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2014 DIGILAW 780 (KER)

Thomson C. Varghese, Manager v. State of Kerala

2014-10-08

DAMA SESHADRI NAIDU

body2014
JUDGMENT DAMA SESHADRI NAIDU, J. 1. Since the petitioners in both the writ petitions have raised identical issues, seeking relief against the same set of respondents, this Court proposes to dispose of both the writ petitions through a common judgment. For the ease of reference and felicity of expression, the facts in W.P. (C) No. 25577 of 2014 are taken as the basis for the consideration of the issue. 2. As the learned Senior Counsel, Sri K. Jaju Babu, representing the petitioner in W.P. (C) No. 25577 of 2014, has put it, this case may have a chequered history, but the issue presented before this Court is simple, not calling for any elaborate adjudication. Putting the whole issue in prospective, the grievance of the petitioner can be stated to be that the Director, having been empowered under Rule 7 Chapter III of KER to disqualify an erring Manager, could have exercised the said power in its entirety, instead of delegating it in piece meal to the fourth respondent. In other words, having made the issue of placing the petitioner under disqualification, after following the due process as has been mandated under Rule 7 Chapter III of KER, in stead of passing the final orders, the second respondent ought not have directed the fourth respondent to disqualify the petitioner, yet again after going through the process mandated under Rule 7, by the fourth respondent. 3. As could be seen at the very beginning, the Government passed Exhibit P1 order disqualifying the Manager. Assailing the action of the Government that though it is a superior authority, it is not the authority empowered in terms of KER to disqualify the Manager, the aggrieved persons laid challenge against the said Exhibit P1. Through Exhibits P2 and P3 judgments of this Court quashed Exhibit P1 and permitted the second respondent, the competent authority, to initiate proceedings in terms of Rule 7 Chapter III of KER. Yet again, when the Additional Director, instead of the second respondent, passed Exhibits P5 and P6 orders disqualifying the petitioner and others, who, intact, impugned said orders. 4. Through Exhibits P7 and P9 as well as through some other judgments, this Court set aside Exhibits P5 and P6 and directed the second respondent to pass orders after hearing all the parties concerned. Under those circumstances, Exhibit P12 came to be passed, which the petitioner impugns. 5. 4. Through Exhibits P7 and P9 as well as through some other judgments, this Court set aside Exhibits P5 and P6 and directed the second respondent to pass orders after hearing all the parties concerned. Under those circumstances, Exhibit P12 came to be passed, which the petitioner impugns. 5. Presently, the grievance of the petitioners is directed against the direction of the second respondent in the penultimate paragraph of the impugned proceedings, which read as follows:- "The Deputy Director of Education, Ernakulam is hereby directed to disqualify Sri. Thomson C. Varghese from the post of Managership of St. John's Syrian HSS & TTI Vadakara by invoking the procedures stipulated in Rule 7 Chapter III of KER and to make alternate arrangements for the smooth functioning of the school after observing all statutory norms not later than one month from the date of receipt of this order." 6. Sri K. Jaju Babu, the learned Senior Counsel appearing for the petitioner in W.P. (C) No. 25577 of 2014, has at the threshold submitted that he is not laying any challenge against the order on merits, but against the erroneous approach adopted by the second respondent in acting under Rule 7 Chapter III of KER. Expatiating on the said submission, the learned Standing Counsel has stated that the second respondent has heard the petitioners and passed Exhibit P12 order in a very elaborate manner. Despite it, the second respondent has not felt it fit to pass final orders by himself either disqualifying the petitioners or otherwise. Instead, in terms of the delegation of powers conferred on him through Exhibit P11, he directed the fourth respondent to disqualify the petitioners by invoking the proceedings stipulated in Rule 7 Chapter III of KER. 7. According to the learned Standing Counsel, if the fourth respondent is required to follow the procedure laid down in Rule 7, the observation or the direction of the second respondent that the petitioners shall be disqualified is quite a presumption and is nothing but usurpation of the power that has already been delegated. If viewed conversely, the second respondent himself has exercised the powers under Rule 7. The conclusion part of that is disqualifying the petitioners, being quasi-judicial in nature, ought not have been left for the fourth respondent to be performed. If viewed conversely, the second respondent himself has exercised the powers under Rule 7. The conclusion part of that is disqualifying the petitioners, being quasi-judicial in nature, ought not have been left for the fourth respondent to be performed. Thus, the learned Senior Counsel has contented that viewed from either angle, Exhibit P12 cannot be sustained and is required to be set aside. Sri S.P. Aravindakshan Pillay, the learned counsel for the petitioner in W.P. (C) No. 25643 of 2014, has supported the submissions of the learned Senior Counsel. 8. Per contra, the learned Government Pleader, ably supported by the learned counsel for the sixth and eighth respondents, has strenuously countered the submissions of the learned Senior Counsel for the petitioner. She has submitted that the second respondent has scrupulously followed the due process as has been contemplated under Rule 7 of Chapter III of KER and eventually passed Exhibit P12. According to her, the direction in the penultimate paragraph is only a consequential measure required to be undertaken by the fourth respondent, in the face of the conclusion arrived at by the second respondent. Dilating further on the issue, the learned Government Pleader has strenuously contented that it is entirely misconceived to contend that the second respondent has not taken any decision, but has delegated it in piece-meal manner to the fourth respondent. As has already been observed, the learned counsel for respondents 6 and 8 has further elaborated on the aspect, but essentially supported the contentions of the learned Government Pleader. 9. Heard the learned Senior Counsel for the petitioner and the learned Government Pleader as well as the learned counsel for the respondents, apart from perusing the record. 10. In tune with my prefatory observations that notwithstanding the chequered history of the case, the issue lies in a narrow compass. I shall observe that the second respondent issued Exhibit P12 order running into many pages, thereby indicating that there is much cogitation on the issue. At any rate, in the penultimate paragraph, the second respondent, instead of himself disqualifying the petitioners, has directed the fourth respondent to disqualify the petitioners. Had the direction stopped at that, this Court could have accepted the contention of the learned Government Pleader that the consequential part of the order, which is merely administrative in nature, has been left for the fourth respondent to be performed. Had the direction stopped at that, this Court could have accepted the contention of the learned Government Pleader that the consequential part of the order, which is merely administrative in nature, has been left for the fourth respondent to be performed. Instead, the second respondent has further observed that to disqualify the petitioners the fourth respondent shall follow the procedure stipulated in Rule 7 Chapter III of KER. Essentially, the direction mandates that the fourth respondent may have to re-enact the entire exercise of due process as has been contemplated under Rule 7 Chapter III of KER. In that context, I find some force in the contention of the learned Senior Counsel for the petitioners. Technical as it may seem, once an authority is delegating the quasi-judicial power of adjudication, the delegation cannot be piece-meal. Having heard the parties, the second respondent could have passed orders conclusively, thereafter leaving the residuary aspects of the issue, such as implementing the orders, to the subordinates. On the other hand, it is equally permissible for the second respondent, especially in terms of Exhibit P11, to delegate the entire power of adjudication to the fourth respondent. 11. In my considered view the direction contained in the penultimate paragraph cannot be sustained and is accordingly set aside. I hasten to further add that such setting aside of that singular observation does not nullify Exhibit P12. 12. Under the facts and circumstances, having set aside the direction in the penultimate paragraph of Exhibit P12, this Court further directs that the second respondent has either to conclude the process he had initiated under Rule 7 Chapter III of KER by pronouncing orders finally on the issue of disqualification of the petitioners, or else delegate the entire power of adjudication eventually to the fourth respondent, whichever is desirable as the second respondent deems fit. Needless to observe that the entire exercise as has been indicated above shall be completed by the second respondent at the earliest point of time. With the above observation, this Writ petition stands disposed of. No order as to cost.