IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 23662 of 2010(G) --------------------------------------- PETITIONER: ------------------- G.GEETHA BALI, P.A. TO DISTRICT EDUCATIONAL OFFICER, ERNAKULAM (NOW UNDER ORDER OF SUSPENSION). BY ADVS. SRI.ELVIN PETER P.J, SMT.POOJA SURENDRAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, VYPEEN, ERNAKULAM DIST. 4. THE MANAGER, ST.MARY'S U.P.SCHOOL, NJARAKKAL, ERNAKULAM DIST. *ADDITIONAL R.5 IMPLEADED: 5. SRI. V. ANIRUDHAN, GOVT. DEPUTY SECRETARY, GENERAL EDUCATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. *IS IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS PER ORDER DATED 02/08/2010 IN I.A. NO. 10703/10. R1 TO R3 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI, R4 BY ADV. SRI.V.M.KURIAN, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, ALONG WITH W.P.(C). NO. 23663 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23662/2010-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 20/09/2004 IN W.P.(C).NO.11114/2004 ETC. OF THIS HON'BLE COURT. EXT.P.2: COPY OF THE ORDER DTD. 11/12/2007 IN WRIT APPEAL NO. 2892/2007 OF THIS HON. COURT. EXT.P.3: COPY OF THE DECLARATION GIVEN BY SMT. K.A. MARY. EXT.P.4: COPY OF THE JUDGMENT DTD. 07/07/08 IN CONTEMPT CASE NO. 576/2008 OF THIS HON. COURT. EXT.P.5: COPY OF THE JUDGMENT DTD. 11/07/2008 IN W.P.(C).NO.20464/2008 OF THIS HON. COURT. EXT.P.6: COPY OF THE ORDER, G.O. DTD. 16/06/2010 ISSUED BY THE R.1. EXT.P.7: COPY OF THE ORDER DTD. 31/01/2007 AND POSTED TO AEO'S OFFICE VYPEEN. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE REPORT. EXT.R1.B: COPY OF THE ENQUIRY REPORT. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 23662/2010-G, 23663/2010-G, 23733/2010-N & 24122/2010-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2010. JUDGMENT These writ petitions have been filed challenging Ext.P6 order by which the petitioners have been placed under suspension pending enquiry. 2. This Court, while admitting the writ petitions, passed an interim order dated 20.8.2010 staying Ext.P6 and directing the respondents to reinstate the petitioners in the respective offices forthwith. Thereafter, a petition to vacate the order was filed, which was dismissed by order dated 20.9.2010. The interim order was taken up in W.A. No.1649/2010 and connected cases, wherein the Division Bench directed the writ petitions to be posted for hearing and accordingly they have been heard. 3. Heard parties. 4. The petitioner in W.P.(C) No.23662/2010 is the P.A. to District Educational Officer, Ernakulam, who was the former Senior Superintendent, in the office of the Asst. Educational Officer, Vypeen, the petitioner in W.P. (C) NO.23663/2010 is the Assistant Educational Officer, Vypeen, the petitioner in W.P.(C) No.23733/2010 is working as Junior Superintendent in wpc 23662, 23663, 23733 & 24122/2010 2 the Office of the District Educational Officer, Ernakulam. He had worked as Clerk in the Office of the Asst. Educational Officer, Vypeen and was transferred from the said office in the year 2000 to the Office of the Asst. Educational Officer, Mattancherry. The petitioner in W.P.(C) No.24122/2010 is working as U.D. Clerk in the Office of the Assistant Educational Officer, Vypeen. 5. A reading of Ext.P6 order shows that the order of suspension has been passed on the basis of a report forwarded by the Director of Public Instruction dated 28.4.2010. The operative portion of the order states that “to deny due promotion to Smt. K.K. Lalitha, as the Headmistress of St. Mary's U.P. School, Njarakkal, the officers of the Office of the Asst. Educational Officer joined together with the Manager, tried to down grade the post of Smt. Lalitha as a part-time one, they have created false documents and filed wrong affidavits before this Court and later, in violation of the order of stay and the judgment of this Court approved the appointment and accordingly caused loss to the Government. 6. The contentions raised by the petitioners are practically common in nature. It is mainly pointed out that with regard to the dispute regarding the appointment of the Headmistress to the vacancy which arose on wpc 23662, 23663, 23733 & 24122/2010 3 1.6.2001, two writ petitions were filed before this Court; one by the Manager of St. Mary's U.P. School, Njarakkal and another by one of the claimants, Smt. K.K. Lalitha as W.P.(C) Nos.11114/2004 and 26374/2004. They were disposed of by a common judgment, a copy of which has been produced as Ext.P1. It is pointed out that this Court after considering various aspects including the claims of the respective claimants, viz. Smt. K.K. Lalitha and Smt. K.A. Mary, found in favour of Smt. K.A. Mary and accordingly directed the competent educational officer to issue orders approving the appointment of Smt. K.A. Mary, with effect from the date on which such appointment was made. It was also held that Smt. K.A. Mary will also be entitled to all benefits consequent on such approval on the strength of the judgment. There was a further direction to release all monetary benefits and retiral benefits refixed accordingly, within the time limit fixed by this Court in the said judgment. 