{"id":178011,"date":"2007-01-10T00:00:00","date_gmt":"2007-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-headmistress-vs-j-avel-on-10-january-2007"},"modified":"2014-11-08T01:19:51","modified_gmt":"2014-11-07T19:49:51","slug":"the-headmistress-vs-j-avel-on-10-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-headmistress-vs-j-avel-on-10-january-2007","title":{"rendered":"The Headmistress vs J.Avel on 10 January, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">The Headmistress vs J.Avel on 10 January, 2007<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 10\/01\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.JAICHANDREN\n\nS.A.No.1618 of 1995\n\n\n1.  The Headmistress,\n    Govt. Girls Primary School,\n    Arumanai.\n\n2.  The Inspector of Primary &amp; Middle Schools,\n    Kuzhithurai.\n    Presently the Assistant Educational officer,\n    Kuzhithurai.\n\n3.  The State of Tamil Nadu\n    rep.by the District Collector,\n    Kanyakumari District.\t\t... Appellants\n\nVs\n\nJ.Avel\t\t\t\t\t...  Respondent\n\n\n\tThe Second Appeal has been filed against the Judgment and Decree, dated\n05.09.1994, made in A.S.No.29 of 1993, on the file of the Sub-Court,\nKuzhithurai, reversing the Judgment and Decree, dated 22.10.1992, made in\nO.S.No.231 of 1984, on the file of the Principal District Munsif, Kuzhithurai.\n\n\n!For appellants      ..  Mr.D.Gandhiraj,\n\t\t\t Govt.Advocate\n\n^For respondent      ..  No appearance\n\n\n:JUDGMENT\t\n<\/pre>\n<p>\tThe Second Appeal has been filed against the Judgment and Decree, dated<br \/>\n05.09.1994, made in A.S.No.29 of 1993, on the file of the Sub-Court,<br \/>\nKuzhithurai, reversing the Judgment and Decree, dated 22.10.1992, made in<br \/>\nO.S.No.231 of 1984, on the file of the Principal District Munsif, Kuzhithurai.\n<\/p>\n<p>\t2. The plaintiff, who is the respondent in the present second appeal had<br \/>\nfiled a suit in O.S.No.231 of 1984, on the file of the Sub-Court, Kuzhithurai,<br \/>\npraying for a Judgment and Decree for recovery of arrears of salary from<br \/>\nOctober,1982 to 1983 and also for the future salary from the defendants with<br \/>\ninterest and for an injunction to restrain the defendants from preventing the<br \/>\nplaintiff from doing his duties as a Sweeper in the Government Girls Primary<br \/>\nSchool, Arumanai.\n<\/p>\n<p>\t3. The plaintiff had stated that he had been appointed as a Sweeper in the<br \/>\nGovernment Girls Primary School, Arumanai, in place of his mother Ponnamma, who<br \/>\nhad expired while in service. As per the appointment order, dated 17.03.1976,<br \/>\nthe plaintiff&#8217;s monthly salary had been fixed at Rs.60\/-. On 14.10.1982, the<br \/>\nfirst defendant in the suit had unlawfully restrained the plaintiff from doing<br \/>\nhis duty in the school. Further, the defendants had also failed to pay the<br \/>\nsalary to the plaintiff from the month of October, 1982 onwards. Hence, the<br \/>\nplaintiff had filed the suit praying for the reliefs as stated therein.\n<\/p>\n<p>\t4. In the written statement filed on behalf of the second defendant, it<br \/>\nhas been stated that the plaintiff had been appointed as a part time Sweeper in<br \/>\nthe place of Ponnamma, who had died.  The plaintiff&#8217;s appointment as a part time<br \/>\nSweeper was approved by the District Educational Officer, Kuzhithurai, based on<br \/>\nthe recommendation of the Headmistress of the School.  The service conditions<br \/>\nrelating to the other employees were not applicable to the plaintiff,  since he<br \/>\nwas working as a part time Sweeper and as he was not appointed through the<br \/>\nEmployment Exchange. Further, the conduct and character of the plaintiff was<br \/>\nfound to be bad as he had outraged the modesty of a girl student, on 12.10.1982,<br \/>\nand thereafter, the plaintiff had abandoned his job from 15.10.1982. The<br \/>\nplaintiff was entitled to his salary only for the days during which he had<br \/>\nworked. Though the plaintiff was not eligible for casual leave, he had been<br \/>\ncontinuously absent on a number of days and had later abandoned his job from<br \/>\n15.10.1982.  Therefore, the plaintiff is not entitled to claim any wages for the<br \/>\ndays when he was absent.\n<\/p>\n<p>\t5.It has been further stated in the written statement that on 03.11.1982,<br \/>\nthe plaintiff had entered the school along with certain anti-social elements and<br \/>\nhad obstructed certain activities of the school.  Hence, he was arrested on<br \/>\n04.11.1982 and a case had been  registered in Crime No.353 of 1982, under<br \/>\nSections 147, 148, 341 and 353 of the Indian Penal Code.  After the plaintiff<br \/>\nhad abandoned his job as a part time Sweeper, one N.Selvi, who was a widow had<br \/>\nbeen appointed in his place and that the appointment was made by the<br \/>\nHeadmistress of the School and later, approved by the Competent Authority, on<br \/>\n05.02.1983. Therefore, the case of the plaintiff cannot be sustained.\n<\/p>\n<p>\t6.Based on the averments made on behalf of the parties concerned, the<br \/>\ntrial Court had framed the following issues for consideration:-<br \/>\n&#8220;1.Whether the plaintiff abandoned his job or the defendant  obstructed the<br \/>\nplaintiff from doing his duties?\n<\/p>\n<p>2.Whether termination of notice is necessary or not for the termination of<br \/>\nplaintiff appointment?\n<\/p>\n<p>3.Whether the plaintiff entitled to continue the service or not?\n<\/p>\n<p>4.What is the arrears of salary?\n<\/p>\n<p>5.Whether the suit is maintainable?\n<\/p>\n<p>6.What is the reliefs and costs?&#8221;\n<\/p>\n<p>\t7. Based on the oral and documentary evidence placed before the trial<br \/>\nCourt, it had come to the conclusion that since the plaintiff had abandoned the<br \/>\njob, there was no necessity of any notice being given to him and therefore, he<br \/>\nwas not eligible for re-appointment as prayed for by him.  Further, since the<br \/>\nplaintiff was employed temporarily on a part time basis, he was not eligible for<br \/>\nthe wages for the days during which he was absent from duty. The trial Court had<br \/>\nalso found that the plaintiff ought to have sought for his reliefs before the<br \/>\nCompetent Authorities before approaching the Civil Court by way of filing a<br \/>\nsuit.  Hence, it was held that the suit filed by the plaintiff was not proper,<br \/>\nas it was not in accordance with law.\n<\/p>\n<p>\t8.The plaintiff had filed an appeal in A.S.No.29 of 1993, on the file of<br \/>\nthe Sub-Court, Kuzhithurai. The lower appellate Court had framed the following<br \/>\npoints for consideration, which are as follows:-\n<\/p>\n<p>&#8220;1.Whether the plaintiff is entitled to continue his employment?\n<\/p>\n<p>2.Whether the first defendant has restrained the plaintiff from performing his<br \/>\nduties?\n<\/p>\n<p>3.Whether the plaintiff is entitled for the arrears of salary of Rs.720\/- from<br \/>\n1982 to 1983?\n<\/p>\n<p>4.Whether the plaintiff is entitled to a decree of injunction as prayed for?\n<\/p>\n<p>5.Whether the suit filed by the plaintiff is sustainable?\n<\/p>\n<p>6.What are the other reliefs available for the appellant \/ plaintiff ?&#8221;\n<\/p>\n<p>\t9. The lower appellate Court had come to the conclusion that since a<br \/>\nproper show cause notice had not been given  by the appropriate authorities<br \/>\nbefore  passing the order from terminating the plaintiff from service, the<br \/>\ndefendants were not entitled to prevent the plaintiff from continuing in<br \/>\nservice.  Hence, the plaintiff was entitled to be paid arrears of salary of<br \/>\nRs.720\/- , as calimed by him.  It was also found by the lower appellate Court<br \/>\nthat there were certain discrepancies in the allegations made by the defendants<br \/>\nwith regard to the issue of the plaintiff having outraged the modesty of a girl<br \/>\nstudent. It was also found that there was no proof of the plaintiff having<br \/>\nabandoned his service. Therefore, the lower appellate Court had come to the<br \/>\nconclusion that the termination of service of the plaintiff by the defendants<br \/>\nwas illegal. If an allegation had been made against the plaintiff with regard to<br \/>\nthe outraging the modesty of a girl student or about the charge of his raping a<br \/>\ngirl student, the plaintiff ought to have been given an opportunity of defending<br \/>\nhimself against the said charges. It had also been held that since no such<br \/>\nopportunity had been given to the plaintiff, mere allegations cannot be taken as<br \/>\nproof of the alleged act.\n<\/p>\n<p>\t10. Aggrieved by the conclusions arrived at by the lower appellate Court,<br \/>\nthe present second appeal has been filed by the appellant herein.\n<\/p>\n<p>\t11.The Second Appeal has been admitted by this Court on the following<br \/>\nsubstantial question of law:-\n<\/p>\n<p>&#8220;1.Whether a suit for declaration and injunction be maintainable to compel the<br \/>\nemployer to continue to keep a temporary employee in employment when<br \/>\nparticularly the employee has abandoned his duties?&#8221;\n<\/p>\n<p>\tThe Second Appeal has been filed on the various grounds raised therein.<br \/>\nThe appellant has stated, inter alia, that the first appellate Court had erred<br \/>\nin reversing the findings of the trial Court by decreeing the suit as prayed for<br \/>\nby the plaintiff.  The lower appellate Court had come to the wrong conclusion by<br \/>\nadmitting the claims of the plaintiff. The plaintiff had no right to continue in<br \/>\nservice, since he was working only on a temporary basis.  Further, the lower<br \/>\nappellate Court had erred in its findings, since it is the plaintiff who had<br \/>\nabandoned the service, after he was found to have outraged the modesty of the<br \/>\ngirl student of the school.  In such circumstances, the findings of the lower<br \/>\nappellate Court cannot be sustained in law or on facts and therefore, the<br \/>\nplaintiff is not entitled to continue in service or to be paid the arrears of<br \/>\nsalary for the period during which he was absent from duty.\n<\/p>\n<p>\t12.The learned Government Advocate, who had appeared on behalf of the<br \/>\nappellants had submitted that the plaintiff was not entitled to file a suit with<br \/>\nregard to the conditions of his service, as it is prohibited by Section 9 of the<br \/>\nCivil procedure Code, 1908.  The plaintiff may be entitled to raise the issue of<br \/>\nhis alleged illegal termination from service only before the authorities<br \/>\nconcerned, as provided in the service rules applicable to him or by way of<br \/>\nraising an industrial dispute before the appropriate forum. In such<br \/>\ncircumstances, a Civil Suit preferred by the plaintiff is not maintainable. It<br \/>\nwas also submitted that the trial Court was right in coming to the conclusion<br \/>\nthat the plaintiff was not entitled to the reliefs prayed for by him, as his<br \/>\nappointment was of a temporary nature and on the condition that he could be<br \/>\nousted from service at any time without assigning any reason. The plaintiff had<br \/>\nabandoned the service after he was found to have outraged the modesty of a girl<br \/>\nstudent and therefore, he is not eligible to continue in service.\n<\/p>\n<p>\t13.With regard to the substantial question of law, which has been raised<br \/>\nbefore this Court in the present second appeal, the learned Government Advocate<br \/>\nfor the appellant had submitted that the suit for declaration and for injunction<br \/>\ncannot be maintained to compel the employer to continue an employee in service,<br \/>\nespecially, when he is a temporary employee and more particularly when the<br \/>\nemployee had  himself abandoned the service.\n<\/p>\n<p>\t14.On a persual of the records placed before this Court and based on the<br \/>\naverments made on behalf of the parties concerned, this Court is of the<br \/>\nconsidered view that the findings of the lower appellate Court cannot be<br \/>\nsustained, since it is found, on the evidence available, that the employee had<br \/>\nhimself abandoned the service.\n<\/p>\n<p>\t15. Further, the plaintiff has not shown that his appointment was of a<br \/>\npermanent nature and that he was entitled to the reliefs he had prayed for in<br \/>\nthe suit. On the contrary, it is seen that the plaintiff had been appointed only<br \/>\ntemporarily, on a part-time basis. If he was aggrieved, he could have opted to<br \/>\nchallenge his termination from service, in accordance with the Service Rules<br \/>\napplicable to him, before the appropriate forum or authority established by law.\n<\/p>\n<p>\t16. In such view of the matter, the Second Appeal is allowed setting aside<br \/>\nthe findings of the lower appellate Court in its Judgment and Decree, dated<br \/>\n05.09.1994, made  in  A.S.No.29 of 1993, on the file of the Sub-Court,<br \/>\nKuzhithurai. Consequently, the judgment and decree of the Principal District<br \/>\nMunsif, Kuzhithurai, dated 22.10.1992, made in O.S.No.231 of 1984, stands<br \/>\nrestored. No costs.\n<\/p>\n<p>To:\n<\/p>\n<p>1. The Sub-Court, Kuzhithurai,\n<\/p>\n<p>2. The Principal District Munsif,<br \/>\n   Kuzhithurai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court The Headmistress vs J.Avel on 10 January, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10\/01\/2007 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1618 of 1995 1. The Headmistress, Govt. Girls Primary School, Arumanai. 2. The Inspector of Primary &amp; Middle Schools, Kuzhithurai. Presently the Assistant Educational officer, Kuzhithurai. 3. The State [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-178011","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>The Headmistress vs J.Avel on 10 January, 2007 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-headmistress-vs-j-avel-on-10-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Headmistress vs J.Avel on 10 January, 2007 - Free Judgements of Supreme Court &amp; 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