IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.09.2017 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN W.P.Nos.27865 to 27868 of 2005 and WP.MP.Nos.30292 to 30295 of 2005 S.Prabhakaran .. Petitioner in WP:27865/2005 M.Nagalingam .. Petitioner in WP:27866/2005 A.Sathiya .. Petitioner in WP:27867/2005 V.Gunasekaran .. Petitioner in WP:27868/2005 vs
1. The State of Tamilnadu rep. By Secretary to Government School Education Department Fort St. George, Chennai – 9.
2. The Joint Director of School Education (Personnel) College Road Chennai – 600 006. .. Respondents Writ Petitions filed under Article 226 of the Constitution of India for issuance of writ of certiorari to call for the records of the first respondent in G.O.(1D) No.122, School Education (U2) Department, dated 07.06.2005 and the letter bearing No.5279/U2/2004-19, dated 7.6.2005 and quash the same.
For Petitioners : Mr.R.Ravi For Respondents : Mr.R.Govindasamy Spl. Government Pleader COMMON ORDER The petitioners have filed these writ petitions seeking to call for the records of the first respondent in G.O.(1D) No.122, School Education (U2) Department, dated 07.06.2005 and the letter bearing No.5279/U2/2004-19, dated 07.06.2005 and quash the same.
2. According to the petitioners, they are all employed as B.T. Assistants in various Government Schools and they have all put in unblemished services for years. It is stated that on 03.02.2004, when the petitioners were on duty at an examination centre at Thirur for the Diploma Examinations in Teacher Training, inspection was conducted thirty minutes prior to the commencement of the examination by the Joint Director of Government Examinations and his team of officials, and they claim to have recovered notes, books and bits of papers from the students who had come to write the examinations.
3. It is the case of the petitioners that the examination had not commenced at the time of inspection, but the inspection team presumed that there were malpractices and that the entire set of teaching staff were responsible for the malpractices.
4. It is stated that based on the report sent by the inspection team, the Government issued the government order dated 07.06.2005 directing initiation of disciplinary proceedings against 12 persons, including the petitioners herein, in a common proceeding and appointed the Secretary to Government, School Education Department, to function as the disciplinary authority, with powers to impose any of the penalties stipulated in the rules. It is further stated that along with the said government order, the first respondent had issued a charge memo dated 07.06.2005.
5. Assailing the above said two proceedings, the petitioners had filed these writ petitions for the relief stated supra.
6. It is the contention of the learned counsel appearing on behalf of the petitioners that as per the Special Rules for Tamil Nadu Educational Subordinate Service, the second respondent is the disciplinary authority for B.T. Assistants like the petitioners and the first respondent is the appellate authority and, therefore, the government order vesting the power of a disciplinary authority on the Secretary to Government (appellate authority) runs counter to the statutory rules issued under Article 309 of the Constitution of India.
7. He further contended that if the Secretary to Government is allowed to act as a disciplinary authority, the petitioner will be deprived of an opportunity to file an appeal and, this in turn will deny the statutory remedy available to the petitioners.
8. The learned Special Government Pleader appearing on behalf of the respondent justified the action initiated by the respondent authorities and submitted that the act of the respondents does not warrant interference.
9. I heard Mr.R.Ravi, learned counsel for the petitioners and Mr.R.Govindasamy, learned Special Government Pleader for the respondents and perused the documents available on record. Even though these writ petitions were admitted in 2005, till date, the respondent authorities had not filed counter affidavit, nor had chosen to vacate the stay granted by this Court in the year 2005.
10. At the outset, it is to be noted that at the time of admission of these writ petitions, on 31.08.2005, an order of interim stay was granted and the same continues to be in force even as on date, without any effort by the respondent authorities to vacate the said stay.
11. Moreover, in the instant case, the plea of the petitioners that inspection was conducted thirty minutes before the commencement of the examination is not refuted by the respondent authorities.
12. In the case on hand, admittedly, the second respondent is the disciplinary authority and the first respondent is the appellate authority and as against any order passed by the disciplinary authority, an employee will have a right to file an appeal before the appellate authority. If the Secretary to Government, acts as the disciplinary authority and imposes the punishment, the petitioners will definitely be deprived of an opportunity to file appeals against such order. An employee cannot be deprived of his substantive right. When there is a specific provision of appeal against the order of the disciplinary authority and when the appellate authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned.
13. In Balbir Chand v. Food Corporation of India Limited, (1997) 3 SCC 371, the Hon'ble Supreme Court held as under:
“It is now a well-settled legal position that an authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. On that basis, it cannot be said that there will be discrimination violating Article 14 of the Constitution or causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower in hierarchy was the disciplinary authority but the Appellate Authority had passed the order removing the officer from service. Thereby, the appellate remedy provided under the Rules was denied. In those circumstances, this Court opined that it caused prejudice to the delinquent as he would have otherwise availed of the appellate remedy and his right to consider his case by an Appellate Authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider and decide the case imposing penalty as a primary authority under the Rules. In this case, a right of second appeal/revision also was provided to the Board. In fact, appeal was preferred to the Board.
The Board elaborately considered the matter through the Chairman. It is not Violative of Article 14 of the Constitution.”
(emphasis supplied)
14. For the foregoing reasons and in view of the law enunciated in the decision referred supra, this Court is of the considered opinion that the initiation of disciplinary proceedings by the appellate authority and directing the appellate authority to conduct the disciplinary proceedings is contrary to the statutory rules and the same will deprive the statutory right of appeal conferred on the petitioners.
15. In the result:
(a) These writ petitions are allowed and the impugned proceedings in G.O.(1D) No.122, School Education (U2) Department, dated 07.06.2005 and the letter bearing No.5279/U2/2004-19, dated 07.06.2005 passed by the first respondent, are set aside;
(b) Considering the fact that over 13 years have lapsed since the initiation of the disciplinary proceedings and no steps were taken by the respondents to vacate the stay granted till date, this Court does not propose to remit the matter to the appropriate authority at this belated stage. No costs. Consequently, W.P.M.P.Nos.30292 to 30295 of 2005 are closed.
07.09.2017
Note:Issue order copy on 10.04.2018 vs Index : Yes Internet : Yes To
1. The Secretary to Government, State of Tamilnadu, School Education Department Fort St. George, Chennai – 9.
2. The Joint Director of School Education (Personnel), College Road, Chennai – 600 006.
M.V.MURALIDARAN, J.
vs W.P.Nos.27865 to 27868 of 2005 and WP.MP.Nos.30292 to 30295 of 2005
07.09.2017