Manager vs State Of Kerala
2021 Latest Caselaw 3445 Ker

               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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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