IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06-07-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.319 of 2010 and
M.P.No.1 of 2010 and
W.P.No.24391 of 2009
S.A.No.319 of 2010:
1. Hindustan Institute of Technology
And Science (a deemed University)
(HITS), rep. By its Chairman,
presently Hindustan University,
rep. By its Registrar,
No.40, G.S.T.Road,
St.Thomas Mount, Chennai-600 016.
K.C.G.Varghese (Died) No.LRs
Is recorded as per memo dated 25.7.2006
2. The Registrar,
Hindustan College of Engineering
Presently Hindustan University,
No.40, G.S.T.Road,
St.Thomas Mount, Chennai-600 016. .. Appellants
Versus
S.J.Srinivasan .. Respondent.
PRAYER: Appeal against the judgment and decree, dated 30.11.2007, made in A.S.No.94 of 2006, on the file of the Principal District Judge, Kancheepuram at Chengalpattu, partly reversing the judgment and decree of the trial Court, dated 21.2.2006, made in O.S.No.755 of 2002, on the file of the Principal Subordinate Court, Chengalpattu.
For Appellants : Mr.M.Umashankar
For Respondent : Mr.S.J.Srinivasan
Party-in-person
W.P.No.24391 of 2009:
S.J.Srinivasan .. Petitioner
Versus
1. The Secretary,
University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi-110 002.
2. Hindustan University
Hindustan Institute of Technology and Science
Rep. By The Chancellor,
(Formerly, The Chair-Person,
Hindustan College of Engineering)
40, G.S.T.Road, St.Thomas Mount,
Chennai-600 016.
3. The Registrar,
Hindustan University
Hindustan Institute of Technology and Science
(Formerly, The Registrar,
Hindustan College of Engineering)
40, G.S.T.Road, St.Thomas Mount,
Chennai-600 016. .. Respondents.
PRAYER: Petition filed under Article 226 of the Constitution of India, praying for a Writ Mandamus, directing the respondents, to reinstate me in service, with continuity of service and arrears of salary, along with all other consequential benefits of service.
For Petitioner : Mr.S.J.Srinivasan
Party-in-person
For Respondents : No Appearance (R1)
Mr.R.Umashakar (R2 & R3)
J U D G M E N T
Since common issues are involved in both the second appeal in S.A.No.319 of 2010 and in the writ petition in W.P.No.24391 of 2009, a common order is passed by this Court.
2. The second appeal has been filed against the judgment and decree, dated 30.11.2007, made in A.S.No.94 of 2006, on the file of the Principal District Court, Chengalpattu, Kancheepuram District, partly reversing the judgment and decree of the trial Court, dated 21.2.2006, made in O.S.No.755 of 2002, on the file of the Principal Subordinate Court, Chengalpattu.
3. The plaintiff, who is the respondent in the present second appeal, had filed the suit, in O.S.No.755 of 2002, on the file of the Principal Subordinate Court, Chengalpattu, praying for a judgment and decree against the defendants therein, declaring that the termination order, dated 2.4.1998, is illegal and void and for a direction to the defendants to pay a sum of Rs.1,00,000/-, as damages and for costs.
4. The plaintiff had stated that he is a Civil Engineering Graduate. He had been appointed, as an Associate Lecturer in the first defendant College, in the Department of Civil Engineering, by an order of the second defendant, dated 21.9.1989. Later, he had been promoted as a Lecturer and thereafter, as a Senior Lecturer. He had been assigned the additional responsibility of being incharge of the construction of the college campus, with effect from 18.11.1996, as per the order, dated 6.1.1997, and he had been paid an additional remuneration of Rs.2,000/- per month. It had been increased to Rs.4,000/- per month, from the month of January, 1997. While so, on 22.1.1998, he had been served with a notice detailing certain charges, in respect of his additional duties. Based on the charges issued, the plaintiff had been suspended from service. Another charge memo, dated 25.2.1998, had also been issued to the plaintiff and he had been asked to appear for an enquiry to be held, on 6.3.1998.
5. In the meantime, the second defendant had displayed on the college notice board and had also circulated the information that the college had suffered a loss of Rs.20 lakhs, on account of the plaintiffs careless approach in carrying out his duties. The plaintiff had submitted his reply to the charges levelled against him and he had also requested the defendants to furnish him the names of the members constituting the enquiry committee. He had also expressed his fears about the fairness of the enquiry. On a wrong presumption that the enquiry would be conducted only after the requests made by the plaintiff were fulfilled, he had not attended the enquiry that had been held on 6.3.1998. Thereafter, the plaintiff had received a notice, dated 2.4.1998, signed by the third defendant, terminating the services of the plaintiff, with immediate effect. Since, the plaintiff had not been given an opportunity to put forth his case during the enquiry, he had filed the suit for declaration, declaring the termination order, dated 2.4.1998, as illegal and void and for damages caused to him.
6. In the written statement filed on behalf of the defendants it had been stated that the plaintiff did not act in the interest of the institution, while discharging his additional duties. Excess payments had been made by the plaintiff, to the contractors, for the construction of the Arts College building. Further, he had not maintained the necessary records relating to the works. Charges had been framed and a charge memo had been issued to the plaintiff asking him to give his explanation. The plaintiff had also been called for an enquiry held on 6.3.1998. However, the plaintiff had not attended the said enquiry. Thereafter, an order had been issued to the plaintiff suspending him from service. Since, the plaintiff had not attended the enquiry held, on 6.3.1998, an exparte order had been passed against him. The enquiry conducted against the plaintiff was fair and proper, as he had been given an opportunity of being heard. Thereafter, by an order, dated 2.4.1998, the plaintiffs services were terminated. The plaintiff had also filed a false complaint against the defendants, in Crl.O.P.No.17972 of 1998.
7. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
1) Whether the plaintiff is entitled to declaration, as prayed for?
2) Whether the plaintiff is entitled to a sum of Rs.1,00,000/- as damages?
3) To what reliefs is the plaintiff entitled?
8. The plaintiff was examined as P.W.1 and 10 documents had been marked on his side, as Exs.A-1 to A-10. One witness had been examined, as D.W.1 and no document had been marked on the side of the defendants.
9. After analysing the evidence on record, the trial Court had held that the termination order passed against the plaintiff was valid and that he is not entitled to damages, as prayed for by him. With regard to the issue relating to the allegation that certain damages had been caused to the plaintiff, the trial Court had found that the allegation of the plaintiff that the defendants had committed an offence, under Section 500 of the Indian Penal Code, due to the publication of the notice in Ex.A-7, cannot be accepted, in view of the fact that the High Court of Judicature at Madras had quashed the criminal case initiated by the plaintiff, in C.C.No.124 of 1998, on the file of the Judicial Magistrate No.I, Chengalpattu. The trial Court had held that the explanation offered by the plaintiff, in his reply, dated 3.3.1998, were found to be unsatisfactory. It had also found that the plaintiff had intentionally abstained from the personal enquiry held by the respondent management, on 6.3.1998.
10. Aggrieved by the judgment and decree of the trial Court, dated 21.2.2006, made in O.S.No.755 of 2002, the plaintiff had filed an appeal, in A.S.No.94 of 2006, on the file of the Principal District Court, Chengalpattu.
11. The First Appellate Court had framed the following points for consideration:
1) Whether the termination order, dated 2.4.1998, is to be set aside?
2) Whether the plaintiff is entitled for a decree, as prayed for in the suit?
3) Whether the decree and judgment of the trial Court is sustainable?
4) To what relief?
12. The First Appellate Court had found from Exs.A-1 and A-2 the terms and conditions of the assignments given to the plaintiff. It had also found that the Principal of the first defendant college had issued a notice, dated 22.1.1998, marked as Ex.A-3, listing out the irregularities committed by the plaintiff in the construction work, based on which the plaintiff had been suspended from service, with effect from 23.1.1998. The plaintiff had been asked to submit his explanation, under Ex.A-3 and accordingly, the plaintiff had submitted his explanation, on 10.12.1998, which had been marked as Ex.A-4.
13. A charge memo, dated 25.2.1998, marked as Ex.A-5, had been issued to the plaintiff and the plaintiff had also been asked to appear for an enquiry, on 6.3.1998. The reply submitted by the plaintiff, on 3.3.1998, had been marked as Ex.A-6. The notice displayed on the college notice board had been marked as Ex.A-7, wherein it had been stated that due to the negligent activities of the plaintiff a loss of Rs.20 lakhs had occurred to the first respondent college. The plaintiff had received Ex.A-8 order from the first defendant terminating his service, with immediate effect. In view of the documents marked and on the oral evidence adduced, the First Appellate Court had held that the disciplinary proceedings against the plaintiff was vitiated due to the failure of the defendants in following the principles of natural justice. Therefore, the First Appellate Court, while dismissing the claim of the plaintiff for damages, had declared the termination order, dated 2.4.1998, as illegal and void. However, it had granted liberty to the defendant management to conduct fresh proceedings on the basis of the charge memo already issued to the plaintiff, in accordance with the established procedures of law.
