P. Radhakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938** **WP(C).No. 37639 of 2010 (D) ----------------------------** **PETITIONER(S): -------------** **P.RADHAKRISHNAN, S/O.SANKARA KURUP, AGED 47 YEARS, HEAD MASTER, NARIKKATTERI, L.V.L.P. SCHOOL, ARUR P.O., KAKKATTIL VIA, KOZHIKODE.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THRIUVANANTHAPURAM-1.** **3. DEPUTY DIRECTOROF EDUCATION, KOZHIKODE-673 001.** **4. ASSISTATN EDUCATIONAL OFFICER, NADAPURAM, KALLACHI P.O., KOZHIKODE DISTRICT, PIN-673 004.** **5. MANAGER, NARIKKATTERI L.V.L.P.SCHOOL ARUR P.O., KAKKATTIL VIA, KOZHIKODE DISTRICT, PIN-673 507.** **R1-R4 BY SENIOR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2016 ALONG WITH WPC.18179/2011 THE COURT ON 17-01-2017 DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 37639 of 2010 (D) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE PROCEEDINGS DTD.31.3.2009 OF THE KOZHIKODE DISTRICT CO-OPERATIVE BANK.** - **P2 TRUE COPY OF THE ENDORSEMENT MADE IN THE SALARY CERTIFICATE OF THE PETITIONER BY THE SENIOR SUPERINTENDENT ATTACHED TO THE OFFICE OF THE 4TH RESPONDENT.** - **P3 TRUE COPY OF THE PROCEEDINGS DTD.22.5.2008 OF THE 4TH RESPONDENT.** - **P4 TRUE COPY OF THE EXPLANATION DTD.27.5.2008 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **P4(a) TRUE COPY OF THE PROCEEDINGS NO.C/2227/08 DTD.6.6.2008 OF THE 4TH RESPONDENT.** - **P5 TRUE COPY OF THE EXPLANATION DTD.16.6.2008 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **P6 TRUE COPY OF THE LETTER NO.C/2227/08 DTD.24.6.2008 ISSUED BY THE 4TH RESPONDENT.** - **P7 TRUE COPY OF THE PETITION DTD.10.7.2008 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT** - **P8 TRUE COPY OF THE CHARGE MEMO DTD.5.9.2009 ISSUED BY THE 5TH RESPONDENT.** - **P9 TRUE COPY OF THE EXPLANATION DTD.21.9.2009 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **P10 TRUE COPY OF THE ORDER NO.C/2227/08/D.DIS DTD.7.12.2009 PASSED BY THE 4TH RESPONDENT.** - **P11 TRUE COPY OF THE APPEAL DTD.18.12.2009 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **P11(a) TRUE COPY OF THE JUDGMENT DTD.22.12.2009 IN WPC.NO.37394 OF 2009 OF THIS HON'BLE COURT.** - **P12 TRUE COPY OF THE ORDER NO.B3/5977/07 DTD.11.3.2010 ISSUED BY THE 3RD RESPONDENT.** - **P13 TRUE COPY OF THE APPEAL DTD.17.5.2010 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **Msv/** **-2-** **-2-** ## **WP(C).No. 37639 of 2010 (D) ---------------------------** - **P13(a) TRUE COPY OF THE JUDGMENT DTD.27.5.2010 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **P14 TRUE COPY OF THE REVISION PETITION DTD.1.10.2010 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **15 TRUE COPY OF THE ORDER DTD.13.5.2010 ISSUED BY THE 5TH RESPONDENT.** - **P16 TRUE COPY OF THE MEMO OF CHARGES DTD.28.5.2010 ISSUED BY THE 5TH RESPONDENT.** - **P17 TRUE COPY OF THE REVISION PETITION DTD.18.6.2010 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P18 TRUE COPY OF THE JUDGMENT DTD.22.7.2010 IN WPC.22711/2010 OF THIS HON'BLE COURT.** - **P18(a) TRUE COPY OF THE JUDGMENT DTD.26.10.2010 IN WPC.NO.330446/2010 OF THIS HON'BLE COURT.** - **P19 TRUE COPY OF G.O.(RT) NO.5200/2010/G.EDN. DTD.22.11.2010 ISSUED BY THE 1ST RESPONDENT.** - **P20 TRUE COPY OF THE ORDER DTD.30.12.2010 ISSUED BY THE 5TH RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.37639 of 2010 & 18179 of 2011** **= = = = = = = = = = = = = = = Dated this the 17[th] day of January, 2017** ## **JUDGMENT** - 1.The issue which arises for consideration in these writ petitions is with regard to the nature of the power of the educational authorities to initiate and complete disciplinary proceedings against teachers of aided schools and the nature of the intimation required to be given to the manager in the matter. The challenge in W.P.(C).No.37639 of 2010 is against Exhibit P15 order of suspension and Exhibit P19 order passed by the Government rejecting the revision filed by the petitioner against the order of the DDE imposing the enhanced punishment of permanent reversion from the post of Headmaster. W.P.(C).No.18179 of 2011 is filed challenging Exhibits P15, P19, P21 and P24 orders. The parties and documents are being referred to as in W.P.(C).No.18179 of 2011. - 2.Petitioner, while working as Headmaster in the 3[rd] respondent school was served with Exhibit P3 notice dated 22.05.2008 by W.P.(C).No.37639/10 & 18179/11 **2** the AEO alleging that he had produced a forged receipt from the District Co-operative Bank, Kozhikode showing remittance of Rs.4,500/- in his loan account while he had paid only an amount of Rs.500/-, thus enabling him to draw Rs.4,000/- in excess as salary. The petitioner submitted Exhibit P4 reply stating that he had entrusted another person to make the remittance and that he had not noticed any correction in the receipt issued by the Bank. Thereafter, Exhibit P4(a) notice was issued by the AEO stating that reply was not satisfactory and requiring the petitioner to show cause why action should not be initiated against him under Section 12A of the Kerala Education Act. Though the petitioner submitted Exhibit P5 reply, he was required to attend a hearing on 11.07.2008 by Exhibit P6 notice. - 3.It appears that the AEO intimated the matter to the Manager and Exhibit P8 memo of charges was issued by the Manager to the petitioner on 05.09.2009. The petitioner submitted Exhibit P9 reply. Thereafter, relying on a communication by the W.P.(C).No.37639/10 & 18179/11 **3** Manager requiring the AEO to proceed with the disciplinary proceedings, the AEO issued Exhibit P10 further notice and conducted hearings on 18.11.2009, 26.11.2009, 07.12.2009 and Exhibit P15 proceedings were issued finding him guilty and imposing the punishment of reversion from the post of Manager for two years. Though an appeal was preferred by the petitioner, the 1[st] respondent, DDE not only rejected the appeal, but enhanced the punishment as permanent reversion from the post of manager by Exhibit P19 order. His appeal and revision against the said order were rejected by the DPI by Exhibit P21 and to Government by P24 orders. These orders are under challenge. - 4.Heard the learned counsel for the petitioner and the learned Government Pleader. There was no appearance for the 3[rd] respondent-Manager, in spite of service of notice. - 5.It is submitted by the learned counsel for the petitioner that a reading of Section 12A of the Kerala Education Act would W.P.(C).No.37639/10 & 18179/11 **4** show that the power of the Educational Authority to initiate disciplinary action against a teacher of an aided school would be available only after the Manager is intimated regarding the circumstances requiring such disciplinary action against the teacher concerned. Moreover, the Manager has to be given a reasonable opportunity to take such disciplinary action. It is only when such disciplinary proceedings are not taken by the Manager that the authorised officer can proceed with the action as contemplated under Rule 75(a) of Chapter XIVA KER. In support of this proposition the petitioner places reliance on the decisions of this Court in **Yamuna v. State of Kerala** [2008(1) KLT 378] and **Abdul Jabbar v. Director of Public Instruction** [2011(2) KLT 831]. - 6.It is further submitted that the action of the 1[st] respondent in enhancing the punishment awarded to the petitioner by the authorised officer on an appeal submitted by the petitioner without putting him on notice of the proposal to take such an action is vitiated by violation of principle of natural justice and W.P.(C).No.37639/10 & 18179/11 **5** is therefore unsustainable. The learned counsel also challenges Exhibits P21 and P24 orders on the ground of want of application of mind, since the contentions raised by the petitioner were not considered by the DPI or the Government. 7.The learned Government Pleader appearing for the respondents would contend that the petitioner had been given due notice of the fabrication of receipt noticed by the AEO immediately on such forgery coming to the notice of the said authority. The petitioner was also heard. It was only when the explanations preferred by the petitioner were found to be contradictory that the Manager was intimated of the necessity to take disciplinary action against the petitioner. The Manager has proceeded to issue Exhibit P8 charge memo and on getting the reply from the petitioner, it is stated that the Manager had intimated the DEO that there is no objection to taking further action in the matter and the DEO was required to proceed with the enquiry in accordance with Rule 75A of Chapter XIVA KER. It is stated that thereafter, the petitioner had been put on W.P.(C).No.37639/10 & 18179/11 **6** notice by the AEO and was required to be present for personal hearing by notices dated 11.11.2009, 18.11.2009 and 01.12.2009. All the contentions raised by the petitioner in his replies were considered and Exhibit P15 order was passed. On appeal preferred by the petitioner the contentions raised were considered and the DDE found that that punishment imposed was not commensurate with the offences alleged against the petitioner. The order of reversion was therefore made permanent. Though the petitioner had taken up the matter in further appeal and revision the Educational authorities had considered the contentions of the petitioner and had not found any reason to depart from Exhibit P19 order issued by the DDE. It is therefore contended that in the light of the intimation given by the Manager that he does not intend to proceed further with the disciplinary proceedings and requiring the AEO to conduct such proceedings, it is contended that there was no illegality or irregularity in the conduct of the proceedings by the AEO or in the enhancement of the punishment in appeal. It is therefore contended that W.P.(C).No.37639/10 & 18179/11 **7** Exhibits P15, P19, P21 and P24 orders are perfectly legal and valid. 8.I have considered the contentions advanced on either side in considerable detail. Rule 75A of Chapter XIVA of the KER reads as follows:- “[75A. **Disciplinary powers of the Government or the authorised Officer** :- Notwithstanding anything contained in rule 75, if a manager does not initiate appropriate action against the teacher, within a month from the date of intimation as specified in section 12(A) or after intimation of the disciplinary proceeding he is not completing the disciplinary proceedings within two months from the date of intimation of the disciplinary action. 166[or if according to Government or the authorised officer the manager dropped the disciplinary proceedings without sufficient grounds or imposed a penalty not proportionate to the gravity of charges proved] then the Government or the authorised officer as the case may be shall take appropriate disciplinary action against the teacher concerned. But in extraordinary cases for reasons to be recorded in writing the Director may on the application of the manager extend the time allowed to the manager to complete the disciplinary action. The procedure prescribed in rule 75 shall mutatis mutandis be followed by the Government or the prescribed authority in the matter of imposing major penalties] “ W.P.(C).No.37639/10 & 18179/11 **8** - 9.It is clear that it is only in cases where the Manager does not initiate disciplinary action against a delinquent employee on being intimated as provided under Section 12(A) that the authorised officer would have the power to initiate disciplinary action under Rule 75A of Chapter XIVA KER. Even where disciplinary action is decided to be taken in terms of Rule 75A by the authorized officer, the procedure prescribed in Rule 75 has to be complied with in full. - 10.In the instant case, it is evident from a reading of Exhibit P8 that the AEO had intimated the requirement of taking disciplinary action against the petitioner by a letter dated 23.07.2009. On the basis of such intimation, the Manager had issued Exhibit P8 charge memo to the petitioner. The petitioner had submitted Exhibit P9 reply. Therefore the proceedings as contemplated in Rule 75 of Chapter XIVA KER had been initiated against the petitioner on the basis of an intimation, as provided in Section 12(A) of the Kerala W.P.(C).No.37639/10 & 18179/11 **9** Education Act. In the above view of the matter, further proceedings in accordance with Rule 75 for conduct of an enquiry and a finding on each of the charges together with reasons therefore ought to have been prepared after examination of witness, if any, or on such documentary evidence as may be relevant or material. The procedure prescribed in sub-rule 5 to 11 of Rule 75 ought to have been complied with, in full, before the imposition of the penalty of reduction to a lower grade or post or time scale could have been imposed on the petitioner. Such reduction which is provided as a penalty in Rule 65(iv) of Chapter XIVA KER is a major penalty which can be imposed only after all the procedures as prescribed in the Rule are followed in full. 11.The contention raised by the 2[nd] respondent to the effect that the Manager had requested the AEO to continue with the enquiry after receiving the reply from the petitioner is unsupported by any document. Even in case such request is made by the Manager, no orders could have been passed W.P.(C).No.37639/10 & 18179/11 **10** imposing a major penalty on the petitioner without complying with the entire proceedings as prescribed in Rule 75 of Chapter XIV A. This Court has in **Seetharam Upper Primary School v. State of Kerala** [2012 (2) KLT 338] clearly held that an order imposing a major penalty cannot be issued without complying with the due procedure prescribed in Rule 75. 12.In the instant case, not only was the prescribed procedure under Rule 75 given a complete go by, even the requirement of a formal enquiry has been completely dispensed with. The Manager who had initiated the enquiry appears to have backtracked on his decision to conduct the enquiry after the petitioner's reply was received. The AEO who claims to have been entrusted with the conduct of the enquiry by the Manager has also thereafter not complied with the procedure prescribed in Rule 75 before finding the petitioner guilty as charged in Exhibit P8. On a consideration of the contentions raised and the documents produced in the instant case, I am of W.P.(C).No.37639/10 & 18179/11 **11** the definite view that the imposition of the penalty of reduction in rank on the petitioner, which is a major penalty, going by provisions of Rules 65(iv) of Chapter XIVA KER, without proper compliance with the procedure prescribed is bad in law. Going by the provisions of Rule 75, the Manager who had initiated the proceedings and received a reply from the petitioner should have decided whether a formal enquiry should be held into the conduct of the petitioner. If he were so satisfied, an order of formal enquiry should have been rendered in terms of Rule 75(1)(a). Rule 75(1)(b) provides for the appointment of an enquiry officer and the conduct of a formal enquiry by an authorized officer. - 13.Since no such orders had been passed by the Manager pursuant to Exhibit P9 reply received from the petitioner, I am of the opinion that the Manager should consider Exhibit P9 and pass further orders in accordance with law as provided in Rule 75 of Chapter XIVA KER. Since the orders under challenge are issued without proper compliance with the procedure W.P.(C).No.37639/10 & 18179/11 **12** contemplated in the Rules, Exhibit P15, P19, P21 and P24 orders are quashed. If the Manager is satisfied that a formal enquiry is to be conducted, he shall proceed to pass such orders and further steps as required by law shall be taken in terms of Rule 75(1)(b) of Chapter XIVA KER. After complying with the due procedure prescribed in the Rules, orders shall be passed by the competent authority after giving the petitioner proper opportunity to defend his case. Orders, as directed above, shall be passed by the competent authority within a period of four months from the date of receipt of a copy of this judgment. These writ petitions are ordered accordingly. sd/- **Anu Sivaraman, Judge** sj