IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 10531 of 2011(N) -------------------------------- PETITIONER(S): ------------------ A.P.HARIDAS, HSA, GOVT.GENAPATH HIGHER SECONDARY SCHOOL, KALLAYI, KOZHIKODE DISTRICT, RESIDING AT ASARIPARAMBATH HOUSE, AROOR.P.O., KAKKATTIL, VADAKARA. BY ADV. SRI.R.K.MURALIDHARAN RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REP.BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY DIRECTOR OF EDUCATION, KALPETTA, WAYANAD DISTRICT. 673 121. R1 TO R3 BY GOVT. PLEADER NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM WPC 10531/2011 APPENDIX P1: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 7.2.2002 P2: COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK P3: COPY OF THE JUDGMENT IN SC NO. 374/03 DATED 25.06.2003 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC) 1 KALPETTA P4: COPY OF THE ORDER DATED 6.10.08 OF THE 2 ND RESPONDENT P5: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 27.6.2008 P6: COPY OF THE RELEVANT PAGES OF THE JUDGMENT IN WP (C) NO.22366/2009 DATED 6.12.10. P7: COPY OF THE ORDER NO. A5/14911/10 DATED 25.3.2011 OF THE 3RD RESPONDENT P8: COPY OF THE RELEVANT PAGE OF THE APPLICATION FOR ISSUE OF NOC P9: COPY OF THE NOC ISSUED BY THE 3RD RESPONDENT DATED 19.09.2009 P10: COPY OF THE NOTICE DATED 7.4.2009 ISSUED BY THE 2ND RESPONDENT P11: COPY OF THE REPLY SENT BY THE PETITIONER DATED 6.5.2009 RESPONENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE JM T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 10531 of 2011-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2011. JUDGMENT The petitioner herein is aggrieved by Ext.P7 proceedings issued by the Deputy Director of Education, whereby a punishment of barring two annual increments for two years without cumulative effect has been imposed on him. Regarding the period of suspension, it is stated that the period from 7.2.2002 to 19.10.2008 will be treated as eligible leave. 2. The petitioner challenges Ext.P7 on various grounds. It is pointed out that the punishment imposed is without initiation of any disciplinary action. What has happened in this case is only registration of a criminal case against the petitioner which ended in acquittal, as evident from Ext.P3 judgment. In fact, the order of suspension, according to learned counsel for the petitioner, issued as per Ext.P1 continued to be in force in the light of the pendency of the criminal case. Nearly after six years, the criminal court acquitted the petitioner. The finding by the criminal court is that “the case against the accused is not at all established.” 3. The order by which the petitioner was reinstated in service after the judgment in the criminal case, which is dated 25.6.2008 is Ext.P4. wpc 10531/2011 2 Ext.P5 is a subsequent proceeding issued by the Deputy Director of Education whereby a direction was issued to treat the whole period of suspension as eligible leave. This was under challenge before this Court earlier and this Court by Ext.P6 judgment quashed Ext.P5 order and directed to pass appropriate orders in accordance with law, within a period of three months. The present order is passed thereafter. 4. The respondents have filed a counter affidavit in the matter. Learned counsel for the petitioner submitted that without initiation of any disciplinary proceedings, the punishment of barring two increments without cumulative effect, imposed on the petitioner, cannot be supported at all. It is further stated that as far as the suspension of the petitioner is concerned, it is not pursuant to the initiation of any disciplinary action, but only because of the pendency of the criminal case. During the period the criminal case was pending and after its completion as per Ext.P3, the petitioner was not subjected to any disciplinary action also. Therefore, learned counsel for the petitioner submitted that the imposition of punishment even without initiation of any disciplinary proceedings, cannot be supported. The consequential direction to treat the period of suspension as eligible leave, also cannot survive, it is contended. 5. Learned Government Pleader submitted that the suspension was wpc 10531/2011 3 ordered initially, pending disciplinary action and the Deputy Director was justified in passing the present order. 6. A reading of the counter affidavit does not show that the petitioner was served with any charge memo seeking explanation on the allegations raised against him at any point of time. It is well settled that initiation of disciplinary action can only be by issuing memo of charges. The counter affidavit also does not disclose the fact that during the pendency of the criminal case or after its completion, a disciplinary proceedings had actually been launched. What is averred in the counter affidavit is that the petitioner was offered a personal hearing before imposing the penalty of withholding the increments. Evidently, without initiation of a disciplinary action, nobody can be visited with a penalty like the one in this case. Therefore, the imposition of punishment as ordered, cannot be supported, legally. The enquiry, if any, by the Principal as stated in para 5 of the counter affidavit, cannot be a substitute for a legally constituted disciplinary proceedings. It can only be a fact finding enquiry. 7. What remains is the consideration of the request of the petitioner for treating the period of suspension as duty for payment of full amount of salary and allowances as envisaged under Rule 57 of Part I K.S.R. Learned Government Pleader submitted that actually the provision that wpc 10531/2011 4 applies herein is Rule 56B. This issue has not been considered in Ext.P7, evidently, because the officer proceeded on the basis that the petitioner is liable to be imposed with the punishment and consequently, he treated the period of suspension as eligible leave. 8. As the disciplinary action was never initiated, what remains to be considered is the effect of the judgment of the criminal court on his pleas to grant the monetary benefits for the period of suspension as he has been acquitted. In that view of the matter, Ext.P7 order is quashed. The third respondent will pass fresh orders after hearing the petitioner, within a period of three months from the date of receipt of a copy of this judgment. The applicability of Rule 57 of part I K.S.R. will be specifically considered while finalysing the matter. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/