IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.2854 OF 2018(F)
PETITIONER:
MANAGER, S.P.S.S.U.P.SCHOOL,
THODIYOOR, KARUNAGAPALLY, KOLLAM-690 518.
BY ADVS.
SRI.JIJI THOMAS
SMT.SMITHA MATHEW
RESPONDENTS:
1 STATE OF KERALA, REP.BY SECRETARY,
MINISTRY OF EDUCATION,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF PUBLIC INSTRUCTION,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
3 ASSISTANT EDUCATION OFFICER,
SUB DISTRICT, KARUNAGAPPALLY-690 518.
4 K.PADMAKUMAR, S/O KUNJU KRISHNAN KRISHNAVENI,
THODIYOOR P.O, KARUNAGAPPALLY, PIN-690 518.
BY ADVS. SRI.H.ABDUL SUDHEER
SRI.M.P.HARIKUMARAN PILLAI
SRI.V.B.NARAYANAN
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2854 OF 2018(F)
-2-
JUDGMENT
Dated this the 1st day of February 2021 The Manager of "S.P.S.S.U.P. School", Kollam, has approached this Court assailing Ext.P5 order dated 17.01.2018, issued by the Assistant Educational Officer (AEO), Karunagappally - directing reinstatement of the fourth respondent, who was the Headmaster of the School, for the reason that his suspension beyond 15 days, as ordered by the Manager, was without concurrence of the competent Educational Authorities and, therefore, illegal.
2. The petitioner contends that the charges levelled against the fourth respondent, which is evident from Ext.P1 suspension order dated 01.01.2018, are extremely grave and involves moral turpitude, since he was in possession of certain materials which ought not to have been found in his custody while functioning as the Headmaster and that too, WP(C).No.2854 OF 2018(F) -3- from within the premises of the School.
3. The petitioner says that,
therefore, the Educational Authorities were
bound to grant concurrence to the suspension of the fourth respondent and that, through an interim order dated 29th May 2018, this Court had permitted the continuation of the said respondent under suspension and that he, subsequently, retired from service. The petitioner, therefore, prays that Ext.P5 reinstatement order be set aside and necessary action against the fourth respondent be directed to be completed.
4. In response to the afore
submissions of Sri.Jiji Thomas Pambackal -
learned Counsel for the petitioner, the learned Senior Government Pleader - Sri.P.M.Manoj, submitted that, as is evident from the Statutory Scheme of the Kerala Education Rules (for short, 'the KER'), any suspension beyond the period of fifteen days, initially ordered WP(C).No.2854 OF 2018(F) -4- by the Manger, is permissible only if the concurrence of the competent Educational Authority is obtained. He asserts that since the Manager has not been able to obtain such concurrence, continuation of the suspension of the fourth respondent is illegal; and therefore, prayed that Ext.P5 be allowed to operate and necessary action against the Manager be permitted to be taken.
5. The learned counsel appearing for the fourth respondent - Sri.V.B.Narayanan, submitted that his client is completely innocent of all the charges levelled against him and that, even as of today, no enquiry has been initiated against him, thus demonstrating that what is alleged by the Manager are unsubstantiated imputations, which have no factual basis. The learned counsel further submitted that since his client has now retired from service, he is entitled to have his entire period of suspension regularized as duty; and WP(C).No.2854 OF 2018(F) -5- thus prayed that this Court direct his service and retiral benefits to be disbursed immediately, because his family is virtually starving.
6. I have considered the afore
submissions and have also gone through the
various orders, materials and pleadings
available on record very carefully.
7. The legal question as to whether suspension of a teacher can be continued beyond fifteen days without the concurrence of the competent Educational Authority, under the provisions of the Kerala Education Act and Rules, is no longer res integra since it is well established that without such permission continuation of suspension beyond 15 days is impermissible.
8. However, what is relevant in this case is that when the sanction for continuing the fourth respondent under suspension beyond the period of fifteen days was denied by the WP(C).No.2854 OF 2018(F) -6- Educational Authorities, the Manager had approached the Government through a Revision, which had also been dismissed. Thereafter, he approached this Court and obtained an interim order from another learned Judge on 29 th May, 2018 which reads as follows:
"Heard the learned counsel on both sides on the interim relief sought for in W.P. (C)No.9722/2018, i.e., an order to reinstate the petitioner in service as Headmaster of S.P.S.S. U.P. School, Thodiyoor, within a time frame.
2. Learned counsel for the petitioner in W.P.(C)No.9722/2018 would contend that the petitioner was placed under suspension for a period of 15 days by Ext.P11 order dated 1.1.2018 of the 3rd respondent Manager, with memo of charges, and the 2nd respondent Assistant Educational Officer granted approval for placing the petitioner under suspension for 15 days, vide Ext.P12 order dated 11.1.2018. Though the Manager extended the period of suspension beyond 15 days, vide Ext.P13 order dated 13.1.2018, and sought permission of the 2nd respondent Assistant Educational Officer to place the petitioner under suspension beyond 15 days, the same was declined vide Ext.P14 order dated 17.1.2018. The learned counsel would contend that, while declining permission, the 2nd respondent has taken note of the dismissal of the revision petition filed by the 3rd respondent Manager against the earlier order of suspension, i.e., Ext.P3 order dated 16.3.2017, which ended in dismissal vide Ext.P9 Government Order dated 28.12.2017.
WP(C).No.2854 OF 2018(F) -7-
3. Per contra, the learned counsel for the 3 rd respondent Manager, who is the writ petitioner in W.P.(C)No.2854/2018, would submit that Ext.P9 Government Order dated 28.12.2017 arises out of a revision petition filed by the Manager, challenging the order of educational authorities in relation to Ext.P3 order of suspension dated 16.3.2017, whereby the petitioner was placed under suspension on certain lapses in discharging his official duties as Head Master of the School, which are detailed in the statement of allegations. On the other hand, the petitioner was placed under suspension by Ext.P11 order of suspension dated 1.1.2018 on the ground that he has engaged in activities unbecoming of a teacher, which are detailed in the statement of allegations. After recording prima facie satisfaction on charge Nos.1, 4 and 15, the 2nd respondent Assistant Educational Officer, vide Ext.P12 order dated 11.1.2018 granted approval for placing the petitioner under suspension for 15 days. In such circumstances, the 2nd respondent went wrong in ordering reinstatement of the petitioner vide Ext.P14 order dated 17.1.2018 on the ground that the Government vide Ext.P9 order dated 28.12.2017 rejected the revision petition filed by the Manager against Ext.P3 order of suspension dated 16.3.2017, taking note of the fact that the petitioner has already been reinstated in service, and that he is about to retire from service in the year 2018.
4. Having considered the submissions made by the learned counsel on both sides, this Court finds that Charge No.1 levelled against the petitioner in the memo of charges dated 1.1.2018, which is enclosed along with Ext.P11 order of suspension, is grave in nature. In Ext.P12 order dated 11.1.2018, the Assistant Educational Officer while granting approval for Ext.P11 order of suspension, has recorded his prima facie WP(C).No.2854 OF 2018(F) -8- satisfaction as to Charge Nos.1, 4 and 15. In such circumstances, merely for the reason that, by Ext.P9 Order dated 28.12.2017, the Government rejected the revision petition filed by the 3rd respondent Manager, against the earlier order of suspension, i.e., Ext.P3 dated 16.3.2017, taking note of the fact that the petitioner has already been reinstated in service, the 2nd respondent ought not to have ordered reinstatement of the petitioner, vide Ext.P14 order dated 17.1.2018. Ext.P14 order is under challenge in W.P.(C)No.2854 of 2018 filed by the 3rd respondent Manager. In that writ petition, this Court has granted an interim stay of further proceedings pursuant to Ext.P14 order dated 17.1.2018 of the 2nd respondent, which is marked as Ext.P5 in that writ petition.
5. In Kendriya Vidyalaya Sangathan v. Satbir Singh Mahla [(2008) 4 SCC 445], the Apex Court observed that a teacher has to be a role model in the Society. He is a 'guru' who sets an example for the students.
6. Considering the facts and circumstances of the case, as borne out from the pleadings and materials on record, the petitioner has not made out a prima facie case for grant of an interim order for reinstatement in service. In such circumstances, the interim relief sought for in W.P.(C)No.9722 of 2018 is declined.
It is made clear that the observations contained in this order are made for the limited purpose to consider whether the petitioner has made out a prima facie case for grant of an interim order and that, the final disposal of these writ petitions will be untrammelled by the observations contained in this order."
9. It is, therefore, ineluctable that WP(C).No.2854 OF 2018(F) -9- this Court had considered the nature of the allegations against the fourth respondent and found cause to retain him under suspension; and that this was under the impression that enquiry against the fourth respondent would be completed without further delay.
10. However, the records show that even though the petitioner retired thereafter, no action under Section 75 of the Kerala Education Act has been taken forward and that, as matters now stand, he was not found guilty of any of the charges, but he has not been able to obtain any of his retirement benefits or service benefits on account of the period of suspension suffered by him.
11. That said, the real question is whether the petitioner's request for concurrence for continuing the fourth respondent under suspension was validly denied or otherwise.
12. As I have seen above, a learned WP(C).No.2854 OF 2018(F) -10- Single Judge of this Court had entered a prima facie opinion that such concurrence should not have been denied on account of the gravity of the charges against the fourth respondent, recorded in Ext.P1.
13. However, since no enquiry has been conducted based on these allegations until now and since the fourth respondent had already retired from service, I am of the firm view that this Court need not go into these aspects at this time, particularly because the allegations against the fourth respondent are not, in any manner, causing loss or damage either to the School or to the State.
14. I am, therefore, of the considered opinion that it will be justified and prudent at this time to allow the petitioner to retire from service without any further action being taken against him as per Ext.P2 charge memo dated 01.01.2018; and to resultantly direct the Authorities to issue orders treating the period WP(C).No.2854 OF 2018(F) -11- of suspension spent by him as duty.
15. The only other issue that survives for my consideration is whether any action is required against the Manager, under the provisions of Chapter III Rule 7 of the KER, for having allegedly violated Ext.P5. In this regard, I am certain that no such action can be taken against the Manager under the aforementioned provisions because of the interim order, afore extracted, granted by a learned Single Judge of this Court on 29th May, 2018. Since the learned Single judge has found that action of the Manager in retaining the fourth respondent under suspension cannot be found fault with, I am certain that no action against the Manager under the provisions of Chapter III can be initiated or concluded.
In the afore circumstances, I dispose of this writ petition, confirming Ext.P5 and thus directing the third respondent Assistant Educational Officer to issue necessary orders WP(C).No.2854 OF 2018(F) -12- treating the period of suspension suffered by the fourth respondent as duty and to disburse all his service and retirement benefits, as expeditiously as is possible - but not later than three months from the date of receipt of a copy of this judgment.
It is needless to say that, consequent to my directions above with respect to the fourth respondent, no action shall be initiated against the Manager of the School under Chapter III of the Kerala Education Rules on account of the reasons indicated above.
Sd/-
DEVAN RAMACHANDRAN JUDGE akv WP(C).No.2854 OF 2018(F) -13- APPENDIX OF WP(C) 2854/2018 PETITIONER'S/S EXHIBITS:
EXT. P1 COPY OF THE SUSPENSION ORDER ISSUED BY THE PETITIONER DATED 01.01.2018 EXT. P2 COPY OF THE CHARGE MEMO DATED 01/01/2018 EXT .P3 COPY OF THE ORDER ISSUED BY THE A.E.O DATED 11/01/2018.
EXT .P4 COPY OF THE LETTER DATED 16/01/2018, SUBMITTED TO THE AEO DATED FOR EXTENSION OF SUSPENSION BEYOND THE PERIOD OF 15 DAYS EXT.P5 COPY OF THE REINSTATEMENT ORDER ISSUED BY THE THE A.E.O.DATED 17/01/2018. EXT.P6 COPY OF THE GOVERNMENT ORDER DATED 28/12/2017.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(1) TRUE COPY OF THE COMPLAINT DATED 07.12.2016.
EXHIBIT R4(2) TRUE COPY OF THE ORDER DATED 18-02-2017 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT R4(3) TRUE COPY OF THE ORDER OF SUSPENSION DATED 16-3-17.
EXHIBIT R4(4) TRUE COPY OF THE ORDER DATED 28-3-2017 OF THE 3RD RESPONDENT.
EXHIBIT R4(5) TRUE COPY OF THE INTERIM ORDER DATED 21.07.2017 IN WP(C)NO.22576/17. EXHIBIT R4(6) TRUE COPY OF THE ORDER DATED 11-8-2017 WP(C)NO.26307/17.
EXHIBIT R4(7) TRUE COPY OF THE ORDER IN R.P.787/17 DATED 11-10-2017.
EXHIBIT R4(8) TRUE COPY OF THE ORDER DATED 11-10-2017 WP(C) NO.22576/17.
WP(C).No.2854 OF 2018(F) -14- EXHIBIT R4(9) TRUE COPY OF THE REVISION PETITION DATED 28-3-2017 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT R4(10) TRUE COPY OF THE ORDER DATED 28-12-2017 IN EXT.R4(9).
EXHIBIT R4(11) TRUE COPY OF THE REPORT DATED 09-06-2017 AND LIST OF ARTICLES RECOVERED.
EXHIBIT R4(12) TRUE COPY OF SUSPENSION ORDER AND MEMO DATED 01-01-2018.
EXHIBIT R4(13) TRUE COPY OF THE ORDER NO.5/2018 DATED 13-
01-2018.
//TRUE COPY// P.A. TO JUDGE