Rajeev Kumar R. v. Director, Vocational Higher Secondary Education, Office of VHSE, Thiruvananthapuram; Assistant Director VHSE Regional Office, Ernakulam Region, Ernakulam; Vandematharam Vocational Higher Secondary School, Veliyanoor P.O., Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934** **WP(C).No. 21640 of 2012 (P) ---------------------------** **PETITIONER(S) :** **---------------------** **RAJEEV KUMAR R., AGED 36 YEARS, OTTAPLAMMOOTTIL, PARIYARAM P.O., ELANTHOOR PATHANAMTHITTA (LABORATORY TECHNICAL ASSISTANT IN MLT VM VHSS, VELIYANNOOR P.O., KOTTAYAM).** **BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **RESPONDENT(S) :** **------------------------** **1. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, OFFICE OF THE VHSE, THIRUVANANTHAPURAM - 695 001.** **2. THE ASSISTANT DIRECTOR VHSE REGIONAL OFFICE, ERNAKULAM REGION, ERNAKULAM - 682 011.** **3. THE MANAGER VANDEMATHARAM VOCATIONAL HIGHER SECONDARY SCHOOL VELIYANOOR P.O., KOTTAYAM-686 638. R1 & R2 BY SRI.M.A.FAYAZ, SR. GOVERNMENT PLEADER** - **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** **WP(C).No. 21640 of 2012 (P)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** |**EXT.P1**|**:**|**COPY OF THE SHOW CAUSE NOTICE DATED 27.12.2010**| |---|---|---| |||**ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P2.**|**:**|**COPY OF THE NOTICE BEARING NO.E3/21545/2011 DATED**| |||**01.12.2011.**| |**EXT.P3.**|**:**|**COPY OF THE ORDER BEARING NO.E3/21345/11 DATED**| |||**23.05.2012 ISSUED BY THE 1ST RESPONDENT TO THE 3RD**| |||**RESPONDENT.**| |**EXT.P4.**|**:**|**COPY OF THE REPRESENTATION DATED 28.06.2012**| |||**SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**| ## **RESPONDENTS EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **AMV** **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.21640 OF 2012 ----------------------------------Dated this the 30[th] day of July, 2014** ## **J U D G M E N T** The petitioner who joined the 3[rd] respondent School as a Laboratory Technical Assistant on 21.11.1994, applied for medical leave for 120 days with effect from 01.09.2010. It is his case in the writ petition that when he returned on 21.12.2010 he was not permitted to rejoin duty by the 3[rd] respondent. It is pointed out that Ext.P1 show cause notice dated 27.12.2010 had been issued to him proposing to initiate disciplinary proceedings against him on grounds inter alia that he had been on unauthorised absence from 31.08.2010. In the writ petition, the petitioner states that although he replied to the show cause notice, no action was forthcoming from the 3[rd] respondent and under those circumstances, he preferred a complaint to the 1[st] respondent. Apparently, based on the said complaint, the 1[st] respondent sought a report from the 3[rd] respondent vide Ext.P2 communication dated 01.12.2011. Pursuant to the report from the 3[rd] respondent, the 1[st] respondent vide Ext.P3 communication dated 23.05.2012 directed the 3[rd] respondent to permit the petitioner to rejoin duty at the School. It was on the allegation that despite Ext.P3 **W.P.(C).No.21640/2012** **2** direction, the 3[rd] respondent had not permitted the petitioner to rejoin duty at the School that the petitioner approached this Court through the present writ petition. 2. In a counter affidavit filed by the 3[rd] respondent, it is pointed out that the petitioner did not apply for leave but was rather on unauthorised absence. It is pointed out that several notices were issued to the petitioner to report back to duty but none of them persuaded the petitioner to actually return to duty. Reference is made to notices dated 17.09.2010 and 08.11.2010 issued to the petitioner in this connection. It is stated that an application for leave was received from the petitioner on 08.11.2010 but the same could not be sanctioned since, as per the Rules, the request for leave had to be given prior to proceeding on leave. It is also averred that no reply to Ext.P1 show cause notice was received from the petitioner and the petitioner, instead of reporting for duty, forwarded an application for leave for the period from 19.12.2010 to 10.02.2011 on 29.01.2011. Under these circumstances, Ext.R3(a) charge memo dated 04.03.2011 was served on the petitioner to which also no reply was forthcoming from the petitioner. Thereafter, it is pointed out, that the 3[rd] respondent wrote to the 1[st] respondent to conduct a formal enquiry in **W.P.(C).No.21640/2012** **3** the matter vide Ext.R3(b) communication dated 06.05.2011. In response to the said communication, the 1[st] respondent directed the 2[nd] respondent to conduct an enquiry and pursuant to that direction, the 2[nd] respondent called the 3[rd] respondent and the Principal to its office on 16.02.2012 for the purposes of taking evidence in the matter. This is evident from Ext.R3(c) communication dated 02.02.2012. 3. It would appear that after 16.02.2012, the date on which the 3[rd] respondent and the Principal were called to the office of the 2[nd] respondent for giving evidence, Ext.P3 communication dated 23.05.2012 was issued by the 1[st] respondent to the 3[rd] respondent suggesting the continuation of disciplinary proceedings against the petitioner while permitting the petitioner to rejoin duty in the meanwhile. The 3[rd] respondent in its counter affidavit has a specific case that no enquiry report, as contemplated under the relevant rules governing disciplinary proceedings against non-teaching staff of aided vocational higher secondary schools, was forwarded to it pursuant to the hearing that was conducted on 16.02.2012. It is also pointed out that under these circumstances it has filed a revision application against Ext.P3 communication of the 1[st] respondent before the **W.P.(C).No.21640/2012** **4** Government and the said revision application is produced as Ext.R3(e) along with the additional affidavit filed by the 3[rd] respondent. 4. In the counter affidavit filed by the 1[st] respondent, it is pointed out that pursuant to the directions issued by the 1[st] respondent, the 2[nd] respondent submitted an enquiry report to the 1[st] respondent and a copy of the said report is produced as Ext.R1(a). The said enquiry report is dated 13.03.2012. It is this report which is relied upon by the 1[st] respondent while issuing the directions in Ext.P3. It is the said report which the 3[rd] respondent denies having received at all, in its counter affidavit. 5. I have heard Adv.Sri.Jacob P. Alex, learned counsel for the petitioner, Sri.Sojan James, learned Government Pleader appearing for respondents 1 and 2 and also Adv.Sri.Benny Gervacis, learned counsel appearing for the 3[rd] respondent. 6. On a consideration of the pleadings in the instant case and the rival submissions, I am constrained to observe that this is a case where the facts, relating to the issuance of a charge memo to the petitioner as also the conduct of the formal enquiry by the 2[nd] **W.P.(C).No.21640/2012** **5** respondent in the matter, were not disclosed in the writ petition while seeking a direction to the 3[rd] respondent to comply with the directions of the 1[st] respondent in Ext.P3 communication. The tenor of the averments in the writ petition suggest that pursuant to Ext.P1 show cause notice dated 27.12.2010, no action was forthcoming from the part of the 3[rd] respondent and under those circumstances, the petitioner was constrained to approach the 1[st] respondent who then proceeded to issue Ext.P3 communication directing the 3[rd] respondent to permit the petitioner to rejoin duty. It was alleging the non-compliance by the 3[rd] respondent of the directions in Ext.P3 that the writ petition came to be filed. The subsequent events after the issuance of Ext.P1 show cause notice namely, the issuance of a charge memo to the petitioner and the proceedings before the 2[nd] respondent wherein the petitioner was also a party, came to light only through the counter affidavit of the 3[rd] respondent. I would think that the nondisclosure of these facts is a serious impediment to the exercise, in favour of the petitioner, of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. It may be useful to refer to the decision of the Honourable Supreme Court in **K.D.Sharma v. Steel Authority of India Limited and Others ((2008) 12 SCC 481** , wherein, the court inter alia held as follows: **W.P.(C).No.21640/2012** **6** “A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of hte court. If the applicant makes a false statement or suppresses any material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiciton rests in the disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of the writ courts and exercise would become impossible. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” ## The Honourable Supreme Court in **Bhaskar Laxman Jadhav and Others v. Karamveer Kakasaheb Wagh ((2013) 11 SCC 531)** , inter alia held as follows: “It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the court. It is not for the court to look into every word of the **W.P.(C).No.21640/2012** **7** pleadings, documents and annexures to fish out a fact. It is for the litigant to come up-front and clean with all material facts and then, on the basis of the submissions made by the learned counsel, leave it to the court to determine whether or not a particular fact is relevant for arriving at a decision.” The decisions of the Honourable Supreme Court referred to above would normally have sufficed for this Court to dismiss the writ petition for the reason that the petitioner had chosen to approach this Court by suppressing material facts. In this case, however, I find that the disciplinary proceedings initiated against the petitioner have reached a stage where the 1[st] respondent had directed the 2[nd] respondent to conduct a formal enquiry in the matter and draw up a report. Although the 1[st] respondent in its counter affidavit has produced Ext.R1(a) dated 13.3.2012 as the said equiry report, a reading of the said document does not show it to be in the nature of a report by a person who is entrusted with the task of drawing up an enquiry report in disciplinary proceedings against a non-teaching staff of a vocational higher secondary school. Ext.R1(a) is more in the nature of a recommendation by the 2[nd] respondent, to the action that could possibly be taken against the charge sheeted employee, by the disciplinary authority. That can at any rate not be the purport of any enquiry report which has to be only a report on the establishment or **W.P.(C).No.21640/2012** **8** otherwise of the charges alleged against an employee after taking into account the evidence that was adduced during the enquiry proceedings. Since the enquiry has now reached the stage where a report has to be drawn up and further proceedings taken by the disciplinary authority based on the said enquiry report, I feel that notwithstanding the reluctance of this Court to grant any relief to the petitioner in these proceedings, it would be in the interest of justice to have the disciplinary proceedings concluded at the earliest so as to put an end to the litigation between the parties. To enable the respondents to proceed with the disciplinary proceedings from the stage at which they presently are, I quash Ext.P3 communication dated 23.05.2012 as also Ext.R1(a) communication dated 13.03.2012. The 2[nd] respondent shall consider the facts on record and evidence taken on 16.02.2012 and then draw up a fresh enquiry report in the matter within a period of one month from today after affording the petitioner and the 3[rd] respondent an opportunity of being heard in the matter. On drawing up the enquiry report in the manner aforesaid, the 2[nd] respondent shall forward the same to the 3[rd] respondent who shall proceed to decide whether it is accepting the enquiry report or not. The 3[rd] respondent shall issue a notice to the petitioner outlining its proposal and call for an explanation from the petitioner with **W.P.(C).No.21640/2012** **9** regard to the proposals in the said notice. Thereafter, the 3[rd] respondent shall take a final decision on the action, if any, to be taken against the petitioner in the disciplinary proceedings already initiated. The petitioner will be free to pursue any remedy, if required, against the final orders to be passed by the 3[rd] respondent in the matter. Considering the delay that has already been occassioned in the matter, the 3[rd] respondent shall complete the proceedings within a period of one month from the date of receipt of the enquiry report from the 2[nd] respondent. Needless to say, it will be in the interests of the petitioner to co-operate with the enquiry proceedings. With these directions, the writ petition is disposed but without any order as to costs. **A.K.JAYASANKARAN NAMBIAR JUDGE** prp