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

**WP(C) NO. 7334 OF 2015** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** ## **WP(C) NO. 7334 OF 2015** ## **PETITIONER/S:** SATHYABHAMA V.K. AGED 50 YEARS W/O.NANDAKUMAR VT, ' SREESAI', MIDDLE HILL, MALAPPURAM BY ADV DR.GEORGE ABRAHAM ## **RESPONDENT/S:** 1 THE MANAGER MALABAR SPECIAL POLICE ENGLISH MEDIUM HIGH SCHOOL, MALAPPURAM 676505 2 THE DEPUTY COMMANDANT MALABAR SPECIAL POLICE CUM ENQUIRY OFFICER, MALAPPURAM 676505 3 THE DISTRICT EDUCATIONAL OFFICER MALAPPURAM 676505 4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 BY ADVS. SRI.P.C.SASIDHARAN GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI BIJOY CHANDRAN, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 7334 OF 2015** **2** ## **P.V.KUNHIKRISHNAN, J.** **--------------------------------------W.P.(C) No.7334 of 2015 -----------------------------------------------Dated this the 6[th] day of February, 2024.** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: ( _i) To issue a writ of certiorari or any other appropriate writ, order or direction to quash Exts.P17 and P23._ _(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 Hon’ble Court may consider just and proper in the facts and circumstances of the case._ 2. The Malabar Special Police English Medium High School is an unaided recognized school governed by the provisions of the Kerala Education Act and Rules. The school is run by the Commandant, Malabar Special Police, Malappuram. The Police Officers attached to the Commandant are also working as other staff members of the school. According to the **WP(C) NO. 7334 OF 2015 3** petitioner, she was not given salary as per the statutory provisions of KER and also not in accordance with the orders issued by the Government, which are applicable to the unaided school. The petitioner and other similarly situated persons voiced their grievances at various levels, is the submission. 3. According to the petitioner, even though the employer’s contribution to the Provident Fund was also deducted from the salaries of the employees, it is not credited to their accounts. There is also harassment from the Police Officers and hence, the petitioner along with others filed a complaint before the Human Rights Commission against the harassment meted out by the Police Officers. Ext.P2 is the petition filed before the Human Rights Commission. According to the petitioner, she is also a signatory to Ext.P2. Based on the complaint filed by the petitioner and others, the Human Rights Commission visited the school and enquired into the matter and found that the allegations raised by the teachers are true and cautioned the Senior Police Officers, is the submission. This annoyed the 1[st] respondent very much and **WP(C) NO. 7334 OF 2015** **4** therefore, he wanted to terminate the service of the petitioner for no reason, is the further submission. 4. According to the petitioner, the 1[st] respondent introduced a new system by which the respondents asked the students to give an evaluation of the teachers by marking in a printed paper. Ext.P3 is the chart. At the same time, when this violation of the procedure was objected by the public at large, the 1[st] respondent was unable to take any further steps in this regard. But a memo was issued to the petitioner, as evident from Ext.P4. Petitioner submitted her reply and it is stated that the matter was not proceeded thereafter. 5. Later on 15.9.2008, another memo was issued to the petitioner stating that the petitioner was neglecting her duties and disobeying the orders of the Headmaster. Ext.P5 is the memo. Ext.P6 is the reply submitted by the petitioner. Thereafter, Ext.P7 memo was issued to the petitioner stating that in the general body meeting of the school, the petitioner has raised false allegations against the management. The petitioner filed a reply to Ext.P7 memo, as evident from **WP(C) NO. 7334 OF 2015** **5** Ext.P8. After receipt of Ext.P8 explanation, there was no response for a long. But Ext.P9 memo was received on 23.3.2009, is the submission. Petitioner submitted a reply to Ext.P9, as evident from Ext.P10. But the 1[st] respondent proceeded further with Ext.P9 memo as per Ext.P11 order, is the submission. 6. Accordingly, the Deputy Commandant Sri.U.Sharafali was appointed as the Enquiry Officer. Ext.P12 is the memo of charges and statement of allegations. According to the petitioner, the memo of charges was given by the Deputy Commandant and not the Manager. The same was annexed with a communication dated 29.4.2009 and is evident from Ext.P13, is the submission. According to the petitioner, the Enquiry Officer has no authority or sanctity to issue the memo of charges. As per Ext.P14, the petitioner was directed to appear at the office of the Deputy Commandant on 16.5.2009. Petitioner submitted Ext.P15 reply. Without perusing the reply filed by the petitioner, an enquiry officer was appointed and enquiry was ordered is the submission. Against the enquiry, **WP(C) NO. 7334 OF 2015** **6** the petitioner filed Ext.P16 reply. It is submitted that the enquiry officer without permitting the petitioner to peruse the records or without permitting the petitioner to adduce the evidence submitted an enquiry report on 07.07.2009, which was not given to the petitioner. Based on the enquiry report, a show cause notice was issued as evident by Ext.P17. The petitioner submitted Ext.P18 reply. Thereafter, the petitioner was terminated from service as per Ext.P19. According to the petitioner, the enquiry is not conducted in a proper manner and there is procedural violation. The termination order was challenged before this Court by filing W.P.(C) No. 26963/2009. This Court as per Ext.P20 set aside the termination order and directed to reinstate the petitioner with half back wages. The respondent challenged the judgment by filing a writ appeal and this Court slightly modified the direction given by the Single Judge. But it is ordered to reinstate the petitioner back into service. Ext.P21 is the judgment in the writ appeal. Accordingly, the petitioner was reinstated by the Manager. Thereafter, based on the direction given by this Court, a **WP(C) NO. 7334 OF 2015 7** hearing was conducted wherein the petitioner submitted a detailed hearing note as evident by Ext.P22 is the submission. Thereafter, without considering the contention raised by the petitioner, Ext.P23 termination order is served to the petitioner is the submission. Aggrieved by the same, this writ petition is filed. 7. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 8. This Court perused Ext.P23 order. Originally, this Court interfered in the matter as per Exts.P20 and P21 judgments. This Court directed to give sufficient opportunity to the petitioner. Thereafter, directed to take a fresh decision. Accordingly, the matter was reconsidered in tune with the directions of this Court and thereafter passed Ext.P23. I see no reason to interfere with the above order. Moreover, the 1[st] respondent is an unaided school, ofcourse recognized by the Government and governed by the provisions of the Kerala Educational Act and Rules. This Court considered the scope of the jurisdiction under Article 226 of the Constitution of India in _**Gireesh G. and anr. v. State of Kerala and others**_ [2020 KHC **WP(C) NO. 7334 OF 2015** **8** 289] and observed that the employment of the petitioners in that case by CIAL or the termination of their services do not involve any public element. The relevant paragraph is extracted hereunder : 35. “The next question is whether a writ petition would lie under Article 226 of the Constitution of India. It is seen that CIAL does not have any statutory duty to be performed. Going by the dicta laid down in the judgments of the Apex Court inPraga Tool Corporation's case, Binny's case, SCERT's case, Jatyapal Singh's case, IBPS' case, K.K.Saksena's case, Ramakrishna Missions' case etc (supra), no direction can be issued to enforce any personal contracts. The employment of the petitioners by CIAL or the termination of their services do not invovle any public element. Therefore it cannot also be said that a writ petition would lie against it under Article 226 of the Constitution of India. In the light of the finding on the preliminary objection in favour of the respondents, I do not find it necessary to go into the merits of the case. It is made clear that petitioners would be free to approach the appropriate forum. As the petitioners were prosecuting the matter before this Court, the delay in approaching any forum on account of the pendency of the Writ Petition shall not stand in the way of entertaining their grievances.” ## 9. Similarly, in _**St.Mary's Education Society &**_ ## _**anr. v. Rajendra Prasad Bhargava & Ors.**_ [2022 LiveLaw (SC) **WP(C) NO. 7334 OF 2015** **9** 708], the Apex Court considered the matter in detail. The relevant paragraph is extracted hereunder : _68. “We may sum up our final conclusions as under:_ _(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public._ _(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element._ **WP(C) NO. 7334 OF 2015** **10** _(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.”_ 10. The Division Bench of this Court in _**Binny Ltd.and anr. V. Sadasivan and others**_ [2005 KHC 1303] also considered the question regarding the scope of Article 226 of the Constitution of India. The relevant paragraph is extracted hereunder : _“29. Thus, it can be seen that a writ of mandamus or the_ **WP(C) NO. 7334 OF 2015** **11** _remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies.”_ 11. In the light of the above principle laid down by this Court and the Apex Court, I am of the considered opinion that the jurisdiction of this Court to interfere with Ext.P23 is very limited. I see no reason to interfere with Ext.P23. After **WP(C) NO. 7334 OF 2015** **12** Ext.P20 & P21 judgments, the respondents considered the matter in detail and thereafter, Ext.P23 order is passed. There is nothing to interfere with the same. Therefore, this writ petition is devoid of any merit and the same is dismissed. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** smv SKS **WP(C) NO. 7334 OF 2015** **13** ## **APPENDIX OF WP(C) 7334/2015** PETITIONER EXHIBITS P1:TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY TEH HEAD MASTER TO THE PETITIONER P2:TRUE COPY OF THE PETITION FILED BEFORE THE HUMAN RIGHTRS COMMISSION DATED 14.04.2008 P3:TRUE COPY OF THE CHART GIVE TO THE STUDENTS BY THE 1ST RESPONDENT P4:TRUE COPY OF THE MEMO DATED 05.04.2008 ISSUED BY THE 1ST RESPONDENT TOT THE PETITIONER P5:TRUE COPY OF THE MEMO DATED 15.09.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER P6:TRUE COPY OF THE PETITIONER'S REPLY DATED 15.09.2008 TO EXHIBIT P5 MEMO P7:TRUE COPY OF THE MEMO DATED 19.09.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER P8:TRUE COPY OF THE PETITIONER'S REPLY DATED 29.09.2008 P9:TRUE COPY OF MEMO DATED 23.03.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER P10:TRUE COPY OF PETITIONER'S REPLY DATED 02.04.2009 P11:TRUE COPY OF ORDER DATED 11.04.2009 OF THE 1ST RESPONDENT APPOINTING THE ENQUIRY **WP(C) NO. 7334 OF 2015** **14** OFFICER P12:TRUE COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED 11.04.009 P13:TRUE COPY OF COMMUNICATION DATED 29.04.2009 ISSUED BY THE DEPUTY COMMANDANT P14:TRUE COPY OF COMMUICATION DATED 13.05.2009 ASKING THE PETITIONER TO APPEAR BEFORE THE DEPUTY COMMANDANT FOR ENQUIRY P15:TRUE COPY OF REPLY DATED 08.5.2009 FILED BY THE PETITIONER P16:TRUE COPY OF THE REPLY 15.06.2009 SUBMITTED BY THE PETITIONER P17:TRUE COPY OF THE SHOW CAUSE NOTICE DATED 17.07.2009 ISSUED BY THE 1ST RESPONDENT P18:TRUE COPY OF PETITIONER'S REPLY DATED 11.08.2009 P19:TRUE COPY OF ORDER DATED 20.08.2009 ISSUED BY THE 1ST RESPONDENT P20:TRUE COPY OF JUDGMENT IN WPC.NO.26963 OF 2009 P21:TRUE COPY OF THE JUDGMENT IN WPC NO. 1616/2014 P22:TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER P23:COPY OF THE ORDER OF TERMINATION ISSUED TO THE PETITIONER