The Manager, Darul Uloom Vocational Higher Secondary and Higher Secondary School v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939 WP(C).No. 32772 of 2015 (V) ---------------------------- PETITIONER(S): ------------- THE MANAGER , DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, ERNAKULAM-682 018. BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.M.C.GOPI RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DIREICTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM, PIN-695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM-682 030. 4. THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM-682 031. 5. RIBINA K.A. FORMER PHYSICAL EDUCATION TEACHER, DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682 018, RESIDING AT KANIYAMPARAMBIL HOUSE, NORTH PARAVOOR, ERNAKULAM DISTRICT-683 513. R5 BY ADV. SRI.C.S.ABDUL SAMMAD R5 BY ADV. SRI.T.U.ZIYAD R5 BY ADV. SRI.SUNIL V.MOHAMMED R5 BY ADV. SRI.P.K.SURESH KUMAR (SR.) R1-R4 BY GOVERNMENT PLEADER SRI.P.K.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.8.2017, THE COURT ON 19-09-2017 DELIVERED THE FOLLOWING: WP(C).No. 32772 of 2015 (V) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXT.P1. TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTED 31/12/2011. EXT.P2. TRUE COPY OF THE LETTER DATED 6/1/2012 ISSUED BY THE 5TH RESPONDENT EXT.P3. TRUE COPY OF THE LETTER DATED 9/1/2012 SENT BY THE MANAGER EXT.P4. TRUE COPY OF THE LETTER DATED 12/1/2012 SENT BY THE 5TH RESPONDENT TO THE MANAGING DIRECTOR EXT.P5. TRUE COPY OF THE LETTER DATED 12/1/2012 OF THE HEADMASTER TO THE MANAGER EXT.P6. TRUE COPY OF THE LETTER DATED 16/1/2012 OF THE MANAGER TO THE 5TH RESPONDENT EXT.P7. TRUE COPY OF THE LETTER OF THE PRINCIPAL TO THE MANAGER DATED 20/1/2012. EXT.P8. TRUE COPY OF THE REQUEST OF THE MANAGER DATED 22/2/2012 TO THE DEO, ERNAKULAM. EXT.P9. TRUE COPY OF THE COMPLAINT MADE BY SMT.E.S.RUKIYA DATED NIL. EXT.P9(A). TRUE COPY OF THE COMPLAINT MADE BY LADIES STAFF, SECRETARY AND OTHER DATED 24/6/2011. EXT.P9(B). TRUE COPY OF THE COMPLAINT MADE BY PRINCIPAL OF THE SCHOOL DATED 21/11/2011. EXT.P9(C). TRUE COPY OF THE COMPLAINT MADE BY PRINCIPAL OF THE SCHOOL DATED 28/11/2011. EXT.P9(D). TRUE COPY OF THE COMPLAINT MADE BY THE HEADMASTER TO THE MANAGR DATED 30/11/2011. EXT.P9(E). TRUE COPY OF THE COMPLAINT MADE BY THE HEADMASTER TO THE MANAGR DATED 8/12/2011. EXT.P10. TRUE COPY OF THE ENQUIRY REPROT DATED 8/3/2012. EXT.P11. TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25/5/2012. EXT.P12. TRUE COPY OF THE OBJECTION DATED 18/6/2012 BY THE 5TH RESPONDENT TO THE MANAGER EXT.P13. TRUE COPY OF THE PROCEEDINGS DATED 7/11/2012 BY THE MANAGER EXT.P14. TRUE COPY OF THE REQUEST DATED 28/6/2012 OF THE MANAGER TO THE DEO , ERNAKULAM. -2- ## **WP(C).No. 32772 of 2015 (V)** EXT.P15. TRUE COPY OF THE ORDER NO.12439/2012/B2 DATED 24/9/2012 BY THE DEO. EXT.P16. TRUE COPY OF THE G.O.(RT) NO.4610/2013/G.EDN DATED 31/10/2013. EXT.P17. TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 8/11/2013. EXT.P18. TRUE COPY OF THE JUDGMENT DATED 21/5/2015 IN WPC NO.30422/2013. EXT.P19. TRUE COPY OF THE ORDER IN IA NO.11858/2015 IN WPCV NO.30422/2013 DATED 9/9/2015. EXT.P20. TRUE COPY OF THE GO.(RT) NO.4784/2015/G.EDN DATED 8/10/2015. RESPONDENT(S)' EXHIBITS ------------------------ EXHIBIT R5(a): COPY OF JUDGMENT DATED 16.1.2012 IN WP(C).33894/2011 OF THIS HONOURABLE COURT. EXHIBIT R5(b): COPY OF SECOND ORDER OF SUSPENSION DATED 17.1.2012. EXHIBIT R5(c): COPY OF ORDER DATED 24.9.2012 OF DEPUTY DIRECTOR OF EDUCATION. EXHIBIT R5(d): COPY OF INTIMATION DATED 1.7.2013 AND NOTE OF MINISTER. EXHIBIT R5(e): COPY OF DUTY CERTIFICATE DATED 23.11.2011. EXHIBIT R5(f): COPY OF DUTY CERTIFICATE DATED 25.11.2011. EXHIBIT R5(g): COPYOF DUTY CERTIFIFCATE DATED 30.11.2011. EXHIBIT R5(h): COPY OF RELEVANT PAGES OF ANNUAL REPORT FOR THE PERIOD 2010-11. EXHIBIT R5(i): COPY OF LETTER OF APPRECIATION ISSUEDBY AEO, ERNAKULAM. EXHIBIT R5(j): COPY OF LETTER OF APPRECIATION ISSUED BY DDE, ERNAKULAM. EXHIBIT R5(k): COPYOF COMPLAINT OF RUCKIYA. EXHIBIT R5(l): COPYOF COMPLAINT OF TEACHERS. EXHIBIT R5(m): COPY OF ENQUIRY REPORT OF