ELDHO K.JOSEPH v. NAVY CHILDREN SCHOOL KOCHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934** ## **WP(C).No. 23527 of 2012 (M)** **----------------------------------------** ## **PETITIONER:** ## **-------------------** **ELDHO K.JOSEPH, TRAINED GRADUATE TEACHER (TGT), PHYSICAL EDUCATION, NAVY CHILDREN SCHOOL, KOCHI, PIN- 682 004, RESIDING AT HOUSE NO.26/639, KUZHIKKATTIL HOUSE, CHAVARA ROAD, KONTHURUTHY, THEVARA P.O, KOCHI, PIN- 682 013.** **BY SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE, ADVS. SRI.PAUL ABRAHAM VAKKANAL, SRI.DIJO SEBASTIAN, SMT.VINEETHA SUSAN THOMAS.** ## **RESPONDENTS:** **------------------------** ## **1. THE CHAIRMAN,** **NAVY CHILDREN SCHOOL, KOCHI, PIN -682 004.** **2. THE VICE-CHAIRMAN, NAVY CHILDREN SCHOOL, KOCHI, PIN- 682 004.`** **3. THE DIRECTOR, NAVY CHILDREN SCHOOL, KOCHI, PIN- 682 004.** ## **4. THE PRINCIPAL,** **NAVY CHILDREN SCHOOL, KOCHI, PIN- 682 004.** **BY SRI. E.K. NANDAKUMAR, SENIOR ADVOCATE, ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** **W.P.(C).NO.23527/2012-M:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1. TRUE COPY OF THE CERTIFICATE SERVICE ISSUED BY THE INDIAN NAVY DATED 16.01.2002.** - **EXHIBIT P1(A).TRUE COPY OF THE TRADE CERTIFICATE ISSUED BY THE INDIAN NAVY DATED 28.08.2002.** - **EXHIBIT P2. TRUE COPY OF THE REPRESENTATION DATED 21.06.2010.** - **EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 24.06.2010.** - **EXHIBIT P4. TRUE COPY OF THE MEMO DATED 23.06.2010.** - **EXHIBIT P5. TRUE COPY OF THE REPLY DATED 24.06.2010.** - **EXHIBIT P6. TRUE COPY OF THE COMPLAINT DATED 29.03.2012.** - **EXHIBIT P7. TRUE COPY OF THE ORDER OF INVESTIGATION DATED 18.04.2012.** - **EXHIBIT P8. TRUE COPY OF THE REPLY DATED 19.04.2012.** - **EXHIBIT P9. TRUE COPY OF THE REPLY FROM THE 4TH RESPONDENT DATED 20.04.2012.** - **EXHIBIT P10. TRUE COPY OF THE ORDER OF SUSPENSION DATED 21.04.2012.** - **EXHIBIT P11. TRUE COPY OF THE ORDER OF INVESTIGATION DATED 27.04.2012.** - **EXHIBIT P12. TRUE COPY OF THE LETTER GIVEN TO THE 4TH RESPONDENT BY THE PETITIONER DATED 02.05.2012.** - **EXHIBIT P12(A).TRUE COPY OF THE NOTICE DATED 02.05.2012.** ## **EXHIBIT P12(B).TRUE COPY OF THE RECORDED QUESTION AND ANSWERS DATED 02.05.2012.** **EXHIBIT P12(C).TRUE COPY OF THE PROCEEDINGS DATED NIL.** - **EXHIBIT P13. TRUE COPY OF THE NOTICE FROM THE IST RESPONDENT OFFICE DATED 18.07.2012.** - **EXHIBIT P14. TRUE COPY OF THE REPLY TO THE IST RESPONDENT BY THE PETITIONER DATED 23.07.2012.** **EXHIBIT P14(A).TRUE COPY OF THE PROCEEDINGS DATED 24.07.2012.** - **EXHIBIT P15. TRUE COPY OF THE REPLY GIVEN BY THE IST RESPONDENT TO THE PETITIONER DATED 24.07.2012.** - **EXHIBITP16. TRUE COPY OF THE LETTER FROM THE IST RESPONDENT DATED 22.08.2012.** **W.P.(C).NO.23527/2012-M:** **EXHIBIT P16(A). TRUE COPY OF THE PROCEEDINGS OF THE COMMITTEE DATED NIL.** **EXHIBIT P17. TRUE COPY OF THE REPRESENTATION SEND BY THE PETITIONER TO IST RESPONDENT DATED 03.09.2012.** **EXHIBIT P18. TRUE COPY OF THE REQUEST BY THE PETITIONER TO THE 4TH RESPONDENT DATED 04.09.2012.** **EXHIBIT P19. TRUE COPY OF THE LETTER UNDER THE RIGHT TO INFORMATION ACT. DTD. 06/02/2009.** **EXHIBIT P19.A. TRUE COPY OF THE REPLY FROM THE HEADQUARTERS OF SOUTHERN NAVAL COMMAND DTD. 06/03/2009.** **EXHIBIT P20. TRUE COPY OF THE LETTER UNDER THE RIGHT TO INFORMATION ACT DTD. 06/02/2009.** **EXHIBIT P21. TRUE COPY OF THE REPLY FROM THE HEADQUARTERS OF SOUTHERN NAVAL COMMAND DTD. 06/03/2009.** **EXHIBIT P22. TRUE COPY OF THE RULES RELATING TO THE SCHEME OF MANAGEMENT OF THIS SCHOOL (CHAPTER II) DTD. NIL.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P. © No. 23527 OF 2012** ......................................................................... **Dated this the 30[th] October, 2012** ## **J U D G M E N T** The petitioner, who is a Trained Graduate Teacher (Physical Education) working in the Navy Children School at Kochi and under suspension pending disciplinary enquiry, is before this Court seeking to reinstate him in service with all monetary benefits from the date of suspension and to set aside Ext. P16 (a) proceedings/report of the Summary Enquiry Committee, the same having been prepared allegedly in violation of the relevant rules and principles of natural justice . 2. The Navy Children School, Kochi, where the petitioner is working, is stated as under the Management of Navy Education Society, a Body registered under the relevant provisions of the Societies Registration Act. The school, which is in the un-aided sector, is affiliated to the Central Board of Secondary Education (CBSE). 3. The petitioner was earlier working in the Indian Navy and on leaving the service, came to be appointed as a Trained Graduate **W.P. © No. 23527 OF 2012** **2** Teacher (Physical Education) in the Navy Children School, Kochi. According to him, he was serving the school and was discharging his duties with utmost devotion . But there was occasion for him to have locked horns with the Management and had approached this Court, joining hands with others by filing writ petition, writ appeal and Contempt of Court case etc., in view of the atrocities being pursued by the Management, including payment of much lesser salary. There was also an instance whereby the daughter of the petitioner was denied entry to 11[th] standard despite scoring more than 70% marks in her 10[th] standard from the very same school, which was got intercepted only after raising complaints before the first respondent and also before the Parents Teachers Association. A further representation came to be filed by the petitioner and some other teachers against the alleged unfair treatment and harassment at the work place meted out to a teacher by name Reena Antony, at the hands of the 4[th] respondent. All these instances contributed much to nurture ill-will and hatred against the petitioner and the Management was waiting for an opportunity to book the petitioner somehow or other. **W.P. © No. 23527 OF 2012** **3** 4. In the course of events followed, the Management procured Ext. P6 complaint from a lady staff/teacher by name Vinitha Joy, who complained that the petitioner was disturbing her by going to her home at nights by ringing bells and by such other means, which led to an enquiry against the petitioner alleging sexual harassment as borne by Ext. P7. Though the petitioner submitted Ext. P8 reply, the Management of the School was not satisfied with the same and the petitioner was placed under suspension as per Ext. P10 order dated 21.04.2012. The case of the petitioner is that pursuant to the notice issued by the enquiry Committee, the petitioner appeared before the Committee and answered the questions raised. But the petitioner was not given adequate and effective opportunity to prove his innocence. The statement of witnesses was taken never in his presence and the petitioner was never permitted to cross examine the witnesses as well. Several communications and correspondences followed and the Committee submitted 'Summary Enquiry Report' as borne by Ext. P16(a), stated as not correct or liable to be acted upon, which in turn is under challenge . **4** ## **W.P. © No. 23527 OF 2012** 5. Mr. Abraham Vakkanal, the learned Sr. Counsel appearing for the petitioner submits that the proceedings are being pursued by the respondents without any regard to the CBSE Affiliation Byelaws (Chapter VII Rule 47) and also the Navy Education Society Guideline Book (Byelaws )- (Chapter VII Article 0707). Though there is a reference to the above provisions in Ext. P10 order of suspension, the scope of the enquiry is consciously curtailed to the extent as desired by the respondents with a pre-determined mind, to terminate the service of the petitioner. 6. The respondents have filed a detailed statement through their Standing Counsel mainly contending that the writ petition itself is not maintainable and further that the proceedings pursued by the authorities concerned are in conformity with the relevant Bye-laws. It is also stated that the Navy Children School is run by the Navy Educational Society and that it is not a 'State' or 'other authority' , as defined under Article 12 of the Constitution of India and that no writ will lie against the respondents. It is pointed out that no Government fund is received; that there is no deep or perversive control by the Government in any manner; and further **W.P. © No. 23527 OF 2012** **5** that there is no public duty in so far as the service of the petitioner is concerned . It is pointed out that the school is functioning purely on the collection of fees from the children and such other nonpublic funds generated from the Naval Community, through profits derived out of in-house entrepreneurial endeavors like Regimental shops etc. The school meets various charges/expenses including water and electricity and also satisfies rent in respect of the buildings occupied by them . Supplemental to the above statement, it is also pointed out that the Affiliation Bye-laws of the CBSE are not statutory provisions or executive instructions which are legally enforceable, despite which, earnest efforts have been taken to conduct a proper enquiry into the allegation of sexual harassment raised against the petitioner . The enquiry was conducted by the School Complaints Committee and thereafter by a Summary Enquiry Committee, which verified the veracity of the statements given by the witnesses examined by the School Complaints Committee. The Summary Enquiry Committee comprised of a Naval Officer ( of Captain's rank), who is also a parent member of the PTA, one lady Naval Officer and one lady Clinical Psychologist. **W.P. © No. 23527 OF 2012** **6** It is further pointed out that the petitioner was supplied with copies of the enquiry reports of the Complaints Committee as well as the Summary Enquiry Committee, giving 15 days' time to respond/defend himself; and that in terms of the Byelaws, the procedure laid down for imposing major penalty need be followed, only if it is practicable to do so; more so in view of usage of the words _**'as far as may be**_ ' in clause 47 of the Bye-laws indicating that the procedure need not invariably be followed in all cases. In the instant case, by virtue of nature of allegation of sexual harassment and its grave nature, the request of the petitioner for examination of the witnesses in his presence or opportunity to cross examine the witnesses could not be allowed, as it would cause serious embarrassment to lady teachers and minor girl students, who could not be exposed to the tardy process of cross examination and this would have vitiated the school atmosphere besides causing irreparable psychological abberations in the minds of the young girl students . 7. Referring to the law declared by the Apex Court, Mr. Nandakumar, the learned Sr. Counsel appearing for the respondents **7** ## **W.P. © No. 23527 OF 2012** submits that the Apex Court has already held in _**Avinash Nagra vs. Navodaya Vidyalaya Samiti and others**_ [( **1997) 2 SCC 534** ] that the disciplinary authority's decision in particular circumstances to dispense with a regular enquiry, exposing the modesty of the girls and denial of opportunity to cross-examine the girl student witnesses was not violative of principles of natural justice . The scope of the words “ **as far as may be”** as it appears in clause 47 of the Bye-laws is sought to be explained with reference to the observation made by this Court in _**R. Natarajan vs. State Transport Appellate Tribunal, Ernakulam**_ [ **AIR 1999 Kerala 207** ] to the effect that such usage would naturally lessen the rigour of the rule in giving meaning to the extent it is possible and thereby gives little bit of flexibility to the statutory provisions. Reliance is also placed on the decision rendered by the Apex Court in Civil Appeal, arising out of SLP(C)No.4627/2008 to the effect that satisfaction of the concerned authority that it was not expedient to conduct regular enquiry because that would embarrass the girl students and their parents and would also vitiate the atmosphere of the school, was adequate enough to sustain the action pursued by **8** ## **W.P. © No. 23527 OF 2012** the authorities . Referring to the law declared in _**Satimbla Sharma vs. St. Paul' s Senior Secondary School and ors**_ **[2011 AIR SCW 4643** ], the learned Sr. Counsel submits that the writ petition itself is not maintainable against a private un-aided school, which is not 'State' or 'other Authority' under Article 12 of the Constitution of India. 8. Mr. Abraham Vakkanal, the learned Sr. Counsel submits that the writ petition is maintainable in view of the public duty cast upon the respondents notwithstanding the fact that the concerned school happens to be an un-aided school . Reliance is also placed on the decision rendered by the Division Bench in _**Suter Paul vs. Sobhana English Medium High School**_ ( **2003 (3) KLT** **1019).** Allegation of sexual harassment against the petitioner was also sought to be deprecated in view of the course and events, as referred to in the writ petition and also in view of the law declared by the Apex Court in _**D.S. Grewal vs. Vimmi Joshi**_ **[(2009) 2 SCC 210].** **9.** This Court heard both the sides on the question of maintainability of the writ petition. **W.P. © No. 23527 OF 2012** **9** 10. Going by the prayers set forth in the writ petition, the petitioner seeks to set aside Ext.P16(a) Summary Enquiry Report, stating that it is in violation of the relevant provisions of the Byelaws. There is no prayer to set aside Ext.P10 order of suspension in specific terms, but at the same time, the petitioner seeks to direct the respondents to reinstate the petitioner from the date of suspension. Admittedly, the petitioner is aggrieved of the disciplinary action, that is being pursued against him, which is still to be finalised and is just half--way through. On what way the respondents can be treated as an 'other authority' or in what way 'public duty' is to be inferred, with regard to the service of the petitioner and the disciplinary action being pursued, is not substantiated from the part of the petitioner. 11. Neither the Government nor the departmental authorities are impleaded in the party array. The only four respondents arrayed in the writ petition are the Chairman, the Vice-Chairman, the Director and the Principal of the Navy Children School. The petitioner has not impleaded even the CBSE. Similarly, when the petitioner contends in the opening paragraph that the school is run **10** ## **W.P. © No. 23527 OF 2012** by the Navy Education Society, which is a Society registered under the Societies Registration Act, the Management/employer is not brought on record. The petitioner has also not chosen to implead the concerned school as well, but for impleading the four different officers who are at the helm of the affairs. For this reason itself, the writ petition is not liable to be entertained for non-joinder of necessary parties . 