Madras High Court
S.Arockiam vs District Elementary Educational ... on 2 July, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2015
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
WP (MD) No.165 of 2008
and MP.No.1 of 2008
S.Arockiam ... Petitioner
vs.
1.District Elementary Educational Officer,
Ramanathapuram,
Ramanathapuram District.
2.Assistant Elementary Educational Officer,
Paramakudi, Ramanathapuram District.
3.Correspondent,
R.C.Middle School,
Melakavanoor, Paramakudi Taluk
Ramanathapuram District.
4.Rev.Fr.Arul J.Prakasam
Correspondent,
R.C.Middle School,
Melakavanoor,
Paramakudi, Ramanthapuram District.
5.M.Sethupandian,
Enquiry Officer
6.The Deputy Registrar of Co-operative Societies,
Singara Thoppu, Paramakudi,
Ramanathapuram District.
7.The Special Officer,
N.N.509, Alankaramadha Teachers Thrift & Credit Society Ltd
Ramanathapuram District.
8.Rev. Fr.Antony Michael
Correspondent of RC Schools,
Sivagangai District.
(R6 to R8 impleaded by order of this court
dated 25.4.2014 made in MP (MD) No.1 of 2014) ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
for issuance of a writ of Certiorarified Mandamus, to call for the records
pertaining to the order passed by the third respondent in his proceedings
No.Nil dated 20.12.2007 and quash the same and direct the respondents to
reinstate the petitioner in service with all the consequential benefits.
!For Petitioners : Mr.V.Paneerselvam for M/s.Mani
^For Respondents : Mr.G.Muthukannan, GA ? R1, R2 and R6
Mr.Isaac Mohanlal ? R3 & R4
Mr.Jeya Rhuthran ? R8
No representation -R5 and R7
:ORDER
The writ petition is filed for issuance of a writ of Certiorarified Mandamus for quashing the impugned order dated 20.12.2007 passed by the third respondent, thereby dismissing the petitioner from service and for consequential direction to the respondents to reinstate the petitioner in service with all consequential reliefs.
2.Few facts, which are relevant for consideration herein are as follows:
The petitioner was appointed as Secondary Grade Teacher by the Management of R.C.Schools on 18.12.1992. While he was working so, he was appointed as part time clerk on 2.2.1993 in N.N.509 Alankaramadha Teachers Co-operative Thrift & Credit Society (hereinafter shortly referred to as 'Society'), Paramakudi, which was constituted and functioning for the welfare of the teachers working in various private aided schools including that of RC Schools, run by management of R.C. Schools. The duty of the part time clerk is to collect loan applications from the members of the society and to disburse the loan amount to the members/teachers and to recover interest from the borrowing teachers and to deposit the same in the branch and to make necessary entries in the account register and the part time clerk is also responsible for any loss, in the course of such business. The petitioner employed so in the post of part time clerk till 7.9.2005 on which date, he submitted his resignation from the said post.
3.After his resignation, an enquiry was conducted under section 82 of the Tamil Nadu Co-operative Societies Act and the petitioner was also summoned for enquiry. After completion of the enquiry, an enquiry report was filed, regarding certain acts of irregularities committed by the members of the Society and one of the persons as per the report, involved in such irregularities is the petitioner herein. The petitioner was hence along with the report under section 82, issued a charge memo by the third respondent dated 24.7.2006. Challenging the same, the petitioner filed a writ petition WP.No.7376/2006 on the ground that the irregularities or illegalities relate to the affairs of the Teachers Co-operative Society, over which the management has no power or authority and the management is not hence empowered to issue the charge memo. The petitioner also filed his explanation to the charge memo.
