Madras High Court
A.Geetha vs The Chief Educational Officer on 5 October, 2021
Author: S.S. Sundar
Bench: S.S. Sundar
W.P.(MD).Nos.20879 to 20881 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).Nos.20879,20880 and 20881 of 2017
and
W.M.P.(MD).Nos.17175,17176 and 17177 of 2017
A.Geetha ...Petitioner in all W.Ps
Vs.
1.The Chief Educational Officer,
Madurai District,
Madurai.
2.The District Educational Officer,
Madurai,
Madurai District.
3.Harveypatti High School,
Rep. by its Secretary/Correspondent,
Harveypatti,
Madurai – 5.
4.P.Muthuselvaraj ...Respondents in all W.Ps
Prayer in W.P.(MD).No.20879 of 2017: Writ Petition filed under Article 226
of the Constitution of India, for the issuance of Writ of Certiorari, to call for the
records pertaining to the impugned undated suspension order passed by the
third respondent placing the petitioner under suspension with effect from
06.10.2017, quash the same.
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W.P.(MD).Nos.20879 to 20881 of 2017
Prayer in W.P.(MD).No.20880 of 2017: Writ Petition filed under Article 226
of the Constitution of India, for the issuance of Writ of Certiorari, to call for the
records pertaining to the undated impugned retention order passed by the third
respondent, served on the petitioner on 01.11.2017, retaining her in service in
the post of B.T.Assistant (History), quash the same.
Prayer in W.P.(MD).No.20881 of 2017: Writ Petition filed under Article 226
of the Constitution of India, for the issuance of Writ of Certiorarified
Mandamus, to call for the records pertaining to the impugned undated charge
memo passed by the third respondent, served on the petitioner on 01.11.2017,
quash the same and consequently direct the respondents to settle terminal
benefits payable to the petitioner together with interest at the rate of 18% per
annum payable from 31.10.2017 to till the date on which the above terminal
benefits are settled to the petitioner.
For Petitioner : Mr.C.K.Chandrasekar
( In all Writ Petitions)
For R1 & R2 : Mr.M.Linga Durai
Government Advocate
For R3 : Mr.K.R.Laxman
For R4 : Mr.V.Ilan Chezhiyan
(In all Writ Petitions)
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W.P.(MD).Nos.20879 to 20881 of 2017
COMMON ORDER
All the Writ Petitions are filed by the same petitioner. Since the issues arise for consideration in all the writ petitions are common, all the Writ Petitions are taken up together and disposed of by this common order.
2.Writ Petition in W.P.(MD).No.20879 of 2017 is filed for issuance of a Writ of Certiorari, to quash the impugned undated suspension order passed by the third respondent placing the petitioner under suspension with effect from 06.10.2017.
3.Writ Petition in W.P.(MD).No.20880 of 2017 is filed for issuance of a Writ of Certiorari, to quash the undated impugned retention order passed by the third respondent, served on the petitioner on 01.11.2017, retaining her in service in the post of B.T.Assistant (History).
4.Writ petition in W.P.(MD).No.20881 of 2017 is filed for issuance of a Writ of Certiorarified Mandamus, to quash the impugned undated charge memo issued by the third respondent and served on the petitioner on 01.11.2017 and consequently, to direct the respondents to settle terminal benefits payable to the petitioner together with interest at the rate of 18% per https://www.mhc.tn.gov.in/judis/ 3/24 W.P.(MD).Nos.20879 to 20881 of 2017 annum payable from 31.10.2017 to till the date on which the above terminal benefits are settled to the petitioner.
5.The brief facts that are necessary for disposal of all the writ petitions are as follows.
