Justin L. v. State of Kerala and Others (W.A. No. 1671 of 2018)

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY ,THE 13TH DAY OF AUGUST 2018 / 22ND SRAVANA, 1940** ## **WA.No. 1671 of 2018** **AGAINST THE JUDGMENT IN WPC 16021/2018 of HIGH COURT OF KERALA DATED 17-07-2018** ## **APPELLANT/S:** **JUSTIN .L. AGED 42 YEARS S/O.LAZER C.V., HSST (HR) HG ZOOLOGY, MES HSS, VANDANMEDU, IDUKKI DISTRICT-685515. RESIDING AT STEFIN COTTAGE, VANDANMEDU PO, VELLIMALA, IDUKKI DISTRICT-685515** **BY ADVS. SRI.KALEESWARAM RAJ SMT.RIYA RAYMOL IYPE** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF**| ||**GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHPAURAM-**| ||**695001.**| |**2**|**DIRECTOR OF HIGHER SECONDARY EDUCATION**| ||**THIRUVANANTHPAURAM-685001.**| |**3**|**REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY**| ||**EDUCATION**| ||**KOTTAYAM.**| |**4**|**CORPORATE MANAGER**| ||**MUSLIM EDUCATIONAL SOCIETY (MES) SCHOOL, BANK ROAD,**| ||**CALICUT-673011.**| |**5**|**PRINCIPAL ES HSS VANDANMEDU**| ||**IDUKKI DISTRICT.**| W.A.1671/2018 2 **BY ADVS. SRI VISHNU DEVRAJ SMT.M.A.VAHEEDA BABU SMT.V.R.LAKSHMI SRI.AVINASH P RAVEENDRAN SRI.BABU KARUKAPADATH SRI.K.M.FAISAL (KALAMASSERY) SRI.P.U.VINOD KUMAR** ## **OTHER PRESENT:** **SRI. A.J.VARGHESE(GP)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **JUDGMENT** ## Surendra Mohan, J. The writ petitioner in W.P.(C) No. 16021 of 2018 is before us in appeal aggrieved by the judgment dated 17.7.2018 of the learned Single Judge. As per the judgment appealed against, the learned Single Judge has declined to interfere with an order passed by the third respondent, permitting the continuance of suspension of the appellant beyond a period of 15 days. 2. The facts in this case fall within a narrow compass. The appellant is a Higher Secondary School Teacher W.A.1671/2018 3 ('HSST' for short) working in an aided school under the fourth respondent Corporate Manager. He was suspended from service by an order dated 31.3.2018. The Manager sought for an extension of the period of suspension beyond the period of 15 days stipulated by Rule 67 (7) Chapter XIVA, Kerala Education Rules, 1959 ('KER' for short). The communication seeking extension of suspension beyond 15 days was admittedly received by the third respondent on 3.4.2018. Pursuant thereto, the third respondent is said to have conducted an enquiry. He also heard the appellant on 12.4.2018. He has granted permission to the Manager to continue the suspension beyond the period of 15 days. It was aggrieved by the said order evidenced herein by Ext.P2 that the writ petition was filed. 3. It was contended by the appellant that the order of suspension was issued on 31.3.2018. Therefore, the W.A.1671/2018 4 suspension ought to have been extended before 15.4.2018. Since the granting of sanction for extending the period of suspension was passed only on 16.4.2018, the same was unsustainable and liable to be set aside. 4. The contentions of the appellant were opposed by the third and fourth respondents who filed separate counter affidavits producing documents in support of their contentions. According to the third respondent, though he had conducted the enquiry on 10.4.2018 and had heard the appellant on 12.4.2018, since he had to attend an official meeting at Thiruvananthapuram on 13.4.2018, he could not pass orders on that day. The succeeding days, 14[th] and 15[th] of April were holidays being second Saturday and Sunday, the impugned order was passed only on 16.4.2018. For the above reason, it was contended that there is no infirmity in the proceedings. The sanction order having been subsequently W.A.1671/2018 5 issued after the expiry of 15 days sufficiently satisfy the requirements of the statutory provision, it was contended. 5. The learned Single Judge considering the respective contentions, took note of the fact that, the requirement of sanction from the educational authorities for the purpose of continuing the suspension beyond a period of 15 days was mandatory. However, since the provision of Chapter XIVA, KER had not been specifically made applicable to Higher Secondary School Teachers by a legislative exercise, it has been found that it would lack the statutory rigour in its application to Higher Secondary Schools. Therefore, it has been held that, the impugned action was proper. Accordingly, interference has been declined. However, a direction to the third respondent to consider whether the suspension should be continued after hearing the appellant as well as the Corporate Manager has been issued. The aggrieved appellant W.A.1671/2018 6 is before us. 6. According to Adv. Kaleeswaram Raj who appears for the appellant, apart from the fact that this Court has in the decisions in Jayasree T. v. The Director of Higher Secondary Education (2009 (2) K.L.T. 352) and Sam Joseph v. State of Kerala (2009 (3) K.L.T. 99) laid down in unmistakable terms that the provisions of Chapter XIVA KER would apply to Higher Secondary Schools also, the Government has also issued an order to the said effect. Reliance is placed on Annexure I, G.O. (MS) No. 235(1) 2009/G.Edn. dated 5.12.2009 to point out that, the provisions of Chapter XIVA mutatis mutandis would apply to non-teaching staff of Aided Higher Secondary Schools also. In view of the above, it is contended that the learned Single Judge has erred in declining interference with the impugned order Ext.P2. 7. According to the learned Government Pleader W.A.1671/2018 7 Sri. A.J.Varghese, who appears for respondents 1 to 3, the third respondent had considered the question as to whether the order of suspension should be continued or not, by conducting an enquiry on 10.4.2018 and hearing the appellant on 12.4.2018. It was only because of his other pressing official responsibilities, he could not pass orders on 13.4.2018. He has however, issued the order granting the necessary sanction on 16.4.2018 which substantially complies with the statutory requirements. Therefore, it is contended that the learned Single Judge has rightly sustained Ext.P2. 8. According to Adv. V.R. Lakshmi who appears for the fourth respondent, the Management has proceeded to suspend the appellant only for the reason that, the charges against him are grave. They have proceeded very diligently by informing the third respondent of the suspension on 31.3.2018 itself. They had requested the third respondent for W.A.1671/2018 8 sanction to continue the suspension beyond the period of 15 days on 3.4.2018 itself. They had co-operated with the enquiry that was conducted by the third respondent in all earnestness. Therefore, there has been no lapse on the part of the fourth respondent, as the sequence of events would show. It was only due to the delay on the part of the third respondent that the order was not passed within the stipulated period of 15 days. Since the order has been passed on the very next day, 16.4.2018 itself, it is contended that statutory requirements are substantially met. 9. We have heard the contentions advanced before us anxiously. As rightly pointed out by the counsel appearing for the appellant, this Court has in Jayasree T. v. The Director of Higher Secondary Education (supra) held that the provisions of Chapter XIVA shall apply in so far as Higher Secondary Service is also concerned. The said dictum has been reiterated W.A.1671/2018 9 in Sam Joseph v. State of Kerala (supra). Annexure I Government Order issued on 5.12.2009 sets the issue beyond the pale of any doubt by providing that the Government shall have disciplinary powers over teaching and non-teaching staff of Aided Higher Secondary Schools in the State. Paragraph 2 of Annexure I, relevant in the context provides as follows: “2. In the circumstances, it is hereby ordered that the Government shall have disciplinary power over the teaching and non-teaching staff of Aided Higher Secondary Schools in the State. The provisions in the Kerala Education Rules in so far as it relates to disciplinary proceedings against the teaching and nonteaching staff of Aided Schools, shall apply mutatis - mutandis to the teaching and non teaching staff of Aided Higher Secondary Schools also.” (Emphasis supplied) Therefore, we find that the provisions of Chapter XIVA would apply to Higher Secondary Schools also. Rule 67(7) of Chapter XIVA is extracted hereunder for convenience of reference: W.A.1671/2018 10 “(7) Whenever a teacher is placed under suspension he shall be paid such subsistence and other allowances as may be allowed to Government servants. Provided that no teacher shall be placed under suspension by the manager for a continuous period exceeding 15 days without the previous sanction of the Deputy Director (Education) in the case of Headmasters of Secondary schools and training school and of the Educational Officer in other cases.” (Emphasis supplied) What is insisted by the above proviso being 'previous sanction', in this case since the appellant is a teacher under the Educational Officer, it was necessary that the order of suspension ought to have been supported by the sanction of the third respondent, for it to validly survive beyond the period of 15 days. In the present case, admittedly the impugned order Ext.P2 was passed only on 16.4.2018. Therefore, there was no order of suspension in force to be permitted to continue beyond 16.4.2018 when the impugned order was W.A.1671/2018 11 passed. It is the settled position of law that the suspension order could be kept alive only by obtaining a previous sanction. The above being the position of law, the appellant is entitled to succeed. This appeal is accordingly allowed, the judgment of the learned Single Judge is set aside. The writ petition is allowed setting aside Ext.P2. **Sd/K.SURENDRA MOHAN JUDGE** **Sd/SHIRCY V. JUDGE** sb