WA.No. 739 of 2017 in WP(C).5348/2017, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939 WA.No. 739 of 2017 IN WP(C).5348/2017 -----------------------------------------AGAINST THE JUDGMENT IN WP(C) 5348/2017 of HIGH COURT OF KERALA DATED 22-03-2017 ----------- ## APPELLANTS/RESPONDENTS 2 TO 8 IN THE W.P(C): ---------------------------------------------------------- 1. REV.FR.PAUL THOMAS PEECHIYIL HOUSE, KAIMBANA, PALAPUZHA P.O, ERNAKULAM DISTRICT ## 2. SHRI K.I KURIAKOSE KULAKKATTUMADATHIL - ST. JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O, PIN 686 662 3. ADVOCATE PETER K ELIYAS, KALLOIKKAL ST. JOHN'S JACOBITE SYRIAN CHURCH VADAKARA, OLIYAPPURAM P.O, PIN 686 662 4. SHRI N.K MATHAI KARIKKAPUZHA ST. JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O, PIN 686 662 5. SHRI JOMON K JOY KANDATHIL, ST. JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O, PIN 686 662 ## 6. SHRI SHIBU KURIYAN,M EDAPPARAMBIL, ST. JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O, PIN 686 662 WA.No. 739 of 2017 -2- 7. SHRI TINTO SABU CHALAKKAL, ST. JOHN'S JACOBITE SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O, PIN 686 662 BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.DIJO SEBASTIAN SRI.SAMPATH V. TOMS RESPONDENTS/PETITIONER, RESPONDENTS 1 & 9 TO 11 IN THE W.P(C): --------------------------------------------------------------------------------- 1. ST.JOHN'S ORTHODOX SYRIAN CHURCH VADAKARA, OLIYAPPURAM P.O, PIN 686 662 REPRESENTED BY ITS VICAR FR. JOY KADUKUMMAKKIYIL 2. THE DISTRICT EDUCATIONAL OFFICER MUVATTUPUZHA, EERNAKULAM DISTRICT, PIN 686 661 3. SMT. GETHA K.R DISTRICT EDUCATIONAL OFFICER MUVATTUPUZHA, ERNAKULAM DISTRICT 686 661 4. SABU K JACOB S/O. JACOB, AGED 52 YEARS, KARIKAPUZHAYIL HOUSE, KIZHAKOMBU P.O, KOOTHATTUKULAM 686 662 5. DR. THOMAS MAR ATHANASIUS RESIDING AT BISHOP'S HOUSE, ARAMANAPADI MUVATTUPUZHA 686 661 R1 BY ADV. SRI.B.S.SWATHY KUMAR R1 BY ADV. SMT.ANITHA RAVINDRAN R1 BY ADV. SMT.T.RESHMA R1 BY ADV. SMT.S.SIKKY R1 BY ADV. SRI.HARISANKAR N UNNI R4 BY ADV. SRI.S.SREEKUMAR (SR.) R4 BY ADV. SRI.P.MARTIN JOSE R4 BY ADV. SRI.THOMAS P.KURUVILLA R4 BY ADV. SRI.MANJUNATH MENON R3 BY ADV. SRI.M.P.ASHOK KUMAR R BY SRI.M.R.ANISON R BY SMT.ASHA B.MATHEW R BY GOVERNMENT PLEADER SRI.RENIL ANTO KANDAMKULATHY R BY SRI.P.RAMAKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC &** ## **K. P. JYOTHINDRANATH, JJ.** -----------------------------------------------W. A. No.739 of 2017 -----------------------------------------------Dated this the 8[th ] day of June, 2017 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aRespondents 2 to 8 in W.P.(C) No.5348 of 2017 are the appellants. In this appeal they are challenging the judgment of the learned single Judge whereby Ext.P8 order passed by the DEO, Muvattupuzha, approving the election of the school Board and the appointment of the first appellant as Manager of St. John's Syrian High School, Vadakara, St. John's Syrian Higher Secondary School, Vadakara, and St. John's Syrian Basic Training School, Vadakara, was set aside and the writ petition was disposed of directing the DEO to consider the application submitted by the appellants for approval afresh, with notice to them and all others and also taking into account all relevant documents. The learned W. A. No.739 of 2017 -2- single Judge has directed that this process shall be completed within a period of three months and that till orders are passed and found that the School Board and Manager are duly constituted and appointed, the DEO shall continue to function as Manager of the Schools. 2. We heard the learned Senior Counsel appearing for the appellants, learned counsel appearing for the first respondent, learned Government Pleader appearing for the second respondent, Sri.Ashok Kumar, learned counsel appearing for the third respondent and, Senior Counsel Sri.S.Sreekumar and Sr.P.Ramakrishnan appearing for the fifth respondent. 3. On facts, it is only relevant to state that insofar as the aforesaid three education institutions are concerned, the management is vested in the Manager and School Board, duly elected in terms of the bye-laws, a copy of which is produced as Ext.R2(m). It is the case of the appellants that they were elected to the School Board and as Manager in W. A. No.739 of 2017 -3- the election that was held on 30.06.2016. On that basis, they submitted an application to DEO on 22.07.2016 seeking approval in terms of KER. It is their specific case that they had also enclosed documents substantiating their claim for approval. In the meantime, the first respondent had submitted Ext.P7 dated 07.07.2016 to the DEO asserting his right to submit applications for approval being the representative of the educational agency and also informing that fraudulent claims are likely to be made. He had requested that in the event any such application is received, he should be heard before any decision is taken on such application. However, ignoring Ext.P7 and without issuing even a notice to the first respondent, the DEO considered the application submitted by the appellants and passed Ext.P8 order dated 09.02.2017 according approval as sought for. It was thereupon that the writ petition was filed by the first respondent seeking to quash Ext.P8 order passed by the DEO and for consequential directions. W. A. No.739 of 2017 -4- 4. In the judgment under appeal, holding that the plea of mala fides taken against the DEO cannot be ruled out and that Ext.P8 order was passed in violation of principles of natural justice, the learned single Judge set aside Ext.P8 and directed that fresh orders shall be passed by the DEO after affording all parties an opportunity of hearing and taking into account the documents that the parties might produce. 5. The main contention urged by the learned Senior Counsel appearing for the appellants was that it is not the requirement of Chapter III Rule 4 of KER that the objectors, like the first respondent, should be heard by the DEO while considering or passing orders seeking approval. He also contended that even if, the first respondent or anybody else had any grievance against Ext.P8, they should seek statutory remedies and that since such alternative remedies are provided in the KER itself, the learned single Judge ought not have entertained the writ petition. In support W. A. No.739 of 2017 -5- thereof, learned counsel placed reliance on the judgments of the Apex Court in **Punjab National Bank v. O.C. Krishnan and Ors. [(2001) 6 SCC 569]** , **Secretary v. Sahngoo Ram Arya [(2002) 5 SCC 521]** and **CIT v. Chhabil Dass Agarwal [(2014) 1 SCC 603]** . The learned counsel also took objections to the finding of the learned single Judge that the allegations of mala fides against the DEO who is impleaded in the proceedings in her personal capacity are not baseless. This contention was fully supported by Sri.Ashok Kumar, appearing for the DEO. The learned counsel also referred us to the various documents in order to drive home the contention that the appellants were entitled to the approval and that therefore, Ext.P8 order was unassailable. 6. These contentions were refuted by the learned counsel appearing for the contesting respondents. 7. It is true that if a person is aggrieved by an order of approval passed by the DEO in exercise of the powers W. A. No.739 of 2017 -6- conferred under Chapter III Rule 4 of KER, the statute itself provides for remedy of appeal and ordinarily, such remedy should be pursued. However, the question is whether in this particular case the writ petition should have been declined to be entertained on that ground. As we have already stated, the main contention urged by the first respondent is that despite having submitted Ext.P7, without even issuing a notice or affording him an opportunity of hearing, orders were passed by the DEO granting approval. In other words, what is contended by the first respondent is that in passing Ext.P8 order, the principles of natural justice were violated by the DEO. Although, when a statutory alternative remedy is available, writ court would ordinarily refrain from exercising its power, law is trite that in a case where the principles of natural justice are found to be violated, that normal rule would not apply. This principle has been explained by the Apex Court in its judgment in **Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC Page** W. A. No.739 of 2017 -7- **1]** wherein while dealing with the challenge to a show cause notice, the Apex Court has held thus: “ **15.** Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” Faced with this situation, counsel then contended that even in a case where natural justice is violated, unless prejudice is found to have been caused, court shall not interfere. Though this principle is correct and has to be accepted, in so far as this case is concerned, according to W. A. No.739 of 2017 -8- us, prejudice is obvious and is evident. In that view of the matter, we do not find any substance in the contention raised by the learned Senior Counsel that the first respondent ought to have been relegated to pursue the statutory alternative remedies. 8. As far as the finding of the learned single Judge that the plea of mala fides against the DEO is not baseless is concerned, that finding has been entered mainly on account of the failure of the DEO to appear or file a counter affidavit in the writ petition despite her being impleaded in her personal capacity. However, on facts, we find that the DEO was served notice in the writ petition only on 27.02.2017 and she had 30 days time to file her counter affidavit. Despite that, the writ petition was heard on 28.02.2017 and judgment was reserved on that day. When in the notice served on the DEO on 27.02.2017 and she was given 30 days time for filing counter affidavit and the writ petition was heard on the next day itself, according to us, she W. A. No.739 of 2017 -9- cannot be faulted for having failed to appear and contest case. Therefore, we vacate the finding of the learned single Judge against the DEO on this account. 9. Now that we have upheld the finding of the learned single Judge that Ext.P8 order was passed in violation of principles of natural justice, necessarily the matter has to be reconsidered by the DEO as ordered by the learned single Judge. In that view of the matter, it is unnecessary for us to deal with the contention raised by the learned Senior Counsel on the merits of the controversy and leave the entire matter to be dealt with by the DEO himself. 10. Accordingly this appeal is disposed of confirming the judgment of the learned single Judge in all other respects and directing that the DEO shall pass fresh orders in the matter with notice to the parties as expeditiously as possible and at any rate, within four weeks of production of a copy of this judgment. The appellants or the first respondent shall produce a W. A. No.739 of 2017 -10- copy of this judgment before the DEO concerned for information and compliance. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **K. P. JYOTHINDRANATH JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE