W.A.No.971 of 2013 (Against WP(C).30831/2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 7TH DAY OF OCTOBER 2013/15TH ASWINA, 1935** **WA.No. 971 of 2013 () IN WP(C).30831/2012** **-------------------------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 30831/2012 of HIGH COURT OF KERALA DATED 10-04-2013** ## **APPELLANTS/RESPONDENTS 4, 5 AND 6:-** **------------------------------------------------------------** **1. THE MANAGER, S.M.U.P.SCHOOL, TANUR, MALAPPURAM DISTRICT-676302.** ## **2. THE HEADMISTRESS,** ## **S.M.U.P.SCHOOL, TANUR, MALAPPURAM DISTRICT-676 302.** ## **3. FOUSIYA MADAMPATT,** - **JUNIOR HINDI TEACHER, S.M.U.P.SCHOOL, TANUR, MALAPPURAM DISTRICT-676 302.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1,2,3 AND 7.:** **-----------------------------------------------------------------------------------------------** ## **1. M.NOUSHAD,** - **HINDI TEACHER, S.M.U.P.SCHOOL, TANUR, MALAPPURAM DISTRICT.** ## **2. THE STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** ## **3. THE DEPUTY DIRECTOR OF EDUCATION,** - **TANUR, MALAPPURAM DISTRICT-676 302.** **4. THE ASSISTANT EDUCATIONAL OFFICER, TANUR, MALAPPURAM DISTRICT-676 302.** ## *** 5. MADHUSOODHANAN NAIR.R.,** - **ADDITIONAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ***(DELETED FROM PARTY ARRAY VIDE ORDER DATED 02.07.2013 IN C.M.APPL.NO.505/2013)** **R2 TO R4 BY SENIOR GOVERNMENT PLEADER, SRI.MANILAL R1 BY SRI.P.C.SASIDHARAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ## **--------------------------------------------------** ## **W.A.No.971 of 2013** ## **---------------------------------------------Dated this the 7[th] day of October, 2013** ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** - 1.This writ appeal is by the Manager and the Headmistress of an aided school and Fousiya, who was appointed as a Junior Hindi Teacher of that school. - 2.The 1[st] respondent, Noushad was appointed as a Junior Hindi Teacher in the school following due process of selection. That was approved in terms of the provisions of Chapter XIV A of the Kerala Educational Rules. The Rule 6 in that Chapter obliges the teacher to be on probation for a period of one year, within a period of two years. If the probation is not treated as satisfactorily completed within that period, there could be extension for a further maximum period of one year without in any manner affecting increments etc., or by treating it as a penalty. - 3.From the records, we see that on 12.07.2008 or so, there W.A.971/13 2 was a request by the Manager requiring that the period of probation of Noushad be enlarged for a period of one year. The records also disclose that Noushad had availed different spells of leave without allowance on medical grounds. He was once re-admitted to duty and on a second instance, he was required to produce further medical fitness certificate. It is in the interregnum that he was placed under suspension on 21.03.2009, on certain allegations. The substance of the allegations, we may note, did not consist any pointed accusation as to any misconduct or such rude behavior, inability to take classes appropriately etc. We see from the records that there was an enquiry report dated 05.11.2009 generated by the Assistant Educational Officer. That document, going through its course, does not deal anywhere with any allegation having been made against Noushad as part of any misconduct attributed to any mental disability. However, in the penultimate sentence of that report, the AEO says that “as there is a serious allegation that he is a suspected psychic personality, his manner of presentation cannot be ruled out”. It is on that reason that the AEO concluded that the disciplinary action initiated by the Manager against Noushad for the academic interest of the pupils as well as of the school seems valid and W.A.971/13 3 justifiable. The Deputy Director of Education interfered with that. Noushad was ordered to be accommodated against the next occurring vacancy, if he is found to be fit. Noushad challenged it before the Government in revision, to the extent the Deputy Director did not direct readmission to duty immediately. The Government, in their wisdom, held that Noushad being a probationer, could be eased out of service without going into the question on any disciplinary ground since the allegations disclosed that Noushad cannot continue as a teacher. 4.Before the learned single Judge, the pointed attack on behalf of Noushad was that the entire exercise held out by the Manager; the Assistant Educational Officer; the Deputy Director and the Government, to the extent it is against him, was contrary to the statutory rules and there was no proper enquiry. The learned single Judge, ultimately, called for the entire records; assimilated the facts and concluded that the enquiry and the findings are totally misplaced and there was no opportunity for any enquiry without any specific allegation regarding the alleged mental illness. The learned Judge also found against the Government’s view that Noushad could be sent out as one who has not completed W.A.971/13 4 ## his probation satisfactorily. 5.In this appeal by the Manager, Headmistress and the aforenoted Fousiya who is now in the position of a Junior Hindi Teacher, one issue projected is that after Noushad was excluded from teaching, Fousia was appointed, following due procedure and her appointment has been approved by the statutory authority and that she is drawing emoluments for the last nearly four years and it has been declared that she has duly completed her probation. The further plea is that even after the decision of the learned single Judge, the re-admission of Noushad to the school has created an institutional pandemonium where the teachers, the parents and the students stand together to allege that Noushad can never take classes properly and that he should not be permitted to continue. It is pointed out that the continuance of Noushad in the school will not be to the interest of the pupils or the establishment. - 6.In support of the impugned order of the learned single Judge, the learned counsel for Noushad argued that it is ultimately a matter of dignity, a right that is pointedly guarded even in the Preamble to the Constitution of India W.A.971/13 5 and Noushad should not be accused of being a mentally challenged person. It is argued that the different spells of leave without allowance, were availed on ground related to physical problems and during that time, Noushad had lost his father and he would have been in a state of depression. He pointed out that no situation exists even to proceed to consider whether Noushad is a mentally challenged person; more particularly, having regard to the parameters of law as discernible from the different statutes which govern public employment, including for disabled persons. He has made reference to the decision of the Honourable Supreme Court in **Geetaben Ratilal Patel v. District Primary Education Officer** [(2013) 7 SCC 182] to support the argument. 7.Having examined the documents and materials available in this case, we see that at the first point of time no allegation of substance, of suspected psychic personality was put by any among the authorities, including the Manager or the statutory authorities in the hierarchy within KER. The earlier noted penultimate sentence of the AEO's enquiry report dated 05.11.2009 shows that there is an allegation as to an improper mental status. When such an allegation is W.A.971/13 6 levelled against a person who has undergone the due process of selection and has been admitted duty as a teacher, many questions in relation to his initial appointment would also crop up. Further, it has to be considered whether a blemish of such nature could be fastened by throwing on him the burden of proof to show the negative to be excused from continuance of such allegation. If there are pointed materials by way of allegations or evidence as to improper behaviour of Noushad, as a teacher, those materials ought to have been put for consideration, following due process, in an appropriate enquiry and if the management concludes, in accordance with law, that Noushad has to be either eased out from employment without due declaration of satisfactory completion of probation or otherwise, the matter has to pave way for legal and legitimate consequences in accordance with law. Merely on an assumption or a suspicion as found in the enquiry report of the AEO, which was too premature, it is an affront to Noushad's dignity as a human being to say that he is suspected of psychic personality. On the whole, we are of the view that the decision of the learned single Judge cannot be faulted, warranting interference in an intracourt appeal under Section 5 of the Kerala High Court Act. W.A.971/13 7 8.This leads us to another limb of argument on behalf of the Manager. This is regarding the quality of continuance of service and the requirement to pay any amount towards emoluments having regard to the phrase “with all consequential service benefits” as opined in the penultimate sentence of the impugned judgment of the learned single Judge. Consequential benefits as stated therein could only be that benefits that would follow as a consequence of the verdict, in accordance with law. It has not been clarified or stated in the judgment of the learned single Judge as to whether Noushad is to be treated as one who has not satisfactorily completed probation or whose probation has been duly declared as satisfactorily completed. It is also not a case where the entire statutory period of probation had duly run out before he was placed under suspension, having regard to the different spells of leave without allowances allowed and enjoyed by him in the interregnum. Therefore, all such issues are deemed duties in terms of the different Government Orders governing such situations. - 9.For the aforesaid reasons, we affirm the decision of the learned single Judge subject to the aforesaid clarification regarding the phrase “with all consequential service W.A.971/13 8 ## benefits” in the impugned judgment. 10.In so far as the 3[rd] appellant is concerned, we leave open all her rights in accordance with law, clarifying that we have not expressed anything on her rights referable to her appointment or to the service rendered by her. We also affirm the direction of the learned single Judge, leaving it open to the concerned authorities to take appropriate action even against Noushad, in accordance with facts, law and circumstances. Writ appeal ordered accordingly. Sd/- **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** Sd/- **(BABU MATHEW P. JOSEPH, JUDGE)** DG