V. Mohanan vs The District Educational Officer, The Assistant Educational Officer, The Manager and E.K. Saheela

T.R. Ramachandran Nair, J.—The Petitioner''s grievance is against the continuance of the suspension which was ordered against him even after the criminal case ended in acquittal.

The Petitioner, while working as Headmaster of the school, was suspended from service with effect from 22.2.2005. The allegation was one of misappropriation of salary of teachers as well as unauthorised absence. Crime No. 72/2005 of Chakkarakal Police Station alleging offences under Sections 406, 408 and 420 I.P.C. was registered. According to the Petitioner, after the money from the treasury was encashed, he had to go to Sree Sathya Sai Institute of Higher Medical Science, Whitefield, Bangalore for a surgery. There was no one to entrust the cash also.

The case ended in acquittal as evident from Ext. P2 judgment. Thereafter, the Petitioner moved for withdrawal of the suspension order and this Court by Ext. P4 judgment directed the Asst. Educational Officer to consider the matter. The Asst. Educational Officer as per Ext. P5 order dated 18.10.2010 directed the Manager to take a decision within two weeks in terms of the judgment in the criminal case. To implement the said direction, the Petitioner again approached this Court by filing W.P.(C) No. 33916/2010. Therein, after hearing the Manager this Court issued directions in the matter. Finally, the Manager passed Ext. P8 order whereby he has decided not to cancel the suspension.

Heard learned Counsel for the Petitioner, learned Counsel for the Manager and the learned Government Pleader.

Learned Counsel for the Petitioner submitted that as the criminal case has ended in acquittal, there is no justification for not withdrawing the suspension order. It is pointed out that the Petitioner was suspended only pending investigation in the criminal case. The suspension continued for a number of years, viz. from 2005. It is therefore submitted that he cannot be denied the benefit of the judgment in the criminal case. He is due to retire on 31.3.2011.

Learned Counsel for the Manager submitted that against the judgment of the Chief Judicial Magistrate acquitting the Petitioner, the Manager has filed a revision petition which is pending. This is the reason stated in Ext. P8 also. It is further pointed out that there are some other allegations raised against the Petitioner and hence the Manager intends to initiate disciplinary action.

The fact that the Petitioner was suspended pending the investigation of the criminal case, cannot be disputed. The suspension of a Headmaster is governed by Rule 67 of Chapter XIV-A K.E.R. A review of the suspension is not provided in a case where a criminal case is pending and hence it was continued. Herein, the criminal case has ended in an acquittal. What the Manager argues for the position is that the filing of a criminal revision petition will enable him to keep the Petitioner under suspension.

The requirement of suspension in such cases, evidently, is to prevent any attempt to hamper the process of investigation, to influence witnesses or destroy evidence. That stage is admittedly over. By suspension, a person is being kept away from duty throughout. Herein, for the continued suspension the reason stated by the Manager cannot be supported. The mere pendency of a criminal revision petition fled by the Manager cannot help him for continuing the order of suspension. Evidently, no disciplinary proceedings have been initiated against the Petitioner, on the same set of allegations and there is no case for the Manager also that a memo of charges has been issued. In that view of the matter also, the mere assertion in the order Ext. P8 that disciplinary proceedings will be taken, will not help the Manager to continue the suspension.

One of the points raised by the learned Counsel for the Manager is that after the Petitioner was suspended from service, the fourth Respondent was appointed as Assistant Teacher in the vacancy and if the Petitioner is reinstated, the fourth Respondent may have to go out from service. It is submitted by the learned Counsel for the Petitioner that the Petitioner is retiring on 31.3.2011 and the attempt of the Manager is to prevent reinstatement before retirement, that too only to help the fourth Respondent. That the fourth Respondent was appointed in the light of the suspension of the Petitioner in the resultant vacancy, cannot be disputed. Therefore, normally when the person who is suspended is reinstated, it may affect the teacher who is appointed as a substitute. That position cannot be disputed also, but the same cannot be a reason to continue the suspension.

Learned Counsel for the Manager relied upon various decisions of the Apex Court and this Court to contend that there is a loss of confidence on the Petitioner and therefore reinstatement cannot be ordered. The decisions relied upon are: Parameswaran Namboodiri v. State of Kerala (1981 KLT 231), AIR 1994 552 (SC) , M.K. Sukumaran v. The Appellate Tribunal and Ors. (2005 (1) KLJ 432) , Chairman-cum-M.D., T.N.C.S. Corpn. Ltd. and Others Vs. K. Meerabai, and Santhosh Kumar v. State of Kerala and Ors. (ILR 2007 Ker. 101).

In Parameswaran Namboodiri''s case (1981 KLT 231) the facts are not identical, as it was a case where this Court considered only the question whether the disciplinary proceedings can be continued even if the cause for disciplinary proceedings and criminal case was the same.

The decision of this Court in Santhosh Kumar''s case (ILR 2007 (3) Ker. 101) was concerning the regularisation of the period of suspension. It was held that the competent authority should examine whether the criminal Court has merely acquitted the delinquent employee or exonerated him of the blame as contemplated in the rule. Herein, Shri Khalid, learned Counsel appearing for the Manager submitted that the Petitioner was acquitted by granting the benefit of doubt and therefore the suspension order can be continued in the light of the above dictum. The facts are clearly distinguishable, as the question considered therein was only with respect to the regularisation of the period of suspension and we are not considering such a question here.

M.K. Sukumaran''s case (2005 (1) KLJ 342) is relied upon to contend that this Court may not be justified in acting as an appellate authority. This Court is only considering whether the suspension can be continued indefinitely.

AIR 1994 552 (SC) is a case where the benefit of doubt was the reason for acquittal and the matter was considered with respect to the plea of regularisation of the period of service. Therefore, the said judgment will not apply to the facts of this case.

Chairman-cum-M.D., T.N.C.S. Corpn. Ltd. and Others Vs. K. Meerabai, was one considering the gravity of the punishment. It was considered whether the management, in the light of the loss of confidence of the person concerned, can impose the punishment of dismissal.

None of the above cases are therefore identical as far as the facts of this case are concerned. Evidently, the suspension cannot be ordered as a punishment. Herein, the criminal case alone was the reason for suspension and he has already been acquitted. The Manager has not properly considered all the relevant aspects in the light of the direction issued by the Asst. Educational Officer as per Ext. P5. Of course, the Manager has raised various contentions in the counter affidavit stating that the Petitioner can approach the statutory authorities in the matter. Herein, the statutory authority has already directed the Manager to consider the judgment of the criminal case and take a decision. Therefore, the writ petition is maintainable.

Since the suspension is sought to be continued without any justification, Ext. P8 cannot survive. Even though the matter was adjourned on suggestions to attempt a compromise, it is reported that the said effort could not succeed.

Therefore, Ext. P8 is quashed. There will be a direction to reinstate the Petitioner in the school forthwith. After reinstating the Petitioner, it is open to the Manager to make such arrangements, if possible, to avoid retrenchment of the fourth Respondent.

The writ petition is allowed as above. No costs.