R.C.Middle School Melakavanoor, Paramakudi Taluk Ramanathapuram
4.Rev.Fr.Arul J.Prakasam Correspondent R.C.Middle School Melakavanoor, Paramakudi Ramanathapuram District
5.M.Sethupandian Enquiry Officer 7/200 (21), Vaigai Nagar Dharmarajapuram Paramakudi-623 707 Ramanathapuram District
6.Deputy Registrar of Cooperative Societies Singara Thoppu, Melachatram Paramakudi, Ramanathapuram District
7.The Special Officer N.N.509 Alankaramadha Teachers Thrift & Credit Society Limited C/o.Deputy Registrar of Cooperative Societies Singara Thoppu, Melachatram Paramakudi, Ramanathapuram District
8.Rev.Fr.Antony Michael Correspondent, R.C.Schools R.C.Church, Koottalur Kallal Union, Sivagangai District ... Respondents Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 02.07.2015 made in W.P.(MD) No.165 of 2008, on the file of this Court.
Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 02.07.2015 made in W.P.(MD) No.165 of 2008, on the file of this Court.
For Appellants : Mr.Isaac Mohanlal, Senior Counsel for Mr.T.Cibi Chakraborthy For Respondents : Mr.V.Panneerselvam for R1 Mr.V.R.Shanmuganathan Spl.Govt. Pleader for R2, R3, R5 & R6 No appearance for R4 :COMMON JUDGMENT T.S.SIVAGNANAM, J.,
These appeals by the writ petitioner as well as the Management are directed against the order, dated 02.07.2015, made in W.P.(MD) No.165 of 2008, which was filed to quash the order of the Correspondent, R.C.Middle School / third respondent in W.A.(MD) No.1206 of 2015, dated 20.12.2007, by which the appellant, who was working as a Secondary Grade Teacher in R.C.Middle School, Melakavanoor, Paramakudi Taluk, was dismissed from service. In this Judgment, the writ petitioner shall be referred as "the appellant" and the appellant - School shall be referred as "the Management".
2. The charge proceedings, which were initiated against the appellant pertain to certain events, which had taken place when he was discharging his duties as a Part-Time Clerk in a Co-operative Society called as ?Alankaramadha Teachers Thrift & Credit Society Ltd., Paramakudi, to which post he was appointed by the Management. In other words, the order of dismissal from service did not pertain to any allegation in the discharge of the appellant's duties as a Secondary Grade Teacher.
3. The facts, which are necessary for the disposal of this appeal are as hereunder:
3.1. The appellant was appointed as a Secondary Grade Teacher in R.C.Yadava Middle School, Melakavanoor, Paramakudi Taluk, on 18.12.1992. By a resolution, dated 02.02.1993, passed by N.N.509, Alankaramadha Teachers Thrift & Credit Society Ltd., (hereinafter, it may be referred to as "the Society"), the appellant was appointed as a Part-Time Clerk in the said Society. The said Society was formed by the Teachers working in various Private Aided Schools including R.C.Management Schools, which fell under the Corporate Management of R.C.Diocease. In or about July, 1999, the appellant came to know that the Correspondent of the School had issued Pay Certificates to eleven Teachers, who were ineligible to transact any business with the said Society and therefore, he addressed a letter, dated 28.07.1999, to the President of the Society bringing to his notice the said fact. Subsequently, since there was a change of President in the Society, a similar letter was sent by the appellant, on 10.09.1999, to the new President.
3.2. Subsequently, since Pay Certificates were issued to eight other Teachers, who were also ineligible and by then a Special Officer had taken over the Society, the appellant, sent a letter dated 23.07.2001, to the Special Officer bringing to his notice that the Correspondent of the School had issued Pay Certificates for eight ineligible persons. The ineligibility was on account of the fact that those Teachers to whom Pay Certificates were issued by the Correspondent were not employed in the Private Aided Schools or the R.C.Management Schools under the Corporate Management of the R.C.Diocease.
3.3. As the term of Office of the President of the Society was over and a Special Officer was appointed, the appellant addressed a letter to the Special Officer, dated 12.09.2002, stating that the Correspondent has issued Pay Certificates to five other ineligible persons. It appears that the Correspondent of the School addressed the Special Officer, by letter dated 15.09.2002, that there were instances in the past, where Pay Certificates were issued to the Teachers working under the Corporate Management and based on those Pay Certificates, they have obtained loan from the Society and following the same, he had issued Pay Certificates to the Teachers and requested the Special Officer to sanction loan to the five ineligible persons on an assurance that they will repay the amount without default.
3.4. The appellant being unable to continue further as a Part-Time Clerk resigned from the said post on 07.09.2005. Thereafter, during May, 2006, an enquiry was conducted under Section 82 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter, it may be referred to as "the Act") by the Deputy Registrar of Co-operative Societies. This ultimately, resulted in issuance of a charge memo, dated 24.07.2006, to the appellant. Though the charge memo was challenged by the appellant by filing a writ petition, in W.P.(MD) No.7376 of 2006, he submitted his explanation on 16.08.2006. Based on the complaint given by the Deputy Registrar of Cooperative Societies, dated 13.09.2006, an F.I.R., was registered against the appellant and he was arrested and remanded to judicial custody and subsequently, released on bail. It is thereafter, the Management cancelled the charge memo, dated 24.07.2006, by order, dated 09.10.2006. Subsequently, on 08.11.2006, the appellant was placed under suspension, which was to under challenge in W.P.(MD) No.826 of 2007. As the charge memo, dated 24.07.2006, was cancelled, the writ petition, in W.P.(MD) No.7376 of 2006, was dismissed as having become infructuous, by order, dated 17.11.2006.
3.5. Thereafter, the Management issued a second charge memo, dated 05.12.2006, to the appellant, containing six articles of charge. An Enquiry Officer was appointed to enquire into the charges by proceedings, dated 09.01.2007. The appellant challenged the second charge memo by filing a writ petition, in W.P.(MD) No.836 of 2007, wherein an order of interim stay was granted. The primary ground on which the second charge memo, dated 05.12.2006, was challenged in W.P.(MD) No.836 of 2007 was that the allegations in the charge memo would not come under the purview of the Code of Conduct framed under Rule 16(1) of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974, as the appellant had not committed any misconduct or violated the Code of Conduct. It was further contended that the charge Nos.1 and 2 are subject matter of the criminal case, in which F.I.R., is pending before the Sub-Inspector of Crime Branch, Paramakudi, and if the appellant is compelled to disclose his defence in the domestic enquiry, he will not get a fair trial in the criminal case.
3.6. The first contention was rejected by the Court by observing that the appellant cannot take a plea that only for a specific misconduct listed under the Code of Conduct action can be taken against him and with regard to the second contention, the Court observed that it can examine whether the charges of domestic enquiry and the criminal case are one and the same, only when a final report is filed by the Investigation Officer and not at the F.I.R., stage. Thus, the writ petition, in W.P.(MD) No.836 of 2007, came to be dismissed on 21.06.2007.
3.7. The Enquiry Officer commenced the enquiry, the appellant participated in the enquiry without any demur; the Correspondent examined six witnesses, who were all cross-examined by the appellant and both the appellant as well as the Management had filed their written submissions and the enquiry was concluded. At that stage, the Management scrapped the enquiry and appointed an Advocate as Enquiry Officer (second Enquiry Officer) by order, dated 23.08.2007. Subsequently, another Advocate was appointed as an Enquiry Officer by order, dated 03.09.2007, he being the third Enquiry Officer. After which, the writ petition filed by the appellant challenging the order of suspension in W.P.(MD) No.826 of 2007, which was taken up for hearing and the same was disposed of by order, dated 06.09.2007. The Court held that as the appellant has been kept under suspension and the Management has prevented the appellant from reporting to work on the basis of the pendency of domestic enquiry, the Management was bound to pay the full wages for the appellant pending disposal of the domestic enquiry. With such reasoning, a direction was issued that the appellant shall be entitled to get the arrears of salary before commencement of enquiry.
3.8. Soon after, by notice, dated 10.09.2007, the Enquiry Officer directed the appellant to appear for enquiry on 14.09.2007. This notice was received by the appellant on 11.09.2007. As the appellant had not received the arrears of salary as per the Court directions issued in W.P.(MD) No.826 of 2007, he sent a reply to the Enquiry Officer on 11.09.2007 to the said effect and also a representation to the Correspondent, on 27.09.2007, for payment of arrears of salary as per the Court directions. The Enquiry Officer issued a second notice, dated 28.09.2007, which was received by the appellant on 29.09.2007, directing him to appear for the domestic enquiry on 02.10.2007. The Correspondent along with the letter, dated 28.09.2007, sent a Cheque for Rs.1,13,500.40. The appellant's contention was that on the reverse of the Cheque, the seal of the Institution was affixed, but there was no signature, which would prevent him from encashing the Cheque. As the appellant was paid only a sum of Rs.1,13,500.40, he sent a letter to the Correspondent as well as the Enquiry Officer, dated 01.10.2007, stating that he is entitled to get Rs.2,21,000/- towards arrears of salary as per the Court directions. As the appellant had returned the Cheque for want of signature on the reverse of the Cheque, the signed Cheque was sent back to the appellant on 04.10.2007. On 06.10.2007, the appellant received a notice from the Enquiry Officer, dated 05.10.2007, directing him to appear for domestic enquiry fixed on 09.10.2007. A reply was sent by the appellant to the Enquiry Officer, on 08.10.2007, stating that as per the Court directions, he is yet to receive the entire arrears of salary and he will ready to participate in the domestic enquiry after receiving the entire arrears of salary.
3.9. In the meantime, the Cheque, which was issued to the appellant was presented for clearance and the amount being part of arrears of salary was credited to the appellant's account on 09.10.2007. Once again, the appellant submitted a representation to the Correspondent, on 19.10.2007, requesting for settlement of entire arrears of salary. However, there was no reply received by the appellant for these letters / representations. The Correspondent issued a second show-cause notice, dated 14.11.2007, enclosing a copy of the enquiry report submitted by the Enquiry Officer as it appears that he had proceeded with the enquiry ex parte on 09.10.2007. The appellant filed a contempt petition and an interim order was granted in the said contempt petition. However, on 20.12.2007, an order of punishment of dismissal was imposed on the appellant, which was challenged by him in W.P.(MD) No.165 of 2008, which came to be dismissed by the impugned order, dated 02.07.2015, and against which, the present writ appeal has been preferred.
3.10. The contempt petition, in Cont.P.(MD) No.374 of 2007 came up for hearing on 28.02.2008, on which date the Management handed over three Cheques to the appellant for a sum of Rs.35,283/-, Rs.11,961/- and Rs.1,905/-, of which Rs.11,961/- was the differential amount of arrears of salary for the period between November, 2006 and September, 2007. The appellant had earlier moved the learned Judicial Magistrate, Paramakudi, by way of a Discharge Petition to discharge him from the criminal, which was allowed by order, dated 05.04.2011 and the appellant was discharged from the criminal proceedings initiated against him.
4. Mr.V.Panneerselvam, learned counsel appearing for the appellant submitted that the Management having not paid the arrears of salary as per the directions issued by the Court, the Enquiry Officer could not have commenced the enquiry as there is a specific direction to pay the arrears of salary before commencing the enquiry, therefore, the ex parte enquiry proceedings is vitiated.
5. It was further contended that the enquiry was fully completed by the first Enquiry Officer, witnesses were examined by the Management, cross-examined by the appellant and their respective written submissions were filed and for certain reasons best known to the Management, the said enquiry was scrapped and another Enquiry Officer was appointed, to which the appellant raised objections and the Management agreed to change the Enquiry Officer and appointed a third Enquiry Officer. Thus, it is evidently clear that there is no valid reason for scrapping the first Enquiry proceedings especially when the same had been fully completed. Further, the third Enquiry Officer denied opportunity to the appellant to defend himself in the domestic enquiry and proceeded with utmost haste ignoring the letters / representations sent by the appellant, wherein he had stated that he is yet to receive the full arrears of salary as per the Court directions. Therefore, the domestic enquiry is vitiated and the consequential order of dismissal is illegal.
6. Mr.Isaac Mohanlal, learned Senior Counsel assisted by Mr.T.Cibi Chakraborthy, learned counsel appearing for the Management, while seeking to sustain the order passed in the writ petition, submitted that the teachers working in the schools run by the corporate management alone can become members of the Society and the duty of the appellant / part-time clerk is to collect the loan applications, distribute the loan amount to the member teachers, recover the amount with interest, deposit the same in the Society and maintain necessary accounts for the same.
7. It is submitted that the appellant manipulated 23 application forms with the signature of the Correspondent of the School and misused them by taking loans in favour of the persons, who were not members and few, who were not teachers. In that way, the appellant's wife, who was working in a different school also received the loan amount.
8. With regard to the payment of salary as ordered by the Court, it is submitted that on 28.09.2007, the Management paid a sum of Rs.1,13,500.40 towards salary of the appellant for about 11 months from November 2006 to September 2007, but the appellant returned the cheque saying that the Correspondent has not signed on the reverse of the cheque and claimed further sum of Rs.2,21,000/-. As the claim of the appellant was not tenable, the cheque was sent back to the appellant, who received the same and encashed it through his banker. The enquiry proceedings resumed on 14.09.2007 and the Enquiry Officer issued a notice to the appellant directing him to appear for enquiry on 14.09.2007. The Management and their witnesses were present for enquiry on the said date. However, the appellant was absent.
9. The Enquiry Officer issued another notice directing the appellant to appear on 02.10.2007 and on the said date, the Management and their witnesses were present, but once again the appellant was absent. The appellant sent a letter to the Enquiry Officer, requesting him to conduct enquiry, after re- instating him and disbursing the entire salary. The Management placed the order of this Court before the new Enquiry Officer and produced the documents regarding payment of salary in compliance of the said order.
10. Being satisfied with the explanation of the Correspondent of the School, the Enquiry Officer issued another notice directing the appellant to appear on 09.10.2007. In the said notice, it was indicated that if the appellant absent on the said day, the enquiry would be proceeded ex-parte. The Management and their witnesses were present at 4.00 p.m. on 09.10.2007, but the appellant remained absent and therefore, the enquiry was postponed by one hour waiting for appellant's arrival. Since till 6.00 p.m, the appellant did not turn up, the Enquiry Officer commenced the enquiry and the Management examined their witnesses.
11. By report dated 05.11.2007, the Enquiry Officer found that the charges were proved, and the said report was forwarded to the appellant giving him an opportunity to submit his further explanation within seven days. The appellant sought for seven more days to submit his explanation by his letter dated 21.11.2007 and the same was permitted by the Correspondent, vide telegram, dated 27.11.2007.
12. The appellant did not come to collect his salary, which fell due on 30.10.2010, but he chose to file contempt petition before this Court with incorrect facts. The Correspondent placed the details regarding payments made to the appellant and the contempt petition was closed by order, dated 28.02.2008, reserving the right of the appellant to agitate the issue of non- payment of salary in the present proceedings.
13. As the appellant did not submit his further explanation, the Correspondent considered the Enquiry Officer's report and accepted the same and dismissed the appellant from service by order dated 20.12.2007. Thus, the appellant was afforded full opportunity in the domestic enquiry, which he failed to avail and the Enquiry Officer, after considering the evidence placed by the Management, held that the charges were proved and further opportunity was granted to the appellant to submit his further explanation, which he failed to avail and considering the gravity of the charge, the punishment imposed on the appellant is proper.
14. Thus, it is submitted that it is not a case, where the appellant was not afforded an opportunity, but it is a case, where the appellant failed to avail the opportunity granted to him and was adopting dilatory tactics. This aspect of the matter was elaborately dealt with by the learned Single Judge while dismissing the writ petition and this Court cannot convert itself as an Appellate Authority over the disciplinary action initiated against the appellant. In support of such contention, reliance was placed on the decision of the Honourable Supreme Court in S.R.Tewari vs. Union of India, reported in (2013) 6 SCC 602.
15. It is further submitted that the non-appearance of the appellant on the date fixed by the Enquiry Officer would clearly show that the appellant was adopting dilatory tactics and he cannot complain that there has been violation of principles natural justice. In support of such contention, reliance was placed on the decision of the Honourable Supreme Court in S.B.I. vs. Hemant Kumar, reported in (2011) 5 MLJ 845 (SC).
16. It is further submitted that the Management had complied with the directions issued by the Court and paid the arrears of salary and the appellant cannot contend that he was put to prejudice merely because the salary for the subsequent months were paid thereafter and unless the appellant establishes that he has been put to prejudice, the same cannot vitiate the domestic enquiry. In support of such contention, reliance was placed on the decision of the Honourable Supreme Court in U.P State Textile Corpn. Ltd. vs. P.C.Chaturvedi, reported in (2005) 8 SCC 211.
17. During the course of argument, the learned Senior Counsel for the Management would contend that it is true that the Management has sent a proposal to the District Educational Officer seeking approval for the punishment of compulsory retirement as directed by the Writ Court in the impugned order, but they are aggrieved by the direction in paragraph No.26 of the impugned order, wherein the Management was directed to disburse the monetary benefits due to the appellant.
18. It is further submitted that the said direction cannot be construed so as to mean that the Management has to pay salary from its funds, but what the Court has ordered is only disbursement of the monetary benefits, which would mean that the Government has to sanction the grant, which will be disbursed to the appellant. Therefore, to that extent the learned Senior Counsel submits that this Court should make things clear so that the Government can sanction salary for the appellant.
19. The learned Special Government Pleader appearing for the official respondent submitted that the order passed by the Writ Court is lucid and clear to indicate that it is the Management, which has to pay the salary and the Government cannot be compelled to release the grant, especially when the Court found that the salary has to be disbursed by the Management on account of the fact that the appellant could not have been kept under suspension beyond the period of four months. Therefore, it is submitted that the Management has to pay the salary and the Government should not be directed to release the grant for the appellant for the relevant period.
20. By way of reply, the learned counsel for the appellant submitted that out of the six charges, which were framed against the appellant, the Enquiry Officer held that five charges have been proved and the sixth charge has not been proved, whereas the Writ Court erroneously observed that all the charges have been proved.
21. With regard to the allegation that the appellant has manipulated 23 application forms with the signature of the Correspondent and misused them for taking loans in favour of those persons, who were not members, it is submitted that the same is totally incorrect as during the enquiry, under Section 82 of the Act, the then Correspondent of the respondent-School categorically accepted that those applications, which contain Pay Certificates, were given by him. The other loan applications have a printed column, wherein the Correspondent is required to sign and the Pay Certificate, which is also in a format, has to be filled up and signed by the Correspondent. Unless the signature of the Correspondent is there, the application forms will not be acceptable and after full scrutiny, the loan will be sanctioned by the Special Officer and in this process the appellant has no role to play.
22. It is further submitted that with regard to the first two charges, both enquiry under Section 82 of the Act, 1983 as well as the findings recorded by the Criminal Court, it is clear that the appellant is not involved in the alleged manipulation. In the enquiry conducted under Section 82 of the Act, the two Correspondents, namely, Mr.Baastin and Mr.Antony Michal categorically admitted that the Pay Certificates given to those persons were not employed in the respondent - School. This statement will clearly establish that the appellant has not manipulated the 23 application forms.
23. It is further reiterated that the Correspondent of the School was away from India between 01.08.2002 and 20.10.2002, whereas the loans were sanctioned during the period 1991 and 2001. Though in the report submitted under Section 82 of the Act, it was held that 25 persons, including the appellant were involved, no action has been initiated against any other person except the appellant. It is only one witness of the Management, namely, Mr.A.Paul, who is also a beneficiary of the loan, alleged that the appellant manipulated the pay certificates.
24. Sofar as the allegations in Charge Nos.3 and 4 are concerned, no such incident took place. After expiry of the leave, the appellant reported to the Headmaster, however, he was not permitted to join duty and directed to meet the Correspondent. The Correspondent directed the appellant to get Fitness Certificate from the Medical Board. But, the Medical Board refused to entertain the appellant as the original Medical Certificate has not been received by the Board from the Correspondent. Thus, it is the Correspondent, who has bent upon not permitting the appellant to join duty.
25. It is further submitted that in the domestic enquiry, the Officer of the Medical Board was not examined and the charges were not substantiated and therefore, the findings of the Enquiry Officer are perverse. When the situation remained thus, the appellant was compelled to approach this Court by filing the writ petition in W.P (MD) No.10133 of 2006, for a direction to permit him to join duty, in which notice was ordered to the respondents and on coming to know about the same, the appellant was placed under suspension, by order dated 08.11.2006. Thereafter, the appellant received a letter from the Medical Board directing him to appear on 13.11.2006 at 10.00 a.m., and the letter was served on the appellant on the evening of 13.11.2006 well after the time fixed. The appellant is entitled for medical leave as he has sufficient medical leave to his credit. With regard to fifth charge is concerned, the same is baseless as the appellant was approaching the Management to permit him to join duty and the question of sending a letter by post does not arise.
26. We have elaborately heard the learned counsel for the parties and carefully perused the materials placed on record.
27. The two major issues, which we are required to be decided in these appeals are
(i) Whether the Enquiry Officer afforded sufficient opportunity to the appellant to putforth his contentions in the domestic enquiry and whether the appellant was guilty of adopting dilatory tactics? and
(ii) Whether there has been full and effective compliance of the order passed in W.P (MD) No.826 of 2007, dated 06.09.2007, by which the Court directed that the arrears of salary has to be paid to the appellant before commencing the domestic enquiry?
28. In the preceding paragraphs, we have set out the dates and events, from which it is seen that the appellant filed W.P (MD) No.826 of 2007 challenging the order of suspension, dated 08.11.2006. The said writ petition was disposed of by an order, dated 06.09.2007, by directing the Management to pay full salary to the appellant pending disposal of the domestic enquiry initiated against him. The appellant was also warned not to indulge in dilatory tactics and must cooperate in completing the enquiry, if the enquiry starts on the basis of the appointment of the Enquiry Officer. The enquiry was directed to be proceeded on the day-to-day basis and both the parties were directed to extend their full cooperation in completing the enquiry. Once again, it was reiterated that the appellant shall get the arrears of salary before the commencement of the enquiry.
29. The moot question would be has there been full and effective compliance of the directions issued by the Court. It may be relevant to point out at this juncture that the enquiry, which ultimately resulted in the order of dismissal, was conducted by the third Enquiry Officer appointed by the Management. The first Enquiry Officer sent notice, dated 09.07.2007 and the enquiry was conducted from 16.07.2007 to 07.08.2007. The appellant participated in the enquiry, the Management had produced six witnesses, who were examined and cross-examined by the appellant and the enquiry was concluded and both the parties filed their written submissions. It is not known as to why the said enquiry was scrapped and another Enquiry Officer was appointed on 23.08.2007. This appointment was opposed by the appellant and the Management acceded to change the Enquiry Officer and the third Enquiry Officer was appointed on 03.09.2007. Thus, we are of the view that it is not as if the appellant failed to cooperate with the Management in the conduct of the domestic enquiry. The fact that the appellant attended the first enquiry from 16.07.2007 and 07.08.2007 and cross-examined the Management witnesses would be a good indication to show that the appellant was cooperating with the Management in the progress of the disciplinary proceedings.
30. The respondent ? Management in order to enable the commencement of the domestic enquiry was required to comply with the directions issued by this Court, in W.P.(MD) No.826 of 2007, dated 06.09.2007, by which the entire arrears of salary had to be paid to the appellant before commencement of the enquiry.
31. The undisputed facts are that after the said writ petition was disposed of, on 06.09.2007, the Enquiry Officer sent a notice, dated 10.09.2007, to the appellant directing him to appear for enquiry on 14.09.2007. Admittedly, on the said date, the arrears of salary had not been paid to the appellant. Therefore, the Enquiry Officer committed an error in directing the appellant to appear for enquiry on 14.09.2007. This was brought to the notice of the Enquiry Officer by the appellant vide letter, dated 11.09.2007 and a representation, dated 27.09.2007, was submitted to the Correspondent of the School to pay the arrears of salary as per the Court order. The Enquiry Officer ignored the representation of the appellant and sent a fresh enquiry notice, dated 28.09.2007, to the appellant directing him to appear for enquiry on 02.10.2007. Simultaneously, on the same day, a letter was sent by the Correspondent to the appellant enclosing a Cheque for Rs.1,13,500.40. On receipt of the cheque, the appellant found on the reverse of the cheque, the official seal of the Management was affixed, but it did not contain any signature of the Correspondent. The appellant's case is that when he presented the cheque, the Banker refused to accept the same as in the reverse of the cheque the seal of the Management alone was found without signature. Therefore, the cheque was returned by the appellant and he submitted a representation on 01.10.2007 i.e., one day prior to the date fixed for enquiry (02.10.2007) bringing the error committed in the cheque to the notice of the Management and also stated that the entire arrears of salary, which the appellant is entitled to, is Rs.2,21,000/-. The respondent ? Management did not dispute the amount claimed by the appellant, but sent the cheque back to the appellant after affixing the signature on the reverse of the cheque, which was received by the appellant on 04.10.2007. Therefore, the non- participation in the domestic enquiry fixed on 02.10.2007 cannot be attributed to the appellant but attributable to the Management for the error committed by them.
32. Once again, on 05.10.2007, a notice was sent by the Enquiry Officer to the appellant directing him to participate in the enquiry to be held on 09.10.2007. One day prior to the enquiry, the appellant informed the Enquiry Officer by his letter, dated 08.10.2007, that the entire arrears of salary has not been settled and he is willing to participate in the enquiry after receiving the entire arrears of salary. Since the appellant did not receive any reply from the Enquiry Officer either accepting or rejecting his request, the appellant did not report before the Enquiry Officer on 19.10.2007. There appears to have been a stalemate in the matter, which necessitated the appellant to submit another representation on 09.10.2007 to settle the entire arrears of salary. For nearly a month, there was no communication from the Management or from the Enquiry Officer, but the appellant was served with a second show-cause notice, dated 14.11.2007, enclosing a copy of the enquiry report submitted by the Enquiry Officer based on the enquiry said to have been conducted on 09.10.2007 after setting the appellant ex parte. The appellant moved this Court by way of a contempt petition, in Cont.P.(MD) No.374 of 2007, alleging wilful disobedience of the order and directions issued by this Court for payment of arrears of salary, in which an interim order was granted. Thereafter, on 20.12.2007, an order of dismissal from service came to be passed, which has been challenged by the appellant in W.P.(MD) No.165 of 2008.
33. When the contempt petition, in Cont.P.(MD) No.374 of 2007, came up for hearing on 28.02.2008, the Management handed over three cheques to the appellant, one of which was for the differential amount of salary payable for the period from November, 2006 to September, 2007. The fact that the differential amount was paid for the said period would clearly show that the entire arrears of salary was not settled to the appellant.
34. The learned Senior Counsel appearing for the respondent ? Management would contend that merely because there is an alleged deficit in payment of the arrears of salary, that by itself would not vitiate the enquiry proceedings as the appellant has not been put to any prejudice on account of the non-payment of the said differential amount and the differential amount can at best be treated as a calculation mistake and it is neither deliberate nor with a view to cause prejudice to the appellant. In this regard, the learned Senior Counsel placed reliance upon the decision of the Honourable Supreme Court in the case of P.C.Chaturvedi (supra). In the said decision, the Honourable Supreme Court considered the effect of non-payment of subsistence allowance payable to an employee and whether prejudice was caused to the employee on account of non-payment of subsistence allowance and on the facts of the said case, it was held that the respondent / employee therein had not established that he had been prejudiced for non-payment of subsistence allowance.
35. In our view, the said decision is of no assistance to the case of the Management, as in the present case, the payment of arrears of salary was directed by the Court vide its order, dated 06.09.2007. The Management was bound to truly and faithfully comply with the order in its entirety and not entitled to take any technical stand so as to circumvent the effect of the order. In fact, full and effective compliance is a pre-requisite and any defence raised by the Management should be discarded as a moon-shine defence.
36. We are not inclined to accept the stand taken by the Management stating that the difference in arrears of salary could have accrued due to calculation mistake. As the Management is well aware as to what is the scale of pay the appellant is entitled to, such a technical defence has to be outrightly rejected. As observed earlier, the Management having accepted the order passed by the Court, dated 06.09.2007, ought to have taken all steps to fully comply with the order, pay the entire arrears of salary and only thereafter could have proceeded with the domestic enquiry. The Enquiry Officer appears to have acted in great haste as he had issued the first enquiry notice on 10.09.2007 and well before the Management could comply the Court Order directing payment of arrears of salary. In spite of the appellant's representation, the Enquiry Officer was once again compelled the appellant to attend the enquiry on 02.10.2007. Thus, it is clear that there is a tinge of bias on the part of the Enquiry Officer in the manner in which he attempted to proceed with the enquiry. An Enquiry Officer, who is appointed to conduct domestic enquiry, though appointed by the Management, is an independent Officer, who has to enquire into the matter regardless of the fact who has nominated him as Enquiry Officer. If he failed to discharge his duty in an unbiased and neutral manner, it is sufficient to hold that the enquiry proceedings are vitiated and tainted with mala fide and bias.
37. We failed to understand as to why the Management acted in such a great haste manner. Admittedly, the first enquiry though fully completed as on 07.08.2007, the Management thought fit to scrap the enquiry and appointed another Enquiry Officer (second Enquiry Officer) and subsequently, the third Enquiry Officer. In such circumstances, if the Management wanted the enquiry to be proceeded in a proper manner, they should have first complied with the orders passed in the writ petition fully taking note of the representation of the appellant claiming a higher sum. If the appellant is not entitled to the same, then the Management ought to have sent a reply to the said effect by disputing the claim of the appellant. However, nothing was done in this regard and the enquiry was proceeded ex parte. Taking note of all these facts, the Management cannot take a stand that the appellant was adopting dilatory tactics rather it is the Management, who wanted to somehow complete the enquiry, despite the fact that the appellant submitted representations to the Management requesting for full compliance of the Court order. Therefore, the Management cannot rely upon the decision in the case of S.B.I. vs. Hemant Kumar (supra) as the facts in the said case were entirely different.
38. Thus, we are satisfied that the Enquiry Officer failed to afford sufficient opportunity to the appellant and the Enquiry Officer could not have commenced the enquiry proceedings on the said date as there has not been full and effective compliance of the Court order directing payment of arrears of salary. This inherent defect goes to the root of the matter vitiating the entire proceedings as well as the ultimate order of dismissal. Thus, we are fully satisfied that there has been a gross violation of principles of natural justice, which would vitiate the entire proceedings. Thus, the major two issues, which were framed for consideration are answered in favour of the appellant and against the Management.
39. In the light of the above, we have no hesitation to hold that the entire domestic enquiry was vitiated and consequently, the order of dismissal from service passed against the appellant deserves to be set aside.
40. For all the above reasons, the entire enquiry proceedings are set aside and the matter is remitted back to the Management for fresh consideration. As we have made very pointed observations about the Enquiry Officer, who conducted the domestic enquiry, he shall not be permitted to conduct the fresh enquiry, which we are to order in this appeal.
41. In the result, writ appeal in W.A.(MD) No.1206 of 2015 is allowed and the order, dated 02.07.2015 made in W.P.(MD) No.165 of 2008 is set aside. Consequently, the writ petition is allowed and the order of dismissal, dated 20.12.2007, as well as the entire domestic enquiry proceedings, including the report of the Enquiry Officer, are quashed. We direct the Management to appoint fresh Enquiry Officer, commence the enquiry proceedings afresh and complete the same within a period of four weeks from the date of receipt of a copy of this Judgment. Till the fresh enquiry proceedings are completed, the appellant is entitled to his salary and the arrears of salary till the commencement of the enquiry shall be paid in full and thereafter, notice of enquiry shall be issued. The Enquiry Officer is directed to proceed on day- to-day basis and we direct the appellant as well as the respondent ? Management to extend their full cooperation in completing the enquiry. In the light of the above, W.A.(MD) No.628 of 2017 stands disposed of. Consequently, connected miscellaneous petition is closed. No costs.
To:
1.The District Elementary Educational Officer, Ramanathapuram, Ramanathapuram District.
2.The Assistant Elementary Educational Officer, Paramakudi, Ramanathapuram District.
3.The Deputy Registrar of Cooperative Societies, Singara Thoppu Melachatram, Paramakudi, Ramanathapuram District.
4.The Special Officer, N.N.509 Alankaramadha Teachers Thrift & Credit Society Limited, C/o.Deputy Registrar of Cooperative Societies, Singara Thoppu, Melachatram, Paramakudi, Ramanathapuram District.
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