Madras High Court
P.Latha vs Inspector Of Matriculation Schools on 20 April, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2011 CORAM THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P (MD) No.7738 of 2005 P.Latha ... Petitioner Versus 1.Inspector of Matriculation Schools, Tallakulam, Madurai. 2.The Correspondent, S.D.H.Jainvidhyalaya Matriculation School, Thiruppalai, Madurai - 14. ... Respondents PRAYER Writ petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for all the records relating to the order of the second respondent dated 16.09.2004 and the order of the first respondent in the reference Na.Ka.No.1841/Aa/2004 dated 23.11.2004 and directing the respondents to reinstate the petitioner in service with backwages together with all the attended benefits. !For Petitioner ... Mr.K.Vellaisamy ^For R - 1 ... Mr.B.K.Rajendran Additional Government Pleader For R - 2 ... Mr.S.P.Maharajan :ORDER
The petitioner is a P.G. Assistant in Tamil and she joined in the second respondent School in the year 1995 and it has also Higher Secondary Sections. The second respondent School is an un-aided School.
2. The petitioner was terminated from service by an order dated 16.09.2004. She immediately filed an appeal to the first respondent dated 16.09.2004. The first respondent passed an order dated 23.11.2004, directing the second respondent to hand-over the original certificates. The petitioner has filed the present writ petition to quash the aforesaid order dated 16.09.2004 of the second respondent and the order dated 23.11.2004 of the first respondent and for consequential direction to the respondents to reinstate the petitioner with backwages and other attendant benefits.
3. The second respondent filed a counter-affidavit refuting the allegations.
4. According to the second respondent, the petitioner was terminated from service after complying with the principles of natural justice. She was given full opportunity. Based on the enquiry, she was terminated from service. It is stated that as per Section 22-A of the Code of Regulations for Matriculation Schools, Tamil Nadu, the Director of School Education is the Appellate Authority and therefore, the petitioner should have filed an appeal to the Direction of School Education. It is stated that the first respondent is not the competent authority to enquire into the order of termination.
5. Heard both sides.
6. The learned counsel for the second respondent has produced the entire files. From the entire files the following facts are found.
7. The second respondent-Principal issued a charge-memo dated 05.08.2004, alleging that a complaint dated 04.08.2004, was received from one Mrs.R.Rajeswari M/o. R.Sudharsan, student of VIII Standard and the same was read out to the petitioner. It is also alleged that there was difficulties experienced in allotting substitution classes to her. Further allegation was that there was non-cooperation by the petitioner with the HOD of Tamil. The last charge was that she was using unparliamentary language in the staff room. She was asked to submit an explanation on the said charge-memo dated 05.08.2004.
8. The aforesaid four allegations are extracted hereunder:-
Letter of complaint from Mrs.R.Rajeswari M/o.R.Sudharsan VIII. Standard dated 4th August '04 as read out to the petitioner.
Difficulties experienced in allotting substitutions classes to the petitioner. Non-cooperation with the HOD of Tamil.
Using unparliamentary language in the staff room.
9. The petitioner submitted her explanation on 06.08.2004, denying the charges. She gave a detailed explanation running to six pages. After the receipt of the charge-memo, another charge-memo dated 07.08.2004 was issued to the petitioner. The allegations made in the said memo is that she sent the explanation through the Watch man and she was using mobile phone in the campus.
10. Thereafter, the second respondent placed the petitioner under suspension by an order dated 28.04.2004 for a period of 10 days from 30.08.2004 to 08.09.2004.
11. While so, the Principal of the second respondent issued a notice dated 06.09.2004, directing the petitioner to appear for enquiry in person on 09.09.2004 at 09.30 a.m. The enquiry was relating to answer scripts of monthly tests. The enquiry was to be conducted by three members headed by the vice- Principal.
12. The enquiry on 09.09.2004 was to enquire into the following matter:-
Answer scripts (X Std. 9 numbers) of August monthly Test were seat to the students through Shyamala of Standard XII and were distributed to them without the knowledge of the Principal/Vice-Principal.
Answer scripts of Standard XI are not yet submitted to the office as instructed over phone.
13. She submitted her explanation that she sent the answer scripts (X Std. 9 numbers) through one Shyamala, a student of Standard XII to be handed over to the Principal, as she was under suspension and she was directed not to come to the School. As far as the answer scripts of (XIth Standard), she stated that she did not take the answer scripts to her house and those answer scripts were in the staff room itself.
14. The enquiry was conducted by three member committee. Nobody was examined and no documents were marked. The petitioner alone was asked to explain her stand. Thereafter, the committee gave a report and the report dated 09.09.2004 is extracted hereunder:-
"The teacher was in utter confusion and her explanation for the enquiry memo dated 06.09.2004 was not chear one. Most of her explanations are vague and irrelevant to the complaint raised against her.
We are not able to find all the XI Standard students I Paper and II Paper (Tamil). The teacher said "I kept inside my table. I did not take to my home".
For that she complained her colleagues. We asked the other staff and found out that her statement was wrong.
While enquiring her, she repeatedly said the same things. She did not submit 9 answer scripts of X Std. After the phone call, she sent the scripts through the student. In her explanation letter, in the first paragraph she denied the complaint and in the next paragraph she accepted that complaint. This proves her dishonesty and disloyal to the institution. We the Enquiry Committee members were not satisfied with her explanation and her attitude towards the institution.
We kindly forward this report to the management for further action."
15. In the said report, there is no categoric finding that the charges were established. The committee held that the petitioner was dishonest and disloyal to the institution, when no such allegations were made. Thereafter, the impugned order dated 16.09.2004 was passed terminating the petitioner from service.
16. The petitioner filed an appeal to the first respondent against the termination order dated 16.09.2004. The first respondent sought the views on the appeal of the teacher. The school submitted their remarks dated 28.10.2004. In the remarks, the School gave the following remarks:-
"tPl;Lg;gzp bra;ahj khztid mtkhpahijahf bgw;Bwhiua[k; nizj;J BgRtJ, mehfhpkhd thh;j;ijfis gpuBahfpg;gJ, cld;gzpahw;Wk; Mrphpiafsplk; gpur;rid bra;tJ, jdJ Jiw rk;ge;jkhd Tl;lA;fis g[wf;fzpg;gJ, ahiua[k; kjpf;fhj, gpwBuhL xj;Jg;Bghfhj jd;ik nitaht[k; ntuJ md;whl elj;ijfshfp tpl;ld.
ne;epiyapy; vA;fs; gs;spapy; vl;lhk; tFg;g[ gof;Fk; Rjh;!d; vd;w khztida[k; mtdJ Kj;j rBfhjhp uh$fPh;j;jdhita[k; ne;j Mrphpia btt;BtW re;jh;g;gA;fspy; mth;fspd; bgw;Bwhiu gpw khzth;fs; Kd;dpiyapy; mth;fs; fy;tpj;jFjp gw;wp tpkh;rdk; bra;jjhy;, mg;bgw;Bwhh; g[fhh; kDr;bra;J cldoahf Mrphpia kPJ eltof;if vLf;f Btz;odh;. Mdhy; eph;thfk; nJ tpraj;jpy; jPu tprhhpf;f Btz;o, rpy fhyk; fhj;jpUe;jJ. Mdhy; ne;j Mrphpia kPz;Lk; mBj khdtid gpd; bgq;rpy; cl;fhu itg;gJk;, cjhrPdkha; BgRtJk; bjhluBt vA;fs; gs;spapy; gj;J Mz;LfSf;Fk; Bkyhf gzpg[hpe;J tUfpd;w Mrphpah; Kth; bfhz;l xU FGit mikj;Bjhk;. bjhlh;e;J nth; gs;spf;F tUtjhy; njpy; BkYk; rpf;fy; Vw;gLk; vdf;fUjp gj;J ehl;fs; ntiu jw;fhypf gzp nil ePf;fk; bra;ag;gl;lJ. me;j khztd; ntuhy; gs;spf;F xUthuk; tutpy;iy vd;gJ Fwpg;gplj;jf;fJ.
nuz;L Mrphpiafs; kw;Wk; Jiz Kjy;th; bfhz;l FGthy; tprhuiz bra;ag;gl;l ne;j Mrphpia bfhLj;j Ratpsf;fKk; mtuJ tplhg;gpoahd tpthjKk;, ele;j rk;gtj;ij epahag;gLj;jpaJk; BtWtHpapy;yhky; mtiu gzp ePf;fk; bra;a Btz;oajhapw;W."
17. Thereafter, the first respondent passed the aforesaid order dated 23.11.2004, directing the School to hand over the certificates. The first respondent did not go into the issues raised by the teacher.
18. According to the learned counsel for the second respondent, the writ petition is not maintainable, as there is an effective appeal remedy against the order of termination before the second respondent. The other contention is that the writ petition is not maintainable against the private un-aided minority institution.
19. According to the learned counsel for the petitioner, the writ is maintainable since the impugned order of termination was passed in utter violation of principles of natural justice. It is also submitted that the respondent involves in imparting education, which is a fundamental right of the citizen, writ petition is maintainable as held by the Honourable Apex Court in K.Krishnamacharyulu Vs. Sri Venkateswar Hindu College of Engineering reported in 1997 (3) SCC 571 and a Division Bench of this Court in A.P.John Paulraj Vs. Central Board of Secondary Education rep. by its Chairman, New Delhi and others reported in 1999 Writ L.R.23.
20. The learned counsel for the petitioner also relies on the Judgment of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1 in this regard.
21. As per the aforesaid decision of the Honourable Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1, writ petition could be maintained, if the impugned action was in violation of principles of natural justice though the appellate remedy is available. Hence, the issue that arises for consideration is as to whether the impugned termination order dated 16.09.2004 passed by the second respondent in violation of principles of natural justice and whether the writ petition could be maintained against private un-aided School.
22. The decisions relied on by the petitioner squarely apply to this case and the following passages in K.Krishnamacharyulu Vs. Sri Venkateswar Hindu College of Engineering reported in 1997 (3) SCC 571 is extracted hereunder:-
"It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with the Government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the Writ Petition under Article 226 of the Constitution of India is not maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teacher who impart the education get an element of Public Interest in the performance of their duties. As a consequence, the element of Public Interest requires regulation of the conditions of service of those employees on a par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the Writ Petition along with the appellant had later withdrawn from the Writ Petition and thereafter the respondent Management paid the salaries on a par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The Private Institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of Public Interest is created and the Institution is catering to that element, the teacher, being the arm of the Institution, is also entitled to avail of the remedy provided under Article 226 the Jurisdiction part is very wise. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the Writ Petition is not maintainable. They are entitled to equal pay so as to be on a par with Government employees under Article 39(d) of the Constitution."
Hence, I have no hesitation in holding that the writ petition is maintainable against the respondent institution.
23. I have extracted the aforesaid facts from the file that was produced by the School. The termination order is based on the enquiry that was held on 09.09.2004. Before holding an enquiry on 09.09.2004, no formal charge-memo was issued to the teacher and no explanation was sought for and even in the enquiry, no witnesses were examined and no documents were marked on behalf of the School.
24. On the other hand, the enquiry report reveals that the teacher was asked to make a statement and thereafter, the enquiry was said to be over. The enquiry report finds that the teacher was dishonest and disloyal and that was not the charge.
25. Furthermore, the minimum ingredients of a valid enquiry is not present in this case. The minimum ingredients of valid enquiry are that the witnesses in support of the charges are to be examined in the presence of the delinquent and the delinquent is afforded an opportunity to cross-examine the witnesses and thereafter, the delinquent is afforded an opportunity to bring her defence witnesses and also to make her statement. It is also an essential part of the enquiry that the relevant documents are produced and marked through the witnesses. None of these essential elements of an enquiry are present in this case. Thus, the termination order was passed in utter violation of the principles of natural justice.
26. Furthermore, while the termination is based on the enquiry that was conducted on 09.09.2004, the remarks submitted by the first respondent reveals that the termination is also based on the charges that were made in the charge memo dated 05.08.2004. But there was no enquiry conducted on the charge memo dated 05.08.2004.
27. Hence, the second respondent is not correct in relying on the charge memo dated 05.08.2004 in their remarks dated 28.10.2004 for terminating the service of the petitioner. The aforesaid facts make it clear that the teacher was issued a charge memo dated 05.08.2004 and thereafter she was placed under suspension by an order dated 28.04.2004 for a period of 10 days from 30.08.2004 to 08.09.2004. She was supposed to attend classes on 09.09.2004. But she was asked to appear for enquiry on 09.30 a.m. and thereafter, she was not alloted to do any work. Hence, the action of the second respondent lacks bonafide.
28. It is also unfortunate that the first respondent instead of directing the petitioner to approach the concerned competent authority, passed the order dated 23.11.2004, directing the School to hand over the original certificates. When the petitioner sought to interfere with the termination order, the first respondent did not address the issue at all.
29. Since I found that the termination order was passed in violation of principles of natural justice, the impugned order dated 16.09.2004 of the second respondent and the order dated 23.11.2004 of the first respondent are liable to be quashed and accordingly, the writ petition is allowed as prayed for. No costs.
ps To
1.Inspector of Matriculation Schools, Tallakulam, Madurai.
2.The Correspondent, S.D.H.Jainvidhyalaya Matriculation School, Thiruppalai, Madurai - 14.