Madras High Court
Dr.P.Murphy Alexander vs The Director Of Collegiate Education on 29 November, 2010
Bench: R.Banumathi, T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/11/2010 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI and THE HONOURABLE MR. JUSTICE T.RAJA Writ Appeal (MD) No.642 of 2010 and Writ Petition (MD) No.12304 of 2010 Dr.P.Murphy Alexander . . Appellant in WA and petitioner in WP vs 1.The Director of Collegiate Education, College Road, Chennai - 600 006. 2.The Joint Director of Collegiate Education, Tirunelveli District, Tirunelveli - 627 003. 3.The Secretary, St. Jude's College, Thoothoor - 629 176. Kanyakumari District. 4.Fr.Xavier Alexander, St.Jude's College, Thoothoor - 629 176. Kanyakumari District. 5.Rev. Francis M.Vincent, S/o Michael Pillai, Barbara's Church, Ramanthurai, Keezhkulam Post, Kanyakumari District. 6.The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District. . . Respondents in WA and WP Writ Appeal in W.A.No.642 of 2010 is filed under Clause 15 of Letters Patent against the order, dated 29.09.2010 made in MP (MD) No.2 of 2010 in W.P.(MD)No.12304 of 2010. Writ Petition in W.P.No.12304 of 2010 is filed under Article 226 of the Constitution of India seeking for the relief of writ of certiorari, to call for the records relating to the impugned proceedings issued by the 3rd respondent Secretary in SJC/S-50/10, dated 30.04.2010 and quash the same as null and void. !For Appellant ... Mr.Isaac Mohanlal in WA and Petitioner in WP ^For respondents ... Mr.Rajasekaran, Spl.GP in WA and WP for R1, R2 & R6 Mr.M.Thayumanasamy for R4 Mr.B.Pugalenthi for R5 No Appearance for R3 :JUDGMENT
(Judgment of the Court was made by T.RAJA, J) Being aggrieved by declining to grant interim order in M.P(MD).No.2 of 2010 in W.P.(MD) No.12304 of 2010, appellant has come forward with this appeal. With the consent of counsels, writ petition was withdrawn and heard together along with the writ appeal.
2. The appellant herein, who is possessing M.Sc., M.Phil. and Ph.D. Degrees, was appointed as Lecturer in the Department of Zoology in the 3rd respondent College on 07.07.83. The Joint Director of Collegiate Education/the 2nd respondent herein, has also approved the appellant's appointment as Principal with effect from 20.02.2009 and on the said date, the appellant also took charge as Principal of the College, which is also affiliated to Manonmaniam Sundaranar University, Tirunelveli. On giving approval by the Manonmaniam Sundaranar University, Tirunelveli for appointment as Principal by letter dated 10.09.2009, the 1st respondent/the Director of Collegiate Education, Chennai, also approved him as the Principal in his proceedings Mu.Mu.No.43763/F2/2009, dated 17.11.2009.
3. In the meanwhile, in view of some disputes regarding the appointment of Secretary in the 3rd respondent College, the 1st respondent/the Director of Collegiate Education, Chennai, in his proceedings Na.Ka.No.18826/F2/2010, dated 04.08.2010, passed an order for payment of salary to the staff of the College directly through the 2nd respondent/the Joint Director of Collegiate Education, Tirunelveli, specifically stating that the said arrangement is continued until the new Secretary is approved. In the same proceedings, it was also stated that the proposal had been received for change of Principal from the Secretary, but however, no orders were passed thereon. Nonetheless, the appellant continued to discharge the duties of Principal by drawing a salary till date.
4. When the matter stands thus, the learned counsel appearing for the petitioner has pleaded that, without any rhyme or reasons, the 3rd respondent/the Secretary, St.Jude's College, Thoothoor, issued the impugned order signed by the 5th respondent/Rev.Francies M.Vincent, in SJC/S-50/10, dated 30.04.2010, removing the appellant from the post of Principal, without any jurisdiction. Therefore, he further urged that the impugned proceedings removing the appellant from the post of Principal of the 3rd respondent College without issuing any prior notice and without giving any opportunity for hearing to the appellant is arbitrary and illegal. Further, it was also contended that the impugned removal order is vitiated by bias, malice and flagrant violation of the principles of natural justice.
5. Forcefully, it was contended that the learned Single Judge refusing to grant interim order of stay of the impugned order, on the ground that since the appellant was terminated from service, the legality of the order has to be gone into on the main writ petition, is causing great prejudice to the appellant's continuance in the post of Principal of the 3rd respondent College. He further contended that the learned Single Judge having seen that the order of removal was passed without holding any enquiry and without giving any notice against the appellant, yet refused to pass any order and thereby, the very writ petition filed by the appellant challenging the impugned order of termination has been rendered meaningless.
6. On the other hand, the learned counsel appearing for the respondents 4 to 6 submits that the 3rd respondent College being minority institution, they are entitled to choose its own Principal. Therefore, for acts of insubordination shown by the appellant, charges were framed against him. Subsequently, when the appellant refused to receive the charge memo, on the charges of insubordination, breach of trust, non-cooperation and disobedience, the impugned order removing the appellant from the post of Principal was passed on the basis of the resolution passed by the highest authoritative body of LCFE Society and its Board. He further contended that in any event, since the 3rd respondent College being a minority educational institution, need not hold any enquiry for appointment of their own Principal to administer the 3rd respondent College and on the that basis, prayed for dismissal of the present writ appeal.
7. Heard the learned counsel appearing on either side and perused the materials available on record.
8. The appellant, who is possessing M.Sc., M.Phil. and Ph.D. Degrees, was appointed as Lecturer in the Department of Zoology in the 3rd respondent College on 07.07.83. Subsequently, the Joint Director of Collegiate Education/the 2nd respondent herein, has also approved his appointment and thereafter, the 1st respondent/the Director of Collegiate Education, Chennai, appointed the appellant as Principal of the 3rd respondent College with effect from 20.02.2009 and thereupon, the appellant took charge as Principal on the same date and the Manonmaniam Sundaranar University, to which the 3rd respondent College is affiliated, also has given approval, approving the qualification of the appellant for his appointment as Principal, by its letter dated 10.09.2009 and the another order passed by the 1st respondent/the Director of Collegiate Education, Chennai, also indicates that the appointment of the appellant to the post of Principal, has also been approved by the 1st respondent, in his order dated 17.11.2009.
9. When the matter stands thus, in view of some disputes regarding the appointment of the Secretary in the 3rd respondent College, the 1st respondent Director, in his proceeding Na.Ka.No.18826/F2/2010, dated 04.08.2010, passed an order for payment of salary to the staff of the College directly through the 2nd respondent-Joint Director, until the new Secretary is approved.
10. In the meanwhile, the 5th respondent/Rev.Francis M.Vincent, claiming himself as a Secretary of the 3rd respondent College, has instituted a suit in O.S.No.415 of 2010, seeking for a declaration declaring the proceedings of the Revenue Divisional Officer, Padmanabhapuram, dated 17.06.2010 as null and void and also for permanent injunction restraining the defendants from interfering in the affairs of the College. In the said suit, the appellant was cited as 5th defendant and 4th respondent in the IA No.649 of 2010, pending on the file of the District Munsiff Court, Kuzhithurai. The records produced by the both sides indicate that due to rival claims made by the respondents 4 and 5 herein for the post of Secretaryship, the 6th respondent/the Revenue Divisional Officer, also conducted a Peace Meeting on 17.06.2010 in the presence of respondents 4 and 5, wherein it was also agreed by the parties that the 5th respondent/Rev.Francis M.Vincent, would continue as a Secretary and the appointment as Principal of the College pending the suit in O.S.No.84 Of 2010. The order passed by the learned District Munsiff, Kuzhithurai, indicates that there has been an order of status quo in I.A.No.301 of 2010 and the prayer made in the O.S.No.415 of 2010 to restrain the appellant from functioning as Principal on the basis of the order of removal dated 30.04.2010, also further clearly shows that the 5th respondent is attempting to remove the appellant from the post of Principal of the 3rd respondent College.
