Prasannakumari P R vs State Of Kerala

Murali Purushothaman, J

Since these writ petitions carry the same question, they were heard together and are disposed of by this common judgment.

W.P.(C) No.8218/2015

The petitioner joined as U.P.S.A in S.N.V. U.P. School, Selliampara, Idukki, an aided school governed by the provisions of the Kerala Education Act and Rules, on 08.06.1988. She was promoted as Headmistress of the school on 27.05.2003.

The petitioner states that the 4th respondent, the Manager of the school, who took charge in the year 2011 issued series of memos viz., Exts. P5 to P15 to the petitioner for issues which are trivial and bickering. The petitioner has replied to all these memos.

While so, on 15.11.2011, the Manager issued Ext. P16 order suspending the petitioner from service. When the order of suspension was reported to the Assistant Educational Officer (AEO), the said officer conducted an enquiry under Rule 67 (8) of Chapter XIV-A of Kerala Education Rules, 1959 (KER) and set aside the order of suspension by Ext. P19 order. Though the Manager filed a revision petition against Ext.P19 before the Government, the same was dismissed by Ext. P20.

While so, the Manager issued Ext. P21 memo asking the petitioner to file statement regarding the Grants received by the petitioner as the Headmistress from the Department. The petitioner submitted Ext. P24 reply to the said memo. Later, the petitioner was placed under suspension by Ext. P30 order by the Manager stating inter alia that she has not submitted a clear and complete reply to Ext. P21 letter. The suspension order was communicated to the petitioner by post with Ext. P29 letter stating that she has refused to acknowledge the order of suspension when served in person.

The AEO, after conducting investigation under Rule 67 (8) of Chapter XIV-A of KER, issued Ext. P31 directing reinstatement of the petitioner in service forthwith. The Manager challenged Ext.P31 before the Government under Rule 92 of Chapter XIV-A of KER. The Government disposed of the revision petition by Ext. P34. Together with the revision petition, the Government also considered a petition dated 05-11-2013 of the Manager praying for a formal enquiry by the AEO as provided under Rule 75 of Chapter XIV-A of KER. In Ext. P34, the Government ordered that the AEO, Adimaly, the 3rd respondent will conduct a formal enquiry immediately as stated in Rule 75 of Chapter XIV-A of KER regarding the allegations between the Manager and the petitioner which led to the suspension of the petitioner and to submit report to the Government within a period of 2 months.

The AEO sought to recuse from the enquiry stating that the Manager had insulted and threatened her. The Government, therefore, passed Ext. P35 order observing that the action of the Manager is unbecoming of a Manager of an aided school and relieved the AEO from the conduct of enquiry and entrusted the enquiry with the Additional Director of Public Instructions (Additional DPI) in the Directorate of General Education.

The Additional DPI conducted an enquiry and submitted Ext. P36 report finding dereliction of duty on the part of the petitioner and recommended disciplinary action against her.

Pursuant to Ext. P36 enquiry report, the Government issued Ext. P37 order directing the Manager to finalize the disciplinary action against the petitioner. Ext. P35 order of the Government entrusting the enquiry with the Additional DPI, Ext. P36 enquiry report of the Additional DPI and Ext. P37 order of the Government directing the Manager to finalise the enquiry are impugned in this writ petition.

It is contended by the petitioner that Ext. P35 order issued by the Government entrusting the enquiry with the Additional DPI is against Rule 75 (1) (b) of Chapter XIV-A of KER, as the said Rule enshrines that the enquiry officer who is competent to conduct enquiry in the case of a U.P School Headmistress is the Educational officer or any other officer not below the rank of an AEO. According to the petitioner, by entrusting the original jurisdiction to the Additional DPI, the petitioner loses her right of appeal before the DPI, in case any adverse order is issued by the Educational Officer and the same would cause prejudice to the petitioner. It is thus contended that Ext. P36 enquiry report pursuant to Ext. P35 Government order and Ext. P37 order of the Government directing to finalize the disciplinary proceedings based on Ext. P36 enquiry report are vitiated.

At the time of admission of the writ petition, this Court passed an interim order on 17.03.2015 against the imposition of any penalty against the petitioner on the basis of the orders impugned in this writ petition.

In the affidavit dated 17.03.2022 filed in support of I.A. No.2/2022, the petitioner states that, pursuant to Ext. P37, the Manager has issued Ext.P40 show cause notice dated 12.03.2020 against proposed penalty and the petitioner filed Cont. Case (Civil) No.827/2020 against the Manager and this Court in the said Contempt of Court case has stayed further proceedings in Ext. P40 and the stay order is still in force.

A counter affidavit is filed by the Manager contending that the petitioner did not challenge Ext. P35 order of the Government entrusting the enquiry with the Additional DPI and allowed Ext. P35 to be in field and action and the petitioner was sitting on the fence and the writ petition is filed one year after the issuance of Ext. P35 and four months after the issuance of Ext.P37. Therefore, the Manager contends that the writ petition has to be dismissed on the ground of delay and laches. It is also contended that time is not ripe for the petitioner to challenge Ext. P36 and the enquiry report can be challenged only when the Manager passes final orders under Rule 75(11) (b) of Chapter XIV-A of KER. Other contentions on the merits of the enquiry has also been stated in the counter affidavit.

Heard Sri. K.R. Ganesh, the learned counsel for the petitioner, Sri. Riyal Devassy, the learned Government Pleader for respondents 1 to 3 and Smt. S. Karthika for the 4th respondent Manager.

According to Sri. Ganesh, Ext. P35 order of the Government directing the Additional DPI to conduct the enquiry is against statutory provision. Sri. Ganesh contends that entrusting the formal enquiry under Rule 75 (1)(b) of Chapter XIV-A of KER with the Additional DPI, would deprive the petitioner of her right of appeal before the DPI, who is the appellate authority under the KER. Sri. Ganesh also submits that, Rule 74 provides that the penalty of compulsory retirement, removal or dismissal from service can be imposed by the Manager only with previous sanction of the DPI and once the major penalty as afore is sought to be imposed by the Manager based on the enquiry report by the Additional DPI, the provision becomes redundant. The learned counsel relies on the decision of the Hon'ble Supreme Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and others (AIR 1995 SC 1053) wherein the Court held that, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against employee concerned. The learned counsel for the petitioner also relies on the judgment of this Court dated 11.07.2016 in W.P (C) No.10618/2015 wherein similar view was taken by this Court. Sri. Ganesh further contends that the enquiry was conducted in total disregard to the procedure for imposing major penalties as mandated under Rule 75 of Chapter XIV-A of KER and that the enquiry report itself would show the clumsy manner in which the enquiry was conducted. The learned counsel pointed out that there is no finding on each one of the charges as contemplated under Rule 75 (8) of Chapter XIV-A of KER and the enquiry report is vitiated by bias. Sri. Ganesh relies on the judgment of this Court in Rani P. John v. Corporate Management of the Teresian Carmalite Sisters of Ernakulam and others [2007 (4) KHC 101], Seetharam Upper Primary School v. State of Kerala [2012 (2) KLT 338] and Cicily v. Corporate Manager [2010 (1) KLT 986] to contend that the enquiry conducted by the Additional DPI is vitiated for non compliance with the provisions of Rule 75 of Chapter XIV-A of KER. Sri. Ganesh submits that the petitioner's participation in the enquiry before the Additional DPI will not preclude her from challenging the enquiry, since there can be no estoppel against the statute.

Smt. S. Karthika, learned counsel for the Manager submits that, having participated in the enquiry before the Additional DPI, the petitioner cannot, now, challenge the enquiry when the enquiry report is against her. It is also contended that there are no pleadings in the writ petition regarding violation of procedures under Rule 75. Smt. Karthika submits that the writ petition is liable to be dismissed on ground of delay and laches as Ext. P35 order is challenged one year after issuance of the same. The learned counsel further submitted that the disciplinary action or the enquiry report can be challenged only after the punishment is imposed. The learned counsel relied on the judgment dated 17.11.2008 in W.P (C) No.33610/2008 (Rani P. John v. State of Kerala) (Ext. R4 (a)) and the Division Bench judgment dated 17.12.2008 in W.A. No.2393/2008 (Ext. R4 (b)) confirming the said judgment wherein this Court has taken the view that only when the Manager passes an order under Rule 75 (11) (c), it can be said that a final order is passed and only thereafter the statutory remedies can be pursued. Smt. Karthika therefore contends that Ext. P36 enquiry report can be challenged only when it is acted upon and punishment is awarded.

