{"id":63468,"date":"2008-02-28T00:00:00","date_gmt":"2008-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/themanager-vs-the-state-of-kerala-on-28-february-2008"},"modified":"2016-03-10T06:32:58","modified_gmt":"2016-03-10T01:02:58","slug":"themanager-vs-the-state-of-kerala-on-28-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/themanager-vs-the-state-of-kerala-on-28-february-2008","title":{"rendered":"Themanager vs The State Of Kerala on 28 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Themanager vs The State Of Kerala on 28 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP No. 3973 of 2000(W)\n\n\n\n1. THEMANAGER, A.M.U.P.SCHOOL, PALLIKKAL\n                      ...  Petitioner\n\n                        Vs\n\n1. THE STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.K.MARTHANDAN UNNITHAN\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :28\/02\/2008\n\n O R D E R\n                        S. SIRI JAGAN, J.\n                ------------------------------------\n                     O.P.No.3973 OF 2000\n              ----------------------------------------\n              Dated this the 28th day of February, 2008\n\n                           JUDGMENT\n<\/pre>\n
     The petitioner is the Manager of an aided School.      The 5th<\/p>\n
respondent is a Teacher of the School, who was appointed with<\/p>\n
effect from 1.6.1992.     According to the petitioner, from 1995<\/p>\n
onwards the 5th respondent started absenting himself without<\/p>\n
leave. In the above circumstances, the Headmaster of the School<\/p>\n
by Ext.P1 letter, requested the Manager to take appropriate<\/p>\n
action since the 5th respondent is repeatedly applying for leave<\/p>\n
without allowances and in spite of sending registered notice<\/p>\n
intimating that, that leave cannot be sanctioned, the 5th<\/p>\n
respondent did not care to join duty. Again by Ext.P2 letter, the<\/p>\n
Headmaster informed the Manager that the 5th respondent is<\/p>\n
continuing his unauthorised absence.      Therefore by Ext.P3 letter<\/p>\n
dated 17.10.1997, the petitioner directed the 5th respondent to<\/p>\n
show cause why appropriate action should not be taken against<\/p>\n
him for this unauthorised absence from 1.10.1997 onwards. By<\/p>\n
Ext.P4 letter dated 31.10.1997, the 5th respondent intimated the<\/p>\n
O.P.No.3923\/2000                2<\/span><\/p>\n
Manager that he could not attend classes from 1.10.97<\/p>\n
onwards and no application for leave was submitted since his<\/p>\n
child was not well. He also promised that thereafter he will not<\/p>\n
enter on unauhtorised leave. He also admitted that on account<\/p>\n
of his taking leave the students have been experiencing<\/p>\n
difficulties and volunteered to take special classes and extra<\/p>\n
classes during holidays and leisure periods to finish the lessons<\/p>\n
as per syllabus. Thereafter by Ext.P5, the 6th respondent –<\/p>\n
Headmaster informed the 5th respondent that he cannot be<\/p>\n
granted leave as applied for by him. It was also stated in<\/p>\n
Ext.P5 that for the previous year the petitioner had attended<\/p>\n
the school for only 51 days and the students in his class could<\/p>\n
not be taught their lessons properly. It was also informed in<\/p>\n
Ext.P5 that the parents of the students had complained to the<\/p>\n
Manager about this irresponsible attitude of the 5th respondent.<\/p>\n
The 5th respondent was also informed that his applications for<\/p>\n
leave were not supported by medical certificates and that for<\/p>\n
previous years also he had been on unauthorised leave<\/p>\n
likewise. Therefore the 5th respondent was directed to explain<\/p>\n
his conduct. Thereafter the Manager sought direction from the<\/p>\n
O.P.No.3923\/2000                 3<\/span><\/p>\n
AEO and by Ext.P6 letter, the AEO directed the petitioner to<\/p>\n
take appropriate action based on Exts.P6(a), P6(b) and P6(c)<\/p>\n
Government Circulars on the question of action to be taken on<\/p>\n
applications for leave without allowances.      Thereafter by<\/p>\n
Ext.P7 show cause notice, the petitioner directed the 5th<\/p>\n
respondent to show cause why disciplinary action should not<\/p>\n
be taken against him for the misconduct of insubordination,<\/p>\n
indiscipline, absence without proper leave application and<\/p>\n
medical certificate etc. To the same, the 5th respondent<\/p>\n
submitted Ext.P8 stating that he could not attend the School<\/p>\n
only because of Rheumatism and he can attend classes only<\/p>\n
from next June. Since the said explanation was unsatisfactory,<\/p>\n
Ext.P9 memo of charges was issued to the 5th respondent.<\/p>\n
Since Ext.P10 reply filed by the 5th respondent was<\/p>\n
unsatisfactory, the memo of charges was forwarded to the AEO<\/p>\n
for enquiry under Rule 75 of Chapter XIVA of the Kerala<\/p>\n
Education Rules.    By Ext.P12 report, the AEO found the 5th<\/p>\n
respondent guilty of the misconducts alleged against him. In<\/p>\n
Ext.P12, the offer of the 5th respondent that he is prepared to<\/p>\n
take leave without allowances for 5 years for other<\/p>\n
O.P.No.3923\/2000                  4<\/span><\/p>\n
employment was recorded.       The petitioner issued show cause<\/p>\n
notice to the 5th respondent why the punishment of removal<\/p>\n
from service should not be imposed on the 5th respondent.<\/p>\n
After receiving Ext.P15 reply, the same was forwarded to the<\/p>\n
DEO for permission to impose punishment of removal from<\/p>\n
service on the 5th respondent.       By Ext.P16 order, the DEO<\/p>\n
granted permission to impose that punishment. Accordingly,<\/p>\n
by Ext.P17 order, the punishment of removal from service was<\/p>\n
imposed on the 5th respondent. The 5th respondent challenged<\/p>\n
the same before the Deputy Director of Education. The Deputy<\/p>\n
Director of Education, by Ext.P20, while affirming the finding of<\/p>\n
guilt on the 5th respondent, set aside the punishment of<\/p>\n
removal from service, on the ground that it is disproportionate<\/p>\n
to the gravity of the misconducts, and the Manager was<\/p>\n
directed to impose a more appropriate punishment reinstating<\/p>\n
the 5th respondent in service. That order is under challenge<\/p>\n
before me at the instance of the Manager.\n<\/p>\n
      2.    The 5th respondent has filed a counter affidavit<\/p>\n
refuting the contentions of the petitioner. First of all, he would<\/p>\n
submit that this writ petition itself is not maintainable in so far<\/p>\n
O.P.No.3923\/2000                  5<\/span><\/p>\n
as the petitioner has not exhausted the alternate remedy by<\/p>\n
way of filing an appeal or revision before the DPI or the<\/p>\n
Government.      Secondly, he would contend that he was not<\/p>\n
guilty of the misconducts in so far as he applied for leave only<\/p>\n
on account of serious illness as a result of which, he was not<\/p>\n
even able to move. He would contend that even assuming that<\/p>\n
he was guilty of the misconducts proved against him, the same<\/p>\n
were not grave enough to warrant the punishment of removal<\/p>\n
from service, which only has been directed by the Deputy<\/p>\n
Director of Education in Ext.P20 order.       The 2nd respondent<\/p>\n
has also filed a counter affidavit.\n<\/p>\n
     3.     I have considered the rival contentions in detail. I<\/p>\n
shall first deal with the objection raised by the 5th respondent<\/p>\n
on the ground of availability of effective alternate remedy to<\/p>\n
the petitioner by way of appeal or revision. The writ petition<\/p>\n
was admitted as early as in 2000. We are in 2008. After<\/p>\n
having admitted the writ petition, despite the availability of the<\/p>\n
alternate remedy, I am not inclined to relegate the petitioner<\/p>\n
to alternate remedy at this point of time which would only<\/p>\n
multiply litigation, which is one thing this Court has to avoid at<\/p>\n
O.P.No.3923\/2000                 6<\/span><\/p>\n
any cost.    As such, I do not find any merit in that contention<\/p>\n
of the 5th respondent. Regarding the second contention of the<\/p>\n
5th respondent, I do not think that he can without challenging<\/p>\n
the enquiry order of the DEO and even the impugned order,<\/p>\n
