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2015 DIGILAW 1148 (MAD)

J. James Anbiah v. Director of School Education

2015-02-26

T.RAJA

body2015
Judgment T. Raja, J. 1. The present writ petition has been filed by the petitioner seeking for issuance of a writ of certiorari to quash the charge memo issued by the third respondent / the Corporate Manager, Board of School Education, C.S.I.Kanyakumari Dioces, Kanyakumari, in his proceedings in CM.Lr.No.77/2013, dated 18.12.2013, by calling for the records connected thereto. 2. Mr.Ajmal Khan, learned Senior counsel appearing for the petitioner, submitted that the fourth respondent / the Correspondent, Duthie Girls Higher Secondary School, Nagercoil, is the competent authority to initiate disciplinary proceedings as per the Chapter VII of Rule 39.3 of the Constitution of Diocese, therefore, the impugned charge memo issued by the third respondent / the Corporate Manager, Board of School Education, Kanyakumari District, is liable to be set aside on the ground of want of jurisdiction. It is further submitted that the third respondent has only Administrative Control over the Management of this School, like General Supervision over all the schools in the Diocese and he shall communicate the decisions of the Board and it is for the fourth respondent to take disciplinary proceedings against the teaching and non-teaching staffs and thereafter, the third respondent will have to report the same to the Board for further action. Thus, the impugned charge memo issued by the third respondent is liable to be set aside. 3. It is further argued by the learned Senior counsel for the petitioner that it is binding on the part of the disciplinary authority to furnish the imputation of allegation, list of witnesses and list of documents along with the charge memo, but, such details have not been furnished by the disciplinary authority to the petitioner to defend his claim, therefore, the impugned charge memo issued by the third respondent does not stand to legal scrutiny. It is further contended that the Bishop, by his proceedings dated 03.03.2014, issued a show cause notice to the third respondent for his activities contrary to the provision of Chapter VII of Rule 39.3 of the Diocesan Constitution and, in the said letter, it is clearly mentioned that the third respondent has no jurisdiction either to pass a suspension order or to issue any charge memo against the teaching and non-teaching, therefore, on that basis, learned Senior counsel sought for quashing the impugned charge memo. 4. 4. Mr.Isaac Mohanlal, learned counsel appearing for the respondents 3 and 4, by filing a detailed counter affidavit, urged this Court to dismiss the writ petition on the premise that the petitioner has come to this Court with unclean hands. It is further submitted by the learned counsel for the respondents 3 and 4 that the petitioner was initially appointed as Office Assistant under the Management Staff category (un-aided) by the Corporate Manager and subsequently, he was appointed as Office Assistant in a regular aided post on 15.02.2006. After two years of his service, he was promoted as Record Clerk with effect from 24.03.2008. Since he was the lone male staff member working in the said school, he was entrusted with the duty of remitting the school's money in the Bank since 2010. But, the petitioner, taking advantage of one new appointee Mrs.Annie Mary, started to swindle a huge sum of Rs.13,43,000/- by manipulating the challans between 07.06.2013 and 17.08.2013. In view of the large scale misappropriation, that came to be discovered by the third respondent on his subsequent visit, the petitioner was issued with a suspension order in contemplation of enquiry into the grave charges. That apart, a criminal complaint was also registered against the petitioner under FIR No.89 of 2013, dated 27.11.2013, on the file of the District Crime Branch, Kanyakumari, under Sections 409, 468, 471 and 420 of IPC. Thereafter, it is submitted that the petitioner had also obtained anticipatory bail. 5. It is further contended that when the petitioner was suspended from service by the very same respondent on 21.08.2003 in contemplation of enquiry into the grave charges relating to the misappropriation to the tune of Rs.17 lakhs, he filed a writ petition No.27490 of 2013 before the Principal Bench of this Court taking a similar frivolous ground that the Corporate Manager has no authority to pass the order of suspension, since the power to suspend any staff in private recognized school is vested with the school committee. But, the Principal Bench of this Court, by order dated 04.10.2003, dismissed the said writ petition as not maintainable. But, wantonly, he contended, the petitioner has not even mentioned the above said facts in his affidavit filed in support of the present writ petition. But, the Principal Bench of this Court, by order dated 04.10.2003, dismissed the said writ petition as not maintainable. But, wantonly, he contended, the petitioner has not even mentioned the above said facts in his affidavit filed in support of the present writ petition. Secondly, when he filed another writ petition in W.P.No.29484 of 2003 before the Principal Bench of this Court seeking for a direction to reinstate him in service with effect from 21.10.2013 with all attendant benefits with 22% interest, the same was also dismissed by order dated 10.01.2014. Thereafter, he has also filed a writ appeal (SR) No.16429 of 2004 along with a petition in M.P.No.1 of 2014 to condone the delay of 94 days in filing the appeal, but, the same is pending at the notice stage. With these facts, learned counsel contended that the petitioner has not disclosed the above said facts in the writ petition, therefore, his claim to quash the impugned charge memo is liable to be rejected. 6. It is further contended that the third respondent, who is also the Secretary, on verification of the connected records, having been fully satisfied with the forgery found in the records, had issued a charge memo dated 18.12.2013 containing seven charges and thereby sought for his explanation within a period of seven days . On receipt of the said charge memo, the petitioner also submitted his reply dated 26.12.2013 and thereby sought for copies of Bank challans. Having not been satisfied with the explanations offered by the petitioner, the third respondent appointed a Five Member Enquiry Committee to enquire into the charges. Pending enquiry, the petitioner had already filed a writ petition as stated above challenging the order of suspension on the ground of lack of jurisdiction issued by the very same third respondent, therefore, he cannot once again file a frivolous writ petition before this Court, inasmuch as the Board of School Education has ratified the disciplinary action taken on the petitioner including the suspension and the charge memo vide its resolution dated 12.08.2014. With these submissions, he prayed for dismissal of the writ petition. 7. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 8. The petitioner was initially appointed as Office Assistant under the Management Staff category (un-aided). With these submissions, he prayed for dismissal of the writ petition. 7. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 8. The petitioner was initially appointed as Office Assistant under the Management Staff category (un-aided). Subsequently, he was appointed as Office Assistant in a regular aided post on 15.02.2006 by the Corporate Manager. After two years of service, he was promoted as Record Clerk with effect from 24.03.2008. The third respondent, on his visit to the School, verified the records, wherein he has found certain interpolations and forgeries in the records during 07.06.2013 to 17.08.2013. As the various amounts stated in the challans having not been properly remitted by the petitioner, he was issued with an order suspension dated 21.08.2003. Thereafter, a criminal complaint was also registered against him under FIR No.89 of 2013, dated 27.11.2013, on the file of the District Crime Branch, Kanyakumari, under Sections 409, 468, 471 and 420 of IPC. 9. Under these circumstances, the petitioner filed a writ petition No.27490 of 2013 challengin g the order of suspension on the ground that the Corporate Manager has no authority to pass the order of suspension, since the power to suspend any staff in private recognized school is vested with the school committee. But, the Principal Bench of this Court, by order dated 04.10.2003, dismissed the said writ petition on the premise that the writ petition is not maintainable against the order of the third respondent Corporate Manager, which is not a statutory authority. That apart, the petitioner also filed another writ petition in W.P.No.29484 of 2013 seeking for a direction to the respondents to reinstate him in service with effect from 21.10.2013 with all attendant benefits with 22% interest, but, the said writ petition also came to be dismissed by the Principal Bench of this Court, by order dated 10.01.2014. As against that, the petitioner preferred Writ Appeal (SR) No.16429 of 2014 along with a petition in M.P.No.1 of 2014 to condone the delay of 94 days in filing the appeal and that the same is also pending after issuing notice in the said petition. However, a mere perusal of the affidavit filed in support of the present writ petition shows that the petitioner has not disclosed the above said vital facts. However, a mere perusal of the affidavit filed in support of the present writ petition shows that the petitioner has not disclosed the above said vital facts. It is trite law that a person, who approaches the Court, should come with clean hands without suppressing any material facts and suppression of facts disentitles a person from claiming any relief. On this score, the prayer herein is liable to fall. 10. Further, a mere perusal of the Minutes of Meeting of the Special Board of School Education held on 12.08.2014 shows that the Board of School Education has ratified the disciplinary action initiated against the petitioner including the suspension and the charge memo. 11. Besides, in a similar and identical circumstances, I have held that the Corporate Manager has got all the powers of administration over all the schools. For better appreciation, the relevant portion of the order passed in W.P.(MD) No.16300 of 2014, dated 11.12.2014, is extracted hereunder: “4. Therefore, clause 20 of Chapter III clearly delineates the power of the Corporate Manager that he shall have all the powers of administration over all the schools, including the power to appoint teaching and non teaching staff to those institutions to give promotions, to effect transfers of any of the members of staff among those schools and to take disciplinary actions against them. As against the decision taken in respect of the disciplinary proceedings initiated against any of the staff by the Corporate Manager revision lies under Clause 44 under Chapter IV before the Bishop who is the General Manager of the Diocesan Schools. Under clause 45 of Chapter IV, extraordinary power has been given to the Bishop President. Therefore, as rightly contended by the learned counsel for the respondents 2 and 3 that the Correspondent is not competent authority although he is the person entitled to deal with the day today administration of the schools, the Corporate Manager has got all the powers over all the educational institutions under the corporate management as a single unit. 5. This Court keeping in mind that the Corporate Manager, the second respondent herein who has issued the impugned order of suspension has rightly issued the same as per the power conferred under clause 20 of Chapter III, is not inclined to entertain the writ petition. 5. This Court keeping in mind that the Corporate Manager, the second respondent herein who has issued the impugned order of suspension has rightly issued the same as per the power conferred under clause 20 of Chapter III, is not inclined to entertain the writ petition. If the petitioner is aggrieved by any such order is entitled to prefer a revision before the Bishop under clause 44 of the Rules and Regulations for Schools in the Corporate Management of the R.C.Diocese of Kottar. Hence, the writ petition fails and the same is dismissed.................” 12. Following the above said decision of this Court and also for the reasons stated supra, the writ petition filed by the petitioner, challenging the impugned charge memo issued by the third respondent Corporate Manager, fails and the same is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.