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2020 DIGILAW 1023 (KER)

Noble Jose S/o Jose P. U. v. State of Kerala Rep. by the Secretary, Department of General Education

2020-12-01

DEVAN RAMACHANDRAN

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JUDGMENT : DEVAN RAMACHANDRAN, J. 1. Preferred for a jural answer in this writ petition is if the Manager of an Aided School, established and run within the purlieus of the Kerala Education Rules (KER), is entitled to reinstate a teacher, earlier-placed under suspension by him and which action was statutorily approved by the competent Educational Officer-without the permission of the said Officer/Authority. 2. The genesis of the afore issue in it is that the petitioner, who is a Higher Secondary School Teacher (HSST) in Chemistry in the SHHSS Dwarak, Mananthavady, was placed under suspension by its Manager on 13.12.2018 for a period of fifteen days, vide Exhibit P1 proceedings and an enquiry was ordered against him because of an unfortunate event in the school, where a student committed suicide, leaving a note in which the petitioner was also named. 3. The order of suspension was ratified and sanctioned to be extended beyond fifteen days, as per the mandate of the proviso to Rule 67(7) Chapter XIVA of the KER, through Exhibit P2 dated 24.12.2018. 4. The pleadings reveal that against the suspension, the petitioner approached the Regional Deputy Director of Education (RDD) on 16.01.2019 as also the Manager on 27.03.2019 and that the latter, on his own, reinstated him on the said date, as is evident from Exhibit P4. The petitioner thus rejoined the School on 29.03.2019, but the Joint Director of Education issued Exhibit P5 notice to the Manager on 06.09.2019, asking him to explain why action should not be commenced against him for having reinstated the petitioner, even when Exhibit P2 order of the third respondent-RDD (who ratified the suspension beyond fifteen days), was in force. 5. In the meanwhile, the petitioner was served with a Memo of Charges by the Manager on 18.08.2020, a copy of which is appended to this writ petition as Exhibit P6, to which the petitioner replied through Exhibit P7. 6. The afore factual backdrop being so, the petitioner had earlier, in the year 2018, approached the District Court, Kalpetta through Crl. M.C. No. 412/2018, seeking that Crime No. 346/2018 of the Vellamanda Police Station-registered against him under Section 305 of the Indian Penal Code and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, on the basis of the afore mentioned suicide note of the student-be quashed. M.C. No. 412/2018, seeking that Crime No. 346/2018 of the Vellamanda Police Station-registered against him under Section 305 of the Indian Penal Code and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, on the basis of the afore mentioned suicide note of the student-be quashed. The District Court, however, dismissed the case, which led the petitioner to come before this Court by filing Crl. M.C. No. 920/2019. 7. After assessing the materials and records available in detail, a learned Judge of this Court disposed of Crl. M.C. No. 920/2019, as per Exhibit P8 order dated 10.06.2019, with the following conclusions and directions: “After having heard both sides, this Court is of the prima facie view that the abovesiad aspect of investigation does not in any manner point to any criminal culpability on the part of the petitioner for the offence under Sec.305 of the I.P.C. and Sec.75 of the JJ Act. As the investigation has not so fat been completed, this Court is not now proposing to enter into any final findings regarding the said issue. Accordingly, it is ordered that the investigation should be completed and finalised by the investigating agency concerned without any further delay and final report should be duly filed immediately thereafter, within 3 months. The investigating agency/Crime Branch will ensure that a dispassionate and impartial approach is taken to finalise the investigation process and a biased view, just to find fault with the accused some way or other, should not be the approach so that the truth of the matter is brought out and innocent persons are put to peril. Thereafter, the petitioner will be at liberty to challenge the impugned final report, if it is adverse to him and seek appropriate remedies in that regard and the issues presently raised could then be raised by the petitioner for final adjudication in such appropriate proceedings. With the said liberty, the above Criminal Miscellaneous Case will stand finally disposed of.” 8. Presumably, fortified by the afore view in Exhibit P8, the petitioner has now approached this Court assailing Exhibit P1 order of suspension; Exhibit P2 order of the third respondent-RDD, ratifying the suspension; Exhibit P5 notice issued by the fourth respondent-Joint Director and Exhibit P6 Memo of Charges. 9. I have heard Smt. Thulasi Raj, learned counsel for the petitioner, Smt. Nisha Bose, learned Senior Government Pleader and Sri. 9. I have heard Smt. Thulasi Raj, learned counsel for the petitioner, Smt. Nisha Bose, learned Senior Government Pleader and Sri. K. Praveen Kumar, learned counsel for the fifth respondent-Manager. 10. Smt. Thulasi Raj began her submissions contending that Exhibits P1, P2 and P5 orders and P6 Memo of Charges can obtain no sustenance in law in view of the conclusions of this Court in Exhibit P8 order afore-extracted. She then made her second limb of the argument that if this Court is to find otherwise, then Exhibit P5 notice issued by the fourth respondent-Joint Director to the Manager be set aside and the petitioner be allowed to continue discharging his duties, leading to the regularisation of his period of suspension, for which the competent Educational Authorities be directed to issue apposite proceedings. 11. Smt. Thulasi Raj fortified her submissions by saying that this is an imminently fit case where the discretionary power of this Court should aid the petitioner, since he is not even aware as to why his name has been featured in the suicide note of the student, since he did not teach the deceased and therefore, that it could have only been on account of a misunderstanding and nothing else. She impassionately pleaded that the petitioner's pathos be recognised by this Court and that he be freed from the burden of having to continue to face the enquiry and other proceedings for something which he was not involved in and not even aware of. 12. The learned Senior Government Pleader Smt. Nisha Bose countered the afore submissions of the petitioner by asserting that it is too early for him to seek exoneration or to be freed from the enquiry, because, even in Exhibit P8 order, this Court has not found him innocent but has only recorded a prima facie view that the investigation, as on the date of the said order, did not ‘point to any criminal culpability’ on his side. She showed me that, however, this Court had permitted the investigation to continue through a ‘dispassionate and impartial approach’ and to conclude it as per law. She showed me that, however, this Court had permitted the investigation to continue through a ‘dispassionate and impartial approach’ and to conclude it as per law. She, therefore, prayed that the petitioner's plea against Exhibit P1 order of suspension, Exhibit P2 order of the RDD and Exhibit P6 Memo of Charges be not acceded to at this time, since the investigation into the crime is still being carried on by the Deputy Superintendent of Police, Crime Branch, Wayanad. 13. On the contentions of the petitioner impelled in opposition to Exhibit P5 notice, the learned Senior Government Pleader submitted that he does not obtain any locus to assail it, since it has been issued not to him but to the Manager of the School, namely the fifth respondent and that the said respondent has chosen not to challenge it until now. She, therefore, prayed that this Court may not enter into its validity in this writ petition. 14. The learned Senior Government Pleader then proceeded to submit that the allegations against the petitioner are extremely grave because his name has been mentioned in the suicide note left by the deceased student and that the fifth respondent Manager has placed him under suspension through Exhibit P1 validly. She added that it was the Manager himself who had approached the third respondent-RDD for ratifying the suspension and to extend it beyond fifteen days, leading to issuance of Exhibit P2 by the said Authority, but that without seeking any permission, he has now unilaterally withdrawn the suspension and has allowed the petitioner to rejoin duty on 29.03.2019. She contended that since the provisions of the KER make it clear that only the authority which has ratified the suspension is competent to withdraw the same and to order reinstatement of the delinquent employee, the action of the Manager in doing so on his own is without legal sanction and consequently that the fourth respondent was well within his powers to ask him to show cause why action should not be taken against him for having done so. The learned Senior Government Pleader thus pleaded that this writ petition be dismissed. 15. Sri. K. Praveen Kumar, learned counsel for the fifth respondent, in response, submitted that the allegations against the petitioner having not yet been discharged, his challenge to Exhibits P1, P2 and P6 are untenable. The learned Senior Government Pleader thus pleaded that this writ petition be dismissed. 15. Sri. K. Praveen Kumar, learned counsel for the fifth respondent, in response, submitted that the allegations against the petitioner having not yet been discharged, his challenge to Exhibits P1, P2 and P6 are untenable. However, on the aspects relating to Exhibit P5, he submitted that the fifth respondent Manager has acted in consonance with the provisions of the KER because, going by Rule 67(6) of Chapter XIVA thereof, an order of suspension can, at any time, be revoked by the authority which made it. He submitted that since, in this case, the petitioner was placed under suspension by the fifth respondent, he is legally authorised to revoke it, without having to seek permission from any of the Educational Authorities. He thus requested that this writ petition be dismissed with respect to the plea of the petitioner qua Exhibits P1, P2 and P6, but that the challenge to Exhibit P5 be acceded to. 16. The afore narrative of the involved facts makes it limpid that, broadly, there are two aspects for my consideration. For the first, this Court has to decide whether the original suspension and the enquiry now proposed against the petitioner are legally firm and for the second, whether the reinstatement of the petitioner by the Manager, after revoking his suspension, would obtain the imprimatur of the provisions of the KER. 17. On the first issue, I find favour with the submissions of the learned Senior Government Pleader because the petitioner has chosen to challenge Exhibits P1, P2 and P6 more or less exclusively on the basis of the views recorded by a learned Judge of this Court in Exhibit P8 order. However, it is apodictic from the afore-extracted paragraphs of the said order that though this Court has found that the criminal culpability of the petitioner has not been proved from the investigation until that date, liberty was left to the competent investigating agencies to complete the investigation and to file a final report. This does not, in any manner, even indicate that this Court has affirmatively spoken of the innocence of the petitioner and the views recorded in Exhibit P8 are, at the best, prima facie. This does not, in any manner, even indicate that this Court has affirmatively spoken of the innocence of the petitioner and the views recorded in Exhibit P8 are, at the best, prima facie. This is luculent from the final directions in the order to the investigating agency, to conduct a dispassionate and impartial investigation, so as to bring out the truth. 18. I cannot, therefore, accede to the request of the petitioner at this stage to hold that Exhibit P1 order of suspension or Exhibit P2 order of the RDD ratifying it, to be incompetent, nor can I find the proceedings initiated against the petitioner, through Exhibit P6 charge memo, liable to be terminated even before the investigation is completed. The prayers made by the petitioner to such effect are, therefore, repelled, however, clarifying that he will be at liberty to seek it in future, depending upon the fate of the investigation. 19. Needless to say, the third prayer in this writ petition, to direct the respondents to treat the period of suspension as duty, cannot also be considered at this stage. These contentions are also, therefore, left open to be pursued by the petitioner at the appropriate time. 20. The surviving aspect is quad hoc the challenge to Exhibit P5 notice issued by the fourth respondent to the fifth respondent Manager, in which it is recorded that reinstatement of the petitioner is illegal. 21. Before I answer the legal issues involved, I must consider the locus of the petitioner to challenge Exhibit P5, in the light of the afore submissions of the learned Senior Government Pleader. 22. There is no doubt that Exhibit P5 notice has been issued to the Manager, but what is stated therein is that he has no power to reinstate a teacher and that he could have done so only after obtaining permission from the Educational Authorities. Ineluctably, the impact of Exhibit P5 is fully against the petitioner and I cannot, hence, find that he has no locus to challenge it appropriately. 23. Thus, coming to the scheme of KER with respect to the legal sanction stipulated for suspension of teachers, the applicable provisions reside in Rule 67 of Chapter XIVA thereof. 24. The provisions of Rule 67 provide for suspension of a teacher, both by the Manager and by the Government or an officer authorised by it. 23. Thus, coming to the scheme of KER with respect to the legal sanction stipulated for suspension of teachers, the applicable provisions reside in Rule 67 of Chapter XIVA thereof. 24. The provisions of Rule 67 provide for suspension of a teacher, both by the Manager and by the Government or an officer authorised by it. The power of the Manager is available in Rule 67(1), while that of the Government inhabits in Rule 67(2) of Chapter XIVA of the KER. 25. There is, of course, also a third provision, namely Rule 67(3), which deems a teacher to be under suspension if he is detained in custody, in civil or criminal or other proceedings, for a period exceeding forty eight hours, but it has no relevance to this case and hence does not require my consideration. 26. After the statutory provisions authorising suspension of a teacher are so endrafted, Rule 67(6) provides as under: “An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order.” 27. At this juncture, it must be kept in mind that the powers of the Manager to place a teacher under suspension is confined solely to a period of fifteen days, as per the proviso to Rule 67(7), which makes it mandatory that the continuance of the period is possible only with the permission of the competent Educational Officer. Towards this, the Manager is obligated to report the suspension of a teacher to the Educational Officer concerned, which authority is then enjoined to make a preliminary investigation into the grounds of suspension and decide whether it should be allowed to continue or if the teacher must be reinstated. If the said authority finds reasons to continue the suspension, then he has to pass orders permitting it beyond the period of fifteen days. 28. If the said authority finds reasons to continue the suspension, then he has to pass orders permitting it beyond the period of fifteen days. 28. As per an amendment brought in the year 1985, sub rule (8A) was added to Rule 67 to the following effect: “Notwithstanding anything contained in sub-rule (8) the authority who permitted the suspension beyond 15 days or any higher authority may at any time during the pendency of such suspension, review such permission and if such authority is satisfied that the teacher under suspension has to be reinstated in service for reasons to be recorded in writing cancel the permission already ordered under sub-rule (8) and direct the Manager to reinstate the teacher in service. On such order, the Manager shall reinstate the teacher forthwith failing which the provisions in sub-rule (8) will apply in such case.” 29. The sum total of the provisions afore seen is that when a Manager suspends a teacher, he can do it only for fifteen days and its continuance beyond that period shall depend upon the decision to be taken by the competent Educational Officer. While doing so, the Educational Officer can either decline such permission, in which event the teacher will have to be reinstated or can allow continuance of the suspension beyond the period of fifteen days. 30. However, as per Rule 67(8A) Chapter XIVA of the KER, even if the competent Educational Officer grants permission for continuing the suspension beyond fifteen days, it has the power to review such suspension any time thereafter and can cancel it, thus directing the Manager to reinstate the teacher in service. 31. The question at this stage is whether the Manager can, in the teeth of the afore unambiguous provisions, reinstate a teacher of his own, even if the Educational Officer had granted permission to retain the said teacher under suspension for more than fifteen days. 32. As noticed above, the contention of the learned Senior Government Pleader is that it is only the competent Educational Officer who can order reinstatement of the teacher-either at the time when the proposal for continuing the suspension beyond fifteen days is considered or subsequently, if he feels it necessary to review the sanction earlier granted for continuation of the suspension, invoking Rule 67(8A) Chapter XIVA of the KER. 33. 33. The submissions of the learned Senior Government Pleader as afore are not fully acceptable, but not fully, because the provisions of sub-rules (8) and (8A) of Rule 67 Chapter XIVA of the KER, without doubt, encompass the competence of the Educational Authorities to reinstate a teacher-either at the stage when the Manager seeks extension of the period of suspension beyond fifteen days and even later, when the authority itself feels necessary to reinstate the teacher, by reviewing the earlier order granting sanction to continue the suspension. However, nowhere in these provisions is it mandated that the Manager cannot revoke the suspension on his own, particularly when it is conceded that the teacher was suspended validly by him under the provisions of Rule 67(1) Chapter XIVA of the KER. 34. Moreover, Rule 67(6) afore-extracted takes it beyond contest that the authority who made or is deemed to have made the order of suspension is entitled, at any time, to revoke it. This provision has been deliberately drafted into Rule 67 by the Rule making Authority since, as I have already said above, three classes of suspension are provided therein: (a) by the Manager, (b) by the Government or its authorised Officer and (c) through a deeming provision. 35. Hence, when Rule 67 Chapter XIVA of the KER allows the Manager to retain a teacher under suspension beyond fifteen days only after obtaining the permission of the Educational Authorities, it cannot ipso facto construe that after such concurrence is granted, the Manager cannot reinstate the teacher. The mandate of Rules 67(8) and 67(8A) does not say that the Manager cannot reinstate, but only that the Educational Authorities can revoke the suspension, leading to reinstatement of the teacher, at any stage-be that at the time when the Manager seeks its permission for the first time and even after such concurrence is granted. 36. When Exhibit P5 notice is closely examined within the contours of the afore forensic scheme, it is evident that what is stated therein is that the power to review the suspension of a teacher and to order his reinstatement is vested only in the Government and consequently that the action of the Manager in doing so is in error. 36. When Exhibit P5 notice is closely examined within the contours of the afore forensic scheme, it is evident that what is stated therein is that the power to review the suspension of a teacher and to order his reinstatement is vested only in the Government and consequently that the action of the Manager in doing so is in error. I am afraid that the fourth respondent has misconstrued the law in issuing Exhibit P5 notice, since, as I have seen above, it cannot be found from Rule 67 Chapter XIVA of the KER that even when a teacher has been suspended by the Manager it cannot be revoked by him, without seeking the permission of the Educational Authorities-whether it is done within the first fifteen days, during when the suspension operates without need for permission of the said Authorities or thereafter, when it operates only with such concurrence. 37. To ingeminate, Rule 67 of Chapter XIVA of the KER vests power on the competent Educational Authority to either refuse concurrence for continued suspension beyond fifteen days and to review it even after such concurrence is granted, but this does not, in any manner, militate against or derogate the power of the Manager to revoke the suspension of his own under the confines of sub-rule (6) of Rule 67. If it were otherwise, this Rule would become redundant and without any purpose; and it is a well recognised canon of interpretation of Statutes that no provision of an Act or Rule can be read so as to render it redundant or useless. 38. In the afore circumstances, I order this writ petition, repelling the contentions of the petitioner against Exhibits P1, P2 and P6; but setting aside Exhibit P5 notice issued by the fourth respondent. 39. Consequently, the enquiry now initiated against the petitioner through Exhibit P6 Memo of Charges will be completed as per law and depending upon the final orders thereon, the period of suspension suffered by the petitioner will be dealt with by the concerned authorities. 40. It goes without saying that all the contentions of the petitioner, with respect to his suspension, is left open to be pursued by him in future, if it becomes so warranted.