BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.03.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.11934 of 2000 K.Subramanian .. Petitioner -vs- 1. Madras Christian College Association rep.by its Chairman Madras Christian College Tambaram 2. The Secretary Madras Christian College Board Madras Christian College Tambaram 3. S.W.Kanagaraj Law Member Madras Christian College Board Madras Christian College Tambaram 4. The Headmaster and Correspondent Madras Christian College Higher Secondary School Chetpet, Chennai-30 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records relating to the impugned proceeding of the second respondent dated 15.3.2000 quash the same. For Petitioner :: Mr.V.Selvaraj For Respondents :: Mr.Sanjay Mohan for M/s Ramasubramanian& Associates ORDER D.MURUGESAN, J. The petitioner was employed as Lab Assistant in Madras Christian College Higher Secondary School run by Madras Christian https://hcservices.ecourts.gov.in/hcservices/ College Association established and administered by Christian minority community. He was issued with an office memorandum dated 22.3.94 to offer his explanation in respect of the alleged misconduct, namely, that he picked up a quarrel with a P.G.Teacher by name Thiru Nedunchezhiyan and also used abusive language against another teacher by name Raju. An explanation was received and thereafter, on an enquiry, the charges were found to be proved. By a notice dated 3.9.94, the petitioner was called upon to explain as to the proposed punishment. In spite of the above proceedings, no final orders were passed. 2. In the meantime, the petitioner lodged a complaint to the police on 13.4.94 against the Headmaster, Thiru.Nedunchezhiyan, Thiru. Manivasagam and Thiru.Raju, the teachers under Sections 323, 506(i) read with Section 114 of Indian Penal Code and under Section 3(1)(x) and 3(2)(vi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The gist of the complaint was that while he was on duty on 18.3.94, at about 10.45 a.m., and was taking tea in the school canteen with his colleagues, the above teachers, who were also taking coffee at the same time, abused the petitioner by referring to his caste, as the petitioner belongs to Scheduled Caste community. When the same was questioned, he was assaulted by the accused. 3. That case was taken cognizance in C.C.No.61 of 1995 on the file of the Principal Sessions Court, Chennai. By judgment dated 30.4.97, all the accused were acquitted. While acquitting the accused, the learned Sessions Judge found that the petitioner had invoked the provisions only to harass the accused who were employed in the school and moreover to get away from the possible punishment that could be given as a result of domestic enquiry. The learned Sessions Judge further observed that the petitioner gave the complaint with an exxagerated version only to harass the accused and also to spoil the name of the institution. This judgment was questioned by the petitoner in Criminal Revision Case No.478 of 1997 before this Court and the same was dismissed by order dated 28.10.98. While dismissing the revision case, this Court observed that a false complaint was lodged against the accused, particularly the first accused who happened to be the Headmaster of the school. This Court also observed that the attitude of the petitoner herein had only shown that he wanted all the accused including the Headmaster to be dragged into Court to face criminal prosecution. In the above background, this Court further observed that the petitioner had approached the Court without clean hands belatedly with an improved version and abused the proess of law. In paragraph-58 of the judgment, this Court directed as follows:- "58. In the earlier paragraphs, I found that A1, the Headmaster had been unnecessarily dragged into Court and subjected to the long drawn prosecution in the name of prosecution. In view of the above finding, it is appropriate to direct the petitioner/complainant to pay costs to A1, as it is established that A1 has been undergoing https://hcservices.ecourts.gov.in/hcservices/ the ordeal of the proceedings from 1994 onwards. Under these circumstances, to meet the ends of justice, the petitioner is directed to pay costs of Rs.5,000/- to A1 within one month from this order." 4. In view of the above subsequent development, the petitioner was issued with another charge memo on 16.12.97. Though the said charge memo referred to the earlier misconduct, independent of that, certain other charges were also framed. Some of the charges are that the petitioner gave false complaint against the Headmaster and the teachers of the school only to bring disrepute to the institution. He had also printed large posters against the institution and pasted them at conspicuous places. He caused a press report in "Junior Post" magazine in the issue dated 9.8.96 as to the lodging of the criminal case against the Headmaster and the teachers with false allegations and to bring disrepute to the management. In the meantime, he also gave an interview to "Junior Post" magazine which was published on 9.8.96 accusing the Headmaster and teachers as well as the institution in respect of the very same complaint. The petitioner submitted his explanation. Not satisfied with the explanation, an enquiry was ordered and the enquiry officer submitted his report dated 17.9.99 holding that the charge no.1 was not proved and the other charges were proved. Based upon the report of the enquiry, the petitoner was issued with an office order dated 15.3.2000 removing him from service. The said order is questioned in this writ petition. 5. Mr.V.Selvaraj, learned counsel appearing for the petitoner would challenge the order mainly on the ground that one Mr.S.W.Kanagaraj, an Advocate who defended the accused in criminal case, had framed the charges and he only appointed the enquiry officer, though the Board of Directors are alone empowered to initiate disciplinary proceedings. In any event, the charges are vague. He would also submit that the Board of Directors also did not apply their mind and also did not provide any opportunity to the petitoner before passing the impugned order. Lastly he would submit that in any case the findings in criminal proceedings cannot be the subject matter of disciplinary proceedings. In this regard, he relied upon an order of a Division Bench of this Court dated 25.8.2006, to which one of us (DMJ) was a party, made in W.A.Nos.1844 and 1845 of 2003 filed by two of the employees of the very same school who were also initiated with the disciplinary proceedings along with the petitioner in the year 1994, and this Court has held that the charge memo issued by an Advocate who defended the accused in criminal case was without jurisdiction and consequently quashed the disciplinary proceedings. Hence the learned counsel, by placing reliance on the above order, would submit that the present proceedings are also liable to be quashed. 6. On the other hand, Mr.Sanjay Mohan, learned counsel appearing for the respondents would submit that though the disciplinary proceedings were initiated by Thiru S.W.Kanagaraj, an Advocate who defended the accused before the criminal Court, he https://hcservices.ecourts.gov.in/hcservices/ being the Law Officer of the school, nothing can be imputed against him in framing the charges against the petitioner. Though he also appointed the enquiry officer, the enquiry officer conducted the enquiry without there being any opposition. The petitioner did not raise any objection during the course of enquiry and had in fact participated in the enquiry. Hence it is not now open for him to question the charges. He would also submit that the Board of Directors have carefully considered the enquiry report, which was forwarded by Mr.S.W.Kanagaraj and awarded the punishment of removal from service. So long as the final order of punishment was imposed by the authority competent, the proceedings cannot be quashed solely on the ground that the charge memo was not issued by the disciplinary authority. He would also submit that the punishment of removal is not solely on the basis of the criminal proceedings, but the charges were on the basis of certain observations made by the criminal Court, particularly this Court, as to the petitioner making false allegations against the teachers and brought disrepute to the institution. The evidence was independently let in the enquiry and the same was considered to hold the petitioner guilty of the charges. Lastly, the learned counsel would submit that the order of the Division Bench relied by the petitoner is not applicable to the facts of this case, as that was a case where the petitioners therein had approached the Court at the earliest point of time even before the enquiry could commence. On the other hand, the petitioner, without making any objections, had participated in the enquiry and only questions the same on the ground of irregularity in the proceedings after he was imposed with the punishment. Inasmuch as the charges are serious in nature, the punishment of removal needs no interference. 7. We have considered the above submissions. Before we consider the other submissions, the submission relating to the earlier Division Bench order dated 25.8.2006 can be first considered. Those writ appeals arose at the instance of two other employees who were also issued with similar charges. Those charges were questioned by them on the ground that the evidence let in before the criminal Court cannot be the basis for proceeding departmentally. This Court had held that every statement made by every witness in every proceeding cannot automatically form the basis for disciplinary action. That finding would necessarily mean that the disciplinary proceedings can be independent and the charges could be proved by letting in evidence independently. So far as the framing of charges by Mr.S.W.Kanagaraj, an Advocate, the Division Bench has in fact observed that he was not competent to issue the charge memo and therefore such charge memo was liable to be quashed. 8. However, on the facts of this case, the said judgment cannot be pressed into service for our following reasons. On the facts of given case, it is seen that the petitoner was issued with charge memo dated 22.3.94 followed by another memo dated 3.9.94 for proposed punishment. However, no order was passed. In the meantime, the petiitoner had gone to the press and gave an interview making scathing allegations against the Headmaster, teachers and the https://hcservices.ecourts.gov.in/hcservices/ management and the said interview was published on 9.8.96. The criminal Court judgment was on 30.4.97 acquitting the teachers. In view of subsequent events, charges were framed and issued on 16.12.97. The petitioner only wanted some translation of the documents. Those documents were furnished to him vide letter dated 8.1.98. He was also informed that the date of enquiry will be intimated later. It is to be noted that the charge memo dated 16.12.97 and the further communication dated 8.1.98 were issued by the third respondent, namely, S.W.Kanagaraj and the petitioner never objected to the same. By his letter dated 15.1.98, he only wanted the postponement of enquiry as he had preferred Criminal Revision Case before the High Court. The judgment in Criminal Revision Case was delivered on 28.10.98 whereby the revision case was dismissed. Thereafter, he submitted his explanation denying the charges on 6.3.99. Enquiry was held on various dates and the petitioner participated fully in the enquiry proceedings without raising any objection for the charge memo framed by S.W.Kanagaraj, nor the appointment of any enquiry officer by S.W.Kanagaraj. The enquiry was completed and the findings of the enquiry officer were furnished on 17.9.99. Even when the response of the petitioner was asked, he only wanted time and thereafter submitted his explanation on 18.9.99. In none of his communications, he objected the issuance of charge memo by S.W.Kanagaraj, the appointment of enquiry officer and the conduct of enquiry. Further, the very same petitioner, by his further letters dated 24.2.2000 and 2.3.2000, had only denied the charges. Thereafter, enquiry report has been considered by the Board and the impugned order of dismissal was passed. In this context, we may refer to the judgment of the Supreme Court in SBI v. Ram Das, (2003) 12 SCC 474, wherein the Supreme Court has held as follows:- "27.....It is an established view of law that where a party despite knowledge of the defect in the jurisdiction or bias or malice of an arbitrator participated in the proceedings without any kind of objection, by his conduct it disentitles itself from raising such a question in the subsequent proceedings. What we find is that the appellant despite numerous opportunities made available to it, although it was aware of the defect in the award of the umpire, at no stage made out any case of bias against the umpire. We, therefore, find that the appellant cannot be permitted to raise the question of bias for the first time before this Court." 9. Quoting the above judgment, the Supreme Court in the subsequent judgment in H.V.Nirmala v. Karnataka State Financial Corporation and others, (2008) 7 SCC 639, has observed as follows:- "10. The appellant did not raise any objection in regard to the appointment of the enquiry officer. She participated in the enquiry proceeding without any demur whatsoever. A large number of witnesses were examined before https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer. They were cross- examined. The appellant examined witnesses on her own behalf. The learned Single Judge as also the Division Bench of the High Court opined that the appellant has failed to establish that any prejudice has been caused to her by reason of appointment of a legal advisor as an enquiry officer and as the appellant has participated in the enquiry proceeding, she could not be permitted to raise the said contention." 10. As we have already elaborated, though the petitioner will be entitled to question the charge memo on the ground that it was made by an officer who is not competent to issue and equally he will be entitled to question such action to appoint an enquiry officer on the ground of want of jurisdiction, such right should be exercised at the earliest point of time. In the event an employee has allowed the enquiry to proceed and participated in the same, he cannot later on turn around and question the very initiation of the enquiry proceedings. In the given facts, the entire enquiry proceedings were conducted and the witnesses were examined to prove the charges. The finding of the enquiry officer was submitted to the disciplinary proceedings which resulted in the impugned order of termination and only thereafter, the petitioner had raised the objection as to the power of S.W.Kanagaraj to issue the charge memo. In our opinion, the petitioner cannot be allowed to raise such a plea at this stage. Further, except framing charges, S.W.Kanagaraj has done nothing in the conduct of enquiry which was proceeded by an independent enquiry officer. Moreover, though the charges were framed by S.W.Kanagaraj, the enquiry was conducted by an independent enquiry officer, who conducted the enquiry and submitted a report and that report was accepted by the Board ultimately before imposing the punishment. In this context, we may also mention that waiver also means intentional relinquishment of a right or claim. It may also be an act of not insisting some right to which the employee is otherwise entitled to raise. A waiver is essentially an unilateral act of a person that results in surrender of a legal right. In the event a person knowingly surrenders his right, it must be termed to be one of express waiver. In these circumstances, the contention that merely because the charges were framed by a person who is otherwise not empowered to frame the charges, the entire enquiry proceedings should be quashed cannot be accepted. 11. The judgment of the Division Bench relates to a case where the employees questioned the charge memos at the initial stage even before submitting themselves to the enquiry proceedings and only in that context, the Division Bench held that on the basis of such charge memo further enquiry proceedings cannot be held. On the facts of this case, the said judgment is not of any application and consequently of any use to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 12. Insofar as the contention relating to the vagueness of the charges, in our opinion, the same cannot be accepted. In the charge memo dated 16.12.97, it has been clearly stated, apart from the charges which were earlier issued in memo dated 22.3.94, that the petitioner committed misconduct of having gone to the Press and gave an interview, the findings of the Courts as to the false implication of the teachers by the petitioner which had resulted in bringing disrepute to the institution. These are all definite charges and cannot be considered to be vague. Hence the said contention is also liable to be rejected. 