S. Veena v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** ## **WP(C).No. 34842 of 2005 (W)** **----------------------------** **PETITIONER:** - **------------------** **S.VEENA, U.P.SCHOOL ASSISTANT, E.V.U.P.S., THONNAKKAL, RESIDING AT GENGOTHRI POTHENCODE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.J.HARIKUMAR SRI.VENGANOOR.K.CHANDRASEKHARAN NAIR SRI.HARIKUMAR.S.** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY GENERAL EDUCATION (H) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, O/O.THE D.P.I., JAGATHY, THIRUVANANTHAPURAM.** ## **3. DEPUTY DIRECTOR OF EDUCATION,** ## **KILLIPPALAM, THIRUVANANTHAPURAM.** ## **4. MANAGER,** **E.V.U.P.S., THONNAKKAL, THIRUVANANTHAPURAM.** **BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR BY GOVERNMENT PLEADER SMT. SUNITHA VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 34842 of 2005 (W)** ## **APPENDIX** |**PETITIONER'S**|**EXHIBITS :-**|**EXHIBITS :-**| |---|---|---| |**-----------------------------------**||| |**EXT.P1**|**-**|**COPY OF THE NOTICE DATED 25.11.1998 OF THE AEO,**| |||**KANIYAPURAM.**| |**EXT.P2**|**-**|**COPY OF THE COMPLAINT DATED 12.08.1998 OF**| |||**SMT. SARASWATHY AMMA, ADDRESSED TO THE 2ND**| |||**RESPONDENT.**| |**EXT.P3**|**-**|**COPY OF THE NOTICE DATED 28.05.1999 OF THE 2ND**| |||**RESPONDENT.**| |**EXT.P4**|**-**|**COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER**| |||**DATED 07.06.1999.**| |**EXT.P5**|**-**|**COPY OF THE NOTICE DATED 01.02.2000 OF THE 4TH**| |||**RESPONDENT.**| |**EXT.P6**|**-**|**COPY OF THE ORDER OF THE 3RD RESPONDENT DATED**| |||**01.01.2000.**| |**EXT.P7**|**-**|**COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER**| |||**DATED 14.01.2000.**| |**EXT.P8**|**-**|**COPY OF THE ORDER NO.I2.5014/1999 DATED 17.06.2003 OF**| |||**THE 3RD RESPONDENT.**| |**EXT.P9**|**-**|**COPY OF THE MEMORANDUM OF REVISION SUBMITTED BY**| |||**THE PETITIONER TO THE 1ST RESPONDENT DATED 07.02.2005.**| |**EXT.P10**|**-**|**COPY OF THE NOTICE DATED 13.05.2005 OF THE 1ST**| |||**RESPONDENT.**| |**EXT.P11**|**-**|**COPY OF G.O.(RT) NO.5316/05 GEN. EDN. DATED 14.11.2005.**| |**RESPONDENTS'**||**EXHIBITS:- NIL**| |**---------------------------------------**||| ## **//TRUE COPY//** ## **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.34842 of 2005-W ---------------------------------Dated this the 15[th] day of February, 2016** ## **JUDGMENT** The petitioner is concerned with Ext.P8 order, which was modified in appeal and then confirmed in revision at Ext.P11. The modified order is not produced. The petitioner was proceeded against under Section 12A of the Kerala Education Act, 1958 on account of an incident, in which one of the students lost one of his eyes. The petitioner along with other Teachers, were found to have been negligent. 2. The proposal of punishment, as is indicated at Ext.P8, was to deduct amounts _W.P(C). No.34842 of 2005-W_ **2** equal to two increments from the petitioner's salary and pay the injured student for five years. However, in the operative portion of Ext.P8, it was recorded as barring of two increments cumulatively. Admittedly, the same was challenged before the Director of Public Instructions, in which an order was passed bearing No.B1/38771/04 dated 16.11.2004. There, the modification made was for deduction of one increment, but again the punishment indicated in the operative portion was barring of the increment with cumulative effect. 3. It is clear that, by Ext.P8 what was intended was that the student, who was injured should be compensated. There was no barring of increment proposed. Two increments were directed to be deducted from the petitioner's _W.P(C). No.34842 of 2005-W_ **3** salary and paid to the injured student for five years. The modification made would make the deduction to be one increment from the petitioner's salary for five years, so as to compensate the injured student. There being no barring of increment as such, in the punishment proposed, there could be no cumulative effect granted to such punishment. The petitioner, even according to the proposal, would be granted increments, but however in the petitioners payslip one increment would be deducted and paid to the injured student for five years. 4. Be that as it may, it is also to be looked into as to whether the educational authority has the power to pass an order as indicated in Ext.P8, and impose a compensatory _W.P(C). No.34842 of 2005-W_ **4** penalty. Ext.P8 is said to be necessitated, since the Manager did not comply with Ext.P6 order. Ext.P6 was a direction to the Manager to take appropriate action against the erring responsible teachers. Hence obviously the power invoked by the Educational Authority is under Section 12A of the Kerala Education Act. Definitely, the educational authority would have the power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified under the rules made under this Act, if the Manager refuses to comply with a legitimate direction to that end. However, that does not clothe the educational authority, with any power to deviate from the procedure prescribed under Chapter XIV A of KER to take _W.P(C). No.34842 of 2005-W_ **5** disciplinary proceedings against the erring teacher. 5. It has been held by the Hon'ble Supreme Court in **Kulwant Singh Gill v. State of Punjab [1991 Supp (1) SCC 504]** that the punishment of cumulative effect to barring of increments would be a major penalty. Ext.P8 though does not impose the punishment of barring of two increments, makes the deduction of one increment cumulative in the operative portion. Though the same has been modified to one increment, therein also, cumulative effect was made. In taking proceedings under Rule 75 of Chapter XIV A of KER definitely a procedure has to be followed, coupled with the compliance of principles of natural justice to pin the responsibility on the delinquent teacher, in _W.P(C). No.34842 of 2005-W_ **6** which the teacher is participated and allowed to proffer her defense to the full extent. Obviously the same was not done. 6. Even if, as held by this Court, no cumulative effect can be made and the order is confined to the deduction of one increment from the teachers salary for a period of five years, the same cannot be upheld since there can be no penalty imposed in the manner in which such amounts of penalty would be used a compensation to a student. The educational authority does not have any such power to grant compensation. At best if a compensation has been awarded by a competent Court and the Government is mulcted with such liability, recovery can be made under Rule 72 of Chapter XIV A. Which is also not the procedure _W.P(C). No.34842 of 2005-W_ **7** resorted to in the aforesaid case. 7. It is also an admitted fact that there is a suit filed by the minor student's parents which has ended in a decree against the Manager and with no liability cast on the petitioner herein or against the Government, who were also made defendants in the above case. The said decree is said to have been confirmed in appeal and a second appeal is pending before this Court. If at all any such loss is caused to the Government, the Government would have to take appropriate proceedings if the same is mulcted on the Government and even then proper proceedings under Chapter XIV A would have to be resorted to. As of now, the Act and Rules does not at all provide for an order as passed in Ext.P8. _W.P(C). No.34842 of 2005-W_ **8** In such circumstance, Ext.P8 would stand set aside so would the order passed by the DPI bearing No. V-1/79380/2004 dated 23.03.2005 and Ext.P11. The teacher shall be restored with the increment and shall be paid the entire balance amounts of pay and allowances, within a period of three months from the date of receipt of a certified copy of this judgment. Writ petition is allowed. No costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/18/02/16