IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 25633 of 2003(B) -------------------------- PETITIONER(S): --------------- JOSE N.J., HIGH SCHOOL ASSISTANT, MOONNIYUR HIGH SCHOOL, MOONNIYUR P.O., RESIDING AT NADUKUDIYIL, THENHIPALAM P.O., MALAPPURAM DIST. (UNDER REMOVED FROM SERVICE). BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE MANAGER MOONNIYUR HIGH SCHOOL, MOONNIYUR, MALAPPURAM DISTRICT. 2. THE DISTRICT EDUCATIONAL OFFICER, TIRUR. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM 6. SMT.NEELA GANGADHARAN, FORMER SECRETARY, GENERAL EDUCATION DEPT., THIRUVANANTHAPURAM, NOW WORKING AS MINISTER, CONSULATE OF ROME, ITALY. 7. SRI.K.K.VIJAYAKUMAR, FORMER SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, NOW WORKING AS PRL.SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 8. SRI.E.T.MUHAMMED BASHEER M.L.A. (FORMER MINISTER FOR EDUCATION), MAPPLIRAM, VAZHAKKAD P.O., MALAPPURAM DIST. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 GOVERNMENT PLEADER MR. T.K. ARAVINDA KUMAR BABU FOR R2TOR5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25633/2003 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE MEMORANDUM OF R1 DATED 15.06.1993 ISSUED TO THE PETITIONER. EXHIBIT P2 : TRUE COPY OF THE REPLY DATED 08.07.1993 SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT P3 : TRUE COPY OF THE MEORANDUM OF R1 DATED 12.07.1993 ISSUED TO THE PETITIONER. EXHIBIT P4 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT P5 : TRUE COPY OF THE MEMORANDUM OF R1 DATED 26.07.1993 ISSUED TO THE PETITIONER. EXHIBIT P6 : TRUE COPY OF THE REPLY DATED 03.08.1993 SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT P7 : TRUE COPY OF THE MEMO DATED 18.09.1993 ISSUED TO THE PETITIONER BY R1. EXHIBIT P8 : TRUE COPY OF THE REPLYDATED 27.09.1993 SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT P9 : TRUE COPY OF THE FINDINGS OF THE ENQUIRY OFFICER INTO THE CHARGES AGAINST THE PETITIONER DATED 10.12.1993 EXHIBIT P10 : TRUE COPY OF THE MEMORANDUM OF R1 ISSUED TO THE PETITIONER DATED 18.12.1993. EXHIBIT P11 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE R1 DATED 27.12.1993. EXHIBIT P12 : TRUE COPY OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 16.02.1994. EXHIBIT P13 : TRUE COPY OF THE APPEAL PRESENTED BY THE PETITIONER BEFORE R4 DATED 25.02.1994. EXHIBIT P14 : TRUE COPY OF THE PROCEEDINGS OF R4 DATED 10.12.1994. EXHIBIT P15 : TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE R5 DATED 17.01.1995. EXHIBIT P16 : TRUE COPY OF THE REVISION PETITION SUBMITTED BY R1 BEFORE THE HONOURABLE MINISTER FOR EDUCATION, DATED 17.12.1994. WP(C) 25633/2003 EXHIBIT P17 : TRUE COPY OF THE ORDER NO.G.O. (Rt) 361595/G.EDN. DATED 17.10.1995. EXHIBIT P18 : TRUE COPY OF THE LETTER TO THE PETITIONER SENT BY R1. EXHIBIT P19 : TRUE COPY OF THE JUDGMENT DATED 17.06.2002 IN O.P.NO.18740 OF 1995. EXHIBIT P20 : TRUE COPY OF THE ORDER NO.G.O. (Rt) 1326/2003/G.Edn. DATED 03.04.2003. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON, J. ................................................................ W.P.(C) No. 25633 OF 2003 ........................................................ Dated this the 5th October, 2009 J U D G M E N T Sustainability of imposition of the punishment of removal from the service ordered by the first respondent/Manager, as upheld by the Revisional Authority/Government, forms the subject matter in this present Writ Petition. 2. The petitioner was working as an ‘H.S.A.’ in the first respondent's school from 27.06.1980 onwards. While so, the petitioner allegedly committed some misconducts, which led to Ext. P1 charge sheet dated 15.06.1993. Subsequently, on coming across certain other misconducts as well, related to striking down the name of a student from the rolls of the School without any knowledge, information or authority of the Head Master/ Manager and using abusive language and unparliamentary words against higher authorities, he was served with another charge sheet dated 12.07.1993. 3. The first respondent initiated disciplinary proceedings and on completion of the Domestic Enquiry, Ext.P9 enquiry report was submitted, WPC NO.25633/2009 2 holding that the delinquent teacher was guilty of all the misconducts except misconduct No.5. On receipt of the enquiry report, it was considered along with the entire materials on record by the Disciplinary authority, who found the delinquent guilty. Even though it was found that the misconducts proved actually warranted dismissal from service, the Management, taking a lenient view, ordered the punishment of ‘removal from service’ vide Ext.P12. On challenging Ext. P12, the matter was considered by the 4th respondent/DPI, who passed Ext. P14 order holding that, even though the various instances of misconduct held as proved in the enquiry were correct and sustainable, ‘removal from service’ amounted to major punishment and that the said punishment was not proportionate to the gravity of the proven misconducts. Accordingly, Ext.P12 order was set aside and the petitioner was ordered to be reinstated in service forthwith, remitting the matter to the first respondent/Manager for imposing suitable lesser punishment. 4. Aggrieved of the order passed by the DPI, reinstating the petitioner in service, the first respondent Manager preferred a Revision Petition before the Government, as provided under the relevant Rules. The delinquent teacher also filed a Revision Petition before the Government, contending that the finding arrived at by the DPI while ordering reinstatement vide Ext. P14 on the charges levelled against him, WPC NO.25633/2009 3 was not correct or sustainable and thus seeking to absolve him of all the charges in toto; questioning the imposition of lesser punishment, as ordered. After considering both the matters, the Government/Revisional Authority dismissed the Revision Petition preferred by the employee, while allowing the Revision Petition preferred by the Manager, which in turn was subjected to challenge from the part of the delinquent employee, by filing O.P.No.18740 of 1995, leading to Ext.P19 judgment. 5. As borne by Ext.P19, it was contended before this Court that the Revision Petition preferred by the petitioner was actually heard by one person, whereas the impugned order was passed by another person, who assumed the office later and hence that the same was not sustainable. This defect no longer continues to be assailable by virtue of the authoritative pronouncement on the question of law, by a Full Bench of this Court in Sudheer Vs. Susheela [ 2009(4) KLT 29]. But based on the legal position, which stood clarified earlier; a learned Single Judge of this Court set aside the impugned order and directed the Government/ Revisional Authority to re-consider the matter afresh, after giving an opportunity of hearing to the petitioner. It is brought to the notice of this Court that, despite the said direction, the petitioner appeared to be still aggrieved, who approached this Court by filing Writ Appeal No.2141 of WPC NO.25633/2009 4 2002, which however was later dismissed as withdrawn. Pursuant to the above verdict, the 5th respondent/Government considered the Revision Petition afresh and passed Ext. P20 order, whereby, it was held that the punishment imposed upon the petitioner was very much proper and sustainable, thus setting aside Ext.P14 order passed by the DPI and sustaining the order dated 15.02.1994 passed by the third respondent/Deputy Director of Education and the punishment imposed, which in turn is subjected to challenge in the present Writ Petition. 6. The 5th respondent/State has filed a detailed counter affidavit seeking to sustain Ext. P20 order. Referring to the sequence of events, the learned Counsel for the petitioner submits that Ext.P20 order has been passed in a quite mechanical manner, simply referring to Ext. P19 enquiry report and without any regard to the findings arrived at by the 4th respondent/DPI. The learned Counsel further submits that the charges stated as proved are also not of serious in nature and that the finding and reasoning given in Ext.P9 report itself are not correct or sustainable. 7. The learned Government Pleader appearing on behalf of the 5th respondent as well as the learned Counsel appearing for the first respondent/ Manager sought to sustain Ext. P20, asserting that the entire materials have been properly evaluated and considered by the Revisional WPC NO.25633/2009 5 Authority/Government and that the same is not assailable under any circumstances. 8. The magnitude of the misconduct committed by the petitioner is divulged from the evidence tendered from the part of the Head Master, other Teachers, Staff/peons, Students, members of the PTA, the resolution of the PTA as dealt with in Ext. P9 report, which has been meticulously referred to by the Revisional Authority while passing Ext, P20 order. Various instances of misconducts committed by the very same delinquent employee earlier and the instigation made by him persuading the students to boycott the classes and to resort to strike with intend to cause utter indiscipline, have been discussed in detail by the Revisional Authority. It was after considering the entire materials on record, including the evidence tendered by the above witnesses, that a clear finding was rendered, holding that the punishment awarded was very much proportionate to the proven misconduct, thereby restoring the imposition of penalty of 'removal from the service', as ordered by the first respondent Manager and confirmed by the Deputy Director of Education, Malappuram vide order dated 15.02.1994. 9. It is true that no separate mention has been made by the revisional authority with regard to the finding arrived at by the DPI in WPC NO.25633/2009 6 Ext.P14 order, but for referring to the contents of the enquiry report and such other aspects. The fact remains that the observation made by the 4th respondent DPI, that the punishment awarded is disproportionate to the misconduct, does not find any justification at all; particularly since there is absolutely no discussion as to the nature and gravity of the misconduct, the evidence tendered and the consequences resulted. The DPI only made an observation that, according to him, the misconduct was not that much serious to justify the punishment of removal from the service. The said finding, without any reasoning, can only be stated as wrong and perverse in view of the detailed discussion of the evidence, as done by the revisional authority/Government referring to the contents of the report revealing the various earlier instances of misconduct including the striking off the name of a student from the rolls of the School Register, without any authority or intimation to the Headmaster/Manager. 10. The learned counsel for the petitioner submits that the contents of the enquiry report are not correct or sustainable. It is very much relevant to note that, there is absolutely no case for the petitioner that Ext.P9 enquiry report is not correct or sustainable and no challenge has been raised in the Writ Petition, seeking to set aside the finding arrived at in the domestic enquiry. It is very much revealed that the revisional WPC NO.25633/2009 7 authority has considered the entire materials on record and the finding is very much supported by proper reasoning. It is also revealed that there is proper application of mind and as such, Ext.P20 is not liable to be declared as arbitrary, illegal, or un sustainable in any manner. In the above circumstance, the challenge raised against the impugned orders is not sustained and no interference is called for. The Writ Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. dnc