High Court of KeralaSingle Judge2015-10-27Writ petition disposed of with no costs

The Manager, A.U.P. School, Pilassery, Kunnamangalom P.O., Kozhikode v. State of Kerala and Others

Case / Petition Number:WP(C).No.21799 of 2014 (Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-10-27
Court Decision / Holding: Exhibit P30 is set aside. Exhibit P20, to the extent it contemplates an alternate punishment, is also struck down and treated as a rejection of the proposed punishment. The Manager is permitted to proceed with appropriate action under the Kerala Education Rules within a reasonable time. The merits of the charges are not adjudicated. Writ petition disposed of, with no costs.
Final Disposition: Writ petition disposed of with no costs

Parties to the Case

Appellants / Petitioners

The Manager, A.U.P. School, Pilassery, Kunnamangalom P.O., Kozhikode

Respondents

State of Kerala
District Educational Officer, Thamarassery, Kozhikode
Assistant Educational Officer, Kunnamangalam, Kozhikode
M. P. Sajeev Kumar
K. Sabitha

Legal Representation & Advocates

Counsels for Petitioners

• P. Nandakumar
• S. Vijayan
• M. Rahul
• Sreeja Vijayan

Counsels for Respondents

• T.R. Rajesh
• T.G. Rajendran
• V.A. Muhammed
• M. Sajjad

Case Synopsis & Summary

The petitioner, Manager of an aided school, challenges Exhibits P20 and P30, two orders affecting disciplinary action against teachers in the school. Charge-sheets were issued for misconduct against respondents 4 and 5, with an inquiry conducted and a proposal for punishment (removal) under Rule 65 of Chapter XIV-A KER. The District Educational Officer (DEO) purportedly suggested an alternate punishment, which the Manager contends is beyond the DEO’s powers; under Rule 65, the DEO can either approve or reject, while a rejection may require the Manager to propose an alternate penalty. The Government, via Exhibit P30, directed reinstatement of respondents 4 and 5 and ordered fresh inquiries, a step the Manager argues exceeds Rule 92 and the scope of the revision filed by him. The Manager relies on a Division Bench decision in Muhammed v. Secretary to Government (2003) to support the limitation on DEO’s competence to propose alternate punishment. The Government’s actions, if allowed, would nullify orderly disciplinary proceedings. The Court ultimately holds Exhibit P30 vitiated and Exhibit P20, to the extent of proposing an alternate punishment, unsustainable, treating P20 as a rejection. The Manager is empowered to proceed under the KER. The court states it has not adjudicated on the merits of the charges. Writ petition disposed of with no costs.

Provisions of Law Cited

Rule 74 of Chapter XIV-A Kerala Education Rules, 1959Rule 65(1) or (2) of Chapter XIV-A Kerala Education Rules, 1959Rule 92 of Chapter XIV-A Kerala Education Rules, 1959

Submissions & Arguments

Contentions of Appellants / Petitioners

The Manager contends that the DEO was not competent to propose an alternate punishment under Rule 65; the DEO could only approve or reject, and upon rejection the Manager may propose an alternative. He relies on Muhammed v. Secretary to Government (2003) to support the proposition that the DEO’s authority is limited to rejection or approval of punishments, not substitution. The Government’s Exhibit P30 directing reinstatement and fresh enquiry is said to go beyond Rule 92 and outside the scope of the Manager’s revision. Exhibit P20’s proposed alternate punishment is urged to be set aside, with the action limited to a rejection, allowing lawful action under the KER. Relief sought is to invalidate the overreaching orders and permit proper disciplinary proceedings under the KER.

