Allowed

The Manager v. State of Kerala

Kerala HC2 Jun 2017WP(C)/6881/2015

Case brief

AI extract

What is this about?

The Kerala High Court addressed a writ petition filed by a school Manager challenging directions in an inquiry report recommending reinstatement and a minor penalty for a suspended teacher. The Court held that an inquiring authority lacks jurisdiction to recommend the nature of penalty or order reinstatement. The inquiring authority's findings are binding only on factual issues, while the Manager

What did the court decide?

The writ petition was allowed. The inquiring authority's recommendation for minor penalty and reinstatement was declared incompetent. The Manager was directed to complete proceedings within two weeks

The Manager Vs State of Kerala — Service and Employment | Kerala HC (2017)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939

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WP(C).No. 6881 of 2015 (I)

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PETITIONER(S):

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THE MANAGER, NARIKKUNI AUPS, P.O.NARIKKUNI, KOZHIKODE.

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BY ADV. SRI.R.K.MURALEEDHARAN

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RESPONDENT(S)/RESPONDENTS:

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1.STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM, PIN - 695 001.

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2.THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 020.

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3.THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT - 673 573.

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4.ASSISTANT EDUCATIONAL OFFICER, KODUVALLY, KOZHIKODE DISTRICT, PIN - 673 572.

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5.N.RADHAKRISHNAN (TEACHER UNDER SUSPENSION), SMERA, MADAPPATTIL, NARIKKUNI, KOZHIKODE DISTRICT.

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R1-R4 BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE R5 BY ADVS. SRI.M.V.BOSE

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SRI.VINOD MADHAVAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6881 of 2015 (I)

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APPENDIX

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PETITIONE ---------	R(S)' EXHIBITS --------------
EXT.P1:	A TRUE COPY OF THE 13/02/2012.	ORDER OF SUSPENSION DATED
EXT.P2:	A TRUE COPY OF THE POLICE.	FIR REGISTERED BY THE KODUVALLY
EXT.P3:	A TRUE COPY OF THE	ORDER DATED 27/02/2012.
EXT.P4:	A TRUE COPY OF THE ALLEGATION.	MEMO OF CHARGES AND STATEMENT OF
EXT.P5:	A TRUE COPY OF THE RESPONDENT.	REPLY SUBMITTED BY THE 5TH
EXT.P6:	A TRUE COPY OF THE DATED 11/11/2012.	LETTER ISSUED BY THE PETITIONER
EXT.P7:	A TRUE COPY OF THE RESPONDENT.	ORDER DATED 08/01/2013 OF THE 3RD
EXT.P8:	A TRUE COPY OF THE RESPONDENT DATED 28	ORDER ISSUED BY THE 1ST /12/2013.
EXT.P9:	A TRUE COPY OF THE DATED 25/04/2014.	COMMUNICATION OF THE PETITIONER
EXT.P10:	A TRUE COPY OF THE RESPONDENT DATED 30	ENQUIRY REPORT BY THE 2ND /12/2014.
EXT.P11:	A TRUE COPY OF THE	CHARGE SHEET IN CC 268/2012.

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RESPONDENT(S)' EXHIBITS

NIL

TRUE COPY

P.S. TO JUDGE

C.R.

DEVAN RAMACHANDRAN, J.

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W.P. (C) No.6881 of 2015

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Dated this the 2^nd day of June, 2017

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J U D G M E N T

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The procedure for imposition of major penalties on a teacher under the provisions of the Kerala Education Rules (KER) is contained in Rule 75 of Chapter XIVA thereof. As per its mandate, once the Manager is satisfied that there is a prima facie case for taking action against a teacher, certain imperative procedure will have to be followed including issuance of charge-sheet, obtaining explanation from the teacher, etc., finally leading to an inquiry, if the Manager is of the view that such is required.

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Once the Manager decides that a formal inquiry is to be held into the conduct of a teacher, he/she is obligated to forward the records of the case to the competent educational authorities with a request that such inquiry be conducted. The inquiry is to be thus initiated by the concerned competent

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W.P.(C) No.6881/2015

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authority, through an Inquiring Authority appointed by it and after conclusion of the same a report is mandated to be made by the said Inquiring Authority, which shall be forwarded to the Manager. The Inquiry officer is thus forensically obligated to make a report and present the same adhering to the terms of Rule 75(8) of Chapter XIVA KER, which reads as under:

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“ 75. Procedure for imposing major

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penalties:-

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xxxxxx

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(8) At the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with the reasons therefore. If in the opinion of such authority the proceedings of inquiry establish charges different from those originally framed, it may record its findings on such charges provided that findings on such charges shall not be recorded unless the teacher has admitted the facts constituting them or has had opportunity of defending himself against them”.

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The Manager, thereafter, if is of the opinion that any

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of the penalties as specified in the KER is required to be imposed, he will have to follow certain specified procedure for

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W.P.(C) No.6881/2015

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such purpose as is mandated therein. The manner of and the contents of the records of inquiry has also been specifically defined under the provisions of the KER in sub-rule (9) of Rule 75 of Chapter XIVA. Therefore, it is luculent that the Inquiring Authority has to present a recorded inquiry to the Manager in the manner as above, which contains certain specific documents as are enumerated in sub-rule (9) of Rule 75 (supra).

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In the case at hand, the Inquiring Authority, while preparing and presenting the record and report of the inquiry to the Manager, made an explicit recommendation that the Manager shall not impose any major penalty on the teacher. It is this singular recommendation in the report of the inquiry that has constrained the Manager to approach this Court on the assertion that such recommendations are incompetent and cannot be imposed against him and that it amounts to prejudging of the whole issue. The Manager, who is the petitioner in this case, assails the recommendations of the Inquiring Authority as being incompetent and beyond the powers and jurisdiction vested upon him under the mandate of sub-rules

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W.P.(C) No.6881/2015

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(8) and (9) of Rule 75 of Chapter XIVA KER.

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I am called upon in this writ petition to consider an issue within a limited compass as to whether the Inquiring Authority can in any manner restrict the power of the Manager to impose penalties, as he may choose fit, while presenting the inquiry report and records.

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An apercus of the essential facts involved are as under:

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As noticed above, the petitioner is the Manager of the school who initiated disciplinary action against one of the teachers of the school namely, the 5^th respondent herein. The 5^th respondent was initially placed under suspension for 15 days which was thereafter allowed to be continued under orders of the Assistant Educational Officer as per Ext.P3.

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While the 5^th respondent thus continued under suspension, disciplinary action was sought to be completed against him. Several proceedings were initiated by the parties in the meanwhile which, according to me, are not relevant for adjudication of the matter but I notice that the teacher had made several statutory attempts for having his suspension

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W.P.(C) No.6881/2015

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terminated under the provisions of the Kerala Education Rules. These attempts finally ended in Ext.P8 order issued by the Government under which directions were given by the Secretary to the Government to complete the disciplinary proceedings against the 5^th respondent within one week and also to obtain the view of the Manager as to whether he can be reinstated in service pending completion of enquiry. Pursuant to Ext.P8, an enquiry was conducted against the 5^th respondent

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by the Deputy Director of Eduction, Kozhikode and Ext.P10 report was finalised on 30.12.2014.

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The 5^th respondent makes a vehement submission that Ext.P10 order came almost one year after Ext.P8 even though in Ext.P8, proceedings were directed to be completed within one year. Notwithstanding this, the fact remains that in Ext.P10 enquiry report the Deputy Director of Education has concluded that the 5^th respondent is guilty of the allegations of insubordination and violation of discipline but has recommended that he be imposed only a minor penalty by the petitioner. The Deputy Director of Education also ordered in the said report that the 5^th respondent be reinstated after

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W.P.(C) No.6881/2015

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cancellation of his suspension. These directions in Ext.P10 order are assailed by the petitioner in this writ petition.

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I have heard the learned counsel for the petitioner, Sri.R.K.Muralidharan, learned counsel appearing for the 5^th respondent, Sri.Vinod Madhavan and the learned Government Pleader appearing for respondents 1 to 4.

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I do not require to go deep into the allegations contained in the writ petition because I see that the real issues in dispute are technical in nature and are guided by the various provisions of the statute. The factual disputes between the parties are not relevant in adjudication of these issues since when I make an assessment of these controversies, I am only required to see if the provisions of the Kerala Education Rules have been followed and its play on the factual circumstances.

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I notice that the 5^th respondent was placed under suspension and that the suspension was extended in terms of law. His attempts in getting cancellation of suspension ended in Ext.P8 order whereby the proceedings against him was ordered to be expedited and completed within one week. Even though the said order directed reinstatement of the petitioner

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W.P.(C) No.6881/2015

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subject to the opinion of the Manager, he was not so reinstated presumably because the Manager did not agree. Finally, Ext.P10 enquiry report was completed by the Deputy Director of Education wherein the impugned directions have been issued.

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I am now called upon to consider whether the directions contained in Ext.P10 are sustainable in law. There

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are two directions in Ext.P10 that are impugned by the petitioner. First is that the 5^th respondent shall be imposed only a minor penalty. The second is that suspension of the 5^th respondent be terminated immediately and that he be reinstated in service regularising the entire period of suspension. The petitioner says that this is an intrusion into the powers of the Manager as are envisaged under the provisions of the Kerala Education Rules.

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Sri.R.K.Muralidharan, learned counsel for the

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petitioner, vehemently says that once Ext.P10 report concluded that the 5^th respondent was guilty of the allegations against him, it was impermissible for the Deputy Director of Education to even order that he be imposed only a minor

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penalty. He also says that the order directing that the 5^th respondent be reinstated in service immediately and that his period of suspension be regularised is virtually granting imprimatur to the transgressions alleged against him and amounts to giving sanction for the misconduct found against him.

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I find sufficient force in the submissions of Sri.R.K.Muralidharan, learned counsel for the petitioner. The provisions of the Kerala Education Rules is clear that the enquiry report will have to be presented by the Enquiry Authority before the Manager. It is then open to the Manager to decide as to the nature of the penalty that he intends to impose on the delinquent employee. If the Manager takes the view that punishment of compulsory retirement, removal or dismissal from service is to be imposed, he is obligated under Rule 74 of Chapter XIVA KER to seek permission and obtain previous sanction of the competent educational authority as prescribed therein.

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As regards the question of suspension is concerned, it is only an interim arrangement where under the delinquent is

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kept out of service until such time as the enquiry is completed. Viewed from that angle, it is certain that the Deputy Director of Education, who is only an enquiry officer under the provisions of the Kerala Education Rules, could not have made recommendations to the Manager in the enquiry report as to the nature of punishment to be imposed.

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Sri.Vinod Madhavan, learned counsel appearing for the 5^th respondent, on the contrary, asserts that the authorities have also been lax in implementing orders since even though Ext.P8 order directed the authority to complete the proceedings within one week and even though that order is dated 28.12.2013, final report was issued only on 30.12.2014. He, therefore, says that this delay is not on account of the conduct of the 5^th respondent and, therefore, that the 5^th respondent is entitled to be reinstated.

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Sri.R.K.Muralidharan, learned counsel for the petitioner, opposes the above contention and says that the delay was occasioned on account of non co-operation of the 5^th respondent and not for any other reason and he asserts that the Deputy Director of Education himself had to conduct

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an enquiry because the 5^th respondent did not co-operate with the Assistant Educational Officer.

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Notwithstanding the conflicting submissions of the learned counsel on either side, I am of the view that it is now an imperative requisite that an immediate course is prescribed so as to ensure that justice is obtained on either side.

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I am certain that the direction in Ext.P10 report that the Manager shall only impose a minor penalty is completely incompetent and impermissible. The enquiry officer, acting under the provisions of the Kerala Education Rules, does not obtain the jurisdiction to impose or recommend penalties. At best such observations can be seen to be an opinion which is not binding on the Manager and may be treated by him as only being, if not anything else, a recommendation and no more. The Manager will be free to consider the report in its proper perspective and impose punishment as is permitted and warranted under the provisions of the Kerala Education Rules, taking into account the allegations that have been proved or otherwise against the delinquent. It is only when he imposes a punishment of compulsory retirement, removal or dismissal

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from service that he is obligated to go to the Authority for previous sanction under Rule 74 of Chapter XIVA KER.

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Viewed from that angle, I am of the opinion that this writ petition can be ordered in the following manner:

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(i) I direct the Manager to complete the proceedings against the 5^th respondent in terms of Ext.P10 report and issue orders imposing such punishment, as he thinks requisite in the light of the findings in Ext.P10, within a period of two weeks from the date of receipt of a copy of this judgment. I am granting two weeks time to the Manager so as to enable him to issue notice regarding the punishment to the delinquent employee, the 5^th respondent herein, as is required under the provisions of Rule 75 of Chapter XIVA KER. The Manager will have to complete the proceedings within the time granted and if he proposes penalty of compulsory retirement, removal or dismissal from service, he will have to move the appropriate Authority within five days thereafter with an application for such purpose.

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(ii) If the Manager does not complete the proceedings within the period of 15 days granted herein and if he does not

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approach the Authority seeking sanction under Rule 74 of Chapter XIVA KER, which would show his intention to impose compulsory retirement, removal or dismissal from service, against the 5^th respondent, within the further period granted herein, the 5^th respondent will be automatically treated to have been reinstated in service on the expiry of the periods granted by this judgment.

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(iii) I am sure that these directions will help in ensuring that the petitioner is able to exercise the powers vested in him and at the same time making it sure that the 5^th respondent does not suffer on account of any undue delay.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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smp

The Manager v. State of Kerala

Case brief

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The Manager v. State of Kerala

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