S.Maria Sebastian v. The District Educational Officer, Thuckalay, Kanyakumari District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.10.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.3536 of 2004S.Maria Sebastian. ... Petitioner vs.1.The District Educational Officer, Thuckalay, Kanyakumari District.2.The Corporate Manager, R.C. Schools, Diocese of Kottar, Unnamalaikadai, Kanyakumari District.3.The Correspondent, St. Lawrence Higher Secondary School, Madathattuvilai, Villukkuri Post, Kanyakumari District. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari, calling for records of thesecond respondent in Proceeding No.EDN/K/CM/FI 54/54/2004 dated10.02.2004 and quash the same. For Petitioner : Mr.S.M.SubramaniamFor Respondents : Mrs.C.K.Vishnupriya, Additional Government Pleader (Education) for R1 : Mr.Isaac Mohanlal for R2 and R3 ----- O R D E R Writ Petition is filed challenging the second show-causenotice dated 10.2.2004 issued by the second respondent inProceeding No.EDN/K/CM/FI 54/54/2004. https://hcservices.ecourts.gov.in/hcservices/

2. The brief facts of the case are as follows:- While workingas a teacher in the third respondent school, on 31.1.2003, thepetitioner is said to have valued the revision test papers for the10th Standard through students. It is further stated that thepetitioner beat one student by name C.Sasikumar. With regard to theabove incident (i.e.) beating of the student, it appears that apolice complaint was lodged by the parents of the student whosuffered injury and he was treated in the hospital. The parentsgave a complaint to the Headmaster and the education authorities aswell. On 3.2.2003, the correspondent of the third school andothers made some enquiries with regard to the incident and in orderto find out the reason for the incident, the school appointed oneMr.A.Maria Stephen, Advocate to conduct a preliminary enquiry intothe episode and submit a report. Such appointment was made byproceedings dated 19.2.2003. The proceedings dated 19.2.2003 waschallenged in W.P.No.6703 of 2003 by the present writ petitioner.The court based on the counter-affidavit filed by the presentrespondent school came to the conclusion that the enquiry waspreliminary in nature and since no charge memo was issued at thatstage, the writ petitioner cannot plead prejudice. The W.P.No.6703of 2003 was dismissed with an observation that the school shouldcomply with the undertaking given in paragraph 13 of the affidavit.The third respondent school stated in the counter-affidavit filed inthe earlier writ petition that after the preliminary enquiry isconducted, if there is any material to proceed further, then acharge memo will be issued. 3. Thereafter, the charge memo was issued on 10.6.2003. Inthis, the proceedings dated 19.2.2003 appointing the advocate as thepreliminary enquiry officer and his report dated 6.6.2003 arereferred to in the reference as Serial Nos.1 and 3 and the orderdated 7.4.2003 passed by this court in earlier W.P.No.6703 of 2003is referred to as Serial No.2. 4. As to the nature of the charges framed against the writpetitioner there is no dispute. On 18.6.2003, the writ petitionerrequested the management to furnish a copy of the preliminary reportdated 6.6.2003 so as to give his explanation. The managementreplied on 24.6.2003 stating that the preliminary enquiry and thereport is only for the purpose of determining as to whetherdisciplinary proceedings should be initiated or not. It is clearlystated that it was not intended to punish the petitioner withoutproper enquiry. It is very specifically stated in the reply letterdated 24.6.2003 as follows:-"The statements recorded there and thereport thereof are not going to be used againstanyone in the ongoing disciplinary proceedings, https://hcservices.ecourts.gov.in/hcservices/ and hence there is no need to supply copiesthereof to the participants." The petitioner was asked to give his reply and he will be given ampleopportunity to defend his case. On 27.6.2003, petitioner gave anexplanation to the show cause notice. On 20.8.2003, a retired ChiefEducational Officer was appointed as enquiry officer on dueintimation to the petitioner. Petitioner once again asked for acopy of the police complaint, the answer sheet and the preliminaryenquiry report which was duly answered and turned down by the enquiryofficer. The enquiry was thereafter conducted and a report wassubmitted on 5.2.2004 holding that all the charges as proved. In theenquiry report, the list of witnesses and the documents relied uponhas been mentioned. Based on the enquiry report, on 10.2.2004, thesecond show-cause notice was issued to show cause as to why theenquiry report should not be accepted and disciplinary action shouldnot be initiated against the writ petitioner. Along with the secondshow cause notice, a copy of enquiry report was furnished to thepetitioner. One week's time was given for petitioner's explanation.On 16.2.2004, the writ petitioner requested for 15 days' time whichwas granted by the management. Without replying to the secondshow cause notice dated 10.2.2004, the present writ petition has beenfiled challenging the same.5. The primary contention raised by the writ petitioner is thatin the charge memo dated 10.6.2003, there is a reference to thepreliminary enquiry report dated 6.6.2003 and that report has notbeen furnished in spite of specific request, besides, other documentsthat have been requested by him. Therefore, it is contended by thelearned counsel for the petitioner that the petitioner is unable toreply to the show-cause notice and effectively defend his case. Thenon-supply of the documents relied upon has caused great prejudice tothe petitioner and therefore, the second show cause notice and theenquiry report have to be set aside by this court.The proceedingsimpugned in the writ petition should be quashed. 6. Learned counsel for the petitioner relied upon the decisionof the Supreme Court in State of U.P. - vs. - Shatrughan Lal andanother reported in (1998)6 Supreme Court Cases 651 wherein the ApexCourt held in paragraph 6 as follows:-"6. Preliminary enquiry which is conductedinvariably on the back of the delinquent employeemay often constitute the whole basis of thecharge-sheet. Before a person is, therefore,called upon to submit his reply to the charge-sheet, he must, on a request made by him in thatbehalf, be supplied the copies of the statementsof witnesses recorded during the preliminary https://hcservices.ecourts.gov.in/hcservices/ enquiry particularly if those witnesses areproposed to be examined at the departmental trial.This principle was reiterated in KashinathDikshita v. Union of India [(1986)3 SCC 229 : 1986SCC(L &S) 502 : (1986)1 ATC 176 : AIR 1986 SC2118)] wherein it was also laid down that thislapse would vitiate the departmental proceedingsunless it was shown and established as a fact thatnon-supply of copies of those documents had notcaused any prejudice to the delinquent in hisdefence."7. With regard to the preliminary plea on the question ofmaintainability of the writ petition, challenging the show-causenotice, learned counsel for the petitioner relied upon the ApexCourt's decision in Siemens Ltd. - vs. - State of Maharashtra andothers reported in 2007(1) CTC 844.8. On behalf of the respondents Mr.Isaac Mohanlal, learnedcounsel, relied upon the decision in Chandrama Tewari – vs. -Union of India reported in 1987 (Supp) Supreme Court Cases 518wherein the Apex Court held in paragraph 4 as follows:-".... The procedure at the enquiry must beconsistent with the principles of naturaljustice. Principles of natural justice requirethat the copy of document if any relied uponagainst the party charged should be given to himand he should be afforded opportunity to crossexamine the witnesses and to produce his ownwitnesses in his defence. If findings arerecorded against the government servant placingreliance on a document which may not have beendisclosed to him or the copy whereof may not havebeen supplied to him during the enquiry whendemanded, that would contravene principles ofnatural justice rendering the enquiry, and theconsequential order of punishment illegal andvoid. These principles are well settled by acatena of decisions of this Court. We need notrefer to them. However, it is not necessary thateach and every document must be supplied to thedelinquent government servant facing the charges,instead only material and relevant documents arenecessary to be supplied to him. If a documenteven though mentioned in the memo of charge isnot relevant to the charges or if it is notreferred to or relied upon by the enquiry officeror the punishing authority in holding the charges https://hcservices.ecourts.gov.in/hcservices/ proved against the government servant, noexception can be taken to the validity of theproceedings or the order. If the document is notused against the party charged the ground ofviolation of principles of natural justice cannotsuccessfully be raised. The violation ofprinciples of natural justice arises only when adocument, copy of which may not have beensupplied to the party charged when demanded isused in recording finding of guilt against him."(emphasis supplied)and stated that the procedure adopted by the respondents inconducting the enquiry was consistent by the principles of naturaljustice and that whatever documents that are relevant for the enquiryare supplied to the delinquent teacher. 9. As far as the request of the petitioner is concerned, asalready extracted above, the respondent school have very clearlystated in their letter dated 24.6.2003 that the report is not goingto be used in the disciplinary proceedings and therefore, there is noneed to supply a copy to the petitioner. This plea is fortified bythe Apex Court in the decision reported in 1987 Supp SCC 518 (citedsupra) in paragraph 9 which reads as follows:-".... If a document has no bearing on the chargesor if it is not relied on by the enquiry officerto support the charges, or if such document ormaterial was not necessary for the cross-examination of witnesses during the enquiry, theofficer cannot insist upon the supply of copies ofsuch documents, as the absence of copy of suchdocument will not prejudice the delinquentofficer. The decision of the question whether adocument is material or not will depend upon thefacts and circumstances of each case."This view was followed in Pandit D.Aher – vs. - State of Maharashtrareported in (2007)1 Supreme Court Cases 445 as to scope ofpreliminary enquiry. In the said decision, the Apex Court is of theview that the preliminary enquiries were confidential in nature andare means to arrive at a satisfaction, by the disciplinary authorityas to whether a departmental proceeding should be initiated or notand that is the stand of the present respondent school in theirletter dated 24.6.2003.10. The same view was followed in Syndicate Bank and others –vs. - Venkatesh Gururao Kurati reported in (2006)3 Supreme Court https://hcservices.ecourts.gov.in/hcservices/ Cases 150. In paragraphs 17 and 18 of the decision, the very sameprinciple has been emphasized, and reads as follows:-"17. In the case of Chandrama Tewari - vs. -Union of India (1987 Supp SCC 518) at page 521,para 4 it was held by this court:"However, it is not necessary thateach and every document must be suppliedto the delinquent government servantfacing the charges, instead onlymaterial and relevant documents arenecessary to be supplied to him. If adocument even though mentioned in thememo of charges is not relevant to thecharges or if it is not referred to orrelied upon by the enquiry officer orthe punishing authority in holding thecharges proved against the governmentservant, no exception can be taken tothe validity of the proceedings or theorder. If the document is not usedagainst the party charged the ground ofviolation of principles of naturaljustice cannot successfully be raised.The violation of principles of naturaljustice arises only when a document,copy of which may not have been suppliedto the party charged when demanded isused in recording finding of guiltagainst him. On a careful considerationof the authorities cited on behalf ofthe appellant we find that theobligation to supply copies of adocument is confined only to materialand relevant documents and the enquirywould be vitiated only if the non-supplyof material and relevant documents whendemanded may have caused prejudice tothe delinquent officer."18. In our view, non-supply of documents onwhich the enquiry officer does not rely during thecourse of enquiry does not create any prejudice tothe delinquent. It is only those documents, whichare relied upon by the enquiry officer to arriveat his conclusion, the non-supply of which wouldcause prejudice, being violative of principles ofnatural justice. Even then, the non-supply of https://hcservices.ecourts.gov.in/hcservices/ those documents prejudice the case of thedelinquent officer must be established by thedelinquent officer. It is well-settled law thatthe doctrine of principles of natural justice arenot embodied rules. It cannot be put in astraitjacket formula. It depends upon the factsand circumstances of each case. To sustain theallegation of violation of principles of naturaljustice, one must establish that prejudice hasbeen caused to him for non-observance ofprinciples of natural justice."11. In the present case, the preliminary enquiry as has beenalready stated at the time of dismissal of the earlier writpetition (W.P.No.6703 of 2003) was in the nature of a preliminaryenquiry as to whether any action if at all should be taken againstthe delinquent teacher. In reply to the specific request of thepetitioner, the respondent school has clearly stated in their letterdated 24.6.2003 that the report is not going to be used in thedisciplinary proceedings and therefore, there is no need to supplycopies. Merely on the plea of prejudice, the writ petitioner cannotrefrain from replying to the show cause notice when the second showcause notice is issued after full-fledged departmental enquiry wheresufficient opportunity was given. Both sides produced documents andwitnesses were examined and also subjected to cross-examination. Onthe basis of the departmental enquiry by following the principles ofnatural justice, the report has been given by the enquiry officerstating that all the charges were proved. It is for the petitionerto submit a reply to the second show cause notice. He is alsoentitled to submit his statement of defence against the finding ofthe enquiry officer which will be considered by the disciplinaryauthority in accordance with law. 12. Further, as regards the plea of prejudice, in the enquiryreport, there is no reference to the preliminary enquiry reportdated 6.6.2003. In such view of the matter, a mere statement ofprejudice cannot be a ground to interfere with the second show causenotice. In the light of the decisions of the Apex Court, which havealready been referred to above, it is clear that the respondent'sschool have not proceeded on the basis of the preliminary enquiryreport, but only on the basis of a full-fledged enquiry by appointinga retired Chief Educational Officer as enquiry officer. There is noallegation of violation of principles of natural justice insofar asthe departmental enquiry is concerned. The documents which aresought for by the petitioner as has already been stated by therespondent school has no relevance for deciding the disciplinaryenquiry proceedings and therefore, the plea of prejudice has nobasis. Furthermore, the decision in Siemens' case (cited supra) hasclearly laid down the principle that ordinarily no writ will be https://hcservices.ecourts.gov.in/hcservices/ entertained against a show cause notice. A writ would lie when theshow cause notice is issued with premeditation and where it iswithout jurisdiction. Both the situation does not arise in thepresent case. The said decision is of no avail to the writpetitioner.13. In the result, the challenge to the second show causenotice fails. The petitioner has not made out the case forinterference under Article 226 of the Constitution. The writpetition is dismissed. There will be no order as to costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrartsTo The District Educational Officer, Thuckalay,Kanyakumari District.+1 cc to Mr.S.M.Subramaniam, Advocate, SR.No.56625+1 cc to Mr.Isaac Mohanlal, Advocate, SR.No.56385 Order in W.P.No.3536 of 2004GV {CO}TP/6.11.2009.