SUMATHY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was working as Headmistress in Elayidom B.V.L.P. School, Nadapuram in Kozhikode District. She was placed under suspension as per Ext. P3 order dated 14.11.2012. Aggrieved by the continued suspension the petitioner moved Ext. P8 application seeking review of the suspension under R. 67(9) of Chapter XIV-A of the Kerala Education Rules (for short 'the KER'). Aggrieved by the delay in the matter of its consideration the petitioner moved W.P. (C) No. 28022 of 2012 and the same was disposed of by this Court as per Ext. P9 judgment with a direction to the 3rd respondent to consider and pass appropriate orders on Ext. P8 application. Consequently, Ext. P10 order was passed. This Writ Petition has been filed challenging Ext. P10 order whereby the request of the petitioner was declined and the 4th respondent was directed to complete the disciplinary proceedings initiated against the petitioner expeditiously and also with certain findings touching the allegations, as well. Apart from the grievance against Ext. P10 the petitioner has also another grievance regarding the failure on the part of the respondents in granting the benefits flowing from Ext. P1. According to the petitioner, the respondents have complied with the directions in Ext. P1 to certain extent by granting approval to her appointment as headmistress and at the same time they have failed to disburse the consequential benefits payable to the petitioner by virtue of Ext. P1. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader.

(2.) The learned Government Pleader submitted that in terms of the directions in Ext. P10 order, the fourth respondent completed the enquiry and submitted a report to enable the fifth respondent to conclude the disciplinary proceedings in accordance with law. It is further submitted that subsequent to its receipt, the fifth respondent proposed to impose the penalty of removal from service on the petitioner. However, the same was declined to be approved by the third respondent on the ground that the proposed punishment is disproportionate to the gravity of the offence proved against the petitioner. I am of the view that those aspects are relevant and noteworthy only to the extent they reveal the non-finalisation of the disciplinary proceedings. In case the disciplinary proceedings ultimately culminate in imposition of any penalty on the petitioner it can be subjected to further scrutiny in appropriate proceedings in case the petitioner desires to resort to such proceedings.

(3.) In this case I am of the considered view that despite such submission, as noticed hereinbefore, consideration of one important question became essential. The question that crops up for consideration is whether while exercising the powers under R. 67(9), Chapter XIV-A of the K.E.R., the authority could enter into any finding with respect to the charges leveled against the delinquent teaching staff or make any observation relating the same In other words, the question is whether Ext. P10 is ultra vires the provisions under R. 67(9), Chapter XIV-A, K.E.R. As noticed hereinbefore, in this case, the petitioner was placed under suspension as per Ext. P3 and what the petitioner sought for as per Ext. P8 was its review. This Court as per Ext. P9 judgment directed the third respondent to consider and pass appropriate orders on Ext. P8 and Ext. P10 was passed in its purported compliance. But the question is whether Ext. P10 can be said to be an order passed in invocation of the powers under R. 67(9) of Chapter XIV-A of the K.E.R. For a proper consideration of the aforesaid question it is inevitable to look into the real purport and intent of R. 67(9) of Chapter XIV-A, K.E.R. R. 67 of Chapter XIV-A of the K.E.R. deals with suspension of teachers. In fact, at the time of introduction of the Kerala Education Rules the Managers had no power to suspend a teacher without previous permission from the Department. The rule was then amended with effect from 1.7.1961 by notification published in Gazette dated 30.5.1961 empowering Managers to place a teacher under suspension for 15 days. Thereafter, as per notification published in Gazette dated 2.2.1965 the existing rule was replaced and still later based on the decision of a Full Bench of this Court in Assistant Educational Officer v. P.R. Mamoo, 1968 KerLT 556(F.B.)) a new set of rules was introduced as per Gazette notification dated 10.3.1970. The new sub-rule (9) was then amended as per G.O.(P) 17/78/G.Edn. dated 4.2.1978 published in Gazette dated 14.3.1978. As per the said amendment brought in by Government order dated 4.2.1978 review of suspension contemplated where aided school teacher/teachers continued under suspension for a period exceeding one year. The explanatory note which admittedly did not form part of the notification indicated the general purport as hereunder:-