Shiny T. Juster v. Corporate Manager Office of the Corporate Manager, RC Schools, Arch Bishop's House, Vellayambalam, Thiruvananthapuram and Respondents 2-4

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935 WP(C).No. 30 of 2012 (C) ------------------------- PETITIONER: ----------- SHINY T.JUSTER AGED 40 YEARS 'DHYAN DALE', TC 46/28, ASWATHY GARDENS AMBALATHARA , THIRUVANANTHAPURAM. BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENTS: ------------- 1. CORPORATE MANAGER OFFICE OF THE CORPORATE MANAGER, R.C.SCHOOLS ARCHBISHOP'S HOUSE, VELLAYAMBALAM THIRUVANANTHAPURAM 695 003. 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001. 3. ASSISTANT EDUCATIONAL OFFICER THIRUVANANTHAPURAM 695 001. 4. THE HEADMISTRESS HOLY CROSS LOWER PRIMARY SCHOOL, PALAPPOR THIRUVANANTHAPURAM. R1 BY ADV. SRI.M.V.THAMBAN R1 BY ADV. SRI.R.REJI R BY ADV. GOVERNMENT PLEADER R BY PUBLIC PROSECUTOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1204-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.C.NO.30 OF 2012** ## PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE LEAVE APPLICATION DATED 10/12/2010 EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 3/6/2010 OF THE GOVERNMENT. EXHIBIT P3 A TRUE COPY OF THE REPLY FILED BY THE PETITIONER EXHIBIT P4 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25/1/2011 ALONG WITH THE COVERING LETTER DATED 25/1/2011 OF THE FIRST RESPONDENT EXHIBIT P5 A TRUE COPY OF THE REPLY DATED 5/2/2011 FILED BY THE PETITIONER EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 31/5/2011 OF THE FIRST RESPONDENT EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 2/5/2011 OF THE ASSISTANT EDUCATIONAL OFFICER. ## RESPONDENTS' EXHIBITS EXT.R1(a): TRUE COPY OF THE LETTER NO.224/10 DT.01/10/2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.R1(b): TRUE COPY OF THE POSTAL COVER SHOWING THE RETURN OF POSTAL ARTICLE SENT IN THE POSTAL ADDRESS OF THE PETITIONER ABROAD. EXT.R1(C): TRUE COPY OF THE POSTAL COVER SHOWING THE RETURN OF POSTAL ARTICLE SENT IN THE RESIDENTIAL ADDRESS OF THE PETITIONER. EXT.R1(d): TRUE COPY OF THE LETTER NO.C 404/2010 DT.07/01/2011. TRUE COPY PA TO JUDGE ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.30 of 2012 ---------------------------------------- Dated this the 12[th] day of April 2013 ## **J U D G M E N T** The petitioner challenges Exts.P2, P6 and P7. Ext.P2 is the direction issued by the Government to take disciplinary action against the petitioner on account of the petitioner having availed leave from 01/04/2010 to 31/05/2010 without the leave being sanctioned by the Government. Ext.P6 is the order dismissing the petitioner from service in terms of Rule 65 of Chapter XIVA of Kerala Education Rules (KER). Ext.P7 is the letter issued by the Assistant Educational Officer informing the Corporate Manager sanctioning the termination of service in terms of Rule 74 of Chapter XIV A. 2. The facts involved in the case would disclose that the petitioner joined service in the School managed by the 1[st] respondent on 06/06/2003. She requested for leave for two years from 01/04/2010 to 31/05/2012. It is stated that the leave was recommended by the Head Master as well as W.P.C.No.30/2012 2 the Assistant Educational Officer, but before the leave was sanctioned by the Government, the petitioner had to go abroad. Later, as per Ext.P2, the leave application of the petitioner stood rejected by the Government. 3. The complaint of the petitioner is that when a memo of charges was issued, she had given a reply at Ext.P3 and without conducting any further enquiry in terms with Rule 75 of Chapter XIVA of KER, a decision was taken by the Manager to terminate the service of the petitioner. Ext.P4 is the show cause notice issued without conducting any enquiry. The petitioner submitted Ext.P5 to the Corporate Manager requesting for dropping the proceedings. But without any further consideration, the petitioner was dismissed from service as per Ext.P6. 4. The contention of the petitioner is that while imposing a major punishment, the respondents have not followed the procedure prescribed under Rule 75 of Chapter XIVA of KER. That apart, while imposing the penalty, prior W.P.C.No.30/2012 3 sanction is required from the District Educational Officer which is lacking in this case. Exts.P6 and P7 would show that the sanction is given by the Assistant Educational Officer on instructions from the Deputy Director. Another contention raised is that the Management cannot impose an order of termination with effect from 15/4/2010 as there cannot be a retrospective dismissal from service. 5. The learned counsel for the petitioner also relied upon the judgment in **Elsy P.Oomman v. State of Kerala** _[2011(1) KLT 491]_ to indicate that even in respect of a teacher who could be terminated if she is continuously absent for a period of five years in terms of Rule 56(4) this Court has held that, still an enquiry has to be conducted, in terms of Rule 75. Reliance is also placed on the judgment of this Court in **Parappuram M.P.Co-op.Society v. Dy.Director, Dept. of D.D.** _[1999(1) KLT 121]_ to contend for the position that dismissal with retrospective effect can W.P.C.No.30/2012 4 be ordered only if it is provided in the KER. The contention is that in so far as no such provision is available in the KER, the petitioner cannot be terminated with retrospective effect. It is the argument of the learned counsel for the petitioner that the leave of the petitioner was recommended by the manager as well as the educational authorities and since there was delay in obtaining sanction from the Government, she had to leave India and therefore, for such an absence from duty, punishment imposed is grossly disproportionate to the proved charges. 6. The 1[st] respondent has filed counter affidavit inter alia contending that no enquiry was conducted in the matter as the petitioner admitted the allegation in the memo of charges and therefore there was nothing to be enquired into. Still further, it is contended that even assuming for the sake of argument that the petitioner has valid contentions, all such contentions could have considered by the appellate authority under Rule 88 of Chapter XIV A of KER. It is also W.P.C.No.30/2012 5 contended that after the proceedings were initiated against the petitioner, she was given an opportunity to report for duty as per Ext.R1(a). Having not availed of that remedy, the management had no other option other than to terminate the service of the petitioner. It is also contended that the sanction given by the Assistant Educational Officer is based on directions issued by the Deputy Director and therefore the sanction is valid in law. 7. Counter affidavit is filed by the 2[nd] respondent supporting the stand taken by the management and also contending that a formal enquiry was not required as the petitioner admitted the charges. 8. Heard learned counsel for the petitioner, learned counsel appearing for the respondents and the learned Government Pleader. 9. In regard to the maintainability of the writ petition, it is not disputed that if an appellate remedy is available the party has to exhaust the said remedy, before approaching W.P.C.No.30/2012 6 this Court. Learned counsel for the petitioner relies upon the judgment of the Supreme Court in **Satwati Deswal v. State of Haryana and Others** _[(2010) 1 SCC 126]_ to contend for the position that when there is violation of principles of natural justice, the High Court should exercise the jurisdiction to interfere in the matter rather than relegating the parties to the alternate remedy available under the statute. That apart, it is contended that the Government had, while rejecting the application, directed the management and the educational authorities to take action against the petitioner. This, according to the learned counsel for the petitioner is a dictation by the Government and therefore there is no point in approaching the appellate authority. This contention of the petitioner appears to be justifiable. Though Rule 88 gives substantial powers to the appellate authority to consider the appeal on merits including the allegation of violation of natural justice, still when it is brought to the notice of this Court that there was W.P.C.No.30/2012 7 a direction by the Government to take disciplinary action against a person who had gone abroad without the sanction of the Government, apparently it could be assumed that the educational authorities may not take a different view in the matter. Such being the situation, I am of the view that the writ petition is to be considered on merits by this court. 10. Coming to the allegation regarding violation of natural justice, it could be seen that the petitioner had while answering the memo of charges issued at Ext.P3 indicated the special circumstances under which she had to go abroad. But she admits that she had gone abroad without the leave being sanctioned by the Government. But, she requested that a humanitarian approach may be taken in the matter and the memo of charges should be dropped. It seems that, on receipt of Ext.P3, the management called upon the petitioner to report for duty within a period of two weeks as per Ext.R1(a) and since she did not join duty, according to the Management, they have proceeded further W.P.C.No.30/2012 8 and then imposed the punishment after getting sanction from the educational authority. Rule 75(1)(a) of Chapter XIV A of KER reads as under: _**75. Procedure for imposing major penalties:-** (1) (a) Whenever a complaint is received or on intimation from the authorised Officer as per Section 12(a) is recorded or on consideration of the report of investigation or for other reasons the manager is satisfied that there is prima facie case for taking action against the teacher definite charge or charges shall be framed and communicated to him with the statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The teacher shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defence and also to state whether he desires to be heard in person. The teacher may on his request be permitted to peruse or take extracts from the records pertaining to_ W.P.C.No.30/2012 9 _the case for the purpose of preparing the written statement; provided the manager may, for reasons to be recorded in writing refuse him such access if in his opinion such records are not strictly relevant to the case or it is not essential in Public interest to allow such access._ _After the written statement is received within the time allowed, the manager may if he is satisfied that a formal enquiry should be held into the conduct of the teacher, order that a formal enquiry may be conducted.”_ On a perusal of the Rule, it could be seen that after receiving the written statement within the time limit, the manager has to satisfy himself that a formal enquiry should be held into the conduct of the teacher, and in that event he can order such an enquiry to be conducted. No doubt, the enquiry is to be conducted by the educational authorities. In this case, admittedly, no such enquiry was conducted. According to the Management, it is on account of the fact that there was W.P.C.No.30/2012 10 no dispute regarding the allegations raised. But it is relevant to note that in Ext.P3, a request was made by the petitioner to withdraw the charges against her and there was a reason stated as to why she had to go abroad. In a case where a major punishment is proposed like that of dismissal it is always better for the management and for the parties concerned to conduct a proper enquiry through the educational authority. No doubt, at the relevant time, the petitioner was not in India. She has come back only after about two years. But the contention raised is about not conducting an enquiry into the matter at the request of the petitioner in so far as she was not in a position to contest the matter especially when the Management had approved the grant of leave to the petitioner. Ultimately, it was the Government who did not sanction the leave. 11. Such being the situation, I am of the view that it would only have been proper if a formal enquiry in this regard have been conducted by the Management before W.P.C.No.30/2012 11 imposing major punishment like dismissal from service. In **Elsy P.Oomman** (Supra) even in a case where no enquiry was required to be conducted as per Rules to terminate a teacher under Rule 56(4) of Chapter XIV A of KER, a learned Single Judge of this Court came to an opinion that it would be proper if the procedure as contemplated under Rule 75 of Chapter XIV A of KER is followed. Having regard to the said finding by the learned Single Judge, I am also of the view that the Management ought to have conducted a formal enquiry before imposing a major punishment like dismissal from service. 12. Coming to the next contention regarding violation of Rule 74 of Chapter XIVA of KER, it is apparent from the materials on record that the District Educational Officer had not given any previous sanction for removing the petitioner from service. Ext.P7 is issued by the Assistant Educational Officer and it is stated that it is issued as per the directions issued by the Deputy Director of Education. A contention is W.P.C.No.30/2012 12 raised that the Deputy Director of Education is the superior authority to District Educational Officer. That might be correct. When the statute prescribes that previous sanction is to be given by an authority, the said authority alone has to give previous sanction and not the authority superior to him. Going by Rule 74 the manager could not have imposed a punishment without the “previous sanction” of the District Educational Officer. 13. Having regard to these findings, I am of the view that the proceedings initiated against the petitioner is absolutely illegal and accordingly Exts.P6 and P7 are liable to be quashed. It is made clear that quashing of Exts.P6 and P7 shall not preclude the 1[st] respondent from initiating any fresh proceedings against the petitioner from the stage of issuance of memo of charges. 14. In the result, the writ petition is allowed as follows: i) Exts.P6 and P7 are hereby quashed. W.P.C.No.30/2012 13 ii) It shall be open for the 1[st] respondent Management to initiate fresh proceedings against the petitioner from the stage of memo of charges. iii) The petitioner shall be given an opportunity to file additional submissions, if any, in this regard. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.30/2012 14 W.P.C.No.30/2012 15