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K. Ravichandra Baabu, J.—W.P. (MD) Nos. 901 of 2014 and 985 of 2014 are filed challenging the Order dated 14.12.2013 extending the period of suspension of the Petitioners from 19.12.2013 for 60 days. Consequently, a direction is also sought for reinstatement of the Petitioner in terms of the direction issued by the First Respondent dated 2.1.2014. W.P. (MD) Nos. 3254 of 2014 and 3255 of 2014 are filed challenging the Order of the Second Respondent dated 14.2.2014 whereby, the period of suspension was further extended by 30 days from 16.2.2014.
Since the issue involved in all these four cases are common and one and the same, they are taken up together for final disposal.
The case of the Writ Petitioner in W.P. (MD) Nos. 901 & 3254 of 2014 is as follows:
He joined the Second Respondent-College in the year 1982 as Assistant Professor of History and became an Associate Professor in the year 2006. Thereafter, he became the Head of the Department of History. He was placed under suspension on 18.10.2013. A Charge Memo dated 28.10.2013 was also served on him. He had given his explanation to the charges. After completion of two months from date of suspension, he made request to the Second Respondent for reinstatement and similar representation was made to the First Respondent also. However, the Second Respondent issued the impugned Orders extending the suspension twice, which is against Section 19(3)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The First Respondent through communications dated 21.12.2013 and 2.1.2014 directed the Second Respondent to reinstate the Petitioner. However, the Second Respondent has not complied with the same.
The case of the Writ Petitioner in W.P. (MD) Nos. 985 & 3255 of 2014 is as follows:
He joined the Second Respondent-College in the year 2000 as Lecturer in English Department. He became an Associate Professor in the year 2006. He was suspended from service on 18.10.2013. He was served with the Charge Memo dated 28.10.2013. He gave his explanation to the charges. After completion of two months of suspension period, he gave a representation to the Respondents 1 & 2 for reinstatement. However, the Second Respondent issued the impugned Orders extending the suspension twice, which is against Section 19(3)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The First Respondent through communications dated 21.12.2013 and 2.1.2014 directed the Second Respondent to reinstate the Petitioner. However, the Petitioner was not reinstated.
The Second Respondent filed Counter Affidavit in W.P. (MD) Nos. 901 & 985 of 2014 separately. 6. In W.P. (MD) No. 901 of 2014, the Counter Affidavit of the Second Respondent reads as follows:
On 27.8.2013 at 01.30 p.m., during College hours, the Petitioner organised a few other Teachers and assembled in front of Classroom No. B-37, trespassed into the same and removed the students forcibly and disrupted the conduct of classes. The students made a Complaint to the Principal on 27.8.2013. On 12.9.2013 at 3.15 p.m., the Petitioner abused the Watchmen in filthy language and forcefully grabbed the Visitors register and tore them. The Watchmen made a Complaint to the Second Respondent in that regard. On 17.9.2013, during the College hours, the Petitioner abused a lady Teacher with filthy words and quarreled with her. On 10.10.2013, the Petitioner locked the Self-Financing course students classroom No. B-37 and took the classroom key with him. On 18.10.2013, the Petitioner together with the other Writ Petitioner (R. Heiz Dawson) instigated the students to strike work in the campus and created total chaos in the College. They further, damaged the furnitures, electronic devices, etc., thereby causing loss to the tune of Rs. 1,10,000/-. Considering the above conduct of the Petitioner, the Second Respondent decided to take disciplinary action. Accordingly, the Order of suspension was issued on 18.10.2013. In spite of the Order of Suspension, both the Petitioners entered into college on 21.10.2013 and disrupted the functioning of the College. Again on 22.10.2013 and 23.10.2013, they brought outsiders into the College campus and put the tents at the entrance. The Joint Director of Collegiate Education visited the college on 23.10.2013 and tried to persuade the Petitioner and others to remain calm. They did not adhere to the request. As a result, the College has to be closed indefinitely. It was reopened only on 26.10.2013. Thereafter, the Charge Memo was issued to the Petitioner on 28.10.2013. The Petitioner requested for certain documents through Letter dated 4.11.2013, the same was supplied on 10.11.2013. Again the Petitioner sought for some more documents on 20.11.2013. Instead of giving explanation, the Petitioner submitted a letter on 11.12.2013 stating that he was regretting for the charges and that he would not do anything that would affect the College and the students. Through the said Letter, he requested to drop the proceedings and cancel the suspension Order. His request was found to be bereft of sincerity and therefore, the Second Respondent decided to conduct an enquiry. Accordingly, the Enquiry Officer was appointed and suspension period was further extended by 60 days from 19.12.2013, in order to complete the enquiry. On 19.12.2013, the Petitioner trespassed into the College forcefully and took away the Masters Attendance Register from the office of the Principal and put their signature in the Register. The also abused the Principal and the Secretary in filthy language and they pushed the Principal down and started assaulting him. The Police was called upon and they requested the Petitioner to release the Principal. The College had to lodge a Complaint against the Petitioner in the Palayamkottai Police Station in FIR No. 1125 of 2013, dated 19.12.2013. The Principal suffered serious injury and admitted as inpatient in the Government Hospital for two days. The Enquiry Officer expressed his inability to conduct the enquiry on health grounds through his Letter dated 20.12.2013. Thereafter, another Enquiry Officer was appointed on 21.12.2013. The Enquiry was fixed on 8.1.2014 and the Petitioner did not attend the enquiry. On the other hand, he sent a letter on 10.1.2014 requesting for adjournment. On 29.1.2014, the Petitioner attended the enquiry and sought for certain documents. Accordingly, the enquiry was adjourned to 8.2.2014. On 8.2.2014, the Petitioner once again made request to adjourn the enquiry. Now, the enquiry is pending.
In W.P. (MD) No. 985 of 2014, the Counter Affidavit filed by the Second Respondent reads as follows:
The Petitioner along with other Writ Petitioner (R. Peter Perinbaraj) has been indulging in disruptive activities in the College by instigating students to flash strikes and sudden agitations. The Governing Committee decided to relieve the Petitioner from the post of Hostel Warden. He was asked to vacate the house given for the Hostel Warden. The Petitioner did not to do so. On 23.8.2013, he abused the watchmen in filthy language in front of the students and staff. The watchmen made a Complaint. On 27.8.2013, the Petitioner along with other Writ Petitioner assembled in front of classroom No. B-37, trespassed into the same and removed the students and thereby forcibly disrupted the conduct of the classes. The students made a Complaint. On 10.9.2013 and 13.9.2013, the Petitioner stayed away from his classes without any valid reason and permission. On 27.9.2013, the Petitioner abused one Dr. A. Arul Devadoss, who is the Associate Professor in History, with filthy language. He also strangled his neck and threatened him dire consequences. The said person fell down and fainted. Thereafter, the said person gave a Complaint to the Principal on 27.9.2013. He also made a Complaint against the Petitioner before the Palayamkottai Police Station. The Petitioner and other Writ Petitioner instigated the students on 18.10.2013 to strike work in the campus and created total chaos in the College. They damaged furnitures, the electronic devices etc., causing loss to the tune of Rs. 1,10,000/-. Considering the above conduct of the Petitioner, the Second Respondent decided to take disciplinary action. Accordingly, the Order of suspension was issued on 18.10.2013. Inspite of the Order of suspension, both the Petitioners entered into College on 21.10.2013 and disrupted the functioning of the College. Again on 22.10.2013 and 23.10.2013, they brought outsiders into the College campus and put the tents at the entrance. The Joint Director of Collegiate Education visited the College on 23.10.2013 and tried to persuade the Petitioner and others to remain calm. They did not adhere to the request. As a result, the College has to be closed indefinitely. It was reopened only on 26.10.2013. Thereafter, the Charge Memo was issued to the Petitioner on 28.10.2013. The Petitioner requested for certain documents through Letter dated 4.11.2013, the same was supplied on 10.11.2013. Again the Petitioner sought for some more documents on 20.11.2013. Instead of giving explanation, the Petitioner submitted a Letter on 11.12.2013 stating that he was regretting for the charges and that he would not do anything that would affect the College and the students. Through the said letter, he requested to drop the proceedings and cancel the suspension Order. His request was found to be bereft of sincerity and therefore, the Second Respondent decided to conduct an enquiry. Accordingly, the Enquiry Officer was appointed and suspension period was further extended by 60 days from 19.12.2013, in order to complete the enquiry. On 19.12.2013, the Petitioner trespassed into the College forcefully and took away the Masters Attendance Register from the office of the Principal and put their signature in the Register. The also abused the Principal and the Secretary in filthy language and they pushed the Principal down and started assaulting him. The Police was called upon and they requested the Petitioner to release the Principal. The College had to lodge a Complaint against the Petitioner in the Palayamkottai Police Station in FIR No. 1125 of 2013, dated 19.12.2013. The Principal suffered serious injury and admitted as inpatient in the Government Hospital for two days. The Enquiry Officer expressed his inability to conduct the enquiry on health grounds through his Letter dated 20.12.2013. Thereafter, another Enquiry Officer was appointed on 21.12.2013. The Enquiry was fixed on 8.1.2014 and the Petitioner did not attend the enquiry. On the other hand, he sent a letter on 10.1.2014 requesting for adjournment. On 29.1.2014, the Petitioner attended the enquiry and sought for certain documents. Accordingly, the enquiry was adjourned to 8.2.2014. On 8.2.2014, the Petitioner once again made request to adjourn the enquiry. Now, the enquiry is pending.
Heard Mr. G.R. Swaminathan, learned Counsel appearing for the Petitioners and Mr. Isaac Mohanlal, learned Counsel appearing for the Second Respondent and Mr. M. Murugan, learned Government Advocate appearing for the First Respondent.
The learned Counsel appearing for the Petitioners submitted as follows:
The Petitioners are aggrieved against the extension of Suspension Order beyond the period prescribed under Section 19(3)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The suspension period cannot be extended beyond the period of two months. Moreover, the First Respondent on 21.12.2013 and 2.1.2014, directed the Second Respondent to reinstate the Petitioners into service. The said direction is fully violated by the Second Respondent. The Second Respondent-College is bound to obey the direction issued by the First Respondent. The delay in not completing the enquiry is not on the part of the Petitioner, the Second Respondent has not challenged the direction issued by the First Respondent to reinstate the Petitioners.
Per contra, Mr. Isaac Mohanlal, learned Counsel appearing for the Second Respondent submitted as follows:
Even though the suspension period cannot be extended for more than two months, however, it would not automatically entitle for restoration or reinstatement. Section 19(3)(b) of the said Act is only a deeming provision and hence, the Petitioner at the best may seek for full salary as held in G. Anbarasan Vs. District Educational Officer, Cuddalore, Cuddalore District and another . Similar view is taken in Rt. Rev. B.P. Sugandhar Bishop in Medak Vs. D. Dorothy Dayasheela Ebeneser, ; K.R. Sekar v. The Director of School Education, W.P. No. 7092 of 2001 dated 8.10.2003; and Jomy James v. The District Collector, Kanyakumari District at Nagercoil, W.P. No. 11817 of 2012 dated 8.10.2003. The delay in not completing the enquiry is not due to the inaction of the Management, but, due to the conduct of the Writ Petitioners. The charges levelled against the Petitioners are very serious in nature and therefore, they cannot be reinstated into service. The direction issued by the First Respondent is nothing, but reiteration of the provision of law under Section 19 of the said Act. When the scope of such provision is already clarified by this Court in the above decisions, not following the direction of the First Respondent is not illegal or improper. The Second Respondent is prepared to pay full salary from 19.12.2013 onwards to the Petitioners and complete the enquiry within two weeks. Entire proceedings will also be completed within the time frame fixed by this Court.
Though allegations and counter allegations are made in the respective pleadings by the respective parties in these Writ Petitions, in respect of the charges framed against the Petitioners, I do not propose to go into the same and express any view since the enquiry is under progress and the same is pending in respect of the charges levelled against the Petitioners. Now, the issue before this Court is in respect of the orders extending the suspension period twice.
The Petitioners were originally placed under suspension on 18.10.2013. A perusal of the said Suspension Order would show that they were placed under suspension with effect from 19.10.2013.
The learned Counsel appearing for the Second Respondent fairly submitted that Section 19(3)(a) & (b) of the said Act is applicable to the Minority Institution as well in view of the decision of the Hon''ble Division Bench reported in Association of University Teachers Vs. State of Tamil Nadu and Another, . A perusal of the above said decision would show that the Hon''ble Division Bench has declared that the provision of Section 24(3) of the Act insofar as excluding the Application of the provision contained in Section 19(3)(a) & (b), to minority institution is violative of Article 14 of the Constitution of India and void to that extent. Therefore, it is clear that Section 19(3)(a) & (b) of the above said Act is applicable to the Minority Institution as well.
In this case, the original Order of Suspension made on 18.10.2013 was further extended for 60 days by the impugned Order challenged in W.P. (MD) Nos. 901 of 2014 & 985 of 2014 dated 14.12.2013. A perusal of the said Order would show that the Second Respondent has recorded the reasons for extending the said period of suspension. It is stated that after issuing the Suspension Order on 18.10.2013, the Petitioner was issued with a Charge Memo on 28.10.2013, for which, the Petitioner had given a written explanation dated 8.12.2013. When the said explanation itself was given in person only on 11.12.2013, the question of conducting the enquiry before the expiry of the suspension period, i.e., 19.12.2013 may not be practically possible. Therefore, the Management though fit to extend the Suspension Order for a further period of 60 days from 19.12.2013 in order to complete the Disciplinary proceedings. Therefore, I find that the impugned Order dated 14.12.2013 having explained the reasons for extension, does not warrant any interference by this Court.
While coming to the other Writ Petitions, namely, W.P. (MD) No. 3254 & 3255 of 2014, it is seen that the challenge is against the second extension of the Suspension Order.
This second extension is opposed by the Petitioners on the ground that it is beyond the scope of Section 19(3)(b) of the above said Act. Here again the Second Respondent has given certain reason for extending the period of suspension by 30 days from 16.2.2014. A perusal of the second Extension Order would show that the Petitioners were absented themselves on 8.1.2014. However, they have appeared before the Enquiry Officer on 29.1.2014 and 8.2.2014. They were asked to appear before the Enquiry Officer on 15.2.2014 for adducing the witness. Considering the delay in giving the reply and the delay in making their appearance, the Second Respondent extended the period of suspension by 30 days from 16.2.2014 in order to complete the Disciplinary proceedings. In the very same Extension Order, it is also stated that the Petitioners will be paid full salary during the period of suspension.
The issue as to whether the Petitioners are entitled to reinstatement automatically after the expiry of two months as prescribed under the Proviso to Section 19(3)(b), has already been considered by a learned Single Judge of this Court while dealing with an identical provision under Tamil Nadu Private Schools (Regulations) Act 1973, reported in G. Anbarasan Vs. District Educational Officer, Cuddalore, Cuddalore District and another . A similar provision under the above said Act is Section 22(3)(a) & (b). The learned Single Judge observed that merely because restriction is imposed, it cannot be held that beyond the said period the teacher cannot be placed under suspension. It is further held therein that the school has to pay full salary for any period beyond the period stipulated by the statutory provision. The relevant Paragraph No. 29 of the above said decision is extracted hereunder:
"29. One other incidental question that has been raised is whether the suspension could be continued beyond two months or the extend the period as provided in Section 20(3) of the Act. The statutory provision provides the period of suspension to be confined to two months at the first instance and an extension for identical period shall be by appropriate Authority. The object of the statutory provision being that there shall not be any delay in the Disciplinary proceedings against a teacher working in a private school. Merely because a restriction is imposed, it cannot be held that beyond the said period the teacher cannot be placed under suspension. However if a teacher is kept under suspension beyond the period stipulated in Section 20(3), the Employer namely the School Management has to pay full salary for any period beyond the period stipulated by the statutory provisions or extended under the Proviso to Section 20(3), from its funds."
