Varkey P.J. Vs State of Kerala

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2025:KER:27110

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WP(C) No. 26470 of 2012

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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 P.M.MANOJ

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946

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WP(C) NO. 26470 OF 2012

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PETITIONER :

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VARKEY P.J.

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AGED 58 YEARS

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S/O.JOSEPH, PULLAT HOUSE, CHEMPANODU P.O., PERUVANNAMOOZHY
VIA., KOZHIKODE DISTRICT-673528 (RTD.HSA, CRESCENT HIGH
SCHOOL, ADAKKAKUNDU, MALAPPURAM DISTRICT)

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BY ADV SRI.SUNIL V.MOHAMMED

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RESPONDENTS :

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1 THE STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT,
EDUCATIONAL DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.

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2 THE DEPUTY DIRECTOR OF EDUCATION DOWNHILL P.O., MALAPPURAM -676519.

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3 THE DISTRICT EDUCATIONAL OFFICER, WANDOOR, MALAPPURAM DISTRICT-679428.

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4 THE MANAGER, CRESCENT HIGH SCHOOL, ADAKKAKUNDU, VIA.KALIKAVU, MALAPPURAM DISTRICT-676525.

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5 P. KHALID, RTD.HEADMASTER, PULPADAN HOUSE, PULLANKODE, VIA.KALIKAVU, CHOKAD P.O., MALAPPURAM DISTRICT-676525.

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WP(C) No. 26470 of 2012

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6 THE HEADMASTER,
CRESCENT HIGH SCHOOL, ADAKKAKUNDU, VIA KALIKAVU,
MALAPPURAM DISTRICT-676525.

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BY ADV SRI.R.RAMADAS

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OTHER PRESENT:

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SRI.BINOY DAVIS, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No. 26470 of 2012

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P.M. MANOJ, J

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- - - - Dated this the 19^th day of February, 2025

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JUDGMENT

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The writ petition is preferred challenging Exts.P3, P5, P7, P11, P12 & P21. Ext.P3 is the memo. Ext.P5 is the order of the District Educational Officer for extension of suspension period beyond 15 days. Ext.P7 is the memo of charges. Ext.P11 is the rejection of request for examining 50 teachers. Ext.P12 is the show cause notice and Ext.P21 is the order passed as per the direction in Ext.P19 decision of the Division Bench of this Court.

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Alleging certain irregularity in the conduct of the petitioner, he was suspended from the service of the 4^th respondent School as per Ext.P3. Thereafter the suspension was extended by Ext.P5 order by invoking sub-rules (7) & (8) of Rule 67 Chapter XIV A KER at the request of the Manager, the 4^th respondent. Thereafter, Ext.P7 memo

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of charges was issued to the petitioner. In the light of Ext.P7 the petitioner put forth his reply as per Ext.P8. The petitioner has approached the Deputy Director of Education to reinstate him in service.

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However, his request was concluded citing that his suspension was highly essential for concluding the disciplinary proceedings, and by fixing a time limit for concluding the disciplinary proceedings, his request was rejected. Thereafter, the proceedings were continued. At the request of the petitioner, the enquiry officer was also changed, and the said enquiry officer continued the enquiry, and his request for cross-examining 50 teachers was rejected on the ground that it was his attempt to protract the finalisation of disciplinary proceedings. Thereafter, Ext.P12 show cause notice was issued to the petitioner whereby it was proposed to dismiss the petitioner from service. The petitioner preferred his reply as per Ext.P13. Thereafter he approached this Court by preferring OP No.16375 of 1999. However, this court has not considered the merits of the contention whereas directed to dispose the revision petition preferred by the petitioner.

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Since the punishment proposed is dismissal from service, in

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statutory compliance with Rule 74 of Chapter XIV A KER, the manager approached the Deputy Director of Education. On considering the said application, the DDE has declined permission to impose major punishment like dismissal from service and directed to impose some other lesser punishment by reinstating the petitioner in service. Being

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aggrieved by that the Manager has preferred revision before the Government. By considering the revision, the government revised the punishment imposed by the Manager by barring two increments with cumulative effect and directed him to reinstate the petitioner in service. Being aggrieved by that, the manager has preferred OP No.14188 of 2000.

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By setting aside Ext.P16 Government Order, the writ petition

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was disposed of on the ground that the manager was not given an opportunity to be heard. Being aggrieved by that the petitioner has preferred WA No.1221 of 2000. The writ appeal was disposed of with a direction to the government to reconsider the revision petition. Accordingly, Ext.P17 was issued by reconsidering the revision petition. Wherein it was found that the punishment proposed by the manager was not commensurate with the gravity of offence and government suggested the punishment of barring the increment with cumulative effect for two years and treating the period of suspension as eligible leave. Being aggrieved by that, the petitioner as well as the manager challenged Ext.P17 by filing WP(C) No.10304 of 2001 and 10442 of 2001 respectively.

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Both writ petitions were disposed of by a common judgment whereby OP No.10304/2001 filed by the manager was disposed holding

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that the alternate penalty directed to be imposed by the DDE and government is correct as no major penalty is warranted in the facts of the case. However, the manager was free to take fresh action as to what penalty should be imposed on the delinquent employee and directed to impose one of the minor penalties provided under Rules 65 Chapter XIV A KER. On the other hand, OP No. 10442/2001, preferred by the petitioner herein, was also disposed with a direction to the manager to reinstate the petitioner within a stipulated time, and his period of suspension shall be regularized, in accordance with law. The DDE was directed to consider his claim for salary from the date of reporting to the school in accordance with law. It is further directed that in case it was found that the petitioner was kept out of service unnecessarily by the manager, the salary, if any, ordered to be paid to him may be recovered from the Manager by the DDE.

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Being aggrieved by that, the Manager has preferred two Writ Appeal Nos. 1132/2002 & 1140/2002. The writ appeals were disposed with certain directions, whereby the judgment dated 08.04.2002 of the learned Single Judge was set aside to the extent that it is inconsistent

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with the findings in Writ Appeals. Then Ext.P17 Government Order was quashed. The decision of the DDE to deny permission to impose the

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penalty of dismissal was upheld. The Manager was directed to reconsider the matter. However, the Manager was restricted from imposing any of the penalties other than the penalties mentioned in Rule 64 of Chapter XIV A KER. The Manager was directed to reinstate

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the petitioner within two weeks from the date of receipt of the copy of the judgment. It was further directed to regularise the period of suspension of the teacher. However, it was clarified that these directions will not preclude the teacher from resorting to statutory remedies available to him against the final order to be passed by the Manager in the disciplinary proceedings against him. The challenge against the Division Bench judgment was unsuccessful before the Apex Court. Thereafter by Ext.P21, the Manager, in compliance with the directions in Writ Appeal passed fresh orders, whereby he awarded a punishment of barring increments for two years and the period of suspension was treated as eligible leave. Aggrieved by this, the petitioner preferred Ext.P2 revision before the Government under Rule 92 Chapter XIV A KER. By Ext.P1 order, the revision petition preferred by the petitioner has been disposed of on considering the fact that the

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petitioner retired from service on 31.03.2009. The period between the date of suspension and the reinstatement in duty is decided to be

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treated as duty for the purpose of pension.

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The 3^rd respondent-DEO as well as the 4^th respondent-Manager

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had preferred counter affidavits. It is contended in the counter affidavit filed by the 3^rd respondent that the petitioner had retired from service on 31.03.2009. Ext.P3, a memo with respect to the commencement of disciplinary proceedings is not liable to be challenged. Ext.P5 is an order passed by the DEO, under Rule 67 Chapter XIV A KER, granting permission to the manager to keep the petitioner under suspension beyond 15 days. As the petitioner retired from service, the challenge against Ext.P5 has no relevance, and Exts.P7 and P11 are the memo of charges and report of the enquiry, not amenable to any challenge. Since it has already culminated in punishment, and those punishments and the punishment imposed by the manager have undergone judicial scrutiny as per Ext.P18 and P19, finally, in compliance of the directions of the Division Bench judgment, Ext.P21 order imposing punishment

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was issued. The petitioner has preferred revision before the Government and the Government has considered and passed an order in the revision preferred under Rule 92. The period of suspension was

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regularised by holding that the period between 07.02.1996 and 26.03.2003 was ordered to be counted for pension treating it as duty

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and the period from that date till 28.12.2008 was declared to be the period during which he was on duty or is to be counted as eligible leave in terms of Rule 56(v) (9) of Part I KSR. Therefore, none of the prayers raised in the writ petition cannot be pressed.

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Similarly, the 4^th respondent has also submitted that in view of the various government orders and judgments of this Court, produced by the petitioner, it is clear that charges levelled against the petitioner were proved and the Manager is justified in imposing the penalty as per Ext.P21. The respondents 4 to 6 acted strictly in compliance with the provisions of the Kerala Education Act and Rules, and there was no attempt on their part to deliberately keep the petitioner under suspension for an indefinite period. The action of the Manager was upheld by the educational authority, the government as well as this Court. However, it restricted the Manager from imposing minor punishment under Rule 65 Chapter XIV A KER. That is quite evident

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in Ext.P19 judgment. Thereafter, the petitioner preferred revision under Rule 92 against Ext.P21 and on considering the revision petition, i.e., Ext.P2, the government passed Ext.P1 order. But, the petitioner

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has not raised any challenge against Ext.P1, however, he challenged the orders from the memo to the final order of imposing punishment as per Ext.P21. This cannot be permitted even after availing his remedy under Rule 92, without challenging the same.

