The Manager, Zamorin's Higher Secondary School, Chalappuram, Kozhikode v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939** ## **WP(C).No. 27772 of 2017 (V)** **----------------------------** **PETITIONER :** **---------------------** **THE MANAGER, ZAMORIN'S HIGHER SECONDARY SCHOOL, CHALAPPURAM P.O., KOZHIKODE - 673 002.** ## **BY ADVS.SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** **RESPONDENT(S):** **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 601.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE - 673 002.** ## **4. GIRIJAN. K,** **HSA (HINDI) (UNDER SUSPENSION), ZAMORIN'S HIGHER SECONDARY SCHOOL, CHALAPPURAM P.O., KOZHIKODE - 673 002.** ## **5. THE SPECIAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **R1 TO R3,R5 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R4 BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN SMT.B.MEERA SRI.S.SABARINADH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 27772 of 2017 (V)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **EXHIBIT P1 A TRUE COPY OF THE COMPLAINT RECEIVED BY THE MANAGER FROM A TEACHER OF THE SCHOOL, DATED 09.06.2005.** - **EXHIBIT P2 A TRUE COPY OF THE COMPLAINT RECEIVED BY THE MANAGER FROM H.M. OF THE SCHOOL, DATED 19.11.2007.** - **EXHIBIT P3 A TRUE COPY OF THE COMPLAINT RECEIVED BY THE MANAGER FROM H.M. OF THE SCHOOL REGARDING INSUBORDINATION AND DERELICTION IN DUTY ON THE PART OF 4TH RESPONDENT DATED 20.08.2009.** - **EXHIBIT P4 A TRUE COPY OF THE MEMO SERVED ON 4TH RESPONDENT DATED 13.05.2011.** - **EXHIBIT P5 A TRUE COPY OF THE COMPLAINT RECEIVED BY THE H.M. FROM STUDENTS OF VIII A DATED NIL REGARDING DERELICTION IN TAKING CLASSES ON THE PART OF 1ST RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE COMPLAINT DATED 05.08.2014 RECEIVED BY THE HEAD MASTER FROM THE STUDENTS OF STANDARD X-B.** - **EXHIBIT P7 A TRUE COPY OF THE COMPLAINT TO THE HM FROM GUARDIAN OF A STUDENT DATED 01.08.2014, REGARDING NOT TAKING CLASSES.** - **EXHIBIT P8 A TRUE COPY OF ANOTHER COMPLAINT RECEIVED FROM THE PARENTS OF STUDENTS OF STANDARD VIII-A STATING THAT THE 4TH RESPONDENT IS NOT TAKING CLASSES AND NOT COMPLETING THE SYLLABUS.** - **EXHIBIT P9 A TRUE COPY OF THE COMPLAINT RECEIVED BY THE MANAGER FROM THE HEAD MASTER OF THE SCHOOL DATED 06.08.2014.** - **EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS OF THE EDUCATIONAL AGENCY OF THE SCHOOL DATED 20.08.2014.** - **EXHIBIT P11 A TRUE COPY OF THE MEMO OF CHARGES ALONG WITH DETAILED IMPUTATION OF CHARGES ALONG WITH LIST OF DOCUMENTS DATED 19.09.2014.** - **EXHIBIT P12 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 04.09.2014.** - **EXHIBIT P13 A TRUE COPY OF THE ENQUIRY REPORT ALONG WITH THE COMMUNICATION DATED 13.02.2015.** - **EXHIBIT P14 A TRUE COPY OF THE PROCEEDINGS DATED 19.02.2015.** - **EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 01.07.2015.** **2/-** **-2-** **WP(C).No. 27772 of 2017 (V) -----------------------------------------** **EXHIBIT P16 A TRUE COPY OF THE PROPOSED PUNISHMENT DATED 31.08.2015. EXHIBIT P17 A TRUE COPY OF THE JUDGMENT IN W.P.(C) 25585 OF 2015, DATED 02.02.2016.** - **EXHIBIT P18 A TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE DATED 16.03.2016.** - **EXHIBIT P19 A TRUE COPY OF THE ORDER DATED 04.08.2017 AND RECEIVED ON 10.08.2017.** **EXHIBIT P20 A TRUE COPY OF THE JUDGMENT DATED 22.11.2016 IN W.P.(C) 37363 OF 2016.** - **EXHIBIT P21 A TRUE COPY OF THE REVISION PETITION FILED BEFORE 1ST RESPONDENT.** - **EXHIBIT P22 A TRUE COPY OF THE REPORT OBTAINED UNDER RTI, DATED 21/02/2015** - **EXHIBIT P23 A TRUE COPY OF THE ORDER, DATED 08/01/2015 ISSUED BY KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS** ## **RESPONDENT(S)' EXHIBITS** **----------------------------------------** - **EXHIBIT R4(A) COPY OF THE PAGE OF THE LOCAL DELIVERY TAPAL BOOK FOR 03/09/2014 OF DEO CALICUT, OBTAINED UNDER RTI** - **EXHIBIT R4(B) COPY OF THE LETTER GIVEN TO THE 2ND RESPONDENT BY ONE OF THE STUDENT** **EXHIBIT R4(C) COPY OF THE LETTER DATED 11/08/2014 PREFERRED BY THE HEADMASTER TO SMT.T.SHEELA, ADVOCATE** **EXHIBIT R4(D) COPY OF THE CERTIFICATE DATED 09/01/2012 FROM THE HEADMASTER** **EXHIBIT R4(E) COPY OF THE DEPOSITION MADE BY SRI.SREEKUMAR.O.P., MALAYALAM TEACHER AT THE PETITIONER SCHOOL, AS OBTAINED UNDER RTI ALONG WITH RETYPED COPY.** **EXHIBIT R4(F) COPY OF THE DEPOSITION OF THE 4TH RESPONDENT ALONG WITH RETYPED COPY.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA, J.** ## **W.P.(C) No.27772 of 2017** ## **Dated this the 30[th] day of October, 2017** ## **JUDGMENT** The Manager of an aided Higher Secondary School has filed this writ petition, challenging Ext.P19 order passed by the Government on a revision petition filed by the Manager as well as the 4[th] respondent, by which Government directed that the 4[th] respondent shall be reinstated and that the disciplinary proceedings against the 4[th] respondent shall be finalised. 