IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 9TH JULY 2007 / 18TH ASHADHA 1929 OP.No. 17364 of 2000(P) ------------------------------ PETITIONER: ---------------- R.THULASIDAS, (RETIRED HEADMASTER, LUTHERAN UPS, PONVILA, NEYYATTINKARA EDL.SUB DISTRICT), SUSEEL DHARA, PONVILA, AYIRA P.O., PARASSALA. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENTS: ------------------ 1. STATE OF KERALA, REP.BY THE CHIEF SECRETARY , SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, NEYYATTINKARA. 4. THE MANAGER, LUTHERN SCHOOLS, LUTHERAN CHURCH, KALLUVETTANKUZHI, VENGANOOR P.O. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R1 TO R3 SRI.S.GOPAKUMARAN NAIR S.C. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. 28564/2000 IN OP. 17364/2000 DISMISSED 09.07.2007 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE APPLICATION FOR LEAVE AND THE ORDER NO.C2 636/97/L.DIS. EXT.P2:- COPY OF THE LETTER NO.316/97 FROM THE 4TH RESPONDENT DT. 29.12.97. EXT.P3:- COPY OF THE LIST OF DOCUMENTS ALONG WITH THE RECEIPT OF THE SAME BY SMT.NESAMMA DT. 29.12.97. EXT.P4:- COPY OF THE VISIT NOTE OF THE ADDL. DPI DT. 15.1.98. EXT.P5:- COPY OF THE PROCEEDINGS OF THE 2ND REPS NO.F1-79019/97 DT. .7.1.98. EXT.P6:- COPY OF THE JUDGMENT IN OP. NO. 1226/98 OF THIS HONOURABLE COURT DT. 20.1.98. EXT.P7:- COPY OF THE ORDER GO.(RT) NOP.1969/98/EDN. DT. 22.5.98. EXT.P8:- COPY OF THE ORDER BNO.FI/79019/97/DPI DT. 27.10.98. EXT.P9:- COPY OF THE JUDGMENT IN OP. NO. 11738/98 OF THIS HONOURABLE COURT DT. 18.11.98. EXT.P10:- COPY OF THE REPORT ON THE ENQUIRY BY THE JOINT DIRECTOR ON 5.3.99. EXT.P11:- COPY OF THE LETTER NO.3/98/TR. IN CHARGE DT.19.1.98 TO THE 3RD RESPONDENT FROM LYSAL. EXT.P12:- COPY OF THE ORDER NO.351/98/DT. 19.8.99. EXT.P13:- COPY OF THE ORDER NO.F1/77467/99 DT. 25.4.2000 BY THE 2ND RESPONDENT. OP. NO. 17364/2000 EXT.P14:- COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DT. 15.5.2000. EXT.P15:- COPY OF THE REPLY FILED BY SMT .CHANDRAMATHI AMMA, DT. 4.6.98 TO THE LAWYER'S EXT.P16:- COPY OF THE REPLY FILED BY SMT.SUMATHI BAI DT.12.6.98 TO THE LAWYER'S NOTICE. EXT.PR4(a):- COPY OF THE ORDER NO.F1/38161/97/DPI DT. 15.11.97. \TRUE COPY/ tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = O.P.No.17364 of 2000-R = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of July, 2007. JUDGMENT The petitioner was the Headmaster of one of the Schools under a corporate management. Disciplinary proceedings were initiated against him on 11 counts. 2. By Ext.P10, the Joint Director of Public Instruction issued the enquiry report finding the petitioner guilty of the charges. The enquiry report (Ext.P10) was forwarded to the Manager to finalise the disciplinary proceedings. 3. What came out thereafter is wholly curious. The Manager, not only gave an honourable acquittal of the OP17364/2000 -: 2 :- petitioner of all the charges, but also directed that the period of suspension from 7-1-1998 till reinstatement on 18- 11-1998 will be treated as duty for all benefits, including periodical increments, pay fixation, surrender and all pensionary claims. 4. The Manager forwarded his decision for approval of the Director of Public Instruction. 5. It has to be noticed that during the pendency of the proceedings before the Department, there were certain other writ petitions and the Department had issued an order that the petitioner be reinstated and transferred out of that school in view of the fact that he was due to superannuate. 6. The DPI, in the impugned Ext.P13, strongly disapproved all the actions taken by the Manager as per Ext.P12. It was also noticed that in spite of the directions of the DPI, the Manager had transferred the petitioner back to OP17364/2000 -: 3 :- U.P.School, Ponvila, the school where he allegedly misconducted himself. The DPI strictly warned the Manager against such action in future. It was directed that the suspension period of the petitioner should be treated as leave of any kind due and admissible to him. It is this decision that is under challenge. The petitioner had also placed Ext.P14, a representation by him to the State Government virtually appealing against Ext.P13. 7. The result of the situation is that if the impugned Ext.P13 goes and if Ext.P12 stands, the petitioner would go not only scot free of the charges, but would also be entitled to all monetary benefits. 8. By Ext.P10 enquiry report, findings were rendered against the petitioner. That report, if one were to go by the contents of Ext.P12, was rendered after the Manager appeared before the Joint Director and stated that the petitioner is innocent. In Ext.P12, the Manager himself OP17364/2000 -: 4 :- states that "I, the Corporate Manager and 3rd respondent have appeared before the Enquiry Officer and submitted the hearing note referred 5 contended "some misunderstandings overrule the situation and unfortunately it leads to the suspension of the Headmaster Sri.R.Thulasi Das. In fact Sri.R.Thulasi Das is innocent in this case".” 9. Scouting all known schools of jurisprudence and reaching out at the great learned authors in administrative law, I see not a flickering glow of wisdom to support the action of the Manager to have sat in judgment over the enquiry report obtained on the basis of his own evidence that the delinquent officer is innocent of the charges. 10. The aforesaid situation has to be rectified and remedied. This is because of the public interest and public funds involved in paying an aided school teacher (Headmaster), which are likely to be siphoned off through the Manager as a conduit because he, as of now, by the OP17364/2000 -: 5 :- issuance of Ext.P12, is buttressing the case and claims of the petitioner. He has also placed a counter affidavit supporting the writ petition. 11. In the aforesaid circumstances, all proceedings of the Manager and the DPI following Ext.P10 enquiry report are quashed. Because of the stand taken by him in favour of the petitioner, even before the enquiry officer, the issue as to what has to be done on the basis of Ext.P10 cannot be left to the Manager, though he is the appointing authority and the disciplinary authority. Hence, having regard to the facts and circumstances of the case, it is directed that the DPI will hear the petitioner and the Manager and decide on the action to be taken on the basis of Ext.P10 enquiry report. It will be open to the petitioner to contend before the DPI that Ext.P10 itself is liable to be set aside. A final decision in this regard shall be taken after affording the petitioner and the Manager, an opportunity of being heard. It is clarified that if persons other than the petitioner are likely to be OP17364/2000 -: 6 :- commended upon by the Manager, as has been done in Ext.P12, no action shall follow against any such person without hearing such person. Owing to the peculiar facts and circumstances of the case, the decision as to how the period spent by the petitioner under suspension is to be treated shall also be taken by the DPI. The question of deciding the monetary benefits to the petitioner and his pension etc. will stand regulated by the decision that the DPI may render as directed above. The writ petition is disposed of in the above terms. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/- OP17364/2000 -: 7 :- THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = O.P.No. 17364 of 2000-P = = = = = = = = = = = = = = = = = = = JUDGMENT Dated: 9th July, 2007.