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2012 Supreme(Mad) 848
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN
V. Jayabalan
Versus
The Government of Tamil Nadu Rep. by its Secretary to Government Education Department & Others
W.P.Nos.38445 of 2004 & 1748 of 2006
Decided On : 17-02-2012
For the Petitioner:Isaac Mohanlal, Advocate.
For the Respondents:M.C. Swamy, Special Government Pleader, M. Suresh Kumar, R. Saravana Kumar, Advocates.
Ratios
a. In the departmental enquiry against an employee, the management shall furnish him copies of the documents relied on by the management to prove the charges and the list of its witnesses beforehand.
b. In the departmental enquiry, the delinquent may be examined only after the witnesses for the management were examined.
c. Non-payment of salary and subsistence allowance to the delinquent pending completion of disciplinary proceeding would amount to denial of opportunity to the delinquent to participate effectively in the enquiry.
Headnote:(A)Constitution of India-Art.14-Service-School-Education-Head master-Disciplinary proceeding-Charge memo-Vagueness-Employee-Right-Witness-Document-Supply-Examination-Procedure-Upgradation-Petitioner was working as headmaster in a middle school which was upgraded as High School with aid only upto middle school-Management transferred him to another Higher Secondary school which received aid only till middle school level which was not approved by the authorities-Instead of appointing him in the original school, the management suspended him by alleging that he had misappropriated the money collected from the students-In the enquiry, management did not furnish him the list of witnesses and the copies of the documents relied on-When the petitioner asked for subsistence allowance, he was not paid-Enquiry was commenced and concluded on the same day-When petitioner alleged that he was suspended to accommodate the wife of an accountant as headmistress, the accountant was appointed as presenting officer-Even before witnesses for the management were examined, petitioner was cross-examined and ultimately he was dismissed-Petitioner pointed out the above factors to prove malafide and prejudice which was objected by the respondents-Held, on upgradation of the school, the headmaster of the school would continue as headmaster in the upgraded school and so, the respondents were directed to pay him the salary as headmaster-Charges were vague without any specific details and the above factors had revealed irregularities in the enquiry and malafide on the part of the management and the petitioner also suffered because of the failure of the management in paying him subsistence allowance-Writ petitions were allowed and the order of dismissal against the petitioner was set aside-As the petitioner had already attained the age of superannuation, the respondents were directed to settle the salary arrears to the petitioner.
(B)Constitution of India-Art.14-Service-Disciplinary proceeding-Charge memo-Employee-Right-Witness-Document-Supply-In the departmental enquiry against an employee, the management shall furnish him copies of the documents relied on by the management to prove the charges and the list of its witnesses beforehand.
It is thus clear that the Management did not furnish the documents and the list of witnesses as requested by the petitioner. The question is as to whether the same would amount to denial of opportunity to the petitioner. In my view, the Management shall furnish the documents, which are relied on by them in support of the charges, so that the petitioner could effectively defend himself in the enquiry. However, no reason was given by the Management for not furnishing the documents. Hence, I am of the view that non-furnishing of documents has put him in disadvantageous position in the enquiry. Para 54
(C)Constitution of India-Art.14-Service-Disciplinary proceeding- Witness-Examination-Procedure-In the departmental enquiry, the delinquent may be examined only after the witnesses for the management were examined.
Cross examining the employee at the very beginning of the enquiry that is, even prior to the examination of the witnesses on the side of the Management, coupled with the absence of any chief examination of the Management witnesses make that the enquiry was not fairly and properly conducted. Para 65
(D)Constitution of India-Art.14-Service-Disciplinary proceeding- Employee-Right-Salary-Subsistence allowance-Natural justice-Non-payment of salary and subsistence allowance to the delinquent pending completion of disciplinary proceeding would amount to denial of opportunity to the delinquent to participate effectively in the enquiry.
Furthermore, no subsistence allowance is paid from 01.12.2005 to 06.01.2006, till the date of termination. In my view, non-payment of salary and subsistence allowance would amount to denial of opportunity to the petitioner to participate effectively in the enquiry. The action of the Management in not paying the salary and subsistence allowance, when the petitioner was asked to participate in the enquiry, amounts to violation of principles of natural justice. Para 74
1. The petitioner in both the writ petitions is the same person. Both the writ petitions involved common questions of fact and law and thus, the writ petitions are disposed by a common order.
2. The petitioner is a Gold Medalist in M.A (Tamil). He also passed M.Ed. He was appointed as Headmaster on 01.02.1985 in YMCA Boys Town Middle School, Fort, Chennai - 600 009, which is an aided minority school. The said School was upgraded as High School on 01.06.1990 with a condition that the aid would be confined upto Middle School level. That is, the High School was run on self financed basis. On completion of ten years of service, the petitioner was granted Selection Grade in the cadre of Middle School Headmaster.
3. While so, the petitioner was transferred to YMCA Boys Town Higher Secondary School, Kottivakkam, Chennai, by the Management, by an order dated 12.04.2004 due to the vacancy caused by the retirement of one Mr.Vedha Manickam. The Higher Secondary school was also granted aid upto Middle School level. The petitioner was relieved from YMCA Boys Town High School, Fort, Chennai -600 009 on 31.05.2004 and joined as Headmaster of the YMCA Boys Town Higher Secondary School, Kottivakkam, Chennai, on 01.06.2004.
4. The Management sought approval from the District Educational Officer, Chengalpattu, for appointment of the petitioner as Headmaster of the Higher Secondary School in their letter dated 30.08.2004.
5. The District Educational Officer, Chengalpattu, passed an order dated 08.12.2004 refusing to approve the transfer and appointment of the petitioner as Headmaster of the Higher Secondary School, Kottivakkam.
6. The petitioner, while seeking to quash the said order dated 08.12.2004 of the District Educational Officer, Chengalpattu in W.P.No.38445 of 2004, also sought for a direction to the District Educational Officer, Chengalpattu to approve the transfer and appointment of the petitioner as Headmaster in the Higher Secondary School, together with all monetary benefits.
7. The claim of the petitioner for approval to the post of Headmaster in the Higher Secondary School is based on G.O.Ms.No.525, School Education Department, dated 29.12.1997.
8. While so, the petitioner was placed under suspension by the Management, by an order dated 31.01.2005, alleging that as per the internal audit of school accounts, he failed and neglected to remit the amount collected from the students to the tune of Rs.37,394/- as on 30.01.2005 which amounts to misappropriation of funds.
9. Thereafter, a charge memo dated 15.04.2005 was issued by the Management alleging two charges and those charges are:
(i) the amount of Rs.37,394/- collected from several students that was handed over to the petitioner by one Mrs.Ida Gladys was not deposited by the petitioner into the school account and the same was retained by him and the same would constitute a grave misconduct of misappropriation of school funds and criminal breach of trust.
(ii) the petitioner collected donation from several students belonging to different classes and allowed them to attend classes without bringing their names on the records of the school and entering their names in the relevant registers and it would also constitute a grave misconduct of misappropriation of school funds and dereliction as well as negligence in performing the duties.
10. The petitioner submitted his explanation dated 18.04.2005 denying the allegations. In the said explanation, he has stated that he was not permitted to attend duties after the first week of January 2005 stating that he would be permitted to join duty only after getting approval from the Government for his transfer and posting as Headmaster of Higher Secondary School. Further, he was informed about the audit that took place during September 2004 and the audit took place in his presence. At that time, as per the accounts, a sum of Rs.20,00,000/-(Rupees Twenty Lakhs Only) that was collected from the students were remitted, but he was no