The petitioner joined as a Secondary Grade Teacher in the third respondent school on 02.08.1982 and she was appointed as B.T Assistant. Since the post of Headmaster fell vacant, she was directed to take charge of the post of Headmistress from 08.06.1998 to 01.10.2012. The fourth respondent became the Correspondent of the school in the year 2005. By an order dated 01.10.2012, the petitioner was relieved from the post of Headmistress and was permitted to continue in service as B.T Assistant in the third respondent school. Thereafter, a charge memo was issued to the petitioner alleging that she has failed to hand-over income and expenditure accounts to the Management. The third respondent, after holding an enquiry, through an officer appointed by the management, dismissed the petitioner from service. However, the first and second respondents declined to grant approval for the dismissal of the petitioner on the grounds that the allegations against the petitioner that she failed to hand over the accounts and the charges are not in relation to the petitioner's responsibility as she was expected to perform her duties only in https://www.mhc.tn.gov.in/judis/ 4/24 W.P.(MD).Nos.20879 to 20881 of 2017 relation to the academic side and that the whole proceedings were completed without providing sufficient opportunity to the petitioner. The second respondent, after declining to grant approval, permitted the management to continue the disciplinary enquiry. The first respondent also dismissed the appeal without reference to the permission granted by the second respondent to proceed afresh. In the meanwhile, the petitioner attained the age of superannuation on 31.10.2017.
6.Thereafter, the petitioner was suspended by the order impugned in the Writ petition in W.P(MD)No.20879 of 2017. The undated retention order served on 01.11.2017 impugned in the Writ Petition in W.P.(MD) No.20880 of 2017, retaining the petitioner in service was issued by the third respondent. Simultaneously the undated charge memo was also issued by the third respondent and served on the petitioner on 01.11.2017. Challenging the order of suspension, the order of retention and the charge memo issued to the petitioner, all the three writ petitions are filed by the petitioner. In the third writ petition in W.P.(MD)No.20881 of 2017, the prayer is also for issuing a direction to settle the terminal benefits with interest.
https://www.mhc.tn.gov.in/judis/ 5/24 W.P.(MD).Nos.20879 to 20881 of 2017
7.The petitioner was not allowed to retire from service by the third respondent on the ground that fresh charge memo has been issued wherein it was alleged that the petitioner had failed to hand over the accounts relating to the collection of Parent Teacher Association Fee and School Fees for the academic years 2006-2007 to 2011- 2012. The prime contention of the petitioner before this Court is that the Tamil Nadu Private Schools (Regulation) Act and Rules framed thereunder do not provide for any power or authority to the third respondent management to initiate or continue the departmental proceedings afresh after the retirement of a teacher. It was also submitted that the impugned order of suspension, retention and the charge memo are without any jurisdiction as the petitioner retired on 31.10.2017.
8.Before considering the submissions made by the learned counsel on either side, it is relevant to consider a few facts which are not in dispute. The allegations that are made against the petitioner by the Secretary/fourth respondent earlier and now are same. The contents of show cause notice (charge memo), dated 23.08.2012 that was issued to the petitioner earlier are extracted hereunder:
“ehd; gs;sp khzt, khztpah;fs; khh;f;Ffs;
mDg;gr; nrhy;yp gy jlit nrhy;yp
gadpy;iy. ,jw;F Kd;G 14.06.2012 Njjp gztuT
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W.P.(MD).Nos.20879 to 20881 of 2017
nryT fzf;Ffis mDg;gr; nrhy;ypAk;,
mDg;gtpy;iy. etk;gh; 2011ypUe;J [dthp, gpg;uthp 2012Yk; gj;jhk; tFg;G fzf;fpy; ftdk; nrYj;jr; nrhd;Ndd;. mij ePq;fs; nra;ahjjhy; 2012y; gj;jhk;
tFg;G khzth;fs; fzf;F ghlj;jpy;; Njh;;r;rp ngwtpy;iy. rl;lj;jpw;F Gwk;ghf murhq;fk; jkpo;
kPbak; khzth;fSf;F nfhLj;j Mrphpiafis 6, 7, 8k; tFg;G Mq;fpy top gapw;rp tFg;GfSf;F mDg;g Ntz;lhk; vd;W nrhy;ypAk; mDg;gp cs;sPh;fs;. ,t;thW vd;d nrhd;dhYk; jd;dpr;irahf gs;spia elj;JfpwPh;fs;. ,ijnay;yhk; njhpe;J fyhuhzp mth;fsplk; 8, 9, 10-Mk; tFg;GfSf;F khh;f;Ffs; thq;fp mDg;g nrhd;dhy; mth;fis kpul;b gs;sp nrayhsiu vd;dplk; Ngrr; nrhy; vd;W nrhy;yp, khh;f;Ffs; Ngg;gh;fis thq;fp jhq;fs;
itj;Jf; nfhz;Bh;fs;. Mrphpia yhtz;ahit
fzf;fhsuhf gad;gLj;j Ntz;lhk; vd;W gyjlit
nrhy;ypAk; nra;Js;sPh;fs;. ,itfSf;F jFe;j
gjpy; ,dp 15 ehl;fspy; Njit vd Nfl;fg;gLfpwJ.”
9.The petitioner submitted her explanation to the show cause notice. Thereafter, by communication dated 17.09.2012, the third respondent relieved the petitioner from the post of Headmistress. Following the communication relieving the petitioner from the post of Headmistress, another show cause notice was issued to the petitioner directing the petitioner to give her explanation to the specific allegation found in the said communication. The allegations made against the petitioner in the show cause notice are as follows:
https://www.mhc.tn.gov.in/judis/ 7/24 W.P.(MD).Nos.20879 to 20881 of 2017 “1.,Jehs; tiu 2 gf;fq;fspy; 08.09.2012 Njjp Kjy; 29.09.2012 tiu t#yhd &.56,000/- kl;Lk; fzf;F nfhLj;J tpl;L ghf;fp ve;j fzf;Fk; nfhLf;fg;gltpy;iy. gs;sp jiyik Mrphpiaahf ,Ue;j ePq;fs; jhd; fzf;Ffis itj;jpUf;f Ntz;Lk; vd;W nrhy;ypAk;, Nfl;Lk; ,J ehs; tiu KOikahd fzf;F nfhLf;ftpy;iy.
2.ePq;fs; fzf;Ffis rkh;g;gpf;fhjjhy; 6, 7, 8 Mq;fpy top tFg;GfSf;F fl;lzk; KbT nra;a Kbahky; ngw;Nwhh;fs; fnyf;lhplk; kDf;fs; nfhLj;J, ek; gs;spia &.2000 xU tUlj;jpw;F xt;nthU khzthplkpUe;J fl;lzkhf t#y; nra;a DEO vOjpajhy; ey;y rk;gsk; nfhLj;J jukhd Mrphpah;fis gzpakh;j;j Kbahky; nra;J, khzth;fSf;Fk;, Nknd[;nkzl;f;Fk; njhy;iyia nfhLj;J cs;sPh;fs;.
3.rl;l tpNuhjkhf xt;nthU MrphpahplKk; &.
2700 thq;fpajhf vdf;F fbjq;fs; te;Js;sd. mit gw;wpa tpguk; vdf;F vOjtpy;iy.
4.gs;spapy; khzth;fs; Nrh;;f;if msTf;F mjpfkhf, Nrh;f;f Ntz;lhk; vd;W ehd; nrhy;ypAk;
vd;Dila mDkjpapd;wp nra;Js;sPh;fs;. XU tFg;gpy; 68 khzth;fs; vd;dplk; Nfl;fhky; khzth; Nrh;f;if nra;Js;sPh;fs;. vjph;fhy Kd; Vw;ghLfs; ,y;yhky;
khzth;fis Nrh;j;Js;sPh;fs; ePq;fs; jd;dpr;irahf
Kd;Ndw;ghLfs; ,y;yhky; nra;J te;jhy;
Nknd[;nkzl;f;Fk;, khzth;fSf;Fk; njhy;iyfis
nfhLj;Js;sPh;fs;.
5.,uz;L Mrphpiafspd; Cjpa cah;T
fbjq;fs; Vg;uypy; mDg;gpaij DEO mYtyfj;jpypUe;J tutpy;iy vd;W ngha; nrhy;yp mth;fs; DEO https://www.mhc.tn.gov.in/judis/ 8/24 W.P.(MD).Nos.20879 to 20881 of 2017 mYtyfj;jpypUe;J Vg;uypy; mDkjp mspj;jJ njhpe;J Nfl;l gpd;Ng jhq;fs; mij mf;Nlhgh; khjk;
nfhLj;jPh;fs;.
