Madras High Court
P.Samuel Rajasekar vs The Director Of Collegiate Education on 27 September, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/09/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.10426 of 2010 and M.P.(MD)NOS.1 AND 2 OF 2010 P.Samuel Rajasekar .. Petitioner Vs. 1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai. 2.The Joint Director of College Education, Tirunelveli Region, Palayamkottai, Tirunelveli. 3.G.Venkatasamy Naidu College represented by its Secretary Kovilpatti Tirunelveli District. 4.K.Selvaraj Secretary, G.Venkatasamy Naidu College, Kovilpatti, Tirunelveli Dist. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the notice dated 30.7.2010 issued by the third respondent and to quash the same and consequently, to direct the third respondent to reinstate him in service with all consequential benefits. !For Petitioner ... Mr.G.R.Swaminathan ^For Respondents ... Mr.R.Janakiramulu (Takes notice for RR1 and 2) Mr.M.Mariappan for RR3 and 4 - - - - :ORDER
The petitioner, an Associate Professor in Physics in the third respondent College, has come forward to challenge the second show cause notice issued by the third respondent, dated 30.07.2010.
2.The third respondent College is a "private college" within a meaning of Section 2(8) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the rules framed thereunder. A complaint was given by girl students studying in second year B.Sc (Physics) on 17.3.2010 to the fourth respondent Secretary of the College. The gist of the complaint was that when the students complained about the question paper furnished by him was out of syllabus in the paper relating to Basic Electronics, (a major subject), the petitioner abused them with a language having sexual overtones and also threatened to assault them with a warning that unless they leave the class, he will not keep quiet. He also threatened to neck them out with physical force. He also stated that he will deprive their honour and will not leave them in peace. Further, if the students do not like what he speaks in the class room, they can go and commit suicide by jumping into a Well. When they were leaving the class, he also called them "you dogs" get out. The complaint dated 17.3.2010 was signed by six girl students of the class. The same students also went to Thiruvenkadam police station and lodged a criminal complaint on18.3.2010 at 11.00 a.m. The criminal complaint was registered as Crime No.33 of 2010.
3.The fourth respondent upon receipt of the complaint gave a memo, dated 29.03.2010 asking for an explanation for his indecent remarks with sexual overtones resulting in humiliation of girl students of the college. A copy of the written complaint given by the students was also enclosed along with the show cause memo. He was originally suspended on 19.03.2010. In the meanwhile, the petitioner filed a writ petition being W.P.(MD)No.4081 of 2010 questioning the authority of his power to suspend. Subsequently, the order was withdrawn as the same was not placed before the College Committee. The College committee meeting was held on 09.04.2010. On the basis of the resolution, once again the petitioner was placed under suspension with effect from 09.04.2010. Thereafter, a charge memo, dated 05.05.2010 was issued to the petitioner. The incident also sparked off students' unrest. The girl students of the College resorted to road blockade and conducted a demonstration in front of the college. The matter also got widely published in the local newspapers which forced the local revenue and police authorities to visit the College campus.
4.The petitioner in response to the charge memo contended that the complaint was baseless. It was issued as he was a part of the group which signed a petition to the Department of Sports questioning the handing over of the College Hockey Play ground to the Kovilpatti Sports Club contrary to the provisions of the Act and the terms of the Trust deed. A suit was also filed against the handing over of the college play ground to a private body which is pending in O.S.No.88 of 2005 on the file of the Principal District Court, Thoothukudi. It was claimed that the college management suspected the petitioner's hand behind this move. Therefore, they were waiting for an opportunity to edge him out of the college as he had become inconvenient to the management. It was due to the instigation of the College management, the college students gave the criminal complaint and the petitioner was arrested. The petitioner was charged with offences under Sections 509 and 341 IPC read with Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998. There were two criminal cases registered against the petitioner in Crime No.33 of 2010 and Crime No.173 of 2010.
5.Since the petitioner's preliminary explanation was not satisfactory, the College Committee decided to conduct an enquiry all by itself. The petitioner instead of attending the enquiry, sought for the conduct of the enquiry by an independent person or by a Sub Committee. Later, he also sought for an assistance of a legal practitioner. Both requests were rejected by the College committee. The petitioner, thereafter, attempted to seek for shifting of the enquiry from Kovilpatti to Coimbatore as according to him the local situation was not conducive for getting fair opportunity. That request was also rejected because shifting of enquiry to Coimbatore is clearly not permissible as the College is at Kovilpatti and the Committee members are also from the said place. The enquiry was held on 10.07.2010, 20.07.2010, 22.07.2010, 24.07.2010 and 29.07.2010. In the enquiry, the petitioner made one more attempt to contend that since the criminal case filed against him was pending and the present charge sheet and the departmental enquiry are based on an identical set of facts, the departmental enquiry should not be proceeded with until the completion of the criminal trial.
6.Thereafter, the petitioner also questioned the Coram of the College committee. According to him the college committee was not properly constituted inasmuch as one ex-officio vacancy to represent non teaching staff was not filled up.
7. In the enquiry held on 10.07.2010, three girl students appeared and gave depositions and the petitioner was present. A copy of the deposition was also handed over to the petitioner. It was adjourned to 20.07.2010 to enable the petitioner to cross examine those girl students. Again on 20.07.2010, remaining three girl students and one non teaching staff Ananthakrishnan were examined. On that day, the petitioner was present and deposition copy was handed over to him. At the request of the petitioner, the enquiry was adjourned to 22.07.2010 to enable the petitioner to cross examine the witnesses examined so far. The petitioner did not cross examine the witnesses on 22.07.2010 to which day, the enquiry was posted. He wrote a letter stating that he will not cross examine the witnesses and abruptly left the enquiry spot. The enquiry was then adjourned to 24.07.2010. The petitioner who came to enquiry on that day refused to sign the attendance register and also refused to cross examine the witnesses. Therefore, the enquiry was finally adjourned to 29.07.2010 so as to give a last chance to the petitioner. The petitioner sought for further time to cross examine the witnesses and to produce his witnesses. On 29.07.2010, he gave a letter sent through a personal messenger, informing that he will not appear before the College committee and he will only attend an enquiry conducted by an independent body.
8.It was the stand of the third respondent College that Section 19(3)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976, the Act obliges them to complete the enquiry within a period of two months. Further extension of suspension can be done only with the prior approval of the competent authority. Therefore, the college management was in a bind to complete the enquiry. It is under these circumstances, the enquiry against the petitioner was completed and the College management issued the impugned show cause notice, dated 30.07.2010. It was based on the resolution passed by the College, dated 29.07.2010. The petitioner was asked to show cause as to why he should not be dismissed from service. Instead of submitting his explanation, the petitioner has come forward to file the present writ petition.
9.The writ petition was admitted on 11.08.2010 and an interim stay was granted on the same day. The college management filed an application for vacating the interim order in M.P.(MD)No.2 of 2010 together with a supporting counter affidavit denying the allegations made against the management. It is under these circumstances and with the consent of both sides, the main writ petition itself was taken up for final hearing.
10.Mr.G.R.Swaminathan, learned counsel appearing for the petitioner contended that a writ petition against a show cause notice is permissible and he referred to the judgment of the Supreme Court in Union of India and another Vs. Kunisetty Satyanarayana reported in 2006 (12) SCC 28. There are alternative remedies available under the statute need not deter this court and the writ petition is maintainable even without exhausting the alternative remedies. If a termination order is passed without adhering to the principles of natural justice, the Supreme Court in Satwati Deswal Vs. State of Haryana and others reported in 2010 (1) SCC 126 has held that a remedy under Article 226 is permissible.
11.The learned counsel also contended that the college committee did not have full complement and therefore, it cannot be said that it was the college committee which had conducted the enquiry. For this purpose, he relied upon the judgment of the Supreme Court in Cantonment Executive Officer and another Vs. Vijay D.Wani & others reported in 2008 (12) SCC 230.
12.The learned counsel further submitted that since he is implicated in a criminal case which is pending investigation, in the fitness of things, the management should defer the enquiry as both proceedings are based on same set of facts. For this purpose, he also relied on a judgment of the Supreme Court in Managing Director, State Bank of Hyderabad and another Vs. P.Kata Rao reported in AIR 2008 SC 2146 = 2008 (15) SCC 657.
