Madras High Court
WP/7564/1999 of J. HIRUDAYARAJ Vs DISTRICT ELEMENTARY on 23 December 2008
COURT OF JUDICATURE AT MADRAS Date:- 23.12.2008 Coram The Honourable
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 23.12.2008
Coram
The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA W.P. No.7564 of 1999
J. Hirudayaraj (deceased)
2. S.A. Jesintha3. H. Dominic
4. H. Wilfred Maxim ... Petitioners
(Petitioners 2 to 4 are substituted as per order dated 22.6.2006 in W.P.M.P. No.12852/2006)
The District ElementaryEducation Officer,Tiruchirapalli.
..Vs..
... Respondent
Petition under Article 226 of the Constitution of India,praying to issue a writ of certiorari, to call for the records comprisedin the proceedings of the respondent dated 9.3.1999 inNa.Ka.No.9333/A4/98 and quash the same.
For Petitioner : Mr. Satish Parasaran
For Respondents : Mrs. Malarvizhi Udhayakumar, Special Government Pleader The petitioner, since deceased, was aggrieved against thefinal order of punishment dated 9.3.1999 in Na.Ka.No.9333/A4/98, in andby which, the petitioner was imposed with the punishment of temporarydemotion for a period of one year. The petitioner is stated to haveexpired on 15.2.2006 and thereafter, his legal representatives viz. thewife and sons of the deceased petitioner came to be impleaded aspetitioners 2 to 4 by an order dated 22.6.2006 in W.P.M.P. No.12852 of2006.
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2. The brief facts, which are required to be stated, are thatthe deceased first petitioner joined the service in education departmenton 22.9.1970 on temporary basis and was appointed on regular basis from1.7.1971 as Secondary Grade Teacher. He got his promotion as Headmasterin Municipal Primary School, Puthur, Tiruchirapalli. Based on theinspection conducted by the respondent on 10.12.1998, a charge sheetcame to be issued to the first petitioner on 29.1.1999 in which fourcharges were framed against him. The charges are as under:- "(i) the petitioner had not taken classes from1.6.98 and had not written notes of Lessons;
(ii) that the petitioner had not taken classesfrom 9.1.1997 and had not written notes of lessons:
(iii) that by not taking any classes, thepetitioner had acted in violation of rules andfailed to perform his duties and responsibilities;and
(iv) that he had reported wrong informationswithout conducting classes as if he had performedhis duties correctly."
3. By letter dated 1.2.1999, the first petitioner prayed forextension of time to submit his explanation and also asked for copies ofdocuments to be furnished to him to enable him to submit hisexplanation. By reply dated 3.2.1999, the respondent rejected both therequests and the first petitioner was directed to appear for an enquiryon 10.02.1999 at 10.30 a.m. The first petitioner submitted hisexplanation on 10.2.1999 and also participated in the enquiry. Therespondent, who is stated to have held the enquiry, issued his findings-cum-second show-cause notice dated 23.2.1999. The first petitionersubmitted his reply to the same on 5.3.1999. Thereafter, the presentimpugned order dated 9.3.1999 came to be passed.
4. When this writ petition was entertained on 28.4.1999, theimpugned order was stayed by this Court and subsequently, the same wasalso made absolute by order dated 30.12.2002. In pursuance of theorder of stay granted by this Court, it is stated that the firstpetitioner was allowed to function as Headmaster and he continued todischarge his functions till he reached the age of superannuation on28.2.2003. It is also stated that subsequently, he expired on 15.2.2006.
5. Inasmuch as the first petitioner is no more and theimpugned order of punishment viz. temporary demotion for a period of oneyear did not operate till the date of superannuation of the petitionerviz. 28.2.2003, it will have to be held that the said order ofpunishment cannot be sustained on that ground itself. Further, after
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hearing the learned counsel for the petitioner as well as learnedGovernment Pleader, I find that even on merits, the impugned ordercannot be sustained.
