Madras High Court
S.Perumal vs The Director Of School Education on 15 February, 2012
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15 / 02 / 2012
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
W.P.No.14023 of 2011 &
M.P.No.1 of 2011
S.Perumal ..Petitioner
Versus
1. The Director of School Education
College Road, Chennai-600 006.
2. The Chief Educational Officer,
Tiruvannamalai District
Tiruvannamalai-606 601.
3. The District Educational Officer,
Tiruvannamalai District
Tiruvannamalai-606 601.
4. The Secretary, Church Board
Arcot Lutheran Church,
ALC Central Office
No.9, A.L.C.Campus
Cuddalore, Cuddalore District.
5.B.Hubert Dhanasundaram
Post Graduate Assistant (Physics)
Danish Mission Higher Secondary School,
Tiruvannamalai-606 601.
Tiruvannamalai District. ..Respondents
This writ petition is filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus forbearing the 1st to 3rd respondents herein from approving the appointment of 5th respondent as Headmaster of Danish Mission Higher Secondary School, Tiruvannamalai.
For Petitioner : Mr.T.Chellapandian
For Respondents : Mr.R.Ravichandran
Addl. Govt. Pleader for R 1 to 3
Mr.R.Muthukumarasamy
Senior counsel
for Mr.A.Jenasenan for R5
- - -
O R D E R
The petitioner, an ex-student of Danish Mission Higher Secondary School, Tiruvannamalai-606 601, filed this writ petition forbearing the respondents 1 to 3 from approving appointment of the 5th respondent as Headmaster of the school.
2. The case of the petitioner is that he studied in the said school during 2007-2008 and during that period he applied for scholarship from the Government. The management during the academic year 2008-09 did not pay the scholarship amount to the petitioner and other students. Therefore, complaints were made to the District Collector in 2010. After enquiry by the District Collector, a case has been registered against the 5th respondent and two others under Sections 420, 468, 477(A) of IPC in Crime No.96 of 2011 on 16.01.2011 alleging that they forged the signatures of the students and parents and misappropriated the scholarship amount. Based on the above, the management of the school suspended the petitioner. However, the fourth respondent selected the 5th respondent for promotion as headmaster of the school. Therefore, the petitioner gave a representation on 15.6.2011 to the respondents 1 to 3 not to approve the appointment. As the representation was not considered by the respondents, the petitioner is before this Court.
3. The learned counsel for the petitioner submitted that the charged person against whom criminal investigation is pending with regard to misappropriation of scholarship meant for scheduled caste and scheduled tribes students cannot be promoted as Headmaster. He relied upon a Division Bench judgement of this Court in S.Srinivasan, Chairman and Chief Executive Officer, Bharat Overseas Bank Limited vs. All India Bharat Overseas Bank employees union , Chenni and four others reported in 2000 (II) CTC 41 wherein it has been held that an employee of Trade Union have locus standi to file writ petition questioning the appointment of the chairman of the bank and submitted that similarly, as an ex-student the petitioner can maintain the writ petition regarding the appointment of a Headmaster.
4. On the other hand, learned counsel appearing for the 4th respondent submitted that there are no specific allegations against the 5th respondent. Even though complaint has been made against the 5th respondent and during the enquiry by the District Collector, students and individuals did not state that the 5th respondent misappropriated the scholarship amount and that no suspension order against the fifth respondent was issued on 19.8.2010 as alleged. Since there was a vacancy in the post of headmaster, the 5th respondent was selected considering his qualification and seniority. Therefore, there is no illegality in selecting and appointing the 5th respondent as headmaster.
5. Mr.R.Muthukumarasamy, learned Senior counsel appearing for the 5th respondent submitted that the petitioner is not an aggrieved person, who has got private interest against the 5th respondent is backed by other groups in the Church Board, which lost the church board election. During the enquiry conducted by the Collector, the petitioner deposed that the scholarship amount due to him was misappropriated by the unknown persons and he did not say anything about the 5th respondent. Though F.I.R. has been filed, no charge sheet has been filed. Mere pendency of FIR against the individual, cannot be said that the individual is facing criminal charges. He relied upon a judgement of Hon'ble Supreme Court in Union of India and others vs. K.V.Jankiraman and others reported in (1991) 4 SCC 109 to contend that promotion cannot be withheld merely because some disciplinary proceedings are pending against the employee and to deny the said benefits there must be a memo/charge sheet be filed against the employee. In this case, no charge sheet has been filed and therefore, there is no bar for promoting the fifth respondent. With regard to locus standi to maintain the writ petition, he relied upon a judgement in S.Chandramohan Nair vs. George Joseph and others reported in (2010) 12 SCC 687 and contended that promotion cannot adversely affect the petitioner. Moreover, he submitted that no public interest is involved and it is only at the instance of the defeated opposite group.
6. Heard the parties and perused the records.
7. Before going into the merits of the case, the maintainability of the writ petition has to be considered. The learned counsel for the fifth respondent submitted that the petitioner is not an aggrieved person and he has got only private interest against the fourth and fifth respondents and he is acting at the instance of the defeated group in church board election and therefore, the petitioner has approached this Court with mala fide intention. With regard to the mala fide, the learned counsel relied upon the judgement of the Hon'ble Supreme Court in Hari Bansh Lal vs. Sahodar Prasad Mahto and others reported in 2010 (9) SCC 655 and in S.Chandramohan Nair vs. George Joseph and others reported in 2010 (12) SCC 687. In Hari Bansh Lal's case, the issue was relating to the appointment of the Chairman to Jharkhand State Electricity Board and the writ petition filed on the ground that the person appointed is a person of doubtful integrity and such appointment was made without following the rules and procedure. The said writ petition was filed as public interest litigation. In that case, the Hon'ble Supreme Court held that in the absence of violation of Statutory Rules, Court cannot go into the suitability or otherwise of a candidate for a particular appointment because 'choosing a suitable candidate' is an administrative function. There is no quarrel with regard to the ratio decidendi. However, when the integrity of the person who has been promoted as Headmaster, is named as an accused for misappropriating students scholarship, definitely this case is a distinct one where future of the students and the school is involved.
8. As far as other judgment in 'S.Chandramohan Nair vs. George Joseph and others' reported in 2010 (12) SCC 687 is concerned, the appointment of Member of the State Consumer Commission was challenged by a Samiti, which was allowed by the Kerala High Court and on appeal, the Hon'ble Supreme Court held that there was no material to show unsuitability of the appointed person and there is nothing to show that how the appointment adversely affected the members of the Samiti. The said judgment is not applicable to the facts of the present case, as the petitioner is not a third party and he is an ex-student of the school, who gave complaint along with other students that the scholarships given to them were misappropriated by the School and other teachers which formed the basis for the Collector's enquiry as well as criminal complaint against the fifth respondent and two others. Therefore, it cannot be said that the petitioner has no locus standi to file the writ petition. Therefore, the writ petition filed by the petitioner as an ex-student and also being a victim due to the alleged act of the fifth respondent, is maintainable.
9. It is an admitted fact that the fourth respondent-School is an aided minority school. There are certain allegations with regard to the improper distribution of Government Scholarship to the students belonging to scheduled caste and scheduled tribes during 2007-2008 and 2008-2009. The allegations were made by the aggrieved students. An enquiry by the Collector was ordered. In the enquiry, ex-students including the petitioner gave statements. Based on the enqiry, a criminal complaint has been lodged by the District Adi Dravidar Welfare Officer, Thiruvannamalai, against the fifth respondent, who was then working as P.G. Assistant in Danish Mission Higher Secondary School, Thiruvannamalai and two others and an F.I.R. has also been lodged against them in Crime No.96 of 2011 under Sections 420, 468, 477 (A) of the I.P.C. The said complaint was given on 16.01.2011.
10. A perusal of the statements given by the students during enquiry conducted by the Collector would reveal that the scholarship for the year 2008-2009 payable to the student-A.Chelladurai and the petitioner were not given. Based on that only, the District Adi Dravidar Welfare Officer lodged the complaint and F.I.R. was already registered against the fifth respondent and the said complaint is pending investigation. The status report filed by the Inspector of Police, Town Police Station, Thiruvannamalai would reveal that out of 27 students whose signatures have been forged for misappropriating the scholarship money, five persons were examined and rest of the 22 persons ought to be examined. Therefore, the said case is under investigation.
11. The petitioner specifically points out that the fifth respondent was already suspended by the Church-Board for his alleged involvement on 19.08.2010. However, due to change in the administration, it is denied that the fifth respondent was not suspended. The fourth respondent filed a counter and in paragraph 4 it has been stated as follows:-
With regard to the allegations contained in paragraph 4 of the affidavit, I submit that the Church has inquired into the matter and has been reliably informed that the fifth respondent has signed as a guardian to one student namely, A.Chelladurai since his parents are of unsound mind. We have learnt that it is only in these circumstances that he collected the boy's scholorship for the year 2007-2008. We have also been informed that he was handed over the said moneys to the boy's sister Virundhal. We have also verified this. The Church has fully looked into the matter. It is undoubtedly true that some complaint has been lodged against the fifth respondent. However, he is not charge sheeted. We believe every man is innocent until proven guilty. No charge sheet also lay against the fifth respondent as falsely pleaded by the petitioner. Therefore, until such time the guilt of the petitioner is established in a Court of law, he shall be presumed innocent. Even in the enquiry conducted by the District Collector, the students never stated that the fifth respondent has misappropriated the scholorship amount due to the students. No suspension order was issued on 19.08.2010 as alleged. The Church will certainly issue suspension orders if the fifth respondent is found guilty. Whatever disciplinary action was initially thought of was later dropped because we found the charge to be untruly made on inquiry, based on materials placed before us. Further by proceedings of the second respondent herein dated 10.08.2010 the fifth respondent herein was selected for the training held from 19 to 21st August 2010 and the Headmaster also requested to relieve him the previous day to enable him to attend the training. The fifth respondent also filed a counter affidavit stating that he was not suspended at any point of time. In paragraph 8, it is stated as follows:-
This respondent submits that by way of a reply with regard to the averments contained in para 5, it is submitted that at no point of time he was suspended from service since 19.08.2010. No orders were communicated to this respondent informing about his suspension since 19.08.2010. ........ However, the letter dated 29.11.2010 given by the fifth respondent addressed to the fourth respondent reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED Paragraphs 2 and 3 of the communication dated 13.09.2010 written by the Correspondent of the School to the District Educational Officer / third respondent reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED The aforesaid Correspondent's letter dated 13.09.2010 and the fifth respondent's letter dated 29.11.2010 would amply prove that the fifth respondent was suspended from 19.08.2010 to 02.09.2010. When the aforesaid fact of suspension of fifth respondent is clearly borne out by records, it is not understandable as to how the fifth respondent stated in his counter affidavit that he was not suspended since 19.08.2010 and that no orders were communicated to him informing about his suspension. The contention of the fifth respondent is nothing but suppression of material facts and an attempt to mislead the Court, besides pleading falsehood.
12. Even the contention of the fourth respondent in the counter affidavit that no suspension order to the fifth respondent was issued on 19.08.2010 is equally a misleading and false statement, contrary to the records. If no suspension order was issued by the Management, there could not have been a letter from the fifth respondent on 29.11.2010, admitting that he was suspended from 19.08.2010 to 02.09.2010. Even the pay claim made with regard to the petitioner by the Correspondent of the School for the month of August 2010 would show that the fifth respondent was suspended for 15 days. Therefore, the fourth and fifth respondents are guilty of suppression of material facts, misleading the Court and contending false case. This would also exhibit that all is not well with the fourth respondent who runs a number of schools. This Court is of the opinion it is an attempt by the fourth respondent to shield the fifth respondent and to justify the action to promote him as Headmaster.
13. It is very clear that the complaint is pending investigation against the fifth respondent and two others. The allegation against the fifth respondent is very serious in nature that he was involved in improper distribution and misappropriation of Government scholarships meant for scheduled caste and scheduled tribe students. The scholarship is intended only to give helping hand to the socially and economically suppressed and oppressed weaker sections of the pupil and it could not be misappropriated by anybody that too by the School and the teachers. Though the said charges are under investigation, still the gravity of the charges made against the fifth respondent cannot be under estimated. When the investigation is pending, the fourth respondent-Management cannot on its own, close its enquiry on the ground that that the disciplinary action was dropped because the charges are untrue. When the police is investigating, it is not appropriate for the Management to drop the disciplinary proceedings based on its own enquiry, considering the seriousness of the charges. The dropping of the charges by the fourth respondent should also be viewed in conjunction with the false statements made by the fourth respondent regarding suspension of the fifth respondent before this Court. That apart, the fourth respondent deliberately failed to produce the records before the Court, inspite of direction. Thereafter this Court directed him to be present and thereafter only documents were produced.
14. No doubt, the Hon'ble Supreme Court in Union of India Vs. K.V.Jankiraman and others reported in 1991 (4) SCC 109 held that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee and that the proceedings must be pending at the relevant point of time. In this case, there may not be a charge sheet at the relevant date of fifth respondent's promotion. The matter relates to an educational institute. Considering the serious nature of the offence alleged against the fifth respondent viz., misappropriating the scholarship meant for the scheduled caste students, the fourth respondent should not have promoted the fifth respondent. As already observed, the fourth and fifth respondents themselves attempted to mislead this Court by suppressing the material facts. Though legally may not be a bar, this case is an exception case, considering the importance of the post viz., Headmaster to which the fifth respondent is promoted. When serious charge is pending investigation against the fifth respondent, the fourth respondent should have cautiously made the decision in this regard. However, the fifth respondent is promoted as Headmaster of the school, where thousands of students are studying. The students are required to be taught by the teachers inculcating moral values and standards in the minds of the young pupil. Every year scholarships ought to be given to the eligible candidates. Therefore, a person who is to head the institution should have clear record. The headmaster is not only responsible for running of the school, he should be a model to the other teachers and most importantly for the students. The writ petition is only against respondents 1 to 3 seeking mandamus not to approve the fifth respondent's promotion.
15. Though the fifth respondent was already promoted by the fourth respondent on 13.06.2011 and that the fifth respondent is stated to have assumed charge on 16.06.2011, so far, the respondents 1 to 3 have not approved the promotion of the fifth respondent as Headmaster of the said school. On 14.06.2011 itself the petitioner gave a detailed representation to the respondents opposing the promotion. Instead of prohibiting / forbearing the respondents 1 to 3 from approving the appointment of fifth respondent as Headmaster of Danish Mission Higher Secondary School, Thiruvannamalai, as prayed for in this writ petition, interest of justice requires, a direction to the respondents 1 to 3 to consider the representation of the petitioner dated 14.06.2011 in the light of the orders passed by this Court, after hearing all the parties concerned and pass appropriate orders within twelve weeks from the date of receipt of the copy of the order. Till the representation dated 14.06.2011 is disposed by the appropriate respondent, the respondents 1 to 3 are directed to maintain status-quo in respect of approval of the fifth respondent's promotion as Headmaster.
16. With the above direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
r n s To
1. The Director of School Education College Road, Chennai-600 006.
2. The Chief Educational Officer, Tiruvannamalai District Tiruvannamalai-606 601.
3. The District Educational Officer, Tiruvannamalai District Tiruvannamalai-606 601.
4. The Secretary, Church Board, Arcot Lutheran Church ALC Central Office, No.9, A.L.C.Campus Cuddalore, Cuddalore District