Madras High Court
A.S.Edwin Suthan vs The Chief Educational Officer on 28 August, 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.08.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.1849 of 2009 and M.P.(MD)No.2 of 2009 A.S.Edwin Suthan ... Petitioner Vs. 1.The Chief Educational Officer, Tirunelveli, Tirunelveli District. 2.The District Elementary Educational Officer, Tirunelveli at Cheranmahadevi, Tirunelveli-627 001. 3.P.L.W.A. Higher Secondary School Committee, Vicramasingapuram-627 425, Tirunelveli District, rep.by its Secretary. 4.Thiru M.Panneerselvam, The Headmaster, P.L.W.A. Higher Secondary School, Vicramasingapuram-627 425, Tirunelveli District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order of termination issued by the third respondent Secretary dated 20.02.2009, quash the same and further direct the third respondent to reinstate the petitioner forthwith into service as Physical Education Teacher with all attendant benefits including salary, allowances and continuity of service. !For Petitioner : Mr.Isaac Mohanlal ^For Respondents : Mr.S.Kumar, Additional Government Pleader for R1 and R2 Mr.G.Prabhu Rajadurai for Mr.M.P.Senthil for R3 and R4 :ORDER
The third respondent is a private aided school governed by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. In that school, there arose a vacancy for the post of Physical Education Teacher. The school Management obtained prior permission on 12.04.2008 from the Educational Authorities to fill up the said vacancy by going through the process of selection. Accordingly, after doing the said exercise, the School Committee appointed the petitioner as Physical Education teacher from 01.12.2008. Seeking approval of the same, a proposal was submitted to the second respondent and the same was still pending. While so, the fourth respondent, who is the Headmaster of the school, on 02.02.2009, issued a charge memorandum levelling as many as 5 charges to the petitioner. The petitioner submitted his explanation on 07.02.2009 denying all the charges. Thereafter, the Secretary of the third respondent School, by letter dated 14.02.2009, directed the petitioner to appear before the School Committee on 19.02.2009 at 4.00 p.m. Accordingly, the petitioner appeared. It appears that some enquiry was held and thereafter the Secretary of the School issued an order dated 20.02.2009 terminating the petitioner from service with effect from 20.02.2009. In lieu of one month's notice, the petitioner was to get one month remuneration. Challenging the said order, the petitioner is before this Court with this writ petition.
2.In this writ petition, it is contended that the Headmaster had no authority to issue a charge memorandum and thus, the initiation of disciplinary proceedings by the Headmaster, without the authority of the School Committee itself is illegal. Secondly, it is submitted that though the petitioner denied all the charges, by submitting his explanation, no enquiry was held into the charges and no witness was examined. Thus, no opportunity was afforded to the petitioner at all to defend the charges in compliance with the principles of natural justice. Thirdly, it is submitted by the learned counsel for the petitioner that on 19.02.2009, in the decision making process to terminate the services of the petitioner, the fourth respondent was also present and he participated effectively. The fourth respondent was highly biased against the petitioner. According to the petitioner, during the selection process in which the petitioner was appointed, the fourth respondent made an attempt to get his own man appointed, but he could not succeed. Therefore, the charge memorandum and the subsequent proceedings were of his making, which according to the petitioner suffers from bias. Nextly, the learned counsel for the petitioner submitted that the petitioner was terminated without getting prior approval as required under Section 22 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The learned counsel for the petitioner relies on a few judgments in support of his contention about which, I would make reference at the appropriate stages in this order.
3.In the counter filed by the third respondent, it is stated that the charge memorandum was issued only as instructed by the Secretary of the School Committee. Therefore, according to the counter, it cannot be said that the initiation of disciplinary proceedings by the issuance of the charge memorandum on 31.01.2009 by the Headmaster is without jurisdiction. It is further contended that on 19.02.2009, as directed by the Secretary, the petitioner appeared before the School Committee. It is further stated that after a thorough enquiry and after perusing the complaints by the students, teachers and the parents, the School Committee sought for explanation from the petitioner and since the petitioner had not come forward with explanation for the charges, it was concluded that he was not in a move to offer any explanation. The School Committee, thereafter, on perusing the relevant complaints and on specific consideration that since within a short span of 2 months, the petitioner had indulged in indecent activities and since the charges levelled against the petitioner were all serious in nature, resolved to terminate the services of the petitioner. It is further contended that even though the School Committee thought it fit to inflict punishment of dismissal or removal from service, on a sympathetic consideration of the petitioner and his future, the School Committee terminated the services of the petitioner and also paid the remuneration for the services rendered by the petitioner which carries no stigma. It is further contended that after the termination of the petitioner, a proposal was submitted to the District Elementary Educational Officer, the second respondent herein, seeking approval, but the Educational Authorities have not so far issued any approval.
