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2015 DIGILAW 3563 (MAD)

S. Thirumani v. State of Tamil Nadu, The Director of Legal Studies, Directorate of Legal Studies

2015-10-30

R.SUDHAKAR, V.M.VELUMANI

body2015
JUDGMENT V.M. VELUMANI, J. These writ appeals have been filed challenging the order dated 10.07.2015, made in W.P.(MD)Nos.4742 and 4740 of 2015. 2. Since common issues are involved in both the writ appeals, they are heard together and disposed of by this common Judgment. 3. The case of the appellants: (i) The appellants and two other students, viz., N.Sivaguru and M.Palanisamy, were studying III year in five years B.A., B.L., Degree course at Government Law College, Trichy. They were extending their support to the students, whenever they went on protest for the interest of students as well as for the interest of the Society and participated in those protest. (ii) Girl students in the ladies hostel were checked-up and searched to find out whether any student is having mobile phone in the hostel. Mrs. Krishna Leela, Assistant Professor/Deputy Warden of the ladies hostel of the College, exceeded her limit, by searching girl students, by removing their dress in front of other students. The entire college staged protest against Mrs. Krishna Leela, in a democratic way, for two days, i.e., on 15.10.2014 and 16.10.2014, condemning the atrocious activities of the Assistant Professor/Deputy Warden. The appellants also participated in the said protest. (iii) The appellants and other students came to know that somebody has sent obscene messages to Mrs. Krishna Leela, Assistant Professor/Deputy Warden, through mobile phone. She gave a complaint on 14.09.2014 and the same was registered in Crime No. 65 of 2014, on the file of Cantonment All Women Police Station, Trichy, on 10.11.2014. (iv) The appellants were not aware of the FIR registered against some persons, for the alleged occurrence, that took place in the intervening night of 13.09.2014 and 14.09.2014. The appellants were regularly attending classes. S.Thirumani [Appellant in W.A.(MD) No.892 of 2015] came to know that his Roommates, viz., A.Saravana Bava [Appellant in W.A.(MD) No.990 of 2015] and Palanisamy were arrested on 17.12.2014 at the College gate and produced before the learned Judicial Magistrate No.II, Trichy, and remanded to judicial custody. Subsequently, they were released on bail. Thereafter, it came to be known that they were arrested on the allegation that somebody sent obscene messages to Mrs. Krishna Leela, using the mobile phone of Palanisamy, roommate and friend of Sivaguru and Saravana Bava [Appellant in W.A.(MD) No.990 of 2015]. Subsequently, they were released on bail. Thereafter, it came to be known that they were arrested on the allegation that somebody sent obscene messages to Mrs. Krishna Leela, using the mobile phone of Palanisamy, roommate and friend of Sivaguru and Saravana Bava [Appellant in W.A.(MD) No.990 of 2015]. (v) N. Sivaguru, a Roommate, confessed that he only sent the controversial messages and made phone calls to Mrs. Krishna Leela, Assistant Professor/Deputy Warden. While so, a show cause notice, dated 02.02.2015, was issued to the appellants, Palanisamy and Sivaguru, calling upon them to submit their explanations within 48 hours. After getting extension of time, they submitted their explanations on 12.02.2015. (vi) The second respondent without conducting any enquiry and without affording any opportunity to the appellants and two other students, dismissed the appellants and others, by order dated 06.03.2015. The said order is arbitrary and passed in violation of the principles of natural justice. In such circumstances, the appellants and other two students, viz., N.Sivaguru and M.Palanisamy, filed W.P.(MD)Nos.9323 and 4740 to 4742 of 2015, seeking to quash the said order of dismissal from the College and direct the respondents to re-admit them in III year B.A., B.L. Degree course in the academic year 2014-2015, in the second respondent College and allow them to continue their studies. 4. The case of the respondents: (i) The second respondent filed common counter affidavit in all the four writ petitions. Mrs. Krishna Leela, Assistant Professor/Deputy Warden, got an information that two students, viz., Ms.Vaisnavi and Ms.Radhika, III year B.A., B.L., Degree course, were using mobile phones, on 11.09.2014. Their parents were asked to meet the Principal of the College on 12.09.2014. In the meeting, it was found that the mobile phone, which was used by Ms.Vaisnavi, was given to her by one student, viz., N.Sivaguru, III year B.A., B.L., Degree course. (ii) On 13.10.2014, a meeting was held in the hostel to find out who were all using mobile phones and to enlighten the students about the ill-effects of the practice of using mobile phones. Due to which, an agitation was called for by the students on 15.10.2014, seeking permission to use mobile phones in the hostel. The said issue was settled. (iii) In the meanwhile, Mrs. Krishna Leela, received calls from Mobile No.+91 9543642926, abusing her in filthy language and she was threatened with continuous SMS., which were vulgar and obscene. Due to which, an agitation was called for by the students on 15.10.2014, seeking permission to use mobile phones in the hostel. The said issue was settled. (iii) In the meanwhile, Mrs. Krishna Leela, received calls from Mobile No.+91 9543642926, abusing her in filthy language and she was threatened with continuous SMS., which were vulgar and obscene. She gave a complaint to the Police through the Principal of the college. She also gave another complaint on 16.09.2014, that one face book account was opened in her name and her mobile phone number was found in that account. Based on the said complaints, investigation was started by Cyber Cell of Police. After complaints to the police, a separate departmental enquiry committee was constituted by the second respondent to enquire about the complaint. (iv) After thorough enquiry, the police registered an FIR in Crime No.65 of 204, for the offences punishable under Section 354 D of IPC r/w Section 4 of Women Harassment Act, 1998 and Section 67 of the Information Technology Act, 2008. On 17.12.2014, two students, viz., Palanisamy and Saravana Bava [Appellant in W.A.(MD) No.990 of 2015] were arrested. Show cause notices were issued to four students, viz., the appellants, Palanisamy and Sivaguru. They submitted their explanations on 05.01.2015. An interim report, dated 09.01.2015, was submitted by the Enquiry Committee. Based on the said report, Sivaguru was suspended from the College. The Enquiry Committee submitted its final report on 22.01.2015, holding that Palanisamy, Sivaguru and the appellants have indulged in the activities mentioned in the complaint of Mrs. Krishna Leela, Assistant Professor/Deputy Warden. (v) The second respondent issued second show cause notice, dated 02.02.2015. As requested by the appellants and two other students, copies of documents pertaining to the disciplinary action, were given to them. (vi) The appellants and Palanisamy submitted their explanations on 06.02.2015 and 12.02.2015. Sivaguru submitted his explanation, through his parents on 09.02.2015. The explanations submitted by the appellants and other two students were considered and it was found that statements made therein were afterthoughts and the said explanations were not satisfactory. The second respondent, by order dated 06.03.2015, expelled the appellants and other two students from the College. (vii) The appellants and other two students were given ample opportunities in the disciplinary proceedings and principles of natural justice were followed. The second respondent, by order dated 06.03.2015, expelled the appellants and other two students from the College. (vii) The appellants and other two students were given ample opportunities in the disciplinary proceedings and principles of natural justice were followed. Final orders of expulsion were passed not just for having friendship with Sivaguru, but due to the proven serious misconducts. The appellants and others jointly conspired to commit the serious misconduct and prayed for dismissal of the writ petitions. 5. The learned Single Judge, after considering the pleadings, the materials available on record, the Judgments relied on by the learned counsel for the appellants and other two writ petitioners and the arguments of the learned counsel appearing for the parties, dismissed all the four writ petitions, by a common order, dated 10.07.2015. 6. Against the said order dated 10.07.2015, the appellants alone have filed the present appeals. It is submitted that the other students did not file any appeal. 7. The learned counsel for the appellants contended; (i) that the second respondent, without following due process of law and in violation of the principles of natural justice, had passed the order, dated 06.03.2015; (ii) that the learned Single Judge failed to consider that the incident took place in the intervening night of 13.09.2014 and 14.09.2014 and the complaint was given on 14.09.2014, but FIR was registered only on 10.11.2014 and this delay in registering FIR was not explained; (iii) that the second respondent initiated action against the appellants and two other students, only because they led some strike in the College; (iv) that nine persons were occupying the room, but action was taken only against four persons; (v) that one Sivaguru has confessed that he alone was responsible for making phone calls and sending SMS, and therefore, the second respondent erred in taking action against others also; and (vi) that the Enquiry Committee submitted only interim report and the second respondent can take action only when the Enquiry Committee submits its final report and therefore, the punishment imposed is disproportionate to the misconduct alleged against the appellants. 8. In support of his submissions, the learned counsel for the appellants relied on the Judgment of the Karnataka High Court reported in AIR 1997 KARNATAKA 261 [T.T.Chakravarthy Yuvaraj and others Vs. Principal, Dr.B.R.Ambedkar Medical College], wherein at paragraph 17, it has been held as follows: “17. 8. In support of his submissions, the learned counsel for the appellants relied on the Judgment of the Karnataka High Court reported in AIR 1997 KARNATAKA 261 [T.T.Chakravarthy Yuvaraj and others Vs. Principal, Dr.B.R.Ambedkar Medical College], wherein at paragraph 17, it has been held as follows: “17. In inflicting appropriate punishment, certain aspects have to be borne in mind. When the relationship of the Head of the Institution and the student is that of a parent and child, the punishment imposed should not result in any retribution or give vent to a feeling of wrath. The main purpose of punishment is to correct the fault of the student concerned by making him more alert in future and to hold out a warning to other students to be careful, so that they may not expose themselves to similar punishment and the approach is that of a parent towards an erring or misguided child. In order to not to attract the criciticm that the action is a result of arbitrariness, it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Certainly one cannot rationally or justly impose the same penalty for giving a slap to the one imposed for homicide. Unless the disciplinary authority reaches the conclusion that haying regard to the nature of the misconduct it would be totally unsafe to retain them in the college, the maximum penalty of expulsion from the college should not be imposed. If a lesser penalty can be imposed without jeopardising the interest of the college, the disciplinary authority cannot impose a maximum penalty of expulsion from the college. The concerned Head of the Institution must necessarily have an introspection and a rational faculty as to why lesser penalty cannot be imposed. In doing so, it should also be borne in mind that when the maximum penalty is imposed total ruination stares one in the eye rendering such student a vagabond as being unwanted both by the parents and the educational institution. Frustration that would result would seriously jeopardise young life. Every harsh order results in bitterness and arouses a feeling of antagonism and many a time turn a student into an anti-social element and in that way it results in more harm than good to the Society.” 9. Frustration that would result would seriously jeopardise young life. Every harsh order results in bitterness and arouses a feeling of antagonism and many a time turn a student into an anti-social element and in that way it results in more harm than good to the Society.” 9. Per contra, Mr.VR.Shanmuganathan, learned Special Government Pleader, appearing for the respondents contended that enquiry was conducted as per the Rules and Regulations, complying with principles of natural justice. The appellants and other students were given ample opportunities in the enquiry and all the documents sought for by the appellants were furnished. The serious misconducts committed by the appellants and other two students were proved in the enquiry and the punishment imposed is proper and in consonance with the serious misconduct committed by the appellants and other two students. 10. We have carefully perused the materials available on record and the order of the learned Single Judge and heard the learned counsel for the appellants and the learned Special Government Pleader for the respondents and considered the arguments put forth by them. 11. The appellants and other two students were charged that they committed serious misconduct, by calling Mrs. Krishna Leela, Assistant Profeesor/Deputy Warden, on her mobile phone, in the intervening night of 13.09.2014 and 14.09.2014 and abused her with vulgar words. When she did not attend phone calls, continuous vulgar SMS were sent to her mobile phone. On 14.09.2014, she gave a complaint to the Cyber Crime Police. She also gave another complaint on 16.09.2014 that one face book account was opened in her name and her mobile phone number had been given in that account. After enquiry, an FIR was registered in Crime No.65 of 2014, on 10.04.2014, by Cantonment All Women Police, Trichy. 12. In the investigation conducted by the Cyber Crime Police, it was found that threatening phone calls and vulgar obscene messages were made from the mobile phone belonging to Palanisamy. The said Palanisamy was having number of mobile phones. Palanisamy and Saravana Bava [Appellant in W.A.(MD)No.990 of 2015] were using number of Sim cards. Most of them obtained without any I.D. Proof. They were arrested and remanded to judicial custody. S.Thirumani [Appellant in W.A.(MD)No.892 of 2015] met them while they were in judicial custody. They instructed him to destroy the mobile phone used for making calls and sending vulgar SMS to Mrs.Krishna Leela, Assistant Professor/Deputy Warden. Most of them obtained without any I.D. Proof. They were arrested and remanded to judicial custody. S.Thirumani [Appellant in W.A.(MD)No.892 of 2015] met them while they were in judicial custody. They instructed him to destroy the mobile phone used for making calls and sending vulgar SMS to Mrs.Krishna Leela, Assistant Professor/Deputy Warden. It was admitted by S.Thirumani [Appellant in W.A.(MD) No.892 of 2015] that he was using the said mobile phone. He was instructed by Saravana Bava and Sivaguru, to destroy the said mobile phone, otherwise he would also be traced and arrested. On such instructions by Sivaguru and Saravana Bava, S.Thirumani [Appellant in W.A.(MD) No.892 of 2015], had broken the mobile phone. Subsequently, he produced the broken parts to the second respondent. Those admitted facts clearly reveal that the appellants, Palanisamy and Sivaguru colluded together and committed serious misconduct, which is also a serious criminal offence. 13. The Enquiry Committee constituted by the second respondent enquired into the issue elaborately and gave opportunities to the appellants as well as the other students viz., Palanisamy and Sivaguru to put forth their case. Only after considering the entire evidence and materials placed before them, the Enquiry Committee submitted interim report, dated 09.01.2015 and final report, dated 22.01.2015. In the reports, the Enquiry Committee has opined that the appellants, Palanisamy and Sivaguru were guilty of serious misconduct. The second respondent has furnished all the materials to the appellants and other two students and called for their explanations. After considering the enquiry report and the explanations, the second respondent, by order dated 06.03.2015, has expelled the appellants, Palanisamy and Sivaguru. The second respondent has dealt with the issue elaborately and then only, passed the orders impugned in the writ petitions, expelling the appellants and other students from the College. 14. The materials available on record, the report of the Enquiry Committee and the impugned order of the second respondent clearly reveal that principles of natural justice have been followed and the appellants and others were fully participated in the enquiry. They did not complain, during the enquiry, that they were not given sufficient opportunity to defend their case. In the circumstances, the contentions of the learned counsel for the appellants that the appellants were not given opportunity to defend themselves and principles of natural justice were not followed, are untenable and unsustainable and contrary to the facts. 15. They did not complain, during the enquiry, that they were not given sufficient opportunity to defend their case. In the circumstances, the contentions of the learned counsel for the appellants that the appellants were not given opportunity to defend themselves and principles of natural justice were not followed, are untenable and unsustainable and contrary to the facts. 15. The learned counsel for the appellants contended that the appellants were expelled only because they were roommates of Sivaguru, who confessed that he only made threatening calls and sent SMS and the appellants are innocents and they have nothing to do with the alleged misconduct. This contention has no force, as the appellants were in possession and using the mobile phone and committed misconduct. S.Thirumani [Appellant in W.A.(MD) No.892 of 2015] had broken the said mobile phone, as per the instructions of Sivaguru and Saravana Bava [Appellant in W.A.(MD) No.990 of 2015]. S.Thirumani [Appellant in W.A.(MD) No.892 of 2015] admitted that he met Palanisamy and other students while they were in judicial custody and broke the mobile phone, as per their instructions. Whereas Palanisamy and Saravana Bava have stated that none met them while they were in judicial custody. Saravana Bava [Appellant in W.A.(MD) No.990 of 2015] was in possession of 11 Sim cards and most of them were obtained without any I.D. Proof. From those facts, it is clear that the appellants have not come with true facts, but trying to put blame only on Sivaguru. 16. The above facts, the finding of Enquiry Committee and the impugned order of the second respondent would make it clear that the appellants, Palanisamy and Sivaguru conspired together and committed the misconduct and the finding of the Enquiry Committee is based on facts. 17. The learned counsel for the appellants contended that the punishment of expelling the appellants and others from the College is disproportionate to the misconduct alleged to have been committed by the appellants and others. Relying on paragraph 17 of the Judgment reported in AIR 1997 KARNATAKA 261 [T.T.Chakravarthy Yuvaraj and others Vs. Principal, Dr.B.R.Ambedkar Medical College], learned counsel for the appellants submitted that the punishment may be modified as expulsion for three years, at the most. 18. The appellants and others are not eligible for such leniency. The Judgment relied on by the learned counsel for the appellants is not applicable to the facts of the present case. Principal, Dr.B.R.Ambedkar Medical College], learned counsel for the appellants submitted that the punishment may be modified as expulsion for three years, at the most. 18. The appellants and others are not eligible for such leniency. The Judgment relied on by the learned counsel for the appellants is not applicable to the facts of the present case. In the present case, the appellants and others have conspired together and sent vulgar and obscene messages and made phone calls, threatening Mrs. Krishna Leela, Assistant Professor/Deputy Warden, their own teacher. They have deliberately committed serious misconduct, when their teacher only tried to shape the character of her students, so that they can be successful and shine in their profession. 19. The learned Single Judge has elaborately dealt with the meaning of “Guru” and their status. We are in entire agreement with the view of the learned Single Judge. In view of the serious misconducts deliberately done by the appellants and others against their Professor, the second respondent has rightly imposed the punishment, by expelling them from the College. 20. In view of the facts referred to above and the seriousness of the misconduct committed by them, we find there is no reason to modify the punishment. There is no infirmity in the order passed by the learned Single Judge, warranting our interference. 21. In the result, the writ appeals are dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petitions are also dismissed.