IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.12.2009 Coram The HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.11850 of 2000 Benedict Crizal : Petitioner vs. 1. St. Joseph's Higher Secondary School rep.by its Correspondent Vizhuthayambalam Kanniayakumari District. 2. The Manager St. Joseph Higher Secondary School Vizhuthayambalam Kanniayakumari District. 3. Congregation of the Sisters of St.Annes, Trichirapalli Rep.by Sister Rajinal. 4. Joint Director of School Education (Higher Secondary) Chennai-600 006. RR3 & 4 impleaded as per order dated 30.10.2003 in WPMP No. 2553 of 2002 : Respondents PRAYER:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order in Memorandum No.20/1999-2000 dated 29.6.2000 from the respondents terminating the petitioner's service and quash the same and consequently direct the respondents to reinstate the petitioner with continuity of service and backwages. For Petitioner : Mr.G.S.Thamby for Mr.P.Godson Swaminath For Respondents : Mr.V.Raghavachari for RR1 & 2 https://hcservices.ecourts.gov.in/hcservices/ Mr.T.R.Rajagopalan Senior Counsel for Mr.T.R.Rajaraman for R3 Mr. S.Gopinathan, AGP for R4 ORDER The legality and correctness of the order of dismissal passed by the Manager of an educational institution, who acted as the complainant, prosecutor, witness and judge is the subject matter of this writ petition. 2. The petitioner challenges the proceedings of the second respondent dated 29.6.2000 whereby and whereunder he was terminated from the service of St.Joseph Higher Secondary School, Vizhunthayambalam, Kanyakumari District. THE FACTUAL MATRIX:- 3. The petitioner was appointed as B.T. Assistant on 4.6.1984, in the first respondent School. He was promoted as Head Master with effect from 1.6.1991. The School is a Private School as defined under Section 2(7) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974. Eighteen teachers were employed in the said institution. Teachers in the non-sanctioned posts were employed for years together on the hope that they would be appointed either in the posts that would be sanctioned newly or in the vacancies caused due to resignation, death or retirement. However whenever such vacancies arose, the management used to employ fresh candidates instead of regularising the appointments made earlier. The teaching and non- teaching staff protested against the school management by organising demonstration in front of the school on several days during October and November, 1998. 4. The main reason for the demonstration was the appointment of Tmt.Mary Mercilet, a close relative of the Correspondent of the School. By appointing a teacher afresh, the claim of other B.T. Assistants working in the institution for the past twelve to sixteen years were overlooked. The difference of opinion between the teachers and the management made the teachers to issue a notice to the management through Thiru V.Ramachandran Nair, Advocate, Kuzhithurai. 5. The Manager of the School instituted a private complaint before the Judicial Magistrate Court, Nagercoil for defamation against the Senior teachers, who were instrumental in issuing notice through Mr.V.Ramachandran Nair. In the meantime the teachers were pressurised using money and muscle power to come to the terms https://hcservices.ecourts.gov.in/hcservices/ dictated by the Manager. Therefore they gave letters on the dotted lines as desired by the Manager and the Correspondent implicating the petitioner as the person behind the entire episode. 6. The Manager and the Correspondent gave the petitioner one memo after another vindictively to throw him out from the post of Headmaster. The Manager also withdrew the defamation case against the staff, who signed on the dotted lines as desired by him and continued the case against rest of the three employees. Those three employees were terminated abruptly without holding any enquiry. 7. While the matters stood thus, the petitioner was given a show cause notice with thirty five charges and he was asked to submit his reply. The petitioner submitted his explanation to the charges framed against him. The manager, who was determined to terminate the petitioner appointed one Mr.Johnson, Advocate, Nagercoil as the enquiry officer as per memo dated 16 March, 2000. The said Johnson was the lawyer for the Manager and he was also sharing the office with Mr.Justin, standing counsel for the Manager. Therefore the petitioner submitted a letter for change of enquiry officer. However the said request was not considered. 