IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WP(C).No. 1410 of 2004(P) ----------------------------------- PETITIONER(S): --------------------- SABITHA K.T., ASST.TEACHER, NARIKKUNNU U.P.S., EDACHERI P.O., KOZHIKODE DISTRICT. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): ------------------------ 1. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, TRIVANDRUM. 2. DY. DIRECTOR OF EDUCATION, KOZHIKODE. 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA. R1 TO R3 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1410/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DTD. 24.3.2000 ISSUED BY THE IST RESPONDENT TO THE DEO VADAKAR. P2:- COPY OF THE LETTER ISSUED BY THE DEO DTD. NIL. P3:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DT.D NIL. P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE MINISTER DTD. 26.6.2001. P5:- COPY OF THE PROCEEDINGS DTD. 23.1.2001. P6:- COPY OF THE ORDER ISSUED BY THE DEO DTD. 17.7.2001. P7:- COPY OF THE PROCEEDINGS DTD. 23.1.2003. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.1410/2004-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of March, 2011 J U D G M E N T This writ petition is filed by the petitioner mainly challenging Ext.P6 order passed by the District Educational Officer imposing a punishment of barring two future increments with cumulative effect and the condition in Ext.P7 to the extent that the leave period will not count for any service benefits including pension. 2. It is a case where the petitioner while working as Teacher in the school in question, namely, the Narikkunnu U.P.S, Edacheri, after availing leave for 17 days from 01/06/1998 to 17/06/1998, left to Bahrain when she got an urgent message that her husband was hospitalised and her presence is needed. Leave for 17 days was granted by the Headmistress. She could not come back and join the school on 17/06/1998 because of the serious illness of her husband and she applied for extension of leave without allowance in continuation of her earlier leave. It appears that the said leave W.P.(C). No.1410/2004 -:2:- application was returned by the Government. It is stated that the petitioner was forced to submit an application for leave without allowance from 01/04/1998 to 25/02/1999 as she joined duty on 26/02/1999. The said application was also not sanctioned. Finally, the petitioner submitted Exts.P3 and P4 representations. During this period, she was subjected to disciplinary action, for leaving the country without prior sanction from the Government. By Ext.P5, after taking a lenient view, the District Educational Officer imposed a punishment of severe warning. 3. Ext.P6 is a subsequent order passed by the District Educational Officer, as per the direction issued by the Government, whereby another punishment of barring two future increments with cumulative effect was imposed on the petitioner. Thereafter, the leave period was regularised under Rule 88 of Part I K.S.R, as per Ext.P7, on condition that the leave period will not count for any service benefits including pension. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. W.P.(C). No.1410/2004 -:3:- 5. It is submitted by the learned counsel for the petitioner that by Ext.P5 order dated 23/01/2001, a punishment of severe warning was imposed. Ext.P6 shows that the Government again directed the District Educational Officer to proceed with the disciplinary action for leaving the State without the permission of the Government. It is pointed out that there was no scope for issuing another order like Ext.P6 since already a punishment was imposed by Ext.P5. Further, it is pointed out that the disciplinary authority is the Manager and even if the Government has the power under Section 12A of Kerala Education Act, the procedures contemplated under the provisos have not been complied with and, therefore, Ext.P6 cannot be sustained. With regard to the condition imposed in Ext.P7 that the leave period will not count for any service benefits including pension, reliance is placed on the decision of the Division Bench of this Court in State of Kerala v. Dr.V.M.Kurshid [ILR 2000 (1) Kerala 535] interpreting Rule 88, Part I, K.S.R, in a similar case. W.P.(C). No.1410/2004 -:4:- 6. The respondents have filed a counter affidavit in the matter. With regard to the disciplinary action culminated in Ext.P5, there is no dispute. 7. A reading of the order Ext.P5 shows that the District Educational Officer examined the circumstances under which the petitioner had left the country and found that the teacher had no choice other than to join the spouse abroad and she was having no earlier experience about availing of leave without allowance for the same purpose and, therefore, the District Educational Officer is not considering imposition of a major punishment. The said Officer has issued Ext.P6 dated 17/07/2001, evidently, after Ext.P5. It is stated in Ext.P6, in paragraph (2) that after the warning was imposed, the Government by a letter which is referred to and cited as No.5 informed that the punishment of warning awarded to the teacher is very meagre when considered the gravity of the offence committed by the teacher and, therefore, ordered to impose major punishments against her. Evidently, the said communication is only a letter. There is nothing W.P.(C). No.1410/2004 -:5:- to show that Ext.P5 order was set aside by the Government, in exercise of any statutory power like revision. Apart from that, any direction to impose a major punishment by the Government could have been issued only with notice to the petitioner, as the petitioner has already suffered a punishment as per Ext.P5. Therefore, the direction by the Government in the said letter cannot really survive. Further, going by Section 12A(1) of Kerala Education Act, the Government or such Officer not below the rank of an Educational Officer, as may be authorised by the Government in this behalf, shall have the power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules made under this Act. But the proviso to Section 12A(2) reads as follows:- “(a) before exercising the powers under sub- section (1) the Government or the authorised officer as the case may be, may intimate the manager regarding the circumstances requiring disciplinary action against the teacher W.P.(C). No.1410/2004 -:6:- concerned and give the manager a reasonable opportunity of taking disciplinary action; and (b) if the manager fails to take appropriate action it shall be open to the Government or the authorised officer to take appropriate disciplinary action against the teacher concerned.” The said course was also not adopted. Apart from that, in pursuance of a disciplinary action, nobody can be punished twice for the same allegations or for the same offence. Herein, after having imposed a punishment as per Ext.P5, a second punishment has been imposed as per Ext.P6. This also cannot be justified and hence, Ext.P6 cannot be supported. 8. With regard to the condition imposed in Ext.P7, it is seen that the order is passed under Rule 88, Chapter IX of Part I, K.S.R. Of course, the petitioner by Ext.P3 representation requested for grant of leave under Appendix XII C of Part I K.S.R. Counter affidavit in paragraph (4) states that Ext.P7 order is W.P.(C). No.1410/2004 -:7:- issued to regularise the period of unauthorised absence from duty for the period from 01/04/1998 to 25/02/1999 as leave without allowance under Rule 88 of Part I K.S.R after imposing a condition. The question is whether when Rule 88 of Part I K.S.R is invoked, such a condition could be imposed. Evidently, the condition imposed in Ext.P7 is one specified in Rule 4 of Appendix XII C of Part I K.S.R. Evidently, the grant of leave is not under Appendix XII C. 9. The Division Bench in the decision reported in Dr.V.M.Kurshid's case (supra) considered a similar question. The petitioner therein left to join the spouse without getting permission from the Government. Ultimately, the period of leave without allowance was regularised on condition that the period will not count for any service benefits including pension. The Division Bench in paragraph (6) after analysing Rule 88 of Part I K.S.R held thus:- “6. In order to appreciate the rival submissions, Rule 88 in Part I of the Rules needs to be noted. The same reads as follows: W.P.(C). No.1410/2004 -:8:- 'Leave without allowance.-- (i) Leave without allowances may be granted to any officer in special circumstances:- (a) when no other leave is by rule admissible, or (b) when other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion.' It is fairly accepted that there is nothing in rule 88 which has application to the case at hand. It is however, the stand that on equitable ground and not to put the employee at an advantageous position after unauthorised absence, such a condition was stipulated. W.P.(C). No.1410/2004 -:9:- Whatever be the intention, in the absence of any specific provision, the condition could not have been imposed. In fact if the authorities desired, they could have imposed this as a condition while imposing the punishment of barring of one increment. That admittedly has not been done. The provisions of Appendix XII A have clearly no application to the facts of this case. That being the position, we find nothing infirm to interfere with the order of the learned Single Judge.” The Division Bench therein was of the view that the provisions of Appendix XII A of Part I K.S.R have clearly no application to the facts of the case. 10. The learned Government Pleader submitted that Appendix XII C of Part I K.S.R was not considered by the Division Bench. Evidently, Rule 4A of Appendix XII C of Part I K.S.R also enables the Government to impose a condition while sanctioning leave without allowances that the period will not count for various service benefits. Similar is the provision under Appendix XII W.P.(C). No.1410/2004 -:10:- A and clearly, as mentioned in paragraph (6) of the Judgment, these provisions were not invoked. Similarly, what is important is to find that the Government has only invoked Rule 88 of Part I K.S.R and not rule 4 of Appendix XII C, in Ext.P7 order. Rule 88 enables the Government to grant leave without allowance under special circumstances. Evidently, no express provision is there in Rule 88 of Part I K.S.R to impose a condition like the one stated in Ext.P7 and hence it cannot survive. Therefore, I respectfully follow the decision of the Division Bench. 11. The learned Government Pleader submitted that going by Ext.P3 it can be seen that the petitioner had submitted an application by invoking Appendix XII C of Part I K.S.R. But, evidently, the matter will have to be gone into in terms of the express provisions under which the leave was sanctioned as per Ext.P7 which mentions only Rule 88 of Part I K.S.R which is reiterated in the counter affidavit also. 12. For all these reasons, the writ petition is allowed. Ext.P6 for imposing a different punishment W.P.(C). No.1410/2004 -:11:- and Ext.P7 to the extent to which it imposes a condition that the leave period will not count for any service benefits including pension are quashed. It is made clear that the period will count for service benefits including pension etc. and arrears, if any, due will be disbursed within a period of three months. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms