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Judgment
T. Raja, J.
Since the facts leading to both the writ petitions are interconnected, they are disposed of by this common order.
W.P. No. 9723 of 2015 has been filed by the Secretary, Virudhunagar Hindu Nadars'' Senthikumara Nadar College Committee, Virudhunagar (in short "College") challenging the order passed by the second respondent/the Director of Collegiate Education, Chennai, in his proceedings in Mu.Mu. No. 40121/G4/2008, dated 29.05.2015, in and by which, the second respondent cancelled the order of termination of the fourth respondent.
W.P. No. 9780 of 2015 has been filed by one Dr. K. Raja Ram Pandian, who has been arrayed as fourth respondent in W.P. No. 9723/2015, seeking for issuance of a writ of mandamus to direct the fourth respondent/the petitioner in W.P. No. 9723 of 2015, to allow him to join duty pursuant to the order passed by the second respondent/the Director of Collegiate Education, Chennai, cancelling his termination order passed by the College, with all monetary benefits.
For better appreciation, facts leading to the filing of a writ petition being W.P. No. 9723 of 2015 are stated below:
"The fourth respondent/Dr. K. Rajaram Pandian, joined the service of the petitioner College as Associate Professor in the department of English in the petitioner College. While he was working in the same post, the petitioner College received a complaint from one Mrs. S. Kavitharani stating that the fourth respondent, being her guide in her Doctorate course, has made a sexual harassment by sending obscene SMS to her. On receipt of such complaint, First Information Report registered against him and thereupon, he was sent to prison. Such incident has been widely published in the newspapers. Thereafter, parents and students of the petitioner College, who read the news item, expressed their apprehension to send their daughters to the College. Such circumstances made the petitioner College to initiate disciplinary proceedings against the fourth respondent by issuing show cause notice on 26.02.2010. On receipt of the same, the fourth respondent on 10.04.2010 requested the enquiry committee to furnish the list of enquiry officers and thereby further requested to postpone the enquiry proceedings till the disposal of the criminal case pending against him. Thereafter, the College Authorities sent a reply to the fourth respondent on 12.04.2010 stating that the enquiry proceedings cannot be stayed till the disposal of the criminal case. Accordingly, Enquiry Committee conducted the enquiry proceedings on 16.04.2010 and 19.04.2010, however, the fourth respondent did not attend the enquiry proceedings, therefore, the Enquiry Committee sent a letter dated 19.04.2010 to the fourth respondent enclosing the copies of the proceedings of the enquiry held on 16.04.2010 and 19.04.2010, along with 46 documents marked in the enquiry proceedings and further it directed him to attend the enquiry on 27.04.2010 for cross-examination of the witnesses of the management. Even on the said date, the fourth respondent did not attend the enquiry, therefore, the Enquiry Committee submitted its enquiry report on 03.05.2010. On receipt of the enquiry report, the petitioner College issued a second show cause notice on 08.05.2010 to the fourth respondent. Thereafter, the fourth respondent submitted his explanation on 14.05.2010 denying all the charges leveled against him. Since the Enquiry Committee found him guilty, the petitioner College sent a communication to the third respondent seeking approval of punishment on 17.05.2010 and thereafter, such approval was also granted on 24.05.2010. Thus, the fourth respondent was dismissed from service on 25.05.2010."
Aggrieved by the order of dismissal, though the fourth respondent has filed a writ petition W.P.(MD) No. 7137 of 2010, subsequently after 2 years and 3 months, he filed a petition for withdrawal of the said writ petition in M.P. No. 1 of 2012 and this Court, by its order dated 26.06.2012, permitted the fourth respondent to withdraw the writ petition with liberty to file an appeal before the second respondent/the Director of Collegiate Education, Chennai. On receipt of a copy of the order on 20.07.2012, the fourth respondent filed an appeal before the second respondent on 14.08.2012 and this has resulted 2 years 3 months of delay in filing an appeal.
In the meantime, learned Judicial Magistrate No. 2, Virudhunagar, acquitted the fourth respondent from all the charges, vide judgment dated 05.09.2012, passed in C.C. No. 161 of 2011, by taking note of the deposition of PW1-Mrs. Kavitharani, who deposed that she had put only her signature in the complaint, but, she did not write the complaint on her own and she further deposed that she did not involve in any acts as alleged in the complaint. Therefore, on the basis of the judgment of acquittal, the second respondent, vide his order dated 21.08.2013, by setting aside the order of dismissal, directed the fourth respondent to reinstate him in service. Aggrieved by the same, when the petitioner College filed a writ petition being W.P.(MD) No. 16614 of 2014 on the ground that no opportunity was given before setting aside the order of dismissal, this Court, by order dated 13.08.2014, had remitted the matter back to the second respondent for fresh disposal and it further directed the second respondent to give an opportunity and dispose of the appeal on merits within three months. Thereafter, the Principal and the Secretary of the College appeared in person before the second respondent on 03.02.2015 with counter statement and 95 other documents. On perusal of the entire materials, the second respondent passed the impugned order dated 29.05.2015 cancelling the order of termination passed against the fourth respondent. Being aggrieved by the order cancelling the order of termination of service of the fourth respondent, the petitioner College filed the present writ petition in W.P. No. 9723 of 2015. On the other hand, the fourth respondent has also filed a writ petition in W.P. No. 9780 of 2015 seeking for a direction to the petitioner College for implementation of the above said order passed by the second respondent.
Assailing the impugned order passed by the second respondent, Mr. M. Vallinayagam, learned Senior counsel appearing for the petitioner College, contended that though the order of dismissal was passed on 25.05.2010, the fourth respondent preferred an appeal before the second respondent only on 14.08.2012, after a lapse of 2 years 3 months, that too, without even filing a petition for condoning the delay, however, the second respondent, in violation of Section 39 of the Tamil Nadu Private Colleges (Regulations) Act, 1976 (in short "Act"), which says that no appeal can be entertained after 60 days from the date of receipt of the order, erroneously proceeded to quash the order of dismissal dated 25.05.2010, therefore, such an order of the second respondent is without jurisdiction. It is further contended by the learned Senior counsel that Section 39 of the Act mandates that no appeal shall be preferred after the expiry of one month from the date of receipt of the order, provided further time not exceeding one month if the appellant shows sufficient cause for not preferring the appeal in time. Whileso, the fourth respondent, without even availing such remedy, wrongly filed a writ petition being W.P. (MD) No. 7137 of 2010, to quash the order of dismissal passed by the second respondent. Pending the writ petition, he filed a petition in M.P. No. 1 of 2012 seeking for withdrawal of the writ petition and this Court, by order dated 26.02.2010, permitted the fourth respondent to withdraw the writ petition with liberty to file an appeal before the second respondent, however, it does not mention clearly as to whether the period of pendency of the writ petition can be excluded, therefore, the appeal preferred by the fourth respondent on 14.08.2012 challenging the order of dismissal dated 25.05.2010 beyond the period of limitation, is not maintainable as per Section 39 of the Act, as it is admittedly filed with a delay of 2 years 3 months. However, this has been overlooked by the second respondent while passing the impugned order, hence, the same is liable to be set aside, it was pleaded.
Learned Senior counsel further contended that the second respondent has failed to note the first charge against the fourth respondent, which indicates the sexual harassment made by him against a lady who happened to be the student doing doctorate under him and hence, it is grave in nature, thus, any less punishment than termination is out of question. It is further contended that when the second respondent has come to the conclusion that the order of dismissal being disproportionate, he ought to have given an opportunity to the petitioner College to modify the said punishment, instated the second respondent has wrongly set aside the punishment without even furnishing any reason whatsoever. Therefore, the impugned order is liable to be set aside and the issue has to be remitted back to the second respondent to reconsider the issue afresh with regard to punishment.
In his further submissions, learned Senior counsel submitted that after the dismissal order was passed by the second respondent on 24.05.2010, the said sanctioned post fell vacant in the department of English, therefore, the second respondent has also granted permission to fill up the said post in his proceedings dated 14.05.2013. Thereafter, a qualified person was appointed in accordance with the Act and Procedures and the same was also approved by the third respondent in his proceedings dated 13.09.2013. In such circumstances, unless the order of second respondent is set aside, the petitioner College would face several difficulties on account of the subsequent events took place as stated above.
