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Judgment
V. Ramasubramanian, J.—The Secretary of Saraswathi Narayanan College, Madurai, who is the appellant in the Writ Appeal and the
petitioner in the Writ Petition, filed W.P.(MD) No. 3002 of 2008 to quash an order in G.O.Ms. No. 86, Higher Education (D2) Department,
dated 20.3.2008, suspending the Management of Saraswathi Narayanan College, Madurai and appointing the first respondent as the Special
Officer for a period of one year u/s 14-A of The Tamil Nadu Private Colleges (Regulation) Act, 1976 (hereinafter referred to as ''the Act''). The
writ petition was dismissed by the learned Judge on 17.4.2008 and the writ appeal W.A.(MD) No. 440 of 2008 is against the said order.
Since the Government Order G.O.Ms. No. 86, Higher Education (D2) Department, dated 20.3.2008, was to be in force for a period of one
year, the term of Office of the Special Officer expired on 19.3.2009. Therefore the Government passed another order in G.O.Ms. No. 70, Higher
Education (D2) Department, dated 19.3.2009, extending the suspension of the Management and the tenure of the Special Officer for a further
period of one year viz., upto 19.3.2010. Challenging the said order, the Secretary of the College has filed a writ petition in W.P.(MD) No. 5151
of 2009. Since the writ appeal W.A.(MD) No. 440 of 2008, arising out of the first order was already pending before the Division Bench, the
learned single Judge directed the Registry to tag the writ petition along with the writ appeal. Therefore the writ appeal and the writ petition were
taken up together.
In the meantime, a group of 26 Lecturers working in the College and an Association by name Saraswathi Narayanan College Staff Association,
filed petitions for impleading in M.P.(MD) Nos.1 and 2 of 2009. Both the impleading petitions are allowed by us. Since the group of 26 Teachers,
who got impleaded, supported the Government Order and the Association opposed the Government Order, we took up the Writ Appeal and the
Writ Petition for final hearing by consent of parties.
We have heard Mr. M. Mariappan, learned Counsel appearing for the appellant in the Writ Appeal and petitioner in the Writ Petition, Mr.
K.M. Vijayakumar, learned Additional Government Pleader appearing for the respondents 1 to 3 in the Writ Appeal and the respondents 1 to 3 in
the writ petition, Mr. T. Arul, learned Counsel appearing for the fourth respondent in the Writ Appeal, Mr. R. Subramaniam, learned Counsel
appearing for the respondents 5 to 30 in the Writ Appeal and Mr. M. Ajmalkhan, learned Counsel appearing for the 31st respondent in the Writ
Appeal.
Though the learned Counsel appearing on both sides traded serious allegations against each other and also raised contentious issues, we are of
the considered view that many of them cannot be decided in the Writ Appeal and the Writ Petition. Therefore we have carefully segregated the
chaff from the grain. Once this is done, the facts essential for the disposal of the Writ Appeal and the Writ Petition, can be summarised as follows:
(a) A group of 26 Teachers, who are respondents 5 to 30 herein, were placed under suspension, forcing them to come up with a batch of writ
petitions. The writ petitions W.P.(MD) Nos.7179 to 7204 of 2007 were admitted and interim stay of the order of suspension was granted;
(b) On the basis of the allegations made by those Teachers, the Director of Collegiate Education, sent a report to the Government on 15.11.2007.
On the basis of that report, the Government issued a show cause notice dated 10.12.2007, calling upon the appellant herein to show cause as to
why the Management should not be suspended and a Special Officer appointed u/s 14-A of the Tamil Nadu Private Colleges (Regulation) Act,
1976;
(c) The appellant sent a reply dated 24.12.2007, seeking copies of the complaints made by the teachers and the report sent by the Joint Director,
to enable him to give a wholesome reply. However, the appellant also furnished a few points in response to the issues raised in the show cause
notice;
(d) In response to the above interim reply, the Director of Collegiate Education, forwarded certain documents by a communication dated
14.2.2008;
(e) One of the documents forwarded by the Director was a copy of his earlier letter dated 15.11.2007. That letter contained a reference to a
report of the Joint Director of Collegiate Education, Madurai Region, dated 6.11.2007;
(f) Therefore, by a letter dated 8.3.2008, the appellant requested for a copy of the report of the Joint Director, dated 6.11.2007. Simultaneously,
the appellant also sent another reply;
(g) But the Government sent a communication dated 12.3.2008, refusing to furnish a copy of the report of the Regional Joint Director, dated
6.11.2007, on the ground that it is an internal communication. The appellant also made an attempt to get a copy of the said report under the Right
to Information Act, but the same was also rejected;
(h) Thereafter, the Government passed G.O.Ms. No. 86, Higher Education (D2) Department, dated 20.3.2008, suspending the Committee of
Management and appointing a Special Officer u/s 14-A.
The learned Judge dismissed the writ petition W.P.(MD) No. 3002 of 2008, by which, G.O.Ms. No. 86, Higher Education (D2) Department,
dated 20.3.2008, was challenged, on the sole ground that there was an effective alternative remedy open to the appellant u/s 14-B of the Act. As
against the dismissal of the writ petition in limini, on the ground of availability of alternative remedy, the College is on appeal. Though the order
impugned in the writ petition, out of which the writ appeal arises, has now worked itself out on 19.3.2009 with the expiry of one year, the
Government has passed a subsequent order extending the suspension and ordering the continuance of the Special Officer for one more year till
19.3.2010. Therefore the subsequent order is under challenge in the fresh writ petition.
Let us first take up the issue of availability of alternative remedy u/s 14-B of the Act, since the writ petition arising out of the original order was
dismissed solely on that ground.
Section 14-B of the Act, reads as follows:
14-B. Appeal to Special Tribunal - (1) Any person aggrieved by an order passed by the Government u/s 14-A may, within one month from the
date of receipt of such order, prefer an appeal to the Special Tribunal consisting of two Judges of the High Court nominated, from time to time, by
the Chief Justice in that behalf:
Provided that the Special Tribunal may, in its discretion, allow further time not exceeding one month for the filing of such appeal.
(2) The members of the Special Tribunal shall hear the appeal on all points whether of law or of fact. Where on any such point or points the
members are divided in their opinion, they shall state the point or points on which they are so divided and such point or points together with their
opinion thereon shall, then, be laid before one or more Judges nominated for the purpose by the Chief Justice and such Judge or Judges shall hear
the appeal in so far as it relates to such point or points, and on each such point, the decision of the majority of the Judges who have heard the
appeal including those who first heard it shall be deemed to be the decision of the Special Tribunal.
(3) The Special Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act V of
1908) when hearing an appeal.
(4) Every order made by the Special Tribunal under this Act shall be deemed to be a decree of a Civil Court and shall be executable in the same
manner as a decree of such Court.
(5) The decision of the Special Tribunal shall be final.
It is clear from a reading of Section 14-B that in any case, the appellant would have been before us. The Government Order G.O.Ms. No. 86,
Higher Education (D2) Department, dated 20.3.2008, was challenged by the appellant in W.P.(MD) No. 3002 of 2008, within the period of
limitation viz., one month. It appears that the writ petition was filed on 26.3.2008. The writ petition was dismissed on the ground of availability of
alternative remedy, on 17.4.2008 and a copy of the order of the learned Judge was made available on 30.4.2008. Since Summer Vacation started
from 1.5.2008, the appeal was filed on the date of reopening viz., 9.6.2008. Therefore it is clear that the appellant came up within the period of
limitation prescribed u/s 14-B(1), though not before the Division Bench, describing the case to be a Civil Miscellaneous Appeal, but before a single
Judge, describing it to be a writ petition. As against the dismissal of the writ petition, he has come up before the Division Bench, by way of a Writ
Appeal. Even if the appellant had accepted the decision of the learned Judge and filed an appeal, it would have been before us in a different form.
As a matter of fact, in an appeal, the scope of the enquiry u/s is larger than the scope of the enquiry in the writ appeal.
Moreover, the order of the Government is challenged primarily on the question of violation of the principles of natural justice. Therefore the
appeal before us, by whatever name it is called, cannot be thrown out. Hence we decide the issue of maintainability in favour of the appellant.
Coming to the question of violation of the principles of natural justice, it is seen from the letter of the Director of Collegiate Education, dated
15.11.2007, to which a reference is made in Column No. 1 of the impugned Government Order that the recommendations made by the Director
of Collegiate Education, was entirely based upon the report of the Regional Joint Director at Madurai, dated 6.11.2007. The appellant, as seen
from the records, did not dodge in giving a reply. Even while requesting for copies of the documents, the appellant was submitting replies. But, by a
letter dated 12.3.2008, the Government refused to provide the copy of the report dated 6.11.2007, of the Regional Joint Director, on the ground
that it is an internal correspondence. The attempt of the petitioner to get a copy of the same under the Right to Information Act, also failed.
In the above circumstances, the opportunity granted to the appellant before suspending the Management and appointing a Special Officer,
cannot be said to be a reasonable opportunity. For the exercise of the power of suspending the Management and appointing a Special Officer,
certain preconditions are to be fulfilled u/s 14-A of the Act and they are as follows:
(a) The Government must be satisfied either on receipt of a report from the Director of Collegiate Education or otherwise;
(b) The satisfaction of the Government should be to the effect either (i) that the Management of the Private College, is responsible for
maladministration, lapses or irregularities or (ii) that they have neglected to discharge any of the duties or perform any of the functions entrusted to
them;
(c) After arriving at such a satisfaction on an objective basis, the Government must give an opportunity to the Management to make a
representation;
(d) After receipt of such representation, the Government must consider the same and pass an order recording the reasons therefor;
(e) Any such order, appointing a Special Officer, shall not exceed one year in the first instance, but may be extended, subject to the limitation that
the maximum period of such suspension of Management shall not exceed two years;
Therefore, it is clear that the safeguard provided to the Management of a College u/s 14-A in the form of a reasonable opportunity of making
the representation, cannot be turned into an empty formality by refusing to provide a copy of the basic report of the Regional Joint Director, dated
6.11.2007. Section 14-A(1) does not contemplate an enquiry. Wherever no enquiry is contemplated, the opportunity to make a representation
should be meaningful. It would be so only if a document which forms the foundation of the order in question is supplied. The refusal of the third
respondent-Government to supply to the appellant, a copy of the report of the Regional Joint Director, dated 6.11.2007, is a violation of the
principles of natural justice and denial of reasonable opportunity contemplated u/s 14-A(1) of the Act. Therefore, the original order dated
20.3.2008 and the subsequent order dated 19.3.2009, are liable to be set aside.
It was contended by Mr. R. Subramaniam, learned Counsel for the respondents 5 to 30 that the College was functioning smoothly under the
administration of the Special Officer and that if the administration is handed over back to the Management, the respondents 5 to 30 may be
victimised. However, Mr. M. Ajmalkhan, learned Counsel appearing for the Staff Association, submitted that the members of their Association
comprising of about 45 Teachers, had a tough time under the Special Officer and that the Staff Association supported the Management. It is the
contention of Mr. M. Ajmalkhan, learned Counsel appearing for the Staff Association that despite the Regional Director of Collegiate Education,
being the Special Officer, the disbursement of salary was getting delayed.
However, we have not gone into the above controversies. We have found that the impugned orders are violative of the statutory provisions
and the principles of natural justice. Moreover, under the First Proviso to Section 14-A(1) of the Act, the maximum period of suspension of
Management, cannot exceed two years. Now a period of one year and four months has already expired. Therefore the respondents cannot blow
hot and cold.
In view of the above, the Writ Appeal and the Writ Petition are allowed and both the orders of the Government, suspending the Management
and appointing the Special Officer, are set aside. It will be open to the respondents 1 to 3, if they so desire, to proceed in accordance with law.
However, they shall keep in mind the restriction under the First Proviso to Section 14-A(1) of the Act. The appellant shall also restore normalcy in
the College by not initiating any vindictive action against the respondents 5 to 30, as otherwise the focus of the Management as well as the
Teachers, would be more on the Courts than on the courses.
The Writ Appeal and the Writ Petition, are allowed on the above terms. No costs. Consequently connected miscellaneous petitions are closed.