Vinod Francis v. Deputy Director of Education, Office of the Deputy Director of Education, Kottayam; District Educational Officer, Kanjirappally, Kottayam; Corporate Manager, CMS Schools, CSI Kerala Diocese; Headmistress, CMS High School, Mundakkayam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 ``` ## **`WP(C) NO. 455 OF 2023`** ## **`PETITIONER/S:`** ``` VINOD FRANCIS AGED 46 YEARS S/O FRANCIS JOHN, THOPPIL HOUSE, NEAR CMS COLLEGE, KOTTAYAM, PIN - 686001 BY ADVS. C.S.MANILAL S.NIDHEESH KUNJAPPEASOW RAINGE ``` ## **`RESPONDENTS:`** ``` 1THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM., PIN - 686001 2THE DISTRICT EDUCATIONAL OFFICER KANJIRAPPALLY, KOTTAYAM, PIN - 686506 3THE CORPORATE MANAGER CMS SCHOOLS, CSI MADYA KERALA DIOCESE, KOTTAYAM, PIN - 686001 4THE HEADMISTRESS CMS HIGH SCHOOL, MUNDAKKAYAM, KOTTAYAM, PIN - 686513 BY ADVS.SMT.SURYA BINOY, SR.GP V.A Muhammed V.RAJASEKHARAN NAIR(K/423/2010) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.455/2023 **2** ## **P.V.KUNHIKRISHNAN, J.** ## **--------------------------------** ## **W.P.(C).No.455 of 2023** **---------------------------------------------Dated this the 01[st] day of February, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of Certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext. P8 and quash the same as illegal. - ii. Issue a writ of Certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P1, P4 and P5 and quash the same as illegal. - iii. Declare that Ext.P1 is ultra virus Article 28 of the Constitution of India. - iv. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondents to reinstate the petitioner forthwith. - v. Grant such other reliefs as this Hon'ble Court may deem fit and proper in the interests of justice. - (SIC) 2. Petitioner is a teacher in an aided school under the 3[rd] respondent. He was put under suspension as per Ext.P1 order. According to the petitioner, the order of suspension is ex-facie illegal. The petitioner filed a petition seeking to WP(C).No.455/2023 **3** review the extension of suspension. The same was rejected by Ext.P8 order. The petitioner is aggrieved by Ext.P8 order. The petitioner submitted that in the light of the principle laid down by this Court in the judgment reported in **Sumathy v. State of Kerala [2014 (2) KLT 888]** , Ext.P8 is unsustainable. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The counsel for the petitioner reiterated the contentions raised in the writ petition. The counsel takes me through Ext.P8 order and submitted that the 1[st] respondent recorded the statements of witnesses and thereafter Ext.P8 is passed adverting the memo of charges. Such a procedure is not contemplated as per the rules is the contention. The Government Pleader on the other hand submitted that in the review petition the petitioner raised several contentions including the merit of the allegations and this Court directed to consider the same, and hence a detailed order is passed as evident by Ext.P8. The Government Pleader also submitted that in Rule 67(8) of Chapter XIV A, KER, a preliminary enquiry is contemplated and for that purpose, the statement WP(C).No.455/2023 **4** was recorded by the 1[st] respondent. 5. This Court considered the contentions of the petitioner and the Government Pleader. A perusal of Ext.P8 order will show that the 1[st] respondent considered the merit of the case and rejected the review petition. The jurisdiction of the 1[st] respondent in this regard is considered by this Court in **Sumathy’s case** (supra). Paragraph 5 of that judgment is extracted hereunder: “5. A scanning of the above sub rule would reveal that it also applies in cases where teachers suspended by Managers are continuing under suspension for a period exceeding six months and that it casts a power coupled with duty to be discharged when being called upon to exercise the same. In this case the petitioner was placed under suspension as per Ext.P3 order dated 14.11.2012 and Ext.P8 application filed by the petitioner under the aforesaid sub-rule is dated 25.5.2013. It is thus obvious that the order of suspension had been in force for more than six months when that application was moved. It is explicit from the wordings thereunder and also from the above extracted explanatory note that while reviewing such an order in exercise of the power thereunder the decision to be taken is to whether the concerned teacher/teachers should continue to be under suspension or not or whether they could be restored WP(C).No.455/2023 **5** to duty without prejudice to the disciplinary action started against the delinquent oficers. Incontestably, that power can therefore be exercised only for the limited purpose of considering whether continued suspension of the concerned teacher is required or not. There cannot be any doubt with respect to the position that while considering such a question in invocation of the power under Rule 67(9) of Chapter XIV-A of the KER the authority concerned is not vested with the power to consider charges levelled against the concerned teacher and to enter upon any fndings or make observations touching the merits with respect to any or all of them. The power to initiate disciplinary proceedings is conceded primarily to the managers of aided schools and section 12A of the Kerala Education Act and Rule 75, Chapter XIV-A, KER empowers the Government and its officers to take disciplinary proceedings only if the concerned manager does not initiate action against a teacher under warranting circumstances despite intimation in that regard. At the same time, the power to conduct the enquiry is conceded to the competent departmental officers and the procedures for imposing major penalties are prescribed under Rule 75 Chapter XIV-A, KER. A scanning of the said rule would abundantly make it clear that an educational officer is called upon to enter findings on any charge levelled against a delinquent teaching staff only in his report submitted to the manager pursuant to an WP(C).No.455/2023 **6** enquiry in accordance with the procedures prescribed and he is bound to disclose the grounds for the findings as well, in the report. At any rate, there is no provision at all in the KER empowering an educational officer to make findings in respect of any charges levelled against a delinquent teacher and are matters to be subjected to an enquiry under Rule 75, Chapter XIV-A, KER. Therefore, entering fnding on a charge which is or which forms part of a charge in the enquiry under Rule 75 while deciding the question whether the concerned teacher should continue under suspension or not, cannot be said to be intra vires the - provisions under Rule 67(9) of Chapter XIV A , KER and in fact, it is ultra vires the said provisions. In this case, Ext.P10 was passed by invoking the power under Rule 67(9), Chapter XIV-A, KER. It is evident from Ext.P10 order itself that the enquiry against the petitioner was then pending before the 4[th] respondent. It is in the said context that sustainability or otherwise of Ext.P10 order as relates the 3[rd] respondent's observations about the charges levelled against the petitioner are to be looked into. Obviously, the 3[rd] respondent while considering the question whether continued suspension of the petitioner is called for or not ignored the pendency of the disciplinary proceedings before the 4[th] respondent and entered into certain findings/observations regarding the charges levelled against the petitioner.” (underline supplied) WP(C).No.455/2023 **7** 6. I am of the considered opinion that Ext.P8 is not in tune with the principle laid down in **Sumathy’s case** (supra). Therefore Ext.P8 can be set aside without making any observations on merit and the 1[st] respondent can be directed to reconsider the matter within a short period. Therefore, this writ petition is disposed of in the following manner: 1. Ext.P8 is set aside. 2. The 1[st] respondent is directed to reconsider Ext.P6 review petition and pass appropriate orders in it, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. 3. The petitioner will produce a copy of the writ petition along with a certified copy of this judgment before the 1[st] respondent for compliance. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.455/2023 **8** ## **`APPENDIX OF WP(C) 455/2023`** |`PETITIONER`|`EXHIBITS`| |---|---| |`Exhibit p1`|`TRUE COPY OF THE ORDER OF SUSPENSION`| ||`OF THE 3RD RESPONDENT DATED 19.9.2022`| |`Exhibit p2`|`TRUE COPY OF THE MEMO OF CHARGES WITH`| ||`STATEMENT OF ALLEGATIONS DATED`| ||`13.10.2022`| |`Exhibit p3`|`TRUE COPY OF THE LETTER OF THE 2ND`| ||`RESPONDENT DATED 28.9.2022`| |`Exhibit p4`|`TRUE COPY OF THE ORDER OF THE 2ND`| ||`RESPONDENT DATED 1.10.2022`| |`Exhibit p5`|`TRUE COPY OF THE ORDER OF THE 3RD`| ||`RESPONDENT DATED 3.10.2022`| |`Exhibit p6`|`TRUE COPY OF THE REQUEST OF THE`| ||`PETITIONER DATED 18.10.2022`| |`Exhibit p7`|`TRUE COPY OF THE JUDGMENT IN WPC`| ||`34326/2022 DATED 28.10.2022`| |`Exhibit p8`|`TRUE COPY OF THE PROCEEDINGS OF THE`| ||`1ST RESPONDENT DATED 23.12.2022`|