K Shahul Hameed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941** **WA.No.2710 OF 2015** **JUDGMENT IN WPC 14821/2012 DATED 19-11-2015 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **K SHAHUL HAMEED AGED 40 YEARS SON OF KUNJIPOKER HAJI, LAB ASSISTANT (UNDER SUSPENSION), M.S.M.HIGHER SECONDARY SCHOOL, KALLINGAPARAMBA (RESIDING AT KOTTAYIL VEEDU, KURUKA, KALPAKACHERY MALAPPURAM 676 551)** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR THIRUVANANTHAPURAM 695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION CIVIL STATION, KOZHIKODE 673 020.** - **4 THE MANAGER M.S.M. HIGHER SECONDARY SCHOOL, KALLINGAPRAMBA, KALPAKANCHERRY, MALAPPURAM DISTRICT, 676 551.** W.A.No.2710 of 2015 2 **5 THE PRINCIPAL** **M.S.M. HIGHER SECONDARY SCHOOL, KALLINGAPRAMBA, KALPAKANCHERRY, MALAPPURAM DISTRICT, 676 551.** **R1-3 BY GOVERNMENT PLEADER(BY ORDER) R4-5 BY ADV. M.R.ANISON(BY ORDER)** ## **OTHER PRESENT:** **GP SMT.RAJI.T.BHASKER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.2710 of 2015 3 ## **JUDGMENT** ## V.G.Arun, J. The appellant, while working as Lab Assistant in the fourth respondent's School, was placed under suspension from 3.8.2007. Thereafter, the appellant was served with Ext.P1 memo of charges and statement of allegations. On receipt of the same, the appellant made a request for perusal of the relevant documents, which was permitted by the fourth respondent Manager. Thereafter, the appellant submitted reply to the memo of charges and statement of allegations. The charge that the appellant was a member of the organisation, by name 'Socialist Foundation' and that several notices had been issued in the name of that organisation and that the appellant, along with another teacher, had staged a Satyagraha in front of the school on 31.7.2007 was admitted W.A.No.2710 of 2015 4 by the appellant in his explanation to the memo of charges. Based on an allegation that the appellant had committed another misconduct during the course of the disciplinary proceedings, an additional memo of charge was issued to him, to which also the appellant submitted an explanation. After considering the explanations offered by the appellant, the Manager forwarded all the documents to the third respondent; the Regional Deputy Director of Higher Secondary Education with a request to conduct an enquiry in the matter. Since the third respondent did not take any steps for conducting the enquiry, the Manager approached the Director of Higher Secondary Education; the second respondent herein, who, after conducting enquiry, issued Ext.P3 order finding that the charges levelled against the appellant stood proved. After entering such finding, the W.A.No.2710 of 2015 5 second respondent did not impose any punishment other than warning the appellant against repeating such misconduct and directed the Manager to reinstate the appellant in service, treating the period of appellant's suspension as eligible leave. 2. Being aggrieved by the imposition of punishment by the second respondent, the Manager filed W.P.(C) No.8048 of 2009 primarily contending that the power to impose punishment is vested with the Manager. The writ petition was disposed of under Ext.P4 judgment, quashing that part of Ext.P3 order by which punishment was imposed by the second respondent and the period of suspension of the appellant was directed to be treated as eligible leave. The Manager was directed to forward to the second respondent, his proposal for punishment and also his proposal as to how to treat the period of suspension, after providing an W.A.No.2710 of 2015 6 opportunity of hearing to the appellant. Aggrieved by Ext.P4 judgment, the appellant filed W.A.No.857 of 2010, which culminated in Ext.R4(d) judgment, by which the writ appeal was dismissed leaving it open to the appellant to challenge the final decision taken in the disciplinary proceedings initiated against him by the Manager. 3. Pursuant to Exts.P4 and R4(d) judgments, the Manager, after issuing show-cause notice and hearing the appellant, imposed the punishment of removal from service with effect from 28.3.2008. The period of suspension of the appellant from 3.8.2007 to 27.3.2008 was decided to be treated as leave without allowance. The proposal for imposition of punishment was thereafter submitted before the second respondent and approved as per proceedings dated 25.9.2010. Accordingly, the disciplinary proceedings against W.A.No.2710 of 2015 7 the appellant was finalised as per Ext.P5 order dated 1.12.2010. 4. The appellant challenged Ext.P5 by filing revision petition before the Government. The revision petition was dismissed under Ext.P7 order finding the misconduct committed by the appellant to be grave and the punishment imposed to be commensurate with the misconduct. The writ appeal is filed seeking to quash Exts.P5 and P7 and for a direction to the respondents to reinstate the appellant in service. 5. The challenge in the writ petition was mainly on the ground that while conducting enquiry, the second respondent did not follow the mandatory procedure prescribed under Rule 75 of Chapter XIVA of KER, to be followed while imposing major penalties. It is contended that the appellant was not W.A.No.2710 of 2015 8 served with a copy of the enquiry report, nor was any witness examined in his presence and that the enquiry was not completed within the stipulated three months' period. 6. Repelling the contentions, it is held in the impugned judgment that the facts clearly indicate that a detailed enquiry had been conducted by the second respondent. The learned Single Judge took note of the contentions urged on behalf of the Manager that the appellant had admitted the misconduct alleged in the memo of charges. It was therefore held that under such circumstances, there is no reason for further examination of witnesses and hence, there was no violation of Rule 75 of Chapter XIV A KER. 7. The learned counsel for the appellant would contend that inasmuch as the procedure prescribed under Rule 75 of Chapter XIV A KER was mandatory, the fact that the W.A.No.2710 of 2015 9 delinquent employee had admitted to some of the charges levelled against him is inconsequential. Reliance is placed on the judgment in **Seetharam Upper Primary School v. State of Kerala [2012 (2) KLT 338]** in support of the contention. 8. According to us, the legality or otherwise of the enquiry conducted by the second respondent resulting in Ext.P3 order is no longer open for challenge in view of Exts.P4 and R4(d) judgments. In Ext.P3, the charges levelled against the appellant were found to have been proved and sustainable. Ext.P3 was challenged by the Manager alone, that too, on the ground that the second respondent was not empowered to impose the punishment, which was the prerogative of the Manager. The said challenge was upheld and that part of Ext.P3 order by which punishment was imposed by the second respondent set aside. Though, the appellant W.A.No.2710 of 2015 10 challenged Ext.P4 judgment, the appeal was dismissed affirming the findings in Ext.P4. Moreover, in Ext.R4(d) judgment, the Division Bench granted liberty to the appellant only to challenge the final decision taken in the disciplinary proceedings initiated against him by the Manager. Having failed to challenge the findings in Ext.P3 and having suffered Ext.R4(d) judgment by which he was left with liberty only to challenge the final decision taken in the disciplinary proceedings initiated against him, the appellant cannot be permitted to challenge the findings in Ext.P3 through a subsequent writ petition, which attempt was rightly declined by the learned Single Judge. The procedure followed while conducting enquiry under Rule 75 of Chapter XIV A not being available for challenge in the instant round of litigation, the decision in _**Seetharam Upper Primary School**_ cannot be W.A.No.2710 of 2015 11 pressed into service. There being no challenge against Ext.P7, other than the challenge based on the alleged illegality in Ext.P3, the findings in the impugned judgment does not warrant interference in appeal. Resultantly, the writ appeal is dismissed. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/23.09