IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25123 of 2005(N)
1. MAR PHILIXINOS VACATIONAL HIGHER
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE DIRECTOR ,VOCATIONAL HIGHER
3. MRS.RESINA ANNA GEORGE,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/12/2009
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.25123 of 2005-N
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 9th day of December, 2009.
JUDGMENT
The Manager of a Vocational Higher Secondary School is the
petitioner herein. The question that is raised in the writ petition is about the
legality of the direction issued by the Government in the impugned order,
Ext.P16, to the Manager to initiate de-novo disciplinary action against the
third respondent as provided under Chapter XIV-A K.E.R.
2. Ext.P16 is the order passed by the Government in Ext.P15 appeal
filed by the Manager against Ext.P14 order passed by the Director of
Vocational Higher Secondary Education. In fact, in Ext.P14 order the
Director was of the view that the petitioner/Manager can terminate the
appointment of the third respondent only after following the procedure
contemplated in KCS (CC & A) Rules.
3. Therefore, the main question raised by the petitioner is whether the
direction issued by the Government to comply with the provisions of
Chapter XIV-A K.E.R. in regard to the disciplinary action taken against the
third respondent, is correct or not on the ground that the provisions of
Chapter XIV-A K.E.R. have not been made applicable in the case of
wpc 25123/2005 2
Vocational Higher Secondary School Teachers. The facts of the case in a
nutshell, are the following:
4. The third respondent was appointed as a Lecturer in English in the
non-vocational division and she joined service on 2.12.1995. She was
granted leave without allowance as per Ext.P2 order passed by the
Government, based on her application Ext.P1, for one year from 10.8.2001.
She sought extension of leave as per Ext.P3, for a period of four years from
1.8.2002. The Manager informed her that the application cannot be
recommended for want of sufficient teachers in the school and she was
directed to rejoin duty. Accordingly, she rejoined duty on 9.8.2002 and
continued upto 4.9.2002. As per Ext.P5 application, the third respondent
requested for leave for five years from 5.9.2002 to 4.9.2007 for accepting
employment abroad. The said application was not forwarded by the
petitioner, but the third respondent left the school for joining employment
abroad without waiting for sanction of the leave. This resulted in the
Manager issuing Ext.P6 memo. It was stated in Ext.P6 that availing of
leave by simply sending an application for leave is a case of unauthorized
absence from duty, which is a serious misconduct. Therefore, she was
directed to rejoin duty within two weeks from the date of receipt of the
memo, failing which, it was informed that appropriate further action will be
wpc 25123/2005 3
taken against her for unauthorized absence from duty and insubordination.
5. Ext.P7 is the reply submitted by the third respondent, wherein she
requested the Manager to recommend her leave application to the Asst.
Director,V.H.S.E., Chengannur for onward transmission to the Government.
Ext.P8 is the notice issued by the Manager for taking action for
unauthorized absence from duty and insubordination, which was replied by
the third respondent as per Ext.P9. Ext.10 is the order issued by the
Manager terminating her from service for unauthorized absence, and
violation of Rules 7 and 23 of Chapter XIV-B K.E.R. This was forwarded
to the Director by the Manager as per Ext.P11 seeking permission to
appoint another non-vocational English Lecturer in the permanent vacancy.
Against Ext.P10, the third respondent preferred an appeal to the second
respondent as per Ext.P12. Since there was no response from the second
respondent after Exts.P10 and P11, the Manager sent Ext.P13 reminder.
Thereafter the second respondent passed Ext.P14 order.
6. The crucial question herein is whether the action taken by the
Manager is correct. Learned counsel for the petitioner relied upon a
decision of a Full Bench of this Court in Varghese v. Deputy Director of
Education (2000 (2) KLT 109 FB) and the decision of a learned Single
Judge in Rajalakshmi Amma v. State of Kerala (1996 (1) KLT 750). It is
wpc 25123/2005 4
contended that neither the KCS (CC & A) Rules nor the rules under
Chapter XIV-A K.E.R. will apply in the case of Vocational Higher
Secondary School Teachers. As no separate rules have been framed, there
is only master and servant relationship to govern the matter. It is therefore
submitted that as the third respondent continued to be in unauthorised
absence, there was no other way for the Manager but to terminate her
service. It is further submitted that the Director as well as the Government
found that the action of the third respondent in proceeding on leave without
sanction, is irregular and hence she is liable to face disciplinary action. The
question is only about the procedures to be adopted in the matter.
