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2005 DIGILAW 133 (KER)

The Manager v. State Of Kerala

2005-02-17

THOTTATHIL B.RADHAKRISHNAN

body2005
Judgment :- Ext.P20 order of the Government touching the disciplinary proceedings against the Principal of a vocational Higher Secondary School is under challenge. The Manager is the writ petitioner. 2. The delinquent, the 5th respondent herein, was placed under suspension by the Manager on 30-4-2003. By Ext.P2 order dated 12-5-2003, the Deputy Director permitted the suspension to be continued beyond 15 days. On the basis of such order, as per Ext.P3, suspension of the petitioner was continued. It appears that the revision filed by the 5th respondent against suspension was rejection by the Government as per Ext.P5 dated 27-10-2003. Accordingly, she had been continuing under suspension. 3. As per Ext.P4, the delinquent Principal was issued with a memo containing charges. Ext.P4(a) and P4(b) are the memos issued, by which, additional charges were leveled against her. Ext.P5(a) and P5(b) are the explanations offered by the delinquent. 4. By Ext.P7, the Director of Public Instructions issued notice regarding commencement of enquiry on 9-3-2004 and that enquiry was to be conducted by Sri. P.P. Gopalan, Deputy director (Education) Thiruvananthapuram. Such authorization was so ordered by the Director of Public Instructions on an earlier occasion. The choice of the said officer as the enquiry officer is no more available for any further consideration after the judgment in W.P.(C) No. 40672/2003. 5. Pursuant to Ext.P7, an enquiry was conducted and that resulted in Ext.P14 enquiry report being made by the enquiry officer on 10-6-2004, the date of which is apparent from the 4th item read in Ext.P13. 6. Instead of forwarding Ext.P14 enquiry report to the Manager as is contemplated by Rule 75(10) of Chapter XIV-A of the Kerala Education rules (hereinafter called ‘the K.E.R.’), it was sent over to the D.P.I. by the enquiry officer and the D.P.I. issued Ext.P13 order on 17-6-2004 directing the manager to finalise the disciplinary proceedings initiated against the delinquent within a period of two months and it was further directed that she will be reinstated forthwith. Challenging Ext.P13, the Manager filed W.P., (C). No.18445/2004, which resulted in a direction being issued by this Court as per Ext.P15 judgment that the enquiry file leading to the enquiry report shall be forwarded to the Manager and the Manager was given liberty to file a revision against the enquiry report within a period of another 10 days. Challenging Ext.P13, the Manager filed W.P., (C). No.18445/2004, which resulted in a direction being issued by this Court as per Ext.P15 judgment that the enquiry file leading to the enquiry report shall be forwarded to the Manager and the Manager was given liberty to file a revision against the enquiry report within a period of another 10 days. The government were directed to hear the Manager as well as the delinquent with regard to the interim order on the question of the continuance of the delinquent under suspension. The parties were directed to appear before the Principal Secretary to Government for personal hearing. 7. Armed with Ext.P15 judgment, the petitioner-Manager filed Ext.P16 revision before the Government raising specific grounds of attack against the enquiry report. To put it briefly, the challenge of the Manager could be classified into four. a. Vital Procedural irregularities in the matter of conducting the enquiry by clear violation of the procedure prescribed by Rule 75 of Chapter XIV-A of K.E.R. b. The enquiry officer had not entered into definite findings on each of the charges and that this was an infraction of Sub-Rule (8) of Rule 75 of Chapter XIV-A of the K.E.R. c. Non-appreciation of materials available on record. D. Arriving at conclusions which can be termed as totally perverse, as unavailable on the materials on record. 8. The Government took up Ext.P16 revision petition as also an earlier revision petition filed by the Manager challenging Ext.P13, which contained a direction to reinstate and to finalise the disciplinary proceedings in two months. 9. On 21-10-2004, the Government issued Ext.P18 Government Order by which the Government deferred a final decision on the question regarding the enquiry report and the disciplinary proceedings, but issued an interim order directing that the delinquent need not continue under suspension. The order of the Manager issued on 30-4-2003 placing the delinquent Principal under suspension was revoked by the Government and the Manager was directed to reinstate the delinquent forthwith. 10. Ext.P18 was challenged by the Manager by instituting W.P.(C)No.32045/2004 before this Court. On 8-11-2004, this Court passed an interim order on I.A. No.15334/2004 in that writ petition inhibiting the enforcement of Ext.P18. The delinquent, who was the 5th respondent, in that writ petition filed Writ Appeal, W.A. No.2074/2004, challenging the said interim order. 10. Ext.P18 was challenged by the Manager by instituting W.P.(C)No.32045/2004 before this Court. On 8-11-2004, this Court passed an interim order on I.A. No.15334/2004 in that writ petition inhibiting the enforcement of Ext.P18. The delinquent, who was the 5th respondent, in that writ petition filed Writ Appeal, W.A. No.2074/2004, challenging the said interim order. Having considered the said writ appeal at the stage of admission, with consent of parties, the Bench had withdrawn W.P.(C) No.32045/2004 also and Writ Appeal, W.A.No.2074/2004 and W.P.(C).No.32045/2004 where disposed of by Ext. P19 judgment dated 19/11/2004. The interim order passed by the learned Single Judge on 8-11-2004 in I.A.NO.15334/2004 was set aside without expressing any views on the merits. The Government were directed to consider Ext.P12 revision filed by the Manager after hearing the parties. This revision is the one that is exhibited as Ext.P16 in this writ petition. By the said judgment, the government order dated 21-10-2004 (Ext.P18 herein, which was Ext.P15 in that case) was kept in abeyance. It was ordered that if the revision of the Manager was to be decided upholding the enquiry report. The delinquent was to be deemed to have been reinstated in service with effect from 21-10-2004, i.e., the date of the aforesaid Government Order with all consequential benefits. The said directions were issued without prejudice to the right of the aggrieved parties to challenge the decision of the Government on the revision of the Manager. 11. The impugned order Ext.P20, that is, G.O.(Rt) No.369/05/G.Edn. dated 27-1-2005, was passed thereafter by the Government dismissing the revision of the Manager and stating that in the circumstances, as ordered by this Court, the delinquent shall be deemed to have been reinstated as Principal with effect from 21-10-2004, the date on which Ext.P18 order was passed. 12. I have heard the learned counsel for the parties as also the learned Government Pleader. I have perused the files relating to the enquiry, which contains one set of papers stated to be the documents produced on behalf of the Manager; another set of papers, which are the statement of the defence witnesses during the enquiry. The said files will be returned to the Manager after this judgment. 13. The material facts relating to the enquiry, in so far as it is relevant for this judgment, are as stated hereunder: 14. After the commencement of the enquiry by Sri. The said files will be returned to the Manager after this judgment. 13. The material facts relating to the enquiry, in so far as it is relevant for this judgment, are as stated hereunder: 14. After the commencement of the enquiry by Sri. P.P. Gopalan, Deputy Director (education), Thiruvananthapuram, there is considerable controversy as regards the procedure adopted before 5-4-2004, on which day, even according to the Government and the enquiry officer, de novo proceedings were commenced. 15. The enquiry file discloses that the Manager had placed on record different documents, which had placed on record different documents, which included signed statements of teachers of the school, who are stated to have informed the Manager that the delinquent Principal had compelled them to detain a minimum number of students in the classes; the statements of those parents or guardians, who had alleged that they were asked by the delinquent Principal to obtain transfer certificate and thereby take away their wards from the school and the statements of some parents, who had allegedly complained to the Manager that the delinquent Principal had told them that there are no seats available for admission to the school. The enquiry files also disclose the statement of some of the members of non-teaching staff of the school. In so far as examination of witnesses is concerned, a proceeding is drawn up on 5-4-2004 by which, the enquiry officer has recorded 26 items of replies offered by the delinquent to the charges against her. This is followed by what is recorded as cross examination by smt. Sudhambika (the delinquent) whereunder is recorded, he statements of 23 persons and the cross examination of each of those persons by Smt. Sudhambika (the delinquent). It is thereafter noted that no defence witness was examined by Smt. Sudhambika (the delinquent). Cross examination of the delinquent on behalf of the Manager appears to have followed and the entire enquiry proceedings is shown to have been over by 7 p.m. on that day. Though there is a bunch of papers shown as statements of the defence witnesses, they are materials provided on or before 5-4-2004, that is part of the proceedings before the de novo enquiry was commenced. 