K. P. Suresh Kumar v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 ``` ## **`WP(C) NO. 15324 OF 2021`** ## **`PETITIONER:`** ``` K.P.SURESH KUMAR KANDATHIL HOUSE, SOUTH OF S. V. TEMPLE, S. V. WARD, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 502. ``` ``` BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY KURUVILLA SABU CHRISTY ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695 014. 3DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA, PIN - 688 001. 4MANAGER SREE VITOBA HIGH SCHOOL, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 502. 5SREE VITTALA DEVASWOM S. V. WARD, KAYAMKULAM, ``` ``` WP(C) NO. 15324 OF 2021 ``` ``` 2 ``` ``` ALAPPUZHA DISTRICT, PIN - 690 502., REPRESENTED BY ITS PRESIDENT, SRI. G. VITTALADAS. ``` ``` 6DEPUTY TAHSILDAR KARTHIKAPPALLY TALUK, HARIPPAD, ALAPPUZHA DISTRICT, PIN - 690 514. ``` ``` 7VILLAGE OFFICER KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 502. ``` ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA V.A.MUHAMMED M.SAJJAD ``` ``` GP SRI JIMMY GEORGE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 15324 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** Demand prior to the attachment of land by the Collector through Deputy Tahsildar dated 09.03.2021 for recovering an amount of Rs.2,87,773/- as arrears of salary from the petitioner, who had been a Manager of Sree Vitoba High School, Kaymkulam, Alapuzha District has been challenged. 2. Petitioner is a member of Gowda Saraswatha Brahmin Community in the state of Kerala having a Devaswom Board under the name Sree Vittala Devaswom. It in possession and ownership of 40 acres of land and is a corporate educational agency and through proper procedure, had been working as the manager of the aforementioned school since 19.05.2014. His appointment was duly approved by the Departmental Authorities. The new Management Committee had taken charge on 13.09.2019 and the tenure of the petitioner terminated on 13.09.2019. 3. When the petitioner was holding the office of Manager of the School placed a Headmistress of the School Smt.R.Maya ``` WP(C) NO. 15324 OF 2021 ``` ``` 4 ``` under suspension on the basis of the information from majority of the teachers of the school that the said Headmistress was deliberately creating problems in the functioning of the school by repeatedly convening meetings in the midst of the class hours, at short notice, which adversely affected the entire work and discipline of the school. This was based upon an anonymous letter addressed to the Headmistress and accordingly served a show cause notice dated 16.02.2019 seeking an explanation from the Headmistress Ext.P1, which was duly replied on 17.02.2019 Ext.P2 and on 26.02.2019 actually suspended the Headmistress vide suspension order Ext.P3, which was placed before the Management Committee of the Devaswom Board. A unanimous decision to entrust the petitioner to take proper and strict measures in the matter was taken vide Resolution No.708 Ext.P4. The Headmistress Smt.Maya approached the Office of the Deputy Director of Education, challenging the order of suspension pending enquiry and as per the provisions of Rule 67(8) of Chapter XIV A of the Kerala Education Rules, Deputy ``` WP(C) NO. 15324 OF 2021 ``` ``` 5 ``` Director of Education, Alappuzha, conducted an enquiry on 08.03.2019 whereby not only the petitioner being the manager of the school but the Staffs’ Secretary, representative of the District Educational Officers and other teachers were heard in person. It was found that the that the complaint received at the school and on the basis of the enquiry that Smt.Maya had performed the duties vested in her as Headmistress and therefore the action for suspending her was not sustainable. In the result, Manager was directed to reinstate her forthwith with effect from 26.02.2019 vide order dated 12.03.2019 Ext.P5. 4. Petitioner preferred a revision under Rule 92 of Chapter XIV A of the Kerala Education Rules Ext.P6, three days after passing of the order Ext.P5. In the meantime, both the petitioner and Smt.Maya had also approached this Court by filing writ petitions, W.P.(C).No.9666/2019 for disposal of the revision petition and W.P(C).8054/2019 for reinstatement, respectively. This Court vide judgment dated 01.04.2019 issued directions to the Government to consider and pass orders ``` WP(C) NO. 15324 OF 2021 ``` ``` 6 ``` on revision Ext.P6 after affording an opportunity of hearing to the Manager and Headmistress within a period of three months from the date of receipt of the copy the judgment and in the meantime, Government was also directed to pass an order on the stay petition within a period of three weeks and deemed reinstatement of the Headmistress was ordered to subject to the decision to be taken in the revision petition and stay petition. 5. Learned counsel appearing on behalf of the petitioner submitted that the revision petition entailed into dismissal vide impugned order dated 20.06.2019 Ext.P8 resulting into recovery proceedings. The said proceedings are against the provisions of the Rules and cannot be made applicable to the petitioner in as much as that all the decisions taken by the management, was as per Rule 3(4) of the Kerala Education Rule Chapter III which would have a binding effect on the educational agency. The recovery was ordered against the manager, who is found to have committed serious irregularities causing monetary loss to the teachers/Government or the loss sustained by the ``` WP(C) NO. 15324 OF 2021 ``` ``` 7 ``` teachers/Government but not in respect of discharging his official duties like the suspension of Headmistress. The impugned order heavily relied upon the provisions of Rule 67(8) of Chapter XIV A which would not be applicable in the facts and circumstances of the case as the suspension was preceded by issuance of show cause notice and on receipt of the reply. Headmistress was restored the job only after the dismissal of the revision petition with effect from 20.06.2019. The tenure of the petitioner as the manger as stated above had expired in September, 2019. In support of the aforementioned contention relied upon the judgment of this Court in _**Vijeesh C.V.**_ v. _**State of Kerala and Others**_ [2014 (4) KHC 716], whereby the similar recovery sought to be recovered from a new manager, who had assumed the charge on account of the omissions and the commissions of his predecessor, had been held to be without jurisdiction. 6. On the other hand, learned counsel appearing on behalf of Sri.V.A.Muhammed for respondent No.4 submitted that ``` WP(C) NO. 15324 OF 2021 ``` ``` 8 ``` petitioner disobeyed the order of the DDE dated 12.3.2019 and assailed the order vide revision Ext.P6 on his own being the manager, which was lost vide order Ext.P8. Notice Ext.P9 had been issued to make good the loss sustained by the Government as it linked to the suspension and reinstatement of Smt.Maya the then Headmistress of the School. Petition is also liable to be dismissed for non-joinder of parties, for not impleading the Headmistress as a party. 7. 3[rd] respondent represented through Sri.Sai Lakshmi opposed the prayer of the petitioner on the ground that the 3[rd] respondent-Deputy Director of Education requested the Collector to recover the amount of Rs.2,87,773/- by means of revenue recovery as per Rule 3(1) of Chapter III of the Kerala Education Rules, as it is the manager, who shall be responsible to the department for the management of the institution. Nothing prevented the petitioner to reinstate the Headmistress, even if, the revision petition was preferred and this Court had also directed the competent authority dealing with the revision ``` WP(C) NO. 15324 OF 2021 ``` ``` 9 ``` petition to decide the interim stay within three months. The writ petition is bereft of any interim order passed by the competent authority. The recovery is being made by strictly applying the provisions of Rule 67(8) of Chapter XIV A of the Kerala Education Rules. The order impugned is detailed and based upon the fact and material on record and this Court cannot sit as an appellate authority on the same and urged this Court for dismissal of the writ petition with exemplary costs. 8. I have heard the learned counsel for the parties and appraised the paper book. 9. Before adverting the rival submissions of the parties, it would be expedient to extract the Rules relied upon in support of the submission and counter submissions:Rules 3 and 7 of Chapter III and Rules 67 and 92 of Chapter XIV of KER read thus: **“Rule 3: Management to be vested in a Manager** – (1) The Management of every aided school may be vested by the Educational Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the ``` WP(C) NO. 15324 OF 2021 ``` ``` 10 ``` institution. - (2) In the case of aided institutions under individual management the individual proprietor may be the Manager. 7 (3) In the case of aided institutions under Corporate management the proprietory body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2. (4) The Educational Agency shall be bound by the acts of the Manager. “ **“Rule 7: Action against Manager or Educational Agency in the** – **event of mismanagement etc.** (1) In the event of mismanagement, malpractice, corruption or maladministration, gross negligence of duty, or disobedience of Departmental instruction on the part of the Manager 9[or denial of appointment to a qualified thrown out teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier or denial of promotion to a teacher who is rightful claimant for promotion by the manager] 10[or conviction of the Manager for an offence involving moral turpitude] it shall be open to the *Director, after giving the Manager a reasonable opportunity to show cause against the action proposed to be taken and after due enquiry, to declare him unfit to hold the office of Manager in the school or in any other aided school and to require the ``` WP(C) NO. 15324 OF 2021 ``` ``` 11 ``` educational Agency to appoint a suitable person as Manager. Note - The enquiry mentioned in this sub-rule shall not be necessary in the case of conviction for an offence involving moral turpitude by a court of law. (2) Failure on the part of the Manager or the Educational Agency to obey the instructions issued by the Department in regard to the school matters CHAPTER III 9 and the continuance in office of a person declared unfit shall be deemed to be sufficient causes for taking steps for the withdrawal of aid, grant and/or recognition of the institution concerned and also for the withdrawal of the permission granted for establishment of the same. (3) In the case of Managers who have failed to provide their Schools with minimum essential facilities as specified under rules 9 and 10 of Chapter IV, it shall be lawful for Government to provide minimum essential facilities in such schools, after giving due notice to the Managers concerned and to recover the expenditure incurred therefor by Government from the Managers either by invoking the provisions of the Revenue Recovery Act for the time being in force as an arrear of land revenue or by deduction from the maintenance grant sanctioned to the Managers under rule 5 of Chapter XXVIII]. (4) In the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by ``` WP(C) NO. 15324 OF 2021 ``` ``` 12 ``` teachers/Government shall be recoverable from the Manager under the provisions of the Revenue Recovery Act for the time being in force as if it is an arrear of public revenue due on land, in the following cases namely- (a) Denial of appointment to a qualified thrown out teacher who has rightful claim for re-appointment by virtue of his/her holding the post earlier under rule 51 A Chapter XIV A. (b) Denial of promotion to a teacher to any higher grade of pay under rules 43, 43B or 43C, as the case may be, of Chapter XIVA, or denial of promotion to the senior- most rightful claimant to the post of Headmaster under rules 44 or 45 or 45 A, as the case may be, of Chapter XIV- A, when the post becomes vacant disobeying the directions from the department and /or Government, causing denial of all monetary benefits which he/she would have got had the promotion been effected as per rules in time. (c) Suspension of teachers, framing cooked up and/or frivolous charges, keeping them out of service beyond fifteen days disobeying the orders of re-instatement of such incumbents passed by the Deputy Director (Education) or by the Educational officer concerned, as the case may be, after a preliminary investigation into the grounds of suspension under sub-rule (8) of rule 67, Chapter XIV-A, depriving ``` WP(C) NO. 15324 OF 2021 ``` ``` 13 ``` such incumbents of their salary for which they would have been CHAPTER III 10 entitled to had they been reinstated by the Manager in compliance of the orders issued by the officer concerned. (d) Making of irregular appointments and getting them approved by the Educational Officers concerned by furnishing false information/ declaration by the Managers regarding the claimants, under rule 51 A. Chapter XIV A. - (5) After having effected such recovery the amount of loss sustained by the teacher concerned shall be paid to him, if not already paid.” **“Rule 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. - (2) The Government or an officer authorised by the Government under section 12A of the Act may suspend a teacher of an aided ``` WP(C) NO. 15324 OF 2021 ``` ``` 14 ``` school:- - (a) when any disciplinary proceedings are proposed to be taken against him or - (b) when disciplinary proceedings are pending against him. (3) A teacher who is detained in custody on a Civil, Criminal or other proceedings for a period exceeding 48 hours, shall be deemed to have been under suspension during that period and he cannot draw his pay and allowance, other than subsistence allowance, allowable under the rule till the final termination of such proceedings. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a teacher under suspension is set aside in appeal, revision or review under these rules and the case is remitted for further enquiry or action or with any other direction the orders of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (5) Where a penalty of dismissal removal or compulsory retirement from service imposed upon a teacher is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the authority on a consideration of the circumstances of the case decides to hold a further enquiry against him on the allegation on which the penalty of dismissal or removal or compulsory retirement ``` WP(C) NO. 15324 OF 2021 ``` ``` 15 ``` was originally imposed the teacher shall be deemed to have been placed under suspension from the date of the original order of dismissal removal or compulsory retirement and shall continue to remain under suspension until further orders. (6) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order. (7) Whenever a teacher is placed under suspension he shall be paid such subsistence 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 156[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 CHAPTER XIV A 122 the same day report the matter together with reasons for the suspension to the Educational Officer and where 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 ``` WP(C) NO. 15324 OF 2021 ``` ``` 16 ``` 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 manger. If on such investigation it is found that there are valid grounds for such suspension, permission may be given to the manger 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) Notwithstanding anything contained in sub-rule (8) the authority who permitted the suspension beyond 15 days or any higher authority may at any time during the pendency of such suspension, review such permission and if such authority is satisfied that the teacher under suspension has to be reinstated in service for reasons to be recorded in writing cancel the permission already ordered under sub-rule (8) and direct the Manager to reinstate the teacher in service. On such order, the Manager shall reinstate the teacher forthwith failing which the ``` WP(C) NO. 15324 OF 2021 ``` ``` 17 ``` provisions in sub-rule (8) will apply in such case] [(9) Cases where teachers suspended by Managers are continuing under suspension for a period exceeding [six months] have to be reviewed and decision taken soon as to whether they should continue to be under suspension or not. The review shall be conducted by an Officer immediately superior to the Officer who issued permission to place the Officer under suspension beyond 15 days. In cases where the suspension is ordered by the Government or an Officer authorised under section 12A of the Act such review shall be conducted by the respective authority or any authority higher than the one which issued the order of suspension. The review contemplated under this sub-rule will not apply to cases of suspension in pursuance of criminal proceedings in a Court or detention or as a prisoner for debt where sub rule (3) of rule 67 and rule 67A apply. “ **“Rule 92. 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 ``` WP(C) NO. 15324 OF 2021 ``` ``` 18 ``` 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; Provided that - (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry; (ii) if the Government propose to impose any of the penalities specified in items (iv) to (viii) of Rule 65 on a case where an inquiry be held and CHAPTER XIV A 132 thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit. Explanation:- For the purpose of this proviso and sub rule (ii) the person concerned shall include the Manager of a School whose orders are sought to be revised by the Government]. (2) Nothing contained in the proviso to sub-rule (1) shall be deemed to require the Government to give an opportunity for personal hearing ``` WP(C) NO. 15324 OF 2021 ``` ``` 19 ``` to the person concerned and it shall be sufficient if:- (i) Whether the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or (ii) Whether the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing a period specified in the notice and the Government pass final orders in revision after consideration of such representation. “ 10. On perusal of the provisions of Sub-Rule 4 of 3, no doubt the acts of the management would be binding upon the educational agency and Rule 7(4) reveals that the manager can be fastened with the liability in case of an act of omissions and commissions for causing loss to the Government and suspension of the Headmistress according to the petitioner would not be a loss. I am afraid the aforementioned argument cannot be accepted on the basis of the provisions of the aforementioned Rule but have to be read in conjunction with the other Rules ie., ``` WP(C) NO. 15324 OF 2021 ``` ``` 20 ``` 67A. On examination of the provisions of Rule 67, it is evident that if in the enquiry it is not found that suspended person had actually indulged into misconduct, the employee suspended would be deemed to be on the rolls and liable to claim the salary, which had been paid and sought to be recovered through demand notice. 11. There is no whisper and submission to counter the observation recorded in the impugned order that the teachers who attended the meeting for discussing anonymous letter against the management had submitted in favour of the petitioner. In fact, he suffered a statement that they had signed statement without completely reading the same and one of the teachers had even not attending the meeting but also signed the statement. It appears that there was some kind of disharmony between the petitioner and the Headmistress which resulted into suspension. Personal views or vengeance cannot be brought into service and therefore the legislature in the wisdom protected the interests of the employees as well as of the educational agency much less the interest of the Government to recover the amount ``` WP(C) NO. 15324 OF 2021 ``` ``` 21 ``` in case of suspension is found to be based upon surmises and conjectures or without any foundation or substance. There is complete jurisdictional error on the part of the petitioner to have suspended the Headmistress, rightly so the recovery had been effected. The order cannot be interdicted by examining the same under Article 226 of the Constitution of India assuming the role of an appellate authority, which is not in the domain of this Court while exercising the power of judicial review. I do not find any illegality, impropriety or jurisdictional error in the order Ext.P8 dismissing the revision petition of the petitioner and Ext.P9 demand notice. There was no bar for the petitioner to reinstate the Headmistress immediately on passing of the order dated 12.03.2019 Ext.P5. Writ petition is bereft of the merits accordingly dismissed. **Sd/AMIT RAWAL JUDGE** nak ``` 22 ``` ## **`WP(C) NO. 15324 OF 2021`** ## **`APPENDIX OF WP(C) 15324/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.1/2019 DATED 16.02.2019 ISSUED BY THE MANAGER OF THE SCHOOL TO SMT. R. MAYA.` - `Exhibit P2 TRUE COPY OF THE REPLY DATED 17.02.2019 SUBMITTED BY MAYA R., HEADMISTRESS, BEFORE THE 4TH RESPONDENT.` - `Exhibit P3 TRUE COPY OF THE ORDER NO.1/2019 DATED 26.02.2019 ISSUED BY THE MANAGER OF THE SCHOOL TO SMT. R. MAYA.` - `Exhibit P4 TRUE COPY OF THE RESOLUTION NO.708 OF THE MANAGING COMMITTEE, AS AVAILABLE AT PAGE NOS. 125 AND 126 OF THE MINUTES BOOK OF THE MANAGING COMMITTEE MEETINGS OF THE DEVASWOM.` - `Exhibit P5 TRUE COPY OF THE ORDER NO.B3/4993/2019/DD(E) DATED 12.03.2019 OF THE 3RD RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE REVISION PETITION DATED 15.03.2019 FILED BY THE MANAGER OF THE SCHOOL BEFORE GOVERNMENT WITHOUT ITS ENCLOSURES.` - `Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 01.04.2019 IN W.P.(C) NO.9666 OF 2019 OF THIS HON'BLE COURT.` - `Exhibit P8 TRUE COPY OF THE G.O.(RT) NO.2437/2019/G.EDN. DATED 20.06.2019.` - `Exhibit P9 TRUE COPY OF THE DEMAND NOTICE NO.2020/4194/04 DATED 09.03.2021 ISSUED` ``` WP(C) NO. 15324 OF 2021 ``` ``` 23 ``` ``` BY THE 6TH RESPONDENT. ``` ``` Exhibit P10TRUE COPY OF THE APPLICATION DATED 24.06.2021 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, 2005. ``` ``` RESPONDENT EXHIBIT EXHIBIT R4(A)TRUE COPY OF THE DECISION REPORTED IN 2014(4) KHC 716 DECIDED ON 30TH JULY 2014 EXHIBIT R4(B)TRUE COPY OF THE JUDGMENT IN WP(C).NO.32579/2011 DATED 23.01.2015 EXHIBIT R4©TRUE COPY OF THE JUDGMENT IN W.A.NO.1477/2015 DATED 20.12.2016 ```