IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 36201 of 2009(U) ------------------------------------- PETITIONER(S): ----------------------- LESLIE BIVEIRA, CORPORATE MANAGER, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, KOCHI, ERNAKULAM. BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE BY ADVS. MR.PAUL ABRAHAM VAKKANAL MR.DIJO SEBASTIAN RESPONDENT(S): ------------------------ 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. JAMES PINHEIRO, SECRETARY, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, PERUMANOOR, COCHIN, RESIDING AT CHEENIKAPARAMBIL HOUSE, "NEST", P.O.KORATTY, THRISSUR DISTRICT. 3. WATSON RODRIGUES, PANAGAYIL HOUSE, VARAPUZHA, ERNAKULAM DISTRICT. 4. CHARLES DIAS, FORMER SECRETARY, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, PERUMANOOR, COCHIN. 5. CHARLES RODRIGUES, A2, JOEMER SREENIYAM, PALIYAM ROAD, COCHIN-16. R1 BY GOVT. PLEADER MR.SANDESH RAJA R2 & R3 BY ADVS. MR.P.K.SURESH KUMAR, SMT.P.JAYALAKSHMI. R4 & R5 BY MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.S.A.ANAND, MR.PETER JOSE CHRISTO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36201/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPLAINT AGAISNT H.M. DTD. 2.9.05. P2:- COPY OF THE PROCEEDINGS OF MANAGER, DT. 23.9.05. P3:- COPY OF THE LETTER FROM COMPLAINT DTD. 4.10.05. P4:- COPY OF THE LETTER FROM DELINQUENT H.M. DTD. 4.10.05. P5;- COPY OF THE PROCEEDINGS OF MANAGER DTD. 7.10.05. P6;- COPY OF THE CHARGE MEMO WITH STATEMENT OF ALLEGATIONS DTD. 14.12.05. P7:- COPY OF THE ORDER NO.V2-41272/07/DPI, DTD. 23.7.07. P8:- COPY OF THE JUDGMENT IN WPC. 25930/07 (J) DTD. 24.8.07. P9:- COPY OF THE AFFIDAVIT FILED IN WA. 2249/07 OF THIS HONOURABLE COURT DTD. 27.1.09. P10:- COPY OF THE DIVISION BENCH JUDGMENT DTD. 28.1.09 IN WA. 229/07. DTD. 28.1.09. P11:- COPY OF THE HEARING NOTE DTD. 4.4.09. P12:- COPY OF THE LEGAL OPINION OF THE LEGAL ADVISOR TO THE ENQUIRY COMMISSIONER DTD. 22.12.07. P13:- COPY OF THE ORDER SERVED ON THE PETITIONER DTD. 7.12.09. P14:- COPY OF THE JUDGMENT IN THE CMA. NO. 5/2008. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE PETITION DTD. 20.2.09 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE DIRECTOR, VIGILANCE AND ANTICORRUPTION BUREAU, THIRUVANANTHAPURAM. R3(b):- COPY OF THE PETITION DTD. 21.3.09 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE HOME SECRETARY, GOVT. OF KERALA. R5(a):- COPY OF THE ORDER IN CRL.MC. NO.1196/09 DTD. 9.11.09. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 36201 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2010 J U D G M E N T The petitioner is the Corporate Manager of an aided school. Petitioner is challenging Ext.P13 order, whereby the Director of Public Instruction has, in exercise of powers conferred on him under Rule 7 of Chapter III of the Kerala Education Rules, disqualified the petitioner to hold the post of Manager of his school and directed the educational agency to appoint a suitable person as the new Manager. Earlier the Director of Public Instruction, in view of registration of a vigilance case against the petitioner, passed Ext.P7 order temporarily disqualifying the petitioner from managership in terms of Rule 7 of Chapter III of KER. That was challenged by the petitioner in W.P.(C) No.25930/2007 in which a learned Single Judge of this court directed the DPI to pass fresh orders after hearing the petitioner treating Ext.P7 as a show cause notice. That W.P.(C)No. 36201 of 2009 -2- judgment was taken in appeal before the Division Bench of this court in Writ Appeal No.2249/2007 in which the Division Bench of this court held thus: “9. We notice that the ground taken in Ext.P7 is not a ground available under Rule 7(1). But, based on the materials produced before the D.P.I., if the said officer feels that the Manager should be disqualified on the ground of corruption, notwithstanding the fate of the vigilance case, the D.P.I. can proceed to disqualify the appellant. While proceeding so, if the D.P.I. feels that it is necessary to temporarily disqualify him, pending finalisation of the proceedings against him, the same can also be done. But, we notice that the above jurisdictional facts are not available in this case. Ext.P7 is not issued based on the decision of the Director to disqualify the appellant, in view of the corruption charges against him. So, the learned Single Judge has rightly ordered to treat Ext.P7 only as a notice. The appellant will be free to raise all his contentions before the D.P.I. The said officer, after hearing both sides, shall pass appropriate orders in the light of the above observations made by us, within six weeks from the date of production of a copy of this judgment. Till the matter is decided by the D.P.I., the appellant will be entitled to continue as Manager, provided the Educational Agency does not cancel his appointment. 10. The party respondents herein, who oppose the continuance of the appellant as Manager, may be given a chance to represent their case by the D.P.I. But, for giving them a chance, the hearing shall not be adjourned. The party respondents who want to be heard, may file representations before the D.P.I., within two weeks from today.” 2. It is pursuant to that direction Ext.P13 order has been passed which reads as follows: “The Hon'ble High Court in the Judgment cited as reference (1) ordered that Director of Public Instruction, Thiruvananthapuram should hear both sides involved in the dispute regarding Manager of Central Board of Anglo Indian Education and to take a decision on the disqualification of the Manager. W.P.(C)No. 36201 of 2009 -3- As per reference cited (2) all the parties were heard in person on 04.04.2009. Arguments put forth by all the concerned were looked into in detail. Statements submitted were examined in detail. Meanwhile Director, Vigilance and Anti Corruption Bureau by reference cited (3) sought sanction to prosecute Sri. Leslie Biveira, Corporate Manager. After finding that the charges are of a serious nature, necessary sanction has been accorded by the undersigned to prosecute Sri. Leslie Biveira Chairman and Corporate Manager, Central Board of Anglo Indian Education. In the above mentioned circumstances, by the powers conferred under Rule 7 of Chapter III KER, Sri. Leslie Biveira, Corporate Manager, Central Board of Anglo Indian Education, Kochi is hereby disqualified to hold the post of Manager of Central Board of Anglo Indian Education with immediate effect. The Educational Agency shall appoint a suitable person as the new Manager.” The petitioner is challenging the said order. According to the petitioner under Rule 7 of Chapter III of K.E.R. there is no provision for disqualification of manager on the ground of sanction for prosecution without finding that the manager of guilty of any of the conducts enumerated therein which is absent in Ext.P13. 3. I have heard the parties. On a reading of Ext.P13, I am not satisfied that the DPI has applied his mind to the issue involved in the matter. In Ext.P13 the DPI has only held that since sanction to prosecute the manager has been granted by the Vigilance and Anti Corruption Bureau, the W.P.(C)No. 36201 of 2009 -4- petitioner is disqualified to hold the post of manager. I am not satisfied that, that is what the Division Bench has directed the DPI to do. Irrespective of the criminal proceedings pending, the DPI is bound to consider whether any of the grounds mentioned in Rule 7 of Chapter III of KER exist to arrive at the conclusion that the manager is liable to be disqualified, which has not been done by the DPI in this case. For that reason alone Ext.P13 is liable to be quashed. I do so. I direct the DPI to pass fresh orders in the matter. While doing so, the DPI shall enter an independent finding on his own, considering the materials before him as to whether any of the grounds mentioned in Rule 7 of Chapter III of KER exist to disqualify the petitioner from managership and pass fresh orders giving specific reasons supporting his conclusions. The DPI can also conduct his own enquiry regarding the matter as contemplated in the Rule. This shall be done as expeditiously as possible, at any rate within a period of six weeks from the date of receipt of a copy of this judgment, W.P.(C)No. 36201 of 2009 -5- after affording an opportunity of being heard to the petitioner and respondents 2 to 5. 4. The parties shall appear before the DPI on 1st March 2010, on which day the DPI shall either hear the parties on that day or give an adjourn date for hearing, on which date the matter shall be finally heard and orders passed as directed above. I make it clear that, I have not considered any of the contentions of the parties on merits and it is entirely for the DPI to take a decision on his own, considering the materials before him and conducting appropriate enquiry as stipulated in Rule 7 of chapter III KER. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/