16. The delinquent has filed a counter affidavit, inter alia, pointing out that the entire exercise of the Manager is to accommodate a niece of the Manager’s husband in the post of Principal. 16. The delinquent has filed a counter affidavit, inter alia, pointing out that the entire exercise of the Manager is to accommodate a niece of the Manager’s husband in the post of Principal. The said case of the delinquent is that after the approval of her appointment as Principal with effect from 1-6-2001, the senior most teacher Smt. T.N. Padmavathi Kunhamma retired from service on 31-3-2003 and, thereby, Smt. V.M. Lathika, the niece of the Manager’s husband became the senior most teacher of the school from 1-4-2003. According to the 5th respondent the Manager had been anxious to remove the 5th respondent from the post of Principal so as to enable Smt. V.M. Lathika to become the Principal. This is the motive attributed to the Manager for issuing Ext.P1 order of suspension on 30-4-2003. 17. Be that as it may, as already noticed, the crux of the issue is as to the legality or otherwise of Ext.P20 order of the Government, passed pursuant to Ext.P19 judgment of this Court. 18. The learned counsel for the petitioner, as already noticed, contended firstly that the procedure followed by the Enquiry Officer was faulty and contrary to the statutory provisions contained in Rule 75 of Chapter XIV-A of the Rules. By Ext.P20, the Government have given their seal of approval to the procedure adopted. The learned counsel for the delinquent referred to a few decisions of the Apex Court to contend that every violation of rules of procedure will not necessarily make the proceedings vitiated and that it is not every error of procedure or of law that would result in the intervention of the writ court under Article 226 of the Constitution of India in matters relating to discipline. It was further pointed out that even the Apex Court had approved, having regard to the circumstances of certain peculiar cases, the action of the enquiry officer proceeding to examine the delinquent before the presenting officer (Management) commences to lead evidence of the Management. The parameters of judicial review in such matters were also highlighted. For the aforesaid propositions, profitable reference was made by the learned counsel for the delinquent to the decisions of the Apex Court in Firestone T. & “R.Co. The parameters of judicial review in such matters were also highlighted. For the aforesaid propositions, profitable reference was made by the learned counsel for the delinquent to the decisions of the Apex Court in Firestone T. & “R.Co. v. Workmen (AIR 1966 SC 236), State Bank of Patiala v. S.K. Sharma (1966 SC 1669), Sunil Kumar v. State of W. Bengal (1980 (2) SLR 147), State of U.P. v. Harendra Arora (2001(6) SCC 392), State of A.P. v. C. Venkata Rao (AIR 1975 SC 2151), B.C. Chataurvedi v. Union of India (1995 (6) SCC 749). Relying on U.P.S.R.T.C. & Others v. Ram Chandra Yadav [JT 2000 (8) SC 198], it was attempted to be pointed out by the learned counsel for the delinquent that the examination of certain persons as witnesses, though they were not enlisted with notice to the opposite side cannot also be treated as an illegality. The question considered therein related to a situation of examination of a witness on a day, without being shown in the schedule of witnesses for that day, though the names of such witnesses were already intimated. 19. As already noticed, the Government proceeded on the basis that on 5-4-2004, there was a de novo proceedings by the enquiry officer and it is for this reason that I had referred to the materials available on record as were adduced or placed only on or after 5-4-2004. The Government are not, therefore, entitled to consider and rely on any material brought into enquiry before 5-4-2004 to sustain the decision of the Director of Public Instructions. 20. The materials that form part of the enquiry file disclose that the statements of the various persons examined before the enquiry officer are reduced to writing. It is true that each of those statements do not show that they were recorded as depositions tendered before courts. Yet, I am of the considered view that the statement of each witnesses having been recorded with the answer given in cross examination, due principles of natural justice and fair play including fair procedure, are satisfied by that. 21. It is true that each of those statements do not show that they were recorded as depositions tendered before courts. Yet, I am of the considered view that the statement of each witnesses having been recorded with the answer given in cross examination, due principles of natural justice and fair play including fair procedure, are satisfied by that. 21. One of the prime contentions urged by the learned counsel for the petitioner-Manager is that the materials on record had not been duly adverted to and considered as ought to have been done by a man of ordinary prudence, duly instructed on the relevant facts and law and that the conclusions that ought to have been arrived at are away from those that have been reached by the Government in Ext.P20 Government Order. It is also contended that the decision making process resulting in Ext.P20 has deflected much from the required line of consideration. The allegations attributed by the Manager in the form of memo of charges are not those that have been considered, but the consideration was only as to the existence or otherwise of a resultant situation arising out of the actions/omissions, as are attributed to the delinquent Principal. This contention can be easily demonstrated by noticing the following: a) One of the allegations of the Manager is that the delinquent Principal had told some of the teachers to detain particular number of students from the class in the final examination. The materials on record include written complaints given in that regard by the class teachers to the Manager. Those who had complained also appear to have been examined before the enquiry officer. However, the government came to the conclusion that the pass percentage for the academic year in the school to the higher classes was more than the minimum prescribed by the Government and therefore, there could not have any detainment of students, who were entitled to pass. In other words, as rightly pointed out by the learned counsel for the petitioner/Manager, the Government came to the conclusion that no wrong has resulted out of the actions/inactions attributed to the delinquent Principal. I am afraid that the Government failed in holding so. This is because the Government were to decide the question as to whether the delinquent Principal acted as a disciplined Principal in the matter of having asked the teachers to detain students. I am afraid that the Government failed in holding so. This is because the Government were to decide the question as to whether the delinquent Principal acted as a disciplined Principal in the matter of having asked the teachers to detain students. Did the delinquent Principal issue any such instructions? Did the teachers complain about the same to the Manager? Are there materials to hold that such events actually took place? If that were so, was it an act of indiscipline on the part of the delinquent Principal? Theses are the questions, which have not been addressed by the Government or answered an Ext.P20. b) Another allegation of the Manager is that certain parents were told to obtain transfer certificates of their wards and to take them away. The Government came to the conclusion that 5 months preceding the date of suspension of the delinquent Principal, she had not issued any transfer certificate and, therefore, there is nothing wrong about it. On record, are the complaints. On record, are the statements made before the enquiry officer. The questions would be whether (1) did the delinquent Principal make such demands to the parents? 2) are there reliable complaints on record 3) If that is proved, does it amount to a situation of indiscipline? These questions are not adverted to and considered. The Government merely said that no student was given transfer certificate during five months that preceded the suspension of the delinquent Principal. c) As regards the charge leveled by the Manager that the delinquent Principal had refused the request of some parents, for admission of their words, the same also has been answered by the Government only by saying that the students, whose parents had complained to the Manager, had been given admissions. 22. Though not sitting in appeal, I find that the materials on record to which the Government ought to have applied its mind, have not been considered as required of a reasonable administrative authority, whatever its decision be as the authority under the statute. 23. The aforesaid are pointed out by me only to demonstrate the nature of consideration by the government of the allegations contained in the memo of charges against the delinquent Principal. This does not mean that the findings as regards the other charges are approved by this Court. 23. The aforesaid are pointed out by me only to demonstrate the nature of consideration by the government of the allegations contained in the memo of charges against the delinquent Principal. This does not mean that the findings as regards the other charges are approved by this Court. Suffice it to say, the decision of the Government reflects that it had come to the opinion that no wrong having had resulted, the disciplinary proceedings ought to be dropped. A search for curative modes of escaping disciplinary proceedings is not part of that school of jurisprudence. It is not open to a delinquent to say that though he might have done a wrong, nothing has resulted out of it. Such a defence shall not be available at least in the realm of discipline regarding matters relatable to the nature of the facts of the case in hand. I say so, without expressing anything on the merits as regards the question as to whether the delinquent Principal is guilty or not. The aforesaid discussion regarding the facts is only to arrive at the conclusion that the decision making process resulting in Ext.P20 is wholly unreasonable and requires to be set aside. 