Davis E.O. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944** ## **WP(C) NO. 25159 OF 2022** ## **PETITIONER:** DAVIS E.O. AGED 50 YEARS S/O.E.K.OUSEPH, CLERK, ST.FRANCIS HIGH SCHOOL FOR GIRLS, MATTOM, THRISSUR - 680 602, RESIDING AT EMMATY HOUSE, MATTOM (PO), THRISSUR - 680 602. BY ADV U.BALAGANGADHARAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM - 695 014. 3 DEPUTY DIRECTOR OF EDUCATION (D.D.E.) THRISSUR - 680 003. 4 DISTRICT EDUCATIONAL OFFICER (D.E.O.) CHAVAKKAD, THRISSUR - 680 506. 5 EX-OFFICIO MANAGER (DEO) CHAVAKKAD, THRISSUR, ST.FRANCIS HIGH SCHOOL FOR GIRLS, MATTOM, THRISSUR - 680 602. 6 HEADMISTRESS ST.FRANCIS HIGH SCHOOL FOR GIRLS, MATTOM, THRISSUR - 680 602. BY ADV ADVOCATE GENERAL OFFICE KERALA SR. GP SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25159 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J.** # **-----------------------------W.P.(C)No. 25159 of 2022** **---------------------------------------------Dated this the 10[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(1) Call for the records leading to Exhibits P4 and P5 and quash the same by issuing writ in the nature of certiorari;_ _(2) Issue Writ in the nature of mandamus commanding the 4th respondent DEO to permit the petitioner to draw his annual increments fall in October 2022 and October 2023;_ _(3) Declare that the entire disciplinary proceedings initiated against the petitioner as per Exhibit P4 and Exhibit P5 penalty order are legally and factually unsustainable and they are invalid in the eye of law; and_ _(4) Such other reliefs that the Hon'ble Court deem fit and proper in the facts and circumstances of the case.”[SIC]_ 2. The petitioner who is working as a Clerk in 5[th] respondent school filed this writ petition aggrieved WP(C) NO. 25159 OF 2022 3 by disciplinary proceedings and imposition of major penalty. According to the petitioner, the major penalty is imposed without the recourse of any law or procedure known to the service jurisprudence. Petitioner commenced his service on 25.10.1999. Ext.P1 is the appointment order. It is submitted that during the Onam holidays in the year 2016, petitioner left for Singapore in a package tour for a period from 13.09.2016 to 18.09.2016. It is further submitted that during the year 2018 petitioner availed 2 days casual leave on 20[th] and 22[nd] of October 2018 and performed a package tour to Dubai from 19.10.2018 to 22.10.2018. Thereafter the petitioner availed 13 days commuted leave and went to Malasia. It is the case of the petitioner that, during the aforesaid 3 episodes of travel performed by the petitioner, he had not obtained prior permission. But, it is stated that he has been granted casual leave and commuted leave on all the occasions and there has not been any WP(C) NO. 25159 OF 2022 4 contingency arose during his leave period warranting his presence in the school. It is submitted that the Vigilance and Anti-Corruption Bureau conducted inspection of Books and Accounts of the school in connection with some allegations and during the inspection it was found that the petitioner had performed journey without obtaining prior permission from the authorities. Accordingly, the Vigilance recommended to initiate disciplinary proceedings against the petitioner. It is submitted that due to management dispute the DEO, Chavakkad is functioning as the Ex-officio Manager of the School. On the basis of some directions from the 3[rd] respondent the 5[th] respondent has directed the Head Master of the School and the petitioner vide letter dated 22.12.2021 to appear for a hearing as evident by Ext.P3 notice. The petitioner submitted explanation. But it is the case of the petitioner that the 5[th] respondent DEO, in his capacity as the Ex- WP(C) NO. 25159 OF 2022 5 officio Manager issued a memo of charges as evident by Ext.P4 alleging that the petitioner has performed journey out of India without obtaining prior permission from the competent authority. It is the case of the petitioner that the charge memo itself appears to be a final determination order. It conclusively find that the 5[th] respondent has convinced that the petitioner had committed the acts of misconduct. The charge memo also decides to impose a penalty of withholding two annual increments with cumulative effect as provided under Rule 75 of Chapter XIV-A KER. Even Ext.P4 charge memo and the proceedings initiated thereupon are factually and legally unsustainable is the contention raised by the petitioner. Subsequently it was further decided to impose a major penalty of withholding two annual increment with cumulative effect. The charge memo is bad for the reason that it was not accompanied by statement of imputation is also the WP(C) NO. 25159 OF 2022 6 submission of the petitioner. Thereafter Ext.P5 final order is passed by which a penalty is imposed withholding two annual increments with cumulative effect. Aggrieved by Exts.P4 and P5, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. 