7. Learned counsel for the third respondent submitted that herein the
Manager acted illegally in not recommending the application for leave
without allowance to the Government and in rejecting the same. It is
pointed out that the Government alone has got the authority to sanction or
refuse to sanction the leave. It is further pointed out that in Ext.P14, the
Director issued a direction to the Manager to forward the application for
leave without allowance, to the Government and the Government has also
directed in Ext.P16, to forward the application to the Government even
though the Government has directed to initiate a de novo disciplinary
wpc 25123/2005 5
action against the teacher.
8. The order Ext.P16 whereby the Manager has been directed to take
disciplinary action has not been challenged by the third respondent.
Therefore, as regards the finding in Ext. P16 that she is liable to face
disciplinary action is concerned, it has become final. The form of such
action alone is the dispute.
9. Obviously, KCS (CC & A) Rules, 1960 will not apply herein, as
the said rules have not been made applicable to Vocational Higher
Secondary School Teachers. The Director has relied upon Rule 9 of
Appendix XIIA of Part I K.S.R. which will apply only in respect of those
employees covered by the same including Government employees, as the
said rules have not been made applicable to Vocational Higher Secondary
Department. There cannot be any dispute that the said rules will not apply
in this case.
10. In Ext.P16, the provisions relied upon by the Government are
Rules 74 and 75 of Chapter XIV-A K.E.R. whereby the previous sanction
of the officer authorized by the Government in that behalf is required before
imposing penalty of compulsory retirement, removal or dismissal from
service. The question is whether the same would apply herein. Section 12A
of the Kerala Education Act deals with the powers of Government over
wpc 25123/2005 6
Teachers of aided schools. As per Section 12A(1) of the Act, the
Government or such officer not below the rank of an Educational Officer,
as may be authorised by the Government in this behalf, shall have power to
take disciplinary proceedings against a teacher of an aided school. Chapter
XIV-A applies to aided school teachers. Obviously the same have not been
made applicable to Vocational Higher Secondary Schools. Therefore, the
procedure prescribed in Rule 74 of Chapter XIV-A K.E.R. that the Manager
should get previous sanction of the officer authorized in that behalf, before
imposing a penalty, cannot be applied herein. As per Rule 74 of Chapter
XIV-A, the Manager has got power to impose punishment only with the
previous sanction of the Director in the case of teachers in the graduate
teacher’s scale and Headmaster of Secondary Schools and Training Schools
and of the District Educational Officer in the other cases. There is an
amendment to Rule 2(4) of Chapter I K.E.R. containing the definition of
‘Director’, which is to the following effect:
” ‘Director’ means the Director of Public Instruction or the
Director of Higher Secondary Education or such other officer or
officers who may from time to time be appointed by the
Government to exercise all or any of the powers of the Director of
Public Instruction or the Director of Higher Secondary Education,
as the case may be.”
wpc 25123/2005 7
But the Director of Vocational Higher Secondary Education, has not been
included within its purview. Therefore, Rule 74 also cannot apply. In that
view of the matter, Ext.P16 cannot be sustained. Therefore, the disciplinary
action taken by the Manager also cannot be said to be illegal for want of
previous sanction as provided in Rule 74 of Chapter XIV-A K.E.R.
11. Then the question is whether the issue is governed only by the
principle of master and servant relationship, as contended by the learned
counsel for the petitioner. The matter is no longer res integra. In
Rajalakshmi Amma’s case (1996 (1) KLT 750) the very same question
was considered. The contention raised therein was that as the provisions of
KE.R. are not applicable in the case of teachers of the Vocational Higher
Secondary Schools are concerned, there is no power vested in the
Government to order reinstatement of the teacher appointed by the Manager
and the power of appointment takes in the power of suspension and
dismissal also. While examining this question, the learned Single Judge
held that the State has a pervasive control over the establishment and
administration of the Vocational Higher Secondary Schools in the State and
the Manager is not an independent autonomous authority. Accordingly, it
was held that the Managers of the Vocational Higher Secondary Schools
sanctioned by the Government also have to act fairly and conduct the school
wpc 25123/2005 8
in such a manner only in accordance with well-accepted norms complying
with principles of natural justice and fair play, even in the absence of any
statutory rules or specific executive orders regarding the conditions of
service of the teaching and non-teaching staff. It was held in para 13 thus:
“In the matter of sanctioning of the Vocational Higher
Secondary Schools, selection and appointment of teachers in
the said schools and approval of those appointments are being
made as directed by the Government in the manner provided by
executive orders. The Manager of a Vocational Higher
Secondary School is not an independent authority who can
establish a Vocational Higher Secondary School at his
discretion and make appointment of the teaching and non-
teaching staff in the said school. But right of the Manager in
establishing a school and conducting the same are subject to
specific control and restrictions imposed by the Government.
According to the first respondent, the entire expenses necessary
for the conduct of the Vocational Higher Secondary Schools in
the State are being met from a Central fund which was made
available at the disposal of the Government. The amounts
spent by the manager for providing the infra-structure for the
conduct of the Vocational Higher Secondary School are being
reimbursed by the Government, even though in the reply
affidavit filed by the petitioner, it is stated that Government so
far, had not reimbursed the said amount to any Manager of the
Vocational Higher Secondary School. But it is the definite
wpc 25123/2005 9
case of the State Government that the entire money that may be
spent by the management is reimbursable to the management
by the Government under the scheme. Thus it is established
that State has a pervasive control over the establishment and
administration of the Vocational Higher Secondary Schools in
the State and the Manager is not an independent autonomous
authority to establish any Vocational Higher Secondary School
in the State, conferring on the students who have undergone
training any diplomas or certificates and in the matter of
appointment of teaching and non-teaching staff of the said
school. In the light of the above facts, it has to be declared that
the Manager of the Vocational Higher Secondary School
cannot act arbitrarily while dealing with members of the
teaching and non-teaching staff. No such arbitrary power can
be conferred on such managers also under the scheme. It is the
Government who has to decide whether an aided school
governed by the provisions of the Kerala Education Act and the
Rules framed thereunder would be converted into a Vocational
Higher Secondary School and it is on the basis of such a
decision, the petitioner’s school, K.S.M. High School also was
converted into Vocational Higher Secondary School by the
Government as per G.O.(MS).No.163/92/G.Edn. dated
03/09/1992. Therefore, the Managers of the Vocational Higher
Secondary Schools sanctioned by the Government also have to
act fairly and conduct the school in such a manner only in
accordance with well-accepted norms complying with
wpc 25123/2005 10
principles of natural justice and fair play, even in the absence
of any statutory rules or specific executive orders regarding the
conditions of service of the teaching and non-teaching staff.”
12. The further question to be decided therein was whether
permission should be obtained from the Director of Vocational Higher
Secondary Education, in the matter. In the said case, the Deputy Director of
Education conducted an enquiry into the validity of suspension which was
cancelled by the Government. The Government took the view that the
Director alone will have jurisdiction in the matter. The ambit and extent of
the power of the Manager was considered in para 14A and it was held thus:
“The teaching and non-teaching staff were selected by a committee
with the Director of Vocational Higher Secondary Education as the
nominee of the Government in the said selection committee. The
appointment of persons who were selected shall also be approved by
the Director and the salary bills of those teachers have to be counter
signed by the Assistant Director. Thus, it can be seen that the
power of appointment of teachers conferred on the Manager is not
without any restrictions. In so long as such a power is not absolute
power, there is no justification to place a teacher also under
suspension for any indefinite period as wrongly contended by the
learned counsel for the petitioner and that too even without
permitting to conduct any enquiry by the Director of Vocational
wpc 25123/2005 11
Higher Secondary Education as ordered by the Government. The
theory of master and servant put forward by the manager is,
therefore, only to be discarded in the case of the petitioner and the
4th respondent. There is no legal or factual basis to substantiate the
said contention.”
13. The power of the Government to order an enquiry in the matter
of suspension, by the Director, was also considered and it was held in para
15 thus:
“For a proper functioning and administration of the Vocational
Higher Secondary Schools and to prevent any arbitrary action on the
part of the Managers of the Vocational Higher Secondary Schools
against the teaching and non-teaching staff working in the above
schools, it has to be held that Government have such a power to
order an enquiry by the Director of Vocational Higher Secondary
Education by any other competent authority. By the said direction,
none of the rights of the petitioner as manager of the school had
been affected.”
In para 17 of the judgment, this Court pointed out the necessity to frame
service rules for the staff of the Vocational Higher Secondary Schools
attached to the aided schools and the Government was directed to prescribe
service rules for the teaching and non teaching staff attached to the
Vocational Higher Secondary Schools in the State as expeditiously as
possible.
wpc 25123/2005 12
14. In Varghese’s case (2000 (2) KLT 109 (FB), the question
whether Deputy Director of Education has power or jurisdiction to initiate
disciplinary proceedings against a teacher of Higher Secondary School, was
considered. It was held that there is no specific power conferred under the
K.E.R. in the matter and separate rules, especially service conditions and
other connected matters have not been framed in the Special Rules.
Accordingly, in para 7 it was held thus:
“Now the question that remains for further consideration is whether
there would be no authority, who could take action in case of any
misconduct. It is fairly accepted by counsel appearing for the
parties that the Manager can take such action. But that is not really
the end of the matter. Where the Manager does not take any action
can the teacher be allowed to go scot free. As has been rightly
pointed out by counsel for the State, action can be taken against the
Manager if he does not take action against the concerned teacher.”
After referring to Rajalakshmi Amma’s case (1996 (1) KLT 750), the Full
Bench observed that it would be desirable for the State Government to make
statutory prescriptions to govern cases of staff of Higher Secondary
Education. It is therefore, clear from the findings in para 7 that in the
absence of any particular provision, the Manager can take disciplinary
action and to that extent the view taken in Rajalakshmi Amma’s case
(supra) that the theory of master and servant has to be discarded, stands
wpc 25123/2005 13
modified. Herein, one thing is clear that with regard to Vocational Higher
Secondary Schools, no Special Rules have been framed by the Government
so far. This fact is clear from the averments in the counter affidavit also. It
is averred in para 7 that Special Rules for the aided school staff of the
Department have not yet been framed. There is an averment to the effect
that the Special Rules in Government Sector, Kerala Education Rules and
Kerala Service Rules are being applied in the case of aided school staff also,
and that pending finalization of the Special Rules, the service matters of the
said staff are governed in accordance with Kerala Service Rules. The
contention taken is that such statutory rules will apply.
15. Obviously, the same cannot be accepted as regards disciplinary
action. In fact, going by the stand taken by the Government in
Rajalakshmi Amma’s case (1996 (1) KLT 750), K.E.R. will not apply to
Vocational Higher Secondary Schools. Merely because the service
conditions of the aided school staff are to be governed by the K.S.R., that
cannot automatically result in the application of KCS (CC & A) Rules in
respect of disciplinary matters.
16. The Scheme for Vocational Higher Secondary Education had
been introduced in the State in the year 1985 under a separate Directorate.
As per G.O.(MS) No.53/91/G.Edn. dated 30.3.1991 Government appointed
wpc 25123/2005 14
the Directors, Vocational Higher Secondary Education as the designated
authority. Various provisions have been referred to by the learned Single
Judge in Rajalakshmi amma’s case (supra). The Director is the competent
authority to approve the appointments made by the manager to the teaching
and non teaching staff. Therefore, the State has got a pervasive control
over the establishment and administration of the Vocational Higher
Secondary Schools and the Manager is not an independent autonomous
authority, as held by the learned Single Judge in the above case.
