IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 OP.No. 3973 of 2000(W) ---------------------- PETITIONER: --------------- THE MANAGER, A.M.U.P. SCHOOL, PALLIKKAL, P.O. PALLIKKAL, KONDOTTY SUB DISTRICT, MALAPPURAM. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN RESPONDENTS: ----------------- 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM, MALAPPURAM DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, KONDOTTY, MALAPPURAM DISTRICT. 5. K.K. RAMAKRISHNAN, KALAYANKULATH HOUSE, P.O. CHERAPURAM, VIA. KAKKATTIL, KOZHIKODE DISTRICT. 6. THE HEADMASTER, A.M.U.P. SCHOOL, PALLIKKAL, PALLIKKAL P.O., KONDOTTY SUB DISTRICT, MALAPPURAM. BY SRI. GOVIND K. BHARATHAN SRI. K. BALACHANDRAN GOVERNMENT PLEADER SRI. T.T. MAHMOOD. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 3973 of 2000 ORDER ON C.M.P.NO.6529 OF 2000 IN O.P.NO.3973 OF 2000 DISMISSED. 28.2.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF LETTER DTD 2.9.96 SUBMITTED BY THE HEADMASTER TO THE MANAGER. EXT.P2: COPY OF LETTER DATED 16.10.1997 SUBMITTED BY THE HEADMASTER TO THE MANAGER. EXT.P3: COPY OF LETTER DATED 17.10.97 ISSUED BY THE MANAGER ADDRESSED TO R5. EXT.P4; COPY OF REPLY DATED 31.10.97 SUBMITTED BY R5 BEFORE THE MANAGER. EXT.P5: COPY OF LETTER DATED 7.3.98 ISSUED BY THE HEADMASTER TO R5. EXT.P6: COPY OF LETTER DATED 25.3.98 ISSUED BY R4 TO THE MANAGER. EXT.P6(a): COPY OF CIRCULAR DATED 17.3.94 ISSUED BY THE DEPUTY DIRECTOR. EXT.P6(b): COPY OF CIRCULAR DATED 26.4.1988 (2ND CITED IN EXT.P6). EXT.7: COPY OF SHOW CAUSE NOTICE DTD 24.3.98 ISSUED BY THE MANAGER TO R5. EXT.P8: COPY OF LETTER DATED NIL SUBMITTED BY R5 TO THE MANAGER. EXT.P9: COPY OF MEMO OF CHARGES DTD 23.4.1998 TOGETHER WITH STATEMENT OF ALLEGATIONS ISSUED BY THE MANAGER. EXT.P10: COPY OF REPLY DATED NIL SUBMITTED BY R5 BEFORE THE MANAGER. EXT.P11: COPY OF NOTICE DATED 2.6.1998 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. EXT.P12: COPY OF REPORT DATED 2.7.98 ISSUED BY THE A.E.O. EXT.P13: COPY OF COVERING LETTER DATED 2.7.98 ISSUED BY R4 TO THE MANAGER. OP.No. 3973 of 2000 EXT.P14: COPY OF NOTICE DATED 20.7.98 ISSUED BY THE MANAGER TO R5. EXT.P15: COPY OF REPLY DATED 7.8.98 SUBMITTED BY R5. EXT.P16: COPY OF ORDER DATED 11.12.98 ISSUED BY THE DEO – R3. EXT.P17: COPY OF PROCEEDINGS DATED 5.1.99 ISSUED BY THE MANAGER. EXT.P18: COPY OF INTIMATION DATED 16.10.99 ISSUED BY R2. EXT.P19: COPY OF HEARING NOTE SUBMITTED BY THE MANAGER TO R2. EXT.P20: COPY OF ORDER DATED 11.1.2000 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION – R2. EXT.P21: COPY OF LEAVE APPLICATION SUBMITTED BY R5. 5TH RESPONDENT'S EXHIBITS EXT.R5-A: COPY OF REGISTRATION RECEIPT FROM THE POST OFFICE FOR A REGISTERED LETTER SENT BY R5 TO R6. EXT.R5-B: COPY OF LETTER DATED 7.3.1998 FROM R6 TO R5. EXT.R5-C: COPY OF POSTAL RECEIPT FOR A MEDICAL CERTIFICATE ALONG WITH THE LEAVE APPLICATION SENT BY R5 BY REGISTERED POST. EXT.R5-D: COPY OF LETTER NO.1/98 DATED 5.1.99 ISSUED A SHOW CAUSE NOTICE BY THE PETITIONER TO R5. EXT.R5-E: COPY OF POSTAL RECEIPT FOR A REGISTERED LETTER DT 31.3.1998 BY R5 TO THE PETITIONER. EXT.R5-F: COPY OF MEMO OF CHARGES NO.1/98 (1) DTD 23.4.1998 SENT BY THE PETITIONER TO R5. EXT.R5-G: COPY OF POSTAL RECEIPT FOR AN EXPLANATION SENT BY REGISTERED POST BY R5. EXT.R5-H: COPY OF ENQUIRY REPORT FROM R4 SENT TO R1 FOR APPROVAL. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.3973 OF 2000 ---------------------------------------- Dated this the 28th day of February, 2008 JUDGMENT The petitioner is the Manager of an aided School. The 5th respondent is a Teacher of the School, who was appointed with effect from 1.6.1992. According to the petitioner, from 1995 onwards the 5th respondent started absenting himself without leave. In the above circumstances, the Headmaster of the School by Ext.P1 letter, requested the Manager to take appropriate action since the 5th respondent is repeatedly applying for leave without allowances and in spite of sending registered notice intimating that, that leave cannot be sanctioned, the 5th respondent did not care to join duty. Again by Ext.P2 letter, the Headmaster informed the Manager that the 5th respondent is continuing his unauthorised absence. Therefore by Ext.P3 letter dated 17.10.1997, the petitioner directed the 5th respondent to show cause why appropriate action should not be taken against him for this unauthorised absence from 1.10.1997 onwards. By Ext.P4 letter dated 31.10.1997, the 5th respondent intimated the O.P.No.3923/2000 2 Manager that he could not attend classes from 1.10.97 onwards and no application for leave was submitted since his child was not well. He also promised that thereafter he will not enter on unauhtorised leave. He also admitted that on account of his taking leave the students have been experiencing difficulties and volunteered to take special classes and extra classes during holidays and leisure periods to finish the lessons as per syllabus. Thereafter by Ext.P5, the 6th respondent – Headmaster informed the 5th respondent that he cannot be granted leave as applied for by him. It was also stated in Ext.P5 that for the previous year the petitioner had attended the school for only 51 days and the students in his class could not be taught their lessons properly. It was also informed in Ext.P5 that the parents of the students had complained to the Manager about this irresponsible attitude of the 5th respondent. The 5th respondent was also informed that his applications for leave were not supported by medical certificates and that for previous years also he had been on unauthorised leave likewise. Therefore the 5th respondent was directed to explain his conduct. Thereafter the Manager sought direction from the O.P.No.3923/2000 3 AEO and by Ext.P6 letter, the AEO directed the petitioner to take appropriate action based on Exts.P6(a), P6(b) and P6(c) Government Circulars on the question of action to be taken on applications for leave without allowances. Thereafter by Ext.P7 show cause notice, the petitioner directed the 5th respondent to show cause why disciplinary action should not be taken against him for the misconduct of insubordination, indiscipline, absence without proper leave application and medical certificate etc. To the same, the 5th respondent submitted Ext.P8 stating that he could not attend the School only because of Rheumatism and he can attend classes only from next June. Since the said explanation was unsatisfactory, Ext.P9 memo of charges was issued to the 5th respondent. Since Ext.P10 reply filed by the 5th respondent was unsatisfactory, the memo of charges was forwarded to the AEO for enquiry under Rule 75 of Chapter XIVA of the Kerala Education Rules. By Ext.P12 report, the AEO found the 5th respondent guilty of the misconducts alleged against him. In Ext.P12, the offer of the 5th respondent that he is prepared to take leave without allowances for 5 years for other O.P.No.3923/2000 4 employment was recorded. The petitioner issued show cause notice to the 5th respondent why the punishment of removal from service should not be imposed on the 5th respondent. After receiving Ext.P15 reply, the same was forwarded to the DEO for permission to impose punishment of removal from service on the 5th respondent. By Ext.P16 order, the DEO granted permission to impose that punishment. Accordingly, by Ext.P17 order, the punishment of removal from service was imposed on the 5th respondent. The 5th respondent challenged the same before the Deputy Director of Education. The Deputy Director of Education, by Ext.P20, while affirming the finding of guilt on the 5th respondent, set aside the punishment of removal from service, on the ground that it is disproportionate to the gravity of the misconducts, and the Manager was directed to impose a more appropriate punishment reinstating the 5th respondent in service. That order is under challenge before me at the instance of the Manager. 2. The 5th respondent has filed a counter affidavit refuting the contentions of the petitioner. First of all, he would submit that this writ petition itself is not maintainable in so far O.P.No.3923/2000 5 as the petitioner has not exhausted the alternate remedy by way of filing an appeal or revision before the DPI or the Government. Secondly, he would contend that he was not guilty of the misconducts in so far as he applied for leave only on account of serious illness as a result of which, he was not even able to move. He would contend that even assuming that he was guilty of the misconducts proved against him, the same were not grave enough to warrant the punishment of removal from service, which only has been directed by the Deputy Director of Education in Ext.P20 order. The 2nd respondent has also filed a counter affidavit. 3. I have considered the rival contentions in detail. I shall first deal with the objection raised by the 5th respondent on the ground of availability of effective alternate remedy to the petitioner by way of appeal or revision. The writ petition was admitted as early as in 2000. We are in 2008. After having admitted the writ petition, despite the availability of the alternate remedy, I am not inclined to relegate the petitioner to alternate remedy at this point of time which would only multiply litigation, which is one thing this Court has to avoid at O.P.No.3923/2000 6 any cost. As such, I do not find any merit in that contention of the 5th respondent. Regarding the second contention of the 5th respondent, I do not think that he can without challenging the enquiry order of the DEO and even the impugned order, wherein the guilt of the 5th respondent has been upheld, claim that he is innocent and has not committed the misconducts. As such there is no merit in that objection of the 5th respondent also. 4. Now the only remaining question is as to whether the Deputy Director was justified in interfering with the punishment of removal from service imposed on the 5th respondent. The Deputy Director has held that removal from service is a very harsh punishment, which can be resorted to only in misconducts involving moral turpitude, misappropriation, bigamy and punishment by Court for a criminal offence etc. He has said that since the misconducts proved against the 5th respondent does not come within any of the said category, removal from service is not the proper punishment to be imposed on the 5th respondent. For deciding this question, I have to consider the very history of the case. It O.P.No.3923/2000 7 is not as if the Manager has suo-motu initiated proceedings for misconducts against the 5th respondent. It was pursuant to two letters from the Headmaster informing the Manager that on account of the unauthorised absence of