The Manager, Calicut Girls Vocational and Higher Secondary School, Kudungal v Rasheeda Beegum K.M and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 WA NO. 633 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 23453/2020 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/5TH RESPONDENT IN WP:** **THE MANAGER, CALICUT GIRLS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUDUNGAL P.O, KALLAI, KOZHIKODE DISTRICT - 673003.** **BY ADVS. P.NANDAKUMAR SMT.AMRUTHA SANJEEV SHRI.VIVEK VIJAYAKUMAR** ## **RESPONDENTS/PETITIONER % RESPONDENTS 1 TO 4, 6 & 7 IN WP:** **1 RASHEEDA BEEGUM K.M, AGED 54 YEARS, W/O. LATE ABDUL NAZAR P.M, HEADMISTRESS, CALICUT GIRLS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUNDUNGAL P.O, KALLAI, KOZHIKODE DISTRICT - 673003.** **2 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** - **3 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM - 695014.** **4 THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE, KOZHIKODE DISTRICT - 673001.** **WA NO. 633 OF 2021** 2 - **5 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE, KOZHIKODE DISTRICT - 673001.** - **6 RUFSANA K HSA (SOCIAL SCIENCE), CALICUT GIRLS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUDUNGAL P.O, KALLAI, KOZHIKODE DISTRICT - 673003.** **7 T.K. MAJITHA T.K, HIGH SCHOOL ASSISTANT (ARABIC), CALICUT GIRLS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KUDUNGAL P.O, KALLAI, KOZHIKODE DISTRICT – 673003.** ## **BY SRI.R.K.MURALEEDHARAN** ## **SRI.V.A.MUHAMMED** **SR.G.P. SRI. PREMCHAND R NAIR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA NO. 633 OF 2021** 3 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. The Manager of the Calicut Girls Vocational Higher Secondary School, Kundungal is the appellant before us, aggrieved by the judgment dated 03.03.2021 of the learned Single Judge in WP(C)No.23453 of 2020. The brief facts necessary for the disposal of the writ appeal are as follows:- The writ petitioner while working as the Headmistress of an aided school was suspended with effect from 15.05.2017 in connection with certain misconducts alleged against her. A charge memo, together with a statement of allegations, was served on her on 30.08.2017 and, although by reply dated 03.10.2017 the writ petitioner refuted the allegations in the charge memo, an enquiry was conducted in the matter by the Deputy Director of Education, who went on to prepare Ext.P5 enquiry report dated 14.11.2017 in which charges 1 and 2 levelled against the petitioner were found established. Thereafter, by a show cause notice dated 20.11.2017 the petitioner was asked to show cause as to why the enquiry report of the Deputy Director should not be **WA NO. 633 OF 2021** 4 accepted and a punishment of removal from service not imposed on her for the proved misconduct. It would appear that the petitioner did not prefer any reply, apparently on account of the illness of her husband who subsequently expired. Consequently, the Manager passed an order dated 22.01.2018 (Ext.P7) removing the petitioner from service subject to approval of the said action by the Deputy Director. 2. The Deputy Director by order dated 17.03.2018 refused sanction for imposition of the punishment of removal from service on the contention that the said punishment would be disproportionate to the charges established against the petitioner. The petitioner thereupon moved the DPI seeking reinstatement and thereafter approached this Court through WP(C)No.4246 of 2018. Based on the directions issued in the writ petition the petitioner was reinstated in service. The Manager had in the meanwhile preferred a revision petition before the Government which was dismissed by order dated 12.06.2010 (Ext.P13). By dismissing the revision petition, the Government effectively refused sanction for imposition of the major penalty on the writ petitioner. The Manager therefore proceeded to issue a fresh show cause notice proposing a reduction and rank to the post of HSA Malayalam based on the enquiry report that was earlier submitted by the Deputy Director. In response to the show cause notice **WA NO. 633 OF 2021** 5 the writ petitioner, by communication dated 20.10.2020 (Ext.P15), sought for certain documents so as to prefer an effective reply to the show cause notice. Immediately thereafter, the petitioner also approached this Court through the writ petition aforementioned challenging the show cause notice dated 28.07.2020 and seeking a declaration that a second major penalty could not be proposed or imposed on the petitioner, in as much as Ext.P13 order of the Government dismissing the revision petition preferred by the Manager had become final. It was also contended in the writ petition that in as much as the Manager had not continued any disciplinary proceedings against the 7[th] respondent, against whom also there had been allegations raised with regard to misappropriation, the Manager had to be seen as meting out discrimination, and adopting double standards in the matter. It needs to be mentioned at this stage that during the pendency of the writ petition the Manager proceeded to finalise the proceedings initiated through the show cause that was impugned in the writ petition and by an order dated 02.11.2020 (Ext.P17) imposed the proposed punishment on the petitioner. 3. The learned Single Judge who considered the matter found that in as much as the Deputy Director had earlier refused sanction for the imposition of a major punishment of removal from service and the **WA NO. 633 OF 2021** 6 said order had been affirmed by the Government in revision, it was not open to the Manager of the school to issue a fresh show cause notice proposing a major punishment. The learned Judge found that if the Manager wanted to take any further action against the petitioner it was incumbent upon him to first approach the Deputy Director or alternatively to challenge Ext.P13 order of the Government, before embarking upon such a procedure. The writ petition was therefore allowed by setting aside the show cause notice issued by the Manager. 4. Before us, it is the submission of Sri.P.Nandakumar, the learned counsel for the appellant that the learned Judge erred in quashing Ext.P14 show cause notice since it was trite that, on sanction being refused to impose one major penalty, the Manager could, by placing reliance on the same enquiry report propose an alternate major penalty. Reliance was placed on the decision of a Division Bench of this Court in **Muhammed v. Secretary to Government** (2003 KHC 570) to support the said contention. 5. On a consideration of the rival submissions, we are of the view that the position of law laid down in the decision aforecited cannot be in doubt. When an educational authority refuses sanction to a proposal by a Manager to impose a particular punishment, the refusal **WA NO. 633 OF 2021** 7 must be seen as pertaining only to the specific proposal that was under consideration before the educational authority. The refusal cannot have the effect of preventing the Manager from independently proceeding with a proposal for imposition of another punishment based on the findings in an enquiry report that has been accepted for the purposes of the disciplinary proceedings. We therefore, find that the impugned judgment of the learned Single Judge quashing the show cause notice cannot be legally sustained and we set aside the same. 6. On the necessity of continuing the proceedings against the petitioner, we take note of the submission of the learned counsel for the writ petitioner that she is due to retire on 31.03.2022 and that the Manager has not pursued disciplinary proceedings against other teachers who were found to have committed acts of misconduct that were more serious in nature than that attributed to the petitioner. The learned counsel for the appellant would clarify that the proceedings against the said other teachers although initiated, could not be continued on account of a refusal of sanction by the Deputy Director and later, by the Government. It is stated that the appellant is taking steps to impugn the said orders of the educational authorities refusing sanction. **WA NO. 633 OF 2021** 8 7. Considering the time spent on litigation thus far, as also the fact that the petitioner is due to retire shortly, we requested the learned counsel for the appellant-Manager to consider whether a lenient view could be taken in the matter and a quietus put to the litigation. 8. The learned counsel for the appellant after getting instructions from his client, fairly submited that a lenient view can be taken and the punishment reduced to barring of three increments without cumulative effect, subject to the condition that the period of suspension undergone by the petitioner be treated as eligible leave available to her credit. We find the offer of the appellant to be reasonable one, save with regard to the number of increments sought to be barred. We feel it would suffice if one increment is barred without cumulative effect and the suspension period treated as eligible leave, with the remainder of any unadjusted leave being treated as Leave Without Allowance'. We therefore, dispose this appeal by setting aside the impugned judgment of the learned Single Judge, and modifying Ext.P17 order of punishment, by substituting the punishment as 'barring of one increment without cumulative effect and treating the suspension period as eligible leave with the remainder of any unadjusted leave being **WA NO. 633 OF 2021** 9 treated as Leave Without Allowance'. In the peculiar facts and circumstances of the case we also deem it appropriate to dispense with the requirement of ratification of the aforesaid punishment for the purposes of the KER. The appellant shall pass a formal order imposing the punishment as aforedirected within two weeks from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk 30.09.2021