IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2249 of 2007()
1. LESLIE BIVEIRA,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
For Petitioner :SRI.T.RAMPRASAD UNNI
For Respondent :SRI.ELVIN PETER P.J.
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :28/01/2009
O R D E R
K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.
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W.A. No.2249 OF 2007
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Dated this the 28th day of January, 2009
J U D G M E N T
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Balakrishnan Nair, J.
The writ petitioner is the appellant. He approached this
Court, filing the writ petition, challenging Ext.P7 order, as per
which he has been temporarily disqualified from holding the
post of Corporate Manager of the schools managed by Central
Board of Anglo Indian Education, Kochi.
2. The brief facts of the case are the following:
The appellant/petitioner was elected Corporate Manager
of the schools run by Central Board of Anglo Indian Education,
by the said Educational Agency. While so, one Mr. Watson
Rodrigues moved the Vigilance Court making certain allegations
against him. The allegations included the charges of bribery
also. The Vigilance Court after holding preliminary enquiry,
directed the Vigilance and Anti Corruption Bureau, Ernakulam
to register a case and investigate it. Pursuant to that, a crime
W.A.No.2249/2007 2
has been registered against the appellant. The Vigilance and Anti
Corruption Bureau moved the Government to take steps to keep
the appellant away from Managership, pending investigation of
the case. The Government forwarded the said request to the
Director of Public Instruction, Trivandrum, for appropriate
action. The Director, in turn, passed Ext.P7 order dated
23.7.2007, temporarily disqualifying the appellant from holding
the post of Manager. It was also provided in the order that the
same will be reviewed after the finalisation of the vigilance case.
The appellant challenged that order before this Court. The
learned Single Judge found the order bad, as it was issued
without hearing the appellant. So, the learned Judge ordered
that Ext.P7 shall be treated as a notice and the Director of Public
Instruction was directed to hear the parties, consider the
objections of the appellant and pass final orders in the matter,
expeditiously. It was also ordered that the temporary
disqualification will continue till a final decision is taken by the
Director. Mainly aggrieved by the said direction, concerning
continuance of the disqualification, the present appeal is filed.
W.A.No.2249/2007 3
3. The learned senior counsel, Mr. K.Ramkumar,
appearing for the appellant submitted that the Director of Public
Instruction has no power to issue an order of temporary
disqualification, as was done under Ext.P7. It is also submitted
that having regard to the provisions of Rule 7(1) of Chapter III of
the K.E.R., purportedly, under which the action was taken, the
appellant should have been issued with notice and his objections
considered before such an order was passed. In other words,
even an order of temporary disqualification can be passed only
after issuing notice. Even assuming, there is power for the same
in the Director, the direction to give the post-decisional hearing
ordered by the learned Single Judge is not proper. The learned
counsel also submitted that the ground taken in Ext.P7 is not a
ground available under Rule 7(1).
4. We heard the learned Government Pleader,
Smt.R.Bindu, for the official respondents and also M/s.
S.P.Aravindakshan Pillay, Elvin Peter, Julian Xavier and Paul
Abraham Vakkanal for the party respondents.
W.A.No.2249/2007 4
5. First, we will deal with the preliminary objection
raised by the learned senior counsel for the appellant.
According to him, the rules do not confer any power on the
Director to temporarily disqualify the Manager. It is well settled
that if a power is conferred on an authority to do something, the
express grant of power will take within its fold, the ancillary or
incidental powers necessary for the effective exercise of the
power expressly conferred. If very serious allegations are raised
against the Manager and the Director finds, prima facie, that
they are sustainable and therefore action is warranted, he should
be conceded freedom to temporarily keep the Manager away
from Managership, pending finalisation of the proceedings
against him. Therefore, the contention of the learned senior
counsel that the Director does not have the power to pass an
interim order, temporarily suspending the Manager, cannot be
accepted.
6. Rule 7(1) of Chapter III K.E.R. reads as follows:
“7. Action against Manager or Educational
Agency in the event of mismanagement etc.W.A.No.2249/2007 5
(1) In the event of mismanagement,
malpractice, corruption or maladministration,
gross negligence of duty, or disobedience of
Departmental instruction on the part of the
Manager or denial of appointment to a
qualified thrownout teacher who has a
rightful claim for reappointment by virtue of
his/her holding the post earlier or denial of
promotion to a teacher who is rightful
claimant for promotion by the manager or
conviction of the Manager for an offence
involving moral turpitude it shall be open to
the Director, after giving the Manager a
reasonable opportunity to show cause against
the action proposed to be taken and after due
enquiry, to declare him unfit to hold the
office of Manager in the school or in any
other aided school and to require the
educational Agency to appoint a suitable
person as Manager.”
Allegations of corruption is one of the grounds available under
Sub rule (1) of Rule 7 quoted above for disqualifying a Manager.
7. The impugned order, Ext.P7, reads as follows:
“As per the letter read first above,
Government have forwarded the request of
the V&ACB, Ernakulam Unit for necessary
action. The V&ACB, Ernakulam Unit has
informed that Smt.Leslie Bevera, Chairman &W.A.No.2249/2007 6
Corporate Manager, Central Board of Anglo
Indian Education, Kochi has involved in a
bribery case and FIR submitted before the
Vigilance Court. The Vigilance Bureau has also
observed that the continuance of the accused
in the official position will adversely reflect in
the enquiry by inducing witnesses and
destroying records of evidentiary value. The
procedure for the disqualification will take a
long time and will became against the spirit of
the request of the V&ACB. So Smt.Leslie
Bevera, Corporate Manager, Central Board of
Anglo Indian Education, Kochi is temporally
disqualified from the managership in terms of
Rule 7 of Chapter III KER. This order will be
reviewed after the finalisation of this
vigilance case.”
8. Going by the above order, the ground taken for
suspension of the Manager is the observation of the Vigilance
and Anti Corruption Bureau that the continuance of the
appellant in the official position will adversely affect the enquiry
by inducing witnesses and destroying records of evidentiary
value. Since the procedure for disqualification will take a long
time, the Director decided to keep him under temporary
disqualification. It was also said that this order will be reviewed
W.A.No.2249/2007 7
after the finalisation of the vigilance case. The same would show
that the appellant has been temporarily disqualified, relying on
the observation of the Vigilance Anti Corruption Bureau and the
same will remain in force, till the finalisation of the vigilance
case.
9. We notice that the ground taken in Ext.P7 is not a
ground available under Rule 7(1). But, based on the materials
produced before the D.P.I., if the said officer feels that the
Manager should be disqualified on the ground of corruption,
notwithstanding the fate of the vigilance case, the D.P.I. can
proceed to disqualify the appellant. While proceeding so, if the
D.P.I. feels that it is necessary to temporarily disqualify him,
pending finalisation of the proceedings against him, the same
can also be done. But, we notice that the above jurisdictional
facts are not available in this case. Ext.P7 is not issued based on
the decision of the Director to disqualify the appellant, in view of
the corruption charges against him. So, the learned Single
Judge has rightly ordered to treat Ext.P7 only as a notice. The
appellant will be free to raise all his contentions before the D.P.I.
W.A.No.2249/2007 8
The said officer, after hearing both sides, shall pass appropriate
orders in the light of the above observations made by us, within
six weeks from the date of production of a copy of this judgment.
Till the matter is decided by the D.P.I., the appellant will be
entitled to continue as Manager, provided the Educational
Agency does not cancel his appointment.
10. The party respondents herein, who oppose the
continuance of the appellant as Manager, may be given a chance
to represent their case by the D.P.I. But, for giving them a
chance, the hearing shall not be adjourned. The party
respondents who want to be heard, may file representations
before the D.P.I., within two weeks from today.
The Writ Appeal is allowed as above.
(K.BALAKRISHNAN NAIR, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
ps