Sathyabhama V.K. v. Manager, Malabar Special Police English Medium High School, Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936** ## **WP(C).No. 26963 of 2009 (M)** **----------------------------** **PETITIONER(S) :-** **------------------** **SATHYABHAMA V.K., AGED 44 YEARS, W/O NANDAKUMAR V.I., 'SREE SAI', MIDDLE HILL MALAPPURAM.** **BY ADVS.DR.GEORGE ABRAHAM SMT.RASHMI RAVINDRAN** **RESPONDENT(S) :-** - **-------------------** **1. THE MANAGER,** - **MALABAR SPECIAL POLICE ENGLISH MEDIUM HIGH SCHOOL MALAPPURAM.** **2. THE DEPUTY COMMANDANT, MALABAR SPECIAL POLICE-CUM-ENQUIRY OFFICER MALAPPURAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.P.C.SASIDHARAN R3 & R4 BY GOVERNMENT PLEADER SRI.SOJAN JAMES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **WP(C).No.26963 of 2009** ## **APPENDIX** Petitioner's Exhibits :- Ext.P1 :- Copy of the experience certificate issued by the Headmaster to the petitioner. Ext.P2 :- Copy of the petition filed before the Human Rights Commission dated 14-4-2008. Ext.P3 :- Copy of the chart give to the students by the 1[st] respondent. Ext.P4 :- Copy of the memo dated 5.4.2008 issued by the 1[st] respondent to the petitioner. Ext.P5 :- Copy of the memo dated 15.9.2008 issued by the 1[st] respondent to the petitioner. Ext.P6 :- Copy of petitioner's reply dated 15.9.2008 to Exhibit P5 memo. Ext.P7 :- Copy of the memo dated 19.9.2008 issued by the 1[st] respondent to the petitioner. Ext.P8 :- Copy of the petitioner's reply dated 29.9.2008. Ext.P9 :- Copy of memo dated 23.3.2009 issued by the 1[st] respondent to the petitioner. Ext.P10 :- Copy of petitioner's reply dated 2.4.2009. Ext.P11 :- Copy of order dated 11.4.2009 of the 1[st] respondent appointing the Enquiry Officer. Ext.P12 :- Copy of memo of charges and statement of allegations dated 11.4.2009. Ext.P13 :- Copy of communication dated 29.4.2009 issued by the Deputy Commandant. Ext.P14 :- Copy of communication dated 13.5.2009 asking the petitioner to appear before the Deputy Commandant for enquiry. Ext.P15 :- Copy of reply dated 8.5.2009 filed by the petitioner. ## **WP(C).No.26963 of 2009** Ext.P16 :- Copy of the reply dated 15.6.2009 submitted by the petitioner. Ext.P17 :- Copy of the show cause notice dated 17.7.2009 issued by the 1[st] respondent. Ext.P18 ;- Copy of petitioner's reply dated 11.8.2009. Ext.P19 :- Copy of order dated 20.8.2009 issued by the 1[st] respondent. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ## **P.D.RAJAN, J.** ## **------------------------------------W.P.(C). No.26963 of 2009 ---------------------------------------Dated this the 7[th] day of August 2014** ## **J U D G M E N T** This writ petition has been filed under Article 226 of the Constitution of India seeking the following reliefs :- - “(i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibits P17 and P19; - (ii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to reinstate the petitioner back into service with consequential benefits; - (iii) to grant such other and further reliefs as this Honourable Court may consider just and proper in the facts and circumstances of the case.” 2. The petitioner is a Music Teacher in the Malabar Special Police English Medium High School, Malappuram, which is under the management of Commandant, Malabar Special Police (hereinafter referred to as 'MSP' for short). The petitioner was appointed as a Music Teacher on 31.10.1991 in the school and she got requisite qualification 'Ganabhushanam' in music. Few police officers attached to the MSP are also working as staff members and one Sub Inspector of Police as Liaison Officer. As there was non-payment of salary by the W.P.(C). No.26963 of 2009 -: 2 :- Management, the petitioner highlighted her grievances before various agencies. At that time, the police officers attached to the school harassed her. Therefore, she was forced to complain before the Human Rights Commission. Aggrieved by that, the Management raised allegations against her and finally took disciplinary action and terminated her from the school on 20.8.2009. 3. Learned counsel appearing for the petitioner contended that, sufficient opportunity was not given to the petitioner for highlighting her grievances before the enquiry officer. The copy of the enquiry report was not supplied to her and the legitimate requirement in a domestic enquiry was not followed by the disciplinary authority. The disciplinary action was taken against her on flimsy grounds, which are disproportionate to the gravity of the allegation in Ext.P12. 4. In the counter affidavit filed by the first and second respondents, it is contended that, the performance of the petitioner as a Music Teacher was not satisfactory. There was complaints from various quarters against her performance and she has the habit of sending false complaints to various W.P.(C). No.26963 of 2009 -: 3 :- authorities, which shows lack of dedication of duties. She has also had the habit of undermining and frowning upon the administrative authorities, which caused hindrances to the smooth functioning of the school. The conduct of the petitioner was quite unbecoming of a teacher and the Parent Teachers Association unanimously requested the Manager to take disciplinary action against the petitioner. Several memos were issued to the petitioner to improve her performance in teaching and to change her attitude towards the school and students. In spite of the repeated memos, she failed to discharge her duties as a teacher and she was not improved. In the circumstances, she was found guilty of misconduct and after detailed enquiry, she was terminated from the service. 5. The Malabar Special Police English Medium School is a recognised unaided school which is under the control of the Commandant, MSP. The Manager of a recognised unaided school shall have the power to appoint persons who possesses prescribed qualification for the respective posts as teaching and non-teaching staff as in Government schools. Whenever vacancy arises, the Manager shall follow the directions issued by the W.P.(C). No.26963 of 2009 -: 4 :- Government from time to time for filling up the vacancy after ascertaining the prescribed qualification. The age limit and relaxation for the appointment applicable to the candidates are same to that of Government school and aided school. Chapter XIV A of the KER deals with the condition of service of teaching and non-teaching staff of recognised unaided school. In Chapter XIV A Rule 3 it is clearly stated that the service of any member of the teaching or non-teaching staff shall not be terminated by the Management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry. Therefore, after the appointment of a teacher in a school, the Manager cannot unanimously terminate a teacher without conducting a proper enquiry. When he conducts an enquiry, it shall be according to the principles of natural justice referred by the Apex Court also. Chapter XIV A deals as follows :- “[ **1.** (1) (Managers of Private Schools shall appoint only candidates who posses the prescribed qualification. As far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instruction with reference to the curricula of studies. Whenever vacancy occurs, the W.P.(C). No.26963 of 2009 -: 5 :- manager shall follow the directions issued by Government from time to time, for ascertaining the availability of qualified hand [and for filling up vacancy]. [ **Note:-** (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules. **Note:-** (2) If there are more than one claimant for appointment as teacher under these categories, preference shall be given in the order of clerks, peons, sweepers and other staff. If there are more than one claimant under a particular category, the order of preference shall be according to the date of their first appointment, if their date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference;] (2) The age limit and the relaxation thereof for appointment applicable to teachers of Government Schools shall apply mutatis mutandis to teachers of aided schools. [The date of determination of age for eligibility for appointment shall be the 1[st] January of the year in which the appointment is to be made. [(3) Subject to Rule 51A, candidates advised by the Kerala Public Service Commission shall be appointed as teachers in Schools managed by local self Government institutions.] [(4) In determining the requirement of subjects, the Director shall also issue such instructions as he may deem necessary for giving protection to teachers :- ## W.P.(C). No.26963 of 2009 -: 6 :- - (i) who are in service and would have continued in service; and - (ii) who stand relieved as per rule 49 or 52 or on account of termination of vacancies and who would have been eligible for appointment under rule 51 A had there been no change in the requirement of subjects.] 6. In this case an enquiry was conducted by the 2[nd] respondent. The first respondent Manager appointed the 2[nd] respondent as the enquiry officer. Exts.P4 and P5 are the memos issued by the first respondent. Ext.P6 is the reply given by the petitioner. Ext.P7 is another memo issued by the first respondent. Ext.P8 is the reply. Ext.P9 is another memo and Ext.P10 is the reply. As per Ext.P11 order, the 2[nd] respondent was appointed as enquiry officer on 11.4.2009. Ext.P12 is the memo of charges and statement of allegations attached thereto issued by the enquiry officer. Exts.P15 and P16 are the reply given by the petitioner. Ext.P17 is the show cause notice. The report of the domestic enquiry was not supplied to the petitioner. Ext.P18 is the copy of the petitioner's reply to the show cause notice. Finally as per Ext.P19 order, the petitioner was terminated by the Commandant. The petitioner has got a right to know about the details of the enquiry. The respondents ## W.P.