THE HON'BLE THE CHIEF JUSTICE These three writ petitions are concerning the continuation and removal of one Dr.I.Ismail, Principal of one Muqyyath Sha Sirguro Wakf Board College (M.S.S. Wakf Board College), Madurai, particularly, in view of the complaint of sexual harassment made by one Ms.K.Shameem Rani, Lecturer in Zoology working in the same college.
2. The short facts leading to these three writ petitions are as follows:- The above referred M.S.S. Wakf Board College is a minority educational institution established in the year 1958. The college and its properties are notified by the Tamil Nadu Wakf Board under the Wakfs Act, 1954. The constitution of the college is governed by its own Constitution framed under G.O.Ms.No.1127 dated 9th September, 1978 issued by the Commercial Taxes and Religious Endowments Department. The administration of the college is governed by a Governing Body consisting of 11 members. Among them two are nominated by the State Government. The Chairman of the Tamil Nadu Wakf Board shall always be the Chairman of the College Governing Body.
3. This college is having faculties in Arts, Science and Commerce, and it also runs Post Graduate Courses. The college admits about 2000 students, out of which some 500 are girls. One Ms.K.Shameem Rani, M.Sc., M.Phil., D/o.Mr.N.M.Kalifulla has been the first lady teacher to join this college in its regular stream, when she joined on 1st October, 1996. The college is running some other self-financing courses like B.B.A. and M.B.A. where, however, there are some other lady teachers by now. One Dr.I.Ismail joined this college initially on 16th February, 1978 as a Lecturer in Economics. On 1st June, 1999 he was appointed as the Principal of that college.
4. Sometime in April, 2003, the above referred Ms.Shameem Rani lodged a complaint with the Governing Body of the above college regarding sexual harassment by the above referred Principal Dr.I.Ismail. There were also complaints regarding mis-appropriation of funds against the Principal. The Governing Body issued a Charge Memo dated 22nd August, 2003 framing as many as 31 charges. Dr.Ismail submitted his explanation. The Governing Body did not find it satisfactory, and therefore, appointed Thiru R.Manickam, a retired District Judge as Enquiry Officer to enquire into the charges levelled against Dr.Ismail. During the pendency of the inquiry Dr.Ismail was suspended on 24.07.2003, however, on a writ petition the suspension was found to be defective. Dr.Ismail was once again placed under suspension from 27.08.2003 after a proper resolution of the Governing Body. After an inquiry the Enquiry Officer held that all the charges were proved except Charge Nos.4, 10 to 15, 23 and 25. The major charges of sexual harassment, mis-appropriation of funds and mis-use of the office of the principal were held to be proved. The Governing Body in its meeting held on 15th December, 2003 resolved to accept the Enquiry Report. The Governing Body issued a notice dated 15th December, 2003 asking Dr.Ismail to show cause as to why he should not be removed from the post of Principal.
5. Dr.Ismail filed W.P.No.37797 of 2003 to challenge the said show cause notice principally on the ground that he was not served with the Enquiry Report, and did not get an opportunity to put forth his case. The High Court accepted this submission and by its order dated 24th June, 2005 quashed the show cause notice and directed the Governing Body to proceed afresh from the stage the mistake had crept in.
6. The Governing Body issued a fresh show cause notice to Dr.Ismail on 1st July, 2005 to show cause as to why the above report should not be accepted. Dr.Ismail submitted his explanation on 1st September, 2005. The Governing Body considered his explanation, and after considering the gravity of the charges of sexual harassment and mis-appropriation of money, decided to remove him from the service vide its resolution dated 2nd December, 2005.
7. Dr.Ismail challenged his removal by filing W.P.No.11618 of 2005. During the pendency of this writ petition, new Governing Body took over for a period of three years from 26th May, 2006. On 29th May, 2006 it decided to withdraw the disciplinary proceedings and to reinstate him in service. Dr.Ismail rejoined service on 30th May, 2006. He withdrew the writ petition on 12th of July, 2006. W.P.(MD) No.7658 of 2007:
8. Reinstatement of Dr.Ismail led one M.A.Asharaf Ali, a former student of this college to file W.P.No.7658 of 2007 in public interest praying that the resolution dated 29th May, 2006 passed by the Governing Body of the college be quashed and set aside. He submitted that there were serious allegations against Dr.Ismail, which had been established, that the Governing Body had earlier passed a resolution to remove Dr.Ismail, and that it had no power to supersede that resolution to take a different view of the matter.
9. This petition has, of course, been opposed by Dr.Ismail, who has been joined as respondent - 5 in the writ petition. He contended that there cannot be any Public Interest Litigation in a service matter.
W.P.(MD)No.9491 of 2007:
10. During the pendency of the above referred writ petition filed by the former student, the above referred Ms.Shameem Rani filed W.P.(MD) No.9491 of 2007 seeking to quash the decision of the Governing Body dated 29th May, 2006 to reinstate Dr.Ismail as the Principal. In paragraph-2 of her supporting affidavit affirmed on 3rd November, 2007 (wherein she has given her age as 45 years) she specifically stated that Dr.Ismail has mis-behaved with her on several occasions. She has referred to some incidents from October, 2002 onwards when her age was around 40 years. She is an unmarried lady. In view of these incidents, she was constrained to write letters to the Chairman of the Tamil Nadu Wakf Board to take suitable action against him. She stated that she had written four letters on various occasions complaining about his mis-behaviour towards her. She stated that he had, with a bad intention, often called her to his chamber to have unnecessary conversation and looked at her in a different manner. In paragraph - 3 of her supporting affidavit she submitted that the charges were already proved by the Enquiry Officer, particularly, Charge Nos.1 to 3, which were with respect to sexual harassment meted out to her. She pointed out that the Enquiry Officer had clearly held that she had been subjected to sexual harassment and a clear finding had been given to that effect. She, further, pointed out that Dr.Ismail had not given any explanation with respect to those specific findings. Therefore, the College Management had taken the earlier decision to remove him from the service, and the subsequent decision to reinstate him will cause irreparable loss to her, to the college and to the society, and the same, therefore, be quashed. Dr.Ismail opposed this writ petition amongst others contending that the petition suffered from laches inasmuch as that after his reinstatement he had rejoined his service on 30th May, 2006, and this writ petition was filed only on 3rd November, 2007.
11. One Mr.Janab S.Hyder Ali, Chairman of the Tamil Nadu Wakf Board, who was also the Chairman of the Governing Body in his ex-officio capacity filed a counter on behalf of the M.S.S. Wakf Board College in W.P.Nos.7658 of 2007 and 9491 of 2007. Both the affidavits are to the same effect. In these affidavits it is stated that during the pendency of these two writ petitions, the Governing Body of the college once again re-considered its decision dated 29th May, 2006 in its meeting held on 7th February, 2008. The Governing Body was of the view that the decision to re-instate Dr.Ismail not withstanding the charges of sexual harassment having been proved was not in conformity with the Constitution of the college. However, in view of the fact that the matter was seized by the High Court, the Governing Body resolved to submit its stand before the Hon'ble Court and obtain suitable orders in the interest of justice.
12. In paragraphs 9 and 10 of this counter, it was stated as follows:- "9). Hence, in the meeting held on 07.02.2008 the decision taken by the Governing Body on 29.05.2006 to reinstate the 5th respondent in service was considered for review and the Governing Body was of the view that the decision to reinstate the 5th respondent as Principal of the college notwithstanding that the charges of sexual harassment are of grave in nature have been proved in the full-fledged domestic enquiry is not in conformity with the constitution of the college. However, in view of the fact that the matter is seized of by this Hon'ble Court in the above writ petitions in W.P.No.7658 of 2007 and W.P.No.9491 of 2007, the Governing Body was resolved to submit its stand before this Hon'ble Court and obtain suitable orders to proceed further in the interest of justice.
10)I respectfully state that in view of the decision taken by the Governing Body of the 3rd respondent college in the meeting held on 07.02.2008 this Hon'ble Court may please to pass suitable order or orders as it may deem fit and proper in the circumstances of the case so as to enable the Governing Body to proceed further in accordance with the Constitution of the college."
13. After the aforesaid affidavits were filed on behalf of the college management in the above two writ petitions, Dr.Ismail thought of going on voluntary retirement. He gave a hand written letter dated 21st April, 2008 stating that he will be retiring voluntarily w.e.f 21.07.2008. The letter written by Dr.Ismail reads as follows:
"From Dr.Ismail, Principal, MSS Wakf Board College, K.K.Nagar, Madurai - 625 020.
To The Secretary and Correspondent, MSS Wakf Board College, K.K.Nagar, Madurai - 625 020.
Sir, I wish to inform you to be kind enough to permit me to go on Voluntary Retirement Scheme (VRS) with effect from 21.07.2008, due to my family affairs. This may kindly be treated as three months notice (21.04.2008 to 21.07.2008) and I may relieved from my duties on the forenoon of 22.07.2008. I humbly declare that no disciplinary proceedings or criminal case or DVAC cases are pending against me as on today regarding the college matter. Thanking you, Yours sincerely
--sd--
21.04.2008"
14. The Governing Body of the College met on 25th April, 2008 and accepted the VRS application of Dr.Ismail. The Secretary of the College wrote to Dr.Ismail on 25th April, 2008 seeking his Service Register and personal file for registering his work related entries and for taking further action. The letter, which is in Tamil, when translated reads as follows:
When the staff members verified the service registers and other files kept in the Principal's Room, it came to know that your Service Register and your personal files are missing. For recording your service related entries and for taking further action, we need your Service Register. Therefore, we request your good self to kindly hand over your Service Register and personal files.
Secretary
-- Sd -- "
15. Thereafter, the college management wrote to the Joint Director, Collegiate Education forwarding the VRS letter of Dr.Ismail, which, when translated from Tamil, reads as follows:
"From 25.04.2008. The Secretary, M.S.S.Wakf Board College, K.K.Nagar, Madurai - 20. To The Joint Director, Collegiate Education, Madurai Division, Shenoy Nagar, Madurai - 20. Sir,
Sub: Aided colleges - Wakf Board College, Madurai - 20 -
Dr.I.Ismail, Principal - Opting Voluntary Retirement from service - Reg.
Ref: Application of Dr.I.Ismail for voluntary retirement dated 21.04.2008.
---------
Dr.I.Ismail, who is working as Principal in our college intends to go on voluntary retirement from 21.07.2008 and has addressed a letter dated 21.04.2009, which is under reference, treating the same as the three months notice (21.04.2008 to 21.07.2008), and the same is hereby forwarded for your perusal.
Secretary
-- Sd -- "
16. It appears that after the Governing Body passed the above referred resolution on 7th February 2008 to reconsider its earlier decision of reinstating Dr.Ismail, it had asked one Dr.A.Basheer Ahmed, the Vice Principal of the college to take the charge of the Principal's post. After the acceptance of the VRS application of Dr.Ismail by the Governing Body on 25th April, 2008 also Dr.Basheer Ahmed continued to hold the charge of the Principal's post. It appears that Dr.Ismail had second thoughts on his VRS and on 16th June, 2008 he barged into the chamber of Dr.Basheer Ahmed along with a few Governing Body Members and insisted on him to hand over the charge of the Principal's post, to which Dr.Basheer Ahmed was constrained to comply with. Dr.Basheer Ahmed, however, recorded this happening to the Secretary of the College Board immediately on the next day, and his letter reads as follows: "From Dr.A.Basheer Ahmed, Vice Principal, M.S.S.Wakf Board College, Madurai - 20.
To The Secretary and Correspondent, M.S.S. Wakf Board College, Madurai - 20.
Respect Sir, Sub: Handing over the charge of the principal post to Dr.Ismail on 16.06.2008 at 09.30 am - reg.
Ref: Nil
---------
I have been directed by the Governing Body through the Secretary and Correspondent through the letter reference number TS/WBC/prin.inc./2008 dated 07.02.2008. According to the direction I took in charge of the principal post on 07.02.2008 at 1.30 pm. On 16.06.2008 without any information and proper writing instruction or direction from the Chairman, Tamil Nadu Wakf Board, or the Secretary and Correspondent of the college, Dr.I.Ismail came along with the following Governing Body Members viz., Dr.Latif Sattar, Haji Ahamed Ibrahim, Haji Aftab Ahamed, Mr.M.Bismillakhan and Dr.Athappan. They insisted me to hand over the principal charge to Dr.I.Ismail. I am unable to contact the Secretary and Correspondent. Due to the direction of the Governing Body members of the college, I handed over the charge of principal post to Dr.I.Ismail. If any legal complication arises in future I am not held responsible for it. It is for your kind information and for proper action. Thanking you, Yours faithfully, .. sd.
17.06.2008."
17. On 3rd July, 2008 Dr.Ismail gave a letter to the Secretary of the College Board withdrawing his application for voluntary retirement. The said letter reads as follows:
"From Dr.I.Ismail, M.A., M.Phil., B.L., Ph.D., Principal, M.S.S.Wakf Board College, K.K.Nagar, Madurai - 625 020.
To The Secretary, M.S.S.Wakf Board College, K.K.Nagar, Madurai - 625 020.
Sir, Sub: Withdrawal of Voluntary Retirement - reg.
Ref: My letter dated 21.04.2008.
-----------
I have given my consent for Voluntary Retirement on 21.04.2008 (to be gone on Voluntary Retirement on 21.07.2008) as per my letter dated 21.04.2008. Now I have decided to withdraw the same. (emphasis supplied) Thanking you, Date: 03.07.2008 Place: Madurai. Yours faithfully, ..sd..
Copy to:-
1.The Secretary, Higher Education, Chennai - 600 009.
2.The Director of Collegiate Education, Chennai - 600 006.
3.The Joint Director of Collegiate Education, Chennai - 600 006."
18. Dr.Ismail wrote to the Chairman of the Wakf Board on 16th July, 2008 to the same effect. The letter reads as follows:
"From Dr.I.Ismail, M.A., M.Phil., B.L., Ph.D., 16.07.2008 Principal, M.S.S.Wakf Board College, K.K.Nagar, Madurai - 625 020.
To The Hon'ble Chairman Avl., Tamil Nadu Wakf Board and M.S.S.Wakf Board College, No.1, Jaffer Shrunk Street, Vallal Seethakathi Nagar, Mannady, Chennai.
Sir, Sub: Withdrawal of Voluntary Retirement - reg.
----------
The Voluntary Retirement given by me is withdrawn vide my letter dated 03.07.2008 (Copy of the same is enclosed).
This is for your kind information.
Thanking you, Date: 17.07.2008 Yours faithfully, Place: Madurai .. sd .. "
19. The college management considered this withdrawal letter and informed Dr.Ismail that his VRS had already been accepted on 25.04.2008, and it was also communicated to him on the same day, and the request to withdraw was, therefore, rejected, and he will be relieved from service on 21.07.2008. The said letter of the College Board, which is dated 21.07.2008, reads as follows: "PROCEEDINGS OF THE SECRETARY, M.S.S.WAKF BOARD COLLEGE, MADURAI - 20 Present: Hajee M.K.M.Hassan Shahib, B.Com., Secretary and Correspondent Dated: 21.07.2008.
Sub: Aided Colleges - M.S.S. Wakf Board College, Madurai - 20 - voluntary retirement accepted - your request for Withdrawal - rejected - Relieving Order issued.
Ref: 1)Your application dated 21.04.2008.
2) Governing Body Resolution Item No.3, dated 25.04.2008.
3) Your letter dated 03.07.2008.
---------
This is to inform you that your request made on 21.04.2008 for Voluntary Retirement was placed before the Governing Body of the College on 25.04.2008 and the same was accepted by Resolution Item No.3 dated 25.04.2008. The acceptance of your request for voluntary retirement was also communicated to you on the same day.
In view of the same, your request for withdrawal of application for voluntary retirement dated 03.07.2008 is hereby rejected. You are relieved from the office of the Principal of the College with effect from 21.07.2008 afternoon, Monday immediately and directed to hand over the charges immediately to Dr.A.Basheer Ahamed, M.A., M.Phil., Ph.D., HOD of Tamil.
Secretary/Correspondent ..sd..
To Dr.I.Ismail, M.A.,M.Phil., B.L., Ph.D., Principal, M.S.S.Wakf Board College, K.K.Nagar, Madurai - 20."
20. Accordingly, Dr.Ismail was given another letter on 22nd July, 2008 and was asked to hand over the charge of the post of principal, which he did on 22nd July, 2008.
W.P.(MD)No.6735 of 2008
21.Dr.Ismail challenged this decision dated 21st July, 2008 by filing W.P.(MD)No.6735 of 2008. He submitted that it was open to him to withdraw his VRS before the effective date, which he had done, and the management's decision to reject his request for withdrawal of his VRS application was illegal and bad in law. The college management has opposed this prayer. The learned counsel for the college management has stated that the counter filed in the earlier two writ petitions is adopted as the counter to this writ petition. He has also stated that the submissions of the petitioner were legal submissions and the same will be replied by citing authorities.
22. Dr.Ismail moved Miscellaneous Petition No.1 of 2009 in this writ petition, and sought an injunction to restrain the college management from appointing a principal on a regular basis. The Division Bench, which heard the matter, did not grant that injunction, and observed that the college cannot be expected to be run without the principal. However, by its order dated 12th February, 2009 it made it clear that in the event any appointment of a principal is made it should be subject to the result of the W.P.No.6735 of 2008. The said miscellaneous petition was accordingly disposed of.
23. Since, all these three writ petitions are concerning the decision of the college management regarding continuation and removal of Dr.Ismail arising out of the complaint of Ms.Shameem Rani regarding the sexual harassment, all the three writ petitions are heard together finally. Mr.S.Subbiah, learned counsel has appeared in support of the PIL viz., W.P.No.7658 of 2007, Mr.B.S.Gnanadesikan, learned Senior Counsel has appeared with Mr.G.R.Swaminathan for Dr.I.Ismail, Mr.T.R.Rajagopalan, learned Senior Counsel has appeared with Mrs.N.Krishnaveni for Ms.K.Shameem Rani and Mr.M.Ajmal Khan has appeared for the college management and the Wakf Board in all these matters.
Submissions by the Parties:-
W.P.(MD)No.7658 of 2007
24. As can be seen from the narration of the facts above, the first of these three writ petitions i.e., W.P.No.7658 of 2007 has been filed by a former student of the college, which sought to challenge the Governing Body's resolution dated 29th May, 2006 to reinstate Dr.Ismail. The petition is on the footing that a competent Enquiry Officer has given an adverse finding against Dr.Ismail, that has been accepted by the management earlier, and that the management had removed him from the service by the Governing Body's Resolution dated 2nd December, 2005. According to the petitioner therein, the Governing Body has no power to supersede its earlier resolution, nor was there any reason to do that, and the revised resolution was affecting the reputation of the institution.
25. On behalf of Dr.Ismail a preliminary objection is raised stating that a PIL cannot lie concerning a service matter, and reliance is placed upon the judgment of the Apex Court in Ranjit Prasad Vs. Union of India, reported in (2000) 9 SCC 313. With respect to the resolution dated 29th May, 2006 reinstating Dr.Ismail, it is submitted on his behalf that the term of the earlier Governing Body had ended on 4th July, 2005, and therefore, the resolution by that body on 2nd December, 2005 was null and void. It is submitted that after the new body was validly constituted, it was entitled to reconsider the earlier decision, and it had arrived at a correct decision on merits, and rightly decided to withdraw the disciplinary action by its resolution dated 29th May, 2006.
26. As far as the second petition by Ms.Shameem Rani viz., W.P.No.9491 of 2007 is concerned, we have already referred to her submission in the earlier paragraphs. The petition filed by Ms.Shameem Rani also sought to challenge the Governing Body's resolution dated 29th May, 2006. Dr.Ismail countered this petition by submitting that the petition suffered from laches, inasmuch as Dr.Ismail had rejoined on 30th May, 2006, whereas the petition had been filed by her only on 3rd November, 2007. He submitted that Ms.Shameem Rani had no locus in the matter concerning his reinstatement. According to him, although the Enquiry Officer had submitted a report adverse to him, it was entirely for the management to accept or reject that report. He submitted that after he rejoined in his post, Ms.Shameem Rani had worked under him for nearly 19 months, and there was no occasion for her to lodge any complaint.
27. As far as these two writ petitions are concerned, the objection to the Writ Petition No.7658 of 2007 filed by Mr.M.S.Asharaff Ali, a former student, is well taken. It has been laid down by the Apex Court time and again that in a service matter there cannot be any PIL, and the reliance on the judgment in Ranjit Prasad (supra) is quite apt. Mr.S.Subbiah, learned counsel for the petitioner in W.P.No.7658 of 2007 has submitted that the petitioner had filed that petition basically to draw the attention of the Court to the situation which had developed as a result of rejoining of Dr.Ismail, although the Enquiry Report was very much against him. He fairly stated that since Ms.Shameem Rani has taken the courage to file her writ petition, there was no reason for him to prosecute this writ petition any further, and the same may be disposed of as such. In view of this statement of Mr.S.Subbiah, learned counsel for the petitioner in W.P.No.7658 of 2007, there is no reason for us to retain this writ petition, and accordingly, the same stands disposed of as not required to be pressed.
W.P.(MD)No.9491 of 2007
28. However, as far as the petition viz., W.P.No.9491 of 2007 filed by Ms.Shameem Rani is concerned it is not possible for us to accept the submission made on behalf of Dr.Ismail that she has no locus standi to file her petition. It is quite clear that she had lodged a complaint of sexual harassment and it was arising therefrom that further actions were taken by the college management. It is, therefore, just not possible to say that she has no locus, particularly, when the management had reconsidered its earlier decision to remove Dr.Ismail. Again, with respect to the objection based on laches to the maintainability of this petition is concerned, it is not possible for this Court to accept that submission either. This is principally because, as submitted by the learned counsel for Ms.Shameem Rani, the petition filed by the former student being W.P.No.7658 of 2007 was pending in this Court and Ms.Shameem Rani preferred to wait. It is not easy for any lady to come to the Court and be bold enough to expose her name in the process of calling a spade as a spade. It is also material to note that Ms.Shameem Rani was the first lady teacher in this college, and that too, she hailed from a minority community, wherein any such complaint by a lady is not likely to be appreciated, and is likely to put her into a very embarrassing position in the eyes of the society. Yet, Ms.Shameem Rani took the courage to file writ petition, and as stated by her counsel, this was because it was feared that the petition filed by a former student being W.P.No.7658 of 2007 would not be entertained as a PIL. Besides, as held in Shiv Doss Vs. Union of India, (2007) 9 SCC 274, if there is negligence or omission on the part of the petitioner in filing the petition, which in the facts and circumstances of the case caused prejudice to the opposite party, the High Court may refuse to entertain such a petition. In the present matter, it is the case of Ms.Shameem Rani that she has suffered harassment at the hands of Dr.Ismail. He was held guilty in the inquiry. He does not suffer if there is some delay on her part in filing the writ petition. He must defend it on its merits. We, therefore, reject the objections to the maintainability of the Writ Petition No.9491 of 2007, either on the ground of laches or on the ground of locus standi.
29. It was submitted on behalf of Dr.Ismail that it was open to the management to reconsider the decision which it had arrived at earlier, and reliance was placed on the judgment of the Apex Court in the case of High Court of Judicature at Bombay Vs. Shashikant S.Patil reported in (2000) 1 SCC 416 to submit that the findings of the Enquiry Officer are not binding on the disciplinary authority. There is no difficulty in accepting this proposition, and if the management could review its earlier decision dated 2nd December, 2005 to remove Dr.Ismail from the service and could take a decision on 29th May, 2006 to reinstate him, it was equally open to the management to reconsider its decision dated 29th May, 2006 and decide on 7th February, 2008 to the effect that the decision to reinstate was not in conformity with the Constitution of the college, and since two writ petitions challenging the decision of the management were already pending in the High Court, the Governing Body may request the Court to pass suitable orders, as it may deem fit and proper in the circumstances of the case. The power to take a decision would certainly include the power to rescind that decision. The only question is as to whether the decision is justified on the merits of the situation.
30. One of the submissions made on behalf of Dr.Ismail to challenge the resolution dated 2nd December, 2005 has been that the term of the earlier Governing Body had expired on 4th July, 2005. This submission need not detain us for long for the simple reason that law does not permit a vacuum in the functioning of a body corporate.
31. A similar situation had occurred earlier. The term of the Governing Body of this very institution had come to an end earlier and one Ms.Nazneen was appointed as the Secretary and Correspondent of the college by the State Government (She continues in the institution as of now also). The appointment of Ms.Nazneen was challenged in W.P.No.6243 of 2005, which petition was turned down. That view was confirmed by a Division Bench also. In Gopalji Kanna Vs. Allahabad Bank, reported in AIR 1996 SC 1729 the order enhancing the penalty imposed on an employee and passed by the Executive Director who was holding the current charge of the post of Chairman and Managing Director was held to be valid. A Full Bench of this Court in A.Savariar Vs. Secretary, Tamil Nadu Public Service Commission reported in 2008 3-L.W.760 has taken a view that an officer in charge of a post has got the authority to discharge the powers and statutory functions of that post. There cannot be any vacuum in the administration of the college, merely because the term of a Governing Body had come to an end. The Governing Body has to perform the day to day administration until the new body takes over. When the report of the Enquiry Officer was received pointing out serious lapses on the part of the Principal, the management had to act and could not fold its hands saying that it had no power. The management's decision dated 2nd December, 2005 cannot be faulted on that ground.
32. Then comes the main question as to what was the complaint of Ms.Shameem Rani and what were the findings of the Enquiry Officer thereon. She had written four letters of complaint sometimes in April, 2003 alleging her sexual harassment at the hands of Dr.Ismail, which have been marked as Ex. M3 to 5 and 9 in the enquiry proceedings. Though some 31 charges have been framed against Dr.Ismail, and as stated above most of them were held to be proved (except Charge Nos.4, 10 to 15, 23 and 25), we will deal with the first nine charges, which are concerning harassment including sexual harassment to Ms.Shameem Rani. These nine charges were as follows:- "1. That you had called Ms.Shameem Rani, Lecturer in Zoology, Self Financing Courses on several occasions during your tenure as Principal on the pretext of some academic work and you had initiated conversation which was unconnected to either academic or administrative requirements of the institution and you had made unsolicited advances towards her.
2. That you had disturbed the moral and well being of Ms.Shameem Rani and that you had exploited your office as Principal to perpetuate such sexual harassment.
3. That you had on several occasions made obscene references to her dress and her physical attributes linking her with cinema personalities.
4. That as Principal you had on several occasions made phone calls to her residence by threatening her of physical harm if she did not respond to your sexual overtures.
5. That you had exposed the girl students of M.S.S.Wakf Board College to perform at a club called Victoria Edward Hall of which you are the Secretary against their wishes and that you had intimidated Ms.Shameem Rani into coordinating this programee at your behest.
6. That on several occasions as Principal you on the pretext of inviting Ms.Banzura, Lecturer to your chamber for discussions, talked for hours together on unimportant and irrelevant matters. That you have threatened her that you would spread rumors about the so called affairs between yourself and her and have lowered her dignity in the institution.
7. The aforesaid acts of yours constitute sexual harassment at the work place. You have exploited your office and position as Principal and have perpetrated acts of sexual harassment against the said Ms.Shameem Rani and Ms.Bansura. These acts of yours would constitute misconduct.
8. That as Principal you have used undue influence and pressure in forcing the Girl students of the College to perform cultural programmes in the Victoria Edward Hall, Madurai by holding out threats, and this conduct of yours has been unbecoming of a Principal by having exposed the girl students to perform at programmes in social clubs and without obtaining prior permission from the parents and guardians.
9. That you had intimidated Ms.Shameem Rani to lodge a complaint against a student viz., Mohammed Shazhasuli, B.Sc. II Year without permitting her to know the contents of the complaint which is unbecoming of a Principal of a College."
33. Ms.Shameem Rani gave her evidence in the enquiry proceedings. She pointed out the treatment meted out to her when she conducted one function namely., "Biofiesta" on 8th October, 2002. It was customary to hold such a function as it was recommended by the UGC, so that it will be useful for the national accreditation known as NAAC. There were perhaps some errors in accounting. Dr.Ismail made allegation of misappropriation against Ms.Shameem Rani and asked the staff members to lodge a complaint against her. Mrs.Nazneen is stated to have comforted her by saying that she and one Mr.Salihu will take care of the matter. Nothing further happened in that matter thereafter. This incident, however, created tension for the Shameem Rani. Then in February, 2003, when she was parking her scooter in the college campus, the Principal was standing there. When she wished him, the Principal called her and stated to her that she looks like a cinema star. She felt that the remark was in a different form, and he stared at her in a crazy manner. In January, 2003, he asked her to go to the Assistant Commissioner of Police Mrs.Hema Karunakaran, and present her a petition regarding a particular boy who had eve-teased his classmate. Ms.Shameem Rani wanted the other teachers to accompany her, but the Principal insisted her for going alone. Her parents did not approve her going alone, nor was she given any particulars of the allegations made against that boy. Though she complied with that request, Ms.Shameem Rani felt that the conduct of the Principal in this matter to be rather odd.
34. Dr.Ismail is the Secretary of one Victoria Edward Hall in Madurai City, and he had organized a cultural programme there, and asked Ms.Shameem Rani that she should get the girl students from the college to participate in that function. Some donations were also collected for the said function, but they had been collected only because it was conducted under the auspices of the college. In that function Dr.Ismail presented her with a silk saree, which she refused to take, and gave it to a girl student, which Dr.Ismail did not like. Later on she learnt that he was indulging in her character assassination, and that of her family members. She heard from others that he stated that she was a call girl, and her character was not good. She received anonymous letters and calls over telephone, and used to report to him in person in good faith, without knowing his intention and without knowing the brain behind that.
35. On the second day of the enquiry i.e., on 09.10.2003 Ms.Shameem Rani stated as follows:-
"Yesterday when I was examined, I was very much depressed. I could not even stand. Therefore, I could not give further evidence and I went away. Dr.Ismail used to call me on every occasion. Because he was my superior, I used to obey his instructions. As days proceeded he began to exhibit romantic style and he used to say (Shameem come here). Whenever people enter into the Principal's room they used to sit in the chairs placed opposite to his table, but so far as I am concerned he used to call me and ask me to come near him stating why I should hesitate. At that time no one used to be present in the room. At that time the curtains used to be drawn in and the room will be closed. At the first instance I did not know why he called me near him. On another occasion he told me relax Shameem why are you afraid. When I came near the chair where he was seated he held my right hand tightly. I became nervous. I asked him why you are doing like this. Why Shameem I only touched you and so stating he put his hand on my shoulder. Then he got up from his chair and attempted to embrace me. I disentangled myself from his embrace and ran out of the room fast. He used to call me dancer Silk Sumitha after quoting my physical features."
36. On the first day Ms.Shameem Rani was cross examined by the counsel for Dr.Ismail for four hours. On the second day also she was cross examined in depth, but the above referred statement of hers could not be demolished. The Enquiry Officer, therefore, observed that the demeanor of the witness leads him to the unshakable conclusion that she is a truthful witness and not a perjurer nor could she be branded as one who revels on imagination or conjured up concoctions.
37. Charge No.6 from the above charges leveled against Dr.Ismail was with respect to his behaviour with one Ms.Banzura. She is a Lecturer in Computer Science in the self-financing course and aged about 25 years. In her deposition given on 19.10.2003 she stated that after she joined the college as Lecturer, initially, things were proceeding in a smooth manner. An year ago talks regarding her character have been going on. The rumors related to her alleged connection with Dr.Ismail. By that she meant immoral connection. She further stated that sometimes the Principal used to call her in his room, and he used to bar the entry of others for about five minutes. He used to enquire about the welfare of her and that of her family members. But, the peon standing outside used to spread the rumours that something immoral is going on, though no such immoral activity took place. She very fairly stated that Dr.Ismail did not make any sexual advance towards her. In the cross-examination she stated that as a result of her being retained in the room by the Principal, rumours spread outside pertaining to her character and on account of the intensity of such rumors, she went to the extent of committing suicide. She gave a report about being retained in the Principal's room to one Prof.Munshi.
38. Dr.Ismail tried to place before the Enquiry Officer that Ms.Shameem Rani was a woman without morality and good character, and for that purpose he examined one Mrs.Swarnalatha, Lecturer in the Tamil Department. The only thing she stated was that Ms.Shameem Rani accompanied a man on a two wheeler, and that when Swarnalatha's husband came to pick her up, Ms.Shameem Rani used to wink at him. Then he examined one Wahida Gousia, who stated that she was one of the signatories to a complaint against Ms.Shameem Rani. One Ms.Syed Ali Banu has been examined, who stated that Ms.Shameem Rani used to sit on a two wheeler pillion and her body used to be close to the rider. The Enquiry Officer has discarded the evidence of these witnesses. As far as the evidence of Ms.Banzura is concerned the Enquiry Officer has commented that there was no reason why Dr.Ismail used to call the witness when the unfortunate rumours were gaining strength and currency. Thereafter, he has observed that "a conspectus and consideration of the testimony of the witnesses on the side of the management and that of the delinquent himself would go a long way in proving the charge of sexual harassment against Dr.Ismail."
39. As pointed out above during the course of the inquiry Dr.Ismail, of course, denied the allegations levelled against him and tried to discredit Ms.Shameem Rani. The attempt to discredit Ms.Shameem Rani, however, cannot destroy the evidence led by her and Ms.Bansura. It is true that Ms.Bansura very fairly stated that there was no sexual advance made to her. At the same time, she also stated that in view of her being frequently called to the chamber of the Principal, and remaining over there alone, it had led to rumours against her character, leading her to think of committing suicide. The Principal of a college must know how to behave with his lady teachers, and therefore, the Enquiry Officer was right in concluding that this has resulted in harassment to Ms.Bansura. As far as Ms.Shameem Rani is concerned, the first charge was with respect to unsolicited advance made towards her, and she has made a graphic description as to what had happened on a particular day. The evidence given by Ms.Shameem Rani on 9th October, 2003 clearly leads to the inference of sexual harassment. This conduct obviously disturbed the moral and well being of Ms.Shameem Rani, and the Principal had exploited his office to perpetuate this sexual harassment. Charge No.2 also gets proved with that. As far as obscene reference to her physical appearance linking with a cinema personality, which is Charge No.3, is concerned, she has given a specific statement. Charge Nos. 5 and 8 are about Victoria Edward Hall incident, and Charge No.9 is about making her to lodge a complaint against a student without giving her full information. Ms.Shameem Rani has deposed on all these aspects, which statements have gone uncontroverted. Charges 6 and 7 are about the behaviour with Ms.Bansura, about which she has also deposed. The Enquiry Officer held that Charge No.4 is not proved and other charges 1 to 3 and 5 to 9 are established. They are all about sexual harassment to Ms.Shameem Rani as well as Ms.Bansura.
40. When a detailed enquiry was held, these two ladies had the courage to depose about whatever had transpired. There was no reason for the Enquiry Officer not to accept their statements. In a departmental enquiry the Enquiry Officer has to decide on the basis of probabilities and preponderances of evidence deposed before him. Ms.Shameem Rani had given a detailed evidence about the various incidences. Obviously, such incident could not have been imaginary and concoctious as the Enquiry Officer himself has stated. The college management has, therefore, passed a resolution on 2nd December, 2005 accepting the report of the Enquiry Officer and rejecting the evidence of Dr.Ismail, and decided to remove Dr.Ismail accordingly.
41. The Governing Body, which took over on 26th May, 2006, however, took a different view of the matter. The evidence of Ms.Shameem Rani was recorded on two dates. Firstly, on 8th October, 2003 and later on 9th October, 2003. The Governing Body accepted the submission of Dr.Ismail that there was no reason for the Enquiry Officer to record the evidence of Ms.Shameem Rani on 9th October, 2003, and that this amounted to re-opening of enquiry. In its resolution dated 29th May, 2006 in Item No.3 the Governing Body observed as follows: "Item No.3 To take appropriate decision regarding the matter of Dr.I.Ismail. The Governing Body members, have been served with the copy of preliminary statement of explanation and objections to the second show cause notice dated 01.07.2005 issued by the previous secretary and correspondent. We note and record that the dismissal order dated 02.12.2005 passed by the earlier meeting itself is suffering from serious legal infirmity. Therefore, the Governing Body members opted to go through the entire set of disciplinary proceedings launched against Dr.I.Ismail from the stage of charge memo to second show cause notice. The findings of the enquiry officer were re-analysed and cross verifications with the evidence let in was done. The Governing Body is of the considered and unanimous opinion that the findings of the Enquiry Officer are not fare and reasonable but to the contrary. They are surmisical. The manner in which the Enquiry Officer has decided to re-open the examination of Ms.K.Shameem Rani afresh for second time despite objection, and reasoning given by the Enquiry Officer for the same are found to be totally unacceptable. In short, we are of the opinion that the Enquiry Officer's findings are unacceptable. The Governing Body is of the opinion that the report submitted by the Enquiry Officer, Mr.Manickam from whom the delegation of power was given by the Governing Body against the provision of law is treated as biased and as non est and as such it is rejected in toto. The objections and explanations given by Dr.I.Ismail were examined with due care and attention. The Governing Body has had elaborate discussion on the explanations and the reply of Dr.I.Ismail is found to be convincing. The Governing Body notes with regrets that Dr.I.Ismail has not been treatd properly and being an innocent academic head, he has been made to face filmsy and baseless charges contained in memo dated 30.08.2003 and a sincere Principal has been made to undergo the unfair ordeal and suffer, loss of social image"
The Governing Body, therefore, decided to allow Dr.Ismail to rejoin as the Principal, and asked him to withdraw all the cases filed by him against the management.
42. As pointed out earlier, after the filing of the above referred two writ petitions viz., W.P.No.7658 of 2007 by Mr.M.A.Asharaff Ali and W.P.No.9491 of 2007 by Ms.Shameem Rani, the Governing Body of the college again re-considered its resolution dated 29th May, 2006. As recorded earlier, the Governing Body now took the view that the decision to reinstate Dr.Ismail was not in conformity with the Constitution of the College, particularly, when the charges of sexual harassment had been proved in a full-fledged domestic enquiry. Due to the pendency of the two writ petitions, however, it decided to submit to the orders of the Court by passing a resolution on 07.02.2008. Thus, it gave up its decision dated 29th May, 2006, though, in view of its own vacillations took the decision that it will submit to the orders of the Court.
43. Mr.M.Ajmal Khan, learned counsel appearing for the Governing Body and the College very fairly stated that it was not expected of the Governing Body to change its decision and criticize the Enquiry Officer, in the manner in which it did, while arriving at the decision on 29th May, 2006.
44. We have to consider the prayer of Ms.Shameem Rani in W.P.No.9491 of 2007 on this background. Ms.Shameem Rani has submitted that the college management had appointed an Enquiry Officer to look into the complaint and the complaint of sexual harassment had been established. It was, therefore, that the Governing Body of the college took the decision to remove Dr.Ismail on 2nd December, 2005. Thereafter, the Governing Body had no material before it to change its decision on 29th May, 2006. This is, now, accepted by the Governing Body itself in its decision taken on 7th February, 2008. This being so, though it is a formality, yet it is necessary that the decision of the Governing Body dated 29th May, 2006 be set aside.
45. As we have noted earlier, Ms.Shameem Rani had lodged a complaint of sexual harassment. As far as sexual harassment is concerned, this has come to be recognized as a misconduct at the work place. In Vishaka and others Vs. State of Rajasthan and others reported in AIR 1997 SC 3011 the Supreme Court referred to the fact that India was a party to the "Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)". Under
Article 51 of our Constitution it was the duty of the State to endeavour to foster respect to international law and treaty obligations. The Apex Court, therefore, adopted the definition of sexual harassment given in the General Recommendation No.23 of CEDAW and declared the law in that behalf under
Article 141 of the Constitution of India. It defined sexual harassment as follows:
"Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a)physical contact and advances;
b)a demand or request for sexual favours;
c)sexually coloured remarks;
d)showing pornography;
e)any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium, or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto."
46. The above definition has been followed in the subsequent judgments of the Apex Court and the other High Courts. To just cite one example, in Apparel Export Promotion Council Vs. A.K.Chopra reported in AIR 1999 SC 625 the respondent tried to molest a lady employee working under him. A departmental enquiry was held and the Enquiry Officer did give a finding that the respondent manifested in his actions acts against moral sanctions. He held that any other conclusion on technical niceties did not withstand the test of decency and modesty. The respondent moved the Delhi High Court and a learned single Judge took the view (with which a Division Bench of Delhi High Court agreed) that the respondent had tried to molest but had not actually molested, and therefore, directed his reinstatement. In an appeal by the appellant-Export Promotion Council, the Apex Court came down heavily on the High Court, and while allowing the appeal, quashed the Judgment of the Delhi High Court, and upheld the departmental order of removal of the respondent. What the Apex Court held in paragraph - 17 of its judgment is relevant for our purpose.
Paragraph - 17 runs as follows:
"17. The High Court appears to have overlooked the settled position that in departmental proceeding, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty"
47. On this background, when we look into the facts of our case, the finding of the Enquiry Officer was very clear. The college management also accepted it. For reasons best known to it, it reviewed that decision. The only ground given for review is that the complainant Ms.Shameem Rani should not have been allowed to lead her evidence on the second date of the enquiry. It was the jurisdiction of the Enquiry Officer as to how he should record the evidence. The evidence of Ms.Shameem Rani was recorded on the first day. She was cross examined by Dr.Ismail's counsel for four hours. Another witness was yet to be examined. It was at this stage that on the second date the Enquiry Officer has allowed Ms.Shameem Rani to be recalled and recorded her evidence. It was a case of sexual harassment. The complainant was very much in a disturbed state of mind. On the second date she has specifically stated that on the previous day she was very much depressed and that she could not even stand, and therefore, she could not give further evidence and went away. In view of this deposition, the Enquiry Officer allowed her to giver her evidence, wherein she has narrated the advances made by Dr.Ismail towards her. The reason given by the Governing Council to reconsider the decision of removal was, therefore, totally untenable. The Governing Council was, therefore, right in its subsequent decision dated 7th February, 2008 that the decision dated 2nd December, 2005 had to be reviewed. Only in deference to the pending matters, the Governing Council submitted that it will accept the orders to be passed by the High Court.
48. The defence of Dr.Ismail on this background has been of denying the allegations levelled against him. He has tried to attribute bad character to Ms.Shameem Rani, which makes things worse for him. Whatever may be his allegations against her, there was hardly any evidence in support thereof. Assuming that he had any grievance against her, Ms.Shameem Rani has given cogent evidence with respect to what transpired between her and Dr.Ismail. There is also the cogent evidence of Ms.Bansura as to how Dr.Ismail used to call her alone to his chamber time and again, and retain her with him in the closed chamber. This has led to wrong impression about her. These are all factors which the lady employees have to assess and form their opinion. They did form that opinion and placed it before the Enquiry Officer. There was nothing to contradict them or to disbelieve them. Therefore, the Enquiry Officer rightly accepted their version of the incidents. In view of what we have stated above, in our view the petition filed by Ms.Shameem Rani will, therefore, have to be allowed and the resolution passed by the Governing Body dated 29th May, 2006 in Item No.3 reinstating Dr.Ismail will have to be set aside. In fact, the college management has indicated in its counter that it does not want to stand by that decision any longer. This writ petition viz., W.P.No.9491 of 2007, filed by Ms.Shameem Rani, is therefore allowed and the order of reinstatement of Dr.I.Ismail is quashed and set aside.
W.P.No.6735 of 2008
49. On this background, the further developments are required to be noted. After Dr.Ismail rejoined on 30th May, 2006, he gave an application for VRS on 21st April, 2008, which was accepted by the college management on 25th April, 2008. Dr.Ismail, however, barged into the office of the Acting Principal on 16th June, 2008 and forcibly took charge of the Principal's Post, which he had handed over in the meanwhile. Later, on 3rd July, 2008 he withdrew his VRS application, which was supposed to be effective from 21st July, 2008. That request had been turned down by the Governing Body by its resolution dated 21st July, 2008. This has led Dr.Ismail, now, to file the third writ petition which is W.P.No.6735 of 2008.
50. In view of W.P.No.9491 of 2007 filed by Ms.Shameem Rani being allowed, in fact, there is no scope for this petition to be entertained any further, since, his removal under the resolution dated 2nd December, 2005 stands confirmed. However, since the petition is pending, the submission therein will have to be dealt with.
51. It is the contention of Dr.Ismail that he has withdrawn his VRS application before the effective date viz., 21st July, 2008. Whereas, it is the contention of the college management that the VRS application had already been accepted on 25th April, 2008, and the same could not be withdrawn any time thereafter, and only the formality of relieving Dr.Ismail had to be effected, which was effected on 22nd July, 2008.
52. Mr.B.S.Gnanadesikan, learned Senior Counsel for Dr.Ismail submitted that the applicant can withdraw his VRS application before the effective date, and in this connection, he relied on the judgment of the Apex Court in the case of Balram Gupta Vs. Union of India reported in 1987 (Supp) SCC 228. It is undoubtedly true that in that matter the Supreme Court did allow the VRS application to be withdrawn. But, what the Court had stated in paragraph 12 is most important. Paragraph -12 of the said judgment runs as follows: "12. In this case the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice of freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for this job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this the respondent is to blame and not the appellant."
53. The law in this behalf has been laid down in different judgments of the Apex Court from time to time. The earliest in this behalf is in the case of Raj Kumar Vs. Union of India reported in AIR 1969 SC 180. In that matter, an I.A.S. officer had asked the government to relieve him from service. The government accepted it. However, before the communication of the order accepting resignation reached the appellant, the appellant withdrew his offer. Yet, the Supreme Court held that the appellant had no locus to withdraw his offer of resignation, after it was accepted. The Court also held that there was no rule framed under
Article 309 of the Constitution of India when the resignation becomes effective.
54. In Raj Narain Vs. Smt.Indira Nehru Gandhi reported in AIR 1972 SC 1302 the Apex Court held that the services of a government servant normally stands terminated from the date on which the letter of resignation is accepted, unless there is any law to the contrary.
55. The judgment in Balram Gupta (supra) will have to be looked at on this background.
56. Then, there are judgments depending upon the service conditions of the particular organization. Thus, in Vice Chairman and Managing Director, APSIDC Ltd. Vs. R.Varaprasad reported in 2003-III-LLJ 23 the Scheme of the Andhra Pradesh State Irrigation Development Corporation Limited for VRS was under consideration. The Apex Court held that after the acceptance of VRS, withdrawal of the option was not permissible, though it may be prior to actual relieving of the employee.
57. In Bank of India Vs. O.P.Swarnakar reported in (2003) 2 SCC 721 the Punjab National Bank Employees Voluntary Retirement Scheme, 2000 was under consideration. In the facts and circumstances of that case, the Apex Court held that the employee could withdraw his option from the Scheme before the same was accepted.
58. Similarly, in Food Corporation of India Vs. Ramesh Kumar, reported in (2007) 8 SCC 141 the Voluntary Retirement Scheme of the FCI was under consideration. After considering the provisions of the said Scheme the Apex Court held that once an employee submits his application for voluntary retirement, it shall be treated as final, and it is not open to the employee to withdraw the same. Same is the view in State Bank of Patiala Vs. Romesh Chander Kanoji reported in (2004) 2 SCC 651.
59. The judgment of the Apex Court in P.Lal Vs. Union of India reported in (2003) 3 SCC 393 is quite strong. The Court held that where the government permits an officer to retire voluntarily and in his absence promotes another officer, the moment the government accepted the notice of voluntary retirement, the retirement become effective.
60. On this background, in the present case, what we find is that Dr.Ismail had applied for VRS "due to his family affairs". His application had been accepted by the college management immediately within three days, and it had informed Dr.Ismail accordingly, and also to the Director of Collegiate Education, Chennai on 25th April, 2008. It had made alternative arrangement also. This being the position, the moment the resignation was accepted and an alternative arrangement was made w.e.f 25th April, 2008, the VRS had become effective. Besides, the withdrawal application is filed much thereafter on 3rd July, 2008. All that it says is "now I have decided to withdraw the same". It gives no reasons whatsoever. No change of circumstances is indicated as is otherwise required even in Balram Gupta's Case (supra). That being so, the management was fully justified in rejecting the withdrawal application. The writ petition filed by Dr.Ismail viz., W.P.No.6735 of 2008 is, therefore, will have to be dismissed. Accordingly, it is dismissed.
61. As stated earlier, W.P.No.7658 of 2007 is not pressed by the learned counsel for the petitioner therein and is disposed of as such. W.P.No.9491 of 2007 is allowed, and the decision of the Governing Body dated 29th May, 2006 reinstating Dr.I.Ismail, is set aside. Accordingly, Dr.I.Ismail stands removed from service by virtue of the earlier decision of the Governing Body dated 2nd December, 2005. In view of the decision in W.P.No.9491 of 2007, W.P.No.6735 of 2008 filed by Dr.Ismail actually does not survive. However, independently looked at it, the prayer therein is untenable. Assuming that Dr.I.Ismail could apply for withdrawal of his VRS, the application was rightly rejected by the college management, and therefore, this petition stands dismissed, though there will not be any order of costs on this petition. All the connected miscellaneous petitions are closed.
62. Before we part with the matter, we are clearly of the view that W.P.No.9491 of 2007 filed by Ms.Shameem Rani would not have been required to be filed, if the college management had not vacillated, and if they had not changed their original decision dated 2nd December, 2005 to remove Dr.Ismail from the college. It is most unfortunate that she had to suffer sexual harassment at the hands of her college Principal. He is supposed to be in loco-parentis and one would not have expected such a conduct from a Principal of an educational institution. We quite appreciate the courage shown by Ms.Shameem Rani in lodging the complaint to the college management and following up the matter by filing the writ petition, when the management decided to change its original decision dated 2nd December, 2005. We would have refrained from disclosing the name of petitioner Ms.Shameem Rani. However, since, she has shown the courage in filing the petition, we do not think it necessary to do so and which will deny the credit which is otherwise due to her. Dr.Ismail will pay the cost of Rs.15,000/- (Rupees fifteen thousands only) and the college management will pay the cost of Rs.10,000/- (Rupees ten thousands only) to Ms.Shameem Rani towards costs in W.P.No.9491 of 2007.
sm Copy to:-
1. The Secretary to Government, B.C., M.B.C. and Minority Welfare Department, Fort St.George, Chennai - 600 009.
2. The Chairman, Tamil Nadu Wakf Board, Chennai - 600 020.