The petitioner C.Santhini filed O.A.No.6000/1999 before the Tamil Nadu Administrative Tribunal seeking revocation of suspension order with consequent prayer to regularise the suspension period from 10.9.1982 to 30.9.1997 as duty period for all purposes with consequential service and monetary benefits. The third prayer sought for in the present petition is to issue direction to retire the petitioner from service with effect from 30.9.1997 afternoon as this date is the date of superannuation of the petitioner.
2. (i) The petitioner after her initial appointment as B.T.Teacher in the Government Girls High School, Kovilpatti joined duty on 21.8.1960. Thereafter, she was promoted as Headmistress on 17.11.1972. While she was serving as Headmistress of Government Girls High School at Alangayam in Vellore District, she was placed under suspension from service by order passed by the second respondent-The Chief Educational Officer, Vellore in his proceedings Rc.No.15168/B1/82 dated 10.9.1982 on the basis that there were grave charges against the petitioner. Subsequent to the order of suspension, no proceedings under the Tamil Nadu Civil Services (Discipline and Appeal) Rules were initiated against the petitioner. She was not even paid the subsistence allowance for the period of suspension though she was eligible and entitled under the Fundamental Rules 53(1) at the rate of 50% of her basic pay plus equivalent for the first six months and at the rate of 75% of her basic pay plus equivalent for the period beyond six months.
(ii) The learned counsel appearing for the petitioner would submit that though the petitioner was kept under suspension from 10.9.1982 the petitioner was not paid subsistence allowance. Despite repeated representations made by the petitioner to the respondent to revoke the prolonged suspension with the consequential prayer to reinstate her in service and also to disburse the subsistence allowance regularly every month, the respondent failed to respond to the request of the petitioner for revocation of prolonged suspension nor considered the request of reinstatement, leave alone the disbursement of subsistence allowance. Subsequently, the petitioner also attained the age of superannuation on 05.9.1997 and that she was due for retirement on 30.9.1997. Again no order of retirement was issued to her.
(iii) The learned counsel for the petitioner further contended that in the absence of any order being issued to her permitting her to retire from service on 30.9.1997 it must be deemed that the petitioner has retired from service on 30.9.1997 and the order of suspension also must be deemed to have been revoked automatically. Inasmuch as there was no specific order passed under F.R.53(1) not permitting her to retire from service or when there was absence of order retaining her in service pending suspension, the suspension order has been deemed to have been revoked.
(iv) On that basis the learned counsel for the petitioner further pleaded that the entire period of suspension from 10.9.1982 to the date of retirement 30.9.1997 has to be treated as duty period for all purposes and the petitioner thereafter being entitled to all consequential benefits, should be paid of all the benefits. Since the plight of the petitioner was not considered, she was constrained to file O.A.No.1723/1999 on the file of the Tamil Nadu Administrative Tribunal seeking a direction to consider the petitioner's representation dated 10.2.1989. The Tribunal by its order dated 16.3.1999 also passed a direction to the respondents to consider the said representation on merits and pass orders within eight weeks. In the light of the abovesaid order, the first respondent by passing the order dated 23.7.1999 informed the petitioner that her request for revocation of suspension order so as to treat the suspension period as 'duty period' cannot be considered. The said order is under challenge.
3. (i) The learned counsel while challenging the said order submitted that the respondents failed to consider Rule 18(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As per Rule 18(c) every order, notice issued by the respondent shall be served in person on the Government Servant concerned or to be sent to the person concerned by Registered Post Acknowledgment Due and if such person is not found living at his or her last known place of residence, the said notice should be tendered to an adult member of his or her family or if none of the above means is available, atleast by affixing it on some conspicuous part of the last known place of residence, the notice should be served. Therefore, the learned counsel further contended that the claim of the respondent that the order of suspension could not be served on the petitioner since she was not available at her last known place of her residence cannot be accepted for the reason no attempt was ever appeared to have been made by the respondent to serve the order as contemplated under the abovesaid rule. Therefore, the net result would be a lapse on the part of the authorities to serve the order of suspension. Therefore, the respondent refused to grant subsistence allowance as per the rules for the period of suspension.
(ii) Further it was contended that the respondent never said that the order of suspension was served by affixture. On that basis the petitioner prayed for payment of subsistence allowance as per rule from the date of placing the petitioner under suspension till the date of revocation was made.
(iii) Another argument advanced by the learned counsel for the petitioner is that even if the petitioner was not residing in Headquarters fixed in the order of suspension, the same would not absolve the respondent from discharging the statutory functions (i) to review the order of suspension periodically;(ii)to revoke the order of suspension, if necessary;(iii)to continue the order of suspension periodically;(iv) to take action to pass orders under F.R.56(C) for not permitting the petitioner to retire from service on 30.9.1997 or permitting her to retire without prejudice to the criminal case pending against the petitioner. In the absence of any such order, the petitioner must have been deemed to have retired from service on 30.9.1997 afternoon with consequential service and monetary benefits.
4. (i) Per contra, the learned Additional Government Pleader appearing for the respondents would submit that during the service of the petitioner as Headmistress she was placed under suspension by the Chief Educational Officer, Tirunelveli District for the period from 24.8.1973 to 03.9.1973. The annual increment of the petitioner was stopped twice as a measure of punishment for the irregularities committed by her at Tirunelveli District. By stopping increment for one year without cumulative effect as per Proceedings Rc.No.3739/C.2/76 dated 16.01.1978, secondly, another stoppage of increment for one year without cumulative effect as per Proceedings Rc.No.40770/C.2/78 dated 07.02.1980 was also passed by the Chief Educational Officer, Tirunelveli. Thereafter, she was transferred as Headmistress and posted to Government Girls High School, Alangayam, Vellore District and was also joined duty on 15.11.1981. Similarly, after joining the duty the petitioner went on medical leave from the next day onwards, namely 16.11.1981 and extended the leave in piece meal upto 16.7.1982. On all occasions the petitioner failed to note the leave address and submitted the leave application belatedly. For such lapse the Inspector of Girls School, Vellore also called for explanation from the petitioner. But the letter has been returned by the postal authorities with a remark unserved as no such address was available. Subsequently, when the petitioner came back, she gave her letter dated 12.7.1982 to the Chief Educational Officer, Vellore by assuring in writing that she would not go on leave if the pay at Alangayam is paid to her and she further undertook to continue in the School as Headmistress. She failed to furnish the leave address in the said letter dated 12.7.1982. However, she was paid with the pay and allowances for the period upto 27.6.1982. Once again when she joined duty on 31.7.1982, she did not turn up for duty from 1.8.1982 and the incharge Headmaster, Government Girls High School, Alangayam in his letter dated 7.9.1982 reported her absence from duty. But, in the meanwhile, the petitioner also has drawn the money from the Special Fee Fund as detailed herein.
In view of the above, the Chief Educational Officer, Vellore in his proceedings Rc.No.15168/B.1/83 dated 10.09.1982 passed an order to place her under suspension with immediate effect. The said order of suspension was sent to her through the Headmaster of the Government Girls High School, Alangayam on 13.9.1982 by registered post to the following address:
C.Sandini Thiru Nelananda Kulalar Vidhuthi, Jeyalakshmi Vilas Kutralam Tenkasi taluk Tirunelveli District The Headmaster in his letter dated 21.9.1982 reported that the cover sent to the petitioner address was returned saying No such addressee. Therefore, once again the suspension order was served to the Headmistress to the following addresses:
(1) C.Sandini -sent through No.62-63 Madurai Road the Headmaster Tirunelveli Govt. Girls High School, Alangayam (2) C.Sandini -sent though No.43 Town Police Line Inspector of Villupuram Post Girls Schools, South Arcot District Tirunelveli as per roceedings Rc.No.22322/A.1.81 dated 28-12-1982.
Again the postal authorities returned the postal envelope saying left returned to the sender. In continuation of the suspension order, specific charges were also been framed against the petitioner for various irregularities committed by her in the capacity as Headmistress by the Chief Educational Officer in his proceedings dated 27.11.1982. When the same was also served through Inspector of Girls Schools, Tirunelveli, it was sent through Registered Post by the Inspector of Girls School, Tirunelveli, but the envelope was returned saying that the party is not available in the place of address for a long time and the present whereabouts were not known and hence returned to the sender. Thereafter, the Chief Educational Officer, Tirunelveli framed charges for various irregularities involving financial transactions committed by the petitioner during her service as Headmistress at Government High School, Nanguneri and Villicheri, Tirunelveli Districts. But the delinquent failed to submit her defence statement so far. Since the petitioner was underground for about 17 years and failed to submit any kind of representation till 30.9.1997 she came forward with an application to the Tribunal, Tamil Nadu Administrative Tribunal on 10.2.1999 with a request to revoke her suspension order by regularising the suspension period so as to go on retirement on 30.9.1997 subsequently.
The Tribunal in O.A.No.1723/1997 by order dated 16.3.1999 directed the respondents to consider the request of the petitioner on merits as per the rules within eight weeks' period. In the light of the order passed by the Tribunal, the Director of School Education, Chennai in its order dated 23.7.1999 rejected the request of the petitioner on the ground that the petitioner absconded with Government money and in spite of many attempts made by the Chief Educational Officer, Vellore, Inspector of Girls Schools, Tirunelveli and the Police Department, Alangayam the whereabouts of the petitioner could not be found out and therefore the suspension order could not be served on her. Further, the order passed by the Director of School Education stated that the petitioner having not resided at the Headquarters fixed in the suspension order, namely, Alangayam and absconded without giving any information to the department is not eligible for subsistence allowance and on that basis held that the petitioner responsible for irregularities.
(ii) Secondly, the learned Additional Government Pleader further submitted that even after the first order of suspension was informed, the petitioner never approached the respondent by making any representation either to revoke the suspension order or to reinstate her in service since the petitioner was busy in moving anticipatory bail application and also got anticipatory bail order. She was afraid of coming to the department for making any application for revocation of suspension order or for reinstatement into service. Further more, the petitioner successfully evaded from the notice of the respondent by conveniently keeping away by denying the correct address to the respondent department. Therefore, neither F.R.56(C) nor Rule 18 C of Tamil Nadu Civil Services (Discipline and Appeal) Rules can be invoked by the petitioner. On that basis the respondents prayed for dismissal of the application.
5. (i) After her transfer as Headmistress and posted to Government Girls High School at Alangayam, Vellore District, she joined in the said school on 15.11.1981. Immediately after her joining the petitioner entered on medical leave from the next day onwards from 16.11.1981 and again extended the leave in piece meal basis upto 16.7.1982. On all occasions it was seriously contended that the petitioner failed to note the leave address legibly. For the said act of lapse it was also pointedly proved that the Inspector of Girls School, Vellore after calling her explanation from the petitioner as Headmistress, she gave her letter dated 12.7.1982 to the Chief Educational Officer, Vellore assuring that she could not go on leave if the pay at Alangayam is paid to her. Again in the said letter dated 12.7.1982 she failed to furnish the leave address. However, she was paid with the Pay and Allowances for the period upto 27-6-1982. Prior to the incident it is also relevant to keep it in mind that the petitioner was also placed under suspension by the Chief Education Officer, Tirunelveli for the period from 24.8.1973 to 3.9.1973. Subsequently, as a measure of punishment annual increment of the petitioner was stopped twice for the irregularities committee by her at Tirunelveli District. In fact stoppage of increment for one year without cumulative effect was made by the Chief Educational Officer, Tirunelveli by proceedings Rc.No.3739/C.2/76 dated 16.1.1978. In another proceedings in Rc.No.40770/C.2/78 dated 07.2.1980 the Chief Educational Officer, Tirunelveli again stopped increment for one year without cumulative effect. In spite of all these the grievance all alone made by the respondent is that the petitioner never furnished her leave address at any point of time.
(ii) Therefore when she joined duty on 31.7.1982 again she did not turn up for duty from 1.8.1982 and the incharge Headmaster of the Government Girls High School, Alangayam in his letter dated 7.9.1982 reported the abovesaid lapses along with the financial irregularities committed by the petitioner stating that the petitioner had drawn the money from the Special Fee Fund Account which was maintained at the local Post Office as detailed below:
1. 27.02.1982 Rs.10,000.00 19.03.1982 Rs. 1,500.00 20.03.1982 Rs. 1,500.00 19.04.1982 Rs. 280.00 25.06.1982 Rs. 16.40 Rs.13,296.40 2. Drawn From P/D Account :- 20.02.1982 Rs. 90.70 24.02.1982 Rs. 250.00 25.02.1982 Rs. 1,300.00 20.03.1982 Rs. 850.00 20.04.1982 Rs. 200.00 Rs. 2.690.70 3. Drawn from Medical Aid Fund Rs.800.00
In view of the above, the Chief Educational Officer, Vellore in his communication dated 10.9.1982 placed the petitioner under suspension with cumulative effect. The order of suspension was sent to her through the Headmaster, Government Girls High School, Alangayam to the following address.
C.Sandini Thiru Nelannanda Kulalar Vidhuthi, Jeyalakshmi Vilas Kutralam Tenkasi taluk Tirunelveli District on 30.9.1982 by registered post. But the postal authorities reported that the cover has been returned saying No such addressee. Again the suspension order was served to the petitioner to the following addresses:
1. C.Sandini -sent through No.62-63 Madurai Road the Headmaster Tirunelveli Govt. Girls High School, Alangayam 2. C.Sandini -sent though No.43 Town Police Line Inspector of Villupuram Post Girls Schools, South Arcot District Tirunelveli as per proceedings Rc.No.22322/A.1.81 dated 28-12-1982. Once again the postal authorities have returned the postal envelope left returned to the sender.
(iii) Therefore the authorities were against the petitioner for the various irregularities committed by her in the capacity as Headmistress and the Chief Educational Officer, Vellore in his proceedings Rc.No.15168/B.1/82 dated 27.11.1982 served the specific charges through Inspector of Girls, Tirunelveli. Once again the same was sent through by Registered Post Acknowledgment Due. But the said envelope also returned saying that the "party is not available in the place of address for a long time and the present whereabouts are not known and hence returned to the sender".
(iv) Therefore, it was very clear that the petitioner has given room for various irregularities involving financial irregularities for which various charges were framed against her. But as the leave address or the latest address was not known, the respondents were not able to proceed further.
(v) That apart a police case was also registered against the petitioner at Alangayam for misappropriation of Government money in Crime No.34/84 under
Section 409 I.P.C., on 29.02.1984. The above case was under investigation. The petitioner by moving the High Court obtained anticipatory bail by order on 12.12.1984 and this fact was intimated to the Sub-Inspector of Police, Alangayam. The Inspector of Police, Alangayam in its letter dated 9.5.1986 has reported about the inability in serving summon as the whereabouts of the petitioner was not known even to her husband.
(vi) Another fact was also transpired from the records. When a report was received on 01.11.1989 from the Alangayam police station stating that a criminal case is under trial in Sub-Divisional Judicial Magistrate Court at Tirunelveli and the arrest warrant was also issued to the petitioner by the Court, the same was also not served for want of her residential address. These are all clearly proved the act of petitioner's deliberate and well planned maneuverability to escape from the catches of the department as well as from the Court of law. As a matter of fact, a teacher who is expected to show atmost devotion and responsibility to the school should have approached the department by way of written request asking the department to revoke the suspension order and also to complete the enquiry. Admittedly that was not done. Secondly, if it is presumed that the petitioner was under suspension for quite a long time, the petitioner being a responsible Headmaster of Government Girls High School, Alangayam, at no point of time gave any letter in writing to the school or to the educational authorities furnishing her latest address for service of any communication, leave alone the notice from the department. More so, the petitioner's conduct in getting anticipatory bail from the High Court on 12.12.1984 and subsequently in view of pendency of Criminal Case No.571/89 on the file of Sub-Divisional Judicial Magistrate Court at Tirupathur which has also issued arrest warrant for her continuous evasion from appearance clearly go to show that the petitioner deliberately absconded from the department. Therefore, she cannot be allowed to say that the respondents failed to serve notice on her.
6. Another contention raised by the learned counsel for the petitioner that the respondent, after placing her under suspension during her service and after issuance of charge memo having not been served effectively on the petitioner and since the petitioner reached the age of superannuation, subsequently, without getting specific sanction from the Government or without any order to retain her in service, they cannot proceed further departmentally, as she retired from service on reaching the age of superannuation, cannot be accepted as a proposition of law, since this issue is no more res-integra in view of the judgment of the Division Bench reported in 2010(2)CTC 234 as well as various judgments of the Hon'ble Apex court.
7. Useful reference can be had from the judgment of the Hon'ble Apex Court in the case of U.P.State Sugar Corporation Ltd. Vs. Kamal Swaroop Tondon, 2008 (2) SCC 41. In that case, the Supreme Court had held that the High Court was wrong in quashing the disciplinary proceedings since under the Uttar Pradesh State Sugar Corporation General Service Rules, proceedings could have been initiated even after an employee has retired for recovery of losses caused to the Corporation by the respondent/employee. The Supreme Court also accepted the contention of the Corporation that the jurisdiction of the High Court under
Article 226 is equitable and discretionary and must reach out to remove injustice wherever it is found and in paragraphs 36 and 37, held as follows :-
"36. In G. Veerappa Pillai v. Raman & Raman Ltd., A.I.R. 1952 S.C. 192, the Constitution Bench of this Court speaking through Chandrasekhara Aiyar, J. observed (AIR pp.195-96, para 20) that the writs referred to in
Article 226 of the Constitution,are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.
37. Again, in leading case of Sangram Singh v. Election Tribunal, A.I.R. 1955 S.C. 425, dealing with the ambit and scope of powers of the High Courts under
Article 226 of the Constitution, Bose, J. stated: (AIR p.429, para 14):
14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under
Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. (emphasis supplied)
8. Further, in my considered opinion, the judgment of the Division Bench of this Court reported in 2010(2)CTC 234, will squarely apply to the case in hand, because, the Division Bench, while dealing with the similar circumstances, held in para 33, which is as follows:-
33. From the records produced in this case, the following facts are obvious :-
(a) The activities of the first respondent had caused a great deal of consternation among the authorities and they were forced to transfer him from the place where, according to them, he was causing a lot of damage.
(b) The disciplinary proceedings had been actually initiated before his age of superannuation, since the first charge memo is dated 6.6.2003, whereas his age of superannuation is 31.6.2003.
(c) He had also given a reply to the charge memo dated 6.6.2003, but had not chosen to reveal the fact of the issuance of this earlier charge memo in his writ affidavit.
(d) No orders had been passed permitting him to retire; on the contrary, he was suspended on the eve of his attaining the age of superannuation.
(e) The Supreme Court has held that even if a person had retired, if it is proved that he had caused loss to the establishment, then proceedings can be initiated to recover the amount of loss from him.
(f) Even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminal dues # vide (2007) 9 S.C.C. 15 (supra).
9. It is also relevant to refer another judgment of the Apex Court in State of U.P. V. R.C.Misra, 2007(9)SCC 698, wherein it was held as follows:-
"10. A combined reading of the proviso and the Explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitations imposed by sub-clause (i) or sub-clause (ii) of Clause (a) of proviso to Regulation 351-A will not apply. It is only where an officer is not placed under suspension or charges are not issued to him while he is in service and departmental proceedings are instituted against him under Regulation 351-A after he has attained the age of superannuation and has retired from service and is not under re-employment, that the limitations imposed by sub-clauses (i) and (ii) of Proviso (a) shall come into play.
11. The word used in Proviso (a) is institute. The dictionary meaning of the word institute is: set up; cause to come into existence; to originate and get established; to commence. It obviously refers to the initial action or the commencement of the action. It is entirely different from continuance of an action already initiated. If the intention of the rule-making authority had been that an enquiry instituted against an officer while in service should not proceed after his retirement, save with the sanction of the Governor, then Proviso (a) would have been differently worded and instead of the word instituted, the words continue or proceed or go on would have been used. This being not the language of the proviso, there is absolutely no warrant for holding that an enquiry validly instituted against an officer while he was in service would, after retirement of the officer, require sanction of the Governor for its continuance and culmination."
From the above ratio enunciated by the Hon'ble Apex Court, it is absolutely made clear that in the present case as contended by the learned counsel for the petitioner, there is absolutely no warrant to pass any separate order to retain the petitioner in service, in view of the fact that the petitioner was placed under suspension and the charges also issued to her, while she was in service for having caused financial irregularities. But the petitioner evaded from accepting the charge memo. Further, she successfully evaded from receiving any notice sent to her by the Government. Hence, there was no requirement of obtaining sanction either from the Government or from the department. Because the petitioner was issued with a charge memo, even before her retirement, but the petitioner was successfully absconded herself without giving any latest residential address for communication of any notice from the department.
10. The frequent postal remarks clearly indicate that the petitioner was not at her residence and her deliberate failure to present any petition/representation to the department seeking revocation of suspension order or seeking reinstatement or seeking payment of subsistence allowance clearly disqualifies the petitioner from making the prayer for payment of subsistence allowance. No doubt the respondent should have proceeded by affixing the notice for enquiry at the conspicuous place on her last known residential address. However, since the petitioner successfully evaded for the last 17 years, by withholding the latest address, in anticipation of adverse departmental proceedings as well as the criminal proceedings from the Court, this court does not incline to show any indulgence sitting under
Article 226 of the Constitution of India by issuing a direction for payment of subsistence allowance. On the other hand, since the respondent did not pass any final order on the charge memo issued on her relating to various irregularities though she reached the age of superannuation in view of no order having been passed permitting her to retire from service, it is open to the respondent to proceed with departmental proceedings by serving or affixing notice on her house in accordance with law.
11. Under these circumstances, I am of the opinion that the ratio laid down by the Hon'ble Apex Court in the case of U.P.State Sugar Corporation Ltd.(supra) and judgment of the Division Bench of this Court mentioned supra, will apply fully to the present case on facts and law, wherein the Apex Court and the Division Bench of this Court have accepted that even if a person has attained the age of superannuation, it is possible to dismiss him, in which event, he will not be entitled to his terminated dues (vide 2007 9 SCC 15) the Apex Court has accepted the contention of the Corporation that the jurisdiction of the High Court under
Article 226 is equitable and must reach out to remove injustice wherever it is found.
12. For the reasons stated above, the writ petition is dismissed. No Costs. However, the respondent may proceed against the petitioner from the stage of issuance of charge memo and pass such orders in accordance with law, including the action contemplated under Rule 17(b)(i) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. It is desirable that the proceedings are concluded within three months from the date of receipt of a copy of this order. However, there shall be no order as to costs.
sal To
1.The Director of School Education, Chennai 6
2.Chief Educational Officer, Vellore