1 THE STATE OF KERALA
REP- BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION(L)DEPARTMENT,
GOVT.SECRETARIAT ANNEX,
THIRUVANANTHAPURAM, PIN-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION,
THIRUVANANTHAPURAM, PIN-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM,
THEVALLY, KOLLAM, PIN-691013.
4 THE DISTRICT EDUCATIONAL OFFICER,
CIVIL STATION, KOLLAM, PIN-691013.
5 SMT.MARY DOLLY,
EIFFEL NEST, KANNANELLOOR.P.O,
KOLLAM DISTRICT, PIN-691576.
6 THE HEADMISTRESS N S M GIRLS HS KOTTIYAM,
KOTTIYAM.P.O, KOLLAM, PIN-691571.
BY ADVS.SRI.T.JAYAN, GOVERNMENT PLEADER
SRI.M.V.THAMBAN
SRI.K.S.BHARATHAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2025, ALONG WITH WP(C)NO.24809 OF 2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3 THE DEPUTY DIRECTOR OF (EDUCATION)
THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM,
THEVALLY, KOLLAM PIN-691 013
4 THE DISTRICT EDUCATIONAL OFFICER,
CIVIL STATION, KOLLAM, PIN 691 013.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
5 THE CORPORATE MANAGER OF CATHOLIC SCHOOLS,
CATHOLIC CORPORATE MANAGEMENT, KOLLAM,
DIOCESE OF QUILON, BISHOPS HOUSE,
THANGASSERY (PO), KOLLAM, PIN-691 007.
6 THE HEADMISTRESS
NSM GIRLS HS, KOTTIYAM, KOTTIYAM (PO),
KOLLAM PIN-691 571.
BY ADVS.
SRI.T.JAYAN, GOVERNMENT PLEADER
SRI.JOHN JOSEPH VETTIKAD
SRI.K.S.BHARATHAN
SRI.ABEL ANTONY
SRI.C.JOSEPH JOHNY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2025, ALONG WITH WP(C)NO.5182 OF 2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
JUDGMENT 'C.R.'
[WP(C) Nos.5182/2019, 24809/2019]
These connected writ petitions are filed by the Corporate
Manager of an Aided School and a Teacher, who was working
in the said school, with respect to the employment of the
Teacher, her subsequent suspension and her later dismissal
from service.
2. For ease of reference, the facts, as is available, in
W.P.(C) No.5182 of 2019 are adopted.
The petitioner is the Corporate Manager of an Aided School.
The 5th respondent herein was working as an Upper Primary
School Teacher (UPST) in the said school. The dispute is
essentially with respect to two spells of leave applied for by
the petitioner. As regards the first spell - from 16.07.2003
to 12.11.2003 - for a period of 120 days, there is no dispute.
The 5th respondent sought for the afore leave for
going abroad, and the said leave was also sanctioned.
The petitioner contends that after the leave period, the
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
5th respondent was to rejoin from 13.11.2003, and since the
5th respondent did not rejoin, proceedings were taken by
informing the Manager, as evidenced by Ext.P1 letter dated
17.11.2003. On 01.12.2003, the Manager sent Ext.P2
communication to the 5th respondent at her address, as
noticed in Ext.P2, and the same has been returned by the
postal authorities with the endorsement 'left India.' The
proceedings continued by way of sending a 'memo of
charges', as evidenced by Ext.P3 again in the same address,
which met with the same result as seen from the
endorsements made by the postal authorities. The petitioner,
in such circumstances, carried out a publication in the
Deepika Malayalam Daily dated 04.02.2004, as evidenced by
Ext.P4, followed by Ext.P5 memo of charges dated
20.02.2004, issued by the Manager, suspending the 5th
respondent from service. The afore period of suspension was
permitted to be continued beyond the permissible period of
15 days pursuant to Ext.P6 proceedings dated 05.03.2004.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
Later, as evidenced by Ext.P8 letter dated 06.05.2004, an
enquiry was conducted by the District Educational Officer
(DEO), wherein also the fact that the 5th respondent was
abroad, and the notices sent have been returned with the
endorsements 'left India' has been recorded. On the basis of
the afore, it is found that the 5th respondent was continuing
on unauthorised absence from 13.11.2003, and hence the
sanction to proceed under the provisions of Chapter XIV A of
the Kerala Education Rules, 1959 (hereinafter referred to as
'KER'), was extended to the Manager. On the basis of the
afore sanction, Ext.P9 show cause notice dated 02.10.2004
was issued, which was again returned with the endorsement
as already noticed, on account of which publication was
carried out in the newspaper dated 31.10.2004, as evidenced
by Ext.P10. Insofar as there was no response, the DEO
permitted the petitioner to act accordingly, as evidenced by
Ext.P13, and by Ext.P12 dated 23.02.2005, the 5th
respondent was dismissed from service.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
3. It may, straight away be noticed that the
proceedings under Chapter XIV A of the KER, as noticed
earlier as regards the 5th respondent herein, has come to an
end by 23.02.2005, as seen from Ext.P12. The 5th
respondent, thereafter, comes to the picture only pursuant to
Ext.P12 in W.P.(C) No.24809 of 2019, in the form of an appeal
filed before the Director of Public Instruction, dated
16.01.2017. The afore stood transferred to the Government
for consideration and the Government issued Ext.P14 dated
17.01.2019. By the order at Ext.P14, the Director of Public
Instruction found that there was a violation of the principles
of natural justice embodied under Rule 75 of Chapter XIV A
of the KER, and hence setting aside the proceedings taken by
the Manager against the petitioner leading to the dismissal
from service, as noticed earlier. The 5th respondent was
directed to be reinstated in service by Ext.P14.
4. The petitioner - the Manager - has, in such
circumstances, filed W.P.(C) No.5182 of 2019, challenging
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
Ext.P14 issued by the Director of Public Instruction, as above.
The 5th respondent has also filed W.P.(C) No.24809 of 2019,
essentially seeking to implement the directions contained in
Ext.P14 (producing the same as Ext.P15 in W.P.(C) No.24809
of 2019).
5. I have heard Sri.John Joseph Vettikad, learned
counsel for the petitioner, Sri. R.Reji, learned counsel for the
5th respondent, Sri.K.S.Bharathan, learned counsel for the 6th
respondent as well as Sri.T.Jayan, learned Government
Pleader, appearing for respondents 1 to 4.
6. The sustainability or otherwise of the findings
contained in the order of the Director of Public Instruction at
Ext.P14 is the issue arising for consideration in these writ
petitions.
7. Sri.Reji, the learned counsel for the 5th respondent
- Teacher - would contend that the proceedings culminating
in the dismissal of the said Teacher from service were without
following the detailed procedure prescribed under Rule 75 of
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
Chapter XIV A KER, as already noticed by the Director of
Public Instruction in the impugned order. It is his submission
that at no point of time, the show cause notice was served on
the said Teacher prior to the dismissal under the provisions
of Chapter XIV A KER. He pointed out that the fact that the
5th respondent was abroad was known to the Manager as well
as the authorities under the Department of Education, as
seen endorsed even in the enquiry report referred to earlier.
In the light of the afore, he would add that a second
application for leave for a period of five years was submitted
by the 5th respondent, as evidenced by Ext.P3 in W.P.(C)
No.24809 of 2019 and the said leave application is not seen
acted upon by the Manager or by the Department, though the
factum of filing such application is evidenced by Ext.P19, in
W.P.(C)No.24809 of 2019, letter dated 11.11.2003 of the
DEO, addressed to the Manager. True, reference to Ext.P19
would show that the 5th respondent Teacher had submitted
an application dated 27.10.2003 to the DEO for leave for a
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
period of five years.
8. However, it is pointed out by Sri.John Joseph,
learned counsel for the petitioner-Manager, that, at no point
in time, such an application was served on the Manager. He
would submit that insofar as the petitioner was abroad, the
Manager had no other go than to publish the show cause
notice prior to the dismissal, etc., in the newspaper and no
exception can be had to the afore method.
9. I have considered the afore rival submissions.
10. As already noticed, after the conclusion of the
proceedings under Chapter XIV A, on 23.02.2005, by virtue
of the order of dismissal, the matter arose for consideration
in the form of Ext.P12 appeal filed by the petitioner before
the Director of Public Instruction. A perusal of the afore
appeal would show that:
(i) The petitioner came to know about the proceedings
taken against her with reference to the letter dated
01.12.2003, issued by the Corporate Manager,
directing the petitioner to report for duty, when the
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
same was collected by one of the neighbours and
handed over to her father.
(ii) The petitioner admits that she came back to India
as early as on 24.07.2006, since the same is
evident from the passport, and thereafter, she was
continuing without any job in India.
(iii) After such return to India, the petitioner admits
that she met the Corporate Manager on several
occasions for a posting order and the Manager
informed her 'orally' that she had been terminated.
However, she adds that no written communication
was given to her.
11. From the afore, the fact that the petitioner was
back in India from 2006 onwards, and she has chosen to
present Ext.P12 only during January 2017, is clear. The 5th
respondent admits that on various occasions, she had been
to the office of the Manager, and the Manager had also
informed her that she had been terminated from service. No
steps are seen taken by the 5th respondent to collect the order
or to challenge the same. She has chosen to collect the order
and to challenge the same only during January 2017.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
12. In this connection, the provisions of Rule 82 to
Chapter XIV A KER have to be considered. Rule 82 extends
the period of two months from the date on which the
appellant received a copy of the order to present an appeal.
The petitioner maintains that insofar as no order was served,
she could entertain an appeal under Rule 82 with reference
to the date on which she obtained the order by putting in an
application under the Right to Information Act, 2005. At first
blush, the afore contention appears attractive. However, I am
unable to accept the afore submission since if such
submission is accepted, every litigant can sleep over her/his
rights and lodge an appeal at his/her sweet will.
13. The provisions of Rule 82, referred to above, have
to be considered with reference to the factual scenario as
borne out of Ext.P12 appeal filed by the 5th respondent.
Insofar as the 5th respondent admits that she was in India
from 24.07.2006 and since she had already met the Manager
on several occasions and has also come to know about the
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
dismissal from service, I am of the opinion that the
presentation of Ext.P12 appeal on 16.01.2017 was hopelessly
barred by limitation. True, as contended by Sri.Reji, no
ground regarding limitation was raised by the Manager before
the Director of Public Instruction, when he issued the
impugned order at Ext.P14. However, insofar as the question
of limitation is one, which goes to the root of the matter, the
petitioner - Manager - is entitled to raise the same in
subsequent stages by way of filing the captioned writ petition.
14. In such circumstances, I am of the opinion that
Ext.P12 appeal filed by the 5th respondent ought not to have
been interfered with by the Director of Public Instruction.
15. I also take note of the provisions of Rule 56(4) of
Chapter XIV A, which reads as under:
"(4) A Teacher shall cease to be in service after
a continuous absence of 5 years whether with or
without leave."
16. The fact that the petitioner was continuing on leave
- whether sanctioned or not - is admitted by both sides. The
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
said period of absence from duty beyond a period of five years
from 13.11.2003, is also not in dispute. When that be so,
even without recourse to the provisions of the statute under
which the suspension, dismissal, etc., have been issued, I am
of the opinion that the petitioner would be deemed to have
come out of service by virtue of the operation of the afore
provision. In this connection, I take note of the judgment of
this Court in Shaji P. Joseph v. State of Kerala and
Others [2022 (1) KHC 203], wherein a Division Bench of
this Court has referred to the provisions of Rule 56(4) Chapter
XVI A of the Kerala Education Rules, to hold that in cases
governed by the afore provision, the Teacher cannot claim the
benefits flowing out of the provisions of the KSR.
17. I also take note of various judgments cited by
Sri.Reji. He relied on Mohammed Shameer v. T. P. Abdul
Majeed [2022 (2) KHC 642] in support of the contention
that the show cause notice, etc. ought to have been published
in the newspaper having sufficient circulation. However, I
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
notice that the petitioner is not entitled to raise the afore
contention, insofar as, I have already found that the appeal
filed by her was not maintainable. He would rely on Union of
India and Others v. Dinanath Shantaram Karekar and
Others [(1998) 7 SCC 569] in support of his contention
that, when the charge sheet is returned with the endorsement
'not found', there is no actual service. The afore contention
also does not arise for consideration in view of the findings
already rendered. Similarly, the reliance on Shyla V. v.
Secretary to Government, General Education
Department, Tvm. and Others [2010 (1) KLT 990] to
show that the Manager was biased against the petitioner
would also have to fall to the ground on account of the
findings with reference to limitation rendered earlier.
18. In such circumstances, I am of the opinion that
W.P.(C) No.5182 of 2019 is only to be allowed and W.P.(C)
No.24809 of 2019 is only to be rejected.
Resultantly, these writ petitions would stand disposed by
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
allowing W.P.(C) No.5182 of 2019 by setting aside Ext.P14
issued by the Director of Public Instruction. Consequently,
W.P.(C) No.24809 of 2019 would stand dismissed.
Sd/-
HARISANKAR V. MENON
JUDGE
Skk//07.03.2025
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
APPENDIX OF WP(C) NO.24809 OF 2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER NO.
8062/2001/EDN DT 02-01-2001 OF THE 5TH
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR LEAVE
FILED BEFORE THE SIXTH RESPONDENT DT.
11-07-2003
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR LEAVE
FILED BEFORE THE SIXTH RESPONDENT
EXHIBIT P4 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT
CARD SIGNED BY THE FIRST RESPONDENT
EXHIBIT P5 TRUE COPY THE MEMO OF CHARGES DT. 02-01-
2004 ALLEGEDLY ISSUED BY THE 5TH
RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ORDER DT. 20-02-2004 OF
5TH RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ORDER NO.
B3/13386/2003/DATED 05-03-2004 OF THE
4TH RESPONDENT
EXHIBIT P8 TRUE COPY OF THE INQUIRY REPORT
DT.30-04-2004 OF THE 4TH RESPONDENT
EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE DT.
02-10-2004 ALLEGEDLY PUBLISHED IN THE
DEEPIKA DAILY DT. 31-10-2004
EXHIBIT P10 TRUE COPY OF THE ORDER NO. B3/13386/2003
DT. 18-01-2005
EXHIBIT P11 TRUE COPY OF THE ORDER NO. 683/04-
05/EDN. DT 23-02-2005
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
EXHIBIT P12 TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER BEFORE THE SECOND RESPONDENT
EXHIBIT P13 TRUE COPY OF THE HEARING NOTE FILED BY
THE 5TH RESPONDENT BEFORE THE SECOND
RESPONDENT
EXHIBIT P14 TRUE COPY OF THE HEARING NOTE FILED BY
THE PETITIONER BEFORE THE SECOND
RESPONDENT
EXHIBIT P15 TRUE COPY OF THE ORDER NO.
VB5/5739/2017/DPI/K.DIS DT 17-1-2019 OF
THE DIRECTOR OF PUBLIC INSTRUCTION.
EXHIBIT P16 TRUE COPY OF THE APPLICATION FOR LEAVE
DATED 27/10/2003 OF THE APPLICATICANT
ALONG WITH ENCLOSURE
EXHIBIT P17 TRUE COPY OF THE LETTER
NO.977011/L2/2016/GE DATED 271/12/2016
OF THE 1ST RESPONDENT
EXHIBIT P18 TRUE COPY OF THE POSTAL RECEIPT DATED
18.12.2003
EXHIBIT P19 TRUE COPY OF THE LETTER
NO.B3/12020/03/L.DIS. DATED 11.11.2003
OF THE DISTRICT EDUCATIONAL OFFICER,
KOLLAM ADDRESSED TO THE 5TH RESPONDENT
EXHIBIT P20 TRUE COPY OF THE LETTER NO.B3/1079/2017
DT.03.09.2018 OF THE 4TH RESPONDENT
EXHIBIT P21 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE ASSOCIATE PROFESSOR, NEUROSURGERY
DEPARTMENT, SREE CHITRA TURUNAL
INSTITUTE FOR MEDICAL SCIENCES AND
TECHNOLOGY, THIRUVANANTHAPURAM ON
22.02.2013
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
RESPONDENTS' EXHIBITS:
EXHIBIT R5(A) THE TRUE COPY OF THE GOVERNMENT CIRCULAR
NO.29/2003/FIN INDATED 29TH MARCH 2003
EXHIBIT R5(B) THE TRUE COPY OF THE DIRECTIONS ISSUED
BY THE GOVERNMENT TO THE DIRECTOR OF
PUBLIC INSTRUCTION BY LETTER
NO.22526/R3/86/G.EDN DATED 28/2/1987
EXHIBIT R5(C) TRHE GOVERNMENT CIRCULAR
NO.5/J3/2005/G.EDN DATED 4/04/2005
EXHIBIT R5(D) THE GOVERNMENT CIRCULAR
NO.13953(1)/J3/2009/G.EDN. DATED
27.10.2009.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
APPENDIX OF WP(C) NO.5182 OF 2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER NO:111/03-04 DATED
17/11/2003 OF THE 6TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER DATED 1ST DECEMBER
2003 ALONG WITH THE POSTAL SUPERSCRIPTION
NOTING THAT THE 5TH RESPONDENT LEFT INDIA
RECEIVED BY THE PETITIONER ON 15/12/2003.
EXHIBIT P3 TRUR COPY OF THE MEMO NO-8926/.2003/EDN
DATED 02/01/2004 ALONG WITH THE TRUE COPY
OF THE ACKNOWLEDGMENT CARD CONTAINING THE
POSTAL SUPERSRCIPTION DATED 05/01/2004
SHOWING THAT THE 5TH RESPONDENT LEFT INDIA.
EXHIBIT P4 TRUE COPY OF THE ADVERTISEMENT DATED 4TH
FEBRUARY 2004 IN DEEPIKA MALAYALAM DAILY
NEWS PAPER.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS ORDER NO-
8296/2003/EDN DATED 20/02/2004 OF THE
PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OREDER
NO.B3/13386/2003 DATED 05/03/2004 OF THE
4TH RESPONDENT DISTRICT EDUCATIONAL
OFFICER,KOLLAM.
EXHIBIT P7 TRUE COPY OF THE LETTER NO.66/2004/EDN
DATED 23/02/2004 OF THE PETITIONER
ADDRESSED TO THE 4TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER NO.B3/13386/2004
DATED 06/05/2004 CONTAINING THE ENQUIRY
REPORT OF THE 4TH RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE SHOW CAUSED NOTICE
436/2004/EDN DATED 2/10/2004 OF THE
PETITIONER ALONG WITH THE ACKNOWLEDGMENT
CARD CONTAINING THE POSTAL SUPERSCRIPTION
THAT THE 5TH RESPONDENT LEFT INDIA.
WP(C) Nos.5182 & 24809 of 2019 2025:KER:19338
EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE
NO.463/2004/EDN DATED 2/10/2004 OF THE
PETITIONER ADVERTISED IN DEEPIKA MALAYALAM
DAILY DATED 31ST OCTOBER 2004.
EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS ORDER
NO.B3/.13386/2003 DATED 18/01/2004 OF THE
1ST RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS ORDER
NO.683/04-05/EDN DATED 23/02/2005 OF THE
PETITIONER.
EXHIBIT P13 TRUE COPY OF THE PETITION DATED 16-1-2017
FILED BY THE 5TH RESPONDENT BEFORE THE 2ND
RESPONDENT AFER AN ELAPSE OF 12 YEARS SINCE
THE ISSUANCE OF EXHIBIT -P-12
EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS ORDER NO.VB-
5/5739/2017/DPI/KI-DIS DATED 17/01/2019 OF
THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE HEARING NOTES DATED
22/2/2018 HANDED OVER TO THE 2ND RESPONDENT
AT THE TIME OF HEARING.
RESPONDENTS' EXHIBITS:
EXHIBIT R5(A) TRUE COPY OF THE LETTER NO.8062/2001/EDN
DATED 02.01.2001 OF THE PETITIONER
EXHIBIT R5(B) TRUE COPY OF THE APPLICATION FOR LEAVE
FILED BEFORE THE SIXTH RESPONDENT
DT.11.07.2003
EXHIBIT R5(C) TRUE COPY OF THE APPLICATION FOR LEAVE
FILED BEFORE THE SIXTH RESPONDENT.
