Kerala High Court
Prasanth.M.P vs State Of Kerala on 3 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WA NO. 630 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 5.3.2021 IN WP(C) NO.19414
OF 2019 OF HIGH COURT OF KERALA
APPELLANT/6TH RESPONDENT:
THE MANAGER, AIDED MUSLIM LOWER PRIMARY SCHOOL
KULAMUKKU, PARATHUR P.O, PATTAMBI (VIA), PALAKKAD
- 679303.
BY ADVS.
ELVIN PETER P.J.
SIDHARTH SUDHEER
RESPONDENTS/PETITIONER & RESPONDENTS 1-5 & 7 IN WPC:
1 PRASANTH M.P., AGED 40 YEARS,
S/O. RAACHANDRAN, LPSA, (UNDER ORDERS OF
DISMISSAL), AIDED MUSLIM LOWER PRIMARY SCHOOL,
KULAMOKKU, PARATHUR P.O, PATTAMBI (VIA), PALAKKAD
DISTRICT.
2 STATE OF KERALA
REPRESENTED BY SECRETARY, GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM - 695001.
3 THE DIRECTOR OF GENERAL EDUCATION
THIRUVANANTHAPURAM - 695001.
4 THE DEPUTY DIRECTOR OF EDUCATION
PALAKKAD - 678001.
5 THE DISTRICT EDUCATIONAL OFFICER
OTTAPPALAM, PALAKKAD - 679101.
2024:KER:73051
W.A.Nos.630/21 & 991/21
2
6 THE ASSISTANT EDUCATIONAL OFFICER
PATTAMBI, PALAKKAD - 679303.
7 NITHYA T
PLSA, AIDED MUSLIM LOWER PRIMARY SCHOOL,
KULAMOKKU, PARATHUR P.O, PATTAMBI (VIA), PALAKKAD
- 679303.
SRI.A.J.VARGHESE, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2024,
ALONG WITH WA.991/2021, THE COURT ON 03.10.2024 DELIVERED
THE FOLLOWING:
2024:KER:73051
W.A.Nos.630/21 & 991/21
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WA NO. 991 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 10.9.2024 IN WP(C)
NO.19414 OF 2019 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
PRASANTH.M.P.,
AGED 40 YEARS
S/O. RAMACHANDRAN, LPSA, (UNDER OF OF DISMISSAL),
AIDED MUSLIM LOWER PRIMARY SCHOOL, KULAMOKKU,
PARATHUR P.O, PATTAMBI(VIA), PALAKKAD DISTRICT.
BY ADVS.
GEORGE ABRAHAM
JOBY D JOSEPH
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF GENERAL EDUCATION,
THIRUVANANTHAPURAM 695 001.
3 THE DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD-678001.
4 THE DISTRICT EDUCATIONAL OFFICER,
OTTAPPALAM, PALAKKAD 679 101.
2024:KER:73051
W.A.Nos.630/21 & 991/21
4
5 THE ASSISTANT EDUCATIONAL OFFICER,
PATTAMBI, PALAKKAD 679 303.
6 THE MANAGER,
AIDED MUSLIM LOWER PRIMARY SCHOOL, KULAMOKKU,
PARATHUR P.O, PATTAMBI(VIA), PALAKKAD-679303.
7 NITHYA.T.,
LPSA, AIDED MUSLIM LOWER PRIMARY SCHOOL,
KULAMOKKU, PARATHUR P.O, PATTAMBI(VIA), PALAKKAD-
679303.
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
GOURI BALAGOPAL
SIDHARTH SUDHEER;
SRI.A.J.VARGHESE, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2024,
ALONG WITH WA.630/2021, THE COURT ON 03.10.2024 DELIVERED
THE FOLLOWING:
2024:KER:73051
W.A.Nos.630/21 & 991/21
5
`
"C.R."
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
W.A.Nos.630 & 991 of 2021
-------------------------------------
Dated this the 3rd day of October, 2024
JUDGMENT
Easwaran S., J.
The writ petitioner, as well as the 6th respondent in the
writ petition, have come up with these intra-court appeals.
2. The facts, in brief, for disposal of these writ
appeals are as follows:
The petitioner was appointed as Lower Primary School
Assistant (LPSA) on 7.8.1999. On 14.10.2015, the petitioner
was placed under suspension alleging that he physically
manhandled the Manager and his wife. Thereafter, on
19.10.2015, the petitioner was served with a memo of
charges. The suspension was later extended beyond fifteen
2024:KER:73051
W.A.Nos.630/21 & 991/21
days as per order dated 28.10.2015. Later on 12.4.2016, the
District Educational Officer directed the Manager to
reinstate the petitioner in service. Challenging the said
direction, the Manager approached this Court in WP(C)
No.17452/2016. By judgment dated 23.5.2016, the order was
set aside and this Court directed the District Educational
Officer to reconsider the case afresh. The Assistant
Educational Officer completed the enquiry and submitted a
report on 29-8-2016. Based on the enquiry report, Ext.P6
show cause notice dated 19.9.2016 was issued to the
petitioner by the Manager. The petitioner submitted his
objection on 24.10.2016. Dissatisfied with the explanation
given by the petitioner, the Manager as per letter dated
8.11.2016 addressed to the Assistant Educational Officer,
sought prior permission for imposition of major penalty of
dismissal from the service. The Assistant Educational Officer
2024:KER:73051
W.A.Nos.630/21 & 991/21
sought certain clarifications, which was given by the
Manager. Later by Ext.P12 order dated 17.4.2017, declined
the request of the Manager for imposing a major penalty.
