N. Premakumari v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938** ## **WP(C).No. 21095 of 2014 (J)** **------------------------------------------** **PETITIONER(S) :** **--------------------------** ## **N.PREMAKUMARI,** **W/O.MOHANDAS, RETIRED HEADMISTRESS, SIVAGIRI HIGHER SECONDARY SCHOOL, VARKALA, RESIDING AT PRIYODAYA, KEDAVITHUVILA, PALACHIRA P.O., VARKALA.** ## **BY ADV. SRI.PAULSON THOMAS** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.** **3. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM - 695 001.** **4. THE DISTRICT EDUCATION OFFICER, ATTINGAL - 690 021.** **5. THE MANAGER, SREE NARAYANA DHARMA SANGAM TRUST, SIVAGIRI, VARKALA - 690 025.** **6. THE HEADMISTRESS, SIVAGIRI HSS, VARKALA - 690 025.** **R1 TO R4 BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN R5 BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **-----------------------------------------** ## **WP(C).No. 21095 of 2014 (J)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **P1 TRUE COPY OF THE LETTER ISSUED BY H.M OF THE SCHOOL DATED 15.06.2012.** - **P2 TRUE COPY OF THE REPLY LETTER ISSUED BY THE PETITIONER DATED 25.07.2012.** - **P3 TRUE COPY OF THE REQUEST GIVEN BY THE PETITIONER TO THE DEPUTY DIRECTOR DATED 23.07.2012.** - **P4 TRUE COPY OF THE LIABILITY STATEMENT FORWARDED BY DEO ATTINGAL DATED 20.01.2014.** - **P5 TRUE COPY OF THE LIABILITY CERTIFICATE FOR RS. 5,35,115/ISSUED BY DEPUTY DIRECTOR.** - **P6 TRUE COPY OF THE REPRESENTATION DATED 04.02.2014.** - **P7 TRUE COPY OF THE DIVISION BENCH JUDGMENT IN WRIT APPEAL NO. 1288/07.** - **P8 TRUE COPY OF THE ORDER OF THE DPI.** - **P9 TRUE COPY OF THE CIRCULAR DATED 21.06.2012.** - **P10 TRUE COPY OF THE PROCEEDINGS OF THE ACCOUNTS OFFICER DATED 28.10.2014.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R3(A): A TRUE COPY OF THE CHARGE MEMO ISSUED BY THE CORPORATE MANAGER DATED 15.10.2009.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.21095 of 2014 ----------------------------------------Dated this the 1st day of November, 2016 ## JUDGMENT The prayer in this writ petition is for a direction to the respondents to release the DCRG (Death cum Retirement Gratuity) of the petitioner as also to quash Ext.P5 order fixing liability of Rs.5,35,115/- against the petitioner. The petitioner was a Headmistress of an aided school. She retired from service on 31.03.2010 on attaining an age of superannuation. While the petitioner was in service, during the staff fixation for the year 2008-09, an allegation was raised that there were bogus admissions and three teachers were retained in the school on the strength of such fake admissions. It was alleged that the Super Check Officers who visited the school on two occasions found that there was inflated student strength shown in the first visit and that staff fixation was therefore erroneous. By Exts.P1, P2 and P3 communications, the petitioner was informed that steps are being taken to recover W.P.(C) No.21095 of 2014 -2- the amounts which have been paid to the three teachers, who were found in excess from her. It is submitted that by Ext.P5 order dated 20.03.2014, an amount of Rs.5,35,115/- was shown as the petitioner's liability and her entire DCRG was withheld. 2. Heard the learned counsel for the petitioner learned Government Pleader for the respondents 1 to 4 and the learned counsel appearing for the respondent No.5. 3. It is submitted by the learned counsel for the petitioner that the petitioner being the Headmistress of the school had nothing to gain by the retention of three teachers in the school. She could not be mulcted with liability of excess payment allegedly made to the three teachers on the basis of an objection raised against the staff fixation. It is further contended that the DPI had already issued orders directing the retention of the three teachers by applying the 1:40 teacher student ratio. In the above circumstances, it is contended that no loss caused to the Government has even been established W.P.(C) No.21095 of 2014 -3against her the instant case. It is further contended that recovery from pay of all or part of pecuniary loss caused to the Government by negligence or breach of orders being a penalty which could be imposed in terms of Rule 65 of Chapter XIV A, KER, the imposition of such liability on the petitioner without any disciplinary proceedings being concluded against her is illegal. 4. The petitioner places reliance on Ext.P7 judgment of a Division Bench of this Court as well as a decision reported of this Court in Vasudevan Namboodiri v. State of Kerala [1997 (2) KLT 529] to contend that no amount which is allegedly due as excess payment made to teachers on account of wrong fixation of staff strength, by alleged inflation of student strength, could be recovered from the Manager or the Headmaster by recourse to the power of revision under Rule 12 (E)(3) of Chapter XIV A KER. It is therefore contended that the power to recover amounts from the petitioner's DCRG would be dependant on a finding of loss caused to the W.P.(C) No.21095 of 2014 -4- Government on account of any negligence or breach of orders on the part of the petitioner. It is further contended that the petitioner being a person who retired from service on 31.03.2010, the liability fixed by Ext.P5 dated 20.03.2014 is illegal and unsustainable in view of the clear provisions contained in Note 2 and 3 of Rule 3 to Part III, KSR. 5. A counter affidavit has been filed on behalf of the third respondent Deputy Director of Education stating that the Super Check Cell attached to the second respondent had revisited the school on 04.11.2008 and 09.02.2009 and verified the student strength. It was found that the strength verified was not sufficient for maintaining the class divisions and posts already sanctioned in the staff fixation. It is therefore stated that the Headmistress was responsible for the bogus admissions, which resulted in wrong fixation of staff and caused loss to the Government. It is further stated that the loss sustained to the Government by way of payment of salary was ordered to be recovered from the petitioner by W.P.(C) No.21095 of 2014 -5- Ext.P8. It is subsequently that the 6th respondent calculated the loss and issued Ext.P5 order, it is submitted. It is further submitted that the 5th respondent Manager had issued a charge memo to the petitioner on 15.10.2009 requiring her to show cause why disciplinary action should not be taken against her. However, it is not stated as to what was the outcome of the said proposed enquiry. 6. The learned counsel appearing for the 5th respondent would submit that the enquiry against the petitioner though initiated by Ext.R3(a) charge memo could not be concluded since she retired from service on 31.03.2010. 7. Having considered the contentions advanced on all side, it is clear that the petitioner who had retired from service on 31.03.2010 has not been inflicted with any punishment of recovery of loss occasioned to the Government. As a matter of fact, from the materials on record especially in the light of the direction in Ext.P8 to examine the eligibility of W.P.(C) No.21095 of 2014 -6- protection by extending the benefit of 1:40 ratio to the teachers who were already in service, prior to the staff fixation for the year 2008-09, it cannot be concluded that there was any finding as to loss occasioned to the Government. Moreover, the petitioner's responsibility for making good the loss occasioned to the Government has also not been established in any disciplinary enquiry held against her, while she was in service or after her retirement. Moreover, Ext.P5 quantification of liability is seen done on 20.03.2014 which is beyond the period of 3 years prescribed under Note 2 and 3 to Rule 3 of Part III, KSR. 8. In the above view of the matter, I am of the opinion that the decision of the Division Bench relied on by the petitioner in W.A.No.1288/07 as well as the decision in Vasudevan Namboodiri's case (supra) squarely covers the issue. Ext.P5 order is therefore set aside. The impugned orders to the extend they fix any liability on the petitioner on account of alleged bogus admissions in respect of the year W.P.(C) No.21095 of 2014 -7- 2008-09 are found to bad in law. It is declared that the petitioner is entitled to payment of DCRG due to her, with immediate effect. The 3rd respondent shall therefore take immediate steps to disburse the amounts due to the petitioner as DCRG and any amounts due as pensionary benefits or arrears. In view of the fact that the DCRG was not withheld without any justification whatsoever and since notices had been issued to the petitioner before Ext.P5 quantification was done, I am of the opinion that no interest needs to be paid in the instant case. Writ petition is ordered accordingly. Sd/ANU SIVARAMAN, JUDGE