wherein the guilt of the 5th respondent has been upheld, claim<\/p>\n
that he is innocent and has not committed the misconducts.<\/p>\n
As such there is no merit in that objection of the 5th<\/p>\n
respondent also.\n<\/p>\n
      4.    Now the only remaining question is as to whether<\/p>\n
the Deputy Director was justified in interfering with the<\/p>\n
punishment of removal from service imposed on the 5th<\/p>\n
respondent. The Deputy Director has held that removal from<\/p>\n
service is a very harsh punishment, which can be resorted to<\/p>\n
only     in     misconducts    involving     moral     turpitude,<\/p>\n
misappropriation, bigamy and punishment by Court for a<\/p>\n
criminal offence etc. He has said that since the misconducts<\/p>\n
proved against the 5th respondent does not come within any of<\/p>\n
the said category, removal from service is not the proper<\/p>\n
punishment to be imposed on the 5th respondent. For deciding<\/p>\n
this question, I have to consider the very history of the case. It<\/p>\n
O.P.No.3923\/2000                 7<\/span><\/p>\n
is not as if the Manager has suo-motu initiated proceedings for<\/p>\n
misconducts against the 5th respondent. It was pursuant to<\/p>\n
two letters from the Headmaster informing the Manager that<\/p>\n
on account of the unauthorised absence of the 5th respondent,<\/p>\n
the students of his class are experiencing great difficulties that<\/p>\n
the Manager initiated proceedings. Initially, the Manager only<\/p>\n
asked him to explain the unauthorised absence, by Ext.P4.<\/p>\n
The 5th respondent said that from 1.7.1997 to 28.9.1997 he<\/p>\n
was on leave and that he joined duty with medical fitness<\/p>\n
certificate. In Ext.P4 he does not say that from 1.10.1997<\/p>\n
onwards he was not able to come to the class because of any<\/p>\n
illness.   He also admits in that, he had not submitted any<\/p>\n
application for leave. The reason given for the same is that his<\/p>\n
child was not well. From Ext.P4 it is clear that he was also<\/p>\n
aware of the fact that the students were experiencing<\/p>\n
difficulties because of his unauthorised absence.              He<\/p>\n
volunteered to take special classes and extra classes during<\/p>\n
holidays and leisure time. It is thereafter that the disciplinary<\/p>\n
proceedings were initiated. In Ext.P12 enquiry report the AEO<\/p>\n
has recorded that the 5th respondent had offered to take 5<\/p>\n
O.P.No.3923\/2000                 8<\/span><\/p>\n
years    leave   without   allowances    for    accepting   other<\/p>\n
employment. The petitioner’s contention is contradictory. At<\/p>\n
one place, he would submit that he was not well because of<\/p>\n
Rheumatism and he cannot even move about because of that.<\/p>\n
At another place he readily volunteers to take special classes<\/p>\n
and extra classes even during holidays. Still worse, he offers to<\/p>\n
take leave without allowances for 5 years for accepting other<\/p>\n
employment. It is beyond comprehension as to how a person,<\/p>\n
who cannot move about because of illness, can take extra<\/p>\n
classes and can accept other employment.\n<\/p>\n
     5.     The 5th respondent would repeatedly contend that<\/p>\n
although he had not submitted medical certificate along with<\/p>\n
his application for leave, he had sent the same later. Such a<\/p>\n
contention was not raised by the 5th respondent before any of<\/p>\n
the lower authorities. In Ext.P12 enquiry report also such a<\/p>\n
contention is conspicuously absent. The petitioner submits that<\/p>\n
he has filed a reply affidavit to the counter affidavit of the 5th<\/p>\n
respondent in which, he has denied that he has received any<\/p>\n
medical certificates subsequently also from the 5th respondent<\/p>\n
(However that reply affidavit is not in the file). That being so,<\/p>\n
O.P.No.3923\/2000                 9<\/span><\/p>\n
the contention of the 5th respondent that he was absent<\/p>\n
because he was seriously ill cannot be accepted at all. On the<\/p>\n
other hand, from his offer that he shall take leave without<\/p>\n
allowances for 5 years for accepting other employment would<\/p>\n
show that the 5th respondent had other intentions in the<\/p>\n
matter. Further from the documents before me, it is clear that<\/p>\n
the 5th respondent is in the regular habit of absenting without<\/p>\n
leave.\n<\/p>\n
     6.     The very object of the Kerala Education Rules is to<\/p>\n
impart better education to the pupils, who joins Government<\/p>\n
and aided Schools.    Appointment of teachers is one of the<\/p>\n
steps in furtherance of that noble object. If that cannot be<\/p>\n
achieved, then there is no point in continuing a teacher in the<\/p>\n
School at all.  Appointment of teacher is not merely to enable<\/p>\n
him to earn a living. It is for the specific purpose of teaching<\/p>\n
students. The misconduct of the petitioner has to be viewed in<\/p>\n
that perspective. Here is a teacher, who is habitually absent<\/p>\n
without leave. He is totally inconsistent in stand regarding the<\/p>\n
reasons for his unauthorised absence.     Admittedly during the<\/p>\n
previous year he attended the School for only 51 days. In spite<\/p>\n
O.P.No.3923\/2000                   10<\/span><\/p>\n
of the same, he continued unauthorised absence, despite<\/p>\n
intimation to the effect that his applications for leave were not<\/p>\n
sanctioned at all. Children have already suffered because of his<\/p>\n
misconducts which cannot now be remedied. Further in the<\/p>\n
counter affidavit of the 2nd respondent in paragraph 4, it is<\/p>\n
stated thus:\n<\/p>\n
               “The 5th respondent is a habitual absentee in
\n         the school which necessitated disciplinary action
\n         against him. He has attended only 51 days in the
\n         School in the academic year 1997-98 and regularly
\n         irregular in attending the school.”\n<\/p><\/blockquote>\n
Again in paragraph 12, the 2nd respondent states thus:<\/p>\n
                “The 3rd and 4th respondents were of
\n         opinion that the charges levelled against the 5th
\n         respondent is genuine and he has no interest to
\n         work in the school. Hence the 3rd respondent was
\n         granted permission to remove the 5th respondent
\n         from service w.e.f. 12-2-1998, the day from
\n         which he was absent in the school, in exercise of
\n         powers in Rule 74, Chapter XIV (A) KERS. The
\n         Deputy Director of Education has also admitted
\n         the charges levelled against the 5th respondent
\n         proved by the enquiry officer. But the appellate
\n         order    dated    11-1-2000    was   passed   on
\n         humanitarian grounds.”\n<\/p><\/blockquote>\n
O.P.No.3923\/2000                   11<\/span><\/p>\n
This would also show that the punishment of removal cannot<\/p>\n
be held to be disproportionate to the gravity of the<\/p>\n
misconducts and that the Deputy Director has acted only on<\/p>\n
the basis of sympathy. Imposition of punishment is essentially<\/p>\n
a managerial function.      The authorities under the KER can<\/p>\n
interfere with the same only for appropriate reasons. While<\/p>\n
doing so, they have to bear in mind the object behind the KER.<\/p>\n
From all the above, I am not satisfied that the Deputy Director<\/p>\n
of Education was not justified in interfering with the<\/p>\n
punishment imposed by the petitioner as approved by the<\/p>\n
DEO. Consequently, Ext.P20 is quashed and the order of the<\/p>\n
Manager and that of the DEO is restored.\n<\/p>\n
      The original petition is allowed as above.\n<\/p>\n<\/p>\n
                                         S. SIRI JAGAN, JUDGE<\/p>\n
Acd<\/p>\n
O.P.No.3923\/2000    12<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-63468","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThemanager vs The State Of Kerala on 28 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/themanager-vs-the-state-of-kerala-on-28-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Themanager vs The State Of Kerala on 28 February, 2008 - 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