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Judgment
T. Raja, J.—In the present writ petitions, two of which (W.P. Nos. 9220 and 11184 of 2010) have been filed by the Head of the Department (in short HOD) of Tamil, Arulmigu Palaniandavar College of Arts and Culture, Palani, Dindigul District (hereinafter referred to as ''the College'') questioning the proceedings of the Secretary of the College in issuing the charge Memo, dated 03.07.2010, and the subsequent proceedings, dated 06.08.2010, relieving the petitioner from the post of the HOD; the other two petitions (W.P. Nos. 5524 and 3731 of 2010) by the Associate Professors of the Zoology Department of the College, seeking to set aside the proceedings of the Secretary of the College as against them in issuing the charge memos, dated 06.01.2010; and another one (W.P. No. 9208 of 2010) has been filed by the Library Assistant, challenging the impugned proceedings, dated 03.07.2010, of the same authority in issuing the charge memo dated 03.07.2010; a common ground is raised stating that it is illegal on the part of the respondent-College, which is governed by the provisions under the Tamil Nadu Private Colleges (Regulation) Act (henceforth referred to as ''the Private Colleges Act'') to extraneously invoke and adopt the provisions exclusively applicable to the Government Servants viz., Rule-17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (in short ''the TNCS Rules''), as against the petitioners/delinquent employees of the respondent-private college for whom such provisions are totally inapplicable; thereby, the impugned proceedings are rendered invalid and non-est in the eye of law.
Since in all the writ petitions, challenge is made to the charge memos except in the case of Mr. Agniputhran (petitioner in W.P. No. 11184 of 2010), who in addition to the proceedings pertaining to the charge memo also challenges the subsequent proceedings of the college committee in relieving him from the post of the HOD on the charge of sexual harassment against female students, and the issue involved being identical, they are disposed of by this Common Order.
In an endeavor to assail the impugned proceedings by which memos were issued to the respective petitioners invoking Rule-17(b) of the TNCS Rules on the allegation of insubordination, attendance irregularities, tampering with official records, etc. and in the case of petitioner-Agniputhran, one of the charges being sexual harassment against female students of the college, learned Counsels appearing for the respective petitioners made three-fold submissions, viz.,
a) The respondent-College, being an aided Institution, governed by the provisions of the Private Colleges Act and the Rules framed thereunder and functioning with a College Committee constituted u/s 8, having regard to Chapter-IV of the said Act dealing with ''terms and conditions of Service of Teachers and other persons employed in private Colleges'' as well as Section-14 thereof, enumerating the functions of the College Committee exclusively in matters of making appointments and initiating disciplinary proceedings, initiation of the impugned proceedings on its part by adopting the exotic provisions under the TNCS Rules without invoking the applicable provisions under the Private Colleges Act must be held to be without jurisdiction, arbitrary exercise of power and non-est in the eye of law.
In respect of petitioner-Agniputhran, Mr. R. Subramanian, learned Counsel for the petitioner specifically pointed out that the petitioner being the senior-most and eligible to be considered for the post of Principal of the College, with a view to eliminate him from the zone of consideration for such post, the respondent/Secretary of the College vindictively issued the show cause notice, dated 03.07.2010, making false and untenable allegations against him under Rule-17(b) of the TNCS Rules. Since, bereft of any authority and jurisdiction, the Secretary illegally proceeded against the petitioners by resorting to the course under the TNCS Rules, which has no application at all to the Aided College in which the petitioners are serving, the entire proceedings must be held to be non-est in law and are liable to be quashed.
b) By adverting to Clause-6 of Form-7A framed under Rule 11(2) of the Private Colleges Rules which provides that the Teachers and the College Committee shall confirm to all the provisions of the Act and Rules and also to Clause-7 of Form 7-A, stipulating the procedure to be followed by the College Committee for initiating disciplinary proceedings, it is submitted that when an exclusive scheme is provided as above by way of a self-contained code by the Private Colleges Rules, conveniently ignoring the same, the College has exceeded in exercise of its power and jurisdiction by adopting the provisions under the TNCS Rules as against the petitioners.
c) Referring to the case law reported in 2002 (3) CTC 336 Mahamood Basha, S. v. Director of College Education, wherein it was observed that the Rules framed under the Tamil Nadu State and Subordinate Services are applicable only to Government Servants and cannot be applied to Aided Colleges and, reiterating the first submission that initiation of the disciplinary proceedings against the petitioners working in the respondent college, an Aided Institution, by issuing charge memos under Rule-17(b) of the TNCS Rules, is non-est in law, learned Counsels pleaded that this Court may, so holding, allow all the writ petitions.
