Sudheer K V v. The Deputy Director of Education Kannur and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** **WP(C) NO. 5412 OF 2018** ## **PETITIONER** SUDHEER K V AGED 43 YEARS HEAD MASTER, AICHUR CENTRAL OP SCHOOL,PO, EACHUR, KANNUR-670591 BY ADV SRI.POOVAMULLE PARAMBIL ABDULKAREEM ## **RESPONDENTs** 1 THE DEPUTY DIRECTOR OF EDUCATION KANNUR-670001 2 THE DISTRICT EDUCATIONAL OFFICER KANNUR-670001 3 THE ASSISTANT EDUCATIONAL OFFICER KANNUR NORTH, KANNUR DISTRICT-671321 4 K.V.SANDYA MANAGER, AICHUR CENTRAL LP SCHOOL,PO EACHUR, KANNUR DISTIRCT-670591 BY GOVERNMENT PLEADER – SRI.JIBU T.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).5412/2018 2 ## JUDGMENT Dated : 28[th] September, 2022 1. The petitioner is the Headmaster of Aichur Central L.P. School, of which the 4[th] respondent is the Manager. He challenges Ext.P8 order of suspension pending enquiry and Ext.P11 memo of charges and seeks a declaration that the finding in Ext.P17 against the petitioner as illegal and arbitrary. The petitioner also seeks a relief of regularisation of the period of suspension. 2. The issue pertains to the allegation of certain bogus admissions having been made. A perusal of Ext.P8 suspension order would indicate that the 3[rd] respondent/AEO upon receiving information over phone, conducted a surprise visit to the School and discovered certain bogus admissions made, the purpose behind which being to secure division and posts to classes 1 and 2 and to appropriate money by fraudulently showing distribution of uniforms, lunch WP(C).5412/2018 3 and books. Invoking Section 12A of the Kerala Education Act, the petitioner/Headmaster was put under suspension, pending enquiry. The petitioner/Headmaster preferred Ext.P10 appeal before the 2[nd] respondent/DEO challenging Ext.P8 suspension order. Upon hearing the parties concerned, the 2[nd] respondent/DEO confirmed Ext.P8 order by virtue of Ext.P17 order. However, in order to ensure that the right of eduction of the students is not deprived, the petitioner was directed to be taken back in service, subject to the condition that further action, if any from the higher authorities will be binding on the petitioner/Headmaster. By virtue of Ext.P17, petitioner/Headmaster was warned about serious consequences, if any anomalies of a similar kind is repeated. In the meantime, as per Ext.P11, a memo of charges was also issued by the 3[rd] respondent/AEO. 3. Heard Sri.P.P.Abdul Kareem the learned counsel for the petitioner and Sri.Jibu T.S., the learned Government Pleader on behalf of respondents 1 to 3. There is no representation for the 4[th] WP(C).5412/2018 4 ## respondent/Manager before this Court. 4. Since the main contention raised by the learned counsel for the petitioner is premised on a purely legal aspect, it appears that a meticulous scan of facts, as such, is not required. The prime contention urged before this Court by the learned counsel for the petitioner is that going by Section 12A of the Kerala Education Act, either the Government, or the Education Officer as authorized by the Government, alone have the power to initiate and take disciplinary action against the teachers of Aided Schools. So also, the power of suspension pending disciplinary proceedings is vested with the Government or the Education Officer authorized in this behalf. Learned counsel pointed out that in the instant case, the power is seen usurped by the 3[rd] respondent/AEO which is _per se_ illegal. Secondly, the learned counsel took recourses to the Proviso to Section 12A to point out that the powers under Section 12A (1) can be exercised only after intimating the Manager, the circumstances requiring disciplinary action and giving him a reasonable WP(C).5412/2018 5 opportunity to take disciplinary action. The Government can exercise the power only if the Manager fails to take appropriate action invoking the provision of Section 12A (2). This procedure is not complied with in the instant case, is the submission of the learned counsel for the petitioner. In support of the above contention, the learned counsel relied upon the judgment of a learned Single Judge of this Court in **Yamuna v. State of Kerala (2008 (1) KLT 378)** . 5. Per contra, the learned Government Pleader submitted that the conduct of the petitioner in making bogus admissions warrants stringent action at the hands of the Educational authority. At the time of passing Ext.P8 order, there was no Manager to the School; which fact is referred to in Ext.P8 and it is in such circumstance that, the power has been exercised by the 3[rd] respondent/AEO. Infirmity, if any, in the AEO exercising the power stands rectified by virtue of Ext.P7 order where the competent authority namely, the 2[nd] respondent/DEO, had confirmed the action of the AEO. Therefore, the petitioner cannot WP(C).5412/2018 6 be permitted to gain any advantage on the technical ground above referred, when viewed in the context of the grievous allegations made against him. 6. Having heard the learned counsel appearing on either side, this Court finds that the action initiated by the 3[rd] respondent/AEO in issuing Ext.P8 order, as also, its confirmation by virtue of Ext.P17, both, are illegal and contrary to the provisions. 7. Section 12A is extracted below : Disciplinary powers of Government over teachers of aided schools.- (1) Notwithstanding anything contained in section 11 or section 12 and subject to such rules as may be prescribed, the Government or such officer not below the rank of an Educational Officer, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceeding against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules made under this Act. (2) The Government or [the officer authorised] under sub-section (1) as the case may be, may suspend a teacher of an aided school when any disciplinary proceedings is proposed to be taken against him under that sub-section or when such disciplinary proceedings are pending : Provided that:- (a) before exercising the powers under sub-section (1) the Government or [the authorised officer] as the WP(C).5412/2018 7 case may be, may intimate the Manager regarding the circumstances requiring disciplinary action against the teacher concerned and give the Manager a reasonable opportunity of taking disciplinary action; and - (b) if the Manager fails to take appropriate action it shall be open to the Government or [the authorised officer] to take appropriate disciplinary action against the teacher concerned 8. A perusal of the Section would indicate that the arguments raised by the learned counsel for the petitioner is only to be recognized. At the first instance, the power is to be exercised by the Manager concerned. The Government, or the Educational authority, as the case may be, can intimate the Manager regarding the circumstances requiring disciplinary action and only if the Manager fails to take appropriate action, can the Government or the authorised Officer take disciplinary action in terms of Proviso (b) to Section 12A. In the instant case, the statutory stipulations in Section 12A is violated completely. The action vide Ext.P8 is seen initiated by the 3[rd] respondent/AEO, for which he is not empowered going WP(C).5412/2018 8 by Section 12A of the Act. Respondents 1 to 3 have no case that the 3[rd] respondent/AEO has been authorised by the Government to exercise the powers under Section 12A. No such document is produced before this Court to that effect. If that be so, the action initiated by the 3[rd] respondent/AEO by issuing Ext.P8 suspension order is without jurisdiction and competence and therefore, illegal. 9. Again, the illegality is perpetrated in issuing Ext.P11 memo of charges. As could be seen from the Proviso (a) to Section 12A, the memo of charges is to be issued by the Manager and not by the officers of the Education Department, at any rate by an AEO. It is curious to note that the action initiated by virtue of Ext.P11 has not been taken to a logical conclusion as well. Instead, the DEO has confirmed the otherwise illegal action of the AEO in the appeal preferred by the petitioner/Headmaster by virtue of Ext.P17 proceedings; again a conduct which can hardly be reckoned as legal. The learned Government Pleader argued that at the relevant time, there was no Manager for the subject School. This WP(C).5412/2018 9 Court cannot endorse the said contention. Ext.P9 is the letter issued by the 4[th] respondent to the District Education Officer in her capacity as the Manager of the School. Even if it is conceded that a proposal for change of management is pending consideration before the appropriate authority, the existing Manager is supposed to discharge her functions until the change of management is effected in accordance with law. It cannot, therefore, be said that there was no Manager in the School at the relevant time. The legal position emanating from Section 12A of the Act requires no further reiteration since it has been dealt with in detail by a learned Single Judge of this Court in **Yamuna's** case supra. There, the learned Single Jude refers to Rule 75A of Chapter XIV A of the Kerala Education Rules, as per which, one month's time is seen given to the Manager to take appropriate action from the date of intimation specified in Section 12A and a further period of two months is seen stipulated for completion of disciplinary proceedings. It is on failure to comply within the time frame stipulated WP(C).5412/2018 10 above that the Government gets the powers to initiate disciplinary action against the teachers of Aided School. 10. The statutory provision being plain and clear, supported by the interpretation given in **Yamuna** (supra), the only possible conclusion is to the effect that, Ext.P8 suspension order and P11 memo of charges, both, are bad in law. If Ext.P8 is held to be illegal, Ext.P17 which was one issued confirming Ext.P8 is also consequently bad in law. 11. Resultantly, Exts.P8 and P11 are set aside as illegal and without jurisdiction. The finding in Ext.P17 confirming Ext.P8 is also declared as illegal. The Writ petition is allowed as indicated above. However, it will be open for the appropriate authorities to initiate proper action in terms of law and in the light of the observations made herein above, on the allegation of bogus admissions, if it is deemed necessary by the competent authority. If no such action is initiated within a period of one month from the date of receipt of a copy of this judgment, the authority concerned will regularize 11 WP(C).5412/2018 the period of suspension of the petitioner as duty, for all purposes. Sd/- C.JAYACHANDRAN, Judge Mrcs WP(C).5412/2018 12 ## **APPENDIX** PETITIONER EXHIBITS EXHIBIT P1: TRUE COPY OF THE LETTER DATED 14/9/2017 SENT BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P2: TRUE COPY OF THE LETTER DATED 11/9/2017 AND VISIT REPORT OF THE 3RD RESPONDENT EXHIBIT P3: TRUE COPY OF THE REPLY DATED 22/9/2017 SUBMITTED BY THE PETITIONER EXHIBIT P4: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 7/10/2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P5; TRUE COPY OF THE REPLY TO EXTP.4 SHOW CAUSE NOTICE EXHIBIT P6: TRUE COPY OF THE LETTER DATED 12.10.2017 ISSUED BY SMT. INDU.A LPSA EXHIBIT P7: TRUE COPY OF THE LETTER DATED 12.10.2017 ISSUED BY SMT. SHEEJA NARKKODAN.LPSA EXHIBIT P8: TRUE COPY OF THE SUSPENSION ORDER NO.B/3200/17 DATED 23.10.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P9: TRUE COPY OF THE LETTER DATED 23/10/2017 ISSUED BY FORMER MANAGER OF THE SCHOOL EXHIBIT P10: TRUE CPY OF THE APPEAL PETITION DATED 23/10/2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P11: TRUE COPY OF THE MEMO OF CHARGES DATED 17/11/2017 ISSUED BY THE 4TH RESPONDENT EXHIBIT P12: TRUE COPY OF THE REPLY DATED 29/11/2017 EXHIBIT P13: TRUE COPY OF THE HEARING NOTE DATED 20/12/2017 SUBMITTED BY THE PETITIONER EXHIBIT P14: TRUE COPY OF THE HEARING NOTICE DATED 23/12/2017 SENT BY THE 1ST RESPONDENT EXHIBIT P15: TRUE COPY OF THE LETTER DATED 27/12/2017 EXHIBIT P16; TRUE COPY OF THE HEARING NOTE DATED WP(C).5412/2018 13 20/1/2018 SUBMITTED BY THE PETITIONER EXHIBIT P17: TRUE COPY OF THE PROCEEDINGS NO.B5/4469/17 DATED 22/1/2018 ISSUE DBY THE 2ND RESPONDENT EXHIBIT P18 TRUE COPY OF THE STAFF FIXATION ORDER DATED 5.7.2017 EXHIBIT P19 TRUE COPY OF THE REVISED STAFF FIXATION ORDER DATED 14.12.2017 FOR THE ACADEMIC YEAR 2017-18 ISSUED BY THE 3RD RESPONDENT EXHIBIT P20 TRUE COPY OF THE ORDER DATED 18.6.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P21 TRIE COPY OF THE RELEVANT PAGES OF THE PUPILS ADMISSION REGISTER