4.Pending writ petition, the sixth respondent/Deputy Registrar, Paramakudi gave a police complaint on 8.10.2006 and the same was registered as FIR No.423/2006 on the file of Paramakudi Nagar Police Station, Ramanathapuram against the petitioner herein for the act of misappropriation to the tune of Rs.46,649/- constituting the offences punishable under sections 406, 408, 477A and 420 IPC and the petitioner was arrested and kept in judicial custody for more than 6 days. In view of the same, the third respondent Management dropped the charge memo for the purpose of issuing fresh charge memo. As a result, WP.7376/2006 was dismissed as infructuous on 17.11.2006. In the mean while, the petitioner was on 8.11.2006 suspended from service and he filed WP.826/2007 challenging the order of suspension dated 8.11.2006. The same was also followed by second charge memo containing 6 charges on 05.12.2006. The petitioner again filed WP.836/2007 challenging the second charge memo dated 05.12.2006 and obtained an order of stay. In the meanwhile, the petitioner also filed WP.10133/2006 seeking a writ of Mandamus, forbearing the respondents therein from interfering with his joining and functioning as Secondary Grade Teacher in R.C. Middle School and the writ petition was dismissed on 28.11.2006 as the petitioner was placed under suspension. WP.No.836/2007 was by order dated 21.6.2007, also dismissed on the ground that the court cannot at the stage of FIR determine the possible deprivation of the constitutional rights of the petitioner and also the issue as to whether the charges of domestic enquiry and criminal case are one and the same. After the dismissal of the writ petition, the petitioner was served with notice to participate in the enquiry and the enquiry was conducted between 16.7.2007 and 7.8.2007 and 6 witnesses were examined and written statements were filed on both sides and the petitioner fully participated in the enquiry and the enquiry was also duly completed by the Enquiry Officer. At that point of time, the Enquiry officer was changed on two occasions i.e., 23.8.2007 and 3.9.2007 and there was no further progress in the enquiry.
5.While so, WP.826/2007 filed against the suspension order came up for hearing and was disposed of by order dated 6.9.2007, in and under which, the learned single judge observed that the question as to whether pending disciplinary action, the petitioner can be restored to service, cannot be decided and as the management thought it fit to place the petitioner on suspension pending enquiry the management is bound to pay full wages to the petitioner, pending disposal of the domestic enquiry. Having observed so, the writ petition was disposed of with direction to the third respondent Correspondent RC Middle school, to pay full salary to the petitioner, pending disposal of the domestic enquiry, with further direction to the petitioner not to indulge in dilatory tactics and to co-operate in completing the enquiry. The further direction issued by the learned single judge therein is to start the enquiry on the basis of the appointment of the new Enquiry Officer and to proceed with the enquiry on a day to day basis and both parties to extend their full co-operation in completing the enquiry. The learned single judge, while recording the submission made by the third respondent Management that they would complete the enquiry within a period of four weeks from the date of commencing of the enquiry, made it clear that the petitioner shall get the arrears of salary before the commencement of the enquiry. With such direction and observation, the wit petition was disposed of.
6.After the disposal of the writ petition, the third respondent Management sent a notice dated 3.9.2007, calling upon the petitioner to appear for enquiry. The Enquiry Officer also sent a separate notice dated 4.9.2007 to the petitioner. The petitioner replied the same by stating that the enquiry was already completed by the earlier Enquiry Officer and the final report may be prepared on the basis of the materials adduced on earlier occasion, to which the Enquiry Officer initially appointed, sent a reply dated 12.9.2007 to the petitioner stating that he was unable to continue as Enquiry Officer due to his ailment and he already returned the documents produced on the side of the management and asked the petitioner to come and collect his documents. The same was followed by another notice dated 28.9.2007 by the new Enquiry Officer to attend the enquiry on 2.10.2007 and another letter by the third respondent Management, enclosing cheque for Rs.1,13,500.40 towards his salary for suspension period from 8.11.2006 to 30.9.2007. The petitioner replied the same by saying that the enquiry may be proceeded, after paying his entire salary without arrears and also returned the cheque by saying that the same was without signature. The cheque was again resent to the petitioner on 3.10.2007. The petitioner was also served with another notice dated 5.10.2007 to appear for enquiry. It is stated therein that the petitioner was served with three notices on 4.9.2007, 10.9.2007 and 28.9.2007 and inspite of the same, he failed to appear for enquiry and in the event of his failure to appear for enquiry on 9.10.2007, the enquiry will be completed as exparte. The same was replied by the petitioner on 8.10.2007 stating that a sum of Rs.2,21,000/- is due to him towards arrears of salary and only on payment of entire amount in compliance with the direction of the High court, he will be ready to appear for enquiry. He also sent another letter on 8.10.2007 stating that the entire amount was not paid and after payment of the entire amount, he will appear for enquiry and in the event of their failure to pay the entire amount, he will approach the High court. He also sent another letter dated 19.10.2007 to the same effect. The management by letter dated 25.3.2011 sent further sum of Rs.1905/- by way of cheque towards arrears of salary for 17 days from 1.8.2006 to 17.8.2006. The petitioner received the sum of Rs.1,13,500/- + Rs.1,905/-, he did not appear for enquiry and the enquiry was hence completed exparte on 09.10.2007. In the course of enquiry held on 9.10.2007, the Enquiry Officer examined the management witnesses and completed the enquiry and submitted his report on 5.11.2007 finding the petitioner guilty of the charges.
7.The petitioner was issued with second show cause notice along with the exparte Enquiry Officer's report, dated 14.11.2007, thereby calling upon him to give his explanation. The petitioner duly received the same and sought for further time to send his explanation. The extension of time was given till 30.11.2007 vide telegram dated 27.11.2007. The petitioner instead of filing his explanation, filed contempt petition No.374/2007 as if the management failed to comply with the direction of the High court to disburse the entire amount of salary to him. The respondent management submitted details in the contempt petition and also made payment of salary for the months of October and November 2007. The contempt petition was closed by giving liberty to the petitioner to agitate such pleas regarding non-payment of arrears of salary in time, in the writ petition. Even thereafter, the petitioner did not submit any explanation to the second show cause notice. However, the respondent Management having accepted the findings in the Enquiry report and accepted the same and passed the final report, dismissing the petitioner from service with immediate effect i.e., 20.12.2007 vide impugned order dated 20.12.2007 and the same was intimated to the petitioner and the petitioner was also intimated that he could prefer an appeal, if he is aggrieved to the Rev. Bishop cum Manager of Roman Catholic Diocese of Sivagangai within a period of 30 days from the date of receipt of the order. The petitioner without filing any appeal, has come forward with the present writ petition challenging the order of dismissal.
8.The petitioner has in this writ petition challenged the legality and validity of the impugned order on the following grounds: (i)the enquiry is proceeded with, without complying with the requirement of the order of this court passed in WP.No.826/2007 dated 6.9.2007 by disbursing full salary to the petitioner before commencement of enquiry and the same is in violation of the direction of this court; (ii)The earlier Enquiry Officer examined and recorded the statement from all the witnesses and received all the documents, whereas, fresh enquiry was conducted in the absence of the petitioner and by denying to the petitioner the reasonable opportunity of cross examining the witnesses and the outcome of such enquiry is against the principles of natural justice; (iii)the enquiry having been conducted in violation of the direction of this court, the very enquiry and the enquiry report which is the outcome of such enquiry are illegal; (iv)the witnesses examined on earlier occasion, clearly accepted that the petitioner has not committed any illegality or irregularity, whereas, the same witnesses gave different statement before different Enquiry Officer. In that event, the witnesses are not trustworthy and their evidence cannot be relied upon and the enquiry report filed by the Enquiry Officer relying upon such evidence and the impugned order of dismissal, based on such enquiry report are illegal; (v)in the event of the fresh enquiry being conducted, the petitioner is able to prove his innocence and the act of malpractice and act of tampering the certificate committed by the correspondent himself; and (vi)the dismissal order passed without obtaining prior approval from the competent authority under Tamil Nadu Recognised Private Schools Regulation Act and Rules is against law.
9.The relief sought for herein is seriously resisted on the side of the contesting respondents 3 and 4, i.e., the Correspondent of R.C.Middle School by denying the plea of vengeance and malafides. The respondents 3 and 4 have in their counter and additional counter reiterated the same allegations raised against the petitioner in the charge memo dated 5.12.2006. It is further reiterated by them that the entire salary due to him for the period of suspension was duly sent to the petitioner and inspite of the same, the petitioner failed to appear for enquiry on various occasions and the respondent management having given him sufficient time and opportunity to come and contest the domestic enquiry, the petitioner deliberately failed to avail the opportunity and the petitioner cannot be permitted to raise a plea that the impugned order was passed in violation of the principles of natural justice. It is also their case that the Enquiry officer found him guilty of all charges based on sufficient materials and there was no rhyme or reason to reject the Enquiry officer's report and the Management having found the same to be correct, duly accepted the same and having regard to the gravity of charges, imposed appropriate punishment of dismissing him from service and the punishment is proportionate to the charges proved against him and the correctness of the same cannot be questioned on any ground.
10.It is also argued before this court on the side of the respondents that the petitioner having remained absent and failed to avail all the opportunities given to him to appear for enquiry, cannot be permitted to contest the allegations raised in the charge memo on merits in this writ petition and in the absence of any perversity in the findings rendered by the Enquiry Officer, the order impugned herein passed by the third respondent based on such report is in order and the writ petition filed challenging the same cannot be entertained by this court.
11.Heard the rival submissions made on both sides and perused the records.
12.The petitioner was issued with a charge memo on 5.12.2006 containing 6 charges. The allegations contained in the charges 1 and 2 are that the petitioner manipulated 23 application forms with the signature of the Correspondent of the school as though the applicants had been working in the respondent RC Schools and the petitioner misused the applications for taking loans in favour of the persons who were not members and not teachers and got the loan amount sanctioned and disbursed the same to those non-members and one of the persons who obtained such loan is his own wife Esther Rajam, who was working in a Panchayat Union Elementary school, whereas she was indicated as though she was working in one of the schools of the respondent Management in RC Yadava Elementary School, Paramakudi, thereby caused very bad name and irreparable loss to the high esteem and honour of Management. The allegations raised in the third charge are that the petitioner availed medical leave between 24.8.2006 to 21.09.2006 and after the expiry of the medical leave, he did not report for duty along with fitness certificate from the Medical Board and without duly submitting his application for medical leave and joining letter, he came to school on 22.9.2006 along with an Advocate and indulged in wordy quarrel and threatened the Headmaster and fellow teachers insisting to allow him to join duty, thereby caused interference to the students who were writing their examinations. The allegations raised in fourth charge are that he failed to appear before the Medical Board for medical test for availing the medical leave from 24.8.2006 as advised by the Management. The fifth charge levelled against the petitioner is his refusal to receive communication sent by the Management, calling him to explain about his arrest and judicial custody for more than 48 hours, which amounts to act of insubordination to the management. The allegation raised in sixth charge is that the petitioner has not given sufficient essay writing to the students and corrected those exercise properly, which amounts to an act of negligence in duty.
13.Here is the case wherein, the charge memo dated 5.12.2006 is not the first charge memo and the earlier charge memo dated 24.7.2006 is more or less for the same charges. From the date of receipt of charge memo dated 24.7.2006 till the date of impugned order of dismissal i.e., 20.12.2007, the petitioner did not duly respond to either of the charge memos or to the notices issued by the management. At every stage, the petitioner approached this court by way of writ petitions and the present writ petition is the fifth writ petition filed by him. WP.No.7376/2006 is filed by him against the first charge memo dated 24.7.2006. WP.10133/2006 is filed for direction forbearing the respondents therein from interfering with his joining and functioning of the petitioner as Secondary Grade Teacher in the RC Middle School. WP.836/2007 is filed by him challenging the second charge memo dated 5.12.2006. WP.826/2007 is filed by him against the order of suspension dated 8.11.2006.
14.In the mean while, enquiry was conducted into the charges levelled against the petitioner and both the management and the petitioner participated in the enquiry and filed their documents. However, no enquiry report was filed and the Enquiry Officer was relieved due to his ill-health. Thereafter, two Enquiry officers were appointed and the last Enquiry officer is one Advocate by name M.Sethu Pandian.
15.All the writ petitions filed by the petitioner were disposed of one way or other. While three writ petitions were dismissed, WP.No.826 of 2007 was disposed of, after duly appraising the latest position issuing appropriate direction to both the Management and the petitioner and the operative portion of the order reads as follows:
"8.Accordingly, the writ petition is disposed of with a direction to the third respondent to pay full salary to the petitioner pending disposal of the domestic enquiry against the petitioner. However, it is made clear that the petitioner cannot indulge in dilatory tactics and must co-operate in completing the enquiry and if the enquiry starts on the basis of the appointment of the new enquiry officer, the enquiry should proceed on a day today basis and both parties should extend their full co-operation in completing the enquiry. It is submitted by the third respondent therein that they will complete the enquiry within a period of four weeks from the date of starting of the enquiry. It is also made clear that the petitioner shall get the arrears of salary before the commencement of the enquiry".
16.Thereafter, the petitioner was paid a sum of Rs.1,13,500.40, Rs.1,905/- and Rs.35,283/- on three occasions towards the salary due to the petitioner during the suspension period. Whereas, the petitioner took a stand that the Management was due to pay him salary of Rs.2,35,184/- and as and when the amount claimed by the petitioner is paid, he will appear for enquiry. Inspite of repeated notice issued to the petitioner, the petitioner stick to the same stand and failed to appear for enquiry. As rightly argued by the learned standing counsel for the petitioner, such stand taken by the petitioner without furnishing the details as to how he is entitled to more amount than the monthly salary for the suspended period, is one of the dilatory tactics adopted by him for not appearing for enquiry. Though it is repeatedly argued by the learned counsel for the petitioner, that the failure to pay the entire salary amount is in violation of the direction issued by this court, it is in my considered view, vise versa and it is the petitioner who adamantly refused to attend the enquiry on the ground of alleged non payment of entire salary arrears which is highly deplorable one. Between September 2007 and October 2007, both the management and Enquiry Officer repeatedly sent notices with severe warning stating that in the event of his failure to appear for enquiry, the enquiry will be proceeded with exparte. Had the petitioner been really bonafide in his contention that the management is in violation of the direction of this court, he could have very well approached this Court at the earliest possible time. The petitioner, having obtained the order dated 6.9.2007, directing the respondent management to pay the full salary due to the petitioner, filed the contempt petition only on 12.11.2007 alleging non-compliance of the direction of this court. The petitioner though duly received so many enquiry notices, was only keen in corresponding with the management for avoiding appearance for enquiry. The respondent Management, having duly sent the amount and having duly sent enquiry notices and having duly waited for sufficient time, proceeded with the enquiry and examined 7 witnesses and the Enquiry officer on the basis of the available materials sent a detailed enquiry report holding the petitioner guilty of all charges levelled against him. The same was also duly intimated to him along with 2nd show cause notice. Though the petitioner sought for extension of time for filing his explanation to the second show cause notice through his representation dated 21.11.2007 and though the petitioner's representation was accepted and time was extended vide telegram dated 27.11.2007, the petitioner did not submit his explanation as to how the findings of the Enquiry Officer are bad and factually and legally unsustainable.
17.The petitioner thereafter leisurely filed the contempt petition in No.374/2007 on 12.11.2007. Even after the disposal of the contempt petition, he failed to submit any explanation to the 2nd show cause notice. In the mean while, the third respondent, having accepted the Enquiry Officer's report, passed the order of dismissing the petitioner from service, which is impugned herein. In my considered view, the facts and circumstances involved herein and the conduct of the parties throughout will not support the case of the petitioner that enquiry was conducted with vengeance and malafide and the enquiry was conducted in violation of any direction of this Court and without giving him due opportunity to defend himself so as to hold as if the same is conducted in such a manner against the procedure laid down under law and against the principles of natural justice.
18.In this context, the observations of the Hon'ble Supreme Court in the decisions reported in (i)(2005) 3 SCC 241 (Cholan Roadways Ltd v. G.Thirugnanasambandam) and (ii)(2011) 5 MLJ 845 (SC) (SBI v. Hemant Kumar) are to be aptly applied. The Hon'ble Apex Court in both the cases, has categorically observed that the principles of natural justice cannot be stretched too far nor can it be applied in a vacuum and where they would render the in-house proceedings unworkable. The Hon'ble Supreme Court in the case dealt with under similar circumstances, having regard to the identical conduct of the delinquent, rejected the identical contention raised before them by the delinquent employee. This Court by applying the same ratio in the decision of the Apex Court, has no hesitation to hold that such grounds are not available to the petitioner having regard to his conduct of failure to appear for enquiry from the commencement of the earlier enquiry till the completion of the same. The petitioner also cannot be allowed to lay a complaint that the earlier enquiry was completed and no fresh enquiry can be commenced and the final report shall be drawn from the materials adduced in the earlier enquiry. Such ground is no longer permissible having regard to the specific direction issued by this court in WP.826/2007 for commencement of the enquiry afresh with new enquiry officer and completion of the same within four weeks from the date of commencement of the enquiry. Having been party to the order and having been bound by the same the respondent Management cannot be found fault with the commencement of the enquiry afresh. As such, the contention raised on the side of the petitioner that the fresh enquiry conducted and completed by the Management exparte was in serious violation of the direction of this court and against the principles of natural justice, is falsified.
19.On merits, the Enquiry Officer on the basis of the material, found the charges to be proved. The petitioner having failed to participate in the enquiry and having failed to cross examine the witnesses and failed to adduce any evidence on his own, is not competent to question before this court the correctness of the findings rendered by the Enquiry officer and the impugned order of dismissal passed based on such findings on merits. Though the petitioner has in this writ petition raised serious grounds as if it is the correspondent, who was guilty of giving forgery pay certificate to the non- teachers as teachers and he was innocent and no such incident happened on 22.9.2006 and he was prompt and proper in discharging his duty etc., the same cannot be agitated before this court for the reason that this is not an appellate forum to go into the correctness of the findings rendered by the Enquiry Officer on merits of the case. The Hon'ble Supreme Court, in the judgment reported in (1998) 9 SCC 220 (U.P.S.R.T.C and others v. Har Narain Singh and others) has laid down the scope of judicial review of the findings of the disciplinary authority by the High Court. In that case, the Apex Court, having found that the single judge of the High Court re-appreciated the evidence led in the enquiry and quashed the order passed by the Tribunal as also the order passed by the disciplinary authority, held that the same was done so by clearly exceeding its jurisdiction, because the High court was not sitting in appeal over the findings given by the disciplinary authority and re-examination of the evidence led in the disciplinary proceedings was not warranted.
20.The Division Bench of our High court in the decision reported in 2011 Writ LR 108 (Dr.R.Padmavathy v. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Chennai -9 and another) by following the earlier precedent, has clearly held as follows:
"6.The scope of judicial review of the administrative decision particularly the disciplinary inquiry and the order imposing punishment by the authority has been discussed by the Supreme Court in catena of decisions. Normally Courts should not interfere with the administrative decisions, unless it was illogical and suffers from procedural impropriety or is shocking to the conscious of the Courts. When the administrative action is challenged as arbitrary, the question will be whether the administrative order is rationale or reasonable and the test would be Wednesbury's test. In the case of Chairman and Managing Director, United Commercial Bank and others v. P.C.Kakkar (2003 AIR SCW 944), the Supreme court observed:-
"11.The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
21.The petitioner has also sought to question the correctness of the findings rendered by the Enquiry officer, based on the order of the criminal court in discharging him from the charges. In my considered view, such contention by applying the principles laid down in the following decisions, is negatived. This aspect is dealt with by the Hon'ble Supreme Court in the decision reported in (2013) 1 SCC 598 (Deputy Inspector General of Police and another v. S.Samuthiram) and by the learned single judge of this Court in the judgment reported in Indian Kanoon-http://indiankanoon.org/doc/107849769 (M.Vincent Paul v. The Chief Educational Officer, Salem and another). The Hon'ble Supreme Court in para 26 of the decision cited supra has clearly observed as follows:
"26.As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably 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."
22.The learned single judge of this court, in the decision cited supra following similar observation made in ((2009) 9 SCC 24 (Southern Railway Officers' Association v. Union of India) and 2013 (1) SCC 598 (above cited), is not inclined to interfere with the impugned order of removal by mere acquittal of an employee by the criminal court. The learned brother judge has in paras 8 and 9 of his judgment usefully quoted the observation of the Supreme Court to the effect that mere acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority and the order of dismissal can be sustained even if the delinquent employee has been acquitted of the charges by the criminal court and 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.
23.That being the legal and factual aspects, the observation of the Calcutta High Court and our High court in the judgments reported in (i)1996 (I) LLJ 1211 (Sri Swapan Ray v. Indian Airlines Ltd and others) (Calcutta High Court) (ii)(2008) 7 MLJ 610 (S.Subbiah Pandian v. Superintendent of Police, Tirunelveli District) and (iii)(2011) 4 MLJ 669 (R.Balakrishnan v. Food Corporation of India rep. By its Managing Director and another) cited on the side of the petitioner are not applicable to the facts of the present case.
24.The learned counsel for the respondents has at this juncture drawn the attention of this court to the nature of the evidence let in and the Enquiry report filed by the Enquiry Officer and the final order passed by the disciplinary authority. The Enquiry officer has in his detailed enquiry dealt with each charges and evidence in support of the same and rendered his findings which are supported by proper reasoning. The final order passed by the disciplinary authority would show that the same was passed, after duly appreciating the nature of the charges and nature of the proof available and thereafter the findings of the Enquiry Officer, accepting the same to be correct. Both the Enquiry Officer's report and the final order are indicative of due application of the mind into the materials available before them. There is no ground much less valid ground made out by the petitioner before this court to hold the same as perverse or based on no evidence or by overlooking any evidence. The petitioner is unable to produce any adverse material to disagree with the findings of the Enquiry Officer, based on which the order impugned herein was passed. This court is hence of the view that neither the findings of the Enquiry officer nor the decision of the disciplinary authority to accept such findings can be assailed on any ground herein.
25.Regarding the question of punishment, the same considering the conduct of the petitioner and gravity of the charges proved against him, cannot be held to be harsh or disproportionate to the same. However, this court, considering the period of service of the petitioner and considering his age and family situation and other material factors and sufferings undergone by the petitioner and his conduct in repeatedly approaching this court and the expenses incurred by him for meeting out such legal proceedings, is inclined to modify the punishment of dismissal from service into one that of compulsory retirement, so as to entitle the petitioner to get atleast monetary benefits.
26.In the result, the impugned order passed by the third respondent is modified by altering the punishment of dismissal from service into one that of the compulsory retirement, with all monetary benefits due to the petitioner. The respondent Management is directed to disburse the monetary benefits due to the petitioner within a period of four weeks from the date of receipt of the copy of this order. The writ petition is accordingly ordered. No costs. Consequently, connected miscellaneous petition is closed.
To
1.District Elementary Educational Officer, Ramanathapuram, Ramanathapuram District.
2.Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District.
3.Correspondent, R.C.Middle School, Melakavanoor, Paramakudi Taluk Ramanathapuram District.
4.The Deputy Registrar of Co-operative Societies, Singara Thoppu, Paramakudi, Ramanathapuram District.
5.The Special Officer, N.N.509, Alankaramadha Teachers Thrift & Credit Society Ltd Ramanathapuram District. .