State of Kerala & Others v. M. Noushad and Others (WP(C) 30831/2012) - RP Nos. 403 & 409 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 5TH DAY OF JUNE 2013/15TH JYAISHTA 1935** **RP.No. 403 of 2013 () IN WP(C).30831/2012** **------------------------------------------AGAINST THE JUDGMENT IN WP(C) 30831/2012 of HIGH COURT OF KERALA DATED 10-04-2013** **REVIEW PETITIONERS/RESPONDENTS 1 TO 3:** - **--------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECOR OF EDUCATION TIRUR, MALAPPURAM.** **3. THE ASSISTANT EDUCATIONAL OFFICER TANUR, MALAPPURAM DISRRICT.** **BY SENIOR GOVERNMENT PLEADER SMT.LILLY LESLIA** **RESPONDENTS/PETITIONER AND RESPONDENTS 4 TO 7:** **---------------------------------------------** **1. M.NOUSHAD, HINDI TEACHER, S.M.U.P SCHOOL, TANUR MALAPPURAM DISTRICT, 676302.** **2. THE MANAGER, S.M.U.P SCHOOL, TANUR, MALAPPURAM DISTRICT-676302.** **3. THE HEADMISTRESS, S.M.U.P SCHOOL, TANUR, MALAPPURAM DISTRICT- 676302.** **4. FOUSIYA MADAMPATT, JUNIOR HINDI TEACHER, S.M.U.P SCHOOL, TANUR - 676302.** **5. MADHUSOODHANAN NAIR** **ADDITIONAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANATHAPURAM, PIN 695001.** **BY SRI.P.C.SASIDHARAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **P.N.RAVINDRAN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= R.P.Nos.403 & 409 of 2013 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5[th] day of June, 2013 ## **ORDER** R.P.No.403 of 2013 is a petition filed by respondents 1 to 3 in W.P.(C)No.30831 of 2012 seeking a review of the judgment delivered by this Court on 10.4.2013 in the said writ petition. R.P.No.409 of 2013 is a petition filed by respondents 4 to 6 in the said writ petition seeking a review of the very same judgment. The brief facts of the case are as follows:- 2. The first respondent herein filed W.P.(C)No.30831 of 2012 challenging Exts.P3, P4, P6, P7, P12 and P14 orders. The writ petitioner was appointed as Junior Hindi Teacher by the fourth respondent Manager in the writ petition with effect from 13.6.2007. He was placed under suspension by the fourth respondent Manager as per order dated 27.3.2009 for a period of 15 days. After preliminary investigation into the grounds of suspension, the Assistant Educational Officer, Tanur held that there are no grounds to place him under suspension and issued Ext.P2 order dated 15.4.2009 cancelling the order of suspension. The fourth respondent Manager carried the matter in revision before the State 2 R.P.Nos.403 & 409 of 2013 Government. By Ext.P3 order passed on 26.9.2009, the Government set aside the order passed by the Assistant Educational Officer and directed him to hold a detailed enquiry under rule 75 of Chapter XIVA of the Kerala Education Rules into the allegations levelled against the petitioner in the memo of charges and statement of allegations dated 29.2.2009 which had in the meanwhile been served on the writ petitioner. The writ petitioner had also submitted a written statement of defense on 6.4.2009. 3. Pursuant to Ext.P3 Government order, the Manager of the school requested the Assistant Educational Officer to conduct a detailed enquiry under rule 75 of Chapter XIV-A of the Kerala Education Rules. The Assistant Educational Officer conducted an enquiry on 5.11.2009 and submitted Ext.P6 report. The Manager thereafter issued a notice dated 16.11.2009 calling upon the writ petitioner to show cause why the punishment of removal from service with effect from 1.1.2008, should not be imposed on him. The writ petitioner thereupon submitted a reply dated 4.12.2009. The Manager thereafter sent a letter dated 18.12.2009 to the District Educational Officer, Malappuram requesting for previous sanction to impose the punishment of removal from service. Such permission was granted by order passed on 18.1.2010. The Manager thereupon issued Ext.P4 order dated 19.2.2010 removing the writ petitioner from service with effect from 1.1.2008, the date on which R.P.Nos.403 & 409 of 2013 3 according to the Manager, he was unauthorizedly absent from duty. 4. Aggrieved by that order, the writ petitioner filed Ext.P5 appeal before the Deputy Director of Education, Malappuram under rule 80 of Chapter XIV-A of the Kerala Education Rules. By Ext.P7 order passed on 17.5.2011, the