M. Vincent Paul vs Chief Educational Officer

T. Raja, J.—This Writ Petition has been filed by the petitioner challenging the correctness of the impugned order dated 29.07.2002 passed by the second respondent/the Correspondent, Little Flower Higher Secondary School, Salem made in Confidential No. 15/2001 and to quash the same and direct the second respondent to reinstate the petitioner in service, with all the benefits. Assailing the impugned order of removal passed against the petitioner, Mr. C. Selvaraj, learned senior counsel appearing for the petitioner contended that the petitioner was working as PG Assistant by giving best performance in the second respondent school from the year 1992 onwards. After the Headmaster joined the school in the year 1997, when the petitioner questioned the Headmaster that he has been declared to have passed in III class in Master Degree, as there are only I and II classes in Master Degree, the Headmaster started to give troubles to the petitioner and finally at his instigation, the petitioner was issued with a charge memo dated 30.08.2001 on the ground that on 29.03.2001 at about 2.30 p.m., the petitioner indulged in homosexual activity with one Allaudin Basha, a student of IX Std. B in a toilet, which is an unimaginable allegation, implicating the petitioner in a bad taste. How ever, the petitioner after receiving the charge memo, submitted a detailed explanation on 2-9-2001 denying other allegations as baseless.

Learned senior counsel appearing for the petitioner further contended that the allegation in the charge memo indicates that when the said occurrence took place on 29.03.2001, it was seen by three persons working in the school viz. S. Sahayanathan, Office Assistant, P. Karthikeyan and S. Kulandaisamy, but, unfortunately all these three persons have not been examined and besides, it is not known as to why the respondents have taken five months time to frame charges against the petitioner, when the allegations were so serious. Further, the respondents filed a Criminal Case against the petitioner in C.C. No. 344 of 2001 before the Judicial Magistrate, Salem and the charges mentioned in the Criminal Complaint are one and the same in the charge memo issued to the petitioner on 30.08.2001, therefore, the petitioner on earlier occasion had filed W.P. No. 19185 of 2001 before this Court against the charge memo dated 30.08.2001 on the ground that the departmental proceedings cannot be proceeded on the same set of criminal charges pending for trial before the Criminal Court. This Court granted an order of stay of the departmental proceedings. However, by subsequent order dated 24.07.2002, the respondent Management was allowed to take final decision. By virtue of the said order, the petitioner was removed from service.

Continuing his argument, learned senior counsel appearing for the petitioner again submitted that the enquiry officer was none other than the Headmaster of the second respondent school. When it is an admitted case of the petitioner that the petitioner has challenged the Master Degree obtained by the Headmaster of the second respondent school, the same Headmaster of the second respondent school, who was appointed as enquiry officer, has deliberately given the wrong findings holding all the charges stood proved against the petitioner, by his report dated 22.03.2002. Since the finding was based on mere surmises and conjectures, the Management has passed the order of termination, terminating the services of the petitioner on 29.07.2002. Neither the enquiry officer has given any definite finding not the termination order, which is only a non-speaking order, discusses about the charges and other materials available with them. In the meanwhile, the learned Judicial Magistrate, Salem proceeded against him and finally convicted the petitioner to undergo two years imprisonment and also to pay a fine of Rs. 2,000/-. Aggrieved by the sentence and conviction passed by the Judicial Magistrate, Salem, the petitioner filed Criminal Appeal No. 44 of 2003 on the file of Sessions Judge, Salem and the same was also confirmed by order dated 17.08.2004. As against the same, the petitioner filed Criminal Revision Case No. 2094 of 2004 before this Court. This Court by detailed order dated 04.07.2006, allowed the Criminal Revision Case and acquitted the petitioner by setting aside the judgment of both the Courts.

Taking support from the order dated 04.07.2006, learned senior counsel appearing for the petitioner submitted that in paras. 11 and 12 of the order made in Crl. Revision Case No. 2094 of 2004, this Court passed a detailed order holding that going to the Toilet is a common feature; that there are only 12 toilets in the south-eastern corner of the school; that both students and teachers have to use the said common toilets, hence, there is nothing wrong in a student and a teacher going to the toilet meant for students as well as teachers; that only PW-3 was enquired in respect of the complaint of sexual misbehavior; and that the said complaint by PW-3 has not even seen the light of the day. By further holding that there was failure to register the case immediately and also, there was failure to produce the complaint of PW-3 given to the Headmaster and to send the victim as well as the accused to medical examination, this Court had observed that, in those circumstances, the previous motive between PW-1 and the delinquent/accused would create a doubt on the prosecution case. Ultimately, by concluding that in the given case, the burden always lies on the prosecution, benefit of doubt was given for acquitting the accused/delinquent. In view of that, the Disciplinary proceedings initiated against the petitioner under the same set of charges, culminating in his removal from service is wholly unsustainable and untenable. In other words, the inference is that the Disciplinary Authority accepted only a wrong finding recorded by the Enquiry Officer. According to the learned Senior Counsel, as a matter of fact, when there was no eyewitness examined to substantiate the charge levelled against the petitioner before the Enquiry Officer/Committee, the findings recorded without there being any fair enquiry should not have been accepted by the Disciplinary Authority.

In an endeavor to urge this Court to set aside the findings of the Enquiry Committee as well as the reasonings recorded by the Disciplinary Authority for passing the removal order, the learned Senior Counsel would submit that nowhere the Enquiry Officer has stated that the charges levelled against the petitioner were proved based on any piece of evidence adduced or on the testimony of witnesses. Since the Enquiry Officer simply relied on the Resolution passed by the Council and observed that the conduct of the petitioner damaged the image of the Institution, it cannot be construed that the allegation of unnatural act of homosexuality said to have been committed by the petitioner against a student is substantiated. Moreover, when the charge against the petitioner was that he indulged in homosexuality forcibly against a student of the school, none of the students came forward to give a complaint nor any one appeared before the Enquiry Officer to substantiate such charge. On the contrary, the act of the Enquiry Officer in merely relying upon an undated letter said to have been given by some of the students to record a finding against the petitioner that all the charges stood proved is absolutely unacceptable. If any such incident had really happened in 1997 and for which any letter was given, nothing prevented the Management to take action immediately. These vital aspects have been completely ignored by the Disciplinary Authority, therefore, the impugned order imposing the grave punishment of removal from service may have to be interfered with by this Court.

Per contra, Mr. Isac Mohanlal, appearing for R2/School, while arguing for dismissal of the writ petition, would submit that the petitioner, from the date of his appointment on 06.02.1992 as PG Assistant (Political Science) in the respondent/School has given room for controversies due to complaints by students about his unnatural sexual behavior towards them. In fact, when there was one such complaint on 11.11.1992, he was severely warned. Again on 29.03.2001 at about 2.35 p.m., one S. Sahayanathan-Office Assistant working in the School informed the Headmaster that he saw the petitioner taking a 9th Standard student by name N. Allaudin Badsha to the Bathroom. On such information, the Headmaster asked him and two other staff available there viz., Karthikeyan (Teacher) and S. Kulandaiswamy (Non-Teaching Staff) to go and find out as to why the student was taken by the petitioner, whereupon, they went to that place and found the student standing inside without trousers and underwear and the writ petitioner, on seeing them, escaped via playground. The student was brought to the Headmaster who enquired him. The student told that the petitioner took him to the Bathroom and attempted to commit unnatural sex with him and that, on seeing the staff, he fled away. Subsequently, the victim/student''s parents also lodged a criminal complaint. Since there was a commotion amongst the students/staff in the school due to the bad behavior of the petitioner, the Management also decided to lodge a complaint with the police and accordingly, a written complaint was given to the Inspector of Police, Hasthampatti Police Station, Salem, and the said complaint was registered as CSR. 57/2001. Pursuant to registration of the FIR in Crime No. 182 of 2011 under Section- 377 read with 511 IPC, the petitioner was arrested on 31.03.2001 and remanded to judicial custody in the Central Prison, Salem, from 01.04.2001. On receiving intimation from the Chief Educational Officer, he was placed under suspension by orders dated 04.04.2001 and such order was communicated to him through the Jail Superintendent. The Staff Council in its emergency meeting held on 29.03.2001 passed a Resolution insisting upon the Management to take severe action and the Teachers Association also, by passing a Resolution expressed its fullest co-operation for the prospective action that would be taken against the petitioner. Since the incident was widely published in several Newspapers, the reputation of the Institution was severely damaged. Therefore, rightly, the charge memo dated 30.08.2001 was issued for three climes mentioned therein with annexure of copies of relevant documents, asking the petitioner to give his explanation within seven days. After submission of his explanation, finding no merits therein, the Management decided to conduct an enquiry and accordingly, an Enquiry Committee was appointed, however, the petitioner could successfully drag the proceedings till 25.09.2001 under one pretext or the other and on the said date, all the witnesses were directed to be present. By prolonging the enquiry proceedings, simultaneously, the petitioner had filed a writ petition in W.P. No. 19185 of 2001 and obtained an order of interim stay on 12-10-2001. Subsequently, the Management filed an application to vacate the said interim stay. This Court, by orders dated 08.03.2002, vacated the interim stay with a direction to the effect that Disciplinary proceedings must proceed without any further delay, however, no final decision shall be taken without reference to this Court. In due compliance with such direction, the Management, after completion of the enquiry, filed an application before this Court seeking leave to take a final decision on the disciplinary proceedings and such leave was granted on 24.07.2002. Consequently, the Enquiry Committee took the final decision that the petitioner was guilty of the charges by holding that the explanations offered by him were not tenable. The management, agreeing with the findings of the Enquiry Committee, passed the impugned order of removal from service on 29.07.2002. Five months after the order of removal, the criminal court also convicted the petitioner by imposing 2 years imprisonment and a fine of Rs. 2,000/-, vide orders dated 15.02.2003 passed in C.C. No. 344 of 2001. As against that, the petitioner preferred an appeal before the Sessions Court, Salem, in Criminal Appeal No. 44 of 2003 and by judgment dated 17.08.2004, the appeal was dismissed, confirming the order of the trial court. The petitioner, aggrieved by the same, filed Crl. R.C. No. 2094 of 2004 before this Court and, by order dated 04.07.2006, he was acquitted giving benefit of doubt. According to the learned counsel, the argument of the learned Senior Counsel for the petitioner that having regard to the findings given by this Court in the Criminal Revision Case by holding that the charge of homosexual behavior shown by the petitioner has not been proved, the Disciplinary Proceedings under the same set of charges and the ultimate outcome therein cannot be sustained, may have to be just brushed aside since the law is well settled that even if criminal case and departmental proceedings proceed against the incumbent based on the same set of facts and evidence, and if the criminal case is ended in honourable acquittal and not on any technical ground, imposing punishment of removal of the delinquent from service based on the findings of the domestic enquiry is legally sustainable for the simple reason that the standard of proof required for holding a person guilty by a criminal court and in the enquiry conducted by way of disciplinary proceeding is entirely different. Moreover, it is well settled position that mere acquittal by the criminal Court does not entitle the delinquent for exonerating in the disciplinary proceedings. Therefore, none of the submissions made on behalf of the petitioner deserves acceptance and this Court may have to dismiss the writ petition at threshold, he ultimately pleaded.

Learned Additional Government Pleader for R1/Educational Authorities, by endorsing the submissions of the learned counsel for the School-Management would submit that rightly, the school proceeded against the petitioner and that the scope of the departmental proceedings being different from the criminal proceedings, even the positive outcome in such proceedings in favour of the petitioner can never be cited as a better ground to assail the outcome of departmental proceedings conducted in an altogether different track; hence, no interference is called for.

This Court find merits in the submissions of the learned counsel for the Management since the same are supported by the proposition laid down by the Apex Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, . It is relevant to quote below the following text from the said case-law,

"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

The above ratio laid down by the Apex Court clearly shows that even if the departmental proceedings and the criminal case are based on identical and similar set of facts and if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

In the light of the above well settled legal position, if the present case is assessed, it can be seen that when the charge memo containing three charges was issued against the petitioner by the Correspondent vide Memo No. 15/2001 dated 30.08.2001, the petitioner came to this Court by filing W.P. No. 19185 of 2001 and obtained an interim order of say on the ground that when criminal case filed against the petitioner under the same set of charges is pending, Departmental Proceedings cannot be proceeded for the same set of charges. Subsequently, by order dated 08.03.2002, while deciding the vacate stay petition filed in WVMP No. 32054 of 2001, this Court while allowing the said petition, directed the departmental proceedings to proceed without any further delay and further, not to take a final decision without reference to the Court. Thereafter, the enquiry was conducted wherein the petitioner participated by giving evidence and he also cross-examined the management side witnesses. Finally, the Enquiry Committee submitted its report on 22.03.2002. Thereafter, a copy of the Enquiry Report was furnished to the petitioner by the correspondent through registered post dated 08.04.2002 together with the entire set of deposition of witnesses and documents along with the second show cause notice dated 08.04.2002 calling upon the petitioner to furnish explanation as to why the Enquiry Report should not be accepted by the management. In response to the same, the petitioner also submitted his written representation dated 13.04.2002. Finally, after getting the order of this Court dated 24.07.2002 whereby, leave was granted to take final decision, the order of removal dated 29.07.2002 was passed. After about 5 months from the date of removal order, the criminal court by its order dated 15.02.2013, found the petitioner guilty and imposed the punishment of 2 year imprisonment with a fine of Rs. 2000/-. As against the said order, when the petitioner filed Criminal Appeal No. 44 of 2003 before the Sessions Court, Salem, the said Appeal was also dismissed by judgment dated 17.08.2004. Aggrieved by the same, the petitioner filed Cri. R.C. No. 2094 of 2004 before this Court and the same was allowed on 04.07.2006 by giving benefit of doubt to the petitioner on the ground that there was failure on the part of the management in lodging a criminal complaint immediately and also, there was failure to produce the complaint of PW-3 that was already given to the Headmaster.

It is at this juncture, it must be mentioned that the acquittal of the petitioner as per the order of this Court dated 04.07.2006 passed in Cri. R.C. No. 2094 of 2004 by giving benefit of doubt cannot be cited for assailing the order of removal which is the outcome of the Disciplinary Proceedings conducted by following a procedure altogether different from the judicial proceedings before a criminal court. In this regard, the Apex Court has made it very clear in Southern Railway Officers Assn. and Another Vs. Union of India (UOI) and Others, by observing that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the Disciplinary Authority. When the law is well settled that the order of dismissal can be sustained even if the delinquent employee has been acquitted of the charges by the criminal court, the arguments placed before the court that on the same set of charges/allegations before the criminal court, a delinquent employee cannot be proceeded in the departmental proceedings is far from acceptance. As mentioned above, the Ruling in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, laying down the ratio to the effect that if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest, still holds the field good; therefore, mere acquittal of an employee by the criminal court would not have any impact over the disciplinary proceedings initiated by the Department.

The other argument advanced by the learned Senior Counsel to the effect that the Enquiry Committee merely relying upon an undated letter said to have been written by some of the students wrongly proceeded to hold that the charges are proved with an observation that the conduct of the petitioner damaged the image of the Institution, again, is not appealing. The reason is, the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is well settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings for the simple reason that preponderance of probabilities alone is sufficient for the domestic enquiry to hold the delinquent employee guilty. Moreover, even if the petitioner was honorably acquitted by this Court, in the light of what is laid down in The Deputy Inspector General of Police and Another Vs. S. Samuthiram, , the petitioner is not entitled to claim reinstatement. It is more apt to extract below the relevant portion from the above mentioned case law of the Apex Court,

As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honorably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honorably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.

In the light of the foregoing discussion, this Court does not find any valid ground or reason to interfere with the impugned order of removal. Consequently, the writ petition fails and it is dismissed as devoid of any merit. No costs.