IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2736 of 2009()
1. O.J.CICILY, KUNNUMPURATHU VEEDU,
... Petitioner
Vs
1. CORPORATE MANAGER,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EDUCATIONAL OFFICER,
For Petitioner :SRI.C.K.PRASAD
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :30/01/2010
O R D E R
"CR"
K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. No.2736 of 2009
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Dated this, the 30th day of January, 2010
J U D G M E N T
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Balakrishnan Nair, J.
The appellant was the 4th respondent in the Writ
Petition. The 1st respondent herein was the writ petitioner.
2. The brief facts of the case are the following:
The appellant is a Peon working in the school managed
by the 1st respondent. She was suspended from service by the
Manager in contemplation of the disciplinary proceedings on
16.7.2001. There is some dispute between the parties as to
whether permission was granted by the Educational Officer,
to keep her under suspension beyond 15 days. Since the
same is not relevant in this case, it is unnecessary to go into
that controversy. She was served with Ext.P19 memo of
charges dated 10.8.2001. She submitted her reply, Ext.P20,
on 28.8.2001. The Assistant Educational Officer (for short
‘AEO’) held an enquiry into the charges on 21.8.2001 and
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furnished Ext.P6 report dated 11.9.2001 to the Manager,
finding the appellant guilty. Based on that enquiry report, the
Manager issued Ext.P7 notice dated 4.10.2001, proposing to
remove her from service. The appellant submitted Ext.P8
reply. On finding the reply not satisfactory, the Manager
removed her from service by Ext.P9 order dated 17.11.2001. It
appears that the order was passed without the previous
sanction of the District Educational Officer (for short ‘DEO’).
So, the DEO was moved and the said officer granted sanction
to impose a punishment of removal from service on the
appellant, by Ext.P10 dated 5.4.2002. Thereafter, the
Manager passed a fresh order, Ext.P11 dated 15.4.2002,
removing her from service. The appellant challenged Ext.P11
before the Deputy Director of Education, Idukki. The said
officer, after hearing both sides, by Ext.P12 affirmed the
finding of guilt of the accused, but reduced the punishment to
one of barring one increment without cumulative effect. The
Manager and the appellant filed Revision Petitions before the
Government, challenging Ext.P12. The Government, after
hearing both sides, by Ext.P15 order dated 3.8.2007 affirmed
Ext.P12.
W.A. No.2736/2009
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3. Challenging Exts.P12 and P15, the 1st respondent
Manager filed the Writ Petition. The learned Single Judge,
after hearing both sides, allowed the Writ Petition quashing
Exts.P12 and P15. Feeling aggrieved by the said judgment,
the appellant has preferred this Writ Appeal.
4. We heard, Sri.C.K.Prasad, learned counsel for the
appellant. We also heard the learned counsel for the Manager
and the learned Government Pleader, Smt.R.Bindu, for the
official respondents. The learned counsel for the appellant
brought to our notice that the enquiry was held even before
the receipt of her reply to Ext.P19 charges. Further, the
enquiry was held without following the procedure prescribed
under Rule 75 of Chapter XIVA of the Kerala Education Rules
(for short ‘KER’). The procedure therein will apply to holding
disciplinary enquiry against non-teaching staff also, by virtue
of Rule 7 of Chapter XXIVB of the KER. The learned counsel
also pointed out that all the charges contained in Ext.P19,
except the 5th charge, are vague and could not have been the
subject-matter of disciplinary action. Even the finding on
charge No.5 is not in conformity with the allegations in the
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memo of charges. Therefore, the learned counsel for the
appellant prayed for reversing the judgment of the learned
Single Judge.
5. The learned counsel for the Manager, on the other
hand, supported the judgment under appeal. The materials on
record would show that the presence of the appellant cannot
be tolerated in an educational institution and therefore, she
has been rightly removed from service. The learned
Government Pleader supported the impugned orders of the
Deputy Director and the Government.