Deputy Director of Education held that the charge that the writ petitioner is a psychic person has not been proved. He however gave an opportunity to the writ petitioner to produce a medical certificate to prove that he is not a psychic person and also directed that if found fit, the writ petitioner should be appointed in the next arising vacancy, as there was no vacancy then in existence in the school. Aggrieved thereby, the writ petitioner moved the Government by filing Ext.P8 revision petition. After the said revision petition was received, the Government sent Ext.P12 letter dated 31.5.2012 calling upon the writ petitioner to produce a medical certificate from the authorised medical board to the effect that he is not suffering from any major disease or psychic abnormality within one month. The writ petitioner thereupon sent Ext.P13 letter dated 27.6.2012 in reply stating that he is mentally sound and that at no point of time has he suffered from any mental disability or abnormality. The Government thereafter passed Ext.P14 order dated 8.11.2012 holding that as the writ petitioner has not proved otherwise, although he was given sufficient time and it is 4 R.P.Nos.403 & 409 of 2013 stated that he is a “suspected psychic personality”, he cannot be permitted to work among the children as a teacher. The Government accordingly directed the Assistant Educational Officer, Tanur to terminate his probation as he is still a probationer. 5. The writ petitioner challenged the impugned orders mainly on two grounds. The first ground was that the enquiry held by the Assistant Educational Officer on 5.11.2009 pursuant to which Ext.P6 report of enquiry was submitted, was not held in accordance with the provisions contained in rule 75 of Chapter XIV-A of the Kerala Education Rules. Though the respondents had been served, none of the respondents including the review petitioners filed a counter affidavit. Pursuant to the order passed by this Court on 27.2.2013, the learned Government Pleader however made available the files leading to the enquiry report. After referring to the files and the findings and observations in Ext.P6 report, I held that no witnesses were examined in enquiry in support of the charges levelled against the writ petitioner and that what was held on 5.11.2009 was only a hearing in which besides the writ petitioner, the Headmaster and the Manager of the school and a few teachers were heard. I accordingly held relying on the decision of a learned single Judge of this Court in **Seetharam Upper Primary School v. State of Kerala** [2012 (2) KLT 338] that the enquiry was not properly held. I also held that the Government directed cancellation of the writ petitioner's R.P.Nos.403 & 409 of 2013 5 probation without calling upon him to show cause why his probation should not be terminated and therefore for that reason also, the impugned orders cannot be sustained. 6. The principal contention raised in R.P.No.403 of 2013 filed by respondents 1 to 3 in the writ petition is that the petitioner has not produced a medical certificate to prove that he is not suffering from any abnormality. It is also contended that as the writ petitioner was a probationer his service could have been terminated by issuing a notice. The principal contention raised in R.P.No.409 of 2013 is that the direction in Ext.P14 does not cast any stigma, that it is only an order of termination simpliciter and therefore, this Court erred in interfering with Ext.P14 Government order. Reliance is placed on the decisions of the Apex Court in **State of Punjab & Ors. v. Bhagwan Sing** [2002 (9) SCC 636], **Municipal Committee, Sirsa v. Munshi Ram** [2005 (2) SCC 382] and **Rajesh Kumar Srivastava v. State of Jharkhand and Ors.** [2011 (4) SCC 447]. As regards the validity of the enquiry it is contended that the Manager or other teachers have no control or supervision over the enquiry officer and any illegality conducted by the enquiry officer cannot affect the interests of the Manager and the students. As regards the failure to file a counter affidavit it is stated that though the Manager had entered appearance by filing a vakalath, for want of office seal it was defective. There is however no explanation R.P.Nos.403 & 409 of 2013 6 as to why respondents 5 and 6 who are the Headmaster and the teacher appointed in the place of the writ petitioner, did not file a counter affidavit. 7. I heard Smt.Lilly Leslie, learned Government Pleader appearing for the petitioners in R.P.No.403 of 2013, Sri.V.A. Mohammed, learned counsel appearing for the petitioners in R.P.No.409 of 2013 and Sri.P.C.Sasidharan, learned counsel appearing for the first respondent/writ petitioner. W.P.(C)No.30831 of 2012 was admitted and notice ordered to the respondents on 20.12.2012. After respondents 1 to 6 therein were served, pursuant to the order passed by this Court on 27.2.2013, the learned Government Pleader made available the files relating to the enquiry. The writ petition thereafter stood posted on 6.3.2012, 8.3.2012, 11.3.2012, 12.3.2012, 19.3.2012, 20.3.2012, 25.3.2012, 26.3.2012, 27.3.2012, 9.4.2012 and 10.4.2012. It was heard and allowed by judgment delivered on 10.4.2013. The Manager of the school did not notwithstanding the fact that he had been served, enter appearance and file a counter affidavit. The other respondents also did not file a counter affidavit. The petitioner had in the writ petition positively averred that the enquiry was not properly held. The enquiry officer has in Ext.P6 report held as follows:- _“The matter was examined in detail. The arguments of the manager to take disciplinary action against Sri.Noushad are seen sustained._ R.P.Nos.403 & 409 of 2013 7 _Sri.Noushad is unable to defend himself up on the allegations levelled against him. During the enquiry, upon the questions towards him, Sri.Noushad's answers were contradictions throughout. It is noted that he often failed to concentrate in what he had to say. As there is a serious allegation that he is a suspected Psychic personality, his manner of presentation cannot be ruled out. In the circumstances, the disciplinary action initiated by the manager against Sri.Noushad for the academic interest of the pupils as well as of the school, seems valid and justifiable.”_ 8. It is evident from Ext.P6 enquiry report that what was held on 5.11.2009 was a hearing and not an enquiry. It was for this reason that following the decision of a learned single Judge of this Court in **Seetharam Upper Primary School v. State of Kerala** (supra), I held that no enquiry was held before the punishment of removal from service was imposed on the writ petitioner. I also held that before the Government directed termination of the petitioner's probation, it did not issue notice to him to show cause why his probation should not be terminated. In the light of the binding decision of this Court in **Seetharam Upper Primary School v.** **State of Kerala** (supra) and the contents of Ext.P6 report, the finding entered by me that no proper enquiry was held, cannot be said to be vitiated by any error muchless an error apparent on the face of the record. As regards the finding relating to Ext.P14 Government order as the Government had directed termination of the writ petitioner's probation, finding that the writ petitioner is a R.P.Nos.403 & 409 of 2013 8 "suspected psychic personality" and he cannot be permitted to work among children as a teacher, it cannot be said that the order does not cast any stigma on him. Before the Government entered such a finding, it did not have any material before it. No inquisition had been held wherein the petitioner was found to be mentally unsound. Therefore, the principles laid down by the Apex Court in the decisions referred to and relied on by the learned counsel appearing for the petitioners in R.P.No.409 of 2013 can have no application. By the impugned judgment, even while interfering with the order imposing punishment and directing reinstatement of the writ petitioner in service with all consequential benefits, I had observed that it will be open to the disciplinary authority if he so chooses to proceed afresh in accordance with law. Therefore, no real prejudice is also caused to the disciplinary authority. I accordingly hold that no grounds have made out warranting a review of the judgment delivered by this Court on 10.4.2013. The review petitions fail and are accordingly dismissed. Sd/- ## **P.N.RAVINDRAN JUDGE** /true copy/ P.A. to Judge vpv