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I have heard Sri.Sunil V. Mohammed, learned counsel for the petitioner, Sri.Binoy Davis learned Government Pleader for the official respondents and Sri.R.Ramadas, learned counsel for the 4^th respondent.

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The learned counsel for the petitioner contended that though the disciplinary proceedings is culminated in Ext.P21, in the light of the directions given by the Division Bench in Ext.P19 judgment, he is entitled to challenge the entire proceedings behind Ext.P21 which is not yet concluded. Since the revision petition preferred by the petitioner raises allegation against the disciplinary proceedings, without considering the same, Ext.P1 was issued confirming the punishment imposed by the Manager with slight modification with respect to treating the period of suspension. In support of his contention, it is submitted that the entire challenge raised against Exts.P18 and P19 is with respect to the proceedings under Rule 74 of Chapter XIV A KER. This court has not considered the alleged

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irregularities in the enquiry conducted by the educational authorities. It is also contended that, the petitioner even now reserved with the right to challenge Ext.P21 under Rule 80, has brought the attention of this Court to the reported decision in Muhammed v. Secretary to Government [2003 (2) KLT SN 34] i.e. none other than Ext.P19 judgment wherein as stated above, power under Rule 74 was considered by the Court and found that the educational authority cannot suggest imposing an alternative penalty and government cannot pass an order under which subordinate authority could not have legally passed. Similarly, a reported decision in Seetharam Upper Primary School v. State of Kerala [2012 (2) KLT 338] whereby contended that while conducting enquiry, principles followed for conducting the enquiry against a government servant should be mandatorily followed.

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The counsel for the petitioner also brought the attention of this Court to the reported decision in Meenakshi P. v. State of Kerala & Others [2020 (5) KLT 166] to substantiate that the manager is bound to pay the amount that has been disbursed to a teacher or nonteaching staff, if failed to reinstate the teacher or nonteaching staff in service in spite of specific direction by the educational officer on the

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basis of its preliminary investigation. However, unfortunately, I could not relate this decision to the facts involved in this case. Primarily, Ext.P21 was issued by the 4^th respondent in compliance with the direction contained in the judgment of the Division Bench as per Ext.P19. Even thereafter the challenge raised by the petitioner against the enquiry proceedings prior to the Division Bench judgment cannot be countenanced. In that regard, it is submitted by the counsel for the petitioner that in WA No.1242 of 2015 and WP(C) No. 30422 of 2013 between Ribin K.A. and State of Kerala and others , the petitioner tried to establish that there is a finding in the judgment that, depending on the outcome of the writ petition, the manager will have to issue fresh proceedings, and on the issue of such proceedings it is for the delinquent to seek appellate remedy that is available to him under Rule 80 of Chapter XIV A KER and in that proceedings it will be open to the appellant to canvass the correctness or otherwise of the enquiry and the findings of the enquiry officer which ultimately culminated in the order of punishment. I cannot accept this position with respect to the facts of this case.

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Going by Ext.P19 judgment of the Division Bench, this court has meticulously examined the procedure conducted during the

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disciplinary proceedings specifically stressing the procedure adopted under Rule 74 Chapter XIV A KER. Moreover, the disciplinary proceedings undergone by the petitioner has undergone judicial scrutiny at the first instance by Ext.P14. Thereafter, by Exts.P18 and P19, and finally by Ext.P19, the Manager was directed to impose punishment prescribed under Rule 65 Chapter XIV A KER. In compliance with that, the Manager issued Ext.P21. Whereby, barring of increment with cumulative effect for two years was imposed as granted permission by the Division Bench, the petitioner has also challenged the same under Rule 92. As per Ext.P2 that culminated in Ext.P1 by the Government. However, without challenging Ext.P1, the petitioner has challenged the memo, whereby the disciplinary proceedings initiated, Ext.P5 the order of extension of period of suspension, Ext.P7 the memo of charges, Ext.P11 the enquiry report of the educational authority and Ext.P12 the notice proposing punishment finally Ext.P21 order of punishment issued in compliance of the directions in Ext.P21. Since the disciplinary proceedings culminated on the direction issued in Ext.P19, the petitioner is left with a remedy to challenge the same under Rule 80 or Rule 92 of Chapter XIV A KER. The petitioner has exercised this option under Rule 92 and

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obtained an order. Now he turned around to challenge Ext.P21 under Article 226.

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These contentions were opposed by the learned Government Pleader as well as the counsel for the 4^th respondent. The petitioner cannot traverse beyond Ext.P19. He can challenge the proprietress of Ext.P21 in appeal or in revision by invoking Rule 80 or Rule 92 of Chapter XIV A KER. That part is already invoked by the petitioner by preferring Ext.P2 and obtained an order as per Ext.P1. However, no challenge is raised against Ext.P1, but he is challenging Ext.P21 and the proceedings prior to Exts.P18 and P19. That can't be permitted at all.

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From the above circumstances, it is clear that the petitioner has availed the remedy available to him under the provisions of KER as well as under the provision of the Constitution of India. Capital punishment was initially proposed by the manager, which was interfered with by the educational authority and directed to reduce the punishment. That part was originally upheld by the learned Single Judge. However, the learned Division Bench though upheld the findings of the learned Single Judge with respect to the quantum of punishment but interfered with the direction to reinstate and payment of salary and

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recovery of salary from the Manager. The Division Bench also directed that the manager can impose any other penalties mentioned in Rule 65

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Chapter XIV A KER.

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Under the aforementioned circumstances, I do not find any

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reason to grant the reliefs sought in the writ petition. Accordingly, the

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Writ Petition fails and is dismissed.

Sd/-

P.M.MANOJ

JUDGE

ttb

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APPENDIX OF WP(C) 26470/2012

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 PETITIONER’S EXHIBITS :

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 Exhibit P1 TRUE COPY OF THE ORDER DATED 17.01.2012 OF THE
1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE REVISION PETITION DATED
16.03.2009 FILED BEFORE THE GOVERNMENT.
Exhibit P3 TRUE COPY OF THE MEMO DATED 10.01.1996 OF THE
4TH RESPONDENT.
Exhibit P4 TRUE COPY OF THE EXPLANATION DATED 23.02.1996
SUBMITTED BY THE PETITIONER TO THE 4TH
RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER DATED 19.02.21996 OF
THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF THE MEMO OF CHARGES DATED
30.05.1996.
Exhibit P8 TRUE COPY OF THE PETITIONER’S REPLY DATED
10.12.1996.
Exhibit P9 TRUE COPY OF THE ORDER DATED 29.07.1997 OF THE
2ND RESPONDENT.
Exhibit P10 TRUE COPY OF THE ORDER DATED 08.07.1998 OF THE
DIRECTOR OF PUBLIC INSTRUCTIONS,
THRIRUVANANTHAPURAM.
Exhibit P11 TRUE COPY OF THE ENQUIRY REPORT DATED
15.10.1998 OF THE DISTRICT EDUCATIONAL
OFFICER, TIRUR.

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Exhibit P12 TRUE COPY OF THE SHOW CAUSE MEMO DATED
10.11.1998 OF THE 4TH RESPONDENT.

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Exhibit P13 TRUE COPY OF THE EXPLANATION DATED 14.12.1998
SUBMITTED BY THE PETITIONER.
Exhibit P14 TRUE COPY OF THE JUDGMENT DATED 22.07.1999 IN
OP No.16375/1999.
Exhibit P15 TRUE COPY OF THE PROCEEDINGS DATED 10.12.1999
OF THE 2ND RESPONDENT.
Exhibit P16 TRUE COPY OF THE GO(Rt) No.1405/2000/G.EDn.
DATED 06.04.2000 ISSUED BY THE GOVERNMENT.
Exhibit P17 TRUE COPY OF THE GO(Rt) No.848/2001/G.EDn.
DATED 02.03.2001.
Exhibit P18 TRUE COPY OF THE JUDGMENT DATED 08.04.2002 IN
OP No.1044/2001.
Exhibit P19 TRUE COPY OF THE COMMON JUDGMENT DATED
26.03.2003 IN WA No.1132/2002 AND WA
No.1140/2002.
Exhibit P20 TRUE COPY OF THE ORDER DATED 09.04.2004 IN SLP
No.7384/2003 AND 7385/2003.
Exhibit P21 TRUE COPY OF THE PROCEEDINGS DATED 31.12.2009
OF THE 4TH RESPONDENT.
Exhibit P22 TRUE COPY OF THE ENQUIRY REPORT DATED 15.10.1998 OF
THE DISTRICT EDUCATIONAL OFFICER, TIRUR, WHICH HAS
BEEN FORWARDED TO THE PETITIONER AS PER COVERING
LETTER DATED 06.11.1998 OF THE 4TH RESPONDENT.

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//TURE COPY//
 Sd/-
 P.S. TO JUDGE

Varkey P.J. v. State of Kerala

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Varkey P.J. v. State of Kerala

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