Zacharias N.S. vs Joint Director of School Education (Secondary) College Road and Another

P. Sathasivam, J.—Aggrieved by the order of the second respondent dated November 24, 1989, the petitioner has filed Writ Petition No.

3585 of 1990 for quashing the same and also for consequential direction, directing the second respondent to notionally reinstate him with full back

wages, continuity of service and all attendant benefits including seniority and promotion. The same petitioner has filed another writ petition, namely,

W.P.No. 15384 of 1991 seeking a direction for payment of post terminal benefits including pension together with interest forthwith without

prejudice to the contention in Writ Petition No. 3 585 of 1990. In view of the issue involved in both the writ petitions, they are disposed of by the

following common order.

The case of the petitioner is briefly stated hereunder:- According to him, he joined services in the 2nd respondent as Secondary Grade Assistant

on June 10, 1970. Even though he had unblemished record of service, disciplinary proceedings were instituted and on the basis of the report of the

Enquiry Officer, the second respondent passed a punitive order dated April 24, 1989 compulsorily retiring him from service. Aggrieved by the

order of compulsory retirement, the petitioner preferred an appeal before the first respondent herein, who refused to take the appeal on file and

consider the same on merit on the ground that the Division Bench of this Court has ruled in Writ Appeal No. 295/1975, Writ Petition No.

4478/1974 dated September 24, 1976 that the provision of the Tamil Nadu Recognised Private School (Regulation) Act, 1973 is not applicable

to minority institutions. In such circumstance, initially the petitioner filed the above writ petition (W.P.No. 3585 of 1990) challenging the said order

of the first respondent dated December 19, 1989. Subsequently, by order dated November 6, 1998 in W.M.P.No. 26181 of 1998, at the

instance of the petitioner this Court amended the prayer and permitted the petitioner to challenge the original order of the Second respondent dated

November 24, 1989.

The first respondent has filed a counter stating that in view of Division Bench decision of this Court and the second respondent-school being a

minority institution, the first respondent is justified in rejecting the appeal; accordingly prayed for dismissal of the writ petition.

The second respondent filed a counter affidavit disputing various averments made by the petitioner. It is stated in the counter affidavit that in

view of various complaints against the petitioner and also his indifference and dereliction in discharging his duties, the second respondent-Institution

sent a show-cause notice to the petitioner on September 27, 1988 containing 11 charges for his acts of omissions and commissions which

amounted to gross misconduct and dereliction of duty. The petitioner sent a vague and unsatisfactory reply on October 8, 1988. The second

respondent issued an additional charge memo dated October 13, 1988 and the petitioner was asked to show cause why action should not be

taken on that charge also. The petitioner sent a reply for the same on October 23, 1988. The Management on not being satisfied with the reply of

the petitioner to the charges, decided to conduct an oral enquiry for the charges framed against the petitioner; accordingly appointed one K.

Karuppiah, Special Officer (Retired) from the Education Department of Tamil Nadu by a letter of appointment dated January 31. 989. Before the

Enquiry Officer, the petitioner was given adequate opportunity to defend himself by cross-examining the witnesses of Management and submit his

statement to disprove the charges framed against him. After the conclusion of the enquiry, the Enquiry Officer submitted his report on March 2,

1989, with a remark that charges Nos. 3, 7 and 10 were not proved and charges Nos. 1,2,4,5,6,8,9,11 and 12 were proved beyond doubt. The

findings of the Enquiry Officer were placed before the Disciplinary Authority of the second respondent and the Disciplinary Authority considered

the entire report of the Enquiry Officer as well as the statements of the petitioner by its proceedings dated March 7, 1989 and concurred with the

findings of the Enquiry Officer. The Disciplinary Authority in its proceedings recommended the major penalty of termination of services of the

petitioner from the 2nd respondent-institution. In view of the above proceedings of; the disciplinary authority the 2nd respondent-institution''s

punishing authority issued a second show cause notice dated March 10, 1989 to the petitioner to show cause as to why he should not be removed

from the services of the 2nd respondent-Institution and he was called upon to submit his explanation within 10 days from the date of receipt of the

2nd show cause notice. The petitioner submitted his reply on April 3, 1989 and again on April 5, 1989. The second respondent considered the

two replies sent by the petitioner to the second show cause notice dated March 10, 1989, along with the facts and circumstances of the case.

