The Manager, Mayyanad Higher Secondary School, Mayyanad P.O., Kollam-691303 v. The District Educational Officer, District Education Office, Kollam; The Deputy Director of Education, Office of the Deputy Director of Education, Kollam; The Director of Public Instruction, Office of the Director of Public Instruction, Thiruvananthapuram; The State of Kerala; Sunil Dutt S.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936 WP(C).No. 26266 of 2012 (G) ---------------------------- PETITIONER(S): ----------------- THE MANAGER, MAYYANAD HIGHER SECONDARY SCHOOL MAYYANAD P.O., KOLLAM-691303. BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.SREEJITH S.NAIR SRI.SURAJ SHRIKUMAR SRI.ANIL VINCENT RESPONDENT(S): - ------------------- ## 1. THE DISTRICT EDUCATIONAL OFFICER DISTRICT EDUCATION OFFICE, KOLLAM, PIN-691001. 2. THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM PIN-691001. 3. THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM, PIN-695001. ## 4. STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN-695001. 5. SUNIL DUTT S. SAI ALAKA, KNR-31A, KOOTTIKKADA P.O. KOLLAM-691020. R5 BY ADV. SRI.B.MOHANLAL R1-R4 BY GOVERNMENT PLEADER SRI.P.V.ELIAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).26266/12 ## APPENDIX PETITIONER'S EXHIBITS: - P1:TRUE COPY OF PRELIMINARY INVESTIGATION PROCEEDINGS CONDUCTED BY THE 1ST RESPONDENT. - P2:TRUE COPY OF THE COMMUNICATION DATED 17.11.2011 ISSUED BY THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - P3:TRUE COPY OF THE COMMUNICATION DATED 17.11.2011 ISSUED BY THE PETITIONER ADDRESSED TO 1ST RESPONDENT. - P4:TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 25.2.2012. - P5:TRUE COPY OF THE REVISION DATED 28.3.2012 BEFORE THE 4TH RESPONDENT BY THE PETITIONER. - P6:TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 10.4.2012 IN W.P.(C).8936 OF 2012. - P7:TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 10.7.2012. - P8:TRUE COPY OF THE ENQUIRY REPORT ALONG WITH THE COVERING LETTER DATED 20.9.2012. - P9:TRUE COPY OF THE REPRESENTATION DATED 15.10.2012 BEFORE THE 4TH, 3RD & 1ST RESPONDENT BY THE PETITIONER. - P10:TRUE COPY OF THE COMMUNICATION DATED 6.10.2012 FROM THE 2ND RESPONDENT TO THE PETITIONER. - P11:TRUE COPY OF THE REPRESENTATION BY PETITIONER DATED 2.11.2012 TO THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: - R5(A):TRUE COPY OF THE ORDER DATED 24.7.2013 IN W.P.(C).16171/2013 OF THIS HONOURABLE COURT. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ==========================** ## **W.P.(C). No.26266 OF 2012** ## **==========================** Dated this the 21[st ] day of July, 2014 ## **JUDGMENT** Petitioner is the manager of Mayyanad Higher Secondary School and the fifth respondent is a High School Assistant (Mathematics) in the said school. Certain serious allegations were levelled against the fifth respondent including one of sexual harassment against juvenile girl students and consequently, he was issued with memo of charges on 26.8.2011. On the same day itself, he was placed under suspension in tune with Rule 67(8) of Chapter XIV-A of the Kerala Education Rules. The said order was communicated to the first respondent. On its receipt, the first respondent conducted a preliminary enquiry and after satisfying with the reasons for the suspension, permitted the petitioner for continuing with the suspension of the fifth respondent beyond 15 **W.P.(C).26266/12** 2 days as per Ext.P1. Later, the fifth respondent approached the second respondent by filing an appeal against the order of suspension. The petitioner forwarded the said appeal along with Ext.P2 forwarding letter, to the second respondent stating that the appeal was barred by limitation and that the mandate under Rule 67(8) of KER provided only for conducting a preliminary investigation into the grounds of suspension and the requirement to adhere to the principles of natural justice would arise only at a formal enquiry. Subsequently, as per Ext.P3, the petitioner requested the first respondent to initiate enquiry proceedings as six months' period was to be completed by 29.2.2012. In fact, prior to the submission of Exts.P2 and P3 a written statement of defence was received by the petitioner from the 5[th] respondent and upon satisfying the requirement to conduct an enquiry against the 5[th] respondent the petitioner requested for conducting enquiry against the 5[th] respondent, in terms of the provisions under Rule 75(1)(b) of Chapter XIV-A, KER. Subsequent to the submission of Ext.P3, the second respondent considered the appeal filed by the fifth respondent and passed Ext.P4 order. As per Ext.P4, the second respondent found **W.P.(C).26266/12** 3 that the fifth respondent was under suspension in excess of six months and that the first respondent had not conducted the statutory enquiry for finalising the disciplinary proceedings within the time prescribed for it. Accordingly, the petitioner was directed to revoke the order of suspension and to reinstate the fifth respondent in service with immediate effect and to admit the teacher for duty. Thereupon, the petitioner preferred Ext.P5 revision petition before the Government under Rule 92 of Chapter XIVA of the KER challenging Ext.P4 order. Aggrieved by the delay in the matter of its consideration, the petitioner approached this Court by filing W.P.(C).No.8936 of 2012 and that writ petition was disposed of as per Ext.P6 judgment. As per Ext.P6, the revision petition filed by the petitioner against Ext.P4, which was (marked in that writ petition as Ext.P8) was directed to be considered within the time stipulated thereunder. That apart, it was also ordered that the interim order passed in that writ petition requiring the respondents to keep in abeyance implementation of Ext.P4 would continue to remain in force till the disposal of the revision petition. In compliance with the directions in Ext.P6 judgment, the Government **W.P.(C).26266/12** 4 considered the revision petition and passed Ext.P7 order dated 10.7.2012. In the contextual situation, it is only apposite to extract the relevant paragraph in Ext.P7 order which reads thus:- “Government have examined the matter with regard to the above contentions and records produced and in the light of the judgment of Hon'ble High Court. It is found that no detailed enquiry as contemplated in KER has been done by the DEO Kollam even after 8 months on the request made by the Manager not withstanding the direction of the DDE Kollam to conduct a detailed enquiry and submit a report to the Manager. Only a detailed enquiry can being limelight the truth of the allegation raised against the 5th respondent. At the same time the alleged teacher cannot be retained under suspension indefinitely. In these circumstances, the DEO Kollam is directed to complete the detailed enquiry on the basis of the report of the Manager with a period of two months after notice to all parties as contemplated in KER and place the findings before the Manager under intimation to DDE Kollam. The Order No.B6/14103/2011/DDE dated 25/02/2012 of DDE Kollam has the deficiency of applying the principles of natural justice by not giving the Manager an opportunity of being heard and locally silent about the allegation of serious nature raised by the Manager. Hence the implementation of the said order is kept in abeyance for two moths ie., till the detailed enquiry is completed by the DEO Kollam. (emphasis added) **W.P.(C).26266/12** 5 3. A perusal of Ext.P7 order would reveal that Government had taken into account the serious nature of the allegations raised against the fifth respondent and also of the fact that a teacher could not be retained under suspension indefinitely for ordering to conclude the enquiry within two months and to keep in abeyance implementation of Ext.P4 till such time. In the light of the directions in Ext.P7, the first respondent who is the enquiry officer conducted an enquiry and submitted Ext.P8 report to the petitioner herein, the disciplinary authority. On going through Ext.P8 report, the petitioner felt aggrieved as according to him, it is silent about the charges, devoid of analysis of the documentary evidence and also clear finding on separate charges alleged against the 5[th] respondent. Evidently, in Ext.P9, the petitioner has taken various grounds and raised various grievances against Ext.P8 enquiry report. Pending consideration of Ext.P9, the second respondent issued Ext.P10. As per Ext.P10, the petitioner was asked to reinstate the fifth respondent taking note of the observations in Ext.P8. It is in the said circumstances that the captioned writ petition has been filed by the petitioner, the manager of **W.P.(C).26266/12** 6 the school, seeking quashment of Ext.P10 order and issuance of writ of mandamus commanding the fourth respondent to consider and pass orders on Ext.P9. 4. Separate counter affidavits have been filed by respondents 2 and 5. It is the second respondent who passed Ext.P10 order directing the petitioner herein to reinstate the fifth respondent taking into account the observations made by the first respondent in Ext.P8. Though Ext.P9 is pending before the fourth respondent no counter affidavit has been filed by the fourth respondent. A scanning of the contentions in the counter affidavit filed by the fifth respondent would reveal that the fifth respondent has taken up various contentions to support Ext.P10 and mainly based on the long lapse of time since his suspension, it is contended that it is only proper and reasonable to implement the decision in Ext.P10 expeditiously. It is his further contention that the allegations levelled against him are too vague and sans any substance. I am afraid, the said contention cannot be gone into in this proceedings. Going by the scheme of KER, an enquiry has **W.P.(C).26266/12** 7 to be conducted by the competent educational officer and in this case, the first respondent has already submitted Ext.P8 report after conducting such an enquiry. In terms of the provisions under Rule 75 (II) of Chapter XIV-A KER, on receipt of the said report, it is for the Manager of the concerned school to pass final orders thereon after following the procedures prescribed thereunder. At the same time, aggrieved by Ext.P8 report, the petitioner preferred Ext.P9 petition before the fourth respondent. Therefore, essentially, the question is whether Ext.P9 revision petition filed by the petitioner is maintainable before the Government and whether the petitioner is liable to reinstate the fifth respondent pending consideration of the revision petition if it is legally maintainable. The learned counsel for the fifth respondent relying on a Full Bench decision in **Anil Kumar v. State of Kerala [2009 (3) KLT 650 (FB)]** contended that Government got no power to entertain the review petition against an order passed in a revision petition under Rule 92 of Chapter XIV-A of the KER. But, evidently, such contention was taken up by the fifth respondent as he understood Ext.P9 as a petition seeking review of Ext.P7 order. The learned senior **W.P.(C).26266/12** 8 counsel appearing for the petitioner submitted that the petitioner never requested the fourth respondent to review Ext.P7 order. True that in **Anil Kumar** 's case (supra), the Full Bench held that Government got no power to entertain a review petition against an order passed in a revision petition under Rule 92 of Chapter XIV-A, KER. A scanning of Ext.P9 would reveal that it carries no prayer to review Ext.P7 order. Undoubtedly, Ext.P7 order was passed prior to the completion of the enquiry proceedings and thus, obviously, before the submission of Ext.P8 enquiry report. I am of the view that the decision in **Anil Kumar** 's case (supra) got no application in this case. True that the petitioner has not specifically referred to any specific provision in Ext.P9. There cannot be any doubt with respect to the fact that misquoting of a provision will not and cannot disempower an authority from considering the request in a petition filed before it if that authority is clothed with the power to consider the actual issues involved therein. In the contextual situation, a decision of a Division Bench of this Court in **Cheriyan v. Anna S. Varghese** [ **1987(1) KLT** **301]** assumes relevance. In **Cheriyan'** s case (supra), the question **W.P.(C).26266/12** 9 whether a revision petition filed by the manager of a school under Rule 92 of Chapter XIVA of the KER would lie against an enquiry report was considered by this Court. It was further found that the enquiry officer is an authority higher in status than Manager and the higher status is recognised in Rule 81A of Chapter XIVA of the KER. In short, after considering all the relevant aspects it was found that findings of enquiry authority in an enquiry report is a formal expression of a decision and is, therefore, an order which could be challenged in revision under section 92 of Chapter XIV A, KER before the Government. In such circumstances, I am of the view that the failure on the part of the petitioner in specifically mentioning the power sought to be invoked in Ext.P9 cannot be a reason for its nonconsideration. When once it is found that a revision petition under Rule 92 of Chapter XIVA is maintainable against an enquiry report, Ext.P9 cannot be said to be untenable and in fact, it is maintainable before the Government in the light of the decision in **Cheriyan** 's case (supra). The learned senior counsel appearing for the petitioner submitted that taking into account the pendency of Ext.P9 the **W.P.(C).26266/12** 10 petitioner ought not to have been compelled to implement the directions in Ext.P10. Per contra, the learned counsel for the fifth respondent submitted that in the light Ext.P4 order it is only appropriate for respondents 1 to 3 to implement the directions in Ext.P10. A perusal of Ext.P4 would reveal that the second respondent is of the view that Rule 67(8) of Chapter XIV-A KER mandates for revocation of an order of suspension upon the expiry of the period of six months. The learned counsel for the fifth respondent submitted that in the light of the provisions under Rule 67(8), on the period of expiry of six months, the authority concerned is bound to issue an order for reinstatement of the concerned delinquent employee who was placed under suspension. A bare perusal of Rule 67(9) would reveal the hollowness in the said contention. It reads thus:- “Rule 67(9):Cases where teachers suspended by Managers are continuing under suspension for a period exceeding six months have to be reviewed and decision taken soon as to whether they should continue to be under suspension or not. The review shall be conducted by an Officer immediately superior to the Officer who issued permission to place the Officer under suspension beyond 15 days. In cases where the suspension **W.P.(C).26266/12** 11 is ordered by the Government or an Officer authorised under section 12A of the Act such review shall be conducted by the respective authority or any authority higher than the one which issued the order of suspension. The review contemplated under this sub-rule will not apply to cases of suspension in pursuance of criminal proceedings in a Court or detention or as a prisoner for debt where sub-rule (3) of rule 67 and rule 67A apply.” 5. Rule 67(8) or Rule 67 (8A) could not be understood as a provision mandating for revocation of the order of suspension and ordering for reinstatement of a suspended teacher solely for the lapse of a period of six months. Such an understanding of the provision is nothing but an erroneous interpretation of the said provision. What is provided under sub-rule 9 of Rule 67 is that in cases where teachers suspended by Managers are continuing under suspension for a period exceeding six months has to be reviewed and a decision has to be taken soon as to whether the concerned teacher continues to be under suspension or not. Further it provides that such a review shall be conducted by an officer immediately superior to the officer who issued permission to place the officer under suspension beyond 15 days. In **W.P.(C).26266/12** 12 this case, evidently, a bare perusal of Ext.P4 would reveal that the second respondent had not conducted a review imbibing the spirit of Rule 67(9) and it reflects non-consideration of the facts and circumstances under which the fifth respondent was placed under suspension. In short, the question as to whether the suspension is to be viewed or not, was not answered by the second respondent taking into account the attending circumstances including the seriousness of the charge and in fact, such a decision was taken solely based on the fact that a period of six months had lapsed since the date of suspension. In other words, such a decision was taken under the premise that it mandates for revocation of the order of suspension when once a period of six months is lapsed since the issuance of an order of suspension. The said order is therefore nothing but an outcome of a misconstruction of the provisions under sub-rule 9 of Rule 67. In fact, it is taking into account all such aspects that while disposing W.P.(C). No.8936 of 2012 this Court ordered to keep in abeyance implementation of Ext.P7 therein/Ext.P4 herein. It is also to be noted that even while passing Ext.P7 order, Government have also issued an **W.P.(C).26266/12** 13 order to keep in abeyance the implementation of Ext.P4 order. I am of the view that this writ petition can be disposed of without making observations as to the merits of the rival contentions. In case Ext.P9 is still pending before the fourth respondent, the fourth respondent shall treat it as a revision petition filed under Rule 92 Chapter XIV A, KER and pass appropriate orders after affording an opportunity of being heard to the petitioner as also the fifth respondent expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. In such circumstances, I am of the view that in the interest of justice and taking into account the seriousness of the allegations it is only appropriate to keep in abeyance the implementation of Exts.P4 and P10 till the disposal of Ext.P9 revision petition by the Government in tune with the directions hereinbefore if the fifth respondent was not already reinstated. Ordered accordingly. Sd/- **C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).26266/12** 14 **C.T. RAVIKUMAR, J.** 15 ## **W.P.(C).26266/12** **JUDGMENT September, 2010**