Sri. Riyal Devassy, the learned Government Pleader contends that the appointment of the Additional DPI as enquiry officer is in consonance with Rule 75 (1) (b) and after participating in the enquiry, the petitioner cannot challenge the report when it is against her.

Rule 75 (1) (b) of Chapter XIV-A of KER provides that, formal enquiry is to be conducted (in the case of a U.P School Headmistress) by the Educational officer or any other officer not below the rank of an AEO authourised by DEO or an officer of the Department appointed by the Director or Government. By Ext. P35, the Government have appointed the Additional DPI, an officer of the Department as defined under Rule 2 (3) of Chapter I of KER, as the enquiry officer to conduct enquiry in the case of petitioner, a U.P School Headmistress. When the AEO, who is the competent officer to conduct enquiry under Rule 75 (1) (b) had recused from conducting the enquiry, the Government is having power under the Rule to appoint an officer of the Department as the enquiry officer. The appointment of Additional DPI as enquiry officer is therefore in consonance with Rule 75 (1) (b) of Chapter XIV-A of KER. The contention of Sri. Ganesh that the appointment of the Additional DPI as enquiry officer is against the statutory provisions is therefore to be rejected. The challenge against Ext. P35 therefore fails.

The further contention of Sri. Ganesh is that, since the Additional DPI is entrusted with the formal enquiry, the petitioner will lose the right of appeal under Rules 80 and 81 of Chapter XIV-A of KER. Rule 74 of Chapter XIV-A of the KER provides that, the penalty of compulsory retirement, removal, or dismissal from service (in the case of a U.P School Headmistress) can be imposed by the Manager only with previous sanction of the DEO. Rule 81 of Chapter XIV-A of KER provides that, where sanction has been accorded for the imposition of any of the penalties by any authority, then the appeal shall lie to the next higher authority to whom the authority who accorded sanction is subordinate. The next higher authority to the DEO is the Deputy Director (Education). A revision will lie to the Government against the order of that authority. Rule 80 of Chapter XIV-A of KER deals with appeal against orders imposing penalties and provides that a teacher shall be entitled to appeal from an order imposing on him any of the penalties specified in Rule 65 to the next higher authority to whom the former authority is subordinate. The authority to impose penalty of compulsory retirement, removal, or dismissal from service (in the case of a U.P School Headmistress) is the Manager, with previous sanction of the DEO. An appeal shall lie to the Deputy Director (Education) against the order imposing penalty by the Manager and a revision lies to the Government under Rule 92.

The Government, vide Ext.P37, directed the Manager to finalise the disciplinary action against the petitioner. It is four months thereafter, the petitioner has approached this Court and this Court passed an interim order against imposition of penalty on the petitioner. No sanction has been accorded under Rule 74 for imposition of penalty. Once sanction is accorded, the petitioner has a right to appeal under Rule 81 and revision under Rule 92. Only when the Manager passes an order under Rule 75 (11) (c) of Chapter XIV-A of KER, it can be said that a final order is passed and the final order is appealable under Rule 80 and revisable under Rule 92. Only when final order imposing penalty is passed, the petitioner can challenge the same in appeal and in revision and before this Court. The petitioner cannot challenge Ext. P36 report before this Court at this stage as no final orders are passed by the Manager on the basis of Ext.P36 report. Therefore, the challenge against Ext. P36 must fail.

As already stated, no sanction has been accorded under Rule 74 for imposition of penalty on the petitioner. Once sanction is accorded, the petitioner has a right to appeal under Rule 81 and revision under Rule 92. The Additional DPI is not the original authority to impose punishment. The Additional DPI is only the authority to conduct formal enquiry. The DPI is not the appellate authority under Rule 80 or Rule 81 and is also not the revisional authority in the case of a U.P School Headmistress. No provision has been brought to my notice to the contrary. The DPI is also not the authority to accord sanction for imposition of penalty in the case of a U.P School Headmistress. This Court has, in Balagopalan v. Manager (1986 KLT 857), held that statutory authority which granted sanction for imposing penalty can exercise appellate or revisional powers in regard to the order actually imposing the penalty. Considering the scope of Rules 80 and 81 of Chapter XIV-A of KER, this Court held as under:-

“8. The Rules show that before imposing a major penalty on a teacher, Manager has to obtain previous sanction of the prescribed competent authority. Where sanction has been accorded for imposition of such penalty, there is a right of appeal to the next higher authority and right of revision before the Government. The order imposing penalty also is appealable under R.80 and revisable under R.92. The procedure for imposition of major penalties after disciplinary enquiry is over thus consists of two stages. At the earlier stage Manager has to provisionally make up his mind to impose the penalty, obtain sanction from the statutory authority and issue notice to the teacher concerned. Where sanction is obtained, he can proceed to impose the penalty after considering representation of the teacher. Where, ultimately, he imposes penalty with sanction, the aggrieved teacher has remedy before the superior authorities. There is no express limitation on the right of appeal or a revision after the imposition of penalty. There is nothing in the above rules or in the scheme of the rules from which an implied limitation can be read. The teacher is afforded additional protection by insisting that the Manager should seek previous sanction. To say that the statutory authority which granted sanction for imposing a penalty cannot exercise appellate or revisional powers in regard to the order actually imposing the penalty, is to render R.80 otiose. The Rules must be read together and reading the Rules together, it is clear that there is right of appeal or revision at both stages. The fact that right of appeal or revision has been exercised at the earlier stage in the matter of sanction does not deprive the teacher of his remedy of appeal or revision and does not deprive the statutory authority from exercising appellate or revisional powers at the later stage. I therefore reject the contention that the State Government has no power under R.92 to interfere with the order imposing penalty.”

(emphasis supplied)

This Court, in Ravindra Babu v. State of Kerala (1987 (1) KLT 472), considered the question as to whether a remedy of appeal is lost when the State Government, the higher authority, grant sanction to impose penalty exercising powers under Rule 92 and held as under:-

“ 3.....We have to bear in mind that while considering the question of granting prior sanction under R.74 the authority is not required to examine the question whether the charges levelled are satisfactorily proved or not. It is not reasonable to impute that the intention of the rule making authority was to render the order of the Manager imposing penalty, final without an appellate forum to correct the same. It appears to us that in a matter like this where sanction is refused by the Director under R.74 and is granted by the State Government in revision, such an order must be deemed to be an order made by the authority specified under R.74. If that is how the order of sanction by the State Government under R.74 is construed, there would be no hurdle in the way of the appellant in exercising his right of appeal under R.81 of the Rules. We have no hesitation in taking the view that the right of appeal conferred by R.81 of the Rules is not in any way affected by the grant of sanction by the State Government in exercise of its power of revision under R.92 of the Rules.”

(emphasis supplied)

The Additional DPI is only the authority to conduct formal enquiry. The right of appeal of the petitioner under Rule 80 or Rule 81 is in no way affected for the reason that the Additional DPI is appointed as the enquiry officer. The apprehension of prejudice expressed by the petitioner that she will lose her right of appeal is without any basis.

During the pendency of the writ petition, the post of DPI has ceased to exist with the establishment of the Directorate of General Education and Rule 4 of Chapter I of KER has been amended w.e.f 31.05.2019 whereby 'Director' means 'Director of General Education'.

The upshot of the above discussion is that, the appointment of Additional DPI as enquiry officer is in consonance with Rule 75 (1) (b) of Chapter XIV-A of KER and no prejudice is caused to the petitioner by appointing the Additional DPI as enquiry officer. Further, the challenge against Ext.P36 report in this writ petition is premature and cannot be entertained. I find no reason to interfere with Exts. P35, P36 and P37. Accordingly, the writ petition fails and is dismissed. There will be no order as to costs. It is made clear that this Court has not expressed any opinion on the merits of the enquiry.

W.P.(C) No.5152/2015

This writ petition is filed by the Manager of S.N.V. U.P. School challenging Ext.P7 order passed by the Assistant Educational Officer ordering reinstatement of the petitioner in W.P.(C) No.8218 of 2015. Ext. P7 in this writ petition is Ext. P38 in W.P.(C) No.8218 of 2015. In the counter affidavit dated 24.07.2020 filed by the Manager in W.P. (C) No.8218 of 2015, it is stated that the petitioner in W.P.(C) No.8218 of 2015 is reinstated in service. In view of my finding in W.P.(C) No.8218 of 2015 and the submission that petitioner in W.P.(C) No.8218 of 2015 is reinstated in service, nothing survives to be considered in this writ petition and accordingly, the same is closed.