In support his submissions, learned Senior counsel relied upon a judgment of this Court in the case of M.M. Handalappa, A.G. Balasubramania Mudaliar and Company Vs. H.G. Krishna Reddy and Company, , wherein this Court, while dealing with Section 25(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), has held that even Section 5 of the Limitation Act will not be applicable and thereby dismissed the petition filed to condone the delay as not maintainable. Hence, in the case on hand, Mr. M. Vallinayagam, learned Senior counsel pleaded that the second respondent ought to have looked into Section 39 of the Act, before passing impugned order cancelling the termination order, for, the said provision says that no appeal shall be preferred after the expiry of the one month period from the date of receiving the order, provided that the appellate authority may in its discretion allow further time not exceeding one month for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. Taking reliance from another judgment of the Apex Court in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited and another ( (2009) 5 SCC 791), learned Senior counsel would plead that the Court is bound to respect the legislative intention and not to extend the limitation period by giving liberal interpretation. However, the second respondent, without considering such aspect, has wrongly allowed the appeal setting aside the order of termination, therefore, the impugned order passed by the second respondent is without jurisdiction and thus, the same is liable to be set aside.
Relying upon yet another judgment of the Hon''ble Apex Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, , learned Senior counsel submitted that it is now well settled that the Courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record and if the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, Courts will not interfere with the findings of fact recorded in department enquiries, except where such findings are based on no evidence or where they are clearly perverse.
With the aforesaid submission, learned Senior counsel pleaded for setting aside the impugned order passed by the second respondent.
Per contra, Mr. R. Balakrishnan, learned counsel appearing for the fourth respondent/petitioner in W.P. No. 9780 of 2015, submitted that the fourth respondent joined as a Lecturer in Adhithanar College of Arts and Science at Tiruchendur in the Department of English and after some time, he joined in the petitioner College in the year 1998. As the fourth respondent wanted to encourage the students who wanted to pursue research in the subject of English, he decided to be a research guide and as such, the Manonmanium Sundaranar University has approved him as a Research Guide in the year 2008. Whileso, in the year 2009, one candidate by name Mrs. S. Kavitharani has approached him to be her research guide for doing Ph.D. In the beginning, she posed herself as a genuine student having interest in the research work. The University also, by its proceedings dated 04.03.2009, sent a communication to him stating that Mrs. S. Kavitharani had registered Ph.D. Programme under his guidance for the title of Narrative Strategy of Shashi Desphande. However, only at the end of the first year, the fourth respondent came to know that she was a non-M.Phil candidate and she will have to complete two papers to complete the said course. Therefore, the fourth respondent advised the said student to read books on Narratology, Structuralism and Narrative and other books written by Shashi Deshpande and also to collect relevant materials from the Library thereon.
It is further submitted by the learned counsel for the fourth respondent that by misconstruing the above said advise of him, she, by taking advantage of her husband who was serving as Police Officer in SPCID, Virdhunagar, threatened him saying that she would go to any extent if he raises any objection to continue her Ph.D. However, the fourth respondent, without minding her words, proceeded with his work and thereafter, she did not contact from 15.06.2009 till 19.01.2010. Therefore, the fourth respondent, by taking note of such attitude of Mrs. S. Kavitharani, sent a communication dated 19.01.2010 to the Coordinator, Manonmaniam Sundaranar University, to discontinue her guidance as she was totally lacking research potential. On knowing such complaint, the said Mrs. S. Kavitharani, at the instigation of her husband/police officer, concocted a false story alleging that the fourth respondent has sent indecent SMS and made missed calls and also misbehaved with her. As her husband being a police officer, a case was registered against him immediately in Cr. No. 75 of 2010 for the offences under Sections 294(b) of the Indian Penal Code, Section 4 of the Women Harassment Act and Section 67 of the Information Technology Act, and on the same day itself, he was arrested and remanded to judicial custody. Again, at the instigation of her husband, the news was widely misreported in the newspapers without following the ethics. Thereafter, the police officials investigated the matter and a charge sheet was filed admitting it clear that the fourth respondent did not send any SMS to the said Kavitharani and no phone calls made by him. Inspite of such fact, at the instigation of her husband, a charge sheet was filed against him in C.C. No. 161 of 2011 by falsely concocting yet another new story. In the meanwhile, a charge memo dated 26.02.2010 was also issued alleging that (i) he misbehaved with S. Kavitharani and gave her sexual harassment; (ii) as the contents of the criminal case were published in the local newspapers, the parents and local men lost their trust in the college and thereby spoiled the reputation of institution in the public; and (iii) his action of abusing the women folks and torturing them through the cell phone are totally against the public decency and due to such an act, the institution lost its reputation among the general public.
Learned counsel for the fourth respondent further submitted that on receipt of the above said charge memo, he gave his detailed reply strongly objecting and denying all the charges levelled against him as frivolous and false one. When the charge memo was served on him on 26.02.2010 even before the final report filed in Cr. No. 75 of 2015, the allegations found in the charge Nos. 2 and 3 against the fourth respondent were under the Information Technology Act, therefore, unless the investigation in this regard is completed, real picture with regard to charge Nos. 2 and 3 will not come out. Since the charges in the departmental proceedings and the criminal case are grounded upon the same set of facts, in the light of the ratio laid down by the Hon''ble Apex Court in the case of Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, , the fourth respondent requested the enquiry officer to furnish the list of documents and also further requested to postpone the enquiry proceedings till the disposal of the criminal case. However, the petitioner College, without considering the said proposition of the Apex Court as stated above, sent a reply stating that they would not wait till the disposal of the criminal case as the departmental proceedings and the criminal proceedings are entirely different. It is further submitted that the first charge against the fourth respondent that he misbehaved with the said Mrs. S. Kavitharani and gave her sexual harassment and also made repeated phone calls and SMS to her. Therefore, when such being the charge against him, unless a detailed investigation is made and a finality is reached by the Criminal Court, the petitioner College ought not to have initiated departmental proceedings, however, without considering such aspect, they proceeded against him and finally submitted a report on 03.05.2010 finding him guilty of all the charges levelled against him. Subsequently, on 08.05.2010, the petitioner College issued a second show cause notice calling upon him to submit his explanation. Immediately, on receipt of the same, the fourth respondent submitted his explanation on 14.05.2010 making it clear that he never violated the code of conduct and he never misused the status of guide. He further explained that Mrs. S. Kavithrani''s Ph.D. Prgramme commenced exactly on 16.03.2009 and there was no contact whatsoever between the guide and the scholar after 14.06.2009. Adding further, learned counsel for the fourth respondent further contended that with regard to charge No. 2, the fourth respondent has replied that the newspaper reports were naturally one-sided and they did not follow the newspaper ethics, therefore, the allegation of fear among the public and the parents of girl students of the petitioner College is baseless and unbelievable. With regard to charge No. 3, it is replied that in his 26 years of teaching career, he treated all the students in a dignified manner. Considering his devotion to education and enlightenment of students, the further allegation of sending obscene SMS is baseless and far from acceptance, since there was no contact between the guide and fourth respondent, especially, when the University sent a communication to her to express her concurrence for cancellation of her Ph.D. Programme on or before 15.04.2010, upon receiving a request from the fourth respondent to cancel her registration in Ph.D. Programme as she did not contact him for seven months. Therefore, when such being the scenario, the question of sending obscene SMS or giving her sexual harassment, is totally unacceptable and unbelievable, he pleaded.
In spite of the above said detailed explanation given by the fourth respondent, learned counsel pleaded, the petitioner College completed the disciplinary proceedings and thereby dismissed him from service on 25.05.2010. Challenging the said dismissal order, the fourth respondent filed a writ petition being W.P.(MD). No. 7137 of 2010 before this Court. However, during the pendency of the writ petition, a charge sheet was filed on 25.07.2011 in C.C. No. 161 of 2011 on the file of the Judicial Magistrate No. 2, Virudhunagar. In the meanwhile, the fourth respondent was advised to withdraw the above said writ petition filed before this Court. Accordingly, he has also moved a petition in M.P. No1 of 2012 seeking permission to withdraw the writ petition and this Court, by order dated 26.06.2012, permitted the fourth respondent to withdraw the writ petition giving liberty to file an appeal before the second respondent. Thereafter, the fourth respondent filed an appeal before the second respondent on 14.08.2012. In the meanwhile, the learned Judicial Magistrate No. 2, Virudhunagar, acquitted him from all similar set of charges on 05.09.2012. Therefore, considering the plight of the fourth respondent that he was kept under suspension for a quite long time, the second respondent set aside the order of the termination from service passed by the petitioner College.
