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2008 DIGILAW 711 (KER)

P. v. John VS State of Kerala

2008-11-17

ANTONY DOMINIC

body2008
JUDGMENT : Antony Dominic, J. The petitioner is a teacher, against whom disciplinary proceedings were initiated. Accepting Ext.P2 enquiry report, by Ext.P3 order the Manager removed the petitioner from service. That order was the subject matter of O.P.No.8054/2003, resulting in Ext.P4 judgment directing to reinstate the petitioner with continuity of service and other benefits, except back wages. 2. The Manager filed appeal against Ext.P4 as writ appeal No.493/2008. The writ appeal was disposed of by Ext.P5 judgment holding that the interference as per Ext.P4 cannot be termed to be unjustified. But, however, it was directed that a fresh enquiry shall be conducted. Accordingly, fresh enquiry was conducted and Ext.P6 is the enquiry report submitted by the D.E.O., Ernakulam. In Ext.P6, the petitioner has been found guilty of seven charges. 3. On receipt of the enquiry report, under cover of Ext.P7 the Manager forwarded a copy of the report of the enquiry officer to the petitioner, proposing major punishment of dismissal and calling upon the petitioner to make her representations, if any, in the matter. In response to Ext.P7, the petitioner submitted Ext.P8 explanation, and the Manager is yet to take a final decision in the matter of punishment. Against the enquiry report, the petitioner has filed Ext.P9 revision under Rule 92 of Chapter XIV(A) K.E.R before the 1st respondent and, thereafter filed this writ petition, praying for quashing Ext.P6 and directing her reinstatement. There is also a prayer that the 1st respondent be directed to consider, Ext.P9 revision with opportunity of hearing to the petitioner. 4. In so far as, the prayer for quashing Ext.P6 and to direct reinstatement are concerned, the petitioner is not pressing those reliefs. However, the learned counsel for the petitioner mainly argued for a direction to the 1st respondent for an expeditious disposal of Ext.P9 revision. 5. According to the learned counsel, though Ext.P6 is only a report of enquiry submitted by the D.E.O., on which the Manager has not taken a final decision, a revision even at this stage is maintainable. In support of this contention, the learned counsel for the petitioner relied on the decisions of this Court in Cherian v. Anna S. Varghese ( 1987 (1) KLT 301 ) and in Ravindra Babu v. State of Kerala ( 1987 (1) KLT 472 ). 6. In my view, the revision filed at this stage is not maintainable. In support of this contention, the learned counsel for the petitioner relied on the decisions of this Court in Cherian v. Anna S. Varghese ( 1987 (1) KLT 301 ) and in Ravindra Babu v. State of Kerala ( 1987 (1) KLT 472 ). 6. In my view, the revision filed at this stage is not maintainable. The revision is filed under Rule 92 of Chapter XIV(A) of K.E.R, which confers power on the Government to revise any order passed by any of the subordinate authorities in respect of any matter contained in the Chapter. As already noticed, the Manager is yet to take a decision on Ext.P6 enquiry report in the light of Ext.P8 explanation submitted by the petitioner. The proceedings have only reached the stage of opportunity to the delinquent as contemplated under Rule 75(11)(b) of Chapter XIVA, K.E.R. Only when Manager passes an order under Rule 75(11)(c), can it be said that a final order is passed. Therefore, the proceedings are yet to result in final order, which alone can be subjected to revision under Rule 92. The petitioner will have to await for the culmination of the proceedings, and if the ultimate order passed by the Manager exercising his disciplinary power is a prejudicial one, it is that order which can be subjected to revision under Rule 92. 7. In so far as the judgment in Cherian v. Anna S. Varghese ( 1987 (1) KLT 301 ) is concerned, that was a case where this Court held that a revision is maintainable against an enquiry report. The facts of the case show that the enquiry report considered by this Court was a report finding the delinquent innocent of the misconducts alleged. After surveying the statutory provisions, the Division Bench held that the disciplinary authority is bound by the report and therefore, it is a formal expression of a decision, and hence an order, which can be challenged in revision. Such a view was taken for the obvious reason that in view of the binding finding of innocence contained in the report, the only option to the Manager was to drop the proceedings. It was therefore, that the Division Bench held that a revision by the Manager was maintainable. Such a view was taken for the obvious reason that in view of the binding finding of innocence contained in the report, the only option to the Manager was to drop the proceedings. It was therefore, that the Division Bench held that a revision by the Manager was maintainable. Here, Ext.P6 report of enquiry is one of finding of guilt, and is yet to culminate into an order to be passed by the Manager, and therefore, the decision in Cherian v. Anna S. Varghese ( 1987 (1) KLT 301 ), referred to above, has of no assistance to the petitioner. 8. In so far as the judgment in Ravindra Babu v. State of Kerala ( 1987 (1) KLT 472 ) is concerned, the challenge in revision was against an order declining to grant promotion under Rule 74 of Chapter XIV-A K.E.R., and therefore, the Division Bench rightly held that revision is maintainable. In my view, that judgment also does not advance to the case of the petitioner in any manner. 9. In my view, the revision filed by the petitioner against Ext.P6 report of enquiry, is not maintainable. As already noticed, the petitioner will have to await for the final order to be passed by the Manager and only thereafter she can pursue the statutory remedy of revision under Rule 92, Chapter XIV A, K.E.R. The writ petition fails, and is, accordingly, dismissed.