While concurring with the view expressed by the Disciplinary Authority, it took a lenient view by reducing the proposed provisional termination of

services of the petitioner to that of compulsory retirement. Accordingly the petitioner was compulsorily retired from the services of the 2nd

respondent-Institution as a punishment for the charges proved against him, on and from April 24, 1989. The entire disciplinary proceedings

pertaining to the petitioner was forwarded to the Education Department. The first respondent was pleased to approve the order of compulsory

retirement passed by the 2nd respondent, by its letter dated August 11, 1989. Later on, it was confirmed by the Government on its order dated

December 19, 1989 of the Joint Director of School Education (Secondary), Chennai-6. Since the petitioner was given adequate opportunity

before the enquiry officer to defend his case and appropriate punishment was imposed after following the established procedure, there is no merit

in the writ petition; accordingly they prayed for dismissal of the same.

In the light of the above pleadings, I have heard Mr.V. Prakash, learned counsel for the petitioner, Mr.N. Subramani, learned Government

Advocate for the first respondent and Mr. A. Balapazhanur, learned senior counsel for the second respondent.

Mr.V. Prakash, learned counsel for the petitioner, after taking me through the charge memo, enquiry proceedings, decision of the disciplinary

authority and the ultimate order of the compulsory retirement, has raised the following contentions:-

i) In the absence of any provision for compulsory retirement, the impugned order of the second respondent compulsorily retiring the petitioner from

the services of the 2nd respondent-Institution cannot be sustained;

ii) The report of the enquiry officer cannot be looked into since the petitioner was not given adequate opportunity to examine certain witnesses on

his side and he was not furnished with many documents referred to in the charge memo;

iii) The Headmaster and the Correspondent of the second respondent-Institution, who deposed as a witness on the second respondent''s side also

participated in the proceedings of the disciplinary authority and initially recommended major penalty of termination of service. The said conduct of

the Headmaster and the Correspondent deposing in favour of the management and decide his own case is opposed to all canons of justice, fair

play and fair trial;

iv) Since there is no acceptable legal evidence before the Enquiry Officer, the ultimate conclusion of the Enquiry Officer suffers from the vice of

perverse finding; accordingly the impugned order based on the said perverse finding is liable to be set aside; and

v) In any event by applying the principle of Doctrine of proportionality, the punishment of compulsory retirement imposed on the petitioner with

regard to the proved charges is highly excessive.

On the other hand, Mr. Bala Pazhanur, learned senior counsel for the second respondent after taking me through the entire proceedings, raised

the following contentions:--

i) The Headmaster and Correspondent have acted only as Presenting Officer of the second respondent-Institution and he has not deposed as a

witness on the side of the 2nd respondent-Institution;

ii) The petitioner was given ample opportunity by supplying with necessary documents for each of the charges, he cross-examined the 2nd

respondent''s witnesses and he was also allowed to examine witnesses on his side; accordingly the enquiry proceedings cannot be faulted with.

iii) Even though the petitioner has filed the above writ petition in the year 1990 against the order of the first respondent holding that appeal is not

maintainable in view of the fact that the second respondent- Institution being a minority institution, no steps have been taken by the petitioner for

amendment of his plea till the matter is taken up for hearing; accordingly the amended prayer is only an after-thought;

iv) Taking note of the totality of the enquiry proceedings, proved charges, imposition of punishment by the competent authority, namely,

compulsory retirement, there is no warrant to interfere with the conclusion arrived at by the second respondent; and

v) In any event, in the light of the conclusion arrived at by the Enquiry Officer which was based on acceptable evidence and the ultimate order of

the competent authority, interference by this Court against the said decision under Article 226 of the Constitution of India is very limited;

accordingly prayed for dismissal of the writ petition.

I have carefully considered the rival submissions.

Initially by a show-cause notice dated September 27, 1988, a charge memo containing 11 charges was issued to the petitioner with regard to

his acts of commissions and omissions. The petitioner submitted his reply on October 8, 1988. The second respondent also issued additional

charge memo dated October 13, 1988 and the petitioner was asked to show cause why action should not be taken on that charge also. He sent a

reply for the same on October 23, 1988. The Management not being satisfied with the reply of the petitioner to the charges, decided to conduct

oral enquiry; accordingly the competent authority appointed one Mr.K. Karuppiah, Special Officer (Retired) from the Education Department of

Tamil Nadu as an Enquiry Officer by a letter of appointment dated January 31, 1989.