Contentions of Respondents

The respondents contend that the charges against respondents 4 and 5 were the subject of enquiry and that participation issues for the 5th respondent can be addressed, should punishment be imposed. They rely on the Government order and related exhibits to justify reinstatement or retrial under the revision process, arguing that the orders fall within the powers conferred by the rules and the facts of the case, and that any issues raised would be resolved during reconsideration.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Muhammed v. Secretary to Government	2003 (2) KLT SN 26 (Case No.34)	Positive	Cited as controlling authority on the scope of the District Educational Officer’s powers to propose or approve punishments and the limitations on substituting alternate penalties under Rule 65.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 27TH DAY OF OCTOBER 2015/5TH KARTHIKA, 1937 ## W.P.(C).No.21799 of 2014 (Y) -------------------------------------------------- ## PETITIONER(S):- -------------------------- THE MANAGER, A.U.P. SCHOOL, PILASSERY, KUNNAMANGALAM P.O., KOZHIKODE 673 571 BY ADVS.SRI.P.NANDAKUMAR SRI.S.VIJAYAN SRI.M.RAHUL SMT.SREEJA VIJAYAN. ## RESPONDENT(S):- ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE - 673 573. 3. THE ASSISTANT EDUCATIONAL OFFICER, KUNNAMANGALAM, KOZHIKODE - 673 571. 4. M. P. SAJEEV KUMAR, UPASRAMOM HOUSE, MANASSERY P.O, MUKKAM (VIA), KOZHIKODE - 673 602 5. K. SABITHA, THUSHARAM, PALATH P.O, KAKKODI (VIA), KOZHIKODE 673 611. R1 TO R3 BY GOVERNMENT PLEADER SRI.T.R.RAJESH. R4 BY ADV. SRI.T.G.RAJENDRAN R5 BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.21799 of 2014 (Y) ---------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ------------------------------------- - EXHIBIT P1 TRUE COPY OF SUSPENSION ORDER DATED 15-11-2011 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 21-11-2011. - EXHIBIT P3 TRUE COPY OF THE CHARGE MEMO AND STATEMENT OF ALLEGATIONS ISSUED AGAINST THE 4TH RESPONDENT DATED 31-12-2011. - EXHIBIT P4 TRUE COPY OF THE CHARGE MEMO AND STATEMENT OF ALLEGATIONS ISSUED AGAINST THE 5TH RESPONDENT DATED 31-12-2011. - EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT DATED 17-1-2012. - EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 5TH RESPONDENT DATED 17-1-2012. - EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER DATED 10-2-2012 AGAINST THE 4TH RESPONDENT. - EXHIBIT P8 TRUE COPY OF PROCEEDINGS OF THE PETITIONER DATED 10-02-2012 AGAINST THE 5TH RESPONEDENT. - EXHIBIT P9 TRUE COPY OF THE REQUEST OF THE PETITIONER TO THE 3RD RESPONDENT DATED 10-02-2012. - EXHIBIT P10 TRUE COPY OF THE ENQUIRY REPORT DATED 25-4-2012 OF THE 3RD RESPONDENT. - EXHIBIT P11 TRUE COPY OF LETTER DATED 25-4-2012 OF THE 3RD RESPONDENT. - EXHIBIT P12 TRUE COPY OF SHOW CAUSE NOTICE DATED 1-6-2012 ISSUED TO THE 4TH RESPONDENT. - EXHIBIT P13 TRUE COPY OF SHOW CAUSE NOTICE DATED 1-6-2012 ISSUED TO THE 5TH RESPONDENT. - EXHIBIT P14 TRUE COPY OF EXPLANATION SUBMITTED BY THE 4TH RESPONDENT DATED 20-06-2012. - EXHIBIT P15 TRUE COPY OF EXPLANATION SUBMITTED BY THE 5TH RESPONDENT DATED 18-06-2012. - 2 - WP(C).No.21799 of 2014 (Y) EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER DATED 8-8-2012 AGAINST THE 4TH RESPONDENT. - EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER DATED 8-8-2012 AGAINST THE 5TH RESPONDENT. - EXHIBIT P18 TRUE COPY OF LETTER DATED 8-8-2012 OF THE PETITIONER TO THE 2ND RESPONDENT. - EXHIBIT P19 TRUE COPY OF LETTER DATED 8-8-2012 OF THE PETITIONER TO THE 2ND RESPONDENT. - EXHIBIT P20 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 7-11-2012. - EXHIBIT P21 TRUE COPY OF REVISION PETITION DATED 22-12-2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P22 TRUE COPY OF JUDGMENT DATED 9-1-2013 IN WPC NO 30656/12. EXHIBIT P23 TRUE COPY OF THE DECISION OF THE PTA DATED 15-11-2011. - EXHIBIT P24 TRUE COPY OF THE PETITION DATED 14-11-2011 OF THE HEAD MASTER OF THE SCHOOL. - EXHIBIT P25 TRUE COPY OF THE LETTER DATED 14-2-2014 OF THE 3RD RESPONDENT. - EXHIBIT P26 TRUE COPY OF LETTER DATED 24-3-2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. - EXHIBIT P27 TRUE COPY OF REPLY DATED 24-4-2014 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P28 TRUE COPY OF LETTER DATED 29-05-2014 ISSUED BY DPI. - EXHIBIT P29 TRUE COPY OF LETTER DATED 12-07-2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P30 TRUE COPY OF ORDER DATED 31-7-2014 ISSUED BY THE 1ST RESPONDENT. RESPONDENT(S)' EXHIBITS:- ------------------------------------------ EXHIBIT R5(a) TRUE COPY OF THE EXPLANATION SUBMITTED BEFORE THE MANAGER BY THE 5TH RESPONDENT. WP(C).No.21799 of 2014 (Y) - 3 - EXHIBIT R5(b) TRUE COPY OF THE APPEAL FILED BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 8.8.2012. EXHIBIT R5(c) TRUE COPY OF THE G.O.(P) NO.199/2011/G.EDN. DATED 01.10.2011 OF THE GOVERNMENT. EXHIBIT R5(d) TRUE COPY OF THE CIRCULAR NO.31904/J2/12/G.EDN. DATED 6.6.2012 OF THE GOVERNMENT. EXHIBIT R5(e) TRUE COPY OF THE APPEAL FILED BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 22.8.2012. EXHIBIT R5(f) TRUE COPY OF THE ORDER NO.B2/8497/2011 DATED 7.11.2012 OF THE DISTRICT EDL. OFFICER. EXHIBIT R5(g) TRUE COPY OF THE LETTER OF SRI.SUNNY THOMAS DATED 10.4.2013. vku/[ true copy ] ## K. Vinod Chandran, J ------------------------------------------- W.P.(C).No.21799 of 2014-Y ------------------------------------------Dated this the 27[th] day of October, 2015 ## **JUDGMENT** The petitioner, Manager of a school, is aggrieved with Exhibits P20 and P30 orders passed. Without going into the crux of the allegations raised against respondents 4 and 5, who are teachers of the aided school in which the petitioner is the Manager, the writ petition can be disposed off on the legal ground raised herein. 2. Charge-sheets are said to have been issued for misconduct against respondents 4 and 5. An enquiry is also said to have been conducted. Pursuant to the enquiry, the Manager is said to have issued a proposal for punishment of removal from service of both the respondents 4 and 5, by a second show cause notice. As mandated under Rule 74 of Chapter XIV-A of Kerala Education Rules, 1959 [for brevity “KER”], the Manager also approached the District Educational Officer [for brevity “DEO”] seeking approval of the punishment proposed. The DEO found that the punishment proposed is disproportionate on a reference to the gravity of the offences alleged and directed the WP(C).No.21799 of 2014 - 2 - Manager, specifically, to impose punishment under sub-rule (1) or (2) of Rule 65 of Chapter XIV-A KER. The Manager contends that the said order is unsustainable for reason of the DEO not being competent to propose an alternate punishment. He could either reject or approve the punishment and in the event of rejection, the Manager could make an alternate proposal. So much is clear as has been declared by a Division Bench of this Court, in the decision reported in _**Muhammed v. Secretary to Government**_ ## **[2003 (2) KLT SN 26 (Case No.34)].** 3. Aggrieved by Exhibit P20, the petitioner, Manager, was before the Government. The Government, however, in Exhibit P30 order went one step ahead and directed reinstatement of respondents 4 and 5 and also directed initiation of fresh enquiry proceedings, which again was beyond the ambit of the power to be exercised by the Government under Rule 92 of Chapter XIV-A and was beyond the scope of the revision filed by the Manager. In a revision filed by the Managfer against the alternate punishment proposal by the DEO, the Government directed reinstatement, which again would be vitiated going by the dictum of the afore-cited decision. WP(C).No.21799 of 2014 - 3 - 4. As of now, it is submitted that the 4[th] respondent has retired from service and the 5[th] respondent is kept out on retrenchment. The learned counsel appearing for the 5[th] respondent would contest the contention of retrenchment and would assert that there is a post available, where she could be accommodated. Be that as it may, there could be no reinstatement ordered in the writ petition filed by the Manager against the order of the Government in revision. 5. Exhibit P30 having been found to be vitiated, has to be set aside. Exhibit P20, insofar as the alternate punishment proposed, cannot be sustained. Hence, the proposal for a specific punishment under sub-rules (1) or (2) of Rule 65 of Chapter XIV-A KER would stand deleted. Exhibit P20 would be treated as an order of rejection of the proposal for punishment of removal from service. In such circumstance, the Manager would be entitled to take further proceedings in accordance with law and in accordance with the provisions of the KER. It is also made clear that this Court has not looked into the findings in the enquiry or the finding of guilt entered into by the Manager. Nor the merits of the case have been gone into. The 5[th] respondent has a contention WP(C).No.21799 of 2014 - 4 - that she was not participated in the enquiry at all and hence the charges against her cannot be sustained. The contentions of the 4[th] and 5[th] respondents would be left open to be raised and dealt with if any punishment is imposed on re-consideration. The Manager would be entitled to take proceedings as provided under the KER, which shall be taken within a reasonable time, at any rate, within one month from the date of receipt of a certified copy of this judgment, if so advised. The writ petition is disposed of as above. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]