6. Mr. Satish Parasaran, learned counsel for the petitionerpointed out that since the issuance of charge memo dated 29.1.1999 wasbased on the inspection carried out by the respondent on 10.12.1998, thevery same Officer ought not to have held the enquiry. It is not indispute that the respondent is the competent Disciplinary Authority toconduct the enquiry of the petitioner. In such circumstances, in theabsence of any other allegation of mala fide or prejudice caused at theinstance of the respondent in holding the enquiry, I do not find anyserious flaw in having held the enquiry based on the inspection held byhim on 10.12.1998. The said submission of the petitioner cannottherefore be countenanced.
7. Learned counsel then pointed out certain serious flaws inthe matter of holding the enquiry as well as the ultimate findingsrendered by the respondent in pursuance of the charge memo dated29.1.1999. Immediately after issuance of charge memo, the firstpetitioner, by his letter dated 1.2.1999 wanted copies of certaindocuments to enable him to submit his reply. The documents, which werecalled for by the petitioner in his letter dated 1.2.1999, are asfollows:- "
1. jpU. b$. ,Ujauh$; Mfpa vdJ gzpg;gjpntl;od; cz;ikefy;.
2. gs;sp ghh;it g[j;jfk; fy;tp Mz;L 1998?99?d; cz;ikefy;/
3/ 10/12/98?y; jiyik Mrphpah; jpU/b$/,Ujauh$; mth;fs; gs;spghh;itapd;nghnj khtl;l fy;tp mjpfhhpf;F vGjpf; bfhLf;fg;gl;ljhf gpd;,izg;g[ 3?y; fz;l Mtdj;jpd; cz;ikefy;.
4/ 10/12/98?y; jpUkjp./ tp$aFkhh; Mrphpia mth;fs; gs;spghh;itapd;nghnj khtl;l fy;tp mjpfhhpf;F vGjpf;bfhLf;fg; gl;ljhf gpd;,izg;g[ 3?y; fz;l Mtdj;jpd; cz;ikefy;/
5/ 9/1/97 md;W gs;spf;F ghh;itapl te;j jpUr;rp khtl;l mwptpay;cjtp bjhlf;ff; fy;tp mjpfhhp gpd; ,izg;g[ 2?y; fz;lth; jpUr;rpkhtl;lf; nfhl;lj;jpy; gzpapy; nru gpwg;gpf;fg;gl;l Miza[k; mth;fs;gzpapy; nrh;e;j fhyj;jpd; cz;ik efy;/
6/ Fw;wr;rhl;L Fwpg;ghiza[ld; ,izj;J tH';fg;gl;Ls;s Formof Questioner ------------d; jkpH; bkhHpbgah;g;gpd; gotk;/@
8. The charges against the first petitioner are related tofailure of the first petitioner in taking classes on and after 9.1.1997and that there were no entries in having taken classes after 1.6.1998.For each one of the charges in the charge sheet itself, reference hasbeen made to the report of the D.E.O. dated 10.12.1998 and the statementof the first petitioner of the same date as well as that of anotherTeacher by name Tmt. Vijayakumari, which was also dated 10.12.1998 andone other letter said to have been given by the first petitioner on27.1.1999 requesting documents related to the inspection took place on10.12.1998, the copies of service records of the first petitioner andthe letter dated 10.12.1998 said to have been submitted by the firstpetitioner as well as the other teacher Tmt. Vijayakumari.
9. The first petitioner also wanted the inspection report ofearlier inspection held by another Officer on 9.1.1997. When thedocuments called for by the first petitioner are considered withreference to the four charges framed against him, it is quite apparentthat those documents were very relevant for the purpose of finding outas to whether the charges levelled against the first petitioner are trueor not. Unfortunately, the respondent in his letter dated 3.2.1999(wrongly typed as 3.1.1999) while rejecting the first petitioner'srequest for extension of time to submit his explanation straightawayrejected his claim for furnishing the copies of the documents called forby him.