13.Per contra, Mr.M.Mariappan, learned counsel appearing for third and fourth respondents submitted that it is a serious matter involving the prestige of the College. Due to the conduct of the petitioner, a law and order situation was created. No management can be a mute spectator when such serious allegations are made and that too by the girl students. The third respondent College is a co-educational institution having 600 students. The management is obliged to take action whenever such serious allegations are made. In respect of the other allegations made by the petitioner, the third and fourth respondents have denied them in the counter affidavit filed in support of the vacate stay application.
14.In the light of the rival contentions, it has to be seen whether the impugned show cause notice is liable to be interdicted by this court at the instance of the petitioner?
15.Before going into the rival contentions, it is necessary to set out the scheme of the Tamil Nadu Private Colleges (Regulation) Act, 1976 in dealing with the disciplinary action against a teacher. Under section 17 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, the Government can make rules in consultation with the University for items set out therein which includes rights as respects disciplinary matters. Pursuant to the power vested under Section 17 read with Section 53, the State Government has framed rules known as Tamil Nadu Private Colleges (Regulation) Rules, 1976. Under Rule 11, conditions of service of teachers in a private college is prescribed. Under Rule 11(12), it is obligated that the Committee of the very college must render into an agreement with the teachers in Form 7-A. Under Form 7-A, the term 7 set out the procedures for taking disciplinary action by the college committee. The term 7 of Form 7-A is extracted below:
"7(a)That the college committee shall not dismiss, remove or reduce in rank or terminate the services of the said teacher without informing him/her in writing of the grounds on which they intend to take action and shall follow the following procedure before taking any final decision regarding the punishment to be imposed on him / her and giving him / her in writing reasonable time to send his / her explanation to the college committee.
(b)After considering his / her explanation the college committee shall, communicate to him / her its findings and if so, desired by the said teacher conduct a personal hearing or enquiry, wherein he / she shall be given the opportunity to examine or cross-examine any of the witnesses and also produce witnesses.
(c)After the conduct of the personal hearing or enquiry by the college committee, the report of such personal hearing or enquiry shall be furnished to the said teacher and a notice shall be issued to him / her setting out the proposed punishment and he/ she shall be given a reasonable time to submit the statement of defence against the proposed punishment.
(d)After the receipt of the statement of defence from him / her and after taking it into consideration, the college committee shall inform him / her in writing about its final decision."
16.Under Section 14 of the Act, the functions of the college committee are set out. As per Section 14(1)(c), it is the college committee which is empowered to take disciplinary action against teachers and other persons of the private college. The matters do not end therein. Under Section 19(1), every private college has to seek prior approval of the competent authority. It is necessary to extract Section 19(1) and (2) of the Act, which reads as follows:
"19.Dismissal, removal or reduction in rank or suspension of teachers or other persons employed in private colleges.- (1)Subject to any rule that may be made in this behalf, no teacher or other person employed in any private college shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. (2)Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private college is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment."
17.Under Section 19(3), teachers cannot be suspended beyond a period of two months that too only when an enquiry into grave charges are contemplated. If any further extension is required, it requires prior approval of the competent authority and even that authority can grant extension of two more months. Altogether, pending enquiry, a private college teacher can be suspended only for a maximum period of four months. If the college committee proposes to impose a punishment of dismissal or any major penalty like reduction in rank, it will have to seek prior approval as noted already. In case prior approval is granted by the competent authority, the aggrieve teacher has right of appeal under Section 20(a) to the appellate authority. Even if the appellate authority rejects the appeal, there is a further second appeal to the Private College Appellate Tribunal under Section 21 of the Act.
18.The Tribunal constituted under Section 38 is to be presided by a Judicial Officer not below the rank of the District Judge and it has got all powers of the civil court. Under Section 39(2), the procedure to be adopted by the appellate authority is also furnished. The appellate authority under Section 39(3) is also empowered to grant an interlocutory order. If still the person is aggrieved over the order passed by the Tribunal or in the absence of the Tribunal, by the appellate authority, he can always have a recourse to challenge such orders before this Court under Article 226 of the Constitution of India and it will have to be heard by the single Judge of this court. If there is further dissatisfaction or grievance left, then an appeal lies to the division bench under Clause 15 of the Letters of Patents. Even against the order of the division bench, there is further appeal to the Supreme Court under Article 136 of the Constitution of India. Therefore, the Private Colleges Act has been conceived in such a way that a teacher working in the college in respect of disciplinary action is completely insulated by a three tier mechanism. In fact, without prior approval, no dismissal order can come into force. Even if any approval is granted, there is a two tier appellate system within the provisions of the Act. Thereafter, a three tier mechanism for judicial review before the High Court and the Supreme Court.
