WP/18671/2005 of P.BalaRaja Reddy Vs The Government of Andhra Pradesh, rep. by its Principal on 31 December 2013

ORDER:

The petitioners were Junior Lecturers in the Collegerun by the fourth respondent-society, having beenappointed as Junior Lecturer in Chemistry in 1988 andJunior Lecturer in English in 1993 respectively. Theychallenge the order of the first respondent-Governmentdated 03.08.2005 dismissing the petitioners from serviceby allowing the appeal of the fourth respondent-societywhich questioned the orders of the third respondent dated 12.08.2004. As a consequential relief, they seek forreinstatement of the petitioners together with all servicebenefits with effect from 09.04.2002 on which date thedismissal of the petitioners came into force.

2. The petitioners claimed that they are thePresident and the Secretary of Catholic Association. They allegedly indulged in criminal activity leading tooutraging the modesty of the Headmistress of St. Joseph’s English Medium School by name Rev. SisterM.J. Theresamma on 21.06.1999 leading to criminal caseagainst the petitioners. The ultimate dismissal of thepetitioners by the management was challenged by thepetitioners before the third respondent-Regional JointDirector of Intermediate Education, Kadapa region (RJD,for short). The RJD allowed the representation of thepetitioners and set aside the orders of the fourthrespondent dated 09.04.2002 dismissing the petitionersfrom service. He directed the management of the fourthrespondent to reinstate the petitioners into service.

The fourth respondent in his turn preferred appeal to thefirst respondent-Government. The first respondent-Government set aside the orders of the RJD dated12.08.2004 and restored the orders of the management ofthe fourth respondent in dismissing the petitioners fromservice.

3. The petitioners were Junior Lecturers in the College run by the fourth respondent. The fourthrespondent runs a high school also in the same premiseswhere the junior college is maintained. The petitionersconsidered that the fourth respondent was collectingabnormal, unreasonable and exorbitant fee in the schoolwing. On 21.06.1999 the petitioners along with othersagitated against the management demandingrationalization of the pay structure.

4. Sri G. Gopala Rao, learned counsel for the fourthrespondent submitted that where the petitioners wereemployees of the fourth respondent-Society which alsoruns the junior college wherein the petitioners wereworking as well as St. Joseph’s English Medium schoolwhere the alleged exorbitant collection of fee occurred,the petitioners could have discussed the problem with theManagement instead of going to the school and behavedin an unruly manner.

5. As rightly submitted by Sri V. Venkateswarulu,learned counsel for the petitioners, there was no need forthe petitioners to go and agitate unless the Managementwas paying no attention to the cause in question. It is notthe case of anybody that the petitioners and the fourthrespondent were otherwise inimically disposed towardseach other and that the petitioners took advantage of thesituation to create uncongenial atmosphere in the school.

It is common experience that merely because anemployee makes a representation to the management,the management would not take serious note of therepresentation and tries to redress the grievance of theemployee; lest they should not have been any incidenceof strike. I, therefore, am not able to appreciate thecontention of the learned counsel for the fourthrespondent that the petitioners ought to have entered intoa dialogue with the management for the redressal of theirgrievances and the grievances of various parents of thechildren going to the school.

6. The case of the fourth respondent, however, isthat the conduct of the petitioners was so reprehensiblethat it is a fit case for dismissal of the petitioners fromservice.

7. St. Joseph’s English Medium School is arecognized private educational institution. Rev. Sr.Theresamma is the Headmistress of the school. On 21.06.1999 at about 9 a.m. while the Headmistresswas coaching students of the 7[th] class, the petitioners andothers went to the classroom where the Headmistresswas teaching and called her to her office room. It is thecase of the fourth respondent that when the Headmistressaccordingly went into her office room and when she wentout immediately as someone attempted to take herphotograph, an outburst was lashed against the Headmistress by the petitioners.

The claim of the fourth respondent as can be seen fromthe charge No.1 is that the petitioners trespassed into St. Joesph’s English Medium School premises withoutprior permission of the Headmistress, used abusive,indecent and filthy language against the Headmistressand other staff members of the school in the presence ofmale and female persons, who gathered in the office roomof the Headmistress and thus disturbed the peace andtranquility as well as discipline and decorum of theschool. It is alleged that the conduct of the petitioners wastantamount to indiscipline, gross misconduct andbehaviour against the moral turpitude.

8. The second charge is that the petitioners left theCollege without obtaining prior permission which istantamount to violation of Rule 24 (2)(f) of the A.P. PrivateEducational Institutions Employees Conduct Rules, 1985. The petitioners were also charged for allegedly tamperingwith the attendance register to show as if they hadobtained prior leave.

9. The learned counsel for the fourth respondentcontended that the conduct of the petitioners covered bycharge No.1 was reprehensive and that there was noneed to behave in a unruly manner and in a fashion whichcaused apprehension in the mind of the Headmistress thus exhibiting criminal behaviour, even if theManagement was collecting high fee from the students. Admittedly, Rev. Sr. Therasamma, Headmistress of theschool lodged a complaint which was registered as F.I.R.under Sections 448, 506 and 509 read with Section 34IPC. A case was instituted against the petitioners who areA.2 and A.1 and three others as C.C.No.310 of 1999. Thelearned Judicial First Class Magistrate, Kurnool found thepetitioners and other accused guilty of the offences underSections 448, 506 and 509 IPC. They were sentenced tosimple imprisonment for a period of three months, apartfrom being sentenced to fine. In Crl. Appeal No.85 of2000, the learned III Additional Sessions Judge, Kurnoolconfirmed the conviction, but set aside the imprisonment. However, this Court set aside the conviction also throughjudgment dated 21.02.2003 in Crl. Revision Case No.202of 2001.

10. It is the case of the learned counsel for therespondents that the petitioners being Junior Lecturesshould have conducted themselves with dignity and wereexpected to set example to the students with their conductand behaviour rather than behaving in an unruly manner. It is his contention that albeit notice was not needed tosuspend the petitioners on account of their conviction in acriminal case, show cause notice was issued. Curiously,the plaintiffs approached the civil Court and laid O.S.No.481 of 2000 on the file of the Principal Junior CivilJudge, Kurnool and obtained interim direction against thesuspension orders by way of orders in I.A.No.746 of2000. Consequently, the fourth respondent revoked thesuspension orders through proceedings dated29.07.2000. Subsequently, the very suit was dismissed. The petitioners were placed under suspension once againby the fourth respondent through orders dated14.12.2001.

11. Subsequently, a charge memo was issued tothe petitioners. By then, Crl.R.C.No.202 of 2001 waspending. The petitioners responded to the charge memostating that the proceedings were sub-judice.

The petitioners deemed it appropriate not to give adetailed answer to the charge memo. The fourthrespondent applied to the third respondent for extensionof the suspension order for a period of two months inorder to hold enquiry. The third respondent permitted thefourth respondent to conduct enquiry and extended theperiod of suspension for a period of two months throughorders dated 12.02.2002. Be it noted that the chargememo was issued on 24.01.2002 itself. It is contended bythe petitioners that the fourth respondent did not conductany enquiry, but issued a provisional show cause noticefor dismissal on 23.03.2002.

The petitioners submitted explanation on 05.04.2002.

The dismissal order, however, was passed by the fourthrespondent on 09.04.2002.

12. The petitioners availed a statutory appeal underSection 80 of the Andhra Pradesh Education Act, 1982(Education Act, for short) by preferring an appeal to thethird respondent-RJD. As already noticed, the thirdrespondent-RJD allowed the appeal on 12.08.2004mainly on the ground that proper enquiry was not held. The fourth respondent filed appeal before theGovernment. The Government in its turn set aside theorder of the third respondent and confirmed the order ofdismissal passed by the fourth respondent. It iscontended by the learned counsel for the petitioners thatthe first respondent passed orders without considering theground on which the third respondent allowed the appealof the petitioners. The learned counsel for the petitionersplaced reliance upon Section 79 of the Education Actwhich envisages that the dismissal, removal, reduction orsuspension of an employee of a private institution can beafter an enquiry in which the employee had been informedall the charges levelled against him.

13. It is contended by the learned counsel for thepetitioners that enquiry was not conducted by the fourthrespondent in terms of Sec.79 of Education Act. The firstcontention of the learned counsel for the petitioners in thisregard is that the fourth respondent did not appoint any Enquiry Officer and that the Disciplinary Authority itselfconducted the enquiry. The learned counsel for thepetitioners further submitted that Sec.79 of Education Actdid not permit the Disciplinary Authority to conduct theenquiry. A reading of Sec.79 of Education Act shows thatit envisages that an enquiry is to be conducted afterintimating due charges to the delinquent employee. Thereis no embargo that enquiry cannot be by the DisciplinaryAuthority itself.

14. The second ground of procedural attack by thelearned counsel for the petitioners is that the fourthrespondent did not obtain prior approval of the competentauthority for the removal of the petitioners from service. Sec.79 (1) proviso adumbrates that orders of dismissal,removal or reduction of rank can be passed against anemployee with the prior approval of the competentauthority. However, the proviso contains an exceptionthat it does not apply to minority educational institutions. Itis the contention of the learned counsel for the fourthrespondent that the fourth respondent is a minorityeducational institution and that the prior approval of thecompetent authority is not necessary. The orders of theGovernment repeatedly referred to the fourth respondent-society as a minority educational institution. I, therefore,consider that Sec.79 (1) proviso does not apply to thecase of the petitioners.

The dismissal of the petitioners without prior approval ofthe competent authority, therefore, cannot be questionedas violative of Section 79 (1) proviso.

15. It is contended by the learned counsel for thepetitioners that the proceedings of the third respondentdated 12.08.2004 clearly show that no enquiry wasconducted before the removal of the petitioner. Evidently,charge sheet was issued against the petitioners framingthree charges. Again, the order of the fourth respondentdated 09.04.2002 clearly shows that the fourthrespondent wanted to hold a detailed enquiry and that thepetitioners did not cooperate for the enquiry. Therepeated stand of the petitioners is that the criminal caseis pending against them, so much so, the petitionerscannot be forced to submit themselves the enquiry. Theylater claimed that since they were acquitted in the revisionbefore the High Court, the departmental enquiry is liable tobe closed.

16. In M. Paul Anthony v. Bharat Gold Mines Ltd.[[1]], itwas held that when departmental proceedings andcriminal case are based on identical set of facts andevidence in both the proceedings is common, the acquittalof the employee by the criminal court should automaticallylead to closure of the departmental enquiry. However, thedepartmental enquiry in the present case and the criminal case are quite distinct. The criminal case is for thetrespass and criminal intimidation whereas thedepartmental enquiry is for the unruly behaviourconstituting misconduct. I am afraid that acquittal of thecriminal case cannot lead to automatic closure of theenquiry against the petitioners. The learned counsel forthe petitioners also contended that there must be enoughmaterial to hold the petitioners guilty in a departmentalenquiry.

17. I n Hardwari Lal v. State of U.P.[[2]], materialwitnesses were not examined in the departmentalenquiry. The Supreme Court held that enquiry should bevitiated. It may be noticed that when the petitionersrefused to submit themselves for a departmental enquiry,they cannot later turn round and claim that there was noenquiry and that their removal/dismissal from service,therefore, was illegal. In Roop Singh Negi v. Punjab National

Bank[[3]], the Supreme Court held that departmentalproceedings are quasi judicial proceedings, so much so,the charges levelled against the delinquent must beproved by proper evidence. When charges were levelledagainst the petitioners and when the petitioners did notcooperate, the statements of the Headmistress and otherstaff members who are present at the time of the incident,I am afraid, are sufficient to find the petitioners guilty of thecharge. The petitioners, consequently, cannot take shelter in this case under the fact that there was no enquiryagainst the petitioners. The petitioners cannot approbateand reprobate at one time and at the same time refused toproceed with the enquiry on the one hand and claim thatthere was no enquiry on the other hand.

18. Regarding charges 2 & 3, there is no properevidence that the petitioners did not apply for casual leaveand that they tampered with the attendance register. Sofar as charge No.1 is concerned, in view of the nature ofthe imputations and the failure of the petitioners torespond to the imputations, I have no alternative but tohold that the charge has been made out.

19. Once it is found that the petitioners were guiltyof unruly behaviour being belonging to teaching fraternity,the extreme penalty of dismissal from service certainly isappropriate. The finding of the first respondent-Government that the petitioners were guilty of charge No.1and were liable to be dismissed from service,consequently, does not deserve to be interfered with. Isee no merits in this writ petition.

20. The writ petition is accordingly dismissed. No costs. Miscellaneous Petitions, if any, pending in thiswrit petition shall stand closed.

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Dr. K.G. Shankar, J

Date: 31.12.2013Isn

[1]AIR 1999 SC 1416AIR 1999 SC 1416[2](1999) 8 SCC 582(1999) 8 SCC 582[3]2009 (1) Scale 2842009 (1) Scale 284