K. VIDHU v. STATE OF KERALA

v) Issue such other or further appropriate writ, order, or direction to the respondent as this Hon’ble Court may deem fit and necessary in the interest of justice to the petitioner including the cost of the writ petition; vi) Petitioner also prays that this Hon’ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language. WP(C) No.41569 OF 2023 3

The facts which led to the filing of this Writ Petition, in brief, are as follows: The petitioner was appointed as the Principal of the Edamon Vocational High Secondary School managed by the 6th respondent, as he was the senior-most teacher in the said school. Being the head of the Institution, the petitioner was appointed as the Chief Superintendent of Examination and Sri. Rahim H., the non vocational teacher V.H.S.S., Thadicadu was appointed as the Deputy Chief Superintendent of Examination for the conduct of examination for the year 2022-2023.

One of the examinations was conducted on 10.03.2023 for 1st year VHSC. However, when the petitioner distributed the question papers for that date of examination, instead of the subject of the examination for the said day, the subject of “Entrepreneurship and Development” meant for class XI which examination was supposed to take place on 30.03.2023 was opened and distributed to the Invigilators of Exam in the examination hall. The said mistake was noticed after its distribution to the students. Immediately, the same were taken WP(C) No.41569 OF 2023 4 back and the correct question papers were supplied to the students concerned and the examination was, thus, conducted. The said incident snow balled into a controversy and a preliminary inquiry was conducted by the authorities concerned, which ultimately recommended for initiation of disciplinary proceedings against the petitioner and the said Rahim, the Deputy Chief Superintendent of Examination.

Accordingly, the petitioner was suspended with effect from 15.03.2023 and the same was ratified by the educational authorities as well. The initial period of suspension of 15 days was later extended for a period of six months. Thereafter, Exhibit P9 Memo of charges along with Ext.P10 statement of allegations were served upon the petitioner by the 6th respondent. The petitioner submitted Ext.P11 written statement to the same.

Thereafter, on the basis of the same, the Senior Administrative Officer attached to the 2nd respondent was entrusted with the task of conducting an inquiry and as part of the same, a notice was issued by the said officer to the Principal of the School, intimating that, as part of the inquiry, he will be conducting a sitting on 20.06.2023 in the school at 11 a.m. On WP(C) No.41569 OF 2023 5 that day, an inquiry was conducted but the petitioner was not present and he submitted a communication to the Principal in charge, conveying his inability to appear on the said day as he was advised to take bed rest, consequent to an injury sustained to his ligament of the left leg. A medical certificate was also forwarded along with the said communication. On that day, eight witnesses were present and the inquiry officer read out to them, the statements already given by the said witnesses before the Examination Secretary and the Assistant Director while they have conducted a preliminary inquiry in the matter. Thereupon, all the said witnesses have stated that, they stand by the said statements. Thereafter, the petitioner was given a further opportunity for being heard on 26.7.2023. On that day, he appeared before the inquiry officer, the 5th respondent herein, and highlighted his objections. It is to be noted that, in the meantime, the suspension of the petitioner was revoked on the basis of Ext.P6 judgment passed by this Court holding that, a continuation of suspension was illegal.

Thereafter, the 5th respondent concluded the inquiry and Ext. P12 report was submitted, holding the petitioner guilty of the WP(C) No.41569 OF 2023 6 charges and recommending to recover the loss sustained to the Government due to the lapses on the part of the petitioner and Sri. Rahim. It was also recommended that, as the petitioner carried out the responsibilities to conduct the examination very casually and submitted written statement justifying the said lapses, the punishment was to be imposed.

On the basis of Ext.P12 inquiry report, the 6th respondent Manager issued Ext.P1, as a preliminary order, proposing to impose a penalty of Reversion of the petitioner from the post of Principal, upon the petitioner by relying upon the stipulations contained in Chapter XIV-A Rule 75 of KER. Exhibit P1 was communicated to the petitioner along with Ext.P2 in which the petitioner was asked to submit his objections if any, to the proposed punishment within a time frame. Even though an objection was submitted to the same, the 6th respondent as per Ext.P16 passed an order dated 13.11.2023 confirming the punishment of reversion as proposed in Ext.P1. Consequently, Ext.P17 was issued appointing the 7th respondent as the Principal. This writ Petition was submitted in such circumstances with the prayers mentioned above. WP(C) No.41569 OF 2023 7

The Government as well as the 6th respondent filed detailed counter affidavits along with documents supporting their respective contentions justifying the impugned orders. The petitioner submitted a reply affidavit to the both the counter affidavits filed.

