IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 29397 of 2007(Y) -------------------------- PETITIONER(S): --------------- 1. JOSE MATHEW, AGED 40 YEARS, S/O.MATHEW, PEON, ST.SEBASTIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. 2. T.V.SEBASTIAN, AGED 48 YEARS, S/O.VARKEY, PEON, ST.SEBASTIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 5. THE HEAD MASTER, ST.SEBASTIAN HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. 6. THE MANAGER, ST.SEBASTIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. ADV. SRI.B.GOPAKUMAR FOR R5-6 SMT.CHINCY GOPAKUMAR FOR R5-6 GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29397/07 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : COPY OF THE PROCEEDINGS NO.A4-11720/2000 DATED 28.3.2001 EXT.P2: COPY OF THE REPLY IN O.P.NO.22296 OF 2001 TO THE ADDITIONAL SECRETARY. EXT.P3: COPY OF THE LETTER DATED 27.10.2001. EXT.P4: COPY OF THE PROCEEDINGS B6-6688/2001 DATED 5.11.2001. EXT.P5: COPY OF THE ORDER NO.4141/2001/FV TVM DATED 6.11.2001. EXT.P6: COPY OF THE APPEAL MEMORANDUM DATED 5.11.2001. EXT.P7: COPY OF THE PROCEEDINGS NO.K.DIS.23958/01/B5 DATED 22.8.2002. EXT.P8: COPY OF THE ORDER NO.4883/03/P.V.DATED 28.11.2003. EXT.P9: COPY OF THE JUDGMENT IN WPC NO.1773/2004 DATED 15.2.2007 OF THE HIGH COURT OF KERALA. EXT.P10: COPY OF THE ORDER NO.GO(RT)NO.3032/2007/G.EDN.DATED 4.7.2007. EXT.P11: COPY OF THE LETTER DATED 9.3.2004 NO.A4-8624/03 EXT.P12: COPY OF THE LETTER NO.B6-3667/03 DATED 30.4.2003. EXT.P13: COPY OF THE ORDER NO.846/05/A3 DATED 22.1.2008 ISSUED BY THE 4TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.29397 of 2007 --------------------------------------------- Dated this the 9th day of January, 2009 JUDGMENT The petitioners while working as Peons in St.Sebastian High School, Punnakkal were kept under suspension by the District Educational Officer as per Ext.P1 order dated 28.3.2001. Petitioners were assigned duties during the period from 8.3.2001 to 28.3.2001 in connection with SSLC examination. The allegation was that they did not report for duty in the day time on these days and that they misbehaved towards the headmaster. 2. The matter was reported by the headmaster on 15.3.2001 and by the Manager on 27.3.2001 to the District Educational Officer. The D.E.O. conducted an inspection on 27.3.2001 in the school. Ext.P1 order of suspension was issued on 28.3.2001. 3. Before the District Educational Officer, the enquiry was scheduled to be held on 7.7.2001. It was adjourned to 18.7.2001 and to 11.9.2001. On 11.9.2001, the petitioners did not appear. They presented a letter dated 9.9.2001 before the D.E.O. stating that they had to appear before the Government in connection with the same subject matter on 12.9.2001. Since WPC No.29397/2008 2 the petitioners did not appear before the D.E.O. on 11.9.2001, the enquiry was adjourned to 29.10.2001. On that day also, petitioners did not appear. On the other hand, on 27.10.2001, they submitted a letter to the D.E.O. stating that the matter is pending before the High Court as well as the Government and therefore, the D.E.O. need not take a decision. The D.E.O. was fully satisfied that the petitioners were protracting the matter and deliberately were keeping away from the enquiry before him. On enquiry, the D.E.O. was found that the allegations made against the petitioners were true. Accordingly, as per Rule 12A of the Kerala Education Act and Rules, the District Educational Officer imposed a punishment of barring two increments with cumulative effect as per Ext.P4 proceedings dated 5.11.2001. The District Educational Officer also held that the period of suspension from 28.3.2001 till date shall be treated as suspension period. The period from 9.3.2001 to 27.3.2001 was regularised as eligible leave. 4. Meanwhile, the petitioners had approached the Government for cancelling the order of suspension. The Government passed Ext.P5 order dated 6.11.2001 directing reinstatement of the petitioners pending culmination of the WPC No.29397/2008 3 disciplinary proceedings. At the time when the Government passed Ext.P5 order, the existence of Ext.P4 order passed by the D.E.O. was not brought to the notice of the Government. 5. The petitioners challenged Ext.P4 order in appeal before the Deputy Director of Education. The Deputy Director allowed the appeal in part and reduced the punishment. Instead of barring two increments with cumulative effect, increment for one year was barred without cumulative effect. Ext.P7 is the order passed by the Deputy Director on 22.8.2002. It would appear that Ext.P7 order relating to the punishment has become final. 6. It would appear that on 28.10.2002, a representation was submitted by the petitioners before the Government for treating the period of suspension as on duty. That application was considered by the Government and Ext.P8 order dated 28.11.2003 was passed treating the period of suspension (28.3.2001 to 5.11.2001) of the petitioners as eligible leave. Petitioners filed a review petition before the Government. Later, they moved W.P.(C).No.1773/04. As per Ext.P9 judgment, this Court directed the Government to dispose of the representation submitted by the petitioners. The Government considered the WPC No.29397/2008 4 matter and rejected the prayer made by the petitioners to review Ext.P8 order, as per Ext.P10 order dated 4.7.2007. In this writ petition, the petitioners have challenged Ext.P4 order passed by the District Educational Officer and Ext.P10 order passed by the Government. There is also a prayer for the issue of a writ of mandamus to treat the period of suspension as on duty and to grant consequential benefits. 7. In so far as the prayer to quash Ext.P4 order is concerned, it is to be noted that Ext.P4 order was subjected to appeal before the Deputy Director, who disposed of the appeal as per Ext.P7 order. Ext.P7 was not challenged by the petitioners and it has become final. Ext.P7 order is dated 22.8.2002. The Writ Petition was filed only on 3.10.2007. There is no explanation for the delay. Therefore, the petitioners cannot be permitted to challenge Ext.P4 in this Writ Petition. 8. The petitioners have challenged Ext.P10. But, they have not challenged Ext.P8. It is to be noted that in Ext.P10, the Government have considered the matter in great detail and all the contentions put forward by the petitioners were taken note of. The authorities held that no further leniency can be granted to the petitioners. If any such leniency is granted, it would be WPC No.29397/2008 5 difficult to maintain the discipline among the employees. It cannot be said that Ext.P10 order suffers from any infirmity. 9. There was no justification for the petitioners to abstain from duty. They should have put forward their grievance before the Educational authorities. They were not entitled to disturb the proper functioning of the school and the proper conduct of the SSLC examination and to misbehave towards the headmaster. I am satisfied of the authorities considered the matter in proper perspective and held that petitioners are not entitled to get the period of suspension treated as the period of duty. Maximum benefits have been granted by treating the period of suspension as eligible leave. In these circumstances, the petitioners are not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In the facts and circumstances of the case, the writ petition lacks merits and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl