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2002 DIGILAW 308 (KER)

Manager v. State of Kerala

2002-05-27

K.BALAKRISHNAN NAIR

body2002
Judgment :- The points raised for decision in these Original Petitions being connected, they are disposed of by a common judgment. OP NO.15056/2000 P 2. The petitioner is the Manager of St. Raphael’s High School, Ezhupunna. The contesting fourth respondent was the Headmaster of the School. Respondents 1 to 3 are the statutory authorities. The brief facts necessary for the disposal of the case are the following: 3. The disciplinary action against the fourth respondent was set in motion on the basis of a complaint filed by one Shri N.J. Sebastian before the authorities. The Deputy Director of Education, Alappuzha by his order dated 23.3.1999 directed the Manager to take disciplinary action against the fourth respondent. It appears, the subject matter of the complaint was regarding the management of the P.T.A. funds. The Manager issued a memo dated 27.4.1999 to the fourth respondent calling for his explanation as to why disciplinary action should not be taken against him. The Headmaster submitted his explanation on 5.5.1999. Finding the same not satisfactory, the Manger suspended the petitioner from service by order dated 31.5.1999. The Deputy Director by his order dated 9.6.1999 gave permission to extend the suspension beyond fifteen days. The Manager, thereafter by order dated 10.6.1999 extended the suspension of the fourth respondent without any time limit. 4. The Manager framed memo of charges initially containing 17 charges and thereafter an additional memo of charges was issued containing five more charges. Though the school was within the jurisdiction of the Cherthala DEO, the Alappzha DEO Smt. Ponnamma was nominated by the Deputy Director to conduct the enquiry into the charges levelled against the fourth respondent. She submitted Exts.P1 and P2 reports finding the petitioner guilty of most of the charges. Based on the report, the Manager issued a show cause notice to the fourth respondent proposing to remove him from service. Considering the Headmaster’s explanation, the Manager decided to award the punishment of compulsory retirement to the delinquent. By Ext.P3 dated 11.1.2000, the manager sought the permission of the Deputy Director of Education to impose the said penalty. The Deputy Director by Ext.P4 order dated 13.1.2000, i.e. within two days of the submission of Ext.P3, considered the matter and declined to give sanction for the punishment of compulsory retirement from service finding that it is grossly disproportionate to the misconduct from the part of the delinquent employee. The Deputy Director by Ext.P4 order dated 13.1.2000, i.e. within two days of the submission of Ext.P3, considered the matter and declined to give sanction for the punishment of compulsory retirement from service finding that it is grossly disproportionate to the misconduct from the part of the delinquent employee. It was suggested that some other penalty may be inflicted on him. The Manager, though with demur accepted Ext.P4 and imposed the punishment of reduction to the lower post of High School Assistant permanently from the post of Headmaster with effect from 1.6.1999. After deciding to impose the said punishment, by Ext.P5 dated 13.1.200 the Manager sought the permission of the Deputy Director to impose the said penalty of reversion as HSA. The Deputy Director by Ext.P6 dated 14.1.2000 gave sanction for demoting the fourth respondent as HSA only for a period of one year from 1.6.1999. Against Ext.P6, the petitioner preferred a revision before the Government. The fourth respondent filed an appeal against Ext.P6 before the Director of Public Instruction. The Government remitted the revision petition filed before it to the Director of Public Instruction to be heard along with the appeal filed by the fourth respondent. Both the matters were heard together and the Director of Public Instruction by Ext.P8 order dated 22.5.2000 affirmed Ext.P6 order of the Deputy Director. This Original Petition is filed challenging Exts.P4, P6 and P8. The challenge against Ext.P4 in this Original Petition is unsustainable in view of the fact that the petitioner has accepted Ext.P4 and passed orders Ext.P5 in obedience to the said order. Further, in Ext.P7 revision petition before the Government, the petitioner has only challenged Ext.P6 order of the Deputy Director which is marked as Ext. P10 in Ext.P7 revision petition. 5. During the tendency of the Original Petition, there was an interim order that the fourth respondent need not be reinstated as Headmaster, but only as HSA. The said order was dated 30.5.2000 passed in CMP No.24430/2000. The fourth respondent filed Writ Appeal No.1855/2000 against the said order. The Division Bench disposed of that appeal by directing the Government to consider the revision petition filed by the appellant therein (4th respondent herein) in accordance with law with notice to all affected parties. The said order was dated 30.5.2000 passed in CMP No.24430/2000. The fourth respondent filed Writ Appeal No.1855/2000 against the said order. The Division Bench disposed of that appeal by directing the Government to consider the revision petition filed by the appellant therein (4th respondent herein) in accordance with law with notice to all affected parties. In other words, the Division Bench did not interfere with the order passed by the learned single Judge in the C.M.P. and therefore the fourth respondent was not reinstated as Headmaster. 6. While this Original Petition was pending, as per the direction of the Division Bench in W.A.No.1855/2000 dated 26.9.2000, the Government heard the revision filed by the 4th respondent against Ext.P8 and disposed of the same by G.O.(Rt) No.1524/01/G1.Edn. dated 11.4.2001 setting aside Ext.P8. It was also ordered that a punishment of barring two increments without cumulative effect need alone be imposed on him. The petitioner has filed OP No.20744/2001 against the said Government Order. In view of the fact that the orders impugned in this Original Petition have merged with the Government Order dated 11.4.2001 and the same is under challenge in OP No.20744/2001, this Original Petition has practically become infructuous. This is so, as Exts.P6 and P8 orders have been substituted by another order of a superior authority. So, this Original Petition is closed without prejudice to the contentions of the petitioner in OP No.20744/2001. OP NO.20744/2001 T 7. Exts.P1 to P6 mentioned in OP No.15056/2000 are Exts.P1 to P6 in this Original Petition also. Ext.P8 order of the Director of Public Instruction in OP No.15056/2000 is marked in this Original Petition as Ext.P7. 8. The delinquent teacher is the third respondent herein. The first respondent is the State and second respondent is the Additional Secretary to Government who passed orders on the revision petition filed by the petitioner. Ext.R4 (C) in OP No.15056/2000 dated 12.6.2000 is the revision filed by the third respondent herein before the Government. After hearing both sides, the Government passed Ext.P10 order dated 11.4.2001 setting aside Ext.P7 order of the Director of Public Instruction and modifying the penalty to one of barring of increment for two years. The petitioner challenges Ext.P10 on various grounds. 9. It is submitted that Ext.P10 is arbitrary, unreasonable, illegal and perverse. The findings of the Government in Ext.P10 are also attacked as perverse. The petitioner challenges Ext.P10 on various grounds. 9. It is submitted that Ext.P10 is arbitrary, unreasonable, illegal and perverse. The findings of the Government in Ext.P10 are also attacked as perverse. It is repeatedly asserted that since the allegations proved against the third respondent include allegations of misappropriation of funds, the maximum penalty under law should be imposed on him, in the light of Ext.P11 judgment of the Division Bench of this Court in Writ Appeal No.754/1983 dated 13.2.1986. Serious objection is taken against the procedure adopted by the second respondent in accepting fresh documents and vouchers produced by the third respondent. It is submitted that the same is beyond the powers of the revisional authority. It is also pointed out that those documents were fabricated and they were accepted and relied on without affording a fair opportunity to the petitioner. The finding of the government that the Enquiry Officer did not follow the provisions of Rule 75 in the enquiry, is also attacked terming the same as perverse and illegal. The third respondent has filed a counter affidavit supporting the impugned order. The petitioner has filed a reply affidavit also reiterating his contentions in the Original Petition. 10. I heard both sides. The main contention urged by the learned counsel for the petitioner is that the revisional authority has no power to take additional evidence and in support of that contention he relied on the decisions of this Court in Chandran Kunhi v. State of Kerala & Ors. (1976 KLT 908), Sukumaran Vaidyar v. State of Kerala (1977 KLT S.N. Case No.30 at page 11) and Raman v. State of Kerala (1984 KLT S.N Case No.58 at page 35). Based on various decisions, it was submitted that while considering the request for approval of a punishment, the authority is concerned only whether the procedures prescribed under the Rules have been followed properly or not in the proceedings against the delinquent. It is also contended that the concerned authority has to grant sanction or decline it and it cannot suggest a different penalty. It is also contended that the concerned authority has to grant sanction or decline it and it cannot suggest a different penalty. Reliance was also placed on the decisions of the Supreme Court in Union of India v. Sri Bihari Lal Sidhana (JT 1997 (4) SC 541), Sanchalakshri & another v. Vijaya kumar Raghuvirprasad Mehta (1998(8) SCC 245), Sudhir Vishnu Panvalkar v. Bank of India (1997(6) SCC 271) and Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.) v. Secretary, Sahakari Noukarara Sangha and others (2000 (7) SCC 517). 11. The learned counsel for the third respondent relied on the decisions of this Court in Corporate Manager v. Cherivan (1985 KLT 1124) and Balagopalan v. Manager (1986 KLT 857). Reliance was also placed on the decisions of the Apex Court in UPSRTC v. V. Har Narayan Singh (JT 1998(7) SC 437), B.C.Chathurvedi v. Union of India (1996(72) FLR 316) and also State Bank of India and others v. Samarendra Kishore Endow. (JT 1994(1) SC 217) and contended that the finding of fact entered by the competent authorities cannot be disturbed by this Court under Article 226 of the Constitution of India. 