Sreejith S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **WP(C).No.19214 OF 2014(B)** ## **PETITIONER:** ## **SREEJITH.S** **HEAD MASTER (UNDER ORDER OF SUSPENSION) ALP SCHOOL CHEEKILODE, CHEEKILODE P.O., ATHOLI, KOZHIKODE-673 315.** **BY ADVS.** **SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.JIJI THOMAS SMT.SMITHA MATHEW** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.** - **2 THE DEPUTY DIREICTOR OF EDUCATION KOZHIKODE-673 328.** - **3 THE ASSISTANT EDUCATIONAL OFFICER BALUSSERY, BALUSSERY, KOZHIKODE DISTRICT-673 328.** - **4 THE MANAGER** **ALP SCHOOL,CHEEKILOD, CKEEKILODE P.O., ATHOLI, KOZHIKODE-673 315.** ## **BY GOVERNMENT PLEADER** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19214 OF 2014(B)** **2** ## **JUDGMENT** ## **Dated this the 9th day of April 2021** The petitioner is presently stated to be working as the Head Master of the “ALP School”, Cheekilodu, Kozhikode; and he has impugned Ext.P8 order issued by the 3[rd] respondent - Assistant Educational Officer (AEO), Balussery, placing him under suspension, “pending detailed enqiry”, apparently under the mandate of Section 12A of the Kerala Education Act, 1958 and Rule 67(2) of Chapter XIVA of the Kerala Education Rules (KER). 2. The petitioner asserts that Ext.P8 order is statutorily incompetent, since it has been issued by the AEO even when no enquiry had been initiated or even contemplated against him. He says that, going by the provisions of Section 12A of the KER, a teacher can be suspended only if either an enquiry is in progress or when it is contemplated. He vehemently contends that at the time when Ext.P8 was issued, no such enquiry was even in contemplation and therefore, that the same is without leg to stand on. He thus prays that Ext.P8 be quashed. **WP(C).No.19214 OF 2014(B)** **3** 3. I have heard Sri.Kurian George Kannanthanam – learned Senior Counsel, instructed by Sri.Jiji Thomas appearing for the petitioner and the learned Senior Government Pleader – Sri.P.M.Manoj appearing for the Official respondents. 4. Sri.Kurian George Kannanthanam –learned Senior Counsel, began his submissions by showing me that, in fact, there is only one show-cause notice ever issued to his client by the AEO, which is Ext.P3 dated 31.03.2014. He submitted that the sole allegation in the said notice was that his client had misbehaved with a messenger deputed from the Office of the AEO and that he had furnished his explanation to the same, based on which no further action was ever taken. The learned Senior Counsel then alleged that, thereafter, without any jurisdictional competence, the AEO abruptly issued Ext.P8 order dated 07.07.2014, wherein, two other allegations have also been added and thus placing his client under suspension “pending detailed enquiry”. Sri.Kurian George Kannanthanam argued that even a cursory look through Section 12A of the Kerala Education Act, makes it inevitable that the Government or such other officer below the rank of an Educational Officer - as may be authorised by it in this behalf - shall have the power to order suspension of a teacher **WP(C).No.19214 OF 2014(B)** **4** only when disciplinary proceedings is proposed to be taken against him/her or when it is already pending. The learned Senior Counsel vehemently submitted that the facts involved in this case makes it unmistakable that at the time when Ext.P8 order was issued, no disciplinary action had been initiated or even contemplated, except that his client had been issued with Ext.P3 notice, to which he had made his explanation, with no action being taken thereafter. The learned Senior Counsel, thus prayed that Ext.P8 be quashed. 5. The learned Senior Government Pleader – Sri.P.M.Manoj, submitted that a counter affidavit has been filed by the 3[rd] respondent – AEO, asserting that the provisions of Section 12A(2) would apply only when action is taken for continuing with the disciplinary action and for imposing a penalty on a teacher. He submitted that, in the case at hand, it is evident that the petitioner had already been issued with Ext.P3 show-cause notice, which then enable the AEO to issue Ext.P8 order of suspension under the mandate of Section 12A of the KER. The learned Senior Government Pleader thereafter submitted that, when one looks through Ext.P8, it becomes obvious that the allegations against the petitioner are extremely grievous and not becoming the position of a teacher and therefore, that the 3[rd] **WP(C).No.19214 OF 2014(B)** **5** respondent – AEO was justified in suspending him and then ordering initiation of a detailed enquiry. The Senior Government Pleader thus argued that none of the provisions of Section 12A of the Kerala Education Act has been violated by the AEO, while issuing the impugned order. 