4. Counsel for the petitioner submitted that Ext.P4 charge memo itself is unsustainable on different grounds. Counsel submitted that the charge memo itself appears to be a final determination order. It conclusively finds that the 5[th] respondent has convinced that the petitioner has committed the acts of misconduct and imposed a penalty of withholding two annual increments. The counsel relies on the judgments of this Court in _**K.J.Sulatha and others v. State and others**_ [1993 KHC 241] and _**Yamuna v. State of Kerala**_ [2008 (1) KLT 378]. The counsel also relied on the judgment of WP(C) NO. 25159 OF 2022 7 the Apex Court in _**Shri.Shekhar Ghosh v. Union of India and another**_ [2007 KHC 3014], which says that, post decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. The counsel submitted that the Apex Court in _**Kulwant Singh Gill v. State of Punjab**_ [1991 KHC 1065] observed that, stoppage of two increments with cumulative effect is a major penalty even if the same is not mentioned in the statute. 5. The Government Pleader on the other hand submitted that a detailed counter affidavit is filed by the 4[th] respondent disputing the contentions raised by the petitioner. The Government Pleader submitted that the petitioner conceded that he left India without permission. Ext.R4(a) is the submission given by the petitioner to the District Educational Officer. 6. This Court considered the contentions of the petitioner and the Government Pleader. This WP(C) NO. 25159 OF 2022 8 Court perused Ext.P4 charge memo. A perusal of Ext.P4 charge memo will show that there are preliminary finding against the petitioner in that charge memo itself. Moreover, it is also stated in Ext.P4 that, it is decided to impose a penalty of withholding two increments with cumulative effect. In such circumstances, according to me, Ext.P4 can not be treated as a charge memo. There are findings on merit and the punishment is already imposed in the charge memo itself. This Court in _**K.J.Sulatha**_ 's case (supra) observed that disciplinary authority can not prejudge the particular penalty to be imposed on the delinquent before considering his explanation and entering a finding against him. Such an action would be unfair and arbitrary and against the spirit of the Rules. Therefore, according to me, Ext.P4 memo of charge itself is unsustainable. Ext.P5 is the final order. As per Ext.P5 penalty of withholding one increment with cumulative effect is imposed on the WP(C) NO. 25159 OF 2022 9 petitioner. In _**Kulwant Singh Gill**_ 's case (supra), the Apex Court observed that stoppage of increments with cumulative effect is a major penalty. If that is the case, Rule 75 of Chapter XIV-A KER, enquiry is necessary. Therefore, according to me, Exts.P4 and P5 are unsustainable and are liable to be quashed. But I make it clear that the department is free to take appropriate action in accordance with law, if warranted. Accordingly, this writ petition is allowed in the following manner: - i. Exts.P4 and P5 are quashed. - ii. I make it clear that the respondents are free to take appropriate action against the petitioner, if so warranted, in accordance with law. Sd/- DM ## **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 25159 OF 2022 10 ## **APPENDIX OF WP(C) 25159/2022** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|A TRUE COPY OF THE APPOINTMENT| ||ORDER DATED 25/10/1999.| |EXHIBIT P2|A TRUE COPY OF THE LEAVE LETTER| ||WITH CERTIFICATE OF SANCTION DATED| ||18/01/2020.| |EXHIBIT P3|A TRUE COPY OF THE NOTICE DATED| ||21/12/2021 ISSUED BY THE 5TH| ||RESPONDENT TO 6TH RESPONDENT.| |EXHIBIT P4|A TRUE COPY OF THE CHARGE MEMO| ||DATED 28/12/2021 ISSUED BY THE 5TH| ||RESPONDENT.| |EXHIBIT P5|A TRUE COPY OF THE ORDER DATED| ||14/1/2022 OF THE 5TH RESPONDENT.| |RESPONDENT EXHIBITS|| |EXHIBIT R4(A)|TRUE COPY OF WRITTEN SUBMISSION| ||GIVEN BY THE PETITIONER DATED.| ||24.12.21.| //TRUE COPY// PA TO JUDGE