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Judgment
R.S. Ramanathan, J.—Heard both sides.
In this writ petition, the petitioner challenges the order of the 4th respondent refusing to grant extension of service to the petitioner. The petitioner was working as Headmistress of the 4th respondent School and she will be attaining superannuation on 30.06.2010 and therefore, she is eligible for extension of service till 31.05.2011 and the 4th respondent passed the impugned order, dated 13.05.2010 informing the petitioner that she will not be given extension of service as she was found guilty in respect of misconduct that took place in the year 1998 and in respect of that, an enquiry was conducted by the Joint Director of School Education and the petitioner also confirmed the misconduct in her explanation, dated 05.04.2010 and therefore, the School Committee was convened on 15.04.2010 to consider the action to be taken against the petitioner and as per the resolution of the School Committee, the extension was refused to the petitioner. According to the petitioner, in respect of an incident that took place on 14.05.1998, by the proceedings of the Joint Director of School Education, the first respondent herein, dated 01.09.1999, the petitioner was exonerated and for the same alleged misconduct, action cannot be taken after a lapse of more than 10 years and the petitioner has also not committed any misconduct as alleged by the respondents. It is stated that the alleged misconduct was that on 14.05.1998, the petitioner participated in the counselling held in Trichy, for the post of headmistress and on the same day, she also attended the valuation of (+2) question and answer papers at Kumbakonam as Chief Examiner and therefore on that day, she worked in two different places, which is contrary to the rules and on that basis, action was taken. According to the petitioner, she made it clear that after getting permission from the Officer, she went to attend the counselling at Trichy, which was held at 10.30 a.m. and immediately, thereafter, she attended the evaluation of answer as a Chief Examiner and therefore, she has not committed any illegality to warrant any action. Further, she has stated that there is no question of impersonation and the authorities are also aware of the fact that the petitioner attended the counselling and also attended the work of Chief Examiner for evaluation of answer paper on the same day and therefore, without appreciating these facts, action was taken.
The 2nd respondent filed a counter stating that in the proceedings of the first respondent, the 4th respondent was directed to take disciplinary action against the petitioner for the misconduct committed on 14.05.1998 and the petitioner herself has also accepted the misconduct in her letter, dated 30.11.2009 that she was present at Kumbakonan on 14.05.1998 and was also present at Trichy on the same day between 10 a.m to 12 noon and considering all these facts, enquiry was ordered to be conducted and order was passed by the 4th respondent and hence, the writ petition is liable to be dismissed.
The 4th respondent also filed a counter that in pursuant to the proceedings of the first respondent, dated 21.01.2010, action was initiated against the petitioner and as per the direction of the first respondent, punishment was imposed and therefore, the writ petition is liable to be dismissed.
Mr. M. Sidhardhan, the learned Counsel appearing for the petitioner, submitted that in respect of the alleged misconduct that took place in the year 1998, action was taken at the instance of the first respondent 10 years later and it is made clear from the counter of the 4th respondent that the first respondent directed the 4th respondent to impose punishment and as directed by the first respondent, resolution was passed on 15.04.2010 refusing to grant extension to the petitioner and the said order cannot be sustained. He further submitted that in respect of the participation of the petitioner in the counselling on 14.05.1998 and worked as Chief Examiner on the same day, the first respondent has already passed an order, dated 01.09.1999 exonerating the petitioner of those charges while rejecting the appeal filed by Thangam. In the said order, it has been specifically stated that the petitioner only after getting prior permission attended the counselling and it was also known to the Camp Officer, who was in charge of the valuation of papers at that time.
It is further stated in the order that no action was taken by the Department and without neglecting her duty as Chief Examiner, she participated in the counselling. Therefore, the first respondent has already confirmed that the petitioner has participated in the counselling and also attended the work of Chief Examiner, after getting necessary permission and for the same conduct, action cannot be taken after a lapse of 10 years. He would further submit that one A.N. Thangam challenged the order of the first respondent, dated 01.09.1999 in W.P.(MD) No. 774 of 2000 and in that writ petition, it was alleged by the petitioner, A.N. Thangam that the petitioner herein, who was the 4th respondent in that writ petition, did not attend the interview conducted on 14.05.1998 and that was denied by the first respondent herein. Nevertheless, the order of the first respondent, dated 01.09.1999 was set aside on technical grounds and the 1st respondent was directed to reconsider the appeal preferred by the said Thangam in pursuance of the order passed by this Court in W.P. No. 774 of 2000 and explanation was called for and under the pretext of conducting the enquiry, the first respondent has issued the proceedings, dated 21.01.2010 holding that the petitioner participated in two works on the same day in two different places, which is contrary to the rules and procedures and directed the School Committee to conduct the enquiry and imposed punishment and that was accepted by the 4th respondent and as directed by the first respondent the resolution was passed.
The learned Counsel appearing for the petitioner further submitted that without giving opportunity to the petitioner, the order of punishment was passed and the initiation of enquiry for an incident that took place 10 year back is illegal and re-employment is a right available to the teacher, who attained superannuation during the academic year and it cannot be denied on such flimsy grounds and relied upon the judgment reported in 2007 (6) MLJ 850, in the case of G. Daniel Gunaseelan v. District Educational Officer, Chennai North, Chennai 600008, 2009(2) MLJ 925 [W. Emymmal Lalitha and Anr. v. Chief Educational Officer, Kancheepuram , Kancheepuram District and Ors., in support of his contention.
On the other hand, the learned Government Advocate, Mr. M. Rajarajan, appearing for the respondents 1 to 3 reiterated the allegations made in the counter affidavit and submitted that action was initiated by the first respondent as per the direction given in W.P.(MD) No. 774 of 2000 and the School Committee, after considering the explanation of the petitioner thought fit not to grant extension and the said order is perfectly legal and it cannot be challenged.
The learned Counsel appearing for the 4th respondent, Mr. R. Baskaran, submitted that the petitioner admitted that she participated in two different works on the same day and therefore, she has acted against the rules and regulations and that was also accepted by the petitioner. Hence, the action taken by the management viz. the 4th respondent is in order.
I have given my anxious consideration to the submission made by both the counsels.
It is admitted that action was taken against the petitioner in respect of the incident that had taken place in the year 1998. It is further admitted that the first respondent has passed the order, dated 21.01.2010 directing the 4th respondent to take disciplinary proceedings against the petitioner while considering the request of one Thangam, who claimed the post of Headmistress as per the direction given in W.P. No. 774 of 2000. In the said proceedings, dated 21.01.2010, the first respondent held that the appointment of the petitioner as headmistress is valid in law, as she was appointed on the basis of the resolution of the School Committee and based on her merit and qualification and seniority and rejected the appeal filed by the said Thangam. Nevertheless, the first respondent went beyond the scope of the enquiry as directed by this Court in W.P.(MD) No. 774 of 2000 and found that the petitioner has participated in two events on the same day, without getting permission and that is against the rules and regulations and directed the 4th respondent to take action and punish the petitioner. It is also made clear from the counter of the 4th respondent that action was initiated only as per the direction of the first respondent and as per the direction punishment was imposed.
As rightly pointed by the learned Counsel appearing for the petitioner, after a lapse of 10 years a person cannot be punished for an incident that had taken place 10 years earlier. Further, in the order passed by the first respondent, dated 01.09.1999 he has specifically stated that only after getting prior permission from the Camp Officer, the petitioner went to attend the counselling and that was also reiterated by the respondents, while arguing in W.P.(MD) No. 774 of 2000. Further, there is no question of impersonation as it is admitted by the petitioner that she attended the counselling after getting permission from the Higher Officials and thereafter, worked as Chief Examiner. For the past 10 years, no action has been taken against the petitioner even assuming that she has acted against the rules and regulation in participating in two events on the same day without getting prior permission. When the petitioner has stated even in the year 1998 that after getting permission only she attended the counselling and that was accepted by the first respondent, it is not fair on the part of the first respondent or the 4th respondent to expect proof from the petitioner for having obtained permission after a lapse of 10 years. Further, while disposing of W.P.(MD) No. 774 of 2000, this Court has directed the 1st respondent to reconsider the appeal preferred by Thangam and while rejecting the appeal filed by the said Thangam and upholding the appointment of the petitioner as Headmistress, the first respondent should not have held that the petitioner has committed some misconduct and directed the 4th respondent to take action and the same is beyond the scope of the remand order passed by this Court. Therefore, in my opinion, the direction of the first respondent directing the 4th respondent, to conduct the enquiry in respect of the incident that took place on 14.05.1998 itself is illegal and consequently action taken by the 4th respondent is also illegal and therefore, the order is liable to be quashed.
Further, this Court has held in the judgment referred to above, as per G.O. Ms. No. 452, Education Department, dated 24.03.200, the teacher is entitled to claim re-employment when she retires in the middle of the academic year and the same is subject to the following three conditions:
i. that their work and conduct are satisfactory.
ii. that they are physically found fit for further service.
iii. that no disciplinary proceedings are pending against them.
In this case, there is no complaint about the work and conduct of the petitioner and also about her physical condition. As I have already held that the disciplinary proceedings against the petitioner is illegal, the petitioner is entitled to be re-employment till the end of March 2011. As a matter of fct, the law on this point is clearly stated in C. Harris Vs. The District Elementary Educational Officer and The Assistant Elementary Educational Officer, , Nilgiris District that the teacher has got right to get re-employment when she retired during the middle of the academic year. Similar view was taken in K.C. Govindan Vs. The Government of Tamil Nadu and Others, .
Considering all these aspects, I have no hesitation to hold that the order of the 4th respondent, which is challenged in this writ petition, is illegal and it is quashed. Accordingly, this writ petition is allowed and respondents are directed to give re-employment to the petitioner till 31.05.2011. Consequently, connected Miscellaneous Petition is closed. No costs.