STAFF SECRETARY AND JOINT STAFF SECRETARY. EXHIBIT R5(n): COPY OF JUDGMENT DATED 20.12.2016 IN WRIT APPEAL NO.1242/2015. EXHIBIT R5(o): COPY OF ATTENDANCE REGISTER FOR OTHE MONTH OF OCTOBER, 2010. EXHIBIT R5(p): COPY OF SUBSTITUTE ARRANGEMENT BOOK DATED 18.10.2010. **WP(C).No. 32772 of 2015 (V)** -3- EXHIBIT R5(q): COPY OF ATTENDANCE REGISTER FOR THE MONTH OF NOVEMBER AND DECEMBER, 2010 AND JANUARY AND FEBRUARY, 2011. EXHIBIT R5(r-1) COPY OF SUBSTITUTE ARRANGEMENT BOOK FOR 29.11.2010. EXHIBIT R5(r-2): COPY OF SUBSTITUTE ARRANGEMENT BOOK FOR 9.12.2010. EXHIBIT R5(r-3): COPY OF SUBSTITUTE ARRANGEMENT BOOK FOR 10.12.2010. EXHIBIT R5(r-4): DO. DO. DATED 13.12.2010. EXHIBIT R5(r-5): DO. DO. DATED 24.1.2011. EXHIBIT R5(r-6): DO. DO. DATED 2.2.2011. EXHIBIT R5(s): COPY OF E-MAIL INTIMATION OF OTHE 5TH RESPONDENT DATED 18.11.2011 ADRESSING ALL HMs REGARDING EXT.R5(f) EVENT. EXHIBIT R5(t-1): COPY OF INTIMATION DATED 19.11.2011 OF THE CONCERNED AUTHORITIES ADDRESSED TO THE HEADMASTER REGARDING EXT.R5(f) EVENT. EXHIBIT R5(t-2): COPY OF INTIMATION DATED 21.11.2011 OF THE CONCERNED AUTHORITIES ADDRESSED TO THE HEADMASTER REGARDING EXT.R5(g) EVENT. EXHIBIT R5(u): COPYH OF ANNUAL REPORT PREPARED BY THE PETITIONER FOR OTHE ACADEMIC YEAR 2009-10 CONTAINING THE COUNTER SIGNATURE OF THE HEADMASTER. EXHIBIT R5(v): COPY OF TEACHING MANUAL FOR THE ACADEMIC YEAR 20112012 CONTAINING THE COUNTER SIGNATURE OF OTHE HEADMASTER. EXHIBIT R5(w): COPY OF ENQUIRY REPORT OF THE GENERAL EDUCATION DEPARTMENT AGAINST THE DEO. EXHIBIT R5(x): COPY OF REPRESENTATION DATED 8.3.2012 PREFERRED BY THE PETITIONER BEFORE THE DEO. EXHIBIT R5(y): COPY OF ORDER NO.B2/6251/2013 DATED 20.7.2013 OF THE 4TH RESPONDENT. EXHIBIT R5(z): COPY OF COMPLETE AND LEGIBLE COMPLAINT DATED 24.6.2011. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 32772 of 2015** **----------------------------------------------Dated this the 19[th] day of September, 2017** ## **JUDGMENT** This writ petition is filed by the Manager of an aided school with the prayers as follows: - _“a) to issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P15 and P20 and quash the same._ - _b) to declare that the punishment proposed by the petitioner is commensurate with the proved charges._ - _c) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent to reconsider the matter and grant sanction for removal of the 5[th] respondent from the service of the school as sought for in the revision filed by the petitioner.”_ 2. By Exhibit P15 order, the Deputy Director of Education had considered the request made by the Manger for sanction to impose the major punishment of removal from service. The Deputy Director found that the charges proved are not sufficient to impose the major punishment of removal from service. However, liberty was given to the Manger for imposing 2 _**WP(C).32772/15**_ punishment proportionate to the gravity to the charges proved as per the enquiry report of the District Educational Officer. This order was taken in revision by the Manager. Initially the revision was allowed and the Manager was permitted to proceed with the imposition of penalty of removal. By Exhibit P17, the Manger imposed the penalty of removal from service with effect from 17.1.2012. The 5[th] respondent, the aggrieved teacher, challenged the orders passed by the Government in revision and the order of the Manager filing W.P(C).No. 30422 of 2013. This Court, by judgment dated 21.5.2015, found that the order of the Government were one issued without application of mind. The order passed in revision as well as the order of termination passed by the Manger were therefore set aside and the Government was directed to reconsider the revision petition. After reconsideration, Exhibit P20 order has been issued by the Government. The contention of the management that the delinquent teacher was found guilty of gross misconduct and dereliction of duty was taken note of. It was also found that no statement of defence had been filed by the teacher and that six of the nine charges raised against the teacher stood proved. However, the Government found that the proven charges of insubordination and misbehaviour do not _**WP(C).32772/15**_ 3 warrant an action for removal from service. The manager was therefore directed to proceed with the imposition of punishment proportionate to the charges proved. 3. Heard Sri.N.N.Sukunapalan, learned Senior counsel appearing for the petitioner and the learned Government Pleader as well as Sri.P.K.Suresh Kumar, learned Senior Counsel appearing for the 5[th] respondent. 4. It is submitted by the learned Senior Counsel appearing for the petitioner that the substantial findings in Exhibit P10 enquiry report stands concluded as against the petitioner. It is submitted that this Court in Exhibit P18 judgment had, in essence, found that there was no material irregularity in the conduct of the enquiry. All the proven charges were with regard to the insubordination and misbehaviour of the teacher. In the circumstances, it is submitted that the punishment of removal was completely justified. The learned Senior Counsel relies on several decisions of this Court and of the Apex Court including the decisions reported in _**New Shiorrock Mills v. Maheshbhai T. Rao**_ [(1996) 6 SCC 590], _**Orissa Cement Ltd. v. Adikanda Sabu**_ [1960(1) LLJ 518 SC], _**Mahindra and Mahindra Ltd. v. N.B.Narawade**_ [(2005) 3 SCC 134], _**Cochin Shipyard Ltd. v. Industrial Tribunal**_ [2006 (2) KLT 4 _**WP(C).32772/15**_ 825] and _**M/s.Tata Tea Limited v. General Secretary and another**_ [2007 (2) KHC 338] to contend that there was no error whatsoever in the imposition of the major penalty of removal from service in a case where the delinquent teacher was found guilty of abusing his superiors and threatening his colleagues. 5. The learned Senior Counsel appearing for the 5[th] respondent, would, on the other hand, contend that there were serious irregularities vitiating the enquiry proceedings. The 5[th] respondent was not shown the documents relied on in the enquiry in spite of repeated requests made by him. He was disabled from submitting his written statement of defence, since none of the complaints allegedly made against him had been made available to him before the enquiry was conducted and concluded in the space of one hour. It is stated that on 8.3.2012, the District Educational Officer had come to the school for the conduct of the enquiry. The 5[th] respondent had appeared before him and requested for time to see the documents relied on. The request was disallowed. The examination of witnesses was completed within one hour and Exhibit P10 enquiry report, which is seen dated on the same day, had been issued by the District Educational Officer. The _**WP(C).32772/15**_ 5 learned Senior Counsel submits that the entire procedure of enquiry was vitiated by violation of the principles of natural justice and that the imposition of a major penalty on the basis of findings made in such a flawed enquiry was per se impermissible. On these grounds, he seeks to sustain the findings of the Government as to the proportionality of the punishment of removal from service. The learned Senior Counsel relies on the decisions of this Court and of the Apex Court in _**Union of India v. E.G.Nambudiri**_ [(1991) 3 SCC 38], _**Anil Gilurker v. Blaspur Raipur Kshetria Gramin Bank**_ [2011(4) KLT SN 57 SC], _**Radhamma v. Thulasi Bai**_ [2006(3) KLT 909], _**Shyla v. Secretary to Government**_ [2010(1) KLT 990] and _**Shiny T. Juster v. R.C.Schools**_ [2013 (2) KLT SN 105]. 6. The learned Government Pleader contended that the charges framed against the petitioner as well as the gravity of the proven charges had been specifically taken note of by the Deputy Director of Education in Exhibit P15. It is submitted that pursuant to the remand of the revision for a fresh consideration, the 1[st] respondent Government has also considered the gravity of the charges which stood proved against the teacher. It was in the above circumstances that _**WP(C).32772/15**_ 6 Exhibit P20 order was issued refusing permission for the imposition of the penalty of removal from service. The order being one passed well within jurisdiction and having considered all the factual aspects of the case in their proper perspective, it is argued that there is no room for interference by this Court in exercise of its power under Article 226 of the Constitution of India. It is further stated that liberty is reserved with the Manager for imposition of a lesser penalty commensurate with the proven charges of insubordination and misconduct and no prejudice is therefore caused to the manager by the order of the Government. 