IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 9312 of 2009(H) --------------------------------------- PETITIONER(S): ------------------------- K.JANARDHANAN KIDAVU, HSST ENGLISH, THIRUVANGOOR HIGHER SECONDARY SCHOOL, MOVERKANDY P.O. MELOOR, KOYILANDY, KOZHIKODE DISTRICT. BY ADV. MR.R.K.MURALEEDHARAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE MANAGER,THIRUVANGOOR HIGHER SECONDARY SCHOOL, THIRUVANGOOR, KOZHIKODE DISTRICT. 3. THE PRINCIPAL, THIRUVANGOOR HIGHER SECONDARY SCHOOL, THIRUVANGOOR, KOZHIKODE DISTRICT. *ADDL.R4 IS IMPLEADED: R4. REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, KOZHIKODE. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 25/03/2009 IN I.A.NO.4419/2009) R1 & ADDL.R4 BY SR. GOVERNMENT PLEADER SMT. T.B.REMANI R2 & R3 BY MR.KRB.KAIMAL, SENIOR ADVOCATE, MR.B.UNNIKRISHNA KAIMAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.9312/2009 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RT) NO.4177/08/G.EDN. DTD.18/09/2008. EXT.P2: COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT DTD. 6/10/2008. EXT.P3: COPY OF THE LETTER DTD. 28/10/2008 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE MEMO DTD. 10/12/2008. EXT.P5: COPY OF THE REPLY SUBMITTED DTD. 12/12/2008. EXT.P6: COPY OF THE LETTER DTD. 6/01/2009. EXT.P7: COPY OF THE REPLY DTD. 14/01/2009. EXT.P8: COPY OF THE ORDER NO.M1/2009 DTD. 17/02/2009. EXT.P9: COPY OF THE NOTICE DTD. 20/02/2009. EXT.P10: COPY OF THE LETTER DTD. 20/03/2009 SUBMITTED TO THE 3RD RESPONDENT AND THE REPLY GIVEN BY THE 3RD RESPONDENT. EXT.P11: COPY OF THE REPLY GIVEN BY HER TO THE LETTER GIVEN BY ME PERMITTING ME TO JOIN FOR DUTY AND SIGN IN THE ATTENDANCE REGISTER DTD. 24/03/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.9312 of 2009 -------------------------------------- Dated 25th March, 2009 JUDGMENT Heard Sri.R.K.Muralidharan, the learned counsel appearing for the petitioner, Smt.T.B.Remani, the learned Government Pleader appearing for the first respondent and Sri.K.R.B.Kaimal, the learned Senior Advocate appearing for respondents 2 and 3. 2. The petitioner, a Higher Secondary School Teacher in the third respondent's school, was placed under suspension, based on a complaint filed by a minor girl student that she was molested by the petitioner, by order of suspension passed by the Manager on 7.7.2004. A preliminary enquiry into the grounds of suspension was conducted and the Manager was permitted to continue the suspension beyond 15 days. Later, a memo of charges was served on the petitioner and a formal enquiry was conducted by the Deputy Director of Higher Secondary Education, who was in charge of Joint Director (Academic) of the Higher Secondary Education Department. After the report of enquiry was received, the Manager issued a show cause notice dated 1.1.2008 calling upon the petitioner to show cause why the punishment of removal from service should not be imposed on him. Challenging the findings in the enquiry report and the show cause notice, the petitioner filed a revision WP(C).No.9312/2009 2 petition before the Government. He thereafter filed W.P.(C)No.7019 of 2008 in this Court. By judgment delivered on 28.2.2008 this Court disposed of the said writ petition with a direction to the Government to consider the revision petition filed by the petitioner and pass orders thereon after affording him and the Manager an opportunity of being heard. 3. The Government accordingly heard the petitioner and the Manager. During hearing, the petitioner expressed willingness to voluntarily retire from service. The Manager accepted the said offer, subject to the condition that he will finalise the disciplinary proceedings taking note of the offer made by the petitioner to voluntarily retire from service. The Government accepted the offer made by the petitioner and its acceptance by the Manager and issued Ext.P1 order dated 18.9.2008 directing the Manager to finalise the disciplinary proceedings initiated against the petitioner immediately on receipt of his application for voluntary retirement. 4. Pursuant to the directions issued by the Government in Ext.P1, the petitioner forwarded to the Manager Ext.P2 letter dated 6.10.2008 addressed to the Director of Higher Secondary Education seeking permission to voluntarily retire from service with effect from 12.1.2009. On receipt of Ext.P2, the Manager sent Ext.P3 letter dated WP(C).No.9312/2009 3 28.10.2008 informing the petitioner that his request for voluntary retirement from service has been received and is under consideration and that a decision will be taken in due course as per the rules and regulations in force. The Manager thereafter issued Ext.P4 memo dated 10.12.2008 setting out the history of the case and calling upon the petitioner to submit a petition requesting him to take a lenient view in the matter within seven days from the date of receipt of the memo. It was also stated that if no reply is received from the petitioner within the stipulated time, disciplinary proceedings will be finalised on the basis that he has no such request. 5. The petitioner thereupon submitted Ext.P5 letter dated 12.12.2008 pointing out that as he has applied for voluntary retirement, necessary steps may be taken to finalise the disciplinary proceedings sympathetically as ordered by the Government without delay. The Manager thereupon sent Ext.P6 letter dated 6.1.2009 informing the petitioner that he has to apply for voluntary retirement in the prescribed form and that only such an application can be forwarded to the competent authority. In the said letter, the Manager also informed the petitioner that his request for voluntary retirement can be considered only after the disciplinary proceedings are finalised and that he had taken a lenient view in the matter in view of the offer WP(C).No.9312/2009 4 made by the petitioner to voluntarily retire from service. The petitioner thereafter sent Ext.P7 letter dated 14.1.2009 requesting the Manager to finalise the disciplinary proceedings immediately. The Manager thereupon issued Ext.P8 proceedings dated 17.2.2009 finalising the disciplinary proceedings initiated against the petitioner by awarding the minor punishment of barring of two increments without cumulative effect. The Manager also issued Ext.P9 show cause notice dated 20.02.2009 calling upon the petitioner to show cause why the period of suspension should not be regularised as period spent out of duty and also to show cause why the pay and allowances that he is entitled to during the period of suspension should not be limited to 80% of the pay and allowances less the subsistence allowance already drawn by him. The Manager also ordered that the period of suspension will be reckoned for the purpose of pensionary benefits. Thereafter, the petitioner submitted Ext.P10 letter dated 20.03.2009 to the Principal in charge of the school requesting that he may be reinstated in service in view of Ext.P8 proceedings. The petitioner states that copies of Exts.P8 and P9 were served on him only on 19.3.2009 and immediately thereafter he submitted Ext.P10 letter dated 20.03.2009 to the Principal in charge of the school requesting for permission to rejoin duty and sign the attendance register. This WP(C).No.9312/2009 5 writ petition was filed on 23.03.2009 seeking the following relief: “Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd & 3rd respondents to permit the petitioner to join for duty as HSST English in Thiruvangoor Higher Secondary School and permit him to sign in the attendance register till the date of superannuation.” The petitioner had also prayed for an interim order directing respondents 2 and 3 to permit him to join duty and sign the attendance register. 6. When this writ petition came up for admission on 23.3.2009, I passed the following interim order: “Responders 2 and 3 shall, if Ext.P8 order has been passed by the Manager finalising the disciplinary action against the petitioner, reinstate him in service forthwith and in any case, on or before 25.3.2009.” The petitioner has today filed I.A.No.4419 of 2009 to implead the Regional Deputy Director of Education as the additional fourth respondent and I.A.No.4420 of 2009 to take action against the Manager for willful violation of the interim order passed by this court. 7. Sri.K.R.B.Kaimal, the learned Senior Advocate appearing for respondents 2 and 3 submits that though the petitioner was guilty of serious misconduct which should have entailed his dismissal from service, taking note of the willingness expressed by him to voluntarily WP(C).No.9312/2009 6 retire from service, the Manager took a lenient view and decided to impose only the punishment of barring of two increments without cumulative effect. The learned Senior Advocate submits that Ext.P1 order is the outcome of the willingness expressed by the petitioner to voluntarily retire from service and its acceptance by the Manager, subject to the condition that the Manager will have the freedom to finalise the disciplinary proceedings notwithstanding the offer made by the petitioner to voluntarily retire from service. The learned Senior Advocate submits that the petitioner cannot in view of the seriousness of the charge and his willingness to voluntarily retire from service seek re-instatement in service. The learned Senior Advocate also submitted that the Manager has forwarded the application for voluntary retirement submitted by the petitioner together with a copy of Ext.P8 to the Director of Higher Secondary Education on 24.2.2009. 8. What the petitioner now contends is that notwithstanding his decision to voluntarily retire from service with effect from 12.1.2009, in view of the finalisation of the disciplinary proceedings, the Manager is bound to reinstate him in service. I am afraid, on the terms of Ext.P1 and the gravity of the charges levelled against him, the petitioner cannot seek reinstatement in service. The charge found against the petitioner is that he molested a girl student. WP(C).No.9312/2009 7 In the ordinary course, the Manager would have imposed on him a very severe punishment. However, taking note of the willingness expressed by the petitioner to voluntarily retire from service, the Manager decided to impose on him only a minor punishment. In view of the willingness expressed by the petitioner to voluntarily retire from service as a result of which alone a minor punishment was imposed on him, I am of the opinion that petitioner cannot claim reinstatement in service taking advantage of the fact that the Manager has finalised the disciplinary action by imposing on him a minor punishment. The writ petition accordingly fails and is dismissed. 9. After this writ petition was dismissed and before the judgment dismissing this writ petition was signed, the learned counsel for the petitioner requested that the case may be posted for further hearing. As requested by the learned counsel for the petitioner, the writ petition was posted for being spoken to on 31.3.2009. The learned counsel appearing for the petitioner submitted that the official respondents may be directed to pass orders on the application for voluntary retirement submitted by the petitioner and forwarded by the Manager on 24.2.2009 to the Director of Higher Secondary Education. The learned Senior Advocate appearing for respondents 2 and 3 did not oppose the said request. Rule 56(v) of Part III of the Kerala WP(C).No.9312/2009 8 Service Rules which deals with voluntary retirement states that permission to retire shall be given in all cases except those in which disciplinary proceedings are pending for imposition of a major penalty or the disciplinary authority, having regard to the circumstances of the cases is of the view that the imposition of the penalty of removal or dismissal from service would be warranted or in which prosecution is contemplated or may have been launched in a Court of Law against the officer. Rule 56(1) stipulates that the employee seeking voluntary retirement, shall give three months notice before the date on which he wishes to retire. However, on the terms of Rule 56 (v) of Part III of the Kerala Service Rules, final orders on the application could have been passed only after the Manager finalised the disciplinary action and forwards the same to the Director of Higher Secondary Education. The disciplinary action was finalised only by Ext.P8 order passed on 17.2.2009. Therefore, it cannot be said that the Director of Higher Secondary Education was unreasonably withholding permission to retire from service voluntarily. In view of the order passed by the Manager on 17.2.2009 finalising the disciplinary action, the Director of Higher Secondary Education will necessarily have to pass final orders on Ext.P2. WP(C).No.9312/2009 9 I accordingly direct the Director of Higher Secondary Education to pass final orders on the petitioner's application for voluntary retirement, within two weeks from the date of receipt of a certified copy of this judgment. P.N.RAVINDRAN Judge TKS