IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 6312 of 2009(H) ------------------------------------ PETITIONER(S): ------------------------- 1. ASARAJ.S,HEADMASTER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 2. REMADEVI.D, TEACHER AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 3. SOBI B., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 4. BINDU B., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 5. MUHAMMED HASHIR.S., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 6. ABDUL LATHEEF K., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 7. SREEVIDYA S., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 8. SUDHEESH .S, TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 9. PREETHI.B., TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 10. SALIM.N, TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 11. ABDUL SAMAD.A, TEACHER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 12. LAKSHMI P., COOK, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 13. UDAYAN.R, KUNNUMUKADA, PUTHENTHERUVU, KARUNAGAPPALLY-18 BY ADVS. MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) MR.LUIZ GODWIN D'COUTH MR.K.P.CHANDRASEKHAR W.P.(C) NO.6312/2009 RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETRIAT ANNEX, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE MANAGER, AL-SYED L.P.SCHOOL,PUTHENCHERUVU,KARUNAGAPPALLY-18 4. BUSHARA, THOPPIL VADAKKETHIL, S.R.P. MARKET P.O., KARUNAGAPPALY-690 519. BY MR.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE FOR R3 BY ADVS. MR.TONY GEORGE KANNANTHANAM FOR R3 MR.P.K.SURESH KUMAR FOR R4 MR.V.C.MADHAVANKUTTY FOR R4 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6312/2009 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE JUDGMENT IN WP(C) NO.36879/08 OF THE HONOURABLE COURT DT. 21.1.09. P2:- COPY OF THE REPRESENTATION TO THE 2ND RESPONDENT DT. 9.2.09. P3:- COPY OF THE LAWYER NOTICE TO THE 2ND RESPONDENT DT. 17.2.09. P4:- COPY OF THE NOTICE DT. 12.2.09. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE ORDER NO.99/07 DT. 24.9.07 ISSUED BY the 3RD RESPONDENT. R4(b):- COPY OF THE ORDER NO.F-5267/07 DT. 29.10.07 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, KARUNAGAPPALLY. R4(c):- COPY OF THE JUDGMENT DT. 22.11.07 IN WPC. NO.32770/07 PASSED BY THIS HONOURABLE COURT. R4(d):- COPY OF THE REPORT NO.E. 5267/07 DT. 14.3.08 SUBMITTED BY THE ASSISTANT EDUCATIONAL OFFICER, KARUNAGAPPALLY. R4(e):- COPY OF THE JUDGMENT DT. 26.3.08 IN WPC. NO.8131/08 PASSED BY THIS HONOURABLE COURT. R4(f):- COPY OF THE JUDGMENT DT. 26.3.08 IN WPC. NO.4933/08 PASSDED BY THIS HONOURABLE COURT. R4(g):- COPY OF THE ORDER NO.M.2/08 DT. 30.4.08 ISSUED BY THE 3RD RESPONDENT. R4(h):- COPY OF THE ORDER NO.A7/16451/08 DT. 16.10.08 ISSUED BY DEPUTY DIRECTOR OF EDUCATION , KOLLAM. TRUE COPY P.A. TO JUDGE TSS P.N.RAVINDRAN, J. ---------------------------------------------- W.P(C) No. 6312 of 2009-H --------------------------------------------- Dated this the 4th day of March, 2009. J U D G M E N T Heard Sri.P.Santhosh Kumar, the learned counsel appearing for the petitioners, Smt.T.B.Remani, the learned Government Pleader appearing for respondents 1 and 2, Sri.Kurian George Kannanthanam, the learned senior Advocate appearing for the third respondent Manager and Sri.P.K.Suresh Kumar, the learned counsel appearing for the fourth respondent. 2. Petitioners 1 to 11 are teachers of the school managed by the third respondent. The 12th petitioner is a cook employed in the school for preparing the noon meal and the 13th petitioner is a representative of the schedule caste community who is a member of noon meal committee of the third respondent's school. The fourth respondent is the Headmaster of the school. 3. The Manager and the fourth respondent, who is the Headmaster of the school, are near relations. Based on a complaint filed by petitioners 1 to 11, the Manager placed the fourth respondent under suspension by Exhibit R4(a) order dated W.P(C) No. 6312 of 2009-H 2 24.9.2007. The Assistant Educational Officer, Kollam, granted permission to the Manager to place the fourth respondent under suspension beyond 15 days. The fourth respondent thereafter moved the Assistant Educational Officer under sub rule (8A) of Rule 67 of Chapter XIV A of the KER to review the suspension. By Exhibit R4(b) order passed on 29.10.2007, the Assistant Educational Officer cancelled the permission granted by him under sub rule (8) of Rule 67 of Chapter XIV A of the KER and directed the Manager to reinstate the fourth respondent in service without prejudice to the continuance of the disciplinary action. The Manager challenged the said order in W.P.(C) No.32770 of 2007. The said writ petition was disposed of by Exhibit R4(c) judgment reserving liberty with the Manager to move the Government in revision. To enable the Manager to move the Government, this Court also directed that interim order passed by this Court in W.P.(C) No.32770 of 2007 shall continue for a further period of one week. 4. As directed by this Court in Exhibit R4(c) judgment, the Manager moved the Government in revision. He also moved a petition seeking stay of implementation of Exhibit R4(b). The Government declined to stay the operation of Exhibit R4(b) order. W.P(C) No. 6312 of 2009-H 3 The Manager thereupon filed W.P.(C)No.8131 of 2008 in this Court challenging the order passed by the Government declining to stay the operation of Exhibit R4(b). While the said writ petition was pending, the Assistant Educational Officer conducted a detailed enquiry into the charges levelled against the fourth respondent. The Enquiry Officer found the fourth respondent not guilty of the charges and directed the Manager to reinstate her in service. Exhibit R4(d) enquiry report dated 14.3.2008 was sent to the Manager with a copy to the fourth respondent. When W.P(C) No.8131 of 2008 came up for hearing on 26.3.2008, taking note of the fact that the Enquiry Officer has exonerated the petitioner of the charges, this Court dismissed W.P.(C) No.8131 of 2008 by Exhibit R4(e) judgment without prejudice to the right of the Manager to invoke the statutory remedy available to him before the Government to challenge Exhibit R4(d) enquiry report. When the Manager did not comply with the direction in Exhibit R4(d) to reinstate the fourth respondent in service, she filed W.P(C)No.4933 of 2008 in this Court seeking implementation of Exhibit R4(b) order dated 29.10.2007. Taking note of the fact that the fourth respondent was exonerated of the charges, this Court by Exhibit R4(f) judgment directed the W.P(C) No. 6312 of 2009-H 4 Manager to reinstate her in service without prejudice to the right of the Manager to challenge the enquiry report. The fourth respondent was accordingly reinstated in service on 27.3.2008. 5. Shortly thereafter, the Manager again placed the fourth respondent under suspension by Exhibit R4(g) order dated 30.4.2008. The order of suspension was passed in view of the registration of two criminal cases against the fourth respondent. The Assistant Educational Officer permitted the continuance of the suspension beyond 15 days. Later, the fourth respondent moved the Deputy Director of Education seeking revocation of the suspension. On that application, the Deputy Director of Education conducted an enquiry and passed Exhibit R4(h) order dated 16.10.2008 directing the Manager to reinstate the fourth respondent in service without prejudice to the continuance of the disciplinary action against her. It appears that the Deputy Director of Education did not give proper notice to the Manager before Ext.R4(h) order was passed. The Manager challenged it in W.P(C) No.36879 of 2008. The fourth respondent herein who was the fourth respondent in the said writ petition, conceded before this Court that the Manager was not heard before the Exhibit R4(h) order W.P(C) No. 6312 of 2009-H 5 was passed. By Ext.P1 judgment delivered on 21.1.2009, this Court, quashed Exhibit R4(h) order and directed the Deputy Director of Education to pass fresh orders after affording the Manager and the fourth respondent and any other affected party, an opportunity of being heard. 6. Pursuant to the directions issued by this Court in Exhibit P1 judgment, the Deputy Director of Education, Kollam issued Exhibit P4 notice dated 12.2.2009 to the Assistant Educational Officer, Karunagappally, the Manager and the fourth respondent, calling upon them to be present for a personal hearing on 27.2.2009. This writ petition was thereupon filed on 25.2.2009 contending that as the fourth respondent was placed under suspension on a complaint filed by the petitioners, they also have a right to be heard in the matter. This Court while admitting the writ petition passed an interim order to the effect that the hearing proposed to be held on 27.2.2009 shall be deferred and that the Deputy Director of Education shall await further orders of this Court before proceeding with the matter. 7. The fourth respondent has filed a counter affidavit and brought up this writ petition for hearing. She contends that she was W.P(C) No. 6312 of 2009-H 6 placed under suspension by Ext.R4(a) order passed on 24.9.2007 based on a complaint filed by petitioners 1 to 11, that an enquiry into the charges levelled against her on the basis of the complaint filed by petitioners 1 to 11 was conducted by the Assistant Educational Officer, that she was exonerated of the charges and therefore petitioners 1 to 11 have no locus standi to participate into the enquiry proposed to be held by the Deputy Director of Education in the matter of her suspension by Exhibit R4(g) order dated 30.4.2008. The fourth respondent also submits that her suspension by Exhibit R4(g) order dated 30.4.2008 was not in relation to the complaint submitted by petitioners 1 to 11 and therefore they have no right to be heard in the matter. She further submits that the Manager has not so far challenged Exhibit R4(d) enquiry report. The fourth respondent also contends that the criminal cases which led to her the suspension by Exhibit R4(g) order dated 30.4.2008 were filed by petitioners 12 and 13, that they also have no right to be heard in the enquiry and can at best be only witnesses in the departmental enquiry in relation to the said charges. The learned counsel for the petitioners on the other hand, relying on the observations made by this Court in Exhibit P1 judgment contends W.P(C) No. 6312 of 2009-H 7 that it would be open to the Deputy Director of Education to hear not only the Manger and fourth respondent but also any other affected party and as persons who have filed complaints against the fourth respondent they are entitled to be heard in the matter. 8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that disciplinary action was initiated against the fourth respondent based on the complaint filed by petitioners 1 to 11 before the Manager. A formal enquiry into the said complaint was held after a memo of charges was served on the fourth respondent by the Enquiry Officer namely the Assistant Educational Officer, Karunagapally. The enquiry report was submitted nearly one year back exonerating the fourth respondent from the charges. In view of the findings in the report of enquiry, petitioners 1 to 11 cannot in my opinion have any right to be heard in the enquiry now being conducted by the Deputy Director of Education in relation to a complaint with which they are not concerned. As held by this Court in Cherian V. Anna S.Varghese (1987(1) KLT 301), unlike any other employer, the Manager of an aided school is bound by the report of the Enquiry Officer and cannot disagree with the findings therein. It W.P(C) No. 6312 of 2009-H 8 was however held that if the Manager of an aided school disagrees with the findings in the enquiry, his remedy is to file a revision petition under Rule 92 of Chapter XIV A of the KER. In the instant case though this Court had in Exhibit R4(e) judgment, reserved liberty with the Manager to challenge enquiry report, the Manager did not do that. Instead he again placed the fourth respondent under suspension on 30.4.2008 on the ground that two criminal cases have been registered against her on complaints filed by petitioners 12 and 13. Therefore at best they alone can claim a right to participate in the enquiry proposed to be held by the Deputy Director of Education to decide whether the permission granted to the Manager to place the fourth respondent under suspension beyond 15 days should be revoked or not. In this context it is relevant to note that a Division Bench of this Court has in Cherian V. Anna S.Varghese (1987(1) KLT 301), held that at the stage of granting permission under Rule 67(8) of Chapter XIV A of the KER, a detailed enquiry is not called for and that the enquiry contemplated under Rule 67(8) is only a preliminary enquiry. 9. In my opinion, the enquiry under Rule 8A or by a higher authority under Rule 9 can also be only a preliminary enquiry for the W.P(C) No. 6312 of 2009-H 9 limited purpose of deciding whether the order passed by the Educational Officer permitting the Manager to continue the suspension beyond 15 days should be revoked or not. In other words, a detailed enquiry into the charges is not called for in the enquiry proposed to be held by the Deputy Director of Education. The enquiry proposed to be held by the Deputy Director of Education is also not a formal enquiry under Rule 75 of Chapter XIV A of the KER. However, as this Court has in Exhibit P1 judgment permitted the Deputy Director of Education to hear any other affected party, I am inclined to allow petitioners 12 and 13 also to participate in the enquiry proposed to be held by the Deputy Director of Education subject to the condition that a detailed enquiry shall not be held but only a preliminary enquiry for the purpose of deciding whether the permission granted to the Manager to place the fourth respondent under suspension beyond 15 days should be cancelled or not. 10. The enquiry originally scheduled for 27.2.2009 by the Deputy Director of Education, Kollam was adjourned by this Court. The fourth respondent is continuing under suspension since 30.4.2008. Nearly ten months have passed thereafter. The W.P(C) No. 6312 of 2009-H 10 pleadings disclose that the fourth respondent moved the Deputy Director of Education seeking revocation of suspension in her representation dated 2.9.2008. I accordingly direct that the the Deputy Director of Education, Kollam shall pass final orders on the representation dated 2.9.2008 (Exhibit R5(a) in W.P(C)No.36879 of 2008) filed by the fourth respondent seeking revocation of the suspension within one month from the date on which the fourth respondent produces a certified copy of this judgment. The Deputy Director of Education shall issue notice to the Manager, the fourth respondent and petitioners 12 and 13 before passing orders as directed above. It is made clear that petitioners 1 to 11 have no right to be heard. I make it clear that I have not expressed any opinion on the merits of the rival contentions and it will be open to the Manager and the fourth respondent to raise all available contentions before the Deputy Director of Education who shall pass orders having due regard to the purpose underlying sub rule (8A) of Rule 67 of Chapter XIV A of the KER. The writ petition is disposed of as above. P.N.RAVINDRAN, JUDGE ab W.P(C) No. 6312 of 2009-H 11 ab