Kerala High Court
The Manager, Devarkovil West Lps vs State Of Kerala on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
WP(C) NO. 31607 OF 2017
PETITIONER:
THE MANAGER, DEVARKOVIL WEST LPS
DEVARKOVIL WEST LPS, POST THALIYIL,
KUTTYADI, KOZHIKODE DISTRICT.
BY ADV SRI.R.K.MURALEEDHARAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GENERAL EDUCATION
DEPARTMENT, TRIVANDRUM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM-695014.
3 THE DISTRICT EDUCATIONAL OFFICER
VADAKARA, KOZHIKODE DISTRICT-673101.
4 ASSISTANT EDUCATIONAL OFFICER
KUNNUMMAL, VADAKARA, KOZHIKODE DISTRICT-673101.
5 P.RIYAD
ARABIC TEACHER (UNDER SUSPENSION), DEVARKOVIL WEST LPS,
RESIDING AT PARAPPUMMAL HOUSE, KAYAKKODY P.O.,
KOZHIKODE DISTRICT-673508.
BY ADVS.
GOVERNMENT PLEADER
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
SMT. SURYA BINOY SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.03.2023, ALONG WITH WP(C).32124/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos. 31607 & 32124 OF 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
WP(C) NO. 32124 OF 2017
PETITIONER:
P.RIYAD
SON OF POKER HAJI, AGED 37 YEARS, LOWER
GRADE ARABIC TEACHER(UNDER SUSPENSION)
DEVARKOVIL WEST LOWER PRIMARY SCHOOL, P.O.
THALIYIL KUTTIADI (RESIDING AT PARAPPUMMAL,
P.O. KAYAKODI, KUTTIADI, KOZHIKODE DISTRICT-
673508)
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
ANNEXE-II, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION.
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DISTRICT EDUCATIONAL OFFICER
P.O. VADAKARA, KOZHIKODE -673 101.
4 THE ASSISTANT EDUCATIONAL OFFICER
KUNNUMMAL, P.O.MOKERI, KOZHIKODE-673 507.
5 THE MANAGER
DEVARKOVIL WEST LOWER PRIMARY SCHOOL,P.O.
WP(C) Nos. 31607 & 32124 OF 2017
3
THALIYIL,(VIA) KUTTIADI, KOZHIKODE-673 508.
6 THE HEADMASTER
DEVARKOVIL WEST LOWER PRIMARY SCHOOL,P.O.
THALIYIL,(VIA) KUTTIADI, KOZHIKODE-673 508.
BY ADVS.
SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER
SRI.R.K.MURALEEDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.03.2023, ALONG WITH WP(C).31607/2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 31607 & 32124 OF 2017
4
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C)Nos. 31607 and 32124 of 2017
----------------------------------------------
Dated this the 13th day of March, 2023
JUDGMENT
These two writ petitions are connected and
therefore I am disposing of these two writ petitions by
a common judgment. I will narrate the facts in W.P.
(C)No.31607/2017 first:
The petitioner is the Manager of an aided school.
The 5th respondent in this case, who is the petitioner
in W.P.(C)No.32124/2017, is an Arabic teacher in the
school. According to the petitioner, 5 th respondent
committed serious misconduct by sexually harassing a
Fifth standard girl student of the school and he was
placed under suspension pending enquiry as per
Ext.P1 order dated 27.12.2012. The police also
registered a case and ultimately submitted a charge
sheet against the 5th respondent. The 5th respondent
WP(C) Nos. 31607 & 32124 OF 2017
was served with memo of charges and statement of
allegation and after receipt of the reply the 4th
respondent was requested to conduct a formal enquiry
into the charges under Rule 75. In the meanwhile,
the 5th respondent approached this Court by filing a
Crl.M.C to quash the criminal proceedings and as per
Ext.P3 the criminal proceedings was quashed. It is
also submitted that the 4th respondent submitted an
enquiry report by exonerating the 5th respondent. It is
submitted that, it is without referring to any of the
charges and without following the procedures laid
down under Rule 75 for conducting an enquiry for
imposing major penalty. The petitioner filed revision
before the Government. The Government ordered to
reinstate the 5th respondent, subject to finalization of
the disciplinary proceedings and directed to conduct a
formal enquiry by the DPI and the enquiry report was
directed to be given to the Manager and thereafter he
WP(C) Nos. 31607 & 32124 OF 2017
was directed to finalize the disciplinary proceedings.
The petitioner challenged the direction to reinstate the
5th respondent. This Court was pleased to stay the
direction and directed to finalize the formal enquiry.
The enquiry was completed and the 5 th respondent
was found guilty of the charges vide Ext.P10 enquiry
report. The petitioner submitted his request for prior
sanction before the 3rd respondent and in the
meanwhile, the writ petitions were disposed of vide
Ext. P9 judgment by directing to continue the interim
order against the 5th respondent and disposed of the
writ petition filed by the 5 th respondent by observing
that no interference is necessary. The writ appeal filed
by the 5th respondent was also disposed of. It is the
submission of the petitioner that, now the 3rd
respondent issued Ext.P13 order without considering
the direction by the Government vide Ext.P8 order and
also Ext.P9 judgment of this Court, which was
WP(C) Nos. 31607 & 32124 OF 2017
confirmed in writ appeal, by directing reinstatement of
the 5th respondent. It is the case of the petitioner that
the 3rd respondent abused and invoked the power
illegally and excessively. The 3rd respondent has no
power to order reinstatement of a teacher in a request
submitted by the Manager for prior sanction under
Rule 74 to impose a major penalty under Rule 75
based on the enquiry report, is the submission. Hence
Ext. P13 is challenged in this writ petition.
2. W.P.(C)No.32124/2017 is filed by the 5th
respondent in W.P.(C)No.31607/2017 with the
following prayers:
"(i) call for the records relating to Exhibit P-13
and set aside the original of the same to the extent
it ordered an enquiry by the Director of Public
Instruction as against the Petitioner by the issue of
a writ of certiorari or other appropriate writ or
order.
(ii) declare that no enquiry is conducted
by a competent authority while issuing Exhibit P-14
report by PA to the Director of Public Instruction.
(iii) call for the records relating to Exhibit P-
WP(C) Nos. 31607 & 32124 OF 2017
14 and set aside the original of the same by the
issue of a writ of certiorari or other appropriate writ
or order.
(iv) issue a writ of mandamus or other
appropriate writ order or direction commanding the
1st Respondent to effectively consider and pass
appropriate orders on Exhibit P-18 Revision Petition
with notice to the Petitioner in a time bound
manner.
(v) issue a writ of mandamus or other
appropriate writ order or direction commanding the
5th Respondent to reinstate the Petitioner in service
with effect from the date of suspension with all
monetary benefits and regularize the period of
suspension as duty for all purposes, forthwith.
(vi) pass such other order or direction
which this Hon'ble Court may deem fit and proper
to grant in the circumstances of the case."[SIC]
3. Heard counsel appearing for the petitioners
in these cases.
4. Today when these writ petitions came up for
consideration, the counsel appearing for the petitioner
in W.P.(C)No.31607/2017 submitted that, Ext.P13 is
illegal and it is without following Rule 74 of Chapter
WP(C) Nos. 31607 & 32124 OF 2017
XIVA KER. Admittedly, the petitioner in W.P.
(C)No.32124/2017 is out of service from 2012
onwards. The Manager has got a grievance that
Ext.P13 in W.P.(C)No.31607/2017 is not in accordance
with Rule 74 of Chapter XIVA KER. According to me,
at this distance of time, Ext.P13 can be set aside and
the matter can be remitted back to the 3 rd respondent.
Counsel for the Manager submitted that, at this
distance of time, minor penalty will be sufficient and
appropriate orders will be passed by the Manager in
accordance with law. In such circumstances, the
Manager can propose the same to the 4 th respondent
and the 4th respondent can ratify the same. To
facilitate the Manager to do the needful, Ext.P13 can
be set aside. Consequential order, if any, passed by
the Manager can be challenged in accordance with
law, if the petitioner in W.P.(C)No.32124/2017 is
aggrieved.
WP(C) Nos. 31607 & 32124 OF 2017
Therefore, these two writ petitions are disposed
of in the following manner:
i. Ext.P13 in W.P.(C)No.31607/2017 is set
aside and the petitioner is free to submit a
proposal imposing a minor penalty and submit the
same before the 4th respondent for ratification.
The 4th respondent will do the needful in
accordance with law within one month from the
date of receipt of the proposal.
ii. W.P.(C)No.32124/2017 is disposed of
granting liberty to the petitioner to challenge the
consequential order, if any, passed by the Manager
and the 4th respondent in accordance with law. In
the light of the fact that Ext.P13 in W.P.
(C)No.31607/2017 is already set aside, the
petitioner will be reinstated into service forthwith.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) Nos. 31607 & 32124 OF 2017
APPENDIX OF WP(C) 32124/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SUSPENSION ORDER
DATED 27.12. 2012 OF THE MANAGER.
EXHIBIT P2 TRUE COPY OF THE ORDER NO. B/6032/12
DATED 07.01.2013 OF THE 4TH
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGES AND
STATEMENT OF ALLEGARION DATED
22.1.2013 OF THE MANAGER.
EXHIBIT P4 TRUE COPY OF THE LETTER DAATED
21.05.2013 SENT BY THE MANAGER TO
THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE STATEMENT OF
DEFENCE DATED 22.06.2013 OF THE
PETITIONER.
EXHIBIT P6 TRUE COPY OF THE ORDER IN CRL.M.C.
NO 674/2013 DATED 04.03.2013 OF THIS
HON'BLE COURT.
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT OF THE
PARENTS
EXHIBIT P8 TRUE COPY OF THE ORDER NO.
B5/2227/13/K. DIS DATED 20.8.2013 OF
THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REVISION PETITION
DATED 20.8.2013 FILED BEFORE THE
GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE G.O(RT) NO.
2304/14/G.EDN. DATED 11.06.2014 OF
THE GOVERNMENT.
EXHIBIT P11 TRUE COPY OF THE ENQUIRY REPORT.
WP(C) Nos. 31607 & 32124 OF 2017
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN W.P.(C)
NO. 21915/2014-L DATED 29.06.2016.
EXHIBIT P13 TRUE COPY OF THE G.O(RT)NO.
4445/2016/G.EDN. DATED 31.12.2016 OF
THE GOVERNMENT.
EXHIBIT P14 TRUE COPY OF THE ENQUIRY REPORT.
EXHIBIT P15 TRUE COPY OF THE NOTICE OF THE
MANAGER DATED 29.04.2017.
EXHIBIT P16 TRUE COPY OF THE REPLY OF THE
PETITIONER DATED 8.5.2017.
EXHIBIT P17 TRUE COPY OF THE HEARING NOTICE
DATED 20.06.2017.
EXHIBIT P18 TRUE COPY OF THE REVISION PETITION
SUBMITTED BEFORE THE GOVERNMENT
DATED 25.09.2017.
EXHIBIT P19 TRUE COPY OF THE ORDER NO. K.DIS.
B5/827/2017 DATED 30.08.2017 OF THE
3RD RESPONDENT.
WP(C) Nos. 31607 & 32124 OF 2017
APPENDIX OF WP(C) 31607/2017
PETITIONER EXHIBITS
EXHIBIT P1- A TRUE COPY OF THE ORDER OF
SUSPENSION DATED 27/12/2012.
EXHIBIT P2- A TRUE COPY OF THE ORDER DATED
07/01/2013.
EXHIBIT P3- A TRUE COPY OF THE ORDER IN
CRL.M.C.674/2013.
EXHIBIT P4- A TRUE COPY OF THE ORDER DATED
26/07/2013 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P5- A TRUE COPY OF THE ORDER DATED
11/06/2014 ISSUED BY THE GOVERNMENT.
EXHIBIT P6- A TRUE COPY OF THE COMMUNICATION OF
THE 1ST RESPONDENT DATED 04/11/2014.
EXHIBIT P7- A TRUE COPY OF THE JUDGMENT IN
WP(C)NO.9616/2015 DATED .........
EXHIBIT P8- A TRUE COPY OF THE ORDER OF THE
GOVERNMENT DATED 31/12/2016.
EXHIBIT P9- A TRUE COPY OF THE COMMON JUDGMENT
IN WP(C)NO.2122, 2513 AND 10007/17
DATED 17/07/2017.
EXHIBIT P10- A TRUE COPY OF THE NOTICE DATED
29/04/2017 ALONG WITH THE ENQUIRY
REPORT DATED 17/03/2017.
EXHIBIT P11- A TRUE COPY OF THE REPLY SUBMITTED
BY THE 5TH RESPONDENT DATED
08/05/2017.
EXHIBIT P12- A TRUE COPY OF THE REQUEST SUBMITTED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT DATED 30/05/2017.
WP(C) Nos. 31607 & 32124 OF 2017
EXHIBIT P13- A TRUE COPY OF THE ORDER DATED
30/08/2017 ISSUED BY THE 3RD
RESPONDENT.
RESPONDENT EXHIBITS: NIL
//TRUE COPY// PA TO JUDGE
