Kerala High Court
Abhilash.D.S vs The State Of Kerala on 18 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
CRL.MC NO. 3106 OF 2019
PETITIONER/1st ACCUSED:
V.SANTHAKUMARI AMMA,
AGED 75 YEARS
W/O. K. DAMODARAN PILLAI, MATHRAKKAL HOUSE,
PUNNAKULAM P.O., KOTTUKAL, BALARAMAPURAM,
THIRUVANANTHAPURAM.
BY ADVS.
K.MOHANAKANNAN
SMT.T.V.NEEMA
RESPONDENT/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HON'BLE HIGH
COURT OF KERALA, ERNAKULAM-682031.
2 THE DIRECTOR,
VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM-695001.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.
4 K.R. JAYAKUMAR,
'ANJALI', MARUTHOORKJONAM, KOTTUKAL P.O.,
THIRUVNANTHAPURAM DISTRICT-695123.
BY ADVS.
GOVERNMENT PLEADER
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
SMT.N.R.REESHA
SMT.T.S.LIKHITHA
OTHER PRESENT:
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 2
SR.GP REKHA .S , SR.GP ANTONY MUKKATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.03.2022, ALONG WITH WP(C).24620/2019, THE COURT ON
18/3/2022 PASSED THE FOLLOWING:
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
WP(C) NO. 24620 OF 2019
PETITIONERS:
1 ABHILASH.D.S
AGED 41 YEARS
AMRUTHAM,PUNNAKULAM,
KOTTUKAL P.O., BALARAMAPURAM,
THIRUVANANTHAPURAM,PIN-695 501
2 ANEESH D.S.,
MATHRAKAL HOUSE, PUNNAKULAM,
KOTTUKAL P.O., BALARAMAPURAM,
THIRUVANANTHAPURAM,PIN-695 501
BY ADV M.AJAY
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, GENERAL EDUCATIONAL
DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM,PIN-
695 001
2 THE DEPUTY DIRECTOR OF EDUCATION,
KOCHAR ROAD, CHALAI, PAZHAYASALI, VALIYASALAI,
THIRUVANANTHAPURAM,PIN-695 501
3 THE DISTRICT EDUCATIONAL OFFICER,
DEO OFFICE, MINI CIVIL STATION, NEYYATTINKARA P.O.,
THIRUVANANTHAPURAM,PIN-695 121
4 THE HEADMASTER-IN-CHARGE,
PTM VOCATIONAL HIGHER SECONDARY SCHOOL,
MARUTHOORKONAM, THIRUVANANTHAPURAM,PIN-695 501
5 THE VIGILANCE AND ANTI-CORRUPTION BUREAU ,
REPRESENTED BY ITS DIRECTOR, DIRECTORATE OF
VIGILANCE AND ANTI-CORRUPTION BUREAU,PMG ,VIKAS
BHAVAN P.O.,OPP.KSRTC DEPOT, THIRUVANANTHAPURAM,PIN-
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 4
695 033
6 THE INSPECTOR GENERAL OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU,PMG ,VIKAS
BHAVAN P.O.,OPP.KSRTC DEPOT, THIRUVANANTHAPURAM,PIN-
695 033
7 ADDL.R7. K.R.JAYAKUMAR,
HEADMASTER (RETIRED), P.T.M. VOCATIONAL HIGHER
SECONDARY SCHOOL, MARUTHOORKONAM, THIRUVANANTHAPURAM
DISTRICT, RESIDING AT ANJALI, MARUTHOORKONAM, P.O.,
KOTTUKAL, THIRUVANANTHAPURAM.
(ADDL. R7 IS IMPLEADED AS PER THE ORDER DATED
09.10.2019 IN IA 1/2019.)
8 ADDL. R8. ADARSH D.S.,
S/O. SANTHAKUMARI AMMA V., AGED 38 YEARS, RESIDING
AT MATHRAKKAL HOUSE, PUNNAKULAM, KOTTUKAL P.O.,
BALARAMAPURAM,THIRUVANANTHAPURAM.
(ADDITIONAL R8 IS IMPLEADED AS PER ORDER DATED
05/03/2020 IN IA 2/2019)
BY ADVS.
GOVERNMENT PLEADER K.B.SONY
SRI.V.G.ARUN (K/795/2004)
SRI.ELVIN PETER P.J.
K.MOHANAKANNAN
SRI.NEERAJ NARAYAN
SRI.K.R.GANESH
GOVT.PLEADER SRI.ANTONY MUKKATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.03.2022, ALONG WITH Crl.MC.3106/2019, THE COURT ON
18/3/2022 DELIVERED THE FOLLOWING:
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 5
O R D E R
[Crl.MC Nos.3106/2019, 24620/2019]
The petitioner in Crl.M.C.No.3106/2019 was the manager of
Pattom Thanupillai Memorial Vocational Higher Secondary School, started
by her husband. Her children, who are the petitioners in W.P.
(C)No.24620/2019, are the teachers of the above school. They have one
another brother, who is also a teacher of the school. One K.R.Jayakumar,
who is one of the respondents in both the writ petition and the Crl.M.C, was
the teacher in charge of the school. Subsequently, he became the
Headmaster on 1/6/2015. Alleging that, the said Jayakumar refused to sign
the documents submitted by the Manager and several other documents
relating to a special programme in the school by name "Better Education in
school", he was suspended by the Manager on 8/4/2016, pending enquiry.
The better education in school programme, was funded by the Government
and was intended to enhance the learning skill of students of 5 th to 10th
standard, belonging to lower strata of the society. As per the project, a sum
of Rs.3,600/- per month will be spent for each student. The expenses for
boarding and lodging of the above children were to be initially incurred by the
school and on submitting the bills and vouchers, it would be reimbursed
through the District Panchayath.
2. It seems that the relationship between the manager and the said
Jayakumar was strained, as evident from various records. On 19/8/2016,
Jayakumar filed CMP No.907/2016 before the Enquiry Commissioner and
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 6
Special Judge, Thiruvananthapuram, arraying the manager, former
Headmistress and two children of Manager as accused Nos. 1 to 4. raising
several allegations against the Manager and the Predecessor-in-office of the
said Jayakumar,( former Headmistress). It was alleged that several financial
irregularities were noted in the better education programme of the school. It
was further alleged that the second accused,who was the Headmistress of
the school, had executed an agreement with the Government on 23/3/2013 to
implement the scheme. Thereafter, without utilizing the funds, accused in
the complaint misappropriated huge sums. It was alleged that, the audit
report covering the period 2013-2014 and 2014-2015 showed an expenditure
of Rs.27,28,000/-. The audit report raised objection regarding the doubtful
nature of several bills and it was doubted that some of the bills were
fabricated. It was further alleged in the complaint that tuition was conducted
by an institute run by the President of the PTA. The Ayurvedic treatment for
the children was done by the father-in-law of the 4 th accused. The students
were lodged in a hostel of the school. Inflated bills and vouchers were
submitted without engaging qualified teachers. It was alleged that the accused
misappropriated a sum of Rs.6,62,013/-. Jayakumar further alleged that after
he took over, the accused approached him and insisted to countersign several
bogus receipts. Since he had doubts regarding the receipts, he did not sign it.
Consequently, he was suspended. Alleging that the respondents in the
complaint had committed financial irregularities, he sought investigation by the
Vigilance.
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 7
3. The Learned Special Judge, Thiruvananthapuram, before whom the
complaint was laid, ordered a quick verification. Report was submitted on
20/10/2018, raising few allegations against the accused. However, it was
stated that there was no financial loss, since money was not released during
the period 2015-2016. However, pursuant to a direction of the Special Court,
FIR in Crime No.1/2019 was registered on 25/5/2019. The investigation is
progressing.
4. While so, on 8/3/2019, the 5th respondent Director of VACB,
forwarded a letter to the the Secretary of Education Department, for the
removal of the Manager and to suspend two of the teachers who were also
arrayed as accused. The above communication was produced as Ext.P11 in
W.P.(C) No.24620/2019. Apprehending action, the writ petitioners in the
above filed Ext.P13 representation. Subsequently, a writ petition was filed by
them as W.P.(C) No.12629/2019, which was disposed of by this court
directing the Secretary to the Government Education Department to consider
Ext.P13. It was heard and was dismissed.
5. Thereafter, the DEO, who, by that time had taken over as the
manager of the school, suspended the above writ petitioners by Ext.P19
referring to Ext.P11. DEO passed Ext.P22 consequential order requesting the
manager and placing the two teachers under suspension.
6. Challenging FIR No.1/2019, to the extent of implicating the manager,
she has preferred the Crl.M.C.3106/2019.
7. Challenging Exts.P19 and P22, both children of the manager have
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 8
approached this Court in W.P.(C) No.24620/2019. The specific contention of
the writ petitioners was that, there was absolutely no material to indicate that
the writ petitioners had committed any of the offences alleged. The foundation
based on which Ext.P19 was issued is nonest. It was also contended that
Jayakumar was in enimical terms with the writ petitioners and the manager,
and consequently, he had set up false complaint against them. It was
specifically pleaded and contended that under the scheme of the Kerala
Education Act and Rules, Government or the educational authorities were not
authorized to suspend a teacher of the aided school on the ground of penency
of criminal proceedings. Only the manager enjoyed that power, it was
contended. It was further contended that even the suspension order was
issued without independent application of mind, and the authorities merely
followed the dictates of the Vigilance authorities.
8. Heard both sides . Both the Crl.M.C.No.3106/2019 and Writ petition
No.24620/2019 were heard together, since common facts arise in both cases
and also to avoid repetition of discussion of facts. In both the cases,
separate counter affidavits were filed on behalf of the Government. In W.P.
(C)No.24620/2019, the learned counsel for the petitioners produced
communication of the Government dated 25/9/2021, withdrawing the
suspension of both petitioners. Hence, the counsel confined argument on the
lack of the authority on Government to suspend the teachers.
9. Assailing FIR No.1/2019, the learned counsel for the petitioner in
Crl.M.C.No.3106/2019 contended that, the investigating agency failed to take
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 9
note of the fact that the Jayakumar was in enimical terms with the Manager. It
was also contended that all the documents relied on the Investigating agency
were manipulated and concocted documents were produced by Jayakumar. It
was also contended that the said Jayakumar, in his capacity as the
Headmaster had issued a letter dated 26.11.2015 produced in the W.P(C) as
Ext.P1, explaining that due to various reasons separate bills could not be
produced. He had stated that, in urgency, bills had to be prepared and some
mistakes might have been crept in. it was stated that, only after incurring the
entire expenses by the school authorities amount is claimed. For provisional
items and vegetables, bills were not given by the vendor. It was contended
that, the investigating agency did not take note of the fact that the
complainant himself had admitted about the possibility of mistake and he
himself had undertaken the liability. Thereafter, he cannot turn round and
allege misappropriation. It was also contended that, the petitioner in her
capacity as the Manager had exercised only the authority vested in her and
had not committed any other act. It was also contended that there were no
sufficient materials to proceed against her.
10. Assailing the FIR, the learned counsel for petitioner in the
Crl..M.C. contended that the VACB failed to take note of the fact that, quick
verification report dated 20/10/2018 indicated that no money was lost.
Whether fake vouchers had been submitted in the names of the students had
to be verified. It was contended that the several allegations raised in the
complaint were baseless, false, unsustainable and made on mistake of facts.
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 10
It was submitted that not even a single voucher had been submitted to the
second respondent office in the name of one Vishnu Mahesh. It was
contended that one of the specific allegation of the investigating agency was
that false bills in the name of Vishnu Mahesh were submitted. During 2015-
2016, Jayakumar had not submitted any complaint before Educational
Authorities alleging any commission of offence by the writ petitioners.
11. The learned counsel for the petitioner vehemently contended that,
sufficient materials have not been produced for registering a crime. It was
also contended that the defacto complainant himself has given a
communication to the Government supporting the submission of the bills and
had admitted that if at all any mistake had occurred, that may be due to
obvious reasons. Hence, he cannot turn around and take a different stand
now. It was contended that the complaint was laid by Jayakumar due to
enimity that he was maintaining towards the accused. It was further
contended that the only person responsible was the fourth respondent
Jayakumar, which was clear from Annexure A4 in Crl.M.C.
12. It seems that several materials have been seized by the
investigating agency. The question whether matter needs further investigation
on the basis of the quick verification, is within the domain of the investigating
agency. At this stage of investigation, it is too early to hold that there is
absolutely no material to proceed against the petitioner. Accordingly, I am not
inclined to quash the FIR in Crime No. 1/2019. The relief sought in the
Crl.M.C.is not liable to be granted.
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 11
13. The writ petitioners in W.P.(C) No.24620/2019 contended that,
educational authorities passed orders without considering the specific
contentions set up by the writ petitioners, when they were given an
opportunity of being heard. Ext.P19 suspension order has not been formally
communicated to them. It was also contended that, various allegations were
made on the basis of documents produced by Jayakumar which were all
documents manipulated by him. There was absolutely no whisper of any
allegation in the report of the investigating agency as against the writ
petitioners. Ext.P19 is beyond the jurisdiction of the authority and Ext.P22
was only a consequential order to Ext.P19. The Kerala Education Rules
conferred different powers on the Government and its officers on one hand
and managers of aided schools on the other hand. It was contended that,
under Rule 67(2) of Chapter XIVA, the Government was not empowered to
suspend the teachers of aided schools, when a case against them in respect
of criminal offence was under investigation or trial. However, the managers
are empowered to do so under Rule 67 (1) of Chapter XIVA . The power of
the Manager to suspend the teachers of the school is subject to conditions
laid down in Chapter XIVA Rules 67(6) to (9). None of those procedures were
followed in the case of the writ petitioners, it was argued.
14. Pursuant to the complaint laid by Jayakumar before the Enquiry
Commissioner & Special Judge (Vigilance), Ext.P9, report was submitted.
After conducting a preliminary enquiry by recording the statement of few
witnesses, it was stated that in connection with the better education project of
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 12
the above school, vouchers to the tune of Rs.6,62,013/ during the period
2015-16 was produced by the teacher in charge before the DDE. On the
basis of the materials gathered, investigation officer, however,concluded that
since no amount was released during 2015 - 2016, no loss was caused to the
Government. By producing forged receipts in the name of Vishnu Mahesh,
attempt was made to misappropriate money. The genuineness of the
vouchers in the name of the students were liable to be verified. Since, the
bill was submitted by the teacher- in -charge, Smt Sreekumari during the
above period, it had to be presumed that she has direct connection in the
above allegations. Accordingly, it was recommended that the criminal case
was liable to be registered against the teacher- in -charge, the school
manager and also teachers, Sri.Abhilash D.S and Aneesh D.S. under section
15 of the PC Act and sections 465,471 and 34 IPC. Accordingly, Ext.P10 FIR
No.1/2019 of VACB, Thiruvananthapuram was registered.
15. Ext.P11 is the communication dated 8/3/2019 of the Director,
Vigilance and Anti Corruption Bureau addressed to the Additional Chief
Secretary, Vigilance Department. Registration of Crime No.1/2019 and the
details of the accused were communicated by the above letter. It was also
stated that, in the above circumstance, if the accused are continued in service,
they were likely to influence the witnesses and tamper with the records.
Hence, it was directed that the school manager should be kept away from the
management of the school and the accused Nos. 2 to 4 may be suspended
from the service of the school. Pursuant to Ext.P11, Ext.P12 communication
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 13
dated 3-4-2019 was issued by the Additional Chief Secretary to the Secretary,
General Education Department, informing him about the registration of the
crime and informing him that the Government has approved the
recommendation of the Vigilance Director. Accordingly, the Secretary of the
General Education Department was directed to take necessary steps and to
inform the authorities accordingly. Anticipating suspension order, the writ
petitioner Abhilash submitted Ext.P13 request before the Government
Secretary, requesting permission to be heard before action was taken. He
claimed that he was innocent. Thereafter, he moved this court by filing W.P.
(C) No. 12629/2019, which resulted in Ext.P14 judgment. By the above
judgment, this court directed that Ext.P13 representation of the writ petitioner
was liable to be heard and disposed of within a stipulated time, after giving an
reasonable opportunity of being heard to the petitioner. Accordingly, Ext.P19
order was passed.
16. In Ext.P19, the authority took note of the fact that the
recommendation was given by the Vigilance Director to register the crime
against the petitioner, apprehending that their continuation may affect the
further investigation. After hearing the petitioners, the authority came to the
conclusion that enquiry was continuing regarding the bills that were submitted
from 2012 onwards. It was intimated by the DDE that attempts were made
by the Vigilance Department to retrieve the bills which were earlier passed
from the concerned office. In this regard, the authority concluded that the
manager was liable to be kept away from service and both the petitioners
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 14
were liable to be suspended. Ext.P22 is the proceedings of the District
Education Officer, Neyyattinkara, reporting compliance about Ext.P19 order.
The petitioners were suspended pursuant to the above order.
17. Vehemently assailing the above proceedings, the learned counsel
for the writ petitioners specifically referred to Ext.P15 reply obtained by him
under the RTI Act. The learned counsel contended that the forged receipts,
basis on which the investigation was set up, were produced behind the back
of petitioners, as evident from Ext.P15. The first question that was sought to
be answered by Ext.P15 was whether any voucher in the name of Vishnu
Mahesh was submitted by teacher-in-charge Smt.Sreekumari . The reply was
that no such voucher was submitted. The next answer that was sought was
regarding the vouchers submitted by the students, who were given tuition
during the period 2015-16. In reply to question Nos. 2 and 3, it was submitted
that no such bills of students were submitted. The bills of Geethanjali
Academy alone were produced. It was also replied that during the period
2015-2016, Jayakumar had not given any complaint regarding the above
teaching programme.
18. Relying on the above, the learned counsel for the petitioners
contended that the very basis of the prosecution allegation that forged
vouchers were submitted in the name of Vishnu Mahesh was not legally
sustainable in the light of Ext.P15. It was also contended by the learned
counsel that Jayakumar had never submitted a complaint to the Educational
Authorities . Ext.P21 was sufficient to show that the said Jayakumar was not
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 15
in good terms with the writ petitioners. Learned counsel relying on Ext.P15
contended that they showed that the very foundation of the conclusions
arrived at by the various authorities in Exts.P9, P17 and P18, crumble down in
the above circumstance. Evidently, the authority while considering the
question of suspension was bound to take into consideration Ext.P15 reply
also, it was contended.
19. One of the specific reasons projected by the authority to arrive at a
conclusion in Ext.P19 was that, the petitioners are likely to influence the
witnesses or interfere in the investigation. It is to be noted that Ext.P19 order
is dated 29/8/2019. Even as on the date of filing the statement by the
Vigilance, it has come on record that substantial number of documents have
been seized. The investigation agency has searched the school offices and
also the residences of the accused. Hence, interference with the records is
not likely possible in the present circumstance. It is also to be noted that by
now, the investigation must have progressed considerably. It is also to be
noted that, essentially the Director recommended to the Government that the
necessary action may be taken against the petitioners. It was passed on by
the Government to the Educational authorities, who in turn initiated action
against the petitioner. There is substantial force in the contention of the
learned counsel for the petitioners that without proper application of mind,
the authority went by the dictates of the Government and passed Exts.P19
and P22 orders.
20. The learned counsel for the petitioners advanced lengthy
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 16
arguments challenging the competence of the Government to suspend
teachers of aided schools under section 12 A ,Rules 14, 67 and,67(1)(B) of
the Kerala Education Rules. Referring to Rule 67(1) of Chapter 1XIVA (B)
and several other provisions of the Education Act and Rules the learned
counsel vehemently contended that though the manager is conferred with
powers to take action against the teachers, all such powers are not conferred
on the educational authorities.
21. The learned counsel for the petitioner assailed Ext.P19 order of
suspension of the petitioner herein on various grounds. Ext.P19 dated
29/8/2019, issued by the General Education Department, refers to a
communication of the Vigilance Director C1-(VC-
1/2019/TVM)/3025/2019/VACB dated 8/3/2019. The above communication is
produced as Ext.P11. In para 2 of Ext.P19, referring to P11, it is stated that
VC No.1/2019 TVM dated 25/2/2019 for various offences under IPC as well
as the PC Act, has been registered against the petitioner and others, the
Vigilance Director had recommended for the removal of the manager and
suspension of the petitioners. On the strength of it, the Government by
Ext.P19, inter alia, suspended the petitioners from service till the completion of
investigation. Ext.P19 refers only to the criminal case and the direction of the
Director Vigilance that for smooth conduct of the investigation, the
suspension of the teachers was essential.
22. In Ext.P11, there is a specific reference that crime has been
registered against the petitioner and others. The Director mentioned that
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 17
since the investigation had commenced, the continuance of the manager and
teacher will not be in the interest of the investigation and hence requested for
removal of the manager and for suspension of the petitioners. Subsequently,
by Ext.P17 communication dated 27/6/2019 of the IG of Vigilance, the report
of investigation submitted by the investigation officer was also forwarded. It
was stated that, the recommendation of the investigation officer that
necessary action was liable to be taken against the petitioners and others was
accepted by the Vigilance.
23. Relying on the above documents, the learned counsel for the writ
petitioner vehemently assailed Ext.P19 on three specific grounds. Firstly, it
was contended that the Government did not have authority to suspend a
teacher under the Kerala Education Act 1958, and in the absence of any
power conferred with the Government, the suspension of the petitioner by
Ext.P19 was illegal. It was further contended that Ext.P19 specifically referres
to the instruction of the Director VACB and under his instructions, the
petitioner and others were suspended. This clearly indicated that the
Educational Authority was acting under the dictates of the Director(Vigilance)
and there was absolutely nothing on record to show that the Educational
Authority exercised any independent discretion or due application of mind
regarding the necessity of placing the petitioner under suspension. The third
contention set up was that the order passed by the authority exhibited legal
malice and on that ground alone, Ext.P19 was liable to be quashed..
24. Reference to Ext.P19 clearly shows that the only reason stated in
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 18
Ext.P19 for suspension was the advice given by the Director that in the
interest of justice for an effective investigation, the petitioner and other
teachers need to be kept under suspension. To contend that the Educational
Authorities have no authority to suspend the teacher in an aided school on the
ground of pendency of criminal proceedings, the learned counsel for the
petitioner invited my attention to Section 12 (A) of the Kerala Education Act
1958. Section 12A relates to the disciplinary powers of the Government over
the teachers of aided schools. Sub section(1) of 12 A provides that
notwithstanding anything contained in Section 11 or section 12 and subject to
such Rules as may be prescribed, the Government or such officer not below
the rank of an educational officer as may be authorized by the Government
shall have power to take disciplinary proceedings against a teacher of an
aided school and to impose upon him any of the penalties specified in the
Rules. However, sub section (2) of section 12 A provides that the
Government or the officer authorised under sub section 1 of Section 12A
may suspend a teacher of an aided school, when a disciplinary proceeding is
proposed to be taken against him under that sub section or when such
disciplinary proceedings were pending. The learned counsel pointed out that
sub section (2) of Section 12A clearly showed that the authorities under the
Education Act are competent to suspend the teacher only when the
disciplinary proceeding was pending or proposed to be taken.
25. Rule 67 of Chapter XIV A relates to the suspension. Sub Rule (1) of
Rule 67 provides that the manager may at any time place a teacher under
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 19
suspension when disciplinary proceedings are contemplated or are pending or
when a case against him in respect of a criminal office is under investigation
or trial or when final orders are pending in the disciplinary proceedings, if the
authority considers that in the then prevailing circumstances, it is necessary in
public interest that the teacher should be suspended from service. This being
the circumstance under which the manager of the school could exercise the
power of suspension. Sub Rule 2 of Rule 67 relates to the authority of the
Government or an officer authorized by the Government to suspend a teacher
of an aided school. It anticipates two specific circumstances , they are; when
a disciplinary proceedings are proposed to be taken against him or when
disciplinary proceedings are pending against him.
26. Relying on the above provisions, the learned counsel for the
petitioner vehemently contended that Section 12A read with Rule 67 of
Chapter XIVA clearly shows that the power of suspension of a teacher in an
aided school on the ground of pendency of criminal case is contemplated
under Rule 67(1) only. That power is conferred on the manager of the school.
Corresponding power is not conferred on the Government. In other words,
though the manager is entitled to suspend a teacher when a case against him
in respect of any criminal offence is under investigation or trial, corresponding
power is not available to Government under sub Rule (2) of Rule 67 It
contemplates two situations only. Hence it was contended by the learned
counsel for the petitioner that in the absence of any power conferred on the
Government under Rule 67 (2), to suspend a teacher, when a case in respect
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 20
of criminal offence is registered, suspension by the Government by Ext.P19
is in violation of statutory power conferred on them.
27. To substantiate the above proposition , the learned counsel for the
petitioner relied on the decisions reported in Abdul Jabbar T. v Director of
Public Instruction, Thiruvananthapuram and Others (2011 (2) KHC 806),
Joseph K.T. v. State of Kerala and Another (2014 KHC 2539) and the
Division Bench decision of this court in Balakrishnan M. V.State of Kerala
and Others (2016 (5) KHC 693). In Abdul Jabbar's case (supra) almost
identical question came up. After referring to the various legal propositions,
the learned Judge held that a combined reading of sub section 2 of
Section12A and sub-Rule (2) of Rule 67 makes the position clear that the
power of the Government or an officer authorized by the Government under
Section 12 A, to suspend a teacher of an aided school does not extend to a
case, where a criminal offence is under investigation or trial against a teacher.
Such a power is not conferred on the Government or the authorized officer,
but it is specifically conferred only on the Manager. This was reiterated in
Joseph K.T.'s case (supra), wherein the learned single Judge asserted that ,
a reading of Section 12A(2) and Rule 67(2) indicated that a teacher can be
suspended in exercise of powers under those provisions, only when any
disciplinary proceedings has to be taken against him or when such
disciplinary proceedings are pending. No other grounds enable the
educational authority to suspend a teacher in exercise of Section 12A(2). The
Division Bench, in Balakrishnan 's case(supra), also decided in almost same
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 21
line.
28. The Section read with judicial pronouncements clearly show that
the right to suspend an teacher of an unaided school, when a criminal case is
pending investigation, lies only with the manager. An attempt was made by
the learned Government Pleader to contend that still the Government is
entitled to suspend an employee in case of misconduct. It was contended that
the power of the Government was concurrent in this regard with the manager.
To support this, learned Government Pleader relied on the Division Bench
decision of this Court in Sobhana C.K. v. District Collector Palakkad and
Others (2012 (3) KHC 831(DB). In that case, referring to Section 12 A(1), it
was held that independent power is conferred under the above section on the
Government as well as the Educational officer autorised by it to take
disciplinary action against a teacher of any aided school and to impose
punishment for the same. It was held that the educational officer has
independent and concurrent power to take disciplinary action against the
delinquent teacher. The learned Government Pleader further contended that
even assuming that, criminal case was the cause for suspending the teacher,
the facts constituting the allegation in the crime, itself could be a ground for
initiating disciplinary proceedings against the petitioner. Hence, the authority
was entitled to suspend the teacher, it was contended.
29. I cannot subscribe to the above argument for more reasons than
one. The concurrent power conferred under the scheme of the Act on the
Government was only in relation to allegation of mis conduct. In the case at
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 22
hand, there is no reference in Ext.P19 that the petitioner was proceeded
against for any misconduct. On the other hand, there is a specific reference
that he was suspended due to his involvement in the criminal case and his
continuance in service may result in interference with the investigation.
There was absolutely no reference that he was liable to be suspended for
any misconduct. Hence, the decision in Sobhana's case has no application to
the facts of the present case and the contention of the learned Government
Pleader cannot stand.
30. In the light of the above clear position, Ext.P19 and Ext.P22 are
liable to be set aside. The consequence will be that in the absence of
suspension order, the petitioner will be deemed to be continuing in service as
if he was not suspended, entitling him to all benefits from the date of
suspension as if he was continuing in service. To That extent, the writ petition
is liable to be allowed.
31. In the light of the discussions made above, the following reliefs are
granted.
1). Crl.M.C.3106/2019 is not legally sustainable and is liable to be
dismissed.
2). W.P.(C) No.24620/2019 is allowed as follows;
a). Ext.P19 and Ext.P22 are set aside. Writ petitioners will be deemed
to continue in service and entitled to all the benefits and arrears, as if they
were continuing in service without any break. Arrears due to them shall be
quantified and paid to them within three months from the date of receipt of
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 23
Judgment.
b). Investigation, if not completed, shall be completed within four
months from the date of receipt of a copy of this judgment.
The writ petition is accordingly allowed. Crl.M.C.is dismissed.
Sd/-
SUNIL THOMAS
Judge
dpk
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 24
APPENDIX OF WP(C) 24620/2019
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION SENT BY
SRI.K.R JAYAKUMAR, TEACHER-IN-CHARGE TO
THE SECOND RESPONDENT DATED 26.11.15
EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION
C3/8489/2015 SENT BY THE SECOND RESPONDENT
TO SRI. JAYAKUMAR DATED 29.3.16
EXHIBIT P3 A TRUE COPY OF G.O(RT) NO.737/217/GH.EDN
ISSUED BY THE FIRST RESPONDENT DATED
17.3.17
EXHIBIT P4 A TRUE COPY OF ORDER OF THE FIRST
RESPONDENT DATED 13.9.17
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN WA 1981/17
DATED 13.10.17
EXHIBIT P6 A TRUE COPY OF THE COMPLIANT CMP 907/16
FILED BEFORE THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE (VIGILANCE),
THIRUVANANTHAPURAM DATED 19.8.16
EXHIBIT P7 A TRUE COPY OF THE OBJECTION FILED BY
SRI.JAYAKUMAR TO TH E QUICK VERIFICATION
REPORT DATED 6.3.17
EXHIBIT P8 A TRUE COPY OF THE ORDER OF THE SPECIAL
JUDGE DATED 16.6.18
EXHIBIT P9 A TRUE COPY OF THE REPORT SUBMITTED BY
INSPECTOR OF POLICE, VACAB,
THIRUVANANTHAPURAM UNIT BEFORE THE SPECIAL
JUDGMENT DATED 20.10.18
EXHIBIT P10 A TRUE COPY OF THE FIR 1/19 REGISTERED BY
THE VACB, THIRUVANANTHAPURAM UNIT POLICE
STATION DATED 25.1.19
EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION NO.C1-
(VC-1/2019/TVM) 3025/2019/DVACB SENT BY
THE FIFTH RESPONDENT TO THE ACS, VIGILANCE
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 25
DEPARTMENT DATED 8.3.19
EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION FROM THE
ADDITIONAL CHIEF SECRETARY,VIGILANCE
DEPARTMENT OT THE SECRETARY GENERAL
EDUCATION DEPARTMENT DATED 3.4.19
EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE FIRST PETITIONER TO
SECRETARY OF THE FIFTH RESPONDENT DATED
16.4.19
EXHIBIT P14 A TRUE COPY OF THE JUDGMENT OF THIS
HON.COURT IN W.P(C) 12629/19 DATED 30.4.19
EXHIBIT P15 A TRUE COPY OF REPLY OF THE SPIO OF THE
OFFICE OF THE SECOND RESPONDENT DATED
26.8.19
EXHIBIT P16 A TRUE COPY OF THE HEARING NOTE SUBMITTED
BY THE COUNSEL FOR THE PETITIONERS BEFORE
UNDER SECRETARY THE FIRST RESPONDENT DATED
18.7.19
EXHIBIT P17 A TRUE COPY OF THE D.O.LETTER ADDRESSED BY
THE SIXTH RESPONDENT TO THE UNDER
SECRETARY THE FIRST RESPONDENT DATED
27.6.19
EXHIBIT P18 A TRUE COPY OF THE REPORT SUBMITTED TO THE
FIFTH RESPONDENT BY THE INSPECTOR, VACB
DATED 14.6.19
EXHIBIT P19 A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT G.O(RT) 3445/2019/G.EDN DATED
29.8.19
EXHIBIT P20 A TRUE COPY OF THE SHOW CAUSE NOTICE
B(50/10298/2017 DISUSED BY THE SECOND
RESPONDENT TO SRI.JAYAKUMAR DATED 28.2.19
EXHIBIT P21 A TRUE COPY OF THE COMMUNICATION
B(7)/4886/2019 ISSUED BY THE SECOND
RESPONDENT TO THE FOURTH RESPONDENT DATED
29.6.19
EXHIBIT P22 A TRUE COPY OF THE ORDER
NO.B4/1298/2019/DEO DATED 25.9.19 ISSUED
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 26
BY THE MANAGER OF THE PTM VOCATIONAL
HIGHER SECONDARY SCHOOL.
EXHIBIT P23 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE THIRD RESPONDENT WITHOUT THE
EXHIBITS.
EXHIBIT P24 A TRUE COPY OF THE JUDGMENT IN WA 2065/19
DATED 31.10.19.
EXHIBIT P25 A TRUE COPY OF THE JUDGMENT IN W.P.(C)
19475/19 FILED BY SRI. ADARSH D.S.
EXHIBIT P26 A TRUE COPY OF THE ORDER
NO.B4/1674/2017/D.DIS ISSUED BY THE THIRD
RESPONDENT DATED 13.11.19.
RESPONDENT EXHIBITS
EXHIBIT R8(A) TRUE COPY OF THE PROCEEDINGS OF THE
DISTRICT EDUCATIONAL OFFICER,
NEYYATTINKARA DATED 13.11.2019
EXHIBIT R7(a): TRUE PHOTOCOPY OF THE AGREEMENT DATED
23/03/2013 ENTERED INTO BY THE FORMER
HEADMISTRESS OF THE SCHOOL
SMT.PRASANNAKUMARI BETWEEN THE OFFICERS OF
THE GOVERNMENT.
EXHIBIT R7(b): TRUE PHOTOCOPY OF THE ORDER DATED
08/04/2016 ISSUED BY THE MANAGER
SUSPENDING THIS RESPONDENT FROM SERVICE.
EXHIBIT R7(c): TRUE PHOTOCOPY OF THE REINSTATTEMENT ORDER
NO.B5/7136/2016/DDE/K.DIS. DATED
21/04/2016 ISSUED BY THE DEPUTY DIRECTOR
OF EDUCATION.
EXHIBIT R7(d): TRUE PHOTOCOPY OF THE JUDGMENT DATED
25/05/2016 IN WPC.NO.16055/2016 OF THIS
HON'BLE COURT.
EXHIBIT R7(e): TRUE PHOTOCOPY OF THE GOVERNMENT ORDER
NO.570110/A3/2016/G.EDN. DATED 01/08/2016.
EXHIBIT R7(f): TRUE PHOTOCOPY OF THE REPORT DATED
09/11/2016 SUBMITTED BY THE VIGILANCE WING
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 27
OF THE OFFICE OF DPI.
EXHIBIT R7(g): TRUE PHOTOCOPY OF THE ORDER DATED
12/04/2017 IN WPC.NO.8325/2017
EXHIBIT R7(h): TRUE PHOTOCOPY OF THE G.O.(RT).
NO.737/2017/GEDN DATED 17/03/2017 ISSUED
BY THE GOVERNMENT.
EXHIBIT R7(i): TRUE PHOTOCOPY OF THE GOVERNMENT
COMMUNICATION NO.1311426/A3/2017/G.EDN.
DATED 03/06/2017.
EXHIBIT R7(j): TRUE PHOTOCOPY OF THE JUDGMENT DATED
14/06/2017 IN WPC.NO.19532/2017.
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 28
APPENDIX OF CRL.MC 3106/2019
PETITIONER ANNEXURES
ANNEXURE-A1 CERTIFIED COPY OF COMPLAINT IN CRIMINAL
M.P.907/2017 ON THE FILES HON'BLE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM.
ANNEXURE-A2 TRUE COPY OF THE GOVERNMENT LETTER DATED
22/03/2019 WITH ANNEXURES.
ANNEXURE-A3 TRUE COPY OF THE FIR IN V.C. NO.1/2019 OF
VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM.
ANNEXURE-A4 TRUE COPY OF THE COMMUNICATION SENT BY THE
4TH RESPONDENT TO THE DEPUTY DIRECTOR OF
EDUCATION, THIRUVANANTHAPURAM DATED
26/11/2015.
ANNEXURE-A5 TRUE COPY OF THE GO(MS) NO.28/99/PLANNING
DATED 15/06/1999.
ANNEXURE-A6 TRUE COPY OF THE LETTER SENT BY THE DEPUTY
DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM,
DATED 06/12/2012 TO THE HEADMASTER.
ANNEXURE-A7 TRUE COPY OF LETTER SENT BY THE 4TH
RESPONDENT TO THE PETITIONER DATED
28/03/2017.
ANNEXURE-A8 TRUE COPY OF THE LETTER SENT BY THE DEPUTY
DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM.
ANNEXURE-A9 TRUE COPY OF THE ORDER OS SUSPENSION DATED
08/04/2016 TO THE 4TH RESPONDENT ISSUED BY
THE PETITIONER.
ANNEXURE-A10 TRUE COPIES OF THE BILLS SUBMITTED BY
GEETHANJALI ACADEMIC BEFORE THE DEPUTY
DIRECTOR OF EDUCATION SIGNED BY THE
TEACHER-IN-CHARGE.
ANNEXURE-A11 TRUE COPY OF THE GOVERNMENT LETTER WITH
BILLS SUBMITTED BY THE 4TH RESPONDENT.
Crl.M.C.No.3106/2019 & W.P.(C)24620/2019 29
