IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WA.No. 2249 of 2007() --------------------- APPELLANT/ PETITIONER ------------------------ LESLIE BIVEIRA, CORPORATE MANAGER, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, KOCHI, ERNAKULAM. BY ADV. SRI.K.RAMKUMAR (Sr) SRI.T.RAMPRASAD UNNI RESPONDENTS/ RESPONDENTS: -------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. ADDL.R3: CHARLES DIAS, SECRETARY, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, ERNAKULAM, KOCH - 682 015. ADDL.R4: CHARLY RODRIGUES, 2A, JOEMER SREENILAYAM, PALIYAM ROAD, KOCH - 16. (ADDL.R3 AND R4 ARE IMPLEADED AS PER ORDER DT.06.1.2009 IN I.A.NO.481/2008 AND I.A.NO.612/2008 IN THIS W.A.) W.A.NO.2249/2007 ADDL.R5: JAMES PINHEIRO, AGED 50, S/O.MANNUAL PINHEIRO, SECRETARY, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, (CHEENIKA PARAMBIL HOUSE, “NEST”, KORATTY.P.O., THRISSUR. (IMPLEADED AS ADDL.R5 AS PER ORDER DT.20.1.2009 IN IA.NO.40/2009) ADD.R6: WATSON RODRIGUES, PANANGAYIL HOUSE, VARAPUZHA, ERNAKULAM DISTRICT. (IMPLEADED AS ADDL.R6 AS PER ORDER DT.28.1.2009 IN I.A.NO.78/2009) GOVT.PLEADER, SMT.R.BINDU FOR R1, R2 ADV. SRI.ELVIN PETER P.J. FOR R3 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R4 SRI.ABRAHAM VAKKANAL FOR R5 SRI.PAUL ABRAHAM VAKKANAL FOR R5 SRI.P.K.M.HASSAN FOR R6 SRI.JULIAN XAVIER FOR R6. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ---------------------------------------- W.A. No.2249 OF 2007 ---------------------------------------- Dated this the 28th day of January, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the appellant. He approached this Court, filing the writ petition, challenging Ext.P7 order, as per which he has been temporarily disqualified from holding the post of Corporate Manager of the schools managed by Central Board of Anglo Indian Education, Kochi. 2. The brief facts of the case are the following: The appellant/petitioner was elected Corporate Manager of the schools run by Central Board of Anglo Indian Education, by the said Educational Agency. While so, one Mr. Watson Rodrigues moved the Vigilance Court making certain allegations against him. The allegations included the charges of bribery also. The Vigilance Court after holding preliminary enquiry, directed the Vigilance and Anti Corruption Bureau, Ernakulam to register a case and investigate it. Pursuant to that, a crime W.A.No.2249/2007 2 has been registered against the appellant. The Vigilance and Anti Corruption Bureau moved the Government to take steps to keep the appellant away from Managership, pending investigation of the case. The Government forwarded the said request to the Director of Public Instruction, Trivandrum, for appropriate action. The Director, in turn, passed Ext.P7 order dated 23.7.2007, temporarily disqualifying the appellant from holding the post of Manager. It was also provided in the order that the same will be reviewed after the finalisation of the vigilance case. The appellant challenged that order before this Court. The learned Single Judge found the order bad, as it was issued without hearing the appellant. So, the learned Judge ordered that Ext.P7 shall be treated as a notice and the Director of Public Instruction was directed to hear the parties, consider the objections of the appellant and pass final orders in the matter, expeditiously. It was also ordered that the temporary disqualification will continue till a final decision is taken by the Director. Mainly aggrieved by the said direction, concerning continuance of the disqualification, the present appeal is filed. W.A.No.2249/2007 3 3. The learned senior counsel, Mr. K.Ramkumar, appearing for the appellant submitted that the Director of Public Instruction has no power to issue an order of temporary disqualification, as was done under Ext.P7. It is also submitted that having regard to the provisions of Rule 7(1) of Chapter III of the K.E.R., purportedly, under which the action was taken, the appellant should have been issued with notice and his objections considered before such an order was passed. In other words, even an order of temporary disqualification can be passed only after issuing notice. Even assuming, there is power for the same in the Director, the direction to give the post-decisional hearing ordered by the learned Single Judge is not proper. The learned counsel also submitted that the ground taken in Ext.P7 is not a ground available under Rule 7(1). 4. We heard the learned Government Pleader, Smt.R.Bindu, for the official respondents and also M/s. S.P.Aravindakshan Pillay, Elvin Peter, Julian Xavier and Paul Abraham Vakkanal for the party respondents. W.A.No.2249/2007 4 5. First, we will deal with the preliminary objection raised by the learned senior counsel for the appellant. According to him, the rules do not confer any power on the Director to temporarily disqualify the Manager. It is well settled that if a power is conferred on an authority to do something, the express grant of power will take within its fold, the ancillary or incidental powers necessary for the effective exercise of the power expressly conferred. If very serious allegations are raised against the Manager and the Director finds, prima facie, that they are sustainable and therefore action is warranted, he should be conceded freedom to temporarily keep the Manager away from Managership, pending finalisation of the proceedings against him. Therefore, the contention of the learned senior counsel that the Director does not have the power to pass an interim order, temporarily suspending the Manager, cannot be accepted. 6. Rule 7(1) of Chapter III K.E.R. reads as follows: “7. Action against Manager or Educational Agency in the event of mismanagement etc. W.A.No.2249/2007 5 (1) In the event of mismanagement, malpractice, corruption or maladministration, gross negligence of duty, or disobedience of Departmental instruction on the part of the Manager or denial of appointment to a qualified thrownout teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier or denial of promotion to a teacher who is rightful claimant for promotion by the manager or conviction of the Manager for an offence involving moral turpitude it shall be open to the Director, after giving the Manager a reasonable opportunity to show cause against the action proposed to be taken and after due enquiry, to declare him unfit to hold the office of Manager in the school or in any other aided school and to require the educational Agency to appoint a suitable person as Manager.” Allegations of corruption is one of the grounds available under Sub rule (1) of Rule 7 quoted above for disqualifying a Manager. 7. The impugned order, Ext.P7, reads as follows: “As per the letter read first above, Government have forwarded the request of the V&ACB, Ernakulam Unit for necessary action. The V&ACB, Ernakulam Unit has informed that Smt.Leslie Bevera, Chairman & W.A.No.2249/2007 6 Corporate Manager, Central Board of Anglo Indian Education, Kochi has involved in a bribery case and FIR submitted before the Vigilance Court. The Vigilance Bureau has also observed that the continuance of the accused in the official position will adversely reflect in the enquiry by inducing witnesses and destroying records of evidentiary value. The procedure for the disqualification will take a long time and will became against the spirit of the request of the V&ACB. So Smt.Leslie Bevera, Corporate Manager, Central Board of Anglo Indian Education, Kochi is temporally disqualified from the managership in terms of Rule 7 of Chapter III KER. This order will be reviewed after the finalisation of this vigilance case.” 8. Going by the above order, the ground taken for suspension of the Manager is the observation of the Vigilance and Anti Corruption Bureau that the continuance of the appellant in the official position will adversely affect the enquiry by inducing witnesses and destroying records of evidentiary value. Since the procedure for disqualification will take a long time, the Director decided to keep him under temporary disqualification. It was also said that this order will be reviewed W.A.No.2249/2007 7 after the finalisation of the vigilance case. The same would show that the appellant has been temporarily disqualified, relying on the observation of the Vigilance Anti Corruption Bureau and the same will remain in force, till the finalisation of the vigilance case. 9. We notice that the ground taken in Ext.P7 is not a ground available under Rule 7(1). But, based on the materials produced before the D.P.I., if the said officer feels that the Manager should be disqualified on the ground of corruption, notwithstanding the fate of the vigilance case, the D.P.I. can proceed to disqualify the appellant. While proceeding so, if the D.P.I. feels that it is necessary to temporarily disqualify him, pending finalisation of the proceedings against him, the same can also be done. But, we notice that the above jurisdictional facts are not available in this case. Ext.P7 is not issued based on the decision of the Director to disqualify the appellant, in view of the corruption charges against him. So, the learned Single Judge has rightly ordered to treat Ext.P7 only as a notice. The appellant will be free to raise all his contentions before the D.P.I. W.A.No.2249/2007 8 The said officer, after hearing both sides, shall pass appropriate orders in the light of the above observations made by us, within six weeks from the date of production of a copy of this judgment. Till the matter is decided by the D.P.I., the appellant will be entitled to continue as Manager, provided the Educational Agency does not cancel his appointment. 10. The party respondents herein, who oppose the continuance of the appellant as Manager, may be given a chance to represent their case by the D.P.I. But, for giving them a chance, the hearing shall not be adjourned. The party respondents who want to be heard, may file representations before the D.P.I., within two weeks from today. The Writ Appeal is allowed as above. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps