Madras High Court
Virudhunagar S.V.N.Polytechnic ... vs A.Ramakrishnan
Author: P.N.Prakash
Bench: P.N.Prakash, R.Hemalatha
W.A.(MD) Nos.592 & 593 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
19.07.2022 02.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
W.A.(MD) No.592 of 2022
and
C.M.P.(MD) No.5015 of 2022
and
W.A.(MD) No.593 of 2022
and
C.M.P.(MD) Nos.5010 & 5012 of 2022
W.A.(MD) No.592 of 2022:
1.Virudhunagar S.V.N.Polytechnic College
rep.by its Chairman
Virudhunagar-626 001
2.The Principal
Virudhunagar S.V.N.Polytechnic College
Virudhunagar-626 001 ... Appellants
-vs-
1.A.Ramakrishnan
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W.A.(MD) Nos.592 & 593 of 2022
2.The Commissioner
Directorate of Technical Education
Guindy, Chennai-600 025 ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 31.01.2022, passed in W.P.(MD) No.4933 of 2014, on the file of
this Court.
For Appellants : Mr.G.Prabhu Rajadurai
for Mr.G.Mariappan
For Respondents : Mr.R.Thangasamy for R1
Mr.S.Shaji Bino
Special Government Pleader for R2
W.A.(MD) No.593 of 2022:
The Management
Virudhunagar S.Vellaichamy Nadar
Polytechnic College, Virudhunagar
represented through its Chairman ... Appellant
-vs-
1.The Commissioner of Technical Education
Guindy, Chennai-600 025
2.A.Ramakrishnan ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 31.01.2022, passed in W.P.(MD) No.7850 of 2014, on the file of
this Court.
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W.A.(MD) Nos.592 & 593 of 2022
For Appellants : Mr.G.Prabhu Rajadurai
for Mr.G.Mariappan
For Respondents : Mr.S.Shaji Bino
Special Government Pleader for R1
Mr.R.Thangasamy for R2
COMMON JUDGMENT
P.N.PRAKASH, J.
Ramakrishnan, one of the respondents in these writ appeals, was working as a Senior Chemistry Lecturer in Virudhunagar S.V.N.Polytechnic College (for brevity, “the College”), which is a Government Aided College and falls within the control of the Directorate of Technical Education.
2. During March, 2010, some students, who were doing first year diploma course, submitted complaints to the Management of the College, through their respective parents, that Ramakrishnan had awarded zero marks in the internal assessment for the assignments that were submitted to him. Subsequently, it was found in the log book that the marks that were initially awarded by Ramakrishnan have been corrected. In this regard, explanation was called for from Ramakrishnan, for which, he gave a letter, dated _______________ Page 3 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 09.04.2010, to the Principal of the College stating that he had awarded zero marks to those students, who had not submitted their assignments within the stipulated time and that he had marked absent for those students, who had not submitted their assignments at all. However, the Head of the Department advised Ramakrishnan that the life of the students would be in peril, if he does not give marks for the internal assessment and therefore, he gave marks for the assignments that were submitted by the students even after expiry of the stipulated time. The explanation offered by Ramakrishnan was not accepted by the Management. Ramakrishnan was placed under suspension on 12.05.2010 by the proceedings of the Chairman of the College. Ramakrishnan gave a letter dated 21.05.2010 for his voluntary retirement, on which, the Chairman has endorsed in Tamil “jw;fhypf gzpePf;fk; tpyf;fg;gLfpwJ. VRS fy;Yhhp FGtpd; ghprPyidf;F”. Ramakrishnan was called for an oral enquiry on 03.06.2010 by the Secretary of the College. He appeared for the oral enquiry and took the same stand. Since the Management of the College was intending to initiate disciplinary proceedings against him, Ramakrishnan gave a letter dated 07.07.2010 withdrawing the letter for voluntary retirement. However, he was placed under suspension again on 16.07.2010 by the Chairman of the College.
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3. The Chairman of the College, by proceedings dated 07.01.2011, nominated one Mr.G.Arunachalam, B.Sc., B.L., Advocate, as Enquiry Officer and the proceedings contained the following charge:
“'ck; kPjhd xGA;F eltof;if tprhuizf;F cl;gLj;jg;gl;Ls;s 08-04-2010 Bjjpapl;l bkBkh kw;Wk;
22-04-2010k; Bjjpa Fwpg;ghizapd; kPjhd Fw;wr;rhl;Lf;fspd; rhl;Liu (Framing of charges) gpd;tUkhW:
ekJ ghypblf;dpf; fy;Yhhpapy; Btjpapay; gphptpy; KJepiy tphpt[iuahsuhfg; gzpg[hpe;J tUk; ePh; guhkhpf;Fk; Log Book-y; (Internal Assessment Record) 2009-2010k; Mz;L 'B', 'C' and 'E' Batch-fspy; Engineering Chemistry-II ghlg; gphptpy; Internal Assessment (Assignment Marks I, II, III, Periodical Test Marks I, II, Model Test-I, Attendance Marks) khh;f; &pl;oy; System Administrator gphpt[f;F xt;bthU khjKk; khzth;fSf;F SMS mDg;g[tjw;fhf Kjy;th; kw;Wk; Jiwj;jiyth; ifbahg;gkpl;L bfhLj;j gl;oaypd;go SMS =Kyk; bjhptpf;fg;gl;Ls;sJ. mjd; gpd;dh; 2009-2010 nuz;lhk; gUt xl;L bkhj;j Internal Assessment Mark- fis Cell Office-f;F mDg;g[k; Kd;dh; ckJ tpUg;gk; Bghy; Btz;oa khzth;fSf;F kjpg;bgz;fis Tl;oa[k; Btz;lhj khzth;fSf;F kjpg;bgz;fis Fiwj;Jk; Internal Assessment Mark Sheet jpUj;jpa[k; khw;wpa[k; mDg;gp nUf;fpwPh;. njd; tpisthf khzth;fs; kw;Wk;
_______________ Page 5 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 bgw;Bwhh;fspd; kj;jpapy; FHg;gKk; fy;Yhhpapd; ew;bgaUf;F fsA;fk; Vw;gLj;jpapUf;fpwPh;.” The annexure to the said charge proceedings contained the list of witnesses and the relied upon documents.
4. Ramakrishnan sent a communication dated 11.01.2011 to the Chairman of the College requesting for copies of document Nos.9 to 16 referred to in the charge proceedings dated 07.01.2011. However, by letter dated 14.01.2011, the Chairman of the College informed Ramakrishnan that he can peruse the documents in the presence of the College Principal. Ramakrishnan addressed a letter dated 27.01.2011 to the Enquiry Officer requesting him to direct the Management of the College to serve copies of the documents and the rules relating to the departmental proceedings. To this letter, the Chairman of the College sent a communication dated 05.02.2011 reiterating that the documents can be perused in the presence of the College Principal and as regards the rules, photocopy of the relevant pages of the rules were furnished to him. Ramakrishnan once again addressed a letter dated 17.02.2011 to the Enquiry Officer to serve copies of the complaints that were given by the six students, for which, a reply dated 24.02.2011 was sent by the Chairman.
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5. We find that for all the communications that were sent by Ramakrishnan to the Enquiry Officer, the Chairman of the College was replying to them.
6. Ramakrishnan was paid 50% of his salary as subsistence allowance as he was under suspension, but the same was reduced to 25% from November, 2010 onwards. Ramakrishnan appeared before the Enquiry Officer on 19.03.2011 and gave a letter seeking copies of documents from the Management. It is his further allegation that the Enquiry Officer stated that the enquiry cannot be conducted, left the venue without giving any further date. These allegations were levelled by Ramakrishnan in his letter dated 20.03.2011 addressed to the Chairman of the College, for which the Chairman sent a letter dated 05.04.2011 refuting these allegations. Ultimately, the Enquiry Officer proceeded with the enquiry ex parte and by a report dated 23.05.2011 held that the charges against Ramakrishnan stood proved. A copy of the enquiry report dated 23.05.2011 was furnished to Ramakrishnan by the Chairman of the College by letter dated 06.06.2011, for which, Ramakrishnan sent a reply dated 23.06.2011 alleging that the Management had unilaterally reduced the subsistence allowance from 50% to 25%, which is illegal. _______________ Page 7 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022
7. Ramakrishnan was dismissed from service on 16.07.2010. He preferred a statutory appeal before the Commissioner of Technical Education, Chennai, who, by order dated 11.01.2014, set aside the order of punishment and issued certain consequential directions. It is pertinent to extract the operative portion of the order dated 11.01.2014:
“NOW, THEREFORE, in exercise of the powers conferred under Article 15 of the said Grants-in-Aid- Code, the Commissioner of Technical Education, Chennai, hereby sets aside the order of the dismissal from service imposed on Thiru.A.Ramakrishnan in the reference first read above, on the following grounds-
(i) that the appellant's representation raising certain points / objections / clarifications addressed to the Lawyer appointed to conduct the enquiry, had been dealt with by the Chairman of the Institution himself, which is not proper (The enquiry office himself ought to deal, independently, with the representations made by the individual);
(ii) that the action of the Chairman in declining the appellant's plea to engage the services of a lawyer on his side during the course of the enquiry, is not sustainable especially when the enquiry had been conducted by a lawyer and _______________ Page 8 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022
(iii) that the order of dismissal from service could not tae retrospective effect from the date of suspension, as passed by the Chairman.