Per contra, Mr. M. Venkatachalapathi, learned Senior Counsel appearing for the respondents-college, by pointing out that the College, which came to be established in the year 1963 and affiliated to the Madurai Kamarajar University, is one among the several recognised institutions administered by the Hindu Religious and Charitable Endowments (HR and CE) Department; that, with co-education system, the College is offering Graduate, Post-Graduate, Pre-Doctoral and Research (Doctoral) levels under aided and self-finance scheme; that there are 2300 students now studying in the college and 118 teaching staff and 58 non- teaching staff working in the Aided Sections; that the College is administered by the College Committee constituted in terms of the provisions under the Private Colleges Act and Rules and the said committee consists of 9 members with the Commissioner of HR and CE Department as the ex-officio president of the Committee; and that the College Committee has powers to take disciplinary action against the teachers and other persons employed in the College for violation of the Code of Conduct and for other delinquencies; made the following submissions while highlighting certain factual aspects.
Since there is no exhaustive procedure available under the private Colleges Act and Rules in cases of delinquencies, by virtue of the powers conferred u/s 18 of the Private Colleges Act, the College Committee, by its Resolution dated 16.05.2005, unanimously resolved to adopt the procedure prescribed under the TNCS Rules for the purpose of disciplinary proceedings in the College to the extent they are not inconsistent to the provisions of the Private Colleges Act and Rules.
In the case of petitioner-Agniputhran, while he was working as Tamil Professor and designated to be the Head of the Department, the College received complaints from one Jotheeswaran about the said petitioner for tampering of the Teachers and Staff attendance Register, dated 11.09.2009, whereupon, the College Committee, in its meeting dated 22.09.2009, unanimously resolved to seek explanation from him with reference to the allegation made. On that basis, a show case notice, dated 13.11.2009, was issued to him, calling upon to explain for the charge and the petitioner, by his letter dated 11.01.2010, requested for certain documents and even though those documents were furnished to him, no explanation was received by the college. By Resolution of the College Committee, dated 03.04.2010, it was decided that one more opportunity may be given to the petitioner. Consequently, by proceedings dated 08.04.2010, the petitioner was given 15 days time to submit his explanation and thereafter, on 20.04.2010, the petitioner gave his explanation. In the meeting of the College Committee held on 25.05.2010, the Committee considered the explanation and, finding the same as ''not satisfactory'', unanimously resolved to issue charge memo to the petitioner under Rule-17(b) of the TNCS Rules. By proceedings, dated 03.07.2010, the said petitioner was issued with a charge memo, containing 7 charges along with a list of witnesses and documents in the form of annexures and called upon to submit his explanation within 15 days. The petitioner, without submitting the explanation to the charge memo, has rushed to this Court by preferring W.P. No. 9220 of 2010 and this Court, by order dated 20.07.2010, granted an order of interim stay against operation of the charge memo dated 03.07.2010 on the basis of the argument that the charge memo had been issued by the college without conducting the College Committee meeting, which is factually incorrect.
In the meanwhile, another complaint was received from an M. Phil research student alleging that the petitioner had delayed the research thesis without giving the title therefor. On the third occasion, some of the 2nd year M.A. (Tamil) Students had lodged police complaints against the petitioner for his vulgar and obscene remarks in the class and sexual harassment against them. Under such circumstances, the Secretary, by proceedings dated 06.08.2010, changed the petitioner from his status as the Head of the Department and in that place, nominated one N. Jotheeswaran, and such act was ratified by the College Committee vide Resolution No. 12, dated 12.08.2010. Therefore, there was nothing wrong in temporarily changing the petitioner from the post of HOD in view of the grave allegations made against him by the female students.
At any rate, mere charge memos cannot be challenged by way of writ petitions as categorically held by the Apex Court in Union of India and Anr. v. Kunisetty Satyanarayana CDJ 2006 SC 1033 to the effect that a mere show- cause notice or charge-sheet does not infringe the right of any one, therefore, it is not only open for petitioner-Agniputhran but also other petitioners, who have been issued with respective charge memos on different allegations, to approach this Court as obviously, no decision adverse to the petitioners was taken by the Enquiry Officer/College Committee, rather, they can very well put forth their pleas and explanation before the authority concerned. Moreover, the petitioners cannot even question the authority of the Committee for adopting the scheme under the TNCS Rules inasmuch as Section 18(2) of the Private Colleges Act provides enormous powers to the College Committee for adoption of conduct Rules and standards of conduct not being inconsistent with the provisions of the Act. According to the learned Senior Counsel, only in the absence of an exhaustive and wholesome procedure for taking disciplinary action against the delinquent staff under the the provisions of the Private Colleges Act, the College Committee had adopted the procedure available under Rule-17(b) of the TNCS Rules by unanimously resolving to adopt such procedure only for the purpose of disciplinary proceedings in the college to the extent they are not inconsistent with the provisions of the Private Colleges Act and Rules. Lastly, he has reiterated that the present writ petitions filed by the petitioners at the stage of issuance of charge memos shall not be entertained since a charge memo does not give rise to any cause of action and also, it does not amount to an adverse order, affecting the rights of the writ petitioners.
Mr. Issac Mohan Lal, appearing for the respondents/College in one of the Writ Petitions-W.P. No. 11184 of 2010, has raised a preliminary objection regarding maintainability of the writ petitions in view of the decision of the Apex Court in Union of India and another v. Kunisetty Satyanarayana (cited supra) and further, submitted in line with the arguments of the learned Senior Counsel, that the College Committee, not being satisfied with the explanation submitted by petitioner-Agniputhran and, taking note of the seriousness and gravity of the allegations involving sexual harassment against female students, proceeded to relieve the petitioner from the position of H.O.D. and that the petitioner, without submitting an explanation to the charge memo, obsessed with an understanding that his earlier explanation submitted for the show-cause notice having been rejected by the same College Committee, he need not submit any more explanation, has wrongly rushed to this Court challenging issuance of the charge memo and such course is totally against the procedure and also the ratio laid down by the Apex Court in the above referred decision and also other decisions of this Court on such point.
It is stated that relevant provisions under the TNCS Rules have been adopted only to provide better protection to the delinquent staff as the provisions under the Private Colleges Act are lacking in that regard. Further, the unanimous decision of the College Committee for adopting the TNCS Rules in respect of disciplinary proceedings to the extent they are not inconsistent with the provisions of the Private Colleges Act was duly displayed in the Notice Board on 17.05.2005.
By urging that the petitioner does not deserve any indulgence for having been shifted from the position of the H.O.D. since the allegation is very serious that he is said to have indulged in sexual harassment against female students and, by stating that the proceedings under challenge are not adverse orders but only charge memos for which the petitioners are required to submit explanation to substantiate their respective cases, learned Counsel pleads for dismissal of the writ petitions as in cases of this nature, clearly there is no scope for interference by this Court warranting exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
Mr. D. Sasikumar, learned Government Advocate appearing for the respondents/State adopted the arguments advanced on behalf of other respondents and prayed for dismissal of the writ petitions.
Considered the rival submissions made on either side. The points that arise for consideration in all these writ petitions are as to whether the College Committee is justified in invoking the provisions under the TNCS Rules to deal with the petitioners/delinquents working in the College governed by the Private Colleges Act and Rules and whether the writ petitions are premature on the ground that no cause of action has arisen by virtue of the impugned proceedings under challenge.
The respondent/College, a recognised educational institution administered by HR and CE Department and affiliated to Madurai Kamarajar University, came to be established in 1963 with co-education system. The College Committee, which is the administrative body of the College, consists of 9 members and the ex-officio president of the Committee is the Commissioner of the HR and CE Department. It is stated that, with a view to provide quality education to the students coupled with the prospective scope of ensuring dignified profession to them after completion of courses so as to come up in life, the Institution, which has its own traditional standards in teaching profession, while contemplating a strict code of conduct for both the Teaching and Non-Teaching staff with reference to Rule 12 and Annexure 1 to the Private Colleges Act, which is almost identical to the conduct Rules applicable to the Government employees with certain modifications, found that there is no specific and exhaustive procedure for taking disciplinary action against the delinquent staff under the Private Colleges Act and, only under such circumstances, the College Committee of the Institution, which is clearly empowered by virtue of Section-18(2) of the Private Colleges Act to define the standards of conduct to be observed by the teachers and other persons employed in the private college, by unanimously passing a Resolution dated 16.05.2005, resolved to adopt the procedure prescribed under the provisions of the TNCS Rules for the purpose of disciplinary proceedings in the college to the extent they are not inconsistent with the provisions of the Private Colleges Act. In that regard, it is useful to refer to Section 18 of the Private Colleges Act which reads thus: "18. Teachers and other persons employed in private colleges to be governed by Code of Conduct: (1) Every Teacher and every other person employed in any private college shall be governed by such Code of Conduct as may be prescribed and if any teacher or other person so employed violates any provision of such Code of Conduct, he shall be liable to such disciplinary proceedings as may be prescribed. (2) The college committee may define the standards of conduct to be observed by teachers and other persons employed in the private college, such standards not being inconsistent with the provisions of this Act and the rules made thereunder."
Pausing here, it is pertinent to look at the ratio decidendi laid down by a Full Bench of this Court in K.M. Valliapan Vs. Joint Director of School Education, (Higher Education) and Appellate Authority and Madras Seva Sadhan Higher Secondary School, to the following effect: "The decision as to whether a disciplinary proceeding should be initiated or not, whether an employee should be placed under suspension or not, whether charges should be framed or not has to be taken by the School Committee. These powers are essential powers of the School Committee and the provisions contained in the Act do not envisage that such essential powers can be delegated. However, the duty of holding the enquiry can be delegated by the School Committee of course and not by any other authority. The Sub-Committee or the person appointed, as enquiry officer is required to hold the enquiry and can submit his report. Copy of such report is required to be served on the delinquent to enable him to make his submission. Such report is required to be considered independently by the School Committee and obviously such report is not binding on the School Committee. Once the School Committee comes to an independent conclusion regarding the delinquency of the charged employee, the question of punishment is again a matter to be decided by the School Committee and such authority cannot be delegated. "Thus, the Full Bench made it very clear that decisions whether or not to initiate disciplinary proceedings, suspend an employee and frame charges have to be exclusively taken by the school committee, in the given case - College Committee.
A bare reading of the above extracted provision viz., Section 18(2) of the Private Colleges Act, would make it clear that the College Committee is empowered to define the standards of conduct with the only restriction that such standards should not be inconsistent with the provisions of the Act or the Rules made thereunder. The Full Bench decision as cited above, while clearly highlighting the powers and jurisdiction of the school Committee - in this case, the college committee, makes it explicit that all essential features relating to disciplinary control are vested with such committee. Coupled with this, Mr. Issac Mohan Lal, learned Counsel appearing for the respondent/college in one of the writ petitions, clarified to this Court that the College Committee resolved to adopt the TNCS Rules for the limited purpose of disciplinary action against the delinquent staff not only to maintain the standards but also, in consonance with the principle of natural justice, to leave open better opportunities and scope of protection for such staff to put forth their case/defence. In that line, it is also stated that under the provisions of the Private Colleges Act, once the Disciplinary Authority chooses to issue show cause notice or charge memo calling upon the delinquent teacher to submit his explanation, a detailed oral enquiry would be held only in the event of exercise of option by the delinquent teacher to go for such enquiry and, if the delinquent does not opt for an oral enquiry, there is no requirement on the part of the Disciplinary Authority to extend such benefit, thereby, the Disciplinary Authority functioning under the provisions of the Private Colleges Act can close the door without affording proper opportunity on the ground that the delinquent teacher failed to exercise the option for oral enquiry. But, in cases of such proceedings under the provisions of the TNCS Rules, such option is automatically available even if the delinquent teacher fails to opt for holding an oral enquiry against him. Therefore, only to afford a better protection for the delinquent staff to put forth their case and defence, the College Committee thought it fit to adopt the provisions under the TNCS Rules for the purpose of disciplinary proceedings in the College to the extent those adopted Rules are not inconsistent with the provisions of the Private Colleges Act and the Rules framed thereunder. When the College Committee had come forward to help the petitioners by extending more reasonable opportunities by holding oral enquiry as an extra quasi-judicial benefit with a view to avoid arbitrary exercise of power, it is not open for the petitioners to say that the respondent/college ignored the applicable provisions under the Private Colleges Act and acted unfairly in resorting to a strange procedure under the TNCS Rules.
Further, neither in the respective affidavits sworn to by the petitioners nor in the course of the arguments advanced on their behalf, it is whispered/stated as to in what manner the petitioners have been prejudiced by reason of application of the provisions under the TNCS Rules in their case. Similarly, hardly the petitioners succeeded in demonstrating before this Court that relevant Rules under the provisions of the TNCS Rules adopted by the College Committee for the purpose of disciplinary proceedings are inconsistent to the provisions of the Private Colleges Act and the Rules made thereunder. Moreover, though an attempt is made to portray, as if the rules adopted have been borrowed only to apply the same to the adverse interest of the petitioners, the fact remains that adoption of the Rules was made way back in 2005 and such adoption was never questioned by any employee/staff on the ground that it was not applicable to a private/aided college and further, the impugned departmental proceedings came to be initiated in the current year i.e., nearly five years after adoption of the relevant procedure under the TNCS Rules. It must also be pointed out that the petitioner in W.P. No. 11184 of 2010 did not even offer his explanation required to be submitted on his part for shifting him from the position of H.O.D. on the serious allegation of sexual harassment against female students and lodging of police complaints against him. From the proceedings of the College Committee, this Court finds that adoption of the procedure in question was only to comply with the principles of justice in a fair manner and at the same time, to maintain the standards of the Institution and also to avoid victimization of teaching staff.
While all the three learned Counsels appearing for the respondents jointly raised an argument to dismiss the writ petitions, filed by the petitioners challenging the issuance of charge memos, by reiterating the ratio laid down by the Hon''ble Apex Court in the case of Union of India and Anr. v. Kunisetty Satyanarayana reported in CDJ 2006 SC 1033 to the effect that a writ petition challenging a charge memo should not be entertained, since a mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order affecting the rights of any party unless the same has been issued by a person having no jurisdiction to do so, Mr. R. Subramanian, learned Counsel for the petitioners attempted to apply the judgment in his favour on the ground that the college authority issued the charge memos, in fact, had no jurisdiction to do so, since the impugned charge memos came to be issued by exercising the power under Rule 17(b) of TNCS Rules. In view of such stand taken by the learned Counsel that the college authority did not have jurisdiction to issue the charge Memo, this Court deems it proper to delve into the issue to find out as to whether the authority had jurisdiction and powers to issue the impugned charge memos or not.
Section 18(2) of the Private Colleges Act empowers the college committee to define the standards of conduct to be observed by the teachers and non teaching staff employed in the private college, but such standards should not be inconsistent with the provisions of the Act and the rules made thereunder. A bare reading of sub-Section (1) and (2) of Section 18 clearly reveals that the college committee has got power to adopt any provision or rules like the one adopted by the college committee in its meeting held on 16.05.2005. As the college committee thought it fit to adopt the provisions of the TNCS Rules, the same cannot be questioned on the ground that Section 18(2) contemplates only in respect of code of conduct and it does not include the rules touching the disciplinary matters applicable to the teaching and non teaching staff employed in the private colleges.
Code of conduct means a collection of rules governing the conduct of members in an organisation while they serve in the official capacity. Even the violation of the code of conduct may some time forfeit his office or post from the institution itself.
In other words, the code of conduct means a set of rules outlining the responsibilities of or proper practices for an individual or organisation in consonance with principles, values, standards, or rules of behaviour that guide the decisions, procedures and systems of an organisation in a way that contributes to the welfare of the members as well as institutions. Therefore, I do not find much difference between the code of conduct and the rules required to be followed by the teachers and non teaching staff working in the college of the respondent herein.
In my considered view, the code of conduct, not only includes any dress code to be followed by the teachers and students or good mannerism expected to be exhibited by the teachers and students inside the class rooms and college campus, but it also covers the disciplinary aspects applicable to the teaching and non teaching staff employed by the respondent college. Therefore, I have no hesitation to conclude that the college committee has rightly adopted the provisions of the TNCS Rules, after having found that there was no specific procedure prescribed for taking disciplinary action against the delinquent staff under the Private Colleges Act, by passing the resolution, dated 16.05.2005, to adopt the procedure prescribed under the TNCS Rules for the purpose of disciplinary proceedings in the college to the extent they are not inconsistent to the provisions of the TNCS Rules. Therefore, this Court does not find any reason to hold that the college committee was lacking in power or jurisdiction to issue the impugned charge memos under the provisions of the TNCS Rules. Thus, the ratio laid down by the Apex Court in the case of Kunisetty cited supra operates against the case of the petitioners leaving this Court with no option but to hold that all the writ petitions challenging the charge memos are not maintainable.
In the light of such clear command, this Court has no other option except to hold that no cause of action has arisen by virtue of mere issuance of the charge memos in question so as to file the writ petitions and also against the proceedings temporarily shifting the petitioner in W.P. No. 11184 of 2010 from the position of H.O.D. since such decision was taken in the light of the serious allegation of sexual harassment against female students and lodging of complaints against the said petitioner before the police.
By way of affording an opportunity to the writ petitioners, who could not submit their explanation in compliance with the time stipulation made in the charge memos as they have rushed to this Court challenging those memos by way of the present petitions, this Court directs them to submit their respective explanations to the Authority concerned within a period of fifteen days from the date of receipt of a copy of the order and, on submission of the explanation, such authority shall proceed further in accordance with law.
Accordingly, all the writ petitions are dismissed with the above observation. Connected Miscellaneous Petitions are closed.