6.jpUkjp.yhtz;ah, Mrphpia mth;fis mf;fTz;lz;l; Mf Ntiy nra;a Ntz;lhnkd;W ehd;
nrhy;ypAk; mf;fTz;lz;l; Mf gad;gLj;jptpl;L
ngha;ahd jftiyf; nfhLj;jPh;fs;.
7.jkpo; top khzth;fSf;F nfhLf;fg;gl;l
Mrphpah;fis jkpo;topia tpl;L tpl;L Mq;fpy top
khzth;fSf;F ghlk; fw;gpf;f Ntz;lhnkd;W nrhy;ypAk;, Mq;fpy top khzth;fSf;F mDg;gp tpl;L ngha;ahd fbjj;ij vOjpdPh;fs;.
8.jpUkjp.fyh Mrphpia mth;fspd; rh;tP];
hp[p];lhpy; ehd; ifnaOj;J Nghl;L mDg;gpaij njhiyj;J tpl;L ,uz;lhtJ rh;tP]; hp[p];liu mDg;gp vd;dplk; ifnaOj;J thq;fpdPh;fs;.
10.Against the specific charges found in the show cause notices/memos, the petitioner submitted an explanation on 06.11.2012, with reference to each charge. Thereafter, second show cause notice was issued on the basis of the report of the enquiry officer. Though it is stated by the learned counsel for the petitioner that no enquiry report was furnished to the petitioner along with the second show cause notice, the learned counsel for the fourth respondent has produced the enquiry report before this Court. Thereafter, the third respondent submitted a petition before the second respondent on 26.04.2013 seeking approval for the dismissal of the petitioner from service. The request of the fourth respondent by his communication dated 26.01.2013 https://www.mhc.tn.gov.in/judis/ 9/24 W.P.(MD).Nos.20879 to 20881 of 2017 was rejected by the second respondent for several reasons. The defect in the enquiry report itself was tabulated. However, the fourth respondent was directed to proceed with the disciplinary action or continued the disciplinary action without relieving the petitioner from service. The order of the second respondent was challenged by the fourth respondent before the first respondent. The first respondent also rejected the appeal. The operative portion of the order of the first respondent is extracted hereunder:
“vdNt fPo;f;fz;l fhuzq;fSf;fhf gs;spr;
nrayhpd; eltbf;ifapid Vw;f ,ayhJ vd
njhptpf;fg;gLfpwJ.
1.jiyik Mrphpah;(nghWg;G) vd;gth; vd;ndd;d
tifapy; Fw;wr;rhl;LfSf;F njhlh;Gilath; vd;gij
tiuaiw nra;J eph;thfk; tpsf;fk; Nfl;L, mt;tg;NghJ eltbf;if Nkw;nfhs;shky; ,g;gs;sp cah;epiyg; gs;spahd ehspypUe;J jw;NghJ tiuapyhd nray;ghLfis gs;spr; nrayh; chpa fhyj;jpy; mt;tg;NghJ fz;fhzpf;fj;
jtwpAs;shh;. jw;NghJ, xl;L nkhj;jkhf jiyik Mrphpah; (nghWg;G) jpUkjp.M.fPjh vd;gth; kPJ Fiw $WtijAk;....
ngha; nrhd;dhh; vd;W kpfr;rhjuhzkhd nrhy;iy nghpJgLj;jpf; $WtijAk; jtph;j;J, chpa Mjhuq;fSld; njspthff; Fw;wk; Rkj;jg;gltpy;iy.
2.Fw;wr;rhl;Lfs; Fwpg;ghiz xt;nthU Fw;wr;rhl;Lf;Fk; Njitahd mbg;gil Mjhuq;fSld;
toq;;fp Kiwahf Nkw;nfhs;sg;gltpy;iy.
3.Fw;wr;rhl;Lfs;, Mjhuq;fs; Kiwahf Fw;wk;rhl;lg;gl;ltUf;F toq;fhky; mtrufjpapy; tprhuiz mYtyiu epakdk; nra;J, tprhuiz nra;ag;gl;lJk;, https://www.mhc.tn.gov.in/judis/ 10/24 W.P.(MD).Nos.20879 to 20881 of 2017 rk;ge;jg;gl;l midtiuAk; tprhuizf;F cl;gLj;jhJk; Fw;wk;rhl;lg;gl;ltUf;F tprhuiz mwpf;ifapd; efy; toq;fg;glhjJk; Kiwahd eltbf;ifahf mikatpy;iy.
4.gs;spf;FO $l;lk; tpjp 14y; cs;s tpjpKiwfspd;gb chpa fhy mtfhrk; mspj;J mwptpg;Gr; nra;ag;gl;L elj;jg;gltpy;iy.
5.xOq;F eltbf;;ifapd; NghJ jkpo;ehL mq;fPfhpf;fg;gl;l jdpahh; gs;spfs; (xOq;FgLj;Jk;) tpjpfs; 1974-,y; 15d; fPohd gbtk; VII A xg;ge;j gj;jpuj;jpd; t.vz;.7,y; cs;sgb eilKiwfs;gpd;gw;wg;gltpy;iy. Kd;dhy; jiyik Mrphpah;(nghWg;G) jpUkjp.M.fPjh vd;gth;
kPJ Rkj;jg;gl;Ls;s FiwghLfs; Fwpj;J tprhuiz
mYtyh; Nkw;nfhz;l tprhuizapy; tq;fpf; fzf;Ffs;,
ngw;Nwhh; Mrphpah; fzf;Ffs; Fwpj;Jk;, Fiw $wy; ,y;yhj epiyapy; ghprPyid nra;Js;shh;. ,jpypUe;J gs;spr;
nrayUila eltbf;ifapid epiyepWj;Jk;
Kd;Ndhf;fpNyNa tprhuiz mYtyh; nray;gl;Ls;sJk;
Kiwahd tprhuiz MfhJ.
6.NkYk; mth; kPJ $wg;gl;Ls;s FiwghLfs;
gzpePf;fk; nra;tjw;Fhpa mstpy; ,y;iy.
Nkw;fz;l fhuzq;fspdhy; Kd;dhy; jiyik Mrphprah;(nghWg;G) jpUkjp.M.fPjh vd;gtiu epue;ju gzpePf;fk; nra;af;NfhUk; gs;spr; nrayhpd; KiwaPl;L tpz;zg;gj;jpid epuhfhpj;J ,jd; %yk;
Mizaplg;gLfpwJ.”
11.After the order of the first respondent by the impugned order of suspension, the petitioner was suspended from service. Thereafter, the fourth respondent passed an order of retention and again issued the charge memo https://www.mhc.tn.gov.in/judis/ 11/24 W.P.(MD).Nos.20879 to 20881 of 2017 which is impugned in the third Writ Petition viz., W.P(MD)No.20881 of 2017. It is pertinent to mention that fresh charge memo has been issued and the following charges are against the petitioner:
“Fw;wr;rhl;Lfs;
jpUkjp.m.fPjh Mrphpia mth;fs;
+hh;tpgl;o cah;epiyg; gs;spapy; jiyik Mrphpiaahf gzpaplg;bghWg;gpy; ,Ue;j fhyj;jpy; bra;j tut[ bryt[fspy; fle;j 22.08.2010-k; njjp Kjy; bjhlq;fpa Raepjp tFg;g[ khzth;fsplkpUe;J urPJ K:yk; tR{y; bra;j bjhif U:. 188000/-j;ija[k; 2006-2007 Kjy; 2011-2012 tiu PTA kw;Wk; fy;tpf;fl;lzkhf gs;sp Mrphpah;fs; K:yk; tR{y; bra;j bjhif U:.1040275/-j;ija[k; 2011-2012 Koa Raepjp rpwg;g[ fl;lzk; U:.9713/- tpiahl;L epjp U:.1163/- gs;spf; fl;lzk; U:.12000/- 01.04.2011 Kjy; 30.09.2012 Koa PTA fl;lzk; U:.41790/-a[k; tR{y; bra;j bjhif bkhj;jk; U:.1292901/-$ eph;thfj;jplk; xg;gilf;fhky; Kiwnflhf nkhroahf bray;gl;Ls;shh;.”