2) Consequently the case is remitted back with a direction to conduct a fresh enquiry duly adhering to appropriate procedure, as expeditiously as possible.
3) Pending finalisation of the fresh enquiry referred to above, Thiru.A.Ramakrishnan would be deemed to have been in continued suspension as and from the date of the order of his dismissal.”
8. Aggrieved by the order dated 11.01.2014, the Management of the College filed a writ petition in W.P.(MD) No.7850 of 2014 and at the time of admission of the writ petition, a learned Single Judge stayed the order dated 11.01.2014. Ramakrishnan filed W.P.(MD) No.4933 of 2014 seeking subsistence allowance. Both writ petitions were heard together by a learned Single Judge of this Court and by a common order dated 31.01.2022, W.P. (MD) No.4933 of 2014 filed by Ramakrishnan was allowed and W.P.(MD) No. 7850 of 2014 filed by the Management of the College was dismissed. It may be relevant to extract the operative portion of the common order dated 31.01.2022:
_______________ Page 9 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 '14.As far as the writ petition in W.P.(MD)No.4933 of 2014 is allowed, the impugned order dated 27.06.2011 is set aside and consequently the management is directed to pay 75% of subsistence allowance along with arrears within a period of three weeks from the date of receipt of the copy of the order.
15.As far as the W.P.(MD)No.7850 of 2014 is concerned the writ petition is dismissed. The management is directed to conduct the denova enquiry after giving all the documents requested by the delinquent, thereafter grant opportunity to the delinquent by adhering to the principles of Natural Justice and thereafter pass an order. The delinquent is directed to cooperate with the enquiry. The said exercise shall be carried out within a period of six months from the date of receipt of the copy of the order. No costs. Consequently, the connected miscellaneous petition is closed.”
9. Challenging the same, the College is before us in these two writ appeals.
10. Heard Mr.G.Prabhu Rajadurai, learned counsel appearing for Mr.G.Mariappan, learned counsel on record for the College;
_______________ Page 10 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 Mr.R.Thangasamy, learned counsel appearing for Ramakrishnan and Mr.S.Shaji Bino, learned Special Government Pleader, appearing for the Directorate of Technical Education.
11. Mr.G.Prabhu Rajadurai attacked the appellate order dated 11.01.2014 that was passed by the Commissioner of Technical Education on the appeal that was preferred by Ramakrishnan against his dismissal from service and submitted that the Appellate Authority ought not to have set aside the order of dismissal in the teeth of the conduct of Ramakrishnan in not participating in the enquiry proceedings.
12. Since Mr.G.Prabhu Rajadurai strenuously justified the enquiry proceedings and the order of dismissal, we were forced to go into the validity of the same. To recapitulate, the complaints against Ramakrishnan were that he had awarded zero marks to some students for their internal assignments. However, the charge that was framed against him states that, Ramakrishnan had corrected the internal assignment marks in the log book by giving more marks to some students, who were dear to him and less marks to some students, whom he did not like.
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13. Strangely, the charge does not give the name of any students nor the marks that he is supposed to have altered in the log book. When we posed this question to Mr.Prabhu Rajadurai, he contended that the charge is essentially based on the correction in the log book. If that is so, then, Ramakrishnan should have been furnished with a copy of the log book, which he had been asking from the Management all along. The relevant entries from the log book were furnished to us across the bar and we perused the same. When the Management could produce the copy of the same before us, it could have easily been furnished to Ramakrishnan. To be noted, the charge was essentially predicated on it.
