IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN THURSDAY, THE 25TH DAY OF NOVEMBER 2010/ WP(C).No. 33805 of 2010 (A) --------------------------- PETITIONER(S): -------------------- USHA LOUIS W/O.BERNABAS XAVIER, AGED 50 YEARS, HEADMISTRESS, LEO XIIITH HIGHER SECONDARY SCHOOL PULLUVILA-695 526.THIRUVANANTHAPURAM. BY ADVS.SRI.V.A.MUHAMMED SRI.T.V.VIJAYARAJAN RESPONDENT(S): -------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,THIRUVANANTHAPURAM-695 014. 3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM-695 001. 4. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA-695 121,THIRUVANANTHAPURAM-1 5. THE CORPORATE MANAGER, LEO XIIITH HIGHER SECONDARY SCHOOL,PULLUVILA THIRUVANANTHAPURAM-695 526. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-11-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33805/2010 APPENDIX PETITIONER'S DOCUMENTS: EXT.P1: COPY OF THE ORDER NO.VI/16172/09/DPI OF THE SECOND RESPONDENT. EXT.P2: COPY OF THE CHARGE MEMO ISSUED BY THE MANAGER. EXT.P3: COPY OF THE EXPLANATION OF THE PETITIONER. EXT.P4: COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN C.C.NO.252/2007. EXT.P5: COPY OF THE ORDER NO.21/09 OF THE MANAGER. EXT.P6: COPY OF THE ORDER NO.25033/A3/2010 G.EDN. OF THE GOVERNMENT. RESPONDENTS' DOCUMENTS: NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.33805 of 2010 --------------------------------------------- Dated this the 25th day of November, 2010 JUDGMENT The petitioner is working as the Headmistress of Leo XIIIth Higher Secondary School, Pulluvila. Some untoward incidents happened in the school in the year 2007. The Director of Higher Secondary Education made an enquiry and submitted report to the Government. Exercising the power under Section 12A(2) of the Kerala Education Act, the Deputy Director of Education placed the petitioner under suspension on 9.2.2009, pursuant to the direction issued by the Government. Thereafter, the Director of Public Instruction passed Exhibit P1 order dated 30.5.2009 directing the Manager to reinstate the petitioner in service. The relevant portion of Exhibit P1 order is extracted below : “During the hearing it was evident that Smt.Usha Louis is still retaining certain office records, office seal etc. with her. This WPC No.33805/2010 2 unauthorised possession of records cannot be tolerated. Manager, HS Pulluvila is hereby directed to reinstate Smt.Usha Louis in service only after returning the above documents to the present Higher secondary authority, pending finalisation of disciplinary action. Steps may be taken to finalise disciplinary action based on Deputy Director of Education's Enquiry Report without delay.” Accordingly, the petitioner was reinstated in service. 2. The Manager issued Exhibit P2 charge memo dated 23rd April 2009 to the petitioner. The following charges were framed against the petitioner : “(1) That you Smt.USHA LOUIS while working as H.M. of the school has used the seal of the Principal of the School in spite of the fact that Shri.Antony Morais has assumed Principal of the school. (2) That you while working as H.M. of the WPC No.33805/2010 3 school has not handed over the Official Seal and the Bill book to the Principal causing delay in payment of salary to the staff. (3) That you while working as H.M. of the school on 2.1.07 has not taken any step for the closure of the Main Gate after the beginning of the classes. (4) That you failed to report to the Police against the untoward event that happened on 2.1.2007. (5) That you failed to discharge her duties and thus committed negligence.” 3. The petitioner submitted Exhibit P3 reply to the memo of charges. The Manager passed Exhibit P5 order dated 17.9.2009 holding that there is no valid ground to impose any penalty on the petitioner and accordingly, she was exonerated. It was also held that the period of suspension shall be treated as period spent on duty. As regards the charges, the Manager held in Exhibit P5 as follows : WPC No.33805/2010 4 “As for the charges on seal etc. it is observed that the Higher Secondary section was started in the school during 1991 and thenceforth it has been denominated as a Higher secondary school with a separate identity. The seals were also made therefrom and they could not be changed every now and then. Smt.Usha Louis was functioning as Principal of the school since 31.3.2003. She was using the seals as a part of her official duties. When a new Principal assumed charge in the Higher Secondary Section he also made another seal and was making use of it. It appears that this resulted in some confusion which would have been avoided by mutual consensus. However that did not happen. The Principal vied for the seal used by Smt.Usha Louis for unknown reasons. The undersigned took possession of the seal from the HM and handed it over to the Principal and he appears to be satisfied. The whole issue ends there. However, I cannot split my school into two and name them separately as a Higher Secondary and high School as both are moulded as one entity right from 1991. Regarding the untoward incident occurred WPC