The Manager, Cherumoth L.P. School v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938** **WP(C).No. 8821 of 2008 (A) ---------------------------** **PETITIONER(S): -------------** **THE MANAGER, CHERUMOTH L.P. SCHOOL, POST CHERUMOTH, VIA VALAYAM, VADAKARA TALUK, KOZHICODE DISTRICT, KERALA STATE.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA WITH ADDRESS FOR SERVICE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **2. THE SECRETARY, DEPARTMENT OF EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **3. A.KUNHIRAMAN, CHERUMOTH L.P. SCHOOL (RETIRED) POST. CHERUMOTH, VIA VALAYAM, VADAKARA TALUK, KOZHIKODE DISTRICT.** **4. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.** **5. ASSISTANT EDUCATION OFFICER, NADAPURAM.** - **R1, R2, R4 & R5 BY SENIOR GOVERNMENT PLEADER SRI.P.FAZIL R3 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.C.P.SIVADASAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 8821 of 2008 (A)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE LETTER DTD.4.1.2006 ADDRESSED TO THE 2ND RESPONDENT BY THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC.1005/06 DTD.8.2.2006 OF THIS HON'BLE COURT.** **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD.22.5.2006.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC.NO.16116/2006 OF THE HON'BLE HIGH COURT OF KERALA DTD.20TH JULY 2006.** **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE DTD.28.9.2006.** **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS 4/06 DTD.5.10.2006 OF THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM DTD.9.1.2007.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THE KERALA HIGH COURT IN WPC.NO.6107 (B) DTD.27TH MARCH 2007.** **EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD.31.1.2008.** - **EXHIBIT P10 TRUE COPY OF THE LETTER BY GOVERNMENT OF KERALA DTD.18.1.2007 TO THE PETITIONER.** **EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT EDUCATION OFFICER DTD.2.5.2006 GRANTING THE WRIT PETITIONER LEAVE TO IMPOSE PUNISHMENT.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.8821 of 2008 ------------------------------Dated 10[th] June, 2016 ## **JUDGMENT** The petitioner is the Manager of the Cherumoth L.P.School. It is an aided school governed by the Kerala Education Act and the Kerala Education Rules framed thereunder. Earlier, invoking the power under Rule 67 of Chapter XIV A of the Kerala Education Rules (for short `KER') he placed the 3[rd] respondent, who was the then Headmaster of the school, under suspension. Disciplinary proceedings were initiated against him and the 5[th] respondent conducted a formal enquiry. On receipt of the enquiry report the petitioner formed the opinion that a major penalty of reduction in rank should be imposed on the 3[rd] respondent and then, called upon to submit his explanation why the penalty should not be imposed on him. On obtaining the representation from the 3[rd] respondent, evidently the petitioner found it unacceptable and subsequently, the 5[th] respondent granted permission to enforce the penalty of reduction in rank on the 3[rd] respondent. Earlier, feeling aggrieved by the order of suspension, the 3[rd] respondent filed a representation against the said order before the 2[nd] respondent as per Ext.P1. Feeling aggrieved by the delay in the WP(C).No.8821/2008 2 matter of its consideration, he moved this Court by filing W.P.(C) No.1005 of 2006. The said writ petition was disposed of as per Ext.P2 judgment whereby, the 2[nd] respondent therein/first respondent herein was directed to consider the representation and pass appropriate orders thereon. Pursuant to Ext.P2 judgment, the 1[st ] respondent considered Ext.P1 and annulled the order of suspension and also directed for reinstatement of the 3[rd] respondent. As per Ext.P3 the 1[st] respondent issued the following orders:- - “i. The order of the Manager, LPS Cherumoth read as 5[th] paper above reverting Sri.A.Kunhiraman as LPSA and order No.3/06 of the Manager, promoting Sri.C.Nanu as Headmaster of the school will stand quashed. - ii. The Manager is directed to reinstate Sri.A.Kunhiraman as Headmaster of the school with immediate effect pending finalisation of the disciplinary proceedings. - iii. The Deputy Director of Education, Kozhikode is directed to conduct a detailed enquiry on the allegations made against the petitioner and to finalise the disciplinary proceedings, within a month. - iv. The Asst.Edl.Officer, Nadapuram is directed to furnish detailed explanation to Government within a week for having given clearance to the Manager of the school to revert the petitioner, without waiting for government decision in the matter, especially in view of the position that connected matter was pending before government, as by the Hon.High Court.” WP(C).No.8821/2008 3 2. Aggrieved by Ext.P3, the petitioner herein approached this Court by filing W.P.(C)No. 16116/2006. Essentially, the contention was that the 1[st] respondent had exceeded his power by ordering for reinstatement of the 3[rd] respondent. The said writ petition was disposed of as per Ext.P4 judgment. As a matter of fact, the 3[rd] respondent had also filed a writ petition on being aggrieved by Ext.P3. Both the writ petitions were disposed of by Ext.P4 common judgment. Obviously, as per the same, this Court ordered to keep in abeyance clauses (i) and (ii) of Ext.P3 order till the Deputy Director of Education, Kozhikode completes enquiry as directed in Ext.P3 order. Further, the Deputy Director was directed to complete the enquiry untrammelled by any conclusions or observations made by the Government in Ext.P12 order therein (Ext.P3 herein). After conducting such an enquiry, the report was again forwarded to the petitioner herein for taking appropriate action, in accordance with law. After considering the said report the petitioner passed Ext.P6 order dated 05.10.2006 whereby a penalty of barring of two increments with cumulative effect was imposed on the 3[rd] respondent and he was further directed to join the office of Headmaster of the school. Thereupon, the 3[rd] respondent preferred an appeal against Ext.P6 order. As Per Ext.P7 order dated 19.01.2007 the Additional Director of Public Instruction interfered with Ext.P6 order and modified WP(C).No.8821/2008 4 the penalty to barring of two increments for one year without cumulative effect. As per Ext.P7, the 3[rd] respondent was ordered to be reinstated with effect from 22.05.2006 and the salary for the period from 22.05.2006 to the date of actual reinstatement was ordered to be fixed as the liability of the petitioner. Ext.P7 order was challenged by the petitioner before this Court by filing W.P.(C)No.6107 of 2007. The 3[rd] respondent also approached this Court against Ext.P7 order by filing W.P. (C) No.10106 of 2007. As per Ext.P8, both the writ petitions were disposed of with liberty to the petitioner to invoke the revisional remedy under Rule 92 of Chapter XIV A, KER and in turn, the Government was directed to consider the revision petition, if filed by the petitioner, in accordance with law and to pass appropriate orders thereon. Obviously, pursuant to Ext.P8, the petitioner preferred a Revision Petition under Rule 92 of Chapter XIV A, KER. It is the said revision petition which was disposed of by the Government as per Ext.P9 order viz; the impugned order. It is to be noted that the Government took note of the fact that by the time revision petition was taken up for consideration the 3[rd] respondent had retired from service. It is a fact that the 3[rd] respondent was not exonerated by any of the Educational authorities and only the degree of penalty was interfered with by such authorities. In such circumstances, evidently, taking note of the fact that the 3[rd] respondent WP(C).No.8821/2008 5 retired from service, Government thought it fit to interfere with the order of penalty and modified the same further to a penalty of censure as provided under Rule 65 of Chapter XIV A, KER. At the same time, after modifying the penalty imposed on the 3[rd] respondent as above, it was further held that the petitioner had disobeyed the Government order dated 22.05.2006 (Ext.P3) by imposing a major penalty for a minor offence. Consequently, the 4[th] respondent was directed to call for an explanation from the petitioner and to initiate disciplinary action against him. It was ordered thus:- “Since the action of the Manager in applying major punishment for minor offence Against Sri.Kunhiraman and disobeying of Government Order dated 22-5-2006 deserves calling for explanation and the disciplinary action. He may be charge sheeted for the above offences by Deputy Director of Education, Kozhikoe as per provisions in the Kerala Eduction Rules and liability if any need be fixed after that if the Educational Officer is convinced of his offence or otherwise the Manager can be declared unfit if necessary as provided in Rule 7 Chapter III KER.” The DDE, Kozhikode is directed to take necessary action in this regard”. This writ petition is filed mainly challenging Ext.P9 order and seeking further reliefs. 3. I have heard the learned counsel for the petitioner, the learned counsel appearing for the 3[rd] respondent and also the learned Government Pleader. WP(C).No.8821/2008 6 4. A counter affidavit has been filed on behalf of the 5[th] respondent. Evidently, the counter affidavit has been filed in tune with and in terms of the directions in Ext.P9 and justifying them. Ultimately, it is stated that the petitioner is not justified in attributing illegality in Ext.P9 order and direction of the Government to initiate appropriate action against the petitioner is also in tune with the provisions under the KER. It is stated therein that a perusal of Ext.P9 order itself would reveal that the petitioner herein had earlier disobeyed the Government order dated 22.05.2006 viz; Ext.P3 order and in such circumstances, it is only befitting to call for an explanation from him and to initiate disciplinary action in accordance with law. 5. The learned counsel for the petitioner contended that a bare perusal of Ext.P9 order would reveal the basis for ordering initiation of disciplinary proceedings and for calling explanation with a view to take disciplinary action against the third respondent is disobedience of the Government Order dated 22.05.2006 viz. Ext.P3 order. The learned counsel for the petitioner submitted that the respondents have lost sight of the fact that this Court as per Ext.P4 judgment directed to keep in abeyance the operation of clauses (i) and (ii) of Ext. P3 order. It is further contended that Ext.P4 judgment of this Court would reveal that after ordering to keep in abeyance clauses (i) and (ii) of Ext.P3 WP(C).No.8821/2008 7 permission was granted to the Deputy Director I.e; the 4[th] respondent, to go on with the enquiry. Pursuant to the directions thereunder the 4[th] respondent continued with the enquiry and forwarded the copy of the report to the petitioner to take appropriate action in his capacity as the Manager of the School. The petitioner imposed the penalty on the 3[rd] respondent as per Ext.P6 perfectly in tune with the provisions under the KER and he imposed only a penalty which is permitted to be imposed going by Rule 65 of Chapter XIV A, KER. Going by the scheme of KER, in case a teacher is aggrieved by the imposition of a penalty, it is for the said teacher to take up the matter further before the appellate authority, in accordance with law. In this case, feeling aggrieved by Ext.P6 the 3[rd] respondent took up the matter by filing an appeal which culminated in Ext.P7 order. It is further contended that the sustainability of the said order was challenged not only by the petitioner but also by the 3[rd] respondent before this Court as is obvious from Ext.P8 judgment. Ext.P9 order was passed by 2[nd] respondent based on the directions of this Court in Ext.P8 as the petitioner preferred a revision petition availing the opportunity granted by this Court as per Ext.P8 judgment. In the said circumstances, it is contended that the respondents are not justified in holding that the petitioner was willfully disobeying the directions in Ext.P3 order and to initiate disciplinary proceedings against the 3[rd] WP(C).No.8821/2008 8 respondent based on such a view. The learned Government Pleader contended that the contentions raised by the petitioner are bereft of any basis and it is evident from Ext.P9 order that virtually, the petitioner had disobeyed the directions under Ext.P3 order. 6. In the wake of the factual backdrop obtained in this case a legal question arises for consideration. What is the jurisdiction of the Government or in that matter of the Educational authorities to dictate the Manager, when the disciplinary proceeding initiated against a teacher is yet to reach at its logical conclusion, that a major penalty shall not be imposed on the delinquent teacher ? The scheme of the Kerala Education Rules contained in Chapter XIV-A prescribes the procedures for imposing penalties and Rule 75(11)(c) prescribes imposition of penalties specified in items (iv) to (viii) of Rule 65 thereunder. It would reveal absence of any other deterrent on the exercise of power to impose penalty by the Manager or to divest the disciplinary powers of the Manager who is the appointing authority. Rule 75(11)(c) reads thus:- “(c) On receipt of the representation, if any and after taking into consideration the representation, final orders shall be passed by the manager imposing the penalty with the previous sanction of the competent authority.” Going by the said provision, without the previous sanction of the competent authority no Manager could impose any of the penalties WP(C).No.8821/2008 9 specified in items (iv) to (viii) of Rule 65 of Chapter XIV-A, KER. What could be legally deduced from the said provision is that in appropriate cases the competent authority, if it comes to the opinion, on permissive grounds, that no sanction to impose the proposed punishment falling under any of the items under (iv) to (viii) could be sanctioned it could decline sanction to impose the said penalty. But, certainly, that would not make a direction to the Manager not to impose a major penalty even when the disciplinary proceedings are yet to reach the stage requiring the Manager to seek for previous sanction in terms of Rule 75(11)(c) _intra vires_ and in fact, issuance of any such direction would be _ultra vires_ . Evidently, none of the provisions in the statute confer any such powers on the Government as also on any of the Educational authorities. In other words, though the disciplinary jurisdiction vested with the Manager of an aided school has to be exercised by him subject to the specific provisions under the KER, it cannot be inter-meddled by any authority or Government and any intervention is possible only on permissive grounds at permissive stage. In fact, a perusal of Rule 67 of Chapter XIV-A, KER would reveal that the Manager may, at any time, place a teacher under suspension when disciplinary proceedings against him are contemplated or are pending or when a case against him in respect of any criminal offence is under investigation and on such other WP(C).No.8821/2008 10 circumstances envisaged under Rule 67. Sub-rules (11) (a) to (c) of Rule 75 would undoubtedly make it clear that before imposing the penalties envisaged under Sub-rules (iv) to (viii) of Rule 65 a previous sanction has to be obtained by the Manager for imposing such penalties. Apart from the provision under Rule 75(11)(c) no statutory inhibition is there on the Manager in the matter of exercise of his power as the disciplinary authority. We may hasten to add that the Manager has no power to conduct the enquiry though the question of punishment is for him to decide, subject, of course, to Rule 75(11)(c) of Chapter XIV-A, KER (See the decisions in **Manager S.N.T. U.P.S., Ranni** v. **DEO, Pathanamthitta** reported in **1973 KLT SN 30** and in **Parameswaran Namboodiri** v. **State of Kerala** reported in **1981 KLT 231)** . In the contextual situation, it will not be inapposite to refer to a decision of this Court in **Rev. Fr. Joseph** v. **District Educational Officer, Irinjalakuda** ( **1965 KLT 174** ), as well. It was held therein that the power and duty to implement the findings of the Enquiry Officer and to fix the penalty at the first instance is on the Manager. Thus, the provisions referred to hereinbefore and the decision referred supra make the position clear that the power to conduct enquiry vests with the educational authorities and after completing the enquiry the said authority is duty bound to forward the copy of the report for appropriate WP(C).No.8821/2008 11 action to the Manager and the matter of finalisation of the penalty at the first instance is exclusively vested with the Manager. The duty of Education Officer is only to conduct the enquiry and forward the report to the Manager. When that be so, either Government or any Educational authorities cannot have any power to dictate the Manager as to the nature of the penalty to be imposed during the course of disciplinary proceedings. Ext.P4 would reveal that at the time of passing the said order, the Deputy Director of Education, Kozhikode was yet to complete enquiry and in fact, by that time, the direction of this Court to the Deputy Director of Education to complete the enquiry untrammelled by any conclusions or observations made by the Government in Ext.P12 order or any findings or observations in the enquiry report of the AEO was yet to be carried out. Ext.P12 order therein is Ext.P3 herein. When this Court, in unambiguous terms, made it clear that the Deputy Director of Education has to complete the enquiry untrammelled by any conclusions or observations made by the Government in Ext.P3 order there is absolutely no justification for the respondents to call for an explanation or for initiating action alleging disobedience with the directions in Ext.P3 order. Normally, a decision of the Government to initiate action against a Manager will not call for interference. But, the circumstances obtained in this case would undoubtedly reveal that no WP(C).No.8821/2008 12 action whatsoever could be initiated legally against the petitioner alleging disobedience with Ext.P3 order in view of the factual position obtained in this case. 7. The upshot of the discussion is that the directions in Ext.P9 order to the extent it directed the 4[th] respondent to call for explanation and to initiate action for imposing only the penalty of barring of increments on the 3[rd] respondent, are clearly without jurisdiction. In the said circumstances, the directions in Ext.P9 for initiation of action against the petitioner is palpably unsustainable and it invites interference. Ext.P9 order is therefore, set aside to the extent it ordered calling for explanation and for initiating action against the petitioner for alleged disobedience. The writ petition is allowed as above. Sd/C.T.RAVIKUMAR Judge MJL/TKS