Kerala High Court
Jilson Thomas C vs State Of Kerala on 22 June, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936
WP(C).No. 2980 of 2013 (V)
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PETITIONER:
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JILSON THOMAS C., AGED 40 YEARS,
CHIRAMEL HOUSE, ENAMAKKAL P.O,
THRISSUR - 680 510.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DEPUTY DIRECTOR OF EDUCATION,
THRISSUR - 680 502.
3. THE DISTRICT EDUCATIONAL OFFICER,
CHAVAKKAD - 680 506.
4. THE MANAGER,
MUHAMMED ABDULRAHIMAN SAHIB MEMORIAL VOCATIONAL,
HIGHER SECONDARY SCHOOL,
VENMANAD, PAVARATTY P.O, THRISSUSR - 680 507.
R1 BY SR.GOVERNMENT PLEADER SRI.P.M.SANEER
R4 BY ADVS. SRI.V.A.MUHAMMED
SRI.M.SAJJAD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-03-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 2980 of 2013 (V)
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APPENDIX
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PETITIONER(S)' EXHIBITS
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EXHIBIT P1 : TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT DATED 22.06.2011.
EXHIBIT P2 : TRUE COPY OF ORDER NO.B5-5124/11/K.DIS. DATED 23.07.11 ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P3 : TRUE COPY OF ORDER NO.B5-11595/11 DATED 11.01.2012 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P4 : TRUE COPY OF LETTER DATED 21.01.2012 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P5 : TRUE COPY OF ORDER NO.23/2011 DATED 05.03.2012 TOGETHER
WITH MEMO OF CHARGES ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER.
EXHIBIT P6 : TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT DATED 20.03.2012.
EXHIBIT P7 : TRUE COPY OF JUDGMENT DATED 27.03.2012 IN WPC NO.7357/2012
OF THIS HONOURABLE COURT.
EXHIBIT P8 : TRUE COPY OF ORDER NO.B5-1944/12 DATED 30.03.2012 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P9 : TRUE COPY OF ORDER NO.23/2011 DATED 11.04.2012 ISSUED BY THE
4TH RESPONDENT.
EXHIBIT P10: TRUE COPY OF JUDGMENT DATED 04.04.2012 IN W.P.C 8557/2012 OF
THIS HONOURABLE COURT.
EXHIBIT P11: TRUE COPY OF G.O.(RT)NO.6165/2012/G.EDN. DATED 26.12.2012
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P12: TRUE COPY OF ORDER NO.23/2012 DATED 27.12.2012 ISSUED BY THE
4TH RESPONDENT.
EXHIBIT P13: TRUE COPY OF JUDGMENT DATED 26.07.2011 IN W.P.C 53/2011 OF
THIS HONOURABLE COURT.
EXHIBIT P14: TRUE COPY OF A COMPLAINT HANDED OVER BY THE MANAGER TO
THE PETITIONER.
EXHIBIT P15: TRUE COPY OF ENVELOP ALONG WITH A.D.CARD ENCLOSING THE
LETTER SENT BY THE PETITIONER TO THE 4TH RESPONDENT WHICH
WAS RETURNED UNSERVED BY THE POSTAL AUTHORITIES.
Msd.
WP(C).No. 2980 of 2013 (V)
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EXHIBIT P16: TRUE COPY OF ENVELOP CARD ENCLOSING THE LETTER SENT BY
THE PETITIONER TO THE 4TH RESPONDENT WHICH WAS RETURNED
UNSERVED BY THE POSTAL AUTHORITIES.
EXHIBIT P17: TRUE COPY OF G.O.(MS) 90/2014/G.EDN. DATED 06.01.2014 ISSUED BY
THE 1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS:
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EXHIBIT R4(A): TRUE COPY OF THE LETTER OF THE PETITIONER
DATED 21.01.2012.
EXHIBIT R4(B): TRUE COPY OF THE DECLARATION OF THE PETITIONER
DATED 01.02.2012
EXHIBIT R4(C): TRUE COPY OF THE MEMO OF THE MANAGER
DATED 16.11.2011.
EXHIBIT R4(D): TRUE COPY OF THE EXPLANATION OF THE PETITIONER
DATED 26.11.2011.
EXHIBIT R4(E): TRUE COPY OF THE MEMO OF CHARGES ALONG WITH
STATEMENT OF ALLEGATIONS DATED 11.01.2013.
EXHIBIT R4(F): TRUE COPY OF THE REPLY OF THE PETITIONER
DATED 30.01.2013.
EXHIBIT R4(G): TRUE COPY OF THE LETTER OF THE MANAGER
DATED 13.02.2013.
//TRUE COPY//
P.S.TO JUDGE.
Msd.
