(Prayer in W.P.No. 7784 of 2017: Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records on the file of the firth respondent and to quash the show cause notice dated 09.03.2017 issued by the fifth respondent.

In W.P.No. 12966 of 2016 : Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorarified mandamus, calling for the records on the file of the fifth respondent and to quash the order of suspension dated 11.02.2016 passed by the fifth respondent and to direct the fourth respondent to permit the petitioner to join as Headmistress of CSI Primary School, Avinasipalayam, Tiruppur District.)

Common Order:

1. The challenge in W.P. No. 7784 of 2017 is to the second show cause notice dated 09.03.2017 issued by the fifth respondent, by which the petitioner was called upon to submit a further explanation to the enquiry report submitted by the Enquiry Officer, holding that the charges against the petitioner stood proved.

The challenge in W.P. No. 12966 of 2016 is to the suspension order dated 11.02.2016 passed by the fifth respondent.

2. Since the issues involved in these writ petitions are interlinked, they are taken up together, heard, and disposed of by this common order.

3. The petitioner, while working as Headmistress, was transferred to CSI Elementary School, Mulanur, Tiruppur District. The petitioner’s husband was working as a B.T. Assistant (History) in CSI Boys Higher Secondary School, Dharapuram. He attained the age of superannuation and was not re-employed but was relieved from service, against which the petitioner’s husband filed a writ petition before this Court in W.P. No. 17675 of 2012. The said writ petition was allowed, and he was permitted to rejoin duty.

4. In view of these circumstances, the petitioner was transferred to CSI Elementary School, Avinasipalayam, Tiruppur District, against which the petitioner filed a writ petition in W.P.(MD) No. 12058 of 2013, and the said writ petition was allowed. Aggrieved thereby, both the respondents herein and the petitioner preferred separate writ appeals in W.A.(MD) Nos. 917 of 2014 and 978 of 2014, respectively. The Division Bench, by a common order dated 28.08.2014, dismissed the writ appeal filed by the petitioner and allowed the writ appeal filed by the respondents herein.

5. Despite requests made to the fifth respondent, the petitioner was not permitted to join duty on the ground that the said posts were surplus posts. In these circumstances, a departmental enquiry was proposed to be initiated against the petitioner for unauthorised absence from duty. Pending enquiry, the petitioner was placed under suspension, and a charge memo was issued. The charge memo reads as follows:

                   Charge No.I :

                   You were promoted to the post of Primary School Head mistress on 1.6.1995 and continued in the same school and on 2.6.2006 you were transferred to CSI Primary School Mulanur on 18.7.2013 you were transferred to the CSI Elementary School Avanashipalayam Thiruppur District. Questioning the order of transfer dt., 18.7.2013 you filed W.P.No. 12058/2013 on the file of the Madurai Bench of the High Court. The said writ petition was allowed against the order passed in that writ petition the management filed writ appeal No 917/2014 was allowed and writ appeal No. 978/2014 was dismissed. The order of transfer is upheld by the Hon'ble High court of Madras at Madurai Bench in W.A. No. 917/2014 dt., 28.8.2014. You have not joined duty ever since the date of transfer 10.7.2013 and after the Hon'ble Division bench order dt., 28.8.2014. You are unauthentic ally absent from 18.7.2013. You absence from work without leave or consent from me amounts to grave misconduct. Since the same has affected the education welfare of the student.

                   Charge No. II

                   "You have not reported the duty in compliance with the order of transfer passed by me on 18.7.2013. You have in your letter of explanation cited above you have expressed your willingness to report for duty at CSI Primary School at Avanashipalayam without prejudice to your alleged claim that you transfer is unsustainable in law cannot be accepted at all. The cumulative effect of conduct and unwillingness to report for the duty before you letter of explanation amounts to gross insubordination and willful dereliction of duty.

6. The Enquiry Officer, after conducting the enquiry, submitted a report to the Disciplinary Authority. The Disciplinary Authority, in turn, issued a second show cause notice calling upon the petitioner to explain as to why the enquiry report should not be accepted and why appropriate punishment should not be imposed. At this stage, the petitioner filed a writ petition in W.P. No. 7784 of 2017, and this Court, by order dated 04.04.2017, granted an order of status quo. The said order of status quo continues to operate as of today.

7. The petitioner has challenged the suspension order as well as the second show cause notice, contending that subsistence allowance was not paid during the pendency of the enquiry and that vital documents and information were not furnished to the petitioner, thereby depriving her of a reasonable opportunity to defend herself before the Enquiry Officer. In such circumstances, it is contended that the enquiry stands vitiated. The learned counsel for the petitioner further contended that the petitioner attained the age of superannuation on 28.02.2019.

8. In response, the learned counsel for the respondent/management submitted that despite confirmation of the transfer order, the petitioner refused to join duty. Therefore, she was placed under suspension pending enquiry. Since the charges have been proved, the fifth respondent rightly issued the second show cause notice, and no interference is warranted.

9. I have considered the submissions of the learned counsel on either side and perused the materials placed on record.

10. Admittedly, the petitioner was placed under suspension on 11.02.2016, and during the pendency of the enquiry, she was not paid subsistence allowance. It is a settled proposition of law that non-payment of subsistence allowance to a delinquent employee pending enquiry vitiates the enquiry.

11. The petitioner submitted a representation to the sixth respondent, requesting a direction to the fifth respondent to furnish the following particulars before commencement of the enquiry, so as to enable her to defend herself reasonably in the enquiry proceedings:

                   (a) Whether Rt. Rev. Paul Vasanthakumar, who claims to be the Manager of all Diocesan Schools, is representing a registered or unregistered body, namely, CSI Trichy–Tanjore Diocese?

                   (b) If CSI Trichy–Tanjore Diocese is a registered body, under which provision of law it is registered?

                   (c) If CSI Trichy–Tanjore Diocese is a registered body, a copy of the certificate of registration issued by the competent registering authority.

                   (d) If CSI Trichy–Tanjore Diocese is not a registered body, under what provision of law Rt. Rev. Paul Vasanthakumar claims to be the Manager of all Diocesan Institutions?

                   (e) Whether CSI Trichy–Tanjore Diocese is recognised as a corporate body by the Government of Tamil Nadu?

                   (f) If CSI Trichy–Tanjore Diocese has not been recognised as a corporate body by the Government of Tamil Nadu, how Rt. Rev. Paul Vasanthakumar claims to be the Corporate Manager of all Diocesan Institutions?

                   (g) Whether CSI Primary School, Mulanur, was established by the Wesleyan Methodist Missionary Society prior to the adoption of the Constitution of India?

                   (h) If CSI Primary School, Mulanur, established by the Wesleyan Methodist Missionary Society prior to the adoption of the Constitution of India, has been declared a minority institution by the competent authority?

                   (i) Whether CSI Primary School, Avinasipalayam, was established by the Wesleyan Methodist Missionary Society prior to the adoption of the Constitution of India?

                   (j) If CSI Primary School, Avinasipalayam, established by the Wesleyan Methodist Missionary Society prior to the adoption of the Constitution of India, has been declared a minority institution by the competent authority?

                   (k) Whether Rt. Rev. Paul Vasanthakumar obtained prior permission from the Education Department for placing the petitioner under suspension, and if so, to furnish a copy of the same.

                   (2) To furnish the petitioner with the following particulars before commencement of the enquiry:

                   (a) Details of the person who would represent the school management in the enquiry;

                   (b) The list of witnesses, with names, proposed to be examined on behalf of the management; and

                   (c) The list of documents, along with copies thereof, proposed to be produced by the management as evidence.

                   (3) To permit the petitioner to engage a lawyer to defend her in the enquiry, as the Enquiry Officer was a practising advocate.”

12. The petitioner further contended that during the enquiry, one Rev. Samuel Rajadurai, Pastor at Dharapuram, entered the enquiry hall and abused the petitioner for having approached this Court against the transfer order. Consequently, the petitioner submitted a letter dated 29.04.2016 before the Enquiry Officer requesting that strangers not be permitted inside the enquiry hall and further sought videography of the entire enquiry proceedings.

13. Although a representation was submitted seeking furnishing of documents, the same were not provided to the petitioner. Without producing the said documents, the Enquiry Officer proceeded with the enquiry and submitted a report holding that the charges stood proved.

14. This Court had granted an order of status quo, which continues to operate as of today. The petitioner attained the age of superannuation on 28.02.2019. Therefore, at this stage, it would not be appropriate to remand the matter to the Enquiry Officer by directing the respondents to furnish the vital documents sought by the petitioner. Moreover, the enquiry stands vitiated due to non-payment of subsistence allowance.

15. In such circumstances, having regard to the fact that the petitioner attained the age of superannuation, the impugned order of suspension and the second show cause notice issued to the petitioner stands vitiated for non compliance of statutory principles enshrined for conducting the departmental against the delinquent.

16. Accordingly, the following order is passed;

                   ii. These writ petitions are allowed. The impugned orders viz., the 2nd show cause notice dated 09.03.2017 and the order of suspension dated 11.02.2016 issued by the 5th respondent are hereby set aside.

                   iii.The 4th & 5th respondents in W.P.No. 7784 of 2017 are hereby directed to send a proposal to the 1st & 2nd respondents to settle the pension and pensionary benefits to the petitioner. The said proposal shall be sent within one month from the date of receipt of a copy of this order.

                   iv.Upon receipt of such a proposal, the 1st & 2nd respondents shall settle the entire pension and pensionary benefits to the petitioner within a period of two months thereafter.

                   v. As regards the non-payment of subsistence allowance during the period of suspension, the respondents 1 & 2 shall pay the subsistence allowance for a period of four months and for the remaining period, the respondents 4 & 5 shall pay the same to the petitioner.

                   vi.The said exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

                   vii.Consequently, the connected miscellaneous petitions are closed. There shall be no order as to costs.