Kerala High Court
Sreeja.J.T. W/O.K.Vinodkumar vs Ext.R1(A):- Copy Of The Enquiry Repor Of ... on 7 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934
WP(C).No. 14285 of 2005 (A)
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PETITIONER:
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SREEJA.J.T. W/O.K.VINODKUMAR,
SREEJA BHAVAN, MADATHILKUNNU, KILIMANOOR P.O.,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.M.V.THAMBAN
RESPONDENTS
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1. MANAGER,KVUP SCHOOL,
PANGODU P.O., THIRUVANANTHAPURAM-695001.
2. HEADMASTER, KVUP SCHOOL,
PANGODU P.O., THIRUVANANTHAPURAM -695004.
3. THE ASST.EDUCATIONAL OFFICER,
PALODE, THIRUVANANTHAPURAM -695001.
4. THE DEPUTY DIRECTOR (EDUCATION),
THIRUVANANTHAPURAM-695001.
5. DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695001.
6. STATE OF KERALA, REPRESENTED BY
SECRETARY TO THE GOVT.,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
7. SMT.SHEEJA BEEGAM,
WORKING AS PEON,
KVUP SCHOOL, PANGODE PO,
KALLARA, THIRUVANANTHAPURAM-695001.
BY ADV. SRI.K.SATHEESH KUMAR
BY ADV. SRI.T.A.UNNIKRISHNAN
BY GOVERNMENT PLEADER SMT.LOUSY.A
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.04.2012,
THE COURT ON 21.05.2012 DELIVERED THE FOLLOWING:
MG
WP(C).No. 14285 of 2005 (A)
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APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1:- COPY OF THE APPOINTMENT LETTER DT.22.7.2004 BY THE MANAGER.
EXT.P2:- COPY OF THE APPLICATION DATED 07.08.2004 BY THE PETITIONER.
EXT.P3:- COPY OF THE APPLICATION SENT TO THE AEO ON 18.08.2004.
EXT.P4:- COPY OF THE LETTER NO.40/04-05 D.18.08.2004.\
EXT.P5:- COPY OF THE LETTER SENT BY THE MANAGER TO THE PETITIONER ON
15.09.2004.
EXT.P6:- COPY OF THE LETTER SENT BY THE MANAGER TO THE PETITIONER ON
18.12.2004.
EXT.P7:- COPY OF THE DETAILED EXPLANATION BY THE PETITIONER TO EXT.P6
SHOW CAUSE NOTICE.
EXT.P8:- COPY OF THE CHARGE SHEET NO.18/2004-05 ISSUED BY THE MANAGER.
EXT.P9:- COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER
ON 24.01.2005.
EXT.P10:- COPY OF THE DETAILED REPRESENTATION DT.29.04.2005 SUBMITTED
BEFORE THE AEO.
EXT.P11:- COPY OF THE ORDER BY THE AEO NO.N DIS-D-1427/05 DT.29.04.2005.
EXT.P12:- COPY OF THE HEARING NOTE DT.21.06.2005, BEFORE THE 4TH
RESPONDENT.
EXT.P13:- COPY OF THE LETTERNO.31/04-05 DT.12.09.2005 BY THE MANAGER.
EXT.P14:- COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT
DT.21.09.2005.
EXT.P15:- COPY OF THE LETTER NO/5/2005 DT.29.09.2005, BY THE MANAGER.
EXT.P16:- COPY OF THE REPRESENTATION TO THE DEPUTY DIRECTOR
(EDUCATION), THIRUVANANTHAPURAM ON 30.04.2005.
EXT.P17:- COPY OF THE REPRESENTATION DT.11.06.2005.
RESPONDENT'S EXHIBITS:
EXT.R1(A):- COPY OF THE ENQUIRY REPOR OF THE DEPUTY DIRECTOR OF
EDUCATION.
EXT.R1(B):- COPY OF THE APPOINTMENT ORDER DATED 01.06.2009.