Challenging the above said order of the second respondent, the petitioner College filed a writ petition being W.P.(MD). No. 16614 of 2013 on the ground that the second respondent has not given opportunity before passing the final order. Therefore, this Court, by order dated 13.08.2014, remitted the matter back to the second respondent with a direction to give opportunity and dispose of the appeal on merits within three months. Pursuant to the order of this Court, a fresh appeal was also filed on 04.09.2014 and finally, the second respondent, by taking note of the judgment passed by the criminal Court acquitting him from all the similar charges, set aside the order of dismissal passed by the petitioner College on 29.05.2015 on the ground that it is disproportionate to the charges levelled against him.
In support of his submissions, learned counsel for the fourth respondent relied upon a judgment in the case of N. Ramakrishnan v. the Deputy Inspector General of Police, Tirunelveli (2013 (1) CWC 344) for a proposition that the departmental proceedings cannot be continued after the criminal Court''s acquittal on merits, especially when the charge is one and the same in both the proceedings. Therefore, he pleaded, the impugned order of reinstatement cannot be interfered with as the second respondent set aside the order of termination only by taking note of the judgment passed by the criminal court acquitting him from all the charges as the said charges are one and the same in both the proceedings.
Learned counsel for the fourth respondent relied upon yet another judgment in the case of N.P.K.S. Sheik Abdullah Vs. The State of Tamil Nadu, to say that inordinate delay in initiation of the disciplinary proceedings is a ground for quashing the charge memo unless the respondent satisfactorily explains the delay. When the petitioner College has no circumstances to explain the delay for completion of the disciplinary proceedings, the same petitioner College unnecessarily challenged the impugned order on the ground that there was a delay in approaching the second respondent for filing an appeal. Inasmuch as, the fourth respondent has approached the second respondent after withdrawing the writ petition filed before this Court with liberty to file an appeal, it goes without saying that this Court has given an opportunity to file an appeal and accordingly, when appeal was filed, the second respondent has considered the matter on merits and thus, the contention of the learned Senior counsel for the petitioner College that no delay was explained by filing a delay application is far from acceptance.
Taking support from the judgment of Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , learned counsel for the fourth respondent submitted that when the case of prosecution is thrown out by acquitting in a judicial pronouncement with a positive finding that he is not guilty, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. The reason is, when the fourth respondent was issued with a charge memo containing the same set of charges, as that of the charges framed in the charge sheet before the criminal Court, the de-facto complainant/Mrs. S. Kavitharani turned hostile before the criminal Court, therefore, such an act of the said de-facto complainant shows that she is not prepared to face the trial before the criminal Court. Thus, the very same charges framed in the departmental proceedings cannot be allowed to stand. Therefore, on this score, the writ petition filed by the petitioner College is liable to be dismissed.
Heard the learned counsel appearing on either side and perused the materials available on record.
While the fourth respondent was working as Associate Professor in English, one Mrs. S. Kavitharani approached him to be her guide, as she was interested in research. However, as she was not interested in pursuing the course, the fourth respondent written a letter to the Co-ordinator of Manonmaniam Sundaranar University on 19.01.2010 stating that she has not contacted him for the past seven months and has shown no progress in research activity and she did not complete M.Phil. Course, hence, for such reasons, he requested the Coordinator of the Manonmaniam Sundaranar University to cancel her Ph.D. Registration, so as to enable Ph.D. Registration for other candidates in waiting. For better appreciation, relevant portion of the said communication is extracted hereunder:
"Dear Sir,
This is for your kind perusal and consideration that Mrs. S. Kavitharani registered for Ph.D. in English (Reg. No. 3464) under Part-Time External Category under my guidance on 16.03.2009 has not contacted the guide for the last seven months (from 15.06.2009 till now) and has shown no progress in research activity. She is a non-M.Phil. Degree holder but it seems she is not interested in taking up the papers - I) Research Methodology and (II) Area of Specialization. As guide, I understand that she is totally indifferent to research work.
Considering these reasons, I request that her Ph.D. Registration may kindly be cancelled so as to enable Ph.D. Registration for other candidates in waiting. Further, in the event of change of guide, she may not be permitted to proceed her Ph.D. Work on the title Narrative Strategy of Sashi Deshpande and the area of Indian Writing in English.
Thank you sir,
Virudhunagar,
19.01.2010
Yours sincerely"
On knowing such letter written by the fourth respondent, the said Mrs. S. Kavithirani, who is the wife of Police Officer working in SPCID, Virudhunagar, made a falsely motivated criminal complaint against the fourth respondent and the same was registered in Cr. No. 75 of 2010 on the file of the Virudhunagar Rural Police Station on 01.02.2010, alleging as if the fourth respondent misbehaved with her and teased her through mobile phone by sending obscene SMS. Thereafter, he was arrested and remanded to judicial custody. The above said occurrence was also published in the local newspapers. Such an occurrence made the petitioner College to issue a charge memo dated 26.02.2010 containing the following charges:
"Charge No. 1:--
It is learnt that you, Dr. K. Rajaram Pandian misbehaved and gave sexual harassment to Tmt. S. KavithaRani and gave mental agony to her and thus acted in violation of Code of Conduct.
Charge No. 2:--
Because of the news item published in the daily papers regarding the criminal case filed against you, Dr. K. Rajaram Pandian, the Parents and the Public are afraid of sending their girls to our College and thus their good opinion and the confident reposed on our College has been spoiled because of your involvement in the criminal case. Thus, because of your act you brought dishonour and stigma to the fame and name of our College.
Charge No. 3:--
You, Dr. K. Rajaram Pandian, functioning as a Teacher which is considered in par with the status of Parents and God brought defame to the teaching profession as well as to the good name of our VHNSN College on account of your attitude of scolding and misbehave with ladies and giving harassment by sending SMS to them and thus acted in indiscipline manner and violating the code of conduct."
In the meanwhile, the police officials filed a charge sheet against him in Cr. No. 161 of 2011 on the file of the Judicial Magistrate No. 2, Virudhunagar. Ironically, in the said charge sheet, it was clearly admitted that there was no proof to show that he had sent SMS to the said Mrs. S. Kavitharani. Relevant portion of the said charge sheet is extracted below:
Pending the criminal case, the fourth respondent on 10.04.2010 requested the petitioner College to postpone the enquiry proceedings till the disposal of the criminal case, however, the petitioner College vide letter dated 12.04.2010 refused to postpone the departmental proceedings stating that the departmental proceedings and the criminal proceedings are entirely different. Finally, the Enquiry Committee submitted their report on 03.05.2010 finding the fourth respondent guilty of all the charges framed against him and also concluded that in respect of charge Nos. 1 and 3, they decided to await till the verdict of the criminal Court. Thereafter, the petitioner College issued a second show cause notice to the fourth respondent on 08.05.2010 and on receipt of such show cause notice, the fourth respondent has also submitted his explanation on 14.05.2010 denying all the charges levelled against him. Finally, the petitioner College dismissed him from service on 25.05.2010. Being aggrieved by the same, he has filed a writ petition (MD) No. 7137 of 2010 to quash the same within seven days. However, after 2 years and 3 months, seeking liberty to file appeal, withdrew his writ petition.
At this juncture, the crux of the contention of the learned Senior counsel for the petitioner College is that the fourth respondent did not prefer an appeal within the time stipulated as prescribed in Section 39(1) of the Act before the competent authority. Therefore, for better appreciation, Section 39(1) of the Act is extracted hereunder:
"Section 39 : Time for appeal and powers of appellate authority--(1) No appeal under any provision of this Act shall be preferred after the expiry of one month from the date on which the order, decision or direction appealed against was received by the appellant:
Provided that the appellate authority may, in its discretion, allow further time not exceeding one month for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time."
No doubt, a mere perusal of the above said Act depicts that no appeal shall be preferred after the expiry of one month from the date of receipt of the order and it allows further time not exceeding one month for preferring the appeal, subject to the condition that the appellant had shown sufficient cause for not preferring the appeal in time. It is also admitted fact that on receipt of the order of dismissal dated 25.05.2010, the fourth respondent filed a writ petition being W.P.(MD). No. 7137 of 2010 before this Court challenging the report dated 03.05.2010 submitted by the Enquiry Committee and also the consequential dismissal order dated 25.05.2010 passed by the petitioner College. Thereafter, he has also filed a petition in M.P.(MD) No. 1 of 2012 seeking permission of this Court to withdraw the writ petition and this Court, by order dated 26.06.2012, permitted the fourth respondent to withdraw the petition with liberty to file an appeal before the second respondent. Relevant portion of the said order is extracted hereunder:
"Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus calling for the records relating to the proceedings of the Enquiry committee dated 03.05.2010 and the consequential proceedings of the first respondent dated 25.05.2010 in Na.Ka.55/2010-O.S. and quash the same as illegal and direct the first respondent to reinstate the petitioner in service.
