M. Soosaimanickam vs The State of Tamil Nadu

V. Kanagaraj, J.—Petitioner has filed this writ petition praying to issue a Writ of Certiorari calling for the records pursuant to the impugned

termination order dated 06.10.1994 passed by the sixth respondent herein and quash the same.

In the affidavit filed in support of the writ petition, the petitioner would submit that he has worked as a Tamil Pandit under the sixth respondent

for the past 26 years; that due to his ill-health, he could not attend the School from 27.8.1992 to 20.9.1992 and he applied for Medical Leave and

also produced the Medical Fitness Certificate at the time of joining duty; that contrary to the Rules, the petitioner was directed by the sixth

respondent to produce the Fitness Certificate from the Medical Board; that though he worked till 26.8.1992, his salary from August 1992 was not

paid; that ultimately he joined duty on 25.9.1992, but his salary was not paid from 1.8.1992, in spite of his joining duty after the expiry of Medical

Leave on 25.9.1992. Therefore, he filed a writ petition, in W.P. No.7111 of 1993 praying for the issue of a Writ of Mandamus directing the

respondents to disburse the salary due to him from 1.8.1992 till date and to pay the amount for the earned leave for the year 1992, with interest,

which was ultimately dismissed by this Court on ground that this Court cannot interfere with the internal administration of the Minority Institutions;

that thereafter, the petitioner preferred a writ appeal in W.A. No.459 of 1994 and the same is pending.

The further averments of the writ petition are that after joining duty on 25.9.1992, the sixth respondent imposed false charges against the

petitioner and hence he filed W.P.No.22291 of 1993 and this Court also granted stay of the punishment to be imposed alone; that he again went

on medical leave from 19.12.1993 to 14.2.1994 and reported duty on 15.2.1994 with a Medical Fitness Certificate; that when he was about to

sign the attendance, the sixth respondent herein prevented him from signing the attendance register and therefore, he made representations before

respondents 2 to 5 and also preferred an appeal before the third respondent herein, but there was no response; that in the mean time, the petitioner

had attained the age of superannuation on 17.9.1994 and retired from service on 30.9.1994; that he sent an application to the sixth respondent for

the settlement of his retirement benefits i.e. from 30.9.1994.

The petitioner would further submit that he filed W.P.No.7869 of 1994, praying for the issue of a Writ of Mandamus directing the sixth

respondent to admit him to continue as a Tamil Pandit in the sixth respondent institution till his attaining the age of superannuation as per the Rules,

which is pending; that pending the writ petition, the sixth respondent issued a charge memo. dated 2.6.1994 stating that the petitioner was absent

from duty from 20.12.1993, for which he sent a reply on 10.6.1994; that a domestic enquiry was fixed on 14.7.1994 wherein the seventh

respondent was appointed as the Enquiry Officer; that the said enquiry got adjourned to 19.7.1994; that no list of documents or witnesses have

been furnished in the alleged charge memo., and therefore, he requested the sixth respondent to furnish all the copies and till date, no copy has

been served on him; that the petitioner further submits that the Enquiry Officer, viz., Kasi, was a retired Clerk from a private mill; that the petitioner

again filed a writ petition in W.P.No.12620 of 1994 to quash the entire proceedings initiated by the sixth respondent and this Court dismissed the

same; that the sixth respondent, by his letter dated 21.9.1994, issued a notice to the petitioner proposing to award imposition of penalty of

dismissal with retrospective effect from 3.6.1994, thereby calling for his reply within two days from the date of receipt of the said notice; that the

petitioner also gave a telegram to the sixth respondent on 23.9.1994 praying to grant a time of fifteen days from 22.9.1994; but, however the

petitioner received the impugned order of termination dated 6.10.1994 with retrospective effect from 3.6.1994. Hence the writ petition for the

reliefs extracted supra.

In the counter affidavit filed by the sixth respondent, it would be submitted that in the year 1989, the petitioner applied for medical leave from

27.6.1989 to 26.7.1989 i.e. for 30 days, again from 19.9.1989 to 25.9.1989 i.e. for 7 days as medical leave and from 13.2.1991 to 14.3.1991

i.e. for 30 days as medical leave and again from 8.10.1991 to 21.11.1991 as medical leave; that further he applied for medical leave from

24.2.1992 to 24.3.1992; that further he was absent from 27.8.1992 applying for leave for a period of 27 days on medical grounds; that thereafter

he joined duty on 25.9.1992; that in his application, he applied for leave for 25 days i.e. from 17.8.1992 to 20.9.1992 as Unearned Leave on

Medical Certificate; that since he had already worked in the School till 26.8.1992, the above leave applications were found to be defective and

hence he was requested to give a fresh application showing the correct particulars, but the petitioner did not do so and he directed the sixth

respondent to make necessary corrections in the leave letter and to read the date as ''from 27.8.1992 instead of 17.8.1992.

The sixth respondent would further submit that the petitioner instead of sending a fresh leave application showing the correct particulars, filed a

writ petition viz., W.P.No.7111 of 1993 which was dismissed ultimately; that thereafter the petitioner sent a fresh leave application dated 8.2.1994

through registered post, which was also approved by the fifth respondent; that based on the above, the management had claimed the salaries of the

petitioner and a total sum of Rs.56,169/= being the salary from 1.8.1992 to 18.12.1993 was also paid to him on 1.8.1994; that in the meanwhile,

the petitioner filed W.A.No.459 of 1994 as against the order passed by this Court in W.P.No. 7111 of 1993, which was also dismissed on

18.2.1994; that as the conduct of the petitioner inside the school premises required a disinterested enquiry, a show cause notice dated 9.12.1993

was issued to the petitioner calling upon him to offer his explanations in this regard. But the petitioner sent a telegram requesting extension of time

and accordingly on 10.12.1993, an extension of time was also granted; that further an Enquiry Officer was appointed under the memo. dated

18.12.1993 and the same was served on the petitioner informing the date of enquiry on 21.12.1993 at 10.30 a.m.

The further averments of the counter affidavit are that the petitioner sent a telegram on 19.12.1993 to this respondent requesting medical leave

for 30 days from 19.12.1993 to 17.1.1994 and also sent a leave application through registered post, which was rejected by the management on

ground that no adequate cause was shown in the leave application and the same was communicated to him on 21.12.1993; that at that stage, the

petitioner filed W.P.No.22291 of 1991 challenging the charge memo. issued by the sixth respondent, in which this Court ordered stay regarding

the punishment to be imposed alone; that after enquiry in accordance with law, the Enquiry Officer submitted his report finding the petitioner guilty

of the charges levelled against him. However, in view of the interim order granted by this Court as mentioned above, this respondent is awaiting the

result of the main writ petition which is still pending.

The further averments of the counter is that the petitioner did not report for duty, but he sent another leave application seeking extension of leave

from 18.1.1994 to 14.2.1994 which was rejected by the management; that when the petitioner came to the office of the sixth respondent on

15.2.1994, the sixth respondent gave letter to him calling for explanation for his absence from 19.12.1993 to 14.2.1994, which he refused to

receive and left the school premises; that on 15.2.1994, the petitioner lodged a complaint against the sixth respondent alleging that he beat him; that

after investigation by the Police, all further proceedings were dropped as they were fully satisfied with the explanations given by the sixth

respondent and others.

It is further submitted that in the staff meeting held on 18.2.1994, a unanimous resolution was passed condemning the attitude of the petitioner;

that a show cause notice dated 2.6.1994 was sent to the petitioner regarding his unauthorised absence from 15.2.1994 and he sent a reply dated

10.6.1994 denying the charges; that another notice dated 7.7.1994 was issued on the petitioner informing the appointment of the enquiry officer,

date and time of enquiry; that the petitioner in his reply dated 7.4.1994 requested for certain particulars including the name of the witnesses, the list

of documents and the copies of the same; that the petitioner also sent a letter dated 13.7.1994 expressing his willingness to participate in the

enquiry.

It is also submitted that the petitioner filed W.P.No.7869 of 1994 praying to direct respondents No.4 and 5 to allow him to continue in service

till he attained the age of superannuation; that he also filed W.P.No.12017 of 1994 for directing the management to allow him to serve in the

school till 30.9.1994; that he filed W.M.P.No.12018 of 1994 for directing the management to permit him to retire from 30.9.1994 with all the

terminal benefits; that he filed another petition in W.M.P.No.15786 of 1994 for passing an order of injunction restraining the respondent from

proceeding with the proposed enquiry pursuant to the show cause notice dated 2.6.1994; that the enquiry was duly conducted in respect of the

charge memo. dated 2.6.1994 and a report was submitted holding the petitioner guilty of the charges; that again a show cause notice was served

on the petitioner on 21.9.1994 as to why he should not be dismissed from the service; that even then the petitioner sent a telegram dated

23.9.1994 seeking some more time for sending the reply and time was extended till 3.10.1994; that in spite of the extension of time, the petitioner

did not submit his explanation. Therefore, the impugned order was passed on 6.10.1994 dismissing the petitioner from service; that the petitioner

filed W.P.12620 of 1994 to quash the entire proceedings initiated by the sixth respondent against him which was dismissed by this Court on

25.7.1994 in limine. On such grounds, the sixth respondent would pray to dismiss the writ petition.

