Minimol. M. vs The Headmistress, The Manager, The District Educational Officer and State of Kerala

Thomas P. Joseph, J.—Admit. These Writ Petitions concern the same issue and hence are being disposed of by a common judgment. Parties and the documents are referred hereunder as in W.P.(C). No. 5424 of 2013.

Petitioner was working as H.S.A. in K.P.S. Menon Memorial Vocational Higher Secondary School, Varode. While so, she applied for leave without allowance for the period from 01.04.2012 to 01.03.2016 to join her husband who is abroad. Since the application was not in order, the same was rejected by the second respondent, the Manager of the school. Petitioner filed W.P.(C) No. 3354 of 2012 and got a direction enabling her to submit a proper application curing the defects and directing the second respondent to forward the same to the Government with his objection, if any. Accordingly, the petitioner submitted an application to the first respondent which in turn was forwarded to the second respondent with objection. The objection was that the application was defective. The second respondent forwarded the application to the State Government. The Government issued Ext. P3, order dated 12.10.2012 granting leave without allowance as prayed for.

In the meantime the second respondent had initiated disciplinary proceeding against the petitioner on various allegations and an enquiry was conducted. The Enquiry Officer found that there was insubordination on the part of the petitioner, but, it is not a grave offence having regard to the peculiar circumstances in which petitioner was placed (the learned Government Pleader would submit pendency of the disciplinary proceeding was not brought to the notice of the Government while Ext. P3, order was passed). The second respondent informed the Government that since disciplinary proceedings are pending, if petitioner goes abroad pursuant to Ext. P3, order that would affect the disciplinary proceeding. Thereon, the Government passed Ext. P11, order dated 28.11.2012 keeping Ext. P3, order dated 12.10.2012 in abeyance.

Petitioner has filed W.P.(C). No. 5424 of 2013 challenging Ext. P11, order and seeking a direction to the authorities to enforce Ext. P3, order dated 12.10.2012.

The second respondent in W.P.(C). No. 5424 of 2013 has filed W.P.(C). No. 9311 of 2013. There, it is stated that the second respondent has preferred a petition before the Government for review of Ext. P3, order (in W.P.(C). No. 5424 of 2013) dated 12.10.2012. Reasons for seeking such review is also stated in the Writ Petition. The second respondent (petitioner in W.P.(C). No. 9311 of 2013) seeks to quash Ext. P11, order dated 28.11.2012. There is also a request to direct the 4th respondent (in W.P.(C). No. 5424 of 2013) to effectively consider and pass orders on the petition for review of the order dated 12.10.2012.

I have heard the learned counsel for the petitioner, respondents 1 and 2 and the learned Government Pleader who appears for the respondents 3 and 4. The learned counsel for the petitioner has submitted that in W.P.(C). No. 5424 of 2013 this Court passed interim order permitting the petitioner to go abroad. That order was challenged by the second respondent in W.A. No. 579 of 2013 but, only to be dismissed. The learned counsel submits that information received is that the said judgment was challenged in the Supreme Court but, without success. On the strength of the interim order passed by this Court and confirmed by the Division Bench in W.A. No. 579 of 2013, petitioner in W.P.(C). No. 5424 of 2013 has gone abroad.

So far as disciplinary proceeding initiated by the second respondent in W.P.(C). No. 5424 of 2013 is concerned, the learned counsel for petitioner invites my attention to Ext. P6 and points out that the charge found against the petitioner is only insubordination which even according to the Enquiry Officer is not a grave nature having regard to the peculiar circumstances in which petitioner was placed. The learned counsel for respondents 1 and 2 submits that it was not for the Enquiry Officer to speak on the gravity of the charge found against the petitioner or suggest the nature of punishment. The learned counsel submits that the same is within the power of the second respondent being the disciplinary authority.

So far as these Writ Petitions are concerned, it is not necessary for me to go into the said question. Let that proceeding have its fate.

I am concerned with Exts. P3 and P11, orders in W.P.(C). No. 5424 of 2013. Though as aforesaid, by Exts. P11, order dated 28.11.2012 the 4th respondent had kept Ext. P3, order dated 12.10.2012 in abeyance, Ext. P11, order has lost teeth and nail. Since in view of the interim order passed in W.P.(C). No. 5424 of 2013 petitioner has gone abroad and thus Ext. P11, order has become infructuous.

What remains is whether as requested in W.P.(C). No. 5424 of 2013 there should be a direction to the respondents 1 and 2 to enforce Ext. P3, order dated 12.10.2012. It is in this connection that the learned counsel for the respondents 1 and 2 has pointed out that the petition for review dated 12.10.2012 is pending and if that review is allowed the entire scenario would change. Whether the petition for review filed by the second respondent before the 4th respondent would be allowed or not is a different question and, that has to be decided by the said authority after hearing the parties affected and in accordance with the law in force having regard to the relevant facts and circumstances. Until the review petition is allowed, Ext. P3, order dated 12.10.2012 should stand since I have already found Ext. P11, order dated 28.11.2012 has become infructuous. Hence subject to the result of the petition for review Ext. P3, order dated 12.10.2012 has to be enforced.

Resultantly these Writ Petitions are disposed of as under:

(I) W.P. (C). No. 9311 of 2013

The first respondent is directed to consider and dispose of Ext. P5, petition for review of the order dated 12.10.2012 (Ext. P4 in W.P.(C). No. 9311 of 2013) and Ext. P3 in W.P.(C). No. 5424 of 2013) as early as possible, at any rate within three (3) months from the date on which a copy of this judgment is received after hearing the parties concerned or their authorised representatives.

(II) W.P. (C). No. 5424 of 2013

The respondents are directed to enforce the order dated 12.10.2012 (Ext. P3 in W.P.(C). No. 5424 of 2013) subject to the result of the petition for review preferred by the second respondent before the 4th respondent (Ext. P5 in W.P.(C). No. 9311 of 2013).

(III) I make it clear that I have not made any observation on the merit of the claim parties have made as regards the order dated 12.10.2012 and the request for review.

(IV) Petitioner in W.P. (C). No. 5424 of 2013 shall produce a copy of this judgment before the State Government as early as possible.