High Court Kerala High Court

Themanager vs The State Of Kerala on 28 February, 2008

Kerala High Court
Themanager vs The State Of Kerala on 28 February, 2008
       

  

  

 
 
  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.
                ------------------------------------
                     O.P.No.3973 OF 2000
              ----------------------------------------
              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

O.P.No.3923/2000 3

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

O.P.No.3923/2000 8

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,

O.P.No.3923/2000 9

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

O.P.No.3923/2000 10

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.”

O.P.No.3923/2000 11

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

O.P.No.3923/2000 12