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No.2980 of 2013
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Dated this the 27th day of March, 2014
J U D G M E N T
The petitioner, while working as H.S.A.(Maths) in Muhammed Abdulrahiman Sahib Memorial Vocational Higher Secondary School, Venmanad, was suspended by the fourth respondent-Manager as per Ext.P5 order. Aggrieved by Ext.P5 suspension order, he approached the third respondent-District Educational Officer by Ext.P6 representation. The third respondent, on an appreciation of facts leading to the suspension of the petitioner, came to a conclusion that the findings on facts entered by the Manager for suspension are erroneous. Consequent upon such decision, the third respondent, by Ext.P8 order, directed the Manager to reinstate the petitioner in service forthwith. Ext.P8 order was challenged by the Manager before the Government in revision. The revisional authority passed Ext.P11 order confirming the decision of the Manager and suspending the petitioner pending disciplinary proceedings. It is challenging Ext.P11, this writ petition has been filed, on 30/01/2013. The petitioner, along with I.A.No.682/2014 dated 10/01/2014 produced Ext.P17. Ext.P17 is an order issued by the Government directing the Manager to review the suspension W.P.(C).No.2980 of 2013 -:2:- order and to promote the petitioner as Headmaster. Ext.P17 is impugned by the Manager in another writ petition, namely, W.P.(C).No.3792/2014.
2. Today, both the writ petitions, W.P.(C).Nos.2980/2013 and 3792/2014 have come up before this Court for hearing. Since the issue relating to suspension pursuant to disciplinary proceedings and the matter relating to promotion as Headmaster are distinct, this Court is of the view that both the cases require separate consideration and separate orders, especially since, the matter relating to promotion as Headmaster involves, third parties right also. Therefore, this Court is proceeding to decide W.P. (C).No.2980/2013 challenging suspension and has delinked the other matter, namely, W.P.(C).No.3792/2014.
3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for the Manager.
4. The learned counsel for the petitioner submits that Ext.P5 suspension order is based on facts and those facts were found erroneous in the appeal by the District Educational Officer with reasons and, therefore, while exercising revisional powers, the Government cannot rely upon finding on a new fact, which the petitioner had no opportunity to contradict. W.P.(C).No.2980 of 2013 -:3:- The learned counsel points out that in Ext.P11 revision petition, the Government relied on an audit conducted by the Deputy Director of Education for the period from 01/05/2008 to 31/01/2012, to substantiate the contention of the Manager. The learned counsel states that the petitioner had no opportunity to correct or contradict the audit report. At no point of time any explanation was sought for from the petitioner regarding audit. In the absence of such exercise, it is pointed out by the learned counsel that the reliance placed by the Government on audit report is against the principles of natural justice.
5. On the other hand, the learned counsel for the Manager submits that the audit report only affirms mismanagement and misappropriation of the fund by the petitioner.
6. On a plain reading of Ext.P11, I am of the view that the Government has not applied its mind while overruling the reasons stated by the District Educational Officer in Ext.P8. Ext.P8 is a well reasoned order. The audit report cannot be of any use at all as far as the disciplinary proceedings initiated against the petitioner is concerned, especially because, such an audit report is not put to the notice of the petitioner for any W.P.(C).No.2980 of 2013 -:4:- explanation. Of course, the audit report is a piece of evidence that can be relied on or it can be used against the petitioner in disciplinary proceedings only when an opportunity is given to him to contradict the same. But, certainly, that was not a piece of evidence for suspension and that cannot be used against the petitioner when proceedings relating to suspension is being challenged and its veracity is being examined by higher-ups. No reasons have been stated in Ext.P11 about the findings made by the District Educational Officer in Ext.P8.
7. The power vested with the Government or with any higher authority, or an Officer, who is immediately superior to the Officer, who passed the order of suspension, to review the order of suspension is based on the principles of public interest. The original power to suspend an employee is considering the interest of the management and the institution. But continuation of such suspension is essentially a matter of public interest as the suspended employee continues to draw subsistence allowance or salary from the public exchequer. Therefore, the authority has to consider whether the suspension should be continued beyond the period exceeding six months in public interest. Under the general principles governing W.P.(C).No.2980 of 2013 -:5:- disciplinary proceedings, continuation of suspension can only be with reference to factors like chances of suspended employee influencing the witnesses or interfering with the process of disciplinary proceedings. Therefore, in the absence of such factors, the Government is justified in issuing a direction to the Manager for reinstatement of the petitioner. Therefore, having not pointed out any such circumstances which insist continuance of suspension, I am of the view that the petitioner is to be reinstated in service as ordered by the Government in Ext.P17 forthwith, pending enquiry.
8. Under the above circumstances, I am of the view that the Manager cannot question the wisdom of the Government to review its decision, especially, in the light of the facts and circumstances pointed out and discussed above with regard to the reasons assigned by the Government in its original decision as per Ext.P11. Therefore, there shall be a direction to the fourth respondent-Manager to reinstate the petitioner forthwith in the service. The observation made hereinbefore or in Ext.P17, however, shall not bind or influence disciplinary authorities in proceeding with the disciplinary proceedings under the grounds charge-sheeted against the W.P.(C).No.2980 of 2013 -:6:- petitioner. It is made clear that the direction in Ext.P17 regarding promotion, is left open to be decided in W.P.(C).No.3792/2014. The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms