IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.07.2011 CORAM THE HONOURABLE Mr. JUSTICE T. RAJA Writ Petition No.29499 of 2002 M.Sundaravalli, B.A.B.Ed., ... Petitioner Vs. 1.The Correspondent St. Mary's High School Kuthukkal Valasai Thenkasi, Nellai District 2.The District Educational Officer Nellai District, Tirunelveli ... Respondents Writ petition has been filed under Article 226 of The Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent issued in Proceedings No.Nil, dated 03.07.2000, quash the same and to issue a consequential direction to the respondents to reinstate the petitioner in service in the first respondent School with continuity of service and with attended benefits. For Petitioner : Mr.R.Saseetharan For R1 : Mr.S.V.Devasanthi For R2 : Mr.S.V.Durai Solaimalai Additional Government Pleader O R D E R The present Writ Petition is directed against the order passed by the first respondent/Correspondent of St. Mary's High School, Kuthukkal Valasai, Thenkasi, in his proceedings No.Nil, dated 03.07.2000, in and by which, the service of the petitioner was terminated. 2. Learned counsel appearing for the petitioner submits that the petitioner was appointed as Assistant Teacher in the first respondent Management School on 01.06.1995, in the sanctioned post and her appointment was continued in the same post till 04.10.1999. While so, when the petitioner applied for medical leave from https://hcservices.ecourts.gov.in/hcservices/ 04.10.1999 to 31.12.1999, the first respondent placed the petitioner under suspension by order dated 27.12.1999 with effect from 01.01.2000. Even from the same order of suspension, the Management has accused the petitioner that she made a false complaint to the Police Department. Therefore, the behaviour of the petitioner, runs counter to the Code of Conduct and that she absented from duty for about three months by producing false certificate. Subsequently, the petitioner was issued with suspension order, containing three charges. The petitioner submitted her explanation on 03.01.2000. Once again not satisfied with the explanation submitted by the petitioner, the first respondent issued a show cause notice, dated 14.02.2000, calling upon the petitioner to submit her explanation as to why her service should not be terminated from the first respondent School. Thereafter, though the petitioner has submitted her explanation, not accepting the said explanation, the Enquiry Officer was appointed. On completion of the enquiry, the Enquiry Officer has submitted the Enquiry Report on 13.05.2000. On receipt of the said Enquiry Report, the petitioner was also issued with second show cause notice on 20.05.2000, for which the petitioner submitted her written representation on 22.06.2000. Thereafter, the first respondent passed the order of dismissal on 03.07.2000. Aggrieved by the said order of dismissal, the petitioner has come to this Court. 3. Learned counsel for the petitioner submits that no proper procedure was followed by the respondents from the stage of issuance of suspension order dated 27.12.1999 till the order of dismissal dated 03.07.2000 was passed. In order to demonstrate the irregularities committed by the first respondent in passing the dismissal order, the learned counsel for the petitioner firstly contended that the very suspension order issued by the first respondent/Correspondent on 27.12.1999, containing three allegations levelled against the petitioner cannot be issued. Even, if they issued the suspension order before proceeding for holding enquiry, unless and otherwise the first respondent issued a comprehensive charge memo clearly mentioning the charges against the petitioner, the enquiry cannot be further proceeded with. However, without even issuing any comprehensive charge memo, the first respondent who has also appeared as one of the witnesses before the Enquiry Officer, proceeded further and finally issued the suspension order containing three allegations against the petitioner in support of the suspension order as well as the charges made against the petitioner and thereafter, when the Enquiry Officer, on completion of the enquiry, submitted his report to the very same first respondent, who issued the suspension order along with charge memo, having appeared as a witness in support of the charges cannot be permitted to pass final order of dismissal from service. 4. In support of his argument, he has also relied upon the Judgment of the Apex Court in the case of Arjun Chaubey Vs. Union of https://hcservices.ecourts.gov.in/hcservices/ India and others reported in (1984) 2 SCC 578, wherein, it has been held that the roles of a Judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the Judge can hold the scales of justice even. The learned counsel for the petitioner further assailed the impugned order of dismissal from service, since the order of dismissal cannot be upheld, in view of the ratio laid down by the Apex Court in the above mentioned Judgment. 5. Secondly, by challenging the correctness of the procedure followed by the Enquiry Officer, it was further submitted that when there was an allegation against the petitioner that she had given a false complaint before the Police to defame the image and goodwill of the first respondent school in the eye of the public without even marking a copy of the complaint said to have been given by the petitioner to the Police Department, holding that the first charge has been proved by the Enquiry Officer, is totally unsustainable in the eye of law. According to him, when the complaint said to have been given by the petitioner before the Police Department, having not been marked as one of the important documents to prove the first charge, the first charge itself shall not hold good. Therefore, holding that the petitioner has admitted the first charge that she has made a false complaint before the Police Department is liable to be set aside. 6. In respect of the second charge, he further submitted that so long as the second charge does not speak about how the conduct of the petitioner has run counter to the Code of Conduct, the second charge also is liable to be set aside. In fact, he further submitted that when the first respondent has failed to frame a proper charge against the petitioner mentioning clearly the nature of charge, how it has gone against the reputation of the School, the same cannot be construed as proved before the Enquiry Officer. In respect of third charge, when the petitioner has gone on medical leave for three months by producing the alleged false certificate, unless and until the first respondent disputes the medical certificate that it is a false medical certificate by asking the petitioner to undergo a medical fitness certificate before a proper Officer or Medical Board, it cannot stand to reason and hence the third charge also cannot be put against the petitioner. When all these three charges have not been properly and systematically proved by the Enquiry Officer, the charges levelled against the petitioner cannot be legally accepted. Moreover, when the first respondent/Correspondent, having issued the suspension order, has also framed the charges against the petitioner and after deposing as a witness, thirdly, passed the order of dismissal. In spite of all the charges framed against the petitioner before the Enquiry Officer, the Enquiry Officer submitted his report on 13.05.2000 to the first respondent/Correspondent, who issued the suspension order by framing charges levelled against the petitioner, cannot function https://hcservices.ecourts.gov.in/hcservices/ as a disciplinary authority. Since, the first respondent has played the role of witness as well as the Judge, the ratio laid down by the Apex Court in the case of Arjun Chaubey (cited supra), will go against the correctness of the order of dismissal passed by the first respondent. 7. Finally, the learned counsel for the petitioner also, by bringing to the notice of this Court, one another Judgment of the Apex Court in the case of Mohd.Yunus Khan Vs. State of Uttar Pradesh and others reported in (2010) 10 SCC 539, for the proposition that no person can be a Judge in his own cause and no witness can certify that his own testimony is true, if any procedure adopted herein was in flagrant violation of natural justice. Since, in the present case, the ratio laid down by the Apex Court in the above mentioned case, is squarely applicable, the impugned order passed by the first respondent/Correspondent, who framed the charges against the petitioner and after deposing as a witness having passed the order of dismissal cannot be legally sustainable in the eye of law. 8. In reply, the learned counsel appearing for the first respondent submitted that the present Writ Petition is not maintainable, in view of Section 23 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 read with Rule 18 (b) (hereinafter referred to as "the Act"). As per Section 23 of the Act, if any order of dismissal is passed by the Correspondent of a School, Statutory Appeal has to be filed before the Joint Director of School Education under Section 23 of the Act read with Rule 18(b) within one month from the date of passing of the order of dismissal, as provided by Section 43 of the Act. But, in the present case, the petitioner has failed to approach the statutory Appellate Authority, which is contemplated under Section 23 of the Act read with Rule 18 (b) along with Section 43 of the Act. 9. Learned counsel for the first respondent further contended that without even approaching the Statutory Appellate Authority within 30 days, filing the present Writ Petition has to be dismissed as not maintainable. Adding further, he would submit that the petitioner after receipt of the notice, did not wantonly appear before the domestic enquiry. In fact, a responsible Teacher, who is working as a Teacher in the first respondent School could have filed a copy of the complaint said to have been filed before the Police Department, but she did not chose to mark a copy of the complaint. Secondly, by appeal before the Enquiry Officer, she could have examined the Doctor to prove that she has obtained Medical Certificate to go on Medcial Leave for three months. Even the examination of Doctor by the petitioner has not been done. But on the other hand, the first respondent School management by producing three students on examination, came to the conclusion that the petitioner used to abuse the students studying in the first respondent school. Since the first respondent School being a https://hcservices.ecourts.gov.in/hcservices/ minority Institution, there is nothing wrong in citing the Correspondent as a witness before the Enquiry Officer to prove the charges levelled against the petitioner and he, being the Correspondent, running the first respondent School as a legal and competent authority, he has finally passed the order of termination. Therefore, the order of termination passed by the Correspondent, which is running the first respondent School cannot be found fault with. Since the first respondent School is a minority institution, on that basis, the learned counsel appearing for the first respondent supported the order passed by the first respondent/Correspondent. 10. Prima facie, it is a case where the petitioner after being placed under suspension by the first respondent on 27.12.1999, she was not issued with any consolidated or comprehensive charge memo specifically mentioning what are the charges, the petitioner was required to explain. Be that as it may, even in the suspension order, when the first respondent indicated three charges, the petitioner on receipt of the said suspension order had submitted her detailed explanation on 03.01.2000. Again she was issued with one another show cause notice dated 14.02.2000, in the said show cause notice, the first respondent had clearly mentioned that the petitioner is going to be terminated from service, since the said show cause notice had called upon the petitioner to submit her explanation as to why she should not be terminated from the service of the first respondent school. Even after the submission of the explanation, the Enquiry Officer was subsequently appointed, who summoned the witness and one of the witnesses viz., the first respondent/Correspondent, who issued not only the suspension order, but also issued the charge memo against the petitioner. When the Correspondent, who has issued the suspension order also framed three charges, deposed as witness to prove all the three charges, the same Correspondent, who passed the suspension order and also issued three charges against the petitioner, again passed the dismissal order. When the roles of a Judge and a witness cannot be played by one and the same person, in the present case, the first Respondent not only framed charges against the petitioner but also appeared as a witness, deposing before the Enquiry Officer and also issued the final order of termination, therefore, the entire exercise is running contrary to the basic principles of natural justice and offends the golden principle that no man can be a Judge in his own cause and no witness can certify that his own testimony is true. Even after deposing as a witness before the Enquiry Officer, when the Enquiry Officer submitted his report, the first respondent accepting the report of the Enquiry Officer, finally passed the order of dismissal from service. Therefore, the ratio laid down by the Apex Court in the case of Mohd.Yunus Khan (cited supra), wherein, it has been held that no person can be a Judge in his own cause and no witness can certify that his own testimony is true, squarely applies to this case on hand. It is also relevant to refer https://hcservices.ecourts.gov.in/hcservices/ to another case of Arjun Chaubey (cited supra), wherein it has been held as hereunder:- "6. In State of U.P. V. Mohammad Nooh, S.R.Das, C.J., observed while speaking for the majority, that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the judge can hold the scales of justice even. We may borrow the language of Das, C.J., and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of respondent 3." In the same line, yet another Judgment of the Apex Court in the case of Mohd.Yunus Khan (cited supra), wherein it has been held as hereunder:- "22. Rule 13 of the 1991 Rules reads as under: "13. Officer not competent to conduct disciplinary proceedings. A gazetted officer of the Police Force who is either a prosecution witness in the case or has earlier conducted a preliminary enquiry in that case shall not conduct inquiry in that case under these Rules. In case the said gazetted officer is the Superintendent of Police himself, the Deputy Inspector General concerned shall be moved to transfer the case to some other district or unit as the case may be." (emphasis added) It is evident from the aforesaid Rule that a person who is a witness in a case can neither initiate the disciplinary proceedings nor pass an order of punishment. 33. We are of the considered opinion that the initiation of disciplinary proceedings against the appellant and the conclusion thereof by the imposition of the punishment by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural justice and thus, stood vitiated." 11. A mere reading of the observations and the ratio laid down by the Apex Court in the above mentioned Judgments makes the legal position undoubtedly clear that if a person appears as a witness in disciplinary proceedings, legally he cannot be an Enquiry Officer https://hcservices.ecourts.gov.in/hcservices/ nor can pass an order of punishment as a disciplinary authority. This Rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is true. Anyone who has personal interest in the disciplinary proceedings must keep himself away from such proceedings last, the violation of the principles of natural justice will render the order as null and void. As a Correspondent of the first respondent school having issued the order of suspension containing three charges against the petitioner, he should not have deposed as a witness before the Enquiry Officer, in support of his own charges, as he has done so and subsequently, by passing the order of dismissal from service, the entire proceedings from the stage of issuance of suspension order dated 27.12.1999 till the order of dismissal dated 03.07.2000, are not only vitiated but also offended all canons of law. Therefore, I am of the considered view that, the impugned order passed by the first respondent dismissing the petitioner from service, is liable to be set aside and accordingly the same is set aside. 12. Resultantly, the Writ Petition stands allowed by setting aside the impugned order passed by the first respondent dismissing the petitioner from service. Consequently, the petitioner is entitled to get all the backwages for the period, during which she was kept unemployed, for the reason that this Court, after pronouncing the order, granted time to the learned counsel appearing for the first respondent to take instruction for settling the backwages. Though, the matter was taken up after some time, the learned counsel for the first respondent was not present. Therefore, it is suffice to say that the first respondent is bound to reinstate the petitioner within a period of four weeks from the date of receipt of a copy of this order. There shall be no order as to costs. smn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Correspondent St. Mary's High School Kuthukkal Valasai Thenkasi, Nellai District https://hcservices.ecourts.gov.in/hcservices/ 2.The District Educational Officer Nellai District, Tirunelveli + 4 ccs to M/s. S.V. Devasanthi, Advocate SR No.45559 + 1 cc to M/s. R. Sasitharan, Advocate SR No.45707 + 1 cc to Government Pleader, SR No.45697 SR(CO) SR/16.9.2011 W.P.No.29499 of 2002 https://hcservices.ecourts.gov.in/hcservices/