Madras High Court
M.Vasanthi vs The Joint Commissioner on 20 July, 2011
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/07/2011 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.8388 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 M.Vasanthi ... Petitioner Vs. 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli-2. 2.N.Dhanabal, Joint Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli-2. 3.The Secretary, Sri Kanthimathi Ambal Girls Higher Secondary School, Office of Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the impugned charge memo bearing Na.Ka.No.1011/2009/BC, dated 14.08.2009 issued by the second respondent and quash the same. !For Petitioner ... Mr.B.Prasanna Vinoth For Mr.G.R.Swaminathan ^For Respondents... Mr.V.Pandi Government Advocate ******* :ORDER
******* Admit. The Writ Petition itself is taken up for final disposal. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.
2. The petitioner was working as a Headmistress of Sri Kanthimathi Ambal Girls Higher Secondary School, Tirunelveli, which is an aided private school under the control of the Hindu Religious and Charitable Endowments Department, which is stated to be parting finance in respect of the administration of the said school. Admittedly, the said school is governed by the provisions of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 [hereinafter referred to as "the Act"] and rules made thereunder. The second respondent has issued the impugned charge memo on 14.08.2009 by invoking the powers of Section 18(1)(c) r/w Section 22 of the Act. The charges are that since she has not administered the school properly as the Headmistress of the school and due to her inefficiency, the students strength has come down remarkably; that she has not brought to the notice of the authorities about the dilapidated conditions of the building of the school; that she has not maintained the girls' hostel and kitchen hygienically resulting in an opportunity to have the diseases; that she was responsible for the growth of the bushes around the school; that she has not maintained the basic documents in respect of the administration of the school; that for many years, in spite of approval having been granted by the Chief Educational Officer, she has not taken any steps for making appointment of the vacant posts, which resulted in the failure of administration; that she has failed to convene the meeting of the school committee, which has to be convened at least once in three months; that she has not given proper reply, whenever the President or the Secretary of the Educational Agency has asked for certain particulars and disobeyed their directions resulting in subordination and that she used to reply, whenever the particulars were required only through her husband, etc.
3. The impugned charge memo is challenged by the petitioner on various grounds, viz., that it is affected by mala fide attitude of the second respondent, as the petitioner has given a complaint of harassment against the second respondent on 13.08.2009 and on the very next day, viz., on 14.08.2009, the impugned charge memo has been issued. That apart, the impugned charge memo is challenged on the ground that the charges are vague without any particulars, with the result, the petitioner cannot be expected to give proper reply by way of defence and lastly, challenge is on the ground of want of jurisdiction. According to the petitioner, for the purpose of initiating disciplinary proceedings, as per the provisions of the Act, it is only the school committee, constituted as per the provisions of the Act, which is competent and the impugned charge memo has been issued by the second respondent, especially when there was no decision by the school committee or who is not even acting as a school committee in accordance with the provisions of the Act.
4. In the counter-affidavit filed by respondents 1 and 2, it is stated that the petitioner has been very careless and callous in her attitude in managing the school, with the result, the number of students, which was enormous earlier, has come down remarkably and ultimately, the petitioner, being the headmistress, has lost control over the entire administration and that according to respondents 1 and 2, it should be treated as mala fide administration and, therefore, she cannot be retained as headmistress of the school and it was with that view, the disciplinary proceeding was initiated.
5. In respect of the allegation about the mala fide, the same is denied on the ground that in fact, the complaint forwarded to the police, which was investigated by the Commissioner of Police, Tirunelveli, was closed on 07.10.2009 as baseless and the allegation of harassment of the petitioner being a woman is not correct. It is stated by respondents 1 and 2 that the elected Secretary of the School Committee was away in Chennai and the person, who is appointed as Secretary, has not taken charge and in such circumstances, as a Joint Commissioner of the Hindu Religious and Charitable Endowment Department, Tirunelveli Region, he has acted as Secretary of the School Committee, which, according to him, is recognized as per Section 16(2) of the Act.
6. Regarding the jurisdictional issue, which was raised by the petitioner, it is the case of respondents 1 and 2 in the counter-affidavit that as a member of the School Committee acting as Secretary at that time, in the absence of the Secretary, he was very much entitled to issue the charge memo under Section 18(1)(c) of the Act. That apart, it is the case of the first and second respondents, as submitted by the learned Government Advocate that it is only at the charge memo stage and the petitioner can always give her explanation to the charge memo and thereafter, she can work out her remedy in the manner known to law.
7. I have considered the above rival submissions made by the respective counsel and given my anxious thought to the issues involved in this case.
8. Considering the jurisdictional issue, which has been raised by the petitioner, I am of the view that the same has to be answered first, since it relates to the maintainability of the impugned charge memo itself.
9. On a reference to the impugned charge memo, it is clear that admittedly, it was given by the second respondent by invoking the powers under Section 18(1)(c) of the Act. 18(1)(c) of the Act relates to the functions of the school committee "to take disciplinary action against the teachers and other employees of the private school". The constitution of the School Committee is as per Section 15 of the Act, in which, it is stated that the School Committee is constituted by including the Headmaster of the private school and two Senior most Teachers, apart from the Senior most Superintendent working in the office, in addition to the representatives of the Educational Agency, who shall not be more than six in numbers to be nominated by the Educational Agency and the School Committee nominates its Secretary. It is true that the Secretary of the Educational Agency can also act as Secretary of the School Committee on such appointment. There are provisions under the Act to show that the Headmaster of the school can also act as the Secretary of the School Committee, if so appointed. The Secretary, so appointed, has to perform the functions as decided by the School Committee as a statutory body under Section 16(2) of the Act, which is as follows:
"16(2) Every person holding office as president, secretary, manager or correspondent of a private school or exercising the powers of secretary under this Act on the date of the commencement of this Act shall be deemed to be a secretary under this Act."
10. In the absence of the regular Secretary, any person including the President of the Educational Agency, who happens to be a member of the School Committee, who acts as the Secretary of the School Committee, shall also be deemed to be a Secretary of the School Committee. On a reading of the impugned order, there is nothing to show that the School Committee has taken any action for the purpose of framing charges against the petitioner. Unless the School Committee, as a statutory body created under the Act, takes action in framing the charge, which forms part of the disciplinary action as per Section 18(1)(c) of the Act, certainly it is not open to the second respondent to frame the charges by himself. On the face of it, it appears that the second respondent has framed the charges. Such charges are unauthorized and not recognized as per the provisions of the Act. Therefore, the impugned charge memo as such is not maintainable as per the provisions of the Act. On this ground alone, the impugned charge memo is liable to be set aside.
11. Insofar as the next contention raised by the learned counsel appearing for the petitioner that there was a mala fide attitude by the second respondent, the Joint Commissioner, against whom the petitioner has given a complaint of harassment on 13.08.2009 is concerned, the counter-affidavit shows that on investigation, the Commissioner of Police found that no case has been made out for the purpose of filing a report to the jurisdictional Magistrate so as to enable the Magistrate to take cognizance of the case. In such event, it was not as if the petitioner was left in lurch and she had a right of making a private complaint to the jurisdictional Magistrate, but, that has not been done and, therefore, one cannot come to a conclusion that there has been mala fide attitude on the part of the second respondent for the purpose of deciding about the validity of the impugned charge memo.
12. In respect of the vagueness of charge, it has been vehemently contended by the learned counsel appearing for the petitioner, as elicited above, law is well settled that if the charges are vague, the same are liable to be interfered with by this Court under Article 226 of the Constitution of India, since it amounts to violation of the basic principles of natural justice. In respect of the vague charges, a delinquent cannot be compelled to reply. Charges, without any specific particulars, cannot sustain the test of law for the reason that sufficient opportunity should be given to the delinquent officer to go through the documents, records and the materials so as to enable him to defend himself in a proper way. It was in Union of India v. Gyan Chand Chattar reported in 2009 (12) SCC 78, the Supreme Court has held that when charges are framed, especially when the charges are relating to bribery, it must be specific in nature with definite and detailed particulars. By relying upon an earlier judgment in Surath Chandra Chakrabarty v. State of W.B. reported in 1970(3) SCC 548, wherein the Supreme Court has held that based on the vague charges, the authority cannot be permitted to hold enquiry, the Supreme Court has, with approval, quoted the following paragraphs in the said judgment:
"5........ The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."
Ultimately, the Supreme Court has held that framing of the charges must be specific and definite with details, which is as follows:
"35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
13. By applying the ratio laid down by the Hon'ble Apex Court to the facts of the present case, it is clear that all the charges, which are framed against the petitioner, which are enumerated above, are vaguely stated without any particulars. In fact, the impugned charge memo does not even contain the statement and imputation along with various documents and other statements, which are alleged to have been made against the petitioner. Such vague charges cannot be expected to be answered by the petitioner, which is in violation of the principles of natural justice. Therefore, on the basis of the vagueness of the charges also, I have no hesitation to hold that the charges are even otherwise not maintainable in law and based on the above said charges under the impugned charge memo, the respondents cannot be directed to be proceed against the petitioner. It is also relevant to point out at this stage that there is no interim order passed by this Court pending the above said Writ Petition, which is pending for nearly three years and in spite of it, admittedly, no further action has been taken against the petitioner.
14. For all the reasons stated above, the Writ Petition stands allowed and the impugned charge memo dated 14.08.2009 stands set aside. However, it is always open to the authority competent to take action against the petitioner as a Headmistress of the school and proceed in the manner known to law. Consequently, the connected miscellaneous petitions are closed. No costs.
SML To
1.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli-2.
2.N.Dhanabal, Joint Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli-2.
3.The Secretary, Sri Kanthimathi Ambal Girls Higher Secondary School, Office of Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli.