Kerala High Court
The Manager, Mar Athanasius High ... vs The State Of Kerala on 1 July, 2021
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
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
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
(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
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
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.
