IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 26593 of 2007(N) -------------------------------------- PETITIONER(S): ---------------------- MANAGER, K.P.M. HIGHER SECONDARY SCHOOL, CHERIYAVELINELLOOR, KOLLAM. BY ADV. MR.T.H.ABDUL AZEEZ MR.P.ANOOP (MULAVANA) MR.M.AHAMED KUNJU MR.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.PETER JOSE CHRISTO MR.K.A.BALAN MR.ANAND S.A. RESPONDENT(S): ------------------------ 1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM 4. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 5. T.RADHAMMA, HIGH SCHOOL ASSISTANT K.P.M. HIGHER SECONDARY SCHOOL, CHERIYAVELINELLOOR, KOLLAM. GOVERNMENT PLEADER MR.TEK CHAND FOR R1 TO R4 MR.KRB.KAIMAL, SENIOR ADVOCATE FOR R5 ADV. MR.B.UNNIKRISHNA KAIMAL FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, ALONG WITH WPC NO. 31211 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 26593/2007-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SAID LETTER NO.B1/9905/05 DATED 04/06/2005 RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT. EXT.P2: COPY OF THE MEMO OF CHARGES ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT. EXT.P3: COPY OF THE EXPLANATION DATED 14/07/2005 SUBMITTED BY THE 5TH RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION SENT BY TH PETITIONER TO THE 4TH RESPONDENT DATED NIL . EXT.P5: COPY OF THE ORDER NO.B1-9905/05 DATED 16/08/2005 OF THE 3RD RESPONDENT. EXT.P6: COPY OF THE PROCEEDINGS NO.M1/2/2005 DATED 10/10/2005 OF THE PETITIONER. EXT.P7: COPY OF THE PROCEEDINGS NO.B1/9905/05 DATED 09/03/2006 OF THE 3RD RESPONDENT. EXT.P8: COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 15/04/2006. EXT.P9: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT BEARING NO.V4/23296/05/DPI DATED 10/07/2006. EXT.P10: COPY OF THE REVISION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 05/08/2006. EXT.P11: COPY OF THE GOVERNMENT ORDER (RT) NO.3685/2007/G.EDN. DATED 07/08/2007. EXT.P12: COPY OF THE ORDER NO.G.O.(MS)NO.5921/07/G.EDN. DATED 31/12/2007. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE ORDER NO.B1-25278/04 DATED 22/03/2005 ISSUED BY THE 3RD RESPONDENT. EXT.R5(b): COPY OF THE GOVERNMNT ORDER G.O.(RT)NO.5921/07/G.EDN. DATED 31/12/2007. //TRUE COPY// P.A. TO JUDGE Rs/ P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) Nos. 26593 & 31211 OF 2007 ......................................................................... Dated this the 3rd March, 2009 J U D G M E N T The issue involved in both these cases is rather in respect of finalisation of the disciplinary proceedings pursued against the petitioner in W.P.(C) 31211 of 2007, whereby the punishment originally imposed, withholding three increments with cumulative effect was subsequently modified as barring of two increments with cumulative effect by the Deputy Director, which was confirmed by the second respondent-DPI, but thereafter modified by the Government by reducing the punishment to barring of two increments without cumulative effect. 2. With regard to the factual matrix: The petitioner in W.P. (C) 31211 of 2007 while working as H.S.A. in the school of the fifth respondent was called upon to shoulder the duties of the Chief Superintendent in connection with the S.S.L.C Examination scheduled for the year 2005. In fact, the said duty was originally cast upon the Headmistress, viz., Thankamma, who after obtaining the necessary training in this regard on W.P.(C) Nos. 26593 & 31211 OF 2007 2 01.03.2005 allegedly managed to get herself absolved from the duties, somehow or the other. It was considering the need of the hour, that the petitioner in the above Writ Petition was entrusted with the duties of the Chief Superintendent by the Department. 3. The S.S.L.C. Examination commenced on 09.03.2005 as scheduled. On 17.03.2005, though the examination scheduled was for the subject 'Mathematics', it so happened that the petitioner along with another teacher by name Raju, who was deputed from another school and was functioning as the Deputy Chief Superintendent, by mistake opened a small bundle containing 10 question papers pertaining to the subject-'Social Studies' under the Old Scheme ( in respect of the examination for the few failed candidates) which was scheduled to be held on 21.03.2005. On realising the mistake, the packet was closed immediately and replaced in the almirah and it is stated that this did not result in leakage of question papers or distribution of the same to the invigilators who were present in the school for conducting the examination. W.P.(C) Nos. 26593 & 31211 OF 2007 3 4. On 21.03.2005, there appeared a news item in some daily as to the leakage of some question papers in the southern districts in Kerala, allegedly having occurred on 17.03.2005 and 18.03.2005. On coming across such news paper report, the petitioner-teacher immediately rushed to the fourth respondent- DEO and reported the matter. Pursuant to this, the D.E.O conducted a spot verification and submitted necessary report to the higher authorities, based on which, the third respondent, as per Ext.P1 order dated 22.03.2005 placed the petitioner (Chief Superintendent) and the Deputy Chief Superintendent (M.K. Raju) under suspension, invoking the power of the Government under Section 12 A(2) of the Kerala Education Act. Thereafter, the third respondent, as per Ext. P2 order dated 04.06.2005 directed the fifth respondent-Manager of the school to pursue disciplinary proceedings against the petitioner within two weeks, which led to issuance of Ext.P3 charge sheet by the fifth respondent. 5. In response to Ext.P3 charge sheet, the petitioner submitted Ext.P4 explanation, whereupon, the Manager W.P.(C) Nos. 26593 & 31211 OF 2007 4 requested the fourth respondent to hold an enquiry and forward a report for taking further steps. In the meanwhile, the third respondent gave a fresh direction to the fifth respondent to finalise the disciplinary proceedings within 15 days as borne by Ext.P6 dated 16.08.2005. In the said circumstance, the fifth respondent, even without waiting for the report of the fourth respondent-D.E.O., passed Ext. P7 order dated 10.10.2005 withholding promotion of the petitioner permanently, subject to the ratification by the fourth respondent. 6. It is revealed from the materials on record that after conducting the enquiry, the fourth respondent submitted Ext. P8 report dated 15.11.2005 to the fifth respondent specifically observing in the last paragraph that it was learnt that the Deputy Director of Education (third respondent) was directed to set aside the action taken by the Manager and to proceed with the disciplinary proceedings against the teachers since the gravity of the offence committed by the delinquent employees was severe. It is further revealed that the third respondent, as per Ext. P9 dated 30.12.2005 had reinstated the petitioner and W.P.(C) Nos. 26593 & 31211 OF 2007 5 the other delinquent teacher in service and later as per Ext. P10 order dated 09.03.2006, their next three increments were barred with cumulative effect. 7. Aggrieved by Ext. P10, the petitioner challenged the same by filing Ext. P11 appeal before the second respondent, whereupon, the punishment imposed was reduced from barring of 'three' increments with cumulative effect to barring of 'two' increments with cumulative effect. The petitioner pursued the matter further by filing Ext. P13 appeal petition before the Government . The 5th respondent-Manager also challenged the modification of the punishment by filing Ext.P15 revision before the Government. The appeal as well as the revision petition were considered together by the Government and Ext. P16 order was passed, confirming Ext. P12 order passed by the second respondent. This was challenged by the petitioner by filing Ext. P17 review petition. After considering the particular circumstances which led to the opening of the bundle containing the question papers and observing that there was no culpable negligence on the part of the petitioner, Ext.P19 order dated W.P.(C) Nos. 26593 & 31211 OF 2007 6 31.12.2007 was passed by the Government whereby the punishment of barring two increments 'with' cumulative effect was modified as barring of two increments ' without' cumulative effect. 8. W.P.(C) No.31211 of 2007 was filed by the petitioner- teacher when the above Review Petition was pending, for appropriate direction to consider and finalise the review petition and for other incidental reliefs including a direction to consider her name for promotion to the post of Headmistress. W.P.(C) No. 26593 of 2007 was filed by the Manager of the school to set aside the relevant orders passed by the departmental authorities reducing the punishment imposed on the petitioner and also to sustain the order originally passed by the Manager. During the pendency of the proceedings as above, the Government considered Ext.P17 review petition and after considering the particular circumstances which led to the opening of bundle containing the question papers and observing that it was only an inadvertent mistake and further that the untimely opening of the question paper did not lead to any leakage, passed Ext.P19 W.P.(C) Nos. 26593 & 31211 OF 2007 7 order modifying the punishment imposed on the petitioner by barring of two increments without cumulative effect. The subsequent order dated 19.05.2008 issued by the first respondent/Government, by which the period of suspension already ordered to be treated as 'eligible leave' was ordered to be modified as 'duty' in view of the change in the punishment- making it only as a minor punishment, has also been produced by the petitioner teacher as Ext. P21. 9. Both the Writ Petitions have been amended incorporating necessary pleadings, grounds and reliefs on the basis of the permission given by this court to the appropriate extent. When the petitioner in W.P.(C) 31211 of 2007 seeks for consequential/residual benefits, the petitioner in W.P.(C) 26593 of 2007 (Manager of the School) among other things, attacks the jurisdictional competence of the Government to exercise the power of review, so as to pass Ext. P19 order. 10. The sequence of events as contained in the above writ petitions is not a matter of dispute from either side. In Ext. P3 charge sheet issued by the Manager of the school, the main W.P.(C) Nos. 26593 & 31211 OF 2007 8 issues levelled against the petitioner- teacher are that she had disobeyed the directions issued by the departmental authorities with regard to the conduct of S.S.L.C. Examination, 2005; that the opening of the bundle containing question papers was intentional and purposeful; that the impugned action of the teacher affected the secrecy of the public examination and further that the teacher cheated the department by opening the question papers. 11. On consideration of the entire materials including the report prepared by the D.E.O. (after the spot inspection and verification of the records ), it was revealed that the petitioner teacher was directed to shoulder the duties of the chief superintendent only on the eleventh hour, i.e., when the concerned Headmistress who was originally nominated as the Chief Superintendent withdrew from the arena, even after undergoing the training in this regard; that the petitioner- teacher was not given the intended training as to the duties, responsibilities and procedures in connection with the conducting of S.S.L.C. Examination as the Chief Superintendent; W.P.(C) Nos. 26593 & 31211 OF 2007 9 that the petitioner teacher was appointed as the Chief Superintendent for the first time ; that opening of the bundle containing the question papers was only because of an inadvertent mistake; that it did not lead to any leakage of question papers; that the secrecy of the public examination was never affected in any manner and that there was no element of cheating on the part of the petitioner in any circumstances. 12. Considering the above facts and figures, the Government rightly observed that the punishment imposed by the lower departmental authorities was not correct or sustainable, though there were some lapses on the part of the petitioner in being more prudent by virtue of her office and also in not reporting the incident to the higher authorities on time. It was accordingly that the Government issued appropriate orders by Ext. P19 modifying/reducing the punishment, particularly in view of the fact that the original order imposing the punishment on the petitioner was by invoking the special power vested with the Government to have disciplinary action on the 'Teachers of Aided Schools' as provided under section 12A of W.P.(C) Nos. 26593 & 31211 OF 2007 10 the Kerala Education Act and not on the basis of the normal powers conferred on the Manager. The earnest efforts taken by the Government for redressal of the grievances of the petitioner teacher taking note of the actual circumstances, cannot but be appreciated. 13. Learned counsel for the fifth respondent submits that the steps pursued by the fifth respondent challenging the concerned orders passed by the departmental authorities by filing the revision petition before the Government and by filing the present Writ Petition (W.P.(C) 26593 of 2007 )were in furtherance to the earnest attempt to bring the true state of affairs to light and never as a measure of any vindictive exercise against the petitioner. 14. Considering the above facts and circumstances, this court does not find it necessary to go into any minute details like the maintainability of the review petition filed before the Government or such other questions, adopting a microscopic examination, just for the sake of an academic exercise; especially when the power of review was exercised by the W.P.(C) Nos. 26593 & 31211 OF 2007 11 Government to do substantial justice to the aggrieved party. 15. It is submitted by the learned senior counsel for the petitioner -teacher that the petitioner is due to retire from the service on 31.03.2009 and that she has already submitted Ext.P18 application before the fifth respondent-Manager for considering her name for promotion as Headmistress in the school, the post still being kept vacant in view of pendency of the proceedings before this court. In the above facts and circumstances, both the Writ Petitions are disposed of, directing the fifth respondent in W.P.(C) 31211 of 2007 (the petitioner in W.P.(C) 26593 of 2007) to consider Ext. P18 and pass appropriate orders in accordance with law at the earliest, preferably before 25th March, 2009. The parties shall bear their costs. P.R. RAMACHANDRA MENON, JUDGE. lk