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1977 DIGILAW 299 (KER)

MANAGER L. P. S. KOOVALLOOR v. MATHEW

1977-11-11

G.BALAGANGADHARAN NAIR, V.BALAKRISHNA ERADI

body1977
Judgment :- 1. The writ petitioner before us if the manager of an aided Lower Primary School at Koovalloor in Moovattupuzha educational district. The 1st respondent herein was the Headmaster of the said school. On 26 81964 the writ petitioner preferred a complaint against the Headmaster before the police alleging that the latter bad committed misappropriation of certain food articles supplied to the school by the Care Organisation. Pursuant thereto C. C. 196 of 1965 of the Judicial I Class Magistrate's Court, Moovattupuzha was registered against the 1st respondent. On the ground of the 1st respondent being involved in that criminal case, the 1st respondent was placed under suspension with effect from 112 1964. The Magistrate's Court originally acquitted the 1st respondent, but on revision filed by the manager to this Court-Crl. R. P. 131 of 1967 the order of acquittal was set aside and the case was remanded for retrial. Thereafter it was renumbered as C. C. No. 18 of 1968 in the same Magistrate's Court. Later by judgment dated 4 81971 the 1st respondent was convicted by the Magistrate and sentenced to undergo rigorous imprisonment for one year. Based on the said conviction of the 1st respondent by the criminal court the manager issued to him the notice Ext. P-1 dated 4th November, 1971 calling upon the 1st respondent to show cause why he should not be removed from service under R.77A of Chapter XIV(A) of the Kerala Education Rules. In the reply sent thereto by the 1st respondent as per Ext. R-2 he informed the manager that he had preferred an appeal before the Sessions Court against the judgment of the Magistrate's Court and requested that the proposed action for his removal from service should be kept in abeyance till the appeal was heard and decided. The manager however did not accede to that request, but instead he moved the District Educational Officer for the grant of sanction for the removal of the Headmaster from the service of the school under R.77A. The District Educational Officer granted that request as per his proceedings evidenced by Ext. P-2 dated 3rd January, 1972. On the strength of the said sanction granted by the District Educational Officer, the petitioner passed orders removing the 1st respondent from the post of Headmaster in the school. Ext. P-3 is a copy of that order. The District Educational Officer granted that request as per his proceedings evidenced by Ext. P-2 dated 3rd January, 1972. On the strength of the said sanction granted by the District Educational Officer, the petitioner passed orders removing the 1st respondent from the post of Headmaster in the school. Ext. P-3 is a copy of that order. Shortly thereafter the Sessions Court as per its judgment Ext. R-1 dated 15-3-1973 allowed the appeal filed by the Headmaster, set aside the conviction and acquitted him of the charges. 2. Thereafter the 1st respondent seems to have approached the District Educational Officer with a request that orders may be passed for his reinstatement as Headmaster of the school in view of his having been acquitted by the appellate court. The District Educational Officer by his order evidenced by Ext. P-4 dated 29-3-1974 directed the manager to reinstate the 1st respondent in the post of Headmaster. The manager thereupon instituted O. P. No. 2332 of 1974 before this Court seeking to quash Ext. P-4. When that writ petition came up for hearing it was submitted before this Court on behalf of the 1st respondent herein, who was the 1st respondent in that writ proceedings also, that he had already filed a revision petition before the State Government against the order Ext. P-3 passed by the manager removing him from service and that hence he had no objection to Ext. P-4 being set aside by this Court. The Original Petition was allowed on that limited ground, obviously relegating the parties to get the matter decided by the State Government in exercise of its revisional power under R.92 of Chapter XIV (A) of the Kerala Education Rules. Subsequently the State Government passed the order Ext. P-6 dated 26-3-1976 allowing the revision petition filed by the Headmaster and directing the manager to reinstate him in service as Headmaster of the same school with immediate effect. A further direction was also given in Ext. P-6 that the period during which the 1st respondent was out of service would be treated as eligible leave. The challenge in this writ petition instituted by the manager is against the said order (Ext. P-6) passed by the State Government. 3. The learned advocate appearing on behalf of the writ petitioner urged before us that in the vacancy that was caused by the removal of the Ist respondent be had appointed Sri. The challenge in this writ petition instituted by the manager is against the said order (Ext. P-6) passed by the State Government. 3. The learned advocate appearing on behalf of the writ petitioner urged before us that in the vacancy that was caused by the removal of the Ist respondent be had appointed Sri. P. V. Paily on 25 21972 and that since the appointment had been approved by the Department on 2 61972, it was not open to the State Government to call upon the manager to reinstate the Ist respondent as Headmaster of the school, as that would amount to a direction to perform an impossibility. Strong reliance was placed by the petitioner's counsel on certain observations of the Supreme Court in Gurdit Singh v. State of Punjab (AIR. 1974 SC. 2058) as supporting his contention that the acquittal of the 1st respondent by the Sessions Court would have produced no legal repercussion whatever in regard to the validity of the manager's action in appointing Mr. Paily in the vacancy that arose consequent on the removal of the 1st respondent. We have carefully gone through the judgment of the Supreme Court and we do not find anything therein that would support the aforesaid contention of the writ petitioner. In that case one Gurdit Singh Aulakh, who was a member of the Sikh Gurudwaras Tribunal, was removed from such membership by an order dated September 10,1965 and one S. S. Kahla was appointed in that vacancy. Aulakh challenged the validity of his removal in a writ petition filed before the High Court of Punjab. That petition was ultimately allowed in letters patent appeal and the order removing Aulakh from the membership of the Tribunal was quashed on October 13,1966. Thereafter a notification was issued on 26th October, 1966 by the President of India the State of Punjab having by that time under the President's rule -dissolving with immediate effect the Sikh Gurudwaras Tribunal constituted as per Punjab Government Notification dated 26th April, 1962. The validity of that notification was challenged by Sri Aulakh in a writ petition filed before the High Court of Punjab. Pending that writ petition Aulakh died on 18th July, 1969 and his legal representatives were brought on record as supplemental petitioners. They confined their claim to the emoluments alleged to be due to Sri Aulakh from September 11, 1965 till the date of his death. Pending that writ petition Aulakh died on 18th July, 1969 and his legal representatives were brought on record as supplemental petitioners. They confined their claim to the emoluments alleged to be due to Sri Aulakh from September 11, 1965 till the date of his death. The High Court of Punjab having dismissed that writ petition, the legal representatives of Aulakh took up the matter in appeal before the Supreme Court. The main contention put forward by the appellant before the Supreme Court was that the notification of the President dissolving the Tribunal was issued for a collateral purpose, namely, to circumvent the effect of the decision of the High Court quashing the order removing Aulakh from the membership of the Tribunal. The only other contention urged was that in as much as the impugned notification had been issued by the Secretary of the Home Department and not by the Governor, there was a violation of the provisions of the Governor's Secretariat Order dated July 6,1966 allocating the business of the Government amongst the various functionaries and that the notification should therefore be held to be illegal and bad. Both these contentions were rejected by the Supreme Court and the appeal was dismissed. Obviously, having regard to the limited nature of the relief sought and the contentions actually urged before it, there was no occasion at all for the Supreme Court to consider the question that we have to decide, namely whether an employee who has been removed from service solely on the basis of his having been convicted on a criminal charge is not entitled to reinstatement into the post on his having been subsequently acquitted by a superior court, irrespective of whether or not in the meantime some other person has been posted in the vacancy occasioned by his removal from service. In the case before the Supreme Court no statutory remedy by way of appeal or revision had been provided by the rules governing the service conditions of the members of the Sikh Gurudwaras Tribunal. In the case before the Supreme Court no statutory remedy by way of appeal or revision had been provided by the rules governing the service conditions of the members of the Sikh Gurudwaras Tribunal. In the case of a removal from service, R.77A of Chapter XIV (A) of the Kerala Education Rules lays down inter alia that notwithstanding anything contained in R.75, 76 and 77, where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority imposing the punishment may consider the circumstances of the case and pass such orders therein as it deems fit. No other procedure such as the framing of a charge or the holding of an oral enquiry is necessary in such a case. As already noticed, the order Ext. P3 was passed against the 1st respondent solely on the ground of his conduct having led to his conviction on a criminal charge by the First Class Magistrate's Court, Moovattupuzha in C. C.18 of 1968. By the time the order Ext. P3 was passed, the appeal filed by the 1st respondent against his conviction was already pending before the Sessions Court, Ernakulam. An order passed under R.77A (i) imposing penalty on a teacher solely on the ground of his conviction on a criminal charge must necessarily in circumstances be regarded only as a contingent one liable to defeasance on the conviction being set aside by a superior court in appeal or revision. The vacancy caused by the dismissal or removal of the convicted teacher was also only a provisional one in that sense. Any appointment made in that vacancy during the pendency of the appeal or revision filed against the order of conviction could have been only provisional in character and the appointee could not derive any absolute right to the post, his appointment by its very nature being a contingent one liable to be forfeited in the event of the conviction of the prior incumbent being set aside in appeal or revision. As pointed out by a Full Bench of the Allahabad High Court is Kunwar Bahadur v. Union of India (AIR. As pointed out by a Full Bench of the Allahabad High Court is Kunwar Bahadur v. Union of India (AIR. 1969 Allahabad 414) and by a Division Bench of the Madras High Court in Union of India v. R. Akbar Sheriff (AIR 1961 Madras 486), once the conviction is set aside or quashed by an appellate or revisional court, the order of dismissal or removal passed thereon must fall to the ground, since the acquittal of the person on the criminal charge by a higher court setting aside the conviction passed by a subordinate or inferior court completely wipes out the order of conviction and is tantamount to the person not having been convicted at all. 4. Further, under the scheme of the rules contained in Chapter XIV (A) of the Kerala Education Rules, any order of removal of a teacher passed by the manager is subject to the revisional jurisdiction of the State Government under R.92 of the said Chapter and the 1st respondent having filed a revision petition against the order Ext. P-3 and bis conviction on the criminal charge having been set aside by the Sessions Court before the revision petition came up for disposal by the Government, it was perfectly open to the Government to take note of the said event that had happened subsequent to the passing of the order by the manager in deciding the revision petition. In this view also it must be held that the Government was perfectly justified in allowing the revision petition, setting aside the order Ext. P-3 and directing the reinstatement of the Ist respondent as Headmaster of the school. As already pointed out, the fact that the manager had in the meantime appointed a substitute in the vacancy caused on account of the removal of the 1st respondent from service was of no moment at all, since any such appointment could be only provisional in its nature both on the ground that an appeal was pending against the order of conviction and also that the order Ext. P-3 passed by the manager was itself liable to be revised by the State Government under R.92.5. It follows from the foregoing discussion that there are absolutely no grounds justifying any interference by this Court with the order Ext. P-6 passed by the State Government. The Original Petition accordingly fails and is dismissed with costs. Advocate's fee Rs. 200/-. Dismissed.