Madras High Court
Dolly Deniese vs Don Bosco Matriculation Higher ... on 23 July, 2013
Bench: M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23-7-2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH O.S.A.No.24 of 2010 Dolly Deniese .. Appellant Versus 1. Don Bosco Matriculation Higher Secondary School Rep. By its Principal, Casa Major Road, Egmore, Chennai. 2. Mr.Packia Raj Rayan Rector and Correspondent, Don Bosco Matriculation Higher Secondary School, Casa Major Road, Egmore, Chennai. 3. S.Suja Women Christian College, College Road, Chennai-34. .. Respondents Prayer: Original Side Appeal filed under Order XXXVI Rule 9 of Original Side Rules read with Clause 15 of Letters Patent, against the order, dated 5.10.2009, passed in C.S.No.116 of 1999. For Appellant : Mr.N.D.Bahety For Respondents : Mr.A.Immanuel (R1 and R2) JUDGMENT
(Judgment of the Court was made by M.Jaichandren,J.) This Original Side Appeal, in O.S.A.No.24 of 2010, had been filed against the judgment and decree, dated 5.10.2009, passed by the learned single Judge of this Court, in C.S.No.116 of 1999.
2. The learned single Judge, by her judgment and decree, dated 5.10.2009, had held that the plaintiff in the suit, in C.S.No.116 of 1999, namely, Dolly Deniese, the appellant in the present original side appeal, had wilfully disobeyed the direction issued by the school management to attend the Annual Staff Retreat, on 14.2.1998. The willful absence of the appellant from the Annual Staff Retreat, without obtaining the prior permission of the authorities concerned would amount to insubordination.
3. It had also been held that the disciplinary action initiated by the management of the school, against the appellant, based on the charges levelled against her, by way of a memo, dated 17.2.1998, and the subsequent memo, dated 27.2.1998, and the punishment imposed on her pursuant to the enquiry proceedings, were valid and sustainable in the eye of law. In such view of the matter, the learned single Judge had dismissed the suit, in C.S.No.116 of 1999, holding that the plaintiff in the said suit, the appellant in the present original side appeal, had not made out a case to set aside the punishment imposed on her by the management of the school. Consequently, the prayer of the plaintiff for damages, to the tune of Rs.15 lakhs, for the loss of reputation, mental agony and torture, physical humiliation and intentional wrong, alleged to have been committed by the management of the school, had been rejected.
4. The learned single Judge had held that the appellant must have attended the Annual Staff Retreat, as it was being conducted to preserve the cultural and religious identity of Christians. It had also been held that the Retreat is a part of the curriculum to equip the teaching staff to impart religious as well as secular education to the students of the Christian religious minority community studying in the first respondent school. In such circumstances, the learned single Judge had further held that the appellant must have attended the Annual Staff Retreat. If unforeseen circumstances had arisen, the appellant ought to have obtained the prior permission from the authorities concerned for being absent from the Annual Staff Retreat. It had also been held that, from the enquiry report submitted to the management of the school, it could be seen that the appellant had informed one Sr.Celiene D'Souza, who was the Principal incharge of the school. In fact, the appellant should have informed Fr.Michael, the Principal of the school.
5. The learned single Judge had also held that it was open to the first respondent school to conduct the Annual Staff Retreat, as part of the curriculum, in order to impart religious, as well as secular education to the students of the first respondent school, belonging to the Christian religious minority community. While so, without obtaining the prior permission from the appropriate authority of the school concerned the plaintiff in the suit, the appellant in the present original side appeal, was absent on 14.2.1998.
6. Based on the averments made on behalf of the parties concerned the learned single Judge had framed the following issues for trial.
"5.The following issues were framed for trial:-
(1) Whether the plaintiff is entitled for the damages quantified in the plaint?
(2) Whether the second and third defendants are justified in issuing a second charge sheet against the plaintiff on 27.2.1998?
(3) Can the second and third defendants assert that the plaintiff was unauthorisedly absent on 14.2.1998 when the retreat was organised because that day happened to be a paid holiday?
(4) Whether the Madras Educational Rules do provide for a compulsory attendance of a Retreat organised by defendants 2 and 3 as asserted by them during the enquiry proceedings?
(5) Whether the enquiry conducted by the sixth defendant was fair and proper and held without basis?
(6) Whether the report of the enquiry officer could be rejected because of the deliberate deletion made in the plaintiff statement recorded on 8.4.1998?
(7) Whether the punishment of suspension issued on 14.5.1998 should be annulled to restore the lost reputation of the plaintiff because the same was caused wilfully and intentionally?"
7. Based on the evidence available the learned single Judge had held that the appellant herein had been given sufficient opportunity, by way of an enquiry, to defend herself against the charges levelled in the charge memo issued to her. The enquiry had been conducted, as per the established procedures of law, following the principles of natural justice. As the explanation submitted by the appellant was found to be unsatisfactory, on completion of the enquiry, an enquiry report had been furnished to the appellant and a further explanation had been called for. Only thereafter, she had been imposed with the punishment, by way of an order, dated 14.5.1998.
8. It had been noted by the learned single Judge that the appellant was guilty of insubordination, as she had failed to attend the Annual Staff Retreat, on 14.2.1998. Further, the way in which she had given her reply through her lawyers notice, dated 3.3.1998, would show that she did not have sufficient respect for her superiors. In such circumstances, the learned single Judge had dismissed the suit stating that the appellant, who was the plaintiff in the said suit, was not entitled to any relief, as prayed for by her in the said suit. Consequently, the learned single Judge had also held that the plaintiff in the suit, the appellant herein, was not entitled to any damages, as prayed for by her. Accordingly the suit, in C.S.No.116 of 1999, had been dismissed by the judgment of the learned single Judge, dated 5.10.2009. Challenging the judgment and decree of the learned single Judge, dated 5.10.2009, made in C.S.No.116 of 1999, the plaintiff in the said suit had filed the present Original Side Appeal in O.S.A.No.24 of 2010.
9. The learned counsel appearing for the appellant had contended, inter alia, that the judgment and decree of the learned single Judge is contrary to law, weight of evidence and the facts of the case. The learned single Judge had held that the first respondent school is a minority institution and as such it had certain rights and privileges relating to the imparting of religious instructions to the students studying in the said school. However, no evidence had been let, in respect of the religious minority status of the school. The learned single Judge had erred in failing to appreciate the provisions of Article 28(3) of the Constitution of India, which states that no person attending any educational institution shall be required to take part in any religious instruction that may be imparted in such institution, or to take part in any religious workhip that may be conducted in such an institution. As such, the first respondent school ought not to have compelled the appellant to attend the Annual Staff Retreat organized and conducted by the first respondent school, on 14.2.1998, which was a school holiday.
10. It had also been stated that, even under the Code of Regulations for Matriculation Schools in Tamil Nadu, there is no provision vesting such discretion with the management of an educational institution to compel the attendance of its staff at the Annual Staff Retreat, especially, when it is held on a school holiday. The rights enjoyed by a minority institution, under Article 30 of the Constitution of India, cannot be an absolute right infringing on the fundamental rights of individual citizens. As such the charge memo issued by the first respondent management is in violation of the fundamental rights of the appellant guaranteed under the Constitution of India.
11. It had been further stated that the learned single Judge had failed to appreciate that the order of punishment, dated 14.5.1998, passed by the first respondent, is arbitrary, illegal and void, in view of the relevant provisions of the Constitution of India, as well as the Code of Regulations for the Matriculation Schools in Tamil Nadu. It is also contrary to the principles of natural justice, equity and good conscience. As such, the judgment and decree of the learned single Judge, dated 5.10.2009, made in C.S.No.116 of 1999, is liable to be set aside.
