondary School Vs. State of Tamil Nadu) arising out of the proceedings under Section 22(2) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 which is identical to Section 19(2) of the Tamil Nadu Private College (Regulations) Act 1976. The paragraph No.10 of the Apex Court judgment is extracted in paragraph 19 of our Division Bench judgment as follows:
"Though attempt was made to contend that at the stage of conclusion under Section 22(1) and 22(2) and Rule 17 (1), there is no scope for looking into the proportionality of punishment aspect, the same is clearly without any substance. What an authority is required to do at that stage is to see whether the proposed punishment is to be approved. Obviously, it has to consider whether the punishment as proposed is a proper one; otherwise there is no need for seeking its approval. The crucial words used in Sub-section (2) of Section 22 are "adequate and reasonable grounds" for the proposal. The proposal relates to dismissal, removal or reduction in rank or otherwise termination of appointment of any teacher or any other person employed in a private school. While considering whether adequate and reasonable grounds exist for giving approval, the authority is certainly required to look into the gravity of the proved charges and whether the punishment as proposed commensurates with it. Any other interpretation would make the question of approval an exercise in futility."
39. In paragraph No.20, the Division Bench of our High Court following the observation of the Supreme Court is pleased to quash the impugned order on the ground that the authority has not applied its mind to see whether the proposed punishment is to be approved, which is contrary to the observation of the Supreme Court that they should look into the gravity of the proved charges and as to whether the proposed punishment commensurates with it. It is observed that the failure to do so amounts to an exercise in futility. The Division Bench was pleased to set aside the order declining to grant approval and remit the matter back to the competent authority to consider the request for approval under Section 19(1) of the Act and exercise the discretion as required and pass orders in accordance with law by deciding independently whether the proved charges justify the particular decision given by giving due reasons for the orders.
40. The Division Bench has in the second unreported judgment W.A.No.642/2010 was pleased to allow the College Committee to proceed against the appellant on any of the specified charges in accordance with law. The order is so passed after quashing the order of termination passed without proper enquiry. In our considered view, the observation of the Division Bench of our High Court in the unreported judgments above referred to is more applicable to the facts of the present case.
41. Though the learned counsel for the 4th respondent in both the appeals herein also, at this writ appeal stage, sought to raise a plea that the disciplinary proceedings are not conducted in accordance with law, no proceedings appears to be initiated by the teachers in this regard. In the representations given by the individuals as well as the association the only ground raised against the orders of termination was the failure to obtain approval from the competent authority. The learned single judge was also declined to go into the merits of the charges and the defence put forth by the professors and restricted the scope of the enquiry in the writ petitions only regarding want of approval.
42. In the result, we are while upholding the impugned order of the learned Single Judge, thereby confirming the orders of the competent authority, inclined to give the College Committee liberty to proceed from the stage of disciplinary enquiry report in accordance with the procedure laid down under law and with further liberty given to the 4th respondent in both the appeals to raise their defence on all the grounds available to them including the manner in which disciplinary proceedings are initiated and proceeded with and also against the correctness of findings of the disciplinary authority on the charges and against the nature and quantum of proposed punishment.
43. The Writ appeals are accordingly disposed of. Consequently connected miscellaneous petitions are closed. No costs.
vks/gcg To
1. The Secretary to Government of Tamil Nadu, Higher Education Department, Secretariat, Chennai - 600 009.
2.The Director of Collegiate Education, 9th Floor, EVK Sampath Maaligai, College Road, Chennai.
3. The Regional Joint Director Race Course Road, Jamal Mohamed College Road, Tiruchirapalli.