Prasanth M.P. v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **WP(C).No.19414 OF 2019(B)** ## **PETITIONER:** ## **PRASANTH.M.P,AGED 40 YEARS** **S/O. RAMACHANDRAN, LPSA, (UNDER OF ORDERS OF DISMISSAL), AIDED MUSLIM LOWER PRIMARY SCHOOL, KULAMOKKU, PARATHUR P.O, PATTAMBI(VIA), PALAKKAD DISTRICT.** **BY ADVS.** **DR.GEORGE ABRAHAM SHRI.JOBY D JOSEPH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-678001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM, PALAKKAD-679101.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, PATTAMBI, PALAKKAD-679303.** - **6 THE MANAGER, AIDED MUSLIM LOWER PRIMARY SCHOOL, KULAMOKKU, PARATHUR P.O, PATTAMBI(VIA), PALAKKAD679303.** - **7 NITHYA T, PLSA, AIDED MUSLIM LOWER PRIMARY SCHOOL, KULAMOKKU, PARATHUR P.O, PATTAMBI(VIA), PALAKKAD679303.,** **R1-5 BY GOVERNMENT PLEADER R6 BY ADV. SRI.ELVIN PETER P.J. R6 BY ADV. SRI.K.R.GANESH** - **R7 BY ADV. SRI.PRADEEP KRISHNA** **SRI.P.M.MANOJ -SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19414 OF 2019(B)** **2** ## **JUDGMENT** ## **Dated this the 5th day of March 2021** The petitioner, while working as a Lower Primary School Teacher in “Aided Muslim Lower Primary School”, Palakkad, was charge sheeted for five allegations as under: - _“1. Threatened the Manager and his wife at their residence._ _2. Was found smoking in the school premises and toilet._ _3. Physically assaulted students by giving them corporeal punishment._ _4. Misbehaved with colleagues, with the intention of causing them mental torture._ _5. Parked motor cycle in a class room while the school was in session.”_ 2. These charges were impelled by the Manager and the competent Authority under provisions of the Kerala Education Rules (KER), culminating in Ext.P5 Enquiry Report, which found allegations 1 and 4 to be not proved; while holding the petitioner is guilty of the allegations under 2,3 and 5. 3. Subsequent to the enquiry report being so settled, the Manager proposed the punishment of “Dismissal from Service” **WP(C).No.19414 OF 2019(B)** **3** against the petitioner, which was concurred with by the competent educational Authority, which constrained the petitioner to approach the Government, through a Statutory Revision, thus culminating in Ext.P19 order. In this order, Government found the punishment imposed against the petitioner to be commensurate to the gravity of the offences proved and thus approved it. 4. The petitioner impugns Ext.P19 on various grounds, but primarily that the punishment is shockingly disproportionate to the allegations alleged to have been proved against him. 5. I have heard Sri. George Abraham - learned counsel appearing for the petitioner; Sri. K.R. Ganesh - learned counsel appearing for the Manager and the learned Senior Government Pleader - Sri. P. M. Manoj appearing for the official respondents. 6. I must record upfront that it is now well settled, for any requirement of reinstatement, that this Court cannot sit in appeal over the findings and conclusions in a disciplinary enquiry, as long as they are not shockingly unconscionable or perverse; and **WP(C).No.19414 OF 2019(B)** **4** that, normally, it would not be permissible to substitute the wisdom of this Court with that of the disciplinary Authorities. 7. The records reveal that allegation Nos. 2,3 and 5 afore have been found proved against the petitioner and not allegations 1 and 4. That said, it must also be borne in mind that, as regards allegation No.1, the Enquiry Officer has only held that since the matter is pending before the competent Court, it would not be possible for him to conclude upon the same conclusively. Thus, as matters now stand, it is clear that the punishment imposed against the petitioner is not based on allegation Nos. 1 and 4 but is edificed on allegation Nos.2,3 and 5. 8. Dr. George Abraham - learned counsel for the petitioner, after arguing this matter for some time and presumably discerning the mind of this Court as afore, submitted that, even if allegation Nos.2,3 and 5 are taken to be proved, the punishment now imposed is shockingly disproportionate; and thus, prayed that Government be directed to reconsider it. **WP(C).No.19414 OF 2019(B)** **5** 9. In response, Sri. K. R. Ganesh - learned counsel appearing for the Manger, submitted that the proved imputations against the petitioner certainly warrant a punishment of the highest degree; and therefore, that the Manager and the educational Authorities were without any error in having proposed and confirmed the dismissal of the petitioner from service. Sri. K.R. Ganesh, in contending so relied upon the judgment of this Court in _**Indulekha Joseph vs. Vice Chancellor**_ [2008 (3) KLT 712]. He thus prayed that this writ petition be dismissed. 10. The learned Senior Government Pleader - Sri. P. M. Manoj, appearing for the official respondents, submitted that Ext.P14 has been issued taking note of the fact that the allegations against the petitioner were grievous enough to warrant punishment of dismissal from service. He explained that since the petitioner was found to have been smoking within the school premises and to have indulged in corporeal punishment against **WP(C).No.19414 OF 2019(B)** **6** the students, Government had no other option but to agree to impose this punishment; and asserted that this view was fortified by the obvious lack of discipline of the petitioner, evidenced from the fact he parked his motor cycle inside a class room, when the school was in session. The learned Senior Government Pleader also, therefore, prayed that this writ petition be dismissed. 11. I have considered the afore submissions and have also examined the materials available on record very carefully. 12. There is no doubt that, going by the Enquiry Report, allegation Nos.2, 3 and 5 have been found proved against the petitioner. As I have already said earlier, I do not propose to sit in judgment over the same; and therefore, deem it appropriate, for the purpose of this case, that they have been validly proved. This is also because the petitioner has not been able to point out any vitiating circumstances or capriciousness, which would compel me to the opinion that Enquiry Report is unconscionable or perverse. **WP(C).No.19414 OF 2019(B)** **7** 13. That said, the only issue now engages my mind is whether, even if the allegations against the petitioner on allegation Nos. 2, 3 and 5 are taken to be proved, it would be sufficient to dismiss him from service, particularly when he is stated to have put in many years of unblemished service. 14. I am, therefore, of the firm view that Government must reconsider the quantum of punishment after verifying whether the present order of dismissal from service is warranted from the touchstone of the allegations proved against him. 15. Of course, when I say this, it may not be misunderstood that I have found in favour of the petitioner affirmatively, but only that he is entitled to the latitude of a reconsideration of the punishment vis-a-vis the gravity of the proven offences; and while doing so, Government must certainly keep in mind the judgment of this Court in _**Indulekha Joseph (supra).**_ In the afore circumstances, without entering into the merits **WP(C).No.19414 OF 2019(B)** **8** of any of the other contentions of the parties on its merits, I order this writ petition with a direction to the Government to reconsider the punishment now imposed upon the petitioner, after affording him and the Manager of the School an opportunity of being heard - either physically or through video conferencing - and after adverting specifically to the observations of this Court in _**Indulekha Joseph (supra),**_ particularly those in paragraph 23 thereof, thus culminating in an appropriate order, as expeditiously as is possible , but not later than three months from the date of receipt of a copy of this judgment. I make it clear that though I have not set aside Ext.P19 order, I expect the Government to reconsider the punishment as ordered above dispassionately, on the basis of all relevant inputs and criteria and to then appositely modify the same, if it is found so necessary after the afore directed exercise. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** SAS/05/03/2021 **WP(C).No.19414 OF 2019(B)** **9 APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE ORDER OF SUSPENSION DATED**| |---|---| ||**14.10.2015 ISSUED BY THE SIXTH RESPONDENT.**| |**EXHIBIT P2**|**TRUE COPY OF THE CHARGE MEMO DATED**| ||**19.10.2015 ISSUED BY THE SIXTH RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER DATED 12.4.2016**| ||**ISSUED BY THE FOURTH RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE COMMON JUDGMENT DATED**| ||**23.5.2016 PASSED BY THIS HON'BLE COURT IN**| ||**WP(C) 9830/16 AND 17452/2016.**| |**EXHIBIT P5**|**TRUE COPY OF THE ENQUIRY REPORT DATED**| ||**29.08.2016 OF THE FIFTH RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE SHOW CAUSE NOTICE DATED**| ||**19.9.2016 ISSUED BY THE SIXTH RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF THE OBJECTION DATED 24.10.2016**| ||**TO EXHIBIT P6 SHOW CAUSE NOTICE SUBMITTED**| ||**BY THE PETITIONER.**| |**EXHIBIT P8**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**7.12.2016 ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**17.1.2017 ISSUED BY THE FIFTH RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**17.3.2017 ISSUED BY THE FOURTH RESPONDENT**| ||**TO THE FIFTH RESPONDENT.**| |**EXHIBIT P11**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**25.03.2017 ISSUED BY THE FOURTH RESPONDENT.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 17.04.2017 OF**| ||**THE FIFTH RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF THE ORDER OF THE CHILD WELFARE**| ||**COMMITTEE DATED 12.8.2016.**| |**EXHIBIT P14**|**TRUE COPY OF THE GOVERNMENT ORDER DATED**| ||**22.11.2017.**| |**EXHIBIT P14A**|**TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY**| ||**THE PETITIONER.**| **WP(C).No.19414 OF 2019(B)** **10** **EXHIBIT P15** **TRUE COPY OF THE ORDER ISSUED BY THE MANAGER DATED 24.11.2017.** **EXHIBIT P16 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER UNDER RULE 80 OF CHAPTER XIV A KER DATED 26.12.2017.** - **EXHIBIT P17 TRUE COPY OF THE ORDER PASSED BY THE DISTRICT EDUCATIONAL OFFICER, DATED 09.1.2018.** **EXHIBIT P18 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER DATED 12.2.2018.** **EXHIBIT P19 TRUE COPY OF THE GOVERNMENT ORDER DATED 27.05.2019.** **EXHIBIT P20 A COPY OF FIR REGISTERED AGAINST THE MANAGER BY STATION HOUSE OFFICER, THRITHALA DATED 14.10.2015** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT TRUE PHOTOCOPY OF THE LETTER DATED R6(a) 12/10/2015 ISSUED BY THE HEADMISTRESS** **EXHIBIT TRUE PHOTOCOPY OF THE F.I.R.IN CRIME NO. R6(b) 831/2015 OF THRITHALA POLICE STATION. EXHIBIT TRUE PHOTOCOPY OF THE SUSPENSION ORDER R6(c) NO.1/2015 DATED 14/10/2015 ISSUED BY THIS RESPONDENT** **EXHIBIT TRUE PHOTOCOPY OF THE MEMO OF CHARGES DATED R6(d) 19/10/2015 TOGETHER WITH STATEMENT OF ALLEGATIONS ISSUED BY THIS RESPONDENT TO THE PETITIONER** **EXHIBIT R6(E) TRUE PHOTOCOPY OF THE REPLY DATED 30.11.2015 SUBMITTED BY THE PETITIONER** **EXHIBIT R6(F) TRUE PHOTOCOPY OF THE ORDER NO.F/4283/2015 DATED 27.10.2015 ISSUED BY THE 5TH RESPONDENT A.E.O** **EXHIBIT R6(G) TRUE PHOTOCOPY OF THE ORDER NO.1/2015 DATED 28.10.2015 ISSUED BY THIS RESPONDENT** **EXHIBIT R6(H) TRUE PHOTOCOPY OF THE ENQUIRY REPORT DATED 29.08.2016 ISSUED BY THE 5TH RESPONDENT** **WP(C).No.19414 OF 2019(B)** **11** **A.E.O** **EXHIBIT R6(I) TRUE PHOTOCOPY OF THE SOW CAUSE NOTICE DATED 19.09.2016 ISSUED BY THIS RESPONDENT** **EXHIBIT R6(J) TRUE PHOTOCOPY OF THE REPLY DATED 24.10.2016 ISSUED BY THE PETITIONER'S** **EXHIBIT R6(K) TRUE PHOTOCOPY OF THE CIRCULAR DATED 13.06.2000 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS** **EXHIBIT R6(L) TRUE PHOTOCOPY OF THE CIRCULAR DATED 21.10.2009 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS** **EXHIBIT R6(M) TRUE PHOTOCOPY OF THE CIRCULAR DATED 08.09.2010 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS** **EXHIBIT R6(N) TRUE PHOTOCOPY OF THE CIRCULAR DATED 24.09.2020 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS** **EXHIBIT R6(O) TRUE PHOTOCOPY OF THE MASS MEMORANDUM SUBMITTED BY THE PARENTS AND MEMBERS OF THE P.T.A.** **EXHIBIT R6(P) TRUE PHOTOCOPY OF THE MASS COMPLAINT DATED 16.12.2015 SUBMITTED BY THE PARENTS OF THE STUDENTS** **EXHIBIT R6(Q) TRUE PHOTOCOPY OF THE COMMUNICATION DATED 08.11.2016 ISSUED BY THIS RESPONDENT TO THE D.E.O** **EXHIBIT R6(R) TRUE PHOTOCOPY OF THE LETTER DATED NIL. IN DECEMBER, 2016 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT** **EXHIBIT R6(S) TRUE PHOTOCOPY OF THE LETTER DATED 17.01.2017 ISSUED BY THE 5TH RESPONDENT A.E.O. TO THE 4TH RESPONDENT** **WP(C).No.19414 OF 2019(B)** **12** **EXHIBIT R6(T) TRUE PHOTOCOPY OF THE LETTER DATED 17.03.2017 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT** **EXHIBIT R6(U) TRUE PHOTOCOPY OF THE REPLY DATED 25.03.2017 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT R6(V) TRUE PHOTOCOPY OF THE ORDER NO..K.DIS.B4/4501/16 DATED 17.04.2017 ISSUED BY THE D.E.O** //TRUE COPY// P.A. TO JUDGE