17. The question therefore arises whether the action taken by the
Manager is a fair one. Herein, the steps taken by the Manager before
termination of third respondent shows that as per Ext.P6, the third
respondent was directed to rejoin duty after pointing out that she is
unauthorisedly absent from duty. Again, by Ext.P8 she was asked to show
cause why action should not be taken for unauthorized absence. Finally, by
Ext.P10 she was terminated from service. This termination is effected on
the reason that the activity of the third respondent in absenting from duty for
taking up employment abroad from 5.9.2002 onwards cannot be justified.
That the third respondent left the school without waiting for the grant of
leave, is an admitted fact. With regard to the same, in Ext.P14 the Director
was of the view that the action of the teacher in having proceeded on leave
wpc 25123/2005 15
without getting the leave sanctioned is irregular. In Ext.P16 it was held by
the Government also that the action of the teacher in having left the school
and accepted employment, was irregular. Therefore, as regards the merits of
the charges in the disciplinary action is concerned, the view taken is
identical. It is, for that reason the Manager was directed to initiate de novo
disciplinary action against the teacher for leaving the country and accepting
job abroad without sanction from the Government, by Ext.P16. As already
observed, the above order is not under challenge by the third respondent.
Therefore, obviously she is liable for disciplinary action, but de novo
disciplinary action is not necessary.
18. The Manager, going by the decision of the Full Bench in
Varghese’s case (2000 (2) KLT 109 – FB), is entitled to take disciplinary
action. But still, the question is whether the department should have some
control in the matter, as otherwise if the unbridled power of the Manager is
recognised, there may be disastrous consequences. Hence, in the absence of
any Special Rules, there should be some mechanism to oversee the action
taken by the Manager resulting in punishment of a member of the staff. The
view taken in Rajalakshmi Amma’s case (1996 (1) KLT 750) therefore can
be relied upon in this regard. Therefore, any disciplinary action taken by
wpc 25123/2005 16
the Manager in respect of a member of the staff should be subject to
scrutiny by the Director of Vocational Higher Secondary Education. The
punishment imposed by the Manager can, therefore, be implemented only
after getting permission from the Director, which will be a proper safeguard.
19. What remains therefore is only regarding the grant of
permission by the Director of Vocational Higher Secondary Education to
implement the order of termination. Actually, the Manager was also
conscious of the above and it is in those circumstances the Manager
forwarded the order of termination along with Ext.P11 to the Director
seeking to accord sanction for appointment of another non-vocational
lecturer in English in the said vacancy. Again, the Manager has requested
for permission, as per Ext.P13 before the Director for effecting termination.
20. Therefore, the issue with regard to the grant of permission to
effect the punishment has to be decided by the Director, in the light of the
above findings. As separate rules have not been framed for taking
disciplinary action, the question of complying with the provisions of KCS
(CC & A) Rules and rules of Chapter XIV-A K.E.R. will not arise in this
case.
21. Then the question is whether the plea raised by the learned
counsel for the third respondent that the application for leave without
wpc 25123/2005 17
allowance should be forwarded by the Manager to the Government as
directed in Ext.P16. Obviously, the power to reject the application is
vested on the Government. Of course, the third respondent’s request is to
forward the same with due recommendation by the Manager. The third
respondent cannot compel the Manager to forward the application with a
request to sanction the leave. It is well settled that leave cannot be claimed
as a matter of right. Therefore, to recommend the leave or not is the
prerogative of the Manager. The direction by the Government in Ext.P16
to the Manager to forward the application with proforma details, etc. has to
be understood in the light of the above position, and in the light of the view
taken by the government therein about her conduct.
22. Therefore, the writ petition is allowed. Exts.P14 and P16 to the
extent to which the order of termination of the Manager is cancelled and the
direction to the Manager to take fresh disciplinary action, are quashed. The
second respondent Director of Vocational Higher Secondary Education will
consider the application of the Manager as per Ext.P13 for granting
permission to effect the termination in accordance with law and appropriate
orders will be passed within a period of two months from the date of receipt
of a copy of this judgment, after hearing the petitioner and the third
respondent. As directed in Ext.P16, the Manager will forward the
wpc 25123/2005 18
application for leave without allowance of the third respondent with the
documents accompanying it, for enabling the Government to pass final
orders with regard to the same. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/