AI Structured Summary
Not yet generated for this judgment
Judgment
Jayasimha Babu, J.—The two petitioners in W.P. Nos. 13327 and 13328 of 1994 are part of the non teaching staff of the petitioner in W.P.
No. 2993 of 1994 who are admittedly governed by the Tamil Nadu Private Colleges (Regulation) Act, 1976. They were placed under suspension
on 20.4.1993, pending enquiry in the charges of grave nature frame against them. A charge memo had been issued to them on 19.4.1993. The
charge against them was that they had misappropriated substantial sums of money. A police complaint is said to have been given immediately after
the misappropriation came to light.
After they were so placed under suspension, a long drawn litigation was initiated by the two employees, who approached the civil court on
2.5.1993 by filing two suits in O.S. No. 798 of 1993 and 802 of 1993 in the Court of the District Munsif at Madurai. In those suits, they
challenged the decision of their employer hereinafter referred was college/institute, in constituting a committee to hold the enquiry against them. A
permanent injunction was also sought to restrain the management from holding any enquiry as contemplated in the notice of enquiry which had been
served on the petitioners. On 7.5.1993 the management of the college appears to have given an undertaking that no enquiry would be conducted
till the disposal of the application for interim injunction. On 8.7.1993, the applications for interim injunction I.A. No. 499 of 1993 and 501 of 1993
were dismissed.
Against the dismissed of those two applications, the two employees filed appeals in C.M.A. Nos. 39 of 1993 and 41 of 1993 before the Sub
Court, Madurai on 23.7.1993. Their appeals were allowed on 11.8.1993 and the matter was remanded to the trial court for fresh consideration.
The College appears to have made an application on 19.8.1993 for stay of that order. The request so made by the management was not granted
but the Court directed them to maintain status quo, till the disposal afresh of the applications for injunction by the trial Court.
The orders so made by the Sub Court, Madurai is the subject matter of C.R.P. Nos. 2662 and 2664 of 1993 filed by the College in which an
interim order was made by this Court on 13.9.1993 in the following terms:
Interim stay of further proceedings in O.S. Nos. 798, 800 and 802 of 1993 on file of Additional District Munsif''s Court, Madurai subject to the
condition that the petitioner shall not proceed with the enquiry against the respondents or take any further steps in pursuance of the enquiry already
conducted till the disposal of these C.R. Ps."" These C.R. Ps. are still pending, and it is submitted that the interim order made by this Court
continues to be in force.
As can be seen from the chronology of the events set out above, between 8.7.1993 and 11.8.1993, there was no order from any Court which
stood in the way of the management proceeding with the enquiry, although the right to hold such an enquiry was the subject matter of the suit which
had been initiated by the two employees. It is the case of the employer institute that in fact an enquiry was conducted during the period when no
order of injunction was in force and that it has sought the permission of the competent authority to remove the petitioners from service. Although
the date on which the enquiry is said to have been completed as given by the institute are discrepant, it is evident from the letter written by the
Deputy Director of Collegiate Education on 15.10.1993, a copy of which has been produced by the parties in these proceedings, that the College
had sought his approval for imposing penalties upon the two employees somewhere between 8.8.1993 and 30.8.1993.
In these writ petitions, the order under challenge at the instance of the College, and which order the two employees are seeking to have
enforced by the petitioner college is the order dated 15.2.1994 made by the Deputy Director of Collegiate Education, Madurai. That order
concludes with a direction to the Secretary of the institute that these two suspended employees should be reinstated from 20.8.1993, failing which
suitable action will be taken against the institute.
Learned counsel for the suspended employees submitted that u/s 19 (3) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 the College
can suspend an employee when an enquiry into gross misconduct of the employee is pending, and if such enquiry is not completed within two
months, which period may be extended by two more months by the competent authority, the employee shall be deemed to have been restored to
the post from which he had been suspended. It was therefore submitted that, at the end of a period of four months, from the date of the order of
suspension, the petitioners are to be deemed to have been automatically reinstated in service, and that they would be entitled to all the
consequential benefits arising from such instatement. Counsel placed reliance upon the case of Muthusamy v. Joint Director, School Education,
1991 W.L.R. 791 wherein it was held that that for the period of unjustified suspension, the employee is entitled to full wages. In that case, the
Headmaster of a School was kept under suspension for ten months even when no disciplinary action was contemplated or prosecuted.
