Madras High Court
R.Palani vs )The Chief Educational Officer on 23 January, 2019
Author: J.Nisha Banu
Bench: J.Nisha Banu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.01.2019
(Reserved on 12.10.2018)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.16738 of 2012
and
M.P(MD)No.1 of 2012
R.Palani ... Petitioner
vs.
1)The Chief Educational Officer,
Trichy.
2)The District Educational Officer,
Trichy.
3)Vivekananda Higher Secondary School,
Rep. By its Secretary,
Tirupparaitturai,
Trichy District.
4)Swami Dhivyananda,
The Secretary,
Ramakrishna Thapovanam,
Tirupparaitturai,
Trichy District. ... Respondents
Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorari, calling for the records of the
3rd respondent in his order dated 23.11.2012 and quash the same.
http://www.judis.nic.in
2
For Petitioner : Mr.M.Muthugeethayan
For R1 & R2 : Mr.D.Muruganandam
Additional Government Pleader
For R3 & R4 : Mr.T.Antony Arulraj
ORDER
This writ petition has been filed to issue a Writ of Certiorari, calling for the records comprised in Order dated 23.11.2012 on the file of the third respondent and quash the same.
1. The petitioner joined the third respondent school during June 1983 and later got appointed as a PG Assistant in the year 1985. He avers that he is the senior most teacher in the School with about 29 years of experience and had placed a request with the School management to promote him as Assistant Head Master under the strength of his qualifications and seniority. Pending Writ Petition, the Petitioner attained the age of superannuation on 31.07.2014.
2. During 2012, the petitioner had approached the school management to appoint him as the Assistant Head Master under the http://www.judis.nic.in 3 strength of his qualifications and service. Subsequently, on 18.09.2012, the petitioner was served with a Show cause notice/ memo alleging misconduct by the petitioner. Explanation to the memo was submitted by the petitioner on 24.09.2012. Thereafter, the School committee passed a resolution on 04.10.2012 to initiate disciplinary action against the petitioner after recording that they were not satisfied with the explanation dated 24.09.2012 of the petitioner and authorized the Secretary to initiate action and conduct enquiry and accord punishment in the event the explanation of the petitioner in the enquiry is not satisfactory. In pursuance of the resolution, the Secretary initiated the enquiry by serving the memo dated 26.10.2012 that culminated in the issue of the impugned order dated 23.11.2012 by the Secretary.
3. The petitioner alleges that upset with his request for his promotion as assistant Head Master, the third respondent had issued a first Memo dated 18.09.2012. He contends that this memo was illegal as it was issued without passing the statutory resolution by the School committee. The Petitioner submits that he had filed his explanation to http://www.judis.nic.in 4 the Memo on 24.09.2012 denying the allegations. Thereafter a resolution was passed by the School Committee on 04.10.2012. The resolution authorized the Secretary to conduct enquiry and award punishment in the event guilt is established. Accordingly, the Secretary issued another Memo to the petitioner on 26.10.2012 with 5 charges.
a) The Writ Petitioner had refused to sign the circular sent by the third respondent.
b) In the Academic year 2012-13, the petitioner had omitted 5 classes out of the 28 assigned to him.
c) The petitioner conducted the mid term exam with a 1 month delay and delayed in giving the mark sheets to the other teachers.
d) The Petitioner filled up the mark statement and the rank list by using the students and had discrepancies in totalling.
e) During quarterly exam, the petitioner failed to render assistance as a hall supervisor.
4. The petitioner alleges that the fresh memo dated 26.10.2012 came to be issued upon the resolution of the committee as the http://www.judis.nic.in 5 respondents realized that the first memo dated 18.09.2012 was issued without the authority of the school committee. It was submitted that the memo dated 26.10.2012 carried the same allegations as that of the first memo dated 18.09.2012. It was also submitted that the fresh memo dated 26.10.2012 specifically mentions the resolution of the school committee while the first memo had no reference to any resolution of the school committee.
5. The petitioner alleges that the wordings of the resolution dated 04.10.2012 indicates that the power of the school committee is delegated to the Secretary to initiate disciplinary action against the petitioner by initiating enquiry. It had also authorized the secretary to impose suitable punishment on the petitioner in the event the explanation of the petitioner is not satisfactory. The petitioner alleges that such a delegation of the powers by the school committee is against the provisions of Section 18 (1) (c) of The Tamil Nadu Recognized Private Schools Regulation Act, 1973. It is the contention of the petitioner that only the school committee had the power to take http://www.judis.nic.in 6 disciplinary action and the same cannot be delegated to the secretary. They also contend that the act of the school committee in issuing the charge memo on 18.09.2012 before the passing of resolution is in violation of the said rule read with Annexure VII A of the Act and Rules. It was argued that the act of again issuing the memo on 26.10.2012 after the passing of resolution is without jurisdiction since fresh charges cannot be issued on the same ground.
6. The petitioner contends that the wordings of the resolution dated 04.10.2012 contemplated delegation of the powers of both the enquiry officer and the disciplinary authority on the Secretary which is impermissible in law. In the present case, the Secretary had issued the charge memo dated 26.10.2012, acted as the enquiry officer seeking explanation from the petitioner in his proceedings dated 09.11.2012 and at the same time acted as disciplinary authority by imposing the stoppage of two increments with cumulative effect by his proceedings dated 23.11.2012. The petitioner alleges that the act of the Secretary is in violation of the principles of natural justice and also against Section 18 http://www.judis.nic.in 7 (1) (c) of The Tamil Nadu Recognized Private Schools Regulation Act, 1973. read with Annexure VII A. They had relied on the decision of the full bench of this Hon'ble Court in K.M.Valliappan vs. Joint Commissioner reported in 2006 (4) MLJ 1129 and Writ Appeal No 1001 of 2007 before this Court in Swami Sadananda vs the Chief Education Officer.
7. To sum up, the petitioner contended that the act of the Secretary to issue charge memo and conduct enquiry and imposing punishment of stoppage of two increments with cumulative effect on the said charges without placing the enquiry report before the Committee, is a violation of the Principles of Natural Justice and run contrary to the statutory provisions and the Judicial pronouncements made in this regard, and therefore bad in law.
8. The respondents 3 & 4, in their written submission had contended that the Writ Petition is not maintainable for availability of alternate remedy under Section 23 of The Tamil Nadu Recognized http://www.judis.nic.in 8 Private Schools Regulation Act, 1973. Therefore, it was argued that when there is appeal remedy available under the statute, invoking public law remedy under Article 226 of the Constitution of India is not maintainable in law.
9. The respondents contended that there is no infirmity in the proceedings leading to the order imposing punishment on the petitioner for stoppage of two increments with cumulative effect. It was argued that the letter dated 18.09.2012 was only a show cause notice. The explanation dated 24.09.2012 given by the petitioner was found not satisfactory by the school committee and therefore the resolution dated 04.10.2012 was passed directing the Secretary to initiate disciplinary action and impose punishment in the event the explanation of the petitioner is wanting. Accordingly, the enquiry was initiated by the Secretary by issuing Memo dated 26.10.2012. It was argued that the resolutions of the school committee are given effect only through the Secretary under the Tamil Nadu Recognized Schools Regulation Act and the Rules made thereunder and sought to distinguish the case law 2006 http://www.judis.nic.in 9 4 CTC 471. Therefore, it was contended that the powers exercised by the Secretary are proper and the same can not be misconstrued as delegated upon him.
10. I have carefully gone through the records of the case and heard the counsels. The petitioner was imposed penalty to an extent of stoppage of two increments with cumulative effect by order dated 23.11.2012 passed by the Secretary. It is not in dispute that the order came to be passed by the secretary on the strength of the resolution passed by the committee on 04.10.2012. The resolution in the instant case unequivocally entrusts the task of initiating, enquiring and punishing the petitioner, with the Secretary. The allegation of the petitioner that the secretary had issued the charge memo, conducted enquiry and imposed penalty is also not disputed by the respondents. In the backdrop, the order dated 23.11.2012 passed by the secretary suffers from infirmity besides violation of the principles of natural justice warranting writ interference under Article 226 of the constitution of India.
http://www.judis.nic.in 10
11. Under the scheme of the Act, no adverse action can be taken against a teacher or an employee by the recognized private schools unless with the approval of the school committee. The provision intends to protect the employees against any arbitrary action by the private school management. Therefore, it mandates the necessity of an approval for initiating action against an employee, by way of a resolution passed by the school committee. Complaints against the employees ought to be brought before the School Committee. Once the committee thinks there is a prima facie case for initiating action, the enquiry officer is appointed to enquire into the guilt. Sufficient opportunities in the form of personal hearing, cross examination of witness etc., have to be allowed to the delinquent teacher/employee at the time of enquiry. Once the enquiry is concluded, the enquiry officer shall file the report of his findings to the School Committee. The School Committee alone can exercise the power of the disciplinary authority. The punishment shall be decided and imposed only by the School Committee. The School committee had to apply its mind to accept or reject the findings of the enquiry officer. In Major cases, it is provided that the punishment imposed by the school http://www.judis.nic.in 11 committee have to be approved/ratified by the competent authority.
12. There is no two opinion that the Enquiry officer and the disciplinary officer cannot be the one and the same person. No one can sit in judgement over his own cause. It violates the principles of natural justice. In the context, there is a problem with the resolution passed by the school committee in the instant case. It had unequivocally authorized the Secretary to enquire and punish the delinquent officer. And it is an admitted fact that the punishment was imposed by the enquiry officer. As rightly argued by the petitioners, the issue raised in this writ petition is no more res integra. It is a settled position that the power of the school committee cannot be delegated. The case laws cited by the petitioners are unambiguous and specific to the Tamil Nadu Recognized Private Schools Regulation Act, 1973 and directly apply to the instant case. A perusal of the resolution dated 04.10.2012 indicates that by authorizing the Secretary to enquire and punish, the committee had delegated its powers to the secretary which is not permissible under the law. It is for the committee as the disciplinary authority to sit on http://www.judis.nic.in 12 judgement over the enquiry report and impose punishment. Therefore, the order dated 23.11.2012 suffers from infirmity and is liable to be quashed on the ground of illegality. Needless to mention, the order is passed in violation of the principles of natural justice.
13. On the merit of the accusations against the petitioner, it is borne in mind that the petitioner had served in the same school for more than 29 years without any blemishes. The complaints came at the fag end of his career and that too after he had approached the management to appoint him as the Assistant Head Master. Even when the fact is so, no opinion is passed on the genuineness or otherwise of the accusations.
14. In view of the above discussions on the legality of the order dated 23.11.2012 of the third respondent, the same is liable to be quashed on the ground of illegality and for violations of principles of natural justice. It is also informed that the petitioner had since attained superannuation. Accordingly, the petitioner will be entitled for all the http://www.judis.nic.in 13 benefits that flow consequent to the quashing of the above said order.
In the result, this Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes/No 23.01.2019
Internet : Yes/No
bala
To
1)The Chief Educational Officer,
Trichy.
2)The District Educational Officer,
Trichy.
http://www.judis.nic.in
14
J.NISHABANU, J.
bala
Pre-delivery order made in
W.P(MD)No.16738 of 2012
23.01.2019
http://www.judis.nic.in