1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:13.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR WP(MD)No.10366 of 2011 and MP(MD)No.1 of 2011 P.Mutharasu, S/o.P.M.Palsamy, Associate Professor of Mathematics :Petitioner -Vs- 1.The Joint Director of Collegiate Education, Madurai Region, Madurai. 2.Virudhunagar Hindu Nadars'Senthikumara Nadar College, Rep. by its Secretary, Virudhunagar. 3.Mr.S.Anandan, Advocate/Enquiry Officer, Virudhunagar Hindu Nadars' Senthikumara Nadar College, Virudhunagar. :Respondents PRAYER:Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the third respondent in No.Nil, dated 05.09.2011, quash the same and consequently, direct the third respondent to permit the petitioner to have the assistance of an advocate or person of his choice during enquiry and to conduct enquiry regarding the additional charge afresh. For Petitioner : Mr.R.Subramanian For Respondent No.1 : Mr.B.Pugalendhi,Special Government Pleader ORDER Questioning the correctness of the order dated 05.09.2011, denying the request for legal assistance and the manner in which, the Enquiry Officer proceeded with the enquiry, the petitioner has filed the present Writ Petition. 2.Assailing the correctness of the impugned order, Mr.R.Subramanian, learned counsel for the petitioner submitted that the initiation of the disciplinary proceedings itself is motivated, just because he is a Unit Secretary of the Teacher Association, the Management has taken departmental action for a trivial issue, for questioning the allotment to take a different subject than the one assigned earlier. He further submitted that when the Enquiry Officer is an advocate, appointed at the instance of the Management, the petitioner should have been provided with an opportunity of taking legal assistance, by engaging a lawyer or a person of his choice According to him, when the said request was made by the petitioner on an earlier occasion, the Enquiry Officer, by his proceeding dated 31.08.2011, ordered that the same would be considered, after the conclusion of the examination of the witnesses. In such circumstances, when the management examined its witness No.1, during the cross-examination, the Enquiry Officer refused to permit the petitioner to pose questions so as to elucidate his defence. Even without granting any breathing time to get advice or assistance from anybody to defend the charges, the Enquiry Officer is conducting the enquiry, on day-to-day basis and in the abovesaid circumstances, there is a denial of opportunity to effectively defend the https://hcservices.ecourts.gov.in/hcservices/ 2 charges. In these circumstances, when the petitioner gave a letter to the Enquiry Officer bringing it to his notice, the biased approach, the third respondent, without considering the same, proceeded with the enquiry and also examined the Management witness No.2, in the absence of the petitioner. 3.It is the further contention of the petitioner that the Enquiry Officer has permitted the management to mark new documents, which were not referred to earlier. In such circumstances, the whole enquiry is biased and, therefore, the minutes drawn on 05.09.2011, rejecting the request of the petitioner to have the assistance of an advocate or a person of his choice should be set aside and that a fresh enquiry should be made. 4.Heard the learned counsel for the petitioner and perused the materials available on record. 5.Though the learned counsel for the petitioner has placed reliance on a Government Order and contended that the petitioner is entitled to legal assistance, the same is not produced before this Court. In any event, the procedure to be followed in conducting departmental enquiries in respect of Government servants, as per the statutory rules, cannot be imported into the Tamil Nadu Recognized Private Colleges (Regulation) Act and the rules. There should be a specific order passed by the Government, extending the applicability of any Government Order to the teaching and non-teaching staff of a private college. In the absence of the same, this Court is not inclined to substantiate the contention that the petitioner has an automatic right to have the legal assistance or to engage a person of his choice. 6.On the aspect of prejudice said to have been caused to the petitioner that during the cross-examination, the third respondent has refused to permit him to ask various questions and that without providing adequate time to effectively defend the charges, this Court is of the view that insofar as domestic/departmental enquiries are concerned, there is every likelihood of an allegation of bias or partisan attitude or violation of principles of natural justice, in following the procedure either against the Management or the Enquiry Officer. 7.Admittedly, in the case on hand, the petitioner has filed a Writ Petition in W.P.(MD)No.8004 of 2011, seeking for certain documents. It was also ordered on 19.07.2011, on the submission of respondents 2 and 3 therein. But, it is not desirable to intervene at each and every stage of the enquiry proceedings, whenever a complaint of violation of natural justice is alleged. No enquiry can be conducted, if the Court intervened at each and every stage of a disciplinary/departmental proceeding. But, at the same time, a charged official should also be provided with a reasonable opportunity to defend the charges. In the case on hand, the petitioner has also given a letter to the Enquiry Officer complaining that he was not permitted to pose certain questions on 22.08.2011, when a witness was sought to be cross-examined. If, for any reason, prejudice is caused to the petitioner, on account of denial of his right to cross-examine, it is always open to the petitioner to assail the conclusion arrived at, if bias or prejudice is proved. Whether the questions posed are relevant or not, cannot be gone into by this Court, at this juncture. https://hcservices.ecourts.gov.in/hcservices/ 3 8.It is well known that conducting domestic/departmental enquiry, by appointing an enquiry Officer is only to arrive at a prima facie conclusion on the charges levelled against a Government servant or an employee and that the role of an enquiry officer is only to assist the appointing/disciplinary authority. The finding arrived at by such enquiry officer is not final. A charged official would be given an opportunity to assail the finding recorded by the Enquiry Officer and at that stage, it is always open to the petitioner to bring it to the notice of the disciplinary authority, the manner in which the enquiry has been conducted and the allegation of bias or prejudice can be established. At that stage, the disciplinary authority is bound to consider as to whether there were prima facie materials or evidence to arrive at the conclusion of guilt or otherwise of the charges by the Enquiry Officer. The disciplinary authority is also bound to consider as to whether a fair and reasonable opportunity is given to the charges levelled, and whether the procedure contemplated as per the rules has been followed by the enquiry Officer, so as to enable the charged official to effectively defend the charges. If the charged official is able to establish his case of bias or prejudice, on account of procedural irregularities or violation of principles of natural justice, then the disciplinary authority has to pass appropriate orders. All these things can be done, only after the conclusion of the enquiry. 9.In the light of the above discussion, if the petitioner is seriously prejudiced, in the manner in which the enquiry is conducted by the third respondent, it is always open to him to bring it to the notice of the disciplinary authority, who shall take note of the same, while passing orders on the disciplinary proceedings, with reference to the findings of the Enquiry Officer if any, adversely recorded, and the defence put up by the charged official. 10.In such view of the matter, this Court is not inclined to interfere with the impugned proceedings of the third respondent and the Writ Petition fails and the same stands dismissed accordingly. Consequently, the connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: The Joint Director of Collegiate Education, Madurai Region, Madurai. +1CC to The Special Government Pleader. SR.No.31382. SML RP/15.09.2011/3p/3c. Order made in WP(MD)No.10366 of 2011 and MP(MD)No.1 of 2011 Dated:-13.09.2011 https://hcservices.ecourts.gov.in/hcservices/