Counsel also referred to the case of Steephen Roohisingh v. State of Tamil Nadu, 1993 W.L.R.544 and the decision of the Supreme Court on
appeal from that decision in St. John''s Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc., in support
of his submission that a writ petition against the respondent institute which is a minority institution is maintainable. That proposition is rightly not
disputed by the learned counsel for the respondent.
Learned counsel for the College however submitted that the petitioners had been charged with grave misconduct, that the reinstatement of the
petitioners in the services of the institute would not be conducive to its good administration, and that their continued suspension was necessary and
was not in any way illegal. It was submitted that enquiry against the petitioners had been completed and the approval of the competent authority
had been sought for taking appropriate action against the two employees. The report of the enquiry is said to have been sent and approval for the
proposed penalty sought, prior to 20.8.1993. It was therefore contended that Section 19(3) of the Act would not have any application to the facts
of this case, as according to counsel, that provision is meant to cover only the period during which the enquiry is to be held and would not cover
the period subsequent to the completion of the enquiry. Besides this, proceedings had been prolonged only by reason of the actions initiated by the
employees themselves.
So far as the college is concerned, an enquiry has been held, the report has been sent to the authorities, and their approval for the proposed
penalty is awaited by the college. It is no doubt true, by virtue of the interim order made in the C.R. Ps. by this Court, the authorities cannot now
make any order which could enable the employer to remove the petitioner from service at this stage. The result is that the petitioners continue to
remain under suspension, unless it is held that by virtue of Section 19(3) of the Act, the petitioners are deemed to have been automatically restored
to service at the end of a period of four months from the date on which they were suspended.
Section 19 of the Act deals with dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private
Colleges. It reads thus:
(1) Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private Colleges: Subject to any rule that
they 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.
(3) (a) No teacher or other person employed in any private college shall be placed under suspension, except when an inquiry into the gross
misconduct, within the meaning of the Code of Conduct prescribed under sub section (1) of Section 18, of such teacher or other person is
contemplated.
(b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such enquiry is not
contemplated within that period, such teacher or other person shall, without prejudice to the enquiry be deemed to have been restored as teacher
or other employee;
provided that the competent authority may, for reasons to be recorded in writing extend the said period of two months, for a further period not
exceeding two months, if, in the opinion of such competent authority, the enquiry could not be completed within the said period of two months for
reasons directly attributable to such teacher or other person.
Suspension can be effected only when an enquiry into a charge of gross misconduct against the employees is contemplated. Sub Section (b) of
Section 19(3) specifies that the employee is deemed to have been restored to service if the enquiry is not completed within a period of two
months. The proviso enables the employer to keep the employee under suspension, even without completing the enquiry, for a further period of
two months, provided the delay in completing the enquiry is due to reasons directly attributable to the employee. This section does not provide that
if the enquiry is completed within two months or four months as the case may, the employee is deemed to have been restored to service. After the
enquiry is concluded and if at such enquiry, it is found that the employee is guilty of misconduct, the employer is not free to take action but must
seek the approval from the competent authority. The competent authority after considering the report of the enquiry may decide to grant approval
and the employee may ultimately be dismissed, removed or reduced in rank. The Act does not provide a time limit within which the approval must
be granted or rejected.
The Rules framed under the Act, while providing for payment of subsistence allowance during the period of suspension, does not prescribe the
maximum or other period for which an employee may be suspended. Rule 13 reads as follows:-
Suspension of teachers or other person employed in Colleges: (1) Whenever a teacher or other person employed in a college is kept under
suspension for gross misconduct, the educational agency shall pay him the subsistence allowance every month at half of the rate of pay which he
was drawing at the time of suspension and in addition to the dearness allowance and other allowances, admissible on the basis of such pay.
(2) Whenever a teacher or other person employed in a college is kept under suspension, the grant payable to the college shall be governed by the
following provisions, namely;
(a) Where, after due enquiry, including the appeal, the suspension is found justified, the committee will be entitled to the grant towards the
expenditure of subsistence allowances actually paid to the teacher or other person employed in the college and such expenditure shall be taken into
account as admissible item for purposes of assessment of grant. Substitutes, if any appointed, may be taken into consideration for assessment of
grant if such substitute is a qualified person and is within the sanctioned strength of teaching staff as approved by the Director;
(b) Where, after due enquiry, including the appeal, suspension is found not justified, the committee shall not be entitled to any grant in respect of
the expenditure on the subsistence allowance paid to the teacher or other person employed in the college. The educational agency shall, however,
pay such teacher or other person the full pay and allowances he would have drawn but for his suspension. Any substitute, appointed in the place of
the said teacher or other person, shall not be taken into consideration for assessment of grant.