4.It is further contended in the counter filed by the third respondent that the impugned order of termination cannot be construed as an order of punishment. The learned counsel for the third and fourth respondents would submit that termination of the petitioner was on the ground that the petitioner had not performed his duties as Physical Education Teacher to the satisfaction of the Management during the period of probation. The learned counsel would further submit that since the petitioner's probation had not yet been declared, on the ground of unsatisfactory performance on the part of the petitioner, the Management thought it fit to terminate the petitioner from service. Therefore, according to the learned counsel, the impugned order is not an order of punishment and it is only an order terminating the services of the petitioner on the ground that during probation he had not discharged his functions and duties to the satisfaction of the Management. When it was pointed out to the learned counsel that it is not the stand taken by the School Management in their counter, the learned counsel stated that though it is not so specifically stated in the counter, it is the fact.
5.The learned counsel for respondents 3 and 4 would further submit that the appointment of the petitioner itself had not been approved and similarly the termination also had not been approved. The learned counsel, would therefore submit that, in view of the same, in the place of the petitioner, yet another Physical Education Teacher by name Mr.M.Parthasarathy Selvaganesan, has been appointed on 07.10.2009. The learned counsel further submitted that this appointment has been approved by the District Elementary Educational Officer by his Proceedings in Na.Ka.No.5211/A2/2012 dated 02.01.2013. The learned counsel would further submit that in the event the petitioner is ordered to be reinstated in service on any technical ground, it will materially affect Mr.M.Parthasarathy Selvaganesan, who has been working from the date of his appointment, ie., from 07.10.2009 onwards. The learned counsel would submit that the petitioner had indulged in indecent activities which are unbecoming of a Physical Education Teacher. As seen from the complaints of the students, parents and teachers, he used abusive language against many of the students and the teachers. It is further stated that the continuance of the petitioner in the school would not be in the larger interest of the school. By only having regard to all these aspects, the Management, within such short span of appointment, terminated him from service. The learned counsel would further submit that in the event the petitioner is ordered to be reinstated in service at this length of time, it will not be in the interest of students, as the school atmosphere will be spoiled, as he will not show any change in his attitude. The learned counsel, would therefore submit that in the event this Court comes to the conclusion to set aside the impugned order, instead of ordering for reinstatement of the petitioner in service, this Court may exercise its judicial discretion to order payment of compensation by the school Management. In this regard, he relied on two judgments of the Hon'ble Supreme Court in Ruby General Insurance Co.Ltd. vs. Shri P.P.Chopra, reported in 1969(3) SCC 653, and in Rolston John vs. Central Government Industrial Tribunal-cum-Labour Court, reported in AIR 1994 SUPREME COURT 131, wherein under the Industrial Law, the Hon'ble Supreme Court, instead of reinstatement, had ordered for payment of compensation. The learned counsel would therefore submit that instead of ordering reinstatement of petitioner in service on the above technical ground, it will be in the interest of the student community to order for payment of compensation. The learned counsel would further submit that as against the impugned order, the petitioner has got an alternative remedy of appeal under Section 23 of the Act, and even if the petitioner so prefers an appeal to the appellate authority, the appellate authority cannot pass such an order of payment of compensation, for want of discretion. But since the petitioner has chosen to approach this Court, this Court, being a Constitutional Court, has got the judicial discretion to order for payment of compensation, as has been held by the Hon'ble Supreme Court in the above said judgments. For all these reasons, the learned counsel would submit that the writ petition may be dismissed, and if the Court concludes that the termination is illegal and therefore, the petitioner is entitled for reinstatement, instead of ordering for reinstatement, there may be an order for payment of compensation.
6.I have considered the above submissions.
7.The order of termination in this case, right at the outset on the issue, I have to say, is illegal. There are many reasons for the same. Though it is contended before this Court that the termination order, at the worst, may be termed only as irregular because there were certain procedural irregularities, I hold that the order is certainly an illegal order. The reasons are as follows:
First of all, it is the admitted legal position that the competent authority to initiate disciplinary proceedings is the School Committee. In this case, the charge memorandum does not indicate that the same was issued by the School Committee. Even now, no record has been produced to show that such decision was taken by the School Committee in its meeting to initiate disciplinary proceedings against the petitioner. Therefore, I have to hold that initiation of disciplinary proceedings by issuing charge memorandum by the Headmaster, who has got no authority to do so, is illegal. Nextly, in the counter filed by the third respondent, it is stated that the disciplinary proceedings was initiated by the Headmaster by issuing charge memorandum only on the directions of the Secretary. Even this contention cannot be accepted. The Secretary, suo motu, on his own, without there being a decision of the School Committee, cannot instruct the Headmaster or cannot on his own to issue any charge memorandum. As I have already pointed out, it is the decision of the School Committee which shall be followed by issuance of disciplinary proceedings. Therefore, the contention of the third respondent in paragraph-9 of the counter that he instructed the Headmaster to initiate disciplinary proceedings, cannot be accepted for want of power.
8.Nextly, after the issuance of the charge memorandum, the petitioner duly submitted his explanation denying all the charges relating to the abusive language allegedly used against some of the students and taking the students out of the school premises without any authority, instigating and abetting students of other schools and similar allegations. The petitioner had denied all these allegations. If these explanations were not acceptable to the Management, in tune with the principles of natural justice, the School Committee ought to have held enquiry into the charges by appointing an Enquiry Officer. But no such enquiry was held to enquire into the charges, at all. Instead, the petitioner was asked to appear before the Committee on 19.02.2009. The proceedings of the Committee on 19.02.2009 are not available. It appears that the proceedings of 19.02.2009 were not recorded even. But in the counter, it is stated that the allegations were thoroughly enquired into. But the fact remains that no witness was examined during enquiry. If that be so, the stand of the respondents that a thorough enquiry was held into the charges, cannot be accepted. The counter further proceeds to say that in the enquiry, it was concluded that the petitioner had committed the above misconduct. This conclusion of the School Committee even, if the same had really been arrived at, is highly arbitrary as the same is based on no evidence. The principles of natural justice have not been strictly complied with to afford opportunity to the petitioner to defend the charges. In the absence of any witness to substantiate the charge and in the absence of affording opportunity to cross-examine the said witness, I do not understand as to how the Management could claim that enquiry was thoroughly held and that the petitioner was found guilty. Therefore, the decision of the School Committee to the effect that the petitioner had committed misconduct is not based on any evidence. Therefore, the same cannot be countenanced. Thereafter, no further liberty was given to the petitioner in respect of such findings and straightaway the termination order was issued. Therefore, I hold that the termination order is not irregular but it is illegal.
9.Nextly, the learned counsel for the petitioner would submit that no approval was obtained from the second respondent before terminating the service of the petitioner. For this, the learned counsel for the petitioner relies on a Division Bench judgment of this Court in The Ayya Nadar Janakiammal College, Sivakasi vs. Pandian, reported in 1998 (I) MLJ 14, wherein the issue before the Division Bench was as to whether termination of the services of the probationer by passing an order simpliciter without attaching any stigma, requires any prior approval from the competent authority under the Act. The Division Bench held that even if the probationer is sought to be terminated on the ground that his services were not satisfactory, even then, prior approval should be obtained from the competent authority.
10.In yet another case, in RV Thevar Memorial Girls High School vs. The Director of School Education, reported in 2002 (4) CTC 129, again yet another Division Bench has reiterated the law to state that prior approval if not obtained before terminating the teacher from service, the said termination is illegal and void ab initio. Therefore, I hold that termination of the petitioner without prior approval is illegal, which cannot be allowed to sustain.
11.The learned counsel for the respondents 3 and 4 would submit that the impugned order is not an order of punishment but it is only an order terminating the petitioner from service, without attaching any stigma, on the ground that the petitioner's service was not satisfactory. This argument deserves rejection even without any consideration, because, in the counter filed by the third respondent, it is reiterated that the impugned order is in culmination of the disciplinary proceedings. Therefore, according to the counter, it is only an order of punishment. Nowhere it is indicated either impliedly or expressly in the counter that the impugned order was passed only on the ground that the petitioner had not rendered satisfactory service. Therefore, this argument which is now advanced by the learned counsel for the respondents across the bar, cannot be accepted, as it is quite contrary to the counter filed by the third respondent.
12.The learned counsel for the respondents 3 and 4 would further submit that on the above ground if this Court is inclined to hold that termination is illegal and therefore, the petitioner is entitled for reinstatement, instead of reinstating the petitioner, there may be a direction issued by the School Management to pay compensation. For this purpose, the learned counsel relied on the judgments of the Hon'ble Supreme Court in Ruby General Insurance Co.Ltd. vs. Shri P.P.Chopra, reported in 1969(3) SCC 653, and in Rolston John vs. Central Government Industrial Tribunal-cum-Labour Court, reported in AIR 1994 SUPREME COURT 131. In these cases, we have to take note of the fact that they relate to industrial disputes. The law relating to industrial disputes is different from service law. The appointments of workmen are not regulated by any specific Statute, whereas the appointment of the teacher in this case in a private aided school is regulated by a Statute. When the Statute specifically states that termination could be made only after obtaining prior approval and that the said Statute provides for the procedure to be followed, in my considered opinion, the termination in this case is to be examined on the basis of the Statute and the other laws relating to service. It is too well settled that the principles of law evolved under the Industrial Law cannot be imported to the Service Law, because basically these two areas are different and the laws governing them are also different. To my knowledge, I have not come across any judgment wherein the Courts have held that even in service law, when termination is set aside instead ordering for reinstatement, compensation can be awarded. The learned counsel on either side would also fairly concede that there is no judgment in this aspect, as on today. In view of the same, I am of the view that the principles evolved in respect of industrial law in these two judgments, cannot be imported to the facts of the present case, because the present case is governed by the Statute and the principles of service law. Therefore, this submission is also rejected.
13.Nextly, it is brought to the notice of this Court that in the place of the petitioner, as against the said vacancy, already a person by name M.Parthasarathy Selvaganesan was appointed by the Management as early as on 07.10.2009. But in the counter filed by the second respondent, it is stated that for making such appointment, no prior permission was obtained from the second respondent by the School Management. It is also stated that the appointment of M.Parthasarathy Selvaganesan, when the writ petition is pending before this Court, cannot be approved.
14.The learned counsel for the petitioner would bring to my notice that after the change of officer at the office of the second respondent, somehow approval of appointment of M.Parthasarathy Selvaganesan was obtained. The learned counsel would further submit that as against the same, the petitioner raised an objection to the Chief Educational Officer and the Chief Educational Officer, Tirunelveli, by his Proceedings in Na.Ka.No.12898/B2/2009 dated 29.04.2013, has issued a show-cause notice to the School Management to show-cause as to why the approval granted by the District Educational Officer should not be cancelled. In my considered opinion, the appointment of M.Parthasarathy Selvaganesan in the place of the petitioner, when the writ petition is pending before this Court, cannot cloth M.Parthasarathy Selvaganesan with any right, since I could see from the records that the approval of appointment of M.Parthasarathy Selvaganesan itself is illegal. Therefore, it is for the Education Department to take a decision to withdraw the said approval after affording sufficient opportunity. In this writ petition, all that I can direct is to reinstate the petitioner in service with continuity of service and with back wages to be paid by the Management. I do not intend to direct the Educational Department to pay back wages to the petitioner, because, the Educational Department has paid wages to the said M.Parthasarathy Selvaganesan. Therefore, it is for the school Management to pay the back wages.
15.Now, turning to the last objection regarding the maintainability of the writ petition, I have to say that it is true that as against the order of termination from service, appeal can be filed under Section 23 of the Act. But availability of such alternative remedy would not deprive this Court from entertaining this writ petition, because, in this case, there is serious violation of principles of natural justice and because the impugned order of termination is not irregular but illegal. The power of this Court under Article 226 of the Constitution of India is not limited by any of the provisions of the Constitution. In fact, it is unlimited. But at the same time, in the course of time, the higher judiciary has itself imposed certain restrictions to exercise the said power. One such restriction is to refuse to entertain a writ petition when the party aggrieved has got an efficacious statutory alternative remedy. It is also too well settled that in a case where the order impugned is void ab initio, or illegal or the same has been passed in gross violation of principles of natural justice, this Court would not hesitate to entertain a writ petition so as to exercise its jurisdiction under Article 226 of the Constitution of India. In the case on hand, I have already concluded that initiation of disciplinary proceedings itself is illegal and the termination is void ab initio, for want of approval from the Education Department and the same violates the principles of natural justice, because, there was no enquiry held into the charges by affording any opportunity to the petitioner. In this factual situation, applying the above said settled principles of law, I have to hold that this writ petition is maintainable.
