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2013 DIGILAW 424 (MAD)

Sundararaj v. Director of Collegiate Education

2013-01-21

K.RAVICHANDRA BAABU

body2013
Judgment 1. The petitioner is aggrieved against the order of termination passed by the third respondent as confirmed by the first respondent. 2. The case of the petitioner is that he was appointed as 'Lab Assistant' at the third respondent college on 20.03.1989. One Amali filed a criminal case against the petitioner under Section 498(A) of IPC before the All Women Police Station, Tirunelveli, in Crime No.35 of 1994 on 14.11.1994. The learned Judicial Magistrate, Valliyoor, taken the matter on file in C.C.No.134 of 1995. After trial, the petitioner was convicted on 26.12.1996. After the said conviction, the said Amali gave a complaint to the third respondent on 08.01.1997, informing that the criminal case ended in conviction. Therefore, the third respondent placed the petitioner under suspension on 08.01.1997. He also issued a charge memo to the petitioner on 21.10.1997. The petitioner gave an explanation on 05.12.1997. The third respondent conducted an enquiry and prepared a report on 27.03.1998. On the very same day, the third respondent issued a second show-cause notice to the petitioner, calling upon him to show-cause as to why he should not be terminated from service. The petitioner submitted his reply on 22.04.1998. In the meantime, the petitioner preferred an appeal against the Judgment made in C.C.No.34 of 1995, before the Additional Sessions Court, Tirunelveli. On 21.06.1998, the appeal was allowed. The de facto complainant filed a revision in Crl.RC.No.524 of 1998, before the High Court. The said revision was allowed and the matter was remitted back to the appellate Court for fresh disposal. After remand, the appellate Court dismissed the appeal filed by the petitioner in C.A.No.10 of 1997. The petitioner preferred a revision against the said order in Crl.RC.No.752 of 2000 before this Court. In the revision, this Court passed an order sentencing the petitioner to undergo imprisonment till the raising of the Court and pay a fine of Rs.1,00,000/- and further directed that the said de facto complainant Amali to receive a sum of Rs.90,000/-as compensation, out of the said Rs.1,00,000/-fine amount. Accordingly, the petitioner had undergone the sentence and deposited the fine amount of Rs.1,00,000/- before the Judicial Magistrate, Valliyoor on 31.07.2002. On the very same day, the said Amali had withdrawn Rs.90,000/- as compensation. The petitioner also preferred a Special Leave Petition before the Hon'ble Supreme Court in No.3953 of 2002. Accordingly, the petitioner had undergone the sentence and deposited the fine amount of Rs.1,00,000/- before the Judicial Magistrate, Valliyoor on 31.07.2002. On the very same day, the said Amali had withdrawn Rs.90,000/- as compensation. The petitioner also preferred a Special Leave Petition before the Hon'ble Supreme Court in No.3953 of 2002. By an order, dated 23.09.2002, the Hon'ble Supreme Court dismissed the Special Leave Petition with an observation that the validity of the marriage in a criminal prosecution under Section 498 (A) IPC may not be binding on the parties in other proceedings. After the dismissal of the petitioner's Special Leave Petition, the third respondent once again issued a second show-cause notice on 17.11.2003 to the petitioner. An explanation was submitted by him on 15.12.2003. After obtaining the approval from the second respondent, the petitioner was dismissed from service on 07.06.2005, by the proceedings of the third respondent. The petitioner preferred an appeal before the first respondent on 23.06.2005 and the same was dismissed by an order, dated 07.02.2006. Therefore, the petitioner is before this Court. 3. The writ petition was admitted by this Court on 01.09.2006 and notice was ordered to the respondents. The third respondent did not appear either in person or through counsel. The respondents 1 and 2 filed a counter affidavit and stated that the third respondent college is an aided college. The college committee of the third respondent college is empowered to appoint teachers and other persons and take disciplinary action against them. The third respondent college sought permission for the termination of the service of the petitioner due to his involvement in the criminal case and the punishment awarded by the Court. The petitioner was awarded punishment to undergo imprisonment till the raising of the Court and to pay a fine of Rs.1,00,000/-. By the order of the High Court in Crl.RC.No.752 of 2000, the petitioner had undergone the sentence and paid the fine amount. The petitioner married one Vasantha on 31.10.1998 as second wife. The said Amali filed criminal case against the petitioner before the Judicial Magistrate No.I, Tirunelveli. By an order, dated 17.06.2004, the learned Judicial Magistrate convicted the petitioner and awarded imprisonment till the raising of the Court with a fine of Rs.5,000/-. This fact is not disclosed by the petitioner in the affidavit. The said Amali filed criminal case against the petitioner before the Judicial Magistrate No.I, Tirunelveli. By an order, dated 17.06.2004, the learned Judicial Magistrate convicted the petitioner and awarded imprisonment till the raising of the Court with a fine of Rs.5,000/-. This fact is not disclosed by the petitioner in the affidavit. A proposal sent by the college was considered in detail and after perusing the entire file, the permission was granted to the Management to terminate the service of the petitioner. The petitioner filed a writ petition before this Court in W.P.(MD)No.4693 of 2005, challenging the order granting permission to terminate him from service. The said writ petition was dismissed by this Court on 14.06.2005. The petitioner had suppressed all the above said facts while filing this writ petition before this Court. 4. The learned counsel appearing for the petitioner submitted that the entire proceedings initiated by the third respondent college against the petitioner are vitiated on the sole ground that no one can be a Judge of in his own cause. The learned counsel further submitted that the charge memo was issued by the third respondent and the enquiry was also conducted by himself. Apart from that, the order of termination also came to be passed only by the third respondent. In the absence of any independent enquiry officer or committee, conducting an enquiry by the college committee itself is against the said principle. It is also stated by the learned counsel for the petitioner that no opportunity was given to the petitioner to cross-examine the witnesses. He further contended that the Educational Authorities were not placed with materials for granting approval for passing the order of termination. The documents circulated to the Educational Authorities seeking for approval are in respect of subsequent events and not in respect of the subject matter of charge memo. The approval was granted only based on the criminal conviction and opinion of the Government Pleader. The learned counsel further submitted that when a second show-cause notice was issued, it referred, as if, action is being taken uninfluenced by the criminal Court proceedings. However, the impugned order of termination came to be passed only based on the criminal Court's conviction. He further submitted that the impugned order of termination does not refer about the departmental enquiry and materials collected during such enquiry. However, the impugned order of termination came to be passed only based on the criminal Court's conviction. He further submitted that the impugned order of termination does not refer about the departmental enquiry and materials collected during such enquiry. The learned counsel further submitted that the said Amali also got divorced on 16.04.2004 from the petitioner in H.M.O.P.No.94 of 2003 and therefore, the punishment is disproportionate. 5. In support of his contention, the learned counsel for the petitioner relied on the following decisions :- 1. (2009)11 SCC 84 (A.U. Kureshi vs. High Court of Gujarat and another) 2. (2008)8 SCC 236 (State of Uttaranchal and others vs. Kharak Singh) 3. (2006)5 SCC 88 (M.V. Bilani vs. Union of India and others) 4. (2009)2 SCC 570 (Roor Singh Negi vs. Punjab National Bank and others) 5. (2010)2 SCC 497 (G. Vallikumari vs. Andhra Education Society and others) 6. Per contra, the learned Government Advocate appearing for the respondents 1 and 2 reiterated the contention raised in the counter affidavit and supported the order of termination passed against the petitioner. 7. The point for consideration in this case is as to whether the order of termination passed by the third respondent as confirmed by the first respondent is valid in the light of the grounds raised by the writ petitioner contending violation of principles of natural justice as well as the principle that no man shall be a judge in his own cause. 8. Admitted facts of this case are as follows:- The petitioner was appointed as Lab Assistant at the third respondent college on 20.03.1989. The petitioner was convicted in C.C.No.134 of 1995 on the file of the Judicial Magistrate, Valliyoor on 26.12.1996, for the offence under Section 498(A) of IPC. The appeal preferred against the said Judgment, was dismissed on 21.07.2000, by the Additional Sessions Judge, Tirunelveli in C.A.No.10 of 1997. Further revision preferred by the petitioner in Crl.RC.No.752 of 2000 before this Court ended in modifying the sentence to undergo imprisonment till the raising of the Court and pay a fine of Rs.1,00,000/-. Out of which, the de facto complainant, namely, Amali, was permitted to withdraw a sum of Rs.90,000/-as compensation. The petitioner deposited the fine amount of Rs.1,00,000/-on 31.07.2002 and on the same day, the said complainant had also withdrawn Rs.90,000/-towards compensation. Out of which, the de facto complainant, namely, Amali, was permitted to withdraw a sum of Rs.90,000/-as compensation. The petitioner deposited the fine amount of Rs.1,00,000/-on 31.07.2002 and on the same day, the said complainant had also withdrawn Rs.90,000/-towards compensation. The petitioner preferred further Special Leave Petition before the Hon'ble Apex Court in No.3953 of 2002 and the same was dismissed by the Hon'ble Apex Court on 23.09.2002 with an observation that the validity of the marriage in the criminal prosecution is not binding in the other proceedings. 9. In the meantime, based on the complaint given by the said Amali, the third respondent placed the petitioner under suspension on 08.01.1997 and also issued a charge memo on 21.10.1997. The petitioner's explanation submitted on 05.12.1997, was not accepted and consequently, an enquiry was conducted and a report was also filed by the third respondent on 27.03.1998. On 17.11.2003, a second show-cause notice was issued to the petitioner by the very same third respondent, calling upon him to show-cause as to why his service should not be terminated. Thereafter, not satisfied with the reply given by the petitioner, the third respondent issued an order of termination on 07.06.2005. The petitioner preferred an appeal before the first respondent against the said order. The appeal also came to be dismissed on 07.04.2006. 10. From the above narrated undisputed facts, it is seen that the petitioner was suspended, issued with a charge memo by one and the same person, namely, the third respondent. Apart from that fact, it is also seen that the third respondent submitted the enquiry report on 27.03.1998. Thereafter, the very same third respondent issued a second show-cause notice to the petitioner. Ultimately, the very same third respondent passed the order of termination through his proceedings, dated 07.06.2005. 11. Thus, from perusing the above said proceedings issued by the third respondent, it is seen that he has not only acted as a prosecutor, but also acted as a fact finding authority as well as punishing authority. A perusal of the enquiry report, dated 27.03.1998, even though shows that the same was issued by the college committee without there being any indication as to whether any independent enquiry officer was appointed or not, it is not stated who are all the persons participated as enquiry committee members. 12. A perusal of the enquiry report, dated 27.03.1998, even though shows that the same was issued by the college committee without there being any indication as to whether any independent enquiry officer was appointed or not, it is not stated who are all the persons participated as enquiry committee members. 12. On the other hand, the third respondent himself singed the enquiry report, which only indicates and drives this Court to come to a conclusion that the third respondent himself acted as an enquiry officer. Thus, it is manifestly clear that the action of the third respondent in acting against the petitioner in the disciplinary proceedings in different capacities is in violation of well established principle that 'no man can be a Judge in his own cause' and consequently, such action of the third respondent is in violation of principles of natural justice too. If an enquiry is contemplated against the petitioner based on the charge memo issued and the reply submitted by him, certainly, an independent enquiry officer ought to have been appointed by the third respondent to enquire into the charges levelled against the petitioner. In this case, the same was not done. But, on the other hand, the third respondent proceeded to terminate the petitioner based on the criminal court's conviction passed against him. At this juncture, it is relevant to note the order passed by the Hon'ble Apex Court in the Special Leave Petition filed by the petitioner. In its order, dated 23.09.2002, the Hon'ble Supreme Court had observed that any finding with regard to the validity of the marriage in a criminal prosecution under Section 498(A) of IPC may not be binding on the parties in other proceedings. Therefore, the third respondent, uninfluenced by the findings of the criminal Court, ought to have conducted a fair enquiry by appointing an independent enquiry officer. As the third respondent failed to conduct the enquiry by an independent enquiry officer, in my considered view, any finding rendered in the enquiry report submitted by the very same third respondent certainly not valid on the reason of bias and consequently based on such report, passing of the impugned order of termination cannot be sustained. As the third respondent failed to conduct the enquiry by an independent enquiry officer, in my considered view, any finding rendered in the enquiry report submitted by the very same third respondent certainly not valid on the reason of bias and consequently based on such report, passing of the impugned order of termination cannot be sustained. At any event, as the third respondent himself had acted in different capacities against the petitioner both as prosecutor as well as Judge to decide against the charge levelled against him, I find that there is a clear violation of principles of natural justice and consequently, the entire proceedings are vitiated. 13. I have already pointed out that the third respondent in spite of notice, has not chosen to appear before this Court and defend the case of the petitioner. However, the counter affidavit filed by the second respondent stated that the petitioner had filed earlier writ petition before this Court in W.P(MD)No.4693 of 2005 and the same was dismissed on 14.06.2005. It appears that the said writ petition was filed by the petitioner against the order granting prior permission by the second respondent on 04.04.2005 to terminate the service of the petitioner. However, the said writ petition was dismissed as infructuous on 14.06.2005 most likely in view of the fact that the order of termination itself came to be passed on 07.06.2005 in the meantime. Therefore, filing of the said writ petition and dismissal of the same would not stand in the way of the present writ petition being considered on merits. 14. It is further stated by the petitioner that while considering the revision filed by him in Crl.RC.No.752 of 2000, this Court modified the sentence only by taking note of the fact that the petitioner would loose his job, if he was sent to prison. It is also seen that a fine amount of Rs.1,00,000/- was paid by the petitioner on 31.07.2002, out of which, Rs.90,000/- was withdrawn by the said Amali as compensation. These facts are not disputed by the respondents. It is further stated by the petitioner that the said Amali also got divorce from the petitioner on 16.07.2004 in H.M.O.P.No.94 of 2003. Considering all these facts, I find that the third respondent ought to have conducted a proper enquiry before passing the order of termination. 15. These facts are not disputed by the respondents. It is further stated by the petitioner that the said Amali also got divorce from the petitioner on 16.07.2004 in H.M.O.P.No.94 of 2003. Considering all these facts, I find that the third respondent ought to have conducted a proper enquiry before passing the order of termination. 15. It is also contended by the learned counsel for the petitioner that the third respondent college got the approval from the second respondent based on certain facts, which are not subject matter of charge memo. He further pointed out that a perusal of the proceedings dated 04.04.2005, issued by the second respondent would disclose that a criminal case in C.C.No.45 of 1997 was referred to, whereas in the charge memo issued to the petitioner C.C.No.134 of 1995 alone was referred to. Therefore, according to the learned counsel for the petitioner no proper materials were placed before the second respondent before seeking prior permission for terminating the petitioner. As I am convinced on the grounds of violation of principles of natural justice as well as the violation of principle that 'no man can be a Judge in his own cause', I do not wish to go into all these contentions raised by the petitioner as well as other decisions relied on by him except those that are discussed hereunder. When the termination order itself is held to be bad on the grounds as stated supra, the approval granted by the second respondent cannot have any legs to stand. The appellate authority being the first respondent had also not considered all these aspects before rejecting the appeal filed by the petitioner. 16. The learned counsel for the petitioner in support of his contention relied on a decision reported in (2008)8 SCC 236 (cited supra) in which, the Hon'ble Supreme Court at paragraph 15 had observed that the enquiry must be conducted bona fide and care must be taken to see that the enquires do not become empty formalities. It is further observed therein that if an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should be not be the enquiry officer. 17. It is further observed therein that if an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should be not be the enquiry officer. 17. Likewise, in an another decision reported in (2009)11 SCC 84 (cited supra) the Hon'ble Apex Court had observed at paragraph 10 that a person should not be a judge in his or her own cause and it is further observed that a reasonable permutation of this principle is that no Judge should adjudicate a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on the part of the said Judge. 18. Recently, I have considered the very same principle in W.P (MD) Nos. 9148 of 2007 and 5305 of 2008 dated 08.01.2013 (C. Zophar Jothipaul Vs. The Chief Educational Officer and others) and observed that the person, who issued the charge memo and conducted the enquiry cannot pass an order of termination as all these acts amount to the violation of the well established principles of natural justice as well as the principle that no man should be a judge in his own cause. 19. Normally, this Court would have remitted the matter back to the third respondent to proceed against the petitioner afresh by conducting a fresh enquiry. However, by taking note of the facts that the petitioner was already punished by the Criminal Court and he also deposited the fine amount of Rs.1,00,000/-; that the de facto complaint also received a sum of Rs.90,000/- as compensation out of such find amount and that the petitioner and the said de facto complainant got divorced, I am not inclined to remit the matter back to the third respondent. 20. Considering all the facts and circumstances, I find every justification in allowing the writ petition and accordingly, the impugned orders are set aside and the writ petition is allowed. Consequently, the third respondent is directed to reinstate the petitioner into service, however, without back-wages, in view of the fact that he did not work during the period, in which he was not in service and also by applying the principle that 'No Work, No Pay'. Consequently, the third respondent is directed to reinstate the petitioner into service, however, without back-wages, in view of the fact that he did not work during the period, in which he was not in service and also by applying the principle that 'No Work, No Pay'. With the above observations, the writ petition is allowed. No costs.