Kerala High Court
Francis vs Carmel English Medium High School on 28 July, 2004
Equivalent citations: 2004(3)KLT149
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. First respondent is an educational institution coming within the purview of Chapter XIV(AA) of the Kerala Education Rules. It is a recognised private school but not an aided school. Petitioner was working as typist-cum-clerk in the first respondent school. By Ext.P2 order dated 13.2.2001 the Manager of the school placed the petitioner under suspension pending enquiry into certain allegations of misconduct. On the very same day the Manager issued Ext.P3 memo of charges to the petitioner calling upon him to submit his explanation. Altogether there were eight charges. A perusal of the charges framed as per Ext.P3 would show that they were serious in nature. Petitioner submitted his explanation as per Ext.P4 dated 19.1.2001 denying, the charges and giving reasons in defence of some of his conduct and actions which led to the issue of Ext.P3. He also put forward a case that the facts and circumstances were such that there was enough provocation from the side of the management and persons supporting the Manager, which led to the undesirable situations to happen.
2. The Manager, being not satisfied with the explanation submitted as per Ext.P4, ordered domestic enquiry. At this stage the petitioner made a request to permit him to have the assistance of a legal practitioner to defend him in the domestic enquiry. That request was not allowed.
3. The Enquiry Officer held the enquiry in the presence of the petitioner. Witnesses in support of the charges were examined and their evidence was recorded. Though the petitioner was present at the venue of enquiry, he did not cross-examine the witnesses examined on the side of the management. He also did not adduce any evidence in support of his defence. The Enquiry Officer submitted his report of enquiry to the management holding that all the charges except charge Nos. 2 and 7 were proved.
4. Accepting the findings contained in the enquiry report, the Manager found the petitioner guilty of charge Nos. 1, 3, 4, 5, 6 & 8 and imposed on him the penalty of dismissal from service giving effect to the order of dismissal from the date of suspension on 13.2.2001. The order thus passed by the management is Ext.P6 with the Original Petition. Aggrieved, the petitioner has filed this O.P. challenging Ext.P6 order.
5. The question for consideration is whether Ext.P6 is vitiated for any serious illegality causing prejudice to the petitioner. Counsel on both sides were heard on the point.
6. The provision contained in Chapter XIV(AA) of K.E.R., unlike those contained in Chapter XIV A, do not lay down detailed procedure for conducting the disciplinary action against the members of the staff of the unaided school. Rule 3 of Chapter XIV AA guarantees protection against arbitrary and unfair termination of the services of the employees of unaided schools. The above rule mandates that the service of any member of the teaching or non-teaching staff shall not be terminated by the management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry. Therefore, the legal requirement is a domestic enquiry in accordance with the principles of natural justice thereby giving reasonable opportunity to the delinquent employee to defend the charges against him. The contention of the petitioner is that there is violation of the principles of natural justice, atleast, in as much as the first respondent did not serve a copy of the enquiry report to the petitioner before Ext.P6 order of dismissal was passed. Copy of the enquiry report is Ext.P5 with the O.P.
7. There is no dispute that Ext.P5 was not served on the petitioner, giving him opportunity to have his say in regard to the findings contained therein, before the management had decided to accept the findings in that report and to dismiss the petitioner from service. The contention of the management is that copy of Ext.P5 was served on the petitioner along with Ext.P6 order of dismissal and that is sufficient compliance, having regard to the facts and circumstances. According to the petitioner non-supply of Ext.P5 report is liable to be declared illegal in the light of the decision of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727. Relying on the above decision it is contended by the learned counsel for the petitioner that Ext.P6 order of dismissal is vitiated for the failure on the part of the management to serve the copy of the enquiry report to the petitioner so as to enable him to submit his representation before the impugned order was passed.
8. Learned counsel for the first respondent submits that omission on the part of the management to serve a copy of the enquiry report will not by itself vitiate the order of termination unless the delinquent employee was prejudiced by the non-supply of the copy of the enquiry report. This submission is made relying on the very same ruling which the counsel for the petitioner has cited in support of his contention. Learned counsel for the has laid emphasis on the following observations contained in Karunakar's case (supra):
"If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resulting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity".
9. As already stated, it has to be borne in mind that the statute does not contain detailed provisions laying down the procedure to be followed by the management of unrecognised private schools in regard to the disciplinary action against the members of the staff. It is also pertinent to note that no statutory remedy by way of appeal or revision is provided by the rules against the order of the management. Therefore, the only safeguard provided by law against arbitrary and whimsical actions of the management against its employees is to insist that they should scrupulously follow the principles of natural justice and must afford reasonable opportunity to defend the action against them. It is statutory requirement that the penalty of dismissal from service cannot be inflicted on the employee without holding a domestic enquiry. Supreme Court in Union of India v. Ramzan Khan, Mohammed, (1991) 1 SCC 588, has ruled that supply of the enquiry report is a sine qua non for a lawful domestic enquiry, if the employer wants to impose on the employee the penalty of removal or dismissal from service. It is true that on the simple ground that the management did not furnish a copy of the enquiry report, the Court should not set aside mechanically the order imposing penalty. Law expects the employee to satisfy the Court that he was, in fact, prejudiced by the non-supply of the enquiry report. Therefore it is necessary to ask the question, whether the petitioner has discharged the burden cast on him viz., that he was prejudiced by the non-supply of the enquiry report? Learned counsel for the petitioner invited my attention to the detailed explanation submitted by the petitioner as per Ext.P4 in reply to the memo containing eight charges and contended that the enquiring authority failed to advert to that explanation while appreciating the evidence on record. If opportunity was given at the appropriate stage, it would have enabled the petitioner to request the management to consider the effect of non-consideration of his explanation and the advantage of appreciating the evidence in the background of that explanation. I am impressed by the above submission of the learned counsel for the petitioner. It is true that the explanation furnished in answer to the charges, was found not satisfactory by the management and, hence, the management decided to hold a domestic enquiry into the charges. It is also true that the employee did not cross-examine the witnesses examined on the side of the management and did not avail the opportunity to examine any witness on his side. But that will not be justification for the enquiring authority or the management to ignore the explanation of the employee while appreciating the evidence on record to see if the charges were proved. The explanation submitted by the delinquent employee forms part of the record of enquiry and the fact that the management felt, before ordering domestic enquiry that the said explanation was not satisfactory cannot have the effect of erasing that explanation from the records. Whether or not the employee effectively participated in the enquiry, the explanation will continue to be a significant document for whatever it is worth. In this case, the Enquiry Officer has taken into account the nature of the charges framed against the petitioner. He has also considered the evidence adduced by the management with respect to each charge levelled against the petitioner. But while considering the above materials the Enquiry Officer ought to have done one more thing, namely, that he should have considered the petitioner's explanation also, particularly in the context of the fact that the said explanation was the only material from which the stand of the petitioner could have been ascertained. There is force in the contention that had the petitioner been given the opportunity, he would have brought to the notice of the management, the relevance of his explanation, and perhaps, the management would have adverted to the explanation along with the evidence available on record and would have taken a different view at least regarding the gravity of the misconduct alleged to have been committed which has got a bearing on the ultimate penalty to be imposed on the delinquent employee. In this manner, prejudice was caused to the petitioner as consequence of the non-supply of the enquiry report. For the above reason I hold that Ext.P6 is vitiated and liable to be quashed. I do so.
10. I make it clear that I have quashed Ext.P6 solely on the ground of non-supply of the enquiry report. It will be open to the management to take appropriate steps and finalize the disciplinary action by proceeding from the stage of supply of the copy of Ext.P5 enquiry report to the petitioner so as to enable him to submit his representation. In this context the learned counsel for the first respondent rightly brought to my notice the following observations contained in Karunakar's case (supra):
"It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome."
In the very same paragraph of the above decision, it was further held as follows:
"Reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law".
The above observation has to be appropriately applied to the procedure to be followed in this case also.
11. Accordingly there shall be a direction that the reinstatement of the petitioner consequent on the setting aside of the order of punishment (Ext.P6) is for the purpose of furnishing him the enquiry report, affording him an opportunity to submit his representation with respect to the findings contained in the enquiry report, considering the representation, if any, to be submitted by the petitioner in response to that and passing final orders by the management in accordance with law.
Original Petition is deposed of as above.