19.In the light of the comprehensive scheme made under the Tamil Nadu Private Colleges Act, no teacher of a private college can be allowed to question the show cause notice is the question that arises for consideration in this case.
20.The contention of the learned counsel for the petitioner that a writ petition against the show cause notice is maintainable as held by the Supreme Court in Kunisetty Satyanarayana's case (cited supra) cannot have universal proposition. In fact, in the very same judgment in paragraphs 13 to 16, it was held as follows:
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh1, Special Director v. Mohd. Ghulam Ghouse2, Ulagappa v. Divisional Commr., Mysore3, State of U.P. v. Brahm Datt Sharma4, etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
21.Further submission based upon Satwati Deswal's case (cited supra) that notwithstanding an alterative remedy, a writ petition is maintainable, also cannot be stretched to the level of questioning even the show cause notice when well laid procedures are to be followed by the authority. In that case, the Supreme Court in paragraph No.7 held as follows:
"7. Such being the position and in view of the admitted fact in this case that before termination of the services of the appellant, no disciplinary proceeding was initiated nor was any opportunity of hearing given to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. In that view of the matter, we are of the view that the writ petition was maintainable in law and the High Court was in error in holding that in view of availability of alternative remedy to challenge the order of termination, the writ petition was not maintainable in law."
(Emphasis added)
22.In the present case, the situation pointed out by the Supreme Court is absent. The petitioner was given a show cause notice along with the complaint report. Subsequently, regular charge sheet was furnished to him. The witnesses were examined in his presence by the College Committee and an opportunity was given to the second show cause notice. Even that show cause notice is not final, because any final decision taken by the management is subjected to prior approval by the competent authority. Therefore, when the petitioner has ample remedy of statutory safeguards, the writ petition against the show cause notice is clearly impermissible.
23.The college management under the scheme of the Act do not have a final word on the matter of imposition of major penalties. The idea of prior approval is that the teacher will not be dealt with by the school management and it will prevent any act of victimization or unjust punishment imposed against the college teacher.
24.The Supreme Court in All Saints High School v. Govt. of A.P. Reported in (1980) 2 SCC 478 while interpreting the similar provisions in the Andhra Pradesh Private Schools Act, (the provisions are paremeteria with the Tamil Nadu Act), held in paragraph 115 which is as follows:
"115. Section 3(1) and (2) will have to be read together. The procedure contemplated is that when the educational institution proposes to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher it should communicate to the competent authority its proposal. The latter part of Section 3(2) mentions that the competent authority shall if it is satisfied that there are adequate and reasonable grounds for such proposal approve such dismissal, removal, reduction in rank or otherwise termination of appointment. The approval of an order of dismissal or removal etc. will have to be read along with Section 3(1) which provides that no teacher shall be dismissed etc. without the previous approval of the competent authority. When a domestic enquiry has been conducted and the teacher is given an opportunity to rebut the charges and show cause against the punishment proposed and when fair procedure has been followed and the authority comes to the conclusion that the disciplinary action should be taken against the teacher, the proposal will have to be sent to the competent authority. The competent authority will examine the proposal along with the procedure adopted by the institution and approve such dismissal, removal or reduction in rank or termination of appointment. Sub-section (2) requires the competent authority to approve such a proposal if it is satisfied that there are adequate and reasonable grounds for such proposal. The two words "adequate and reasonable" in our opinion furnish sufficient guidelines. The competent authority can interfere if there are no material at all for sustaining the order of punishment or when on the materials found the charge is completely baseless and perverse. The word "adequate" in sub-section will have to be understood as being confined to such examination of the proposal. The word "reasonable" would indicate the power of the competent authority is confined to the power of an authority to interfere with the enquiry and conclusions arrived at by the domestic tribunal. The competent authority may satisfy itself that the rules of natural justice have been satisfied, that the teacher was given an opportunity to defend the charges against him and to show cause against the punishment proposed to be awarded to him and that a fair procedure has been observed. The authority may also be entitled to interefere when the punishment was imposed by the institution due to mala fides or with a view to victimise him or such like grounds. The word "reasonable" cannot be understood as conferring a power to interfere with the enquiry by the domestic tribunal as a court of appeal on merits. The law relating to the circumstances under which the proceedings of the tribunal can be interfered with has been clearly laid down. Sufficient guidelines are discernible from the Statement of Objects and Reasons which State that the enactment was for the purpose of preventing private institutions from taking disciplinary action on flimsy grounds without framing charges and without giving an opportunity to explain and for regulating the service conditions of teachers and for ensuring their security of service....."
25.The Supreme Court subsequently while considering similar provisions found in the Tamil Nadu Private Schools Act in Secretary, School Committee, Thiruvalluvar Higher Secondary School v. Govt. of Tamil Nadu reported in (2003) 5 SCC 200 held in paragraph 10 as follows:
"10. Though attempt was made to contend that at the stage of consideration under Sections 22(1) and 22(2) and Rule 17(1), there is no scope for looking into the proportionality of the punishment aspect, the same is clearly without any substance. What an authority is required to do at that stage is to see whether the proposed punishment is to be approved. Obviously, it has to consider whether the punishment as proposed is a proper one; otherwise there is no need for seeking its approval. The crucial words used in sub-section (2) of Section 22 are "adequate and reasonable grounds" for the proposal. The proposal relates to dismissal, removal or reduction in rank or otherwise termination of appointment of any teacher or any other person employed in a private school. While considering whether adequate and reasonable grounds exist for giving approval, the authority is certainly required to look into the gravity of the proved charges and whether the punishment as proposed commensurates with it. Any other interpretation would make the question of approval an exercise in futility. Therefore, this court is not inclined to accept the said submission of the counsel for the petitioner.
26.The penultimate submission made contending that the college committee ought not to have conducted enquiry and should have entrusted it to some other sub committee or to an independent body also cannot be accepted in view of the statutory prescription made under term 7 of Form 7-A prescribed under Rule 11(2) read with Section 17 of the Tamil Nadu Private Colleges (Regulation) Act. The Act actually mandate that the enquiry is to be conducted by the college committee.
27.In the decision cited by the learned counsel for the petitioner in P.Kata Rao's case (cited supra), final order was passed in the domestic enquiry ignoring the findings rendered by the criminal court and it was held that it arose out of identical set of circumstances. Therefore, in paragraph 21 of the said judgment, the Supreme Court held as follows:
"21. The case at hand is an exceptional one. The respondent was a responsible officer. He was holding a position of trust and confidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, of course, to the exception that Charges 11 and 15 stricto sensu were not the subject-matter of criminal proceedings, as integrity and diligence, however, were not in question. Before us also it has not been contended that he had made any personal gain."
28.In the decision in Cantonment Executive Officer's case (cited supra), the facts were totally different. This can be seen from the facts set out in paragraphs 7 and 8 of the said judgment, which read as follows:
7. The question of bias is always the question of fact. The court has to be vigilant while applying the principles of bias as it primarily depends on the facts of each case. The court should only act on real bias not merely on likelihood of bias. In the present case, so far as the members of the Committee who conducted a disciplinary inquiry were also the members of the Cantonment Board where the report was to be considered, decided and whether to accept it or not and finding the respondent (herein) guilty or not. The very fact that these three persons who conducted inquiry were also the members of the Board and that the Board was to take a decision in the matter whether the report submitted by the enquiry committee should be accepted or not. Therefore, the participation of these three members in the Committee has given a real apprehension in the mind of the respondent that he will not get a fair justice in the matter because the three members who submitted the report would be interested to see that their report should be accepted. This bias in this case cannot be said to be unreal, it is very much real and substantial one that the respondent is not likely to get a fair deal by such disciplinary committee.
8. In this connection a reference may be made to the decision in Institute of Chartered Accountants of India1 in which a member, accused of misconduct is entitled to a hearing by the council. In this case the enquiry committee composed of the President and the Vice-President and three other members of the council who constituted as members of the disciplinary committee, were also members. Their Lordships held as under: (SCC p.541) "Accordingly, the finding of the council holding the respondent members guilty of misconduct was vitiated by the participation of the members of the disciplinary committee."
29.The ratio in the above case was that when in a larger body if power to enquiry is delegated to the smaller committee either as required under the statute or by delegation, then when ultimate final decision is taken, the very same persons, who gave the report cannot participate as it may influence the decision of larger committee. It is not an authority to hold that when law requires the entire body to enquire and if that body enquires, that will result in bias in taking the final decision. In the service jurisprudence, the employer himself can take action on the basis of objective evidence and can inflict punishment on an employee. The later line of decisions relating to bias being crept in will be only when there was delegation by a larger body to a smaller group and when that sub committee or smaller group came up for acceptance by that larger body bias will creep in. They are not the authorities to hold that when the entire college committee conducted the enquiry as required under term 7 of Form 7-A extracted above, will vitiate the enquiry or that it will operate as bias.
30.As to whether the management will have to keep quiet when there is a complaint regarding harassment of woman in work place, the Supreme Court vide its judgment in D.S. Grewal v. Vimmi Joshi reported in (2009) 2 SCC 210 held in paragraph 19 as follows:
19....The Court furthermore defined "sexual harassment" to include: (Vishaka case(1997 (6) SCC 241), SCC p.252, para 17) "2. Definition For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) and (b) omitted
(c) sexually coloured remarks;
(d) omitted
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature."
31.The imperative need to take an action in case of sexual harassment also was subsequently considered in the light of the International Law involved in Apparel Export Promotion Council v. A.K. Chopra reported in 1999 (1) SCC 759. The Supreme Court in para 27 observed as follows:
"27.In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field...."
32.Further, the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 prohibits harassment of woman under Section 3 of the Act, which reads as follows:
3.Prohibition of (harassment of woman).-[Harassment of woman] at any place is prohibited.
33.As to what constitutes an harassment is set out in Section 2(a) which is as follows:
2.Definitions. - In this Act, unless the context otherwise requires,-
(a)"harassment" means any indecent conduct or act by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force;
34.If there is a complaint of such harassment, the management of educational institutions are obliged to take prompt action under Section 5(a)(a) which is as follows:
5.Responsibility of management of any precinct.-(1)Any person who is incharge of educational institution, temple or other places of worship, cinema theatre or any other precinct shall,-
(a) take such steps as he may deem fit to prevent [harassment of woman] within the precinct
(b) -omitted-
35.If the management failed to take action, the penalty that may be levied on the management is provided in Section 5(2) which reads as follows:
5(2)Any person who fails to take action under sub-section (1) shall be liable to fine which may extend to two thousand rupees.
36.Therefore, in the present case, the management is statutorily bound to deal with the complaint of harassment of woman in educational institutions, for which no exception can be taken.
37.The Act contemplates twin course of action by a management themselves in terms of disciplinary power and by informing the law enforcing authorities about such harassment. In the present case, aggrieved students had themselves approached the police. Apart from that under Section 5(1)(a), the management is bound to take action in case of such complaint. In the present case, such a complaint has been enquired as contemplated under law. The college committee had enquired into the complaint. In respect of charges 1 and 2, the findings were recorded as per the the minutes, dated 29.7.2010, (a copy of which was furnished to the petitioner along with the impugned order). The relevant findings are set out below:
"Charge No.1 & 2 against Mr.P.Samuel Rajasekar:
He has not taken the class for the II year B.Sc. Physics students during the period between 10 and 11 A.M. On 17.03.2010 and appeared to have uttered some indecent words with sexual overtures before the girl students by stating "Rk;kh tFg;ig tpl;L ntspna tplkhl;Nld;. cq;fis khdj;ij nfLj;Jj;jhd; ntspNa tpLNtd;".
Then again, ntspNa Nghq;fb"
he has referred and uttered the following " ehd; NgRfpw Ngr;R gpbf;fiyd;dh vq;fhtJ fpzj;Jy tpOe;J rhtq;fb" words against the girl students in front of the boys in the class room.
For this charge, in his reply Mr.P.Samuel Rajasekar has stated that he denied any such occurrence. Further, he has stated that on 17.03.2010 he was in the college campus at 10-11 AM and gave lecture on the subject. Further he simply requested the management to give permission to cross examine the students (Complainants).
.....