14. Aggrieved by the judgment and decree of the First Appellate Court the defendants had filed the present second appeal raising the following questions, as substantial questions of law:
1) Whether the suit is not maintainable for reinstatement under Section 9 C.P.C?
2) Whether any second show cause notice must be issued before termination of service in lieu of amendment of Article 311 of the Constitution of India.
15. The learned counsel appearing on behalf of the appellants had submitted that the First Appellate Court had erred in partly reversing the well-considered judgment and decree of the trial Court, dated 21.2.2006, made in O.S.No.755 of 2002, while the trial Court had correctly found that the termination of the respondent from service by way of Ex.A-8 order, dated 2.4.1998, to be just and proper. The First Appellate Court had erred in partly reversing the judgment and decree of the trial Court without correctly appreciating the evidence available on record. It had also been submitted that the First Appellate Court had failed to see that, under Section 9 of the Civil Procedure Code, 1908, no suit lies against the termination of the service of an employee, by a private institution. The First Appellate Court had committed an error in holding that the misconduct committed by the respondent had not been established, even though D.W.1 had given elaborate evidence to establish the serious misconduct committed by the respondent.
16. It had also been stated that the First Appellate Court had erred in law in holding that no second show cause notice had been issued before the termination of the service of the respondent. In view of the amendment of Article 311 of the Constitution of India, there is no necessity for issuing a second show cause notice. The First Appellate Court ought to have held that the respondent had not attended the enquiry held, on 6.3.1998, inspite of sufficient information having been given to him about the said enquiry. As such, the First Appellate Court ought not to have found that the termination of the respondent from service, by way of an order, dated 2.4.1998, marked as Ex.A-8, is contrary to the principles of natural justice.
17. The respondent, appearing as party in person, had submitted, inter alia, that the order of termination passed by the appellant management, on 2.4.1998, is vitiated by mala fides. The appellant management had been spreading the false information that the respondent was responsible for causing a monetary loss to the tune of Rs.20 lakhs, with regard to the additional assignment given to him, relating to the construction of the buildings in the college campus. The appellant management had not given the necessary documents, even though the respondent had requested for the same, before he was to appear for the enquiry. An enquiry had been conducted, on 6.3.1998, without putting the respondent on proper notice and without giving him an opportunity of being heard. Therefore, the order of termination of the respondent from service issued, by the appellant management, on 2.4.1998, is arbitrary, illegal and void. In such circumstances, the First Appellate Court was right in declaring the order of the termination, dated 2.4.1998, as illegal and void. No case has been made out on behalf of the appellants for this Court to set aside the well-considered judgment and decree of the First Appellate Court, dated 30.11.2007, made in A.S.No.94 of 2006. Further, no substantial questions of laws have been framed by the appellants for the consideration of this Court in the present second appeal.
18. The respondent in the second appeal had filed a writ petition before this Court, in W.P.No.24391 of 2009, praying that this Court may be pleased to direct the respondents, to reinstate the petitioner in service, with continuity of service and arrears of salary, along with all other consequential benefits of service.
19. He had submitted that in spite of the judgment and decree of the First Appellate Court, made in A.S.No.94 of 2006, setting aside the termination order issued by the appellant management, on 2.4.1998, the petitioner in the writ petition had not been reinstated in service. Further, the back wages due to the petitioner had not been paid by the appellant management, till date. Since, it is extremely difficult for the petitioner in the writ petition, who is the respondent in the second appeal, to make a living, without being gainfully employed, he had prayed that this Court may be pleased to issue a direction to the concerned respondents in the writ petition to pay the arrears of salary, as prayed for in the writ petition.
20. At this stage of the hearing of the second appeal and the writ petition, the learned counsel appearing on behalf of the management of the Hindustan Institute of Technology and Science, Chennai, had submitted that an enquiry would be held against the petitioner in the writ petition and that it would be conducted, based on the charge memo issued to him by following the established procedures for conducting such enquiries, including the principles of natural justice. He had also submitted that the enquiry would be completed, within a period of three months after the receipt of the copy of the order to be passed by this Court.
21. The petitioner in the writ petition, who is the respondent in the second appeal, had submitted that he would participate in the enquiry to be conducted by the management of the Hindustan Institute of Technology and Science. However, he had submitted that the arrears of salary and the other benefits that would have accrued to him, if he had continued in service, ought to be paid to him before the enquiry is initiated by the respondents in the writ petition, who are the appellants in the second appeal.
22. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellants in the second appeal have not shown sufficient cause or reason for this Court to interfere with the findings of the First Appellate Court, in its judgment and decree, dated 30.11.2007, made in A.S.No.94 of 2006. The First Appellate Court after analysing the evidence available on record, both oral as well as documentary, had come to the conclusion that the order of termination from service passed against the respondent in the second appeal who is the writ petitioner in the writ petition, on 2.4.1998, marked as Ex.A-8, had been issued, without following the principles of natural justice. The First Appellate Court had found that the employee had not been given sufficient opportunity to putforth his case, in respect of the charges alleged against him, by the management of Hindustan Institute of Technology and Science, Chennai. While confirming the judgment and decree of the trial Court, with regard to the claim of the respondent in the second appeal, for damages, the First Appellate Court had reversed the judgment and decree of the trial Court, dated 21.2.2006, made in O.S.No.755 of 2002, and had directed the management of the college to conduct a fresh enquiry against the respondent in the second appeal, based on the charge memo already issued to him.
23. It is also an admitted fact that the management of the college had not paid any salary to the respondent employee from the date of his termination from service. If the respondent in the second appeal had been kept under suspension from service, before he had been terminated from service, in view of the order, dated 2.4.1998, issued by the college management, the setting aside of such termination order could only be taken to mean that the employee would continue to be under suspension and that he may be eligible to receive subsistence allowance, as per the service rules and regulations applicable to him.
24. The respondent in the second appeal had submitted that he has been out of service for nearly 12 years and that he has not been employed elsewhere and that his salary and other remunerations that he would have received, if he would have continued in service, would amount to a substantial sum. He had also submitted that in view of the fact that the First Appellate Court had set aside the order of termination, dated 2.4.1998, by its judgment and decree, dated 30.11.2007, the respondent ought to be reinstated in service, with all backwages and other benefits that would have accrued to him before an enquiry is initiated, as stated by the learned counsel appearing on behalf of the appellants.
25. In view of the submissions made by the learned counsel appearing on behalf of the Management of Hindustan Institute Technology and Science, Chennai, and Mr.S.J.Srinivasan, appearing as party-in-person, this Court is of the considered view that the appellants in the second appeal have not shown sufficient cause or reason to interfere with the findings of the first appellate Court, in its judgment and decree, dated 30.11.2007, made in A.S.No.94 of 2006. As such, the second appeal stands dismissed. However, there is no order as to costs.
26. Further, in view of the submissions made by the learned counsel appearing for the Management of the Hindustan Institute of Technology and Science, Chennai, this Court finds it appropriate to direct the second respondent Management, namely, Hindustan University, Chennai, to conduct an enquiry against the petitioner in the writ petition, in W.P.No.24391 of 2009, following the procedures established by law, including the principles of natural justice, based on the charges already issued against him, as per the judgment and decree of the first appellate Court, dated 30.11.2007, made in A.S.No.94 of 2006, within a period of three months from the date of receipt of a copy of this order. The writ petition stands closed, with the above directions. However, it is made clear that it would be open to the petitioner in the writ petition to work out his remedies, with regard to his monetary and other service benefits, before the appropriate forum, in the manner known to law, after final orders are passed, pursuant to the enquiry to be conducted by the Management of Hindustan University, Chennai. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 06-07-2010 Internet:Yes/No csh To 1. The Principal District Judge, Kancheepuram at Chengalpattu 2. The Principal Subordinate Court, Chengalpattu. 3. The Secretary, University Grants Commission, Bahadur Shah Zafar Marg, New Delhi-110 002. 4. The Chancellor, Hindustan University Hindustan Institute of Technology and Science 40, G.S.T.Road, St.Thomas Mount, Chennai-600 016. 5. The Registrar, Hindustan University Hindustan Institute of Technology and Science 40, G.S.T.Road, St.Thomas Mount, Chennai-600 016. M.JAICHANDREN,J Csh S.A.No.319 of 2010 and M.P.No.1 of 2010 and W.P.No.24391 of 2009 06-07-2010