Robart v. The Director of Collegiate Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.1.2007 CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWRIT PETITION No.7689 of 2002Robart ... PetitionerVs.1. The Director of Collegiate Education, E.V.R. Sampath Buildings, Chennai – 600 006.2. The Secretary, St. Jude's College, Thoothoor 629 176, Kanyakumari District. ... RespondentsWrit Petition filed under Article 226 of the Constitution of India asstated therein.For petitioner : Mr.R.Yashod VardhanFor respondents : Mr.C.Thirumaran Government Advocate for R1Mr.A.R.Nixon for R2O R D E RThe Writ Petition has been filed praying for the issuance of a writof Certiorarified Mandamus to call for the records of the secondrespondent in proceedings No.SJC/2831/C/2000, dated 31.5.2001, and thefirst respondent's proceedings RC.No.27671/F4/2001, dated 12.2.2002, andto set aside the order of the second respondent, dated 31.5.2001, asaffirmed by the first respondent by order, dated 12.2.2002, andconsequently to direct the respondents to reinstate the petitioner asLecturer in Malayalam in the second respondent College with arrears ofsalary and all consequential benefits.The brief facts of the case, as stated by the petitioner, are asfollows:2. The petitioner had been appointed as a Lecturer in Malayalam in St.Jude's College, Thoothoor, in Kanyakumari District, with effect from28.6.1995. While so, the petitioner had sought for a day's leave, on https://hcservices.ecourts.gov.in/hcservices/

31.7.2000, and he had submitted his leave letter to the Head of theDepartment. Thereafter, he had applied for six months of no pay leave,from 31.7.2000. However, the Principal had refused to grant leave.Instead, the petitioner was placed under suspension, from 31.7.2000. Bythe proceedings, dated 19.9.2000, he was issued a show cause notice by thesecond respondent to explain as to why the disciplinary proceedings shouldnot be initiated against him for the alleged charges. The first chargeagainst the petitioner was that he had remained on unauthorised absencefrom 31.7.2000 and the second charge was that the petitioner had elopedwith a former girl student and that he had allegedly married her. Thepetitioner had submitted his explanation to the charge memo and it waspointed out that he had sought for leave by means of a letter andsubsequently, by way of a telegram. The petitioner's request had beenrefused by the second respondent. The petitioner had also denied thecharge that he had eloped with the former girl student and that he had notcommitted the unethical act, which would harm the reputation of theInstitution. With regard to the third charge, the petitioner had statedthat, on 22.8.2000, when he was taking rest in his house, one HarryPereira along with some antisocial elements had forcibly taken thepetitioner and had coerced him into affixing his signature on a documentin the Office of the concerned Sub-Registrar. The petitioner had laterlearnt that the document was a deed of agreement to marry one Reeja.Therefore, the petitioner had not committed any wrong and the proceedingsagainst him was to be dropped. 3. It had been further stated that despite the explanation submittedby the petitioner, the second respondent had appointed K.Mohanan Nair asthe Enquiry Officer to enquire into the alleged charges. The Managementexamined the Correspondent, the petitioner's father-in-law and theSecretary of the College, as witnesses. 4. It is alleged by the petitioner that the enquiry proceedings wereconducted in a biased manner and there was gross violation of theprinciples of natural justice. There is nothing in the report to show thatthe objections raised by the petitioner had been considered. By notice,dated 3.5.2001, the petitioner was informed by the second respondent thatthe Enquiry Officer had submitted his report and that the Management haddecided to impose a punishment on the petitioner. The petitioner had beendirected to submit his explanation and by his reply, dated 9.5.2001, thepetitioner had pointed out that the charges were baseless and that theyhad not been established during the enquiry. However, the secondrespondent by his proceedings No.SJC/2831/C/2000, had informed thepetitioner that the Management Committee, of which the Secretary and theCorrespondent of the second respondent College were members, hadconsidered the enquiry report and had resolved to terminate the servicesof the petitioner, with retrospective effect, from 31.7.2000. Thepetitioner had submitted an appeal to the first respondent, on 11.6.2001.Since the first respondent had not disposed of the appeal, the petitionerhad come before this Court by way of a writ petition, in W.P.No.17958 of2001 and this Court, by an order, dated 28.9.2001, had directed the first https://hcservices.ecourts.gov.in/hcservices/ respondent to dispose of the appeal, within a specified period. The firstrespondent by an order, dated 12.2.2002, in his proceedingsR.C.No.27671/F4/2001, had affirmed the order of the second respondent,dated 31.5.2001. In such circumstances, the present writ petition came tobe filed. 