Chinmaya Vidyalaya Teachers Welfare Association v. Deputy Director of Education Kozhikode and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** **WP(C).No. 9518 of 2016 (L) ---------------------------** **PETITIONER(S): -------------** **CHINMAYA VIDYALAYATEACHERS WELFATE ASSOCIATION R.S 303/207 NELLIKKODE, KOZHIKODE - 673 016, REPRESENTED BY ITS PRESIDENT, DHANANJAYAN K., S/O. O. MADHAVAN NAIR.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** **RESPONDENT(S):** **--------------** **1. DEPUTY DIRECTOR OF EDUCATION KOZHIKODE - 673 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE - 673 001.** **3. MANAGER (MOHANDAS)** **CHINMAYA VIDYALAYA, UNAIDED ENGLISH MEDIUM HIGHER SECNODARY SCHOOL, NELLIKKODE, KOZHIKODE- 673 016.** **4. SECRETARY, CHINMAYA VIDYALAYA UNAIDED ENGLISH HIGHER SECONDARY SCHOOL, NELLIKKODE, KOZHIKODE - 673 016.** **R4 BY ADV. SRI.K.B.GANGESH R4 BY ADV. SMT.SMITHA CHATHANARAMBATH R BY GOVERNMENT PLEADER, SRI. UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2016, ALONG WITH WPC. 20473/2016, WPC. 21555/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9518 of 2016 (L) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1TRUE COPY OF THE AUDITED BALANCE SHEET OF THE 3RD RESPONDENT FOR THE YEAR 2015-16** - **P2TRUE COPY OF THE LETTER DATED 10/06/2015 ISSUED BY PERMANENT TEACHERS OF CHINMAYA VIDYALAYA** - **P3TRUE COPY OF THE PROCEEDINGS OF THE MANAGER OF THE SCHOOL DATED 27/10/2014** - **P4TRUE COPY OF THE AGREEMENT ON 17/06/2015 WITH THE TEACHERS** - **P5TRUE COPY OF THE LETTER DATED 26/03/2015 OF THE DISTRICT EDUCATIONAL OFFICER** - **P6TRUE COPY OF THE MEMORANDUM OF SETTLEMENT 27/07/2015 BETWEEN THE MANAGEMENT AS WELL AS THE TEACHERS** - **P7TRUE COPY OF THE REPRESENTATION DATED 18/12/2014 FILED BY THE PERMANENT TEACHERS OF CHINMAYA VIDYALAYA** - **P8TRUE COPY OF THE LETTER DATED 05/02/2016 ISSUED TO ONE OF THE TEAHERS OF THE SECRETARY.** - **P9TRUE COPY OF THE MINUTES OF THE FIRST MEETING OF THE ASSOCIATION DATED 18.06.2013** - **P10TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 17.06.2016.** - **P9-(IA No.4266/2016) TRUE COPY OF THE LIST OF THE MEMBERS OF THE PETITIONER ASSOCIATION.** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **R4(a) TRUE COPY OF HE AUDITED INCOME AND EXPENDITURE ACCOUNT OF THE SCHOOL FOR THE YEAR 2014-15** - **R4(b) TRUE COPY OF THE REPORT SUBMITTED BY M/S. T.K.MENON & COMPANY TO THE 4TH RESPONDENT ON 18.11.2015** - **R4(a) TRUE COPY OF THE MINUTES OF THE BOARD OF MANAGEMENT OF CHINMAYA VIDYALAYA, CALICUT HELD ON 18.06.2015.** - **R4(b) TRUE COPY OF THE MINUTES OF THE BOARD OF MANAGEMENT OF CHINMAYA VIDYALAYA, CALICUT HELD ON 27.05.2016.** // True copy // das PA to Judge ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== **W.P.(C). Nos. 9518, 20473 & 21555 of 2016** ===================================================== **Dated this the 19[th] day of December, 2016** ## **JUDGMENT** As all these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. ## WP(C) No.9518 of 2016 The petitioner in this writ petition is a registered Association styled as the Chinmaya Vidyalaya Teachers Welfare Association. The Association comprises of the teachers of Chinmaya Vidyalaya school, which is an unaided recognised school functioning under the Kerala Education Act/Kerala Education Rules. It would appear that, in connection with an agitation that was staged by the teachers of the school seeking a revision of salary, Ext.P8 letter was issued by the Secretary of the Board of Management of the registered Trust, which manages the school, to one of the teachers, threatening disciplinary action against her. The said communication, Ext.P8, is impugned in this writ petition. The main ground of challenge against Ext.P8 is regarding the authority of the 4[th] respondent in the writ petition to issue Ext.P8 notice. It is stated that the 4[th] respondent is not the manager of the school and -2- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 therefore, not a person who is competent to proceed against the petitioners for imposing any punishment on them. 2. In a counter affidavit filed on behalf of the respondents, it is stated that the school is an unaided private school and therefore, the writ petition itself is not maintainable. It stated that the settlements entered into between the management and the teachers of the school were being duly honoured and the required percentage of the fee collected was used for effecting payment of the salary of the permanent teachers. Dealing with the averments in the writ petition regarding the competency of the 4[th] respondent to issue Ext.P8 notice, it is stated that the school is managed by a registered Trust, and the Secretary of the Trust represents the Board of Management. It is therefore contended that, the 4[th] respondent is effectively functioning as the manager of the school for the purposes of the Kerala Education Act and Rules. Reference is also made to Chapter XIV AA of the Kerala Education Rules to contend that the phrase 'Manager' under the Kerala Education Rules, in the context of an unaided private school, can only refer to the authorised representative of the educational agency and insofar as the Secretary has been authorised to carryout the day to day administration of the school, he would be -3- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 qualified to initiate disciplinary proceedings against the teachers of the school. 3. During the pendency of the aforementioned writ petition, disciplinary proceedings were initiated and completed against four teachers, and they were served with orders terminating their services. The said orders are under challenge by the said four teachers in Writ Petition 20473 of 2016. In the said writ petition, while the issue with regard to jurisdiction of the Secretary to initiate disciplinary proceedings is reiterated, the petitioners also impugn the punishment imposed on the contention that the disciplinary proceedings initiated against them were itself vitiated, inasmuch as no fair procedure was followed in the course of the disciplinary proceedings and the petitioners were not given any effective opportunity of defending themselves at the enquiry. It is pointed out that the charge sheet and the statement of allegations issued to the petitioners are all identically worded and there is also a lack of clarity in whether hearing notices were issued to them in connection with the various stages of enquiry. It is stated that the domestic enquiry proceeded without the participation of the petitioners and, although an enquiry report was sent to the petitioners, along with the show cause notice -4- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 asking them to show cause against the proposed punishment of dismissal from service, the petitioners were not given adequate time to respond to the same and it was under those circumstances that Ext.P10 series of orders were passed dismissing the petitioners from service with effect from 28.05.2016. As already noted, in the said writ petition the orders dismissing the petitioners from service are impugned. 4. In the counter affidavit filed on behalf of the respondents in the said writ petition, the stand taken is that the petitioners did not participate with the enquiry despite notice, and therefore, the petitioners could not be heard to complain of any lack of fairness in the procedure followed by the respondents. 5. Writ Petition 21555 of 2016 is filed by the Secretary of the Chinmaya Vidyalaya. In the said writ petition, Ext.P15 order dated 17.06.2016 issued by the District Educational Officer, is impugned. By the said order, the District Educational Officer found that the orders of dismissal passed against the teachers were vitiated on account of a non compliance with the rules of natural justice and thereby, set aside the said proceedings and directed the reinstatement of the teachers in question. The -5- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 primary ground of challenge against Ext.P15 order passed by the District Educational Officer is that the said order was passed without hearing the petitioner. By an interim order dated 24.06.2016, this Court had stayed the operation of Ext.P15 order passed by the District Educational Officer. 6. I have heard Smt. P.R.Reena, the learned counsel appearing for the petitioners in WP(C) Nos.9518 and 20473 of 2016 and Sri.K.B.Ganesh, the learned counsel appearing for the petitioner in WP(C) No.21555 of 2016 and the respondents in the other two writ petitions. I have also heard the learned Government Pleader appearing for the official respondents in all these writ petitions. 7. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that writ petitions 9518 of 2016 and 21555 of 2016 lie in a very narrow compass, and they can be taken up first for disposal. The challenge in WP(C) No.9518 of 2016 is essentially against the authority of the 4[th] respondent, Secretary of the Board of Management of the registered Trust that manages the school, to issue Ext.P8 communication threatening one of the teachers of the -6- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 school with disciplinary action. The contention is premised on the provisions of the KER and in particular Chapter III, which deals with the appointment of managers in a school, and the contention is that the 4[th] respondent is not a person, who can be treated as the manager appointed in terms of Chapter III of KER. The contention of the petitioners is resisted by the respondents on the contention that the school is managed by a registered Trust and is an unaided private school. It is pointed out, therefore, that it is the provisions of Chapter XIV AA that would be relevant to determine who the Manager of the school is for the purposes of KER, and viewed in that sense, it is contended that the term 'Manager' for the purposes of the KER, in its application to unaided private schools, could only be a reference to the authorised representative of the educational agency that runs the school. The Secretary, in the instant case, is stated to be authorised to carry out the day to day administration of the school. 8. On a consideration of the rival contentions, I find force in the contention of the learned counsel for the respondents that, in the context of an unaided private school, the Secretary of the Board of Management of the registered Trust which manages the school, who has been duly authorised to carry out the day to day -7- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 administration of the school, can be seen as the manager for the purposes of initiation of the disciplinary proceedings against the teachers of the school. I therefore, find that this ground of challenge against Ext.P8 letter issued to one of the teachers cannot be legally sustained. The writ petition in its challenge against Ext.P8 order, therefore, fails and is accordingly dismissed. I make it clear that I have not expressed any opinion on the merits of the representation that is stated to have been filed by the petitioners before the 1[st] and 2[nd] respondents in connection with their grievances regarding payment of salary to them. The said representations may be separately considered by the said respondents on merits. 9. As regards WP(C) No.21555 of 2016, that is filed by the Secretary of Chinmaya Vidyalaya, challenging Ext.P15 order passed by the District Educational Officer, I note that the principal ground of challenge is that a copy of the complaint preferred by the teachers before the District Educational Officer, was not served on the petitioner initially and further that the petitioner was not heard, after serving a copy of the complaint on him but prior to passing of Ext.P15 order. It is not in dispute that Ext.P15 order was passed, without hearing the petitioners after serving a -8- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 copy of the complaint on him and hence, the said order cannot be legally sustained for that reason alone. Accordingly, I quash Ext.P15 order, passed by the District Educational Officer, inasmuch as it is vitiated by a non compliance with the rules of natural justice. While under ordinary circumstances, I would have directed the DEO to pass fresh orders in the matter after hearing the petitioner, in the light of the orders that I propose to pass in WP(C) No.20473 of 2016, I do not see a necessity for such an exercise at this stage. 10. As regards WP(C) No.20473 of 2016, I find that Ext.P10 series of orders were passed by the management of the school terminating the services of the petitioners with effect from 28.05.2016. While in the writ petition, the petitioners would point out various instances to suggest that there was no effective opportunity granted to them to defend the allegations raised against them, and in connection with which, disciplinary proceedings were initiated against them, I find that there were, in fact, notices issued to the petitioners at various stages, although it cannot be said, in favour of the respondent management, that ample time and opportunity was extended to the teachers to defend themselves adequately in the proceedings that were -9- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 initiated against them. A perusal of the records in the instant case would clearly indicate that there have been lapses on the part of the petitioners and the management, during the course of the disciplinary proceedings. Under the said circumstances, I had directed the petitioners and the respondent management to submit a time sheet for the purposes of conducting a fresh enquiry from the stage of service of the statement of allegations and charge memo to the teachers, who are the petitioners in WP(C) 20473 of 2016, till the completion of the proceedings. The respondent management has submitted a proposal indicating the schedule for enquiry, which has been perused by the learned counsel for the petitioners, who agrees to the same. Accordingly, I dispose the said writ petition (WP(C) No.20473 of 2016) by quashing Ext.P10 series of orders and directing the respondent management to conduct a fresh enquiry from the stage of submission of the statement of allegations and charge memo to the petitioners in the said writ petition. The respondent management shall conduct the enquiry based on the following time schedule, and it is the understanding before this Court that the petitioners will also cooperate with the enquiry proceedings initiated by the respondent management. (i) Inasmuch as the petitioners have already -10- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 received a copy of the charge memo and the statement of allegations, the respondents need not serve a fresh copy to them at this stage. The respondents shall, however, serve on the petitioners copies of all the documents relied upon in the said charge memo and statement of allegations, within a week from the date of receipt of a copy of this judgment. - (ii) The petitioners shall, on their part, submit a reply to the said statement of allegations and charge memo within ten days from 03.01.2017. (iii) The enquiry shall be commenced at 3 p.m., on 14.01.2017 at the Office of Adv.T.P.Sudeep Kumar, who has been appointed as the enquiry officer by the respondent. On the said day, the petitioners as well as the respondents shall submit their list of witnesses and list of documents to the enquiry officer, the copies of the documents shall be exchanged and the petitioners shall furnish their addresses to the enquiry officer and the representatives of the management, so that there is no dispute thereafter with regard to the receipt of communications in connection with the disciplinary proceedings initiated against them. -11- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 (iv) The evidence of the management shall commence on 16.01.2017 and the time and venue will be informed by the enquiry officer to the petitioners and the respondent management on 14.01.2017. The evidence of the management will proceed on day to day basis and on conclusion of the management evidence, the defence evidence will commence, after a maximum gap of three days. Defence evidence will also proceed on day to day basis and on conclusion of the defence evidence, the enquiry will be posted for final arguments on the next day, after closure of the defence evidence. (v) On conclusion of the enquiry proceedings, the enquiry officer shall furnish an enquiry report to the management within fifteen days thereafter, and on receipt of the enquiry report, the management shall forward a copy of the same, along with a show cause notice, seeking for the views of the petitioners as regards the acceptance of the enquiry report and the punishment that is proposed against them, within seven days from the date of receipt of the enquiry report. -12- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 (vi) The petitioners shall submit a reply to the said show cause notice within ten days from the date of receipt of the said notice and enquiry report from the management. - (vii) The management shall, thereafter, take a final decision in the disciplinary proceedings within fifteen days from the last date for receipt of the reply from the petitioners and shall communicate the same to the petitioners immediately thereafter. (viii) The understanding between the parties that the enquiry proceedings will not be adjourned to more than three days at a stretch, and that the management will be represented by a representative/lawyer of the management, and that the petitioners will be represented by Adv. Girish Kumar V for representing them in the enquiry, is also recorded. (ix)It is also made clear that, while the petitioners will not be reinstated in service during the period of the enquiry, the treatment of the period from the date of their initial termination from service (28.05.2016), till the date of the order passed by the disciplinary authority, pursuant to the directions issued above, shall -13- W.P.(C). Nos. 9518, 20473 & 21555 of 2016 be considered by the disciplinary authority at the time of passing of final orders in the disciplinary proceedings. The prayer by the learned counsel for the petitioners for reinstatement pending completion of the disciplinary proceedings, is rejected, based on the decision in Hiran Mayee Bhattacharyya _v._ Secretary, S.M. School for Girls and Others **[2002 (10) SCC 293]** . I make it clear that, nothing in this judgment shall stand in the way of the petitioners challenging any final order passed by the respondents in proceeding before this Court, if they are so advised. Thus WP(C) No.9518 of 2016 is dismissed, WP(C) 21555 of 2016 is allowed and WP(C) 20473 of 2016 is disposed, in accordance with the directions issued above. sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** das/ 19.12.2016