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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **FRIDAY, THE 18TH DAY OF JANUARY 2013/28TH POUSHA 1934** **WP(C).No. 20151 of 2012 (T) ---------------------------** ## **PETITIONER(S):** ## **---------------** **THE MANAGER, DARUL ULOOM VOCATIONAL HIGHER SECONDARY SCHOOL ERNAKULAM, COCHIN-682 018.** **BY ADV. SRI.V.A.MUHAMMED** **RESPONDENT(S):** ## **--------------** ## **1. THE STATE OF KERALA** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM AT KAKKANAD-682 030.** **4. THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM DISTRICT-682 011.** **5. SRI. T.U.SADATH LOWER GRADE HINDI TEACHER DARUL ULOOM VOCATIONAL HIGHER SECONDARY SCHOOL ERNAKULAM-682 018.** **R1 TO R4 BY SMT.A.LOWSY,GOVERNMENT PLEADER R5 BY ADV. SRI.K.RAMAKUMAR (SR.)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RKC** WP(C).No. 20151 of 2012 (T) **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 : TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION ISSUED BY THE MANAGER OF THE SCHOOL DTD.12.6.2012.** **EXT.P2 : TRUE COPY OF THE STATEMENT OF DEFENCE OF THE 5TH RESPONDENT, DTD.11.7.2012.** **EXT.P3 : TRUE COPY OF THE PROCEEDINGS OF THE MANAGER, DTD.16.7.2012.** **EXT.P4 : TRUE COPY OF THE FORWARDING LETTER OF THE MANAGER, DTD.17.7.2012.** ## **RESPONDENTS' EXHIBITS** **EXT.R4(a): A TRUE COPY OF THE DETAILED REPORT OF THE PRINCIPAL.** ## **RKC** **// true copy//** **PA to Judge** ## **P.N.RAVINDRAN, J.** ## **--------------------------------------** ## **W.P.(C) No.20151 of 2012** ## **--------------------------------------Dated this the 18[th] day of January, 2013** ## **J U D G M E N T** The petitioner is the Manager of an aided Higher Secondary School. The fifth respondent is the lower grade teacher working in the said school. On allegations of misconduct, the petitioner Manager initiated disciplinary action against the fifth respondent teacher by issuing Ext.P1 memo of charges dated 12.6.2012. Upon receipt thereof, the fifth respondent filed Ext.P2 explanation dated 11.7.2012. The Manager thereafter considered Ext.P2 explanation (written statement of defence) and issued Ext.P3 proceedings dated 16.7.2012 whereby he decided to request the District Educational Officer, Ernakulam to conduct a formal enquiry under rule 75 of Chapter XIV-A of the Kerala Educational Rules. He thereafter forwarded the entire records pertaining to the disciplinary action initiated by him against the fifth respondent to the District Educational Officer, Ernakulam along with Ext.P4 letter dated 17.7.2012. The instant writ petition was filed on 21.8.2012 contending that notwithstanding Ext.P3 proceedings and Ext.P4 letter, the District Educational Officer has not taken any action in the matter. In this writ petition, the petitioner seeks a writ in the nature of mandamus commanding the District Educational Officer, 2 W.P.(C) No.20151 of 2012 Ernakulam to conduct a formal enquiry in terms of rule 75 of Chapter XIV-A of the Kerala Educational Rules and forward the report of enquiry, in a time bound manner. 2. The District Educational Officer, Ernakulam has sworn to a counter affidavit dated 8.1.2013. Paragraphs 2 and 3 thereof are extracted below for easy reference: 2. It is respectfully submitted that in the memo of charges of allegation dated 12.6.2012, the Manager reported about the misconduct, misbehaviour and use of filthy language made by Sri.T.U.Sadath (L.G.Hindi) towards the Manager, Principal and interrupted P.S.C. Examination work. In the detailed report of the Principal on the charges of allegations against Sri.T.U.Sadath (L.G.Hindi), the Principal agreed that all charges made against Sri.T.U.Sadath by the Manager is true. A true copy of the detailed report of the Principal is produced herewith and marked as Ext.R4(a). 3. It is submitted that this office could not conduct enquiry against Sri.T.U.Sadath, (L.G.Hindi) on the charges of allegation by the Manager as the then District Educational officer was transferred and promoted as chief Planning officer on 6.10.2012. The new District Educational Officer took charge on 9.11.2012 and immediately posted enquiry on 21.11.2012 in this officer. But the enquiry was cancelled since the W.P.(C) No.20151/12 filed by the Manager, DUVHS. Ernakulam is pending before this Hon'ble High Court of Kerala. Thus this respondent has not made any willful delay in conducting the enquiry. It is only because the above writ petition is pending that this respondent had cancelled the enquiry that was 3 W.P.(C) No.20151 of 2012 proposed to be conducted on 21.11.2012. 3. In paragraph 3 of the counter affidavit, the deponent has stated that the District Educational Officer who was formerly in office was transferred on 6.10.2012 on being promoted as Chief Planning Officer, that the new District Educational Officer took charge on 9.11.2012 and thereafter posted the enquiry to 21.11.2012, but the enquiry was canceled since this writ petition is pending in this Court. He has also averred that there was no willful delay in conducting the enquiry. 4. The fifth respondent teacher has sworn to a counter affidavit dated 17.10.2012. In paragraphs 4 to 9 of the said counter affidavit he has denied and disputed the various charges leveled against him in the memo of charges. In paragraph 10 of the counter affidavit he has stated that as per the manual of disciplinary proceedings, disciplinary action cannot be taken in respect of the very same allegations in which prosecution is pending. It is also stated that in the matter of proceedings under rule 75 of Chapter XIV-A of the Kerala Educational Rules, an enquiry has to be conducted in accordance with the procedure prescribed for conducting enquiry against the Government Servants. Reliance is placed on the recent decision of a learned single Judge of this Court in **Seetharam Upper Primary School** v. **State** W.P.(C) No.20151 of 2012 4 **of Kerala** (2012 (2) KLT 338) in support of the said contention. In paragraph 11 it is stated that without following the prescribed procedure, the writ petitioner has requested the fourth respondent to conduct an enquiry and that the writ petitioner has initiated proceedings against him at the instance of third parties. 5. I heard Sri.V.A.Muhammed, learned counsel appearing for the petitioner, Smt.A.Lowsy, learned Government Pleader appearing for respondents 1 to 4 and Sri.K.Ramakumar, learned Senior Advocate appearing for the fifth respondent. The learned counsel appearing for the petitioner contented relying on the provisions contained in sub-rule 1 (a) of rule 75 of Chapter XIV-A of the Kerala Educational Rules that it was in accordance with the stipulations therein that the request in Ext.P4 was made after the Manager entered a finding that a formal enquiry should be conducted into charges, that the fourth respondent has a statutory duty to conduct the enquiry and therefore, the fourth respondent ought to have initiated the enquiry without driving the petitioner to move this Court seeking reliefs in that regard. The learned counsel appearing for the petitioner also submitted with reference to the stand taken by the District Educational Officer in paragraph 3 of his counter affidavit that the reason stated by him to cancel the enquiry are not tenable. Per contra, Smt.A.Lowsy, the W.P.(C) No.20151 of 2012 5 learned Government Pleader appearing for respondents 1 to 4 submitted that the District Educational Officer, Ernakulam who took charge only on 9.11.2012 was under the erroneous belief that in view of the pendency of the writ petition it would not be proper for him to conduct an enquiry and that was the reason why he canceled the enquiry that was initially scheduled on 21.11.2012. Sri.K.Ramakumar, learned Senior Advocate appearing for the fifth respondent submitted that as the District Educational Officer has already decided to conduct an enquiry but has canceled it in view of the pendency of this writ petition, the writ petition may be disposed of with a direction to the District Educational Officer to proceed with and complete the enquiry. 6. I have considered the submissions made at the Bar by learned counsel appearing on either side. Rule 75 (1) (a) of Chapter XIV-A of the Kerala Educational Rules Reads as follows: 75(1)(a) Whenever a complaint is received or on intimation from the authorised officer as per Section 12(A) is recorded or on consideration of the report of investigation or for other reasons the manager is satisfied that there is prima facie case for taking action against the teacher definite charge or charges shall be framed and communicated to him with the statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The teacher shall be required to submit within a reasonable time to be specified in that behalf a 6 W.P.(C) No.20151 of 2012 written statement of his defence and also to state whether he desires to be heard in person. The teacher may on his request be permitted to peruse or take extracts from the records pertaining to the case for the purpose of preparing the written statement; provided the manager may, for reasons to be recorded in writing refuse him such access if in his opinion such records are not strictly relevant to the case or it is not essential in Public interest to allow such access. After the written statement is received within the time allowed, the manager may if he is satisfied that a formal enquiry should be held into the conduct of the teacher, order that a formal enquiry may be conducted. 7. The pleadings and materials on record disclose that in the instant case, after Ext.P1 memo of charges was issued and served on the fifth respondent teacher, he had submitted Ext.P2 written statement of defence which is styled as an explanation to the memo of charges. Ext.P3 discloses that the writ petitioner had considered the written statement of defence submitted by the fifth respondent and decided to hold an enquiry after entering a finding that the explanation offered by the teacher is not satisfactory. He had thereafter sent Ext.P4 letter dated 17.7.2012 to the District Educational Officer, Ernakulam requesting him to hold a formal enquiry at the earliest. Sub rule 1 (b) of rule 75 of Chapter XIV-A stipulates that the Manager shall forward the records of the case with a request to the Deputy Director (Education) in the case of Headmasters of High Schools and Training W.P.(C) No.20151 of 2012 7 Schools or to the Educational officers in other cases, that the formal enquiry may be conducted by that officer or any other officer not below the rank of an Assistant Educational Officer authorised by that officer or an officer of the department appointed by the Director or Government. In view of the statutory provisions contained in rule 75 of Chapter XIV-A of Kerala Educational Rules, the District Educational Officer was bound to conduct an enquiry and to forward the report of enquiry to the Manager as stipulated in sub-rule (10) thereof. It was because of the failure of the District Educational Officer to initiate an enquiry pursuant to Ext.P3 proceedings and Ext.P4 request that the instant writ petition was filed on 21.8.2012. The counter affidavit filed by the fourth respondent District Educational Officer discloses that pursuant thereto an enquiry was scheduled to be held on 21.11.2012. But strangely, the District Educational Officer canceled the enquiry merely for the reason that the instant writ petition is pending in this Court. It is evident from the stand taken by the District Educational Officer in his counter affidavit that he has found out an excuse for not holding the enquiry by taking shelter under the plea that the instant writ petition wherein the only relief sought is an order directing him to conduct an enquiry, is pending in this Court. The District Educational Officer, Ernakulam has, instead of proceeding with the enquiry which 8 W.P.(C) No.20151 of 2012 he was bound to conduct in view of the stipulations in rule 75 of Chapter XIV-A of the Kerala Educational Rules, taken advantage of the pendency of this writ petition and postponed it. The District Educational Officer has thereby virtually delayed the completion of the enquiry. The very purpose of the writ petition was to have an enquiry conducted into the charges levelled against the teacher expeditiously. The District Educational Officer was therefore not justified in cancelling the enquiry which he had initially scheduled to be held on 21.11.2012. The averments in paragraph 3 of the affidavit filed by the District Educational Officer, Ernakulam disclose that there was failure on his part in proceeding with and completing the enquiry which he was statutorily bound to conduct. However, having regard to the submission made by the learned Government Pleader that such a stand was taken by him out of ignorance and inadvertance, I refrain from making any further comments on the conduct of the fourth respondent. The pleadings and materials on record disclose that the District Educational Officer has on receipt of the records from the Manager decided to conduct an enquiry into the charges levelled. In such circumstances, as no one has any objection to the District Educational Officer, Ernakulam conducting the enquiry, I dispose of the writ W.P.(C) No.20151 of 2012 9 petition with a direction to the District Educational Officer, Ernakulam to conduct an enquiry as requested by the Manger in Ext.P3 proceedings and Ext.P4 letter and to finalise the same and forward the report of the enquiry to the petitioner expeditiously and in any event before 30.4.2013. If for any reason, including non-co-operation of the teacher or the Manager, the District Educational Officer is not in a position to complete the enquiry and to forward the report of the enquiry to the Manager, it will be open to him to move this Court for enlargement of time. sd/- **P.N.RAVINDRAN, JUDGE.** Rkc/vpv // true copy// PA to Judge