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2018 DIGILAW 310 (KER)

Thomas P. Mathew v. State of Kerala

2018-04-04

A.MUHAMED MUSTAQUE

body2018
JUDGMENT : The short issue in this Writ Petition is whether the District Educational Officer is having the power to conduct an enquiry for imposing major penalties against a Headmaster in an L.P. School in the absence of any authorisation by the Director or the Government as contemplated under Rule 75(1)(b) of Chapter XIV(A) of the Kerala Education Rules. 2. The petitioner, Sri.Thomas P.Mathew was suspended from service pending enquiry by the Manager. The Manager was of the view that a formal enquiry was required. The school was within the administrative control of the Assistant Educational Manager, Nedumkandam, Idukki District. The office of the Assistant Educational Officer was vacant when such request was made by the Manager. The Senior Superintendent of the said office was also not given full additional charge of the Assistant Educational Officer. The Senior Superintendent requested the District Educational Officer to conduct an enquiry since the post of Assistant Educational Officer was vacant. Thereafter, the District Educational Officer conducted the enquiry. In the enquiry it was found that the charges laid against the petitioner stand proved. Thereupon, the Manager, with previous permission given by the Assistant Educational Officer, imposed penalty of reversion as L.P.S.A on the petitioner. 3. The petitioner filed a revision against the reversion order before the Government. It is in revision, for the first time the petitioner raised an argument as to the competency of the District Educational Officer to conduct such enquiry. According to the petitioner, in the absence of the Assistant Educational Officer, the District Educational Officer could not have assumed power to conduct the enquiry without authorisation from the Director or the Government. The Government answered the objection as evident from Ext.P15 as follows: “It is to be noted that the post of Assitant Educational Officer, Nedumkandam was left vacant for the period from 1.6.2005 to 9.8.2005 consequent to the transfer of Sri. T.S. Daniel to his home district Palakkad. The Senior Superintendent of the office was not given full additional charge of the Assistant Educational Officer, by the Deputy Director (Edn.), Idukki at Thodupuzha, till the later half of July, 2005. Therefore, the fact was intimated to the District Educational Officer, Kattappana, and the Deputy Director of Education, Idukki at Thodupuzha, the Manager was also intimated this fact. Hence the Manager requested the District Educational Officer, Kattappana to conduct enquiry as per rules against Sri. Thomas P. Mathew. Therefore, the fact was intimated to the District Educational Officer, Kattappana, and the Deputy Director of Education, Idukki at Thodupuzha, the Manager was also intimated this fact. Hence the Manager requested the District Educational Officer, Kattappana to conduct enquiry as per rules against Sri. Thomas P. Mathew. The post of Assistant Educational Officer, Nedumkandam was left vacant. Sri. Thomas P. Mathew is willfully attempting to misguide Government in this regard. In fact the District Educational Officer, Kattappana has conducted the enquiry against the Headmaster of L.P. School with due statutory authority, he was specifically authorised for this purpose by the Deputy Director of Education, Idukki at Thodupuzha. The enquiry conducted by the District Educational Officer, Kattappana, on 27.08.2005 was lawful and all the principles of natural justice have been observed.” 4. As seen from the above, the District Educational Officer conducted the enquiry as he was specifically authorised for this purpose by the Deputy Director of Education, Idukki. If that is the case, certainly, there may not be any difficulty to hold that the District Educational Officer is having authority to conduct such enquiry. The Government did not interfere with the matter and rejected the revision. It is challenging this order, the petitioner approached this Court. 5. Heard the learned Senior Counsel for the petitioner, Sri. Abraham Vakkanal, Sri. B. Vinod, Senior Government Pleader and the learned counsel for the Manager. 6. The learned Senior Counsel for the petitioner referred to Rule 75(1)(b) of Chapter XIV(A) of the K.E.R. and argued that the ‘Educational Officer’ as referred therein can be only the Assistant Educational Officer and in his absence an officer authorised by the Assistant Educational Officer or any other officer appointed by the Director or the Government. Therefore, the District Educational Officer could not have conducted the enquiry. It is apposite to refer Rule 75(1)(b) which reads as follows: “(b) The Manager shall forward the records of the case with a request to the Deputy Director, (Education) in the case of Headmasters of High Schools and Training Schools or to the Educational officers in other cases, that the formal enquiry may be conducted by that Officer or any other officer not below the rank of an Assistant Educational Officer authorised by that officer or an officer of the department appointed by the Director or Government.” 7. The learned Senior Government Pleader submits that the objection to the authority of the District Educational Officer in conducting the enquiry was first time raised by the petitioner only before the Government and the petitioner having submitted himself to such enquiry conducted by the District Educational Officer, he is estopped from challenging the authority of the District Educational Officer. 