IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN Writ Appeal No.2059 OF 2001 and W.A.M.P.No.16814 of 2001 The Manager Hindu Middle School Vinnamangalam Vaniambadi Taluk Vellore District. ... Appellants/3rd Respondent vs. 1.P.Moorthy 2.The District Elementary Educational Officer, Vellore 3.The Assistant Educational Officer Madanoor, Vaniambadi Taluk ... Respondents/Petitioner and Respondents 1 & 2 Prayer: Writ appeal filed under Clause 15 of the Letters Patent against the order of the single Judge of this Court made in WP No.10409 of 1995 dated 7.8.2001. Petition presented under Article 226 of the Constitution of India to issue a writ of Certiorari calling for the records of the 3rd Respondent in his communication dated 20.7.95 and quash the same. For Appellants : Mr.P.Duraisamy For Respondents: Mr.G.Jeremiah for R.1 Mr.M.Dhandapani, Spl.G.P.(Writs) for RR.2 and 3 JUDGMENT R.BANUMATHI,J Being aggrieved with the order of learned single Judge dated 7.8.2001 made in W.P.No.10409 of 1995 directing the Appellant- https://hcservices.ecourts.gov.in/hcservices/ management to pay salary to the 1st Respondent from 20.7.1995 to 23.7.1996, the date of judgment passed in the Criminal case, Management has preferred this appeal. 2. The Appellant School has permanent recognition and receiving teaching grants/salaries from the Education Department of Government of Tamil Nadu. The first respondent was appointed as Tamil teacher from 1.10.1981 in the Appellant's School. The first respondent was promoted as Headmaster in the said School during 1990. On 26.7.1994, a criminal case was registered against the 1st Respondent in Crime No.379 of 1994 under Section 376 IPC (rape) in Ambur Rural Police Station, Vellore District alleging that he has committed rape on a girl student by name Selvi C.Thulasi, which resulted in pregnancy 3. The 1st Respondent had applied for medical leave for 37 days from 30.6.1994 to 5.8.1994 with permission to suffix 6.8.1994 and 7.8.1994 holidays. Again, he extended leave on loss of pay for a period of one year from 8.8.1994. By proceedings Na.ka.No.9243/A2/94 dated 11.7.1994, the District Educational Officer sought for particulars of action taken against the 1st Respondent by the Management. One V.Elumalai was promoted as Headmaster on 1.8.1994. 4. The 1st Respondent was arrested on 18.11.1994 and he was enlarged on bail on 18.1.1995. After he was enlarged on bail, the 1st Respondent sent letter dated 2.6.1995 cancelling his leave and seeking permission to rejoin duty. Only on receiving such a letter, the Appellant Management came to know about the address of 1st Respondent and show cause notice dated 6.7.1995 was issued to the 1st Respondent. The 1st Respondent sent his explanation dated 13.7.1995. The Appellant management has passed the impugned proceedings dated 20.7.1995 declining permission to the first respondent to join duty on the ground of pendency of criminal case in Crime No.379 of 1994. The first Respondent filed Writ Petition in W.P.No.10409 of 1995 seeking for writ of certiorarified mandamus challenging the said proceedings dated 20.7.1995. The first respondent challenged the said proceedings contending that he was not placed under suspension nor any charge memo was issued to him and no approval was granted by the authorities to terminate his service. The case of 1st Respondent was that until the Respondents 2 and 3, who are the statutory authorities, approve the action of the Appellant-Management, the impugned order is non-est in law and that he is entitled to receive his salary from 3.7.1995 when he sent the application to rejoin duty and was prevented from doing so. 5. Observing that the action of the Management is arbitrary in nature, the learned single Judge held that when the 1st Respondent sought permission of the Management to rejoin duty on 3.7.1995, without conducting any enquiry Appellant Management has passed the impugned proceedings in not allowing the 1st Respondent to join duty till the judgment is pronounced in the criminal case and directed the https://hcservices.ecourts.gov.in/hcservices/ Appellant Management to pay salary to the 1st Respondent from 20.7.1995 i.e., the date of impugned order till the date of judgment passed in the criminal case i.e., 23.7.1996. The learned single Judge directed deduction of Rs.10,000/- paid pursuant to the interim orders passed by the Court on 7.2.1996. 6. Challenging the order of learned single Judge, learned counsel for Appellant contended that when the 1st Respondent was convicted for a serious offence of rape of a girl student of the School of which the 1st Respondent was the Headmaster, the learned single Judge, without considering the serious misconduct and gravity of the charges, erred in directing payment of salary. It was further submitted that the learned single Judge did not keep in view that the 1st Respondent has not even informed the Management about his involvement in the criminal case despite his undertaking given in the code of Conduct executed by the teachers and that alone is sufficient to dismiss the writ petition. It was further argued that the learned single Judge erred in observing that the action of the Management is arbitrary in nature. It was further argued that the learned single Judge did not keep in view that the Management was answerable to the authorities concerned to take appropriate action against the 1st Respondent, whose misconduct seriously impaired reputation of the School. 7. Drawing our attention to Section 22 of Tamil Nadu Recognised Private Schools (Regulation) Act 1973, learned counsel for 1st Respondent has submitted that the procedure contemplated under Section 22 has not been complied with and that the services of the 1st Respondent was straight away terminated. It was further submitted that the 1st Respondent was neither placed under suspension nor any disciplinary proceedings was initiated against him and while so, depriving him of the employment and also the salary was in violation of the principles of natural justice and when the procedure had not been followed by the authorities, the learned single Judge rightly directed payment of salary from 20.7.1995 till 23.7.1996, the date on which the criminal case ended in conviction. 8. The learned Additional Government pleader Mr.Dhandapani submitted that the involvement of the teacher in a rape of student has affected the decorum of the School and the teachers and greater responsibility was thrust upon the 1st Respondent, who was the Headmaster and the Appellant Management rightly declined permission to the 1st Respondent to re-join duty. 9. It is not in dispute that the Criminal case in Crime No.379 of 1994 for the offence of rape under Section 376 IPC was registered against the 1st Respondent on 26.7.1994 for allegedly misbehaving with a girl student, which resulted in pregnancy of the said girl student. The girl student left the School on 30.4.1994. https://hcservices.ecourts.gov.in/hcservices/ 10. On the instructions of the District Educational officer, Tirupattur, as per proceedings in Rc.9243/A2/94 dated 11.7.1994, the Assistant Educational Officer, Madanoor inquired the father of the said girl and two residents of her village on 11.8.1994 and the enquiry revealed that the 1st Respondent was responsible for the incident of rape. Immediately after registration of criminal case, the 1st Respondent has not brought it to the notice of the Appellant- Management or to the Respondents 2 and 3 about the registration of the criminal case. Suppressing the registration of criminal case against him, the 1st Respondent had applied for medical leave from 30.6.1994 to 5.8.1994 with permission to suffix 6.8.1994 and 7.8.1994 holidays. On 8.8.1994, the 1st Respondent did not join duty, but he extended leave on loss of pay for a period of one year from 6.8.1994. 11. In the mean time, the Appellant School received a letter from District Educational Officer in proceedings na.ka.No.9243/A2/94 dated 11.7.1994 seeking particulars of action taken against the 1st Respondent. In the proceedings Na.Ka.No.21132/E1/92 dated 17.8.1994, the District Educational Officer sent a letter to the Appellant - School Board directing the School to take suitable steps against the 1st Respondent in connection with the criminal case. The Appellant - School Management also received a letter from the Inspector of Police, Ambur Rural Police Station informing about the involvement of the 1st Respondent in the criminal case. 12. From the averments in the counter affidavit and the submissions of the learned counsel for the Appellant, it comes to be known that no action could be initiated against the 1st Respondent as contemplated under Tamilnadu Recognised Private Schools (Regulation) Act, since the 1st Respondent could not be served with any communication, as his whereabouts were not known. As pointed out earlier, the 1st Respondent only applied for medical leave from 30.6.1994 to 5.8.1994 and thereafter he extended his leave on loss of pay from 6.8.1994 for a period of one year. While sending leave application, the first Respondent was very well aware of his involvement in the criminal case. Yet the 1st Respondent suppressed the same while sending leave application. The 1st Respondent was arrested on 18.11.1994 and he was released on bail on 18.1.1995. In fact, only from the proceedings sent by District Educational Officer and the communication received from the Inspector of Police, Ambur Rural police station, the management came to know about the registration of criminal case against the 1st Respondent. 13. Even though the 1st Respondent has applied for leave on loss of pay for a period of one year from 6.8.1994 to 5.8.1995, the 1st Respondent sent a letter dated 2.6.1995 cancelling his leave and seeking permission to rejoin duty. According to the Appellant- Management, only on receiving such a letter, the Appellant-Management came to know about the address of the 1st Respondent and thereafter https://hcservices.ecourts.gov.in/hcservices/ the Appellant-Management issued show cause notice to the 1st Respondent on 6.7.1995. In the mean time the villagers have also submitted a representation dated 1.7.1995 stating that in the interest of the girl students, the 1st Respondent should not be allowed to rejoin duty and the villagers have also expressed their fear that allowing the 1st Respondent would spoil the image of the School. 14. The learned single Judge has faulted the Management observing that when the 1st Respondent sought permission to rejoin duty, without conducting any inquiry, the management has passed the impugned proceedings in not allowing the 1st Respondent to join duty till the judgment is pronounced in the criminal case and that the action of the Management is arbitrary in nature. In our considered view, the learned single judge overlooked the gravity of charges. The learned single Judge did not keep in view the pressure mounted upon the Management for taking action against the 1st Respondent School and the representation of the villagers insisting the Management not to permit the 1st Respondent to rejoin the duty. It is pertinent to note that the 1st Respondent himself has applied for leave on loss of pay for a period of one year from 6.8.1994 to 5.8.1995. When admittedly the 1st Respondent was on leave on loss of pay for a period of one year, the learned single Judge was not right in ordering payment of salary from 20.7.1995. 15. The question is, whether the conduct of the 1st Respondent is befitting the higher responsibility cast upon the teacher, especially when the 1st Respondent was working as the Headmaster. 16. Referring to the Passage by Mahatma Gandhi on 'Education' and "The Social and Political Thoughts of Dr.S.Radhakrishnan by Clarissa Rodrigues and emphasising the higher responsibility cast upon the teacher and that the conduct and responsibility of the teacher should be more exemplary and that his/her character and conduct should be like Rishi and that more duty and responsibility is expected of a teacher, in AVINASH NAGRA VS. NAVODAYA VIDYALAYA SAMITI AND OTHERS ((1997) 2 SCC 534), the Supreme Court has held as under: "12. It is axiomatic that percentage of education among girls, even after independence, is fatham deep due to indifference on the part of all in rural India except some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and https://hcservices.ecourts.gov.in/hcservices/ safety of the girls. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises: whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the ice berg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail on the coffin. It is self- inspection and correction that is supreme...." In the said case before the Supreme Court, the teacher, inspite of warning by the Management, made sexual advances towards a girl student and not corrected himself. In such facts and circumstances the Supreme Court held that dispensing with regular enquiry and denial of cross examiantion was justified. 17. In the instant case, the 1st Respondent, being Headmaster of the School, a high responsibility was cast upon him. As a Headmaster, he was expected to mould the character, calibre and capacity of the students. The 1st Respondent had committed serious misconduct of committing rape on a girl student, which resulted in her pregnancy and resultantly the girl student also left the School. In our considered view, having regard to the gravity of the charges, passing of formal order of suspension and compliance of principles of natural justice would have been only an empty formality. 18. As pointed out earlier, in fact, the 1st Respondent himself has not informed the Appellant Management about his involvement in the criminal case. On the other hand, he applied for medical leave from 30.6.1994 to 5.8.1994 and thereafter applied for leave on loss of pay from 6.8.1994 to 5.8.1995. The 1st Respondent has suppressed the factum of his involvement in the criminal case and his arrest in connection with the criminal case. When the 1st Respondent has not chosen to give his address during the period of his absence, the 1st Respondent was not justified in saying that the formal order of suspension ought to have been passed. https://hcservices.ecourts.gov.in/hcservices/ 19. Drawing our attention to Section 22 of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, learned counsel for the 1st Respondent submitted that in case of a teacher working in private schools, dismissal, removal or suspension of teachers could only be with the prior approval of competent authority. It was further submitted that no teacher or other person employed in any private school shall be placed under suspension except when an enquiry into the gross misconduct is contemplated. Under Section 22(1) of the Act, no teacher or other person employed in any private school shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. As per Section 22(3)(a), no teacher or other person employed in any private school shall be placed under suspension, except when an inquiry into the gross misconduct, within the meaning of Section 21(1) of such teacher or other person is contemplated. As per Section 22(3)(b), no such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not contemplated within that period, such teacher or other person shall, without prejudice to the inquiry, be deemed to have been restored as teacher or other employee. The rules stipulated under Section 22 would apply in any normal circumstances where disciplinary action is contemplated against the teacher. In the instant case, on grave charge of committing rape on the girl student, the 1st Respondent was arrested on 18.11.1994 and released on bail on 18.1.1995. The 1st Respondent has not brought to the notice of the Appellant-Management about his involvement in the criminal case and arrest while so the 1st Respondent is not justified in contending that the procedure contemplated under Section 22 ought to have complied with. 20. Faced with grave charges of rape against the girl student, the passing of formal order of suspension would have been only an empty formality. The learned single Judge did not keep in view the gravity of the charges and the factum of suppression by the 1st Respondent. We are unable to subscribe to the view taken by the learned single Judge that the action of the Management was arbitrary in nature. On the direction of the authorities, one Elumalai was promoted as Headmaster on 1.8.1994 and the salary payable to the Headmaster must have been paid to the said Elumalai and while so the learned single Judge was not right in directing the Management to pay salary to the 1st Respondent from 20.7.1995 i.e., the date of the impugned order till 23.7.1996 i.e., the date of judgement passed in the criminal case. The order of learned single Judge ignores the gravity of the charges and the ground realities and the same cannot be sustained. 21. In the result, the order of the learned single Judge in W.P.No.10409 of 1995 is set aside and the Writ Appeal is allowed. https://hcservices.ecourts.gov.in/hcservices/ However, there is no order as to costs. The amount of Rs.10,000/- paid to the first respondent may not be recovered from him. Consequently, the connected W.A.M.P. is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar usk Copy to: 1. The District Elementary Educational Officer, Vellore 2. The Assistant Educational Officer Madanoor, Vaniambadi Taluk. 1 cc to Mr.P.Duraisamy, Advocate, Sr.No.41191 1 cc to Government Pleader, Sr.No.41513 Judgment in W.A.No.2059/2001 NG {CO} TP/24.6.2010. https://hcservices.ecourts.gov.in/hcservices/