A music teacher challenged his dismissal and two instructors’ qualifications. The court upheld the Executive Director’s disciplinary authority in the Managing Board’s absence, declined interference with the enquiry and dismissal, and accepted Gurukula Vidyabhyasam as a prescribed qualification. Both writ petitions were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944
WP(C) NO. 20717 OF 2017
PETITIONER:
SWAMINADHA PANICKER
AGED 41,
S/O. RAMACHANDRA PANICKER,
MATHEVARUPARAMBIL HOUSE,
ANGADIKKAL SOUTH P.O.,
CHENGANNUR,
ALAPUZHA DISTRICT - 689 122.
BY ADV SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT, CULTURAL AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.2 THE HON’BLE EXECUTIVE DIRECTOR KERALA STATE JAWAHAR BALABHAVAN, THIRUVANANTHAPURAM - 695 001.3 THE CHAIRMAN JAWAHAR BALABHAVAN, THRISSUR UNIT, DISTRICT COLLECTOR, COLLECTORATE, AYYTANTHOLE, THRISSUR - 680 001.4 M.K.VARGHESE EXECUTIVE DIRECTOR, JAWAHAR BALABHAVAN, CHEMBUKAVU P.O., THRISSUR - 680 001.5 THE BOARD OF MEMBERS OF THE DISTRICT COMMITTEE OF THE JAWAHAR BALABHAVAN REPRESENTED BY ITS CHAIRMAN, THRISSUR - 680 001.W.P.(C.) Nos. 20717/2017 & 9562/2018
2
R1 TO R3 BY SMT.K.G.SAROJINI, GOVERNMENT PLEADER
R4 BY SRI.P.RAMAKRISHNAN
BY ADVS.SRI.C.ANIL KUMAR
SMT.ASHA K.SHENOY
SRI.T.C.KRISHNA
SMT.PREETHI RAMAKRISHNAN
SRI.PRATAP ABRAHAM VARGHESE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.08.2022, ALONG WITH W.P.(C.).NO.9562/2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.) Nos. 20717/2017 & 9562/2018
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944
WP(C) NO. 9562 OF 2018
PETITIONER:
SWAMINADHA PANICKER
AGED 41 YEARS
S/O. RAMACHANDRA PANICKER,
MATHEVARUPARAMBIL HOUSE,
ANGADIKKAL SOUTH P.O.,
CHENGANNUR,
ALAPPUZHA DISTRICT-689122.
BY ADV SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS:
1THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,
CULTURAL AFFAIRS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2THE CHAIRMAN
THRISSUR JAWAHAR BALABHAVAN,
THRISSUR DISTRICT COLLECTOR,
COLLECTORATE,
AYYANTHOLE,
THRISSUR-680001.
3 THE HON’BLE EXECUTIVE DIRECTOR KERALA STATE JAWAHAR BALABHAVAN, THIRUVANANTHAPURAM-695011.4 R. V. RAMAPRASAD AGE AND OTHER DETAILS NOT KNOWN TO THE PETITIONER, WORKING AS A VIOLIN INSTRUCTOR, JAWAHAR BALABHAVAN,W.P.(C.) Nos. 20717/2017 & 9562/2018
4
THRISSUR UNIT,
CHEMBUKAVU P.O.,
THRISSUR-20.
5SREEPARVATHI V. S.
D/O. SANKARANARAYANAN V. S.,
WORKING AS A DANCE TEACHER,
JAWAHAR BALABHAVAN,
THRISSUR UNIT,
CHEMBUKAVU P.O.,
THRISSUR-680001.
R1 TO R3 BY SMT.K.G.SAROJINI, GOVERNMENT PLEADER
R4 & R5 BY SRI.P.RAMAKRISHNAN
BY ADVS.SRI.C.ANIL KUMAR
SMT.ASHA K.SHENOY
SRI.T.C.KRISHNA
SMT.PREETHI RAMAKRISHNAN
SRI.PRATAP ABRAHAM VARGHESE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.08.2022, ALONG WITH W.P.(C.).NO.20717/2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.) Nos. 20717/2017 & 9562/2018
5
JUDGMENT
These writ petitions are filed by one and the
same person, an employee of Jawahar Balabhavan Thrissur. W.P.(C.) No. 20717/2017 is filed for quashing Exts.P17, P24 and P35 which are action initiated against the petitioner by the Jawahar Balabhavan, Thrissur Unit and the enquiry conducted. Later, on the basis of said proceedings enquiry was finalized and as per Ext.P37, the petitioner was dismissed from service and thereupon, the writ petition was amended and the petitioner has sought to quash Ext.P37 order of dismissal also. W.P.(C.) No. 9562/2018 is filed by the petitioner challenging the appointment of respondents 4 and 5 therein who are violin instructor and dance teacher respectively, in
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6
Jawahar Balabhavan, Thrissur Unit, on the ground that they are unqualified to be appointed to the said post, since the certificates produced by them are not one issued by State approved institutions. The grievance of the petitioner is that since the petitioner has made complaints on the illegal appointment of the fourth and fifth respondents alone, disciplinary action was initiated against the petitioner. Therefore, the subject matter of both the writ petitions are intertwined, and accordingly the writ petitions were heard together on agreement and propose to pass this common judgment.
The petitioner was working as a music teacher in Jawahar Balabhavan, Thrissur Unit. According to the petitioner, on flimsy grounds and reasons,
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7
proceedings were initiated against the petitioner and he was placed under suspension as per Ext. P24. It is the case of the petitioner that since the enquiry is conducted, and in the enquiry report, it is proposed to have action taken against the petitioner, he is severely aggrieved. According to the petitioner, the apprehension of the petitioner at the time of the filing of the writ petition is justified taking into account the manner in which the proceedings are initiated against the petitioner. It is further submitted that as per Ext.P2 bye-laws, the Jawahar Balabhavan is registered. The Management is vested in a Board of Management composed of 32 members constituted in the manner provided therein. Out of which 8 members are nominated by
the Government of whom one will be the District Collector and he will be the Chairman of the Board
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8
and eight members are to be nominated by the Municipality of whom one will be the Chairman of the Municipal Council, apart from other members nominated by the District Collector Thrissur, and the the member of the Parliament and Assembly, of the Thrissur Parliamentary and Assembly constituencies. The term of the Managing Board shall be for a period of five years with an option for replacement. It is the case of the petitioner that as per clause 16 of the bye-laws, disciplinary powers are vested with the Executive Director and among other things to suspend the employee for grave misconduct, indiscipline, offences involving moral turpitude etc.; and after suspending the employee, regular charges can be framed against him and an enquiry to be conducted by the Executive Director; and if the charges are proved, the Executive Director has
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powers to dismiss or remove any employee from the service for proven offences. According to the petitioner, the petitioner was appointed as a music teacher with effect from 11.06.2016, evident from Exts. P5, P6 and P7 communications issued by the Executive Director. On 22.09.2016, the petitioner was issued with Ext. P8 memo in which it is stated that on 18.09.2016, after 11.25 A.M. till 01.15 P.M., the petitioner without doing the duty of teaching, went home, and therefore, he was called upon to offer explanation in that regard before 11.00 A.M. on 24.09.2016. It is submitted that a reply was given. Later, on 02.11.2016 as per Ext. P10 the Executive Director has sought explanation from the petitioner within twenty four hours in respect of a complaint filed the party respondents in the connected Writ Petition, stating that the petitioner over telephone
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has informed the Executive Director that they have made a complaint that the petitioner has spoken about the bad behaviour of the Principal and the Director and when questioned, the petitioner has behaved badly and angrily and threatened them. Petitioner had given a reply to the same. Again petitioner was served with Ext. P12 letter alleging that the petitioner has spoken badly about others and sought explanation, to which also petitioner has submitted a reply. Still later petitioner was served with Ext. P14 letter by the Executive Director that the party respondents have filed a complaint that the petitioner has spoken badly about them and their classes to the students, parents and others, to which also the petitioner has given a reply. It seems the 5th respondent in the connected writ petition namely, Sreeparvathy V.S. has filed a complaint
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11
before the Inspector of Police, Thrissur East Women Police Station complaining that bad advances with sexual gestures are made towards her, and spoken bad about her which has caused mental agony to her and apparently she has made complaints with Executive director also. Similarly the 4th respondent in the connected writ petition has also filed Ext. P18 complaint that he was abused by the petitioner over phone. According to the petitioner, two teachers have lodged a complaint against the petitioner and after securing a copy of the complaint, the petitioner could understand that the complainant in Ext.P16 complaint has filed several complaints against the petitioner, not only before the authorities of the Balabhavan, but to the Inspector of police, Thrissur, East Women Police Station. Anyhow, charges were framed, petitioner has filed
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reply; however being dissatisfied by the reply, he was suspended; an enquiry was conducted by appointing an enquiry officer; petitioner was found guilty of the charges; and it is on the basis of enquiry report and securing explanation from the petitioner by the Executive Director, that Ext.P37 dismissal order was passed by the Executive Director- the fourth respondent.
W.P.(C.) Nos. 20717/2017 & 9562/2018
misbehaviour, he was dismissed from service. According to the petitioner, allegations made against the petitioner are malafide in nature and they are very vague. It is further contended that the petitioner is targeted because his mother made an application for getting information as to the status of the two teachers namely, respondents 4 and 5 in the connected writ petition pertaining to their qualification. That apart, it is contended that respondents 4 and 5 seem to be very close to the fourth respondent - M.K. Varghese, the Executive Director and therefore, mala fides is writ large on the face of the record in the administrative action that has taken place in the instant case. That apart it is contended that no action should not have been taken against the petitioner since the fourth respondent did not have any jurisdiction in the
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absence of Board in the office and the tenure of the Board was over, and a new Board has not been constituted in terms of Exts.P1 and P2. Other contentions are also raised based on the same.
“3. It is submitted that the employees of Jawahar Balbhavan are governed by Kerala State and District Jawahar Balabhavan Employees Service Rules as per the GO (MS)No.44/97/CAD, dated 31.07.1997. As per the Rules, bylaws are framed for the proper management of the institution. Management of the Jawahar Balabhavan has been vested in a Board of Management consisting of 32 members in the manner provided in the by-law. Eight members are nominated by the Government of whom one will be the District Collector and Chairman of the Board Eight
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15
members are to be nominated by the Thrissur Corporation and 6 members are to be nominated by the District Panchayath. Seven members are to be nominated by the District Collector, Thrissur, another member is to be nominated by the Central Board of the Jawaharlal Nehru Memorial Fund, New Delhi and the last 2 are members of Thrissur Parliamentary and Thrissur Assembly Constituencies. Executive Director has been elected from the Board of Management and powers are conferred on him to carry out the functions of the Balabhavan. The last Managing Board was constituted as per the GO.331/11/CAD, dated 15.06.2011 and G.O.572/11/CAD, dated 18.11.2011 of Cultural Affairs (A) Department (Exi.P3 and P4).
4. The petitioner is a music teacher in the Jawahar Balabhavan. He was appointed in 11.06.2016 as per the letter No.17/2016-17, dated 11.06.2016 of the 4th respondent, Executive Director, Jawahar Balabhavan.
5. As per the letter dated 13.12.2016, Executive Director of Jawahar Balabhavan had reported that petitioner behaved indecently by making sexual gestures against the dance teacher Smt. Sreeparvathy and requested to take necessary action to terminate the petitioner from the service. It was also stated that a complaint of the Smt. Seeparvathy was forwarded to the Sub Inspector of Police, Thrissur (East) for further action.
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6. The mother of the petitioner also submitted a petition on 10.01.2017 stating that from the date of joining the service Sri. Ramaprasad, Principal of the Jawahar Balabhavan and dance teacher Smt. Sreeparvathy mentally harassed the petitioner and requested to provide protection to the petitioner. Petitioner had also filed petition on 11.01 2017 (Ext. P2) to conduct enquiry so as to enable him to continue his service in Jawahar Balabhavan. Executive Director informed District Collector, Thrissur that petitioner was suspended on 14.01.2017.
7. For considering the petition of
Smt. Sreeparvathy and petitioner a hearing was conducted on 15.03 2017 by the Additional District Magistrate. Petitioner had stated that Police enquired the matter and no criminal case was registered against him as the allegations are false. Petitioner also stated that he moved an anticipatory bail before the District Sessions Court, Thrissur and that the same was disposed of stating that no crime is registered against him. The order of the District Sessions Court, Thrissur, dated 03.03.2017 in Crl. M.C. 59/2017 also produced (Ext.P19).
8. As per the Kerala State and District Kerala Service Rules suspension of the staff may be ordered either by Managing Board or by the Executive Director. The authority competent to impose the punishment of dismissal is
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the Managing Board after framing definite charges and inquiry. It is also stated that the employee shall be given an opportunity for being heard.
9. As per the Bye-law the term of the Managing Board will be for 5 years. It also provides that the representatives of the District Council and Corporation Council shall continue to hold office until newly elected members take charge. On the perusal of the Government Order stated above, it seems that the term of the Managing Board has expired. Steps have been taken to reconstitute the Managing Board by sending letters to Mayor, Thrissur Corporation and District Panchayath President on 03.04.2017. Nomination has been received from Thrissur Corporation and nomination from District Panchayath is yet to be received.”
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basic contention is that respondents 4 and 5 are having no qualification since Exts.P2 and P3 certificates would show that the institutions namely V.S.B. Memorial Music School, Thiruvambadi, Thrissur and Natana Niketanam, Trichur are not Government approved institutions.
by the petitioner. Paragraphs 5 to 9 of the counter affidavit are extracted hereunder:-
“5. It is submitted that the 4th Respondent R.V. Ramaprasad has been working as a violin instructor since 29/4/1991. He has been appointed as permanent violin instructor by the Management Board of Bal Bhavan by due process W.e.f 29/4/1991. The Qualification prescribed for the violin instructor by then Management Board apart from the degree, diploma in the concerned subject Gurukula Sampradhaya course also considered. The violin instructor
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R.V. Ramaprasad successfully four years course of study and practice under Gurukula Sampradhaya in violin and has been declared to have obtained proficiency in the Art and placed in first class from the institution, V S B Memorial Music School, Subrahmania Kalaksethram, Thiruvambadi, Thrissur dist. The institution was registered under Kerala Sangeetha Nadaka Academy vide registered NO. 117/TCR/88. Till 1997 there was no service rules prescribed by the govt. to the employees of Bal Bhavan's in Kerala In 1997 Govt ordered vide GO(MS)44/97/CAD dt. 31/7/97, a detailed Service Rules were prescribed by the Govt. In the G.O. stated above the qualification prescribed for the appointment of faculties vide above para 11 and Annexure to the rules. As per annexure to the rules, the qualification prescribed for instructors as follows:-
| Nam e of post |
Qualification | Method of appointments |
|---|---|---|
| Violi n |
Degree/Diploma/Certificate from an Institution recognized by govt. in the respective subject or Gurukula vidyabhyasam |
By direct recruitment |
| Danc e |
Degree/Diploma/Certificate from an Institution recognized by govt. in the respective subject or Gurukula vidyabhyasam |
By direct recruitment |
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of the Bal Bhavan employees, it is clearly stated that for the direct recruitment Gurukula Vidhyabhyasam can be considered as prescribed qualifications. So no irregularities have happened in the appointment of fourth respondent. The Bal Bhavan Management Board is observing the existing rules and regulations regarding the appointments of staffs.
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| Name of post |
Qualification | Method of appointment s |
|---|---|---|
| Dance | Degree/Diploma/ Certificate from an Institution recognized by govt. in the Respective subject or Gurukula vidyabhyasam |
By direct recruitment |
8. The petitioner was a Music Instructor with effect from 11/6/2016 and he was dismissed from the Service on 23-62017, in the result of finality of disciplinary proceedings initiated against him on the enquiry on complaint filed by Geetha K.V. (Sweeper), Ramaprasad R.V. (the fourth respondent in the WP) and Sreeparvathy V.S. (fifth respondent). Swaminatha Paniker challenged the dismissal order Before the Hon’ble Hight Court by the writ petition No.20717/2017 which is pending. These actions from the respondent No. 4 & 5 may be provoked the petitioner to file the writ petition.
9. In the year 1997 onwards, The Cultural department was promulgamated the GO(MS) 44/1997 dated 31/07/1997 approved the employee's service Rules of Kerala and District Jawahar Bal Bhavans. The Govt. Order is clearly stated that the date of effect of the rules on the date of the order. In such a situation the actions taken by the Management Board before the Order were legal regular.”
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Ramaprasad has filed a counter affidavit for himself and on behalf of the fifth respondent basically submitting that the allegations made by the petitioner against them and their qualification are unfounded and therefore, there is no requirement for issuing any direction to the Chairman of the Jawahar Balabhavan to consider Ext.P4 representation. Among other contentions, it is stated that the fourth respondent was appointed as a Violin Instructor on 28.04.1991 and subsequently, made permanent on 19.03.1997. The fifth respondent namely Smt. Sreeparvathy V.S. was originally appointed as a dance instructor on a temporary basis on 08.04.1991 and made permanent on 19.03.1997. According to the fourth
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and fifth respondents, they are qualified for the
appointment of instructors in violin, Bharatanatyam, dance etc., since the bye-laws makes it clear that it is not only the Government approved courses a qualification but those who have undergone Gurukula Vidyabhyasam are also qualified to be appointed. The sum and substance of the contention of fourth and fifth respondents is that they are qualified to be appointed on the basis of Ext.P1 Employees Service Rules produced along with the writ petition and the Annexure to the same and even though petitioner has produced Ext.P1 Employees Service Rules, petitioner has not produced the Annexure along with the same which only prescribes the qualifications. Whatever that be, the fourth respondent has produced the Annexure as Ext. R4(a) and submits that since they are having
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the Gurukulam Vidyabhyasam, which is one of the qualifications prescribed under Annexure, they are qualified to be appointed. It is further submitted that they are continuing in the posts from the year 1991 onwards on temporary basis and later, on permanent basis from the year 1997 onwards.
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charges and Ext.P35 enquiry report, it is clear that serious allegations are made against the petitioner however in spite of the service of notice and the charge memo, petitioner has not cared to participate in the enquiry proceedings. The allegation is that the petitioner has spread rumours against the fourth and fifth respondent in W.P.(C.) No. 9562/2018 i.e., Sri. R.V. Ramaprasad and Smt. Sreeparvathy V.S. attributing bad behaviour and inefficiency in teaching among the students, and against the indecent behaviour Smt. Sreeparvathy V.S. has filed a police complaint, also alleging that the petitioner had made bad advances with sexual gestures. The management has examined witnesses and produced documents so as to justify its action. Taking into account the oral evidence of the management witnesses, MW1 to MW3 and
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documents Exts.M1 to M27, the enquiry officer has arrived at a finding that the management has established the charges and petitioner has committed the offences alleged against him in the charge memo issued by the Executive Director. The contention advanced by the petitioner in the writ petition is that the Executive Director did not have power to take disciplinary action against the petitioner and conduct the enquiry through third persons. However, from Ext.P1 Employees Service Rules produced and Ext. P2 bye-laws produced in W.P.(C.) No. 20717/2017, it is clear that the Executive head means the authority empowered by the Managing Boards to administer the respective Balabhavans and includes the honorary Executive Director of the Kerala State Balabhavan and that of the District Balabhavans. It is also equally important
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27
to note that Ext.P2 bye-laws of the Jawahar Balabhavan confer power on the Managing Board, the Office bearers and the Executive Director. The Executive Director is conferred with disciplinary powers as per Clause 16 of the bye-laws which
reads thus:-
“16. DISCIPLINARY POWERS.
(a) The Executive Director can censure, warn or fine any employee of the Balbhavan after calling for the explanation of the employee concerned. He can also suspend an employee for grave misconduct, indiscipline, defiance of authority or offences involving moral turpitude. After suspending the employee, regular charges will be framed against him and an enquiry conducted by the Executive Director . The Executive Director will record his findings after the accused is given facilities for defending himself, including a personal hearing. If the finding is that the charge or charges have been proved the Executive Director will have the power to dismiss, or remove from the service any employee for proven offences. He can also stop the increments or reduce the grade of an employee.
(b) An employee who has been dismissed, removed from service, degraded or whose increments have been out may appeal against the punishment to the Managing Board.
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(c) An appeal should be preferred within 30 days from the date of receipt of the communication by the employees concerned.
(d) No appeal shall lie against a punishment, warning censure or fine.”
Therefore, it can be seen that the contention raised by the petitioner that the Executive Director has no power to dismiss an employee is not at all sustainable. This I say because even in the absence of a Managing Board, discipline will have to be maintained in an institution and if the contention
raised by the petitioner is accepted, in the absence of the Managing Board, the employees of the Jawahar Balabhavan can become unruly and no action can be taken against them by the Executive Director in power. In order to maintain discipline, definitely the powers conferred on the Executive Director has to be exercised by the Executive Director, in order to meet any emergent situations
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of indiscipline arising in the institution. Rule 31 of the Employees Service Rules makes it clear that every employee shall maintain absolute integrity and devotion to duty and every employee shall abide by the rules of the Balabhavan and orders and directions of superior authorities. It is also stipulated thereunder that every employee shall extend utmost courtesy and attention to all persons with whom he/she has to deal with in the course of his/her duties and further that every employee shall endeavor to promote the interests of the Balabhavan and shall not act in a manner prejudicial thereto. Rule 35 of the Employees Service Rules deals with suspension which specifies that a member of the staff may be placed under suspension by the Managing Board or by the Hony. Executive Director/Hony. Administrative officer;
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when disciplinary action against him/her is
contemplated or pending.
deals with the authority competent to impose penalties which specifies that the Hony. Executive Director in regard to the teaching staff and the
Hony. Administrative officer in regard to the administrative staff shall impose the penalty mentioned in items (i), (ii) and (iii) after the
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employee is informed in writing of the action proposed to be taken; the allegations based on which it is proposed to be taken and also after giving an opportunity to make any representation for his/her defence including a personal hearing, if so desired. It also specifies that the Managing Board may impose the penalty under items (iv), (v) and (vi) after;
considered by the Managing Board. It is relevant to note that Ext. P17 decision was taken on the basis of a Director Board meeting with the available members held on 30.12.2016 and it was decided to conduct necessary enquiry on the basis of complaint
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submitted by Sri. R.V. Ramaprasad and Smt. Sreeparvathy V.S. to which the petitioner has
submitted Ext.P18 reply to the Chairman of the Balabhavan, Thrissur. i.e., the District Collector. It is also evident that petitioner was served with Ext.P20 charge sheet on 07.01.2017 clearly specifying the charges against the petitioner to which also the petitioner has submitted Ext.P21, P22, P23 replies and it was thereafter, that Ext. P24 order of suspension was passed on 14.01.2017. Ext.P27 is a notice issued by the Enquiry Officer requesting the petitioner to participate in the enquiry instituted against the petitioner, failing which it was indicated that the enquiry will be conducted ex-parte and report will be submitted accordingly. Ext.P35 enquiry report makes it clear that the charge memo was given by the Jawahar Balabhavan and enquiry
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was conducted on the basis of a decision taken by the available Board of the Balabhavan. That apart as per the Employees Service Rules and the bye-law produced as Exts.P1 and P2 respectively by the petitioner would show that the suspension can be made either by the Managing Board or by the Executive Director. In my view, both the bye-laws and the Employees Service Rules have to be read harmoniously and if done so, it can be safely concluded that when the Managing Board is in power, in accordance with the provisions of the Employees Service Rules, the Managing Board has to necessarily issue the charge and impose the punishment in accordance with the provisions of the Employees Service Rules discussed above. However, if the Managing Board is not in power, then necessarily the institution has to be
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administered by exercising the powers conferred on the Executive Director as per the bye-laws and the service rules constituted for the purpose of Managing the Jawahar Balabhavan. This is exactly what is done by the Executive Director by initiating disciplinary action against the petitioner in- absentia of the Managing Board, which is an extraordinary situation prevailing in the institution. In that view of the matter, it cannot be said that the action of the Executive Director apparently in consultation with the available members of the Board cannot be said to be bad or illegal. It is true that the authority competent to impose the punishment of dismissal as per the service rules is the Managing Board after framing definite charges, conducting enquiry,and after providing an opportunity of being heard. It is also evident that as per the bye-laws, the term of
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the Managing Board will be for five years and it also provides that representatives of District Council and Corporation Council shall continue to hold the office until newly elected members take charge. A perusal of the Government Order shows that by virtue of a Government Order term of the Managing Board has expired. However, steps have been taken to reconstitute the Managing Board only. Anyhow, the enquiry was conducted on the basis of a definite charge given by the Executive Director, and the Executive Director who was in the helm of affairs as per the bye-laws was managing the Balabhavan with the aid and assistance of the District Collector, and the councillors and other members to continue till such time the Board is duly constituted. Merely because the Board was not available for taking a decision, the regular activities and the management
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of the society cannot come to a grinding halt. It is
also an extraordinary situation where the available director board had to take a decision in the serious nature of the complaints received from the teachers and other staff. It was on the basis of serious complaints raised against the petitioner that the proceedings were initiated against the petitioner. Therefore, in my considered opinion having given full opportunity to the petitioner to defend the charges raised against him and the petitioner having failed to participate in the enquiry cannot later turn around and attack the action initiated against him by the Executive Director who was vested with powers to take disciplinary action, suspension etc. as per Ext.P1 Employees Service Rules and Ext.P2 bye-laws. To put it short, no manner of prejudice has been caused to the
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petitioner merely because the Managing Board was not available at that point of time since fullest opportunity was provided to the petitioner to defend the charges. Even though as per the bye-law the Executive Director is conferred with the power to conduct enquiry by himself that by itself will not saddle the said authority to conduct an enquiry through a duly constituted person, which would not cause any manner of prejudice to the delinquent employee .
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produced along with the counter affidavit filed by the fourth and the fifth respondents in the said writ petition that the qualifications required for instructors such as Mridangam/Classical Music/Light Music/ Veena/ Guitar/Folk Dance/ Violin/ Tabla/ Harmonium/ Bharatanatyam/ Kathakali is Degree/Diploma/Certificate from an Institution recognised by Government in the respective subject, or Gurukula Vidyabhyasam.
W.P.(C.) Nos. 20717/2017 & 9562/2018
39
Therefore,the contention advanced by the petitioner that the respondents 4 and 5 are unqualified to be appointed in the respective posts cannot be sustained under law. Moreover, they were holding their respective posts temporarily from the year 1991 and permanently from the year 1997 and they are in a settled position in service .
