P. Jebamala Mary v. State of Kerala and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936** **WP(C).No. 17771 of 2011 (V)** **----------------------------** **PETITIONER(S):** **--------------** **P.JEBAMALA MARY** **AGED 37 YEARS, W/O.MANUAL XAVIAR R, C/O.AROKYAMARY 61 A NISHA ILLAM, SAHYAGIRI POST MARAYOOR-IDUKKI-685620** ## **BY ADV. SRI.U.BALAGANGADHARAN** **RESPONDENT(S):** - **-------------** **1. STATE OF KERALA AND ANOTHER** - **REP.BY SECRETARY, GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM-695001** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695001** **3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678001** ## **4. THE HEADMISTRESS,** - **ST.MARTIN'S ENGLISH MEDIUM HIGH SCHOOL, ATHICODE PALAKKAD-678554** ## **5. THE MANAGER,** - **ST.MARTIN'S ENGLISH MEDIUM HIGH SCHOOL (UNDER ST.ANNE OF TIRUCHIRAPPALLY)ATHIODE P.O. NATTUKAL (VIA)PALAKKAD-678554** ## **6. THE ASSISTANT PF COMMISSIONER,** - **EMPLOYEES PROVIDENT FUND ORGANIZATION SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PB 1806 ERANIHIPALAM, KOZHIKODE-673006** **R6 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. R4 & R5 BY ADV. SRI.JOSEKUTTY MATHEW** **ADV. SRI.RAJESH SIVARAMANKUTTY R1 TO 3 BY SR. GOVERNMENT PLEADER SUNITHA VINOD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17771 of 2011 (V)** ## **APPENDIX:** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 29.1.2009. EXT.P2: TRUE COPY OF THE STATEMENT OF STAFF CERTIFIED BY THE 4TH RESPONDENT DATED NIL. EXT.P3: TRUE COPY OF GO(MS) 244/99/G.Edn DATED 14.2.2011. EXT.P4: TRUE COPY OF GO(MS) 36/11/G.Edn. DATED 14.2.2011. EXT.P5: TRUE COPY OF THE STATEMENT ISSUED BY THE 6TH RESPONDENT DATED 29.4.2011. EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE FIRST RESPONDENT DATED 24.5.2011.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4(A): TRUE COPY OF THE CHALAN DATED 27.10.2011 ISSUED FROM SBI KOZHINJAMPARA BRANCH. EXT.R6(a): TRUE COPY OF FORM 3A SHOWING THE MONTHLY WAGES AND CONTRIBUTIONS FOR THE PERIOD FROM 2007-08 TO 2010-11 IN RESPECT OF THE PETITIONER.** ## **TRUE COPY** **P.A. TO JUDGE.** **KP** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 17771 of 2011 -------------------------------------------Dated this the 5th day of June, 2014 ## **JUDGMENT** The petitioner who was working as a teacher in the fifth respondent school, which is an unaided recognized school, was unceremoniously sent out from the service, for demanding salary in tune with Exts. P3/P4 Government Orders issued by the first respondent. Since Ext.P6 representation preferred by the petitioner before the first respondent did not yield any positive result, she is now before this Court with the following prayers: “i. Issue a writ in the nature of mandamus to the first respondent to consider and pass orders on Ext.P6 within a time frame of 6 weeks. ii. Issue a writ of mandamus to the 4[th] and 5[th] respondents to disburse salary as provided under Ext.P3 and P4 to the petitioner from 2.6.2001 and also direct to disburse arrears thereto. iii. Issue writ in the nature of mandamus to respondents 4 and 5 to remit the arrears of employer contribution to the 6[th] respondent. iv. Issue writ in the nature of mandamus to the 6[th] respondent to initiate suitable proceedings against the 4[th] and 5[th] respondents for the fraud committed by them. W.P.C. No. 17771 of 2011 -2- v. Declare that the petitioner is entitled to get salary as provided in Ext.P3 and P4 from 2.6.2001 with interest.” 2. The case if the petitioner is that, even though the fifth respondent school is an unaided one, it is a recognized school (having been recognized by the first respondent) and as such, it has to function within the parameters prescribed by the State, particularly, Chapter V of the KER and also in tune with Chapter XIV AA. At the time of commencement of service of the petitioner, she was being paid a salary of 1,500/- per month,₹ which was subsequently enhanced to 2,500/- per month as per₹ Ext.P3 G.O from 1999 onwards and to 5000/- per month as per₹ Ext.P4 G.O with effect from 1.1.2011. At the time of relieving from the school, she was obtaining a salary of 2800/-. It was₹ contended that the respondents 4 and 5 restrained the petitioner from entering into the school premises from the current academic year, i.e., 2013-2014 and that she was paid pre-revised salary upto April, 2011, while no salary has been paid from May, 2011. 3. The fourth respondent has filed a counter affidavit pointing out that, the school has got autonomy by virtue of the W.P.C. No. 17771 of 2011 -3- minority status under Article 30(1) of the Constitution of India. The terms and conditions of service are governed by the 'order of appointment' and the fifth respondent was effecting payment of the agreed salary. It is stated that, the salary and allowances of teachers of a private school is purely a matter of contract and that no relief is liable to be extended to the petitioner in a writ petition. It is also pointed out in paragraph '9' of the counter affidavit that, the fourth respondent has not suspended or dismissed the petitioner, nor has given any direction not to enter into the school. The petitioner was unauthorizedly absent from 29.4.2011 onwards and no notice was served to the management informing her absence; nor did she apply for leave. It is stated in paragraph '8' that the petitioner was being paid a salary of ₹ 2800/- per month at the time of leaving the school voluntarily and that the petitioner did not make any demand or representation for enhancement of salary. 5. In response to the averment in the writ petition that, in spite of the salary being paid to the petitioner at the rate of ₹ 2,800/- per month, the fifth respondent management was W.P.C. No. 17771 of 2011 -4- effecting the contribution under the EPF Scheme showing the salary at a lesser rate of 1000/- as discernible from Ext.P5₹ dated 29.4.2011. But on going through the contents of Ext.P5, it is seen that the salary shown therein, in respect of April, May and June, 2009 is 1000/-. The contribution of the employee towards₹ the PF is 120/- and that of the employer is 37/-. From July,₹ ₹ 2009, the salary has been shown as 2,600/-, showing the₹ contribution paid by the employee towards PF as 312/- and that₹ of the employer as 95. 6. The sixth respondent (authorities of the Provident Fund Department) has filed a counter affidavit dated 21.12.2012 pointing out that contribution towards the Provident Fund has to be remitted on the actual wages paid or payable. It is also stated that, if the employer has knowingly made any false statement or false representation for the purpose of avoiding any payment to be made by himself under the Act, he will be liable for punishment/penalty under Section 14 of the EPF & MP Act. It is also stated that the matter is under investigation. 7. The learned counsel for the petitioner submits that, W.P.C. No. 17771 of 2011 -5- though the fourth respondent Institution is an unaided private school, writ petition is very much maintainable by virtue of the law declared by the Apex Court in **K Krishnamacharyulu and Others v. Sri. Venkateswara Hindu College of Engineering & Another** [(1997) 3 SCC 571] and also by this Court in **Sebastian v. State of Kerala** (2002 KHC 172). The learned counsel also places reliance on the mandate specified under Chapter XIV AA Rule '2' of the KER which is as follows: “2. The teaching and non-teaching staff of these schools shall be paid salary every month by cheques drawn on managements' accounts in Nationalised and Scheduled Banks.” Since rate of payment is not mentioned therein, the first respondent Government came with Ext.P3 G.O in the year 1999, prescribing the minimum salary in respect of the Primary Teacher as 2,500/-, which was subsequently enhanced as per Ext.P4₹ G.O to 5,000/- with effect from 1.1.2011. The learned counsel₹ also submits that, such an exercise is possible by way of executive orders in the light of the law declared by the Apex Court in **State of Madhyapradesh** v. **G.S Dall & Flour Mills** W.P.C. No. 17771 of 2011 -6- (1992 supplementary (1) SCC 150) and in **Pankajakshan Nair v. Jayaraj** [2001 (2) KLT 141 (SC)]. The learned counsel for the petitioner submits that the fourth respondent school is running the show, based on the recognition given by the Government and the conditions for recognition and such other matters are included under Chapter V of KER, particularly Rule 17. 8. The learned Government Pleader appearing for the respondents 1 to 3 submits that the school has to be run in accordance with the provisions of the Kerala Education Act, the Rules there under it, and the directions issued by the Government or the Department from time to time, as given under Rule 17(vi) of Chapter V KER. It is stated that recognition can be withdrawn under the circumstances dealt with under Rule 22 of the same Chapter. It is also pointed out that, recognition can be withdrawn in the case of mismanagement or if the authorities of the school have been guilty of any serious contravention of the Rules. The recognition and the sanction accorded for the opening of the school may be withdrawn and the school can be closed down after reasonable notice as per Rule 23 W.P.C. No. 17771 of 2011 -7- of Chapter V KER; submits the learned Government Pleader. 9. Whether there is non compliance of Exts. P3/P4 G.O in respect of payment of the minimum salary, whether the petitioner is entitled to have the salary accordingly and whether any arrears are to be paid etc. are matters to be considered. What could be the appropriate action that has to be taken, if there is any violation in this regard, is also a matter to be considered by the first respondent. Since Ext.P6 representation preferred by the petitioner is pending for quite long before the first respondent, this Court finds it fit and proper to direct the first respondent to consider Ext.P6 and take appropriate action against the respondent school in tune with the relevant provisions of law. This shall be done at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment, of course after giving an opportunity of hearing to the petitioner and the fourth and fifth respondents. 10. It is also made clear that, it will be well within the powers of the sixth respondent to take appropriate action against the respondent school, if there was any false statement or mis- W.P.C. No. 17771 of 2011 -8- representation from the part of the fourth or fifth respondent with regard to the salary actually paid/payable to the petitioner/teachers/staffs and if any lesser contribution was effected in this regard. The writ petition is disposed of. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the first respondent for further steps. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-