(C). No.26963 of 2009 -: 7 :- have neither produced a copy of the enquiry report before this Court nor served it to the petitioner. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee (here the petitioner) has the right to receive the copy of the enquiry report before the disciplinary authority arrived its conclusion with regard to the innocence of the employee about the charges levelled against him. This view was taken by the Apex Court in the decision in **Managing Director, ECIL, Hyderabad and others** v. **B. Karunakar and others** [(1993) 4 SCC 727]. It was held in that decision as follows :- “Hence, it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” Therefore, the denial of the enquiry report to the petitioner is violation of the principles of natural justice. W.P.(C). No.26963 of 2009 -: 8 :- 7. Chapter XIV A does not contain any specific provision regarding the procedure for imposing any penalty either minor or major to any member of the teaching or non-teaching staff of recognised unaided school. But Chapter XIV A stipulates that the service of any member of the teaching or non-teaching staff of recognised aided school shall not be terminated by the Management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry. A Division Bench of this Court in **Suter Paul P.V.** v. **The Manager, Sobhana English Medium High School and others** [ILR 2004 (1) KER 168] held as follows :- “Even in the case of aided schools the District Educational Officer gets jurisdiction to take disciplinary proceedings only after intimating the manager about the circumstances requiring such action. Further, any such proceeding can be initiated only if the manager fails to take appropriate action. The power of the officer to conduct any parallel inquiry is not contemplated even in the case of aided school. The position is still worse in the case of recognized unaided schools. Thus it is clear that the District Educational Officer is not vested with any power or authority under the Act or the Rules to conduct an enquiry of his own, especially in a case where the manager of the school had already conducted a domestic enquiry.” 8. In this case, the enquiry officer and the disciplinary W.P.(C). No.26963 of 2009 -: 9 :- authority are two different persons. The petitioner has right to get copy of the enquiry report. Therefore, much prejudice has been caused to the petitioner by not giving a copy of the enquiry report. The punishment imposed by the disciplinary authority was excess and was on flimsy grounds. The role of the enquiry officer and the departmental proceedings was expressed by the Apex Court in **Tewari S.R.** v. **Union of India and another** [2013 KHC 4437]. It was held in that decision as follows :- “The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide : Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police and Others, AIR 1999 SC 677; Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, 2010 (9) SCC 189. Hence, where there is evidence of malpractice, gross irregularity or ## W.P.(C). No.26963 of 2009 ## -: 10 :- illegality, interference is permissible.” Therefore, there is force in the contention advanced by the petitioner that opportunity was not given to her by the Management after conducting the enquiry. 9. Moreover, the petitioner submitted that the grounds raised in Ext.P12 is baseless, which are not sufficient for her termination. In **Suter Paul P.V.'s case** cited supra, this Court held that the parallel enquiry by District Educational Officer is not vested with any power, where the Manager of the Aided School already conducted a domestic enquiry. Here the petitioner raised certain allegations against the Manager and she filed a petition before the Human Rights Commission. Before parting with this judgment, I may observe that, filing of petition before the Human Rights Commission is not a ground for termination from service by the Manager of the Aided School. Moreover, procedure for assessment of the competency of a teacher stated in Ext.P12 is also not correct. 10. In the absence of an enquiry report, I am of the view that the allegations in Ext.P12 are not properly proved, which is liable to be set aside. The disciplinary authority is directed to re- W.P.(C). No.26963 of 2009 -: 11 :- instate the petitioner forthwith with full benefits. She is entitled to get half of the back wages during suspension period since she was not worked during that period. This Writ Petition is disposed of as above. Sd/- **P.D.RAJAN, JUDGE.** Jvt