The Manager, Zamorins Higher Secondary School, Chalappuram, Kozhikode-673002 v District Educational Officer, Kozhikode; State of Kerala; Girijan K

W.P.(C).No.6266/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **WP(C).No.6266 OF 2020(G)** ## **PETITIONER:** ## **THE MANAGER** **ZAMORINS HIGHER SECONDARY SCHOOL, CHALAPPURAM P.O., KOZHIKODE-673 002.** **BY ADVS.** **SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.ANUROOPA JAYADEVAN SMT.ANIMA M.** ## **RESPONDENTS:** - **1 THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE KOZHIKODE, OFFICE OF THE DEO, KOZHIKODE, PIN673 001.** - **2 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** - **3 GIRIJAN K** **HST (HINDI), UNDER SUSPENSION, ZAMORINS HIGHER SECONDARY SCHOOL, CHALAPPURAM P.O., KOZHIKODE673 002 (RESIDING AT SIVADHAM, ERAMANGALAM P.O., BALUSSERY, KOZHIKODE).** **R1-2 BY GOVERNMENT PLEADER R3 BY ADV. SRI.A.JAYASANKAR R3 BY ADV. SRI.MANU GOVIND R3 BY ADV. SHRI.AYESHA MARIA JOHN** W.P.(C).No.6266/2020 2 ## **OTHER PRESENT:** ## **SR GP P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-09-2020, THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.6266/2020 3 ## **JUDGMENT** ## **Dated this the 9[th] day of October 2020** - 1.This writ petition is filed with the following prayers:- “i)to call for the records leading to Exhibits P6 and to quash the same by the issue of a Writ in the nature of Certiorari or other appropriate writ, direction or order. ii) to direct the 2[nd] respondent to consider Ext.P1 revision petition filed by the petitioner under Rule 92 of the Kerala Education Rules within a reasonable time and pass orders. iii) If Ext.P1 revision cannot be disposed of within a reasonable time, the 2[nd] respondent may be directed to consider Ext.P2 petition for stay and pass orders forthwith.” - 2.Heard the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the 3[rd] respondent as well as the learned Government Pleader. - 3.The petitioner is the Manager of an aided school. The 3[rd] respondent is a High School Teacher working in the school. It is submitted that the 3[rd] respondent had been placed under suspension in contemplation of disciplinary proceedings on 27.1.2020. The petitioner sought permission from the W.P.(C).No.6266/2020 4 Educational Authority to continue the suspension beyond 15 days. The said request was rejected by order dated 10.2.2020 by the 1[st] respondent. Ext.P1 revision petition was filed by the petitioner before the Government as against the order of the 1[st] respondent. It is submitted that while so, Crime No.54/2020 was registered against the 3[rd] respondent alleging offences under Sections 323, 341 IPC read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ['Juvenile Justice Act' for short] on 24.01.2020. Ext.P3 is the FIR. It is stated that on coming to know of the registration of the crime, the petitioner, by Exhibit P4 order dated 13.2.2020 placed the 3[rd] respondent under suspension. Immediately thereafter, an application was filed before the 1[st] respondent seeking permission to extend the period of suspension beyond 15 days. A preliminary enquiry was conducted by the 1[st] respondent and Exhibit P6 order was passed rejecting the application and directing the reinstatement of the 3[rd] respondent with effect from the date of suspension. It is contended that Ext.P6 order is devoid of jurisdiction and the finding therein that the incident based on which the FIR was W.P.(C).No.6266/2020 5 lodged had not occurred, is completely unsustainable and is beyond the powers of the 1[st] respondent under Rule 67(8) of Chapter XIVA, Education Rules, 1959 (Kerala) [KER for short). It is contended that only a primary investigation is contemplated in terms of Rule 67(8) and the only question that can be considered is the necessity to keep the officer under suspension and that a reading of Ext.P6 would show that the 1[st] respondent had transgressed his powers under the provisions of law and had entered findings on the merits of the criminal complaint raised by a student against the 3[rd] respondent. It is stated that the fact that the 3[rd] respondent had been granted pre-arrest bail under Section 438 Cr.P.C is absolutely irrelevant in considering the request for extension of the period of suspension. - 4.The statutory provisions which are relevant for the consideration of the issue are as follows:- Rule 67 (1) Chapter XIVA KER reads as follows:- - “The Manager may at any time place a teacher under suspension - (a) when disciplinary proceedings against him are contemplated or are pending or W.P.