IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 3973 of 2000(W)
1. THEMANAGER, A.M.U.P.SCHOOL, PALLIKKAL
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.T.K.MARTHANDAN UNNITHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/02/2008
O R D E R
S. SIRI JAGAN, J.
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O.P.No.3973 OF 2000
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Dated this the 28th day of February, 2008
JUDGMENT
The petitioner is the Manager of an aided School. The 5th
respondent is a Teacher of the School, who was appointed with
effect from 1.6.1992. According to the petitioner, from 1995
onwards the 5th respondent started absenting himself without
leave. In the above circumstances, the Headmaster of the School
by Ext.P1 letter, requested the Manager to take appropriate
action since the 5th respondent is repeatedly applying for leave
without allowances and in spite of sending registered notice
intimating that, that leave cannot be sanctioned, the 5th
respondent did not care to join duty. Again by Ext.P2 letter, the
Headmaster informed the Manager that the 5th respondent is
continuing his unauthorised absence. Therefore by Ext.P3 letter
dated 17.10.1997, the petitioner directed the 5th respondent to
show cause why appropriate action should not be taken against
him for this unauthorised absence from 1.10.1997 onwards. By
Ext.P4 letter dated 31.10.1997, the 5th respondent intimated the
O.P.No.3923/2000 2
Manager that he could not attend classes from 1.10.97
onwards and no application for leave was submitted since his
child was not well. He also promised that thereafter he will not
enter on unauhtorised leave. He also admitted that on account
of his taking leave the students have been experiencing
difficulties and volunteered to take special classes and extra
classes during holidays and leisure periods to finish the lessons
as per syllabus. Thereafter by Ext.P5, the 6th respondent –
Headmaster informed the 5th respondent that he cannot be
granted leave as applied for by him. It was also stated in
Ext.P5 that for the previous year the petitioner had attended
the school for only 51 days and the students in his class could
not be taught their lessons properly. It was also informed in
Ext.P5 that the parents of the students had complained to the
Manager about this irresponsible attitude of the 5th respondent.
The 5th respondent was also informed that his applications for
leave were not supported by medical certificates and that for
previous years also he had been on unauthorised leave
likewise. Therefore the 5th respondent was directed to explain
his conduct. Thereafter the Manager sought direction from the
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AEO and by Ext.P6 letter, the AEO directed the petitioner to
take appropriate action based on Exts.P6(a), P6(b) and P6(c)
Government Circulars on the question of action to be taken on
applications for leave without allowances. Thereafter by
Ext.P7 show cause notice, the petitioner directed the 5th
respondent to show cause why disciplinary action should not
be taken against him for the misconduct of insubordination,
indiscipline, absence without proper leave application and
medical certificate etc. To the same, the 5th respondent
submitted Ext.P8 stating that he could not attend the School
only because of Rheumatism and he can attend classes only
from next June. Since the said explanation was unsatisfactory,
Ext.P9 memo of charges was issued to the 5th respondent.
Since Ext.P10 reply filed by the 5th respondent was
unsatisfactory, the memo of charges was forwarded to the AEO
for enquiry under Rule 75 of Chapter XIVA of the Kerala
Education Rules. By Ext.P12 report, the AEO found the 5th
respondent guilty of the misconducts alleged against him. In
Ext.P12, the offer of the 5th respondent that he is prepared to
take leave without allowances for 5 years for other
O.P.No.3923/2000 4
employment was recorded. The petitioner issued show cause
notice to the 5th respondent why the punishment of removal
from service should not be imposed on the 5th respondent.
After receiving Ext.P15 reply, the same was forwarded to the
DEO for permission to impose punishment of removal from
service on the 5th respondent. By Ext.P16 order, the DEO
granted permission to impose that punishment. Accordingly,
by Ext.P17 order, the punishment of removal from service was
imposed on the 5th respondent. The 5th respondent challenged
the same before the Deputy Director of Education. The Deputy
Director of Education, by Ext.P20, while affirming the finding of
guilt on the 5th respondent, set aside the punishment of
removal from service, on the ground that it is disproportionate
to the gravity of the misconducts, and the Manager was
directed to impose a more appropriate punishment reinstating
the 5th respondent in service. That order is under challenge
before me at the instance of the Manager.
2. The 5th respondent has filed a counter affidavit
refuting the contentions of the petitioner. First of all, he would
submit that this writ petition itself is not maintainable in so far
O.P.No.3923/2000 5
as the petitioner has not exhausted the alternate remedy by
way of filing an appeal or revision before the DPI or the
Government. Secondly, he would contend that he was not
guilty of the misconducts in so far as he applied for leave only
on account of serious illness as a result of which, he was not
even able to move. He would contend that even assuming that
he was guilty of the misconducts proved against him, the same
were not grave enough to warrant the punishment of removal
from service, which only has been directed by the Deputy
Director of Education in Ext.P20 order. The 2nd respondent
has also filed a counter affidavit.
3. I have considered the rival contentions in detail. I
shall first deal with the objection raised by the 5th respondent
on the ground of availability of effective alternate remedy to
the petitioner by way of appeal or revision. The writ petition
was admitted as early as in 2000. We are in 2008. After
having admitted the writ petition, despite the availability of the
alternate remedy, I am not inclined to relegate the petitioner
to alternate remedy at this point of time which would only
multiply litigation, which is one thing this Court has to avoid at
O.P.No.3923/2000 6
any cost. As such, I do not find any merit in that contention
of the 5th respondent. Regarding the second contention of the
5th respondent, I do not think that he can without challenging
the enquiry order of the DEO and even the impugned order,
wherein the guilt of the 5th respondent has been upheld, claim
that he is innocent and has not committed the misconducts.