the 5th respondent, the students of his class are experiencing great difficulties that the Manager initiated proceedings. Initially, the Manager only asked him to explain the unauthorised absence, by Ext.P4. The 5th respondent said that from 1.7.1997 to 28.9.1997 he was on leave and that he joined duty with medical fitness certificate. In Ext.P4 he does not say that from 1.10.1997 onwards he was not able to come to the class because of any illness. He also admits in that, he had not submitted any application for leave. The reason given for the same is that his child was not well. From Ext.P4 it is clear that he was also aware of the fact that the students were experiencing difficulties because of his unauthorised absence. He volunteered to take special classes and extra classes during holidays and leisure time. It is thereafter that the disciplinary proceedings were initiated. In Ext.P12 enquiry report the AEO has recorded that the 5th respondent had offered to take 5 O.P.No.3923/2000 8 years leave without allowances for accepting other employment. The petitioner's contention is contradictory. At one place, he would submit that he was not well because of Rheumatism and he cannot even move about because of that. At another place he readily volunteers to take special classes and extra classes even during holidays. Still worse, he offers to take leave without allowances for 5 years for accepting other employment. It is beyond comprehension as to how a person, who cannot move about because of illness, can take extra classes and can accept other employment. 5. The 5th respondent would repeatedly contend that although he had not submitted medical certificate along with his application for leave, he had sent the same later. Such a contention was not raised by the 5th respondent before any of the lower authorities. In Ext.P12 enquiry report also such a contention is conspicuously absent. The petitioner submits that he has filed a reply affidavit to the counter affidavit of the 5th respondent in which, he has denied that he has received any medical certificates subsequently also from the 5th respondent (However that reply affidavit is not in the file). That being so, O.P.No.3923/2000 9 the contention of the 5th respondent that he was absent because he was seriously ill cannot be accepted at all. On the other hand, from his offer that he shall take leave without allowances for 5 years for accepting other employment would show that the 5th respondent had other intentions in the matter. Further from the documents before me, it is clear that the 5th respondent is in the regular habit of absenting without leave. 6. The very object of the Kerala Education Rules is to impart better education to the pupils, who joins Government and aided Schools. Appointment of teachers is one of the steps in furtherance of that noble object. If that cannot be achieved, then there is no point in continuing a teacher in the School at all. Appointment of teacher is not merely to enable him to earn a living. It is for the specific purpose of teaching students. The misconduct of the petitioner has to be viewed in that perspective. Here is a teacher, who is habitually absent without leave. He is totally inconsistent in stand regarding the reasons for his unauthorised absence. Admittedly during the previous year he attended the School for only 51 days. In spite O.P.No.3923/2000 10 of the same, he continued unauthorised absence, despite intimation to the effect that his applications for leave were not sanctioned at all. Children have already suffered because of his misconducts which cannot now be remedied. Further in the counter affidavit of the 2nd respondent in paragraph 4, it is stated thus: “The 5 th respondent is a habitual absentee in the school which necessitated disciplinary action against him. He has attended only 51 days in the School in the academic year 1997-98 and regularly irregular in attending the school.” Again in paragraph 12, the 2nd respondent states thus: “The 3 rd and 4 th respondents were of opinion that the charges levelled against the 5 th respondent is genuine and he has no interest to work in the school. Hence the 3 rd respondent was granted permission to remove the 5th respondent from service w.e.f. 12-2-1998, the day from which he was absent in the school, in exercise of powers in Rule 74, Chapter XIV (A) KERS. The Deputy Director of Education has also admitted the charges levelled against the 5th respondent proved by the enquiry officer. But the appellate order dated 11-1-2000 was passed on humanitarian grounds.” O.P.No.3923/2000 11 This would also show that the punishment of removal cannot be held to be disproportionate to the gravity of the misconducts and that the Deputy Director has acted only on the basis of sympathy. Imposition of punishment is essentially a managerial function. The authorities under the KER can interfere with the same only for appropriate reasons. While doing so, they have to bear in mind the object behind the KER. From all the above, I am not satisfied that the Deputy Director of Education was not justified in interfering with the punishment imposed by the petitioner as approved by the DEO. Consequently, Ext.P20 is quashed and the order of the Manager and that of the DEO is restored. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.3923/2000 12