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N.M.S. Kamaraj Polytechnic … vs Director Of Technical Education … on 16 September, 2004

Madras High Court
N.M.S. Kamaraj Polytechnic … vs Director Of Technical Education … on 16 September, 2004
Equivalent citations: (2004) 4 MLJ 493
Author: V Kanagaraj
Bench: V Kanagaraj


ORDER

V. Kanagaraj, J.

1. This writ petition has been filed by the petitioner-Management praying to issue a Writ of Certiorari to call for the records relating to the proceedings No.810/X2/96-1 dated 20.12.2003 on the file of the Director of Technical Education, Office of the Directorate of Technical Education, Guindy, Chennai (the first respondent herein) and to quash the same in so far as it relates to the reduction of the punishment imposed upon the second respondent by the petitioner.

2. The case of the petitioner is that the second respondent was a Lecturer in the Electrical and Electronics Engineering Departments of the petitioner Polytechnic; that charges were framed against five persons including the second respondent herein on the ground that one of the Lecturers by name Premkumar molested one of the girl students of the Polytechnic promising to marry her and also committed rape on her; that so far as the second respondent is concerned he aided the said Premkumar who is the culprit, by duping the girl to get herself in contact with the said Premkumar; that the above said charges were proved; that on the basis of the report of the Enquiry Officer, a show cause notice was issued to the second respondent and the then Correspondent of the petitioner Polytechnic dismissed both the main culprit and the second respondent herein; that both the persons went on appeal before the first respondent Appellate Authority; that so far as the factual findings are concerned, the Appellate Authority concurred with the Enquiry Officer and also the Disciplinary Authority; but so far as the second respondent is concerned, the appellate authority though concurred with the factual findings, having thought that the punishment imposed on the second respondent is excess has decided to reduce the punishment by modifying the same by stoppage of two increments for two years with cumulative effect and hence, the Management-Petitioner Polytechnic has come forward with the present writ petition.

3. The first respondent in his counter-affidavit would submit that the petitioner Polytechnic is a Government Aided institution and the Government Aided institutions are governed by grant-in-Aid Code; that the first respondent is empowered to make any amendment in the Grant-in-Aid-Code; that the second respondent who was a Lecturer in the petitioner Polytechnic was dismissed from service on 22.06.1995 by the petitioner on the allegation that he was instrumental in duping a girl student M.V.Kala to get herself into sexual contact with another teacher P.Premkumar who molested her; that the petitioner dismissed the second respondent herein from service by his proceedings dated 20.01.2003 with retrospective effect from 17.06.1995 being the date of suspension in Proceedings No.NMSKP/2121/A2/95, dated 20.01.2003; that since the order of dismissal should not be issued retrospectively, the first respondent instructed the petitioner to revise the dismissal order; that accordingly the petitioner issued revised orders to the second respondent dismissing him from service with prospective effect that is from 20.01.2003; that the second respondent preferred an appeal before the first respondent on 10.02.2003 against the orders of dismissal issued by the petitioner; that the second respondent had also filed a case before this Court in W.P.No.8801 of 2003 and obtained a direction instructing the first respondent to dispose of his appeal petition within a period of 12 weeks from the date of receipt of a copy of the order; that thereafter the second respondent filed another appeal before the first respondent on 21.04.2003; that the first respondent called for the records of the disciplinary proceedings from the petitioner and examined the case with utmost care and found that the second respondent had been initially imposed with the penalty of stoppage of increment for one year without cumulative effect in proceedings No.NMSKP/2121/A2/95 dated 16.07.1999; that at that juncture, the members of the management institution left the office and the new members of management took over the office; that the new management without considering the orders passed by their predecessor did not allow the second respondent to join duty and prolonged his suspension period and finally on 20.01.2003, passed the orders of dismissal to the second respondent; that the first respondent examined the appeal petition and found that even though the charges framed against the second respondent were proved, the punishment awarded to him by the petitioner was excessive; that as an Appellate Authority, the first respondent has the power to confirm, reduce, enhance or set aside the penalty; that exercising this power, the first respondent has reduced the punishment of dismissal from service to that of stoppage of increment with cumulative effect for two years, and the period of punishment would also include his eligible leave; that the said order was passed on 20.12.2003; that the order passed by the first respondent is in order and in accordance with rules; that the Appellate Authority is at liberty to modify the punishment if it is deemed fit and with the above averments, he prays for the dismissal of the writ petition.

4. The second respondent filed his counter-affidavit denying each and every paragraph of the affidavit filed in support of the above writ petition and would submit that the charges leveled against the second respondent were refuted as they came to be stage-managed with ulterior motive and for certain extraneous consideration at the instance of the persons who were inimically disposed of towards the respondent and another, despite the above basic infirmity the Disciplinary Authority after a protracted inquiry ultimately held that the charges are proved; that the complaint was given more than three years after the date of occurrence which is an after thought; that the then Correspondent Mr.Mathew Moses by his proceedings dated 16.07.1999 imposed a punishment of cut in increment for one year, which fact has been deliberately suppressed in the writ petition; that while the matter stood as such as there was a change of Secretary-cum-Correspondent, the penalty order gets changed without any plausible and sufficient reason for enhancement, thereby the impugned order was passed and it would suffer any infirmity or any illegality calling for interference by this Court and with the above averments, the second respondent would pray for dismissal of the writ petition.

5. During arguments, learned counsel appearing on behalf of the petitioner not only reiterated the facts extracted supra but also submitted that the first respondent having rendered all the findings as against the second respondent thereby confirming the order of dismissal in so far as it relates to the proof of the charges, ought not to have modified the punishment ————– converting the order of dismissal into a mere stoppage of increment with cumulative effect for a period of two years; that the first respondent had also failed to note that the incident had caused an uproar and unrest among the public in the area, and even now a criminal case in P.R.C.No.17 of 1999 on the file of the Court of Judicial Magistrate No.I, Nagercoil, for the offence under Sections 120(b), 341, 307 read with Section 34 IPC is pending, wherein, one Professor by name S.R.Boopathy Dasan had sustained grievous injuries and in that incident he lost his two fingers in the right arm. Learned counsel would further submit that in the event of the second respondent being permitted to join the services, it would be a shame to the entire educational system in allowing the second respondent who had committed grave acts of misconduct not only once but twice suffering the imposition of punishment, and the petitioner institution is to loose its confidence amongst the students and other teacher and non-teaching staff and the public and the learned counsel would ultimately pray for the prayer stated supra.

6. During arguments, learned counsel appearing on behalf of the first respondent and the second respondent would only reiterate the facts extracted supra with no law argued nor any new fact or circumstance being brought forth.

7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both what this Court is able to assess is that a heinous crime of molesting a girl student namely M.V.Kala has been perpetrated by a teacher of the same institution by name P.Premkumar with the able assistance and connivance of the second respondent, another teacher of the same institution. The charge is that but for the second respondent teacher, who is the delinquent herein, the other teacher namely P.Premkumar who molested the girl student, could not have perpetrated the heinous crime and therefore it could very well be decided that the second respondent has committed no less a crime than the very act committed by the other teacher P.Premkumar, needless to mention the crimes committed by both are very serious, unpardonable and heinous. These two delinquents in the name of imparting knowledge to students, have indulged in the most undesirable and un-pardanable crime of squandering away the chastity of their own student abusing their position as teachers and wielding undue influence in spoiling the life of the innocent girl student beside the reputation of the entire family in the eye of the society being lowered with an indelible stigma for ever thus setting an ugly example unbecoming of the sacrosanct posts held by them and at no stretch of imagination the charge held proved against the petitioner by the disciplinary authority could be treated in a lighter vein.

8. A criminal sessions case registered against the second respondent for the commission of serious offences against one person by name S.R.Bhoopathy Dasan is also said to be pending for the offences punishable under Sections 120-B, 341, 307 r/w 34 IPC in P.R.C.No.17 of 1999. While such being the serious nature of the delinquency committed on the part of the second respondent and when the same came to be proved in the domestic enquiry warranting the infliction of punishment of dismissal from service with prospective effect from 20.01.2003 by the disciplinary authority, it is painful to note the first respondent appellate authority for no reason assigned, has interfered with the punishment, thus deviating from the judicial norms that the appellate authority cannot have such powers to cause interference into the punishment inflicted by the disciplinary authority muchless for no reason offered.

9. It is more hideous that when the appellate authority fully agrees with the findings of the enquiry officer in its entirety and while confirming not only the findings but even the manner in which such findings have been arrived at, absolutely bereft of consideration, and for no reasons assigned he has jumped to interfere with the infliction of punishment by the disciplinary authority which is most undesirable and high handed since no such arbitrary exercise of power has been granted under any law for the appellate authority.

10. The appellate authority should have been aware of the dictum of law that any discretion granted to any authority under law since being only ‘judicial discretion’ it has to be exercised in a judicious manner for proper reasons assigned for differing or deviating from the infliction of punishment by the disciplinary authority without which such interference caused could only be branded arbitrary exercise of power which has to be discredited since such exercise of power could only be concluded as an extraneous considerations. The latest judicial thinking as it has been held in many of the decisions of the Hon’ble Apex Court is to the effect that while the appellate authority agrees with the findings of the enquiry officer he could have no discretion to cause interference into with the punishment inflicted by the disciplinary authority and the decision of the first respondent appellate authority in the case in hand causing interference into the punishment inflicted by the disciplinary authority since being against the dictum of law and without reasons, is unacceptable and erroneous and hence the following order.

In result,

(i) the above writ petition succeeds and the same stands allowed;

 (ii) the order dated 20.12.2003 passed by the first respondent as per his proceedings No.810/ C2/96                                                                                                               is quashed in so far as it relates to the reduction of the punishment imposed on the second respondent by the petitioner;
 

 (iii) the order passed by the petitioner dismissing the second respondent from services with prospective effect from 20.01.2003 is confirmed;
 

  No costs.



 

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