Mary Fernandez.J vs State Of Kerala
2021 Latest Caselaw 6794 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                       WP(C).No.25669 OF 2020(G)


PETITIONER:

               MARY FERNANDEZ.J
               AGED 52 YEARS
               W/O.WILLIAM LOPEZ, RESIDING AT SHALOM, KAIRALI NAGAR,
               NEAR FCI, KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 104,
               HEADMISTRESS(UNDER SUSPENSION), ST.VINCENT'S HIGH
               SCHOOL, KANIYAPURAM,
               THIRUVANANTHAPURAM DISTRICT, PIN-695 301.

               BY ADVS.
               SMT.A.A.SHIBI
               SRI.P.V.VIJU

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO THE GOVERNMENT,
               DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2        THE DIRECTOR OF GENERAL EDUCATION,
               JAGATHI, THIRUVANANTHAPURAM-695 014.

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               THIRUVANANTHAPURAM-695 014.

      4        THE DISTRICT EDUCATIONAL OFFICER,
               PALAYAM, THIRUVANANTHAPURAM-695 001.

      5        THE MANAGER, RC SCHOOLS, SAMANWAYA,
               ARCHBISHOPS HOUSE COMPOUND, VELLAYAMBALAM, KOWDIAR
               P.O., THIRUVANANTHAPURAM 695 003

               R5 BY ADV. SRI.Y.BEYLINE DASY

               SR GP NISHA BOSE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.25669 OF 2020(G)

                                      2




                                  JUDGMENT

Dated this the 26th day of February 2021

The prayers in this writ petition are as follows:

"i) To declare that Exhibit P4 suspension order issued by the 4th respondent, suspending the petitioner from service is illegal, without any valid reasons, arbitrary and against the provisions of the Kerala Education Rules and hence unsustainable.

ii) To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading up to Exhibit P4 and quash the same.

iii) To issue a writ in the nature of mandamus or any other writ or order or direction, directing the 5 th respondent Manager to re-instate the petitioner in service, treating the suspension period from 28.03.2019 onwards as duty for all purposes.

iv) To issue a writ of mandamus or other writ or order or direction directing respondents 1 to 3 to take action against the 5th respondent under Rule 7, Chapter IV, KER for not re-instating the petitioner in service and also directing the respondents to pay full salary for the period of suspension that is from 28.03.2019 to the date of re- instatement of the petitioner in service.

WP(C).No.25669 OF 2020(G)

v) To set aside Exhibit P19 report submitted by the 3 rd respondent as it is prepared without complying the procedure as contemplated under Rule 75, Chapter XIV A KER.

vi) To set aside the direction of 1st respondent in Exhibit P22 only to a limited extent that continue disciplinary proceedings against the petitioner,

vii) To direct the 3 rd respondent to conduct fresh enquiry under Rule 75, Chapter XIV A KER by complying the procedure."

2. Heard the learned counsel for the petitioner and the learned

Government Pleader as well as the learned counsel appearing for the

5th respondent.

3. The bone of contention between the parties at the initial

stage of the writ petition was with regard to reinstatement of the

petitioner. Pursuant to an interim order passed by this Court, the

petitioner has since been reinstated in service. The remaining issue

is with regard to the completion of the enquiry under Rule 75 of

Chapter XIV A KER and the further proceedings to be taken thereon.

It is the specific case of the petitioner that the enquiry under Rule 75

was not properly conducted by the 3rd respondent and that the WP(C).No.25669 OF 2020(G)

petitioner was not given a proper opportunity to cross examine the

witnesses examined by the Manager or to establish her innocence in

the proceedings.

4. The learned Government Pleader would submit on

instructions that the parties had been heard. However it appears

from the materials on record that the enquiry was apparently not

one conducted in terms of Rule 75 of Chapter XIV A KER. The

procedure for conduct of an enquiry under Rule 75 are specifically

provided therein. The relevant provisions read as follows:

[75.Procedure for imposing major penalties :- (1) (a) Whenever a complaint is received or on intimation from the authorised Officer as per Section 12(A) is recorded or on consideration of the report of investigation or for other reasons the manager is satisfied that there is prima facie case for taking action against the teacher definite charge or charges shall be framed and communicated to him with the statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The teacher shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defence and also to state whether he desires to be heard in person. The teacher may on his request be permitted to peruse or take extracts from the records pertaining to the case for the purpose of preparing the written statement; provided the manager may, for reasons to be recorded in writing refuse him such access if in his opinion such records are not strictly relevant to the case or it is not essential in Public interest to allow such access.

After the written statement is received within the time allowed, the manager may if he is satisfied that a formal enquiry should be held into the conduct of the teacher, order that a formal enquiry may be conducted.

WP(C).No.25669 OF 2020(G)

(b) The Manager shall forward the records of the case with a request to the [Deputy Director, (Education)] in the case of Headmasters of High Schools and Training Schools or to the Educational officers in other cases, that the formal enquiry may be conducted by that Officer or any other officer not below the rank of an Assistant Educational Officer authorised by that officer or an officer of the department appointed by the Director or Government.

(c) The Manager shall also intimate the Government or the authorised officer as the case may be, the date of initiation of the disciplinary proceedings and also the date of passing final order within 7 days from such dates.

(2) The Inquiring Authority may during the course of inquiry if it deems necessary, add to, amend, alter or modify the charges framed against the teacher in which case, the teacher shall be required to submit within a reasonable time to be specified in that behalf any further written statement of his defence.

(3) The teacher shall for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused, if for reasons to be recorded in writing, in the opinion of the Inquiring Authority, such records are not relevant for the purpose or it is against the Public Interest to allow him such access thereto.

(4) On receipt of the further written statement of defence under sub- rule (3) or if no such statement is received within the time specified therefor or where the teacher is not required to file a written statement under the said sub-rule the Inquiring Authority may inquire into such of the charges as are not admitted.

(5) The teacher may himself present his case before the Inquiring Officer and he may not be allowed to engage a legal practitioner for the purpose.

(6) The Inquiring Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The teacher shall be entitled to cross examine witnesses examined in support of the charge and to give evidence in person and to have such witnesses as may be produced, examined in his defence. The person presenting the case in support of the charges shall be entitled to cross examine the teacher and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material it shall record its reason in writing. WP(C).No.25669 OF 2020(G)

Note:- If the Inquiring Authority proposes to rely on the oral evidence of any witness the authority should examine such witness in the presence of the teacher and give an opportunity to cross-examine the witness.

(7) The teacher may present to the Inquiring Authority a list of witnesses whom he desires to examine in his defence. The Inquiring Authority will normally request such witnesses to appear before him to give evidence. Where the witness to be examined is any other teacher the Inquiring Authority will normally try to secure the presence of witnesses unless he is of the view that the witness's evidence is irrelevant or not material to the case under inquiry. Where the witness proposed to be examined by the teacher is any other person the Inquiring Authority will be under no obligation to summon and examine him unless the teacher himself produces him for examination.

(8) At the conclusion of the inquiry, the Inquiry Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with the reasons therefore. If in the opinion of such authority the proceedings of inquiry establish charges different from those originally framed, it may record its findings on such charges provided that findings on such charges shall not be recorded unless the teacher has admitted the facts constituting them or has had opportunity of defending himself against them.

(9) The records of inquiry shall include:-

(i) the charges framed against the teacher and the statement of the allegation furnished to him;

(ii) his written statement if any;

(iii) the oral evidence taken in the course of inquiry;

(iv) the documentary evidence considered in the course of the inquiry;

(v) the orders; if any; made in regard to the inquiry;

(vi) a report setting out the findings on each charges and the reasons therefore.

(10) After the inquiry the inquiry authority shall forward the record of inquiry to the manager.

(11) If the Manager is of opinion that any of the penalties specified in items (iv) to (viii) of rule 65 should be imposed, he shall;

(a) Furnish to the teacher a copy of the report of the Inquiring Authority.

(b) Give him a notice stating the action proposed to be taken in regard to him and calling up on him to submit within a specified time WP(C).No.25669 OF 2020(G)

which may not generally exceed one month such representation as he may wish to make against the proposed action provided that such representation, shall be based only on the evidence adduced during the inquiry.

(c) On receipt of the representation, if any and after taking into consideration the representation, final orders shall be passed by the manager imposing the penalty with the previous sanction of the competent authority.

(12) The procedure referred to above shall be conducted as expeditiously as the circumstances of the case may permit, particularly one against a teacher under suspension.]

This Court had occasion to consider the issue of proper

conduct of disciplinary proceedings against erring teachers in

several decisions and it has been held that the enquiry has to be

conducted complying with the specific provisions of the Rules.

5. In the above view of the matter, I am of the opinion that the

enquiry under Rule 75 of Chapter XIV A KER is liable to be conducted

strictly in accordance with the provisions of the Rules and an

enquiry report is also to be drawn up and provided to the delinquent

teacher. In the above view of the matter, the proceedings which

have now been taken under Rule 75, which are not in compliance

with the provisions of the Rules cannot be sustained.

There will, accordingly, be a direction to the respondents to

conduct an enquiry against the petitioner in strict compliance with WP(C).No.25669 OF 2020(G)

the provisions of Rule 75 of Chapter XIV A KER. The enquiry will

proceed from the stage of taking of evidence and an enquiry report

shall be drawn up and forwarded to the Manager for appropriate

further action. The witnesses, if any, shall be examined in the

presence of the petitioner and an opportunity to cross examine the

witnesses shall also be afforded to both sides. The enquiry shall be

completed within a period of three weeks from the date of receipt of

a copy of this judgment. On the enquiry report being forwarded,

appropriate steps shall be taken by the Manager in accordance with

law. The further proceedings shall also be expedited by the

Management and appropriate steps shall be taken within a period of

three weeks thereafter. Ext.P19 and further proceedings taken by

the Manager shall stand set aside for the implementation of the

directions as above.

With the above directions, this writ petition is disposed of.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C).No.25669 OF 2020(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 27.02.2019 IN WPC NO.2827/2019 OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 19.02.2019.

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 25.02.2019.

EXHIBIT P4 TRUE COPY OF THE SUSPENSION ORDER DATED 28.03.2019 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 30.03.2019.

EXHIBIT P5 A TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM AJ HOSPITAL, KAZHAKKUTTOM, TRIVANDRUM.

EXHIBIT P5 B TRUE COPY OF ORDER NO.B(7)/4883/2019/DDE DATED 09.04.2019 OF THE 3RD RESPONDENT.

EXHIBIT P5 C TRUE COPY OF MERCY PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.04.2019.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 04.04.2019 IN WP NO.10626/2019 PASSED BY THIS HON'BLE COURT.

EXHIBIT P6 A TRUE COPY OF APPEAL SUBMITTED BY THE PETITIONER DATED 05.04.2019 BEFORE THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF MEMO OF CHARGES DATED 02.05.2019 ALONG WITH STATEMENT OF ALLEGATIONS.

EXHIBIT P8 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 09.05.2019.

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 15.06.2019 FILED BEFORE THE EDUCATION MINISTER ALONG WITH TYPED COPY.

WP(C).No.25669 OF 2020(G)

EXHIBIT P10 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 16.08.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER DATED 16.10.2019.

EXHIBIT P13 TRUE COPY OF THE LETTER DATED 10.10.2019 ISSUED BY THE 3RD RESPONDNET.

EXHIBIT P14 TRUE COPY OF PETITION DATED 19.11.2019 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT DATED 03.12.2019.

EXHIBIT P16 TRUE COPY OF REQUEST MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR REINSTATE IN SERVICE DATED 03.12.2019.

EXHIBIT P17 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.12.2019.

EXHIBIT P17 A TRUE COPY OF CIRCULAR NO.J1/164/19/GED DATED 28.06.2019.

EXHIBIT P18 TRUE COPY OF THE ORDER DATED 30.12.2019 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P19 TRUE COPY OF COMMUNICATION DATED 05.02.2020 ALONG WITH REPORT ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P19 A TRUE COPY OF NOTICE SENT BY THE 1ST RESPONDENT TO THE PETITIONER DATED 01.02.2020.

EXHIBIT P19 B TRUE COPY OF DETAILED HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 14.02.2020.

EXHIBIT P19 C TRUE COPY OF ADDITIONAL HEARING NOTE DATED 15.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P20 TRUE COPY OF LETTER DATED 20.02.2020 SENT BY THE 5TH RESPONDENT TO THE PETITIONER. WP(C).No.25669 OF 2020(G)

EXHIBIT P21 TRUE COPY OF DETAILED REPLY SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 20.03.2020.

EXHIBIT P22 TRUE COPY OF ORDER DATED 27.05.2020 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P23 TRUE COPY OF LETTER DATED 19.06.2020 SENT BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P24 TRUE COPY OF LETTER DATED 13.06.2020 SENT BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P25 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P26 TRUE COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT

EXHIBIT P27 TRUE COPY OF COMMUNICATION DATED NIL RECEIVED BY THE PETITIONER ON 28.09.2020

EXHIBIT P28 TRUE COPY OF APPEAL FILED BEFORE 2ND RESPONDENT DATED 15.12.2020

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5 A TRUE COPY OF INVESTIGATIVE REPORT SUBMITTED BY 3RD RESPONDENT

EXHIBIT R5 B TRUE COPY OF REQUEST LETTER FOR PREVIOUS SANCTION FORWARDED BY 5TH RESPONDENT

EXHIBIT R5 C COPY OF THE REQUEST NO.274/2019 DATED 30.10.2019

EXHIBIT R5 D COPY OF REQUEST NO.291/2019 DATED 19.11.2019

EXHIBIT R5 E COPY OF RECEIPT OF REQUESTS

EXHIBIT R5 F COPY OF INTIMATION LETTER NO.377/2020 DATED 17.02.2020

EXHIBIT R5 G COPY OF ACKNOWLEDGED COPY OF ORDER ON 28.09.2020