D. Sunilkumar vs The Chief Educational Officer and Others

K. Ravichandra Baabu, J.—The Petitioner challenged the order of termination dated 31.5.2007 passed by the Second Respondent and

consequently, is seeking for a direction for reinstatement of his service with consequential benefits. The case of the Petitioner is that he was

appointed as Post Graduate Teacher (History) in the Second Respondent-School on 25.6.2002. The Second Respondent attempted to victimize

the Petitioner by citing some frivolous reasons. He passed an order of termination on 4.1.2007 and the same was challenged by the Petitioner

before this Court in W.P. (MD) No. 270 of 2007. Though the said order was set aside by this Court, a liberty was given to the Second

Respondent to proceed afresh. Thereafter, the Petitioner was reinstated in service on 9.3.2007. However, he was suspended on the very next day.

Without paying salary arrears and subsistence allowance, the Second Respondent conducted an enquiry. The Petitioner refused to participate in

the enquiry, since he was not paid the salary arrears. The entire proceedings were made as an eyewash. The Second Respondent thereafter,

changed the Enquiry Officer and appointed one Dr. M. Ajmalkhan. The Second Respondent-Management instead of paying the subsistence

allowance to the Petitioner directly, had remitted the same in his Bank Account and also instructed the Bank Manager not to permit the Petitioner

to withdraw the same. Therefore, the Petitioner was not in a position to participate in the enquiry. Thus, the Petitioner was set ex parte and the

Enquiry Officer submitted one sided report. Consequently, the Second Respondent issued a Show-Cause Notice on 12.3.2007 for which, the

Petitioner filed a reply on 28.3.2007. Thereafter, the Second Respondent issued another Show-Cause Notice on 15.5.2007. When the Petitioner

challenged the same in the Writ Petition in W.P. (MD) No. 4829 of 2007, the same was adjourned for want of production of translated copies of

the documents. In the mean time, the Second Respondent passed the present impugned order on 31.05.2007 terminating the Petitioner from

service. Thus, the present Writ Petition is filed before this Court.

The Third Respondent filed a Counter Affidavit. It is stated therein that the Petitioner was appointed as Post Graduate Assistant (History) at the

Second Respondent-School on 25.6.2002. There was no animosity against the Petitioner as contended by him. On the other hand, as he had

indulged in very many serious acts of misconduct, he was terminated from service on 4.1.2007. When the said order was challenged before this

Court in W.P. (MD) No. 270 of 2007, the same was set aside with liberty to initiate fresh proceedings in accordance with law, after reinstating the

Petitioner in service. Accordingly, he was reinstated in service on 9.3.2007 and subjected to Disciplinary action. He was placed under suspension

pending enquiry by an order, dated 12.3.2007. The Petitioner was paid all salary arrears as well as subsistence allowance in accordance with law.

He was issued with a Charge Memo, dated 12.3.2007. Five charges were levelled against the Petitioner. The charges levelled against him, were in

the nature of very serious misconduct. The Management called for written explanation from the Petitioner and copies of all the basic documents

were enclosed along with the said Charge Memo. As the explanation submitted by the Petitioner, dated 28.3.2007, was far from satisfactory and

not acceptable to the Management, the School Committee decided to conduct a full-fledged domestic enquiry. One Mr. Manakaran Martin, an

independent practising Advocate was appointed as an Enquiry Officer. A notice fixing the date of enquiry on 25.4.2007 was sent to the Petitioner.

The Petitioner did not attend the enquiry and however, sent a communication on 21.4.2007. In order to give further opportunity, the enquiry was

adjourned to 2.5.2007 and accordingly, a Notice was also sent to the Petitioner on 26.4.2007. Again the Petitioner sent a telegram on 2.5.2007

refusing to attend the enquiry on certain reasons. The Petitioner also requested for change of Enquiry Officer. The Management appointed new

Enquiry Officer and sent a Notice on 3.5.2007 to the Petitioner calling upon him to appear for the enquiry on 7.5.2007. The Petitioner refused to

attend the enquiry. The Enquiry Officer adjourned the enquiry finally to 10.5.2007 and to that effect a notice was also sent on 7.5.2007 to the

Petitioner. The Petitioner refused to attend enquiry again and however, sent a letter on 8.5.2007. Therefore, having left with no other option the

Enquiry Officer set the Petitioner ex parte and proceeded with the enquiry and concluded the same. Thereafter, he filed a Report, dated

14.5.2007, which was placed before the School Committee and deliberated in the meeting. The Enquiry Officer had found that all the charges

levelled against the Petitioner as proved. Accordingly, the School Committee accepted the finding of the Enquiry Officer and decided to terminate

the service of the Petitioner. To that effect, a second show-cause notice, dated 15.5.2007, was sent to the Petitioner, by enclosing copies of the

Enquiry proceedings and report of the Enquiry Officer. Even after the receipt of the said Show-Cause Notice, the Petitioner, instead of submitting

his explanation, filed a Writ Petition before this Court in W.P. (MD) No. 4829 of 2007, seeking for quashing Disciplinary proceedings. However,

even before any Notice was served on the Management, a final order in the Disciplinary proceedings came to be passed on 31.5.2007, terminating

the Petitioner from service as he had not submitted his explanation to the second Show-Cause Notice within the stipulated time. The Management

also sent copy of the Termination Order to the First Respondent as well as the District Educational Officer seeking their approval of the termination

of the Petitioner. In the meantime, the Writ Petition in W.P. (MD) No. 4829 of 2007 was also dismissed as withdrawn.

It is further contended by the Third Respondent that the enquiry was conducted strictly by following the Principles of Natural Justice by giving

adequate opportunity to the Petitioner on several occasions which he failed to utilize. The enquiry was conducted by an independent person. All

the proceedings were placed before the School Committee and the actions taken were based on the unanimous decision of the School Committee

and the Third Respondent had not acted in his individual capacity. The Second Respondent-School is a minority institution and therefore, there is

no requirement for seeking prior approval from the Competent Authority before passing the order of termination. The Third Respondent, in his

counter Affidavit, had also extracted the other acts of conduct of the Petitioner to show that his activities were unbecoming of a teacher. Since the

Petitioner had indulged in eve-teasing of the students and teachers, the punishment imposed on the Petitioner cannot be described as highly

excessive or disproportionate.

The First Respondent filed a Counter Affidavit and it is stated that he had received a communication from the School Management on

31.5.2007, informing that the Petitioner was terminated, by an order, dated 31.5.2007. Along with the said communication copies of the School

Committee proceedings were furnished. A reading of the said minutes revealed that the entire Disciplinary proceedings had been initiated and

concluded only with the approval of the School Committee and inflicting of suitable punishment was deliberated and decided by the school

committee. As the Second Respondent-School has been granted minority status by the Competent Authority, prior approval for terminating the

teacher is not required.

Learned Counsel appearing for the Petitioner submitted that a reading of the impugned order would show that there was no discussion about the

Enquiry Report in any manner and it is also not clear as to how the Management had accepted the Enquiry Report as correct. It is his further

contention that the Disciplinary Authority, namely, the School Committee ought to have dealt with the matter by independent application of mind,

without accepting the Enquiry Report in a mechanical manner. It is also further contented by the learned Counsel for the Petitioner that there is a

clear violation of Principles of Natural Justice as the Enquiry Report is ex parte one and the Entire proceedings were tainted with mala fide and

predetermination. Apart from that prior approval of the Competent Authority was not obtained. It is also further contended by the learned Counsel

for the Petitioner that during the Enquiry proceedings the Management was represented by one of the members of the School Committee, by

name, Syed Abdullah, who is non other than the brother of the Correspondent, namely, Third Respondent. Therefore, the entire proceedings are

biased.

Per contra, the learned Counsel appearing for the Respondents 2 & 3 submitted that the impugned order was passed by proper application of

independent mind by the Disciplinary Authority and when the Petitioner had not availed the opportunity given to him either during the enquiry or at

the time of issuing the second Show-Cause Notice, he cannot be permitted to complain the violation of Principles of Natural Justice. The

Management was represented before the enquiry through one Dr. Chelladurai Abdullah as a Presenting Officer, who happened to be one of the

members of the School Committee and also the brother of the Third Respondent. That itself would not vitiate the proceedings, as admittedly the

Enquiry Officer is an independent person against whom there is no bias or motive attributed by the Petitioner. As the school is a minority institution,

question of seeking prior permission or approval before inflicting the punishment does not arise.

Heard both sides.

The Petitioner was appointed as Post Graduate Assistant (History) at the Second Respondent-School on 25.6.2002. The School is admittedly

a minority institution. On certain misconduct, the Petitioner, was terminated from service, previously, on 4.1.2007. A Writ Petition in W.P. (MD)

No. 270 of 2007, challenging the said order of termination, dated 4.1.2007, came to be allowed by this Court on 26.2.2007, only on the ground

that the order of dismissal was passed, without conducting an enquiry and by giving an opportunity of hearing to the Petitioner. Therefore, after

setting aside the Order of Termination, dated 4.1.2007, liberty to initiate fresh proceedings against the Petitioner in accordance with law was

granted by this Court. Thereafter, the Petitioner was reinstated and further suspended on 12.3.2007 pending contemplation of enquiry into grave

misconduct, within the meaning of code of conduct prescribed under sub-section (i) of Section 21 of the Tamil Nadu Recognised Private School

(Regulations) Act, 1973. On the very same day, a Charge Memo was issued against the Petitioner levelling five charges, which are as follows:

(Vernacular omitted)

The Petitioner had given his explanation, dated 28.3.2007, denying all those charges. Thereafter, an Enquiry Officer was appointed by the

School Committee, on being not satisfied with the explanation submitted by the Petitioner. The Petitioner was put on notice by fixing the enquiry on

25.4.2007. It is seen that the Petitioner refused to attend the enquiry on 25.4.2007 and sent a communication on 21.4.2007. Thereafter, the

enquiry was adjourned to 2.5.2007 and the Petitioner was also put on notice about the same. This time also the Petitioner sent a telegram on

2.5.2007, and not attended the enquiry on certain grounds and insisted for change of Enquiry Officer. The Management accordingly appointed

another Enquiry Officer and sent further notice, dated 3.5.2007, to the Petitioner calling upon him to appear for enquiry on 7.5.2007. The

Petitioner only sent a telegram on 7.5.2007, and not attended the enquiry. Therefore, the enquiry was adjourned finally to 10.5.2007 and notice to

that effect was sent to the Petitioner on 7.5.2007 itself. Instead of attending the enquiry, the Petitioner sent a letter on 8.5.2007. Therefore, the

Enquiry Officer proceeded with the enquiry and concluded with the same and filed a report, dated 14.5.2009, to the Management. These facts,

disclosing the dates and events about the conducting of the enquiry, were stated in the Counter Affidavit filed by the Third Respondent, dated

8.8.2007. The Petitioner did not file any re-joinder either denying or disputing those averments.

Thus, this Court has to take those statements made by the Third Respondent in his Counter Affidavit at paragraph No. 5 with regard to the

conduct of enquiry as a statement of fact. Thus, from the perusal of the dates and events, this Court can easily come to a conclusion that the

Petitioner was not interested in appearing before the enquiry to prove his innocence and on the other hand, he was only interested in dragging the

proceedings one way or other without allowing the enquiry to go on. After receiving the Enquiry Report from the Enquiry Officer and applying their

mind to the facts and circumstances of the case and by taking note of the seriousness of the misconduct committed by the Petitioner, when the

Management decided to terminate the service of the Petitioner and issued a second Show-Cause Notice dated 15.5.2007, the Petitioner did not

submit his explanation within the time stipulated and on the other hand, he had only approached this Court, by filing an earlier Writ Petition in W.P.

(MD) No. 4829 of 2007, which also said to have been dismissed as withdrawn. Thus, it is manifestly clear that the Petitioner was not interested in

facing the Disciplinary proceedings on merits.

The Second Respondent placed the Enquiry Report, dated 14.5.2007, before this Court. A perusal of the said report shows that the Enquiry

Officer considered as many as 28 documents filed on behalf of the Management and the deposition of the seven witnesses presented on the side of

the Management. After making thorough discussion, he came to the conclusion that all the five charges framed against the Petitioner were proved.

Insofar as the first charge of eve-teasing of a 10th Standard girl student is concerned, the very same student had deposed as Management

Witness No. 5 and spoken against the Petitioner categorically with dates and events and thereby substantiated the first charge. Another witness

MW6 is one Manikandan, who is also the student in Class 9 and the brother of MW5. He had also spoken against the Petitioner and substantiated

the charge. Considering the statement made by both these witnesses and the report made against the Petitioner, dated 4.1.2007, marked as Ex.

M5, the Enquiry Officer came to the conclusion that the first charge against the Petitioner as proved. Likewise insofar as the second charge is

concerned, the Enquiry Officer considered the evidence MW2 and her Complaint marked under Ex. M2 and thereafter, came to the conclusion

that the said charge No. 2 as proved. MW2 had spoken against the Petitioner and substantiated the charge No. 2. Again in respect of charge No.

3 the Enquiry Officer considered the deposition made by MW1 and also her Complaint against the Petitioner, dated 13.11.2006 marked as Ex.

XM1. Consequently, he came to the conclusion that charge No. 3 is also proved against the Petitioner. Again MW1 had spoken against the

Petitioner and substantiated the charge No. 3. In respect of charge No. 4, the Enquiry Officer had considered the evidence of MW3 and also the

Complaint, dated 9.7.2006 marked as Ex. M3 and ultimately came to the conclusion that such charge No. 4 also proved against the Petitioner.

Likewise, insofar as the last charge No. 5 is concerned the Enquiry Officer considered the evidence of MW4 and also the Complaint made by him,

dated 27.12.2006, marked as Ex. M4 and thereafter, he came to the conclusion that the said charge levelled against the Petitioner as proved.

Since the Petitioner remained ex parte and had not cross examined those witnesses or let in any evidence to prove his innocence, the Enquiry

Officer was left with no other option to conclude the enquiry, and made his report, based on his findings after consideration of the evidences of

MW1 to 6 as well as Ex. M1 to 28 marked on behalf of the Management. Therefore, the Petitioner having failed to avail the opportunity given to

him to defend his case, cannot now come and say before this Court that he is totally innocent. No doubt, he had given his explanation to the

charges, but, merely denying the charges by giving an explanation would not absolve one''s liability to prove his innocence, especially, when an

enquiry is contemplated in pursuance of the charges framed and the explanation submitted. Therefore, I find that the enquiry conducted by the

Management was proper and in accordance with law and that sufficient opportunity was given to the Petitioner and that he had not properly

availed the same.

Further when the second Show-Cause Notice was issued by the Management, the Petitioner did not avail the opportunity once again by filing

an explanation within the stipulated time. Therefore, at all stages the Petitioner had indulged in dragging the proceedings by one way or other

instead of facing the issue on merits. Insofar as the other contention of the learned Counsel for the Petitioner about the participation of the brother

of the third respondent in the enquiry as presenting officer is concerned, I find no substance in such contention as the said person had only

participated as a presenting officer before the Enquiry Officer, who ultimately and indisputably an independent officer to conduct the enquiry.

Certainly, the Management has to be represented before the Enquiry Officer by a Presenting Officer. The conduct of sending one of the

Committee Members as the Presenting Officer before the Enquiry Officer cannot be found fault with especially, when the procedure was strictly

followed in accordance with the Rules and Regulations. Nothing prevented the Petitioner from appearing before the Enquiry Officer and prove his

innocence by placing material documents or oral evidence.

Therefore, in my considered view the impugned proceedings passed against the Petitioner is strictly in accordance with law and by following

the Principles of Natural Justice as well. It is the contention of the Petitioner that the impugned proceedings did not discuss about the Enquiry

Report submitted by the Enquiry Officer. I am unable to appreciate this contention. A perusal of the impugned order shows that under the third

reference cited therein, the Enquiry Report was referred to and while discussing the same in the first paragraph, the Third Respondent had

specifically stated that the Petitioner did not file his objection to the second Show-Cause Notice, dated 18.5.2007. Admittedly, the said second

Show-Cause Notice, dated 18.5.2007, came to be issued only in pursuance of the Enquiry Report. The said Show-Cause Notice itself came to

be issued based on the findings rendered by the Enquiry Officer and the consequent decision taken by the Management for the proposed

punishment. When the Petitioner, admittedly, not participated in the enquiry and when he had also not chosen to reply to the second Show-Cause

Notice in time, he cannot be permitted to say that the Management has not considered the Enquiry Report before passing the impugned order.

Therefore, the Petitioner is not justified in contending that the impugned order does not refer to the Enquiry Report at all. On the other hand, a

reading of the impugned order shows that the Management had applied their mind in proper and perspective manner into the charges levelled

against the Petitioner, as well as the Enquiry Report submitted by the Enquiry Officer. Therefore, this contention of the Petitioner is also rejected.

As the Second Respondent-School is a minority institution, no prior permission is required before imposing the punishment on the Petitioner.

Hence, the contention of the Petitioner on this ground is also rejected.

Considering the seriousness of the charges, more specifically in respect of charges Nos. 1 to 3, which amount to eve-teasing of girl student as

well as the co-teacher, and also by considering the fact that the enquiry was also conducted in a proper manner, I find no reason to interfere with

the order of termination. Accordingly, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.