5. In the counter-affidavit filed on behalf of the second respondent,it has been stated that the petitioner was removed from service bytermination, since he had committed errors and mistakes. The order oftermination was passed for a good reason and after following the dueprocedures. The allegations made by the petitioner, in his affidavit, arefalse. It is false to state that the petitioner initially sought for aday's leave, on 31.7.2000 and that he had submitted his leave letter tothe Head of Department. It is also false to state that the Principaldirected the Head of Department not to accept the leave letter. In fact,the petitioner had unauthorisedly absented himself from the secondrespondent College without information to the Management. It is alsoincorrect to state that the petitioner had applied for six months of nopay leave from 31.7.2000. The Principal of the second respondent Collegehad not received any Telegram from the petitioner as stated by him. Sincethe activities of the petitioner were against the interest of the Collegeand its students, the petitioner was suspended from service, from31.7.2000. The petitioner was given a show cause notice for the threecharges mentioned in the charge memo. Though the petitioner had given hisexplanation denying the charges, he had committed unethical acts harmingthe reputation of the institution. The petitioner's claim that he hadsigned a document regarding his marriage in the Sub-Registrar's Office,under threat, is not true. The petitioner had voluntarily and willinglymarried Reeja and the petitioner is still living with their children, tilldate. The petitioner had not taken any legal steps to cancel the marriagewith Reeja. Though the petitioner had claimed that he had executed a deedcancelling the marriage, he had failed to produce the copy of thecancellation deed. 6. It has been further stated that a concluded marriage cannot becancelled by an unilateral deed of cancellation. It can be done onlythrough the Court of law with competent jurisdiction. 7. The petitioner had married Reeja, even though earlier he hadmarried Anitha Mary and had two children from her. The second marriage isprohibited under the marriage laws applicable to Christians. The secondmarriage concluded by the petitioner with Reeja is invalid in the eye oflaw and amounts to a criminal offence. 8. An enquiry had been conducted based on the charges framed againstthe petitioner. After examining the oral and documentary evidence, theenquiry officer had come to the right conclusion holding that the chargeswere proved. Since the petitioner in his explanation, dated 9.5.2001, hadstated that he did not receive any enquiry report, the second respondenthad issued the notice with the copy of the enquiry report granting time https://hcservices.ecourts.gov.in/hcservices/ for the petitioner's reply, even though a show cause notice had been sent,on 3.5.2001 itself. The petitioner had not sent any reply to the notice,dated 16.5.2001, which was sent to him along with the enquiry report.There is no bias as alleged by the petitioner. The Management had come tothe right conclusion in imposing the punishment on the petitioner for theserious misconduct committed by him. All the necessary procedures had beenfollowed, in accordance with the principles of natural justice, during theenquiry conducted against the petitioner. Therefore, the punishmentimposed upon the petitioner is just and reasonable. 9. Heard the learned counsel appearing on behalf of the petitioner aswell as for the respondents.10. The learned counsel appearing on behalf of the petitioner hadsubmitted that the orders passed against the petitioner, terminating hisservice from the post of Lecturer in the second respondent College, werebad in law, as they were passed contrary to the principles of naturaljustice. There was clear bias in the process of decision making by theCollege Committee, which included the Correspondent and the Secretary ofthe second respondent College. Both, the Secretary of the CollegeManagement, who was witness No.1 and the Correspondent of the CollegeManagement, who was witness No.3, were acting as the prosecutors,witnesses, as well as the Judges in their own cause. Having formulated thecharges and having been examined as witnesses on behalf of the CollegeManagement, it was highly improper on their part to sit in the Committee,in which the decision had been taken to dismiss the petitioner fromservice. None of the charges had been proved and the main charge of havingentered into the second marriage had not been proved. The Enquiry Officerin his report, dated 23.4.2001, had stated that all the three chargeslevelled against the petitioner were proved. 11. The learned counsel appearing on behalf of the petitioner hadsubmitted that even if the document, dated 23.8.2000, pertaining to theregistration of marriage is taken to be true, it was cancelled, on24.10.2000. In fact, the document, dated 23.8.2000, in which thepetitioner was forced to sign, was only an agreement of marriage and itcannot be in any way taken to be a conclusion of marriage, which could besaid to be valid in the eye of law. 12. The learned counsel appearing on behalf of the petitioner hadrelied on the following cases in support of his contentions.13.1) In RATTAN LAL SHARMA Vs. MANAGING COMMITTEE DR.HARI RAM (CO-EDUCATION) HIGHER SECONDARY SCHOOL AND OTHERS (AIR 1993 S.C. 2155), theSupreme Court has held that "in the facts of the case, there was not onlya reasonable apprehension in the mind of the appellant about the bias ofone of the members of the enquiry committee, namely, the said Shri MaruRam but such apprehension became real when the said Shri Maru Ram appearedas a witness against the appellant to prove the said charge andthereafter, proceeded with the enquiry proceeding as a member of the https://hcservices.ecourts.gov.in/hcservices/ enquiry committee to uphold the correctness of his deposition, as a Judge.The learned Single Judge considering the aforesaid facts came to thefinding that the participation of Shri Maru Ram as a member of the enquirycommittee has vitiated the enquiry proceeding because of flagrantviolation of the principles of natural justice. Unfortunately, theDivision Bench set aside such judgment of the learned Single Judge anddismissed the Writ Petition improperly, to say the least, on a technicalground that plea of bias of Shri Maru Ram and his acting as a Judge in hisown case by being a member of the enquiry committee was not specificallytaken before the Deputy Commissioner and also before the appellateauthority, namely, the Commissioner by the appellant and as such the saidplea should not be allowed to be raised in writ proceeding, more so, whenthe case of prejudice on account of bias could be waived by the personsuffering such prejudice. Generally, a point not raised before theTribunal or administrative authorities may not be allowed to be raised forthe first time in the writ proceeding, more so when the interference inthe writ jurisdiction which is equitable and discretionary is not ofcourse or must as indicated by this Court in A.M.Allison V. State ofAssam, (AIR 1957 Supreme Court 227), particularly when the plea sought tobe raised for the first time in a writ proceeding requires investigationof facts. But if the plea though not specifically raised before thesubordinate Tribunals or the administrative and quasi-judicial bodies israised before the High Court in the writ proceeding for the first time andthe plea goes to the root of the question and is based on admitted anduncontroverted facts and does not require any further investigation into aquestion of fact, the High Court is not only justified in entertaining theplea but in the anxiety to do justice which is the paramount considerationof the Court, it is only desirable that a litigant should not be shut outfrom raising such plea which goes to the root of the lis involved. Theaforesaid view has been taken by this Court in a number of decisions and areference may be made to the decisions in A.S.Arunachalam Pillai VM/.s.Southern Roadways Ltd., AIR 1960 Supreme Court 1191; The CantonmentBoard, Ambala V Pyarelal, (1965) 3 SCR 341; (AIR 1966 Supreme Court 108).In our view, the learned Single Judge has very rightly held that theDeputy Commissioner was under an obligation to consider the correctnessand propriety of the decisions of the Managing Committee based on thereport of the enquiry committee which since made available to him, showedon the fact of it that Shri maru Ram was included and retained in theenquiry committee despite objection of the appellant and the said ShriMaru Ram became a witness against the appellant to prove one of thecharges. It is really unfortunate that the Division Bench set aside thedecision of the learned Single Bench by taking recourse to technicalitiesthat the plea of bias on account of inclusion of Shri Maru Ram in theenquiry committee and his giving evidence on behalf of the department hadnot been specifically taken by the appellant before the DeputyCommissioner and the Commissioner. The Division Bench has also proceededon the footing that as even apart from Charge No.12, the DeputyCommissioner has also considered the other charges on consideration ofwhich along with Charge No.12, the proposed order of dismissal was made,no prejudice has been caused to the appellant. Such view, to say the https://hcservices.ecourts.gov.in/hcservices/ least, cannot be accepted in the facts and circumstances of the case. Thelearned Single Judge, in our view, has rightly held that the bias of ShriMaru Ram, one of the members of the enquiry committee had percolatedthroughout the enquiry proceeding thereby vitiating the principles ofnatural justice and the findings made by the enquiry committee was theproduct of a biased and prejudiced mind. The illegality committed inconducting the departmental proceedings has left an indelible stamp ofinfirmity on the decision of the Managing Committee since affirmed by theDeputy Commissioner and the Commissioner. The observation of S.R.Das,C.J. In Mohd,Nooh's case (AIR 1958 Supreme Court 86)"13.2) In M.JAMALUTHEEN Vs. DIRECTOR OF SCHOOL EDUCATION ((2006) 3M.L.J. 747), this Court has held that the President of a Committee incontrol of the School, and the Correspondent of the school are members ofthe Enquiry Committee. The Correspondent, issued the charges, isinstrumental in framing charges, is the person who initiated theDepartmental proceedings, is the person who received the explanation fromthe delinquent, is not expected to be in the Enquiry Committee. ThePresident, a powerful person also should not be in the Enquiry Committee.The very object of natural justice is defeated. The delinquent after theenquiry was over, asked for a fresh enquiry, on the next day. Withoutaccepting or rejecting his request the order of punishment was passed.This would also vitiate the enquiry.14. Per contra, the learned counsel appearing on behalf of therespondents had relied on the following decisions in support of hiscontentions.14.1. In OM PRAKASH MANN Vs. DIRECTOR OF EDUCATION (BASIC) AND OTHERS,((2006) 7 SCC 558), the Supreme Court has held that the doctrine ofprinciples of natural justice are not embodied rules. They cannot beapplied in a straitjacket formula. To sustain the complaint of violationof the principles of natural justice one must establish that he has beenprejudiced by non-observance of the principles of natural justice.14.2. In HIGH COURT OF JUDICATURE AT BOMBAY Vs. SHASHIKANT S.PATIL,(AIR 2000 S.C.22), the Supreme Court has held that interference with thedecision of departmental authorities can be permitted, while exercisingjurisdiction under Article.226 of the Constitution, if such authority hadheld proceedings in violation of the principles of natural justice or inviolation of statutory regulations prescribing the mode of such inquiry orif the decision of the authority is vitiated by considerations extraneousto the evidence and merits of the case, or if the conclusion made by theauthority, on the very face of it, is wholly arbitrary or capricious thatno reasonable person could have arrived at such a conclusion, or groundsvery similar to the above. However, it cannot be overlooked that thedepartmental authority is the sole judge of the facts, if the inquiry hasbeen properly conducted. The settled legal position is that if there issome legal evidence on which the findings can be based, then adequacy oreven reliability of that evidence is not a matter for canvassing before https://hcservices.ecourts.gov.in/hcservices/ the High Court in a writ petition filed under Article 226 of theConstitution. 15. On an analysis of the rival contentions and on a perusal of therecords available, this Court is of the considered view that therespondents have not sufficiently shown that the impugned proceedingscould be sustained in the eye of law.16. The Management of the second respondent College has not been in aposition to substantiate the charges levelled against the petitioner inthe manner known to law. Mere allegations of a serious nature cannot besaid to validate the order passed by the second respondent Collegeterminating the service of the petitioner. The alleged second marriage ofthe petitioner with Reeja had not been proved. Merely registering of adocument, agreeing to marry someone, cannot be taken to be a concludedmarriage, which could be said to be legal in the eye of law, especially,when the petitioner had stated that he was forced to sign such a document.Even the said document, dated 23.8.2000, which was a marriage agreement,was said to have been cancelled, on 24.10.2000. Further, it is seen thatthe petitioner had given a complaint to the Sub-Inspector of Police, on24.8.2000, stating that some anti-social elements had trespassed into hishouse and abducted the petitioner and forced him to sign the document andto register the same by coercion, undue influence and threat. Similarly, acomplaint had been given to the Sub-Registrar, Kanjiramkulam, on the samedate. In such circumstances, the second respondent Management had notsufficiently proved that the petitioner had entered into the secondmarriage with Reeja, while his wife Anitha Mary was still alive.17. It has also been seen that the Management Committee enquiring intothe charges against the petitioner included the Secretary of the College,who was the College Management witness No.1 and the Correspondent of theCollege Management, who was the College Management witness No.3. Duringthe enquiry, the father-in-law of the first wife, namely, Anitha Mary,has been examined as Management witness No.2. 18. It has also been stated by the petitioner that the enquiryproceedings were conducted in a biased manner and that there was grossviolation of the principles of natural justice. Even though severalquestions were put to the Management’s witnesses by the counsel for thepetitioner, they were disallowed by the Enquiry Officer, arbitrarily. Thedocuments were allowed to be marked, despite serious objections about thedocuments’ genuineness. Having been witnesses for the Management, duringthe enquiry, the Secretary and the Correspondent of the second respondentCollege were members of the Management Committee, which had considered theenquiry report and resolved to terminate the petitioner from service from31.7.2000. The petitioner had, therefore, contended that the decision ofthe Management Committee of the second respondent College was biased. 19. Further, it is also seen that the claims made by the petitionerthat the enquiry was not conducted in a fair and proper manner have not https://hcservices.ecourts.gov.in/hcservices/ been dispelled by the second respondent Management. Fairness in followingthe procedure shall not only be done, but shall also be seemed to be done.The violation of principles of natural justice would vitiate the enquiry,if it is found to be prejudicial to the petitioner. In the present case,the petitioner has brought forth sufficient and cogent reasons to convincethis Court to hold that the charges against the petitioner have not beensatisfactorily proved following the principles of natural justice. Thedecisions cited by the petitioner in favour of his claims have also beenconsidered by this Court, while coming to the present conclusion. In suchview of the matter, the impugned proceedings of the respondents are set-aside and the respondents are directed to reinstate the petitioner inservice, with continuity of service and with 50% of the arrears of salary,calculated from the date of his dismissal from service, within a period ofsix weeks from the date of receipt of a copy of this order. The writpetition stands allowed accordingly. No costs. Sd/-Assistant Registrar/true copy/Sub Assistant Registrar.To1. The Director of Collegiate Education, E.V.R. Sampath Buildings, Chennai – 600 006.2. The Secretary, St. Jude's College, Thoothoor 629 176, Kanyakumari District.+ IOne cc to Mr. A. R. Nixon Advocate S?R 5542+ One cc to Mr. R. Yashod Vardhan Advocate SR 5191BS (co)sg 9/2/07WRIT PETITION No.7689 of 2002 29.1.2007