Ribin K.A. v. District Educational Officer, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933** **WPC.No. 33894 of 2011 (J) -------------------------** **PETITIONER(S):** ## **-------------** **RIBIN K.A.,PHYSICAL EDUCATION TEACHER, DARUL ULOOM VHS AND HS SCHOOL, VEEKSHANAM ROAD, KOCHI 682 018.** **BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.SUNIL V.MOHAMMED** **RESPONDENT(S):** **--------------** **1. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM 682 031.** **2. THE MANAGER, VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY, DARUL ULOOM VHS AND HS SCHOOL, VEEKSHANAM ROAD, KOCHI 682 018.** **3. THE PRINCIPAL, DARUL ULOOM VHS AND HS SCHOOL, VEEKSHANAM ROAD, KOCHI 682 018.** **R1 BY SRI.M.A.FAYAZ, GOVERNMENT PLEADER R2 BY SRI.V.A.MOHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WPC.NO.33894/2011** ## **APPENDIX** |**PETITIONER'S EXHIBITS:**|**PETITIONER'S EXHIBITS:**| |---|---| |**EXT.P1:**|**COPY OF THE APPOINT ORDER DATED 03.08.2007 ISSUED BY THE**| ||**2ND RESPONDENT.**| |**EXT.P2:**|**COPY OF THE SUSPENSION ORDER DATED 29.11.2011 OF THE 2ND**| ||**RESPONDENT.**| |**EXT.P3:**|**COPY OF THE REPRESENTATION DATED 08.12.2011 SUBMITTED BEFORE**| ||**THE 2ND RESPONDENT.**| |**EXT.P4:**|**COPY OF THE APPEAL PETITION DATED 10.12.2011, ALONG WITH ALL**| ||**RELEVANT DOCUMENTS SUBMITTED BEFORE THE 1ST RESPONDENT.**| |**EXT.P5:**|**COPY OF THE REQUEST DATED 14.12.2011 SUBMITTED BEFORE THE**| ||**1ST RESPONDENT.**| |**EXT.P6:**|**COPY OF THE HEARING NOTICE DATED 13.12.2011 ISSUED BY THE PA**| ||**TO THE 1ST RESPONDENT.**| |**EXT.P7:**|**COPY OF THE INTIMATION DATED 15.12.2011 SUBMITTED BEFORE THE**| ||**1ST RESPONDENT.**| |**EXT.P8:**|**COPY OF THE INTIMATION DATED 16.12.2011 SUBMITTED BEFORE THE**| ||**1ST RESPONDENT.**| |**EXT.P9:**|**COPY OF THE EXTENSION ORDER DATED 14.12.2011 OF THE 1ST**| ||**RESPONDENT.**| |**EXT.P10:**|**COPY OF THE EXTENSION ORDER DATED 14.12.2011 OF THE 2ND**| ||**RESPONDENT.**| |**RESPONDENT'S EXHIBITS:**|| |**EXT.R1(A):**|**COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT**| ||**DT.14.12.2011.**| |**EXT.R2(A):**|**COPY OF THE COMPLAINT OF SMT.E.S.RUCKIYA DATED NIL.**| |**EXT.R2(B):**|**COPY OF THE COMPLAINT OF LADIES STAFF SECRETARY AND OTHERS**| ||**DATED 24.6.2011.**| |**EXT.R2(C):**|**COPY OF THE COMPLAINT OF THE PRINCIPAL OF THE SCHOOL DATED**| ||**21.11.2011.**| |**EXT.R2(D):**|**COPY OF THE COMPLAINT OF THE PRINCIPAL OF THE SCHOOL DATED**| ||**28.11.2011.**| |**EXT.R2(E):**|**COPY OF THE LETTER ADDRESSED TO THE DISTRICT EDUCATIONAL**| ||**OFFICER BY THE MANAGER DATED 29.11.2011.**| **AS** **......** ## **WPC.NO. 33894/2011** **EXT.R2(F): COPY OF THE LETTER ADDRESSED TO THE DISTRICT EDUCATIONAL OFFICER BY THE MANAGER DATED 7.12.2011** **EXT.R2(G): COPY O THE ORDER NO. B2-9664/11 OF THE DISTRICT EDUCATIONAL OFFICER DATED 14.12.2011.** **EXT.R2(H): COPY OF THE PROCEEDINGS ORDER NO. M-1/2011 OF THE MANAGER DATED 14.12.2011.** **EXT.R2(I): COPY OF THE COMPLAINT OF THE PRINCIPAL OF THE SCHOOL DATED 30.11.2011.** **EXT.R2(J): COPY OF THE COMPLAINT OF THE PRINCIPAL OF THE SCHOOL DATED 8.12.2011.** **EXT.R2(K): COPY OF THE LETTER ADDRESSED TO THE DEPUTY DIRECTOR OF EDUCATION BY THE MANAGER DATED 12.12.2011.** **EXT.R2(L): COPY OF THE LETTER ADDRESSED TO THE DEPUTY DIRECTOR OF ` EDUCATION BY THE MANAGER DATED 9.12.2011.** **EXT.R2(M): COPY OF THE MEMO OF CHARGES ALONG WITH THE STATEMENT OF ALLEGATIONS DATED 31.12.2011.** ## **/TRUE COPY/** **P.A. TO JUDGE** **AS** ## **T.R.RAMACHANDRAN NAIR, J.** **-------------------------------------------------W.P.(C)No.33894 of 2011** **-------------------------------------------------DATED THIS THE 16[th] DAY OF JANUARY, 2012** ## **JUDGMENT** This Writ Petition was initially filed by the petitioner by challenging Exhibit P2 and P6 orders and thereafter the petitioner has sought to amend the Writ Petition by filing I.A.No.384/2012 by which Exhibit P9 order is also under challenge. 2. The matter in issue is only whether the petitioner is entitled for reinstatement in service in the light of the fact that the District Educational Officer did not pass an order within 15 days as contemplated under Rule 67(8)of Chapter XIV-A KER, granting permission for continued suspension. 3. The petitioner was functioning as a Physical Education Teacher under the 2[nd] respondent-Manager. The order of suspension is dated 29.11.2011, produced as Exhibit P2 herein, which was objected to by him as per Exhibit P3, submitted before the Manager and Exhibit P4 before the District Educational Officer. According to the petitioner, he was served with a notice Exhibit P6 by the Personal Assistant to the District Educational W.P.(C)No.33894/11 -2- Officer proposing to conduct a preliminary enquiry on 14.12.2011 at 3 p.m. The petitioner filed this Writ Petition immediately thereafter pointing out that the period of suspension has expired on 13.12.2011 and till 13.12.2011 educational authorities have not extended the suspension order and therefore in the light of the decision of the Division Bench of this Court in **Manager** , **S.N.V. High School v. State of Kerala (1982 KLT 229)** , no orders can be passed by the District Educational Officer as the 15 days' period is already over. It is also averred in the amended Writ Petition that enquiry itself was completed at 6.p.m. on 14.12.2011 and therefore Exhibit P9 order could not have been passed on 14.12.2011, as now claimed. 4. In the counter affidavit filed by the 2[nd] respondentManager, it is averred that the petitioner was placed under suspension by Exhibit P2 order on the basis of various complaints. The suspension was intimated to the District Educational Officer on the very same day; ie; on 29.11.2011 as per Exhibit R2(e) and the District Educational Officer was also requested to grant extension of sanction of 15 days as per letter dated 7.12.2011, Exhibit R2(f). It is pointed out that a W.P.(C)No.33894/11 -3- preliminary investigation was conducted and the suspension was extended by Exhibit R2(h)order dated 14.12.2011, (Exhibit P9 produced in the amended Writ Petition). 5. The contention raised by the Manager is that 15 days will elapse on 14.12.2011 on which day, the Educational Officer has granted permission for extension of suspension and reliance is placed on Section 12 of the Limitation Act. 6. As far as the stand taken by the Personal Assistant to the District Educational Officer is concerned, it can be seen that the plea raised is that administrative delay had contributed to the delay in passing the order extending the period of suspension by 15 days. It appears that the District Educational Officer was on leave from 22.11.2011 to 13.1.2012. The Personal Assistant had to be given full additional charge and the appropriate authority to give such sanction is the Director of Public Instruction. The application by the Manager for extending the period of suspension was received on 9.12.2011. Since the Personal Assistant to the District Educational Officer was not vested with the full additional charge of the District Educational Officer, he could not consider the application submitted by the Manager. W.P.(C)No.33894/11 -4- Finally, it is stated that the files were placed before the Deputy Director of Education for his orders and approval, who by authorisation dated 13.12.2011 granted permission to pass appropriate orders. It is stated in paragraph No.6 of the counter affidavit filed by the first respondent that thereafter the Officer personally went to the institution and conducted a hearing and passed Exhibit R1(a) order (Exhibit P9). Evidently, the order is dated 14.12.2011. If it is reckoned from 29.11.2011, it is passed only on the 16[th] day. 7. The learned Senior Counsel for the petitioner Shri P.K.Suresh Kumar submitted that herein going by the prescriptions of Rule 67 of Chapter XIV-A KER, the Manager's power to place a teacher under suspension is only for 15 days, which is evident from the proviso to Rule 67(7) of Chapter XIV-A KER and the Educational Officer will have to grant permission for continued suspension beyond the period also within 15 days, after the preliminary investigation. By inviting my attention to the decision of the Division Bench of this Court in **Manager** , **S.N.V. High School v. State of Kerala (1982 KLT 229)** , it is submitted by the learned Senior Counsel for the petitioner that W.P.(C)No.33894/11 -5- this Court was of the view that the provision is mandatory and an authorisation for continuing the suspension will have to be granted within the 15 days itself. It is also submitted that the petitioner has got a case that the order now produced by the respondents was not passed actually on the 14[th] day of the month, as it was impossible for the Personal Assistant to pass an order on that day, as the investigation itself was over only by 6 p.m. on that day. 8. For the present, I need only consider the question whether the order is passed within the 15 days' time. Before going into the contentions, I may refer to the provisions of Rule 67. The proviso to Sub Rule (7) reads as follows: “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.” 9. Going by the same, the Manager can place a teacher under suspension only for a period of 15 days and the continued suspension can be only with the previous sanction of the Deputy Director of Education in the case of Headmasters and of the W.P.(C)No.33894/11 -6- Educational Officer in other cases. The above rule is couched in negative terms and hence it can only be termed as mandatory. As far as the power of the Educational Officer is concerned, going by Rule 67(8) of Chapter XIV-A KER, it is provided that “permission may be given to the Manager to place a teacher under suspension beyond 15 days, if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within the said 15 days.” Therefore the rule itself has directed the authority to pass the order within 15 days. Section 12(2) of the Act also provides for previous sanction for continuing the suspension for a period exceeding 15 days. 10. Normally, going by the well settled propositions of law, if the statute prescribes a particular period during which a public authority is conferred with power to pass an order and the consequences also are not provided and if the order is not passed within the said period, such a provision could be understood as directory only. But, herein by interpreting the provisions of Rule 67(7) and (8), the Division Bench in **Manager** , **S.N.V. High School** v. **State of Kerala (1982 KLT 229)** has held that as far as the Manager's power to suspend is concerned, it is only for W.P.(C)No.33894/11 -7- initial 15 days and the power conferred beyond 15 days is only a regulated power under the statutory provisions and that the order has to be passed by the authority within 15 days which is clear from the following sentence in paragraph No.10 at page 235. “......... It is also significant to note that the order under rule 67(8) has to be passed within the original 15 days, the period during which the Manager has the power to suspend without permission. Any order passed beyond 15 days therefore will not be an order under rule 67(8)....” It has been emphatically held that “ any order passed beyond 15 days therefore will not be an order under Rule 67(8)”. Therefore, there cannot be any quarrel with the proposition that the order granting sanction by the Educational Officer had to be passed within 15 days. 11. In this context, the learned counsel for the Manager Shri Sajjad submitted with the help of Section 12 of the Limitation Act that the first day had to be excluded and if so by excluding 29.11.2011, it can be seen that the order Exhibit P9 is passed on the 15[th] day. W.P.(C)No.33894/11 -8- 12. As far as section 12 of the Limitation Act is concerned, it provides for exclusion of time in legal proceedings, suit, appeal or application. Evidently, the present proceedings will not come within any of those legal proceedings contemplated in Section 12 of the Limitation Act, as it applies only to courts generally. Even though the learned counsel relied upon the decision of a learned Single Judge of this Court in **Sasi v. Devadas (2008(3) KLT 925)** in support of the argument, a reading of the judgment will show that this Court was considering exclusion of the period as far as the execution of a decree is concerned and going by the provisions of the Limitation Act itself Article 136 fixes the period of Limitation for execution of a decree. It was concerning an execution petition filed before the Civil Court. Evidently, the said dictum may not apply to the facts of the case, especially since the Division Bench in **Manager** , **S.N.V. High School's case** (supra) was of the view that the authority will have to pass orders within the 15 days' period and if an order is passed beyond 15 days, it will not be an order under Rule 67(8) of Chapter XIV-A KER. The decision of the Division Bench in **State of Kerala** v. **Jayasree (2004(2) KLT 98)** relied on by the W.P.(C)No.33894/11 -9- learned counsel for the Manager interpreted the relevant rule under Rule 12(2) of Chapter XXIII of KER, wherein in respect of the time limit fixed for passing an order by the Deputy Director with regard to staff fixation, this Court held that it is only directory and not mandatory. The same also will not help the petitioner in the light of the wording in the proviso to Rule 67(7) and Rule 67(8) read along with Section 12(2) of the Kerala Education Act and going by the dictum laid down by the Division Bench in **Manager** , **S.N.V. High School v. State of Kerala** ( **1982 KLT 229)** . The last of the decisions relied on is **State of Himachal Pradesh** v. **Himachal Techno Engineers (2010(3) KLT 575)(SC)** , which considered the applicability of Section 12 of the Limitation Act in relation to an application under Section 34 of the Arbitration and Conciliation Act, 1996, filed before the High Court. This case also will not help the argument of the learned counsel. 13. Therefore, evidently, the order is passed on the 16[th] day and if the order had to be passed within the 15[th] day, it cannot be treated as an order under Rule 67(8). 14. As far as the object and purpose of these provisions W.P.(C)No.33894/11 -10- are concerned, the learned Senior Counsel for the petitioner submitted that a retrospective suspension cannot be made which aspect has been considered by the Division Bench of this Court itself in another decision in **Sadasivan Pillai v. State of Kerala (1976 KLT 323)** while interpreting the provisions of Civil Services (Classification, Control and Appeal)Rules. 15. Apart from that the provisions herein provide a protection to the teacher concerned and that evidently was the object by providing 15 days period within which the Educational Officer will have to conduct a preliminary investigation and grant or refuse permission for continued suspension. Mark the words 'previous sanction' in the proviso to Rule 67(7) and Section 12(2) of the Kerala Education Act. Therefore, even though the consequences for non-compliance is not provided in the Rule, going by the dictum laid down in **Manager** , **S.N.V. High School** 's case (supra), the order passed beyond 15 days cannot be reckoned as one issued in time with the power under Rule 67 (8) of Chapter XIV-A KER. As such, the order will be without jurisdiction amounting to a nullity in the eye of law. 16. If that be so, Exhibit P9 order cannot survive. In that W.P.(C)No.33894/11 -11- view of the matter I am not going into the contentions raised by the learned Senior Counsel for the petitioner that the order itself was passed on a later day, as it was impossible for the Personal Assistant to pass an order on 14.1.2012 itself. Therefore the Writ Petition is allowed. Exhibit P9 is quashed. Consequently, the petitioner will have to be reinstated in service. Appropriate orders will be passed within one week from today. No costs. ## Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)** dsn