Heard Sri. N. Unnikrishnan, the learned counsel for the petitioner, Sri. Premchand R. Nair, the learned Govt. Pleader and Sri. Dr.George Abraham, the learned counsel appearing for the 6th respondent.

A very detailed arguments were placed by the learned counsel for the petitioner mainly contending that while conducting the inquiry, the 5th and 6th respondents have not followed the procedure as contemplated under Rule 75 of Chapter XIV-A of KER. He also contends that the procedure adopted was in violation of principles of natural justice. He relies on the decision of the Hon'ble Supreme Court in Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise Gauhati and Others [2015 (8) SCC 519].

On the other hand, the learned Government Pleader as well as the learned counsel for the 6th respondent, opposed the WP(C) No.41569 OF 2023 8 said contentions.

The first and foremost contention raised by the learned counsel was that, while conducting inquiry, the statements of the witnesses were recorded not in the manner as contemplated under Rule 75 of Chapter XIV-A of KER. The specific case of the petitioner is that, first of all, no statements of the witnesses have been recorded and instead, the 5th respondent simply read out, the statements already given by the said witnesses during the preliminary inquiry conducted by another authority, to them and obtained affirmation of the same from the respective witnesses. Moreover, the said exercise was conducted in the absence of the petitioner and, therefore, the petitioner was denied the opportunity to cross-examine the witnesses. In response to the said contentions, the learned counsel for the 6th respondent pointed out that, in fact the petitioner never asked an opportunity to cross- examine the witnesses and such a request was conspicuously absent when he appeared before the 5th respondent/inquiry officer on 26.7.2023 even though, the statements of the witnesses were recorded on 20.6.2023 i.e prior to the date of hearing of the petitioner. Moreover, the learned counsel for the petitioner also WP(C) No.41569 OF 2023 9 placed reliance upon Ext.P4 reply given by the petitioner to the Assistant Director, VHSE, Kollam, as an explanation, during the course of preliminary inquiry. The said communication was dated

14.3.2023.

On carefully examining the contentions raised in this regard from either side, I find some force in the contentions of the learned counsel for the petitioner. It is to be noted that, Rule 75 of Chapter XIV-A of KER, specifically deals with the procedure to be followed for imposing major penalties. Sub Rule 6 of Rule 75 specifically authorizes the inquiry authority to take oral evidence as part of the inquiry. However, it is specifically stipulated in the provision that the teacher against whom the proceedings are initiated shall be entitled to cross-examine the witnesses in support of the charges. More pertinently, in the Note to sub-rule 6, it is specifically contemplated that, if the inquiry authority proposes to rely on the oral evidence of any witness, the authority should examine said witnesses in the presence of the teacher and give an opportunity to cross-examine the witnesses. Thus, it is seen that, there is a mandatory requirement contemplated under the said provision to record the statements of witnesses in the WP(C) No.41569 OF 2023 10 presence of the teacher concerned and also to give an opportunity to cross-examine the said witnesses.

Of course it is true that, as contended by the learned counsel for the 6th respondent, there is nothing on record to show that, the petitioner had insisted for opportunity to cross-examine the witnesses when he appeared before the 5th respondent on

26.07.2023. However, I am of the view that, the same cannot be a reason to deny a statutory stipulation specifically contemplated under the rules. The requirement for recording the statements of the witnesses in the presence of the teacher and to provide opportunity to cross-examine the said witnesses are mandatory requirements for a legally sustainable disciplinary proceeding and such an opportunity should have been granted to the petitioner even in the absence of any specific request in this regard. In other words, without providing such an opportunity, the inquiry conducted by the respondents 5 and 6 cannot be treated as complete. This is particularly because, Note to sub rule 6 of Rule WP(C) No.41569 OF 2023 12 75 of Chapter XIV-A of KER, starts with the words “if the inquiry authority proposes to rely on the oral evidence of any witness......” Therefore, unless the said opportunity is not provided to the teacher concerned, the inquiry authority cannot rely on such evidence. Here in this case, it is evident from Ext.P12 that, the finding of the inquiry authority holding the petitioner guilty of the charges is mainly based on the statement of witnesses. Therefore, I find that, there are serious procedural lapses which vitiate the finding in Ext.P12 inquiry report and the imposition of penalty upon the petitioner.

Yet another controversy arises in this writ petition pertains to the charges framed against the petitioner. Even though the basic allegation against the petitioner was that, he handled the responsibility to distribute the question papers in a casual and careless manner, the learned counsel for the 6th respondent raised a further contention that, the petitioner purposefully suppressed the fact of wrongful distribution of question papers from the authorities concerned. The matter came to light only when the said fact was reported by some other persons and it became a serious issue. The learned counsel for the 6th respondent further WP(C) No.41569 OF 2023 13 contended that, as per Ext.P4, the petitioner had admitted that he did not furnish the information immediately after the incident. Therefore, it was pointed out that, the suppression of the information escalates the gravity of the offence committed by the petitioner and therefore, no interference needs to be made.

Of course it is true that, in Ext.P4, it is admitted that, he did not inform the matter to the authority concerned and his explanation in this regard was that, it was due to a bonafide mistake. However, the crucial aspect to be noticed is that, in Ext.P9 charge memo and the statement of allegations as evidenced in Ext.P10, the charges framed against the petitioner are confined to the distribution of wrong question papers for the examination conducted on 10.03.2023. There is no charge with respect to the suppression of information to the authorities concerned. On going through the scheme of Rule 75 of Chapter XIV-A of KER, it has to be held that, the person who is proceeded against, is to be informed of each and every charges against him specifically and he should be given opportunity to defend the said specific charges. Moreover, the punishment can be imposed upon him, on the basis of the specific charges put to him in the WP(C) No.41569 OF 2023 14 memorandum of charges which were established during the course of the inquiry.

The learned counsel for the petitioner raised various other contentions highlighting the lapses on the part of the 5 th and 6th respondents in conducting the disciplinary proceedings and also challenged the competence of the 5th respondent to conduct such an inquiry. However, I am of the view that, since I had already found that, the procedure adopted by the 5th and 6th respondents and the order issued on the basis of the same, are vitiated due to the reasons mentioned above, it is not necessary to go into the same.

The learned counsel for the 6th respondent placed reliance upon the decision rendered by the Hon'ble Supreme Court in Union of India & Others v. Managobinda Samantaray [2022 Live Law (SC) 244), State Bank of India and Others v. WP(C) No.41569 OF 2023 16 Samarendra Kishore Endow and Another [(1994) 2 SCC 537] and Union of India and Ors. v. Const Sunil Kumar [2023 LiveLaw (SC) 49]. However, the principles laid down in the said decisions pertain to the circumstances under which the penalty imposed upon the person concerned can be interfered with by the High Court under Article 226 of the Constitution of India, on the question of proportionality of punishment. Since I have found that the procedure adopted by the disciplinary authority was not proper, I do not find it relevant to consider the said question, as the matter has to be reconsidered by the authorities concerned, if they so chooses.

Another grievance highlighted by the petitioner is with respect to the revision of seniority of the petitioner as evidenced by Ext.P18. Consequent to the imposition of penalty as per Ext.P16 order, the seniority of the petitioner was refixed as per Ext.P18 and he was placed as serial No.6 in the seniority list as on

13.11.2023, despite the fact that, the petitioner was the senior most on the basis of the date of appointment of the petitioner. Of course, it is true that, as per Ext.P16 order, the petitioner was imposed with the penalty of reversion from the post of Principal. WP(C) No.41569 OF 2023 17 However, the same will not affect the seniority of the petitioner for other purposes as the same is based on the date of appointment of the petitioner. Therefore, Ext.P18 seniority list placing the petitioner as serial No.6 therein was not proper. Therefore, Ext.P18 is hereby set aside to that extent.

Thus, in the light of the reasons mentioned above, I hold that, the inquiry conducted by the 5th and 6th respondents which ultimately resulted in issuance of Ext.P16 order reverting the petitioner from the post of Principal is vitiated, on account of the violation of the statutory procedure contemplated under Rule 75 of Chapter XIV-A of KER, which also amounts to violation of principles of natural justice. Therefore, Exhibits P1, P2, P12, P15, P16 and P18 are hereby quashed with a direction to the respondents 1 to 6 to ensure that, the petitioner is re-instated as the Principal of the Edamon Vocational High Secondary School forthwith, without prejudice to the right of the 6th respondent to conduct a fresh inquiry, if so advised. It is further directed that, a fresh seniority list shall be published by the 6th respondent giving due consideration to the date of appointment of the petitioner.