EXT.R1(C):- COPY OF THE APPOINMENT ORDER DATED 01.06.2009.
//TRUE COPY//
PA TO JUDGE
MG
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C).No. 14285 of 2005-A
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Dated this the 21st day of May, 2012
JUDGMENT
The petitioner is aggrieved by the proceedings of the Manager issued as per Ext.P15, whereby she has been removed from service with effect from 7.8.2004.
2. Initially the writ petition was filed seeking for implementation of Ext.P11 order passed by the Assistant Educational Officer. During the pendency of the writ petition, Ext.P15 order was issued and consequently the writ petition stands amended, by challenging Ext.P15.
3. Heard learned counsel for the petitioner, learned counsel for the Manager and learned Government Pleader.
4. The appointment of the petitioner in the school was in recognition of her claim on compassionate grounds. Her father died while in service, on 29.5.1997. At first she was appointed in a leave vacancy of Peon for the period from 8.11.2001 to 31.3.2003, which was approved by the Assistant Educational Officer. In the vacancy which arose due to the promotion of one Shri Aneesh as U.P.S.A. the Manager offered appointment to the petitioner as Peon, as per Ext.P1 letter dated 22.7.2004. W.p(c) 14285/2005 -:2:- She was appointed with effect from 5.8.2004. After joining duty, according to the petitioner, she submitted an application for study leave from 7.8.2004, under Appendix XII-B of Part I K.S.R., as per Ext.P2. The present controversy started from then onwards. In a nutshell, the reason for termination is that the petitioner was unauthorisedly absent from 7.8.2004 which amounted to gross dereliction of duty.
5. Learned counsel for the petitioner mainly contended that the petitioner was offered appointment while she was studying for B.Ed. and after joining duty she sought for study leave for completing the course. The Manager or the Headmaster cannot refuse to recommend the grant of leave. They did not forward the application to the competent authority, viz. the Government for sanctioning the leave. Hence, Ext.P3 was submitted by her before the Assistant Educational Officer, to take action for sanction of leave. The Headmaster by Ext.P4, directed the petitioner to show cause why action should not be taken against her, which was followed by Ext.P5 issued by the Manager. The Manager later sent Ext.P6, another show cause notice which was replied by Ext.P7.
6. Ext.P8 is the memo of charges issued by the Manager, which was replied by the petitioner as per Ext.P9. According to the petitioner, the leave W.p(c) 14285/2005 -:3:- without allowance can be sanctioned under Appendix XII-B of Part I K.S.R. and as the Manager and the Headmaster were trying to terminate her service, she approached the Assistant Educational Officer by Ext.P10 representation. This was followed by Ext.P11 order passed by the Assistant Educational Officer directing the Headmaster to admit the petitioner to duty, but it was not obeyed.
7. It is also the contention of the petitioner that without conducting any proper enquiry the removal was effected and what was received by her prior to it, is only a notice by the Deputy Director of Education to attend a hearing on 21.6.2005. She submitted a hearing note through a representative, as per Ext.P12. No evidence was taken from her and no further opportunity was given. The Manager, by Ext.P13 show cause notice, asked her to explain as to why she should not be removed from service on the basis of the enquiry report, which was replied by Ext.P14 by the petitioner, requesting to forward a copy of the report, as she was not furnished with any report by the Deputy Director of Education or by the Manager. But without affording any further opportunity in the matter, Ext.P15 order was passed. Learned counsel for the petitioner further submitted that the entire proceedings have been issued in violation of Rule W.p(c) 14285/2005 -:4:- 75 of Chapter XIV-A of K.E.R. and other relevant rules. There was no disciplinary enquiry at all. Further, the reasons stated for removal from service are also not justifiable. There was no unauthorised absence on the part of the petitioner, as she had properly submitted an application for leave. By removing her from service, a major penalty has been imposed, for which prior sanction has to be obtained from the department. Thus, it is submitted that the orders are vitiated by the non-compliance of the mandatory provisions of Chapter XIV-A of K.E.R.
8. Learned counsel for the Management submitted that after the enquiry report was furnished, a show cause notice was issued. Herein, no prior permission from the departmental officers is required as the petitioner's appointment was not approved. The charges have been proved and therefore there is no reason to interfere with the orders passed.
9. The background detailed above, show that the petitioner was offered a compassionate appointment in a leave vacancy earlier from 8.11.2001 to 31.3.2003 which was approved. Therefore, she became a claimant for further appointment under Rule 9A of Chapter XXIV-A read with Rule 51A of Chapter XIV-A K.E.R. The fresh appointment was effective from 5.8.2004.
W.p(c) 14285/2005 -:5:-
10. Since the argument raised by the petitioner is that there is gross violation of the provisions of Chapter XIV-A K.E.R., I shall refer to the proceedings leading to Ext.P15, to understand the way in which the matter was proceeded with by the Management. Ext.P4 is the communication from the Headmaster dated 18.8.2004, addressed to the petitioner and Ext.P5 is the letter sent by the Manager. The first communication addressed to the petitioner, proposing action for removal, is Ext.P6. A reading of Ext.P6 shows that the stand taken is that the petitioner did not respond to Exts.P4 and P5, but a leave application has been submitted by her on 20.8.2004 to continue with B.Ed. course. According to the Manager, B.Ed. is not an essential qualification for appointment as Peon, that without getting a relieving order she continued to study for B.Ed. and that for joining the post, permission has not been obtained from the educational institution. Para 4 of Ext.P6 will show that the misconduct alleged is one of serious dereliction of duty.
11. The stand taken by the petitioner in Ext.P7 reply is that she had been studying for B.Ed. course when the offer of appointment came. On appointment she is a probationer and even if study leave is availed, going by Appendix XII-B of Part I K.S.R., the only requirement is that she will W.p(c) 14285/2005 -:6:- have to start probation afresh after rejoining duty. She cannot leave the course midway and all the relevant aspects were communicated to the Headmaster and the Manager. In Ext.P8 charge memo the misconduct alleged is that she is unauthorisedly absent from service and is irresponsible in performing the duty and the said action amounts to gross dereliction of duty.
12. Ext.P13 show cause notice communicates the provisional decision to remove the petitioner from service. It does not reveal that any sanction has been obtained from the department for imposing the punishment. Thus, Ext.P15 will show that the petitioner, a probationer in service, has been removed on the ground of the alleged misconduct. It is not a simple case of discharge of a probationer and the basis of the action is the alleged misconduct itself.
13. The first question is whether any prior sanction is required for removal. As far as the rules applicable in respect of the non teaching staff are concerned, it can be seen from Rule 7 of Chapter XXIV-B of K.E.R. that the rules regarding appointment, probation, increment, transfer, discipline, maintenance of service records confirmation, promotion, seniority and maintenance of seniority list contained in Chapter XIV-A and W.p(c) 14285/2005 -:7:- the Conduct Rules in Chapter XIV-C applicable to teachers of aided school shall mutatis mutandis apply to the non teaching staff in aided schools. Therefore, Rule 75 of Chapter XIV-A will apply. Rule 8 of Chapter XXIV-A also states that "in the matter of casual leave and all other kinds of leave the non teaching staff in aided school shall be governed by the rules for non-teaching staff of Government schools in the Service Regulations for the time being in force." Rule 6 of Chapter XXIV-B of K.E.R. specifically makes applicable Rules 3, 4, 5, 6, 7 and 8 of Chapter XXIV-A K.E.R. to the non-teaching staff.
14. The period of probation of a new appointee is governed by Rule 6
(a) of Chapter XIV-A K.E.R. which provides that "the appointee shall be on probation for a period of one year on duty within a continuous period of two years". In fact, going by sub-rule (c) of Rule 6, for discharging a probationer from service, approval of the Educational Officer is required. It is provided therein as follows:
"(c) If the work of the probationer is found to be unsatisfactory at any time before the expiry of the period of probation or where such period of probation is extended, the manager may, with the approval of the Educational Officer, by order either terminate the probation and discharge him from service or in case probation has W.p(c) 14285/2005 -:8:- not been extended, extend the period of probation after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him."
Thus, whenever for the reason of unsatisfactory work, the period of probation is proposed to be terminated and the probationer is sought to be discharged from service or if the period of probation is sought to be extended, the procedure prescribed is to give a reasonable opportunity to show cause against the action. Therefore, even in the case of termination of probation and consequent discharge of a probationer after finding that he is unsuitable due to unsatisfactory work, the approval of the Educational Officer is required.
15. This Court had occasion to consider whether what is provided under Rule 6(c) is a prior approval and the view taken is that actually the previous approval by the Educational Officer is necessary for taking action under Rule 6(c). I shall refer to the dictum laid down by this Court in M. Arjun Elayad v. Assistant Educational Officer and another (1970 KLT
972). In para 5, after examining Rule 6(c), the position was explained thus:
".......It is true that the expression "previous approval" has not been used in Rule 6(c) but having regard to the object and purpose of that Rule and the context and setting in which the provision for W.p(c) 14285/2005 -:9:- approval finds a place therein, it appears to me to be clear that the intention of the rule making authority is that the action specified therein can be taken by the Manager of the school only with the previous approval of the Educational Officer. It is also significant that the wording used is that the "Manager may, with the approval of the Educational Officer, by order either terminate the probation and discharge him from service.......", in other words the Manager must be already in possession of the approval of the Educational Officer before he proceeds to pass an order either terminating the probation and discharging the probationer from service or extending the period of probation in case probation had not been previously extended."
Therefore, even though the words "previous approval" are not used in Rule 6(c), this Court was of the view that action can be taken only with the previous approval of the Educational Officer. That was a case where a teacher was discharged for unsatisfactory work, while on probation.
16. When a probationer is terminated on the allegation of a misconduct, that is by casting a stigma, it is obligatory to conduct a departmental enquiry. This legal position admits of no doubt. When the termination is punitive, it is axiomatic that an opportunity should be given to the person concerned. The general law in regard to the termination from W.p(c) 14285/2005 -:10:- service of an employee on probation, when the discharge is not stigmatic, is clear from the dictum laid down in Muir Mills v. Swayam Prakash (2007 (1) KLT SN 25) wherein it was held that "an employee who is on probation, can be terminated from service due to unsatisfactory work. The services of a probationer can be terminated at any time before confirmation provided that such termination is not stigmatic. In the event of a non- stigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable. Even if the termination order of the probationer refers to the performance being 'not satisfactory' such an order cannot be said to be stigmatic and the termination would be valid." But herein, under Rule 6(c) the procedure is different. Even in case of simple discharge of a probationer for unsatisfactory work, the previous approval of the Educational Officer is required and the probationer will have to be given a reasonable opportunity to show cause against the action proposed.
17. If the termination is on the ground of misconduct, it requires holding of an enquiry. This legal position is also clear from the decision of the Supreme Court in Mathew P. Thomas v. Civil Supplies Corporation (2003 (1) KLT 874 - SC). The question was whether there was an allegation of misconduct. In para 11, their Lordships relied upon the W.p(c) 14285/2005 -:11:- judgment of the Apex Court in Deepti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others (JT 1993 (3) SC 130) and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Another (JT 2001 (9) SC 420) wherein the related questions have been examined. The said paragraph is reproduced below:
"An order of termination simplicitor passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Deepti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. JT 1993 (3) SC 130: (1993) 3 SCC 60 and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. JT 2001 (9) SC 420; (2002) 1 SCC 520), after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as a simplicitor and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to W.p(c) 14285/2005 -:12:- be treated as "founded" on the allegations of misconduct and when complaints could be only as motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained thus:-
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
Para 21 of the decision in Deepti Prakash Banerjee's case (supra) relied upon by the Apex Court will clearly show that when findings are arrived at based on a misconduct, a regular enquiry is required. But if no enquiry was W.p(c) 14285/2005 -:13:- held and no findings are arrived at on the allegations, but it is a simple case of discharge, a distinction will be there. It was therefore held in para 12 in Mathew P. Thomas's case (supra) as follows:
"From long line of decisions it appears to us whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case."