Upshot of the above discussion is that both the writ petitions are dismissed.
Sd/-
SHAJI P. CHALY
JUDGE
DCS/29.07.2022
W.P.(C.) Nos. 20717/2017 & 9562/2018
40
APPENDIX OF W.P.(C.) NO. 20717/2017
PETITIONER EXHIBITS
EXHIBIT P1A TRUE COPY OF THE GOVERNMENT ORDER
DATED 31.7.1997.
EXHIBIT P2A TRUE COPY OF THE BYELAW OF THE
JAWAHAR BALABHAVAN, THRISSUR DATED
26.8.92.
EXHIBIT P3A TRUE COPY OF THE ORDER PASSED BY THE
FIRST RESPONDENT DATED 15.6.2011.
EXHIBIT P4A TRUE COPY OF THE ORDER PASSED BY THE
FIRST RESPONDENT DATED 19.11.2011.
EXHIBIT P5A TRUE COPY OF THE COMMUNICATION OF THE
FOURTH RESPONDENT DATED 1.1.2016.
EXHIBIT P6A TRUE COPY OF THE ORDER PASSED BY THE
FOURTH RESPONDENT DATED 25.5.2016.
EXHIBIT P7A TRUE COPY OF THE ORDER PASSED BY THE
FOURTH RESPONDENT DATED 11.6.2016.
EXHIBIT P8A TRUE COPY OF THE MEMO SERVED ON THE
PETITIONER DATED 22.9.2016.
EXHIBIT P9A TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER DATED 22.9.2016.
EXHIBIT P10A TRUE COPY OF THE COMMUNICATION OF THE
FOURTH RESPONDENT DATED 02.11.2016.
EXHIBIT P11 |
A TRUE COPY OF THE REPLY OF THE |
|---|---|
PETITIONER DATED 03.11.2016. |
EXHIBIT P12A TRUE COPY OF THE COMMUNICATION OF THE
FOURTH RESPONDENT DATED 02.11.2016.
W.P.(C.) Nos. 20717/2017 & 9562/2018
41
EXHIBIT |
P13A TRUE COPY OF THE REPLY OF THEPETITIONER DATED 03.11.2016. |
|---|---|
EXHIBIT |
P14A TRUE COPY OF THE COMMUNICATION BY THEFOURTH RESPONDENT DATED 03.11.2016. |
EXHIBIT |
P15A TRUE COPY OF THE REPLY GIVEN BY THEPETITIONER DATED 05.11.2016. |
EXHIBIT P16A TRUE COPY OF THE COMPLAINT OF THE
DANCE TEACHER TO THE INSPECTOR OF
POLICE, THRISSUR EAST WOMEN POLICE
STATION DATED 27.12.2016.
EXHIBIT P17A TRUE COPY OF THE MEETING OF THE BOARD
OF DIRECTORS OF THE JAWAHAR BALABHAVAN,
THRISSUR DATED 30.12.2016.
EXHIBIT P18A TRUE COPY OF THE COMPLAINT OF ONE
RAMAPRASAD TO THE SECOND RESPONDENT
DATED 02.1.2017.
EXHIBIT P19A TRUE COPY OF THE ORDER PASSED BY THE
SESSION COURT, THRISSUR IN CRL.M.C NO.
59 OF 2017 DATED 03.3.2017.
EXHIBIT P20A TRUE COPY OF THE CHARGE MEMO ISSUED
TO THE PETITIONER DATED 07.1.2017.
EXHIBIT P21A TRUE COPY OF THE REPLY OF THE
PETITIONER DATED 11.1.2017.
EXHIBIT P22A TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER DATED 11.1.2017.
EXHIBIT P23A TRUE COPY OF THE LAWYER NOTICE ISSUED
ON BEHALF OF THE PETITIONER DATED
11.1.2017.
EXHIBIT P24A TRUE COPY OF THE ORDER PASSED BY THE
FOURTH RESPONDENT DATED 14.1.2017.
EXHIBIT P25A TRUE COPY OF THE APPLICATION
W.P.(C.) Nos. 20717/2017 & 9562/2018
42
SUBMITTED BY THE MOTHER OF THE PETITIONER DATED 18.1.2017.
EXHIBIT P26A TRUE COPY OF THE ORDER PASSED BY THE
STATE INFORMATION COMMISSIONER DATED
28.3.2017.
EXHIBIT P27A TRUE COPY OF THE NOTICE ISSUED TO THE
PETITIONER DATED 06.3.2017.
EXHIBIT P28A TRUE COPY OF THE REPLY OF THE
PETITIONER DATED 15.3.2017.
EXHIBIT P29A TRUE COPY OF THE COMMUNICATION OF THE
DISTRICT COLLECTOR DATED 03.4.2017.
EXHIBIT P30A TRUE COPY OF THE FURTHER
COMMUNICATION OF THE SECOND RESPONDENT
DATED 03.4.2017.
EXHIBIT P31A TRUE COPY OF THE COMMUNICATION OF THE
HON'BLE MAYOR, THRISSUR CORPORATION
DATED 12.4.2017.
EXHIBIT P32A TRUE COPY OF THE INFORMATION PROVIDED
BY THE DISTRICT INFORMATION OFFICER,
THRISSUR DATED 15.4.2017.
EXHIBIT P33A TRUE COPY OF THE COMMUNICATION OF THE
SECOND RESPONDENT DATED 16.5.2017.
EXHIBIT P34A TRUE COPY OF THE COMMUNICATION OF THE
PETITIONER TO THE SECOND RESPONDENT
DATED 05.4.2017.
EXHIBIT P35A TRUE COPY OF THE COMMUNICATION TO THE
PETITIONER WITH ENQUIRY REPORT DATED
29.5.2017.
EXHIBIT P36A TRUE COPY OF THE COMMUNICATION OF THE
PETITIONER TO THE FOURTH RESPONDENT
DATED 05.6.2017.
EXHIBIT P37A TRUE COPY OF THE ORDER OF DISMISSAL
W.P.(C.) Nos. 20717/2017 & 9562/2018
43
PASSED BY THE 4TH RESPONDENT DATED
23.06.2017
EXHIBIT P39A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED 25/7/18
EXHIBIT P40A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED 14/3/19
EXHIBIT P41A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED 4/4/19
EXHIBIT P42A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED 12/3/19
EXHIBIT P43A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED 3/12/19
W.P.(C.) Nos. 20717/2017 & 9562/2018
44
APPENDIX OF W.P.(C.) NO.9562/2018
PETITIONER EXHIBITS
EXHIBIT P1 |
A TRUE COPY OFDATED 31.7.97. |
THE |
GOVERNMENT ORDER |
|---|---|---|---|
EXHIBIT P2 |
A TRUE COPY OFCASE OF THE FOU6.4.91. |
THERTH |
CERTIFICATE IN THERESPONDENT DATED |
EXHIBIT P3 |
A TRUE COPY OFIN THE CASE OF23.9.91. |
THETHE |
CERTIFICATE ISSUED5TH RESPONDENT DATED |
EXHIBIT P4 |
A TRUE COPY OFPETITIONER BEFODATED 5.2.2018. |
THERE |
COMPLAINT OF THETHE SECOND RESPONDENT |
EXHIBIT P5 |
A TRUE COPY OF5.2.2018. |
THE |
RECEIPT DATED |
RESPONDENT EXHIBITS
EXHIBIT R4(A) |
TRUE COPY OF ANNEXURE TO EXHIBIT P-3 GO |
|---|---|
EXHIBIT R4(B) |
TRUE COPY OF COMPLAINT DATED 1/11/2016SUBMITTED BY RESPONDENTS 4 AND 5. |
EXHIBIT R4(C) |
TRUE COPY OF COMPLAINT DATED 24/11/2016BEFORE THE EXECUTIVE DIRECTOR BY THE5TH RESPONDENT. |
EXHIBIT R4(D) |
TRUE COPY OF CHARGE MEMO DATED 7/1/2017ISSUED TO THE PETITIONER. |
EXHIBIT R4(E) |
TRUE COPY OF ORDER DATED 23/6/2017ISSUED BY THE EXECUTIVE DIRECTOR,JAWAHAR BAL BHAVAN. |
3 issues framed by the court
Could the Executive Director exercise disciplinary powers and dismiss an employee when the Managing Board was not in power?
Was the disciplinary enquiry invalid because it was conducted through an appointed enquiry officer rather than the Executive Director personally?
Did Gurukula Vidyabhyasam qualify the violin and dance instructors for appointment under the Employees Service Rules?
6 provisions across 2 enactments
SWAMINADHA PANICKER
THE STATE OF KERALA
THE HON’BLE EXECUTIVE DIRECTOR KERALA STATE JAWAHAR BALABHAVAN
THE CHAIRMAN JAWAHAR BALABHAVAN, THRISSUR UNIT
M.K.VARGHESE
THE BOARD OF MEMBERS OF THE DISTRICT COMMITTEE OF THE JAWAHAR BALABHAVAN
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court