8. The learned counsel appearing for the Manager would argue that as seen from the definition of the ‘Educational Officer’ referred in Rule 2(5) of Chapter I of K.E.R., the District Educational Officer is having concurrent power with the Assistant Educational Officer to conduct such enquiry. In Rule 2(5) the Educational Officer is defined as follows: “2(5) ‘Educational Officer’ means the District Educational Officer or the Assistant Educational Officer having immediate inspectional and administrative control over the school within his respective jurisdiction. The term shall also include any Officer to whom the duty of inspection for specific purposes has been entrusted by competent authority.” 9. In Chapter XV of K.E.R., various powers of the District Educational Officer and the Assistant Educational Officer are referred. In this context, this Court is only called upon to decide the ‘Officer’ as referred under Rule 75(1)(b). No doubt, the District Educational Officer may have the power to exercise administrative control or conduct an inspection of the school coming under the area of the Educational District. That general supervisory power is not the subject in this Writ Petition. When a statutory provision is interpreted and the statute clearly indicates the nature of functions and powers of such authority, that particular provision alone need be adverted for deciding the question whether such authority is having power or not. In this case, after adverting to Rule 75(1)(b), it is very clear that the Assistant Educational Officer is the competent officer to conduct such enquiry, and in his absence any officer appointed by him or by an officer appointed by the Director or Government. Therefore, the District Educational Officer could not have assumed power or authority to conduct the enquiry. 10. When a power to conduct an enquiry emanates from a statutory provision, and if the authority conducting enquiry has no power traceable under the statute, the silence or submission to such enquiry itself cannot confer a jurisdiction upon such authority to act against a person. 10. When a power to conduct an enquiry emanates from a statutory provision, and if the authority conducting enquiry has no power traceable under the statute, the silence or submission to such enquiry itself cannot confer a jurisdiction upon such authority to act against a person. Rule 75(1)(b) clearly stipulates that in the absence of the Assistant Educational Officer, the Director or the Government alone is having power to appoint an enquiry officer. That power cannot be usurped by the District Educational Officer. If such interpretation is given that would militate against the provision as such authorising the Director and the Government to appoint such enquiry officer. Therefore, even if the petitioner had submitted himself to the authority of the District Educational Officer that itself will not preclude him from challenging the authority at a later stage if such authority is not having power traceable under the statute to conduct the enquiry. It is to be noted that the petitioner raised this contention before the Government. The Government overruled his objection citing that the Deputy Director had authorised the District Educational Officer to conduct the enquiry. Therefore, the Government itself was very clear as to the scope of authority that could have been exercised by the District Educational Officer. There is nothing on record to show that the Deputy Director of Education had authorised the District Educational Officer to conduct such enquiry. 11. In the counter affidavit filed by the first respondent, the Government attempted to justify its stand that the District Educational Officer had the right to conduct enquiry by referring to the Government Order, G.O.(P).No.76/84/G.Edn. dated 28.04.1984, wherein it is stipulated that the powers delegated to the various officers in hierarchy, will be exercised by superior officers whenever it is found necessary. 12. No doubt, when statutory provision is silent about exercise of such power, certainly, G.O.(P).No.76/84/G.Edn. dated 28.04.1984 can be resorted to justify such action. But when statutory provision itself is clear and specific in what manner such power has to be exercised, certainly, that can be only exercised in such manner as prescribed under the statute. Therefore, the Government Order cannot be relied upon to justify such action. The Rule itself is very clear, in the absence of an officer in what manner such power has to be exercised. Therefore, the Government Order cannot dilute the statutory provision as above. 13. Therefore, the Government Order cannot be relied upon to justify such action. The Rule itself is very clear, in the absence of an officer in what manner such power has to be exercised. Therefore, the Government Order cannot dilute the statutory provision as above. 13. In that view of the matter, this Court is of the view that the District Educational Officer has no power to conduct enquiry and, therefore, the enquiry and the punishment imposed on the petitioner have to be interfered. Then the question that arises is whether the disciplinary action can be continued against the petitioner. Admittedly, the punishment was imposed on him in the year 2006 and he retired from the service on 31.3.2009. Therefore, there is no scope for conducting further enquiry. The petitioner retired from the service as L.P.S.A. I have not examined the merit of the issue. The petitioner is not exonerated from the charges levelled against him. In view of the fact that he has not served as Headmaster from the date on which penalty was imposed and he retired as L.P.S.A, this Court is of the view that the petitioner can only claim notional benefits in the post of Headmaster for retirement benefits from the date on which punishment was imposed on him. The petitioner will not be entitled for any arrears of salary. Therefore, the Writ Petition is allowed interfering with the enquiry and punishment to the extent above. The petitioner’s pensionary benefits shall be reworked in the scale of pay applicable to the Headmaster from the date of punishment and shall be disbursed to him within a period of three months. No costs.