For Petitioner : Mr. C.K.M. Appaji
For Respondents : Mr. D. Nallathambi for R1
Mr. S. Kumar, AGP for R2
ORDER
Learned counsel for the petitioner has filed M.P.(MD) No. 1 of 2012 seeking permission to withdraw the writ petition with liberty to file an appeal before the Appellate Authority.
The permission sought for in M.P. (MD) No. 1 of 2012 for withdrawal of the writ petition is granted and accordingly, the writ petition is dismissed as withdrawn grating such liberty to the petitioner. Consequently, M.P.(MD) No. 1 of 2010 is also dismissed. No Costs."
From the above said order of this Court, it is clear that the counsel appearing for the petitioner College in the present writ petition was the counsel in the above said writ petition also. However, while this Court giving liberty to the fourth respondent to file an appeal before the Appellate Authority, he did not object for giving liberty to file an appeal by saying that the time for preferring the appeal has been lapsed in view of Section 39(1) of the Act, as contended now before this Court. In fact, the writ petition itself was filed within seven days from the date of dismissal order passed by the petitioner College, therefore, there can be no doubt that the order was without jurisdiction, since the petitioner College, while conducting the departmental proceedings, did not provide him an opportunity of personal hearing, hence, in my view, the intention of the fourth respondent is not to bypass the appeal remedy. Thus, the contention of the learned Senior counsel that the fourth respondent ought to have filed an appeal before the second respondent within 30 days from the date of dismissal order cannot be sustained.
As directed by this Court in the above said order, the fourth respondent has also filed a fresh appeal before the second respondent on 14.08.2012. In the meanwhile, the de-facto complainant Mrs. S. Kavithrani and her Guide/fourth respondent herein have entered into a compromise and filed a memo on 05.06.2012 to the file of the learned Judicial Magistrate No. 2, Virudhunagar, and thereafter, learned Judicial Magistrate No. 2, Virudhunagar, vide judgment dated 05.09.2012, made in C.C. No. 161 of 2011, acquitted the fourth respondent from all the charges levelled against him holding that the complainant not only turned hostile but also failed to prove the charges. Finally, on 21.08.2013, the second respondent also, by taking note of the above said judgment of the criminal Court, set aside the order of termination passed by the petitioner College. Aggrieved by the same, though the petitioner College filed a writ petition being W.P.(MD) No. 16614 of 2013, this Court, by order dated 13.08.2014, by observing that the contentions put-forth by the petitioner College and the fourth respondent have not been properly appreciated, remitted the matter back to the second respondent with a direction to dispose of the same on merits within three months, after affording reasonable opportunity to the petitioner College and the fourth respondent.
As directed by this Court, the fourth respondent again filed a fresh appeal before the second respondent on 04.09.2014. The second respondent again, by considering that the fourth respondent was dismissed pursuant to a false criminal complaint given by one Mrs. S. Kavitharani alleging sexual harassment and as a result, he was wrongly arrested and vainly remanded to judicial custody and by considering another fact that the said Mrs. S. Kavitharani also turned hostile before the criminal Court and failed to prove the charges to the effect that he has sent obscene SMS to her, has rightly set aside the order of termination passed by the petitioner College by passing the present impugned order dated 29.05.2015. Such an order, in my view, cannot be interfered with, in view of the ratio laid down by this Court in the case of V. Kanagasabapathy Vs. The Deputy Inspector General of Police, Villupuram Range and The Additional Superintendent of Police, Prohibition Enforcement Wing, , wherein this Court found that the departmental proceedings cannot be continued after the criminal Court''s acquittal on merits, especially when the charge is one and the same in both the proceedings. Relevant portion of the said judgment are extracted below:
"8.... The crux of the issue is when the facts and evidence in the criminal proceeding and departmental proceeding are same, the department will not be justified in pursuing the departmental proceeding after acquittal in the criminal case...
9.... It is not in dispute that irrespective of the verdict of the criminal Court, either acquittal or conviction, undoubtedly, the Department can proceed with the departmental enquiry in respect of the charges levelled against the officer. However, if the criminal Court acquitted the very same person on merits, on the ground that the charges framed against him had not been proved, the Department cannot ignore the said order of acquittal. It cannot be expected that all cases in criminal proceedings on the very same set of facts will end in acquittal and the departmental action should not be proceeded with. It is settled law that if the acquittal in the criminal proceedings is not an honourable one, it is always open to the Department to proceed with the departmental proceedings or enquiry. An honourable acquittal would only mean an acquittal which is free from any doubt....
Applying the proposition laid down in the above referred Division Bench decisions of this Court to the facts of this case, as the charges is one and the same in both the criminal case and in the departmental proceeding and in view of the fact that the criminal Court acquitted the petitioner on merits, it is not desirable on the part of the respondents to proceed with the departmental proceeding."
A mere reading of the above said judgment shows that though there is no bar for proceeding against a delinquent employee departmentally, irrespective of the verdict of the criminal Court, however, the department cannot ignore the order of the criminal Court acquitting the accused on merits. No doubt, in the case on hand, as stated above, the fourth respondent was acquitted in a criminal case from all the charges levelled against him, vide judgment dated 05.09.2012 made in C.C. No. 161 of 2011, on the file of the learned Judicial Magistrate No. 2, Virudhunagar, by holding that there was no material evidence on record to prove the guilt of the fourth respondent and that the complainant also turned hostile by way of filing a compromise memo. In such circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
Further, it is well settled law that the jurisdiction under Article 226 of the Constitution of India is an equity jurisdiction, therefore, this Court, by exercising such power, by considering the agony faced by the fourth respondent as his name was maligned due to the publication of complaint given by the said Mrs. S. Kavitharani to the effect that the fourth respondent has sexually harassed her by sending obscene SMS, is unable to take a different view than the one taken by the second respondent, for, the said teacher, having faced such humiliation along with his family members by losing his job for long periods, was acquitted by a criminal Court holding that the complainant not only turned hostile but also failed to prove the charges levelled against the fourth respondent.
Summarizing the above observation, this Court reiterates:
"a) At the time of withdrawing the writ petition (MD) No. 7137 of 2010 by the fourth respondent with liberty to file an appeal before the appellate authority, though the counsel for the petitioner College in the present writ petition was also present, he did not raise any such objection to the effect that there is a bar in preferring appeal as the time for preferring appeal got expired as per Section 39(1) of the Act. Had the petitioner College raised such an objection in the above said writ petition, ends of justice would have met and the fourth respondent would have argued the issue on merits. Therefore, if this belated plea of the petitioner College is accepted, then the fourth respondent would be remedy-less and the same would be against the legal principle of UBI JUS IBI REMEDIUM, which means "there is no wrong without a remedy". Since the petitioner College at the very earliest point of time acquiesced or yielded to the filing of an appeal agreeing with the fourth respondent to withdraw the challenge made to the order of dismissal on the anvil of Article 226 of the Constitution of India, this Court will not permit the petitioner College to raise such a plea, since they had already acquiesced before this Court while withdrawing the earlier writ petition (MD). No. 7137 of 2010.
b) Since the fourth respondent wrote a letter dated 19.01.2010 to the Coordinator of Manonmaniam Sundaranar University to the effect that the said Mrs. S. Kavitharani has not contacted him for the past seven months and has shown no progress in research activity of her Ph.D. programme and therefore, her Ph.D. Registration should be cancelled, the said Mrs. S. Kavitharani, taking advantage of her husband''s position as a police officer working in SPCID, Virudhunagar, in order to wreck vengeance, filed a false complaint, therefore, the fourth respondent was wrongly arrested and vainly remanded to judicial custody, costing his job and also bread and butter. However, before the criminal Court, she herself turned hostile deposing that she did not give any complaint against the fourth respondent. Therefore, since the charges levelled against the fourth respondent are one and the same both before the departmental proceedings and the criminal proceedings, the order of termination passed by the petitioner College cannot be sustained in view of the ratio laid down by this Court in Kanagasabapathy''s case (cited supra)."
Therefore, for all the aforesaid reasons, W.P.(MD) No. 9723 of 2015, seeking to quash the impugned order of reinstatement, is dismissed. Consequently, W.P.(MD) No. 9780 of 2015 is allowed, with a direction to the petitioner College to allow the fourth respondent to join duty along with a consequential monetary benefits. Such exercise shall be completed by the petitioner College within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No Costs.