Madras High Court
L.Bhavanibai vs The Director Of School Education on 18 August, 2011
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2011
CORAM:
THE HON'BLE MR.JUSTICE T.RAJA
W.P.Nos.24458 and 24459 of 2010
and
M.P.Nos.1 of 2010, 1 of 2010 and 1 of 2011
1. L.Bhavanibai ... Petitioner in W.P.No.24458/2010
2. G.Silambu Selvi ... Petitioner in W.P.No.24459/2010
Vs.
1. The Director of School Education
(Matriculation)
College Road,
Chennai 600 006.
2. The President / Special Officer,
The Kallakurichi Co-operative Sugar Mills
Matriculation Higher Secondary School,
Moongilthuraipattu,
Sankarapuram Talum,
Villupuram District.
3. Tmt. S.Valarmathi
The President / Special Officer,
The Kallakurichi Co-operative Sugar Mills
Matriculation Higher Secondary School,
Moongilthuraipattu,
Sankarapuram Talum,
Villupuram District. ... Respondents in both W.Ps.
COMMON PRAYER: Petitions filed under Article 226 of the Constitution of India for the issuance of writ of certiorari, calling for the entire records connected with the impugned order passed by the 2nd respondent in Na.Ka.No.21/2010 dated 04.10.2010 and quash the same.
For Petitioner in
both W.Ps. : Mr.S.N.Ravichandran
For Respondents
in both W.Ps. : Mr.S.Naganathan,
Government Advocate (Education) for R1
Mr.A.S.Thambuswamy for RR2 and 3
COMMON ORDER
The second respondent school is a Matriculation School providing Education to the children of the members of the Co-operative Sugar Mills and the children of the staff and other persons working in the Sugar Mills. Since the school has been recognized by the Government of Tamil Nadu, the Special Officer of the Kullakurichi Co-operative Sugar Mills is functioning as a President and Correspondent of the School. The petitioners herein were employed as Secondary Grade Teacher in the second respondent School. The petitioners were selected and appointed as Trained Graduate Teachers in the second respondent school on 10.07.1995 and 28.06.1980 respectively in the time scale of pay and after completion of probation, they were regularized with effect from the date of appointment.
2. When the reports of IV and V Pay Commission were implemented in the year 1989 and 1990 respectively, the petitioners' scale of pay was fixed on par with the Government Teachers in accordance with Rule 16 and 17 of the Code of Matriculation School. When the report of the VI Pay Commission was implemented with effect from 01.01.1996 in favour of Teachers, the same was not implemented to the petitioners and other teachers. Thereafter, the salary of the petitioners were reduced from time scale to consolidated pay without giving any notice to them with effect from 01.04.2002. Therefore, both the petitioners along with their colleagues made a representation to the second respondent. As there was no response from the second respondent, the petitioners along with others filed writ petitions in W.P.No.20010 of 2005 and W.P.No.20006 of 2005, seeking for direction to the second respondent to implement the VI Pay Commission scale of pay with effect from 01.01.1996 with all consequential benefits. This Court, by common order dated 04.11.2008, allowed the writ petition and directed the second respondent to pay the arrears of salary within six weeks from the date of receipt of copy of the order. Aggrieved against the said order passed by the Single Judge, the second respondent filed a Writ Appeal in W.A.Nos.37 to 41 of 2009. While admitting the writ appeals, an order of stay was granted on 20.01.2009 and the same was pending. During the pendency of the writ appeals, the petitioners filed a petition in the above writ appeals seeking for direction to implement the scale of pay as per the appointment order and the agreement. But, the same was also dismissed. Aggrieved over the same, one of the teachers, namely, Chelladurai filed a Special Leave Petition before the Honourable Apex Court. The Honourable Apex Court had ordered notice in the Special Leave Petition.
3. As far as the petitioner in W.P.No.24458 of 2010 is concerned, the 3rd respondent issued so many show cause notices to the petitioner, one after another with ulterior motive to ensure that the petitioner would leave the school. The second respondent by proceedings dated 14.12.2008 directed L.Bhavanibai to vacate the quarters on or before 31.01.2009 and directed to hand over the same. Aggrieved over the said order, Ms.L.Bhavanibai made a representation to the second respondent on 24.12.2008 requesting him to provide alternate quarters in the campus of the sugar mill. Ignoring the request of the petitioner, the second respondent has allotted quarters in B type and C type respectively to Tmt. Chandra Kumari and Selvi Jerardin. Therefore, the petitioner was constrained to file a writ petition in W.P.No.1992 of 2009 before this Court, challenging the order of eviction dated 14.12.2008 and this Court, by an order dated 30.01.2009, granted injunction.
4. While being so, as per the proceedings of the Chief Educational Officer, Villupuram District, the petitioner was selected to attend the Pre ALT Course of National level for Guide captains from 21.07.2009 to 25.07.2009. Therefore, the petitioner submitted a letter to the second respondent requesting him to participate in the training. But the said request was not considered by the second respondent. Hence, she made another representation to the Director of Sugars through the Special Officer requesting them to permit her to attend the Pre ALT course, accordingly, she attended the said course. But the second respondent issued a charge memo in Na.Ka.No.F4/95-96/School-II dated 28.07.2009 to show cause within 7 days for her alleged absence from 21.07.2009 to 27.07.2009. The petitioner also submitted her explanation to the second respondent explaining the reason for her absence and requested to treat the period from 21.07.2009 to 26.07.2009 as leave on duty period with further request to pay the deducted salary for that period. The second respondent being not satisfied with the explanation offered by the petitioner, appointed an enquiry officer to initiate disciplinary proceedings against her. Thereafter, the petitioner by a letter dated 10.08.2009, sought for documents to enable her to defend the enquiry. Even before furnishing the documents, the Enquiry Officer concluded the enquiry.
5. In the meanwhile, the petitioner received another Memo dated 06.08.2009 to show her explanation for sending representation directly to the Director of Sugars, since her conduct was in violation of Rules of Co-operative Sugar Mills. Besides the petitioner was also issued with third charge memo dated 03.10.2009 for having sent one another representation directly to the Director of Sugars for which also the petitioner had submitted his explanation on 08.10.2009. When the matter stands as above, the second respondent issued one another show cause notice dated 04.10.2010 directing the petitioner to show cause as to how the two students had failed in the public examination in her subject. Though the petitioner submitted her explanation to the second respondent, without considering the explanation, the second respondent, by proceedings dated 13.10.2010, appointed the Enquiry Officer to initiate enquiry proceedings against the show cause notice dated 04.10.2010. The said show cause notice is under challenge.
6. As far as the petitioner in W.P.No.24459 of 2010 is concerned, the 2nd respondent issued show cause notice on 02.02.2010 to show cause as to how the 13 students had failed in the half yearly examination during the year 2009-2010 in her subject, for which the petitioner has also submitted her explanation on 09.02.2010. On receipt of the explanation of the petitioner, the 2nd respondent by proceedings dated 09.02.2010, directed the petitioner to take effective steps to make all the students getting pass in public examination during March 2010. Thereafter, she produced better results i.e. out of 26 students, 24 students were passed. As the two students were failed in the Public Examination, the second respondent issued another show cause notice dated 04.10.2010 directing the petitioner to show cause for failure of two students in the Public Examination in her subject. The petitioner has submitted her explanation on 07.10.2010 to the second respondent. Without considering the same, the 2nd respondent by proceedings dated 13.10.2010 appointed Enquiry Officer to initiate enquiry proceedings against the show cause notice dated 04.10.2010. The said show cause notice is under challenge.
7. The learned counsel appearing for the petitioners has argued that the impugned show cause notice dated 04.10.2010 calling upon the petitioners to show cause as to how the two students had failed in Public Examination in their subject is without any jurisdiction, since both the petitioners have produced good results in the Public Examination during March 2007, 2009. He has further argued that due to sincere efforts of the petitioners in the Public Examination, they have produced good results in their subjects during March 2010 which clearly shown that the impugned show-cause notices were issued with mala fide and to wreak revenge for filling the case one after other.
8. The counter is filed by the respondents stating that the present writ petitions filed challenging the show cause notices issued by the second respondent are not maintainable on the ground that the petitioners submitted their explanation giving their undertaking that they would improve their performances in future, but failed to do so. Therefore, the present proceedings had been initiated against them. They had submitted their explanations but without participating in the enquiry, they have filed the above writ petitions in haste. Therefore, the present writ petitions filed challenging the show cause notices are liable to be dismissed. The allegations that all the Charge Memos are issued only because the petitioners filed writ petitions and contempt petitions, are denied. The petitioners have deliberately violated the Rules and Regulations and committed misconduct. Therefore, rightly proceedings had been initiated against them, yet, it is open to the petitioners to participate in the enquiry and put forth their defence. Therefore, these writ petitions are not maintainable and the same are liable to be dismissed.
9. Heard both parties.
10. The grievance of the petitioners to approach this Court by filing these writ petitions under Article 226 of the Constitution of India, challenging the correctness of issuance of charge memo dated 04.10.2010, is no longer available to them as they had already submitted their detailed explanations to the second respondent refuting all the allegations. After considering the detailed explanation submitted by the petitioners, the second respondent, by proceedings dated 13.10.2010, appointed an Enquiry Officer to conduct a detailed enquiry regarding the correctness or otherwise of the charges mentioned in the charge memos. Therefore, in law, when the petitioner has submitted to the jurisdiction of the disciplinary authority by replying to the charge memo, until the enquiry is completed and further orders are passed by the disciplinary authority, the petitioner cannot file these present writ petitions as there is no cause of action for the petitioners to challenge the mere show cause notice.
11. It is well settled by a series of decision of this Court and the Apex Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Union of India and another vs. Kunisetty Satyanarayana reported in 2006 12 SCC 28; Executive Engineer, Bihar State Housing Board Vs. Ramdesh Kumar Singh and Others JT 1995 (8) SC 331; Special Director and another Vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467. 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, inasmuch as 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. Further, 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. Under these circumstances, it is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge sheet does not infringe the right of any one. 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. 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.
12. In my view, for the aforesaid reasons, the present writ petitions filed by the petitioners challenging the charge memos are not maintainable, as held by the Apex Court in Kunisetty Satyanarayana's case (cited supra). Therefore, this Court, finding no merit in the present writ petitions, dismisses the same. No Costs. Consequently, connected miscellaneous petition are closed.
ogy To
1. The Director of School Education (Matriculation) College Road, Chennai 600 006.
2. The President / Special Officer, The Kallakurichi Co-operative Sugar Mills Matriculation Higher Secondary School, Moongilthuraipattu, Sankarapuram Talum, Villupuram District.
3. Tmt. S.Valarmathi The President / Special Officer, The Kallakurichi Co-operative Sugar Mills Matriculation Higher Secondary School, Moongilthuraipattu, Sankarapuram Talum, Villupuram District