11. Be that as it may, when the appellant after coming to know that the 4th respondent has passed an order of removal on the basis of the resolution passed by the highest authoritative body of LCFE Society and its Board to remove him as early as possible, the learned Single Judge by looking at paragraph 5 of the impugned order dated 30.04.2010, could have granted interim relief, as the very impugned order clearly transpires that the appointment was sought to be removed without holding any enquiry and without giving any notice. However, when a pointed question was posted to the learned counsel defending the impugned order passed by the 4th respondent, Mr.M.Thayumanasamy, learned counsel appearing for the 4th respondent, by relying upon heavily on the judgment of the Apex Court, has replied that the 3rd respondent college being a minority institution, they are entitled to choose their own Principal and Teachers to run their educational institution. However, he has also further argued that when the notice was issued to the appellant to come for enquiry, he has refused to receive the same and only thereafter, the body of LCFE Society and its Board passed a resolution to remove the appellant from the post of Principal as early as possible in the General Body Meeting held on 26.04.2010.
12. Further, a mere perusal of the order clearly shows that the 4th respondent on the basis of the resolution and also for the charges of disobedience, non-cooperation and breach of trust, had passed the impugned order removing the appellant from the post of 3rd respondent College with effect from 30.04.2010. Nowhere, the records filed by the both sides, indicate the compliance of notice or holding of any enquiry against the appellant for the charges as mentioned in the impugned order. Therefore, in our considered view, the impugned order seeking to remove the appellant from the post of Principal without giving any show cause notice and without holding any enquiry, is illegal and further, being a flagrant violation of the principles of natural justice, the same is liable to be set aside.
13. Again, the respondents have not followed any rules and regulations before passing the removal order. Further, the disciplinary authority did not keep in view their own rules and regulations, while passing the removal order against the appellant. Therefore, looking at the impugned order from any angle, we are of the view that the basic principles of natural justice seem to have been disregarded by the 4th respondent, at every stage, from the stage of issuance of charge memo, till the removal order was passed. The obligation to act fairly on the part of administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. In the present case, there is no symptom of compliance of rules of natural justice. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
14. In a similar circumstances, the Apex Court in the case of Nagarjuna construction Co. Ltd. Vs. Govt. of Andhra Pradesh and Others reported in (2009) 3 MLJ 493(SC) has held that the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice and further observation of paragraph 33 to 36 are extracted as under:-
33. Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
34. The expressions 'natural justice' and 'legal justice' do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.
35. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the 'Magna Carta'. The classic exposition of Sir Edward Coke of natural justice requires to 'vocate, interrogate and adjudicate'. In the celebrated case of Cooper v. Wandsworth Board of Works4 the principle was thus stated:
'? even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam" (says God), "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat"?' Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
36. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
In the present case, while applying the above principles enunciated by the Apex Court, if we look at the case of the appellant herein, he was removed, unheard and no witnesses were examined in support of charges levelled against him. Therefore, the entire proceedings were thus vitiated being in violation of principles of natural justice.
15. Further, when the 4th respondent came forward to impose major punishment against his own college Principal, it is incumbent on the part of the respondents to conduct an enquiry and prove the charges levelled against him in a manner known to law. On the contrary, the argument of the learned counsel for the respondents that no enquiry needs to be conducted to remove the appellant from the post of Principal of the College, for the reason that the 3rd respondent College is a minority institution, is wholly unsustainable in law.
16. Accordingly, this Court, for the reasons stated above, by withdrawing the writ petition with consent of both sides, allows the writ petition as well as the present writ appeal by setting aside the impugned order. If the 3rd respondent wants to proceed against the appellant herein on any of the specified charges, it is open to him to proceed in accordance with law. In view of the pendency of the civil suit on the file of the District Munsiff Court, Kuzhithurai, we direct the respondents to maintain the status quo in respect of appellant's appointment in the post of Principal of the 3rd respondent College, till the orders are passed in pending civil suit. The District Munsif, Kuzhithurai, is directed to expedite the proceedings in I.A.No.649/2010 in O.S. No.415/2010 pending on its file. No Costs. Consequently, all the connected miscellaneous petitions are closed.
rkm To
1.The Director of Collegiate Education, College Road, Chennai - 600 006.
2.The Joint Director of Collegiate Education, Tirunelveli District, Tirunelveli - 627 003.
3.The Secretary, St. Jude's College, Thoothoor - 629 176.
Kanyakumari District.
4.Fr.Xavier Alexander, St.Jude's College, Thoothoor - 629 176.
Kanyakumari District.
5.Rev. Francis M.Vincent, S/o Michael Pillai, Barbara's Church, Ramanthurai, Keezhkulam Post, Kanyakumari District.
6.The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District.