M. VINCENT PAUL Vs. CHIEF EDUCATIONAL OFFICER

JUDGEMENT

(1.) This Writ Petition has been filed by the petitioner challenging the correctness of the impugned order dated 29.07.2002 passed by the second respondent/the Correspondent, Little Flower Higher Secondary School, Salem made in Confidential No. 15/2001 and to quash the same and direct the second respondent to reinstate the petitioner in service, with all the benefits. Assailing the impugned order of removal passed against the petitioner, Mr. C. Selvaraj, learned senior counsel appearing for the petitioner contended that the petitioner was working as PG Assistant by giving best performance in the second respondent school from the year 1992 onwards. After the Headmaster joined the school in the year 1997, when the petitioner questioned the Headmaster that he has been declared to have passed in III class in Master Degree, as there are only I and II classes in Master Degree, the Headmaster started to give troubles to the petitioner and finally at his instigation, the petitioner was issued with a charge memo dated 30.08.2001 on the ground that on 29.03.2001 at about 2.30 p.m., the petitioner indulged in homosexual activity with one Allaudin Basha, a student of IX Std. B in a toilet, which is an unimaginable allegation, implicating the petitioner in a bad taste. How ever, the petitioner after receiving the charge memo, submitted a detailed explanation on 2-9-2001 denying other allegations as baseless.

(2.) Learned senior counsel appearing for the petitioner further contended that the allegation in the charge memo indicates that when the said occurrence took place on 29.03.2001, it was seen by three persons working in the school viz. S. Sahayanathan, Office Assistant, P. Karthikeyan and S. Kulandaisamy, but, unfortunately all these three persons have not been examined and besides, it is not known as to why the respondents have taken five months time to frame charges against the petitioner, when the allegations were so serious. Further, the respondents filed a Criminal Case against the petitioner in C.C. No. 344 of 2001 before the Judicial Magistrate, Salem and the charges mentioned in the Criminal Complaint are one and the same in the charge memo issued to the petitioner on 30.08.2001, therefore, the petitioner on earlier occasion had filed W.P. No. 19185 of 2001 before this Court against the charge memo dated 30.08.2001 on the ground that the departmental proceedings cannot be proceeded on the same set of criminal charges pending for trial before the Criminal Court. This Court granted an order of stay of the departmental proceedings. However, by subsequent order dated 24.07.2002, the respondent Management was allowed to take final decision. By virtue of the said order, the petitioner was removed from service.

(3.) Per contra, Mr. Isac Mohanlal, appearing for R2/School, while arguing for dismissal of the writ petition, would submit that the petitioner, from the date of his appointment on 06.02.1992 as PG Assistant (Political Science) in the respondent/School has given room for controversies due to complaints by students about his unnatural sexual behavior towards them. In fact, when there was one such complaint on 11.11.1992, he was severely warned. Again on 29.03.2001 at about 2.35 p.m., one S. Sahayanathan-Office Assistant working in the School informed the Headmaster that he saw the petitioner taking a 9th Standard student by name N. Allaudin Badsha to the Bathroom. On such information, the Headmaster asked him and two other staff available there viz., Karthikeyan (Teacher) and S. Kulandaiswamy (Non-Teaching Staff) to go and find out as to why the student was taken by the petitioner, whereupon, they went to that place and found the student standing inside without trousers and underwear and the writ petitioner, on seeing them, escaped via playground. The student was brought to the Headmaster who enquired him. The student told that the petitioner took him to the Bathroom and attempted to commit unnatural sex with him and that, on seeing the staff, he fled away. Subsequently, the victim/student's parents also lodged a criminal complaint. Since there was a commotion amongst the students/staff in the school due to the bad behavior of the petitioner, the Management also decided to lodge a complaint with the police and accordingly, a written complaint was given to the Inspector of Police, Hasthampatti Police Station, Salem, and the said complaint was registered as CSR. 57/2001. Pursuant to registration of the FIR in Crime No. 182 of 2011 under Section- 377 read with 511 IPC, the petitioner was arrested on 31.03.2001 and remanded to judicial custody in the Central Prison, Salem, from 01.04.2001. On receiving intimation from the Chief Educational Officer, he was placed under suspension by orders dated 04.04.2001 and such order was communicated to him through the Jail Superintendent. The Staff Council in its emergency meeting held on 29.03.2001 passed a Resolution insisting upon the Management to take severe action and the Teachers Association also, by passing a Resolution expressed its fullest co-operation for the prospective action that would be taken against the petitioner. Since the incident was widely published in several Newspapers, the reputation of the Institution was severely damaged. Therefore, rightly, the charge memo dated 30.08.2001 was issued for three climes mentioned therein with annexure of copies of relevant documents, asking the petitioner to give his explanation within seven days. After submission of his explanation, finding no merits therein, the Management decided to conduct an enquiry and accordingly, an Enquiry Committee was appointed, however, the petitioner could successfully drag the proceedings till 25.09.2001 under one pretext or the other and on the said date, all the witnesses were directed to be present. By prolonging the enquiry proceedings, simultaneously, the petitioner had filed a writ petition in W.P. No. 19185 of 2001 and obtained an order of interim stay on 12-10-2001. Subsequently, the Management filed an application to vacate the said interim stay. This Court, by orders dated 08.03.2002, vacated the interim stay with a direction to the effect that Disciplinary proceedings must proceed without any further delay, however, no final decision shall be taken without reference to this Court. In due compliance with such direction, the Management, after completion of the enquiry, filed an application before this Court seeking leave to take a final decision on the disciplinary proceedings and such leave was granted on 24.07.2002. Consequently, the Enquiry Committee took the final decision that the petitioner was guilty of the charges by holding that the explanations offered by him were not tenable. The management, agreeing with the findings of the Enquiry Committee, passed the impugned order of removal from service on 29.07.2002. Five months after the order of removal, the criminal court also convicted the petitioner by imposing 2 years imprisonment and a fine of Rs. 2,000/-, vide orders dated 15.02.2003 passed in C.C. No. 344 of 2001. As against that, the petitioner preferred an appeal before the Sessions Court, Salem, in Criminal Appeal No. 44 of 2003 and by judgment dated 17.08.2004, the appeal was dismissed, confirming the order of the trial court. The petitioner, aggrieved by the same, filed Crl. R.C. No. 2094 of 2004 before this Court and, by order dated 04.07.2006, he was acquitted giving benefit of doubt. According to the learned counsel, the argument of the learned Senior Counsel for the petitioner that having regard to the findings given by this Court in the Criminal Revision Case by holding that the charge of homosexual behavior shown by the petitioner has not been proved, the Disciplinary Proceedings under the same set of charges and the ultimate outcome therein cannot be sustained, may have to be just brushed aside since the law is well settled that even if criminal case and departmental proceedings proceed against the incumbent based on the same set of facts and evidence, and if the criminal case is ended in honourable acquittal and not on any technical ground, imposing punishment of removal of the delinquent from service based on the findings of the domestic enquiry is legally sustainable for the simple reason that the standard of proof required for holding a person guilty by a criminal court and in the enquiry conducted by way of disciplinary proceeding is entirely different. Moreover, it is well settled position that mere acquittal by the criminal Court does not entitle the delinquent for exonerating in the disciplinary proceedings. Therefore, none of the submissions made on behalf of the petitioner deserves acceptance and this Court may have to dismiss the writ petition at threshold, he ultimately pleaded.