CoramThe Honourable Mr v. The Inspector of Matriculation Schools

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25-4-2007CoramThe Honourable Mr.Justice K. VENKATARAMANWRIT PETITION No.6034 of 2007andM.P.Nos.1, 2 and 4 of 2007S.Girija .. PetitionerVs.1. The Inspector of Matriculation Schools, Egmore, Chennai-8.2. The Trustee, Janaki Ramachandran Education and Charitable Trust, No.80, Doraiswamy Road, Vadapalani, Chennai 600 026. .. Respondents Writ Petition filed under Article 226 of the Constitutionof India praying to issue a writ of certiorarified mandamus asstated therein. For Petitioner : Mr.R.Muthukumarasamy, S.C. For Mr.V.Kuberan, For M/s.Rank Associates. For Respondent-2 : Mrs.Chitra Sampath ... O R D E RBy consent of both the counsels, the Writ petitionitself is taken up for hearing.2. The present Writ Petition has been filed forissuance of a writ of certiorarified mandamus calling for therecords of the second respondent, culminating in the order ofthe petitioner's termination dated 3.2.2007, quash the same andfurther directing the second respondent to reinstate thepetitioner in the same position which the petitioner washolding on the date of termination in Janaki RamachandranMatriculation School, at No.112, North Mada Street, Vadapalani,Chennai-600026. https://hcservices.ecourts.gov.in/hcservices/

3. The short matrix of the matter is as follows. Thepetitioner is in services of Janaki Ramachandran MatriculationSchool as Vice Principal. Originally, the petitioner wasappointed by the proprietor of the School, Mrs.Seetha Devi.After taking over the management of the school by the secondrespondent, there has been several disputes that have arisenbetween him and his other family members which have resulted invarious court proceedings touching the management of theschool. The teaching and non-teaching staff were also madesubject to various problems. The staff have also filed thepolice complaint against the second respondent, apart frominitiating legal proceedings. The petitioner was also a partyto the said proceedings. While so, the Principal, thepetitioner's immediate superior in the school, instructed herto open a bank account jointly along with her for safedepositing of school funds until the disputes and issues raisedin the suit in C.S.No.267 of 2005 on the file of this Court isdecided. The petitioner has adhered to the said direction andjoined her in opening the bank account. The account was openedin her official capacity as Vice Principal. No money from thesaid account was withdrawn by her. Opening of the account wastermed as misconduct by the second respondent and a letterdated 28.11.2006 was sent to her by the second respondentcalling upon the petitioner to furnish the entire accountdetails, failing which disciplinary action has been threatenedagainst her. 4. It is the further case of the petitioner that shehas handed over the said letter to the Principal of the schoolwho informed her that in the course of the court proceedings,the entire details and sum deposited in the account will behanded over to the second respondent. While so, the secondrespondent stopped paying salary to the petitioner fromNovember, 2006 and informed her by a letter dated 1.12.2006that the salary is being withheld as a lien for the realisationof the alleged amounts that may be found recoverable from her.But, to her shock and surprise, the second respondent issued aletter dated 22.1.2007 purposed to be a show cause noticecalling upon her to show cause as to why she should not bedismissed from service for misappropriation of funds of theschool and for certain alleged activities adverse to the Trustand serious misconduct and gross insubordination. Thepetitioner has sent a detailed explanation to the said noticedated 29.1.2007. Immediately, upon receipt of the said reply,it is averred that without any personal hearing or enquiry, thesecond respondent had summarily terminated the petitioner'sservices by letter dated 3.2.2007 with effect from 5.2.2007.The petitioner has filed the statutory appeal before the firstrespondent. Originally, the petitioner filed the Writ Petitionfor mandamus directing the first respondent to take up theappeal dated 7.2.2007 filed by her challenging the order of https://hcservices.ecourts.gov.in/hcservices/ termination dated 3.2.2007 passed by the second respondent onhis file and dispose of the same as per law. But, later, thepetitioner has amended the prayer which has been set outearlier.5. The second respondent filed the affidavit alongwith an application to vacate the order of stay granted by thisCourt. In the said affidavit, it has been averred that afterthe demise of late P.Narayanan, former Trustee, father of thesecond respondent, in the year 2004, the Principal of the saidschool, his sister Miss Banu, joined hands with his motherSmt.Seethadevi and started claiming interests adverse to theinterest of the Trust and the institution by filing legalproceedings compelling the second respondent to protect theinterest and welfare of the Trust and the institution by filinglegal proceedings. Since the bank account has been opened bythe petitioner along with the Principal, notice was issued tothe petitioner on 28.11.2006 calling upon her to furnish allthe details regarding the account which has been opened by herwith his sister Miss Banu. A reply has been sent by thepetitioner on 8.12.2006. Not satisfied with the reply, a showcause notice was issued to her on 22.1.2007 calling upon her tosubmit an explanation as to why she should not be dismissedfrom service for various of acts of omissions and commissions.Since the reply by the petitioner dated 29.1.2007 was notsatisfactory, the petitioner was terminated from service.Further, it has been averred that the principles of naturaljustice have been followed and an opportunity has been given tothe petitioner to explain her conduct before passing the orderof termination. Further, it has been stated in the saidaffidavit that since the petitioner has not requested for anypersonal hearing or enquiry, no enquiry has been conducted.6. On this set of facts, now it has to be seen thearguments that have been advanced on the side of the petitioneras well as the second respondent.7. Mr.R.Muthukumarasaamy, the learned senior counselappearing for the petitioner contended as follows:-(a) The entire proceedings initiated against thepetitioner and that led to the order of termination passedagainst the petitioner is due to the struggle for power betweenthe family members for the management of Trust and its school.It has cost the petitioner.(b) The opening of the bank account jointly in thename of the Principal and Vice Principal, the petitionerherein, at the instance of the Principal, none else than thesister of the second respondent, cannot be said to beinsubordination or misappropriation of funds. https://hcservices.ecourts.gov.in/hcservices/ (c) Though in the show cause notice, opening of thebank account has been termed as misconduct, gross violation ofduty, breach of trust besides guilty of misappropriation andsiphoning of the funds of the school, but what led to thepassing of the final order of termination, as could be seenfrom the impugned order, is that the reply to the show causedemonstrates insubordination and denial of the secondrespondent's right to the school funds while insisting uponpayment of salaries of the teachers of the school. Thus, thecause of action for the issuance of the show cause notice hasvanished while passing the final order of termination.(d) The impugned order has been passed without anyenquiry or personal hearing, which is violative of theprinciples of natural justice.8. Per contra, Mrs.Chitra Sampath, the learnedcounsel appearing for the second respondent submitted asfollows:-(a) The petitioner has filed the Writ Petitionoriginally for mandamus seeking direction against the firstrespondent for disposal of the appeal and later the prayer hasbeen modified as one of certiorari which is not maintainable.Since the petitioner already invoked the alternative remedy byfiling an appeal before the first respondent, she cannotmaintain the present Writ Petition. (b) Since the petitioner did not ask for enquiry orpersonal hearing, no enquiry has been conducted by the secondrespondent. Having failed to ask for an enquiry or personalhearing, it is not open to the petitioner to say that thesecond respondent has not given any opportunity to thepetitioner to put forth her case by conducting enquiry orpersonal hearing. By referring Section 20 of the Code ofRegulations for Matriculation Schools, the learned counselfurther submitted that unless and otherwise, personal hearingor enquiry is sought for, there need be no enquiry.(c) The second respondent has made out a prima faciecase against the petitioner and the opening of bank account isa clear case of insubordination, misconduct andmisappropriation of funds. 9. Mr.R.Muthukumarasamy, the learned senior counselappearing for the petitioner, by way of reply has submitted asfollows:-(a) Though there is an alternative remedy availableunder the Regulation for filing an appeal before the firstrespondent and that an appeal has been preferred by thepetitioner, since there is a procedural irregularity and that https://hcservices.ecourts.gov.in/hcservices/ the order of the second respondent is perverse and irrational,the prayer has been amended to one of certiorari which isperfectly valid in law.(b) Since the second respondent passed the impugnedorder in gross violation of the principles of natural justice,the petitioner was constrained to file the writ petitionoriginally for mandamus, but later amended the prayer as one ofcertiorari. 10. I have heard Mr.R.Muthukumarasamy, the learnedsenior counsel appearing for the petitioner and Mrs.ChitraSampath, the learned counsel appearing for the secondrespondent.11. The first and foremost point that has to beanswered in this Writ Petition is whether the Writ Petition ismaintainable in view of the alternative remedy available to thepetitioner and especially when the petitioner has alreadyavailed the same by filing an appeal before the firstrespondent. It is the case of the petitioner that thepetitioner was terminated from service without any enquirythereby violating the principles of natural justice and not inall cases, rule of exclusion of jurisdiction can be invokedsaying availability of alternative remedy. The alternativeremedy is a rule of discretion and not one of compulsion. InWHIRLPOOL CORPORATION v. REGISTRAR OF TRADE MARKS, MUMBAI(1998 (1) S.C.C. 1), the Apex Court has held at least in threecontingencies, the High Court can exercise its jurisdiction,namely,(i) where the writ petition seeks toenforce any of the fundamental rights;(ii) where principles of natural justicehas been violated;(iii) When the orders have been passedwholly without jurisdiction.12. In the case on hand, it is the case of thepetitioner that there is a violation of the principles ofnatural justice and hence, the Writ Petition cannot be thrownout only on the ground that the petitioner can seek alternativeremedy and that already the alternative remedy has beenavailed. The alternative remedy can never be a rule of law.Further, this Court can go into the aspect whether thepetitioner has made out a case, that too a strong case, andthat there exists a good ground to invoke an extraordinaryjurisdiction. The Apex Court in a number of cases includingthe case reported in AIR 1966 S.C. 1090 (K.S. VENKATARAMAN ANDCOMPANY (PRIVATE) LTD v. STATE OF MADRAS) has held thatArticle 226 of the Constitution of India confers on all theHigh Courts a very wide power in the matter of issuing writs.However, the remedy of writ is an absolutely discretionary https://hcservices.ecourts.gov.in/hcservices/ remedy and the High Court has always the discretion to refuseto grant any writ if it is satisfied that the aggrieved partycan have an adequate or suitable relief elsewhere. The Court,in extraordinary circumstances, may exercise the power if itcomes to the conclusion that there has been a breach ofprinciples of natural justice or procedure required fordecision has not been adopted. Thus, the Writ Petition cannotbe thrown out merely on the ground that alternative remedy isavailable to the petitioner. In this backdrop, let me seewhether there is any violation of the principles naturaljustice in the case on hand.13. According to the learned senior counsel, sincethe petitioner has disputed the allegation made against her inthe show cause notice, before taking any action, the secondrespondent should have conducted an enquiry. On the otherhand, Mrs.Chitra Sampath, the learned counsel appearing for thesecond respondent, contended that as per Section 20 of the Codeof Regulation for Matriculation Schools in Tamil Nadu, themanagement has power to terminate the services of a teacher ora member of non-teaching staff without notice for any of thereasons, namely, willful negligence of duty, seriousmisconduct, gross insubordination, etc. Since the petitionerhas been terminated for serious misconduct and grossinsubordination, no notice or enquiry is needed. Further, untiland otherwise personal hearing or conduct of an enquiry issought for, the management need not conduct an enquiry or callfor personal hearing. On the other hand, the learned seniorcounsel appearing for the petitioner contended that thoughpersonal hearing or enquiry has not been asked for by thepetitioner, in view of the fact that the petitioner denied theallegations made against her in her reply, the secondrespondent ought to have conducted an enquiry before passingthe final order of termination, especially when the secondrespondent has considered the reply by the petitioner to theshow cause notice as insubordination.14. As rightly pointed out by the learned seniorcounsel appearing for the petitioner, when the petitioner hasdisputed the allegations made against her in the reply to theshow cause notice and sought to explain why bank account hasbeen opened, it is all the more essential to conduct an enquirybefore passing the final order of termination against a personwho served in the school for more than 27 years. Further, ithas to be seen that what led to the passing of the order oftermination, as could be seen from such order, is that thereply to the show cause notice has been considered asinsubordination. While so, all the more an opportunity shouldhave been given to the petitioner to put forth the circumstancethat led to the reply and how it has been taken asinsubordination. Thus, the failure to give an opportunity tothe petitioner is a gross violation of the principles of https://hcservices.ecourts.gov.in/hcservices/ natural justice which requires interference by this Court underArticle 226 of the Constitution of India.15. Then, we have to see the background in which theshow cause notice has been issued and which has culminated inthe final order of termination and the opening of the bankaccount by the petitioner be termed as insubordination, etc.It is an admitted case that the father of the second respondentwas running the Trust and the school. After his demise,dispute seems to have arisen between the second respondent onthe one hand and his mother and his sister, the Principal ofschool on the other hand. Some proceedings are pendingbetween them before this Court on the Original side and beforethe City Civil Court, Chennai. On this backdrop, it has to beseen whether opening of the bank account by the petitioner atthe instruction of the said Miss Banu, the Principal of theschool, the sister of the second respondent, isinsubordination. It has been urged by the learned seniorcounsel appearing for petitioner that the bank account has beenopened in the name of the Principal and the Vice Principal onthe instruction of the Principal of the school. The opening ofthe account per se cannot be termed as insubordination sincethe said account has been opened at the instance of thePrincipal of the school. At best, it can be said that thepetitioner is caught in the in-fight between the secondrespondent on the one hand and her sister, the Principal of theschool on the other hand. In between their dispute, thepetitioner has been made as a scapegoat. If the petitioner hasrefused to open the bank account, the the Principal of theschool would have taken action against her for insubordination.16. It has to be seen further that though the showcause notice refers about the misappropriation of funds andserious misconduct, the order of termination does not referabout any misappropriation of funds or misconduct. The orderof termination only says that the reply demonstrates a clearcase of insubordination. If there is an allegation ofinsubordination, which led to the show cause notice, then theorder of termination shall say what is the insubordination.But, the order of termination reads that the reply is a clearcase of insubordination. In case if the reply that has beengiven by the petitioner contains certain averment which isinsubordination, then the petitioner shall be given anopportunity to explain why such reply has been given. But, thereply itself has been taken as an insubordination. Thus, it iscrystal clear that though the insubordination has been cited asa cause that led to issuance of the show cause notice in thefinal order of termination that has been given a go-bye and thereply to the show cause notice alone has been termed asinsubordination. Thus, the cause of action existed before theissuance of show cause notice, which led to such notice, doesnot seem to be the reason for the order of termination. Though https://hcservices.ecourts.gov.in/hcservices/ the persuasive argument of Mr.R.Muthukumarasamy, the learnedsenior counsel appearing for the petitioner is resisted byMrs.Chitra Sampath, the learned counsel appearing for thesecond respondent, through her efficient and effectiveargument, I am unable to uphold the impugned order of thesecond respondent.17. For the foregoing discussions made above and thereasonings set out by me earlier, I am constrained to come tothe following irresistible conslusion:-(a) First of all, it has to be seen that there isalready dispute between the second respondent on the one handand his mother and sister on the other hand relating to theTrust and running of the school. In the said backdrop, thepetitioner was caught between them which led to the entireaction against her.(b) Opening of an account by the petitioner, the VicePrincipal of the school, jointly with the Principal of theschool, at her instance cannot be considered as misconduct orinsubordination.(c) It is not the case of the second respondent thatthe petitioner misappropriated the funds by opening the bankaccount. Though in the show cause notice, it is said aboutmisappropriation of funds, the show cause notice does not statewhat is misappropriation and and how much amount has beenmisappropriated by the petitioner. Furthermore, the order oftermination does not reveal or does not state that thepetitioner has been terminated in view of misappropriation offunds. Misappropriation is not the ground on which the orderof termination has been passed. (d) Though the show cause notice refers about severalcharges including insubordination, misconduct,misappropriation, etc., the order of termination reveals thatthe reply of the petitioner alone has been taken asinsubordination, which led to the passing of the impugned orderof termination. (e) In view of the above referred facts and in thebackground of the matter, it would have been more appropriatefor the second respondent that before passing the impugnedorder of termination, an opportunity should have been given tothe petitioner by conducting an enquiry or holding personalhearing. The failure to do so is violative of the principlesof natural justice which requires consideration by this Court.(f) In view of the extreme action taken by thesecond respondent in terminating the petitioner who has put inmore than 27 years of service, the petitioner should have beengiven an opportunity to put forth her case by conducting anenquiry. The failure to do so is totally unjust and violativeof all canons of law. To throw her out for merely opening anaccount at the instance of the Principal of the school istotally uncalled for and unjust. https://hcservices.ecourts.gov.in/hcservices/

18. In fine, I am constrained to set aside the orderof the second respondent dated 3.2.2007 terminating theservices of the petitioner from Janaki RamachandranMatriculation School, Vadapalani. The second respondent isdirected to reinstate the petitioner forthwith. It is open tothe second respondent, if so desire, to pass appropriate ordersafter conducting an enquiry and after personal hearing of thepetitioner. 19. In the result, the Writ Petition stands allowedas indicated above. Consequently, the connected M.Ps. areclosed. However, there will be no order as to costs.dpp Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Inspector of Matriculation Schools,Egmore, Chennai-8.2. The Trustee, Janaki Ramachandran Education and Charitable Trust, No.80, Doraiswamy Road, Vadapalani, Chennai 600 026.+ 1 cc to M/s. Rank Associates SR No.27958+ 1 cc to M/s. Citra Sampath, Advocate, SR No.28072SSK(CO)SR/9.5.2007 Order inW.P.No.6034 of 2007; &M.P.Nos.1, 2 & 4 of 2007