7. As evident from para 3 of the judgment, both the teachers have retired from service as on the date of the said judgment. The matter is now pending in Writ Appeal before this Court in W.A. No.2892/2007 filed by Smt. K.K. Lalitha, wherein Ext.P2 interim order has been passed to the effect that the benefit given to the 6th respondent therein, viz. Smt. K.A. wpc 23662, 23663, 23733 & 24122/2010 4 Mary will be subject to the result of the appeal. Smt.K.A. Mary later filed C.C.C. No.576/2008, evidently for disobedience of the judgment regarding the non disbursal of the benefits and after getting a declaration from her, a copy of which is produced as Ext.P3, the retirement benefits were released to her. In the declaration given by her, it is stated that she will refund the entire amount of pay and allowances if the Writ Appeal is ultimately allowed. 8. Smt.K.A. Mary retired from service on 31.3.2002 and Smt. Lalitha retired from service on 31.3.2006. It appears that during different periods after the retirement of Smt. K.A. Mary, three different persons were appointed as Headmistress of the school, viz. Smt.E.A. Philomina, Smt. Gracy K. Francis and Smt. Mariamma George Mampilly. Since the approval of their appointments did not materialise, they filed W.P.(C) No.20464/2008 which was disposed of by Ext.P5 judgment. This Court disposed of the writ petition with a direction to the Asst. Educational Officer to consider the proposal for appointment of the petitioners therein as Headmistress for the respective periods and pass appropriate orders. It was made clear that the order so passed shall be subject to the result of the pending Writ Appeal filed by Smt. K.K. Lalitha. Direction No.3 therein is wpc 23662, 23663, 23733 & 24122/2010 5 to the effect that “the Assistant Educational Officer, Vypeen shall dispose of the matter within a period of two months after affording an opportunity of being heard to the petitioners, the Manager and any other affected person.” Thereafter, the appointments have been approved, but subject to the result of the Writ Appeal and after getting declarations from them that they will refund the amount if ultimately the Writ Appeal is allowed. These facts are not in dispute. 9. Therefore, the contentions raised by the petitioners evidently is that in view of the pendency of the Writ Appeal, the approvals made are only subject to the result of the Writ Appeal. Payments have also been made accordingly and that too, after getting declarations. 10. The petitioners in all these writ petitions have got a further case that even on the crucial date in the year 2001, they were not in the particular office, i.e. the Office of the Asst. Educational Officer also. Ext.P8 in W.P. (C) No.23663/2010 is the order by which the petitioner in the said writ petition was posted as the Assistant Educational Officer, Vypeen. The said order is dated 29.5.2007. She is serial No.64 therein. In W.P.(C) No.23662/2010, along with I.A. No.13797/2010 the petitioner has produced Ext.P7 order which shows that the petitioner therein was transferred and wpc 23662, 23663, 23733 & 24122/2010 6 posted to the Office of the Asst. Educational Officer, Vypeen as per order dated 31.1.2007. Along with I.A. No.13808/2010 the petitioner in W.P.(C) N0.24122/2010 produced Ext.P7 order by which she was transferred and posted to Office of the Asst. Educational Officer, Vypeen, which is dated 9.5.2008. She took charge on 24.5.2008. The petitioner in W.P.(C) No.23733/2010 was working as a Clerk in the Office of the Asst. Educational Officer, Vypeen for the period from 25.1.1994 to 22.5.2000. It is his contention that on the date of occurrence of the vacancy of Headmistress in the school in question, he was not there in the office, evidently. 11. It is therefore submitted that the conclusions arrived at by the Government while suspending the petitioners from service, that they have joined the Manager to convert the post of Smt. Lalitha as part-time, have created false documents, filed wrong affidavits before this Court and the action taken to disburse the salary, etc. are in violation of the order of stay and the judgment of this Court, are not correct. 12. The judgment Ext.P1 shows that various aspects have been considered with respect to the details of service and the eligibility for promotion in respect of Smt. Lalitha. This Court found that Smt. Lalitha wpc 23662, 23663, 23733 & 24122/2010 7 was not entitled to be appointed as Headmistress, especially in the light of the fact that she was not to be treated as a member of the staff of the school. This conclusion is rendered in para 17 of the judgment. Evidently, this Court directed the release of retirement benefits as well as other monetary benefits to Smt. K.A. Mary and even though in the Writ Appeal filed by Smt. Lalitha an interim order was passed, it was specifically made clear that the benefit given to the 6th respondent (Smt. K.A. Mary) will be subject to the result of the appeal. Therefore, there was no order restraining the authorities, viz. the Asst. Educational Officer or the District Educational Officer to disburse the benefits. When the Contempt petition was filed, evidently the officer had to comply with the judgment also. Therefore, it is only after the Contempt petition was filed, the benefits were disbursed, that too after getting a declaration from the former Headmistress, Smt. K.A. Mary that she will refund the entire amount if the Writ Appeal is ultimately allowed. Evidently, therefore, if the Writ Appeal is allowed in favour of Smt. K.K. Lalitha, Smt. Mary will have to refund the entire amount received. It is therefore clear that the view taken in Ext.P6 that the amounts have been disbursed in violation of the judgment of this Court and the interim order, cannot be sustained at all. In Ext.P1 judgment, the wpc 23662, 23663, 23733 & 24122/2010 8 Government is a party also. 13. The next question is whether the allegation that the officers have joined together to create documents to show that Smt. Lalitha was only a part-time teacher, is correct. Learned counsel for the petitioners submitted that this Court has considered the staff fixation orders which was not under challenge anywhere. Accordingly a conclusion was arrived at in Ext.P1 judgment. It is further pointed out that it is up to the appellant in W.A. No.2892/2007 to challenge the conclusions in the judgment and at any rate, it cannot be said that the petitioners have joined to create any documents to deny her rights. Evidently, in the light of the fact that the petitioners in W.P.(C) Nos.23662/2010, 23663/2010 and 24122/2010 have not been there in the office even at the time when the staff fixation orders were issued, those cannot be taken individually or collectively against them. With regard to the filing of affidavits also before this Court, they had no role to play, because the officers who were manning the office at that time, alone would have filed affidavits. Therefore, learned counsel for the petitioners is well founded in submitting that even on a cursory reading of the order itself, it can be seen that those allegations cannot at all be justified. 14. True that in Ext.R1(a) various aspects have been pointed out by wpc 23662, 23663, 23733 & 24122/2010 9 the Enquiry Officer for consideration of the higher authorities based on which the disciplinary enquiry has been ordered. Even with regard to the role of the petitioner in W.P.(C) No.23733/2010, the only reference in Ext.R1(a) in para 2 of internal page 2 is that in the staff fixation order for the year 1998-1999 there appears to be some corrections in the draft in his handwriting. 15. I need not go into such matters in detail, because of the pendency of the Writ Appeal, except to observe that such a report automatically could not have led to an order like Ext.P6 and that too alleging forging of documents, etc. With regard to the scope of the power of the authority to order suspension, this Court in Surendran K. v. Government of Kerala and others (ILR 2008 (3) Ker. 587) has laid down the relevant principles in para 4 thus: “It is well-settled that for every allegation of misconduct an employee need not be suspended pending enquiry. It is true that usually this Court will not interfere with an order suspending an employee pending enquiry. The power to suspend an employee should be exercised with caution and care as an order of suspension pending enquiry may put the employee into shame and humiliation. Of course, if the continuance f the employee in the same place affects the disciplinary proceedings, the employer can suspend the wpc 23662, 23663, 23733 & 24122/2010 10 employee. Whether an employee should be suspended pending enquiry will depend various circumstances. Suspension pending enquiry though cannot be considered as a punishment, it cannot be disputed that it causes real hardship to an employee. The stigma attached cannot be ignored. The object in placing an employee under suspension pending enquiry is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or the charge against the employee. If he is allowed to continue on duty, there may be occasion for tampering with the evidence so that the investigation cannot be successfully conducted. The power to suspend is discretionary. There should be material to justify the suspension. The order should be free from the taint of mala fides, arbitrariness and extraneous considerations. Subjective satisfaction regarding suspension should be based on objective considerations and relevant circumstances. The suspension order should be sparingly passed in compelling circumstances.” Even though suspension cannot be treated as a punishment, it will affect the reputation of the officers and will necessarily put them in hardships also. When an order of suspension is issued for reasons even prima facie not supportable and without any application of mind to the circumstances, it will evidently be a case where there is total abuse of the power conferred on the authority concerned. Those are circumstances wherein this Court has held, as shown above, that the orders cannot be supported in the eye of law. wpc 23662, 23663, 23733 & 24122/2010 11 16. Learned counsel appearing for Smt. Lalitha submitted that she had filed a complaint with regard to various aspects concerning her appointment, approvals, etc. But since the entire matter is open for consideration in the Writ Appeal, she will have to urge contentions in the Writ Appeal. In that view of the matter, I am not going into the details of her contentions with regard to her rights, etc. for promotion to the post of Headmistress. 17. Judged in the light of the above principles, I am of the view that the order Ext.P6 cannot be sustained. Therefore, the writ petitions are allowed. The impugned order in all the writ petitions, Ext.P6 is quashed. There will be a direction to the first respondent to reinstate the petitioners in the respective offices from which they were placed under suspension and appropriate orders will be passed within a period of two weeks from today. No costs. (T.R. Ramachandran Nair, Judge.) kav/