Bindu P.P. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** ## **WP(C).No.19588 OF 2020(W)** ## **PETITIONER:** **BINDU P.P. AGED 50 YEARS L.P.S.A., THIRUVAL U.P.SCHOOL, THIRUVAL, KANNUR DISTRICT. BY ADV. SRI.M.VIJAYAKUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR GENERAL OF EDUCATION DIRECTORATE OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KANNUR - 670 001.** - **4 THE ASSISTANT EDUCATIONAL OFFICER PANOOR - 670 692.** - **5 THE MANAGER, THIRUVAL U.P.SCHOOL PANOOR, ELANKODE P.O., KANNUR - 670 692. BY ADV. SHRI. BEJOY JOSEPH P.J. SRI.P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.19588 OF 2020(W) 2 ## **J U D G M E N T** The petitioner, who is working as a Lower Primary School Teacher in the services of Thiruval U.P.School, Kannur, managed by the 5th respondent - Manager, has approached this Court impugning Exts.P6 and P7, as per which, she has been mulcted with liability, on the allegation that she had made certain bogus admissions to the School in question. 2. The petitioner says that an inspection by the Super Check Cell found that a student by name, Fathimul Najila M.P was not studying in the School, though she was shown in the roll; but that this was properly explained by saying that said student was admitted in the first standard on 01.06.2016 - with admission No.5753 and was promoted to the second standard, when her parents requested for Transfer Certificate and that she consequently, left the School on 04.07.2017 to join another School. 3. The petitioner says that even though these facts are documented by proper evidence, the Educational WP(C).No.19588 OF 2020(W) 3 Authorities and the Government refused to look into it and have now mulcted her with liability on the specious allegation that she had made a bogus admission to the School. The petitioner says that even though she had produced all these documents to substantiate the case before the competent Educational Authorities, Ext.P4 statutory Revision filed by her has been rejected by the Government alleging that these had not been so and therefore, that it cannot be looked into. 4. The petitioner submits that the finding of the Super Check Cell, which visited the School on 13.10.2017 and 07.02.2018, that the student in question was absent is completely without basis on account of the afore facts and therefore, that no action could have been taken against her; and further that the finding of the Educational Authority in Ext.P6 order that the Transfer Certificate in question is a bogus one is also without any verifiable or justifiable cause, having been entered into without any proper application of mind. The petitioner, therefore, prays that the impugned orders be set aside. 5. In addition to the afore contentions, the learned WP(C).No.19588 OF 2020(W) 4 counsel for the petitioner, Sri.M.Vijayakumar, submitted that in any event of the matter, no action could have been taken against his client in view of the fact that, under Section 12A of the Kerala Education Act, even though the Authorised Officer of the Government is vested with the powers to take disciplinary action against any teacher and to impose penalties specified therein, the proviso to it insists that before exercising such powers, the Authority must intimate the Manager regarding the circumstances leading to such proposed action and to give him/her a reasonable opportunity of initiating a disciplinary enquiry. The learned counsel relied upon the judgment of this Court in **Kishore v. State of Kerala [2019 (4) KLT 155]** in substantiation of his afore contention. Sri.M.Vijayakumar concluded by arguing that since these provisions have been blatantly violated in this case, the impugned orders are without legs to stand on and reiteratingly prays that same be set aside. 6. The learned Senior Government Pleader, Sri.P.M.Manoj, in response, submitted that, as is evident from the impugned orders, the Super Check Cell found that WP(C).No.19588 OF 2020(W) 5 on the two days they had visited the School, namely on 13.10.2017 and 07.02.2018, the student was absent and that though no documents were produced before the competent Educational Authorities by the petitioner to show that the student was in School and had moved away by obtaining a Transfer Certificate on 04.07.2017. He submitted that the Educational Authorities verified the Transfer Certificate and found that same had not been prepared or settled in a proper manner and therefore, it was thus justifiably concluded that it is a fabricated document. The learned Senior Government Pleader, therefore, submitted that the impugned orders are without error, particularly because Government has clearly recorded in Ext.P6 order that the petitioner had not produced any of the relevant documents before the Educational Authorities. He thus prayed that this writ petition be dismissed. 7. When I evaluate the afore submissions, it is indubitable that the sole allegation against the petitioner is that she was in charge of the Class in question and therefore, that she was aware that the student by name WP(C).No.19588 OF 2020(W) 6 Fathimul Najila M.P. was not available on the rolls. The reason why the Super Check Cell came to this conclusion is because this student was not available in the School on both the dates when the inspection had been conducted. However, the petitioner explains this by saying that the student was available and that she left the School only on 04/07/2017, on the strength of a Transfer Certificate issued by the School. However, these facts have not been verified by any of the competent Authorities and in fact, Government only says that the relevant documents had not been produced before the Educational Authority at the time when Ext.P6 order had been issued. However, the petitioner contests this specifically by contending that all documents had been produced, but they were not looked into by the Authorities properly. 8. That apart, as rightly stated by Shri.M.Vijayakumar, going by the provisions of Sections 12A of the Kerala Education Act, action against the petitioner could have been taken only after following the provisions of the proviso therein. The impugned order does not show that WP(C).No.19588 OF 2020(W) 7 any such opportunity had been given to the Manager and for that reason also I must say that the impugned orders cannot find favour of this Court, without further scrutiny. In the afore circumstances, I order this writ petition and set aside Ext.P6; with a concomitant direction to the competent secretary of the 1[st] respondent State of Kerala to reconsider the petitioner's Revision after affording her an opportunity of being heard - either physically or through video conferencing – and on producing all relevant documents, leading to an appropriate order thereon, as expeditiously as is possible. Needless to say, while completing the afore exercise Government shall advert to the ratio in **Kishore** (supra) and specifically the petitioner's contention in law that the provisions of Section 12A of the Kerala Education Act have been violated. ## **SD/-** ## **DEVAN RAMACHANDRAN** rp/MC ## **JUDGE** WP(C).No.19588 OF 2020(W) 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOSTAT COPY OF THE NOTICE DATED 15/05/2018. EXHIBIT P2 PHOTOSTAT COPY OF THE OBJECTION DATED 23/06/2018 BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 PHOTOSTAT COPY OF THE ORDER NO.S.C./62/2018/K.K.D. DATED 01/12/2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P4 PHOTOSTAT COPY OF THE REVISION DATED 26/12/2018 FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5 PHOTOSTAT COPY OF THE TRANSFER CERTIFICATE. EXHIBIT P6 PHOTOSTAT COPY OF THE ORDER G.O.(P) NO.2391/20 DATED 06/08/2020.** **EXHIBIT P7 PHOTOSTAT COPY OF THE NOTICE DATED 26/08/2019 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P8 PHOTOSTAT COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WA NO.2552/2015 DATED 13/8/2019**