12. In view of the averments made on behalf of the appellant, as well as the respondents, and in view of the submissions made by the learned counsels appearing on their behalf, and on a perusal of the evidence available on record, it could be noted that certain instructions had been issued to the appellant to attend the Annual Staff Retreat, on 14.2.1998. However, the appellant had not attended the said event organized and conducted by the first respondent school. Therefore, the management of the first respondent school had issued a charge memo alleging that the appellant had willfully disobeyed the orders of the school management and that the act of the appellant in absenting herself from the Annual Staff Retreat would amount to insubordination. After an enquiry had been conducted, an order of punishment, dated 14.5.1998, had been issued to the appellant, suspending the appellant from service, for a period of one month.
13. The main contention raised on behalf of the appellant, in challenging the order of punishment issued against her, is that the management of the first respondent school has no right or authority under law, to compel the appellant to attend the Annual Staff Retreat, as such compulsion would infringe the fundamental rights of the appellant, who has a right to absent herself from attending religious instructions. It had also been stated that there are no provisions in the Code of Regulations for Matriculations Schools in Tamil Nadu, based on which the management of first respondent school could compel the petitioner to attend the Annual Staff Retreat organized and conducted by the authorities of the said school.
14. From the evidence available it could be seen that the appellant had submitted her explanation stating that she had no intention of wilfully disobeying the order issued by the management of the first respondent school. She had also stated that she was attending the religious ceremonies being held at a different place. Even though the appellant had chosen to submit her reply, by way of a lawyers notice, it cannot be assumed that such a reply, submitted by the appellant, would amount to willful disobedience or in subordination, as alleged by the management of the first respondent school.
15. It is also noted that the appellant had informed the principal incharge of the school stating that she would not be in a position to attend the Annual Staff Retreat, on 14.2.1998, instead of intimating the same to the appropriate authority. However, such an act of the appellant cannot be held to be willful or wanton, leading to an inference that the appellant had disobeyed the orders issued by the management of the first respondent school, intentionally. Even otherwise, the punishment imposed on the appellant, by the management of the first respondent school, by an order, dated 14.5.1998, is disproportionate to the charges levelled against the petitioner. In fact, it could be seen that the appellant had expressed her regret for her failure to attend the Annual Staff Retreat, held on 14.2.1998.
16. Even though we are of the view that the punishment imposed on the appellant cannot be sustained, we are constrained to hold that the claim of the appellant for damages cannot be granted. The appellant has not been in a position to substantiate her claim for damages, with sufficient evidence. From the evidence available on record it cannot be held that the first respondent school had initiated the action against the appellant and had imposed the punishment on her, with a mala fide intention. Further, the management of the first respondent school, had issued a direction to the appellant to attend the Annual Staff Retreat on 14.2.1998. The propriety of such an action cannot be questioned by the appellant, as the order had been issued in the usual course of the management of the first respondent school. Therefore, the only question that has to be gone into, at this stage, is whether the appellant had willfully disobeyed the orders issued by the management of the first respondent school, amounting to a misconduct. The appellant has shown sufficient reasons for her not attending the Annual Staff Retreat, held on 14.2.1998. At the same time the management of the first respondent school cannot be found fault with for issuing orders to its teachers/staff to attend the Annual Staff Retreat, which is a regular annual event conducted by the school. Further, there is no doubt that discipline should be maintained by the management of the first respondent school in respect of its teachers/staff and the students of the school. In such view of the matter, taking into consideration the facts and circumstances of the present case, we do not find the order, dated 5.10.2009, issued by the management of the first respondent school, to be appropriate or acceptable. As such, we are not in agreement with the conclusions arrived at by the learned single Judge in her judgment, dated 5.10.2009, made in C.S.No.116 of 1999. Accordingly, the judgment of the learned single Judge, dated 5.10.2009, made in C.S.No.116 of 1999, is set aside. However, we also find it appropriate to decline the relief prayed for by the appellant for awarding of damages. Accordingly, the original side appeal is partly allowed.
csh