24. This takes us to the question as to what is the result of the impugned Ext.P20 order being set aside. I proceed to consider that since arguments were addressed on the effect of the directions issued by this Court in Ext.P19 judgment and the impact that some of the directions therein would have on the right of the delinquent to be reinstated in service, notwithstanding Ext.P20 being set aside by this Court in this writ petition. As already noticed, when Ext.P19 judgment was passed, the directions were issued thereby, to facilitate the Government to decide the issues and to ensure that the status quo continues. It would be profitable to quote paragraphs 6 and 7 of Ext.P19 judgment. “6. Having heard learned counsel for the appellant and learned counsel for the respondents in detail, we are of the view that there is no need to keep the writ petition and the writ appeal pending in this Court. Admittedly, the revision petition filed by the Manager before the Government is still pending. Ext.P15 is only an interim order passed by the Government. Admittedly, the revision petition filed by the Manager before the Government is still pending. Ext.P15 is only an interim order passed by the Government. The validity of Ext.P10 enquiry report is under challenge to reinstate the 5th respondent in service on the basis of such report. On the other hand, if the enquiry report is upheld by the Government, the 5th respondent is entitled to claim reinstatement in service. But, before finally deciding the validity of Ext.P10 enquiry report, the Government was not right or justified in revoking the suspension and compelling the Manager to reinstate the 5th respondent in service. Therefore, we suggested to the learned counsel for the parties that the writ petition and the writ appeal can be disposed of directing the Government to take a final decision on Ext.P12 revision petition within a stipulated period, untrammeled by any observations or finding in the impugned order and to keep Ext.P15 order in abeyance till then. We also made it clear that if the revision is decided in favour of the 5th respondent and the enquiry report is upheld by the Government, the 5th respondent will be deemed to have been reinstated in service with effect from the date on which Ext.P15 order was passed. Our suggestion was accepted by the learned counsel for the writ petitioner (Manager and the learned counsel for the 5th respondent in the writ petition. 7. Having regard to the above facts and circumstances of the case and in view of the unhappy incidents stated to have taken place in the school, the writ petition and the writ appeal are disposed of in the following terms: 1) The order dated 8-11-2004 passed by the learned Single Judge in I.A.No.15334/2004 in W.P.(c) No.32045/2004 is set aside without expressing any view on merits. ii) The First respondent in the writ petition is directed to consider Ext.P12 revision petition and pass appropriate final orders in accordance with law as expeditiously as possible and at any rate within a period of six weeks from today. iii) Before passing final orders on Ext.P12, the Manager and the appellant shall be given a personal hearing by the first respondent. iv) Pending final decision on Ext.P12, Ext.P15 order shall be kept in abeyance. iii) Before passing final orders on Ext.P12, the Manager and the appellant shall be given a personal hearing by the first respondent. iv) Pending final decision on Ext.P12, Ext.P15 order shall be kept in abeyance. v) If the revision is decided in favour of the 5th respondent upholding the enquiry report, the 5th respondent shall be deemed to have been reinstated in service with effect from the date of Ext.P15 order and she will be entitled to consequential benefits. vi) The above directions are without prejudice to the right of the aggrieved party to challenge the decision of the Government on Ext.P12 revision petition.” 25. Therefore, the Division Bench was of the view that if the enquiry report is found to be invalid, the Manager cannot be compelled to reinstate the delinquent as the Principal in service on the basis of the report. While on the other hand, if the enquiry report is upheld by the Government, the delinquent is entitled to claim reinstatement in service. Hence the direction enumerated as (v) under para.7 of Ext.P19 judgment that if the revision is decided in favour of the Principal upholding the enquiry report, the Principal shall be deemed to have been reinstated in service with effect from the date of government Order, G.O.(Rt)No.5496/04/G.Edn. and that she will be entitled to consequential benefits is subject to the directions in clause (vi) thereunder that the directions are without prejudice to the right of the aggrieved party to challenge the decision of the Government in the writ petition. I am of the considered view that the rights of the parties, including as to any interim relief and any interim arrangement or fin al arrangement in the nature of the orders that may be passed in this writ petition, are still open and not tied down to any of the directions contained in Ext.P19 judgment. 26. The delinquent Principal is due to retire on 31-3-2005, since she would reach the age of superannuation before the academic year ending on 31-3-2005. She is under suspension from 31-4-2003. The pleadings of the Manager in the writ petition and the specific grounds that are raised therein challenging Ext.P20 do not, in my considered view, reflect the requirement to keep the teacher out of service, on any ground that may require her to be kept so, during the course of disciplinary proceedings. She is under suspension from 31-4-2003. The pleadings of the Manager in the writ petition and the specific grounds that are raised therein challenging Ext.P20 do not, in my considered view, reflect the requirement to keep the teacher out of service, on any ground that may require her to be kept so, during the course of disciplinary proceedings. I say so, because it does not appear to be the requirement for here to be out of office owing to any probability or chance of her tampering with any materials that may be required for any further enquiry. The materials to be brought on record are already available. The nature of the allegations are not such, may be barring a couple of them, which can be manipulated after the materials have already come on record. The totality of the facts and circumstances does not require the delinquent Principal to continue under suspension. I come to such conclusion since, in my considered view, there is a nice distinction between the concept of reinstatement and the quality of revocation of suspension. 27. As has already been noticed, the Government had by Ext.P6 date 27-10-2003, rejected the request of the delinquent Principal against her suspension. However, the Government have now come to the conclusion that the disciplinary proceedings against her are on flimsy grounds. Two contradictory opinions having been arrived at by the Government during the course of the entire proceedings, in the interest of justice and having regard to the totality of the facts and circumstances, I deem it fit and appropriate for the writ court to consider, by itself, as to whether there are any grounds to continue the delinquent Principal under suspension or otherwise keep her away from office as the Principal of the school, more so, because she is due to retire on 31-3-2005. Having regard to the facts and circumstances, which I have noticed above, I am of the considered view that she is entitled to be reinstated, to hold and continue to be in office as Principal and her suspension shall stand revoked. 28. Having regard to the facts and circumstances, which I have noticed above, I am of the considered view that she is entitled to be reinstated, to hold and continue to be in office as Principal and her suspension shall stand revoked. 28. In the result, I quash Ext.P20 and direct that the Government shall reconsider the revision of the Manager as against the enquiry report, hear the parties, i.e, the Manager and the delinquent, and shall take a final decision in the matter, bearing in mind the observations and directions contained above, within a period of three months from the date of receipt of a copy of this judgment. The delinquent will be entitled to rejoin duty as Principal forthwith and continue in office until she superannuates or until the proceedings as aforesaid is completed, whichever even happens earlier, subject to her being otherwise eligible to continue as such. 29. Upon pronouncement of the judgment as aforesaid, the learned counsel for the petitioner-Manager states that certain public examinations have started today in the school and that one among the teachers was appointed as teacher in charge for the purpose of the examinations. In this view of the matter, though the petitioner will be given charge of the office of the Principal in so far as the control and conduct of the examinations that have commenced are concerned, the same will continue as on today going by the decision of the Manager in that regard. This writ petition is disposed of as above. The enquiry files are returned to the counsel for the writ petitioner-Manager.