T.P. Komalavalli v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930** ## **OP.No. 810 of 2002(U)** **---------------------------** **PETITIONER:** **--------------** **T.P.KOMALAVALLI, D/O.P.K.KUNHIKRISHNAN NAMBIAR, "AKSHARA", P.O.PATTANUR, VIA-EDAYANNUR-670 595.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **-------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DISTRICT EDUCATIONAL OFFIER, KANNUR.** **3. ASSISTANT EDUCATIONAL OFFICER, KANNUR NORTH.** ## **4. THE MANAGER, CHELORA L.P.SCHOOL,** ## **P.O.MOWENCHERY, KANNUR DISTRICT.** ## **5. K.P.NALINI,** - **ASSISTANT TEACHER, CHELORA L.P.SCHOOL, P.O.MOWENCHERY, KANNUR DISTRICT.** **GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 TO 3** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP NO.810/2002** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: A TRUE PHOTOCOPY OF THE ORDER NO.6/2001 DT 4.5.2001. EXT.P2: TRUE PHOTOCOPY OF THE JUDGMENT DT 29.5.2001 IN OP NO.16278/01.** **EXT.P3: TRUE PHOTOCOPY OF THE MEMO NO.C.6986/2001 DT 11.06.2001 ISSUED BY THE AEO KANNUR NORTH TO THE PETITIONER.** **EXT.P4: TRUE PHOTOCOPY OF THE LETTER NO.B6 558/01 DT 25.6.2001 ISSUED BY THE 2ND RESPONDENT.** **EXT.P5: TRUE PHOTOCOPY OF THE ORDER NO.C.3014/2001 DATED 8.8.2001 ISSUED BY THE 3RD RESPONDENT.** **EXT.P6: TRUE PHOTOCOPY OF THE MEMORANDUM OF REVISION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P7: TRUE PHOTOCOPY OF THE JUDGMENT DATED 11.9.2001 IN OP NO.26678 OF 2001.** **EXT.P8: TRUE PHOTOCOPY OF THE ORDER NO.G.O.RT.NO. 4520/2001/G.EDN. DATED 7.12.2001 ISSUED BY THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF THE LETTER DATED 8.12.2006 ISSUED BY THE 3RD RESPONDENT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **ANTONY DOMINIC, J. =============== O.P NO. 810 OF 2002 (U) ====================** ## **Dated this the 6[th] day of October, 2008** ## **J U D G M E N T** The prayer is to quash Exts. P1, P5 and P8. Consequential reliefs are also sought for. 2. Petitioner was appointed as Headmistress of Chelora Lower Primary School in Kannur District and she assumed charge on 01/04/2000. According to the petitioner, even before her appointment, Manager wanted to appoint the 5[th] respondent overlooking her seniority, but was however unsuccessful. Petitioner submits that on 26.2.2001, she received a show cause notice from the Manager and that on 27/2/2001, a letter was received from the Deputy Director to appear for an enquiry before him on 13/3/2001 in connection with an enquiry into the allegations in the show cause notice. Petitioner submits that this notice was received by her only on 5/3/2001 and according to her, on 05/3/2001 itself, she filed an application requesting for copy of the charge sheet and other documents and also sought extension of time for submitting her explanation. 3. It is stated that while so on 17/4/2001, yet another show cause notice containing allegations against her were received, to which she submitted reply dated 21/04/2001. Meanwhile, petitioner was placed **OP 810/02** **:2 :** under suspension by Manager's order dated 23/3/2001 for the period upto 7/4/2001 and that the same was extended till 17/4/2001. Petitioner submits that no formal enquiry of any nature was conducted and that by Ext.P1 order dated 4/5/2001, issued by the Manager, she was demoted to the post of Assistant Teacher. An appeal was filed and that was rejected by the AEO by Ext.P5 order. Petitioner filed Ext.P6 revision before the Government and that was also rejected by Ext.P8. It is challenging Exts. P1, P5 and P8, this writ petition has been filed. The main contention raised by the learned counsel for the petitioner is that the formalities prescribed in Rule 75 of Chapter XIV A KER in the matter of imposition of major penalty has not been complied with. 4. On the other hand, learned Government Pleader submits that complaints alleging misconducts committed by the petitioner were received by the Deputy Director of Education, Kannur and in pursuance to those complaints, he conducted an enquiry on 13/3/2001. Based on the conclusions arrived at in the enquiry, he had issued directions to the Manager to take necessary follow up action. It is stated that thereafter the Manager issued show cause notices. Therefore, the learned Government Pleader would submit that the Deputy Director of Education **OP 810/02** **:3 :** having conducted an enquiry and arrived at his conclusions, the requirements of Rule 75(1)(a) of KER are not necessary to be complied with. She would also point out that in view of the above, there is no substance in the contention of the learned counsel for the petitioner regarding non compliance of the rules specified for imposition of major penalties. 5. I have considered the submissions made by both sides. As is seen from the counter affidavit, complaints were received by the Deputy Director of Education, Kannur. He conducted an enquiry with the teachers on 13/3/2001 and he found that the petitioner had failed to discharge her duties and responsibilities as Headmistress of the school. It is stated in the counter affidavit that the Deputy Director then gave direction to the Manager to initiate disciplinary action against the petitioner vide his letter dated 19/3/2001. A reading of the counter affidavit also shows that it was thereafter that the Manager placed the petitioner under suspension w.e.f. 23/3/2001, which was also extended beyond 15 days. As stated in the counter affidavit, Manager gave opportunity to the petitioner and thereafter issued Ext.P1 order demoting the petitioner as Assistant Teacher. **OP 810/02** **:4 :** 6. Therefore, evidently the direction of the Deputy Director was only to initiate disciplinary action against the petitioner vide his letter dated 19/3/2001. Once the Deputy Director has issued such a direction, necessarily, the Manager has to comply with the procedure prescribed under Rule 75 of Chapter XIV A KER, which lays down the manner in which major penalties can be imposed on a teacher. Instead of complying with the statutory requirements, the Manager has acted upon the direction of the Deputy Director and proceeded with the issue of show cause notice and imposed punishment of demotion of the petitioner. This is what has been done by Ext.P1 order, which has also been confirmed by the appellate and revisional authorities by Exts. P5 and P8 orders. 7. Rule 75(1)(a) of Chapter XIV A, KER provides that, once a Manager is satisfied of the existence of a prima facie case for taking action against the teacher, the Manager is required to frame definite charges and communicate the same to the teacher with statement of allegations, on which each charge is based. Once such a memo of charge and statement of allegations is received, the teacher is entitled to submit his statement of defence. The teacher also has a right to make a request to permit him to peruse or take extracts of the records pertaining to the case. None of **OP 810/02** **:5 :** these requirements have been complied with in this case. No evidence was adduced against the petitioner nor did the teacher get an opportunity to adduce evidence in her defence. Therefore, none of the formalities laid down in Rule 75, Chapter XIV A KER for the imposition of major penalty on the teacher have been complied with. That itself will vitiate the proceedings. 8. In the instant case, I am not persuaded to accept the plea of the learned Government Pleader that once the complaint is received by the Deputy Director, and he conducts the enquiry, the requirements of Rule 75 (1)(a) need not be complied with. In my view, these requirements are of mandatory character. It is settled law that, if law prescribed that something should be done in a particular manner, it shall be done in that manner alone. In this case, the only manner in which the disciplinary action for imposition of major penalty can be initiated against a teacher is by complying with the requirements of Rule 75, Chapter XIV A and having not complied with those requirements, I am inclined to agree with the submissions made by the learned counsel for the petitioner. He also relied on the judgment reported in **Jose v. State of Kerala** (2003(2) KLT 210) where this Court had interfered with the punishment imposed on a teacher **OP 810/02** **:6 :** for not complying with the principles of natural justice. Apart from that, he also relied on the decision reported in **State of U.P. v. Shatrughan Lal and another** (AIR 1998 SC 3038), where the disciplinary action was interfered with on the ground that the documents relied on were not disclosed to the delinquent. 9. For the aforesaid circumstances, I set aside Exts. P1, P5 and P8. However, this will be without prejudice to the right of the Manager to take fresh action against the petitioner, if he so chooses, but however in compliance with the procedure as prescribed under Rule 75 Chapter XIV A KER. Original petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp