M.Narayanan vs State Of Kerala
2021 Latest Caselaw 14410 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                      WP(C) NO. 16772 OF 2013
PETITIONER:

             M.NARAYANAN
             MANIKKOTH HOUSE,P.O.PUNNAD,670703,KANNUR DISTRICT.

           BY ADV SRI.POOVAMULLE PARAMBIL ABDULKAREEM



RESPONDENTS:

     1     STATE OF KERALA
           REPRESENTED BY THE PRINCIPAL SECRETARY TO
           GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
           THIRUVANANTHAPURAM-695001.

     2     DEPIUTUY DIRECTOR OF EDUCATION,
           KANNUR DISTRICT,PIN-670001.

     3     ASSISTANT EDUCATIONAL OFFICER
           IRITTY,KANNUR DISTRICT-670001.

     4     THE MANAGER
           BAFAKI MEMORIAL LPS,VELIYAMBRA,P.O.P.R.NAGAR,
           PIN-670702, KANNUR DISTRICT.

             BY ADV GOVERNMENT PLEADER



             SRI. P.M.MANOJ - SR.GP




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   13.07.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 16772 OF 2013                 2



                                  JUDGMENT

The Headmaster of "Bafaki Memorial LPS", Kannur,

was imputed with three charges and disciplinary

action initiated against him. The said proceedings

ended up in the recommendation of punishment of

removal from service, which was then challenged

before this Court and a learned Judge found that

only one among the three charges would have been

found against him. This led to this Court directing

the competent Educational Authority to re-examine

the punishment, because the original one was imposed

upon him on the combined effect of the three

charges. This Court held therein that when two of

the charges are found incompetent, the Authority is

obligated to re-examine the punishment exclusively

from the stand point of the first charge and no

other. However, the Educational Authority chose not

to do so, which led to the Headmaster to approach

the Government; which also, however, dismissed it

through a non speaking order.

2. The above, in crux, is the factual

situation involved in this case, with the petitioner

being the Headmaster referred above.

3. The petitioner was issued with Ext.P2

charge memo, wherein, there were three charges

namely, (a) that he had misappropriated amounts from

the Provident Fund accounts of other teachers, by

forging their signatures; (b) that he had maintained

two Acquittance Registers illegally and (c) that he

had unauthorizedly deducted Rs.500/- per month from

the salary of another teacher by name Smt.Reshmi,

thus causing her a loss of Rs.2,444/-.

4. The afore charges against the petitioner were

found proved by the Manager and he imposed a

punishment of removal from service which, however,

was challenged by the petitioner before this Court

through W.P(C)No.30757 of 2009, resulting in Ext.P13

judgment, wherein, a learned Judge of this Court

concluded that charges two and three cannot be held

proved, though the first charge - being conceded -

must be construed to be so.

5. There upon, the following directions were

issued in the said judgment.

"26. The next question is whether the penalty was imposed solely based on the first charge or a result of combination of the three charges. All the charges have been cumulatively considered in Exts.P7 and P11. Therefore, they cannot be segregated and the matter will have to be remitted back to the Assistant Educational officer to pass a fresh order with regard to the penalty to be imposed based on the charge No.1, viz. Misappropriation of amounts.

27. The matter is hence remitted back to the Assistant Educational Officer to pass an appropriate order with regard to the penalty to be imposed on the basis of the charge of misappropriation contained in Ext.P3, in the light of the findings rendered above. An appropriate order will be passed after issuing a show cause notice to the petitioner proposing the penalty, and after affording an opportunity to furnish explanation and a personal hearing to him, within a period of three months from the date of receipt of a copy of this judgment. No costs".

6. It is thus needless to say that the

competent Educational Authority was expected to re-

examine the punishment based on the first charge

alone; but instead of doing so, the 3rd respondent -

Assistant Educational Officer, issued Ext.P16 order

- after having issued a show cause notice to the

petitioner, namely Ext.P14 - holding that the

punishment imposed against him cannot be reviewed

because he has also been directed by the Government

not to do so.

7. What is interesting in Ext.P16 order is

that the Assistant Educational Officer had found

that petitioner is guilty of maintaining two

"Acquittance Registers" and two "TC Books".

Pertinently, the first among this has been already

found not proven by this Court; while the second was

never a subject matter of the charge sheet or

enquiry against the petitioner.

8. The petitioner, therefore, challenged this

order before this Court through W.P(C)No.31143 of

2012, which ended in Ext.P17 judgment, directing him

to approach the Government through a statutory

Revision, under the provisions of Rule 92, Chapter

XIVA of the Kerala Education Rules (KER for short).

The petitioner obeyed these directions and preferred

Ext.P18 before the Government, but that was rejected

through Ext.P19 in the following cursory manner:-

"Inviting attention to the reference cited, I am to inform you that there is no situation prevail to re-examine the decision taken vide G.O(Rt)No.4758/10/G.Edn. Dated 28.10.2008. Hence the request in the representation cited above is declined."

9. The petitioner, thus assails Exts.P16 and

P19 as being illegal and unlawful; and prays that

respondents be directed to notionally reinstate him

in service - he having now crossed the age of

superannuation - and favour him with all eligible

service and retiral benefits.

10. I have heard Shri.P.P.Abdul Kareem, learned

counsel for the petitioner and Shri.P.M.Manoj,

learned Senior Government Pleader, appearing on

behalf of the official respondents.

11. Shri.P.M.Manoj justified Exts.P16 and P19,

arguing that the first charge in Ext.P2, admittedly

proved against the petitioner, is sufficient to

mulct him with the highest penalty of removal from

service. He submitted that since the petitioner had

unequivocally conceded to having misappropriated

amounts from the Provident Fund accounts of other

teachers, he is deserving of the strictest

punishment, which has been done through the impugned

orders. He, therefore, prayed that this writ

petition be dismissed.

12. I am afraid that, though in an abstract

sense, a person, who admits misappropriation, can be

mulcted with the highest punishment, it cannot be

automatically so concluded in this case because of

the rigour of the observations and directions in

Ext.P13 judgment afore extracted. A learned Judge of

this Court had found therein that the original

punishment imposed upon the petitioner was based on

three charges, but that since two among them cannot

be held proved, it requires to be re-examined from

the touchstone of the first charge alone.

13. Indubitably, therefore, the Assistant

Educational Officer was obligated to re-examine the

punishment, though he could have found that same is

still deserving to be imposed, but for reasons to be

recorded. However, what has been done by the said

Officer is that he took the second charge against

the petitioner to be proved and added to it another

charge, which was never included in Ext.P2 charge

sheet.

14. To make matters worse, in Ext.P16 he

records that there is no reason to re-examine the

punishment and that when Ext.P13 judgment was

brought to the notice of the Government, he was

instructed not to modify the punishment because an

earlier Appeal filed before it by the petitioner had

already been rejected.

15. It, therefore, becomes luculent that the 3rd

respondent - Assistant Educational Officer, did not

apply his mind at all in the manner as he was

directed in Ext.P13 judgment; but mechanically

affirmed the earlier punishment, merely recording

that there were no reasons to modify it.

16. Prima facie, this is in gross affront to

the directions of this Court in Ext.P13; and that

when the petitioner approached the Government

through a statutory Revision thereafter, same was

also rejected by the Government citing the reason

that there is no change in the factual scenario, so

as to warrant a modification of the initial

punishment.

17. It would not need greater elaboration than

afore for this Court to be persuaded to hold that

both Exts.P16 and P19 are totally obvious of the

spirit and tenor of Ext.P13 judgment, which

commanded the Assistant Educational Officer to

reconsider the punishment in the manner directed

therein.

18. Obviously, therefore, when there was a

direction to reconsider the punishment, it ought to

have been done, rather than the competent Officer

saying that there are no circumstances to do so and

that Government has asked him not to do so. The

affirmation of this order by the Government in

Ext.P19 is also without any application of mind; and

in any event of the matter, it being a completely

non speaking order, cannot find my favour.

19. I am, therefore, of the firm view that both

Exts.P16 and P19 are incompetent and that the 3 rd

respondent - Assistant Educational Officer must

reconsider the punishment imposed on the petitioner,

strictly adverting to the observations and

directions in Ext.P13 judgment.

Resultantly, this writ petition is allowed and

Exts.P16 and P19 are set aside; with a consequential

direction to the 3rd respondent - Assistant

Educational Officer to immediately reconsider the

punishment imposed upon the petitioner, as has been

ordered by this Court in Ext.P13 judgment, after

affording an opportunity of being heard to him -

either physically or through video conferencing -

thus culminating in an appropriate order thereon, as

expeditiously as is possible, but not later than two

months from the date of receipt of a copy of this

judgment.

I make it clear that while the afore exercise is

completed, the Assistant Educational Officer will

specifically keep in mind that only charge No.1 in

Ext.P2 has been found against the petitioner; and

will consequently decide upon the quantum of

punishment on such basis and no other.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/14.7

APPENDIX OF WP(C) 16772/2013

PETITIONER ANNEXURE

EXHIBIT-P1 TRUE COPY OF THE SUSPENSION ORDER NO.1/05 DATED 9/7/2005 OF THE 4TH RESPONDENT

EXHIBIT-P2 TRUE COPY OF THE MEMO OF CHARGES CUM STATEMENT OF ALLEGATIONS ISSUED BY 4TH RESPONDENT

EXHIBIT=-P3 TRUE COPY OF THE REPLY FURNISHED BY THE PETITIONER TO EXT.P2

EXHIBIT-P4 TRUE COPY OF THE REPLY NO.E/6480/05 DATED 10/10/2005 OF THE 3RD RESPONDENT

EXHIBIT-P5 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT

EXHIBIT-P6 TRUE COPY OF THE LETTER OF 4TH RESPONDENT TO THE 3RD RESPONDENT

EXHIBIT-P7 TRUE COPY OF THE ORDER NO.E/6480/05 DATED 26/4/2006 ISSUED BY 3RD RESPONDENT

EXHIBIT-P8 TRUE COPY OF THE DETAILED APPEAL BEFORE THE 2ND RESPONDENT

EXHIBIT-P9 TRUE COPY OF THE ORDER NO.B3/14637/05 DATED 20/2/2007

EXHIBIT-P10 TRUE COPY OF THE REVISION PETITION

EXHIBIT-P11 TRUE COPY OF THE GO(MS)NO.4758/08/G.EDN DATED 10/10/2008

EXHIBIT-P12 TRUE COPY OF THE LETTER NO.1813/09/G.EDN.DATED 24/4/2009

EXHIBIT-P13 TRUE COPY OF THE JUDGMENT DATED 21/5/2012 OF THIS HON'BLE COURT IN WP(C)30757/2009

EXHIBIT-P14 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26/9/2012

EXHIBIT-P15 TRUE COPY OF THE EXPLANATION DATED 20/10/2012 TO EXT.P14 SHOW CAUSE NOTICE.

EXHIBIT-P16 TRUE COPY OF THE ORDER NO.D/3030/2012/K.DIS.DATED 9/11/2012 ISSUED BY THE 3RD RESPONDENT

EXHIBIT-P17 TRUE COPY OF THE JUDGMENT DATED 31/12/2009 IN WP(C)31143/2012

EXHIBIT-P18 TRUE COPY OF THE REVISION PETITION DATED 17/1/2013.

EXHIBIT-P19 TRUE COPY OF THE ORDER DATED 28/5/2013 PASSED BY THE IST RESPONDENT.

RESPONDENT ANNEXURE

EXHIBIT R2(A) TRUE COPY OF THE ORDER NO.P5-9754/05/K.DIS DATED 18.04.2006 OF DISTRICT EDUCATIONAL OFFICER.