7. I have considered the contentions advanced on all sides. It is pertinent to note that what is urged before me is only a challenge raised by the management against Exhibits P15 and P20 orders refusing sanction for imposition of penalty of removal from service. The arguments raised by the learned Senior Counsel appearing for the 5[th] respondent as regards the propriety of the enquiry conducted by the District Educational Officer would be relevant only to the extent of deciding the legality or otherwise of the orders under challenge at the instance of the management. Since Exhibit P10 enquiry report or the orders passed relying on the same are not under _**WP(C).32772/15**_ 7 challenge before me at the instance of the delinquent teacher, I am not called upon to consider the correctness of the enquiry proceedings which led to Exhibit P10 enquiry report. 8. Exhibit P15 specifically gives the reasons for coming to the conclusion that the penalty of removal from service is grossly disproportionate to the misconduct proved as against the delinquent teacher. Though it was vehemently argued by the learned Senior Counsel appearing for the management that in a case where a teacher is proven to have misbehaved in the school and used abusive language against the Headmaster as also to have threatened other teachers, the penalty of removal from service itself would be a soft punishment taking note of the gravity of the charges found proved. It is therefore contended that the refusal to permit the imposition of such punishment was vitiated by absolute lack of application of mind. 9. After having considered the contentions advanced on either side and having gone through the decisions cited with regard to the proportionality of punishment, I am of the opinion that the gravity of the offences which stood proved as against the 5[th] respondent is essentially a matter for the Deputy Director of Education and the Government to take into account _**WP(C).32772/15**_ 8 while considering the question of sanction for imposition of penalty. It is statutorily provided that no major penalty can be imposed without the previous sanction of the concerned educational officer. It is also clear that the function of the educational officer granting sanction has to be exercised after due application of mind. This Court exercising its power of judicial review under Article 226 of the Constitution of India has to consider the decision making process and not the propriety or correctness of the decision itself, unless of course such decision is found to be completely unreasonable and arbitrary. In the instant case, the contention of the Manager as to the finding in Exhibits P15 and P20 is only with regard to the correctness of the decision itself. No grounds referable to the legality of the decision making process which preceded Exhibits P15 and P20 have been seriously raised before me. From a reading of the impugned orders, it is clear that the contentions raised by the management have been taken note of in their proper perspective by the authorities who issued those orders. No question of jurisdictional error or procedural irregularity have been raised before me. In the above circumstances, I am of the opinion that there is no legal ground available for the setting aside of the orders impugned in this writ petition. From 9 _**WP(C).32772/15**_ the facts and circumstances of the case, I do not find any error of fact or law which vitiates the decision of refusal of sanction for imposition of the penalty of removal from service. The writ petition therefore fails and is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_