Now I shall consider the contentions Nos. 2 and 4 relating to enquiry proceedings before going into other points. It is the main grievance of the

petitioner that the required documents were not furnished to him either along with the charge memo or thereafter. The said contentions cannot be

accepted for the following reasons. Even in the charge memo while narrating the charges, the particulars regarding basis for the respective charges

have been mentioned in the charge memo itself. It is the definite case of the management that all the required documents with reference to the

charges have already been furnished even before the commencement of the enquiry. It is also settled law that the delinquent can claim only the

documents relating to the respective charges and he cannot expect more than what is actually required for disposal of the charges made against

him. Further, the perusal of the report of the enquiry officer, the replies given by the petitioner with reference to the second show-cause notice do

not show any complaint that he was not provided with required documents. As a matter of fact, even though there is no compulsion on the part of

the school management to issue second show-cause notice regarding the proposed punishment since the enquiry took place prior to the decision of

the Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, it is clear that the petitioner was given a show-cause notice along with

the enquiry proceedings to enable him to put-forth his further representation, if any. Accordingly, the contrary contention raised by the learned

counsel for the petitioner cannot be sustained.

It is also clear from the enquiry proceedings that the petitioner was allowed to cross-examine the witnesses examined on the side of the

management and he was also permitted to examine witnesses on his side. No doubt, even though the request of the petitioner to examine some

students with regard to charge No. 2 was refused, in the light of the documents, it is unnecessary to examine the students in support of the said

charge. Likewise, even though it is stated that his witness was not allowed to enter the school building, the said fact has been stoutly denied by the

management. Here again, after perusal of the enquiry proceedings, I am unable to accept the contention that the petitioner''s defence witness was

prevented by school management. As a matter of fact, with reference to Charge No. 12, the enquiry officer after analysing the case of the

management as well as the teacher, has concluded thus:-

......In the light of the above depositions of the Headmaster, Asst. Headmaster and Mr. Somasundaram, the explanation of Mr. Zacharias in his

letter dated October 5, 1988 and October 23, 1988 cannot be accepted as true one. He did not produce Mr. M.A. Arokiasamy as a defence

witness that he was with him when he had been to Asst. Headmaster''s room on September 30, 1988 to ask the Answer scripts allotted to him.

It is also clear from the enquiry proceedings that apart from the evidence of the Headmaster, the management has also examined witnesses like

Assistant Headmaster and other persons connected with the charge and also produced and marked several documents in support of their charges.

It is also clear that each witness was cross-examined by the petitioner-teacher. Inspite of an opportunity given to him, he did not produce defence

witness apart from his own evidence. Accordingly, I reject the contentions 2 and 4 as devoid of any merit.

Regarding the first Contention that there is no provision for imposing punishment of compulsory retirement. Mr. Bala Pazhanur, learned senior

counsel for the second respondent-School, would contend that in the absence of any specific rules in view of the provisions in the Tamil Nadu Civil

Services (Classification, Control and Appeal) Rules which enables the Government to impose compulsory retirement as one of the punishments,

nothing wrong in applying the same in the case of the petitioner. By relying on decisions in (1) Mehnga Singh, Ex-Sub Inspector Vs. Inspector

General of Police, PAP, Jalandhar Cantt. and Others, ; (2) State Bank of Hyderabad and Others Vs. Rangachary, ; and (3) A.P. Srivastava

(Dead by Lrs.) Vs. Union of India (UOI) and Others, , he contended that inspite of imposing a punishment of compulsory retirement, the petitioner

is eligible for full pension. After going through the relevant Rules in the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules as well

as the decisions referred to by the learned senior counsel, I am of the view that even though the said provision is not directly applicable to the

petitioner''s case, the action of the school management imposing compulsory retirement cannot be faulted with. Since no serious argument was

advanced with regard to the said contention, the imposition of punishment of compulsory retirement in lieu of termination of service cannot be

faulted with. Accordingly 1 reject the first contention raised by the learned counsel for the petitioner.

Regarding third contention, namely, giving evidence as a witness on the side of the management and taking decision by the very same person,

namely, Headmaster and Correspondent, Mr. Bala Pazhanur, learned senior counsel, contended that the Headmaster was not examined as a

witness on the side of the management. According to him, he was the Presenting Officer for the management and in that capacity only he

participated in the enquiry. He also submitted that inasmuch as the decision was taken by the disciplinary authority consisting of (1) Rev. Bro.

Lawrence Joseph, Provincial Superior, Brothers of St. Gabriel, St.Louis Veilla, Yercaud; (2) Rev. Br.M.A.Thomas, Headmaster and

Correspondent, St. Peter''s High School, Royapuram, Madras-13; and (3) Rev. Bro. A. Servanathan, Headmaster and Correspondent, Santhome

Higher Secondary School, Mylapore, Madras-4, the participation of the Headmaster and Correspondent of the second respondent-institution as

one of the authority cannot be faulted with. He also submitted that after the decision of the disciplinary authority dated March 7, 1989, the

Headmaster and Correspondent with the concurrence of the Archbishop of Madras-Mylapore and Provincial Superior of the Montfort Bros, of

St. Gabriel, the impugned order of compulsory retirement, compulsorily retiring the petitioner with effect from April 24, 1989 was passed. In the

light of the said factual position, according to him, there is no infirmity in the part played by the Headmaster and Correspondent. However, Mr.V.

Prakash, learned counsel for the petitioner taking me through the enquiry proceedings, has brought to my notice that the Headmaster and

Correspondent was examined only as a witness on the side of the management. At this juncture, Mr.Bala Pazhanur, learned senior counsel for the

second respondent-school has brought to my notice the order of appointment of Mr Karuppiah as enquiry officer by the proceedings of the

Archbishop of Madras-Mylapore dated January 31, 1989. The said communication finds place at page 45 of the typed-set of papers. It is clear

that after considering the entire papers and the explanation submitted by the Correspondent of Santhome Higher Secondary School, it was

decided to hold an enquiry and one Mr.A. Karuppiah was appointed as Enquiry Officer. In the very same proceedings, it is stated that the

Correspondent of Santhome Higher Secondary School will act as the Presenting authority in the domestic enquiry. By relying on the said

communication, Mr. Bala Pazhanur, learned senior counsel, contended that the involvement of the Headmaster and Correspondent in the enquiry

proceedings at the most could be termed only as Presenting authority and not more than that. However, as stated earlier, the perusal of the enquiry

proceedings clearly shows that the Headmaster and Correspondent not only presented the case of the management, but also deposed as one of

the witnesses on the side of the management. The following passages are extracted from the enquiry proceedings:

Regarding Charge No. 2

....The Headmaster during his deposition before me on February 18, 1989 stated that teachers'' strike was called off on July 25, 1988 and all the

teachers returned to duty on July 26, 1988............. In the light of the deposition given by the Headmaster on February 18, 1989, it is evident that

Mr. Zacharias was on duty from July 26, 1988 to August 16, 1988........

Regarding Charge No. 6

........During the enquiry on February 18, 1989, the Headmaster deposed before me that the chargesheeted teacher had never met the

Headmaster and explained the fact that he could not come in person to explain his inability even when we had recovered from illness...........

Regarding Charge No. 10

........The depositions given before me on February 25, 1989 by the Headmaster as well as the charge-sheeted teacher lack proper evidence.

Most of the depositions given by both are contradictory in nature

Regarding Charge No. 12

.....On a thorough scrutiny of the deposition given by Mr.N.S.Zacharias, the Headmaster, the Asst. Headmaster and Mr. Somasundaram and on

a perusal of the Exhibits shown hereunder, it is found that Mr. N.S. Zacharias had shown utter indifference in discharging the legitimate duties

entrusted to him as narrated below......

The above mentioned particulars from the enquiry report amply prove that the Headmaster and Correspondent had not only participated as a

Presenting Officer, but also deposed as one of the witnesses on the side of the school management. The factual position makes it abundantly clear

that the Headmaster and Correspondent was one of the witnesses deposed on the side of the management. Now, I shall consider the consequence

of a person who deposes as one of the witnesses and decides himself. I am conscious of the fact that the Headmaster and Correspondent was the

only person who took a decision initially terminating the petitioner from the service and finally retiring him compulsorily with effect from April 24,

1989. However, the fact remains that after making a statement supporting the charges framed against the delinquent teacher, as one of the

disciplinary authority, took a decision and imposed punishment of termination from service. At this juncture, Mr. Prakash, learned counsel for the

petitioner has very much relied on a decision of the Apex Court reported in Andhra Scientific Co. Ltd. Vs. A. Seshagiri Rao and Another, In that

case, one Seshagiri Rao who was in the employment of the appellant concern, after enquiry, was found guilty of the charges and ultimately

dismissed from service. The Labour Court rejected the preliminary objection raised on behalf of the company. It held that the rules of natural

justice has been violated in holding the enquiry inasmuch as the General Manager who presided over the enquiry in the initial stage was later

examined as a witness and Shri Ramanatha who was looking after the enquiry on behalf of the company, presided over the enquiry in the later

stage and gave the final decision. The Labour Court ultimately held that the dismissal was unjustified, but the workman deserved some punishment.

Considering a suspension from service for a period of one year from March 16, 1957, the date of dismissal as proper and sufficient punishment, he

] ordered reinstatement at the rate of Rs. 250/- from March 16, 1958 till the date of reinstatement and subsistence allowance during the pendency

of the departmental enquiry at the rate of half of the pay from April 28, 1956, till March 16, 1957. Against this Award, the appellant company

made an application to the High Court of Andhra Pradesh under Article 226 of the Constitution of India. The High Court agreed with the Labour

Court that Shri Seshagiri Rao was a ""Workman"" and also that the enquiry was vitiated by violation of the rules of natural justice, ultimately rejected

the application under Article 226. The correctness of the conclusions of the High Court on all the 3 grounds was challenged before the Supreme

Court. Regarding the evidence of Seshagiri Rao acting as a witness and also deciding the case as General Manager, their Lordships have observed

as follows:--

Equally untenable, in our opinion, is the ground that the High Court should have held that the inquiry held by the management was not vitiated

by violation of rules of natural justice. The sole purpose of rules of procedure which are referred to as rules of natural justice is to ensure fair play.

Let us, therefore, see what happened in this case during the inquiry. The inquiry was commenced by the General Manager himself and when five

witnesses had been examined, Ramanatha Babu took over the enquiry and examined the General Manager as a witness. This gentleman has been

frank in disclosing the reasons for this unusual conduct. ""I did not decide,"" he says in his evidence, ""as to who should be witnesses when the inquiry

began. General Manager came as a witness in the inquiry. I wanted General Manager to be a witness towards the end. So I took up the inquiry

myself, I did not know at the beginning that the General Manager should be a witness. It was at last I decided that he should be a witness. While

going through the evidence and perusing the records I decided that the General Manager should depose as a witness"". Quite apart from the

incongruity, therefore, of the person who was at the initial stage presiding over the enquiry stepping into the witness-box at the later stage, we have

here the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper evidence to

establish the charges, took over the inquiry and gave the decision in the case. It is true, as stressed by the learned Attorney-General that the

ultimate decision was not by the General Manager, and so inform, what happened here is different from what happened in State of Uttar Pradesh

v. Muhammad Nooh, 1958 AIR SC 86, where the District Superintendent of Police, presided over the enquiry except when he himself was

examined as a witness, and also gave the decision, in an inquiry against a police constable. In substance, however, there is hardly any difference.

One can see that in the facts of this case the General Manager and Ramanatha Babu formed practically one entity, with two bodies. At one stage,

the first acts as a judge; at a later stage, he steps down as a witness; and the second becomes a judge. There is the further fact there that the

person who gave the actual decision had actively been procuring the evidence, with the avowed motive of securing a conclusion against the

workman. These being the facts, the manner in which the inquiry was conducted in this case can hardly be said to have ensured fair play which

rules of natural justice require. The conclusion of the High Court that no proper enquiry had been held in the present case, and so the Labour

Court was justified in considering on the evidence whether the workman was guilty of any of the charges is, therefore, correct.

The law laid down by their Lordships in the said decision is directly applicable to our case, since the Headmaster and Correspondent in our case

was not only examined as one of the witnesses on the side of the management, but also took part in the disciplinary proceedings and ultimately

imposed a punishment. The action of the Headmaster and Correspondent deposing in favour of the management and deciding the very same case

of the delinquent is undoubtedly opposed to principle of ""fair play"" and ""fair trial"". It is also clear that the Headmaster at the initial stage acted as a

witness, at a later stage, he steps down as a witness and becomes a judge in the second stage. In such circumstance, as observed by their

Lordships, the manner in which the ultimate order was passed can hardly be said to have ensured fair play which requires rules of natural justice.

Accordingly even though there is no prohibition for the Headmaster and Correspondent to depose in favour of the management, the infirmity is with

regard to his participation in the disciplinary proceedings, particularly in imposing punishment on the person against whom he gave evidence at the

first stage. Accordingly, 1 sustain the third contention raised by the learned counsel for the petitioner.

Regarding the fifth and last contention of the learned counsel for the petitioner, namely, consideration of principle of Doctrine of proportionality

while imposing punishment, though the said principle is applicable to cases relating to industrial disputes even in the jurisprudence other than the

workman, it is always better and desirable to impose appropriate punishment proportionate to the proved charges. In view of my conclusion with

regard to contention No. 3, the matter has to be remitted before the disciplinary authority for taking appropriate decision dehorsing the very same

Headmaster and Correspondent, and I am of the view that no more further discussion is required on this aspect except saying that while imposing

punishment, the concerned authority has to consider the Doctrine of Proportionality.

Apart from the merits of the claim of the petitioner as well as the second respondent-management, Mr. Bala Pazhanur, learned senior counsel

for the second respondent-school cited catena of decisions to show that in a matter like this interference by this Court exercising extraordinary

jurisdiction under Article 226 of the Constitution of India is very limited. In support of his said contention, he relied on the following decisions:--

1) State of Orissa v. Muralidhar AIR 1963 SC 404

2) State of Andhra Pradesh Vs. Sree Rama Rao,

3) The State of Madras Vs. G. Sundaram,

4) Zora Singh,

5) State of Andhra Pradesh v. Chitra Venkata Rao (1976) I LLJ 211(SC)

6) Union of India v. B.K. Srivastava (1998) I LLJ 431(SC)

7) B.C. Chaturvedi Vs. Union of India and others,

In the light of the submission made by the learned senior counsel, I have carefully considered all the decisions of the Apex Court referred to above

and the following points emerged from the decisions:--

i) The High Court is not constituted in a proceeding under Article 226 of the Constitution of India as a Court of appeal over the decision of the

authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority

competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.

ii) Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably

support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a writ petition under Article 226 to

review the evidence and to arrive at an independent finding on the evidence,

iii) The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which

their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High

Court in a proceeding for a writ under Article 226 of the Constitution of India.

iv) Adequacy of the evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the

Constitution of India.

v) The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over the findings recorded by a

competent tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any

evidence.

vi) In a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter

into the question of sufficiency of evidence.

vii) The High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can

be said that no reasonable person could have reached such a finding.

viii) An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear

to be.

ix) In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had

erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the

impugned finding.

x) If a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

xi) The disciplinary authority and the appellate authority are invested with discretion to impose appropriate punishment keeping in view the

magnitude or gravity of the misconduct. The High Court while exercising the power of judicial review, cannot normally substitute its own conclusion

on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience

of the High Court, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or

to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

In the light of the principles referred to above, as per my earlier conclusion, I hold that the appointment of enquiry officer, the entire enquiry

proceednigs and the ultimate conclusion holding that Charge Nos. 1, 2,4, 5, 6, 8,9, 11 and 12 alone were proved are valid in law and I do not find

any acceptable reason to interfere with the conclusion arrived at by the enquiry officer.

In view of my conclusion with regard to contention No. 3, namely, the action of the Headmaster and Correspondent deposing in favour of the

management as a witness, and taking a decision is opposed to fair play and fair trial, the matter has to go back before the disciplinary authority of

the second respondent-school for passing fresh orders based on the report of the enquiry officer. It is also brought to my notice that the former

Headmaster and Correspondent, namely, Brother A. Selvanathan is no more in the second respondent-school. I feel that in the absence of Brother

Selvanathan, there may not be any difficulty for the disciplinary authority in passing fresh orders, and only for the above said limited purpose, I am

remanding the matter to the disciplinary authority. This Court hopes that the disciplinary authority would consider the principle of Doctrine of

proportionality and the passage of time spent by the petitioner due to the litigations while passing orders on the basis of the report of the enquiry

officer. Final order has to be passed by the said authority within a period of eight weeks from the date of receipt of a copy of this order.

Accordingly Writ Petition No. 3585 of 1990 is allowed to the extent mentioned above. It is made clear that depending on the outcome of the

order to be passed as stated above, the allowable terminal benefits, if not already paid, shall be paid to the petitioner forthwith thereafter. In the

light of the said direction, Writ Petition N0.15384/1991 is dismissed. However, there shall be no order as to costs in both the writ petitions.