12.From the impugned charge memo, it is seen that the charges appear to be the same, but the facts are truncated to make a specific allegation that the petitioner has collected a sum of Rs.12,92,901/- from the students under various heads and failed to hand over the collected money to the management.
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13.The learned counsel appearing for the petitioner submitted that the entire accounts of the third respondent institution was audited by the School Education Department. From the records, the learned counsel for the petitioner able to demonstrate before this Court that there was no audit objection pending with educational department in relation to the period from 2006 to 2011. The learned counsel then submitted that the charge memo has been issued for the same set of charges, for which the earlier enquiry was held unwarranted by the first and second respondents. The charges framed originally culminated in a decision for which the fourth respondent sought approval but the approval was declined with a permission to the fourth respondent to continue the disciplinary proceedings afresh in accordance with law. It is contended by the learned counsel appearing for the petitioner that the fourth respondent filed an appeal before the Joint Director of School Education and was not successful. Thereafter initiated fresh proceedings by issuing another charge memo truncating the same allegations. The learned counsel relied upon a few judgments and referred to chain of evens to demonstrate that the whole charge was on the basis of self serving documents created by the management with ulterior motive. The learned counsel then submitted that the order of suspension, retention and charge memo are without jurisdiction. It is stated that the school teachers are governed by independent agreements signed between https://www.mhc.tn.gov.in/judis/ 13/24 W.P.(MD).Nos.20879 to 20881 of 2017 the teachers and the Secretary of the School Committee. It is stated that neither the statutory agreement contains a provision to continue the departmental enquiry after retirement nor the statute provides for continuance of disciplinary proceedings, after the retirement of the teacher. It is admitted that the petitioner attained the age of superannuation as on 31.10.2017. However, it is seen that the orders of suspension, retention and charge memo were served on the petitioner on 01.11.2017 after retirement. It is submitted that the order of retention is not authorized by law and hence, without jurisdiction, as the disciplinary proceedings cannot go on after the retirement of the petitioner. The learned counsel further submitted that the management was silent for a long time, after the first respondent dismissed the appeal as against the order rejecting the application submitted by the fourth respondent to grant approval for the dismissal of the petitioner from service. It is stated that the impugned order of suspension was issued a few days prior to the date of retirement and the order of retention and the charge memo were issued after the retirement as they were served on the petitioner after her retirement. The learned counsel then submitted that the petitioner was not even maintaining or responsible for the accounts of the institution. It is the specific case of the petitioner that she cannot be held responsible for maintaining the accounts as it was never her job neither under the statute nor as per the agreement under which she was https://www.mhc.tn.gov.in/judis/ 14/24 W.P.(MD).Nos.20879 to 20881 of 2017 employed by the third respondent. The learned counsel also pointed out a letter dated 23.02.2013 stated to have been given by one Mr.Rengaraj, who was appointed to look after the income and expenditure and the accounts in the institution. Referring to the contents of the letter, the learned counsel submitted that a person, who maintained the account, has given a statement that the income and expenditure accounts was maintained by him and that the said letter was ignored by the enquiry officer and the fourth respondent. The learned counsel submitted that the conduct of fourth respondent would clearly reveal the malafides with which the disciplinary proceedings was originally initiated by the fourth respondent.
14.The learned counsel relied upon a few judgments of the Hon'ble Supreme Court as well as the judgment of this Court, in support of his arguments. In the case of BHAGIRATHI JENA -VS- BOARD OF DIRECTORS, O.S.F.C. AND OTHERS, reported in (1999)3 SCC 666, the Hon'ble Supreme Court has held as follows:
“7.In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a https://www.mhc.tn.gov.in/judis/ 15/24 W.P.(MD).Nos.20879 to 20881 of 2017 deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95. there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
15.The learned counsel appearing for the petitioner also relied upon the judgment of the Hon'ble Supreme Court in the case of STATE BANK OF INDIA -VS- A.N.GUPTA AND OTHERS, reported in (1997)8 SCC 60 and submitted that the continuation of disciplinary proceedings was not permissible unless there is a specific provision to this effect in the relevant rules. Yet another judgment of the Hon'ble Supreme Court is relied upon to reiterate the same view. In the case of DEV PRAKASH TEWARI -VS-
U.P.COOPERATIVE INSTITUTIONAL SERVICE ROAD, LUCKNOW & ORS., reported in 2014(8)SCALE 216, the Hon'ble Supreme Court has held as follows:
“7.In view of the absence of such a provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no https://www.mhc.tn.gov.in/judis/ 16/24 W.P.(MD).Nos.20879 to 20881 of 2017 provission for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.06.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payayble to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
7.In the subsequent decision of this Court in U.P.Coop. Federation case (supra) on facts, the disciplinary proceedings against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
8.While dealing with the above case, the earlier decision in Bhagirathi Jena's case (supra) was not brought to the notice of this Court and no contention was https://www.mhc.tn.gov.in/judis/ 17/24 W.P.(MD).Nos.20879 to 20881 of 2017 raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
9.Once the appellant had retired from service on 31.03.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.”
16.The Full Bench of this Court in the case of S.ANDIYANNAN
-VS- THE JOINT REGISTRAR, COOPERATIVE SOCIETIES, MADURAI REGION, MADURAI, & ORS., reported in 2015(4)CTC 1 has held as follows:
“30. Answer to the first question referred to this Bench:
Under the Tamil Nadu Co-operative Societies Act, 1983, once an employee retired from service, there could be no authority vested with the employer for continuing any disciplinary proceeding, in the absence of relevant service Rules permitting the employer to continue the disciplinary proceeding. In other words, if there is no service Rules or bye-law of the society empowering the https://www.mhc.tn.gov.in/judis/ 18/24 W.P.(MD).Nos.20879 to 20881 of 2017 employer to continue the departmental proceeding, the employer, would have no authority to continue the departmental proceeding after the retirement of the employee.
17.The learned counsel also relied upon a few more judgments to advance his argument how the whole enquiry proceeding was unsustainable, pursuant to the first show cause notice, on the admitted facts. The earlier orders of the respondents 1 and 2 were not challenged. The main question that arise for consideration before this Court is whether the respondents 3 and 4 have jurisdiction to proceed further with disciplinary proceedings after the retirement of the petitioner. This Court is not inclined to consider the other submission of the learned counsel appearing for the petitioner regarding the legal infirmities and violation of principles of natural justice, in the first round of disciplinary proceedings which culminated in an order of termination, when the first and second respondents had refused to grant approval since the order of the respondents 1 and 2 have become final, the matter need not be adjudicated once again. To the extend that the subsequent charge memo and the retention order suffer from legal malafides, this Court is inclined to consider the irregularities in the initiation of disciplinary proceedings earlier. The learned counsel appearing for the third and fourth respondents is unable to point out any https://www.mhc.tn.gov.in/judis/ 19/24 W.P.(MD).Nos.20879 to 20881 of 2017 statutory provisions or an agreement to enable the fourth respondent to retain the petitioner in service, beyond the period of retirement. In the absence of specific provision as held by the Hon'ble Supreme Court and this Court in several judicial precedents, this Court has no other option but to accept the contention of the learned counsel appearing for the petitioner that the order of suspension, retention and undated order of charge memo served on the petitioner after the retirement are without jurisdiction and therefore, cannot be sustained on any other ground.
18.In the counter affidavit filed by the second respondent, it is seen that a specific stand is taken that there is no provision in Tamil Nadu Recognized Private Schools (Regulation) Act, 1973, and 1974 Rules, to place the petitioner under suspension beyond the date of superannuation or to retain the petitioner in service after her retirement. When there is no provision in the statute to exercise any power to initiate disciplinary proceedings after the retirement, the impugned charge memo which was issued to the petitioner immediately after the retirement are not only illegal but also suffers from malice in law which can be demonstrated by referring to the sequence of events.
https://www.mhc.tn.gov.in/judis/ 20/24 W.P.(MD).Nos.20879 to 20881 of 2017
19.The impugned order of suspension cannot be issued just before the retirement, since this Court has concluded that the disciplinary proceedings cannot be initiated against the retired teacher. It follows that the charge memo issued either on the verge of retirement or immediately after retirement are against the statute. The order of retention was also issued along with the charge memo and there is no provision to retain the petitioner after retirement. The order of suspension was issued just prior to the date of retirement in contemplation of disciplinary proceedings which commenced after retirement. For the above reasons, the petitioner is entitled to get the relief and accordingly, all the writ petitions are allowed and the orders of the fourth respondent impugned in all the writ petitions are quashed.
20.It is admitted that the petitioner retired on attaining the age of superannuation on 31.10.2017 and for the past four years, she is unable to get retirement benefits. It is admitted that the fourth respondent has not submitted the papers claiming retirement benefits due to the petitioner on account of disciplinary proceedings being initiated against her. From the gamut of facts, this Court is of the view that the impugned orders were passed mainly with an ill motive to prevent the petitioner from getting her retirement benefits as this Court is unable to find any bonafides. The contention of the learned counsel is https://www.mhc.tn.gov.in/judis/ 21/24 W.P.(MD).Nos.20879 to 20881 of 2017 that the petitioner was victimised by the fourth respondent with ill motive just to make the petitioner suffer by denying the terminal benefits, which she is entitled to immediately after the retirement. For all the reasons, the third and fourth respondents should be held liable for the delay in disbursement of retirement benefits to the petitioner and hence, personal responsibility is fixed on respondents 3 and 4 to pay interest at the rate of 18% p.a., from the date when the terminal benefits are payable to the petitioner. The petitioner has already suffered and is unable to get her retirement benefits. This Court is inclined to direct the second respondent to calculate interest for the delay in payment of pensionary benefits and other dues at the rate of 18% p.a. Upon calculating the interest, the second respondent shall direct the amount to be paid by the third and fourth respondents within a period of six weeks from the date of receipt of notice. Incase, the third and fourth respondents fail to pay the amount calculated by way of interest within the time stipulated by the second respondent, it is open to the second respondent to deduct the amount in six installments from and out of the grant-in-aid payable to the third respondent and shall make the payment to the petitioner within a period of two weeks from the date on which the money was deducted from the grant-in-aid payable to the third respondent. If there is any dispute with regard to the terminal benefits payable to the petitioner, it is desirable that the fourth respondent should also https://www.mhc.tn.gov.in/judis/ 22/24 W.P.(MD).Nos.20879 to 20881 of 2017 be given an opportunity by the second respondent before deciding the quantum of interest payable by the fourth respondent. Before a decision is taken by the second respondent towards the amount payable by the third respondent towards interest for the delayed disbursement of pensionary benefits to the petitioner, the second respondent may issue a show cause notice by giving at least 15 days time to the third respondent.
21.In view of the facts and circumstances of the case, this Court is inclined to direct the second respondent to pay the full pension calculating the entire period of petitioner's employment including the period of suspension pursuant to the disciplinary proceedings which was held to be bad. The second respondent is directed to pass appropriate orders for early disbursement of pensionary and other terminal benefits within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
05.10.2021 Index : Yes / No Internet: yes / No Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned. https://www.mhc.tn.gov.in/judis/ 23/24 W.P.(MD).Nos.20879 to 20881 of 2017 S.S. SUNDAR, J., Ns To
1.The District Collector, Tirunelveli, Tirunelveli District.
2.The Assistant Director of Panchayats(Rural) Tirunelveli, Tirunelveli District.
3.The Block Development Officer, Melanelithanallur Panchayat Union, Tirunelveli District.
W.P.(MD).Nos.20879,20880 and 20881 of 2017 and W.M.P.(MD).Nos.17175,17176 and 17177 of 2017 05.10.2021 https://www.mhc.tn.gov.in/judis/ 24/24