Dr. Aby Paul v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **SATURDAY, THE 28[TH] DAY OF OCTOBER 2023 / 6TH KARTHIKA, 1945** ## **WP(C) NO. 40412 OF 2022** ## **PETITIONER/S:** DR. ABY PAUL, AGED 49 YEARS PRINCIPAL, CHALDEAN SYRIAN HIGHER SECONDARY SCHOOL, HIGH ROAD, THRISSUR - 680 001. RESIDING AT: MANNUTHY HOUSE, VRINDAVANAM LANE, KURIACHIRA, THRISSUR - 680 006. BY ADVS. SRI K.T.THOMAS SRI MATHEW B. KURIAN ## **RESPONDENTS:** 1 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION (HIGHER SECONDARY WING) HOUSING BOARD BUILDINGS, SANTHI NAGAR, JAGATHY, THIRUVANANTHAPURAM - 695 014. 3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM, SRV GHSS BUILDING, KASTURIRANGAN HALL, ERNAKULAM - 682 028. 4 THE CORPORATE MANAGER, CHALDEAN SYRIAN CHURCH SCHOOLS, HIGH ROAD, THRISSUR - 680 001. BY ADVS. SMT.VIJAYALAKSHMI M U SRI K.JAJU BABU (SR.)(K/116/1981) SRI BRIJESH MOHAN(K/1851/1999) SRI.V.VENUGOPAL-GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 40412 OF 2022** **2** ## **T.R. RAVI, J.** ## **--------------------------------------** W.P.(C) No.40412 of 2022 ---------------------------------------------------Dated this the 28[th ] day of October, 2023 ## **JUDGMENT** The writ petition has been filed with the following prayers: (i). To issue appropriate writ, order or direction declaring that Ext-P13 order to the extent its directs conduct of enquiry by 2[nd] respondent is without jurisdiction and against the statutory provisions. (ii). To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext-P14 enquiry report. (iii). To issue a writ of mandamus or other appropriate writ, order or direction directing the 4[th] respondent to complete the disciplinary proceedings initiated against the petitioner. (iv). To issue appropriate writ, order or direction dispensing with production of English translation of Exts-P1 to P7, P9, P11, P13 and P14 documents. (v). To grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts and circumstances of the case. **WP(C) NO. 40412 OF 2022** **3** 2. The admitted facts are as follows; The petitioner was appointed as Principal in charge in the Chaldean Syrian Higher Secondary School, Thrissur under the management of the 4[th] respondent in 2014. The petitioner submits that he was awarded Teacher of Outstanding Merit by the State Government in 2014 and the National award for best teacher by the Central Government in 2015. Certain complaints had been filed by the President and Vice President of the PTA alleging irregularity in the PTA accounts. An inspection was conducted by the DEO and report was submitted to the DDE, Thrissur in December, 2019. The DDE, Thrissur, on 6.2.2020 issued notice to the 4[th] respondent to take appropriate action. On 12.3.2020, the 4[th] respondent placed the petitioner and the Headmistress under suspension. The DDE had conducted an inspection on the transactions in the PTA fund and submitted a report Ext.P3, on 17.3.2020. The petitioner was thereafter reinstated in service on 27.3.2020. The RDD, Ernakulam had conducted an inspection and submitted a report on 15.9.2020, **WP(C) NO. 40412 OF 2022** **4** copy of which has been produced as Ext.P4. On allegation of mishandling of funds, Crime No.3503 of 2020 was registered by the Thrissur East Police against the petitioner, 4[th] respondent and the Headmistress on 1.10.2020. The Crime was registered on the complaint of the President of the PTA. The petitioner in the meanwhile gave explanation to the inspection report Ext.P4 on 8.10.2020 and copy of the same is produced as Ext.P5. The petitioner had challenged the suspension before the Government, which was rejected by the Government on 18.12.2020. Ext.P1 is the order issued by the Government. Thereafter, the Manager issued a show cause memo to the petitioner proposing to impose a punishment of barring one increment for two years. Ext.P2 is the show cause notice dated 15.01.2021. The petitioner challenged Exts.P1 and P2 before this Court in WPC 3020 of 2021 and as per Ext.P15 order dated 5.2.2021, Exts.P1 and P2 were stayed by this Court. Soon thereafter on 8.2.2021, the 4[th] respondent issued Ext.P6 memo of charges and statement of allegations. On 4.3.2021, the **WP(C) NO. 40412 OF 2022** **5** Manager issued Ext.P8 order withdrawing Ext.P2 notice. On a complaint filed by the 4[th] respondent, Crime No.1630 of 2021 was registered by the Thrissur East Police against the petitioner for offences of forgery, etc. on 26.8.2021. Thereafter, the 4[th] respondent again issued an order of suspension on 18.10.2021 copy of which is produced as Ext.P10. The 4th respondent once again approached the RDD for extension of the period of suspension, which was rejected by Ext.P11 order dated 2.11.2021. The 4[th] respondent filed a revision petition against Ext.P11 order and moved this Court by filing W.P.(C)No.24318 of 2021, which was disposed of by this Court on 5.11.2021 with a direction to dispose of the revision petition and to continue the suspension in the meanwhile. The petitioner filed W.A.No.1504 of 2021 against the judgment in W.P.(C)No.24318 of 2021 and this Court by Ext.P12 order dated 23.11.2021 directed reinstatement of the petitioner in service. 3. The revision petition filed by the Manager was dismissed by the Government on 16.2.2022. However, while dismissing **WP(C) NO. 40412 OF 2022** **6** the revision petition the Government also ordered enquiry against the petitioner by the Director of General Education. Ext.P13 is the order issued by the Government. On 28.3.2022, the Thrissur East Police Station referred Crime No.1630 of 2021 and copy of the same is produced as Ext.P9. Pursuant to Ext.P13, an inspection was conducted by the Senior Finance Officer along with a Junior Superintendent and three Senior Clerks of his Office into the allegations against the petitioner. A report Ext.P14 has been filed on 26.09.2022 finding that the petitioner is guilty of certain allegations. Soon thereafter, on 16.1.2023, the 4[th] respondent issued a notice proposing to impose the punishment of dismissal from service on the petitioner. Ext.P17 is the proceedings. However, two days later, the notice was withdrawn by the 4[th] respondent. The petitioner has filed this writ petition challenging Exts.P13 and P14. 4. The main contention of the petitioner is that the the Government does not have any power to order an enquiry and **WP(C) NO. 40412 OF 2022** **7** the report which has been prepared pursuant to such an enquiry which is itself unauthorised, is bad in law. The respondents 1 & 4 have filed counter affidavits justifying the order Ext.P13 and the report Ext.P14. 5. Heard Adv.Sri.K.T.Thomas on behalf of the petitioner, Senior Advocate Sri.Jaju Babu instructed by Adv.Sri.Brijesh Mohan on behalf of the 4[th] respondent and Sri.V. Venugopal, Government Pleader on behalf of respondents 1 to 3. 6. The counsel for the petitioner submitted that the power of the Government to initiate disciplinary action is available under Section 12A of the Kerala Education Act. As per the provision, Government shall have power to take disciplinary proceedings against a teacher of an aided school and to impose on him all or any other penalties specified in the Rules made under the Act. As per the proviso to the Section, the Government shall, prior to exercising the power to take disciplinary proceedings, intimate the Manager regarding the circumstances requiring disciplinary action and give the **WP(C) NO. 40412 OF 2022** **8** Manager a reasonable opportunity to take disciplinary action. It is further provided that if the Manager fails to take appropriate action, it shall be open to the Government to take appropriate disciplinary action against the teacher concerned. Rule 75A of Chapter XIV A of KER, is a corresponding Rule facilitating the Government to take disciplinary action. The Rule also says that if the Manager does not initiate appropriate action within one month from the date of an intimation as specified in Section 12A or if after intimation of the disciplinary proceedings he does not complete the disciplinary proceedings within two months from the date of intimation, or if according to the Government the Manager had dropped the disciplinary proceedings without sufficient grounds or imposed a penalty not proportionate to the gravity of charges proved, the Government shall take appropriate disciplinary action against the teacher concerned. The counsel for the petitioner submits that neither the Statute nor the Rules contemplate a situation where the Government by itself initiates a disciplinary action without even an intimation to **WP(C) NO. 40412 OF 2022** **9** the Manager to take such action. 7. Reliance is placed on the judgments of this Court in **Manager A.V.L.P.School v. State of Kerala** [1993 KHC 61], **Usha Louis v. State of Kerala and Others** [2012 (4) KHC 705], **P.R.Yamuna v. State of Kerala and Others** [2007 (4) KHC 910] and **Thomas P.Mathew, Headmaster, C.R.High School, Valiyathovala v. State of Kerala and Others** [2018 KHC 3858] in support of the above contention. 8. The Senior Counsel appearing on behalf of the 4[th] respondent submitted that there is no dispute with regard to the propositions laid down in the above decisions. Going by the decisions, it is only in the absence of the Manager initiating disciplinary action, the Government exercises the power to conduct the disciplinary proceedings. 9. The counsel for the petitioner submits that the legal position being as above, the direction contained in Ext.P13 to the Director of General Education to conduct an enquiry was totally unwarranted. I find considerable force in the above said **WP(C) NO. 40412 OF 2022** **10** argument. The revision which was filed by the 4[th] respondent was only regarding the extension of suspension and was not a case where the exercise of power under Section 12A was called for. The Manager had already initiated an action by issuing a memo of charges (Ext.P6) and a situation contemplated under Section 12A or Rule 75A was not existing so as to direct an enquiry by the Director of General Education. The Government had clearly found that there was no necessity to extend the suspension. If at all any direction was required, it was only to direct the 4[th] respondent to take Ext.P6 to its logical end. The report Ext.P14 has been generated on the basis of an enquiry ordered as per Ext.P13, which I have already found to be unwarranted. As such, the said report cannot be the basis for any further action against the petitioner. A reading of Ext.P14 would show that it is just an inspection report, which has been prepared without calling for any explanation by the petitioner or any other person. 10. The Senior Counsel appearing for the 4[th] respondent **WP(C) NO. 40412 OF 2022** **11** submitted that the action of the Government in issuing Ext.P13 can be justified under Rule 75 of Chapter XIV A and there is nothing wrong in the Government directing the Director of General Education to conduct an enquiry, since even otherwise the enquiry has to be conducted by the officers. It may be true that the enquiry has to be conducted by the officers. However, Rule 75(1)(b) contemplates that the Manager forwards the records of the case with such a request to the Deputy Director (Education) in the case of Headmasters of High Schools and Training Schools or to the Educational Officers in other cases that a formal enquiry may be conducted. The records that are to be forwarded are the records relating to the complaint, if any received, report of investigation, etc. on which the Manager is satisfied of a _prima facie_ case for taking action against the teacher, the charge memo and the statement of allegations that are issued to the teacher, the written statement of defence submitted by the teacher, etc. Rule 75 also says that the teacher should be permitted to peruse the records pertaining to the case **WP(C) NO. 40412 OF 2022** **12** for the purpose of preparing the written statement. There is no case for the respondents that any of these steps had been completed and the files placed before the Government before issuing Ext.P13 order. As such, the direction contained in Ext.P13 to the DGE to conduct an enquiry cannot be treated as an enquiry contemplated under Rule 75 A or Section 12A. The only other question that remains is as to the manner in which the enquiry should proceed. Admittedly, a memo of charges has been issued to the petitioner. The petitioner has not so far submitted any reply to the memo of charges as the matter was pending before this Court. In such circumstances, the enquiry can proceed only from the stage of the issuance of the memo of charges in accordance with the procedure prescribed in Rules 75 & 75A of Chapter XIVA KER read with Section 12 A of the Kerala Education Act. 11. The writ petition is hence allowed. Ext.P13 to the extent it directs an enquiry by the DGE is set aside as unnecessary, in the light of the fact that the Manager had **13** ## **WP(C) NO. 40412 OF 2022** already initiated disciplinary action. The 4[th] respondent may proceed with the disciplinary action from the stage of the issuance of the memorandum of charges. The 4[th] respondent shall issue fresh notice, if they intend to continue with the proceedings, to the petitioner directing him to submit his reply to the memo of charges giving sufficient time for verification of the records as contemplated under Rule 75 and proceed thereafter in accordance with law. It is made clear that this Court is not expressing any opinion regarding the merits of the allegations made against the petitioner and the defences taken by the petitioner. Sd/- **T.R.RAVI JUDGE** mpm **WP(C) NO. 40412 OF 2022** **14** ## **APPENDIX OF WP(C) 40412/2022** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE ORDER DATED 18.12.2020| ||ISSUED BY 1ST RESPONDENT| |EXHIBIT P2|TRUE COPY OF THE ORDER DATED 15.01.2021| ||ISSUED BY 4TH RESPONDENT| |EXHIBIT P3|TRUE COPY OF THE AUDIT REPORT OF PTA| ||ACCOUNTS AND BANK PASS BOOK OF THE SCHOOL| ||DATED 17.03.2020| |EXHIBIT P4|TRUE COPY OF THE COVERING LETTER DATED| ||15.09.2020 ALONG WITH REPORT ISSUED BY 3RD| ||RESPONDENT| |EXHIBIT P5|TRUE COPY OF THE REPLY DATED 08.10.2020| ||SUBMITTED BY PETITIONER| |EXHIBIT P6|TRUE COPY OF THE MEMO OF CHARGES AND| ||STATEMENT OF ALLEGATIONS DATED 08.02.2021| ||ISSUED BY 4TH RESPONDENT| |EXHIBIT P7|TRUE COPY OF THE COVERING LETTER DATED| ||09.02.2021 FORWARDING MEMO OF CHARGES AND| ||STATEMENT OF ALLEGATIONS TO 3RD RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE PROCEEDINGS DATED| ||04.03.2021 ISSUED BY 4TH RESPONDENT| |EXHIBIT P9|TRUE COPY OF THE FINAL REPORT DATED| ||28.03.2022 SUBMITTED BY SUB INSPECTOR,| ||THRISSUR EAST POLICE STATION BEFORE CJM| ||COURT, THRISSUR| |EXHIBIT P10|TRUE COPY OF THE PROCEEDINGS DATED| ||18.10.2021 ISSUED BY 4TH RESPONDENT| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED 02.11.2021| ||ISSUED BY 3RD RESPONDENT| |EXHIBIT P12|TRUE COPY OF THE JUDGMENT DATED 23.11.2021| ||IN W.A NO.1504/2021| |EXHIBIT P13|TRUE COPY OF THE ORDER DATED 16.02.2022| ||ISSUED BY 1ST RESPONDENT| |EXHIBIT P14|TRUE COPY OF THE ENQUIRY REPORT DATED| ||26.09.2022 SUBMITTED BY SENIOR FINANCE| ||OFFICER| **WP(C) NO. 40412 OF 2022** **15** RESPONDENT EXHIBITS EXHIBIT R4(A) TRUE COPY OF THE ORDER DATED 12-12-2022 IN I.A.NO. 1 OF 2022 IN WP(C)NO.3020/2021 OF THIS HON'BLE COURT. EXHIBIT R4(B) TRUE COPY OF THE JUDGMENT DATED 4-11-2022 IN WP(C)NO.22642/2022 OF THIS HON'BLE COURT. EXHIBIT R4(C) TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN W.P.(C).NO.3020 OF 2021 (WITHOUT EXHIBITS) ON 12.12.2022 PETITIONER EXHIBITS EXHIBIT-P15 TRUE COPY OF THE ORDER DATED 05.02.2021 IN W.P.(C) NO.3020/2021 EXHIBIT-P16 TRUE COPY OF THE ORDER DATED 26.03.2021 IN W.P.(C) NO.3020/2021 EXHIBIT-P17 TRUE COPY OF THE ORDER DATED 16.01.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT-P18 TRUE COPY OF THE ORDER DATED 16.07.2022 ISSUED BY 3RD RESPONDENT