P. Muralidharan v. Regional Deputy Director, Higher Secondary Education, Kannur and Vijayakumar K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **WP(C).No.3724 OF 2020(M)** ## **PETITIONER:** **P.MURALIDHARAN, MANAGER, KADAMBUR HIGHER SECONDARY SCHOOL, KADAMBUR, KANNUR DISTRICT-670663.** **SRI.GEORGE POONTHOTTAM (SR.) SRI.ARUN CHANDRAN SRI.RIJI RAJENDRAN** ## **RESPONDENTS:** - **1 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, PAYYAMBALAM P.O., KANNUR DISTRICT-670001.** - **2 VIJAYAKUMAR K.,** - **KARINJAPARAMBATH HOUSE, PANNIYANNUR P.O., KANNUR DISTRICT-670671.** **SRI.P.C.SASIDHARAN SRI.P.M.MANOJ - SR. GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3724 OF 2020(M) 2 ## **JUDGMENT** ## **Dated this the 15th day of February 2021** The petitioner says that he is the Manager of the “Kadambur Higher Secondary School”, Kannur and that he has been constrained to approach this Court assailing Ext.P8 order issued by the first respondent - Regional Deputy Director of Higher Secondary Education, Kannur, as per which, the second respondent – Sri.Vijayakumar K., who was a teacher in Sanskrit in the said school, has been ordered to be reinstated after terminating his suspension. 2. The petitioner says that the second respondent was initially placed under suspension through Ext.P1 order, dated 25.06.2018, since he was implicated in a crime involving various offences, including under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act); and that he had been under Police custody for over 14 days. He adds that, subsequent to Ext.P1, Ext.P2 request was made to the competent Educational Authorities for continuation of the petitioner's suspension, which had been approved through Ext.P3, under the provisions of Rule 67(1)(7) of Chapter XIV A of the KER. The petitioner says that the period of suspension WP(C).No.3724 OF 2020(M) 3 was, thereafter, extended through Ext.P4 proceedings of the first respondent and that he, therefore, issued Ext.P5 Memo of Charges dated 07.12.2018 to the second respondent, asking him to show cause why necessary disciplinary action against him be not initiated and concluded. 3. The petitioner says that, thereafter, he conducted a preliminary enquiry and approached the first respondent through Ext.P6 seeking a formal statutory enquiry to be conducted, under the provisions of Rule 75 of Chapter XIV A of the KER and that the same is still pending. 4. The petitioner submits that in the meanwhile, the second respondent appears to have approached this Court, by filing Crl.M.C.No.5843/2019, leading to Ext.P7 judgment to be issued by this Court, quashing the criminal case against him. The petitioner asserts that, as is evident from Ext.P7, the second respondent has not been exonerated of the criminal charges honourably but that the case against him has been quashed solely based on a settlement, which appears to have been entered into between him and the victim and her family. 5. The petitioner contends that, in such circumstances, even when the criminal case against the second respondent had been quashed, the Educational Authorities are obligated WP(C).No.3724 OF 2020(M) 4 in law to allow a proper enquiry against him under the provisions of Rule 75 of Chapter XIV A of the KER. He then alleges that, instead of doing so, the first respondent has now issued Ext.P8 order virtually holding that the second respondent has been exonerated of all charges by this Court and therefore, that his suspension is revoked; and consequently, ordering that he be reinstated in service. The petitioner asserts that Ext.P8 is illegal and prays that the same be set aside. 6. I have heard Sri.George Poonthottam, learned senior counsel instructed by Sri.Navaneeth Krishnan appearing for the petitioner; Sri.P.C.Sasidharan, learned counsel appearing for the second respondent and Sri.P.M.Manoj, the learned Senior Government Pleader appearing for the first respondent. 7. Sri.Goerge Poonthottam, in addition to the facts afore narrated, added that the allegations made against the second respondent by the victim, which is evident from Ext.P11, is extremely grave and ought to be subject to a proper enquiry under the provisions of Rule 75 of Chapter XIV A of the KER. He relied on the judgment of the Hon'ble Supreme Court in **State of Orissa v. Bimala Kumar Mohanty** [(1994) 4 SCC WP(C).No.3724 OF 2020(M) 5 126] and that of this Court in **Raj Mohan v. Secretary to Government** [2001 (3) KLT 956] to assert that the paramount consideration in placing a public servant under suspension is public interest and therefore, that when such interest demands an employee to be kept out of service, there cannot be any fetter on it other than which is provided under the applicable Statute. He submitted that in this case, the fact that the second respondent was accused of very grievous offences by the victim is conceded, as also the fact that he was under Police custody for 14 days. 8. The learned senior counsel, therefore, submitted that Ext.P7 judgment of this Court cannot operate to the extent of construing that no further action against the second respondent, under Rule 75 of Chapter XIV A of the KER, can be taken forward and he relied for this proposition on the judgment of the Hon'ble Supreme Court in **Arun Singh & Others v. State of U.P** . **through its Secretary and another** [(2020) 3 SCC 736], to argue that the offences involved in this case are not private in nature but are against the society and therefore that a settlement between the parties cannot be a valid ground to quash the FIR of the charge sheet. 9. Sri.George Poonthottam, learned senior counsel thus WP(C).No.3724 OF 2020(M) 6 submitted that, notwithstanding Ext.P7 judgment of this Court, the competent Educational Authorities must be directed to initiate and continue proceedings against the second respondent under Rule 75 of Chapter XIV A of the KER and that, therefore, Ext.P8 requires to be quashed. 10. In response, Sri.P.C.Sasidharan, learned counsel appearing for the second respondent, submitted that the allegations against his client, made by the victim, were clearly on account of a misunderstanding and that this is evident from her affidavit filed before this Court, which led to Ext.P7 judgment. Sri.P.C.Sasidharan showed me that it has been found by this Court in the said judgment that his client never intended to touch the victim with a sexual intent so as to attract any offence and that he was only trying to console her, when she started to cry because her question paper had been mixed up. Sri.P.C.Sasidharan added that on account of the conclusive findings of this Court in paragraph 5 of Ext.P7 judgment, no further action can be taken against his client and therefore, asserted that Ext.P8 is without error. 11. On the questions of law involved, Sri.P.C.Sasidharan submitted that the power to suspend a teacher is certainly with the Manager at the first instance, but that it is then WP(C).No.3724 OF 2020(M) 7 regulated by the provisions of Rule 67 of Chapter XIV A of the KER, which mandates that the continuation of suspension beyond 15 days can be only with the concurrence of the competent Educational Authorities. He then invited my attention to Rule 67 (7) and Rule 67(8A) of Chapter XIV A of the KER, where under, it has been stipulated that an order of suspension made or deemed to have been made under Rule 67 may be revoked at any time by the Authority which made or is deemed to have made the said order. Sri.P.C.Sasidharan then submitted that Rule 67(8A) makes it further luculent that the Authority who permitted the suspension beyond 15 days may, at any time during its pendency, review such permission, if such Authority is satisfied that the teacher under suspension is required to be reinstated in service for reasons to be recorded in writing. Sri.P.C.Sasidharan showed me that in Ext.P8, the first respondent has found that Ext.P7 judgment of this Court exonerates his client honourably and therefore, that he is required to be reinstated after termination of his suspension. The learned counsel, therefore, prayed that this writ petition be dismissed and Ext.P8 be approved. 12. The rival contentions of the parties being so recorded, I am now enjoined to consider whether Ext.P8 WP(C).No.3724 OF 2020(M) 8 satisfies the mandate of Rule 67(7) and 67(8A) of Chapter XIV A of the KER. 13. No one has a case that the Authority who is empowered to extend the period of suspension under the provisions of the KER, he is not competent to cancel the same and order reinstatement. This is specifically provided under the afore Rules and even Sri.George Poonthottam, learned senior counsel, does not impel any contention against this. The only assertion of Sri.George Poonthottam against Ext.P8 is that it exonerates the second respondent of all charges and then orders his reinstatement. 14. I find some force in the submissions of the learned senior counsel because, Ext.P8 certainly says that there are no allegations subsisting against the second respondent and therefore, that his suspension must be revoked. This surely gives an impression that the said Authority has already decided - even when Ext.P6 request for enquiry is pending before him - that no action is required to be taken against the second respondent on account of Ext.P7 judgment of this Court. On this ground, it is now well settled, without requirement of reinstatement, that merely because a person is acquitted of criminal charges, pending disciplinary action or WP(C).No.3724 OF 2020(M) 9 such other enquiry cannot be automatically terminated and obviously, therefore, what is commenced under the provisions of the KER can only be ceased under its mandate. 15. Going by the provisions of the KER, when a teacher is charge sheeted on certain allegations, the same can be concluded only after proper enquiry or unless it is established otherwise that such an enquiry cannot be taken forward for any cogent reason. 16. In the case at hand, the second respondent was originally implicated in a crime involving the provisions of POCSO Act and through Ext.P7 judgment, he secured acquittal based on a settlement between the victim and her family. This, in my view does not ipso facto lead to a conclusion that no further action under the provisions of the KER can be taken forward or concluded against the second respondent, particularly when it is admitted that Ext.P6 request for such action is pending before the first respondent by the Manager. 17. That said, the corollary question is whether the reasons recorded in Ext.P8 warranting the second respondent's reinstatement and termination of suspension is valid or otherwise. At first blush, certainly the sole reason WP(C).No.3724 OF 2020(M) 10 shown therein is that, since this Court has exonerated the second respondent and has quashed the FIR against him, he is deserving to be reinstated after his suspension is terminated. However, as I have already said above, merely because the FIR against the second respondent is quashed, it does not mean that the enquiry against him under the KER should also be terminated. This certainly is a matter to be decided by the competent Authorities after following proper procedure. Moving forward, Ext.P8 does not record any other reason for having terminated the suspension of the second respondent but it is conceded at the Bar today, by the petitioner as well as by the official respondents, that the victim involved is no longer studying in the school. 18. In that sense of the matter, I am of the view that the second respondent's reinstatement and cancellation of suspension cannot be found to be in error because, whatever the petitioner may say, due weight has to be certainly given to Ext.P7 judgment of this Court, wherein, even the allegations on its merits were touched upon, though not assessed or evaluated in detail. I cannot, therefore, find Ext.P8, to the extent to which it orders reinstatement of the petitioner, liable to be set aside by this Court; but I am certainly of the view WP(C).No.3724 OF 2020(M) 11 that the reasons stated therein cannot stand in the way of proper enquiry being completed against the second respondent under the provisions of the KER. In the afore circumstances, I order this writ petition, confirming the order of reinstatement of the second respondent made through Ext.P8; however, directing the first respondent to take up Ext.P6 request of the petitioner and to dispose of the same, de hors the reasons stated in Ext.P8, after following the imperative procedure mandated as per the provisions of the KER. This shall be done by the first respondent as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** WP(C).No.3724 OF 2020(M) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO. KHSS-A505/2018 DATED 25/06/2018 ISSUED BY THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION NO. KHSS-A505/2018 DATED 25/06/2018 ISSUED BY THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE ORDER N.A4-4393/2018 DATED 04/07/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER No.A4-4393/2018 DATED 09/07/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 07/12/2018.** - **EXHIBIT P5(A) TRUE COPY OF THE STATEMENT OF ALLEGATIONS ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 07/12/2018.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 18/12/2018 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 21/10/2019 ALONG WITH ENCLOSED COPY OF THE JUDGMENT IN CRL.MC NO.5843/2019 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.A4/4393/2018 DATED 26/10/2019 ISSUED BY THE 1ST RESPONDENT WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P9 TRUE COPY OF THE CIRCULAR DATED 19/09/2007 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 04/11/2019 ALONG WITH THE ENCLOSED PROPOSAL.** - **EXHIBIT P11 TRUE COPY OF THE FINAL REPORT IN FIR NO.592/13 DATED 30.09.2018 AND FILED ON** WP(C).No.3724 OF 2020(M) 13 **06.10.2018 INCLUDING THE STATEMENT GIVEN BY THE STUDENT BEFORE THE S.I. OF POLICE AND WITNESS STATEMENT.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(A) THE TRUE COPY OF THE AFFIDAVIT DATED 12.7.2019 FILED BY THE COMPLAINANT BEFORE THE HON'BLE HIGH COURT**