14. We carefully perused the Enquiry Officer's report dated 23.05.2011. Even in the said report, it is not stated who were given more marks and who were given less marks. The Enquiry Officer has given a finding that there are alterations in the log book and therefore, the charges have been proved. From the inception, Ramakrishnan was admitting that he had given zero marks to the students, who had not submitted their assignments in time and marked absent for the students, who had not submitted their assignments at all. At the instance of the Head of the Department, he had to change the marks in the log book keeping in mind the _______________ Page 12 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 future of the students. In other words, Ramakrishnan had not denied that he had corrected the log book, but had only stated that for those students to whom he had given zero marks and marked absent, he had corrected their marks at the instance of the Head of the Department. If he had been furnished with a copy of the log book, he could have explained to the Enquiry Officer. In the context of the admission made by Ramakrishnan that he had corrected the log book, it assumes significance whether he had corrected marks in favour of some students and disfavour of others. That is exactly what the charge also states. However, the charge does not name the students for whom Ramakrishnan had shown favour and also does not name the students, who had fallen from Ramakrishnan's grace. Most importantly, we find that for all the communications that were addressed by Ramakrishnan to the Enquiry Officer, it was the Management of the College that was replying and not the Enquiry Officer. When an Enquiry Officer was appointed and the documents were placed before him, it is for him to decide as to how the proceedings should go on and not the Management. In this case, the Management appears to have called the shots and as rightly observed by the Commissioner of Technical Education (Appellate Authority) in his order dated 11.01.2014, the said order had not completely exonerated Ramakrishnan and instead, it had only ordered a fresh enquiry duly adhering to the appropriate _______________ Page 13 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 procedures as expeditiously as possible. In fact, the Appellate Authority, while setting aside the order of dismissal, had not directed the Management to reinstate Ramakrishnan with backwages. On the contrary, the Appellate Authority has stated that Ramakrishnan would be deemed to have been in continuous suspension as from the date of the order of dismissal.
15. Mr.G.Prabhu Rajadurai attacked this part of the order by placing reliance upon the judgment of the Supreme Court in Managing Director, ECIL vs. B.Karunakar [(1995) 4 SCC 727], which has been quoted with approval in U.P.State Textile Corpn. Ltd. vs. P.C.Chaturvedi and others [(2005) 8 SCC 211] and U.P.State Spinning Co. Ltd. vs. R.S.Pandey and another [(2005) 8 SCC 264] and contended that the issue of backwages is not automatic and that has to be decided by the Management on a case to case basis.
16. We are afraid, the ruling referred to by Mr.G.Prabhu Rajadurai would be of no avail in this case, because, Ramakrishnan was never demanding reinstatment with backwages. He had not challenged the order dated 11.01.2014 that was passed by the appellate authority and it was the Management of the College, which had challenged the same. Ramakrishnan _______________ Page 14 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 was only asking for payment of subsistence allowance, which was unjustly reduced from 50% to 25% by the Management without even hearing him. Even in W.P.(MD) No.4933 of 2014, Ramakrishnan had asked only for payment of arrears of subsistence allowance at the rate of 75%. Thus, it is obvious that the Management had reduced the subsistence allowance from 50% to 25% unilaterally, proceeded with the enquiry ex parte and dismissed Ramakrishnan from service, which, in our opinion is not legally sustainable.
17. The Enquiry Officer could have easily furnished a copy of the log book to Ramakrishnan. In this regard, it may be profitable to refer to the following observations of the Supreme Court in Committee of Management, Kisan Degree College vs. Shambhu Saran Pandey and others [(1995) 1 SCC 404]:
“It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It _______________ Page 15 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022 would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural justice.”
18. When Ramakrishnan made a representation to the Enquiry Officer for supply of the log book, the latter could have either supplied the copy of the log book or recorded a finding that since the log book is voluminous, a copy of the same cannot be furnished to Ramakrishnan and that he could peruse the same in his (Enquiry Officer) office. This was not done by the Enquiry Officer and instead, the Management was replying to the request of Ramakrishnan.
19. Mr.G.Prabhu Rajadurai contended that the College being an aided College, it may not be able to pay the arrears of subsistence allowance. We are afraid, paucity of funds cannot be a ground to deny subsistence allowance to Ramakrishnan for the period from the date of his dismissal from service, namely, 16.07.2010 till the date of his superannuation. The Management has to pay arrears of subsistence allowance and claim it from the Government, if the rules permit, as the College is an aided College. _______________ Page 16 of 18 https://www.mhc.tn.gov.in/judis W.A.(MD) Nos.592 & 593 of 2022
20. In the result, we find no merits in the present writ appeals and the same are accordingly dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[P.N.P., J.] [R.H., J.]
02.08.2022
Index : Yes / No
Internet : Yes / No
krk
To:
The Commissioner of Technical Education,
Guindy, Chennai-600 025.
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W.A.(MD) Nos.592 & 593 of 2022
P.N.PRAKASH, J.
and
R.HEMALATHA, J.
krk
COMMON JUDGMENT
IN
W.A.(MD) No.592 of 2022
and
C.M.P.(MD) No.5015 of 2022
and
W.A.(MD) No.593 of 2022
and
C.M.P.(MD) Nos.5010 & 5012 of 2022
02.08.2022
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