8. The enquiry officer issued a notice asking the petitioner to appear for enquiry on 1.4.2000 at New Ganga Lodge, Nagercoil. Notice was received by the petitioner only on 31.3.2000 and as such he sent a telegram requesting adjournment of the proceedings. Subsequently the enquiry officer sent a letter dated 1.4.2000 asking the petitioner to appear on 5.4.2000 again at New Ganga Lodge, Nagercoil without mentioning the time at which the enquiry proceedings would be taken up. The petitioner as per his letter dated 4.4.2000 opposed the conduct of enquiry in the lodge at Nagercoil. According to the petitioner his life was in danger as the Manager had earlier attempted on his life by sending hired rowdies which made him to prefer a police complaint. The petitioner has also pointed out that the enquiry officer Mr.Johnson was inimically disposed of towards him for various reasons. The petitioner pointed out that Mr.Johnson was biased and as such he was not competent to conduct the enquiry against him. 9. The distance between Nagercoil and the place of School is about 40 kms. Therefore the petitioner was put to difficulties to appear at Nagercoil. He was also not paid conveyance allowance and other expenses. The request made by the petitioner to change the venue was not accepted by the enquiry officer. The petitioner was waiting for a reply in respect of his letter. However the enquiry officer without changing the venue as requested by the petitioner conducted enquiry ex parte and concluded that majority of the charges framed against him were proved. https://hcservices.ecourts.gov.in/hcservices/ 10. In the meantime the petitioner filed a suit in O.S.No.164 of 2000 before the District Munsif, Kuzhithurai praying for a judgment and decree of permanent injunction restraining the Manager, Correspondent and enquiry officer from proceeding further with the enquiry and from terminating him from service. In the said suit the District Munsif, as per order dated 20.4.2000 in I.A.No.314 of 2000 restrained the Manager, Correspondent and the enquiry officer from proceedings further with the enquiry and from terminating him from service till 29.6.2000. 11. The notice in the suit as well as in the interlocutory application were served on the respondents. However disregarding the order of injunction, the enquiry officer submitted his report on 22.4.2000. The Manager has given a notice on 2.6.2000 to the petitioner enclosing a copy of the report of the enquiry officer. Even in the said notice the Manager had noted that an interim injunction was granted by the District Munsif in respect of the enquiry proceedings. 12. The enquiry officer found that the petitioner was guilty of charges 1, 2, 3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 22, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 35 and held not guilty in respect of other charges. 13. The petitioner found that twenty six persons were examined as witnesses in the ex parte enquiry and documents in Exs.A.1 to A.130 were marked. There was no indication in the enquiry report as to who were all those twenty six witnesses examined in the enquiry. The list of witnesses examined in the enquiry were not appended to the report. The petitioner submitted his explanation to the second show cause notice on 20.6.2000 along with sixty nine documents to justify his contention that there was no basis for the charges. However without considering the explanation and particularly the documents annexed with the explanation, the Manager passed the impugned order dated 29.6.2000 dismissing him from service. Accordingly the petitioner is before this court. COUNTER:- 14. The second respondent filed a counter in answer to the contentions raised in the writ petition. The second respondent has detailed the reasons which made him to initiate the enquiry proceedings against the petitioner. According to the second respondent, the petitioner is none other than his sister's son. The second respondent narrated the background facts leading to the enquiry, which ultimately culminated in passing the order of termination against the petitioner. 15. While the writ petition was pending, respondents 3 and 4 https://hcservices.ecourts.gov.in/hcservices/ were impleaded. The third respondent is the Congregation of the Sisters of St.Annes, Tiruchirappalli. The first respondent institution was taken over by the third respondent on 1.9.2000. However they were not aware of the termination of the petitioner and the pendency of the proceedings. 16. The third respondent has filed a counter wherein it was indicated that the petitioner was having a remedy of appeal before the Government in accordance with Section 23 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The third respondent has also pointed out that they have appointed sister C.Pounthai as Headmistress of the School and she was in the service for a period of seven years with the approval of the District Educational officer. Subsequently sister C. Nambikkai Rose was appointed as Headmistress of the School and she is continuing as Headmistress as on date. Therefore the writ petition is bad for non- joinder of the present Headmistress. The third respondent has also justified the action taken by the second respondent. SUBMISSIONS:- 17. The learned counsel for the petitioner contended that the enquiry proceedings clearly shows that the enquiry officer as well as the Manager were determined to punish the petitioner. The Manager, who passed the order of termination himself was a witness to prove majority of charges and as such the order of termination is liable to be set aside solely on the reason of bias. According to the learned counsel, the Manager has taken a decision to terminate the service of the petitioner and the same is evident from the letter dated 16.9.1998 sent by him to the petitioner. The learned counsel further submitted that the challenge is not to the decision but only against the decision making process and the report of the enquiry officer clearly shows that the enquiry was not conducted in the manner in which it should have been conducted. 