D.SUNILKUMAR Vs. CHIEF EDUCATIONAL OFFICER

JUDGEMENT

(1.) The Petitioner challenged the order of termination dated 31.5.2007 passed by the Second Respondent and consequently, is seeking for a direction for reinstatement of his service with consequential benefits. The case of the Petitioner is that he was appointed as Post Graduate Teacher (History) in the Second Respondent-School on 25.6.2002. The Second Respondent attempted to victimize the Petitioner by citing some frivolous reasons. He passed an order of termination on 4.1.2007 and the same was challenged by the Petitioner before this Court in W.P. (MD) No. 270 of 2007. Though the said order was set aside by this Court, a liberty was given to the Second Respondent to proceed afresh. Thereafter, the Petitioner was reinstated in service on 9.3.2007. However, he was suspended on the very next day. Without paying salary arrears and subsistence allowance, the Second Respondent conducted an enquiry. The Petitioner refused to participate in the enquiry, since he was not paid the salary arrears. The entire proceedings were made as an eyewash. The Second Respondent thereafter, changed the Enquiry Officer and appointed one Dr. M. Ajmalkhan. The Second Respondent-Management instead of paying the subsistence allowance to the Petitioner directly, had remitted the same in his Bank Account and also instructed the Bank Manager not to permit the Petitioner to withdraw the same. Therefore, the Petitioner was not in a position to participate in the enquiry. Thus, the Petitioner was set ex parte and the Enquiry Officer submitted one sided report. Consequently, the Second Respondent issued a Show-Cause Notice on 12.3.2007 for which, the Petitioner filed a reply on 28.3.2007. Thereafter, the Second Respondent issued another Show-Cause Notice on 15.5.2007. When the Petitioner challenged the same in the Writ Petition in W.P. (MD) No. 4829 of 2007, the same was adjourned for want of production of translated copies of the documents. In the mean time, the Second Respondent passed the present impugned order on 31.05.2007 terminating the Petitioner from service. Thus, the present Writ Petition is filed before this Court.

(2.) The Third Respondent filed a Counter Affidavit. It is stated therein that the Petitioner was appointed as Post Graduate Assistant (History) at the Second Respondent-School on 25.6.2002. There was no animosity against the Petitioner as contended by him. On the other hand, as he had indulged in very many serious acts of misconduct, he was terminated from service on 4.1.2007. When the said order was challenged before this Court in W.P. (MD) No. 270 of 2007, the same was set aside with liberty to initiate fresh proceedings in accordance with law, after reinstating the Petitioner in service. Accordingly, he was reinstated in service on 9.3.2007 and subjected to Disciplinary action. He was placed under suspension pending enquiry by an order, dated 12.3.2007. The Petitioner was paid all salary arrears as well as subsistence allowance in accordance with law. He was issued with a Charge Memo, dated 12.3.2007. Five charges were levelled against the Petitioner. The charges levelled against him, were in the nature of very serious misconduct. The Management called for written explanation from the Petitioner and copies of all the basic documents were enclosed along with the said Charge Memo. As the explanation submitted by the Petitioner, dated 28.3.2007, was far from satisfactory and not acceptable to the Management, the School Committee decided to conduct a full-fledged domestic enquiry. One Mr. Manakaran Martin, an independent practising Advocate was appointed as an Enquiry Officer. A notice fixing the date of enquiry on 25.4.2007 was sent to the Petitioner. The Petitioner did not attend the enquiry and however, sent a communication on 21.4.2007. In order to give further opportunity, the enquiry was adjourned to 2.5.2007 and accordingly, a Notice was also sent to the Petitioner on 26.4.2007. Again the Petitioner sent a telegram on 2.5.2007 refusing to attend the enquiry on certain reasons. The Petitioner also requested for change of Enquiry Officer. The Management appointed new Enquiry Officer and sent a Notice on 3.5.2007 to the Petitioner calling upon him to appear for the enquiry on 7.5.2007. The Petitioner refused to attend the enquiry. The Enquiry Officer adjourned the enquiry finally to 10.5.2007 and to that effect a notice was also sent on 7.5.2007 to the Petitioner. The Petitioner refused to attend enquiry again and however, sent a letter on 8.5.2007. Therefore, having left with no other option the Enquiry Officer set the Petitioner ex parte and proceeded with the enquiry and concluded the same. Thereafter, he filed a Report, dated 14.5.2007, which was placed before the School Committee and deliberated in the meeting. The Enquiry Officer had found that all the charges levelled against the Petitioner as proved. Accordingly, the School Committee accepted the finding of the Enquiry Officer and decided to terminate the service of the Petitioner. To that effect, a second show-cause notice, dated 15.5.2007, was sent to the Petitioner, by enclosing copies of the Enquiry proceedings and report of the Enquiry Officer. Even after the receipt of the said Show-Cause Notice, the Petitioner, instead of submitting his explanation, filed a Writ Petition before this Court in W.P. (MD) No. 4829 of 2007, seeking for quashing Disciplinary proceedings. However, even before any Notice was served on the Management, a final order in the Disciplinary proceedings came to be passed on 31.5.2007, terminating the Petitioner from service as he had not submitted his explanation to the second Show-Cause Notice within the stipulated time. The Management also sent copy of the Termination Order to the First Respondent as well as the District Educational Officer seeking their approval of the termination of the Petitioner. In the meantime, the Writ Petition in W.P. (MD) No. 4829 of 2007 was also dismissed as withdrawn.

(3.) It is further contended by the Third Respondent that the enquiry was conducted strictly by following the Principles of Natural Justice by giving adequate opportunity to the Petitioner on several occasions which he failed to utilize. The enquiry was conducted by an independent person. All the proceedings were placed before the School Committee and the actions taken were based on the unanimous decision of the School Committee and the Third Respondent had not acted in his individual capacity. The Second Respondent-School is a minority institution and therefore, there is no requirement for seeking prior approval from the Competent Authority before passing the order of termination. The Third Respondent, in his counter Affidavit, had also extracted the other acts of conduct of the Petitioner to show that his activities were unbecoming of a teacher. Since the Petitioner had indulged in eve-teasing of the students and teachers, the punishment imposed on the Petitioner cannot be described as highly excessive or disproportionate.