Dismissed

A.K.Ebrahimkutty v. State of Kerala

Kerala HC12 Dec 2008WP(C)/4920/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a former school assistant seeking reinstatement and pension. The Court held that compounding of the offense did not amount to an acquittal on merit and upheld the expulsion under Kerala Education Rules due to moral turpitude and molestation allegations. Exercising discretionary power, the writ petition failed.

What did the court decide?

Writ petition dismissed; punishment of removal from service upheld; consequential reliefs denied.

A.K.Ebrahimkutty Vs State of Kerala — Education and Admissions | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930

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WP(C).No. 4920 of 2007(I)

PETITIONER(S):

A.K.EBRAHIMKUTTY, FORMERLY UPPER PRIMARY SCHOOL ASSISTANT, CHERANALLOOR CHURCH U.P.SCHOOL, PERUMBAVOOR, RESIDING AT ANDETH HOUSE, EDAVOOR P.O.

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BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S):

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STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.

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ASSISTANT EDUCATIONAL OFFICER, PERUMBAVOOR.

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MANAGER, CHERANALLUR CHURCH U.P.SCHOOL, PERUMBAVOOR.

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ADV. SRI.TONY GEORGE KANNANTHANAM FOR R4 GOVERNMENT PLEADER SRI.JAISON P. MANGUZHA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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Ext.P1. True copy of the order dated 16.10.1992 of the Manager removing the petitioner from service.

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Ext.P1(a). True copy of the enquiry report given to the petitioner.

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Ext.P2. True copy of the statutory appeal filed by the petitioner against Ext.P1.

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Ext.P3. True copy of the judgment of this Hon'ble Court in O.P.No.17279/1992.

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Ext.P3(a). True copy of the order dated 21.4.1993 of the Deputy Director of Education. Ext.P4. True copy of the judgment of this Hon'ble Court in O.P.No.7122/1994.

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// true copy //

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P.A to Judge.

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ANTONY DOMINIC,J.

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W.P.(C).No. 4920/2007

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Dated this the 12^th day of December, 2008.

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JUDGMENT

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In this writ petition, petitioner seeks to quash Exts.P1 and P11. He also seeks a direction to the respondents to grant service benefits to the petitioner including pension.

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Petitioner was working as UPSA in the Cheranallur Church U.P School, of which the 4^th respondent is the Manager. On the allegation that the petitioner had molested certain girl students studying in the 5^th standard of the school, with effect from 24.11.1990 he was placed under suspension. A memo of charge was served on the petitioner, containing the following allegations.

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“that you working as UPSA in Church UPS, Cheranalloor you were dealing classes for English and Science in Std.V for the year 1990-91 and it was revealed on enquiry that you while scrutinizing the notes of the girls pupils used to regain them very close to your seat and to pinch on their thigh and vagina, inserting your hands inside the undergarments of the

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WP(c).No.4920/2007

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pupils thereby you have committed grave misconduct and violated rule (v) of Chapter XIII and Rule 4 of Chapter XIV of the KER.”

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Accordingly, the AEO conducted an enquiry and

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submitted Ext.P1(a) enquiry report, finding the petitioner guilty of the charges. Accepting the enquiry report, by Ext.P1 order dated 16.10.1992, the 4^th respondent removed the petitioner from service. He filed Ext.P2 appeal to the Deputy Director resulting in Ext.P3(a) order, by which the proceedings were set aside and the matter was remanded to the AEO for fresh enquiry. Manager filed a revision against Ext.P3(a) and the Government passed Ext.P8 order restoring the punishment of removal, ordered by Ext.P1. Against Ext.P3(a) order passed by the Government, petitioner filed O.P.No.8480/1996 before this court and by Ext.P9 judgment, this court directed the Government to reconsider the matter mainly on the ground that Ext.P8 order was passed without issuing notice of hearing to the petitioner.

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In the meanwhile, based on a complaint made against him, a criminal case was charge sheeted against the petitioner alleging offence under Section 354 IPC as CC.No.722/1991 before the Judicial First Class Magistrate Court, Perummbavoor. On trial the petitioner was found guilty and was convicted and was

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WP(c).No.4920/2007 3

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sentenced. The petitioner filed Crl. Appeal No.155/1994 before the Additional Sessions Judge's Court, North Paravur and the appeal was rejected. There upon the petitioner filed Crl. R.P. No.647/1996 before this court. In the Criminal Revision Petition, the petitioner and the victim filed an application seeking permission to compound the offence. Accordingly, the leave was granted by this court and on that basis the offence was compounded and Ext.P10 dated 23.6.2005 is the order passed by this court.