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10. No reasoning was shown as to why those documents could notbe furnished to the first petitioner. It is not the case of therespondent that none of those documents were relevant to the chargesframed against the first petitioner. Therefore, that very circumstancehad virtually deprived the valuable right of the first petitioner fromsubmitting his explanation to the charges levelled against him.According to the first petitioner, since there was surplus teachers inthe school, as per the prevailing practice, only in the absence of thosesurplus teachers, he was supposed to take classes or otherwise he has tobestow whole of his time in discharging the function of Headmaster. Ifthe document called for by the first petitioner in his letter dated1.2.1999 viz. the letter of other teacher Tmt. Vijayakumar dated10.12.1998 as well as the inspection report of the respondent dated10.12.1998 and earlier inspection held by another Officer on 9.1.1997would have definitely thrown much light as to the charges levelledagainst the first petitioner.
11. Therefore, the outright rejection of the request of thefirst petitioner for furnishing copies of those documents certainlycaused serious prejudice to the first petitioner and therefore on thatscore, all further proceedings would get vitiated. That apart, when theso called findings of the respondent dated 23.2.1999 is perused, I findthat the respondent has merely extracted the charges without consideringthe stand of the first petitioner and after placing reliance upon his own report, the letter of the first petitioner as well as the otherteacher Tmt.Vijayakumari and the earlier inspection report dated9.1.1997 (wrongly mentioned as 9.1.1999), proceeded to state that thecharges were found proved. Except making a reference to the charges,the explanation and the above referred documents, there was nodiscussion at all in the so called findings of the respondent to statehow the charges levelled against the first petitioner stood proved.
12. In such circumstances, such a finding cannot be consideredas a finding in the eye of law. All the above factors only go to showthat the respondent only had a farce of an enquiry and ultimately passedthe impugned order dated 9.3.1999 by imposing the punishment oftemporary demotion of the first petitioner for a period of one year.
13. Having regard to the above, I hold that the enquiry itselfis vitiated for failure on the part of the respondent to follow theprinciple of audi alteram partem and not having applied his mind whilerendering the findings of guilt as against the petitioner andconsequently, the ultimate order of punishment cannot stand. Therefore,on this ground as well, the impugned order is liable to be set aside.The writ petition therefore stands allowed.
14. Since the first petitioner, who reached the age ofsuperannuation as early as 28.2.2003 and the impugned order has now beenset aside, there should be no impediment in settling the terminalbenefits of the first petitioner to the dependants viz. petitioners 2 to4.
15. While setting aside the order impugned in this writpetition, the respondent is directed to settle the terminal benefitspayable to the first petitioner and disburse the same with applicableinterest to petitioners 2 to 4 in accordance with law expeditiouslypreferably within 3 months from the date of receipt of a copy of thisorder. Apart from the terminal benefits payable to the firstpetitioner, it was represented on behalf of the petitioners that inspite of allowing the first petitioner to function as Headmaster afterthe order of stay granted by this Court on 28.4.1999, he was not paidhis salary till the date of superannuation. If the said submission ofthe petitioner is true, it goes without saying that the salary payableto the first petitioner for the period between 9.3.1999 and the date ofhis superannuation 28.2.2003 with all increments and other benefitsshould also be paid in favour of petitioners 2 to 4. The non payment ofsalary and other benefits by the respondent at the relevant point oftime for no fault of the first petitioner is only due to the inaction ofthe respondent. Hence, it is just and proper that the respondent payinterest on such payments. Accordingly, the respondent is also directedto pay the salary payable to the first petitioner for the period between9.3.93 and 7.2.2003 with all increments and other benefits payable tohim along with simple interest @ 6% from the date the salary fell due inthe respective months till it is settled. Such payment should also be made within three months from the date of receipt of a copy of thisorder. The writ petition stands allowed. M.Ps. closed. No costs.
Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssa.ToThe District ElementaryEducation Officer,Tiruchirapalli.+ 1 cc to Mr.Sathish Parasaran,Advocate, SR.72347W.P. No.7564 of 1999JP(CO)EM/9.1.09
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