18. In another decision of the Apex Court in L.I.C. of India and another v. Raghavendra Seshagiri Rao Kulkarni {(1997) 8 SCC 461}, with regard to the requirement of a departmental enquiry, it was held as follows:
"12. The requirement to hold a regular departmental enquiry before dispensing with the services of a probationer cannot be invoked in the case of a probationer especially when his services are terminated by an innocuous order which does not cast any stigma on him. But it cannot be laid down as a general rule that in no case can an enquiry be held. If the termination is punitive in nature and is brought about on the ground of misconduct, Article 311(2) would be attracted and in that situation it would be incumbent upon the employer, in the case of government service, to hold a regular departmental enquiry. In any other case also, specially those relating to statutory corporations or government instrumentalities, a termination which is punitive in nature cannot W.p(c) 14285/2005 -:14:- be brought about unless an opportunity of hearing is given to the person whose services, even during the period of probation, or extended period, are sought to be terminated. (See Parshotyam Lal Dhingra v. Union of India - AIR 1958 SC 36) in which it was held that appointment to a permanent post on probation means that the servant is taken on trial. Such an appointment comes to an end if during or at the end of the probation, the person so appointed is found to be unsuitable and his services are terminated by notice. An appointment on probation or on an officiating basis is of a transitory character with an implied condition that such an appointment is terminable at any time. See also: Samsher Singh v. State of Punjab - (1974) 2 SCC 831)."
The above dictum will show that with regard to a punitive action an enquiry is a necessity, i.e. when the termination is not by an innocuous order which does not cast any stigma but on the basis of certain allegations of misconduct, an enquiry will be required.
19. The contention by the learned counsel for the Manager is that since the petitioner's appointment was not approved, permission from the department is not required for imposing the punishment.
20. The requirement of approval/sanction is specified under Rule 75 of Chapter XIV-A K.E.R. Going by sub-rule (11)(c) of Rule 75, final order W.p(c) 14285/2005 -:15:- will have to be passed by the Manager imposing the penalty with the previous sanction of the competent authority. Herein, it is clear that the application for approval of appointment was pending when the disciplinary action was taken. It appears that no final orders were passed on the proposal for approval due to the intervening developments. Going by the effect of Rule 6(c) of Chapter XIV-A K.E.R., and the judgment in M. Arjun's case (1970 KLT 972), previous approval will be required for taking action against the probationer. Sub-rule (11)(c) of Rule 75 also provides for previous sanction. It is not specified in Sub-rule (11)(c) that for terminating a probationer who is awaiting orders of approval, previous sanction is not required. Therefore, Rules 6(c) and 75 will have to be understood as mandatory in all cases where even if an approval of appointment is yet to be granted to a probationer, before taking an action for discharge/removal from service on the ground of misconduct, prior approval/sanction is required. Hence, the said condition will have to be insisted in a case of removal from service by invoking the provisions of Chapter XIV-A, to avoid any arbitrary and illegal action.
21. The order Ext.P15 shows that no previous sanction has been obtained by the Manager for imposing the penalty of removal from service. W.p(c) 14285/2005 -:16:- On that sole ground, Ext.P15 is liable to be quashed. Learned counsel for the petitioner had argued that there was no enquiry at all as known to law. Since Chapter XIV-A applies as far as members of non teaching staff also are concerned, when a disciplinary action is proposed, all the provisions of Rule 75 will have to be followed. Herein, there cannot be any dispute that the removal from service is after initiating disciplinary action by issuing a charge memo alleging misconduct for unauthorised absence and dereliction of duty (Ext.P8). Rule 75 insists for certain procedures to conduct a disciplinary enquiry. The contention raised by the Manager in the counter affidavit is that the Deputy Director of Education decided to conduct an enquiry initially on 13.6.2005, but on the request of the petitioner, it was adjourned to 21.6.2005 and on that day the representative of the petitioner attended. Ext.R1(a) is the copy of the enquiry report.
22. Next I will consider whether a proper enquiry was conducted. What are recorded in Ext.R1(a) will throw light on this aspect. In the opening paragraph it is stated that on 21.6.2005 in the office of the Deputy Director of Education and on 30.6.2005 in the office of the Assistant Educational Officer and in the school, a "hearing and enquiry" was conducted. It also reveals that initially the date proposed was 13.6.2005 W.p(c) 14285/2005 -:17:- and it was adjourned to 21.6.2005 at the request of the petitioner. The proceedings show that those present on the said date were the Assistant Educational Officer, the representative of the Manager, the Headmaster apart from the representative of the petitioner. It does not show that any oral evidence was adduced. What is recorded are the submissions made on behalf of the Manager and the Assistant Educational Officer and finally certain conclusions have been arrived at. Nothing is discussed about what transpired on 30.6.2005. There is no reference about the pleas raised by the petitioner.
23. The requirements of a proper enquiry are not satisfied, going by a reading of the said report. Rule 75 provides for a detailed procedure for conducting enquiry. Even though the word 'enquiry' is mentioned in the report, evidently what is conducted by the Deputy Director of Education is only a hearing. Going by sub-rule (6) of Rule 75, the inquiring authority will have to consider the documentary evidence and is empowered to take oral evidence. He will have to allow the delinquent an opportunity to cross examine the witnesses, if any, examined in support of the charges. The presenting officer will have to be given an opportunity to cross examine the delinquent as well as the witnesses examined on his defence. Sub-rule (7) W.p(c) 14285/2005 -:18:- provides for submitting a list of witnesses by the delinquent.
24. A Division Bench of this Court in Radhamma v. Thulasi Bai (2006 (3) KLT 909), was of the view in paragraphs 7 and 8 of the judgment that "the disciplinary action can be finalised only after conducting a formal enquiry as envisaged under Rule 75 of Chapter XIV-A K.E.R. Enquiry report can be drawn by an inquiring authority after conducting a formal enquiry as envisaged in Rule 75 Chapter XIV-A K.E.R. For that, the witnesses in support of the charges have to be examined and the delinquent has to be given an opportunity to cross examine the said witnesses." In fact, these provisions are mandatory when an enquiry is actually conducted. In a recent Judgment of this Court reported in Manager v. State of Kerala and Others [2012 (2) KHC 351], the learned Single Judge after considering the impact of Rule 75 of Chapter XIV A Kerala Education Rules has laid down the legal position thus in para.9:-
"In effect, Rule 75 does contain all the said requirements for a valid enquiry to be conducted under that Rule. Therefore enquiries under Rule 75 should also be conducted in accordance with principles for conducting enquiries against Government servants. Normally such enquiries consists of first issuing a memo of charges, getting a written statement from the W.p(c) 14285/2005 -:19:- delinquent, forwarding of the papers to the Educational Officer (which are to be done by the manager), examination of witnesses cited by both sides with opportunity to the opposite side to cross-examine the witnesses, recording the deposition of the witnesses, getting signature of the witnesses as well as the manager and the teacher in the depositions of witnesses as well as daily proceedings of the enquiry, hearing arguments on the evidence or accepting argument notes and preparing an enquiry report considering the evidence in the enquiry entering specific findings as to whether the charges levelled against the teacher are proved or not and forwarding the same to the Manager. ..............."
In that case also this Court was concerned with the non conduct of disciplinary enquiry as per the procedure prescribed under Rule 75. Therefore, I find force in the submission of the learned counsel for the petitioner that no proper enquiry was conducted and only a hearing was conducted by the Deputy Director of Education. Thus, Ext.R1(a) cannot be legally sustained. It is not clear, why the Deputy Director himself has chosen to take up the matter.