The College Committee feels that the 6 girl students need not give any false complaint as against Mr.P.Samuel Rajasekar. There is no personal animosity between these 6 girl students and Mr.P.Samuel Rajasekar. Even Mr.P.Samuel Rajasekar has not alleged any personal vengeance between the complainants (6 girl students) and himself. In the above circumstances, the reply submtited by Mr.P.Samuel Rajasekar on 31.05.2010 was not found acceptable. Further, after going through the deposition of the 6 girl students during the enquiry, they have elaborately given the details of what has happened in the class room on 17.03.2010 between 10 and 11 AM. All the six students have talked in unison about what has happed on that date.
The College Committee while examining the 6 girl students' statements have found that the complaint against Mr.P.Samuel Rajasekar that he has actually uttered the words mentioned in the charge sheet and his behaviour in the class room on 17.03.2010 is against the decency and the girl students were extremely embarrassed, harassed and humiliated by the utterances of Mr.P.Samuel Rajasekar. As such, the College Committee feels and decides that the charge No.1 against Mr.P.Samuel Rajasekar was proved beyond doubt."
Therefore, it cannot be said that the management had acted without any material.
38.The contention that he was victimized because of being part of a campaign to retrieve the play ground to be handed over to the private sports club cannot underwrite the serious charges laid against the petitioner. The Supreme Court has held that the proven misconduct is antithesis of victimization as was held in Bharat Iron Works v. Bhagubhai Balubhai Patel, (1976) 1 SCC 518. It is necessary to refer to the following passages found in paragraphs 5,6,10 and 12 of the said judgment, which are as follows:
"5. Secondly, in the same case i.e. where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficiency.
6. Whether and under what facts and circumstances a tribunal will accept the plea of victimisation against the employer will depend upon its judicial discretion.
.......
10. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.
.....
12.Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked is: Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office-bearer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation.
39.The last submission that the petitioner has been proceeded with criminal action and therefore, the respondents are bound to defer the departmental action pending the criminal case also cannot be accepted. It is not an universal proposition to wait eternally in each case by a management pending the outcome of criminal action. On the other hand, under Section 5 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, the management is bound to take action in case of receipt of a complaint regarding harassment of woman in an educational institution.
40.The Supreme Court in Indian Overseas Bank v. P. Ganesan reported in (2008) 1 SCC 650 held in paragraphs 23 and 24 as follows:
23.......What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed.
41.It must be stated that it is the petitioner even though he was given reasonable opportunity to defend himself did not utilise the opportunity given to him. For this purpose, it is necessary to refer to the judgment of the Supreme Court in Union of India v. G. Annadurai reported in (2009) 13 SCC 469. The following passage found in paragraph 12 may be usefully extracted below:
12.The factual scenario shows that ample opportunities have been given to the respondent in order to enable him to effectively participate in the proceeding.
He has failed to avail those opportunities. That being so the Division Bench of the High Court ought not to have interfered with the order of the learned Single Judge which according to us is irreversible...."
42.The fact that some of the members of the committee were not present is not a ground to invalidate the action taken by the college committee. The college committee is formed in terms of Section 11 and the functions of the college committee is set out in Section 14 of the Private Colleges Act. Rule 10(3) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 provides the Corum rule in conducting meetings of the college committee which is as follows:
"10.Meetings of the committee.-(1) and (2) omitted (3)No meeting of the committee shall be conducted unless-
(a)at least seven clear days' notice in writing has been given to the members of the committee; and
(b) at least fifty per cent of the total number of members of the committee are present.
Explanation.-If the total number of the members of the committee is an odd number, the next higher even numbers shall be taken for purpose of this sub- rule."
43.Therefore, even as per the admission of the petitioner, there was majority of members of the college committee were present to conduct the enquiry. Therefore, the Coram is as per the rules framed therein. Even if there are some vacancies or there was non representation of some members, that will not enure to the benefit of the petitioner. The issues relating to the lack of notice or lack of participation can be raised only by members concerned and not by a rank outsider like petitioner. In such circumstances, the concept of indoor management will squarely apply.
44.In the light of the above factual matrix and the legal precedents, the writ petition filed by the petitioner is thoroughly misconceived and lacks in merits. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. In view of the above order, the stay application will stand dismissed. The vacate stay application also will stand dismissed as infructuous.
vvk To
1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai.
2.The Joint Director of College Education, Tirunelveli Region, Palayamkottai, Tirunelveli.
3.The Secretary G.Venkatasamy Naidu College Kovilpatti Tirunelveli District.