Jasmine K.A v. Santa Maria English Medium School Mundamveli, Kochi & Regional Officer, Central Board of Secondary Education (CBSE)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** ## **WP(C).No.38450 of 2016** ## **PETITIONER/S:** **JASMINE K.A AGED 46, D/O. K.M.ALI, H.NO.17/1251-E, KAATHIYAAM VEEDU, ATTUVALLY LANE, PERUMPADAPPU, KOCHI-682006, (FORMER TEACHER IN MALAYALAM AT SANTA MARIA ENGLISH MEDIUM SCHOOL, MUNDAMVELI, KOCHI-682507).** **BY ADVS. SRI.K.S.MADHUSOODANAN SMT.S.JESSIN SRI.K.S.MIZVER SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR** ## **RESPONDENT/S:** **1 SANTA MARIA ENGLISH MEDIUM SCHOOL MUNDAMVELI, KOCHI, REPRESENTED BY ITS MANAGER, PIN682507. 2 REGIONAL OFFICER CENTRAL BOARD OF SECONDARY EDUCATION, ANNANAGAR, S.O., CHENNAI, PIN-600040.** **BY ADVS. SRI.P.K.GEORGE SRI.NIRMAL. S SMT.SMITHA GEORGE SRI.HENDRY FERNANDEZ SRI.K.G.RAJEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.V.ASHA, J.** ## **---------------------------W.P.(C) No.38450 of 2016 ---------------------------Dated this the 27[th] day of June, 2019** ## **JUDGMENT** Ext.P5 and P16 orders are under challenge in this writ Petition. 2. Petitioner was a Trained Graduate Teacher working in the 1[st] respondent school, which is an unaided school affiliated to the CBSE. Petitioner had been working in the School from June 2004 onwards. It is stated that she was the Secretary of the staff committee and in her official capacity she had been raising demands for hike in salary. According to her the activities as Secretary of the staff council has invited the wrath of the 1[st] respondent and they obtained a complaint from Sri.E.T.Sajeevan, a Physical Training Teacher of the school. In Ext.P2 complaint preferred by him on 05.11.2012, before the Principal he alleged that petitioner had been harassing him mentally using abusive language with sarcastic meaning, putting questions regarding rate of salary etc during the staff W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** meeting as well as while in the premises of the school, which disrupted his functioning in the school. He therefore requested to take action against the petitioner. The 1[st] respondent thereupon issued a memo dated 08.11.2012 directing her to show cause within 7 days. It is stated that as per Ext.P3 letter dated 12.11.2012 she denied the allegations and stated that infact it was Sri.Sajeevan who was talking to her in abusive language. She alleged that such a complaint was procured from him in order to wreak personal vengeance against her and therefore Sri.Sajeevan has to seek apology from her. She thereafter submitted Ext.P4 complaint on 10.12.2012 before the Manager alleging that Sri.Sajeevan had misbehaved towards her in the midst of other teachers with a sarcastic imputation that the petitioner should go for some other job profitable for women rather than seeking more salary from the management; thus his action amounted to sexual harassment at workplace. Immediately thereafter petitioner was placed under suspension as per order dt.26.11.2012 initially for a period of 15 days which W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** was thereafter extended. While so, Ext.P5 memo of charge was issued to her on 05.01.2013. Enquiry commission was also appointed with Smt.Santha Joseph Sr.Prinicpal, Sri.Sreenivasan S.K. and Smt.Sheeja M.C. teaching staff to enquire into the allegations in the memo of charge. The memo of charge contained the following charges: _1. That you have caused serious misconduct from your part by insulting the Physical Education Teacher of this school by using abusive and vulgar language so as to disrupt his duties in such a manner so as to cause him mental agony. You have insulted the PT Teacher during the teachers' meetings and in the school premises._ _2. Carrying on unauthorised personal monetary transactions among the teaching staff of the School in the style of chit fund without the knowledge or consent from the School authorities._ _3. Taking private tuition without permission of the School authorities. You have violated the code of conduct for employees according to the CBSE Byelaw by taking private tuition in the Vidhya Teaching Centre, Thoppumpady._ _4. It was alleged that petitioner committed disrespectful behaviour, rumour mongering, character assassination, insubordination, making false accusations and defiance of lawful order in the school because of her abovestated behaviour and acts and thereby violating the code of conduct by carrying on unauthorised personal monetary transactions among the teaching staff of the school in the style of chit fund without the knowledge or consent from the school authorities. She was asked to make her submissions on it within a period of seven days. A statement of allegations was also annexed to the charges._ ## 3. Petitioner submitted Ext.P6 reply on 14.01.2013 denying the allegations. Alleging that the PET was not W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** qualified for appointment in the school she stated that she never misbehaved or abused Sri.E.T.Sajeevan. On the other hand it was Sri.E.T.Sajeevan who openly told her in the staff meeting that it is better to go for other jobs remunerative for women if she was not satisfied with the pay in the School. Regarding the money transaction she stated that being the Staff Secretary she was entrusted to collect monthly contribution from the members on the basis of the unanimous decision of the teaching staff to form a saving scheme. She stated that it was not a chitty fund and after her suspension the collection is continued by another teacher. She further stated that she was not taking any tuition in the Vidya Teaching centre, Thoppumpady as alleged. 4. The enquiry commission submitted Ext.P8 report finding the petitioner guilty of all the charges and recommending immediate dismissal of petitioner from service. It was followed by Ext.P9 show cause notice proposing dismissal from service. Ext.P10 order was W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** issued thereafter on 28.5.2013 terminating her from service. Petitioner challenged Ext.P10 order filing WP(C) No.25396/2013. By Ext.P12 judgment dated 22.9.2014 this court relegated her to statutory remedy by filing appeal before the disciplinary committee constituted under regulation 49(1) of CBSE Affiliation Bye-laws. Ext.P12 judgment was affirmed in the Writ Appeal filed by the petitioner. Thereafter Ext.P14 appeal was filed. By Ext.P15 order the disciplinary committee of the 1[st] respondent rejected the appeal. In the meanwhile the petitioner had also approached the CBSE requesting for withdrawal of recognition of the 1[st] respondent school. That was rejected as per Ext.P16 order. 5. The contention of the petitioner is that the charges are vague and on that ground the memo of charge is liable to be set aside. It is alleged that the petitioner was not paid subsistence allowance and therefore the enquiry was vitiated. It is alleged that petitioner was not allowed to examine witnesses and she W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** was not given copies of documents; the enquiry commission refused to recall the witnesses and she was not given copies of the deposition of witnesses; two out of the three member enquiry commission were to be witnesses in the enquiry because they were beneficiaries of the alleged money transaction and on that ground itself they were disqualified to continue in the enquiry commission; though she requested to allow her to examine them, she was denied permission. It is her contention that when the respondent school did not take any action on her complaint Ext.P4 relating to sexual harassment in tune with the judgment in _**Vishaka vs. State of Rajasthan : AIR 1997 SC 3011**_ , it was for the CBSE to take action and to withdraw the affiliation of the school. 6. The 1[st] respondent has filed a counter affidavit denying all the allegations raised by the petitioner. According to them the 1[st] respondent is a private school run by congregation of Sisters of Servants of Our Lady of Sorrow and hence is not amenable to the writ W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** jurisdiction of this court and therefore the writ petition is liable to be dismissed on that ground. It is stated that the 1[st] respondent is the 1[st] school which implemented the circular issued by the CBSE regarding the pay scale of teachers in implementation of the judgment in W.A.No.1042 of 2012. Pointing out the directions sought for reinstatement in the school as well as withdrawal of the affiliation to the school it is stated that petitioner who has sought inconsistent and conflicting reliefs is not entitled to any relief in this Writ Petition. It is stated that petitioner admitted the allegations leveled against her as evident from Ext.P15 and at the time of the enquiry petitioner was only concerned about her subsistence allowance based on which Ext.R1(b) order was issued on 07.11.2016 and a cheque for a sum of Rs.65,000/- and Rs.37,400/was issued to her as per letter dt.11.11.2016. According to the 1[st] respondent the allegations which lead to the dismissal are totally unconnected with the payment of salary or the rate of salary. According to them dismissal was the result of the misconduct and W.P.(C) No.38450 of 2016 **==> picture [12 x 8] intentionally omitted <==** misbehavior of the petitioner who was always quarrelsome after separation from her spouse. It is stated that she was acting in a highly degrading manner before the students. It is stated that the petitioner was not the staff Secretary during the year 2012. It is stated that disciplinary proceedings were conducted in accordance with the provisions in the bye law; but the petitioner was making defamatory statements against the institution appearing in television channels. It is stated that there was no demand from her for revision of salary. In November 2012 she herself sent a letter to the respondent admitting that her salary was Rs.21,584/-. 7. In the statement filed on behalf of the 2[nd] respondent it is stated that the CBSE has taken all measures to comply with the direction of this court. It is stated that the committee had while dismissing the appeal recommended for payment of salary to the petitioner for the period from 1.11.2012 to 25.11.2012 and to enhance the subsistence allowance. W.P.(C) No.38450 of 2016 **==> picture [18 x 8] intentionally omitted <==** 8. Petitioner has filed reply affidavit reiterating her contentions. 9. Though the Division Bench of this court in _**Sommy Kunjappan vs. Central Board of Secondary Education :**_ _**2019 (1) KLT 864**_ has held that Writ Petition will not lie against private unaided Schools affiliated to CBSE and when no public law element is involved in termination of service, the learned Counsel for the petitioner has relied on the judgment of the apex court in _**Marwari Balika Vidyalaya V Asha Srivastava and**_ _**others: ILR 2019(2) Ker 787,**_ in support of his contention that writ petition is maintainable. The learned Standing Counsel for the CBSE points out that the apex court was dealing with a case from an unaided School which was getting grant from Government. However the apex court was dealing with a case involving termination of service of a teacher. 10. The appellate authority has considered the appeal submitted by the petitioner and found that petitioner did not deny the charges; but she stated W.P.(C) No.38450 of 2016 **==> picture [17 x 8] intentionally omitted <==** that the PE Teacher also abused her. The appellate authority found the other two charges also proved. In respect of the private tuition they found that petitioner had in the staff meeting held on 05.10.2012 admitted that she was taking tuition. Regarding the monetary transaction it was found that petitioner had admitted the transaction but she has done it without the sanction from the management. 11. The contention of the petitioner is that the charges are vague and therefore the memo of charges as well as all further proceedings are to be set aside, in the light of the judgments in _**Anil Gilurker V Bilaspur Kshetriya Gramin Bank and another :(2011)14 SCC 379, Union of India V Gyan Chand Chattar: (2009) 12 SCC 78, Surath Chandra Chakravarthy V State of West Bengal: AIR**_ _**1971 SC 752**_ , etc. The further contention on behalf of the petitioner is that 2 of the members of the enquiry commission were beneficiaries of the alleged money transaction and that petitioner had cited them as witnesses but permission was denied. Relying on the W.P.(C) No.38450 of 2016 **==> picture [18 x 8] intentionally omitted <==** judgment in _**State of Uttaranchal V Kharak Singh: (2008)8 SCC 236,**_ it was argued that the enquiry itself got vitiated with their presence as members of enquiry commission. 12. The apex court has time and again reminded of the circumstances under which the High Court would be justified in interfering with the disciplinary proceedings. In _**Union of India V P. Gunasekharan:**_ _**(2015) 2 SCC 610**_ the apex court reiterated as follows **:** _“The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:_ _(a) the enquiry is held by a competent authority;_ _(b) the enquiry is held according to the procedure prescribed in that behalf;_ _(c) there is violation of the principles of natural justice in conducting the proceedings;_ _(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;_ _(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;_ _(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;_ _(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;_ _(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;_ _(i) the finding of fact is based on no evidence.”_ 13. It is seen from the enquiry report Ext.P8 that W.P.(C) No.38450 of 2016 **==> picture [18 x 8] intentionally omitted <==** the enquiry commission has recommended termination of services of the petitioner. Normally the enquiry commission is only expected to enquire into the truth of the charges i.e whether the delinquent is guilty or not. It is for the disciplinary authority to take a decision with respect to the punishment with reference to the evidence adduced in the enquiry. Whatever it may be, petitioner had in Ext.P9 representation, requested for the copies of the deposition of the witnesses, in order to submit her explanation to the show cause notice issued to her along with the enquiry report. The enquiry report says that they found the charges proved on the basis of the testimony of witnesses. But without considering her request and without furnishing the copies the respondents proceeded to award the punishment. The appellate authority also, while finding the petitioner guilty of all the charges, did not consider this contention of the petitioner. Therefore I find that the refusal to furnish the copies of the deposition of witnesses to the petitioner has resulted in violation of the principles of natural W.P.(C) No.38450 of 2016 **==> picture [18 x 8] intentionally omitted <==** justice. Therefore the orders Exts.P10 and P15 shall stand set aside with a direction to the 1[st] respondent to furnish the copies of the deposition of witnesses to the petitioner. The 1[st] respondent would be free to proceed afresh from the stage of Ext.P9. Petitioner shall be granted 15 days time to submit her explanation to the show cause notice, from the date of furnishing of the copies of the deposition of witnesses. The 1[st] respondent shall thereafter issue fresh orders within a further period of one month after considering the explanation to be submitted by the petitioner. As the petitioner has been out of service for the last several years, she need not be reinstated for this purpose. All other contentions raised by both sides are left open. The writ petition is disposed of accordingly. ## **Sd/-** ## **P.V.ASHA** ## **JUDGE** rkc W.P.(C) No.38450 of 2016 :15: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE MEMORANDUM FOR INCREASE OF SALARY SUBMITTED BY THE PETITIONER AND OTHERS TO THE 1ST RESPONDENT DATED 5.10.12 EXHIBIT P2 PHOTOCOPY OF THE COMPLAINT DATED 5-1112 BY E.T.SAJEEVAN TO THE 1ST RESPONDENT.** **EXHIBIT P3 PHOTOCOPY OR THE REPLY TO THE SHOW CAUSE NOTICE DATED 12-11-12. EXHIBIT P4 PHOTOCOPY OF THE COMPLAINT DATED 10-1212.** **EXHIBIT P5 PHOTOCOPY OF THE MEMO OF CHARGE DATED 5.1.13. EXHIBIT P6 PHOTOCOPY OF THE WRITTEN STATEMENT DATED 14-1-13. EXHIBIT P7 PHOTOCOPY OF THE ENQUIRY PROCEEDINGS. EXHIBIT P8 PHOTOCOPY OF THE ENQUIRY REPORT DATED 12.5.13. EXHIBIT P9 PHOTOCOPY OF THE APPLICATION DATED 225-13. EXHIBIT P10 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 28-5-13. EXHIBIT P11 PHOTOCOPY OF THE PETITION TO THE 2ND RESPONDENT SEEKING APPROPRIATE ACTION AGAINST THE 1ST RESPONDENT DATED 26-813. EXHIBIT P12 PHOTOCOPY OF THE JUDGMENT IN WPC 25396/2013 DATED 22-9-14 OF THIS HON'BLE HIGH COURT.** W.P.(C) No.38450 of 2016 :16: **EXHIBIT P13 PHOTOCOPY OF THE JUDGMENT IN WRIT APPEAL NO.1602/2014 DATED 20-11-2014 OF THE HON'BLE HIGH COURT.** **EXHIBIT P14 PHOTOCOPY OF THE STATUTORY APPEAL UNDER REGULATION 49(1) OF CBSE AGAINST DISMISSAL DATED 26-11-14.** **EXHIBIT P15 PHOTOCOPY OF THE ORDER OF DISCIPLINARY COMMITTEE DATED 7-11-16.** EXT.P16: PHOTOCOPY OF THE ORDER DT.29.10.18 OF THE 2ND RESPONDENT RESPONDENTS' EXHIBITS: EXT.R1A: TRUE COPY OF THE WP NO.25396/13 ALONG WITH EXT.P11 IN THAT WRIT PETITION EXT.R1B: TRUE COPY OF THE ORDER DT.7.11.16 BY THE DISCIPLINARY COMMITTEE EXT.R1C: TRUE COPY OF THE CHEQUE NO.358870 DT.24.6.16 FOR THE AMOUNT OF RS.65000/- EXT.R1D: TRUE COPY OF THE CHEQUE NO.765013 DT.11.11.16 FOR THE AMOUNT OF RS.37400/- EXT.R1E: TRUE COPY OF THE COMMUNICATION DT.11.11.16 SENT TO THE PETITIONER EXT.R1F: TRUE COPY OF LETTER DT.29.6.16 SENT BY THE PETITIONER