When an employee is suspended for gross misconduct, he is entitled to subsistence allowance so long as the suspension continues. The
allowance is not limited to the period during which the enquiry is pending. Nor is such payment limited to a period of four months. The employee
becomes entitled to full salary if it is found at the enquiry or subsequently that the suspension was not justified. The employer college is made liable
for payment of full salary for the period of unjustified suspension. If suspension is found to be justified, the subsistence allowance is to be paid by
the State as part of the grant. The salary of the substitute if appointed, is to be borne by the State, only if suspension is found to be justified.
Thus, suspension can be effected only when enquiry into gross misconduct within the meaning of Code of Conduct u/s 18(1) is contemplated.
The inquiry into such misconduct should normally be completed within two months. If the enquiry cannot be so completed for reasons directly
attributable to the employee the period for completing the enquiry may be extended by a further period of two months, by the competent authority.
If the enquiry is not completed within two months in case where the employee has not delayed its completion, the employee is deemed to have
been restored to his original post at the end of two months. Even in cases where employee has caused the delay, if enquiry is not completed within
the delay, if enquiry is not completed within the period upto which subject to a maximum of two more months time has been extended by the
competent authority, the employee is deemed to have been restored to service. However if enquiry is completed within that time, there is no
deemed restoration of the employee to his post, and suspension is not deemed to have been revoked.
The employee is entitled to subsistence allowance during the period of suspension and will continue to receive such allowance, even after the
enquiry is completed within the prescribed period, if he is not restored to his post by the employer. If the employee is exonerated at the enquiry,
the employee is entitled to be reinstated and paid full salary for the period of suspension. The college is then bound to pay the salary for that period
from its own funds.
The Act docs not prohibit the continued suspension of an employee who has been found guilty of misconduct at an enquiry completed within
the period prescribed in Section 19. The deemed restoration to the post provided for in Section19 can occur only when the enquiry is not
completed within the prescribed time. The time limits specified in Section19 is for ensuring that, employee is not compelled to suffer suspension
long periods on account of dilatory enquiry. The period specified in Section19 is the period within which enquiry should be completed, and is not
the maximum period for which an employee may be kept under suspension. The Act does not require the restoration to service of a suspended
employee who has been found guilty of gross misconduct warranting his dismissal or removal from service, pending approval by the competent
authority of the proposed penalty. Employees found guilty of gross misconduct are not required to be restored to service, even when after the
college has done what it is required to do, by completing the enquiry within the prescribed period.
The College always has the option of revoking the suspension, whether during the pendency of enquiry, or thereafter. By continuing the
suspension, the college takes the risk of having to pay from its funds, full salary for the entire period of suspension, if ultimately the suspension is
found to have been unjustified. The college would also, in such a case, have to pay from its own funds the salary of substitute, if any, appointed by
it.
The impugned order has been made on the erroneous assumption that the Act has prescribed a period of four months as the maximum period
of suspension, and that the suspended employee is deemed to have been restored to service at the end of that period, even if the employee had
been found guilty of gross misconduct at the enquiry completed within that period.
In this case, while it is contended by the petitioners that enquiry could not have been held, in view of the pendency of the legal proceedings, it is
the case of the college that the enquiry has in fact been concluded and that the enquiry was held during the period when no order of any court
operated against the college with regard to such enquiry. The competent authority has not addressed itself to this issue. The employer college has
been directed to reinstate the employees only on the ground that the period of suspension cannot exceed four months under any circumstance.
The order impugned in the writ petition filed by the college is therefore quashed. The subsistence allowance for past period if remained unpaid,
shall be paid by the college immediately, and such allowance continue to be paid so long as the employees continue to be kept under suspension. If
the competent authority finds that the enquiry has not been held within the prescribed period or that the suspension is not justified the employer
college shall be liable to pay full salary to the employee petitioners for the period of their unjustified suspension.
W.P. No. 2993 of 1994 filed by the college is allowed and W.Ps.13327 and 13328 of 1994 are dismissed, subject to the directions was
above. W.M.Ps. 4846, 20179 and 20180 of 1994 do not survive and are dismissed.