13. The next challenge to the order is that the Board has not applied its mind. We have carefully considered the impugned order of the Board. The Board has looked into the entire enquiry proceedings and ultimately on the proved misconduct in respect of charge nos.2, 3 & 4 has imposed the punishment. The entire proceedings were placed before the meeting of the Board held on 4.3.2000 and the resolution of the Board is also extracted in the final order, wherein the Board has referred to the misconduct, the finding of the enquiry officer and consequently the decision of the Board to impose the punishment. In view of the above, the contention that the Board has not applied its mind is also unsustainable. 14. The last question is as to whether the evidence in criminal proceeding can by itself be a ground for initiating disciplinary proceedings. In Writ Appeal Nos.1844 & 1845 of 2003, this Court had in fact observed that the evidence given in criminal Court by themselves cannot be the basis for initiation of proceedings. Mr.V.Selvaraj, learned counsel would heavily rely upon the said judgment to challenge the impugned proceedings. In our opinion, the said judgment is of no use to the petitioner on the given facts and circumstances of the case. The charges are not on the basis of mere evidence given in criminal Court. On the basis of evidence, certain observations were made by both the trial Court and the High Court, which we have extracted in the earlier portion of the order. There are definite findings by the competent criminal Court including this Court not only to the falsehood in the complaint, but also the complaint was made only to harass the teachers apart from bringing disrepute to the institution. These charges have been independently proved without reference to the evidence adduced in criminal Court. In the enquiry proceedings, the statement of individual witnesses were considered. The Correspondent and Headmaster Mr.A.Jefferson Christopher was examined, through whom Ex.M1 to Ex.M11 were marked. These documents relate to the posters said to have been pasted by the petitioner, the interview given by the petitioner to Junior Post magazine which was published on 9.6.96, the complaint in criminal case, the judgments of the criminal Court and so on. The evidence of the Headmaster had been independently considered for holding the charges proved. We may also point out that even when an order imposing punishment on an employee consequent upon the disciplinary/departmental enquiry is in violation of the rules/regulations/statutory provisions governing such enquiry, it https://hcservices.ecourts.gov.in/hcservices/ should not be set aside automatically. It is the bounden duty of the Court to find out as to whether the provisions violated are substantive in nature or whether they are procedure in character. 15. It is well settled that this Court while exercising jurisdiction under Article 226 of the Constitution of India should not venture to re-appreciate the evidence and upset the finding and consequently the punishment imposed on the delinquent employee, except when this Court thinks that the findings are without any evidence and perverse. We find no such perversity in the finding of the enquiry officer, as the finding is supported by independent evidence barring the evidence let in criminal Court. Once a domestic tribunal/officer, based on evidence, comes to a conclusion, normally such findings are not open to the Courts to substitute their subjective opinion in the place of one arrived out of the domestic tribunal/officer. The charges were framed on the basis of the findings of the Court relating to the conduct of the petitioner and on the basis of such charges, independent enquiry was conducted, evidence was let in and the enquiry officer found that the charges are proved and therefore the Division Bench judgment which has been much relied upon by the learned counsel for the petitioner is not applicable to the facts of this case. 16. Inasmuch as the petitioner has participated in the enquiry proceedings which are procedural in nature, the impugned order of termination cannot be set aside automatically on the ground of the violation of certain procedures. We may also refer to the judgment of the Supreme Court in State Bank of Patiala and others v. S.K.Sharma, AIR 1996 SC 1669, wherein the Supreme Court has observed as follows:- "Justice means justice between the parties. Interest of justice equally demand that the guilty should be punished and the technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. The plea of procedural irregularities cannot stand in the way to achieve the ends of justice, as they cannot be perverted to achieve the very opposite end that would be counter-productive exercise." 17. In view of the above conclusions, we are entirely in agreement with the submissions made by Mr.Sanjay Mohan, learned counsel for the respondents and the writ petition is liable to be dismissed. Accordingly, the writ petition fails and the same is dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ss https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Madras Christian College Board, Madras Christian College, Tambaram + 1 cc to M/s. Ramasubramaniam, Associates, SR 18793 Order in W.P.No.11934 of 2000 KA (CO) RH (25.3.10) https://hcservices.ecourts.gov.in/hcservices/