Madras High Court
S.Messiahs Antony Durairaj vs The Government Of Tamil Nadu on 20 June, 2022
W.P.(MD).No.124 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.(MD).No.124 of 2018
and
W.M.P.(MD).No.132 of 2018
S.Messiahs Antony Durairaj ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Department of School Education,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
D.P.I. Campus, College Road,
Nungambakkam,
Chennai – 600 006.
3.The Chief Educational Officer,
Thoothukudi,
Thoothukudi District.
4.The District Educational Officer,
Thoothukudi,
Thoothukudi District.
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W.P.(MD).No.124 of 2018
5.Tuticorin Diocesan Association,
Represented by its President,
Bishop of Thoothukudi,
Bishop's House, Thoothukudi – 628 001.
6.The Corporate Manager of R.C. School,
Tuticorin Diocesan Association,
Catholic Bishop's House,
No.82, Great Cotton Road,
Thoothukudi – 628 001.
7.St.Mary's Higher Secondary School,
Represented by its Correspondent,
Pothakalanvilai – 628 702,
Thoothukudi District.
8.The Headmistress,
St.Mary's Higher Secondary School,
Pothakalanvilai – 628 702,
Thoothukudi District.
9.G.Mutharasu,
Advocate/Enquiry Officer,
No.459, New Additional Law Chambers,
High Court Buildings,
Chennai – 600 104. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records pertaining to the impugned Enquiry Report of the 9th respondent dated
09.10.2017 and the consequential dismissal order passed by the 6th respondent
in Ref.No.2017/224, dated 21.11.2017 dismissing the petitioner from service,
quash the same and direct the respondents to reinstate the petitioner into
services.
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W.P.(MD).No.124 of 2018
For Petitioner : Mr.R.Anand
for Mr.M.Saravanan
For R-1 to R-4 : Mr.V.Nirmal Kumar,
Government Advocate.
For R-5 to R-8 : Fr.V.John Kennedy
For R-9 : Mr.A.R.Kannappan
ORDER
On allegations of sexual abuse, the petitioner herein was implicated with
two charges through the show cause notice dated 05.09.2017 calling upon the
petitioner to render his explanation. Not being satisfied with the petitioner's
explanation dated 08.09.2017, a charge memo came to be issued on 21.09.2017.
On 23.09.2017, an enquiry officer was appointed, who had conducted an
enquiry into the allegations, before whom, the Management had marked three
evidences, namely, Exhibits A-1 to A-3 and examined two witnesses. On the
side of the delinquent, he had examined himself as a witness and had marked
two documents, namely, Ex.B1 and Ex.B2. Through the enquiry report dated
09.10.2017, both the charges were held to be proved, based on which, a
dismissal order was passed on 21.11.2017, which is under challenge in the
present Writ Petition.
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W.P.(MD).No.124 of 2018
2. The learned counsel for the petitioner raised a ground stating that the
enquiry officer's report is not in consideration of the evidences before him and
therefore, the consequential punishment requires to be set aside. He further
submitted that though two witnesses were shown in the annexure to the charge
memo, the victim girl, who is one among the two witnesses, was not examined.
3. On the other hand, the learned counsels appearing for the respondents
5 to 9 submitted that the enquiry was properly conducted and mere
non-examination of the victim girl cannot be a ground for interference. By
placing reliance on the statement given by the petitioner, they submitted that the
charges have been properly proved and therefore, the punishment of dismissal
is in proportion to the levelled charges.
4. I have given careful consideration to the submissions made by the
respective counsels.
5. A perusal of the enquiry report dated 09.10.2017 reveals that though
the report goes to above 11 pages, the finding is in just one paragraph at
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W.P.(MD).No.124 of 2018
Page 10. Apart from the recitals, the enquiry officer has narrated the marking
of the documents on either side, but without discussing as to how the charges
have been substantiated through the documents produced by the Management
as well as the statement of their witnesses, has simply come to the conclusion
that both the charges are held to be proved. Such a procedure in domestic
enquiry is opposed to the basic principles in service rules. The very
performance of conducting enquiry is to afford an opportunity to both the
parties and the enquiry officer is required to weigh the evidences in hand, both
oral and documentary and thereby, come to a conclusion as to whether the
levelled charges have been substantially proved. No doubt, such a decision can
be taken on an over all preponderance of probabilities. In the instant case, no
such subjective satisfaction has been arrived at by the enquiry officer.
6. Thus, I am of the view that since the charges against the petitioner
seem to be serious in nature, the ends of justice could be secured by remanding
back the matter to the Management for conducting a fresh enquiry from the
stage, after the petitioner had given his explanation to the initial show cause
notice and the consequential framing of charges. In view of such a decision,
this consequential punishment order cannot be sustained.
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W.P.(MD).No.124 of 2018
7. Insofar as the ground taken by the petitioner that the victim girl has not
been examined in the domestic enquiry, is concerned, the same would not be
fatal, since the material evidences came to be substantiated through the other
witnesses named in the charge memo. This apart, the Hon'ble Supreme Court,
in two decisions in the case of Avinash Nagra Vs. Navodaya Vidyalaya Samiti
and others reported in 1998 (4) L.L.N. 961 as well as in the case of State of
Haryana Vs. Rattan Singh reported in (1977) 2 L.L.N. 50, have disapproved
conduct of proceedings exposing the students and modesty of the girl and held
that, in a domestic enquiry, strict and sophisticated rules of evidence is not
applicable. These two decisions were relied upon by the Hon'ble Division
Bench of this Court in the case of S.Tamiljeselvan Vs. Registrar, Tamil Nadu
Central Administrative Tribunal, Chennai and others reported in 2006 (2)
L.L.N.272 and held that mere non-examination of victim does not render the
dismissal as violatory in the principles of natural justice, as the petitioner had
been given an opportunity to make his defence and participate in the enquiry.
The relevant portion of the order reads as follows:
“7. While dealing with a similar case, wherein
disciplinary proceedings were taken against a
post-graduate teacher to terminate the services on the
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W.P.(MD).No.124 of 2018
ground of his improper conduct with a girl student
wherein the delinquent teacher was not given an
opportunity to cross-examine and hence contended
that the procedure adopted was in violation of the
said legal principles of natural justice, the Supreme
Court, in the case of Avinash Nagra v. Navodaya
Vidyalaya Samiti and others reported in 1998 (4)
L.L.N. 961, approved of the decision of the High
Court confirming the order of dismissal. In the course
of its judgment, while emphasizing the necessity of
maintaining high degree of discipline and dedication
in a profession which is endowed with a
responsibility of imparting knowledge and moulding
the calibre, character and capacity of the students to
sustain them in later years of life as a responsible
citizen in different responsibilities, the Supreme Court
held:
“The fallen standard of the appellant
is the tip of the iceberg 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 in the coffin. It is
self-inspection and correction that is
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W.P.(MD).No.124 of 2018
supreme. It is seen that the rules wisely
devised have given the power to the
Director, the highest authority in the
management of the institution to take
decision, based on the fact-situation,
whether a summary enquiry was necessary
or he can dispense with the services of the
appellant by giving pay in lieu of notice.”
In the context of the facts found, the Supreme Court
approved of the decision of the Director not to
conduct the proceedings exposing the students and
modesty of the girl and to terminate the services of
the delinquent teacher, considering that the
statements were supplied to the delinquent officer and
an opportunity was granted to controvert the
correctness thereof. The Supreme Court approved of
the termination of the services of the officer.
8. Similar is the view taken by the Supreme
Court in the case of State of Haryana v. Rattan Singh
reported in 1977 (2) L.L.N. 50 wherein, the Supreme
Court held that in a domestic enquiry, the strict and
sophisticated rules of evidence under the Evidence
Act may not apply.”
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W.P.(MD).No.124 of 2018
“10.Viewed in the context of the evidence of the
various witnesses examined by the disciplinary
authorities, the inference drawn thereon cannot be
faulted now or reappreciated solely on the fact that
the complainant Amudha was not examined. As had
been held by the Supreme Court, the non-examination
of the said Amudha is not fatal to the case, since the
evidence on the strength of the other witnesses clearly
point to the fact that there was some evidence which
are good enough and relevant to the charge made
against the second respondent thus resulting in an
order of dismissal. In the above circumstances, we
have no hesitation in upholding the order of the
Tribunal.
11.We are of the view that there is no
fundamental error in the order of the Tribunal
confirming the order of dismissal. It is a settled
position that in departmental proceedings, the
disciplinary authority is the sole judge of the facts.
The technical rules of evidence have no application
in the case of a disciplinary enquiry. The
preponderance of probabilities and the material
records are sufficient to arrive at the conclusion by
the disciplinary authority; inasmuch as the petitioner
was given a fair and reasonable opportunity to make
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W.P.(MD).No.124 of 2018
his defence and participate in the enquiry, he cannot
complain of violation of the principles of natural
justice. Support for this can be drawn from the
decision of the Supreme Court reported in (2003) 2
L.L.N. 313 in the case of Lalit Popli v. Canara Bank
and others and 1999 (1) L.L.N. 1067, in the case of
Apparel Export Promotion Council v. A.K.Chopra.
12. The Tribunal is not an appellate forum nor
this Court under Article 226, to substitute its own
inferences or go into the sufficiency or adequacy of
evidence in support of the particular conclusion. On
going through the various aspects of the matter, we
are satisfied that there is no error committed, and the
evidence relied on by the disciplinary authority is
sufficient enough to support the conclusion arrived
at. There is no manifest error of law to interfere with
the order of the Tribunal.”
8. Viewed from the light of the aforesaid decisions, the petitioner shall
not insist that the victim girl in the present case, should be examined as a
witness. On the other hand, the enquiry officer can proceed with the
documentary and oral evidences, which are marked before him.
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W.P.(MD).No.124 of 2018
9. In the light of the above findings, the impugned order of punishment
dated 21.11.2017 is set aside and the matter is remitted back to the sixth
respondent for conducting a fresh enquiry. The sixth respondent is at liberty to
appoint a fresh enquiry officer, who shall commence the enquiry on the basis of
the show cause notice dated 05.09.2017, the petitioner's explanation dated
08.09.2017 and the subsequent charge memo dated 21.09.2017. The enquiry
officer shall extend due opportunity to the petitioner during the course of
enquiry and complete the enquiry at least within a period of three (3) months
from the date of receipt of a copy of this order. Both the petitioner as well as
the respondents herein are at liberty to make the documentary evidences already
produced in the earlier round of enquiry, for the present enquiry to be
conducted.
10. In view of the seriousness of the levelled charges, the petitioner will
not be entitled for reinstatement and will be deemed to be under suspension till
the final decision is taken in the matter.
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W.P.(MD).No.124 of 2018
11. This Writ Petition stands ordered accordingly. There shall be no
order as to costs. Consequently, connected miscellaneous petition stands
closed.
20.06.2022
Index : Yes / No
Internet : Yes/ No
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To
1.The Principal Secretary,
The Government of Tamil Nadu,
Department of School Education,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
D.P.I. Campus, College Road,
Nungambakkam,
Chennai – 600 006.
3.The Chief Educational Officer,
Thoothukudi,
Thoothukudi District.
4.The District Educational Officer,
Thoothukudi,
Thoothukudi District.
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W.P.(MD).No.124 of 2018
M.S.RAMESH, J.
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W.P.(MD).No.124 of 2018
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