No.33805/2010 5 during 2007 while Rev.Fr.Sanu Oseph was the Manager of the school the Headmistress had no role. It so happened primarily the misdemeanour due to misdemeanour of a lady H.S.S. teacher and not otherwise. The other charges are too silly which do not deserve any action at all.” 4. As per Exhibit P6 order dated 28.9.2010, the Government directed the Deputy Director of Education to take appropriate disciplinary action against the petitioner invoking Rule 75A of Chapter XIVA KER and to report compliance to the Government. In Exhibit P6, it was mentioned as follows : “Please refer to the above. The findings in the enquiry report of the DHSE are serious enough warranting stringent disciplinary action against Smt.Usha Louis. Hence the action of the Manager in exonerating the H.M. of all the charges, cannot be accepted.” Exhibit P6 is under challenge in this Writ Petition. WPC No.33805/2010 6 5. The petitioner was appointed as the Principal of the Higher Secondary School in 2003. One Antony Morais, who was working as Higher Secondary School Teacher, staked a claim for being appointed as Principal. The dispute between the petitioner and Antony Morais went up to Supreme Court. In the Special Leave Petition filed by the petitioner before the Supreme Court, Exhibit P4 interim order to maintain the status quo was passed. The dispute between the petitioner and Antony Morais resulted in various untoward incidents in the school. There was allegation that the petitioner did not hand over the seals and relevant registers to Antony Morais. It was also alleged that the Manager also sided with the petitioner and the Manager held that the petitioner cannot be found guilty on the allegations levelled against him. 6. The learned counsel for the petitioner submitted that the Government could initiate proceedings only by exercising the jurisdiction under Rule 92 of Chapter XIVA of the Kerala Education Rules. If so, the petitioner should have been heard WPC No.33805/2010 7 before taking a decision to invoke Rule 75A of Chapter XIVA. For the sake of convenience, Rule 75A of Chapter XIVA is extracted below: “75A. Disciplinary powers of the Government or the authorised Officer :- Notwithstanding anything contained in Rule 75, if a Manager does not initiate appropriate action against the teacher, within a month from the date of intimation as specified in Section 12(A) or after intimation of the disciplinary proceeding he is not completing the disciplinary proceedings within two months from the date of intimation of the disciplinary action, or if according to Government or the authorised officer the Manager dropped the disciplinary proceedings without sufficient grounds or imposed a penalty not proportionate to the gravity of charges proved then the Government or the authorised officer as the case may be shall take appropriate disciplinary action against the teacher concerned. But in extraordinary cases for reasons to be recorded in writing the Director may on the application of the Manager extend WPC No.33805/2010 8 the time allowed to the Manager to complete the disciplinary action. The procedure prescribed in Rule 75 shall mutatis mutandis be followed by the Government or the prescribed authority in the matter of imposing major penalties.” 7. The relevant portion of Rule 92 of Chapter XIVA reads as follows : “92. Revision:- [(1)] Notwithstanding anything contained in these rules the Government, may on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority in respect of matters contained in this Chapter which is made or is appealable under these Rules :- (a) confirm modify or set aside the order ; (b) impose any penalty or set aside, reduce confirm or enhance the penalty imposed by the order ; (c) remit the case to the authority which made the order or to any other authority WPC No.33805/2010 9 directing such further action or enquiry as they consider proper in the circumstances of the case or (d) pass such other order as they deem fit ; Provided that - (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry ; (ii) if the Government propose to impose any of the penalties specified in terms (iv) to (viii) of Rule 65 on a case where an inquiry be held and thereafter on consideration of the proceedings of such inquiry and after given the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit. Explanation:- For the purpose of this proviso and sub rule (2) the person concerned shall include the Manager of a School whose orders are sought to be revised by the WPC No.33805/2010 10 Government. (2) Nothing contained in the proviso to sub- rule (1) shall be deemed to require the Government to give an opportunity for personal hearing to the person concerned and it shall be sufficient if :- (i) Where the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or (ii) Where the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing within a period specified in the notice and the Government pass final orders in revision after consideration of such representation.” 8. On a reading of Rules 75A and 92, it is clear that the powers to be exercised under Rule 75A and Rule 92 are distinct and different. A revision under Rule 92 can be filed by the aggrieved party. Suo motu revision can also be taken by the WPC No.33805/2010 11 Government. The revisional jurisdiction relates to the matters specified in clauses (a) to (d) under Rule 92. Rule 75A contemplates an entirely distinct and different situation. Rule 75A can be invoked in the following cases : (i) If the Manager does not initiate appropriate action against the teacher as specified in Section 12A within one month. (ii) The Manager does not complete the disciplinary proceedings within two months from the date of initiation of the disciplinary action. (iii) The Manager dropped the disciplinary proceedings without sufficient grounds. (iv) The Manager imposed a penalty not proportionate to the gravity of the charges proved. 9. The power under Rule 75A could be exercised only after the Government or the authorised officer is satisfied that one of the conditions mentioned in Rule 75A exists. As regards WPC No.33805/2010 12 the dropping of the proceedings by the Manager, the authority exercising the power under Rule 75A must be satisfied that the dropping of the disciplinary action was without sufficient grounds. The satisfaction of the authority that the Manager dropped the proceedings without sufficient grounds is a sine qua non for the exercise of power under Rule 75A. A reading of Exhibit P6 does not disclose that such a satisfaction was arrived at by the Government before directing the Deputy Director of Education to invoke Rule 75A of Chapter XIVA of KER. Therefore, Exhibit P6 was passed without arriving at the satisfaction as contemplated under Rule 75A. 10. Under Rule 75 of Chapter XIVA, whenever an intimation is received from the authorised officer under Section 12(A), the Manager shall take action against the teacher. Definite charges shall be framed and communicated to him with the statement of allegations on which each charge is based. The teacher concerned shall be required to submit his written statement. The teacher should be permitted to peruse or take WPC No.33805/2010 13 extracts from the records pertaining to the case for the purpose of preparing the written statement unless the Manager for reasons to be recorded in writing refuse him such access for sufficient reasons. Sub rule (1) of Rule 75 provides that after the written statement is received within the time allowed, “The Manager may if he is satisfied that a formal enquiry should be held into the conduct of the teacher, order that a formal enquiry may be conducted”. The rest of the provisions in Rule 75 would apply, if a formal enquiry is required in the case. In such a situation, the Manager shall forward the records to the authority concerned. The inquiring authority has to conduct the inquiry and forward the record of inquiry to the Manager. The authority to impose penalty is the Manager. In the present case, the Manager was not satisfied that a formal enquiry should be held. The Manager held that “no valid ground to brand the Headmistress guilty and hence, she is exonerated.” Rule 75A uses the word “dropped”. Such an expression does not find in Rule 75. It is to be taken that if the Manager is not satisfied that a formal enquiry should be held as mentioned in Rule 75, such WPC No.33805/2010 14 an action amounts to dropping of all further action. Since the power to be exercised under Rule 75A has no relation to Rule 92, the contention raised by the petitioner that she should have been issued a notice and she should have been heard, is unsustainable. To take action under Rule 75A, the satisfaction of the authority is the required criterion. If the authority is satisfied that action should be taken under Rule 75A, appropriate proceedings shall be taken. The teacher or Headmistress would get an opportunity after the proceedings are initiated. It is not necessary to issue notice before taking a decision to initiate action invoking Rule 75A. I overrule the contention raised by the petitioner in this regard. 11. It is relevant to note that as per the order dated 30.5.2009, the Director of Public Instruction directed the Manager to reinstate the petitioner in service after the Headmistress returned the seal and documents. Though the order reinstating the petitioner may not be as such conclusive to hold that the power under Rule 75A cannot be exercised, the WPC No.33805/2010 15 circumstances in which reinstatement was ordered are also relevant in considering the question whether there was sufficient ground for dropping the proceedings by the Manager. In the order impugned, there is no indication that the Government took into account the grounds on which reinstatement was ordered and the conditions upon which the petitioner was reinstated. 12. For the reasons mentioned above, Exhibit P6 order is quashed. The Government would be free to reconsider the matter afresh and to take appropriate decision, if found necessary, in the light of the principles laid down above. The Writ Petition is allowed as above. K.T.SANKARAN JUDGE csl