6. We considered the rival submissions made at the
Bar and perused the materials on record. Rule 75 of Chapter
XIVA of the KER provides that before the Manager orders an
enquiry into the charges against the delinquent, he should
examine the written statement of the incumbent and decide
whether it is necessary to order the enquiry. In this case, as
per Ext.P19 memo of charges dated 10.8.2001, the appellant
was given 15 days time for filing reply from the date of receipt
of the memo. She filed Ext.P20 reply on 28.8.2001. But, the
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AEO held the enquiry on 21.8.2001. So, it is manifest that
even before the receipt of reply, the Manager decided to hold
the enquiry, moved the AEO, who in turn readily obliged and
held the enquiry on the eleventh day of serving the memo of
charges. The decision to hold enquiry, taken even before the
receipt of written statement of defence and before the expiry
of the time limit fixed for filing the written statement, will
vitiate the entire proceedings, as such the decision violates
Rule 75(1) of Chapter XIVA of the KER. The Sub-Rule reads as
follows:
"75. Procedure for imposing major
penalties:-
(1) (a) Whenever a complaint is received
or on intimation from the authorised Officer
as per Section 12(A) is recorded or on
consideration of the report of investigation or
for other reasons the manager is satisfied
that there is prima facie case for taking action
against the teacher definite charge or charges
shall be framed and communicated to him with
the statement of allegations on which each
charge is based and of any other
circumstances which it is proposed to take into
consideration in passing orders on the case.
The teacher shall be required to submit within
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a reasonable time to be specified in that
behalf a written statement of his defence and
also to state whether he desires to be heard in
person. The teacher may on his request be
permitted to peruse or take extracts from the
records pertaining to the case for the purpose
of preparing the written statement; provided
the manager may, for reasons to be recorded
in writing refuse him such access if in his
opinion such records are not strictly relevant
to the case or it is not essential in Public
interest to allow such access.
After the written statement is received
within the time allowed, the manager may if he
is satisfied that a formal enquiry should be
held into the conduct of the teacher, order
that a formal enquiry may be conducted.”
7. Going by the above provision, the Manager can
order to hold an enquiry only after the receipt of written
statement of defence, if it is filed in time and on finding that
the explanation of the delinquent is not satisfactory. This
Court has quashed the disciplinary action against a bank
employee for violation of a similar provision in E.S.Nambiar
v. Union Bank of India [1991 (2) KLT 354].
W.A. No.2736/2009
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8. We are taking the above view, as both sides
submitted before us, that Ext.P6 is the enquiry report on the
memo of charges. We have some doubt regarding the said
aspect because, the subject mentioned in the opening portion
of Ext.P6 would show that the enquiry report relates to the
suspension of the appellant. Whatever be that, as mentioned
earlier, the Manager has taken Ext.P6 as an enquiry report on
the memo of charges issued by him to the appellant. We
notice that in Ext.P6, the adversary procedure provided in
Rule 75 has not been followed. But, on the contrary,
inquisitory procedure was followed by the Assistant
Educational Officer. That means, the enquiry was held in
violation of the principles of natural justice and in violation of
the mandate of Rule 75. In view of the above position, Ext.P6
could not have been made the basis for action against the
appellant. In Ext.P7, Ext.P6 is referred as the 5th paper and in
Ext.P11, the said report is referred as 4th paper. There is no
other enquiry report other than Ext.P6 against the appellant.
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9. In view of the above finding, we think, it is
unnecessary to go into the other contentions raised by both
sides in this Writ Appeal. So, we reverse the judgment of the
learned Single Judge and the following directions are issued:-
It is declared that Ext.P6 cannot be treated as an enquiry
report into the memo of charges. So, all further proceedings
taken, based on it, are declared to be invalid and
unenforceable. If the Manager has obtained permission for
keeping the appellant under suspension beyond 15 days, she
shall be reinstated in service and shall be treated as under
suspension all along. The Manager and Headmaster shall take
steps to release to her the subsistence allowance due,
including arrears thereof, on her reinstatement. It is clarified
that she need be paid only the balance subsistence allowance
after deducting the amount already paid. If there is no
sanction for treating her under suspension beyond 15 days, as
claimed by the appellant, she shall be reinstated in service by
the 1st respondent Manager. In that event, how the period she
was out of service shall be treated, will be decided by the
Controlling Officer, the Assistant Educational Officer, after
hearing the appellant and the Manager. The Manager is given
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liberty to decide whether an enquiry should be held into the
charges, after considering the reply of the appellant. If it is
found that the reply is not satisfactory and further enquiry is
necessary, the Manager will be free to move the AEO, to hold
a fresh enquiry into the charges against her. In that event,
the AEO shall hold the enquiry, in accordance with the
procedure prescribed in Rule 75 of the KER . The AEO is
directed to inform the Manager, the Headmaster and the
appellant, whether he has passed any order permitting to keep
the appellant under suspension beyond 15 days. If there is
such a proceeding, the AEO shall serve a copy of the same to
the appellant immediately on production of a copy of this
judgment.
The Writ Appeal is allowed as above.
(K. BALAKRISHNAN NAIR, JUDGE)
(P.N.RAVINDRAN, JUDGE)
ps