An unseemly legal battle threatens to range on an issue of keeping a Headmaster under suspension. Given the acrimonious atmosphere the issue has engendered, this Court proposes to put a quietus on the issue through this judgment, hopefully.
2. Very briefly stated, the petitioner, the Headmaster of a School under the management of the fourth respondent, was placed under suspension through Exhibit P1 order dated 07.06.2014. When the fourth respondent Manager submitted the necessary proposal before the first respondent seeking sanction of the said authority to continue the petitioner under suspension, after conducting a preliminary enquiry, through Exhibit P3 order, the first respondent refused to extend the period of suspension. Since the statutory period of suspension comes to an end by the 15th day owing to a deeming provision under Rule 67(8) Chapter XIV A of Kerala Education Rules (KER), the petitioner made his efforts to join the duty, but was not permitted by the person in charge citing the reason that she had no instructions in that regard.
3. Left with no other option, the petitioner approached the first respondent by filing Exhibit P4 representation seeking necessary directions to the fourth respondent to admit the petitioner to duty. When the first respondent did not act on his Exhibit P4 representation, the petitioner further moved the second respondent by filing Exhibit P5 representation. Through Exhibit P6 order, the second respondent directed the petitioner to approach the first petitioner once again. In compliance thereof, the petitioner once again submitted Exhibit P7 representation to the first respondent. As no further developments took place subsequent to the submission of Exhibit P7 representation before the first respondent, the petitioner approached the third respondent by filing Exhibit P8 representation. Pending consideration of the Exhibit P8 representation by the third respondent, the petitioner has filed the present writ petition.
4. As a matter of subsequent developments, it can be seen from the record that the fourth respondent Manager, after the petitioner's filing the writ petition, filed Exhibit R4(h) revision on 06.08.2014 before the additional fifth respondent invoking Rule 92 of Chapter XIV A of Kerala Education Rules (KER). Eventually on 04.09.2014, the revisional authority passed Exhibit P11 order directing the second respondent to extend the period of suspension until further orders. In turn, the second respondent through Exhibit R4(m) passed orders extending the period of suspension until further orders on 01.10.2014.
5. Taking note of the subsequent developments, especially in the light of Exhibit P11, the petitioner filed I.A.No. 12836/2014 seeking amendment of the pleadings and also seeking further relief, necessitated by the changed circumstances. The record reveals that the interlocutory application was allowed on 23.09.2014. The petitioner has also brought on record additional fifth respondent, the Government, through I.A.No.12837/2014, which came to be allowed by this Court on the same day, i.e. 23.09.2014.
6. In the above factual background, the learned counsel for the petitioner has made elaborate submissions. In the words of the learned counsel, unsustainability of Exhibit P11, and also the vindictive and mala fide attitude of not only the fourth respondent, but also the additional fifth respondent, are very apparent. To begin with, the learned counsel for the petitioner, having taken this Court through the sequence of events and substantial documentary material that has come to be produced at various stages owing to steps taken either by the petitioner or by the fourth respondent Manager, has strenuously contended that all through the fourth respondent has acted contumaciously and in clear negation of the rule of law.
7. Incidentally, the learned counsel has brought to the notice of this Court another writ petition filed by the petitioner in W.P.(C) No.18096/2014 seeking suitable action against the fourth respondent Manager for what is said to be gross abuse of power by him. According to the learned counsel, given the fact that the petitioner has brought to the notice of the authorities the misdeeds being committed by the fourth respondent, he has decided to act vindictively giving a go-bye to the statutory provisions.
8. Referring to Exhibit P1 suspension order, the learned counsel for the petitioner has submitted that though the charges are trivial and inconsequential, they have been made only for the purpose of placing the petitioner under suspension. The first respondent, having considered the entire issue, contends the learned counsel, passed Exhibit P3 order refusing to extend the period of suspension. According to him, Rule 67 mandates through a deemed provision that on the expiry of the 15th day, in the face of refusal by the competent authority, i.e. the first respondent, to extend the period of suspension, it is deemed that the employee, who had been placed under suspension, is reinstated in the service forthwith. Taking the said legal fiction to its logical end, especially in the light of Exhibit P3, the petitioner stood reinstated in the service, notwithstanding the refusal of the fourth respondent to allow him to discharge his duties. Referring to the steps the fourth respondent took before his approaching the additional fifth respondent by filing Exhibit R4(h) revision, the learned counsel has contended that none of the proceedings, the fourth respondent invited through Exhibits R4(f) and R4(g), is of any consequence.
9. The learned counsel for the petitioner has drawn the attention of this Court to Exhibit P11(a), the departmental notings on the file obtained by the petitioner by taking recourse to the provisions of Right to Information Act. He has submitted that all along the authorities concerned advised the Hon’ble Minister, the decision maker, not to proceed in the matter ex parte without verifying the necessary records and obtaining the requisite information from the Education Department. In utter disregard of the said advice, the revisional authority, submits the learned counsel, passed Exhibit P11 directing the second respondent to extend the period of suspension.
10. The learned counsel has also questioned the legality of Exhibit R4(m) passed by the second respondent extending the suspension, by stating that in the first place, by the time Exhibit P11 was passed on 04.09.2014, there was no suspension in existence to be extended. According to him, the entire exercise on the part of the revisional authority is an exercise in futility. Without conceding, yet as a matter of alternative submission, the learned counsel has stated that if at all the revisional authority ought to have proceeded further under Rule 92, which is essentially a residuary power, he ought to have put the petitioner, the affected person, on notice and adjudicated the matter on merits.
11. Thus, the learned counsel strenuously contends that the entire proceedings, beginning with placing the petitioner under suspension till extending the said suspension through Exhibit R4(m), are expressly illegal, arbitrary and unsustainable. Accordingly, he has urged this Court to allow the writ petition by setting aside Exhibit P11.
12. When a query is put why challenge has not been laid against Exhibit R4 (m), the learned counsel has stated that it was passed by the second respondent only on 01.10.2014, much later in point of time, and that, at best, it is only a consequential order, the survival of which is entirely dependent on the sustainability of Exhibit P11. The learned counsel, in justification of not laying challenge against Exhibit R4(m), has further submitted that even before the said order could be passed by the second respondent, the petitioner filed I.A.No.12838/2014 before this Court seeking interim suspension of Exhibit P11.
13. At that time, when I.A.No.12838/2014 was initially filed by the petitioner, the learned counsel for the fourth respondent stoutly resisted the said application and sought time to file counter. Before the counter could be filed, contends the learned counsel, Exhibit R4(m) came to be passed. Under those circumstances, the petitioner could not impugn Exhibit R4 (m).
14. Per contra, the learned counsel for the fourth respondent with equal vehemence has opposed the claims and contentions of the petitioner. Firstly, he has submitted that it was entirely on a misconception of fact and law that the first respondent came to pass Exhibit P3 order refusing to extend the period of suspension. In furtherance of his submissions, the learned counsel has pointed out that Exhibit P3 clearly reveals that the first respondent considered the whole issue as if there had been only one charge against the petitioner. According to him, all the charges are grave in nature, and as such, it is not correct on the first respondent’s part to hold that the charges are inconsequential or trivial.
15. The learned counsel for the fourth respondent has further submitted that when Exhibit P3 order was passed by the first respondent on 19.06.2014, immediately on 21.06.2014, the fourth respondent bona fide approached the second respondent questioning Exhibit P3 order. In turn, the second respondent passed Exhibit R4(f) order on 16.07.2014 directing the fourth respondent to approach the District Educational Officer under Rule 81 of Chapter XIV A, KER. On 05.08.2014, truly in compliance with the direction given by the second respondent, the fourth respondent approached the District Educational Officer by submitting Exhibit R4(g) application. Nevertheless, no orders have been passed on Exhibit R4(g) application submitted by the fourth respondent.
16. According to the learned counsel for the fourth respondent, all along, having approached different authorities under a bona fide impression that they are the competent authorities to redress his grievance, eventually on legal advice, the fourth respondent came to realize that his only remedy to question Exhibit P3 order was to file a revision before the additional fifth respondent by invoking Rule 92 of Chapter XIV A, KER. Accordingly, on 06.08.2014, the petitioner filed Exhibit R4(h) revision before the additional fifth respondent.
17. Stoutly defending Exhibit P11, the learned counsel for the fourth respondent has submitted that time and again this Court has held that in the event of refusal to extend the period of suspension, the only option available for the Manager is to invoke the residuary provision, namely Rule 92 of KER, and that once it is invoked, it is entirely within the competence of the revisional authority to take note of the subsequent developments from the date of passing of the initial order of suspension and issue appropriate directions, interim or otherwise, including that of extending the period of suspension, before the issue raised in the revision could be decided finally. Thus contends the learned counsel that Exhibit P11 is unexceptionable and cannot be interfered with.
18. The learned counsel for the fourth respondent, making reference to Exhibit R4(i), which is said to be the communication dated 19.06.2014 from the District Panchayath Officer, strenuously contends that the petitioner is a person with questionable character and has taken recourse to abuse of power, which includes attending the Panchayath Board meetings being its member, while he was actually on duty at that material point of time. He has further submitted that since the information was obtained by the fourth respondent belatedly, he could not incorporate those charges initially in Exhibit P1 suspension order, and as such, he subsequently issued Exhibit R4(k) show cause notice to the petitioner.
19. Thus, taking all aspects into consideration, according to the learned counsel, the fourth respondent has every justification to keep the petitioner under suspension, and for the revisional authority to extend the said suspension. Eventually, summing up his submissions, the learned counsel for the fourth respondent has urged this Court to dismiss the writ petition as meritless.
20. At this juncture, the learned counsel for the petitioner has submitted that the allegations in Exhibit R4(k) are totally unfounded and mala fide; they have been properly dealt with in the petitioner's reply submitted in response to the said charges. In any event, before adjudicating the issue on merits, this Court makes it clear that the allegations as contained in Exhibit R4(k) show cause notice are not part of the present cause of action, and as such, they need not be addressed at this juncture. At the same time, it is made clear that, in the manner permissible under law, the fourth respondent is at liberty to proceed against the petitioner on the strength of Exhibit R4(k). It is needless to observe that, in such an event, the petitioner can as well defend himself by taking necessary steps in that regard.
21. Heard the learned counsel for the petitioner and the learned counsel for the fourth respondent, as well as the learned Government Pleader, apart from perusing the record.
22. Prefatorily it was observed that the controversy threatens to engender bitterness and bad blood between the Manager and the Headmaster of the School, the paramount duty of both of whom is to serve the cause of education by taking care of the young minds, the inestimable asset of the nation.
23. The suspension has been sought to be persisted with by the fourth respondent Manager all through despite a clear order of rejection by the first respondent, the primary authority to extend or not to extend the period of suspension. Notwithstanding the deeming provision and notwithstanding the advice rendered by the officers concerned in terms of the statutory provision, as could be seen from Exhibit P11(a), the revisional authority has decided to proceed ex parte and extend what can be said to be a non-existing order of suspension through Exhibit P11.
24. At the outset, it is made clear that the fourth respondent's invocation of Rule 92 to file Exhibit R4(h) revision before the additional fifth respondent cannot be found fault with. At the same time, we cannot lose sight of the distinction between the procedural right to approach a forum and the substantive right of obtaining an order, which requires the consideration of the matter on merit.
25. Since the entire issue relates to Rule 67, it is profitable to extract the said Rule to the extent required. It reads as follows:
“67. Suspension : (1) The Manager may at any time place a teacher under suspension.
(a) when disciplinary proceedings against him are contemplated or are pending or
(b) when a case against him in respect of any criminal offence is under investigation or trial or
(c) when the final orders are pending in the disciplinary proceedings if the authority considers that in the then prevailing circumstances it is necessary, in public interest that the teacher should be suspended from service.
...........
(7) whenever a teacher is placed under suspension he shall be paid such subsistance and other allowances as may be allowed to Government servants.
Provided that no teacher shall be placed under suspension by the manager for a continuous period exceeding 15 days without the previous sanction of the [Deputy Director (Education)] in the case of Headmasters of Secondary schools and Training school and of the Educational Officer in other cases.
(8) Where the orders of suspension is made by the manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and were the suspension is in respect of Headmaster of Secondary school and Training school such reports shall be sent to the [Deputy Director (Education) also in addition to the Educational Officer. The [Deputy Director (Education) if the suspension is in respect of Headmaster of a Secondary School or Training School and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager. If on such investigation it is found that there are valid grounds for such suspension, permission may be given to the manager to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days.
(8A) …” (emphasis added)
26. If the statutory scheme is examined, Rule 67 empowers the Manager to suspend the Headmaster. The said Rule also stipulates a strict time frame by specifying fifteen days as the upper limit for the period of suspension. By incorporating the deeming provision, the subordinate legislation has taken care of the issue that a teacher, including the Headmaster, presumably a pillar of the School, does not suffer prolonged suspension thereby affecting the academic atmosphere of the School.
27. Indeed, in terms of sub-rule (8) of Rule 67, even the Appellate Authority, i.e. the first respondent herein, has been mandated to decide the issue of extending or not extending the period of suspension within a specific time frame. In fact, the right of appeal is provided only to the teacher in the event of extension of the suspension period; no such right has been preserved in favour of the Manager.
28. As has already been observed, there is no legal impediment under those circumstances for the Manager to invoke the residuary provision of Rule 92. Thus, it can safely be said that Rule 92 does not specifically address the issue nor does it provide a detailed procedural mechanism in the event of the competent authority refusing to extend the period of suspension. To that extent, this Court is inclined to conclude that it is very essential, especially in the absence of any specific procedural parameters fixed, for the revisional authority to strictly adhere to the principles of fairness, such as audi alteram partem, before passing any order affecting one of the parties to the proceedings, especially after a considerable lapse of time. It is made clear that the right of hearing need not always be that of personal hearing, as is evident from Rule 92 itself.
29. A perusal of Rule 67 unmistakably establishes that the provision is couched in mandatory terms. Time and again Courts have held that if any statutory provision incorporates a legal fiction, namely a deeming provision, it has to be given its full value and all consequences flowing from the said fiction shall be taken to their logical end.
30. If the above well-settled legal proposition is taken into account, what emerges is that on the expiry of fifteenth day, especially in the face of Exhibit P3, it is deemed, for all practical purposes, that the petitioner stood reinstated. Once it is accepted that the petitioner was reinstated, though he was prevented from discharging his duty owing to any supervening circumstance not in his control - in the present instance, the refusal of the fourth respondent to honour Exhibit P3 - the employee could not be made to suffer.
31. It is axiomatic that a deeming provision brings into existence a legal fiction whereby what has not been done is deemed to have been done. The non-existing state of affairs has come to have its full play. Such assumed events shall be given full effect. It is equally well established that the legal fiction can be made use of for the purpose it has intended to serve but not beyond. Its full run in the interpretative process can only be curtailed if the deeming provision brings penal consequences, when alone it requires strict interpretation.
32. In the light of the deeming provision, and especially in the light of the fact that the first respondent through Exhibit P3 refused to extend the period, the petitioner has stood reinstated in service. In such an event, extending the period of suspension would amount to nothing but placing the delinquent under suspension once again reviving a dead order based on the material, which was initially found to be insufficient by another competent authority, though at the lower echelons. Thus, in my considered view, any amount of caution is required to exercise by the revisional authority, more particularly, while exercising the residuary power, as it is the case with Rule 92, for the revisional powers, unlike appellate powers, are severely circumscribed.
33. My observation has been further fortified in the face of the fact that Exhibit P11(a), obtained by the petitioner under the provisions of Right to Information Act, amply demonstrates that the authorities have repeatedly advised the revisional authority not to take any precipitous steps without examining the issue in detail, especially without obtaining the necessary information from the department concerned.
34. It is further appropriate to examine Rule 92 which reads, to the extent relevant, as follows:
Revision:- [(1)] Notwithstanding anything contained in these rules the Government, may on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority [in respect of matters contained in this Chapter] which is made or is appealable under these Rules:-
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce confirm or enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as they consider proper in the circumstances of the case or
(d) pass such other order as they deem fit…”
(emphasis added)
35. A perusal of Rule 92 makes it manifestly clear that the revisional authority does not have the power to pass original orders. It can confirm, modify or set aside the order sought to be revised. In the present instance, there is no order subsisting to be confirmed, leave alone modified.
36. Another aspect of the issue that is required to be addressed is the fourth respondent's bleated approach to the second respondent. The fourth respondent filing an application on 21.06.2014 before the second respondent questioning Exhibit P3 order, and later, on the direction of the said authority, his approaching the DEO under Rule 81 by filing another petition, are of no legal consequence. It can safely be said that once an authority has not been assigned any power under any provision, the steps taken by the said authority, including the directions given, do not confer any right on the person who approached the said authority. In essence, the order passed on the direction of the said authority suffers from the vice of ultra vires.
37. However, appealing are the pleas of the fourth respondent that he had bona fide been pursuing the matter before the second respondent, that, in that context, the delay had occurred before he could approach the revisionsal authority, and that the said delay should not work to his prejudice, they cannot, in my considered view, be countenanced.
38. In A.K. Janardhanan v. Joint Registrar of Co- operative Societies and Ors., (1990 (1) KLJ 477), the oft repeated judicial dictum of vintage value, beginning with Taylor v. Taylor (1876 (1) Ch D 426), having found its way to India through Nazir Ahmad v. King Emperor, (AIR 1936 PC 253), has been reemphasized to the effect that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Even if there be no negative words, that shall not be done in any other way. Other modes of performance are necessarily forbidden.
39. Though this Court does not doubt the power of the revisional authority to act under Rule 92, at the same time, it is requisite to emphasise one aspect: in the light of Rule 67 sub-rule (8), once it is accepted that the petitioner is deemed to have been reinstated into service, the revisional authority ought not to have passed orders in Exhibit P11, more particularly ex parte, extending a non-existing order of suspension. In my considered view, Exhibit P11 is an order without any legal consequence. Ipso facto Exhibit R4(m) also suffers from the same vice.
40. In the facts and circumstances, Exhibit 11 passed by the fifth additional respondent is set aside; further the consequential order passed in Ext.P11(a) is also set aside, with a direction to the 4th respondent to allow the petitioner to function as the Headmaster. It is, however, made clear that, if any disciplinary proceedings have been initiated and pending, or yet to be initiated, the reinstatement of the petitioner shall be subject to the outcome of those proceedings. The petitioner, under these circumstances, shall be paid salary and allowances from the 16th day of his original suspension, for he is deemed to have been functioning as the Headmaster from the said date.
With the above observations, and directions, the writ petition is allowed. No order as to costs.
DAMA SESHADRI NAIDU JUDGE DMR/-