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2003 DIGILAW 152 (KER)

K. P. Rama Warrier v. Secretary to Government

2003-02-25

A.K.BASHEER, CYRIAC JOSEPH

body2003
Judgment :- Cyriac Joseph, J. 1. The challenge in the above two Writ Appeals is against a common judgment dated 20.12.2002 in O.P.Nos.14891/93 and 13312/94. Hence, both the appeals are being disposed of by a common judgment. 2. As per an order No.02/93 dated 27.1.1993 of the Manager, A.U.P.School, Pombra, Smt.M.J.Elsamma, Teacher-in-charge of the post of Headmaster in A.U.P.School, Pombra was placed under suspension from 28.1.1993 F.N. onwards. A copy of the said order of the Manager was forwarded to the Asst. Educational Officer, Cherpulassery “with the request for conducting an enquiry within 15 days in the presence of the Manager and permission for punishment.” On receipt of copy of the said order dated 27.1.1993 of the Manager, the Asst. Educational Officer, Cherpulassery conducted a preliminary enquiry regarding the suspension of Smt.M.J.Elsamma, on 11.2.1993. The Manager, the Headmaster, Smt.M.J.Elsamma and all other teachers of the school except four teachers were present at the time of enquiry. Thereafter, the Asst. Educational Officer, Cherpulassery, as per his letter/order No.C/385 dated 12.2.1993 informed the Manager as follows: “From the enquiry I come to the conclusion that Smt.M.J.Elsamma, had not violated the Kerala Education Rules, as stated by the Manager. She only implemented the orders of the Educational Authorities and also the orders of the District Collector, Palakkad. She had reported the details to the approved Manager of the school whenever necessary. Under the circumstances, the undersigned is pleased to order that the Manager is requested to withdraw the suspension of the teacher, and to reinstate the teacher from the date of suspension and intimate the fact to this office without delay. A detailed enquiry about the same may be conducted at the beginning of the next Academic year if the Manager wishes.” Against the said order dated 12.2.1993 of the Asst. Educational Officer, the Manager filed a revision before the Government under Rule 92 of Chapter XIV-A K.E.R. The said revision was rejected by the Government as per G.O.Rt. No.5409/93/GE dated 1.10.1993. In the said order the Government upheld the order of the Asst. Educational Officer, Cherpulassery, directing the Manager to reinstate Smt.M.J.Elsamma in service. Thereupon, the Manager filed O.P.No.14891/93 praying to quash the order dated 12.2.1993 of the Asst. Educational Officer and the Government Order dated 1.10.1993. The Manager also prayed for a direction to the Asst. No.5409/93/GE dated 1.10.1993. In the said order the Government upheld the order of the Asst. Educational Officer, Cherpulassery, directing the Manager to reinstate Smt.M.J.Elsamma in service. Thereupon, the Manager filed O.P.No.14891/93 praying to quash the order dated 12.2.1993 of the Asst. Educational Officer and the Government Order dated 1.10.1993. The Manager also prayed for a direction to the Asst. Educational Officer, Cherpulssery to grant approval to the order of suspension of Smt.M.J.Elsamma, pending detailed enquiry into her alleged misconduct. 3. Pursuant to the Government Order dated 1.10.1993, Smt.M.J.Elsamma requested the Asst. Educational Officer to disburse her salary from the date of her suspension. As per an order dated 16.10.1993, the Asst. Educational Officer directed that the salary of Smt.M.J.Elsamma from the date of suspension be released in pursuance of the powers conferred upon the Asst. Educational Officer under Rule 67(8) of Chapter XIV-A K.E.R. The Headmaster was directed to draw and disburse the salary of the teacher immediately. However, the teacher was neither reinstated not paid her salary. When the Asst. Educational Officer came to know about the filing of O.P.No.14891/1993 by the Manager challenging the orders of the Asst. Educational Officer and the Government, he issued an order No.C/385/93 dated 18.3.1994 withholding the salary of the teacher until final orders from the High Court. Thereupon, Smt.M.J.Elsamma filed O.P.No.13312/94 praying to quash the order dated 18.3.1994 of the Asst. Educational Officer. She has also prayed for a declaration that the said order of the Asst. Educational Officer is illegal and without jurisdiction and that the petitioner is legally entitled to get salary as per Rule 67(8) of the Kerala Education Rules. 4. O.P.Nos.14891/93 and 13312/94 were heard together and disposed of by a common judgment dated 20.12.2002. As per the common judgment dated 20.12.2002, O.P.No.14891/93 filed by the manager has been dismissed and O.P.No.13312/94 filed by the teacher has been allowed directing the respondents to see that the teacher is permitted to join duty immediately. The court has also directed that the petitioner shall be disbursed the salary and other benefits with effect from the date of suspension, within a period of three months from the date of receipt of a copy of the judgment. The court has also clarified that it will be open to the Department as provided under Rule 67(8) of Chapter XIV-A K.E.R., to recover the benefits thus granted to the teacher from the manager. 5. The court has also clarified that it will be open to the Department as provided under Rule 67(8) of Chapter XIV-A K.E.R., to recover the benefits thus granted to the teacher from the manager. 5. Challenging the judgment in O.P.No.14891/03 the Manager has filed Writ Appeal No.274/03. Against the judgment in O.P.No.13312/94, the Manager has filed Writ Appeal No.275/03. We have heard Mr.Ramakumar who appeared for the appellant in both the appeals. 6. The only contention urged by the learned counsel for the appellants is that Ext.P2 order of the Asst. Educational Officer is illegal and without jurisdiction. It is contended that the Asst. Educational Officer was only expected to consider whether there were sufficient grounds for justifying the suspension of the teacher. Instead of considering that question, the Asst. Educational Officer proceeded to decide whether the teacher had violated the Kerala Education Rules and reached a conclusion to the effect that the allegations against the teacher were baseless. According to the learned counsel, the approach taken by the Asst. Educational Officer is against the decision of a Division Bench of this court in Sreedharan v. State of Kerala and others (1977 KLT 222). It is also contended that while disposing of the appellant’s revision the Government failed to appreciate the above aspect and that in the impugned judgment, the learned Single Judge also did not consider the above question in the proper perspective. 7. In Sreedharan v. State of Kerala, a Division Bench of this court held: “What is contemplated under Rule 67(8) of Chapter XIV-A K.E.R. is only that the Educational Officer exercising the powers conferred by the said rule, should conduct a preliminary investigation with a view to find out whether there are prima-facie grounds justifying the suspension of the teacher. Under the Scheme of Chapter XIV-A K.E.R. an enquiry into the charges is to be conducted only at a later stage in accordance with the provisions contained in Rule 75 of the Rules.” 8. It was further held: “The Educational Officer is not expected to conduct a detailed enquiry into the charges including the calling of witnesses and recording their testimony and to pass an elaborate order entering definite findings on the merits of the charges of misconduct leveled against the teacher.” We agree with the above interpretation of Rule 67(8) by the earlier Division Bench. 9. 9. The operative portion of the order dated 12.2.1993 of the Asst. Educational Officer has been quoted above. From Ext.P2, it is seen that the Asst. Educational Officer had conducted only “a preliminary enquiry regarding the suspension of Smt.M.J.Elsamma by the Manager” and that it was not a full-fledged enquiry as contemplated under Rule 75 of Chapter XIV-A K.E.R. It is true that for the said preliminary enquiry the Manger, the Headmaster, Smt.M.J.Elsamma and all other teachers except four teachers were present. There is nothing wrong or illegal in conducting such a preliminary enquiry in the presence of the parties concerned, for the purpose of considering whether, prima facie, sufficient grounds existed for justifying the suspension. Though Ext.P2 order lacks clarity and articulation, it is obvious that the observations made therein are only for the limited purpose of holding that there were not sufficient grounds to justify the suspension. They are not the final decision on the charges against the teacher. Hence Ext.P2 was not issued without jurisdiction. The main allegation against Smt.M.J.Elsamma was that she acted without the instructions and against the directions of the Manager, the Asst. Educational Officer observed in his order dated 12.2.1993 that from the enquiry he came to the conclusion that Smt.M.J.Elsamma had not violated the Kerala Education Rules as stated by the Manager and that she only implemented the orders of the Educational Authorities and also the orders of the District Collector, Palakkad. It was also observed that the teacher had reported the details to the approved Manager of the school whenever necessary. It is apparent that the Asst. Educational Officer was expressing his view that there were not sufficient grounds for placing the teacher under suspension. He was not giving a final verdict on the merits of the allegations against the teacher. This is obvious form the last sentence in the order dated 13.2.1993 of the Asst. Educational Officer, which reads as follows: “A detailed enquiry about the same may be conducted at the beginning of the next Academic year, if the manager wishes.” In other words, the Asst. Educational Officer has not foreclosed the opportunity to conduct an enquiry under Rule 75 of Chapter XIV-A K.E.R. if requested by the Manager. Educational Officer, which reads as follows: “A detailed enquiry about the same may be conducted at the beginning of the next Academic year, if the manager wishes.” In other words, the Asst. Educational Officer has not foreclosed the opportunity to conduct an enquiry under Rule 75 of Chapter XIV-A K.E.R. if requested by the Manager. In the above circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that while issuing the order dated 12.2.1993 directing to reinstate the teacher from the date of suspension the Asst. Educational Officer exceeded his power under Rule 67(8) of Chapter XIV-A K.E.R. 10. In the light of the above discussion, we hold that there is no merit in the appeals. The appeals are accordingly dismissed.