1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.10233 of 2011 and M.P.(MD)No.1 of 2011 A.Nallamuthu ... Petitioner Vs 1. The Chief Educational Officer, Thoothukudi District, Thoothukudi. 2. The Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District. 3. S.Shanmuganathan, The Secretary Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorari, calling for the records on the file of the 2nd respondent in his proceeding dated 02.09.2011 in Aa.No.206/11 and quash the same as illegal. For Petitioners .. Mr.P.Pethu Rajesh For Respondent-1 .. Mr.S.Chandrasekar Govt.Advocate For Respondent-2 .. No Appearance For Respondent-3 .. Mr.G.Sankaran O R D E R Challenge in the Writ Petition is to an order, dated 02.09.2011, passed by the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, suspending the petitioner from service, on the ground that a case in Crime No.267 of 2011, dated 05.07.2011, is under investigation against the petitioner for misappropriation of a sum of Rs.46,000/- and that suspension is necessiated in public interest. https://hcservices.ecourts.gov.in/hcservices/ 2 2.According to the petitioner, he joined in the above School, as Secondary Grade Teacher in the year 1984 and promoted, as Tamil Pandit in 1998 and latter promoted, as PG Assistant in 2003. In the year 2007, he was promoted as Headmaster in the second respondent School and due to retire in the year 2012. Though, the petitioner has maintained a very cordial relationship with the students, parents and has been maintaining unblemished record of service in the second respondent School, ever since his appointment and had been working hard to achieve 100% result in SSLC and HSC examinations, the second respondent School is interested only in appointing his community man to be the Headmaster of the School and forced the petitioner to resign the post, as Headmaster. 3. The petitioner further submitted that on 28.09.2010, one of the watchmen, by name Pon Essaki, working in the School, committed suicide, due to torture given by the Secretary of the School. On the basis of a complaint given by the wife of the deceased, the First Information Report has been registered by the Inspector of Police, Sri Vaikundam, in Crime No.319 of 2010. Pursuant to which, the 3rd respondent Secretary was arrested and remanded to judicial custody. During the course of investigation, by the Inspector of Police, in the above said crime, as Headmaster of the Institution, the petitioner was constrained to give a statement under Section 163 of Cr.P.C. Aggrieved by the same, the second respondent, with a mala fide intention, has suspended the petitioner, on 07.11.2010, on the ground that disciplinary action was under contemplation for serious criminal charges. Following the order of suspension, a charge memorandum, dated 15.11.2010, has also been issued by the Secretary of the School. The charge framed against the petitioner relates to forgery, and misappropriation of a sum of Rs.7,300/-, by creating false receipts/vouchers and thus committed fraud. 4. Pleadings disclose that an enquiry was conducted against the petitioner, in which, legal assistance has been sought for. The request has been turned down. Challenging the same, the petitioner has filed a Writ Petition in W.P.(MD)No.14871 of 2010 and the same was allowed on 21.12.2010. However, the enquiry officer has drawn up an ante-dated enquiry report, dated 18.12.2010, and a proposal, dated 08.02.2011, has been sent to the Chief Educational Officer, Thoothukudi District, Thoothukudi, the first respondent herein, for removing the petitioner from service. The said authority, by an order, dated 24.02.2011, has refused to approve the same, on the ground that enquiry has not been conducted, as per the directions issued by this Court in W.P.(MD)No.14871 of 2010, dated 21.12.2010. Being aggrieved by the same, the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, the second respondent herein, has filed a Writ Petition in W.P(MD)No.2739 of 2011 and the same has been dismissed on 27.04.2011, with a direction to approach the competent appellate authority. 5. Pleadings and materials on record further disclose that the writ petitioner has challenged the order of suspension, passed by the the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, and filed a writ petition in W.P.(MD) No.14619 of 2010 and that the same has been allowed on 29.04.2011, with a https://hcservices.ecourts.gov.in/hcservices/ 3 direction to the second respondent therein to reinstate the petitioner into service. The Writ Appeal in W.A.(MD)No.504 of 2011, filed by the the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, the second respondent herein, came to be dismissed by this Court on 17.06.2011. Alleging disobedience of the orders of this Court, the petitioner has filed a Contempt Petition in Cont.P(MD)No.405 of 2011, in which, a statutory notice has been issued. A Review Petition has also been filed by the second respondent to review the order made in W.A.(MD)No.405 of 2011. The second respondent has withdrawn the Review Petition on 25.08.2011 and that the Contempt Petition has been closed, on the assurance that the petitioner would be reinstated into service. In the above factual background, the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, the second respondent herein, has filed a petition under Section 156(3) of Cr.P.C., before the learned Judicial Magistrate, Srivaikundam, alleging that the petitioner has committed certain offences in the year 2009-10 and on the basis of a direction of the above said Court, a case in crime No.267 of 2011, has been registered by the Inspector of Police, Sri Vaikundam Police Station, alleging misappropriation of a sum of Rs.46,000/- from the account of the Sri Vaikundam Rural Co-operative Bank. It is the grievance of the petitioner that the petitioner was already under suspension on 07.11.2010 and that he was reinstated in service only on 30.08.2011, pursuant to a statutory notice issued by the Division Bench. In order to victimize the petitioner, again he has been placed under suspension, making false allegations within two days from the date of reinstatement. Even the suspension allowance has been given only on 22.08.2011, after a period of 10 months from the date of suspension. It is the further case of the petitioner that the action of the second respondent is purely vindictive and mala fide and hence, he prayed for intervention. 6.Heard learned counsel for the petitioner and perused the materials available on record. 7.Perusal of the order made in W.A.(MD)No.504 of 2011, shows that Section 22(3) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, has been pressed into service and since the petitioner had been under suspension from 07.11.2010, for more than four months, and not paid subsistence grant, the Division Bench has held that the petitioner is entitled to the relief of reinstatement. On the said ground, the Division Bench has directed the Joint Director, Higher Secondary School Education, Chennai, to dispose of the appeal, dated 30.03.2011, preferred by the School, against an order of Chief Educational Officer, inflicting penalty on the writ petitioner. The Bench also directed reinstatement and pay the salary to the petitioner, if for any reason they are not willing to reinstate him into service, within a period of two weeks from today. 8.Pleadings disclose that the School has filed a petition before the learned Judicial Magistrate, Sri Vaikundam, under Section 156 (3) of Cr.P.C., and finding prima facie, on the directions of the Court, a case in Crime No.267 of 2011, dated 05.07.2011, has been registered, alleging misappropriation of a sum of Rs.46,000/- from Sri Vaikundam Rural Co-operative Bank. https://hcservices.ecourts.gov.in/hcservices/ 4 9.Though, the earlier disciplinary action has been taken for certain charges and that the action of the School Committee, to inflict a penalty is still stated to be pending with the Joint Director, Secondary School Education, Chennai, the registration of a crime, pursuant to the directions of a competent Court of criminal jurisdiction, cannot be ignored, which has been registered for a serious offence of misappropriation. The present suspension order, is for a different cause of action, although forgery and misappropriation were also alleged earlier. But the reason for suspending the petitioner, is pendency of a crime and the School Committee has every jurisdiction to take appropriate disciplinary action against a teaching and non-teaching staff, depending upon the gravity of the charge. In such view of the matter, the action of the Secretary, Sri Kumara Kurupara Swamigal Higher Secondary School, Srivaikundam, Thoothukudi District, the second respondent herein, cannot be said to be without jurisdiction. Further, whether the petitioner has committed the offence, or not, is a matter for investigation by the police and therefore, the contention of the petitioner that he had not committed any offence, cannot be adverted to by this Court. The competent Court has ordered for registration of a crime and pursuant to which, a criminal case has also been registered and only after the outcome of the investigation and final report, the question of mala fide can be addressed. The School Committee has the power to decide, as to whether a teacher against whom a crime for misappropriation has been registered, to be retained in service or not. There is no manifest illegality, in the impugned order warranting interference and hence, this Court is not inclined to subscribe to the contentions of the petitioner. 10. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar (C.S) To The Chief Educational Officer, Thoothukudi District, Thoothukudi. + 1 cc to Mr.P.Pethu Rajesh, Advocate, SR No.34176 W.P.(MD)No.10233 of 2011 28.09.2011 MPK RJ/3.10.11 4p/3c https://hcservices.ecourts.gov.in/hcservices/