Kabeer K. vs State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **WP(C).No. 33816 of 2018** ## **PETITIONER:** **KABEER K. AGED 54 YEARS ASST. TEACHER (LPSA), A.U. P SCHOOL, VELLIYANCHERRY, MELATTOOR, MALAPPURAM DIST. 679326** **BY ADVS. SRI.K.JAJU BABU (SR.) KUM.NEETU VINOD SRI.BRIJESH MOHAN** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF GENERAL EDUCATION,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695001**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHI, THIRUVANANTHAPURAM- 695014.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**MALAPPURAM- 676505.**| |**4**|**THE ASSISTANT EDUCATIONAL OFFICER,**| ||**MELATTOOR, MALAPPURAM- 679326.**| |**5**|**THE MANAGER,**| ||**A.U.P. SCHOOL, VELLIYANCHERRY, MELATTOOR,**| ||**MALAPPURAM DISTRICT- 679326.**| |**6**|**THE HEAD MASTER,**| ||**A.U.P. SCHOOL, VELLIYANCHERRY,**| ||**MELATTOOR, MALAPPURAM DISTRICT- 679326.**| |**7**|**ADDL.R7 N.P.MOHAMED ALI,**| ||**AGED 56 YEARS**| ||**S/O. ABDU, NELLAYA PUTHAN PEEDIYEKKAL HOUSE,**| **WP(C).No. 33816 of 2018** **2** **PATHIRIKODE P.O., MALAPPURAM -679 326. (ADDL.R7 IMPLEADED AS PER ORDER DATED 06/12/2018 IN IA.NO.01/2018)** **BY ADVS. GOVERNMENT PLEADER SRI.K.MOHANAKANNAN SRI.T.B.HOOD SMT.T.V.NEEMA** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** The petitioner who was working as an Assistant Teacher [LPSA] in an aided School in Malappuram District, filed this writ petition challenging Ext.P4 proceedings dated 15.9.2018 of the Manager by which he was placed under suspension until further orders. The contention of the petitioner is that, the Manager does not have any authority to place a Teacher under suspension beyond a period of 15 days. According to the petitioner, the suspension can be ordered only for a period of 15 days and suspension can be extended beyond 15 days only if permission is granted by the Educational Officer. Therefore according to him, Ext.P4 order placing him under suspension until further orders is issued without authority. **WP(C).No. 33816 of 2018** **3** 2. From Ext.P4 it is seen that it is issued on the basis of a letter dated 3.7.2018 of the Director of Public Instructions [DPI], the letter dated 31.8.2018 of the Secretary to Government, General Education Department as well as the letter dated 10.9.2018 of the Assistant Educational Officer [AEO], Melattoor. In the order of suspension the Manager has also stated that, the DPI had conducted the enquiry pursuant to a complaint received from one Sri.N.P.Muhammadali-additional respondent No.7 herein, alleging that serious irregularities were committed by the petitioner; the Government therefore directed the AEO to initiate disciplinary proceedings against him and to report. It was also stated in Ext.P4 order, that the DPI had in the enquiry report found that petitioner had marked his attendance in the attendance register of the school as well as in the muster roll maintained for the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Scheme of Edappatta Grama Panchayath on the very same days and that he received both the benefits -as a teacher and a worker -simultaneously. 3. The case of the petitioner is that, the additional 7[th] respondent had filed complaints against him before various authorities because of personal grudge. Ext.P1 complaint was **WP(C).No. 33816 of 2018 4** submitted by Sri.Muhammadali before the Dy.S.P Vigilance and Anti-Corruption Bureau, Malappuram. According to the petitioner, immediately on receipt of Ext.P3 letter dated 10.9.2018 proposing action against him on the basis of the direction issued by the Government, the Manager placed him under suspension. 5. The Manger as well as the Educational Authorities, have filed separate counter affidavits. According to the Manager, the order of suspension was issued on the basis of Ext.R5(a) letter dated 10-09-2018 received from the Assistant Educational Officer. Ext.R5(b) letter dated 31-08-2018 received from the Government as well as R5(c) letter dated 03-07-2018 from the Director of Public Instructions. According to the Manager, he is bound to implement the orders issued by the Educational Authorities in tune with the provisions contained in Proviso (a) Sub Section 2 in Section 12A. It is also stated that, from the letter of the Director of Public Instructions, it was seen that, some serious allegations were raised against the petitioner, to the effect that, he received remuneration under the MGNREG Scheme, while he was availing leave without allowance on medical grounds from the School without producing medical **WP(C).No. 33816 of 2018** **5** certificate. It is stated that he was continuously absent. It is also stated that, he was attending various programs and drawing remuneration. 6. In the counter affidavit filed by the 4[th] respondent, it is stated that, on receipt of the complaint as to the irregularities committed by the petitioner, the DPI submitted a report after conducting a hearing on 14.5.2018. It is stated that, the petitioner was a Member/President of Edappatta Grama Panchayath and his attendance in the School was meager and he was constantly on special leave, casual leave, commuted leave, leave without allowance etc. It is also stated that, he had accepted Rs.3,200/- as wages for 18 days under the MGNREG Scheme, by signing the muster roll of the Grama Panchayath. At the same time, it is stated that, the petitioner marked his attendance in the attendance register of the School, for a period of 18 days. It is stated that, he was on casual leave for 2 days; 7 days were holidays. However, the attendance was marked on 9 days. Being a member of a local body, the petitioner was drawing wages during the leave period. It is stated that, though he was a Member/President of the Panchayath, he did not have any right to accept wages from MGNREG Scheme, while he was **WP(C).No. 33816 of 2018** **6** continuing as a Government Servant. It is stated that, he had done this in violation of Rule 13 of Chapter IX of KER. It is also stated that, the petitioner has received the enquiry report from the Headmaster on 22-06-2018 and submitted a reply on 26-062018 requesting for more time for a detailed reply. It is stated that the Secretary of the Grama Panchayath had informed that, on the basis of the signature, put in the muster roll under the MGNREG Scheme, the wages towards the work for those days was transferred to his account. 6. According to the 1[st] respondent, it is not necessary to get previous sanction from the Educational Officer, for keeping the petitioner under suspension beyond 15 days because, the Manager has placed the petitioner under suspension on the basis of the directions issued by the Educational Officer. 7. The 7[th] respondent has filed a counter affidavit, pointing out that, petitioner had drawn wages under the MGNREG scheme, while he was continuing as a Teacher in the School and was drawing salary as a Teacher. The additional 7[th] respondent stated that, the officers of the Education Department conducted an enquiry on the basis of his complaint dated 22-12-2017, and it was on the basis of the findings in **WP(C).No. 33816 of 2018** **7** that enquiry, the Government directed the Assistant Educational Officer to instruct the Manager to take action against the petitioner under Rule 67 in Chapter XIV A of the KER. According to the 7[th] respondent, the suspension of the petitioner is in accordance with law; it is in accordance with the provisions contained in Section 12A of the Kerala Education Act as well as Rule 67(8) of Chapter XIV A KER and since the suspension was based on instructions issued by the Educational Authorities, the restrictions under Rule 67(7) would not apply in the present case. It is stated that, the petitioner had been a Member of the Grama Panchayath for a period of 20 years and the President of the Panchayath for a period of 5 years and that he had a proxy Teacher in the School to take classes. 8. The petitioner has filed reply affidavit, admitting that he was the President of the Grama Panchayath and that, under Section 153 of the Kerala Panchayath Raj Act, 1994, the President shall be a full time functionary of the Panchayath. Petitioner has admitted that, he received a sum of Rs.3,200/as wages under the MGNREG Scheme and he was admitted that, he had signed on the muster roll of MGNREG Scheme, **WP(C).No. 33816 of 2018 8** but it was under a peculiar circumstances. According to him private works were also included under the MGNREG Scheme, in order to generate sufficient number of work days for the workers and therefore a job card was issued in the name of his wife to undertake MGNREG Scheme works in his property. It is stated that though he was not a card holder, his name appeared in the muster roll in the place of his wife's name. According to him, he had signed the muster roll in order to see that, the workers did not lose their work. It is stated that, the card holder was entitled for wages. He has also stated that, he has refunded a sum of Rs.5,387/- to the Panchayath. 9. The petitioner was placed under suspension, as per Ext.P4 order on 15-09-2018. The writ petition was filed on 15-10-2018. The main contention of the petitioner is that, there cannot be an order suspension by the Manager for a period beyond 15 days. 10. 4. The issue arising in this case involves interpretation of the Proviso to Rule 67 of Chapter XIV A of the Kerala Education Rules, 1959 which deals with suspension. Relevant provision under Rule 67 reads as follows:- _“67. Suspension : (1)_ _**xxx**_ **WP(C).No. 33816 of 2018** **9** _xxxxxx_ _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._ _(8) Where the orders of suspension is made by the manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and where the suspension is in respect of Headmaster of Secondary school and Training school such reports shall be sent to the [Deputy Director (Education)] also in addition to the Educational Officer. The [Deputy Director (Education) if the suspension is in respect of Headmaster of a Secondary school or Training School and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated the teacher shall be deemed to have been duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager. If on such investigation it is found that there are valid_ **WP(C).No. 33816 of 2018** **10** _grounds for such suspension, permission may be given to the manager to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days]_ ## 2. Section 12A of the Kerala Education Act, 1958 reads as follows:- ## 3. _“12A._ _**Disciplinary powers of Government over Teachers**_ _**of aided schools** .- (1) Notwithstanding anything contained in section 11 or section 12 and subject to such rules as may be prescribed, the Government or such officer not below the rank of an Educational Officer, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalities specified in the rules made under this Act.”_ 4. On consideration of the provisions contained in section 12 as well as proviso to Rule 67(7) of KER it is seen that the intention behind limiting the suspension to 15 days is to protect the teachers from the harassment of the Managers. These provisions provide that suspension beyond 15 days requires previous sanction of the educational authorities. It also provides that the educational authority has to conduct investigation as to the circumstances under which the suspension was **WP(C).No. 33816 of 2018** ## **11** ordered and whether it is necessary to continue the teacher under suspension.Such investigation by the educational authorities are provided in order to protect the teachers from victimisation at the hands of the Managers and to ensure that the Managers do not exercise the power to suspend arbitrarily and in the absence of any reason. The circumstances under which the petitioner is placed under suspension are entirely different and it does not call for a further investigation in order to place the petitioner under suspension. Educational authorities have already found the requirement for placing the petitioner under suspension. The letters issued by the educational authorities including the Government referred to in the order of suspension, irregularities were already found against the petitioner and it was based on those findings it was directed to place the petitioner under suspension. In such circumstances the question of limiting the suspension for 15 days and seeking of permission to continue suspension beyind 15 days is unnecessary. 11. In the above circumstances, I am of the view that the restriction provided in the proviso to rule 67 authorising the Manager limiting the periof of ## **WP(C).No. 33816 of 2018** ## **12** suspension of a teacher for a period of 15 days alone or the requirement of previous sanction to continue the suspension beyond 15 days would not apply to the circumstances of this case. The purpose behind the restriction is to see that disciplinary proceedings or even the suspension is ordered when circumstances for the same warrant. In the present case it is seen that investigation is already conducted and the authority was satisfied of the requirement to take action against the petitioner. Therefore the suspension ordered by the Manager until further orders, does not suffer from amy illegality. 12. It is seen that the petitioner has also approached the authorities. Neither the authorities not this court has interfered with the suspension. In the above circumstances, I do not find anything illegal in the order of suspension Ext P4. 5. It is pointed out that the petitioner has since retired from service on 30.05.2019. The learned counsel for the petitioner relied on the judgment of this Court in ## _**Surendran K. vs. Government of Kerala and others : 2008**_ _**(3) KHC 738**_ and argued that suspension was not necessary in all cases and the order should have been issued only if the continuance of the petitioner was **WP(C).No. 33816 of 2018 13** liable to affect the enquiry as it was tampered with evidence. I find that serious irregularities were found by the Government as well as the educational authorities and therefore I do not find it necessary to interfere with the order under Article 226 against such a teacher. The Writ Petition is accordingly dismissed. ## **P.V.ASHA** ## **JUDGE** Ska/rkc ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE COMPLAINT SUBMITTED BY MR MUHAMMADALI BEFORE THE DY.S.P, VIGILANCE AND ANTI-CORRUPTION BUREAU, MALAPPURAM DATED 08.01.2018.** **EXHIBIT P2 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 03.09.2018.** **EXHIBIT P3** **TRUE COPY OF THE LETTER NO.C/919/18 DATED 10.09.2018 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.D.P 1/2018 DATED 15.09.2018 OF THE 5TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 10.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P6** **TRUE COPY OF GO (MS) 203/2002 LSGD DATED** **WP(C).No. 33816 of 2018 14** **25/11/2002.** **EXHIBIT P7 TRUE COPY OF THE JOB CARD OF THE PETITIONER'S WIFE ISSUED UNDER MGNREG SCHEME. EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 23/06/2018 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE PANCHAYATH TO PERMIT HIM REFUNDING THE WAGE AMOUNT CREDITED TO THE PETITIONER'S ACCOUNT. EXHIBIT P9 TRUE COPY OF THE RECEIPT DATED 30/06/2018 ISSUED FROM EDAPPATTA GRAMA PANCHAYATH.** **RESPONDENTS' EXHIBITS: EXHIBIT R5(A) TRUE COPY OF THE LETTER NO.C/919/2018 DATED 10.9,.2018 ISSUED BY THE ASST.EDUCATIONAL OFFICER. EXHIBIT R5(B) A TRUE COPY OF THE LETTER NO.B1/22/2018/G.EDN DATED 31.8.2018 ISSUED BY THE GOVERNMENT EXHIBIT R5(C) A TRUE COPY OF THE NO.VA1/7684/2018/DPI DATED 3.7.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION EXHIBIT R7(A) TRUE COPY OF LETTER DATED 31/08/2018 ISSUED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT TO THE 4TH RESPONDENT. EXHIBIT R7(B) TRUE COPY OF THE COMPLAINT DATED 22/12/2017 FILED BEFORE THE HON'BLE MINISTER FOR EDUCATION.**