The Manager, Nair Samajam Schools, Mannar v. Syam Prakash.R and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** ## **WA.No.141 OF 2020** **AGAINST THE JUDGMENT IN W.P.(C).NO.36001/2019(A) OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT NO.5 IN THE WRIT PETITION:** **THE MANAGER, NAIR SAMAJAM SCHOOLS, MANNAR (P.O.), ALAPPUZHA DISTRICT PIN-689 622.** **BY ADV. SRI.S.SUBHASH CHAND** **RESPONDENTS/PETITIONER AND RESPONDENT NOS.1 TO 4 & 6 TO 8 IN THE WRIT PETITION:** - **1 SYAM PRAKASH.R, S/O. RAJAGOPAL, VALLIYATHU, BUDHANOOR (P.O.), CHENGANNUR, 699 510, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), NS GIRLS HIGH SCHOOL, MANNAR, ALAPPUZHA DISTRICT.** - **2 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.** - **3 THE DIRECTOR GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **4 THE DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA, ALAPPUZHA DISTRICT 690 101.** - **5 THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA DISTRICT 690 101.** - **6 THE PRINCIPAL, NAIR SAMAJAM TEACHER TRAINING INSTITUTE, MANNAR, ALAPPUZHA DISTRICT-689 622.** - **7 THE HEADMISTRESS, NAIR SAMAJAM BOYS HIGH SCHOOL, MANNAR (P.O.), ALAPPUZHA DISTRICT-689 622.** **WA.No.141/2020 2** **8 THE HEADMISTRESS, NAIR SAMAJAM BOYS HIGH SCHOOL, MANNAR (P.O.), ALAPPUZHA DISTRICT-689 622.** **R1 BY SRI. K. MOHANAKANNAN (B/O) R2-R5 BY SRI.A.J. VARGHESE, SR. G.P. (B/O)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No.141/2020 3** ## **JUDGMENT** **Dated this the 28th day of January 2020** ## _**A.M.Shaffique, J.**_ This appeal is filed by the 5[th] respondent in W.P. (C).No.36001 of 2019. 2. Though we have ordered issuance of notice to respondents 6 to 8, their presence may not be required for considering the appeal on merits. The writ petitioner/1st respondent herein is already in the party array and has appeared through counsel. 3. By the impugned judgment, learned Single Judge had directed to consider Ext.P33 Revision Petition filed by the petitioner. The short facts of the case are as under; The petitioner was working as a Training School Assistant in the School managed by the Nair Samajam Teachers Training Institute, Mannar. Certain complaints came to be registered against him by 18 students alleging harassment and molestation. The Manager suspended him from service as per ## **WA.No.141/2020 4** Ext.P4 order. Since nothing else happened in the matter, it seems that the students filed a criminal complaint on the basis of which Crime No.1841 of 2015 came to be registered by the Mannar Police Station under Sections 354A (1) and 509 of Indian Penal Code and also Section 119 (b) of the Kerala Police Act, 2011. Later he was chargesheeted for the alleged misconduct. In the meantime, the order of suspension was ratified by the Government as per Ext.P16 order. The order of suspension came to be challenged by the petitioner by filing W.P.(c) No. 38752 of 2017. This Court passed an interim order directing him to be reinstated in another school and accordingly, he was reinstated in service and working as HSA (Social Science) in the Nair Samajam Boys High School. In the meantime, the Manager had issued the memo of charges and an enquiry has been conducted by the District Educational Officer. Petitioner challenged the judgment in W.P.(c) No.38752 of 2017, which resulted in the judgment in Writ Appeal No. 1294 of 2019. This Court while considering the said appeal observed that there is no necessity to interfere with the direction issued by the learned Single Judge to complete the enquiry and it is further ## **WA.No.141/2020 5** observed that the Manager shall comply with Rule 75 of Chapter XIVA of Kerala Education Rules and take appropriate action in accordance with law. 4. The District Educational Officer completed the enquiry and Ext.P31 is the Enquiry Report. Except for one charge, the petitioner was found to be guilty of all the charges. Manager issued Ext.P32 show cause notice along with the enquiry report, calling upon the petitioner to submit his representation and he submitted Ext.P34 representation. Manager called upon him for a personal hearing as per Ext.P35 notice and he was personally heard. In the meantime, petitioner had approached the Government by filing Ext.P33 petition challenging the enquiry proceedings and thereafter approached this Court by filing the aforesaid writ petition. 5. In the writ petition, petitioner contended that the entire disciplinary proceedings is against the settled principles of law and that a proper opportunity had not been given to the petitioner to defend the proceedings. It was pointed out that though about 16 documents had been relied upon, he was not supplied with copies of all the documents. Further, it is **WA.No.141/2020 6** contended that the District Educational Officer had not complied with the dictum laid down by this Court in **Seetharam Upper Primary School V. State of Kerala [2012 (2) KLT 338],** while adjudicating the matter. 6. The learned Single Judge however without going into the merits of the contentions urged directed the Government to consider Ext.P33 revision. 7. The Manager has approached this Court _inter alia_ contending that revision under Rule 92 is not maintainable, against an enquiry conducted by the District Educational Officer, especially when the enquiring authority had found the delinquent officer guilty. ## Chapter XIVA Rule 92 KER reads as under; **“92. Revision** :- (1) Notwithstanding anything contained in these rules the Government, may on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority in respect of matters contained in this Chapter which is made or is appealable under these Rules:- (a) confirm modify or set aside the order; (b) impose any penalty or set aside, reduce confirm or enhance the penalty imposed by the order; (c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as they consider proper in the circumstances of the case or (d) pass such other order as they deem fit; Provided that - (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish ## **WA.No.141/2020 7** to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry; (ii) if the Government propose to impose any of the penalities specified in items (iv) to (viii) of Rule 65 on a case where an inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit. Explanation:- For the purpose of this proviso and sub rule (ii) the person concerned shall include the Manager of a School whose orders are sought to be revised by the Government (2) Nothing contained in the proviso to sub-rule (1) shall be deemed to require the Government to give an opportunity for personal hearing to the person concerned and it shall be sufficient if:- (i) Whether the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or (ii) Whether the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing within a period specified in the notice and the Government pass final orders in revision after consideration of such representation.” ## 8. The learned counsel for the appellant placed before us judgment of this Court in **Rani P John V. State of Kerala and others [2015 (4) KHC 824]** . In the said judgment this court held at paragraphs 5, 6, 7 and 8 as under; “5. According to the learned counsel, though Ext.P6 is only a report of enquiry submitted by the DEO, on which the Manager has not taken a final decision, a revision even at this stage is maintainable. In support of this contention, the learned counsel for the petitioner relied on the decisions of this Court in Cherian V. Anna S. Varghese, 1987 KHC 103: 1987 (1) KLT 301 : 1987 KLJ 1 : ILR 1987 (1) Ker. 531 : 1986 KLN 760 and in Ravindra Babu V. State of Kerala, 1987 **WA.No.141/2020 8** KHC 145 : 1987 (1) KLT 472 : ILR 1988 (2) Ker. 144 : 1987 KLN 221. 6. In my view, the revision filed at this stage is not maintainable. The revision is filed under R.92 of Chapter XIVA of KER, which confers power on the Government to revise any order passed by any of the subordinate authorities in respect of any matter contained in the Chapter. As already noticed, the Manager is yet to take a decision on Ext.P6 enquiry report in the light of Ext.P8 explanation submitted by the petitioner. In the proceedings have only reached the stage of opportunity to the delinquent as contemplated under R.75 (11)(b) of Chapter XIVA, KER. Only when Manager passes an order under R.75(11)(c), can it be said that a final order is passed. Therefore, the proceedings are yet to result in final order, which alone can be subjected to revision under R.92. The petitioner will have to await for the culmination of the proceedings, and if the ultimate order passed by the Manager exercising his disciplinary power is a prejudicial one, it is that order which can be subjected to revision under R.92. 7. Insofar as the judgment in Cherian V. Anna S. Varghese, 1987 KHC 103 : 1987 (1) KLT 301 : 1987 KLJ 1 : ILR 1987 (1) Ker.531 : 1986 KLN 760 is concerned, that was a case where this Court held that a revision is maintainable against an enquiry report. The facts of the case show that the enquiry report considered by this Court was a report finding the delinquent innocent of the misconducts alleged. After surveying the statutory provisions, the Division Bench held that the disciplinary authority is bound by the report and therefore, it is a formal expression of a decision, and hence an order, which can be challenged in revision. Such a view was taken for the obvious reason that in view of the binding finding of innocence contained in the report, the only option to the Manager was to drop the proceedings. It was therefore, that the Division Bench held that a revision by the Manager was maintainable. Here, Ext.P6 report of enquiry is one of finding of guilt, and is yet to culminate into an order to be passed by the Manager, and therefore the decision in Cherian V. Anna S. Varghese, 1987 KHC 103 : 1987 (1) KLT 301 : 1987 KLJ 1 : ILR 1987 (1) Ker.531 : 1986 KLN 760, referred to above, has of no assistance to the petitioner. ## **WA.No.141/2020 9** 8. Insofar as the judgment in Ravindra Babu v. State of Kerala, 1987 KHC 145 : 1987 (1) KLT 472 : ILR 1988(2) Ker.144: 1987 KLN 221 is concerned, the challenge in revision was against an order declining to grant promotion under R.74 of Chapter XIVA KER, and therefore, the Division Bench rightly held that revision is maintainable. In my view, that judgment also does not advance to the case of the petitioner in any manner. ” 9. On the basis of the aforesaid judgment, it is contended that this is a case in which the enquiry officer had arrived at a finding that the petitioner is guilty of the charges. In which event, going by the judgment in **Rani P John's** case (supra), the revision under Rule 92 is not maintainable. In fact, in **Rani P John's** case (supra), the learned Single Judge had distinguished an earlier judgment of this Court in **Cherian V. Anna S. Varghese, [1987 (1) KLT 301]** , wherein it was held that a revision is maintainable in a case where the enquiry officer had arrived at a conclusion that charges were not proved. In such cases, the Manager is bound by the enquiry report and therefore, Manager is entitled to challenge the said order treating the same as a final order, in a revision under Rule 92 of Chapter XIVA KER. Primarily an enquiry report is not an order as contemplated under Rule 92. Still further, having regard to the aforesaid exposition of law, as laid down in **Rani P John's** case ## **WA.No.141/2020 10** (supra), it has to be held that as the matter stands now, Ext.P33 revision is not maintainable. 10. Learned counsel for the petitioner/1st respondent herein would however submit that the writ petition was filed _inter alia_ challenging the entire proceedings right from the show cause notice, the procedure by which the enquiry was conducted, and that there was violation of natural justice etc. 11. But it is relevant to note that this matter had been pending since long. Even in the judgment dated 30.10.2019 in Writ Appeal No.1294 of 2019 while the petitioner challenged the order passed by the learned Single Judge in W.P.(C) No.38752 of 2017 directing to complete the enquiry within a time schedule, we have specifically directed the Manager to complete the entire process after complying with the provisions of Rule 75 of Chapter XIVA KER. So far as these matters had been pending for quite a long time, it is only appropriate that the Manager passes a final order in the matter. If the Government is directed to consider Ext.P33, it would again delay the entire process and in that circumstance, it would only be appropriate to permit the Manager to complete the proceedings. The learned Single Judge ## **WA.No.141/2020 11** did not go into the merits of the contentions urged and only directed disposal of Ext.P33. We have already come to a conclusion that Ext.P33 revision is not maintainable and therefore the judgment of the learned Single Judge to that extent has to be set aside. In the result, this appeal is allowed. We set aside the judgment of the learned Single Judge and direct the Manager to complete the disciplinary action as early as possible. Nothing prevents the delinquent officer from challenging any adverse order passed by the Manager in accordance with law. It shall be open for the delinquent officer to take all contentions permissible under law. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** ## **Sd/-** **MARY JOSEPH JUDGE** **NAB**