2. The 4[th] respondent has been working as HSA Hindi in the petitioner's School from 21.7.2000 onwards. It is the case of the Manager that Exts.P1 to P3 complaints of the years 2005, 2007 and 2009 were received against the 4[th] respondent, from the teachers of the School as well as the Headmaster saying that the 4[th] respondent took away the official records, misused it, attempted to assault one of the teachers, not attending classes etc. Based on those complaints, the Manager issued Ext.P4 memo to him on 13.5.2011. However, no further proceedings were initiated against him on assurance that he would not repeat such misconducts. It is further stated that the Headmaster received some complaints from students of classes VII and X and their parents and the same were forwarded to the Manager complaining that the 4[th] respondent was not attending the classes and W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** was not completing the syllabus. It is stated that in view of the complaints Exts.P5 to P9 received from the students/their parents/the Headmaster, the petitioner placed the 4[th] respondent under suspension as per Ext.P10 order issued on 20.08.2014. As per Ext.P12 order, the District Educational Officer granted permission to the petitioner to retain the 4[th] respondent under suspension beyond 15 days. Thereafter, Ext.P11 memo of charge was issued on 19.9.2014. The allegations in the memo of charges were to the effect that the 4[th] respondent was not attending the classes regularly under the guise of his charge over Bharath Scouts and he was not completing the syllabus. It was also alleged that he was acting in disobedience of the orders of the Headmaster causing difficulties to the students; acting against the interest of the school; he submitted explanation to the show cause notice with factually incorrect statements. In the statement of allegations, annexed to the memo of charges, it was stated that complaints were received from the students that the 4[th] respondent was not completing the syllabus. The petitioner has produced Ext.P13 enquiry report submitted by the District Educational Officer on 13.2.2015, in which the 4[th] respondent was found guilty of three out of the six charges. On the basis of Ext.P13 report, the petitioner issued a show cause notice-Ext.P14 to the 4[th] respondent on W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** 19.2.2015 proposing punishment of dismissal from service. Permission was also sought from the Deputy Director of Education to impose the punishment. By Ext.P15 order dated 01.07.2015, the Deputy Director of Education denied permission for imposing the punishment of dismissal and directed the Manager to pass fresh orders, seeing that the dismissal was disproportionate to the charges found proved. 3. The 4[th] respondent approached this Court at that stage filing W.P(C) No.25585 of 2015 complaining that the Manager was prolonging the matter. While so, the Manager issued Ext.P16 order on 31.8.2015 modifying the punishment as removal from service **.** The Manager filed counter affidavit, producing the enquiry report and the modified order of removal. After hearing both sides, this Court disposed of the writ petition as per Ext.P17 judgment dated 02.02.2016, directing the Deputy Director of Education to pass orders on the question of approval of the proposed punishment of removal after hearing the petitioner (the 4[th] respondent herein) as well as the Manager (the petitioner herein). In Ext.P18 order dt.16.3.2016, the Deputy Director of Education found that the application submitted by the Manager for approval for imposing the punishment was not proper as the 15 days' period granted to the 4[th] respondent for submitting W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** explanation against the proposal for awarding the punishment of removal was not over. It was also found that the proposed punishment was disproportionate to the charges which were found proved. Accordingly, the request of the Manager was rejected. Aggrieved by Ext.P18 order, the petitioner submitted Ext.P21 revision petition on 21.04.2016. 4. It appears that the 4[th] respondent had in the meanwhile filed an appeal against the enquiry report, which the Deputy Director of Education disposed of stating that the Manager has to settle the disciplinary action after orders were passed by the Government on the revision petition filed by the petitioner before the Government. As against that order, the 4[th] respondent submitted a revision petition before the Government and thereafter approached this Court filing W.P.(C) No 37363 of 2016 and this Court by Ext.P20 judgment dated 22.11.2016 directed the Government to pass orders on the revision petition filed by the 4[th] respondent and the appeal filed by the petitioner after hearing both parties. It was thereafter that the Government issued the order-Ext.P19, which is under challenge in this writ petition. 5. In Ext.P19 order, Government found that the enquiry conducted by the Department was not proper as the departmental W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** authorities failed to adduce evidence against the irregularities alleged against the 4[th] respondent. The Government also found that the findings were not sufficient to award a punishment of removal. Therefore, the petitioner was directed to reinstate the 4[th] respondent and to finalize the proceedings against him. The Deputy Director of Education was directed to take further action. 6. The petitioner has filed this writ petition at this stage, challenging this oder pointing out that Government issued the order on the basis of Ext.P20 judgment in W.P.(C) No.37363 of 2016 filed by the 4[th] respondent, which was disposed of without notice to the petitioner. Petitioner submits that he is totally unaware of any appeal by the 4[th] respondent against the inquiry report or any revision petition preferred by the 4[th] respondent. According to the petitioner, even though the Government conducted a hearing he was not given the copy of the revision petition filed by the 4[th] respondent. The direction in Ext.P20 judgment was to the Government to pass orders on the revision petition filed by the 4[th] respondent and the appeal filed by the petitioner. Even though the petitioner raised allegations regarding the issuance of the order by one Secretary after the matter was heard by another one, subsequently, at the time of hearing, those contentions were not pressed, as what was heard by the Government was an W.P.(C) No.27772/17 :6: institutional hearing. However it was pointed out that non supply of the copy of the revision petition submitted by the 4[th] respondent caused serious prejudice to the petitioner. Therefore, it is stated that the direction of the Government to reinstate the 4[th] respondent is issued without giving him the copy of the revision petition, which was considered by the Government, in gross violation of the principles of natural justice. Petitioner pointed out that though he submitted a number of documents, to substantiate his contentions, none of his contentions or documents, are seen considered in the order. 7. It is his case that there is no reason stated by the Government to interfere with the factual findings against the 4[th] respondent; it is argued that the 4[th] respondent is not entitled to continue as a teacher. According to the petitioner, the conduct of the 4[th] respondent, being a teacher who is not attending the classes, in not completing the syllabus in time, misbehaving and maintaining arrogant approach with fellow teachers, threatening the Headmaster and other staffs and disobeying the lawful orders of the Headmaster etc., would dis-entitle the 4[th] respondent to continue as a teacher. It is the further allegation that the 4[th] respondent was giving false propaganda as to sexual harassment of girls by one of the teachers in the school, which tarnished the reputation of the school. W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** 8. The 4[th] respondent filed a counter affidavit refuting all the contentions raised by the petitioner and the allegations levelled against him in the complaints produced by the petitioner as Exts.P1 to P9. According to the 4[th] respondent, the disciplinary action is initiated against him for the reason that he stood for justice on the complaint of about 20 girl students that a drawing teacher of the school was misbehaving with them. According to him, the Manager as well as the Headmaster wanted to settle the matter without taking any action. According to him, the drawing teacher who was involved in the matter was allowed to avail leave and when he started coming in August 2014 the President of the PTA had taken up the issue. The 4[th] respondent submits that he was on medical leave at the relevant time. It is stated that the incident relating to misbehavior of the drawing teacher and the management was siding the drawing teacher was aired in the evening news bulletin in TV channels on 18.08.2014. It is stated that the Headmaster accused the 4[th] respondent for having brought up the issue along with the President of the PTA. Therefore the 4[th] respondent was not allowed to join duty on 19.8.2014 when he came back after medical leave. He was placed under suspension on the very next day on 20.8.2014. According to the 4[th] respondent, the District Educational Officer who granted him permission to retain him under suspension W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** was a family member of the Manager. It is also his case that the very same District Educational Officer conducted the enquiry without following the principles of natural justice. According to the 4[th] respondent none of the witnesses were examined in his presence. The witness list was not given to the 4[th] respondent during the enquiry. The deposition of the witnesses was taken down behind his back. The copy of the deposition of witnesses and the list of documents relied on by the management were not given to him. The copies of documents relied on by the management was not also given to him. He was not permitted to cross examine the witnesses and the documents produced by him were not accepted in the inquiry and not even mentioned in the enquiry report. It is alleged that the enquiry officer found him guilty of unauthorized absence even though leave application was submitted along with medical certificate. He produced a letter received from a student stating that complaint was given as directed by the Headmaster, to the effect that the 4[th] respondent had not been taking classes regularly. The 4[th] respondent has produced Ext.R4(c) documents pointing out that there had been attempts to settle the issue regarding the misbehaviour of the drawing teacher against the girl students. It is his case that recording of the statement and publication of the same in the media infuriated the Headmaster W.P.(C) No.27772/17 **==> picture [14 x 10] intentionally omitted <==** and the Manager. Producing the statement of another teacher of the school, the 4[th] respondent claims that the allegations regarding his irregular attendance, indiscipline etc. are incorrect. Ext.R4(d) produced by the 4[th] respondent is a certificate issued by the Headmaster of the school on 9.1.2012 in which the Headmaster has appreciated his work not only in the school but also as the co-ordinator of the scout and guides and several of the activities inside and out side the school. It is also certified that the 4[th] respondent is the winner of “Vibhinna Puraskar” awarded in appreciation of his services from the Hindi Teachers Association of Kerala. 9. Reply affidavit and additional counter affidavit are filed by the parties. 10. While the contention of the petitioner is that non-furnishing of copy of the revision petition, has seriously affected the petitioner, the contention of the 4[th] respondent and the learned Government Pleader is that the petitioner did not make any request for copy of the revision petition, when the matter was heard by Government. Learned counsel for the 4[th] respondent also points out that a perusal of the enquiry report would be sufficient to arrive at the finding that District Educational Officer did not conduct an enquiry in accordance with rules. Even on the basis of the findings thus arrived at, in the enquiry W.P.(C) No.27772/17 **==> picture [20 x 10] intentionally omitted <==** report the Deputy Director of Education as well as Government found that the proposed penalty of removal was excessive and therefore directed reinstatement. In these circumstances, the Government, while affirming the order passed by the Deputy Director of Education declining approval to the petitioner to impose the penalty of removal from service, was not required to repeat what the subordinate officers already found. It was also unnecessary to point out each and every contention raised by the parties. 11. Learned counsel for the petitioner points out that 4[th] respondent cannot be heard to raise any contention against the enquiry report, as he did not choose to challenge Ext.P15 order of the Deputy Director of Education. Pointing out Ext.P20 judgment and the proceedings subsequent to Ext.P15, petitioner points out that Ext.P15 order was already acted upon by issuing Ext.P16 and those orders were issued on the basis of the enquiry report in which at least three charges were found proved against the 4[th] respondent. 12. I heard Sri. M.P Sreekrishnan, learned Counsel appearing for the petitioner, Sri.Manu Govind, the learned Counsel for the 4[th] respondent and the learned Government Pleader for the official respondents. 13. The main contention of the petitioner in the Writ Petition was W.P.(C) No.27772/17 **==> picture [19 x 10] intentionally omitted <==** that Ext.P19 order was not passed by the person who heard the matter and therefore it is violative of the principles of natural justice. Judgment of the apex court in _**Union of India & others V Shiv Raj & others: (2014)6 SCC 564**_ was relied on in support of the contention. But the learned counsel for the 4[th] respondent relying on the judgment of the apex court in _**Kalinga Mining Corporation Vs. Union of India and others : (2013) 5 SCC 252**_ and _**Sudheer v. M.V.Susheela & ors. : 2009 (4) KLT 29,**_ argued that Ext.P19 order, passed on a revision petition is not in any way illegal or violative of the principles of natural justice on the ground that the person who heard the matter did not pass the order. The revision/appeal was before the Government and the order Ext.P19 was passed by the Government in an institutional hearing. In _**Shivraj's**_ case (supra) the apex court was considering the validity of an order passed by the successor in office of the Collector after the hearing before his predecessor, on objections filed under Section 5A of the Land Acquisition Act by land owners who were deprived of their properties. It was held that the Land Acquisition Collector was duty bound to consider the objections of the Land owners and make recommendation as to whether a particular land was to be acquired or not, for which an objective consideration was required. Therefore the hearing under Section 5A of the Land W.P.(C) No.27772/17 **==> picture [20 x 10] intentionally omitted <==** Acquisition Act is entirely different from that under Rule 92 of Chapter XIVA KER which is purely institutional for which it is not necessary that the same person should pass the order as held in the judgment of the Full Bench of this court in _**Sudheer's case (supra) and Kalinga Mining Corporation's**_ case _(supra)_ _**.**_ The learned Counsel for the petitioner, fairly conceded this position _._ 14. The learned Counsel for the 4[th] respondent further relied on the judgment in _**S.N.Mukherjee vs. Union of India : (1990) 4 SCC 594,**_ in support of the contention that reasons need not be stated separately when orders are passed in appeal or revision, affirming the decision of the subordinate authority. On the question of defective enquiry conducted by the District Educational Officer the learned counsel relied on the the judgment of this Court in _**Workmen of Madura Co. Ltd., Cochin rep. by the Cochin Commercial Employees Association v. Labour Court Quilon and another : 1965 KHC 395.**_ Relying on the judgment in _**Kashinath Dikshita V. Union of India and others:1986 3 SCC 229**_ it was argued that non supply of the copy of the revision petition will not amount to denial of any reasonable opportunity to the petitioner. Learned counsel for the 4[th] respondent relying on _**Rani P. John V State of Kerala & others: 2015 (4) KHC 824**_ argued that the enquiry report can be challenged W.P.(C) No.27772/17 **==> picture [20 x 10] intentionally omitted <==** by the delinquent only when it is acted upon and therefore the 4[th] respondent has taken up the matter as and when the Manager acted upon the enquiry report. It is further pointed out that no prejudice is caused to the petitioner by the non-supply a copy of the revision petition. It is also pointed out that the enquiry started with the deposition of the delinquent itself is in violation of principles of natural justice. 15. On consideration of the rival contentions, it is seen that Ext.P19 order is passed by Government after considering the revision petitions filed by both the parties i.e the revision petition filed by the petitioner against the denial of permission to impose the penalty of removal of the 4[th] respondent and the revision petition filed by the 4[th] respondent against the enquiry report. The contention of the petitioner is that copy of the revision petition submitted by 4[th] respondent was not furnished to him. Though, as contended by the learned counsel for the petitioner, it is true that the Secretary to Government need not maintain the order sheet as in a civil court, to record the request of petitioner, there is no material to show that the petitioner ever requested for the copy of the revision petition submitted by the 4[th] respondent, before Ext.19 order was issued. It is pointed out that a composite notice was issued to the parties, for the hearing on both W.P.(C) No.27772/17 :14: revision petitions. 16. Assuming that there was a request and even thereafter petitioner was not given the copies, the question to be examined is whether it resulted in any prejudice to the petitioner. In the counter affidavit, the 4[th] respondent has stated that the list of witnesses or list of documents were not given to him; he was not given an opportunity to cross examine; the documents produced by him were not marked, etc. The only answer to the contentions as against these fundamental flaws in the inquiry is that the respondent accepted the enquiry report and he did not have any complaint against the inquiry when he approached this court, when Ext.P17 judgment was rendered, after Ext.P15 order, in which it was found that three of the charges were already found proved, while declining permission to impose the penalty of dismissal, was passed. There is no definite case for the petitioner that a proper enquiry was conducted following the prescribed procedure. Moreover the enquiry report Ext.P13 proceeds saying that an enquiry was conducted on 29.01.2015, based on the request of the Manager to conduct an enquiry under Rule 75. It is stated that Statement/deposition was taken from 4[th] respondent, representative of the Manager, Headmaster, other teachers in the school, students, representatives of PTA, former presidents of PTA, etc. That would W.P.(C) No.27772/17 **==> picture [20 x 10] intentionally omitted <==** indicate that the enquiry commenced by the examination of the delinquent teacher, which is not permissible. An inquiry has to be conducted, examining the witnesses with opportunity to the delinquent to cross examine, for which the list of witnesses as well as list of documents has to be furnished on the delinquent. It is also necessary to allow the delinquent to examine his witnesses with opportunity to the management to cross examine after giving copy of witness list and document list. As rightly contended by the learned counsel for the 4[th] respondent, relying on the judgment of this court in _**1965 KHC 395: Workmen of Mathura Co Ltd V Labour Court, Kollam,**_ the inquiry can never commence with the cross examination of the delinquent. The following observations of the apex court, relied on in the judgment, i.e in _**Associated Cement Co. v. Workmen, (1964) 3 SCR 652**_ are relevant in the context. _**“13.** xxx It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, given an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. xxxxTherefore, we are satisfied that Mr Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry._ 17. The enquiry against teachers in aided Schools is to be conducted under Rule 75 of Chapter XIVA KER. In the judgment in W.P.(C) No.27772/17 :16: ## _**Seetharam Upper Primary School v. State of Kerala :** 2012(2)_ _KLT 338_ , a learned Single Judge of this court found the infirmities in the enquiries being conducted by the educational officers and issued the following direction that the procedure as followed in the case of Government School Teachers as provided in Kerala Civil Service Classification Control and Appeal Rules, shall be adhered to: _8. In this connection, I intend to issue certain general guidelines for compliance by Educational Officers who conduct enquiries under Chapter XIV A of the K.E.R against teachers and staff of aided schools at the request of the managers of such schools. From the cases in respect of disciplinary proceedings under the K.E.R. coming up before this Court, I find that the Educational Officers do not generally conduct enquiries under the K.E.R. in the right perspective. They do not generally conduct enquiries as is usually done in the case of Government school teachers under the Kerala Civil Services (Classification, Control and appeal) Rules. They just note down some statements from whoever is present at the time of enquiry and prepare an enquiry report. No proper examination of witnesses with opportunity to cross examine in compliance with principles of natural justice is done. The depositions of witnesses are not got signed by the witnesses and the parties. Other usual formalities for a valid enquiry as under the KCS (C.C.A) Rules are not complied with, which is likely to prejudice either the manager or the delinquent. I am of opinion that the enquiry against an aided school teacher is nothing different from an enquiry against a Government School Teacher for misconducts alleged against him/her. Therefore, while conducting enquiries, the principles followed for conducting enquiries against Government servants should mandatorily be followed. But I make it clear that such consideration shall be strictly in accordance with the principles laid down noted above in respect of conducting disciplinary enquiries against teachers of the aided schools under R.75 of Chapter XIV A of K.E.R._ _Xxxxx xxxxx_ _9. In effect, R.75 does contain all the said requirements for a valid enquiry to be conducted under that Rule. Therefore enquiries under R.75 should also be conducted in accordance with principles for conducting enquiries against Government servants. Normally such enquiries consists of first issuing a_ W.P.(C) No.27772/17 :17: _memo of charges, getting a written statement from the delinquent, forwarding of the papers to the Educational Officer (which are to be done by the manager) examination of witnesses cited by both sides with opportunity to the opposite side to cross-examine the witnesses, recording the deposition of the witnesses, getting signatures of the witnesses as well as the manager and the teacher in the depositions of witnesses as well as daily proceedings of the enquiry, hearing arguments on the evidence or accepting argument notes and preparing an enquiry report considering the evidence in the enquiry entering specific findings as to whether the charges leveled against the teacher are proved or not and forwarding the same to the manager. Although arguments have been advanced both by the petitioner as well as the teacher as to whether the enquiry is valid or not, I am not inclined to go into the same in so far as I am remanding the matter to the Government for consideration of that question in accordance with law. But I make it clear that such consideration shall be strictly in accordance with the principles laid down noted above in respect of conducting disciplinary enquiries against teachers of the aided schools under R.75 of Chapter XIV A of K.E.R._ ## 18. Thereafter in _**Noushad v. State of Kerala** :_ _**2013 (2)**_ _**KLT SN 89**_ it was held that enquiry under Rule 75 of Chapter XIVA shall be conducted in accordance with the procedure laid down in the Manual of Disciplinary proceedings. The petitioner does not have a case that the enquiry was conducted as required under Rule 75 and as directed in the judgments in _**Seetharam UP's**_ case or _**Noushad's**_ case (supra). The contention is that 4[th] respondent accepted it. A perusal of enquiry report Ext.P13 would show that an enquiry as contemplated under Rule 75 is not conducted by the educational officer. Therefore it cannot be said that any prejudice is caused to petitioner by the non-supply of the copy of revision petition of the 4[th] W.P.(C) No.27772/17 **==> picture [20 x 10] intentionally omitted <==** respondent before passing Ext.P19 order. 19. Even assuming that the petitioner did not challenge the inquiry report when he approached this court at a time when orders were not passed subsequent to the direction of the Deputy Director of Education to pass fresh orders on the question of punishment, that cannot stand in the way of a subsequent attack against the very conduct of the inquiry. He has taken up the matter very well before a punishment is actually imposed on him based on such an enquiry. Therefore no purpose would be served, by directing a re-hearing, after directing to furnish the copy of the revision petition of the 4[th] respondent. As rightly pointed out by Sri.Manu Govind, this court is not expected to issue futile writs, as held by the Division Bench of this court in _**Trissur District Petroleum Dealers Association V State of Kerala and others: 2009(4) KHC 700: 2009(4) KLT 350.**_ 20. It is also relevant to note that permission to impose penalty of removal was rejected by the Deputy Director of Education, seeing that permission was sought even before the time granted to 4[th] respondent to show cause against the proposal was not over, while referring to the disproportionality of punishment. Petitioner has not challenged that order also. Therefore the 4[th] respondent has got every right to raise the contentions on the illegality in the procedure followed W.P.(C) No.27772/17 :19: in the inquiry or against the evidence adduced. 21. Even though petitioner raises a series of allegations against the 4[th] respondent and contends that the 4[th] respondent was found guilty of three out of the 6 charges alleged against him, all those findings become irrelevant and unreliable, once the inquiry is found faulty for non-compliance of procedure under Rule 75 of the Chapter XIVA KER. 22. The contention of the petitioner that the order Ext.P19 is bad for non-application of mind and it does not deal with any of the contentions raised by the petitioner, also falls once the inquiry is found vitiated. The revision petition of the petitioner is against denial of permission to impose the penalty of removal. In order to impose the penalty, the charges should be found proved in a duly conducted inquiry. Government after hearing both parties, found that the departmental authorities have not conducted any enquiry by adducing evidence. At the same time it is also found that the findings are not sufficient to award a punishment of dismissal. In that view of the matter, no illegality can be attributed to the impugned order passed by Government for the absence of reference to contentions raised by the petitioner as against the order passed by the Deputy Director of Education, as all those contentions relate to a subsequent stage based W.P.(C) No.27772/17 :20: on a vitiated inquiry. 23. Government have directed reinstatement of the petitioner seeing that even the finding arrived at on the basis of such an enquiry is insufficient for awarding the punishment of removal. The 4[th] respondent has been under suspension right from 20.8.2014. Therefore, it cannot be said that the order Ext.P19 passed by Government suffers any illegality in any manner. In the circumstances stated above, I do not find any reason to interfere with Ext.P19 order passed by the Government. However there shall be a direction to respondents 2 and 3 to see that the disciplinary proceedings against the 4[th] respondent is finalised, as directed by Government, strictly in accordance with rules within a period of 2 months from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA JUDGE** rkc