Saji Varghese v. Secretary to the General Education Department (B), Government of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 WP(C).No. 26915 of 2004 (D) ---------------------------- PETITIONER(S): ------------- SAJI VARGHESE HEADMISTRESS (UNDER SUSPENSION),M.I.S.M.U.P.SCHOOL, PENGAD KUNDIL PARAMBA, KANNAMMANGALAM WEST P.O.,, (VIA) A.R.NAGAR, RESIDING AT HAFZA QUARTERS,, KUNNUMPURAM, KUTTOOR NORTH P.O., (VIA) A.R.NAGAR,, MALAPPURAM DIST. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SMT.AMMU CHARLES RESPONDENT(S): -------------- 1. THE SECRETARY TO THE GENERALE EDUCATION DEPT (B) DEPARTMENT, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA, MALAPPURAM DISTRICT. 4. THE MANAGER, M.I.S.M.U.P. SCHOOL, PENGAD KUNIL PARAMBA,, VENGARA SUB DISTRICT, MALAPPURAM DIST. R,R4 BY ADV. SRI.V.A.MUHAMMED R,R2 & 3 BY ADV. GOVERNMENT PLEADER SRI S JAMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2016, ALONG WITH WPC. 16733/2009, WPC. 19182/2009, WPC. 10919/2010, WPC. 17485/2012, THE COURT ON 08.04.2016 DELIVERED THE FOLLOWING: WPC NO.26915/2004 ::2:: ## APPENDIX ## PETITIONERS EXHIBITS: EXT.P1: TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DT 15.4.2004 EXT.P2: TRUE COPY OF THE PROCEEDINGS OF THE D.E.O. DT 26.4.2004 EXT.P3: TRUE COPY OF THE COMMUNICATION DT 28.4.2004 OF THE 4TH RESPONDENT EXT.P4: TRUE COPY OF THE ARGUMENT NOTES FILED BY THE PETITIONER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION EXT.P5: TRUE COPY OF THE COMMUNICATION DT 18.6.2004 FROM THE GOVERNMENT TO THE 3RD RESPONDENT EXT.P6: TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS DT 10.8.2014 EXT.P7: TRUE COPY OF THE ORDER DT 19.10.2004 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS EXT.P8: TRUE COPY OF THE PROCEEDINGS DT 8.11.2004 ## RESPONDENTS EXHIBITS: EXT.R4(a): TRUE COPY OF THE REQUEST OF THE PTA EXT.R4(b): TRUE COPY OF THE ...DO...DO EXT.R4(c): TRUE COPY OF THE PETITION FILED BEFORE THE DY.S.P OF POLICE, VIGILANCE EXT.R4(d): TRUE COPY OF THE AUDIT REPORT EXT.R4(e): TRUE COPY OF THE SHOW CAUSE NOTICE EXT.R4(f): TRUE COPY OF THE DETAILED NOTE OF THE MANAGER EXT.R4(g): TRUE COPY OF THE PETITION FILED BY THE MANAGER EXT.R4(h): TRUE COPY OF THE COMPLAINTS OF THE PARENTS EXT.R4(i): TRUE COPY OF THE REPORT OF THE DY. DIRECTOR EXT.R4(j): TRUE COPY OF THE MEMO OF CHARGES WITH STATEMENT OF ALLEGATIONS WPC NO.26915/2004 ::3:: EXT.R4(k): TRUE COPY OF THE EXPLANATION OF THE PETITIONER EXT.R4(l): TRUE COPY OF THE ADDL. MEMO OF CHARGES EXT.R4(m): TRUE COPY OF THE JUDGMENT IN W.A. NO. 754/1983 EXT.R4(n): TRUE COPY OF THE ORDER NO. 9465/04 OF THE DY. DIRECTOR EXT.R4(o): TRUE COPY of the PROCEEDINGS NO. EST.1/04 TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) Nos.26915 of 2004-D, 16733 of 2009-J, 19182 of 2009-P 10919 of 2010-L & 17485 of 2012-I - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08[th] day of April, 2016 ## J U D G M E N T A disciplinary proceeding initiated by the Manager against the Headmistress('H.M',hereinafter) of an aided School has given rise to the aforesaid writ petitions and numerous others which have been filed at each stage of such proceeding. To get an understanding of the facts, reference to each of the writ petitions would have to be made, which is done in the chronological order. 2. WP(C) No.26915 of 2004 was filed, challenging Ext.P5 order of the Government and seeking reinstatement in service. The proceedings were commenced with Ext.P1 dated 15.04.2004, wherein the petitioner was suspended for 15 days, pending disciplinary action. The misconducts alleged were of WPC.No.26915/2004 & connected cases : Page numbers :: serious irregularities in financial transactions conducted by the H.M. The Manager sought for extension of suspension beyond the period of 15 days, which was rejected by Ext.P2 dated 26.04.2004. The Assistant Educational Officer (hereinafter 'AEO') directed reinstatement by Ext. P2. 3. The petitioner sought for reinstatement in service, which was rejected by the Manager as per Ext.P3 dated 28.04.2004, contending that a revision has been filed before the Government. In the revision filed the Government issued Ext.P5 order dated 18.06.2004. The said order directed that Ext.P2 order of the AEO would be kept in abeyance. The said order was challenged on the ground that the Government had no such powers to interfere with the statutory functions of the Officers as empowered under the Kerala Educational Rules, 1959 (KER, for brevity). The revision filed was then transmitted to the Director of Public Instructions (DPI, WPC.No.26915/2004 & connected cases : Page numbers :: hereinafter) after issuing Ext.P5 order. 4. After Ext.P5, the DPI passed Ext.P6 remanding the matter to the Deputy Director of Education (DDE, hereinafter). The petitioner filed the above writ petition challenging Ext.P5 order of the Government and Ext.P6 order of the DPI. Ext.P6 order of the DPI did not consider the matter as such, but however remanded the matter for fresh consideration. The DDE by Ext.P7 dated 19.10.2004, sanctioned the continuance of the suspension, which was ordered by the Manager by Ext.P8. 5. The Manager filed a detailed Counter Affidavit, in which he produced Ext.R4(j) dated 12.10.2004, the Memo of Charges with statement of allegations. An additional Memo of charges was also issued by Ext.R4(L) dated 08.11.2004. The order of the DDE dated 19.10.2004, extending the period of suspension of the petitioner, was produced as Ext.R4(n). This WPC.No.26915/2004 & connected cases : Page numbers :: led to the petitioner seeking for an amendment of the writ petition. The order passed by the DDE obviously was by virtue of the remand made by the DPI at Ext.P6. The petitioner hence challenged that order, producing it as Ext.P7, in the writ petition. The petitioner also filed an explanation dated 25.10.2004 to the Memo of Charges which was produced as Ext.R4(k). The further proceedings of the Manager at Ext.P8 dated 08.11.2004, again keeping the petitioner under suspension, was also challenged. 6. The prayer in W.P(C) No.26915/2004 is that the suspension having been extended beyond 15 days, without approval from the educational authority as provided under Rule 67(8) of Chapter XIV of KER, the petitioner was entitled to be re-instated after expiry of 15 days. The petitioner having not been so reinstated by the Manager it was incumbent upon the Manager to make good the pay and allowances due to the WPC.No.26915/2004 & connected cases : Page numbers :: petitioner during the said period. The learned Senior counsel appearing for the petitioner also relies on 2014(3) KLT 678 (Vedanayakam v. Government of Kerala) to buttress the above contention. 7. The Manager also filed a Counter Affidavit dated 13.01.2005, to the amendment petition, producing the explanation submitted by the petitioner as Ext.R4(p). The Manager, having considered the explanation, requested the Assistant Educational Officer to conduct a formal enquiry by Ext.R4(q) dated 01.12.2004. The further proceedings were again brought on record by the Manager by two additional Counter Affidavits dated 21.10.2005 and 08.08.2006, respectively. Ext.R4(r) dated 17.08.2005 was the report of the AEO Vengara. It was found that the queries on audit ought to have been answered by the H.M and only on the audit party considering such objections could any proceedings be taken, if WPC.No.26915/2004 & connected cases : Page numbers :: at all. With respect to the allegations in paragraph 1 to 5 of the memo of charges, based on the queries on audit, wherein remedial measures could be taken, it was found that the allegations were premature. It was clearly found that no malpractice, as of then, on the part of the HM was detected. However, it was also noticed that the records of the school were not kept properly and there is a need for a proper examination of the records of the school by the educational officers which has not been conducted over the years. 8. After the Enquiry Report, this Court in W.P. (C) 26915 of 2004 passed an interim order dated 25.10.2005 directing reinstatement as H.M and the same was complied with by the Manager on 27.10.2005. The Manager, by way of Ext.R4(s), filed a revision petition before the Government to set aside the enquiry report. The Government in the revision of the Manager, against the enquiry report of the AEO directed WPC.No.26915/2004 & connected cases : Page numbers :: fresh enquiry to be conducted by the DDE as per letter no:s 57536/B1/05/GE dated 22.10.2005 and 3538/P1/m.Edn. Dated 16.11.05 (as seen from Ext.P9 in W.P.(C)19182 0f 2009; the documents in which are now referred to, unless specified otherwise). The Deputy Director hence conducted denovo enquiry and filed report as evidenced from Ext.P9 dated nil. The denovo enquiry was ordered by the Government in the revision filed by the Manager, on a direction issued in W.P.(C) 14476 of 2006. The H.M filed a review against the judgment in W.P.(C)14476 of 2006, contending that she was not heard. The review petition was rejected since the revision itself was pending; as is seen from ExtP1 in W.P.(C)16733 of 2009. 9. Subsequently the revision of the Manager against the order of the AEO, stood allowed as per Ext.P10 dated 23.10.2007 ( W.P.(C)19182 of 2009), directing conclusion of enquiry. Following Ext.P10 the Manager issued Ext.P11 WPC.No.26915/2004 & connected cases : Page numbers :: show cause notice based on the enquiry report of the DDE, threatening removal from service. Ext. P10 was challenged by the teacher in W.P.(C)33698 of 2007, which was concluded by Ext.P12 judgment dated 19.09.2008. This Court found that the remand to conclude the disciplinary proceedings was without specifying as to which report is to be followed i.e: the report of the AEO dated 17.08.2005 or the report of the DEO dated nil. Ext P10 was set aside and the revision was directed to be considered afresh. The consideration was so made and orders passed as per G.O(Rt) No.2075/2009/G.Edn dated 28.05.2009. The said order was challenged by the Manager in WP(C)No. 19182/2009 (Ext.P14) and by the teacher in WP(C)No. 16733/2009 (Ext.P7). In fact the consideration of the challenge to the said order would have brought a quietus to the issue, but as fate would have it the same remained here all these years. WPC.No.26915/2004 & connected cases : Page numbers :: 10. As of then there were two reports of enquiry, one by the AEO, initially exonerating the petitioner and the other by the DDE, as per the interim order of the government, in the revision filed by the Manager against the Enquiry Report of the AEO. The revision filed by the Manager was rejected and the Government by order dated 28.05.2009, directed conclusion of proceedings by the Manager on the basis of the report of the AEO. This order is challenged by both the teacher and the Manager, which writ petition numbers are 16733 of 2009 and 19182 of 2009. The teacher had also been continued in the meanwhile as per the interim order issued in W.P. (C) 26915 of 2004 as a H.M. Itself. The Manager did not then proceed with the first charge sheet. 11. The further facts are available from the next writ petition filed by the teacher, WP(C) No.10919/2010, the documents in which are hereinafter referred unless specified WPC.No.26915/2004 & connected cases : Page numbers :: otherwise. Ext.P8 is an order of reinstatement issued by the Manager on 20.08.2009. A reading of Ext.P1 would indicate that after the order of the Government dated 28.05.2009, the Manager suspended the teacher by an order dated 22.07.2009 for a period of 15 days (Ext.R1(a). On the same day, the memo of charges and allegations were also issued (Ext.R1(b). The AEO refused to extend the period of suspension beyond 15 days by order dated 05.08.2009 (Ext.R1(f)). A revision was filed by the Manager against the said order and WP(C) 22672/2009 was filed before this Court to expedite the revision. The writ petition was disposed of directing the Government to pass orders upon the revision after hearing the parties. This was by judgment dated 10.08.2009 (Ext.R1(j). AEO's order refusing continuance of suspension was kept in abeyance and this Court directed that if the delinquent accepts the posting as Teacher (as distinguished with H.M.) then, the Manager would issue appropriate orders. It was WPC.No.26915/2004 & connected cases : Page numbers :: hence Ext.P1 order was issued reinstating the suspended H.M as a Teacher in the service of the school. This was admittedly refused to be accepted by the teacher, since she claimed appointment as H.M. After that in the revision Ext.R1(f) was stayed by Ext.R1(k) dated 30.09.2009. 12. Writ Appeal filed by the teacher against the judgment dated 10.06.2009 in WP(C)No. 22672/2009 was allowed by Ext.P2 judgment dated 26.08.2009. By Ext.P2, the Division Bench found that the writ petition was filed even before the revision reached the Government. The Manager having filed a revision before the Government, it was held that this Court ought not to have entertained the writ petition under Article 226 especially since there could have been no finding that the Government had delayed the consideration of the revision. 13. The teacher had also approached this Court in WPC.No.26915/2004 & connected cases : Page numbers :: WP(C) 28473/2009 challenging the suspension ordered by the Manager dated 22.07.2009. The teacher contended that since the AEO had refused extension of suspension, the teacher should be reinstated in service. An interim order dated 30.10.2009 was passed in the said writ petition which is extracted in Ext.P3 judgment. By the interim order, the registers specified, which were said to be in the custody of the teacher, when she was suspended from the post of H.M., were directed to be handed over to the AEO. This was since the Manager had raised a contention that despite the suspension, the teacher was refusing to hand over the said registers. The direction to keep the registers with the AEO was only on account of the teacher's contention that there would be manipulation by the Manager if it is handed over to him. The interim order did not specifically direct the reinstatement of the teacher but however, kept open the contention of the teacher WPC.No.26915/2004 & connected cases : Page numbers :: that; the AEO having refused continuance of suspension, there would be a legal fiction under Rule 67(8) of chapter XIVA of KER deeming the petitioner to have been continued in service. Even before that the order of reinstatement was stayed by Ext.R1(k). 14. W.P(C) 28473/2009 itself was disposed of by Ext.P3 judgment dated 28.01.2010. Therein there was a further direction to the 2[nd] respondent, the AEO to complete the enquiry in the disciplinary proceedings initiated against the petitioner. It was also directed that the petitioner would be given adequate opportunity to defend herself in the enquiry and the report was directed to be transmitted to the 3[rd] respondent within one week from completion of enquiry. The Manager was also directed to conclude the proceedings within another month. Herein it is to be noticed that the enquiry contemplated in Ext.P3, is with respect to the suspension and WPC.No.26915/2004 & connected cases : Page numbers :: memo of charges, both dated 22.07.2009, which are produced as Ext. R1(a) and R1(b) in the counter affidavit of the Manager. This is with respect to fresh charges and not a continuance of the earlier proceeding, though there is similarity in charges which will be noticed shortly. 15. Pursuant to directions in Ext.P3, the AEO submitted Ext.P4 report upon which Ext.P5 show cause notice dated 09.03.2010 was issued by the Manager proposing the punishment of compulsory retirement. The Government had also disposed of the revision filed by the Manager, against the order of reinstatement, in compliance of the judgment in WPC 22672/2009. As was noticed earlier, Ext.P2 judgment of the Division Bench set aside the judgment of the learned Single Judge in WPC No.22672/2009. Hence there was no direction to be complied. But the disposal of the revision cannot be found fault with, since the Division Bench reversed the judgment of WPC.No.26915/2004 & connected cases : Page numbers :: the Single Judge only on the ground that the writ petition was not maintainable at that point of time. The revision was disposed of by Ext.P8 order of the Government dated 29.05.2010. The Manager was directed to complete the proceedings as per the enquiry report of the AEO, which enquiry report is in pursuance to Ext. P3 judgment in WP(C) No.28473/2009. It caused no interference to the order of reinstatement made at Ext.R1(f). The Manager proposed punishment of compulsory retirement on the basis of the AEO's report on the second charge sheet as per order dated 18.03.2010 which is produced as Ext.P5. 16. The latest writ petition is WP(C) No.17485/2012 which agitate the issues with respect to the punishment proposed by the Manager and the subsequent proceedings. Ext.P1 is the writ appeal filed by the teacher against the order of the learned Single Judge directing continuance of her WPC.No.26915/2004 & connected cases : Page numbers :: suspension. As was noticed; earlier in the Writ Appeal, the Division Bench set aside the judgment in the writ petition. The revision directed to be considered was concluded by Ext.P3 order dated 29.05.2010 (challenged as Ext.P8 in WP(C) No. 10919/2010). Ext.P3 did not interfere with the revocation of suspension, but merely directed the Manager to finalise the disciplinary proceedings. Even prior to Ext.P2, ie., by order dated 18.03.2010 the Manager proposed a punishment of compulsory retirement from service. The order of the Manager was approved by the DEO as per Ext.P2 dated 29.03.2010. The above order was based on the enquiry report of the AEO dated 08.03.2010. Hence even before the decision of the Government in the revision of the Manager, against reinstatement, the enquiry proceedings were finalised. 17. The teacher had filed a revision to the Government against the enquiry report of the AEO, which WPC.No.26915/2004 & connected cases : Page numbers :: was disposed of by Ext.P4. The revision challenged the enquiry report dated 08.03.2010 of the AEO, which was set aside. The order passed by the Government (Ext.P4) referred to the memo dated 09.03.2010 of the Manager proposing punishment of compulsory retirement and DEO's proceedings dated 29.03.2010. The Government by Ext.P4 found that the enquiry was not proper and the evidence produced by the teacher was not considered. The DDE, Malappuram was authorised to conduct a detailed enquiry in the matter and submit report to the Government with specific recommendation within a month. Ext.P1 revision petition was hence disposed of. The procedure adopted by the Government in Ext.P4 is wrong, since if the revision was disposed of, the report could not have been directed to be made to the Government, since it becomes functus officio. Further on the enquiry report of the AEO being set aside all consequential WPC.No.26915/2004 & connected cases : Page numbers :: action by the Manager and the Educational Authority would automatically be set aside. The DDE is said to have conducted such an enquiry and forwarded the same by Ext.R6(u) dated 26.08.2011 to the Government based on which Ext.P7 order was passed affirming the order of compulsory retirement. Findings &Conclusions: 18. It is to be emphasised that there are two proceedings, which is the subject matter of challenge in the above writ petitions. The first initiated on audit queries being raised and the H.M. suspended as per order dated 15.04.2004 and issued with memo of charges and additional memo dated 12.10.2004 & 8.11.2004; which in the course of proceedings resulted in two enquiry reports, one by the AEO and the other by the DEO. The said proceedings reached up to the revisionary stage, the numerous intervening proceedings in which are also referred to. The initiation of proceedings with ## WPC.No.26915/2004 & connected cases : Page numbers :: the suspension was challenged in WP(C)Nos.26915 of 2004. The revision concluded with order G.O(Rt) No.2075/2009/G.Edn dated 28.05.2009 challenged by the Manager in WP(C)No. 19182/2009 and by the teacher in WP(C) No. 16733/2009. These three writ petitions deal with that first proceeding. The second proceeding commenced with suspension and charge sheet, both dated 22.07.2009, with which W.P. (C)10919 of 2010 & 17485 of 2012 are concerned. 20. W.P.(C) No.10919 of 2010 challenged Ext.P8 order passed in the revision filed by the Manager against the order of reinstatement, refusing to continue the suspension of the teacher effected on 22.07.2009. The impugned order directed finalisation of the proceedings on the basis of the AEO's Enquiry Report dated 08.03.2010, Ext.P4, on the second charge sheet dated 22.07.2009. The said order though, in effect upheld the claim of the teacher for reinstatement, was WPC.No.26915/2004 & connected cases : Page numbers :: challenged on the apprehension that the further direction to complete the proceedings would prejudice her. This was also on the misapprehension that the two proceedings were the one and the same. W.P. (C)17485 of 2012 challenged the order of the Government in the revision filed by the H.M against the Enquiry Report of the AEO dated 08.03.2010; by which the order of compulsory retirement was affirmed. 20. Pausing here for a moment, an examination of the charges in the two distinct proceedings and the reports are to be made. Ext.R4(j) in WP(C) No.26915/2004 lists out the said allegations. The first allegation was with respect to the audit report of the AEO covering the period between 1.1.1989 and 21.12.2003; wherein specific queries were raised and no steps were taken by the H.M to rectify the defects. The second allegation was with respect to the President of the PTA having raised allegations against the H.M. The 3[rd] charge was refusal WPC.No.26915/2004 & connected cases : Page numbers :: of the petitioner to handover the charge to the next senior, on the H.M being suspended. The 4[th] charge was the removal of papers from the school after the suspension. The 5[th] charge was with respect to the direction of the Manager to handover the audit report of the AEO to the teacher-in-charge. An additional memo of charges dated 08.11.2004 was also issued to the petitioner which is produced as Ext.R4(l). The allegations there were: (i) misappropriation of Government money, (ii) acting in a manner detrimental to the interest of the school and its pupils, (iii) the objections on audit for the period between 1.1.1989 to 21.12.2003 not having been replied, (iv) the audit having revealed misappropriation of public money and creation of records to make bogus claims, (v) refusal to handover records to the next senior, on suspension, thus inhibiting the rectification of defects pointed out in audit and (vi) no action having been taken to rectify the objections WPC.No.26915/2004 & connected cases : Page numbers :: in audit report. 21. The 2[nd] charge sheet issued is found as Ext.R1(b) in W.P(C) No.10919/2010, which refer to the following charges: (i) misappropriation of Rs.1,679/- from the school Library fund, (ii) diversion of Rs.313/- from the Laboratory fund, (iii) misappropriation of Rs.3,064/- from the school game fund,(iv) misappropriation of Rs.13,425/- which was received on auction of items used in the school games,(v) misappropriation of Rs.2,912.80 from the Sanjaika fund, (vi) destruction of Sanjaika Pass Books and related documents,(vii) inclusion of students studying Urdu as Arabic students in the year 2008-09 and (viii) having caused loss of name to the school. 22. The report of the DDE enclosed along with Ext.R6(4) communication indicates that the amounts alleged to have been misappropriated from the library fund and laboratory fund relating to 26.03.2000, was directed to be WPC.No.26915/2004 & connected cases : Page numbers :: refunded. With respect to Games Fund relating to 28.04.2003, the finding was that the expenditure was in excess of the permissible limit and hence the excess has to be remitted back. The allegations of misappropriation of auction amounts was found to be not proved. However the auction having been conducted without following the procedure, the amounts that would have been fetched, minus the amount that was actually received was directed to be refunded. The allegations with respect to Sanjaika fund also relates to 31.03.2004. The destruction of records could not be found and the allegation of Urdu students having been shown as Arabic students was found to have created no difference in the divisions. The charges at 1 to 4 were found to have been admitted. The fifth charge was found to be condonable on the teacher remitting the money. The charges at 6 to 8 were found to be not serious in nature. WPC.No.26915/2004 & connected cases : Page numbers :: 23. It is evident that when earlier the allegations were raised on the basis of queries in audit, the second charge sheet was based on specific instances of short fall of amounts found from the records which had been earlier pointed out in audit. The earlier proceeding was not concluded after the order of the government in revision challenged by the Manager and the H.M in W.P.(C) 19182 & 16733 of 2009. The other proceeding ended in compulsory retirement. 24. Even with respect to the second proceeding, it has to be stated that the procedure adopted by the Government was highly improper and both the reports, ie: of the AEO dated 08.03.2010 and that of the DDE dated 28.12.2011, were without following the procedure for conduct of enquiry as delineated in Seetharam Upper Primary School Vs State of Kerala 2012 (2) KLT 338. 25. The challenge in W.P.(C) 26915 of 2004 is WPC.No.26915/2004 & connected cases : Page numbers :: against the suspension of the petitioner without sanction from the educational authority. Vedanayakom (supra) categorically held that the power of the Manager under sub-rule (8) of Rule 67 is circumscribed and a suspension beyond 15 days can be made only on sanction issued by the educational authority. It was also held that if the educational authority had directed reinstatement and it is not done, the teacher shall be deemed to have continued on duty from the date of the order; with the liability to pay and allowances during the said period, falling on the Manager. Herein the petitioner was suspended on 15.04.2004 and the AEO's order of reinstatement was on 25.04.2004. However the suspension was of a H.M and under Rule 67 (8) of the KER, the enquiry to be carried on and the decision to continue the delinquent on suspension or to reinstate is to be taken by the DDE and not the AEO. The Manager had also challenged the order of the AEO, in revision WPC.No.26915/2004 & connected cases : Page numbers :: ## before the Government. 26. The Government too, in the revision, passed an interim order as seen at Ext.P5, keeping the order in abeyance. The said order cannot be said to be an interference in the statutory function of the AEO, since against the order of the AEO, under Rule 67(8) only a revision under Rule 92 of Chapter XIVA would be maintainable. The further contention is with respect to the action of the Government in transmitting the revision to the DPI and the DPI making an order of remand. The revisional authority under Rule 92 definitely is to be exercised by the Government and the Manager had rightly challenged the order of the AEO before the Government. Rule 92 (1)(c), confers power on the Government to remit the case to the original authority or to any other authority directing further action or enquiry. Hence the action of the government in having transmitted the revision to the WPC.No.26915/2004 & connected cases : Page numbers :: DPI, who is an authority above the one who passed the original order cannot be faulted. 27. The DPI's order of remand also cannot be faulted since the authority under Rule 67 (8) to consider the suspension of the petitioner, a H.M., is the DDE and not the AEO. The DDE had considered the issue and issued Ext.P7 directing the petitioner to be kept under suspension and also to expedite the enquiry proceedings. The Manager then kept the petitioner under suspension by Ext.P8, as provided in Chapter XIVA. The writ petition would have been devoid of merit, if the disciplinary proceedings had been concluded with a punishment. 28. As was noticed herein above, the various proceedings with respect to the first memo of charges issued as per Ext.R4(j) (WPC No.26915/2004) concluded finally in the orders impugned in W.P(C) No.19182/2009 and 16733/2009. WPC.No.26915/2004 & connected cases : Page numbers :: There the Government order impugned, specifically directed that the report of the AEO has to be considered in finally concluding the proceedings. The report of the AEO had exonerated the H.M. and the exoneration was on the ground that the entire allegations raised were based on audit queries. Even if the Manager had concluded the proceedings, going by the binding precedent in Cherian Vs. Anna S. Varghese 1987 (1) KLT 301. There could have been no punishment imposed. The Government order dated dated 25.08.2009 found that the Manager could differ from the findings of the Enquiry Officer, which goes against the dictum laid down in Cherian (supra). 29. The Manager and Teacher had both challenged the order dated 25.08.2009. The challenge raised by the teacher was on the sole apprehension that the said order would result in a denovo enquiry; which the order did not contemplate. The teachers challenge hence would have to be WPC.No.26915/2004 & connected cases : Page numbers :: dismissed as unnecessary. But the Managers writ petition has to be allowed in view of the judgment of the Division Bench of this Court in Cherian (supra), on the short ground that the finding of the Government that the Manager could differ from the findings at the enquiry conducted by the Educational Authority cannot be sustained. Even if the said writ petition is allowed then the matter would have to be remanded for fresh consideration, which at this point is superfluous since, the H.M admittedly retired on 31.05.2013. On remand, if the impugned enquiry is set aside, then also there could be no further direction issued for continuance of the enquiry proceedings. 30. Looking at the first charge sheet and the proceedings thereon, it is to be noticed that the Manager had kept the teacher in suspension and though initially reinstatement was ordered subsequently the suspension was allowed to be continued. The order of reinstatement was dated WPC.No.26915/2004 & connected cases : Page numbers :: 26.04.2004 and it was stayed by the Government in the revision on 18.06.2004. The HM continued on suspension and after the report of the AEO she was reinstated in service on 27.10.2005, on orders issued by this Court in W.P.(C) 26915 of 2004. 31. The revisional order of the Government which was challenged in WP(C) No.19182/2009 by the Manager and W.P(C) No.16733/2009 by the teacher directed finalisation of enquiry proceedings as per the report of the AEO. As per the report of the AEO, the HM could only have been exonerated of all the charges. On a consideration of the facts, as has been looked into by this Court, and the law applicable, this Court is inclined to favourably consider the challenge of the Manager to the order of the Government bearing No. G.O(Rt) No.2075/2009/G.Edn. Dated 28.05.2009 produced as Ext.P14 in W.P(C) No.19182/2009. But that will be of no consequence since now no enquiry proceedings cannot be carried out WPC.No.26915/2004 & connected cases : Page numbers :: denovo for reason of the teacher having retired long back. In the context of W.P(C) No.19182/2009 having been allowed, W.P(C) No.16733/2009 challenging the very same G.O. would have to be dismissed as infructuous. This would lead to exoneration of the H.M of the charges levelled, by the Memo Of Charges dated 12.10.2004 and the Additional Memo of Charges dated 08-11-2004 and the entire suspension period between 15.04.2005 to 17.10.2005,when the HM was reinstated in service as per the order of this Court in W.P(C) No.26915/2004 would have to be treated as period spend on duty and the Government would pay the entire pay and allowances for the said period. The Government would also be entitled to recover from the Manager the pay and allowances between 26.04.2004 the date of reinstatement ordered by the AEO and 18.06.2004 when the Government stayed the order of reinstatement in revision. W.P(C) WPC.No.26915/2004 & connected cases : Page numbers :: No.26915/2004 would be allowed with the above directions. 32. The 2[nd] charge sheet initiated on 22.07.2009 and the proceedings therein were concluded by the Government in a haphazard manner. The AEO had conducted an enquiry which is produced as Ext.R6(a) in W.P(C) No.17485/2012. A reading of Ext.R6(a) would indicate that there were no witnesses examined or documents marked. The conclusion arrived at are also not based on any evidence adduced at a proper enquiry, affording the delinquent to properly defend as the charges and proffer her evidence in objection, contemplated in Seetharam U.P.S.(supra) . The said report was set aside by Ext.P4 dated 10.10.2004. After finding that a denovo enquiry had to be conducted, the Government directed the DDE to conduct a fresh enquiry and file a report before the government; which is not a permissible exercise. 33. On setting aside the enquiry by the AEO the WPC.No.26915/2004 & connected cases : Page numbers :: Government could have definitely authorised a separate officer to conduct the enquiry but even then, the proposal of punishment issued by the Manager on the basis of the enquiry report of the AEO and the approval of the educational authority, would stand set aside. When Ext.P4 is issued setting aside the enquiry report of the AEO dated 08.03.2010, as a consequence the proposal of the Manager for compulsory retirement and approval granted by the DEO by order dated 29.03.2010 (Ext.P2) and Ext.R6(r) final order of the Manager dated 03.04.2010 imposing the punishment of compulsory retirement also would stand set aside. All the aforementioned orders are prior to Ext.P4 dated 10.10.2011. 34. The procedure adopted by the Government in calling for a report by the DDE in a revision disposed of, is irregular and is alien to the provisions of the KER. The Government also is seen to have relied on such report of the WPC.No.26915/2004 & connected cases : Page numbers :: DDE to pass Ext.P7 order affirming the punishment of compulsory retirement, imposed as per the report of the AEO, which stood set aside in revision. When the AEO's enquiry report is set aside the consequential order of punishment by the Manager also would stand set aside. 35. There is no question of affirming the revision on the basis of a subsequent enquiry conducted which is not contemplated under the provisions of the KER. The Government has only itself to blame for such irregular procedure adopted. In such circumstance, the petitioner would be entitled to be treated as as on duty from 22.07.2009. The H.M had challenged the suspension and by Ext.P3 judgment in WP(C) No.28473/2009 her right to claim reinstatement as an HM from the date on which the Manager was directed to reinstate her, was reserved. Hence the H.M has to be deemed to be reinstated as HM from 22.07.2009. The ## WPC.No.26915/2004 & connected cases : Page numbers :: petitioners suspension beyond the 15 days period was not sanctioned as per Ext. R1(f). In such circumstance the Manager ought to have reinstated the petitioner. The petitioner is then deemed to have been reinstated in service. Then the liability of salary and allowances for the period when the petitioner was illegally kept out of service, against the orders of the educational authority would be that of the Manager. The liability to salary and allowances, of the petitioner, deeming her to be H.M between 05.08.2009 (15 days from 22.07.2009) to 30.09.2009 (the date of Ext.R1(k) in W.P(C) No.10919/2010; interim order in revision) will be that of the Manager. 36. The petitioner has also retired and there is no reason why the matter should be remanded for consideration. In such circumstance, the petitioner in WP(C) No.17485/2012 and W.P(C) No.10919/2010 would be deemed to have been WPC.No.26915/2004 & connected cases : Page numbers :: continued as HM from 22.07.2009 and would also be deemed to have retired as an H.M on the date of her superannuation. The salary and allowances for the period would paid by the Government and that between 05.08.2009 to 30.09.2009, would be recovered from the Manager. The additional 7[th] respondent who is said to have been appointed in the vacancy of the teacher who was promoted to the vacancy of the H.M would be entitled to be approved only from the date of retirement of the petitioner herein. W.P(C)Nos.26915/2004, 19182 of 2009, 10919 of 2010, 17485 of 2012 are allowed with the above declarations and observations. W.P(C) No. 16733 of 2009 is dismissed as infructuous. No Costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge