Sri Gopalakrishna Higher Secondary School vs The Joint Director Of School Education & Ors.

(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)

The petitioner in W.P.(MD)No.10959 of 2024, aggrieved by the order, dated 19.12.2024 of the learned Single Judge, by which order, the Writ Petition was dismissed, is the appellant herein.

The said Writ Petition had been filed in the nature of a Certiorari seeking records relating to the proceedings of the first respondent/Joint Director of School Education (Secondary Education), dated 27.03.2024 and to quash the same.

The fourth respondent was working as a Drawing Teacher in the appellant School and was placed under suspension on 27.11.2017 on the ground that he had wrongly conducted himself with the members of the School Committee. In this connection, a complaint was also lodged before the Thallakulam Police Station and an FIR in Cr.No.343 of 2018 for the offences punishable under Sections 294(b), 341 and 506(i) of IPC had been registered against the fourth respondent. Disciplinary proceedings had also been initiated. An Enquiry Officer was also appointed and the fourth respondent was dismissed from service on 11.06.2018. Thereafter, the appellant had forwarded the proposal to the authorities to approve the order of dismissal. Since no order was passed, the appellant had filed a Writ Petition in W.P.(MD)No.5769 of 2019 in the nature of a Mandamus seeking direction to pass orders on the said proposal.

By an order, dated 12.03.2019, a learned Single Judge had directed that order should be passed within a period of six weeks. However, till the date of filing of the Writ Petition, no order has been passed. It had been contended that even before approving the order of dismissal, the suspension order earlier passed against the fourth respondent was cancelled by the appellant by order, dated 21.04.2018 and the fourth respondent also joined duty. He was then issued with a second charge memo on 13.07.2018 alleging willful unauthorized absent, despite cancellation of suspension order.

The fourth respondent then filed a Writ Petition before this Court in W.P.(MD)No.17694 of 2018 seeking a direction to join duty and to be paid full salary with monetary benefits. The said Writ Petition was disposed of on a statement made on behalf of the appellant that the fourth respondent can join duty and that the requisite salary would be paid from the date of joining the duty. The fourth respondent joined duty on 10.08.2018. He was again suspended on 16.02.2019 owing to the pendency of the second charge memo. Thereafter, again on 21.03.2020, the said suspension order was cancelled and he was directed to join duty. The fourth respondent joined duty on 24.03.2020.

Thereafter, the Chief Educational Officer, Madurai, had passed an order, dated 25.08.2020, directing redeployment of the fourth respondent to a different School holding that he was surplus in the appellant School in accordance with the staff fixation for the academic year 2019-20. The fourth respondent also joined another School. He then gave a representation to the appellant to disburse salary for the period from 18.06.2019 to 24.03.2020. That representation was rejected by the appellant by order, dated 11.05.2022. Challenging that order, the fourth respondent filed a Writ Petition in W.P.(MD)No.7142 of 2020 seeking salary for the period during which he was placed under suspension. That Writ Petition was disposed of permitting the fourth respondent to file an appeal before the first respondent/the Joint Director of School Education under Section 23(b) of the Tamil Nadu Recognized Private Schools (Regulation), Act 1973. A direction was also given to pass appropriate orders within a period of six weeks from the date of filing of the appeal after granting opportunity of hearing to both the fourth respondent and the appellant.

In accordance with the said direction, the fourth respondent filed an appeal before the first respondent on 08.04.2023. The first respondent issued a communication to the Chief Educational Officer, Madurai, to inform both the appellant and the fourth respondent to appear for personal hearing on 10.10.2023. On 10.10.2023, the appellant appeared but the fourth respondent did not appear. The appellant presented their explanation. On 11.03.2024, the first respondent had addressed a communication to the Chief Educational Officer, Madurai seeking various particulars and those particular were in turn sought from the appellant. The appellant submitted their explanation on 15.03.2024. On the basis of the said reply, the Chief Educational Officer, Madurai, addressed a communication to the first respondent on 18.03.2024 along with their opinion. Another opportunity of a personal hearing was granted to the fourth respondent on 27.03.2024 through video conferencing. Thereafter, an order was passed by the first respondent on 27.03.2024 which was impugned in the Writ Petition.

By the said order, the first respondent had directed that salary should be paid to the fourth respondent by the appellant on the ground that the appellant had placed the fourth respondent under suspension from February 2019 onwards for more than 1½ years without taking any further action. It had been stated that the appellant had not addressed any communication calling upon the fourth respondent to join duty and that the period between 18.02.2019 and 23.03.2020 cannot be considered as unauthorised absent. The appellant was directed to pay salary for the said period. That particular order was challenged in the Writ Petition.

The learned Single Judge had observed the contentions raised on behalf of the appellant that there was no enquiry conducted on 10.10.2023 and even if an enquiry was conducted, it was by a different officer and subsequently, the fourth respondent was afforded an opportunity of being heard on 27.03.2024 by yet another officer. It had been stated that the report of the Chief Educational Officer, dated 18.03.2024 had not been forwarded to the appellant and this constituted violation of principles of natural justice. It had been stated that the appellant had requested the fourth respondent to join duty, but he had deliberately avoided joining duty. It had therefore been contended that the appellant cannot be made liable to pay salary to the fourth respondent.

It had been further contended that under Section 23(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, suspension cannot be in force for more than two months and can be extended only for a further period of two months and it had been therefore, argued that after the expiry of four months, the fourth respondent should have joined duty. It had therefore been contended that the appellant being an educational institution based on charity cannot be saddled with liability to pay salary for a period of more than one year to the fourth respondent, who had not worked during the said period. It had been stated that the fourth respondent was also redeployed to another School. It had been contended that the matter may be remitted back to the first respondent for fresh consideration.

The learned Single Judge had also observed the arguments advanced on behalf of the respondents, particularly, the first respondent that the appeal under Section 23(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, is summary in nature and therefore, non granting of personal hearing would not vitiate the order. It had been further pointed out that the appellant had appeared for enquiry on 10.10.2023 and had also submitted their written explanation. The fourth respondent was not present, but he had been granted an opportunity of hearing through video conferencing on 27.03.2024. It had been contended that the appellant had not called upon the fourth respondent to join duty and had placed him under suspension for well over one year and that therefore, that particular period of suspension cannot be treated as deliberate absence from duty and that necessary salary should be paid to him. The report of the Chief Educational Officer, Madurai that the appellant had recalled the order of suspension, dated 16.02.2019, was also considered.

The learned Single Judge also examined the arguments advanced on behalf of the fourth respondent that the suspension order was based on a charge memo and not on the basis of unauthorised absence. There had been no communication addressed by the appellant calling upon the fourth respondent to join duty after the order of suspension dated 18.02.2019. The communication had been addressed only on 21.03.2020 and immediately, thereafter, the fourth respondent had joined duty on 24.03.2020. It had been stated that the fourth respondent was not in a position to join duty, since the order of suspension had not been revoked. It had also been stated that the post of Drawing Teacher had not been surrendered by the appellant, but had been declared as surplus by the Chief Educational Officer and therefore, he had been redeployed to another School.

Having noted the arguments, the learned Single Judge had examined the issue whether the matter has to be decided on its own merits or had to be remitted back to the first respondent for alleged violation of principles of natural justice. It was noted that the fourth respondent had been issued with a second charge memo on 13.07.2018 and when the fourth respondent filed a Writ Petition in W.P.(MD)No.17694 of 2018 alleging that he was not permitted to join duty, the appellant submitted that they were willing to allow the fourth respondent to join duty and subsequently, the Writ Petition had been disposed of. The fourth respondent also joined duty on 10.08.2018. He was again placed under suspension on 16.02.2019 on the basis of second charge memo which had been issued on 13.07.2018. It was, therefore, observed that the order of suspension, dated 16.02.2019, was never recalled till 21.03.2020.

The contention that the suspension should automatically be revoked on expiry of two months and can be extended for a period of two months and that the fourth respondent should have joined duty on expiry of four months was rejected by the learned Single Judge. The learned Single Judge observed that the first respondent was not an original authority but an appellate authority under Section 23(b) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and that strict compliance of principles of natural justice was not warranted. However, it was further observed that both the appellant and the fourth respondent had been given opportunity of being heard and the appellant had also submitted their written submission. It was held that the fourth respondent cannot be stated to have been unauthorisedly absent. The contention that appropriate opportunity was not granted was rejected. It had therefore been held that remitting the matter back to the first respondent would only be an exercise in futility and therefore, the order of the first respondent was upheld and the Writ Petition was dismissed. Challenging this order, the present appeal had been filed.

We have carefully considered the arguments advanced and perused the material records.

The appellant, Sri Gopalakrishna Higher Secondary School, an aided School, had filed the Writ Petition in the nature of a Certiorari seeking records relating to proceedings of the first respondent/Joint Director of School Education (Secondary Education), dated 27.03.2024. By that particular proceedings, the first respondent directed the appellant to pay salary to the fourth respondent, V.Ramakrishnan during the period of suspension between 18.06.2019 and 24.03.2020.

The background facts are that the fourth respondent, who was working as a Drawing Teacher in the appellant School, had been initially placed under suspension on 27.11.2017 on the ground that he had abused various members of the School Committee. A complaint was also lodged in Thallakulam Police Station and an FIR in Cr.No.343 of 2018 for offences punishable under Sections 294(b), 341 and 506(i) of IPC had been registered against the fourth respondent. Disciplinary proceedings were also initiated. An Enquiry Officer was appointed and on the basis of his report, the fourth respondent was dismissed from service on 11.06.2018. The appellant sent a proposal to the first respondent to approve the order of dismissal, but since the official respondents did not pass any order, the appellant filed W.P.(MD)No.5769 of 2019 in the nature of a Mandamus seeking consideration of their proposal. A learned Single Judge of this Court had issued a Mandamus, but it is stated that till the date of filing of the Writ Petition, no order has been passed approving the order of dismissal.

The appellant had also addressed a communication to the fourth respondent on 21.04.2018, cancelling the order of suspension which had been passed on 27.11.2017 and directing the fourth respondent to join duty. The fourth respondent was then issued with a second charge memo on 13.07.2018 alleging that he had remained unauthorizedly absent in spite of cancellation of the suspension order. The fourth respondent then filed W.P. (MD)No.17694 of 2018 seeking a direction against the appellant to permit him to join duty and to be paid full salary.

In the said Writ Petition, the learned Counsel for the petitioner/appellant had submitted that they would permit the fourth respondent to join duty and that he would also be paid salary from the date of joining duty. On the basis of the said submission, the Writ Petition was disposed of on 09.08.2018.

The fourth respondent joined duty on 10.08.2018.

The fourth respondent was again suspended on 16.02.2019 on the basis of pendency of the the second charge memo, dated 13.07.2018. The appellant addressed a communication to the fourth respondent on 21.03.2020 calling upon him to join duty. Accordingly, the fourth respondent joined duty on 24.03.2020.

The Chief Education Officer at Madurai had then issued proceedings redeploying the fourth respondent to a different School holding that the fourth respondent was a surplus Teacher in the appellant School. The fourth respondent also joined duty in another aided School. He then gave a representation to the appellant seeking salary for the suspension period from 18.06.2019 to 24.03.2020. This was rejected by the appellant by order, dated 11.05.2022. Challenging the same, the fourth responder filed a Writ Petition before this Court in W.P.(MD)No.7142 of 2020 seeking salary for the suspension period.

The learned Single Judge of this Court had disposed of the said Writ Petition granting permission to the fourth respondent to file an appeal before the first respondent/the Joint Director of School Education under Section 23(b) Tamil Nadu Recognized Private Schools (Regulation) Act, 1973. A direction was also issued that an order should be passed within a period of six weeks from the date of filing of the appeal. It was also directed that opportunity of hearing should be granted to both the appellant and the fourth respondent.

In according with the said direction, the fourth respondent then filed an appeal before the first respondent on 08.04.2023. The first respondent addressed a communication to the Chief Educational Officer primarily on 04.10.2023 directing to inform both the appellant and the fourth respondent to appear for personal hearing on 10.10.2023. The appellant appeared for the personal hearing on 10.10.2023 and also submitted their written explanation. The first respondent sought further particulars from the Chief Educational Officer, Madurai, by communication, dated 11.03.2024. Those particulars were further called for from the appellant and the appellant also submitted their explanation to the Chief Educational Officer, Madurai on 15.03.2024. On the basis of the said communication, the Chief Educational Officer, Madurai, addressed a communication to the first respondent on 18.03.2024 also giving their opinion. Thereafter, an opportunity of personal hearing was granted to the fourth respondent on 27.03.2024 through video conferencing. Finally, on 27.03.2024, the first respondent passed orders directing the appellant to pay salary to the fourth respondent. This order had been put to challenge before the learned Single Judge.

The learned Single Judge had observed that the claim of the appellant that documents have not been furnished cannot be given credence, since the documents were only a communication from the first respondent/Chief Educational Officer calling for a report and in turn, the Chief Educational Officer calling for report from the appellant and on receipt of the explanation, forwarding the same to the first respondent in the form of a tabular column. No further documents had been relied on. The written submission given by the appellant was also relied on. It was also observed by the learned Single Judge that the proceedings under Section 23(b) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 were summary in nature and the first respondent had actually granted opportunity to the appellant who had also availed the same by appearing in person and submitting their explanation in writing which had also been considered. It was also noted that the fourth respondent had been placed under suspension from 18.06.2019 to 24.03.2020 and the fourth respondent had not issued any communication after a period of two months from the date of suspension by extending the period of suspension or calling upon the fourth respondent to join duty and owing to that failure, the appellant was liable to pay salary for the period of suspension. This order of the learned Single Judge had been assailed in the present Writ Appeal.

The learned Senior Counsel for the appellant argued that the order of the appellant placing the fourth respondent under suspension and the order directing him to rejoin duty cannot be construed to be orders which had been passed after adjudication of any particular issue. It was further argued that therefore, it was the order passed by the first respondent impugned in the Writ Petition on adjudication of the issues, should therefore be considered as the order in original. The learned Senior Counsel therefore contended that the first respondent was under compulsion to follow the principles of natural justice including serving of all necessary documents and granting opportunity of personal hearing.

This line of argument of the learned Senior Counsel for the appellant cannot be considered favourably by us, since the fourth respondent had approached the first respondent only under specific direction of a learned Single Judge of this Court who passed order in W.P. (MD)No.7142 of 2020. That particular Writ Petition had been filed by the fourth respondent questioning an order dated 11.05.2022 passed by the appellant herein by which order, the appellant had denied salary to the fourth respondent for the period between 18.06.2019 and 24.03.2020. It should be noted that in that Writ Petition, the appellant was represented by Counsel. The learned Single Judge had held as follows in order dated 10.01.2023:

Thus, it is seen that no protest had been raised by the appellant when the learned Single Judge had specifically directed that an appeal has to be preferred before the appellate authority under Section 23(b) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and also when the learned Single Judge had further directed the appellate authority to pass an order within a period of six weeks from the date when the appeal is presented. The learned Single Judge had further directed that opportunity of hearing should be granted to all parties. It is, thus, clear that the appellant was conscious that it was an appeal being filed under Section 23(b) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and that the said proceedings were certainly not proceedings in original, but appellate proceedings challenging an order passed in the first instance.

There is yet another factor, which has to be pointed out, namely, the earlier order of the learned Single Judge in W.P.(MD)No.17694 of 2018 which was again a Writ Petition filed by the fourth respondent in the nature of a Mandamus seeking a direction against the appellant to permit him to join duty and to be paid salary with monetary and attendant benefits with effect from 28.01.2018. This was with respect to an earlier spell of suspension. A learned Single Judge by order dated 09.08.2018 had noted the submission made on behalf of the appellant herein, who had been impleaded as the fifth respondent in that particular Writ Petition. It was ordered as follows:

It is, thus, seen that the appellant themselves had permitted the fourth respondent to rejoin duty and had undertaken that they would pay salary from the date when the fourth respondent so joined duty. With respect to the salary for the period of suspension now under consideration when the fourth respondent was actually placed under suspension from 16.02.2019 till 23.03.2020, the appellant had received grant-in-aid from the Government for the first four months till 15.06.2019. Thereafter, they had not paid salary for the subsequent period of suspension. They had also not revoked the order of suspension. It is the contention of the appellant that it is the Government which should pay salary has to be rejected, since the records do not reveal that the appellant had issued any communication to the fourth respondent revoking the order of suspension and calling upon him to join duty.

The argument that the fourth respondent should have joined duty on the expiry of four months has to be rejected, since as the employer, the appellant has a duty to cancel the order of suspension and then permit the fourth respondent to join duty. Having placed the fourth respondent under suspension and have not issued any order revoking the suspension order and calling upon the fourth respondent to join duty, it is only appropriate that the appellant pays the salary for the period during which the fourth respondent was under suspension.

The learned Senior Counsel for the appellant had placed reliance on the judgment of the Hon'ble Supreme Court reported in (2004) 4 SCC 311 in the case of Mardia Chemicals Limited and others -vs.- Union of India and others, which related to proceedings under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI Act). In the said judgment, the Hon'ble Supreme Court had held that proceedings under Section 17 of SARFAESI Act are not appellate proceedings. In the instant case, the proceedings under Section 23(b) of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 are appellate proceedings and even otherwise, the appellant had voluntarily submitted themselves to the appeal proceedings by accepting the order of the learned Single Judge in W.P. (MD)No.7142 of 2020 extracted supra.

In view of these reasons, we do not agree with the contentions raised on behalf of the appellant. The Writ Appeal stands dismissed. We uphold the direction of the first respondent in their proceedings in Na.Ka.No.31237/D2/E2/2023, dated 27.03.2024. We direct that there must be compliance of the same within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.