16.For grant of back wages, the learned counsel for the third respondent has got very serious objection. According to him, if it has been pleaded in the writ petition that the petitioner was not elsewhere employed gainfully and unless it is proved that he was not so gainfully employed, it is not possible for this Court to order for back wages. In this regard, the learned counsel relied on a judgment of the Hon'ble Supreme Court in Zila Sahakari Kendriya Bank Mariyadit vs. Jagdishchandra and others, reported in (2001) 3 SCC 332. That was a case where it was found positively that the employee had embezzled the money belonging to the employer. It was subsequently repaid. However, termination order was quashed only on the technical ground in as much as no enquiry was conducted. It was in those circumstances, the Hon'ble Supreme Court took a view that the order directing payment of back wages cannot be sustained. But in the present case, I have not set aside the order of termination on any such technical ground, pure and simple. I have held that order of termination is void ab initio, as the initiation of disciplinary proceedings itself is illegal. Since on facts, these are distinguishable, the view taken in the said judgment cannot be applied to the facts and circumstances of the present case.
17.Nextly, the learned counsel for the respondents 3 and 4 relied on yet another judgment of the Hon'ble Supreme Court in Kanailal Bera vs. Union of India and others, reported in (2007) 11 SCC 517. In that case, the Hon'ble Supreme Court did not go into the question as to whether the appellant had committed any misconduct or not, as the Court was inclined to set aside the order of punishment only on technicalities. In those circumstances, in that case, the Hon'ble Supreme Court declined to order for payment of back wages. In this case also, again the Hon'ble Supreme Court reiterated that the order of punishment, if set aside on technicalities, back wages cannot be ordered in a mechanical fashion. As I have already stated, in the present case, I have not set aside the impugned order of termination only on any technical ground, but on the ground that the dismissal is void ab initio and the initiation of disciplinary proceedings itself is illegal.
18.The learned counsel for respondents 3 and 4 has relied on yet another judgment of the Hon'ble Supreme Court in J.K.Synthetics Ltd. vs. K.P.Agrawal and another, reported in (2007) 2 SCC 433, wherein also a similar stand has been taken.
19.But the learned counsel for the petitioner would rely on a recent judgment of the Hon'ble Supreme Court in R.S.Misra vs. Union of India and others, reported in (2012) 8 SCC 558. That was a case where the termination order was set aside and the High Court ordered for payment of 50% of arrears of salary, but the Hon'ble Supreme Court modified the order of the High Court and ordered for payment of full back wages. The Hon'ble Supreme Court had gone to the extent of saying that if once the Tribunal had allowed the original application filed before the Administrative Tribunal and directed the Commissioner to pass fresh orders under Article 81(b) of the Education Code, after considering the representation submitted by the appellant, earlier order terminating the appellant's services become redundant and the appellant was deemed to continue in service for all purposes. The facts of the said case are akin to the facts and circumstances of the present case. Here also, there is no reason as to why the petitioner should be denied any back wages, when the termination order is held to be illegal. In such view of the matter, I am inclined to issue a direction to the Management to pay full back wages to the petitioner.
20.In the result, the writ petition is allowed, the impugned order of termination is set aside and the third respondent is directed to issue consequential order reinstating the petitioner, within a period of four weeks from the date of receipt of a copy of this order. It is also further directed that the petitioner shall be entitled for continuity of service and all the other attendant benefits. It is also directed that the petitioner shall be entitled for back wages from the date of termination till the date of reinstatement, to be paid by the third respondent Management. Consequently, the connected miscellaneous petition is closed. No costs.
Index : Yes/No 28.08.2014 Internet : Yes/No KM To 1.The Chief Educational Officer, Tirunelveli, Tirunelveli District. 2.The District Elementary Educational Officer, Tirunelveli at Cheranmahadevi, Tirunelveli-627 001. S.NAGAMUTHU, J. KM W.P.(MD)No.1849 of 2009 and M.P.(MD)No.2 of 2009 28.08.2014