The said view was further followed by another learned Single Judge in W.P. No. 7092 of 2001 dated 8.10.2003 wherein at Paragraphs 6, 7 & 8 of the above said decision, it has been held as follows:
"6. Considering the aforesaid provisions, it has been observed by a learned Single Judge of this Court in the case of G. Anbarasan Vs. District Educational Officer, Cuddalore, Cuddalore District and another , wherein the Paragraphs 27 & 29 are to the following effect: Though the statutory provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder do not make a provision for placing a teacher or other person employed in a school under suspension pending investigation or the Crime or a Complaint or pending of a Criminal case, the Employer of such a teacher could very well place him under suspension even when the statutory provision do not provide for such a contingency, by exercise of its powers of suspension, but the Employer has to pay the salary.
One other incidental question that has been raised is whether the suspension could be continued beyond two months or the extend the period as provided in Section 20(3) of the Act. The statutory provision provides the period of suspension to be confined to two months at the first instance and an extension for identical period shall be by appropriate Authority. The object of the statutory provision being that there shall not be any delay in the Disciplinary proceedings against a teacher working in a private school. Merely because a restriction is imposed, it cannot be held that beyond the said period the teacher cannot be placed under suspension. However if a teacher is kept under suspension beyond the period stipulated in Section 20(3), the Employer namely the school Management has to pay full salary for any period beyond the period stipulated by the statutory provisions or extended under the Proviso to Section 20(3), from its funds.
The aforesaid observation of the learned Single Judge is obviously on the footing that apart from any provision relating to suspension, an Employer has got the inherent right to place an Employee under suspension. However, in such an event, the Employer is to pay full salary to the concerned Employee.
Following the aforesaid decision, while refusing to recall the Order of Suspension, I make it clear that the Petitioner is entitled to get the salary for the entire period except the initial period of four months, suspension. Such amount should be paid by the Fourth Respondent from its own funds. It would be open to the Fourth Petitioner to recall the order of suspension or to continue with the Order of suspension. In case the Suspension Order is to continue, the Fourth Respondent would be liable to pay the full salary except for the period stipulated under Section 22(3). This payment should be made within a period of four months from the date of communication of this Order. Subject to the aforesaid observation, the Writ Petition is allowed to such extent. No costs."
The similar view was also taken by another learned Single Judge in W.P. (MD) No. 11817 of 2012 dated 8.10.2012.
The Hon''ble Supreme Court in Rt. Rev. B.P. Sugandhar Bishop in Medak Vs. D. Dorothy Dayasheela Ebeneser, while considering the similar provision in Andhra Pradesh Education Act, 1982, has held Paragraph 6 as follows:
"6. It was next contended by the learned Counsel for the Appellant that in view of the two decisions of the same High Court in M. Chandrasekhara Rao v. Secy. & Correspondent, Sri Sarvodaya College and Y. Philomena (Dr.) v. Govt. of A.P. the Division Bench should not have directed the Appellant, by issuing a Writ of Mandamus, "to arrange for the Petitioner to assume charge as Principal", in view of the serious irregularities found to have been committed by her. In M. Chandrasekhara Rao case, the High Court after considering the effect of Section 79(3) of the A.P. Education Act, 1982 (1 of 1982) has held that in a case where there are grave charges of misconduct, whatever may be the reason for not completing the enquiry within the prescribed time, the interest of the institution and the Employee would be best served if a direction is given to the Management to continue to pay to the Employee the salary and allowances of the post held by him instead of directing reinstatement/restoration of the Employee into the service. The said view was reiterated by a Division Bench of the High Court in Dr. Philomena case and it has been observed therein that though Section 79(3), is mandatory and on the expiry of the specified period the Employee would be entitled to be restored to the same position and status as he or she occupied as on the date of the order of suspension, but such restoration cannot be automatic in all circumstances and the Court may in view of the peculiar facts and circumstances of the case, instead of directing restoration or reinstatement, strike an equibalance between the right of the Employee vis-a-vis the right of the institution/society and the discipline among the co-Employees. Unfortunately, the High Court did not consider this aspect and has ordered restoration of Respondent 1 on the post of the Principal. From the material on record we find that the charges levelled against Respondent 1 are quite serious. They pertain not only to administrative irregularities but also to financial irregularities and disobedience. In view of the peculiar facts and circumstances of the case we think it just and proper to set aside the direction for restoration of Respondent 1 on the post of Principal and instead direct the Appellant to go on paying full salary and allowances to her till the enquiry is over. We also direct the Appellant to conclude the enquiry within four months from today. Respondent 1 shall also cooperate with the enquiry in order to see that it is completed within the time fixed by us. This Appeal is allowed accordingly. No order as to costs."
In the above decision of the Hon''ble Supreme Court, the direction issued by the Division Bench of the Hon''ble High Court of Andhra for restoration of the First Respondent therein to the post of Principal was set aside considering the fact that the charges levelled against him are quit serious. The Apex Court has also taken note of the fact that in another decision of the Division Bench of the Andhra High Court, it was held that restoration cannot be automatic in all circumstances and the Court may in view of the peculiar facts and circumstances of the case, instead of directing restoration or reinstatement, strike an equibalance between the right of the Employee vis-a-vis the right of the Institution/Society and the discipline among the co-Employees.
Going by the above decisions rendered by this Court as well as the Hon''ble Supreme Court, it is clear that the reinstatement of a person, after the expiry of the suspension period, is not automatic under all circumstances and on the other hand, the facts and circumstances of each case has to be taken into consideration either for allowing reinstatement or for granting Compensation in lieu of reinstatement, in case if the enquiry could not be completed within the suspension period. But at the same time, it has to be kept in mind that the Employer cannot extend the suspension as a matter of routine, unless circumstances as contemplated under Section 19(3)(b), so warrant for such extension. Needless to say that the Employer should express the reasons and record the same in writing while extending the suspension. Considering all these facts and circumstances and considering the nature of the charges levelled against the Petitioners in both the Writ Petitions and considering the case laws discussed supra, I am of the view that the Petitioners'' claim for reinstatement is not automatic and on the other hand, it depends on the facts and circumstances of the case more particularly taking note of the gravity of the charges levelled against them. But at the same time, they cannot be denied the fruits of the benefit of the protection given under Section 19(3)(b) of the said Act. Taking note of such position only, this Court in Anbarasan case has directed payment of full salary for any period beyond the period stipulated by the statutory provision. In this case, the Second Respondent-Management has specifically stated that they are willing to pay the full salary during the period of suspension to the Petitioners. The said stand is very well expressed in the impugned Order dated 14.2.2014 itself. Certainly, suspension is not a punishment. Therefore, if the Petitioners are paid full salary during the suspension period, in my considered view, they are not prejudiced or affected in any way. Considering all the facts and circumstances, the Writ Petitions are dismissed with the following directions:
(i) The Second Respondent shall pay full salary to the Petitioners during the period of suspension within a period of 3 days from today.
(ii) The Second Respondent shall complete the enquiry within a period of two weeks from the date of receipt of a copy of this Order.
(iii) The Petitioners shall co-operate with the enquiry without taking further adjournments.
(iv) After completion of the enquiry, within the time framed as stated supra, the Second Respondent shall pass final orders within a period of two weeks thereafter.
Consequently, connected Miscellaneous Petitions are also dismissed. No costs.