(Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, to set aside the order passed by this Court in W.P(MD)No.12671 of 2011, dated 25.01.219 so far as directing the 2nd respondent to take decision on the proposal, dated 29.10.2011 submitted by the third respondent Management.)

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the 4th respondent in his proceedings in Na.Ka.No.15654/Uu1/2011, dated 06.05.2019 by confirming the impugned punishment order of reduction of rank as Assistant Professor issued by the 5th respondent in his proceedings in Ref.No.165/SPKC/11-12, dated 28.10.2011 and quash the same as illegal and consequently, to direct the respondents to pay the pension as per the last drawn pay received in the cadre of Associate Professor along with arrears within the period that may be stipulated by this Court.)

Common Judgment

C.V. Karthikeyan, J.

1. Both the Writ Appeal and the Writ Petition have been directed to be heard together by direction of the then Administrative Judge by order, dated 18.03.2021.

2. Both the Writ Appeal and the Writ Petition have been filed by Dr.S.Ponnusamy, who was working as Associate Professor in the Department of Chemistry at Sri Paramakalyani College, Alwarkurichi, Tirunelveli District.

3. The Writ Appeal arises out of the order of a learned Single Judge of this Court, dated 25.01.2019 in W.P.(MD)No.12671 of 2011, which Writ Petition had also been filed by Dr.S.Ponnusamy. He had filed the said Writ Petition in the nature of a Certiorari seeking records relating to a communication, dated 28.10.2011 in Ref.No.165/SPKC/11-12 issued by Sri Paramakalyani College Committee.

4. The Writ Petition was focussed with respect to Paragraph Nos.7 and 8 of the said communication. By that communication, the College Committee, with reference to a memorandum of charge, dated 30.08.2011 issued against Dr.S.Ponnusamy and consequent to which he had also been kept under suspension, had stated that the domestic enquiry into the charge had been completed and therefore, considering the gravity of misconduct, which had been proved in the enquiry, a punishment of reduction in rank had been imposed and therefore, he would be reduced from the position of Associate Professor to that of Assistant Professor. It was also stated that in accordance with the Tamil Nadu Private Colleges (Regulation) Act, 1976, and the Rules thereunder, the College Committee had sought approval from the competent authority for the said punishment.

5.The said Writ Petition in W.P.(MD)No.12671 of 2011 had been taken up for consideration by a learned Single Judge of this Court and since it was found that the punishment of reduction in rank was pending at the stage of proposal and the competent authority had not granted approval, it was disposed with the following directions:

                     “7..............

                     (i) the second respondent will take a decision on the proposal dated 29.10.2011 submitted by the College Management pertaining to the writ petitioner within a period of eight weeks from the date of receipt of a copy of this order. Since certain substantial legal contentions are being canvassed on either side, before taking a decision on this proposal, the authority will hear the writ petitioner as well as the representative of the College. They are at liberty to file their written arguments. (ii) Since the writ petitioner had already reached the age of superannuation, it is the Government, which will have to take a decision with regard to the disbursement of the final retirement benefits to the writ petitioner. After a decision is taken by the second respondent, based on the decision of the second respondent, the Management will submit the pension proposal pertaining to the writ petitioner to the Government within a period of three weeks thereafter. The Government shall involve the Accountant General and pass final orders and disburse the retirement benefits to the writ petitioner within a period of eight weeks thereafter.”

6. Challenging this order and the direction issued thereunder, Dr.S.Ponnusamy, had filed the Writ Appeal now under consideration by this Court.

7. Subsequently, the Regional Joint Director, Office of the Regional Director of Collegiate Education at Tiruenveli, had granted approval of the said punishment of reduction in rank in proceedings, dated 06.05.2019 in Na.Ka.No.15654/U1/2011 confirming the proceedings, dated 28.10.2011 in Ref.No.165/PSKC/11-12. These two proceedings were sought to be interfered with by Dr.S.Ponnusamy, who filed the Writ Petition in W.P.(MD)No.14130 of 2019.

8. Since both the Writ Appeal and Writ Petition related to imposition of punishment on the same charge, it is only appropriate that a common order is passed in both the Writ Appeal and the Writ Petition.

9. Dr.S.Ponnusamy will be referred to as the petitioner in these proceedings. Sri Paramakalyani College and its Committee would be referred to as the College and the Joint Director of Collegiate Education at Tirunelveli would be referred to as the Joint Director of Collegiate Education.

10. It would only be appropriate that the facts leading to issuance of the memorandum of charges on 30.08.2011 on the petitioner are stated.

                     10.1.The petitioner at that relevant point of time was working as Associate Professor in the College. It was stated in the memorandum of charge that complaints had been received from girl students and also a parent of a girl student regarding the behavior of the petitioner towards girl students studying in 2nd year M.Sc., Chemistry. It had been alleged that he had addressed them with sexually coloured remarks and in inappropriate manner. He had also asked them unrelated questions in the classes and when not replied, humiliated them by asking them to stand outside the class. He had also deliberately failed the students with vengeance and had challenged them that he would not leave them until they fall in line with his wishes. He had further helped a few of them monetarily and when the students sought to repay the amount, he had asked them meet him in a lodge in Tenkasi and to repay the amount immediately. It was also stated that his conversations with the girl students were tinged with double entendre/innuendoes with sexual overtones, embarrassing them. When this conduct and behaviour were questioned by them, he had intimidated the students alleging retaliatory action through those belonging to his caste. There were similar allegations also. Contending that these acts were in violation of the code of conduct, the memorandum of charge had been issued to the petitioner.

11. The petitioner had not placed any ground that there were violations of principles of natural justice during enquiry which followed. After following due procedure, it was held that the charges stood proved. The petitioner was again issued with a show cause notice calling upon him to express his opinion regarding the issuance of punishment imposed. After considering all relevant materials, he was visited with the punishment of reduction in rank from Associate Professor to Assistant Professor by proceedings, dated 28.10.2011. Challenging this order, as above stated, the petitioner filed the Writ Petition in W.P.(MD)No.12671 of 2011. The order passed and the direction issued in the said Writ Petition had been extracted supra. Challenging the directions issued, he had filed the Writ Appeal which is now under consideration.

12. It had been contended during the course of arguments by Mr.Krishna Srinivas, learned Senior Counsel for the College that the Writ Appeal had now become redundant, since the Joint Director of Collegiate Education had examined the facts and had granted approval of the said punishment.

13. This statement had been countered by Mr.V.Prakash, learned Senior Counsel for the petitioner that the order imposing punishment was mulcted with perversity, since according to him, the enquiry was not conducted in accordance with the stipulations as directed, in what could be termed as the guidelines issued by the Hon'ble Supreme Court in Vishaka judgment (Vishaka and others vs State of Rajasthan and others reported in (1997) 6 SCC 241).

14. However, a careful perusal of the affidavit filed in support of the Writ Petition in W.P.(MD)No.12671 of 2011 would reveal that such a ground was not taken before the learned Single Judge. A perusal of the order of the learned Single Judge also indicates that such an argument was not advanced. The argument that was actually advanced was that the enquiry was not conducted in accordance with the procedure, as contemplated under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act 2013. Before this Court, Mr.V.Prakash, learned Senior Counsel, however, contended that the said Act or Rules would not apply, since the memorandum of charge and the resultant enquiry had been issued and conducted prior to the introduction of the said Act. It was therefore, contended that the stipulations, as provided in Vishaka judgment referred supra, should have been followed.

15. The guidelines so issued included a Complaint Committee to be formed headed by a woman and that one half of the quorum should be women and that there should be an independent observer. It is obvious that grounds deemed convenient have been raised swinging like a pendulum from one end to another. A ground, which should have been raised in the first instance, had not been raised, but had been raised in the Writ Appeal. A perusal of the grounds in the Writ Appeal also reflects that this particular ground of the enquiry not being conducted in accordance with the procedure laid in Vishaka Judgment referred supra, had not been raised.

16. Mr.Krishna Srinivas, learned Senior Counsel for the College contended that the petitioner had participated in the enquiry and he had been granted complete and full opportunity at each and every stage; had been permitted to cross examine girl students who had deposed during the enquiry; he had also been given an opportunity of tendering rebuttal evidence. The learned Senior Counsel stated that it is after following due process that the punishment was imposed. He further pointed out that in the enquiry, the evidence of the witnesses produced by the College in support of the charges and the evidence produced by the petitioner had been analysed threadbare. The evidence of the girl students had been found convinced. They had no prior motive in speaking up in one voice against the conduct of the petitioner, while taking classes for them. They were students studying Post Graduation and it was extremely inappropriate on the part of the petitioner to address them with language containing sexual coloured remarks with double entendre/innuendoes touching upon their conduct and character.

17. We are of the firm view that the petitioner had fallen back to this line of argument, namely, the enquiry which had not been conducted in accordance with the guidelines issued in Vishaka judgment referred supra as a last desperate resort without any conviction and without raising it as a ground either in the earlier Writ Petition or in the Writ Appeal now under consideration or in the Writ Petition which is now also under consideration. An independent Enquiry Officer had been appointed, who conducted the enquiry and had granted full opportunity to the petitioner during the course of enquiry and had thereafter, forwarded a report analysing the evidence adduced in entirety. We therefore hold that the report does not suffer from any irregularity. We further hold that the findings are not perverse.

18. Mr.V.Prakash, learned Senior Counsel for the petitioner then contended that the College had no authority to impose punishment after permitting the petitioner to retire from service. He contended that the petitioner had retired from service on attaining the age of superannuation on 31.05.2014 and therefore, contended that on and from that date, there was no employer-employee relationship granting authority to the College to impose punishment of reduction in rank.

19. Mr.Krishna Srinivas, learned Senior Counsel for the College, however, contended that the punishment of reduction in rank had been imposed on 28.10.2011, which was challenged by the petitioner in W.P.(MD)No.12671 of 2011. The learned Single Judge was conscious that the petitioner had attained the age of superannuation and that the petitioner had been permitted to retire from service.

20. The very same ground was taken before the learned Single Judge and it had been very specifically observed that what was challenged was only a communication, wherein, the College had indicated its intention to award punishment and had sought approval. It was also very specifically observed that the College had not given up its rights to pursue the disciplinary proceedings initiated against the petitioner, when he was still in service. We hold that the flow of dates would indicate that the memorandum of charge had been issued against the petitioner on 30.08.2011 and finally, the Enquiry Officer returned his finding. The College took a decision to impose the punishment of reduction in rank by proceedings, dated 28.10.2011, which had been challenged by the petitioner. We hold that the grant of approval by the Joint Director of Collegiate Education was only a continuance of the sequence of events and more particularly, in compliance of the direction of the learned Single Judge of this Court in W.P.(MD)No.12671 of 2011 and therefore, the ground that the disciplinary proceedings should not have continued after the petitioner retired from service does not vitiate the entire proceedings. We hold that the Joint Director of Collegiate Education and the College had every right to continue with the disciplinary proceedings even after the petitioner attained the age of superannuation.

21. In the Writ Petition challenging the approval granted, the petitioner had only contended that he had an unblemished record and the complaints against him by the girl students were motivated. This is an issue on fact which he had already taken during the course of enquiry by cross examining the students. This contention had not been found favour of the Enquiry Officer.

22. Mr.V.Prakash, learned Senior Counsel for the petitioner placed reliance on the judgment of a Full Bench of this Court, reported in 2015-3- LW-513, in S.Andiyannan vs The Joint Registrar, Cooperative Societies, Madurai Region, Madurai and another. The reference before the Hon'ble Full Bench was with respect to an employee of a Cooperative Society governed by Tamil Nadu Cooperative Societies Act, 1983 and whether disciplinary proceedings could be initiated or continued even after retirement. In paragraph No.29, the Hon'ble Full Bench had given their answer to the reference, which is as follows:

                     “29.The first legal question referred to this Bench is whether the disciplinary proceedings initiated against an employee of a co-operative society governed by the Tamil Nadu Co-operative Societies Act can be continued even after the retirement of the said employee. The decisions relied on by both the learned counsel have categorically make it clear that the legal position is that the authority could continue the departmental enquiry against retired employee, only subject to applicable statutory Rules or bye-law, which govern the terms and conditions of his service of the employee. Hence, the relevant Rules governing the service conditions of the employee is the determining factor as to whether and in what manner a domestic enquiry can be continued against an employee, who retired after reaching the age of superannaution. Hence, had there been any enquiry initiated while the delinquent employee was in service, it could be continued even after his retirement, subject to the service Rules or bye-law of the co-operative society. If the service Rules relating to the employee permits for continuation, there would be no bar in continuing the departmental proceeding, that was initiated while he was in service, even after his retirement. It is also categorically held by the Hon'ble Supreme Court in the latest decisions, that in such circumstances, even if the guilt is proved, there is no possibility of imposing punishment of dismissal or removal from service, as the same is not legally sustainable.”

23. The Full Bench had noted that the authority can continue departmental enquiry against a retired employee subject to the applicable statutory rules and bye-laws. It was specifically held that the relevant rules governing the service condition would be the determining factor. It was held with specific reference to the Tamil Nadu Cooperative Societies Act, 1983, that in the absence of any relevant service rules permitting continuance of disciplinary proceedings, the management would not have any authority to continue the departmental proceedings after the retirement of the employee.

24. Mr.Krishna Srinivas, learned Senior Counsel for the College also placed reliance on the very same observations and stated that the authority to continue the disciplinary proceedings would depend on the rules governing the employment and in this connection, he pointed out that the supervening law was not the Tamil Nadu Private Colleges (Regulation) Act, 1976. Section 18 of the Act very specifically provided that every teacher employed in a private college shall be governed by such code of conduct. The learned Senior Counsel argued that the charges related to violation of the code of conduct.

25. In the agreement entered into between the petitioner and the College on 27.02.1986, when the petitioner was initially appointed, it had been specifically agreed by them as follows:

                     “6.That the said teacher and the College Committee shall conform to all provisions of the Tamil Nadu Private Colleges (Regulation) act, 1976.”

26. This would imply that the petitioner was bound to adhere to the code of conduct and speaking in double entendre/innuendoes touching upon the conduct and character of the girl students can only be stated to be in violation of the code of conduct.

27. Section 18 of the Tamil Nadu Private Colleges (Regulation) Act reads as follows:

                     “18.Teachers and other persons employed in private colleges to be governed by Code of Conduct.

                     (1)Every teacher and every other person employed in any private college shall be governed by such Code of Conduct as may be prescribed and if any teacher or other person so employed violates any provision of such Code of Conduct, he shall be liable to such disciplinary action as may be prescribed.

                     (2)The college committee may define the standards of conduct to be observed by teachers and other persons employed in the private college, such standards not being inconsistent with the provisions of this Act and the rules made thereunder.”

28. We hold that there was no violation of any procedure during the conduct of the enquiry against the petitioner.

29. Mr.S.Prakash, learned Senior Counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court reported in 2024 SCC OnLine SC 3369 in the case of State Bank of India vs Navin Kumar Sinha. In that particular case, disciplinary proceedings had been initiated after superannuation and after the extended period of service, which was under consideration. The disciplinary proceedings was therefore held void ab initio.

30. In the instant case, the disciplinary proceedings had been initiated nearly three years prior to the retirement of the petitioner. The proposed punishment had also been intimated by the College three years prior to his retirement. Thereafter, the petitioner had filed W.P.(MD)No.12671 of 2011, even prior to his retirement. The Writ Petition came to be disposed of by a learned Single Judge on 25.01.2019. The learned Single Judge had held that the College had every right to continue with the disciplinary proceedings. We therefore, hold that this ground raised by the petitioner does not withstand our scrutiny. The same is rejected.

31. Mr.V.Prakash, learned Senior Counsel for the petitioner also relied on the judgment of the Hon'ble Supreme Court reported in (2014) 14 SCC 260, in the case of Dev Prakash Tewari vs Uttar Pradesh Cooperative Institutional Service Boad, Lucknow and others, wherein, it had been held that the disciplinary proceedings could be continued after retirement, only when the authority was vested to continue the disciplinary proceedings.

32. Again, it must be pointed that the disciplinary proceedings had concluded even prior to the retirement of the petitioner. The proposed punishment was also indicated to him, which was thereafter, forwarded to the Joint Director of the Collegiate Education only for approval and before such approval could be granted, the petitioner had filed W.P.(MD)No.12671 of 2011. We therefore, hold that the facts in this case are certainly distinguishable and that there was no procedural violation.

33. Mr.Krishna Srinivas, learned Senior Counsel for the College placed reliance on the judgment of the Hon'ble Supreme Court reported in (1984) 1 SCC 158, in the case of S.Jagadeesan vs Ayya Nadar Janaki Ammal College and another, wherein, it had been observed that since there was no alternative remedy to file an appeal with respect to the punishment imposed more specifically under Section 19 of the Tamil Nadu Private College (Regulation) Act, 1976, the direction of the High Court to file an appeal was sustainable.

34. In the instant case, the petitioner had consciously taken a decision not to file any appeal as provided under the Act. The Act is very comprehensive in nature. Against any imposition of punishment including reduction in rank vested under Section 19 of the Act, an appeal provision is also available under Section 20 and a second appeal can also under Section 21. A further right to file a revision before the Government is also provided. The petitioner had not taken recourse to any such alternate remedy, but had filed the Writ Petition. The petitioner cannot claim ignorance of the Rules or statutory provisions. He cannot claim innocence. He cannot seek indulgence of this Court. We hold that the petitioner had deliberately taken a decision not to file an appeal. Mr.V.Prakash, learned Senior Counsel for the petitioner had never argued that the petitioner should be granted an opportunity to file an appeal. That ground was not at all raised in the earlier proceedings or in the present proceedings.

35. Mr.Krishna Srinivas, also placed reliance on the judgment of the Hon'ble Supreme Court reported in (2013) 6 SCC 515 in the case of Anant R.Kulkarni vs Y.P.Education Society and others, with respect to the jurisdiction to interfere in a departmental enquiry. In paragraph No.24, it had been held as follows:

                     “24.Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed.”

36. Even in the instant case, the petitioner entered into a specific agreement with the College adhering to the stipulations of the Tamil Nadu Private College (Regulation) Act, 1976, and its Rules, which provides for maintenance of code of conduct by every Teacher. Violations of the same naturally invites the charge memo to be issued and departmental proceedings to be initiated on consideration of the explanation tendered. The procedure had been followed in this case. We find no violation of any rules or procedure or any statutory provision.

37. The learned Counsel for the petitioner had filed in the Registry, a copy of the order in Crl.O.P.(MD)No.12661 of 2020, dated 02.06.2023, which was a petition filed to quash the charge sheet in C.C.No.400 of 2020 on the file of the Judicial Magistrate Court at Ambasamudram.

38. That particular calender case had been taken cognizance on the basis of a final report filed by the Inspector of Police, Alwarkurichi Police Station, Tenkasi District in Cr.No.221 of 2011. The FIR in Cr.No.221 of 2011 had been registered for offences punishable under Sections 294(b) and 506(ii) of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998, on the basis of a complaint given by one of the girl students about the conduct of the petitioner, who had scolded her in front of other students by asking her 'are you in thoughts of the time you spent with your husband'.

39. The learned Single Judge of this Court held that the said words are distinguishable from the words 'thinking being with your husband' and further held that the motive was only to make the de-facto complainant more attentive and had therefore, quashed the charge sheet.

40. We hold that in a disciplinary proceeding, preponderance of probabilities alone is the bench mark to examine the conduct of the petitioner in his behaviour and utterances to girl students. The charge sheet has been quashed not because the petitioner had not uttered the words, but because, the words did not make out, according to the learned Single Judge, a criminal offence. The fact remains that he had uttered the words. The order of the learned Single Judge does not in any advance the case of the petitioner.

41. We hold that both the Writ Appeal and the Writ Petition are devoid of merits and should be suffered with an order of dismissal and accordingly, are dismissed.

42. In the result:

1)The Writ Appeal in W.A(MD)No.1523 of 2019 is dismissed.

2)The Writ Petition in W.P.(MD)No.14130 of 2019 is dismissed.

3)No order as to costs.

4)Consequently, connected miscellaneous petition stands closed.