The Manager, S.V.V.H.S.S., Palemad, Malappuram District v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930** **WP(C).No. 3402 of 2008(E)** **--------------------------------------PETITIONER(S):** **-------------------------** **THE MANAGER, S.V.V.H.S.S., PALEMAD, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV SRI.M.S.RADHAKRISHNAN NAIR** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **3. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION, (GENERAL), THIRUVANANTHAPURAM.** **4. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.** **5. DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.** **6. SMT.K.R.PREMA, PRINCIPAL (UNDER SUSPENSION), S.V.V.H.S.S., PALEMAD, MALAPPURAM DISTRICT.** **GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 TO R5 ADV. SRI.KRB.KAIMAL (SR.) FOR R6 SRI.B.UNNIKRISHNA KAIMAL FOR R6** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2008 ALONG WITH WPC NO. 23155 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.3402/2008 E** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: COPY OF NOTICE NO.A1/380/06 DTD. 04/04/2006. EXT.P2: COPY OF COMMUNICATION NO.B2-9009/06 DTD. 19/04/2006. EXT.P3: COPY OF MEMO OF CHARGES NO.EXT.6/06 DTD. 03/05/2006. EXT.P4: COPY OF REPLY DTD. 18/05/2006 OF THE 6TH RESPONDENT TO THE PETITIONER.** - **EXT.P5: COPY OF COMMUNICATION NO.B2/9009/06 DTD. 26/06/2006 ALONG WITH COPY OF THE REPORT.** - **EXT.P6: COPY OF SHOW CAUSE NOTICE NO.EXT.6/06 DTD. 04/07/2006. EXT.P7: COPY OF REPLY DTD. 19/07/2006 SUBMITTED BY THE 6TH RESPONDENT TO THE PETITIONER.** - **EXT.P8: COPY OF ORDER NO.10/06 DTD. 20/07/2006 ISSUED BY THE PETITIONER TO THE SIXTH RESPONDENT.** - **EXT.P8(A): COPY OF ORDER OF THE DEPUTY DIRECTOR OF EDUCATION, TO SHOW THAT SHE REACHED THE SCHOOL AND DISCUSSIONS WERE MADE WITH THE PETITIONER, THE HEADMISTRESS AND PTA PRESIDENT ETC. AND ISSUED DIRECTION TO HAND OVER THE CHARGE OF THE SCHOOL TO THE SENIOR MOST HAND.** - **EXT.P9: COPY OF ORDER NO.B2/9009/06 DTD. 01/08/2006. EXT.P10: COPY OF MEMO OF CHARGES DTD. 30/08/2006 ALONG WITH COPIES OF STATEMENT OF ALLEGATIONS ANNEXED THEREWITH.** - **EXT.P11: COPY OF REPLY SUBMITTED BY THE 6TH RESPONDENT TO THE PETITIONER ON 11/09/2006.** - **EXT.P12: COPY OF COMMUNICATIONN NO.10/06 DTD. 15/09/2006 ISSUED BY THE PETITIONER TO THE SIXTH RESPONDENT.** - **EXT.P13: COPY OF WRITTEN EXPLANATION DTD. 19/09/2006 SUBMITTED BY THE 6TH RESPONDENT TO THE PETITIONER.** - **EXT.P14: COPY OF ORDER NO.B2/9009/06 DTD. 31/10/2006 OF THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.** - **EXT.P15: COPY OF PETITION DTD. 17/10/2006 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS.** - _Kss_ **..2/-** **..2...** ## **WPC.NO.3402/2008 E** - **EXT.P16: COPY OF REPORT OF THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DTD. 14/02/2007.** - **EXT.P17: COPY OF SHOW CAUSE NOTICE ISSUED BY THE PETITIONER TO THE RESPONDENT ON 26/02/2007.** - **EXT.P18: COPY OF ORDER NO.10/06 DTD. 14/03/2007 OF THE PETITIONER TO THE DEPUTY DIRECTOR OF EDUCAION, MALAPPURAM.** - **EXT.P19: COPY OF BELATED REPLY SUBMITTED BY THE SIXTH RESPONDENT DTD. 12/03/2007 AND RECEIVED BY THE PETITIONER ON 16/03/2007.** - **EXT.P20: COPY OF NOTICE DTD. 02/03/2007 THE PETITIONER RECEIVED FROM THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS (GENERAL).** - **EXT.P20(A): COPY OF APPEAL PETITION DTD. 27/01/2007.** - **EXT.P20(B): COPY OF REPRESENTATION OF THE SIXTH RESPONDENT DTD. 28/02/2007 SUBMITTED BEFORE THE MINISTER OF EDUCATION.** - **EXT.P20(C): COPY OF COMMUNICATION NO.28579/A2/07/G.EDN. DTD.28/11/2007.** - **EXT.P20(D): COPY OF REPRESENTATION DTD. 22/10/207 OF THE 6TH RESPONDENT TO THE MINISTER OF EDUCATION.** - **EXT.P20(E): COPY OF REPRESENTATION OF THE KERALA SCHOOL TEACHERS ASSOCIATION STATE COMMITTEE, THIRUVANANTHAPURAM TO THE MINISTER OF EDUCATION.** - **EXT.P20(F): COPY OF REPRESENTATION DTD. 20/02/2007 SUBMITTED BY THE 6TH RESPONDENT TO THE MINISTER OF EDUCATION.** - **EXT.P20(G): COPY OF COMMUNICATION NO.A3/14449/06 DTD. 09/03/2007.** - **EXT.P20(H): COPY OF COMMUNICATION NO.B2/9009/06 DTD. 08/03/2007.** - **EXT.P20(I): COPY OF DETAILED ENQUIRY REPORT DTD. 15/11/2006 OF THE FOURTH RESPONDENT DEPUTY DIRECTOR OF EDUCATION.** - **EXT.P21: COPY OF ORDER NO.VI-67318/06 DTD. 17/03/2007 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS.** - **EXT.P22: COPY OF MEMORANDUM OF REVISION PETITION DTD. 26/03/2007 SUBMITTED BY THE PETITIONER.** _Kss_ **..3/-** **...3....** ## **WPC.NO.3402/2008 E** **EXT.P23: COPY OF ORDER NO.52781/A2/06/G.EDN. DTD. 02/04/2007 PASSED BY THE FIRST RESPONDENT. EXT.P24: COPY OF ORDER G.O.(RT) NO.1941/07/G.EDN. DTD. 04/05/2007 OF THE FIRST RESPONDENT. EXT.P25: COPY OF THE JUDGMENT DTD. 20/09/2007 IN WPC.NO.15096 OF 2007 OF THIS HONOURABLE COURT. EXT.P26: COPY OF ORDER OF THE 1ST RESPONDENT GOVERNMENT G.O.(RT) NO.299/08/G.EDN. DTD. 14/01/2008.** ## **RESPONDENT'S EXHIBITS:** **EXT.R6(A): COPY OF THE REVISION PETITION DTD. 12/03/2007 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **ANTONY DOMINIC, J** **-----------------------------------------------------------** W.P.(C).Nos.3402/08 & 23155/2008 **-----------------------------------------------------------** Dated this the 17th day of November, 2008 JUDGMENT These writ petitions are filed by the Manager of S.V.V.H.S.S, Palemad, Malalppuram District, in relation to the disciplinary action taken against the 6th respondent, the Principal of the School. 2. In so far as WP(c).No.3402/08 is concerned, Ext.P1 is the communication issued by the DEO, pointing out the lapses on the part of the 6th respondent and requiring the Manager to take action and that was followed by Ext.P2 from the 3rd respondent to the same effect. Thereupon the Manager issued Ext.P3 memo of charges, to which the 6th respondent submitted Ext.P4 written statement denying the allegations. The 4th respondent conducted a preliminary enquiry and submitted Ext.P5 report. Acting upon the report, the Manager issued Ext.P6 show cause notice for WP(c).Nos.3402/08 & anor. 2 imposing punishment of removal of the 6th respondent, to which she submitted Ext.P7 reply. On receipt of Ext.P7 Manager placed the 6th respondent under suspension by Ext.P8 order dated 20.7.2006. Subsequently, the 4th respondent passed Ext.P9 permitting continuance of her suspension and directing that the disciplinary action be completed within 3 months. Thereafter Manager issued Ext.P10 memo of charges containing about 14 charges to which the 6th respondent submitted Ext.P11 written statement, in which she also sought for inspection of documents relied on against her. 3. After inspecting the documents she submitted Ext.P13, a further written explanation. While so, Ext.P14 order was passed by the Deputy Director, permitting continuance of the suspension and directing finalization of the disciplinary action. This orders says that the enquiry has been completed on 26.10.2006. It would appear that the enquiry continued beyond 26.10.2006 and sittings were held on several days including 9.11.2006 and 15.11.2006. The WP(c).Nos.3402/08 & anor. 3 6th respondent has a case that on many of the occasions, the Deputy Director was absent in the enquiry and that the enquiry was conducted by his subordinates. Learned Government Pleader also on instruction confirms this position. 4. Be that as it may, the Deputy Director forwarded his report along with Ext.P16 to the Manager, finding the 6th respondent guilty of several charges. Acting upon the report, Manager issued Ext.P17 show cause notice proposing removal of the 6th respondent. It is stated that the 6th respondent did not submit any reply in response to Ext.P17 and Manager submitted Ext.P18 to the Deputy Director proposing to impose punishment of compulsory retirement on the 6th respondent. At that stage, the Manager received Ext.P19 from the 6th respondent in reply to Ext.P17 informing that she has filed a revision against Ext.P16 and therefore further proceedings may not be continued. 5. Thereafter, Manager received Ext.P20 notice of hearing from the 3rd respondent, on an appeal filed by the WP(c).Nos.3402/08 & anor. 4 6th respondent, praying for revoking the order of suspension. Along with the notice Manager also received Ext.P20(a) petition filed by the 6th respondent invoking Rule 67(8)(a)and (9) of Chapter XIV-A KER. Thereafter, the 3rd respondent heard the parties and issued Ext.P21 order. In this order the 3rd respondent held that the enquiry conducted by the Deputy Director to be vitiated as it was not the Deputy Director who conducted the enquiry. He also reviewed and cancelled the order placing the 6th respondent under suspension and directed her reinstatement. In the meanwhile the 6th respondent had also filed Ext.R6(a) revision against Ext.P16 before the Government and the petitioner also filed Ext.P22 revision against Ext.P21 order of the 3rd respondent. Ext.P22 revision filed by the petitioner was rejected by Ext.P24 order and that order was challenged before this court in WP(c).No.15096/07. That writ petition was disposed of by Ext.P25 order quashing Ext.P24 on the ground that the order was passed without hearing the Manager. Taking into account the submissions WP(c).Nos.3402/08 & anor. 5 of the 6th respondent that Ext.R6(a) revision filed by her against Ext.P16 was also pending, this court directed that Exts.P24 and R6(a) revision should be disposed of by the Government. 6. Accordingly, the Government issued Ext.P26 order dated 14.1.2008, disposing of Exts.P24 and Ext.R6(a) directing that the 6th respondent shall be reinstated in service and that a proper enquiry shall be held by the Deputy Director in accordance with the rules. It is challenging Exts.P21 and P26 and for continuing action on Ext.P16 report, that the Manager filed WP(c).No.3402/2008. Though this writ petition was admitted there was no stay granted. Consequently, the Deputy director issued order dated 24.7.2008 directing reinstatement of the 6th respondent. It is challenging that order, the Manager filed WP(c).No.23155/08 and obtained an order of stay. 7. From the submissions made, the issue that arises for consideration is the correctness of the order of the 3rd respondent as confirmed by the first respondent to conduct WP(c).Nos.3402/08 & anor. 6 a de-novo enquiry into Ext.P10 memo of charges. Ext.P16 is the enquiry report and Ext.P20(i) is the proceedings of the enquiry. It is stated by the Deputy Director in Ext.P14 that the enquiry was over on 26.10.2006. However, Ext.P20(i), the proceedings of the enquiry shows that, the proceedings of the enquiry continued on several days including 26/10/2006,9/11/2006 and 15/11/2006. It is the specific case of the 6th respondent that the Deputy Director was absent on many of those occasions and that the proceedings were held before his subordinates. This submission of the learned counsel for the 6th respondent is confirmed by the learned Government Pleader on instructions. It is pointed out by the Government Pleader that, it was taking note of this defect in the enquiry that the 3rd respondent had issued Ext.P21 ordering a de novo enquiry and the Government confirmed the same in Ext.P26. 8. Rule 75(1)(b) Chapter XIV-A KER, requires that the formal enquiry should be conducted by an officer of the WP(c).Nos.3402/08 & anor. 7 Department appointed by the Director or the Government. In this case, it was the Deputy Director who was appointed to conduct an enquiry. In view of the admitted fact that the Deputy Director did not himself conduct an enquiry fully, I should accept the submission of the learned counsel for the 6th respondent that Ext.P16 report of the enquiry is a vitiated one. If that be so, irrespective of the technicalities involved, I am of the view that Ext.P21 as confirmed in Ext.P26 has to be upheld. 9. The other issue that calls for consideration is the correctness of the 3rd respondent's order which is also confirmed in Ext.P26 that the teacher should be reinstated pending the de novo enquiry ordered as above. As already noticed, it was by Ext.P8 dated 20.7.2006 that the teacher was placed under suspension. More than 2 years have elapsed and a proper enquiry is yet to be held. In these circumstances, the exercise of the power by the departmental authorities under Rule 67-8A, Chapter XIV-A KER, evidenced by Ext.P21 order do not call for interference. WP(c).Nos.3402/08 & anor. 8 However, having regard to the fact that an enquiry is yet to be conducted, though the 6th respondent needs to be reinstated, in order to ensure a proper enquiry, certain restrictions on the exercise of her powers as the Principal are also called for. Accordingly the following directions are issued. i. The Deputy Director of Education, the 4th respondent shall himself conduct an enquiry from the stage of Ext.P10 memo of charges with notice to the petitioner and the 6th respondent, complete the same and submit his report tot he Manager, as expeditiously as possible and at any rate within 3 months from the date of receipt of a copy of this judgment. ii. In the meantime, as ordered in Exts.P21 and P26, the 6th respondent shall be reinstated by the petitioner in service. iii. Pending completion of the enquiry, 6th respondent will not be entitled to discharge any administrative in the school. It is clarified that she will discharge academic WP(c).Nos.3402/08 & anor. 9 duties in the meanwhile. iv. It is also clarified that the 6th respondent would be entitled to pay and allowances as is otherwise admissible. v. It is also clarified that in case if any additional amount becomes payable on account of this arrangement, it will be the responsibility of the Manager to meet such additional liabilities and the Department will not be liable for the same. With these directions the writ petitions are disposed of. **ANTONY DOMINIC JUDGE** vi. WP(c).Nos.3402/08 & anor. 10