IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
WP(C) NO. 10653 OF 2014
PETITIONER:
THE MANAGER
MAR ATHANASIUS HIGH SCHOOL, KAKKANAD, KOCHI - 682030,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY,THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
ERNAKULAM AT KAKKANAD-682030.
4 THE DISTRICT EDUCATIONAL OFFICER
ALUVA,ERNAKULAM DISTRICT-683101.
5 SRI.K.M.MOIDEEN SHA
HIGH SCHOOL ASSISTANT(ARABIC)(UNDER SUSPENSION) MAR
ATHANASIUS HIGH SCHOOL,KAKKANAD,KOCHI-682030, ERNAKULAM
DISTRICT (RESIDING AT KATTAMKUZHI VEEDU.,
P.O.ERAMALLUR, KOTHAMANGALAM-686691).
SRI.P.SANKARANKUTTY NAIR
SRI.K.SANDESH RAJA
SRI.P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10653 OF 2014
2
JUDGMENT
The Manager of the "Mar Athanasius High School", Kakkanad - which is an aided School under the ambit of the Kerala Education Act and Rules (for short, 'the Act and KER')
- has assailed Exts.P4 and P7 orders issued by the Deputy Director of Education, Ernakulam and the Government respectively, which have effectively rejected his proposal for imposition of punishment of compulsory retirement against the fifth respondent - a High School Assistant in the School, and has directed him to substitute the same with a punishment of barring of three annual increments.
2. The petitioner says that even though the allegation against the fifth respondent - Teacher, that he had sexually harassed and misbehaved with certain girl students of the School, is proved, the Deputy Director of Education, Ernakulam, in his Ext.P4 order has found that these allegations and the proven charges did not justify the imposition of a major punishment like compulsory retirement.
3. The petitioner says that when he took up the issue before the Government, through a statutory revision, Ext.P7 order was issued, wherein, the Government found the WP(C) NO. 10653 OF 2014 3 allegations to have been proved but still confirmed Ext.P4 without assigning any reason and without affording him a hearing. The petitioner, therefore, prays that Exts.P4 and P7 be set aside and the competent Educational Authorities be directed to grant him permission to impose the major penalty of removal from service, as had been proposed by him.
4. I have heard Sri.M.Sajjad, learned counsel for the petitioner; Sri.P.Sankarankutty Nair, learned counsel appearing for the 5th respondent and Sri.P.M.Manoj, learned Senior Government Pleader.
5. I begin my opinion herein being fully aware that this Court has a very limited role in appreciating evidence in the matter of disciplinary enquiries.
6. The petitioner - Manager of the School conducted an enquiry, as required under the provisions of the KER and concluded that all the charges against the fifth respondent had been proved and thus proposed a punishment of compulsory retirement from service. When he approached the competent educational Authorities for concurrence of the same, Ext.P4 order was issued by the Deputy Director of Education, Ernakulam on 25.11.2013. In the said order, the WP(C) NO. 10653 OF 2014 4 said Authority merely says that the charges levelled against the fifth respondent "were not completely proved in enquiry" and that "the proven charges did not justify the decision of the management to impose major punishment like compulsory retirement" (sic).
7. Indubitably, the order did not cite any reason as to why the Deputy Director of Education had concluded so and justifiably therefore, the petitioner preferred a statutory revision before the Government. However, this exercise ended in Ext.P7, wherein, the Government, very interestingly, relied upon the earlier report of the District Educational Officer, Aluva, to hold that the allegations against the fifth respondent has been proved; but, without again assigning any reason, confirmed Ext.P4 order of the Deputy Director of Education thus affirming the punishment against the fifth respondent of barring of three increments with cumulative effect.
8. What is absolutely pertinent in Ext.P7 is that the said order is alleged by the petitioner to have been issued without hearing the petitioner and the conclusions therein are solely based on an earlier report of the District Educational Officer WP(C) NO. 10653 OF 2014 5 (DEO), which, in fact, confirmed the findings of guilt against the fifth respondent.
9. I must, at this time record that the learned Senior Government Pleader, Sri.P.M.Manoj opposed the allegations of the petitioner that Ext.P7 order was issued without hearing him, showing me that the said records that he was heard on 21.01.2014. However, in Ext.P10 letter issued by the petitioner, in response to the notice of hearing given to him, he has categorically said that he received the same a day after the proposed hearing and that was, therefore, incapacitated from participating in it. This being so, merely because Ext.P7 records so, I cannot accept the argument of Sri.P.M.Manoj that the petitioner had been heard before Ext.P7 had been issued.
10. When the Government found that the report of the DEO to be worthy of acceptance, then obviously, it should have cited reasons as to why the proposed punishment against the fifth respondent by the petitioner - Manager, required to be modified, as had been ordered through Ext.P4 by the Deputy Director of Education. This has not been done in Ext.P7 and without assigning any reason whatsoever, the WP(C) NO. 10653 OF 2014 6 Government has merely affirmed Ext.P4, though finding the fifth respondent guilty of all charges.
11. It is, therefore, obvious that this Court cannot grant any favour to the order of the Government, namely Ext.P7; and that the matter will require to be reconsidered by its competent Authority. This is more so because, ever since the year 2014 when this writ petition was admitted, both Exts.P4 and P7 have remained stayed.
In the afore circumstances, I order this writ petition and set aside Ext.P7; with a consequential direction to the competent Authority of the Government to reconsider the entire matter, after affording an opportunity of being heard to the petitioner and to the fifth respondent - either physically or through video conferencing - thus culminating in a fresh order, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment.
This writ petition is thus ordered.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 10653 OF 2014 7 APPENDIX OF WP(C) 10653/2014 PETITIONER ANNEXURE EXT.P1 COPY OF THE ORDER OF THE MANAGER DATED 20.12.2012 EXT.P2 COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 17/1/2013 EXT.P3 COPY OF THE ENQUIRY REPORT DATED 17.5.2013 EXT.P4 COPY OF THE ORDER NO.B1/305/13/K.DIS.DATED 25.11.2013 OF THE DEPUTY DIRECTOR EXT.P5 COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 30-11-2013 EXT.P6 COPY OF THE JUDGMENT IN W.P.(C)29796/2013-Y DATED 4.12.2013 EXT.P7 COPY OF THE G.O.(RT)NO.1084/14/G.EDN.DATED 28.2.2014 OF THE GOVERNMENT EXT.P8 COPY OF THE HEARING NOTICE DATED 13.01.2014 EXT.P9 COPY OF THE COVER SHOWING THE ADDRESS OF THE PARTIES EXT.P10 COPY OF THE LETTER OF THE MANAGER DATED 21.1.2014 EXT.P11 COPY OF THE LETTER OF THE MANAGER DATED 15.3.2014 EXT.P12 COPY OF THE COVER SHOWING THE ADDRESS OF THE PARTIES.