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As directed in Ext.P9 judgment in O.P.No.8480/96, the Government reconsidered the matter and by Ext.P11 order dated 15.11.2006, the punishment of removal imposed by the Manager was upheld. The relevant portion of Ext.P11 order reads as under.

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“On going through the records it is seen that Sri. A.K. Ebrahimkutty, the Teacher was convicted for the offence of moral turpitude under Section 354 IPC on 25.10.1994 in C.C.NO.722/91 by the Judicial First Class Magistrate Court, Perumbavoor and his appeal against the conviction was dismissed on 29.9.1996 in CRL Appeal No.155/94.

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WP(c).No.4920/2007

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The matter has been examined in detail with reference to the relevant rules and facts of the case. Rule 2 Chapter 13 of Kerala Education Rules prohibits the continuance of a Teacher who has been convicted of any offence involving moral turpitude. Rule 4 Chapter 14-C Kerala Education Rules says that every Teacher shall at all times maintain a high example of personal and professional integrity and devotion to duty. Sri. A.K.Ebrahimkutty's case which are the subject matter in this case were in total violation of the above rule. So it appears that there are no valid grounds to reconsider the case.

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In the circumstances, Government hereby order that the punishment of removal from service of Sri. A.K. Ebrahimkutty, Teacher, Cheranalloor Church UPS already ordered by the Manager, under proper authority is just and reasonable and is therefore to stand.”

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WP(c).No.4920/2007

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It is challenging Exts.P1 and P11 and praying for consequential reliefs this writ petition is filed.

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The main contention now raised by the counsel for the petitioner is that since the offence under Section 354 has been compounded, under Section 320(8) of Cr.P.C, it has the effect of acquittal. It is also contended that the enquiry conducted by the AEO is vitiated by violation of principles of natural justice, in as much as the same was conducted without affording the petitioner an opportunity to cross-examine the witnesses whose evidence was collected by the Enquiry Officer. Therefore, according to the petitioner, he should either be reinstated forthwith or at least a fresh and proper enquiry should be ordered.

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In my view, the composition of the offence or that such composition has the effect of an acquittal as per Section 320(8) of Cr.P.C, is immaterial. The charge against the petitioner and the findings in Ext.P1(a) report shows the conduct of the petitioner towards the girls students of his class. It should be remembered that both the trial court and the appellate court accepted the prosecution case against him. This shows that the petitioner is unworthy to be a teacher. Section 320(8) Cr.P.C only provides that composition of offence has “the effect of acquittal” and this is far from a honorable acquittal by a Criminal Court.

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WP(c).No.4920/2007

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Though Section 320(8) of Cr.P.C implies that all the instances attaching to an actual acquittal will be brought into operation by the composition of the offence, it will not be an acquittal on merit. Compounding of offence does not mean that the offence has not been committed or that the court has accepted the innocence of the offender, but only that the victim is willing either to forgive the offender or accept some form of a solatium for what he/she has suffered. Therefore, the fact that the offence has been compounded does not mean that the offender is exonerated of all the blames or that the court has held him innocent of the charges. Any such interpretation will be disastrous especially in a case like this where a teacher who has been found to have molested teen aged girls, is claiming reinstatement in service. The Apex Court in the judgment reported in Kendriya Vidyalaya Sangathan and Another V. Satbir Singh Mahla ( 2008(2) Kerala High Court Cases 137 (HC)) held that a teacher has to be a role model in the society, setting an example for the students. A Division Bench of this court in K.C.Thomas V. State of Kerala and Ors .(W.A. No.35/90) held that, the teachers who molested or attempted to molest minor girls who were studying in the classe do not deserve to continue in service. In this case, the allegation that

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WP(c).No.4920/2007 7

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the petitioner has molested the minor girls in the school, has been proved against him and his appeal was also rejected. Therefore I am not prepared to hold that just because the offence under Section 354 IPC has been compounded, petitioner is innocent of charges, entitling him to claim reinstatement in service.

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As I have already held, the fact that the offence has been compounded does not mean that the petitioner is innocent of the allegations proved against him. Therefore, the view taken by the Government that the petitioner has rendered himself ineligible to continue as a teacher, in view of the provisions contained in Rule 2 of Chapter XIII KER deserves to be upheld. In any case, in the nature of the conduct that has been proved against the petitioner, this court will not be justified in invoking the discretionary jurisdiction under Article 226 of the Constitution of India.

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Writ Petition fails and is dismissed.

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(ANTONY DOMINIC) JUDGE

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A.K.Ebrahimkutty v. State of Kerala

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A.K.Ebrahimkutty v. State of Kerala

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