K NAGARAJAN Vs. DIRECTOR OF COLLEGIATE EDUCATION

JUDGEMENT

(1.) Both the aforesaid writ petitions at the instance of the same writ petitioner against the same respondents, arising out of the same transaction and being interlinked, on consent of the parties, both are heard together and disposed of by this common order.

(2.) The case of the petitioner is that he was appointed as Assistant Professor in Physics in the PSG College of Arts and Science, Coimbatore against a sanctioned post vide order dated 01.02007 of the fourth respondent. Pursuant to the same, he joined in the said post. Soon after joining, he being a teacher of outstanding merit, an amount of Rs. 44,00,000/- for two research work from the UGC was received by him, which invited professional jealousy and thereafter he was subjected to humiliation and harassment by rival group in the college including the Head of the department. The petitioner as such went through mental agony and stress for which he was forced to take leave. Hence he made application for earned leave but he was allowed one day earned leave only. The petitioner after proceeding on leave for one day as such did not join on duty from 17.10.2011 due to such mental agony and remained absent till 16.08.201 When the petitioner reported for duty on 17.08.2012 indicating his reason of absence, the fourth respondent intimated him that the matter shall be placed before the third respondent college committee. However, subsequently the petitioner received a communication from the fourth resondent that the third respondent has taken the absence of the petitioner seriously and decided to initiate disciplinary proceeding. The petitioner thereafter on 23.11.2012 though requested to the Chairman of the College Committee, to allow him to join duty but he was advised to submit resignation and accordingly the petitioner tendered his resignation. He was intimated that the same shall be placed before the college committee. The petitioner however, before the acceptance of the such resignation made withdrawal of the same on 23.01.2013. Thereafter, without allowing the petitioner to join in duty or without putting the petitioner under suspension as contemplated under Section 19(4) of the Tamil Nadu Private college (Regulation) Act, 1976 (hereinafter referred to as Regulation Act in short), a charge memo was issued to him on 27.02013, indicating two charges, one for remaining unauthorised absence from 15.10.2011 alleging the same to have disturbed the academic interest of the college and as such amounts to misconduct and the other that in spite of the direction of the respondent college to join in duty, he failed to comply with the same which resulted in gross negligence on the responsibility of the petitioner as an employee of the college. The petitioner however, explained the reason of his absence by way of a representation but he was asked to appear before Sub Committee, wherein it was intimated to him that enquiry shall be conducted and accordingly enquiry was conducted wherein the petitioner submitted his representation with a further request to allow him to join in duty. Then on 108.2013, a show cause notice was served on him asking to explain as to why punishment of dismissal shall not be imposed on him for the charges proven. The petitioner made a detailed representation and also challenged such issuance of show cause without furnishing the enquiry report. Thereafter no action on the same was taken and the petitioner was not allowed to join in his duty. No reply in pursuant to the same having been received, the petitioner made a representation pointing out the difficulties faced in not allowing to join in duty on 10.02014 but the same evoked no response. Hence the petitioner came to challenge the show cause notice issued to him without furnishing the enquiry officer report and also challenging the proportionality of the proposed punishment, with the prayer to quash such notice of show cause given on 108.2013 and take back him to service with all backwages from 13.08.2012 with continuity in service. The other writ petition has been filed by the petitioner challenging the action of the respondent not allowing him to join in duty even if he is willing to join in duty and has also not been put under suspension inasmuch as the same would tantamount to violation of his fundamental right under Article 21 of the Constitution of India, with a prayer to direct the respondents particularly the 3rd and 4th respondent to allow him to join in duty forthwith pending disposal of the other writ petition.

(3.) A common counter affidavit has been filed by the third and fourth respondents who are contesting respondents in both the writ petitions, challenging the maintainability of the writ petition against such show cause notice given to the petitioner inasmuch as no final action in this regard has been taken in the absence of approval of the second respondent on the ground that the same is premature. The prayer to allow him to join in duty has been challenged as he was not under suspension as the petitioner conduct amounts to abandonment of service. So also the allegation of the petitioner that he was harassed for professional jealousy, has also been denied inasmuch as the materials on record reveal that the petitioner remained unauthorisedly absent on his own and did not turn up inspite of the telegram made to him and issued notice through newspaper. Thereafter, the petitioner resigned on his own which he later withdrew. The aforesaid act of the petitioner being amounting to abandonment of service, no order of suspension was issued to the petitioner. However, for such unauthorised absence charge memo was issued to the petitioner and the enquiry was conducted wherein the petitioner appeared and participated on 15.04.2013 and admitted the charges and made prayer for mercy. When the enquiry report was furnished with the report that the charges to have been proved considering the admission of the petitioner, the third respondent thereafter did not consider the necessity of seeking the explanation of the petitioner on such report before acceptance and considering the seriousness of the delinquency, decided to impose a punishment of removal of the petitioner and as such issued the notice of show cause proposing such punishment to the petitioner and after receipt of such show cause, finally decided to impose such punishment and as such submitted to the Goverment respondent the proposal to accord approval as required under the Section 19 (1) of the Regulation Act to impose the said punishment which is pending, therefore the final decision is yet to be taken in the disciplinary proceeding against the petitioner. Hence, the petitioner could not have come to challenge the same in this writ petition on the ground stated more particularly when he has admitted the charges before the enquiry officer, so also considering the delinquency and conduct of the petitioner who appears to have abandoned the service, the proposed punishment cannot be said to be disproportionate and the same also being a proposed one its proportionality at this stage cannot be questioned. Hence, the prayer made in both the writ petitions are devoid of merit.