The Manager, Gracy Memorial High School, Parathode v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 23RD DAY OF AUGUST 2013/1ST BHADRA, 1935 WP(C).No. 14030 of 2013 (C) ---------------------------- PETITIONER(S): ----------------- THE MANAGER, GRACY MEMORIAL HIGH SCHOOL, PARATHODE - P.O., KANJIRAPPALLY, KOTTAYAM. BY ADVS.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION(H) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY DIRECTOR OF EDUCTION, KOTTAYAM-686 001. 3. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY- 686 507. 4. SMT.MANJOOSHA MATHEW, AMBATTUPOTHIYIL HOUSE, THIDANADU P.O. KOTTAYAM DISTRICT-686 123. R4 BY ADV. SRI.GEORGE POONTHOTTAM R1 BY GOVERNMENT PLEADER SRI.M.A.FAYAZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14030 of 2013 (C) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ - EXT.P1:-COPY OF THE COMPLAINT DTD 8/1/2013 OF SRI T. G. RAJENDRAN NAIR AGAINST THE 4TH RESPONDENTAND SUBMITTED BEFORE THE PETITIONER. - EXT.P2:-COPY OF COMPLAINT DTD NIL SUBMITTED BY NITHIN C. S. STANDARD VII-A TO THE HEADMISTRESS OF THE SCHOOL. - EXT.P3:-COPY OF COMPLAINT DTD NIL, SUBMITTED BY AMALJITH BABU, STANDARD VII-A TO -DO- -DO- - EXT.P4:-COPY OF COMPLAINT DTD NIL SUBMITTED BY JAYAKRISHNAN K. R. STANDARD VIIA TO -DO- -DO-. - EXT.P5:-COPY OF COMPLAINT DTD 7/1/2013 SUBMITTED BY SMT.SUNITHA KUMARI A. S BEFORE -DO- -DO-. - EXT.P6:-COPY OF PETITION DTD 18/1/2013 RECEIVED BY THE PETITIONER FROM THE PARENT TREACHER ASSOCATION. - EXT.P7:-COPY OF EXPLANATION DTD 28/1/2013 SUBMITTED BY THE 4TH RESPONDENT TO THE PETITIONER. - EXT.P8:-COPY OF ORDER OF SUSPENSION DTD 1/2/2013 ISSUED BY THE PETITIONER SUSPENDING THE 4TH RESPONDENT FROM SERVICE OF THE SCHOOL. - EXT.P9:-COPY OF ORDER NO. B3/7637/09 DTD 14/2/2013 ISSUED BY THE 3RD RESPONDENT. - EXT.P10:-COPY OF PROCEEDINGS DTD 25/4/2013 ISSUED BY THE IST RESPONDENT. - EXT.P11:-COPY OF PROCEEDINGS DTD 23/5/2013 ISSUED BY THE IST RESPONDENT. - EXT.P12:-COPY OF HEARING NOTICE DTD 22/5/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER AND OTHERS. - EXT.P13:-COPY OF PETITION DTD 30/5/2013 ALONG WITH THE ENDORSEMENT OF THE 2ND RESPONDENT. - EXT.P14:COPY OF COMPLAINT DATED 8.1.2013 SUBMITTED BY ONE BABU E.K. BEFORE THE HEADMISTRESS OF THE SCHOOL. EXT.P15:COPY OF JUDGMENT 7.6.2013 IN CON.CASE (C)NO.35 OF 2013. EXT.P16:COPY OF COMMUNICATION NO.24955/H3/2013/G.EDN DATED 19.7.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P17:COPY OF REVISION DATED 8TH APRIL, 2013 AND SUBMITTED BEFORE THE HONOURABLE MINISTER OF EDUCATION ON 27.6.2013 BY THE 4TH RESPONDENT. RESPONDENT(S)' EXHIBITS: ------------------------------- EXT.R4(A):TRUE COPY OF THE G.O.(RT)NO.5232/2008/G.EDN DATED 24.11.2008. EXT.R4(B):TRUE COPY OF THE LETTER DATED 2.5.2013 GIVEN BY AMALJEET. EXT.R4(C):TRUE COPY OF THE REPRESENTATION DATED 24.4.2013. EXT.R4(D):TRUE COPY OF THE COMMUNICATION DATED 29.5.2013. EXT.R4(E):TRUE COPY OF THE NOTICE NO.B5/6147/13 DATED 17.6.2013. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.14030 OF 2013 ==========================** Dated this the 23[rd] day of August, 2013 ## **JUDGMENT** The petitioner is the Manager of Gracy Memorial High School, Parathode. The fourth respondent who is an Upper Primary School Assistant was placed under suspension for a period of 15 days by the petitioner as per Ext.P8 order dated 1.2.2013. The said order was forwarded to the competent educational authority in accordance with the provisions under Rule 67 of Chapter XIV-A of the Kerala Education Rules (for short 'KER'). The petitioner, thereafter, sought for extension of the period of suspension of the fourth respondent beyond 15 days. Evidently, suspension was in contemplation of disciplinary proceedings against the fourth respondent. Subsequently, the third respondent passed Ext.P9 order dated 14.2.2013 after conducting an enquiry as contemplated under Rule 67(8) of Chapter **W.P.(C).14030/13** 2 XIV-A of the KER and permitted for continuance of suspension of the fourth respondent beyond 15 days. Ext.P10 is the communication dated 25.4.2013 received by the petitioner whereby the first respondent directed the second respondent to take steps to implement the decisions 1 to 3 thereunder. Later, Ext.P11 dated 23.5.2013 was issued by the first respondent to the second respondent requiring to furnish the steps taken pursuant to Ext.P10. Thereafter, the petitioner was served with Ext.P12 notice of hearing dated 22.5.2013. As per Ext.P13, the petitioner intimated the second respondent that even the copy of the petition referred to in Ext.P12, was not received by the petitioner. According to the petitioner, he came to know about initiation of steps for revoking the suspension of the fourth respondent. It is in the said circumstances that this writ petition has been filed mainly with the following prayers:- - a) issue a writ of certiorari or other appropriate writs, directions or orders calling for the records leading upto Exhibit P11 and quash Exhibits P10 and P11. - b)issue a writ of mandamus or other appropriate writs, directions or orders restraining the respondents from proceeding further with **W.P.(C).14030/13** 3 Exhibits P10 and P11. - c) issue a writ of mandamus or other appropriate writs, directions or orders declaring that the 1[st] respondent has no authority to proceed with and consider the representations dated 24.4.2013 and 10.5.2013 submitted by the 4[th] respondent. 2. When this matter came up for admission on 4.6.2013, this Court passed an order staying all further proceedings pursuant to Exts.P10 to P12. It was further made clear thereunder that the said order would not stand in the way of granting subsistence allowance payable to the fourth respondent, in accordance with law. 3. The fourth respondent entered appearance and filed counter affidavit. Along with the counter affidavit, Ext.R4(c) representation dated 24.4.2013 that ultimately led to the issuance of Ext.P10 has been produced. It is a representation directly addressed to the Minister for Education in his personal capacity. In the meanwhile, the petitioner filed I.A.No.10912 of 2013 seeking amendment of the writ petition and that was allowed. Along with the said application, certain documents, marked as Exts.P13 to P17, were **W.P.(C).14030/13** 4 also produced. The contention of the fourth respondent is that Ext.P17 revision petition filed by her is now pending before the Government and it is only appropriate for this Court to direct the Government to take a decision thereon, in accordance with law, and leaving the parties to take up their respective contentions at the time of hearing on Ext.P17. The learned counsel for the petitioner submitted that in the light of the decision of this Court in **Krishna Kumar v. State and others** reported in **1981 KLN 195,** Government is lacking jurisdiction to interfere with an order of suspension under Rule 92 of Chapter XIV-A of the KER. The learned counsel for the fourth respondent submitted that even the very question of maintainability of Ext.P17 can be raised by the petitioner before the Government when Ext.P17 is taken up for consideration. Then, the learned counsel for the petitioner raised an apprehension regarding the initiation of coercive steps pursuant to Exts.P10 and P11 pending decision on Ext.P17. 4. I have heard the learned counsel for the petitioner, the learned counsel appearing for the fourth respondent and also the **W.P.(C).14030/13** 5 learned Government Pleader. The fact that the fourth respondent was placed under suspension by the petitioner is not in dispute. The contention of the petitioner is that a perusal of Rule 67(8) of Chapter XIV-A contemplates only one enquiry and the scope of such an enquiry is only to look into the grounds of suspension to see whether they are sufficient to place the person concerned under suspension and to permit the concerned manager to continue with the suspension of the concerned person beyond 15 days. It is the further contention that Ext.P9 is an order passed by the third respondent invoking the power under Rule 67(8) of Chapter XIV-A of the KER permitting the petitioner to continue with the suspension of the fourth respondent beyond 15 days. In such circumstances, an enquiry under Ext.P10 which is not contemplated under Rule 67(8) should not have been continued as one contemplated under Rule 67(8) of Chapter XIV-A, KER and therefore, in the light of Ext.P9, no validity can be attached to the second decision in Ext.P10 viz., regarding stay of proceedings before the third respondent until further orders. When once the factum of suspension of the fourth respondent is admitted in the absence of **W.P.(C).14030/13** 6 specific order for her reinstatement there can be no question of issuing any direction to pay salary to a person under suspension. The learned counsel for the fourth respondent submitted that in tune with the directions in Ext.P10, respondents 2 and 3 should have taken appropriate steps for ordering reinstatement of the fourth respondent and ought to have taken steps for disbursement of salary. Be that as it may, it is an admitted fact that hitherto, no order revoking the order of suspension or specifically directing for reinstatement of the petitioner was passed either prior or subsequent to Ext.P10. At the same time, the third respondent has already granted permission to the petitioner to continue with the suspension of the fourth respondent beyond the period of 15 days. When faced with such circumstances, the learned counsel appearing for the fourth respondent very fairly submitted that ignoring the orders in Exts.P10 and P11, a direction can be issued to the first respondent to consider and pass appropriate orders on Ext.P17, in accordance with law. Taking into account the rival submissions referred as above, I am inclined to dispose of this writ petition as hereunder:- **W.P.(C).14030/13** 7 The first respondent shall take up Ext.P17 revision petition filed by the fourth respondent and pass appropriate orders thereon expeditiously, in accordance with law. It is made clear that it would be open to the petitioner to raise all contentions including objection regarding the maintainability of Ext.P17 before the Government. In other words, the parties will be at liberty to take up all valid contentions when Ext.P17 is taken up for consideration. It is ordered that the directions in Exts.P10 and P11 shall not be implemented. Taking note of the fact that hearing on Ext.P17 was fixed on 14.8.2013 and the fourth respondent is under suspension, Ext.P17 shall be taken up for consideration, expeditiously, at any rate, within a period of one month from the date of receipt of copy of this judgment. Needless to say that further actions in the matter would depend upon the decision on Ext.P17. Before parting with this case, I am of the view that a remark is to be made in the light of the provisions under Rule 67 of Chapter XIV-C of the KER. When there is specific interdiction to represent matters directly before the Ministers it will be an unhealthy practice to address the Ministers, **W.P.(C).14030/13** 8 either personally or officially, ignoring the specific provisions under the KER and the practice of entertaining such petitions ignoring the statutory interdiction has to be discouraged. It is to be noted in some cases, in case of transmission of such matters, on receipt, to the concerned secretary or even to DPI would foreclose the statutory remedies otherwise available to the opposite parties or would render a pending statutory petition futile. **Sd/(JUDGE)** **C.T. RAVIKUMAR** **spc/** **W.P.(C).14030/13** 9 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).14030/13** 10