IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 1814 of 2009(N) ------------------------- PETITIONER: --------------- V.B. HEERALAL,S/O. V.A. BALARAMAN, AGED 52 YEARS, MANAGER, V.T. APPU MASTER MEMORIAL HIGH SCHOOL THAIKKAD SOUTH, BRAHMAKULAM, (VIA), GURUVAYOOR, THRISSUR DIST. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT. 3. SRI. P.C. FRANCIS, PEON, V.R.A.M.M. HIGH SCHOOL THAIKKAD SOUTH (UNDER SUSPENSION) PULICKOTTIL MAMMAIPARAMBIL, THAIKKAD, GURUVAYOOR, THRISSUR DIST. BY GOVT. PLEADER SHRI.A.J.VARGHESE ADV. SMT.S.KARTHIKA FOR R3 SRI.M.S.UNNIKRISHNAN FOR R3 SRI.M.R.ANISON FOR R3 SMT.K.P.GEETHA MANI FOR R3 SRI.P.S.ABHISHEK FOR R3 SMT.KAVYA P.PRASAD FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ---------------------------------------------- W.P(C) No. 1814 of 2009-N --------------------------------------------- Dated this the 26th day of February, 2009. J U D G M E N T Heard Shri.V.A.Muhammed, the learned counsel appearing for the petitioner, Shri.A.J.Varghese, the learned Government Pleader appearing for respondents 1 and 2 and Shri.M.S.Unnikrishnan, the learned counsel appearing for the third respondent. 2. The petitioner is the Manager of an aided school. The third respondent is a Peon working in the said school. On allegations of misconduct, the petitioner placed the third respondent under suspension by Exhibit P4 order dated 27.5.2008, for a period of 15 days. The petitioner also sought the permission of the District Educational Officer, Chavakkad to continue the suspension beyond 15 days. After a preliminary enquiry, the District Educational Officer issued Exhibit P17 proceedings dated 2.6.2008 permitting the petitioner to continue the suspension beyond 15 days. 3. Thereafter, Exhibit P19 memo of charges and Exhibit P20 statement of allegations of misconduct were served on the third respondent. Since the reply received from the third respondent was not satisfactory, the Manager requested the District Educational Officer to hold a detailed enquiry. The District Educational Officer held an W.P(C) No. 1814 of 2009-N 2 enquiry and submitted Exhibit P23 enquiry report. The third respondent was found guilty of the charges. The Manager thereafter issued Exhibit P24 notice dated 22.11.2008 calling upon the third respondent to show cause why the punishment of compulsory retirement from service should not be imposed on him. The third respondent submitted Exhibit P25 reply. The Manager thereupon sent Exhibit P26 letter dated 8.12.2008 to the District Educational Officer requesting for prior permission in terms of Rule 74 of Chapter XIV A of the KER to impose on the third respondent the punishment of compulsory retirement from service. The District Educational Officer rejected the said request and directed the petitioner by Exhibit P27 letter dated 2.1.2009 to reinstate the third respondent in service and to finalise the disciplinary action by awarding an appropriate punishment. Aggrieved by Exhibit P27, the petitioner has filed Exhibit P28 revision petition under Rule 92 of Chapter XIV A of the KER, before the Secretary to Government, General Education Department along with Exhibit P29 stay petition, seeking stay of operation and implementation of Exhibit P27. This writ petition was thereafter filed on 15.1.2009 seeking the following reliefs: “i) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st respondent to effectively consider and pass appropriate orders upon Exhibits P28 and P29 within a reasonable time after giving an opportunity of being heard to the petitioner. ii) stay the operation and implementation of Exhibit P27 pending disposal of Exhibit P28 revision petition.” W.P(C) No. 1814 of 2009-N 3 4. The third respondent has filed a counter affidavit resisting the writ petition. He contends that the Manager has initiated the disciplinary proceedings with ulterior motives. The third respondent contends that the punishment proposed by the Manager is excessive and disproportionate to the charges proved in the enquiry and therefore the District Educational Officer was right in declining permission to impose on him the punishment of compulsory retirement from service. 5. What the petitioner challenges is the decision taken by the District Educational Officer declining permission to impose on the third respondent the punishment of compulsory retirement. Under Rule 74 of Chapter XIV A of the KER the Manager cannot impose the said punishment without the previous sanction of the District Educational Officer. By Exhibit P27 such previous sanction was declined. This Court has in Haneefa Vs. State of Kerala (1978 KLT S.N 30) held that a revision under Rule 92 of Chapter XIV A of the KER will lie to the Government from an order passed under Rule 74, thereof. The question whether having regard to the findings in the enquiry, the punishment of compulsory retirement can be imposed by the Manager is essentially a matter for the departmental authorities to decide in the first instance. The primary authority has taken the stand that the punishment proposed is grossly disproportionate to that proved charges. The petitioner has already moved the superior authority by filing a revision petition. Such being the situation, it would be W.P(C) No. 1814 of 2009-N 4 premature for this Court to finally pronounce upon the issue. I accordingly dispose of this writ petition with the following directions: The Secretary to Government General Education Department shall pass final orders on Exhibit P28 revision petition after affording the petitioner and the third respondent an opportunity of being heard. This shall be done within three months from the date on which the petitioner produces a certified copy of this judgment. While admitting this writ petition on 16.1.2009 this Court had stayed the operation of the direction in Exhibit P27 to reinstate the third respondent in service. Having regard to the allegations levelled against him, I am of the opinion that till the State Government takes a decision on Exhibit P28 revision petition, the interim order passed by this Court should continue to operate. Accordingly I direct that the interim order passed by this Court staying the direction in Exhibit P27 to reinstate the third respondent in service shall continue to operate till the Government passes orders on Exhibit P28. The Secretary to Government shall after orders are passed on Exhibit P28 revision petition communicate the same to the petitioner and the third respondent expeditiously. The contentions of the parties on the merits are kept open. The writ petition is disposed of as above. P.N.RAVINDRAN ab JUDGE