18. The learned counsel for the petitioner placed reliance on the following judgements. (1) 1995 (6) SCC 749 (B.C. Chaturvedi v. Union of India) (2) 1993(4) SCC 10 (Rattan Lal Sharma v. Managing Committee, Dr Hari Ram (Co-Education) Higher Secondary School) (3) 2007(5) MLJ 1111 (Secretary St.Jude's College v. S. Robert) (4) (1998) 7 SCC 84 (Punjab National Bank v. Kunj Behari Misra) (5) 2006 (1) MLJ 624 (Govindan . P v. State) https://hcservices.ecourts.gov.in/hcservices/ 19. The learned Senior Counsel for the third respondent contended that the third respondent was kept in darkness in respect of the disciplinary proceedings against the petitioner. The institution was taken over by the third respondent only on 1.9.2000 and they have appointed the Headmistress. Any order in this writ petition would affect the present Headmistress and as such the writ petition is bad for non-joinder of necessary parties. The learned Senior Counsel also relied on the judgment of this court in BASKARAN v. THE COMMISSIONER OF COLLEGE EDUCTION & 2 OTHERS (1995(II) CTC 513) in support of his contention that non-joinder of affected party warrants dismissal of the writ petition. ANALYSIS:- 20. The petitioner was working as Headmaster of the first respondent institution with effect from 1.6.1991. The petitioner is the sister's son of the Manager. But the said fact had not been disclosed by the petitioner in the affidavit filed in support of the writ petition. The petitioner and the Manager appears to have been waging a war and the teaching faculty were used as soldiers. The Manager entertained a belief that the petitioner was instrumental in creating various problems through the teachers. The Manager was also of the view that the petitioner had indulged in serious misconduct . Accordingly he has appointed the enquiry officer after receiving the explanation from the petitioner. 21. The enquiry officer appointed by the Manager was none other than his own counsel. However it cannot be said that the enquiry proceeding is bad solely on the ground that the enquiry officer earlier appeared as a Counsel for the Manager. The apprehension raised by the petitioner on that ground does not merit consideration. The enquiry officer was a practising lawyer. The fact that he appeared once for the Manager or that he shared the Chamber with the standing counsel for the Manager will not go to show that he was having bias against the petitioner. In fact some of the charges levelled against the petitioner were negatived by the enquiry officer as according to him there was no sufficient evidence to prove those charges. However the enquiry officer was not care enough to mention the timing of the enquiry in the notice. He has chosen a Hotel to conduct the enquiry which was not liked by the petitioner. The enquiry officer could have conducted the enquiry in the educational institution itself and there was no necessity to conduct the same in a lodging house. The petitioner has got apprehension that he would be attacked in case the enquiry was conducted in a hotel and he has expressed the said apprehension in his letter to the enquiry officer. However such grievance raised by the petitioner was not considered by the enquiry officer. In any case, that alone cannot be a reason to set aside the enquiry report and to come to a conclusion that the order of termination is bad. https://hcservices.ecourts.gov.in/hcservices/ 22. The principal issues in this matter pertains to the conduct of enquiry during the currency of the injunction order passed by the Civil Court, the participation of the Manager in the enquiry proceedings as a witness and his ultimate decision to terminate the petitioner acting as the disciplinary authority. 23. The enquiry against the petitioner was initiated by none other than the Manager. Show cause notice was issued by him calling upon the petitioner to submit his explanation with respect to thirty five charges framed against him. The explanation was also received by him. The Manager considered the explanation and opined that there were no justifiable reasons in the explanation to drop the charges. Accordingly the Manager himself appointed the enquiry officer to conduct the enquiry into the charges. 24. The Manager, who issued the charge sheet and ordered for enquiry himself appeared as a witness before the enquiry officer. It is found that the evidence of the Manager examined as M.W.1 was the basis for proving majority of the charges. I have gone through the report of the enquiry officer in its entirety and found that majority of the charges were found proved only on account of the evidence given by the Manager and the documents marked through him. 25. The details furnished hereunder would indicate that the Manager actively took part in the enquiry proceedings and tendered evidence against the petitioner. 26. Before analysing the charges, the enquiry officer made a note of the witnesses examined to substantiate the charges and the documents marked. The introductory paragraph indicates the role played by the Manager in the enquiry proceedings which reads thus:- "As the delinquent was reluctant of appearing before me and to defend himself I decided to get on with the enquiry setting him exparte. The enquiry was commenced on 14.4.2000 at 10.a.m. in the venue fixed. On 14.4.2000 the Manager of the school was examined as management witness No.1 and the documents Ext.A.1 to A.66 were marked. On 15.4.2000 management witness No.1 continued his evidence and the documents Ext.A.67 to 129 were marked." 27. The evidence tendered by the Manager as M.W.1 in respect of each of the charges are as under:- "Charge No.1 That Thiru Benedic Crysal, Headmaster of the School had connived to send, in the name of https://hcservices.ecourts.gov.in/hcservices/ the following teachers legal notices to the management alleging payment of huge sums of money ranging from Rs.1,00,000/- to Rs.2,00,000/- as illegal gratification and consideration money for their appointment and not keeping other promises made at the time of their appointment, and that without the knowledge and consent of the concerned teachers. That by such an action, he has involved the teachers being subjected to criminal action by the management and that these are allegations against the management made with the motive to discredit it. Point for Consideration:- The Manager of the School Rev. Ft.S.Joseph was examined as witness and he deposed Ext.A.1 to A.47 were the notices sent by Advocate Thiru V. Ramachandran Nair , Ext.A.1 to A.47 were the notices sent by Advocate V.Ramachandra Nair Ext.A.1 is stated to have been sent for and on behalf of Mr.T.Russel Raj. Charge No.3 That Thiru Benedic Crysal, instigated and led the teachers and some pupils of the school to a demonstration and ghero on 28.10.1998 in front of the school in Vizhunthayambalam against the Manager and Correspondent of the school who had come to visit the school. They prevented them by physical force from entering the school shouted slogans against the administration of the management and abused them in filthy language about their personal character. That the Headmaster has also connived to gather a crowd of 500 local friends of him and induced them to demand the Manager and Correspondent to transfer the management, Correspondentship, ownership and properties of the school to Thiru Benedic Crysal, the Headmaster and that by these activities he had done irreparable damage to the prestige, honour and character of the Manager and Correspondent of the School before the public at large and that Thiru Benedic Crysal resorted to illegal and unlawful means to appropriate the management and properties of St. Joseph Higher Secondary School, Vizhunthayambalam. https://hcservices.ecourts.gov.in/hcservices/ Point for Consideration:- 1. Whether there was a demonstration against the Manager and Correspondent on 28.10.1998.. 2. Whether the Manager and Correspondent were physically prevented from entering into the school. 3. Whether the demonstration was instigated by the Headmaster. Management witness No.1 is the Manager, Management witness No.2 is the Correspondent Miss. Rosammal. Both the Manager and the Correspondent have given evidence before me and their evidence is corroborative and cogent. According to witness No.1 those who assembled in the School campus prevented him from entering into the school by force and they shouted slogans against him and the Correspondent. He further says that their demand was the transfer of the Management and the Correspondentship and the ownership of the properties of the school to the Headmaster. Witness No.2 Correspondent says that on 28.10.1998 when she accompanied the manager to visit the school the teachers few students and the hooligans of the Headmaster assembled there and they raised slogans against her and the manager. They demanded the transfer of ownership and properties of the school to the Headmaster. Charge No.4 That Thiru Benedic Crysal, the Headmaster induced the teacher of the school to stage a demonstration before his office during school hours on 5.10.1998 and also before the office of the District Educational Officer, Kuzhithurai under the leadership of Thiru D.Jayakumar on 8.10.1998 against the lawful proceedings and actions of the Management thereby discrediting and defaming the management of the school. Point for consideration:- 1. Whether there was a demonstration on 5.10.1998. 2. Did the Headmaster induce the teachers for the demonstration. https://hcservices.ecourts.gov.in/hcservices/ Management witness No.1 has deposed in his evidence that there was a demonstration on 5.10.1998 in front of the office of the Headmaster and the demonstration was staged only at the instigation of the Headmaster. Charge No.7 That Thiru Benedic Crysal, the Headmaster faked entries against his name in the Masters' Attendance Register by signing for the date 3.9.1999 as if he was present while he was actually absent as detailed in charge 5 above and thereby committed grave offence of faking and manipulating school records and forgery. Points for consideration:- 1. Whether the Headmaster was absent on 3.9.1999. 2.Whether the Headmaster has signed in the Masters' Attendance Register on a later date as through he was present on 3.9.1999. Manager of the school has deposed before me narrating the charge. That the Headmaster was absent on 3.9.1999 and he put his signature in the Masters' Attendance Register on 6.9.1999. The charge memo given to the Headmaster has been marked as Ext.39. Ex.A.40 is the memo given to the Headmaster by the Administrator of the School. He issued this memo in the absence of the Manager as he was abroad and it has been given for and on behalf of the Manager marking copies to the District Educational Officer, Kuzhithurai and Chief Educational Officer, Nagercoil. In the memo the delinquent has been asked to give his explanation within three days from the date of receipt of the memo. But the Headmaster has not responded in anyway even after the receipt of the memo though it is alleged in the memo that he has committed a very serious offence. Charge No.9 That Thiru Benedic Crysal, Headmaster of the School has failed to exercise effective supervision in the academic side of the school that he failed to extract work from his assistants that he had not conducted intensive coaching for the pupils and that as a result, https://hcservices.ecourts.gov.in/hcservices/ the percentage of passes in S.S.L.C and Higher Secondary Public Examination of the year 1998 was poor and as a result the parents seek admission in other school providing better education. Point for consideration:- Whether the poor results in the SSLC and Hr.Secondary examination is due to the lack of supervision of Headmaster. Management witness No.1 deposes that the reason for the poor results in the Higher Secondary and SSLC Examination held in the years 1998 and 1999 was due to the failure on the part of the Headmaster to have effective supervision over the teachers. Charge No.10 That contrary to and in violation of the code of conduct for teachers that teachers should not participate in political activities. Thiru Benedic Crysal, is actively engaged in political activities and he is a party ticket holder of the Tamil Manila Congress. Point for consideration:- Whether the Headmaster involved in active politics violating the Code of Conduct. Management witness No.1 deposes that the Headmaster of the School is an active member of the political party T.M.C. and he holds ticket for membership in the party. He says that he hold post in the teachers wing of the party. The delinquent Headmaster denies the charge. The management has not placed any evidence supporting the oral testimony of M.W.1. Charge No.14 Whereas the Manager of the School visited the School on 19.4.1999 and found that Headmaster was not present and after waiting till evening in the School he issued a memo regarding his absence, the Headmaster in his letter dated 14.5.1999 and 19.4.1999, stated that he was present in the school thereby falsifying the statement of the Manager which is highly irregular. https://hcservices.ecourts.gov.in/hcservices/ Point for Consideration:- 1. Whether the Headmaster was physically present in the School from 19.4.1999 to 28.4.1999. 2. Whether the Headmaster has signed for marking his presence from the period 19.4.1999 to 28.4.1999 on 29.4.1999. 3. Whether the Headmaster has made attempt falsify the statement of the Manager. Management witness No.1 says that he visited the School on 19.4.1999 and he was surprised to see that no one was there at School. According to him the Headmaster and Assistant are expected to be in the school on all working days. Management witness No.1 deposes that the Headmaster was supposed to be in the school during summer vocation to attend office duties. The Headmaster did not attend school from 19.4.1999 to 28.4.1999, on 29.4.1999 when he turned up he signed for all these days from 19.4.1999 to 28.4.1999 and left the school after 45 minutes and the said act of the Headmaster amounts to manipulation and faking of attendance records. Charge No.15 That whereas the Manager had brought in certain changes in the day-to-day administration of the School from the School year 1999-2000 one of them being that whenever the Headmaster had to go away from the School on leave or on some other