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THE SECRETARY versus THE JOINT DIRECTOR OF SCHOOL EDUCATION

High Court of Madras

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The Secretary v. The Joint Director of School Education - Writ Appeal (MD)No.103 of 2007, [2007] RD-TN 2584 (2 August 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02/08/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN

and

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Writ Appeal (MD)No.103 of 2007,

Writ Appeal (MD)Nos.104 and 105 of 2007

and

Writ Petition (MD)Nos.1247 to 1249 of 2007

The Secretary,

Arulmighu Andavar Subramania Swamy

Girls Higher Secondary School,

Thirupparamkundram,

Madurai-625 005. ... Appellant & Petitioner in all the WAs & WPs. vs.

1.The Joint Director of School Education

cum Appellate authority,

DPI Building, College Road,

Chennai-600 006.

2.The Chief Educational Officer,

Madurai. ... Respondents 1 & 2 in WAs & WPs. 3.Mrs.Amirthavalli ... R-3 in WA 103/2007 & W.P.1248/2007 4.Mrs.Selvarani ... R-3 in WA 104/2007 W.P.1249/2007 5.Mrs.Umarani ... R-3 in WA 105/2007 W.P.1247/2007 Writ Appeals under Clause 15 of Letters Patent against the Order dated 16.02.2007 made in M.P.(MD)NOs.1, 2 & 2 of 2007 in W.P.(MD)NOs.1247 to 1249 of 2007.

Writ Petitions under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records relating to the impugned order bearing No.Na.Ka.87126/G2/06, dated 23.01.2007, passed by the first respondent and quash the same.

For Appellant ... Mr.G.R.Swaminathan Petitioner

For Respondents ... Mr.R.Janakiramulu, 1 and 2 Spl.Govt.Pleader. For Respondent ... Mr.N.Anantha Padmanabhan No.3 in all the

WAs and WPs.

:COMMON JUDGMENT



(Judgment of the Court was delivered by P.D.DINAKARAN,J) The above writ appeals are preferred by the writ petitioners against the order of the learned single Judge, dated 16.02.2007, made in M.P.(MD)Nos.1, 2 & 2 of 2007 in W.P.(MD)NOs.1247 to 1249 of 2007 filed by the petitioners seeking stay of the order of the first respondent in Na.Ka.87126/G2/G6/06, dated 23.01.2007, while ordering Notice of Motion in the writ petitions, which is to the following effect:

"The petitioner is directed to permit the third respondent in all these writ petitions to join duty forthwith and also pay the arrears of salary and other amount if any they are entitled to within a period of four weeks."

2.When the writ appeals are taken up for hearing, by consent, the main writ petitions themselves are also taken up for disposal. 3.1.The facts which led the writ petitioner to file the above writ petitions are briefly as under:

The writ petitioner/management, based on a complaint, dated 09.02.2004, given by a retired Headmaster of the School, issued a charge memo dated 18.03.2007 to the third respondent/teacher in W.A.No.104/2007 and charge memos dated 08.04.2004 were issued to the third respondent/teachers in W.A.Nos.103/2007 and 105/2007, which formed the basis for the disciplinary action taken against them. In continuation of the charge memos, explanations were submitted by the third respondent/teachers, Enquiry Officer was appointed and upon enquiry, the enquiry officer submitted his report on 13.08.2004. Based on the enquiry officer's report, on 19.08.2004 the writ petitioner/management resolved to dismiss the three delinquent teachers and the said resolution was sent to the second respondent, the competent authority under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "the Act"), for prior approval and the competent authority also granted its approval on 11.12.2005, pursuant to which the writ petitioner/management issued orders of dismissal dated 14.02.2005 dismissing the three delinquent teachers. 3.2.However, the three delinquent teachers, challenging the orders of dismissal, preferred appeal before the Joint Director of School Education, the appellate authority under the Act, who, by order dated 23.01.2007, set aside the order of the original authority finding that the appointment of the Secretary of the School himself as enquiry officer, who is the complainant against the delinquent teachers, was contrary to provisions of Section 18(1)(C) of the Act, the Rules framed thereunder and also against the principles of natural justice and, therefore, the enquiry itself is vitiated. 3.3.The main grievance of the writ petitioner/ management is that while setting aside the order of the original authority on the ground of procedural lapse in conducting the enquiry, the appellate authority ought to have given liberty to the management to proceed with the enquiry afresh from the stage where the mistake had crept in, but the appellate authority had not given such a liberty to the management and therefore the school management was constrained to file the writ petitions challenging the order of the appellate authority.

4.Learned counsel for the appellant submitted that pursuant to the directions of the learned Single Judge, the third respondent/teachers were permitted to join duty in the appellant/management school and the school management is aggrieved over the direction of the learned Single Judge in directing them to pay the arrears of salary and other amounts to which the teachers are entitled to within a stipulated period. Learned counsel for the appellant contended that the learned Single Judge, overlooking the fact that the orders of dismissal were given effect to only after getting prior approval of the competent authority, directed the management themselves to pay the arrears of salary, which fact was not duly and properly brought to the notice of the learned Single Judge.

5.We also heard the learned Special Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent/teachers.

6.It is true that the original orders of dismissal were passed only after obtaining the prior approval of the competent authority. However, inspite of prior approval of the competent authority, the dismissal orders were set aside by the appellate authority on the ground that the appointment of the School Secretary, who is the complainant against the delinquent teachers and placed them under suspension, himself as the enquiry officer was contrary to the provisions of the Act and the Rules and also against the principles of natural justice. It is settled law that the complainant himself cannot be the enquiry officer or judge for his own cause as the maxim "nemo judex in causa sua" or "nemo debet esse judex in propria causa sua" means. - [(2003) 4 SCC 557 - Cana Bank and others vs. Debasis Das and others]. But, still, indisputably the charges levelled against the delinquent teachers survive and they were not quashed, as the dismissal orders were not quashed on the merits of the matter. In that view of the matter, even though the appellate authority has not specifically granted any liberty to the management to proceeded with the denovo enquiry from the stage where the mistake had crept in, in accordance with law, it is implied that the school management has every right to proceed with the denovo enquiry on the charges already framed against the delinquent teachers from the stage of the appointment of enquiry officer. It is a settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits as the matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law - [(1996) 9 SCC 322 - State of Punjab and others vs. Dr.Harbhajan Singh Greasy].

7.The learned Special Government Pleader, appreciating the fact that the delinquent teachers were dismissed from service only after the prior approval of the competent authority as provided under 22 of the Act and Rule 17 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 and the petitioner school management being an aided school, the management themselves cannot be wholly responsible for the illegality crept in, namely appointing the Secretary of the School himself as the enquiry officer, when he is the complainant against the delinquent teachers.

8.Therefore, in our considered opinion, it may not be proper to direct the management to pay the arrears to the delinquent teachers, particularly the school being an aided school. Hence, in the facts and circumstances, we dispose of both the writ appeals and the writ appeals with the following directions.

(i)The petitioner school management are at liberty to proceed with the enquiry from the stage of appointment of enquiry officer, strictly in accordance with law;

(ii)the petitioner school management shall give fair and reasonable opportunity to the third respondent/teachers, in the event of initiation of denovo enquiry as permitted above, before passing the final orders; and (iii)the competent authority/second respondent is directed to sanction the arrears of salary and other benefits payable to the third respondent/teachers within a period of eight weeks from the date of receipt of a copy of this order.

9.The writ appeals and the writ petitions are disposed of accordingly. No costs. Connected M.P.(MD)No.1 of 2007 in W.A.Nos.103 to 105/2007 and M.P.(MD)Nos.1, 2 & 2 of 2007 in W.P.Nos.1247 to 1249 of 2007 are closed.

gb.

To

1.The Joint Director of School Education

cum Appellate authority,

DPI Building, College Road,

Chennai-600 006.

2.The Chief Educational Officer,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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