As such there is no merit in that objection of the 5th
respondent also.
4. Now the only remaining question is as to whether
the Deputy Director was justified in interfering with the
punishment of removal from service imposed on the 5th
respondent. The Deputy Director has held that removal from
service is a very harsh punishment, which can be resorted to
only in misconducts involving moral turpitude,
misappropriation, bigamy and punishment by Court for a
criminal offence etc. He has said that since the misconducts
proved against the 5th respondent does not come within any of
the said category, removal from service is not the proper
punishment to be imposed on the 5th respondent. For deciding
this question, I have to consider the very history of the case. It
O.P.No.3923/2000 7
is not as if the Manager has suo-motu initiated proceedings for
misconducts against the 5th respondent. It was pursuant to
two letters from the Headmaster informing the Manager that
on account of the unauthorised absence of the 5th respondent,
the students of his class are experiencing great difficulties that
the Manager initiated proceedings. Initially, the Manager only
asked him to explain the unauthorised absence, by Ext.P4.
The 5th respondent said that from 1.7.1997 to 28.9.1997 he
was on leave and that he joined duty with medical fitness
certificate. In Ext.P4 he does not say that from 1.10.1997
onwards he was not able to come to the class because of any
illness. He also admits in that, he had not submitted any
application for leave. The reason given for the same is that his
child was not well. From Ext.P4 it is clear that he was also
aware of the fact that the students were experiencing
difficulties because of his unauthorised absence. He
volunteered to take special classes and extra classes during
holidays and leisure time. It is thereafter that the disciplinary
proceedings were initiated. In Ext.P12 enquiry report the AEO
has recorded that the 5th respondent had offered to take 5
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years leave without allowances for accepting other
employment. The petitioner’s contention is contradictory. At
one place, he would submit that he was not well because of
Rheumatism and he cannot even move about because of that.
At another place he readily volunteers to take special classes
and extra classes even during holidays. Still worse, he offers to
take leave without allowances for 5 years for accepting other
employment. It is beyond comprehension as to how a person,
who cannot move about because of illness, can take extra
classes and can accept other employment.
5. The 5th respondent would repeatedly contend that
although he had not submitted medical certificate along with
his application for leave, he had sent the same later. Such a
contention was not raised by the 5th respondent before any of
the lower authorities. In Ext.P12 enquiry report also such a
contention is conspicuously absent. The petitioner submits that
he has filed a reply affidavit to the counter affidavit of the 5th
respondent in which, he has denied that he has received any
medical certificates subsequently also from the 5th respondent
(However that reply affidavit is not in the file). That being so,
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the contention of the 5th respondent that he was absent
because he was seriously ill cannot be accepted at all. On the
other hand, from his offer that he shall take leave without
allowances for 5 years for accepting other employment would
show that the 5th respondent had other intentions in the
matter. Further from the documents before me, it is clear that
the 5th respondent is in the regular habit of absenting without
leave.
6. The very object of the Kerala Education Rules is to
impart better education to the pupils, who joins Government
and aided Schools. Appointment of teachers is one of the
steps in furtherance of that noble object. If that cannot be
achieved, then there is no point in continuing a teacher in the
School at all. Appointment of teacher is not merely to enable
him to earn a living. It is for the specific purpose of teaching
students. The misconduct of the petitioner has to be viewed in
that perspective. Here is a teacher, who is habitually absent
without leave. He is totally inconsistent in stand regarding the
reasons for his unauthorised absence. Admittedly during the
previous year he attended the School for only 51 days. In spite
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of the same, he continued unauthorised absence, despite
intimation to the effect that his applications for leave were not
sanctioned at all. Children have already suffered because of his
misconducts which cannot now be remedied. Further in the
counter affidavit of the 2nd respondent in paragraph 4, it is
stated thus:
“The 5th respondent is a habitual absentee in
the school which necessitated disciplinary action
against him. He has attended only 51 days in the
School in the academic year 1997-98 and regularly
irregular in attending the school.”
Again in paragraph 12, the 2nd respondent states thus:
“The 3rd and 4th respondents were of
opinion that the charges levelled against the 5th
respondent is genuine and he has no interest to
work in the school. Hence the 3rd respondent was
granted permission to remove the 5th respondent
from service w.e.f. 12-2-1998, the day from
which he was absent in the school, in exercise of
powers in Rule 74, Chapter XIV (A) KERS. The
Deputy Director of Education has also admitted
the charges levelled against the 5th respondent
proved by the enquiry officer. But the appellate
order dated 11-1-2000 was passed on
humanitarian grounds.”
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This would also show that the punishment of removal cannot
be held to be disproportionate to the gravity of the
misconducts and that the Deputy Director has acted only on
the basis of sympathy. Imposition of punishment is essentially
a managerial function. The authorities under the KER can
interfere with the same only for appropriate reasons. While
doing so, they have to bear in mind the object behind the KER.
From all the above, I am not satisfied that the Deputy Director
of Education was not justified in interfering with the
punishment imposed by the petitioner as approved by the
DEO. Consequently, Ext.P20 is quashed and the order of the
Manager and that of the DEO is restored.
The original petition is allowed as above.
S. SIRI JAGAN, JUDGE
Acd
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