12. Admittedly, the school is owned by the Navy Education Society, who owns and runs the School. Even if the Society is impleaded, a doubt may arise whether a writ will lie against a Society. A Full Bench of this Court in _**P. Bhaskaran & others vs. Addl. Secretary & others**_ [ **1987 (2) KLT 903 (FB)]** has held that no writ will lie against a Co-operative Society. But subsequently, the position has been made clear by the Apex Court in **AIR 1989 SC 1607** ( _**Anadi Mukta**_ _**Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & ors vs. V.R. Rudani & ors)**_ that a writ will lie if there is a public duty. What is the public duty in respect of the service conditions of the petitioner and extent of governmental control is the next question. **11** ## **W.P. © No. 23527 OF 2012** 13. True, a Division Bench of this Court in **2003 (3) KLT 1019** (cited supra) has held that a writ will lie against an un-aided school. But the factual position considered therein was entirely different. The disciplinary action pursued by the school authorities was challenged by the concerned employee by approaching the DEO. The DEO conducted an enquiry and punishment imposed by the manager by way of dismissal was intercepted and directed the Manager to revoke the order of dismissal and reinstate the petitioner in service, observing that only a minor penalty was warranted. Since it was not complied with, the employee approached the next higher authority, Dy. Director of Education, who also took the same stand as taken by the DEO. The employee approached the Government as well, when the Government also observed that the punishment of termination from service was too excessive. On challenging the above orders by the Manager in O.P.4650 of 2000, the Manager was directed to pass fresh orders imposing appropriate punishment proportionate to the delinquency in question; simultaneously observing that the employee would continue under suspension till such time. The Manager passed an **W.P. © No. 23527 OF 2012** **12** order removing the employee from the service, which in turn was challenged by the employee in the Original Petition (O.P. 22903 of 2002), which came to be considered by the Division Bench, pursuant to the Reference ordered by the learned Single Judge. The Court observed that the DEO was having no power to conduct any enquiry and as such, the order passed by the DEO, which was sought to be implemented , was not liable to be entertained. With regard to the challenge raised by the petitioner to set aside the enquiry report and the fresh order passed by the Manager, the Court observed that there was a direction in the earlier Original petition, directing the Manager to pass fresh orders on the basis of enquiry report and that there was an implied acceptance of the report as valid one by the Court. As the earlier judgment was not subjected to challenge, the prayer raised in the above circumstance was not entertained. 14. The scope of the above verdict and the question of maintainability of the writ petition against an un-aided school came to be further considered by this Court in W.P.(C) 11759 of 2006 [ **2009(2) KHC 900]** _**(Toji Joseph and another vs State of Kerala and others).**_ In the said case, it was noted by the Court **13** ## **W.P. © No. 23527 OF 2012** that the relief sought for by the petitioner was not to enforce any orders issued by the Government but for enforcing the private rights by virtue of contract of service with the respondent Management. The decision rendered by the Division Bench in **2003 (3) KLT 1019 (Suter Paul v. Sobhana English Medium High School)** was referred to and distinguished in _**Sophiamma v. Council of Indian School Certificate Examination**_ [ **2008(2) KLT 589]** . Placing reliance on the said decision and also the law declared by the Apex Court in _**Binny Ltd. vs Sadasivan**_ [ **2005 (4) KLT 315 (SC)]** , this Court observed in **2009(2) KHC 900(cited supra)** that, although a writ petition is maintainable under Article 226 of the Constitution of India even against a private management for enforcing the 'public duty' cast upon them, it cannot be said that the same is available also for enforcing the terms and conditions of the service of the teachers/employees and accordingly interference was declined, observing that remedy of the petitioner was elsewhere. This Court finds that the dictum laid down by this Court in **2009(2) KHC 900** (cited supra **)** is squarely applicable to the case in hand . **14** ## **W.P. © No. 23527 OF 2012** In the above circumstance, this Court holds that the present writ petition is not maintainable for the reasons mentioned herein before. Interference is declined and the writ petition is dismissed, however without prejudice to the rights and liberties of the petitioner to pursue the matter before other appropriate Forum, in accordance with law. **P.R. RAMACHANDRA MENON, JUDGE.** lk