IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 34144 of 2003(M) ----------------------------------------- PETITIONER(S): ------------------------ P.V.DEVASSY, CLERK (UNDER ORDER OF DISMISSAL), MAR AUGUSTINE'S HIGH SCHOOL, THURAVOOR - 683 586, ANGAMALY. BY ADVS. MR.ELVIN PETER P.J., MR.P.N.SANTHOSH, MR.S.D.ASOKAN, MR.NAVEEN.T. RESPONDENT(S): ---------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 4. THE DISTRICT EDUCATIONAL OFFICER, ALUVA. 5. THE MANAGER, MAR AUGUSTINE'S HIGH SCHOOL, THURAVOOR - 683 586, ANGAMALY. R1 TO R4 BY GOVERNMENT PLEADER MR.ARAVINDAKUMAR BABU.T.K R5 BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE, MR.SAJI KURIACHAN, MR.M.R.NANDAKUMAR, MR.PAUL ABRAHAM VAKKANAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34144/2003 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PETITIONER'S REPRESENTATION DTD. 28/01/1999 ADDRESSED TO THE FIRST RESPONDENT. P2: COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 8/03/1999 OF THE 5TH RESPONDENT. P3: COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 23/09/99 OF THE 5TH RESPONDENT. P4: COPY OF PETITIONER'S REPLY DTD. 6/10/1999 ADDRESSED TO THE 5TH RESPONDENT. P5: COPY OF SHOW CAUSE NOTICE DTD. 27/01/2001 ALONG WITH THE ENQUIRY REPORT OF THE 5TH RESPONDENT. P6: COPY OF PETITIONER'S REPLY DTD. 10/02/2001 ADDRESSED TO THE 5TH RESPONDENT. P7: COPY OF PETITIONER'S REPLY DTD. 23/02/2001 ADDRESSED TO THE 5TH RESPONDENT. P8: COPY OF ORDER DTD. 16/03/2001 OF THE 5TH RESPONDENT. P9: COPY OF ORDER NO.B1-7709/1999 DTD. 4/01/2002 OF THE 3RD RESPONDENT. P10: COPY OF ORDER NO.K.DIS./VI/12114/02/DPI DTD. 9/07/2002 OF THE ADDL.DIRECTOR OF PUBLIC INSTRUCTIONS. P11: COPY OF REVISION PETITION TD. 22/07/2002 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. P12: COPY OF ORDER G.O.(RT) NO.2998/2003/G/EDN. DTD. 29/07/2003 OF THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.K.MOHANAN, J. ---------------------------------------- WPC. No.34144 OF 2003 ---------------------------------------- Dated, the 6th day of August , 2009 JUDGMENT The petitioner who was working as Clerk in Mar Augustine's High School, Thuravoor, Angamaly approached this Court by preferring the above writ petition challenging Exts.P3, P5, P8, P9, P10 and P12 proceedings. It is also prayed for a declaration that Ext.P5 enquiry report is one prepared in violation of the principles of natural justice and hence Ext.P8 order imposing punishment on the petitioner is unsustainable in law. The third prayer is to issue a writ of mandamus or any other appropriate writ, order or direction directing the 5th respondent to reinstate the petitioner in service with effect from the date of suspension with back wages and all consequential benefits. 2. The case of the petitioner is that he was appointed as a Clerk in the School of the 5th respondent and he joined in the said post on 7.6.1984. wpc 34144/03 -:2:- That being the position, after 15 years of service, he was served with Ext.P2 memo of charges dated 8.3.99 and he was suspended from service with effect from that date. The main allegation against the petitioner is that he disobeyed the direction of the Headmaster to prepare salary bills of staff for the month of February, 1999. As the proceedings was not completed but was prolonged, the petitioner approached this Court by preferring writ petition No.2671/2000 which was disposed of by this Court by judgment dated 20.9.2000 directing the respondents to expedite the disciplinary proceedings. Thus, Ext.P3 is the memo of charges. Ext.P4 is the reply given by the petitioner to the memo of charges. The DEO Aluva is the enquiry officer who, after conducting enquiry, filed a report dated 16.12.2000 which was forwarded to the 5th respondent as per his forwarding letter No.B2-2138/99 dated 16.12.2000. 3. Accepting the said report, the 5th respondent issued Ext.P5 show cause notice dated 27.1.2001. The wpc 34144/03 -:3:- petitioner has preferred Ext.P6 reply to the said show cause notice issued by the Manager. Ext.P7 is also another statement submitted by the petitioner before the 5th respondent. However, overruling the objection and explanation offered by the petitioner, the 5th respondent issued Ext.P8 order imposing penalty of compulsory retirement of the petitioner from service with effect from the date of his suspension, viz., 8.3.99. In Ext.P8 it is specifically stated that the DEO had accord sanction to impose the said penalty. Against Ext.P8 order, the petitioner preferred appeal before the Dy.Director of Education, the 3rd respondent, and the 3rd respondent issued Ext.P9 order dismissing the appeal confirming the penalty imposed by the Manager. Aggrieved by Ext.P9 order, the petitioner again preferred appeal before the Additional Director of Public Instructions (General), Thiruvananthapuram who in turn issued Ext.P10 order holding that there is no reason to alter the decision taken by the Manager and the Education Officers and the wpc 34144/03 -:4:- appeal was also dismissed. Again, the petitioner preferred Ext.P11 Revision Petition before the government. The Government, after considering the Revision Petition, issued Ext.P12 order confirming the stand taken by the Additional DPI and other officers of the department. Thus, the petitioner in this writ petition challenged the above proceedings. The first respondent Government and the 5th respondent Manager have filed their counter affidavits resisting the contentions taken by the petitioner and opposing the relief sought for in this writ petition. 4. I have heard the learned counsel appearing for the petitioner; Sri Abraham Vakkanal, the learned Senior Counsel appearing for the 5th respondent, and also the learned Government Pleader. 5. The learned counsel for the petitioner vehemently argued that the enquiry was conducted in violation of the principles of natural justice. It is pointed out that during the enquiry, opportunities were denied to the petitioner to cross examine the witnesses. It is the wpc 34144/03 -:5:- case of the counsel that, the 5th respondent, before issuing Ext.P5 show cause notice, came into the conclusion that the petitioner shall be dismissed from service and such approach of the 5th respondent is against the principles of natural justice and against the dictum laid down by the Apex Court in the decision reported in Managing Director, Ecil., Hyderabad & Ors v. V.B. Karunakar & Ors (1993 4 SCC 727). It is also the case of the petitioner that the petitioner is in no way liable to be punished or subjected to disciplinary proceedings on the alleged misconduct or dereliction of duty since the preparation of salary bill is not the duty of the Clerk of the School. In support of the above contention, the learned counsel pointed out that Rule 197 (a) (i) of Kerala Treasury Code envisages that pay bill for the salaries of the teachers has to be prepared by the Headmaster. According to the learned counsel, this aspect, especially, when the Headmaster insisted the petitioner to prepare the bill, he sought clarification from wpc 34144/03 -:6:- the Government which infuriated the 5th respondent and the Headmaster, and thus, the petitioner was subjected to disciplinary proceedings. It is also the contention of the learned counsel for the petitioner that the penalty imposed against the petitioner is disproportionate to the allegations even if the same is admitted as true. According to the counsel for the petitioner, the other statutory authorities miserably failed to consider the above aspects of the petitioner's contention. 6. On the other hand, Sri Abraham Vakkanal, the learned Senior Counsel appearing for the 5th respondent emphatically submitted that the petitioner being a staff of the school, who is subordinate to the Headmaster, is bound to honour and comply with the lawful instructions issued by the Headmaster and that violation or disrespect or failure to comply with the above instruction will amount to misconduct. It is pointed out that in the school, there is no other non-teaching staff to carry out the work. It is also the case of the learned Senior wpc 34144/03 -:7:- Counsel that the enquiry was conducted by the departmental authority who is an experienced officer and the enquiry proceedings was completed as directed by this Court as per the judgment referred above. It is also pointed out that Ext.P5 show cause notice was issued in terms of Rule 75(11) of Chapter 14-A of the KER. According to the learned Senior counsel, the question of issuing the show cause notice as contemplated by Rule 75 (11) arises when the disciplinary authority is of the opinion that the proved charge attracts imposition of any of the penalties mentioned in item Nos.4 to 8 of Rule 65. On a reading of Ext.P5 would show that the same is strictly in accordance with the above procedure as contemplated by the Rules. It is also the case of the counsel that going by the report of the DEO it can be seen that, the Manager, the Headmaster and the delinquent employee were appeared before the DEO and their statements were recorded. According to the learned Senor Counsel, since the petitioner did not insist for the cross examination of wpc 34144/03 -:8:- the Headmaster and Manager, he cannot now say that no opportunity was given to him. It is also pointed out that the petitioner was also not subjected to cross examination by the Manager. Thus, according to the learned Senior counsel, the proceedings adopted by the DEO is fully in accordance with the proceedings contemplated by the relevant rules and there is no violation of the principles of natural justice. On the strength of the decision reported in Kerala Agricultural University v. S.Vasundhara ( 2006)(2) ILR (Ker.) 14) and St. Michael's College v. Andrews (2006(2) KLT Short notes 67 Case No.83), the learned counsel submitted that, when this Court exercises the jurisdiction under Article 226, it is not expected to interfere with the punishment awarded in a disciplinary proceedings since the jurisdiction is not an appellate jurisdiction over the disciplinary authorities. Therefore, the learned Senior counsel submitted that no interference is warranted. 7. I have carefully considered the arguments wpc 34144/03 -:9:- advanced by the counsel for the petitioner as well as the learned Senior counsel and also the learned Government Pleader. I have also scrutinized the available materials and documents produced. 8. It is a fact beyond dispute that after joining in service by the petitioner, right from 7.6.84, he was preparing the bill for salary of the staff of the institution till he was placed under suspension with effect from 8.3.99. It is also admitted by the petitioner that he had made representation before the Government through proper channel, seeking clarification regarding the duty connected with the preparation of bill. According to the petitioner, he was placed under suspension by serving Ext.P2 on the basis of the above approach of the petitioner as the same was not tolerable to the 5th respondent manager and Headmaster. As pointed out earlier, according to the petitioner, as per the Treasury Code, such a duty is imposed on the Headmaster, and if so, the failure on the part of the petitioner to do such work will not amount to misconduct or dereliction of duty. wpc 34144/03 -:10:- I am not proposing to enter into any opinion regarding those aspects and to come into a conclusion on merit, especially, when the matter requires reconsideration by the concerned respondents, in the light of the procedural as well as legal flaws involved with respect to the disciplinary proceedings. 9. Rule 75(6) of Chapter 14- A KER reads: “(6) The Inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Teacher shall be entitled to cross examine witnesses examined in support of the charges and to give evidence in person and to have such witnesses as may be produced, examined in his defence. The person presenting the case in support of the charges shall be entitled to cross examine the teacher and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material it shall record its reason in writing”. From the above it is crystal clear that the statue confers a right on the delinquent teacher/staff to cross examine witnesses examined in support of the charges and to give evidence in person and to have such witnesses as may wpc 34144/03 -:11:- be produced, examined in his defence. On examining the report of the enquiry officer, namely, the DEO, who is an experienced higher officer of the department, it can be seen that no such opportunity was given to any of the parties. In the report itself , it is specifically stated that during the enquiry, the Manager of the School and the delinquent employee and the Headmaster attended the enquiry. In the enquiry report, except the recital to the effect that “the Manager and the Headmaster of the school stated that the allegations levelled against Sri P.V.Devassy are true and correct” , there is no discussion as to what are the deposition or statement made by these witnesses. Going by the enquiry report, it appears that the main attempt was to analyze the counter statement of the delinquent employee. Though I have repeatedly perused Ext.P5 report, I find nothing stated therein to show the compliance of Rule 75(6) of KER. In this regard it is also relevant to consider the contention of the learned counsel for the petitioner on the basis of sub-rule 8 of Rule 75 of wpc 34144/03 -:12:- the KER. Sub-rule 8 of Rule 75 mandate that at the conclusion of the Inquiry, the Inquiry Authority shall prepare a report of the iquiry, recording its findings on each of the charges together with the reasons therefore . Sub-rule 9 shows that the records of inquiry shall contain the oral evidence taken in the course of inquiry and the documentary evidence considered in the course of the inquiry. In the records, there must be a report setting out the findings on each charges and the reasons therefore. On a perusal of the report filed by the DEO, I am of the view that the same is not in accordance with the mandate and procedure contemplated by Rule 75 of the KER. In ground No.E, it is specifically stated that the enquiry officer recorded the statement of the 5th respondent and the Headmaster of the school together in a separate room. The petitioner, at the time when the statements of the 5th respondent and the Headmaster of the school was recorded, was not allowed to cross examine the Manager and Headmaster. It is also stated that the statement was not only recorded in the absence of the petitioner but no opportunity was given to cross examine them also. The Senior Counsel for the 5th respondent submitted that the petitioner, though present, did not choose to cross examine the witnesses and therefore it cannot be wpc 34144/03 -:13:- contended that no opportunity was given. I am not prepared to accept that contention in the absence of any observation or finding or minutes regarding those aspects in the enquiry report of the DEO. The DEO being a statutory and departmental authority is well aware of Sub-rule 6 of Rule 75 and therefore it is for him to record the procedure in terms of the requirement of the above rules in the report. The enquiry report also contained no statement or observation in terms of the requirements of sub-rule 9 of Rule 75. In the light of the above facts, I am of the view that the Disciplinary proceedings, especially, the enquiry was conducted in gross violation of the principles of natural justice and statutory requirement and, hence, the entire proceedings has to be held as arbitrary and illegal in view of the salutary principles contained in Article 14 of the Constitution of India. The Statutory Authorities like the Deputy Director of Education, the Additional DPI and the Government have also failed to consider the above statutory irregularities and procedural violations and the denial of natural justice to the petitioner and, therefore, their orders are not sustainable, either in law or on facts involved in the case. 10. In the result, Exts.P3, P5, P8, P9, P10 and P12 are quashed and the DEO, the 4th respondent, is directed to conduct a wpc 34144/03 -:14:- fresh enquiry in accordance with law and procedure, ensuring effective opportunity to the petitioner in the enquiry and to complete the enquiry and disciplinary proceedings within 3 months from the date of receipt of a copy of this judgment which will be produced by the petitioner. The Petitioner is entitled to get subsistence allowance from 8.3.99 till the completion of the proceedings as directed above, after deducting the subsistence allowance if any already received. According to me, the petitioner is entitled to get reinstated in service as I have quashed Exts.P3, P5, P8, P9, P10 and P12, but the learned Senior Counsel for the 5th respondent submitted that another person has already been appointed to the post which was holding by the petitioner and, therefore, I am not ordering for the reinstatement of the petitioner. Therefore, the DEO is further directed to ensure that the disciplinary proceedings are completed within the time stipulated in this judgment. The Writ Petition is allowed to the above extent. V.K.MOHANAN, JUDGE kvm/- wpc 34144/03 -:15:- V.K.MOHANAN, J. O.P.No. JUDGMENT wpc 34144/03 -:16:- Dated:..