25. The next aspect is whether the leave application should have been forwarded to the proper authority. The respondents have got a case W.p(c) 14285/2005 -:20:- that the petitioner was bound to rejoin, as the leave was not sanctioned. According to the learned counsel for the petitioner, sanctioning authority of leave of the kind applied for by the petitioner, is the Government and the Manager could not have refused to forward the application. It is evident from the proceedings that the Manager has not forwarded the application for leave to the Government through the Assistant Educational Officer. The leave applied for is under Appendix XII-B of Part I K.S.R., for study purpose. The leave sanctioning authorities are mentioned in Rules 57 and 58 of Chapter XIV-A K.E.R. Going by Rule 57, the Headmaster is competent only to grant casual leave to teachers and non teaching staff. The Educational Officer shall be the competent authority to grant casual leave to Heads of Schools. Going by Rule 58, the Educational Officer shall be the competent authority to grant all kinds of leave other than study leave and special disability leave to teachers and non teaching staff. The grant of study leave and special disability leave requires the sanction of the Government. Rule 58(2) details the procedure for forwarding the application for leave which states as follows:
"(2) On the receipt of an application for leave under sub-rule (1) the Headmaster shall forward the same to the Educational Officer W.p(c) 14285/2005 -:21:- with his remarks through the Manager so as to enable him to make substitute arrangements. The manager shall forward the application for leave along with his remarks to the Educational Officer within three days from the date of receipt of the communication from the Headmaster. Copies of orders sanctioning leave shall be furnished to the Manager also in addition to the Headmaster."
Herein, there cannot be any dispute that the leave applied could not have been refused by the Headmaster or the Manager as they are not the competent authorities to deal with it. Since study leave was sought, sanction of the Government itself was required. The procedure prescribed is to forward the application along with the remarks through the Educational Officer. Therefore, the Manager could not have refused to forward the application stating that he has got objection in the matter. He will have to forward the application with his objection, if any, in the matter which procedure has not been adopted.
26. The petitioner, it appears, had in the meantime completed the B.Ed. course and was directed to be admitted to duty by the Assistant Educational Officer, by Ext.P11 order, but the same was not implemented. It appears that the additional 7th respondent was appointed by the Manager W.p(c) 14285/2005 -:22:- as Peon, after terminating the service of the petitioner. From the additional counter affidavit filed by the first respondent on 14.3.2012, it can be seen that the additional 7th respondent was promoted as U.P.S.A. and the appointment has been approved as per Ext.R1(b). Thereafter, one Smt. Shamila Beegum was appointed as Peon and she was also promoted as U.P.S.A. with effect from 1.6.2009. In her vacancy one Shri E.A. Soju was appointed as Peon from 1.6.2009 onwards and this appointment is also approved as per Ext.R1(c). Since these appointments are in the place of the petitioner, once Ext.P15 is held as illegal, she will have to be reinstated in service.
27. The petitioner is entitled to succeed in the light of the findings rendered above. It is declared that the disciplinary proceedings and consequent removal from service are vitiated by violation of Rules 6(c)and 75 of Chapter XIV-A K.E.R. Accordingly, Ext.P15 is quashed. The petitioner will be readmitted to duty within 10 days from the date of production of a copy of this judgment. Thereafter, the Manager will forward the application for study leave of the petitioner to the Government with his remarks/objections, if any, within a further period of two weeks through the Assistant Educational Officer, the third respondent and the W.p(c) 14285/2005 -:23:- Government will thereafter take a decision within a period of four months from the date of receipt of the application and a copy of this judgment. Such a decision will be taken after notice to both parties. The Manager will be free to adjust Shri E.A.Soju, whose appointment has been approved as per Ext.R1(c), in any other vacancy of non teaching staff, if any, available in the school.
The writ petition is allowed as above. No costs.
(T.R.Ramachandran Nair, Judge.)
kav/