[Common Judgment of the Court was delivered by M.M.SUNDRESH, J.] This Writ Appeal has been directed against the order of the learned single Judge dismissing, the Writ Petition in W.P.No.11008 of 2014 filed seeking to quash the charge memo issued on the appellant on the ground of want of jurisdiction.
2. W.P.No.27490 of 2013 has been filed challenging the suspension order passed by the third respondent, dated 21.08.2013, on the ground that it has been issued without contemplating enquiry and also on the ground of want of Jurisdiction as in the other case.
3. Before going into the respective contentions, let us consider the facts involved in this case. The Appellant herein was initially appointed as Office Assistant under the Management Staff Category (un-aided) by third respondent/ the Corporate Manager. Thereafter, he was promoted as record clerk with effect from 24.03.2008.
4. Based upon the letter of the correspondent of the School dated 21.08.2013, an order of suspension was passed against the appellant by the third respondent on the very same date. Thereafter, charges have been framed against the appellant on the ground of misappropriation. He gave his reply to the charge memo dated 18.12.2013 on 26.12.2013. Further reply was given on 05.07.2014. In the meeting held on 12.08.2014, the Special Board of School Education rectified the charges framed against the appellant, apart from deciding to initiate fresh proceedings by issuance of another charge memo for the subsequent alleged mis-conduct. Challenging, the impugned charge memo a Writ Petition in W.P.(MD)No.11008 of 2014 has been filed by the appellant herein. The said Writ Petition was dismissed on 26.02.2015.
5. The Writ Petition in W.P.(MD)No.27490 of 2013 has been filed challenging the order of suspension. This Writ Petition was initially dismissed as not maintainable. However, the Division Bench of the Principal Bench in W.A.No.1272 of 2014 was pleased to reverse the said finding and thereafter, remanded back the matter for fresh consideration on merits. Since, the Writ Appeal in W.A.(MD)No.219 of 2015 is pending before this Court, this Writ Petition in W.P.No.27490 of 2013 was also directed to be tagged along with it by framing it from the Principal Bench to the Madurai Bench of Madras High Court.
6. Chapter VII Rule 39(3) of the Diocesan Constitution Rules, 1960 speaks about the Board of School Education. The Corporate Manager shall be in general supervision of all over Schools in the Diocese. All orders regarding appointments, transfers, retirements, punishments, etc., will be separately issued by the Correspondents of the respective Schools based on the decision of the Education Board as communicated by the Corporate Manager. The Board shall be the competent authority in respect of the disciplinary action after due enquiry through the Correspondent or a Committee appointed for the said purpose.
7. The learned Senior Counsel appearing for the appellant would submit that there is no Board or authority available with the third respondent in passing the impugned charge memo as well as the suspension order. Secondly, it is submitted that the ratification has been made by the Board after the Status quo order was granted by this Court. To buttress the grievance of the appellant, the learned senior counsel made reliance a decision made by this Court. For better appreciation, the relevant portion of the order passed in W.P.(MD) No.16300 of 2014 dated 11.12.2014, is extracted hereunder:-
?4......Therefore, clause 20 of Chapter III clearly delineates the power of the Corporate Manager that he shall have all the powers of administration over all the schools, including the power to appoint teaching and non teaching staff to those institution to give promotions, to effect transfers of any of the members of staff among those schools and to take disciplinary actions against them. As against the decision taken in respect of the disciplinary proceedings initiated against any of the staff by the Corporate Manager revision lies under Clause 44 under Chapter IV before the Bishop who is the General Manager of the Diocesan Schools. Under clause 45 of Chapter IV, extraordinary power has been given to the Bishop President. Therefore, as rightly contended by the learned counsel for the respondents 2 and 3 that the Correspondent is not competent authority although he is the person entitled to deal with the day today administration of the Schools, the Corporate Manager has got all the powers over all the educational institutions under the Corporate Management as a single unit.
5. This Court keeping in mind that the Corporate Manager, the second respondent herein who has issued the impugned order of suspension has rightly issued the same as per the power conferred under clause 20 of Chapter III, is not inclined to entertain the Writ Petition. If the petitioner is aggrieved by any such order is entitled to prefer a revision before the Bishop under Clause 44 of the Rules and Regulations for Schools in the Corporate Management of the R.C. Diocese of Kottar. Hence, the Writ Petition fails and the same is dismissed.....
8. The learned senior counsel appearing respondents would submit that the charges levelled against the appellant are very serious in nature as seen from the records, and therefore no interference is required. Immediate legal action was initiated by the third respondent as per Rule 39(3) of the Diocesan Constitution Rules, 1960, thereafter, charges have been framed by the third respondent. After issuing the order of suspension to the appellant herein the third respondent is appointed as the Secretary of the Educational Board. The decision has been ratified by the Board, subsequently. Now, it is not open to the appellant to raise this plea in view of the fact that the initial appointment has been made along with the promotion by the third respondent. The order of Status quo was not served on the respondents. There is no action taken against the appellant thereafter. The said plea has been raised neither in the Writ Petition nor in the Writ Appeal but only made during the arguments for the first time. The learned senior counsel relied upon the judgment of the Apex Court in Civil Appeal No.2228 of 2006 in the case of Maharashtra State Mining Corporation Vs. Sunil reported in 2006 5 SCC 96, which has taken note of the earlier decision.
9. The facts as narrated are not in dispute. The appellant was initially suspended in pursuant to the initial action taken by the correspondent, as per letter dated 21.08.2013. This order is only pending further action and further action is not taken. Similarly, for the charge memo issued by the third respondent the appellant has given his explanation twice. Now going into the interpretation of Rule 39(3) of the Diocesan Constitution Rules, 1960 , we are of the view that there is a difference between initiation and conclusion. Initiation is mere action by which a delinquent officer was put on notice for analysing the charge memo. This can be done with the approval of the Educational Board. Accordingly, the approval has been obtained, at that stage, the appellant cannot be termed as a person aggrieved. To put it differently, the said action would form part of the procedural law. The service of charge memo is concluded by issuing a show cause notice. Now after considering the explanation of the appellant, the Board, if not satisfied, will have to direct an enquiry through the correspondent or to appoint a committee for the above said purpose. In the case on hand the appellant reply was considered and thereafter, the decision was taken by the Board, appointing a committee.
10. The Judgment relied upon by the learned senior counsel appeaing for the appellant in the case of Marathwada University Vs. Seshrao Balwant Rao Chavan, has to be seen in its own context. Firstly, the said judgment did not follow the earlier decision rendered in the case of Parmeshwari Prasad Gupta V. The Union of India, (1973) SCC 543. On the contrary, it involves a dismissal order which is sought to be ratified thereafter. The order of dismissal would visit Civil consequences. Therefore the decision relied upon by the learned senior counsel for the appellant cannot be applied to in the present case. Accordingly, we reject the submission made by the learned senior counsel for the appellant on the question of jurisdiction. After all in this case the ratification done was only for initiation of the charge memo and not a final decision.
11. Coming to the second issue, we do not find any merit in the same as well. It is not as if the positive action has been taken with the knowledge of the interim order and notwithstanding the same what has been done is ratification. In fact, ratification is nothing but an action approving the act done already. Apart from the fact there is no material to show that the respondent 3 and 4 were aware of the interim order. For the said action an adverse inference cannot be drawn as deliberate one leading to presumption that it has lead to become null and void. Therefore, the said contention raised also cannot be accepted in our considered view.
12. However, we make it clear that we have not expressed anything on the merits of this case. Hence, the writ petition and the writ appeal are dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
13. At this stage, the senior counsel appearing for the appellant would submit that though the subsistence allowance has been paid for some time, the same has not been paid thereafter. The learned counsel for the respondents fairly submitted that the suitable direction may be given to the respondents 3 and 4 in this regard. In such view of the matter we direct the respondents 3 and 4 to pay the subsistence allowance during the pendency of the entire suspension period as it was sought for in favour of the appellant within a period of six weeks from the date of receipt of a copy of this order and thereafter, continue to pay the same to the appellant. We hope and trust the appellant and the respondents will co-operate for the completion of the proceedings.
To
1.The Director of School Education, O/o.the Director of School Education, D.P.I.Campus, College Road, Chennai-6.
2.The District Educational Officer, Nagercoil Educational District, Nagercoil, Kanyakumari District.
3.The Corporate Manger, Board of School Education, Corporate Management Schools, C.S.I.Kanyakumari Diocese, 71-A, Dennis Street, Nagercoil, Kanyakumari District.
4.The Correspondent, Duthie Girls Higher Secondary School, Nagercoil, Kanyakumari District.
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