(C).No.6266/2020 6 (b)when a case against him in respect of any criminal offence is under investigation or trial, or (c)when the final orders are pending in the disciplinary proceedings if the authority considers that in the then prevailing circumstances it is necessary, in public interest that the teacher should be suspended from service. “ ## Rule 67(3) provides as under:- “A teacher who is detained in custody on a Civil, Criminal or other proceedings for a period exceeding 48 hours, shall be deemed to have been under suspension during that period and he cannot draw his pay and allowance, other than subsistence allowance, allowable under the rule till the final termination of such proceedings.” ## Rule 67(8) reads as under:- “Where the orders of suspension is made by the manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and where the suspension is in respect of the Headmaster/Headmistress/Vice Principal of High school and Training school such reports shall be sent to the Deputy Director (Education)] also in addition to the Educational Officer and in the case of Principal, such report shall be sent to such other officer authorised by the Government. The Deputy Director (Education)] if the suspension is in respect of Headmaster/Headmistress/Vice Principal of a High school school or Training School and the Educational Officer in other cases and such W.P.(C).No.6266/2020 7 other officer authorised by the Government in the case of Principal shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manger. If on such investigation it is found that there are valid grounds for such suspension, permission may be given to the manger to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days. ## Rule 67(8A) reads as follows:- (8A) Notwithstanding anything contained in sub-rule (8) the authority who permitted the suspension beyond 15 days or any higher authority may at any time during the pendency of such suspension, review such permission and if such authority is satisfied that the teacher under suspension has to be reinstated in service for reasons to be recorded in writing cancel the permission already ordered under sub-rule (8) and direct the Manager to reinstate the teacher in service. On such order, the Manager shall reinstate the teacher forthwith failing which the provisions in sub-rule (8) will apply in such case W.P.(C).No.6266/2020 8 (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 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. ## Rule 67A reads as follows:- 67A. A teacher against whom proceedings have been taken either for his arrest for debt or criminal charge shall be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment and not allowed to draw any pay and allowances during such periods other than subsistence allowance that may be granted in accordance with the rules, until the final termination of the proceedings taken against him.” 5.The contention of the learned Senior Counsel is that in a case where suspension is resorted to as a result of the filing of a W.P.(C).No.6266/2020 9 criminal case against an employee, the recording of satisfaction as to the necessity to keep the employee under suspension is not required and that the Manager is duty bound to keep the employee under suspension where an FIR has been registered, especially alleging an offence under the Juvenile Justice Act. Relying on the provisions in Rule 67(3), 67(9) and Rule 67A, it is contended that in some circumstances, suspension is an automatic exercise and no reinstatement is contemplated until the criminal proceedings are completed. It is further submitted that there are specific directions issued by the Director of General Education to all Managers of aided schools specifically stating that the Managers are to ensure that no corporal punishment or mental or physical harassment is meted out to any child by any employee of such schools and that disciplinary proceedings have to be taken against any employee against whom such complaints are raised. It is contended that the findings in Ext.P6 are perverse and the same is liable to be quashed. Relying on a decision of this Court in **Meenakshi v. State of Kerala** [2020 (5) KLT 166], it is contended that the W.P.(C).No.6266/2020 10 investigation contemplated in Rule 67(8) cannot be equated to an enquiry under Rule 75 of Chapter XIVA of the KER and it is only limited in nature. 6.The learned Senior Counsel for the petitioner submits that Rule 67(9) of Chapter XIVA provides for review of suspension on completion of six months and that even in such cases, the review will not apply to cases of suspension in pursuance of criminal proceedings in a Code or detention or as a prisoner for debt where sub-rule(3) of Rule 67 and 67A apply. 7.A counter affidavit has been placed on record by the 3[rd] respondent. It is submitted that the entire proceedings against the 3[rd] respondent are vitiated by mala fides and that the Manager is misusing his office to settle scores with him. It is contended that 23 girl students had submitted a complaint against another teacher, one Sri.Subramanium alleging sexual abuse in the year 2013. The Manager had required the 3[rd] respondent to maintain silence to the incident which was not acceded to by the petitioner. It is W.P.(C).No.6266/2020 11 stated that the petitioner placed the 3[rd] respondent under suspension conducted disciplinary proceedings against him and proposed to dismiss him from service. This Court by Ext.R3(a) judgment uphold the order of the Government directing the reinstatement of the 3[rd] respondent. It is stated that the 3[rd] respondent was ultimately reinstated only in 2019 and the period when he was kept out of service was directed to be treated as duty by Ext.R3(e) order. It is stated that soon after the 3[rd] respondent had been reinstated and granted the benefits of full pay and allowances in respect of the earlier instance of suspension and disciplinary proceedings, he was again placed under suspension on 27.1.2020. It is contended by the learned counsel for the 3[rd] respondent that in spite of orders passed by the educational authorities directing reinstatement, the 3[rd] respondent had not been reinstated in service so far on the strength of an interim order issued by this Court in this writ petition which only interdicted coercive action against the Manager. W.P.(C).No.6266/2020 12 8. It is submitted by the learned counsel for the 3[rd] respondent that a plain reading of Rule 67 of Chapter XIVA KER would make it clear that in every case where the Manager decides to place a teacher under suspension, a subjective satisfaction of the authority that it is necessary in public interest in the then prevailing circumstances to suspend the teacher is to be recorded and an order of suspension issued without such a finding is bad in law. It is submitted that Ext.P4 suspension order does not state anything about any such satisfaction and the order is admittedly passed only because an FIR has been registered against the third respondent. It is submitted that Exhibit P6 order is rendered by a competent authority in terms of Rule 67(8). It is stated that any interference by this Court in Exhibit P6 would revive and restore Exhibit P4 order of suspension, which is completely devoid of the legal requirement of a satisfaction that an order of suspension is necessary. 9.I have considered the contentions advanced on either side. It is trite law and needs no explanation that suspension is not a W.P.(C).No.6266/2020 13 punishment and is only a step taken to keep an erring employee against whom disciplinary proceedings or criminal proceedings are taken, out of employment temporarily to facilitate the proper conduct and conclusion of such proceedings. The necessity, in the given circumstances, to keep an employee out of service is a factor which has to be considered by the authority passing the order of suspension before such an order is issued. A plain reading of Section 67(1) would only support the proposition that in all the three situations enumerated in Rule 67(1), the subjective satisfaction of the authority as to the necessity of keeping the teacher under suspension has to be recorded. The situation of a suspension necessitated by the registration of a criminal case against an employee is no exception. - 10.If the Rule is not read in that manner, it would create a situation where the Manager can place a teacher under suspension at any time when disciplinary proceedings are contemplated or are pending and no satisfaction as to the necessity to keep the teacher under suspension would be W.P.(C).No.6266/2020 14 required in such a case. Similarly, where a criminal case is pending against a teacher also, there has to be a finding rendered by the Manager that it is necessary in public interest in the prevailing circumstances to place the teacher under suspension. After considering the contentions advanced, I notice that Exhibit P6(a) order proceeds on the basis that the suspension of the teacher was ordered without considering the facts and without conducting a preliminary enquiry. Rule 67(8) provides for a preliminary investigation into the grounds of suspension. It is provided that if on such investigation, the authority is satisfied that there is no valid ground for the suspension he may direct the Manager to reinstate the teacher from the date of suspension by the Manager. It is, clear from Ext.P4 that there is no satisfaction recorded by the Manager that it is necessary in the public interest to keep the third respondent under suspension. If that be so, the alleged irregularity in Exhibit P6 would not be sufficient for this Court to set aside the said order. W.P.(C).No.6266/2020 15 11.Exhibit P6 orders the reinstatement of the petitioner. The contention of the learned Senior Counsel for the petitioner that the third respondent is liable to remain under suspension until the criminal proceedings against him culminate till the investigation is completed and it is found that no offence is made out, according to me, cannot be accepted in view of the the plain language of Rule 67. Rule 67(3) of Chapter XIVA KER specifically provides for automatic suspension or deemed suspension where a teacher is detained in custody on a civil, criminal or other proceeding for a period exceeding 48 hours. It is clear from a combined reading of the provisions that the deemed suspension is applicable only in a case where the teacher is detained in custody for a period exceeding 48 hours, till the termination of the proceedings. Rule 67A of Chapter XIVA KER provides that the teacher against whom proceedings have been taken either for his arrest for debt or criminal charges shall be considered as under suspension for any period during which he is detained in custody or is undergoing imprisonment and shall not be allowed to draw any pay and allowances until W.P.(C).No.6266/2020 16 final termination of the proceedings. In the instant case, neither Rule 67(3) nor Rule 67A are attracted. It is an admitted fact that an FIR have been registered showing the third respondent as an accused. However it is also admitted fact that the 3[rd] respondent had obtained an anticipatory bail and had not suffered any detention in pursuance to Exhibit P3. It is also not disputed that the investigation is not complete and no charge has been laid against the 3[rd] respondent. In the above factual situation, I am of the opinion that the direction in Exhibit P6 to reinstate the 3[rd] respondent cannot be held to be perverse. - 12.Even in case Exhibit P6 order had not been passed, cases where teachers are continuing under suspension for periods exceeding six months have to be reviewed and a decision is liable to be taken whether the suspension is to be continued or not. In the absence of any compelling circumstance to continue the suspension of the teacher, I am of the opinion that the Manager is duty bound to reinstate the 3[rd] respondent in service. W.P.(C).No.6266/2020 17 13.Exhibit P4 order of suspension is one issued as early as on 13.2.2020. Ext.P4 admittedly does not contain any further observation as to the necessity for keeping the third respondent under suspension except recording of the fact that and FIR has been registered. In the above factual situation, even if Exhibit P6 order is not happily worded, the finding in Exhibit P6 to the effect that Exhibit P4 did not record any reasons for the suspension, would, by itself, be adequate to justify the orders directing reinstatement of the third respondent. - 14.In the above view of the matter, I am of the opinion that the challenge against Exhibit P6 order is not sustainable. The challenge fails. The petitioner shall reinstate the 3[rd] respondent in service immediately at any rate within two weeks from the date of receipt of a copy of this judgment. Sd/- ## **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNEMNT OF KERALA ON 26.2.2020.** - **EXHIBIT P2 TRUE COPY OF THE STAY PETITION FILED ALONG WITH EXT.P1 REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT OF KERALA ON 26.2.2020.** **EXHIBIT P3 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.54/2020 OF KOZHIKODE CUSBA POLICE STATION.** **EXHIBIT P3(A) TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTION I.E. THE FIRST INFORMATION AND COLUMN 12 IN EXT.P3 FIR.** **EXHIBIT P4 TRUE COPY OF THE SUSPENSION ORDER DATED 13.2.2020 ISSUED BY THE PETITIONER AND SERVED ON THE 3RD RESPONDENT.** **EXHIBIT P4(A) TRUE ENGLISH TRANSLATION OF EXT.P4.** - **EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 20.2.2020 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **EXHIBIT P5(A) TRUE ENGLISH TRANSLATION OF EXT.P5.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATE 27.2.2020 ISSUED BY THE IST RESPONDENT.** **EXHIBIT P6(A) TRUE ENGLISH TRANSLATION OF EXT.P6.** ## **RESPONDENT'S EXHIBITS** |**EXHIBIT**<br>**R3(k)**|**COPY OF THE SHOW CAUSE NO.B3/3937/2020(1) DATED**<br>**23.6.2020**| |---|---| |**EXHIBIT R3(1 **|**COPY OF THE LETTER NO.RA ESTT TS/HS/32/2020**| |**EXHIBIT**<br>**R3(M)**|**COPY OF THE REPRESENTATION DATED 14.7.2020 TO THE**<br>**1ST RESPONDENT**| |**EXHIBIT**<br>**R3(N)**|**COPY OF THE COMMUNICATION DATED 20.4.2020.**| True copy PS to Judge