Kerala High Court
B.Shobha vs State Of Kerala on 4 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
WP(C) NO. 7865 OF 2011
PETITIONER/PETITIONER:
B.SHOBHA
VOCATIONAL HIGHER SECONDARY SCHOOL, KARAVARAM,, KALLAMBALAM,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.SANTHAN V.NAIR
SRI.V.V.MITHUN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-, 695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695001.
3 THE DEPUTY DIRECTOR OF EDUCATION
THIRUVANANTHAPURAM-695001.
4 THE DISTRICT EDUCATIONAL OFFICER
ATTINGAL,THIRUVANANTHAPURAM -695 013.
5 G.SURESH, MANAGER, VOCATIONAL HIGHER
SECONDARY SCHOOL, KARAVARAM, KALLAMBALAM, THIRUVANANTHAPURAM
DISTRICT-695 513.
6 THE HEAD MASTER VOCATIONAL HIGHER
SECONDARY SCHOOL, KARAVARAM, KALLAMBALAM,,
THIRUVANANTHAPURAM DISTRICT-695 513.
7 P.SREEKUMAR, ADVOCATE, ANEESH BUILDING
KUPPAKKONAM ROAD, NEDUMANGADU P.O., THIRUVANANTHAPURAM DIST.
BY ADV SRI.ELVIN PETER P.J.
OTHER PRESENT:
WP(C) NO. 7865 OF 2011
2
G.P - SRI. V. VENUGOPAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7865 OF 2011
3
JUDGMENT
While working as a Senior Assistant in the services of the
"Vocational Higher Secondary School", Karavaram,
Thiruvanthapuram, the petitioner was placed under suspension by
its Manager - the 5th respondent, imputing several counts of
misconduct against her. The petitioner says that, however, through
Ext.P16 order, the 4th respondent - District Educational Officer
(DEO), directed the Manager to reinstate her, conclusively finding
that there was no prima facie ground justifying the suspension and
she points out that this has been done by the said Authority
invoking the power vested in him under Rule 67(8) of Chapter
XIVA of the Kerala Education Rules (KER).
2. The petitioner alleges that without complying with
Ext.P16, the Manager went before the Government through a
statutory Revision and when the said Revision was also dismissed,
instead of reinstating her, he issued Ext.P22 proceedings dated
15.09.2010, appointing the 7th respondent as an Enquiry Officer
and thus proceeding to conduct a 'disciplinary enquiry' against
her. She says that even though such an enquiry is unheard of in
WP(C) NO. 7865 OF 2011
the annals of the Kerala Education Act and the Rules, the 7 th
respondent completed the said process and framed Ext.P24 report
finding her guilty. She says that thereafter, the Manager issued
Ext.P25 asking her to submit 'comments" if any, in writing within
a period of 15 days from its receipt. The petitioner thus asserts
that Exts.P22, P24 and P25 are contrary to law and have been
settled and issued in flagrant violation of the provisions of the
KER; and therefore, prays that same be set aside.
3. I have heard Sri.Santhan V. Nair, learned counsel for
the petitioner and Sri.V.Venugopal, learned Government Pleader
appearing for the official respondents.
4. Sri.Santhan V. Nair, submitted that, pending this lis, his
client was reinstated in service, but that the salary and other
allowances have not been paid by the Manager, constraining her to
approach this Court through I.A.No.5897/2011, which was ordered
on 6th of May, 2011, directing the 4 th respondent - Manager to
disburse the same on the strength of a bond to be executed by her,
undertaking to repay the amounts if it is finally found that she is
not entitled to the same. Sri.Santhan V. Nair, submits, it is through
WP(C) NO. 7865 OF 2011
such process, that his client has now received the salary; and thus
reiteratingly prayed that the writ petition be allowed, since the
impugned orders are egregiously in conflict with the provisions of
the KER.
5. Sri.V.Venugopal, learned Government Pleader, affirmed
the afore submissions of Sri.Santhan V. Nair, adding that once the
4th respondent - DEO had issued Ext.P16 order under the
provisions of Rule 67(8) of Chapter XIVA of the KER and once it
had been confirmed by the Government, the Manager had no other
option but to have reinstated the petitioner; and instead of doing
so, he unilaterally appointed the 7 th respondent as an Enquiry
Officer through Ext.P22, thus creating a facade of a disciplinary
enquiry, leading to Ext.P25 notice to be issued to the petitioner.
He submitted that as per the provisions of Rule 75 of Chapter XIVA
of the KER, an enquiry can be conducted only by the educational
Authorities and that, based on the enquiry report alone can the
Manager proceed to impose any punishment on a delinquent
teacher. He says that in this case, on the contrary, the Manager
unilaterally appointed the 7th respondent as an enquiry officer and
then proceeded to conduct a disciplinary enquriy to obtain 'enquiry
WP(C) NO. 7865 OF 2011
report' and to then issue Ext.P25 to the petitioner, asking to show
cause why punishment be not imposed against her. He submitted
that all these actions of the Manager are completely without
forensic support and therefore, prayed that this writ petition be
allowed.
6. The learned Government Pleader then added that since
the Manager is clearly seen to have acted in violation of law and in
egregious disregard to the directions of the educational
Authorities, action may be permitted to be continued against him
under Rule 7 of Chapter III of the KER, explaining that a
Government Order for the said purpose has already been issued,
which had been challenged before this Court by the Manager
earlier, but it had been subsequently dismissed.
7. I have given my anxious thought to all the orders and
materials available on record.
8. It is indubitable that, going by the provisions of the
KER, particularly Rule 75 of Chapter XIVA thereof, a disciplinary
enquiry can be conducted only by the competent educational
Authority and it is only based on the report of such a process, can
the Manager impose any punishment on a delinquent teacher. The
WP(C) NO. 7865 OF 2011
action of the Manager to appoint an enquiry Officer of his own,
who is an outsider; and then to obtain an 'enquiry report' from
such a person, leading to imposition of punishment is unheard
within the contours of the KER and am, therefore, certain in my
mind that such actions cannot be granted imprimatur by this
Court.
9. The facts of this case limpidly reveal that the suspension
imposed against the petitioner by the Manager was interfered by
the DEO through Ext.P16, invoking his power under Rule 67(8) of
Chapter XIVA of the KER; and obviously, therefore, unless the
Manager was able to convince the educational Authorities to
conduct a proper enquiry against the petitioner thereafter, he
could not have ventured to appoint the 7 th respondent as an
'enquiry officer' or to conduct a 'disciplinary enquiry' unilaterally,
in the manner as has been done through Exts.P23, and P24.
10. I am, therefore, of the sure opinion that the orders and
proceedings impugned in this writ petition cannot be allowed to
stand for a moment further and that they deserve to be set aside,
finding them to be null and void and without any legal sanction.
In the afore circumstances, this writ petition is allowed and
WP(C) NO. 7865 OF 2011
Exts.P22, P24 and P25 are set aside; resutantly directing the
Manager to ensure that all eligible salary and allowances during
the entire period is paid to the petitioner, if it has not been already
paid, as expeditiously as is possible but not later than two months
from the date of receipt of a copy of this judgment.
Needless to say, if the Government intends to proceed
against the Manager in terms of Rule 7 of Chapter III of the KER,
they will be at full liberty to do so; however, on condition that they
follow due procedure and give necessary opportunity to the
Manager, as per the provisions of the KER.
SD/-
DEVAN RAMACHANDRAN
JUDGE
rp
WP(C) NO. 7865 OF 2011
APPENDIX OF WP(C) 7865/2011
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NEWS ITEM THAT CAME IN THE
MATHRUBHUMI NEWSPAPER DATED 24/07/2007.
Exhibit P2 TRUE COPY OF THE NEWS ITEM THAT WAS PUBLISHED IN
THE DESABHIMANI NEWSPAPER DATED 30/11/2008.
Exhibit P3 TRUE COPY OF THE WRITTEN COMPLAINT DATED
14/10/2009.
Exhibit P4 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE HEAD
MASTER DATED 01/06/2010.
Exhibit P5 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE
DISTRICT PANCHAYATH PRESIDENT DATED 07/06/2010.
Exhibit P6 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE PTA
PRESIDENT DATED 20/06/2010.
Exhibit P7 TRUE COPY OF THE PETITION SUBMITTED TO THE 4TH
RESPONDENT DATED 21/06/2010.
Exhibit P8 TRUE COPY OF THE PETITION SUBMITTED TO THE 3RD
RESPONDENT DATED 21/06/2010.
Exhibit P9 TRUE COPY OF THE SHOW CAUSE MEMO DATED 23/06/2010
ISSUED BY THE 5TH RESPONDENT.
Exhibit P10 TRUE COPY OF THE REPLY TO EXT.P9 MEMO DATED
25/06/2010.
Exhibit P11 TRUE COPY OF THE SUSPENSION ORDER DATED 01/07/2010.
Exhibit P12 TRUE COPY OF THE PETITION DATED 02/07/2010
SUBMITTED TO THE 4TH RESPONDENT.
Exhibit P13 TRUE COPY OF THE STATEMENT GIVEN BY 14 TEACHERS TO
THE 4TH RESPONDENT.
WP(C) NO. 7865 OF 2011
Exhibit P14 TRUE COPY OF THE STATEMENT GIVEN BY DRAWING TEACHER
DATED 13/07/2010.
Exhibit P15 TRUE COPY OF THE STATEMENT GIVEN BY FOUR NON
TEACHING STAFF.
Exhibit P16 TRUE COPY OF THE ORDER NO. B5-4543/2010 DATED
14/07/2010.
Exhibit P17 TRUE COPY OF THE COMPLAINT DATED 15/07/2010
SUBMITTED TO THE 4TH RESPONDENT.
Exhibit P18 TRUE COPY OF THE CHARGE MEMO DATED 15/07/2010.
Exhibit P19 TRUE COPY OF THE JUDGMENT DATED 30/07/2010 IN WPC
NO. 23806/2010.
Exhibit P20 TRUE COPY OF THE LETTER DATED 18/10/2010 NO.
B5/4543/10.
Exhibit P21 TRUE COPY OF THE SUBMISSIONS DATED 18/09/2010 GIVEN
TO THE 1ST RESPONDENT.
Exhibit P22 TRUE COPY OF THE COMMUNICATION NO. LN15/2010 DATED
15/09/2010.
Exhibit P23 TRUE COPY OF THE PETITION FILED BY THE PETITIONER
DATED 18/09/2010.
Exhibit P24 TRUE COPY OF THE ENQUIRY REPORT DATED 15/01/2011.
Exhibit P25 TRUE COPY OF THE NOTICE DATED 14/02/2011 TO SUBMIT
COMMENTS ON EXT.P24 REPORT.
