IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 36112 of 2007(Y) PETITIONER(S): T.V.PARVATHI AMMA, MANAGER, THAZHAKALARI U.P.SCHOOL, AGED 82 YEARS, W/O T.K.GOPALAN NAIR, SREE NILAYAM, MADATHIL HOUSE, POST IRINGAL, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S RESPONDENT(S): 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT EDUCATION OFFICER, BADAGARA, KOZHIKODE. 3. THE ASST. EXECUTIVE OFFICER, BADAGARA, KOZHIKODE. (CORRECTED) 4. RAMACHANDRAN K.K., ASST. TEACHER (UNDER SUSPENSION), RESIDING AT CHARUTHA, KUTTOTI KEEZHIL, BADAGARA, CALICUT. THE NAME OF THE 3RD RESPONDENT IS CORRECTED AS: THE ASSISTANT EDUCATIONAL OFFICER, BADAGARA, KOZHIKODE – AS PER ORDER IN I.A.16556/07 5. K.P. SURENDRAN, S/O. KELAPPAN, PERINGATTUMUTTATH, IRINGAL P.O., VADAKARA. ADDL. R5 IS IMPLEADED AS PER ORDER DT. 4-11-2008 IN I.A. 13835/08. ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM FOR R4 GOVERNMENT PLEADER SRI.P.A.HARISH FOR ADDL.R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1/7/2010, ALONG WITH WPC NO. 4798 OF 2008 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 36112/2007. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF COMPLAINT. EXT.P1(a) DO. DO. EXT.P2 COMPLAINT DT. 8-2-2006 EXT.P3 ORDER DT. 15-2-2006. EXT.P4 MEMO OF CHARGES DT. 27-2-2006. EXT.P5 ORDER DT. 1-3-2006. EXT.P6 TRUE COPY OF COMPLAINT. EXT.P7 EXPLANATION DT. 25-7-2006. EXT.P8 LETTER DT. 11-4-2006. EXT.P9 ORDEDR DT. 10-8-2006. EXT.P10 ORDER DT. 18-11-2006. EXT.P11 NOTICE DT. 5-12-2006. EXT.P12 JUDGMENT IN W.P.C.NO. 34020/2006. EXT.P13 REVISION DT. 30-1-2007. EXT.P14 NOTICE DT. 19-3-2007. EXT.P15 ARGUMENT NOTE DT. 19-3-2007. EXT.P16 ORDER DT. 31-10-2007. EXT.P17 LETTER DT. 29-11-2007. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R4(a) LETTER DT. 2-3-2006. EXT.R4(b) EXPLANATION SUBMITTED BY R4. EXT.R4(c) APPEAL DT. 18-3-2006. EXT.R4(d) REPLY SUBMITTED BY R4. EXT.R4(e) ARGUMENT NOTE. EXT.R4(f) REVIEW PETITION DT. 7-1-2008. EXT.R4(g) LETTER DT. 21-1-2008. EXT.R4(h) REPLY DT. 11-3-2008. EXT.R4(i) PROCEEDING NOTE. EXT.R5 TRUE COPY OF COMPLAINT. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 36112/2007 & 4798/2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-==-=-=-=-= Dated this, the 1st day of July, 2010. J U D G M E N T W.P(C) No. 36112/2007 is filed by the Manager of Thazhekalari U.P. School, Iringal. W.P(C) No. 4798/2008 is filed by a teacher of that school. Since these two writ petitions relate to the same subject matter, namely, disciplinary proceedings initiated by the manager against the teacher, these two writ petitions are heard and disposed of together by this common judgment. For convenience, I shall refer to the facts and exhibits as stated in W.P(C) No. 36112/2007 unless the context requires otherwise. 2. By Ext. P3 order dated 15-2-2006, the teacher was placed under suspension pending disciplinary enquiry. By Ext. P4 memo of charges dated 27-2-2006, the teacher was directed to show cause why disciplinary proceedings should not be initiated against him for the charges enumerated therein. By Ext. P5 dated 1-3-2006, the Assistant Educational Officer permitted the manager to continue the suspension of the teacher beyond 15 days. By Ext. P8 communication, the manager requested the AEO to conduct an enquiry into the charges levelled against the teacher by Ext. P4 memo of charges. Pursuant thereto, the AEO conducted an enquiry and submitted Ext. P9 report dated 10-8-2006 in which the teacher was found guilty of misconducts alleged against him. But, after finding the teacher guilty, the AEO directed the manager to impose only a minor punishment and directed reinstatement of the teacher only after cancelling the suspension. The manager challenged the same before the District Educational Officer in an appeal. The DEO, by Ext. P10 order, allowed the appeal and set aside that part of Ext. P9 order directing the manager to impose only a minor punishment and to reinstate the teacher and directed the manager to complete proceedings under Rule 75 of Chapter XIVA of KER expeditiously. W.P.C. Nos. 36112/07 & 4798/08. -: 2 :- The teacher challenged the order of the DEO by filing W.P(C) No. 34020/2006 in which, by Ext. P12 judgment, a learned Judge of this Court, without going into the validity of the order of the DEO, permitted the manager to file a revision against the AEO's order and directed the Government to dispose of the revision to be so filed. Pursuant thereto, the manager filed a revision before the Government which was dismissed by Ext. P16 order. The manager has therefore filed W.P(C) No. 36112/2007 challenging Ext. P16 order of the Government upholding Ext. P9. After the manager filed W.P(C) No. 36112/2007 on 5-12-2007, the teacher, apparently sensing adverse orders in the writ petition, in view of the provisions of the Kerala Education Rules, filed a revision before the Government challenging Ext. P9 order of the AEO and also filed W.P(C) No. 4798/2008 challenging the entire disciplinary proceedings. In W.P(C) No. 36112/2007, the manager seeks the following reliefs: “i) call for the records leading to Ext. P16 and quash the same by issue of a writ of certiorari quashing the same. ii) issue a writ of mandamus or such other writ, order or direction declaring that Ext. P11 notice is proper and legal.” 3. In W.P(C) No. 4798/2008, the teacher seeks the following reliefs: “i) To issue a writ of certiorari or other appropriate writ or order quashing Exts.P1, P2, P5, P6 and P9 or in the alternative to declare that the same are illegal and unenforceable; ii) to issue a writ of mandamus or any other appropriate writ or order, directing the 1st respondent to reinstate the petitioner from 15-2-2006 with all service benefits; iii) to issue a writ of mandamus or any other appropriate writ or order directing the 3rd respondent to disburse the salary and W.P.C. Nos. 36112/07 & 4798/08. -: 3 :- allowances due from 1-2-2006 to the petitioner.” 4. In the course of arguments, the learned counsel for the teacher submits that insofar as the petitioner can challenge the enquiry proceedings also at the time of challenging the punishment to be imposed by the manager, in the light of the Division Bench decision of this Court in W.A.No. 3393/2008, he does not wish to prosecute the writ petition and reserving his right to challenge Ext. P9 order at the time of challenging the final order of punishment to be imposed on the petitioner if and when imposed, he may be permitted to withdraw the writ petition. Accordingly, W.P(C) No. 4798/2008 is dismissed as withdrawn. 5. In W.P(C) No. 36112/2007, the manager challenges Ext. P16 order on the ground that the direction of the AEO to impose only a minor punishment on the teacher is clearly against the provisions of Rule 75 of Chapter XIVA of the KER and therefore Ext. P16 order confirming Ext. P9 is clearly unsustainable. The manager relies on sub-rules (8) to (12) of Rule 75 of Chapter XIVA, which read thus: “75. Procedure for imposing major penalties: xx xx xx (8) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with the reasons therefore. If in the opinion of such authority the proceedings of inquiry establish charges different from those originally framed it may record its findings on such charges provided that findings on such charges shall not be recorded unless the teacher has admitted the facts constituting them or has had opportunity of defending himself against them. (9) The records of inquiry shall include:- (i) the charges framed against the teacher and the statement of the allegation furnished to him; W.P.C. Nos. 36112/07 & 4798/08. -: 4 :- (ii) his written statement if any; (iii) the oral evidence taken in the course of inquiry; (iv) the documentary evidence considered in the course of the inquiry; (v) the orders; if any; made in regard to the inquiry; (vi) a report setting out the findings on each charges and the reasons therefore. (10) After the inquiry the inquiring authority shall forward the record of inquiry to the manager. (11) If the Manager is of opinion that any of the penalties specified in items (iv) to (viii) of rule 65 should be imposed, he shall; (a) Furnish to the teacher a copy of the report of the Inquiring Authority. (b) Give him a notice stating the action proposed to be taken in regard to him and calling up on him to submit within a specified time which may not generally exceed one month such representation as he may wish to make against the proposed action provided that such representation, shall be based only on the evidence adduced during the inquiry. (c) On receipt of the representation, if any and after taking into consideration the representation , final orders shall be passed by the manager imposing the penalty with the previous sanction of the competent authority. (12) The procedure referred to above shall be conducted as expeditiously as the circumstances of the case may permit, particularly one against a teacher under suspension.” According to the manager, he being the disciplinary authority, it is the prerogative of the manager to impose punishment on a delinquent teacher, of course, subject to complying with the procedure prescribed under the KER. Going by the Rules prescribed, the AEO has to forward the record of enquiry to the manager and it is for the manager to decide the punishment to be imposed after obtaining W.P.C. Nos. 36112/07 & 4798/08. -: 5 :- previous sanction of the competent authority. Therefore, that part of Ext. P9 order, whereby the AEO directs imposition of only a minor punishment is clearly against the provisions of Rule 75, is the contention of the manager. He further points out that having initiated proceedings under Rule 75 for imposing a major penalty and after having found that the teacher is guilty of the misconducts alleged against him, the AEO could not have restricted the proceedings to a minor penalty. 6. I have heard bot sides. 7. I have no doubt in my mind that in view of Rule 75, the AEO could no have validly directed the manager to restrict the punishment to a minor penalty at that stage. Rule 75 is very clear about the procedure to be adopted in such cases. The educational officer has to forward the enquiry report to the manager. It is the manager to decide on the punishment to be imposed after hearing the teacher, in the first instance. Of course, for imposing the punishment, the manager has to obtain previous sanction from the competent authority. Therefore, the AEO could not have pre-empted the manager from considering the punishment to be imposed by restricting it to a minor punishment. Again, as rightly pointed out by the counsel for the manager, after having found the teacher guilty of misconducts in a major penalty proceedings, the AEO could not have directed the manager to confine the penalty to be imposed on the teacher as a minor penalty. Therefore, Ext. P16 order of the Government upholding the same is quashed. Consequently, that part of Ext. P9 order which directs the manager to impose only a minor punishment is also quashed. The direction in Ext. P9 order to reinstate the petitioner cancelling the suspension is apparently based on the opinion of the AEO that the situation warrants only a minor W.P.C. Nos. 36112/07 & 4798/08. -: 6 :- punishment on the teacher. Having found the teacher guilty of misconducts in a major penalty proceedings and having allowed the manager to continue suspension, the AEO could not have decided to reinstate the teacher on the ground that he deserves only a minor punishment. It was for the manager to decide that question also. Therefore, that part of the order is also quashed. Consequently, the manager is directed to complete the disciplinary proceedings in accordance with the sub- rules (8) onwards of Rule 75 of Chapter XIVA and complete the proceedings as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/