During arguments, the learned counsel appearing on behalf of the petitioner, besides bringing forth the facts and circumstances as narrated in

the writ petition, would lay emphasis that it is a case of termination of a teacher, who served for 26 years and he was due to retire on 30.9.1994;

that on account of ill-health, he applied medical leave from 27.8.1992 to 20.9.1992 for 23 days and from 19.12.1993 to 14.2.1994 for two

months when he was eligible for a medical leave of 18 months; that he was not permitted to take charge and there was physical attack against him

resulting in the police complaint being lodged; that regarding the charge memo. dated 2.6.1994, the learned counsel would point out that there is

nothing serious about the allegations of the charge memo.; that they appointed the seventh respondent as the Enquiry Officer, who was a clerk

working in a private company and now retired; that normally, the School committee would appoint only a retired Government Officer; that the

enquiry proceedings proceeded without any procedure being followed and ultimately, the Enquiry Officer submitted his report on 16.9.1994 and

an order of termination had been passed against the petitioner on 6.10.1994 giving effect to the termination from 3.6.1994, which is unknown to

the service law; that the allegation and punishment do not commensurate, needless to mention that it is excessive and unconstitutional; that there

was absolutely no complaint against the petitioner in the School from any quarter.

In reply, the learned counsel appearing on behalf of the sixth respondent would submit that the complaint was dated 6.12.1993, the show

cause notice was dated 9.12.1993 and the enquiry report was submitted on 21.12.1993; that from 19.12.1993, he applied for medical leave and

on 2.6.1994, he was called back to answer the fresh enquiry. Pointing out the order passed by this Court in W.P.12620 of 1994 dated

25.7.1994, the learned counsel would remark that in the said judgment, the said matter had become final; that the question of reinstatement would

not arise since already he had retired; that the pensionary benefits are not going to be lost by the school, but only by the Government. On such

arguments, the learned counsel appearing on behalf of the sixth respondent would seek to dismiss the writ petition with costs.

In consideration of the pleadings by parties, having regard to the materials placed on record, and upon hearing the learned counsel for both, it

comes to be known that the petitioner, a retired teacher, who served in the sixth respondent School, (which is also said to be a minority institution,

wherein the representative of the sixth respondent School is the Head Master and Correspondent of the school) has been terminated from service

on twin charges, which run as follows:

(i) that without prior permission, the petitioner was absent to School from 20.12.1993 and in this regard, since the petitioner has no valid or

reasonable excuse, no leave was sanctioned and in spite of this having been intimated by post on 21.12.1993 and on 21.1.1994, the petitioner had

not returned to School; that in spite of having attended to the School on 13.2.1994, without explaining his conduct with the Headmaster, nor even

answering the questions put by the Headmaster, had gone out of the School and even absent to the school thereafter till he received the notice

dated 2.6.1994; that without prior permission, absented himself from attending to the school and did not take serious note of the communication

sent by the management and acted against the rules and regulations of the school.

(ii) that the conduct of the petitioner is in violation of the disciplinary rules.

For charge No.1 above, the petitioner would give an explanation denying the charges that he absented himself from attending to the School

from 20.12.1993 without obtaining any prior permission from the management. The petitioner would explain that he was on medical leave from

19.12.1993 to 14.2.1994 for 58 days and thereafter on 15.2.1994 at about 9.15 a.m. When he attended to the School, he was not only

obstructed from putting his signature in the attendance register, but was also pushed and beaten up resulting in certain abrasions on his body, for

which, he had to get admitted and treated in the Government Hospital, Tuticorin as inpatient for six days and this incident was intimated to the

Director of School Education, Joint Director (School Education), the Chief Educational Officer and the District Educational officer by telegram and

by registered post; that even a criminal case was registered on the complaint lodged by him by Mathiyabhagam Police Station, Tuticorin; that it is

false to allege that he did not respond to the letters sent by the management; that for the letter dated 21.12.1993 and 21.1.1994, he replied on

23.1.1994; that while so, it is utterly false to allege that without answering the questions put by the Headmaster on 15.2.1994, he went out of the

School and did not return which is quite contrary to the facts; that further expressing his intention to serve in the school provided he is permitted to

do so, the petitioner would submit his report to the management. The second charge is not based on any particular fact, but in a generalised form

to the effect whether the delinquent teacher has violated the disciplinary rules of the management.

From the enquiry report, it comes to be known that in accordance with the letter dated 07.7.1994, the Enquiry Officer one M. Kasi has been

asked to conduct the enquiry against the petitioner on the charges dated 2.6.1994 and the enquiry was fixed to be held on 19.7.1994, 26.7.1994,

27.8.1994 and on 8.9.1994, but the petitioner did not appear on any of these dates, in spite of having received all the notices sent. However, the

petitioner alleges that he sent telegrams and registered letters denying the charge memo. dated 2.6.1994 which was issued to him, further alleging

that he was not supplied with the copy of the charge memo. and the enquiry held was one sided and partial; that the enquiry officer has no locus

standi to conduct the enquiry.

In the above scenario, the enquiry officer had proceeded with the enquiry and had examined the representative of the management one M.

Devadoss, further marking the management exhibits. The enquiry officer would finally pass his order stating that on 19.7.1994 and 26.7.1994, the

charge memo. has been sent to the petitioner seeking his explanation, further informing him to attend to the enquiry; that without being in a position

to postpone, the enquiry officer would proceed to pass an order and would ultimately find the petitioner guilty of both the charges, based on which,

the disciplinary authority issued a show cause notice seeking explanation from the petitioner, as per his letter dated 21.1.1994 thereby giving a time

of two days for the petitioner to submit his explanation, lest, orders would be passed to remove him from service presuming that he has nothing to

offer.

It is relevant to note that in this show cause notice itself, the disciplinary authority has revealed that it has been preliminarily arrived at to dismiss

him from service with effects from 3.6.1994. The delinquent teacher, the petitioner herein, seems to have also submitted his explanation on

8.10.1994, but even on 6.10.1994 itself, the management had passed the order of termination thereby terminating the petitioner teacher from the

services of the management with effects from 3.6.1994.

It is the admitted case of the management that the petitioner had served the management for 26 long years and absolutely no blemish had been

brought forth by the management itself against the petitioner all these years, but only at the fag end of his career when he was due to retire on

30.9.1994; that there had been some misunderstanding between the management and the petitioner, which had resulted in many a shortcomings as

brought forth supra. No doubt, the petitioner had been going on leave, since according to him, he was eligible for a medical leave of 18 months and

that on expiry of the leave period when he reported for duty on 15.2.1994 with the medical fitness certificate, he was manhandled by the sixth

respondent Headmaster-cum-Correspondent, as a result of which, the petitioner would further state that he was treated for the injuries sustained,

for six days in the Government Hospital, Tuticorin, in connection with which, he had also lodged a criminal complaint on which a case was

registered against the sixth respondent.

On the part of the management, they would allege that the petitioner was in the habit of going on leave without prior intimation or permission

and because of his frequent absence, the functioning of the school got affected; that on 15.2.1994, no such untoward incident as it had been

complained of on the part of the petitioner took place, but the petitioner, in spite of having attended to the school, did not explain his conduct of his

going on leave when it was questioned by the sixth respondent and even without uttering anything in answer, he went out of the school.

A culmination of all these sequences have resulted in the charge memo. dated 2.6.1994 based on the absence of the petitioner from duty from

20.12.1993 and the petitioner had also sent the reply dated 10.6.1994 and in the domestic enquiry held on 14.7.1994 which prolonged thereafter

for many days, the enquiry officer, filed his report finding the delinquent petitioner guilty of both the charges framed.

A careful study made into the charge memo., the enquiry proceeding and the very enquiry report would depict only the sorry state of affairs

that nothing had gone well within the whole of the proceeding, right from the framing of the charges as per the charge memo. The charges are not

only vague and indefinite, but also in a generalised form without giving exact particulars and pinning the petitioner with such delinquencies in

violation of the disciplinary rules. It is settled that unless the charges are specific and clear and in unambiguous terms, the delinquent may not at all

be able to take his defence based on such ambiguous and indefinite charges. Moreover, the very charge No.1 in the charge memo. is not on

tenable grounds, but based on the petitioner going on leave in spite of the knowledge of the management that he was eligible for such medical leave

for 18 months.

So far as the proceeding of the disciplinary authority is concerned, the petitioner would allege on his part that the enquiry officer appointed by

the management is not at all fit for conducting such enquiry on a school teacher, and that he himself is a retired clerk in some management or

Corporation; that in the normal course, only a retired experienced teacher from the school itself used to be appointed as enquiry officer. No

particular procedure seems to have been followed by the enquiry officer right from the beginning with such opportunities for the petitioner to be

heard, nor does it seem that all the documents relied on by the management have been supplied to the petitioner so as to get himself equipped with

such materials to defend him in the enquiry. Ultimately, the enquiry was one sided since there was no participation on the part of the delinquent on

account of the non-sanction of time requested and materials required by the petitioner as a result of which, only examining of the management

witness and marking of such documents from the management side, a partisan report has been submitted by the enquiry officer with a finding

holding the petitioner guilty of both the charges.

It is further interesting to note that the disciplinary authority, based on the said enquiry report, had issued the show cause notice dated

21.9.1994 seeking explanation from the delinquent petitioner as to why he should not be terminated from service with effects from 3.6.1994,

besides the disciplinary authority in the show cause notice having preliminarily arrived at the conclusion to terminate the service of the delinquent

petitioner which itself would reveal that the disciplinary authority has pre-determined the punishment even prior to the receipt of the explanation

from the delinquent. The disciplinary authority has given only a time of two days for the delinquent petitioner to consider and submit his explanation

without even indicating anywhere in the show cause notice that the enquiry report was sent along with it, which is mandatory and failed to be

observed by the disciplinary authority.

For all the above lapses, the whole enquiry proceeding initiated and conducted against the delinquent petitioner do suffer from legal infirmities,

inconsistencies, laxities and lacunae in no small measure in all respects. Neither the charges framed nor the enquiry held against the delinquent

petitioner nor the manner in which the enquiry officer had been appointed nor even the conclusions arrived at by the enquiry officer to the effect

that the charges were proved against the petitioner, based on which, ultimately the disciplinary authority inflicted the punishment of termination of

the petitioner from the services of the management cannot at all be approved at any measure for any purpose since none of these acts have been

perpetrated in accordance with law, rules, procedures and the legal norms pertaining to such domestic enquiry, and therefore, the entire enquiry

proceeding gets vitiated in law and the same is decided accordingly.

It is further relevant to point out that on a overall consideration, what could be assessed is that the management has not acted in a fair and

reasonable manner in its dealings towards its staff, the petitioner herein, and at each and every step initiated against the petitioner who had done

unblemished service for 26 years would only show the act of vendetta resulting in the petitioner being proceeded against in an unreasonable and

unwanted manner on baseless and untenable charges.

In a nutshell, the very enquiry proceeding initiated by the management had not been done bona fide, nor a proper enquiry officer appointed,

nor followed the procedures established by law, which are mandatory in such domestic enquiries, nor any sane conclusion has been arrived at by

the enquiry officer with due opportunity for the petitioner to be heard, as it is warranted in the circumstances of the case, nor is it proper on the

part of the disciplinary authority to have arrived at the conclusion to terminate the services of the petitioner based on the findings given by the

enquiry officer, which is tainted with illegalities and improprieties resulting in patent errors of law and perversity in approach which is prevalent in

the whole of the enquiry proceeding.

In the above circumstances, this Court is only able to arrive at the irresistible conclusion to quash the entire enquiry proceedings, much less the

termination order passed by the sixth respondent dated 06.10.1994 with further directions as made hereunder.

In result,

(i) the above writ petition succeeds and the same is allowed.

(ii) the termination order dated 6.10.1994 passed by the sixth respondent is hereby quashed;

(iii) the petitioner is deemed to have retired in the normal course on 30.9.1994 and as such he is entitled to all his retiral benefits.

(iv) Respondents No.1 to 6 are directed to settle and pay all the retiral benefits to the petitioner, within thirty days from the date of receipt of a

copy of this order and report compliance to this Court.

gs.

V. Kanagaraj,J.

Consequently, W.P.M.P. Nos.10319 and 10320 of 1995 are closed.

However, in the circumstances of the case, there shall be no order as to costs.