Aggrieved by the decision of the District Educational Officer,
the Manager approached the Government and by GO(RT)
No.4508/2017/G.Edn. dated 22.11.2017 (Ext.P14), the
Government set aside the order of the District Educational
Officer and granted permission to the Manager to impose the
major penalty against the petitioner. Later by Ext.P15 order
dated 24.11.2017, the Manager imposed the punishment of
dismissal from service against the petitioner. Pertinently,
the teacher/petitioner did not think fit to challenge Ext.P14
order. However, against the order dated 24.11.2017, the
petitioner preferred appeal under Rule 80 of Chapter-XIV-A
of the Kerala Education Rules, 1959 on 26.12.2017. The
appeal was dismissed on 9.1.2018 by the District Educational
2024:KER:73051
W.A.Nos.630/21 & 991/21
Officer as per Ext.P17. On 12.2.2018, the petitioner filed a
revision before the Government. By Ext.P19 order dated
27.5.2019, the Government rejected the revision filed by the
petitioner and confirmed Ext.P17 order passed by the District
Educational Officer, thereby upholding the punishment
imposed against the petitioner. Challenging Ext.P19, the
petitioner approached this Court by filing the present writ
petition. However, when the present writ petition was filed
challenging Ext.P19 order, the petitioner raised a challenge
against Ext.P14 order dated 22.11.2017 whereby the
Government had granted permission to the Manager to
impose the penalty of dismissal from service against the
petitioner. The learned Single Judge after considering the
rival contentions, directed the Government to re-consider
the punishment imposed against the petitioner without
setting aside Ext.P19 order. The said direction was issued,
2024:KER:73051
W.A.Nos.630/21 & 991/21
especially since the learned Single Judge was of the opinion
that the petitioner was entitled to the latitude of re-
consideration of the punishment, vis-a-vis, the gravity of the
proven offences.
3. Aggrieved by the said direction, the Manager filed
intra-court appeal as W.A.No.630/2021 contending
that without setting aside the orders impugned in the writ
petition, the learned Single Judge could not have remitted
the matter back to the Government for reconsideration. At
the same time, the delinquent teacher also filed intra-court
appeal as W.A.No.991/2021 stating that the learned Single
Judge, having found that the petitioner was entitled
for the latitude in the matter of punishment vis-a-vis
the gravity of the offences alleged against him, ought
to have set aside the impugned orders and without setting
aside the impugned orders, no useful purpose will be
2024:KER:73051
W.A.Nos.630/21 & 991/21
served in remitting the matter before the Government.
4. We have heard Sri.K.R.Ganesh, the learned
counsel appearing for the appellant-Manager in
W.A.No.630/2021 and Dr.George Abraham, the learned
counsel appearing for the appellant/writ petitioner in
W.A.No.991/2021 and Sri.Varghese A.J., the learned
Government Pleader appearing for the State.
5. Since the writ petitioner has also come before us in
W.A.No.991/2021, we will be considering the said appeal as
the lead case, in order to decide as to whether the petitioner
was entitled for any reliefs in the writ petition. This is
especially since the petitioner contends that the learned
Single Judge ought to have set aside the orders impugned in
the writ petition before remitting the matter back to the
Government.
6. As noticed above, in the light of the indisputable
2024:KER:73051
W.A.Nos.630/21 & 991/21
facts, our consideration would be bestowed from the events
that occurred after issuance of the Ext.P14 order by
Government permitting the Manager to impose the major
penalty of dismissal from service against the petitioner.
Incidentally, we would also have to examine whether the
petitioner was liable to be visited with the corporal
punishment of dismissal from service based on the finding of
guilt by the enquiry officer in charges 2,3 and 5. It is to be
noted that the manager was also satisfied with the report of
enquiry finding that the petitioner was guilty of charge Nos.2,
3 and 5. Once the Government issued Ext.P14 order, the
Manager proceeded to issue Ext.P15 order. We would at first
instance, decide on the sustainability of the challenge raised
by the petitioner before the statutory authorities against
Ext.P15 order. As noticed above, the petitioner never
questioned Ext.P14 order of the Government permitting the
2024:KER:73051
W.A.Nos.630/21 & 991/21
Manager to impose the punishment of dismissal from
service. However, once the penalty of dismissal from service
was imposed on the petitioner the petitioner preferred an
appeal under Rule 80 of Chapter-XIV-A of the Kerala
Education Rules before the District Educational Officer,
Ottappalam.
7. We have bestowed our anxious consideration to
the question as to whether the appeal preferred by the
teacher against Ext.P15 order was maintainable or not. We
must note that in the realm of administrative law, it is trite
law that without challenging the basic order, availment of
statutory remedy against the consequential orders is of no
consequence. Viewed in the above perspective, neither the
appeal against Ext.P15 order nor the revision filed before the
Government against Ext.P17 order could have been
maintained. The petitioner having not approached this
2024:KER:73051
W.A.Nos.630/21 & 991/21
Court challenging Ext.P14 in a properly constituted writ
petition at appropriate time, certainly has himself to blame.
We thus hold that the appeal filed against Ext.P15 order was
clearly not maintainable and accordingly, the same was
rightly dismissed by the District Educational Officer. The
petitioner thereafter attempted a revision before the
Government, which resulted in Ext.P19 order. A reading of
Ext.P19 order shows that the Government had mistakenly
styled Ext.P18 revision petition dated 12.2.2018 as a review
petition filed before it and proceeded to consider the same
and ultimately found that there are no sustainable grounds
raised and accordingly, dismissed the same. Hence it would
be futile exercise in entertaining the challenge to these
orders.
8. There is yet another reason as to why the statutory
appeal and revision filed by the petitioner is to be held as not
2024:KER:73051
W.A.Nos.630/21 & 991/21
maintainable. Theoretically speaking, against the order of
dismissal imposed by the manager, the petitioner is entitled
to file an appeal. However, in the absence of a challenge to
the basic order passed by the Government (P14), the
subordinate authority cannot sit in appeal over the decision
of the Manager which is based on the permission granted by
the Government as per Ext.P14. Still further, as against the
order of rejection of the appeal, though the petitioner
invoked the revisional power of the Government under Rule
92 of Chapter XIVA of Kerala Education Rules 1959, the
Government was certainly bound by its earlier order. The
revisional power under Rule 92 of XIV A would not be thus
available to the Government to revisit its earlier decision
when a challenge is raised to the consequent order passed in
pursuance to Ext.P14 order. Therefore, the Government
rightly rejected the revision filed by the petitioner. We may
2024:KER:73051
W.A.Nos.630/21 & 991/21
also hasten to add that since Ext.P14 order and Ext.P19 order
being passed in independent proceedings, the petitioner also
cannot fall back on the principles of merger. Hence, the
appellate order and revisional order would thus become
immune from challenge because of the basic infirmity as
noticed above.
9. Perhaps the petitioner, being conscious of his
handicap before presenting this writ petition, chose to
challenge Ext.P14 order in this writ petition. Therefore, we
will have to see whether challenge to Ext.P14 by the
petitioner at this point of time is maintainable. If the answer
is in the affirmative, then, the consequences will have to
follow. If the answer is negative, then, necessarily, the writ
petition will have to be dismissed.
10. It is now settled law that though the law of
limitation may not strictly apply to the proceedings before
2024:KER:73051
W.A.Nos.630/21 & 991/21
this Court in a writ petition under Article 226 of the
Constitution of India. But still, the writ petition will have to
be filed within a reasonable time. Absence of challenge to
Ext.P14 order dated 22.11.2017 at any point of time before
Ext.P15 order was passed, is a determinative factor when we
are judging the cause projected by the petitioner. It is also
pertinent to note that there is no explanation for the delay of
nearly two years caused in filing the writ petition raising
challenge against Ext.P14 order. Hence, on this ground alone
the writ petition is liable to be dismissed as not maintainable.
We are fortified in our views based on the decision of the
Supreme Court in I.Chubha Jamir Vs State of Nagaland
[(2009) 15 SCC 169] wherein the Apex Court considered
the issue as to whether the question of delay could be gone
into at the appellate stage and held in affirmative that there
is no inviolable rule that, once the writ petition is
2024:KER:73051
W.A.Nos.630/21 & 991/21
entertained, the appellate court is powerless to go into the
question of delay and laches. Therefore, we hold that writ
petition is not maintainable due to delay and latches.
11. Alternatively, even if we were to assume that the
delay has been explained, the next question would be whether
the petitioner is entitled to succeed on merits of the case.
12. Before we delve upon the merits of the case, we
must not ignore the basic tenets of a well orchestrated
education system is its discipline. The entire system is thus
built on discipline. In Indulekha Joseph v. Vice
Chancellor [2008 (3) KLT 712], a Division Bench of this
Court dealt with the discipline in an educational institution.
Paragraph No.23 of the judgment reads as under :
"23. Discipline is the paramount asset
of an educational institution. If the said
virtue is not inculcated among the students
and the teaching and non-teaching staff, it
2024:KER:73051
W.A.Nos.630/21 & 991/21
will have a disastrous and deleterious effect
on the entire fabric of the society itself,
because the educational institution is the
breeding ground of the future generation. If
any compromise is made in the matter of
maintaining discipline in the institution, the
result will be disastrous. The message should
be loud and clear to all concerned that there
is no premium in the matter of discipline in
an educational institution. All other so called
organisational and individual rights should
be subject to the code of conduct prescribed
by the institution. ...."
13. A reading of the report of enquiry against the
petitioner shows that out of the five charges, three charges
were proved against the petitioner. We are not called upon
to decide the sufficiency of the evidence before the enquiry
officer which persuaded him to find the petitioner guilty of
charge Nos.2, 3 & 5. In our considered view, the charges
2024:KER:73051
W.A.Nos.630/21 & 991/21
leveled against the petitioner and proved after enquiry would
certainly erode the discipline in the institution. We are
definite in our view that the petitioner conducted himself
unbecoming of a teacher who is supposed to be a role model
to the students. On the basis of the findings arrived by the
enquiry officer, the Manager decided to impose the
punishment of dismissal from service against the petitioner.
Normally, the decision on the question of penalty to be
imposed on the delinquent employee is to be left to the
wisdom of the disciplinary authority who is the best Judge of
the cause. The decision of the disciplinary authority cannot
be judicially reviewed by the court unless the same is
shockingly disproportionate to the misconduct. Under the
scheme of Kerala Education Rules 1959, the disciplinary
authority, namely the manager, has to seek prior approval of
the educational authority before issuing the same to the
2024:KER:73051
W.A.Nos.630/21 & 991/21
teacher. The principles underlying the aforesaid mandate
could be traced to Rule 67(8) of Chapter-XIV-A of the Kerala
Education Rules, 1959. It is in this context, we are
constrained to note that Ext.P14 order, which was passed by
the Government as early as on 22.11.2017 granting
permission to the Manager to impose the punishment, being
left unchallenged till 2019, the Manager rightly proceeded to
impose the punishment. While testing the reasonableness of
the subsequent action of the manager as affirmed by the
Educational Authority as well as the Government, we cannot
go behind Ext.P14 order in order to find out whether it was
appropriate for the Government to have granted permission
to the Manager to impose the penalty of dismissal from
service. If we chose to do so, then we would be doing an
injustice to the opposite party since an indefeasible right had
accrued to the Manager on account of the failure of the
2024:KER:73051
W.A.Nos.630/21 & 991/21
petitioner to challenge Ext.P14 order at appropriate time.
Hence, we thus decline the request of the petitioner.
14. Dr.George Abraham, the learned counsel
appearing for the appellant/petitioner would fervently urge
before us that the petitioner had an unblemished career as a
teacher in the school and this was a solitary instance. He
would further plead before this Court to take a lenient view
against the punishment imposed by the Manager since the
petitioner has a family to take care of. However, we are not
impressed by the aforesaid argument . The misconduct on
the part of the petitioner destroyed the discipline of the
school. Therefore, we are clear in our mind that the Manager
is perfectly justified in imposing the punishment against the
writ petitioner dismissing him from the service, which has
been rightly upheld by the Educational Authorities as well as
by the Government.
2024:KER:73051
W.A.Nos.630/21 & 991/21
15. We may further add that a perusal of the grounds
of challenge to Ext.P14 reveals that the petitioner has not
raised any serious challenge, except to contend that only
because of the interference of the Minister, the Government
passed Ext.P14 order. We must say that the said contention
is not only vague, but also not supported by any material
evidence, and, therefore, has to be rejected.
16. As an upshot of these discussions, we hold that the
writ petition challenging Exts.P5, P14, P15, P17 and P19
orders is not maintainable. Thus, the learned Single Judge
ought not to have directed the Government to reconsider the
punishment imposed against the petitioner by showing a
latitude on the ground that the proportionality of the
punishment has to be revisited. In doing so, the learned
Single Judge had completely ignored the overwhelming
facts against the petitioner and had gone on a sympathetic
2024:KER:73051
W.A.Nos.630/21 & 991/21
ground, which is impermissible under law as it erodes
discipline in an educational institution.
17. In the result, we find that the petitioner is not
entitled to succeed and the writ petition is thus liable to be
dismissed.
In view of our findings above, the appeal filed by
the Manager deserves to be allowed. Accordingly,
W.A.No.630/2021 is allowed, setting aside the judgment
dated 5.3.2021 in WP(C) No.19414/2019. Consequently,
WP(C) No.19414/2019 and also W.A.No.991/2021 would
stand dismissed. No order as to costs.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