6. Before I evaluate the afore rival contentions, I must note that this writ petition was filed as early as on 24.07.2014 and an interim order was granted by this Court on 26.07.2014 staying all actions pursuant to Ext.P8. This position has remained so for nearly seven years past, when this writ petition has been pending before this Court and it is conceded that the petitioner has subsequently being promoted as Headmaster and is continuing in such position even today. 7. I have recorded the afore, not because it has relevance to the allegations to Ext.P8, but to indicate that an action against the petitioner based on Ext.P8 at this distance of time would certainly be totally superfluous. 8. That apart, in Ext.P8, there are broadly two allegations - that the petitioner had misbehaved with a messenger deputed by the AEO and that he had manipulated the identity of the Senior **WP(C).No.19214 OF 2014(B)** **6** Superintendent in the office of the AEO, who was the drawing and disbursing officer of the School in question. However, it is ineluctable that Ext.P3 notice did not contain the latter allegation, nor was any explanation sought from the petitioner on it. The said notice contained only the first allegation, that the petitioner had misbehaved with the messenger from the office of the AEO, to which he furnished an explanation, but the same is not reflected in Ext.P8, except by referring to it as item No.3 therein. 9. In this context, I find great force in the submissions of the learned Senior Counsel – Sri.Kurian George Kannanthanam that the second allegation in Ext.P8 could not justify placing his client under suspension, particularly when there was no disciplinary action pending or even in contemplation, at that time, with respect to it. This is crucial because I have already held in the judgment in _**Corporate Manager, Corporate Educational Agency of Diocese of Kanjirappally and another vs. State of Kerala and others**_ [2021(2)KHC 655] that a teacher can be placed under suspension under Section 12A of the Kerala Education Act only when a disciplinary action is either contemplated or continuing. 10. That said, even if it is assumed that there was some **WP(C).No.19214 OF 2014(B)** **7** disciplinary action with respect to the first allegation pursuant to Ext.P3 notice, I am certain that it could not be necessary to continue the suspension of the petitioner, as ordered through Ext.P8 any further, because the said allegation is not serious or grievous enough, so as to warrant such. 11. In view of the afore, I am certain that the petitioner is entitled to succeed, especially because, as I have already said above, Ext.P8 has remained stayed by this Court for nearly seven years now. In the afore circumstances, I allow this writ petition and set aside Ext.P8; however, leaving liberty to the competent Authorities to initiate any action that they may propose against the petitioner as per law and after following the imperative statutory procedure, for which purpose, all contentions on its merits are left open to be pursued, as and when it becomes necessary in future. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** SAS/09/04/2021 **WP(C).No.19214 OF 2014(B)** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 EXT.P1.TRUE COPY OF THE SUSPENSION ORDER DATED 25/3/2014.** - **EXHIBIT P2 EXT.P2.TRUE COPY OF THE REINSTATEMENT ORDER OF THE 3RD RESPONDENT DATED 26/3/2014.** - **EXHIBIT P3 EXT.P3.TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 31/3/2014.** - **EXHIBIT P4 EXT.P4.TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE MANAGER DATED 13/5/2014.** - **EXHIBIT P5 EXT.P5.TRUE COPY OF THE TEST RESULT (KER AND LOWER AND HIGHER)** - **EXHIBIT P6 EXT.P6.TRUE COPY OF THE SENIORITY LIST OF THE PETITIONER'S SCHOOL.** - **EXHIBIT P7 EXT.P7.TRUE COPY OF THE ORDER ISSUED BY THE AEO TO THE 4TH RESPONDENT DATED 15/5/2014.** - **EXHIBIT P8 EXT.P8.TRUE COPY OF THE SUSPENSION ORDER DATED 7/7/2014 ISSUED BY THE AEO TO THE PETITIONER** - **EXHIBIT P9 EXT.P9.TRUE COPY OF THE EXPLANATION NOTICE DATED 12/7/2014 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P10 EXT.P10.TRUE COPY OF THE RELY LETTER TO THE EXPLANATION NOTICE DATED 15/7/2014.** - **EXHIBIT P11 A COPY OF THE RESIGNATION LETTER DATED 18.12.2017.** - **EXHIBIT P12 A COPY OF THE ORDER OF THE MANAGER DATED 22.12.2017.** - **EXHIBIT P13 A COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 23.12.2017.** - **EXHIBIT P14 A COPY OF THE ORDER OF THE AEO DATED** **WP(C).No.19214 OF 2014(B)** **9** **12.02.2018.** **EXHIBIT P15 A COPY OF THE JUDGMENT IN W.P.C NO.26651/2018 DATED 07.08.2018.** **EXHIBIT P16 A COPY OF THE ORDER OF THE AEO DATED 30.03.2019.** **EXHIBIT P17 A COPY OF THE ORDER OF THE GOVERNMENT DATED 28.09.2020.** **RESPONDENTS' EXHIBITS:NIL** //TRUE COPY// P.A. TO JUDGE