12. The validity of the action against the third respondent has to be adjudged in the light of the Rules governing the same. Major penalty proceedings were initiated against the third respondent and they were governed by Rule 75 of Chapter XIV A KER. The Government found that Sub-rule (6) of Rule 75 has been violated by the Inquiring Authority. The said Rule reads as follows: “(6) The Inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Teacher shall be entitled to cross examine witnesses examined in support of the charges and to give evidence in person and to have such witnesses as may be produced, examined in his defence. The person presenting the case in support of the charges shall be entitled to cross examine the teacher and the witness examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material it shall record its reason in writing. The person presenting the case in support of the charges shall be entitled to cross examine the teacher and the witness examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material it shall record its reason in writing. Note :- If the Inquiring Authority proposes to rely on the oral evidence of any witness the authority should examine such witness in the presence of the teacher and give him an opportunity to cross-examine the witness.” 13. In the case at hand, the grievance raised by the third respondent against the first enquiry is that while the witnesses were examined, he was directed to go out of the room. He was not given an opportunity to cross-examine those witnesses. The finding of the Director of Public Instruction on this point is that the petitioner did not give a list of witnesses to be examined. The said finding in Ext. P7 is extracted below for convenient reference: “………In addition he has pointed out that he was not given chance to cross examine the witnesses. On detailed verification it is noticed that the certified copies need not be given compulsorily, instead perusal of records and taking extracts will suffice which was allowed. He was given ample chance for this. The list of witness to be cross examined was not communicated to the Manager by Shri V.A. Kuriakose, and as such there is no laxity in this regard also. From the above, it can be seen that the procedures have been complied with before imposing the punishment.” 14. The Inquiry Officer has to follow the adversary procedure in which the adducing of evidence of one side, including production of documents and examination of witnesses, is done in the presence of the other side. The said procedure has been prescribed in sub- rule (6) also. In the light of the said Rule, the witnesses of the management should be examined in the presence of the third respondent. At the end of examination of a witness, the third respondent should be asked whether he wishes to cross-examine the witness or not. It is evident from the pleadings and materials in this case that while the witnesses were examined the third respondent was kept out of the room. He was not given an opportunity to cross-examine them also. At the end of examination of a witness, the third respondent should be asked whether he wishes to cross-examine the witness or not. It is evident from the pleadings and materials in this case that while the witnesses were examined the third respondent was kept out of the room. He was not given an opportunity to cross-examine them also. The said grievance is brushed aside by the Director of Public Instruction saying that the third respondent should have given list to the Manager of the witnesses he wished to cross-examine. The said finding is plainly perverse. The illegality committed by the Inquiry Officer in this regard goes to the root of the matter vitiating the entire proceedings. In Ext. P10, the Government have dealt with the matter in the following manner: “The observation of the Director of Public Instruction in this regard is that the RP was given ample chance for taking extracts of the document was given the list of witness to be cross examined was not communicated to the Manager by Sri. Kuriakose and as such there was no laxity n this regard and it is seen that the procedure has been complied with. This observation does not appear correct. As per rule the list of witnesses be given to the Inquiry officer and not to the Manager. It is seen to the Inquiry Officer. It is to be concluded that the Director of Public Instruction has not ensured whether the procedure followed by the Inquiry Officer was strictly in accordance with the provision of Rule of Ch. XIV A KER.” 15. The third respondent has a grievance that the second enquiry was held behind his back. That will be evident from Ext. P2. The enquiry was held on 16.12.1999 at 11 A. M. At the beginning of the inquiry Officer wherein it was stated that he was admitted in a hospital owing to filarial fever and therefore he was not in a position to participate in the enquiry. He also requested to postpone the enquiry for three weeks. But the Inquiry Officer rejected the said request and proceeded with the inquiry and completed it on the same day regarding charge nos. 18 to 22. The Government in Ext. P10 have found that the petitioner was not afforded a fair opportunity to defend himself by not adjourning the enquiry. He also requested to postpone the enquiry for three weeks. But the Inquiry Officer rejected the said request and proceeded with the inquiry and completed it on the same day regarding charge nos. 18 to 22. The Government in Ext. P10 have found that the petitioner was not afforded a fair opportunity to defend himself by not adjourning the enquiry. The finding of the Government in this regard is extracted for convenient reference: “Another sitting of the enquiry officer was held on 16.12.99 to enquiry into the additional charge memo. Only persons attended the enquiry. Revision petitioner was not present. His request for postponement of the ground that the request was received by the enquiry officer only on the date of enquiry. The reason for requesting for postponement of the enquiry was stated as hospitalization of the Revision Petitioner for filarial fever. Since the allegation against the Revision Petitioner was of grave nature the Enquiry Officer should have given another chance for the RP to defend his case before the enquiry officer.” 16. I find that the petitioner has not succeeded in disturbing the above said finding of the Government regarding the illegalities in the enquiry committed by the Inquiry officer. The grounds raised in the original Petition in this regard are Grounds 11 and 12. The mere allegation that the findings are perverse or illegal will not be sufficient by cogent reasoning. I reject the contention of the petitioner in this regard From the materials on record, the Government have correctly found that (1) in the first enquiry the third respondent was not given an opportunity to cross – examine the witnesses of the management and (2) the omission of the Inquiry Officer to adjourn the inquiry into the second charge sheet held on 16.12.1999 was unjustified. The above said findings go to the root of the matter and vitiate the entire proceedings. 17. in view of the above findings of the Government, the contentions of the petitioner that the revisional authority should not have taken additional evidence, etc. need not be examined. Since the findings made against the third respondent are in a vitiated enquiry, the contentions made relying on Ext. P11 judgment of the Division Bench of this Court decisions of the Apex Court are also not relevant in this case. need not be examined. Since the findings made against the third respondent are in a vitiated enquiry, the contentions made relying on Ext. P11 judgment of the Division Bench of this Court decisions of the Apex Court are also not relevant in this case. The impugned proceedings in this case are concerning the exercise of power by the competent authority to give sanction for imposing a penalty. In other words, they are not proceedings in which the imposition of penalty is challenged. The contention of the petitioner is that while considering the question of sanction, the competent authority is concerned only with the question whether proper procedure has been followed in the disciplinary proceedings or not. The contention of the petitioner that the concerned authority should either grant sanction or decline sanction is also valid in normal circumstances. In the case at hand, in view of the finding that the inquiry has not been conducted in accordance with the procedure prescribed under Rule 75, the competent authority can only decline sanction to impose the major penalty like the one proposed by the Manager. 18. In OP No 15056/2000. the petitioner seeks to quash Exts. P4, P6 and P8 marked therein. In view of my finding that the challenge against Ext . P4 is not sustainable, practically his challenge is against Exts. P6 and P8 (Ext P8 is Ext. P7 in this Original Petition). I have already found that in view of Ext P10 in this Original Petitions, O.P. No 15056/2000 has become in fructuous. In both the original petitions, the petitioner has only sought quashing of orders declining sanction to the proposed penalty. No consequential reliefs are sought. Even if those reliefs are granted, its legal effect is that his application for sanction is pending. Even if consequential reliefs are sought or the prayer for “such other orders” is taken as a prayer for consequential reliefs, in view of the finding that the inquiry is vitiated, he is not entitled to get any relief in this Original Petition. 19. The only point which remains to be considered is whether the matter should be remitted for fresh inquiry against the delinquent teacher. In an appeal or revision against a punishment imposed, the appellate or revisional authority may set aside the punishment and remand the matter for fresh inquiry. 19. The only point which remains to be considered is whether the matter should be remitted for fresh inquiry against the delinquent teacher. In an appeal or revision against a punishment imposed, the appellate or revisional authority may set aside the punishment and remand the matter for fresh inquiry. But, no such procedure is contemplated in a proceeding where previous sanction is sought for imposing a punishment. Even assuming there is power to order a de novo enquiry, the Government have declined to exercise that power in this case on valid grounds. In fact, the direction to impose a minor penalty is a direction in favour of the petitioner. In the absence of such a direction, the petitioner could not impose any punishment on the teacher. If the third respondent has chosen to challenge the said direction, the said challenge would have definitely been upheld in view of the fact that the findings entered against him were in a vitiated enquiry. Therefore, having regard to the facts of the case, I am not interfering with direction of the Government. The petitioner has not made out any case warranting interference with Ext. P10. Accordingly the Original petition is dismissed. OP. NO 27586/2001 H 20. The petitioner has been appointed as the headmaster in the vacancy created by the revision of Mr. V.A. Kuriakose from the post of Headmaster. The Government interfered with the reversion and ordered his reinstatement as per Ext. P10 in O.P. No 20744/2001. In the light of the said order, Mr. V.A Kuriakose has to be reinstated. Therefore, there is no vacancy to accommodate the petitioner herein. So I find nothing wrong with Ext. P8 order of the DEO. Or Ext P9 appellate order of the Deputy Director. Those orders were passed against the petitioner on the ground that in view of the Government order to reinstate Mr. V. A. Kuriakose, there is no vacancy to accommodate her. Since the challenge against the said Government Order has been repelled by me in OP No 20744/2001.this original petition is only to be dismissed. I do so. No costs.