IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23662 of 2010(G)
1. G.GEETHA BALI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
3. THE ASSISTANT EDUCATIONAL OFFICER,
4. THE MANAGER, ST.MARY'S U.P.SCHOOL,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :13/10/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 23662/2010-G, 23663/2010-G,
23733/2010-N & 24122/2010-M
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 13th day of October, 2010.
JUDGMENT
These writ petitions have been filed challenging Ext.P6 order by
which the petitioners have been placed under suspension pending enquiry.
2. This Court, while admitting the writ petitions, passed an interim
order dated 20.8.2010 staying Ext.P6 and directing the respondents to
reinstate the petitioners in the respective offices forthwith. Thereafter, a
petition to vacate the order was filed, which was dismissed by order dated
20.9.2010. The interim order was taken up in W.A. No.1649/2010 and
connected cases, wherein the Division Bench directed the writ petitions to
be posted for hearing and accordingly they have been heard.
3. Heard parties.
4. The petitioner in W.P.(C) No.23662/2010 is the P.A. to District
Educational Officer, Ernakulam, who was the former Senior Superintendent,
in the office of the Asst. Educational Officer, Vypeen, the petitioner in W.P.
(C) NO.23663/2010 is the Assistant Educational Officer, Vypeen, the
petitioner in W.P.(C) No.23733/2010 is working as Junior Superintendent in
wpc 23662, 23663, 23733
& 24122/2010 2
the Office of the District Educational Officer, Ernakulam. He had worked
as Clerk in the Office of the Asst. Educational Officer, Vypeen and was
transferred from the said office in the year 2000 to the Office of the Asst.
Educational Officer, Mattancherry. The petitioner in W.P.(C)
No.24122/2010 is working as U.D. Clerk in the Office of the Assistant
Educational Officer, Vypeen.
5. A reading of Ext.P6 order shows that the order of suspension has
been passed on the basis of a report forwarded by the Director of Public
Instruction dated 28.4.2010. The operative portion of the order states that
“to deny due promotion to Smt. K.K. Lalitha, as the Headmistress of St.
Mary’s U.P. School, Njarakkal, the officers of the Office of the Asst.
Educational Officer joined together with the Manager, tried to down grade
the post of Smt. Lalitha as a part-time one, they have created false
documents and filed wrong affidavits before this Court and later, in
violation of the order of stay and the judgment of this Court approved the
appointment and accordingly caused loss to the Government.
6. The contentions raised by the petitioners are practically common
in nature. It is mainly pointed out that with regard to the dispute regarding
the appointment of the Headmistress to the vacancy which arose on
wpc 23662, 23663, 23733
& 24122/2010 3
1.6.2001, two writ petitions were filed before this Court; one by the
Manager of St. Mary’s U.P. School, Njarakkal and another by one of the
claimants, Smt. K.K. Lalitha as W.P.(C) Nos.11114/2004 and 26374/2004.
They were disposed of by a common judgment, a copy of which has been
produced as Ext.P1. It is pointed out that this Court after considering
various aspects including the claims of the respective claimants, viz. Smt.
K.K. Lalitha and Smt. K.A. Mary, found in favour of Smt. K.A. Mary and
accordingly directed the competent educational officer to issue orders
approving the appointment of Smt. K.A. Mary, with effect from the date on
which such appointment was made. It was also held that Smt. K.A. Mary
will also be entitled to all benefits consequent on such approval on the
strength of the judgment. There was a further direction to release all
monetary benefits and retiral benefits refixed accordingly, within the time
limit fixed by this Court in the said judgment.
7. As evident from para 3 of the judgment, both the teachers have
retired from service as on the date of the said judgment. The matter is now
pending in Writ Appeal before this Court in W.A. No.2892/2007 filed by
Smt. K.K. Lalitha, wherein Ext.P2 interim order has been passed to the
effect that the benefit given to the 6th respondent therein, viz. Smt. K.A.
wpc 23662, 23663, 23733
& 24122/2010 4
Mary will be subject to the result of the appeal. Smt.K.A. Mary later filed
C.C.C. No.576/2008, evidently for disobedience of the judgment regarding
the non disbursal of the benefits and after getting a declaration from her, a
copy of which is produced as Ext.P3, the retirement benefits were released
to her. In the declaration given by her, it is stated that she will refund the
entire amount of pay and allowances if the Writ Appeal is ultimately
allowed.
8. Smt.K.A. Mary retired from service on 31.3.2002 and Smt.
Lalitha retired from service on 31.3.2006. It appears that during different
periods after the retirement of Smt. K.A. Mary, three different persons were
appointed as Headmistress of the school, viz. Smt.E.A. Philomina, Smt.
Gracy K. Francis and Smt. Mariamma George Mampilly. Since the
approval of their appointments did not materialise, they filed W.P.(C)
No.20464/2008 which was disposed of by Ext.P5 judgment. This Court
disposed of the writ petition with a direction to the Asst. Educational
Officer to consider the proposal for appointment of the petitioners therein as
Headmistress for the respective periods and pass appropriate orders. It was
made clear that the order so passed shall be subject to the result of the
pending Writ Appeal filed by Smt. K.K. Lalitha. Direction No.3 therein is
wpc 23662, 23663, 23733
& 24122/2010 5
to the effect that “the Assistant Educational Officer, Vypeen shall dispose of
the matter within a period of two months after affording an opportunity of
being heard to the petitioners, the Manager and any other affected person.”
Thereafter, the appointments have been approved, but subject to the result
of the Writ Appeal and after getting declarations from them that they will
refund the amount if ultimately the Writ Appeal is allowed. These facts are
not in dispute.
9. Therefore, the contentions raised by the petitioners evidently is
that in view of the pendency of the Writ Appeal, the approvals made are
only subject to the result of the Writ Appeal. Payments have also been
made accordingly and that too, after getting declarations.
10. The petitioners in all these writ petitions have got a further case
that even on the crucial date in the year 2001, they were not in the particular
office, i.e. the Office of the Asst. Educational Officer also. Ext.P8 in W.P.
(C) No.23663/2010 is the order by which the petitioner in the said writ
petition was posted as the Assistant Educational Officer, Vypeen. The said
order is dated 29.5.2007. She is serial No.64 therein. In W.P.(C)
No.23662/2010, along with I.A. No.13797/2010 the petitioner has produced
Ext.P7 order which shows that the petitioner therein was transferred and
wpc 23662, 23663, 23733
& 24122/2010 6
posted to the Office of the Asst. Educational Officer, Vypeen as per order
dated 31.1.2007. Along with I.A. No.13808/2010 the petitioner in W.P.(C)
N0.24122/2010 produced Ext.P7 order by which she was transferred and
posted to Office of the Asst. Educational Officer, Vypeen, which is dated
9.5.2008. She took charge on 24.5.2008. The petitioner in W.P.(C)
No.23733/2010 was working as a Clerk in the Office of the Asst.
Educational Officer, Vypeen for the period from 25.1.1994 to 22.5.2000. It
is his contention that on the date of occurrence of the vacancy of
Headmistress in the school in question, he was not there in the office,
evidently.
11. It is therefore submitted that the conclusions arrived at by the
Government while suspending the petitioners from service, that they have
joined the Manager to convert the post of Smt. Lalitha as part-time, have
created false documents, filed wrong affidavits before this Court and the
action taken to disburse the salary, etc. are in violation of the order of stay
and the judgment of this Court, are not correct.
12. The judgment Ext.P1 shows that various aspects have been
considered with respect to the details of service and the eligibility for
promotion in respect of Smt. Lalitha. This Court found that Smt. Lalitha
wpc 23662, 23663, 23733
& 24122/2010 7
was not entitled to be appointed as Headmistress, especially in the light of
the fact that she was not to be treated as a member of the staff of the school.
This conclusion is rendered in para 17 of the judgment. Evidently, this
Court directed the release of retirement benefits as well as other monetary
benefits to Smt. K.A. Mary and even though in the Writ Appeal filed by
Smt. Lalitha an interim order was passed, it was specifically made clear that
the benefit given to the 6th respondent (Smt. K.A. Mary) will be subject to
the result of the appeal. Therefore, there was no order restraining the
authorities, viz. the Asst. Educational Officer or the District Educational
Officer to disburse the benefits. When the Contempt petition was filed,
evidently the officer had to comply with the judgment also. Therefore, it is
only after the Contempt petition was filed, the benefits were disbursed, that
too after getting a declaration from the former Headmistress, Smt. K.A.
Mary that she will refund the entire amount if the Writ Appeal is ultimately
allowed. Evidently, therefore, if the Writ Appeal is allowed in favour of
Smt. K.K. Lalitha, Smt. Mary will have to refund the entire amount
received. It is therefore clear that the view taken in Ext.P6 that the amounts
have been disbursed in violation of the judgment of this Court and the
interim order, cannot be sustained at all. In Ext.P1 judgment, the
wpc 23662, 23663, 23733
& 24122/2010 8
Government is a party also.
13. The next question is whether the allegation that the officers have
joined together to create documents to show that Smt. Lalitha was only a
part-time teacher, is correct. Learned counsel for the petitioners submitted
that this Court has considered the staff fixation orders which was not under
challenge anywhere. Accordingly a conclusion was arrived at in Ext.P1
judgment. It is further pointed out that it is up to the appellant in W.A.
No.2892/2007 to challenge the conclusions in the judgment and at any rate,
it cannot be said that the petitioners have joined to create any documents to
deny her rights. Evidently, in the light of the fact that the petitioners in
W.P.(C) Nos.23662/2010, 23663/2010 and 24122/2010 have not been there
in the office even at the time when the staff fixation orders were issued,
those cannot be taken individually or collectively against them. With regard
to the filing of affidavits also before this Court, they had no role to play,
because the officers who were manning the office at that time, alone would
have filed affidavits. Therefore, learned counsel for the petitioners is
well founded in submitting that even on a cursory reading of the order itself,
it can be seen that those allegations cannot at all be justified.
14. True that in Ext.R1(a) various aspects have been pointed out by
wpc 23662, 23663, 23733
& 24122/2010 9
the Enquiry Officer for consideration of the higher authorities based on
which the disciplinary enquiry has been ordered. Even with regard to the
role of the petitioner in W.P.(C) No.23733/2010, the only reference in
Ext.R1(a) in para 2 of internal page 2 is that in the staff fixation order for
the year 1998-1999 there appears to be some corrections in the draft in his
handwriting.
15. I need not go into such matters in detail, because of the pendency
of the Writ Appeal, except to observe that such a report automatically
could not have led to an order like Ext.P6 and that too alleging forging of
documents, etc. With regard to the scope of the power of the authority to
order suspension, this Court in Surendran K. v. Government of Kerala
and others (ILR 2008 (3) Ker. 587) has laid down the relevant principles in
para 4 thus:
“It is well-settled that for every allegation of misconduct an
employee need not be suspended pending enquiry. It is true that
usually this Court will not interfere with an order suspending an
employee pending enquiry. The power to suspend an employee
should be exercised with caution and care as an order of suspension
pending enquiry may put the employee into shame and humiliation.
Of course, if the continuance f the employee in the same place
affects the disciplinary proceedings, the employer can suspend the
wpc 23662, 23663, 23733
& 24122/2010 10
employee. Whether an employee should be suspended pending
enquiry will depend various circumstances. Suspension pending
enquiry though cannot be considered as a punishment, it cannot be
disputed that it causes real hardship to an employee. The stigma
attached cannot be ignored. The object in placing an employee
under suspension pending enquiry is to enable the administration to
conduct the proceedings smoothly so as to establish the allegations
or the charge against the employee. If he is allowed to continue on
duty, there may be occasion for tampering with the evidence so that
the investigation cannot be successfully conducted. The power to
suspend is discretionary. There should be material to justify the
suspension. The order should be free from the taint of mala fides,
arbitrariness and extraneous considerations. Subjective satisfaction
regarding suspension should be based on objective considerations
and relevant circumstances. The suspension order should be
sparingly passed in compelling circumstances.”
Even though suspension cannot be treated as a punishment, it will affect the
reputation of the officers and will necessarily put them in hardships also.
When an order of suspension is issued for reasons even prima facie not
supportable and without any application of mind to the circumstances, it
will evidently be a case where there is total abuse of the power conferred on
the authority concerned. Those are circumstances wherein this Court has
held, as shown above, that the orders cannot be supported in the eye of law.
wpc 23662, 23663, 23733
& 24122/2010 11
16. Learned counsel appearing for Smt. Lalitha submitted that she
had filed a complaint with regard to various aspects concerning her
appointment, approvals, etc. But since the entire matter is open for
consideration in the Writ Appeal, she will have to urge contentions in the
Writ Appeal. In that view of the matter, I am not going into the details of
her contentions with regard to her rights, etc. for promotion to the post of
Headmistress.
17. Judged in the light of the above principles, I am of the view that
the order Ext.P6 cannot be sustained. Therefore, the writ petitions are
allowed. The impugned order in all the writ petitions, Ext.P6 is quashed.
There will be a direction to the first respondent to reinstate the petitioners in
the respective offices from which they were placed under suspension and
appropriate orders will be passed within a period of two weeks from today.
No costs.
(T.R. Ramachandran Nair, Judge.)
kav/