Kerala High Court
Sathyabhama V.K vs The Manager on 6 February, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(C) NO. 7334 OF 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 7334 OF 2015
PETITIONER/S:
SATHYABHAMA V.K.
AGED 50 YEARS
W/O.NANDAKUMAR VT, ' SREESAI', MIDDLE HILL,
MALAPPURAM
BY ADV DR.GEORGE ABRAHAM
RESPONDENT/S:
1 THE MANAGER
MALABAR SPECIAL POLICE ENGLISH MEDIUM HIGH SCHOOL,
MALAPPURAM 676505
2 THE DEPUTY COMMANDANT
MALABAR SPECIAL POLICE CUM ENQUIRY OFFICER,
MALAPPURAM 676505
3 THE DISTRICT EDUCATIONAL OFFICER
MALAPPURAM 676505
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001
BY ADVS.
SRI.P.C.SASIDHARAN
GOVERNMENT PLEADER
OTHER PRESENT:
SRI BIJOY CHANDRAN, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 7334 OF 2015 2
P.V.KUNHIKRISHNAN, J.
---------------------------------------
W.P.(C) No.7334 of 2015
------------------------------------------------
Dated this the 6th day of February, 2024.
JUDGMENT
This writ petition is filed seeking the following reliefs:
(i) To issue a writ of certiorari or any other appropriate writ,
order or direction to quash Exts.P17 and P23.
(ii) To issue a writ of mandamus or any other appropriate
writ, order or direction directing the 1 st respondent to
reinstate the petitioner back into service with consequential
benefits.
(iii) To grant such other and further reliefs as this Hon'ble
Court may consider just and proper in the facts and
circumstances of the case.
2. The Malabar Special Police English Medium High
School is an unaided recognized school governed by the
provisions of the Kerala Education Act and Rules. The school is
run by the Commandant, Malabar Special Police, Malappuram.
The Police Officers attached to the Commandant are also
working as other staff members of the school. According to the
petitioner, she was not given salary as per the statutory
provisions of KER and also not in accordance with the orders
issued by the Government, which are applicable to the unaided
school. The petitioner and other similarly situated persons
voiced their grievances at various levels, is the submission.
3. According to the petitioner, even though the
employer's contribution to the Provident Fund was also
deducted from the salaries of the employees, it is not credited
to their accounts. There is also harassment from the Police
Officers and hence, the petitioner along with others filed a
complaint before the Human Rights Commission against the
harassment meted out by the Police Officers. Ext.P2 is the
petition filed before the Human Rights Commission. According
to the petitioner, she is also a signatory to Ext.P2. Based on
the complaint filed by the petitioner and others, the Human
Rights Commission visited the school and enquired into the
matter and found that the allegations raised by the teachers
are true and cautioned the Senior Police Officers, is the
submission. This annoyed the 1st respondent very much and
therefore, he wanted to terminate the service of the petitioner
for no reason, is the further submission.
4. According to the petitioner, the 1 st respondent
introduced a new system by which the respondents asked the
students to give an evaluation of the teachers by marking in a
printed paper. Ext.P3 is the chart. At the same time, when this
violation of the procedure was objected by the public at large,
the 1st respondent was unable to take any further steps in this
regard. But a memo was issued to the petitioner, as evident
from Ext.P4. Petitioner submitted her reply and it is stated that
the matter was not proceeded thereafter.
5. Later on 15.9.2008, another memo was issued
to the petitioner stating that the petitioner was neglecting her
duties and disobeying the orders of the Headmaster. Ext.P5 is
the memo. Ext.P6 is the reply submitted by the petitioner.
Thereafter, Ext.P7 memo was issued to the petitioner stating
that in the general body meeting of the school, the petitioner
has raised false allegations against the management. The
petitioner filed a reply to Ext.P7 memo, as evident from
Ext.P8. After receipt of Ext.P8 explanation, there was no
response for a long. But Ext.P9 memo was received on
23.3.2009, is the submission. Petitioner submitted a reply to
Ext.P9, as evident from Ext.P10. But the 1 st respondent
proceeded further with Ext.P9 memo as per Ext.P11 order, is
the submission.
6. Accordingly, the Deputy Commandant Sri.U.Sharafali
was appointed as the Enquiry Officer. Ext.P12 is the memo of
charges and statement of allegations. According to the
petitioner, the memo of charges was given by the Deputy
Commandant and not the Manager. The same was annexed
with a communication dated 29.4.2009 and is evident from
Ext.P13, is the submission. According to the petitioner, the
Enquiry Officer has no authority or sanctity to issue the memo
of charges. As per Ext.P14, the petitioner was directed to
appear at the office of the Deputy Commandant on 16.5.2009.
Petitioner submitted Ext.P15 reply. Without perusing the reply
filed by the petitioner, an enquiry officer was appointed and
enquiry was ordered is the submission. Against the enquiry,
the petitioner filed Ext.P16 reply. It is submitted that the
enquiry officer without permitting the petitioner to peruse the
records or without permitting the petitioner to adduce the
evidence submitted an enquiry report on 07.07.2009, which
was not given to the petitioner. Based on the enquiry report, a
show cause notice was issued as evident by Ext.P17. The
petitioner submitted Ext.P18 reply. Thereafter, the petitioner
was terminated from service as per Ext.P19. According to the
petitioner, the enquiry is not conducted in a proper manner
and there is procedural violation. The termination order was
challenged before this Court by filing W.P.(C) No. 26963/2009.
This Court as per Ext.P20 set aside the termination order and
directed to reinstate the petitioner with half back wages. The
respondent challenged the judgment by filing a writ appeal and
this Court slightly modified the direction given by the Single
Judge. But it is ordered to reinstate the petitioner back into
service. Ext.P21 is the judgment in the writ appeal.
Accordingly, the petitioner was reinstated by the Manager.
Thereafter, based on the direction given by this Court, a
hearing was conducted wherein the petitioner submitted a
detailed hearing note as evident by Ext.P22 is the submission.
Thereafter, without considering the contention raised by the
petitioner, Ext.P23 termination order is served to the petitioner is
the submission. Aggrieved by the same, this writ petition is filed.
7. Heard the learned counsel for the petitioner and
the learned counsel appearing for the respondent.
8. This Court perused Ext.P23 order. Originally, this
Court interfered in the matter as per Exts.P20 and P21
judgments. This Court directed to give sufficient opportunity to
the petitioner. Thereafter, directed to take a fresh decision.
Accordingly, the matter was reconsidered in tune with the
directions of this Court and thereafter passed Ext.P23. I see no
reason to interfere with the above order. Moreover, the 1 st
respondent is an unaided school, ofcourse recognized by the
Government and governed by the provisions of the Kerala
Educational Act and Rules. This Court considered the scope of the
jurisdiction under Article 226 of the Constitution of India in
Gireesh G. and anr. v. State of Kerala and others [2020 KHC
289] and observed that the employment of the petitioners in that
case by CIAL or the termination of their services do not involve
any public element. The relevant paragraph is extracted
hereunder :
35. "The next question is whether a writ petition would
lie under Article 226 of the Constitution of India. It is seen
that CIAL does not have any statutory duty to be performed.
Going by the dicta laid down in the judgments of the Apex
Court inPraga Tool Corporation's case, Binny's case,
SCERT's case, Jatyapal Singh's case, IBPS' case,
K.K.Saksena's case, Ramakrishna Missions' case etc (supra),
no direction can be issued to enforce any personal contracts.
The employment of the petitioners by CIAL or the
termination of their services do not invovle any public
element. Therefore it cannot also be said that a writ petition
would lie against it under Article 226 of the Constitution of
India.
In the light of the finding on the preliminary objection in
favour of the respondents, I do not find it necessary to go
into the merits of the case. It is made clear that petitioners
would be free to approach the appropriate forum. As the
petitioners were prosecuting the matter before this Court,
the delay in approaching any forum on account of the
pendency of the Writ Petition shall not stand in the way of
entertaining their grievances."
9. Similarly, in St.Mary's Education Society &
anr. v. Rajendra Prasad Bhargava & Ors. [2022 LiveLaw (SC)
708], the Apex Court considered the matter in detail. The
relevant paragraph is extracted hereunder :
68. "We may sum up our final conclusions as under:
(a) An application under Article 226 of the Constitution
is maintainable against a person or a body discharging public
duties or public functions. The public duty cast may be either
statutory or otherwise and where it is otherwise, the body or
the person must be shown to owe that duty or obligation to
the public involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to
achieve the same for the collective benefit of the public or a
section of it and the authority to do so must be accepted by
the public.
(b) Even if it be assumed that an educational institution
is imparting public duty, the act complained of must have a
direct nexus with the discharge of public duty. It is
indisputably a public law action which confers a right upon
the aggrieved to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual wrongs or
breach of mutual contracts without having any public element
as its integral part cannot be rectified through a writ petition
under Article 226. Wherever Courts have intervened in their
exercise of jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions or the
employer had the status of "State" within the expansive
definition under Article 12 or it was found that the action
complained of has public law element.
(c) It must be consequently held that while a body may
be discharging a public function or performing a public duty
and thus its actions becoming amenable to judicial review by
a Constitutional Court, its employees would not have the
right to invoke the powers of the High Court conferred by
Article 226 in respect of matter relating to service where they
are not governed or controlled by the statutory provisions. An
educational institution may perform myriad functions
touching various facets of public life and in the societal
sphere. While such of those functions as would fall within the
domain of a "public function" or "public duty" be undisputedly
open to challenge and scrutiny under Article 226 of the
Constitution, the actions or decisions taken solely within the
confines of an ordinary contract of service, having no
statutory force or backing, cannot be recognised as being
amenable to challenge under Article 226 of the Constitution.
In the absence of the service conditions being controlled or
governed by statutory provisions, the matter would remain in
the realm of an ordinary contract of service."
10. The Division Bench of this Court in Binny
Ltd.and anr. V. Sadasivan and others [2005 KHC 1303]
also considered the question regarding the scope of Article 226
of the Constitution of India. The relevant paragraph is
extracted hereunder :
"29. Thus, it can be seen that a writ of mandamus or the
remedy under Article 226 is pre-eminently a public law
remedy and is not generally available as a remedy against
private wrongs. It is used for enforcement of various rights of
the public or to compel the public/statutory authorities to
discharge their duties and to act within their bounds. It may
be used to do justice when there is wrongful exercise of
power or a refusal to perform duties. This writ is admirably
equipped to serve as a judicial control over administrative
actions. This writ could also be issued against any private
body or person, specially in view of the words used in Article
226 of the Constitution. However, the scope of mandamus is
limited to enforcement of public duty. The scope of
mandamus is determined by the nature of the duty to be
enforced, rather than the identity of the authority against
whom it is sought. If the private body is discharging a public
function and the denial of any right is in connection with the
public duty imposed on such body, the public law remedy can
be enforced. The duty cast on the public body may be either
statutory or otherwise and the source of such power is
immaterial, but, nevertheless, there must be the public law
element in such action. Sometimes, it is difficult to distinguish
between public law and private law remedies."
11. In the light of the above principle laid down by
this Court and the Apex Court, I am of the considered opinion
that the jurisdiction of this Court to interfere with Ext.P23 is
very limited. I see no reason to interfere with Ext.P23. After
Ext.P20 & P21 judgments, the respondents considered the
matter in detail and thereafter, Ext.P23 order is passed. There
is nothing to interfere with the same.
Therefore, this writ petition is devoid of any merit and
the same is dismissed.
Sd/-
P.V.KUNHIKRISHNAN,
JUDGE
smv
SKS
APPENDIX OF WP(C) 7334/2015
PETITIONER EXHIBITS
P1:TRUE COPY OF THE EXPERIENCE CERTIFICATE
ISSUED BY TEH HEAD MASTER TO THE
PETITIONER
P2:TRUE COPY OF THE PETITION FILED BEFORE
THE HUMAN RIGHTRS COMMISSION DATED
14.04.2008
P3:TRUE COPY OF THE CHART GIVE TO THE
STUDENTS BY THE 1ST RESPONDENT
P4:TRUE COPY OF THE MEMO DATED 05.04.2008
ISSUED BY THE 1ST RESPONDENT TOT THE
PETITIONER
P5:TRUE COPY OF THE MEMO DATED 15.09.2008
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER
P6:TRUE COPY OF THE PETITIONER'S REPLY
DATED 15.09.2008 TO EXHIBIT P5 MEMO
P7:TRUE COPY OF THE MEMO DATED 19.09.2008
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER
P8:TRUE COPY OF THE PETITIONER'S REPLY
DATED 29.09.2008
P9:TRUE COPY OF MEMO DATED 23.03.2009
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER
P10:TRUE COPY OF PETITIONER'S REPLY DATED
02.04.2009
P11:TRUE COPY OF ORDER DATED 11.04.2009 OF
THE 1ST RESPONDENT APPOINTING THE ENQUIRY
OFFICER
P12:TRUE COPY OF MEMO OF CHARGES AND
STATEMENT OF ALLEGATIONS DATED 11.04.009
P13:TRUE COPY OF COMMUNICATION DATED
29.04.2009 ISSUED BY THE DEPUTY COMMANDANT
P14:TRUE COPY OF COMMUICATION DATED
13.05.2009 ASKING THE PETITIONER TO APPEAR
BEFORE THE DEPUTY COMMANDANT FOR ENQUIRY
P15:TRUE COPY OF REPLY DATED 08.5.2009
FILED BY THE PETITIONER
P16:TRUE COPY OF THE REPLY 15.06.2009
SUBMITTED BY THE PETITIONER
P17:TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 17.07.2009 ISSUED BY THE 1ST
RESPONDENT
P18:TRUE COPY OF PETITIONER'S REPLY DATED
11.08.2009
P19:TRUE COPY OF ORDER DATED 20.08.2009
ISSUED BY THE 1ST RESPONDENT
P20:TRUE COPY OF JUDGMENT IN WPC.NO.26963
OF 2009
P21:TRUE COPY OF THE JUDGMENT IN WPC NO.
P22:TRUE COPY OF THE HEARING NOTE
SUBMITTED BY THE PETITIONER
P23:COPY OF THE ORDER OF TERMINATION
ISSUED TO THE PETITIONER
