IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 27034 of 2007(R) -------------------------- PETITIONERS: --------------- 1. BHAVANA RAMESH, UPSA, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT. 2. NANDINI V.K., LPSA, -DO- -DO- 3. JYOTHILAKSHMI P.G., LPSA, -DO- -DO- 4. GEETHA.C., LPSA, -DO- -DO- 5. BEENA.S.K., LPSA, -DO- -DO- BY MR.P.K.SURESH KUMAR,ADVOCATE MR.SANTHEEP ANKARATH, ADVOCATE RESPONDENTS: ---------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, THRITHALA, PALAKKAD DISTRICT. 3. MANAGER, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.27034/2007 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF APPLICATION FOR LEAVE DATED 27.5.2005 SUBMITTED BY THE 1ST PETITIONER. EXT.P2: COPY OF SHOW CAUSE NOTICE DATED 30.8.2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P3: COPY OF LETTER DATED 22.09.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF ORDER NO.58952/B3/06/GE DATED 10.10.2007 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (B) DEPARTMENT. TRUE COPY P.A. TO JUDGE S. SIRI JAGAN, J ............................................... W.P(C) No. 27034 of 2007 ................................................. Dated this the 22th day of July, 2009 J U D G M E N T Petitioners are teachers of an aided school namely Nhangattur AUP School. The school was managed by the AEO as the manager, in view of a dispute regarding management. All the petitioners applied for leave for long periods during the same academic year namely 2005-2006 on medical grounds. These applications were forwarded to the Government for sanctioning leave with recommendations of the headmaster and the manager. The Government did not pass any orders on the same. While so, by Ext.P2 dated 30.8.2007 of the A.E.O., the teachers were directed to show cause why disciplinary action should not be taken against them for not rejoining duty on 25.9.2005 as directed by him. Petitioners originally challenged Ext.P2 on the ground that while the leave applications were still under consideration of the Government, the AEO could not have issued Ext.P2 on the ground that petitioners did not rejoin duty as directed, before expiry of the leave period applied for. The writ W.P(C) No. 27034 of 2007 -2- petition was admitted and further proceedings pursuant to Ext.P2 was stayed. On 24.9.2007, I directed the 1st respondent to consider and pass orders on the leave application submitted by petitioners within two weeks. Ultimately the Government passed Ext.P4 order on 10.10.2007 holding as follows: “I am directed to invite your attention to the reference cited and to inform you that the enquiry report furnished by the DPI reveals that the following five teachers, (i) Smt. Nandini V.K. (ii) Smt. Jyothilekshmi P.G. (iii) Smt. Geetha.C. (v) Smt. Beena S.K. (iv) Smt. Bhavana Ramesh have applied for Leave Without Allowance only to confirm the preferential claim of their substitutes. On the basis of the enquiry report the techers are undergoing disciplinary action. Therefore leave application submitted by the above teachers does not deserve merit and it is rejected.” 2. Thereafter the petitioner got the the writ petition amended including a challenge against Ext.P4 order also. As per the amended writ petition the petitioner seeks the following reliefs: (a) quash the entire proceeding initiated as per Ext.P2 notice by the issue of a writ of certiorari or other appropriate writ, order or direction. Or in the alternative to issue a writ of mandamus or other W.P(C) No. 27034 of 2007 -3- appropriate writ, order or direction commanding the 2nd respondent not to go on with Ext.P2 proceeding unless and until the Government takes a decision on Ext.P1 application of the 1st petitioner and similar applications submitted by petitioners 2 to 5.” 3. The petitioners' contention is that in Ext.P4, the Government did not come to a conclusion by themselves as to whether petitioners are entitled to the leave applied for. Instead they have relied upon an enquiry report furnished by the DPI and solely on the basis of that enquiry report the Government has arrived at a conclusion that the leave was applied for by the petitioners to confirm the preferential claim of their substitutes. According to the petitioners, they are totally in the dark about any enquiry conducted by the DPI. In any event, according to them no enquiry with notice and opportunity to defend themselves have been conducted either by the DPI or anybody else. They were also not furnished with a copy of that report, before rejecting their leave applications relying on the same is the averment of the petitioners. Petitioners would contend that therefore relying on such an enquiry report for rejecting the leave applications is clearly unjust and unsustainable. 4. A counter affidavit has been filed by the 1st respondent in which it is stated that since all the 5 petitioners have applied W.P(C) No. 27034 of 2007 -4- for leave for almost the same period on medical grounds, the genuineness of the application for leave themselves are suspect. It is further stated that on the basis of a complaint a vigilance enquiry has been ordered into the matter. It is also submitted that an enquiry was conducted by DPI, in which it was found that the petitioners have applied for leave only to enable the manager to appoint substitutes, so as to give them a preferential claim for future appointments. The 1st respondent therefore contend that both Exts.P2 and P4 are perfectly in order and are not liable to be interfered with by this court. 5. I have considered the rival contentions in detail. 6. As is clear from Ext.P4, which is quoted above, the Government have relied solely on the enquiry report furnished by the DPI while rejecting the leave applications of the petitioners. The respondents have no case that the enquiry was conducted with notice and opportunity to defend themselves to the petitioners. They do not even have a case that a copy of enquiry report has been furnished to the petitioners. That being so, on the basis of that report the Government could not have arrived at a sustainable conclusion that the leave applications of the petitioners were to confirm the preferential claim of their W.P(C) No. 27034 of 2007 -5- substitutes. Therefore Ext.P4 is clearly unsustainable for violation of principles of natural justice. The effect of Ext.P4 is to hold that they have committed the misconduct of availing of leave on false pretentions, which could not have been done without notice and opportunity to show that the same is wrong. Accordingly, the same is quashed. The Government is directed to reconsider the applications for leave submitted by the petitioners afresh after affording an opportunity of being heard to the petitioners. Petitioners shall also be served with copies of the enquiry report of the DPI referred to in Ext.P4, before considering the matter afresh. The Government shall specifically consider whether the enquiry report of the DPI was after notice and opportunity of being heard to the petitioners and if not, whether such a report can be relied upon for the purpose of considering the leave applications of the petitioners. Till fresh orders are passed further proceedings pursuant to Ext.P2 shall be kept in abeyance. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs