Writ Petition (C) Nos. 39074 & 39463 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 WP(C) NO. 39074 OF 2022** ## **PETITIONER:** **MARY FERNANDEZ.J., AGED 55 YEARS** **W/O. WILLIAM LOPEZ, SHALOM, KAIRALI NAGAR, NEAR FCI, KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 582 HEADMISTRESS, ST. VINCENT HIGH SCHOOL, KANIYAPURAM, THIRUVANANTHAPURAM-695 301. BY ADVS. K.MOHANAKANNAN H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, PAZHAVANGADI, THIRUVANANTHAPURAM, -695023.** - **4 THE DISTRICT EDUCATIONAL OFFICER, GPO LANE STATUE, THIRUVANANTHAPURAM- 695 001.** - **5 THE CORPORATE MANAGER, RC SCHOOL'S OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 010.** **BY ADVS.V.A.MUHAMMED,M.SAJJAD B.VINITHA, SR.GOVERNMENT PLEADER** W.P.(C) No.39074 & 39463 of 2022 2 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2023, ALONG WITH WP(C).39463/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.39074 & 39463 of 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 WP(C) NO. 39463 OF 2022** ## **PETITIONER:** **THE CORPORATE MANAGER(FR.DAISAN Y) S/O YESUDAS AGED 51 YEARS, RC SCHOOLS, LATIN ARCH DIOCESE OF TRIVANDRUM, ARCH BISHOP COMPOUND, VELLAYAMBALAM, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT- 695 010.** **BY ADVS. V.A.MUHAMMED M.SAJJAD** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE-II, THIRUVANANTHAPURAM- 695 001** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014** - **3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, THIRUVANANTHAPURAM - 695 023** - **4 THE DISTRICT EDUCATIONAL OFFICER PALAYAM, THIRUVANANTHAPURAM - 695 001** W.P.(C) No.39074 & 39463 of 2022 4 **5 SMT. MARY FERNANDEZ SHALOM, KAIRALI NAGAR, NEAR FCI GODOWN, KAZHAKKUTTAM, THIRUVANANTHAPURAM -695 582 BY ADVS K.MOHANAKANNAN B.VINITHA, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2023, ALONG WITH WP(C).39074/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.39074 & 39463 of 2022 5 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **-----------------------------------------------** **Writ Petition (C) Nos.39074 & 39463 of 2022 -----------------------------------------------** **Dated this the 24[th] day of January, 2023.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The issues arising for consideration in these writ petitions are common and they are, therefore, disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.39463 of 2022. 2. The petitioner is the Manager of the schools run by the Latin Arch Diocese of Thiruvananthapuram. The fifth respondent was the Headmistress of one of the schools namely St.Vincent H.S., Kaniyapuram, run by the said Educational Agency. She was placed under suspension on 28.03.2019 on certain allegations of misconduct. The period of suspension was 15 days. Later, the W.P.(C) No.39074 & 39463 of 2022 6 period was extended with the permission of the third respondent, the concerned Deputy Director of Education. Thereupon, the fifth respondent was issued a memo of charges and as her statement of defence was not satisfactory, the third respondent conducted an enquiry into the charges. Ext.P4 is the report of the said enquiry. In the meanwhile, the order issued by the third respondent granting permission to the Manager to extend the period of suspension was challenged by the fifth respondent before the Government, and the Government ordered reinstatement of the fifth respondent pending disciplinary proceedings. The direction aforesaid of the Government was, however, not given effect to by the Manager. The fifth respondent, in the circumstances, filed W.P.(C) No.25669 of 2020 before this Court seeking a direction to the Manager to give effect to the said order of the Government. The fifth respondent challenged in the writ petition, Ext.P4 report of enquiry also. The fifth respondent secured an interim order in the said case directing the Manager to reinstate her in service, and in light of the said interim order, she was reinstated in service. Later, the writ petition was allowed as per Ext.P5 judgment holding that Ext.P4 report is unsustainable in law, W.P.(C) No.39074 & 39463 of 2022 7 inasmuch as the enquiry was not conducted as provided for in the Kerala Education Rules (KER), and directing a fresh enquiry as provided for in Rule 75 of Chapter XIV-A KER. It was specifically directed by this Court in the judgment that witnesses if any, shall be examined in the enquiry in the presence of the fifth respondent and the fifth respondent shall be given an opportunity to cross examine them. Pursuant to Ext.P5 judgment, a fresh enquiry was conducted by the third respondent into the charges levelled against the fifth respondent. Ext.P6 is the report of the said enquiry. In Ext.P6 report, the enquiry officer found that 16 out of the 28 charges have been established and 3 of the remaining charges have been partly established. Based on Ext.P6 report, the Manager issued Ext.P7 notice, calling upon the fifth respondent to show cause why a penalty of compulsory retirement shall not be imposed on her. After obtaining the explanation of the fifth respondent on the said show cause notice and after securing sanction of the competent authority for imposing such a punishment, the fifth respondent was inflicted with the penalty of compulsory retirement. Ext.P10 is the order issued by the Manager in this regard. The fifth respondent W.P.(C) No.39074 & 39463 of 2022 8 challenged Ext.P10 order in appeal before the Director of General Education. In terms of Ext.P11 order, the Director of General Education rejected the appeal. The fifth respondent challenged Exts.P10 and P11 orders in revision before the Government invoking Rule 92 of Chapter XIV-A KER. On an elaborate consideration of the facts and circumstances, the Government absolved the fifth respondent from all the charges, some on the ground that the findings rendered by the Enquiry Officer are incorrect, some on the ground that there are no materials to arrive at the findings and some on the ground that there is non-compliance of the mandatory statutory rules. Ext.P12 is the order issued by the Government in this regard. It is aggrieved by Ext.P12 order that the Manager has approached this Court in W.P.(C) No.39463 of 2022. W.P.(C) No.39074 of 2022 is one instituted by the fifth respondent seeking orders directing the Manager to implement Ext.P12 order. 3. The learned Single Judge, before whom the writ petitions came up for orders, passed an interim order on 22.12.2022 directing the Manager to implement Ext.P12 order and reinstate the fifth respondent in service pending disposal of the writ petitions. The W.P.(C) No.39074 & 39463 of 2022 9 petitioner challenged the said interim order in W.A.Nos.2000 and 2003 of 2022, and when the said writ appeals came up for hearing, both sides agreed that as the fifth respondent has service only till 31.03.2023, the writ petitions itself can be withdrawn and disposed of by this Court along with the writ appeals. Accordingly, as per the interim order passed in the appeals on 18.01.2023, these writ petitions have come up before us today for hearing. 4. Heard the learned counsel for the petitioner/Manager, the learned Government Pleader as also the learned counsel for the fifth respondent. 5. The learned counsel for the Manager did not make any submission on the correctness of the various findings, on the basis of which the fifth respondent was exonerated by the Government from all the charges levelled against her. Instead, the learned counsel contended that the Government was not justified in ordering reinstatement of the fifth respondent. According to the learned counsel, in a case of this nature, the Government has no authority to order reinstatement of the delinquent. He relied on subrule (4) of Rule 67 of the KER, in support of the said contention. It W.P.(C) No.39074 & 39463 of 2022 10 was also argued by the learned counsel that there is no vacancy of Headmaster at present in any of the schools run by the Educational Agency and if Ext.P12 order of the Government is given effect to, one among the existing Headmasters will have to be reverted. According to the learned counsel, the fifth respondent, in the circumstances, ought to have impleaded the persons who are to be reverted for reinstating the fifth respondent and inasmuch as the said persons are not in the array of parties in the writ petition filed by the fifth respondent, the same is liable to be dismissed. _Per contra_ , the learned counsel for the fifth respondent as also the learned Government Pleader supported Ext.P12 order, pointing out that there is no illegality in the said decision of the Government, warranting interference by this Court, in exercise of the power under Article 226 of the Constitution. 6. Even though submissions were not made on behalf of the Manager as to the correctness of the findings rendered by the Government in Ext.P12 order for exonerating the fifth respondent completely from the charges, we have examined the materials on record and found that the decision of the Government does not W.P.(C) No.39074 & 39463 of 2022 11 suffer from any illegality warranting interference by this Court under Article 226. It is necessary to observe in this context that some of the charges against the delinquent were so trivial warranting a disciplinary action and some were vague. Some of the charges were in respect of misconducts alleged to have been committed long prior to the initiation of disciplinary action. Satisfactory evidence was not let in to prove most of the charges. There was gross violation of the procedure prescribed for conducting the enquiry. The finding rendered by the Enquiry Officer as also the Government on some of the charges indicates that the charges were totally false. On an overall appraisal of the materials on record, the impression one would arrive at is that the disciplinary proceedings is not a _bona fide_ one. 7. Sub-rule (4) of Rule 67 of Chapter XIVA KER reads thus: (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a teacher under suspension is set aside in appeal, revision or review under these rules and the case is remitted for further enquiry or action or with any other direction the orders of suspension shall be deemed to have continued in force on and from the W.P.(C) No.39074 & 39463 of 2022 12 date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. As explicit from the extracted Rule, it deals with a situation where a penalty of dismissal, removal or compulsory retirement from service imposed upon a teacher under suspension is set aside in appeal, revision or review under these rules and the case is remitted for further enquiry or action or with any other direction. The case on hand is one where on an appraisal of the entire materials, the revisional authority exonerated the delinquent from the charges levelled against her. Needless to say that sub-rule (4) of Rule 67 has no application to the facts of this case. This aspect has been clarified by a Division Bench of this Court in **T.V.Parvathy Amma v. State of Kerala** , 2013 (4) KHC 94. Paragraph 13 of the judgment reads thus: “13. Then there remains the question of impact of Rule 67 (4) and (5) of the KER. Rule 67(4) contemplates a situation where in an appeal or revision, the appellate or revisional authority set aide the punishment and remits the matter back for further enquiry. In this case, there is no scope for applying Rule 67(4) of the KER as such. This is a case where the Government on revision set aside the enquiry report and punishment and left the matter there. What is more it has W.P.(C) No.39074 & 39463 of 2022 13 expressly ordered the reinstatement of the 4th respondent. Government did not direct further enquiry. Quite clearly, Rule 67(4) is not attracted as ingredients of Sub-rules (4) and (5) are not fulfilled and as the case is not remitted for further enquiry or action. If at all there is a direction, it is quite inconsistent with the continuance of suspension as the direction is that he should be reinstated. Therefore, we see no scope for applying Rule 67(4) of the KER.” The argument advanced based on sub-rule(4) of Rule 67, in the circumstances, is liable to be rejected. 8. The question remaining to be considered is as to whether it was obligatory for the fifth respondent to implead the teachers who would be affected by the implementation of Ext.P12 order, in the writ petition filed by her. As noted, it was not necessary at all for the fifth respondent to file a writ petition before this Court to give effect to Ext.P12 order. On the other hand, even if there was no direction in Ext.P12 order to reinstate the fifth respondent in service, it was obligatory for the Manager to reinstate the fifth respondent in service inasmuch as she was exonerated completely from the charges levelled against her, subject of course to the right of the Manager to challenge Ext.P12 order. In the said view of the matter, the contention that the fifth respondent should have W.P.(C) No.39074 & 39463 of 2022 14 impleaded the affected persons in her writ petition seeking implementation of Ext.P12 order is without any substance. In the result, we dismiss W.P.(C) No.39463 of 2022 and allow W.P.(C) No.39074 of 2022, directing the Manager to comply with Ext.P12 order forthwith. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **SOPHY THOMAS, JUDGE.** Mn W.P.(C) No.39074 & 39463 of 2022 15 ## **APPENDIX OF WP(C) 39074/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE ENQUIRY REPORT DATED 9-3-2021 OF THE DEPUTY DIRECTOR OF EDUCATION. Exhibit P2 TRUE COPY OF THE PROCEEDINGS NO.253/2021 OF THE 5TH RESPONDENT DATED 16-8-2021. Exhibit P3 TRUE COPY OF THE ORDER NO.B(7)/4883/2019/DDE DATED 17-12-2021 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION. Exhibit P4 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER ORDER NO.357/2021 DATED 22-122021. Exhibit P5 TRUE COPY OF THE ORDER NO.VB1/397007/2022/DGE DATED 7.4.2022 PASSED BY THE 2ND RESPONDENT. Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 20-62022 IN WRIT PETITION NO.16343/2022. Exhibit P7 TRUE COPY OF GO(RT)NO.6797/ 2022/GEDN DATED 15-11-2022. Exhibit P8 TRUE COY OF THE GO(RT)NO. 6968/ 2022/GEDN DATED 18-11-2022. Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 16-11-2022 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 2 TO 5. Exhibit P10 TRUE COY OF THE COMMUNICATION NO.3798/2022/DEO SENT BY THE DISTRICT EDUCATION OFFICER TO THE 5TH RESPONDENT DATED 23-11-2022.** W.P.(C) No.39074 & 39463 of 2022 16 ## **APPENDIX OF WP(C) 39463/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER VIDE ORDER NO. 056/19 DATED 28.03.2019** - **Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION VIDE ORDER NO.B7/4883/2019/DDE DATED 09.04.2019** - **Exhibit P3 TRUE COPY OF THE MEMO OF CHARGES NO.104/2019 DATED 02.05.2019 ALONG WITH STATEMENT OF ALLEGATIONS ISSUED BY THE PETITIONER TO THE SMT.MARY FERNANDEZ** - **Exhibit P4 TRUE COPY OF THE ENQUIRY REPORT NO.B(7)/4883/2019 DATED 05.02.2020** - **Exhibit P5 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.25669/2020 DATED 26.02.2021** - **Exhibit P6 TRUE COPY OF THE ENQUIRY REPORT NO.B(7)/4883/2019 DATED 19.03.2021** - **Exhibit P7 TRUE COPY OF THE SECOND SHOW CAUSE NOTICE NO.065/2021 DATED 26.04.2021 ISSUED BY THE PETITIONER TO SMT. MARY FERNANDEZ** - **Exhibit P8 TRUE COPY OF THE LETTER NO.253/2021 DATED 16.08.2021 BY THE PETITIONER ADDRESSING THE SMT.MARY FERNANDEZ** - **Exhibit P9 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION VIDE ORDER NO.B7/4883/2019/DDE DATED 17.12.2021** - **Exhibit P10 TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER VIDE ORDER NO.357/2021 DATED 22.12.2021** - **Exhibit P11 TRUE COPY OF THE PROCEEDINGS OF THE ADDL.DIRECTOR (GENERAL) & VIGILANCE OFFICER OF GENERAL EDUCATION VIDE ORDER NO.VB1/397007/2022DGE DATED 07.04.2022** W.P.(C) No.39074 & 39463 of 2022 17 **Exhibit P12** **Exhibit P12(a)** **Exhibit P13** **TRUE COPY OF THE G.O(RT) NO.6797/2022 G.EDN DATED 15.11.2022 TRUE COPY OF THE ERRATUM ORDER PASSED BY THE GOVERNMENT VIDE G.O(RT) NO.6968/2022/G.EDN DATED 18.11.2022 TRUE COPY OF THE LETTER NO.E/1348/AEO/2017 DATED 06.03.2018 ADDRESSING THE DEPUTY DIRECTOR OF EDUCATION BY THE ASSISTANT EDUCATIONAL OFFICER, VARKALA**