P. Meenakshi v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.31938 OF 2014(N)** ## **PETITIONER:** ||**P.MEENAKSHI**| |---|---| ||**AGED 75 YEARS**| ||**W/O.P.NARAYANAN, MANAGER,**| ||**ATTASSERY AIDED LOWER PRIMARY SCHOOL,**| ||**ATTASSERI P.O., SREEKRISHNAPURAM,**| ||**PALAKKAD DISTRICT.**| ||**BY ADVS.SRI.K.MOHANAKANNAN**| ||**SMT.A.R.PRAVITHA**| |**RESPONDENTS**<br>**:**|| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**TRIVANDRUM - 695 001.**| |**2**|**DIRECTOR OF PUBLIC INSTRUCTION**| ||**TRIVANDRUM - 695 001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION**| ||**PALAKKAD - 673 001.**| |**4**|**ASSISTANT EDUCATIONAL OFFICER**| ||**CHERPLASSERI, PALAKKAD - 679 503.**| |**5**|**DEPUTY TAHSILDAR**| ||**(RR)OTTAPALAM, PALAKKAD - 679 101.**| WP(C)No.31938/2014 -2- - **6 C.NANDAKUMARAN CHOLAKURUSSI HOUSE, ATTASSERI P.O., PALAKKAD - 679 513.** **7 T.REMAKUMARI KOZHINJUPOKKIL HOUSE, KOTTAPURAM, P.O., PALAKKAD - 679 518.** **R1 TO R5 BY GOVERNMENT PLEADER SMT. G.RENJITHA, R6 BY ADV. SRI.K.R.GANESH BY ADV. SRI.ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2020, THE COURT ON 25-08-2020 DELIVERED THE FOLLOWING:** WP(C)No.31938/2014 -3- ## **“CR”** ## **JUDGMENT** ## **Dated this the 25[th] day of August, 2020** The petitioner, a Manager of an Aided Lower Primary School, placed the respondents 6 and 7, who were working as Headmaster and Senior Assistant in the school, under suspension on 19.6.2002 on several grounds, which have been detailed and Exhibits P1 and P2. Rule 67(8) of Chapter XIV A of the Kerala Education Rules (hereafter referred to as the Rules) mandates that the Manager, who has placed a headmaster/teacher or nonteaching staff under suspension, shall report the fact to the education authorities. It further provides that such officer authorised by the Government shall make preliminary investigation into the grounds of suspension and if the authority is satisfied that there was no valid ground for the suspension, he may direct the Manager to reinstate the teacher/non-teaching staff with effect from the date of suspension. On such direction being issued, the Manager is bound to reinstate the teacher/non- WP(C)No.31938/2014 -4- teaching staff forthwith. The Rules further provides that if the teacher is not actually reinstated, he shall be deemed to have been on duty, that his pay and allowances may be disbursed by the Department and such amount be recovered from the Manager. 2. According to the petitioner, he had filed Ext.P7 representation before the 4[th] respondent, stating that Exts.P3 and P4 orders were not served on him and that the action of the 4[th] respondent in drawing and disbursing the salary even without serving the order was in violation of the principles of natural justice. On 12.12.2002, the 3[rd] respondent issued Ext.P8 letter to the petitioner informing him that an amount of Rs.85,931/being the amount paid to respondents 6 and 7 till 30.11.2002 will be recovered from him. It is only thereafter that the petitioner chose to file Exts.P5 and P6 revision petitions before the 1[st] respondent. Even though the petitioner was aware of the legal obligation to reinstate respondents 6 and 7 immediately on receipt of Exts.P3 and P4, he chose to reinstate respondents 6 WP(C)No.31938/2014 -5- and 7 only on 28.07.2003 and 01.08.2003 as per Exts.P11 and P12 respectively. As a matter of fact, Exts.P11 and P12 were issued only when the petitioner was faced with the threat of revenue recovery as evidenced by Exts.P9 and P10 demand notices. Even thereafter, when the amounts were not remitted, the 3[rd] respondent issued Ext.P13 notice stating that an amount of Rs.2,04,563/- is due towards the salary and allowances disbursed to respondents 6 and 7, as on 28.02.2003. It is also stated that an amount of Rs.97,788/- is due on the same account for the period from 01.03.2003 till the actual date of reinstatement. 3. It can be seen from Ext.P14 judgment dated 14.10.2003, in W.P.(C)No.23471/2003 filed by the petitioner that the recovery was kept in abeyance till the disposal of the revision petitions filed by the petitioner. On 25.02.2004, the Government issued Ext.P16, in compliance with the directions in Ext.P14 judgment, remitting the matter to the Director of Public Instruction for a detailed enquiry and denovo consideration of the WP(C)No.31938/2014 -6- case. Thereafter on 31.05.2004, the 2[nd] respondent issued Ext.P17 order finding that there was no sufficient reason for the Manager to continue suspension of respondents 6 and 7 and holding that the petitioner is liable to remit the amounts demanded. The 2[nd] respondent, however, took into consideration the contention of the petitioner that the quantification of the amount is not correct and directed the 4[th] respondent to re-fix the actual amount to be remitted by the petitioner. 4. The petitioner challenged Ext.P17 order in a revision before the Government. Pending the revision, revenue recovery steps were initiated for realisation of an amount of Rs.2,46,476/and collection charges. The petitioner once again approached this Court by filing W.P.(C)No.2653/2005, which was disposed of directing the Government to dispose of the revision petition within a period of three months. Revenue Recovery proceedings were directed to be kept in abeyance. By Ext.P24 dated 10.10.2014, the Government has rejected the revision petition and directed the 2[nd] respondent to proceed for realisation of the WP(C)No.31938/2014 -7- loss sustained by the Government. The petitioner has filed this writ petition seeking to quash Exhibits P3, P4, P17, P18 and P24. 5. Heard Sri K.Mohanakannan on behalf of the petitioner and Smt.Renjita, Government Pleader on behalf of the respondents 1 to 5. 6. Exhibits P3 and P4 are the orders issued by the 4[th] Respondent, directing the petitioner to reinstate the 6[th] and 7[th] respondents, who had been kept under suspension. The order has been issued in exercise of the power available under Rule 67(8) of Chapter XIV A of the Rules, after conducting a preliminary investigation and recording the statements of the power of attorney of the petitioner, the Headmaster and other staff of the school who were present. The 4[th] respondent found that the allegations against the 6[th] and 7[th] respondents, on the basis of which they were placed under suspension, have not been supported with any material evidence. The counsel for the petitioner contends that respondents 6 and 7 were placed under suspension for valid reasons and the enquiry initiated against WP(C)No.31938/2014 -8- them is still pending, that no enquiry as envisaged under Rule 67(8) of Chapter XIV A of the Rules was conducted by the 4[th] respondent and that Exts.P3 and P4 were issued in total violation of the dictum of this Court in **Manager v. State of Kerala and others** reported in **[2012(2) KLT 338]** . The further contention of the petitioner is that the 1[st] respondent considered only the issue regarding the recovery and not the correctness of the orders of suspension issued against respondents 6 and 7. According to the petitioner’s counsel, the 1[st] respondent failed to address the question of legality of the reinstatement order issued by the 4[th] respondent. It is further contended that the disciplinary proceedings have not had been finalised and the period of suspension has not been regularised. 7. The decision of this Court reported in [ **2012(2) KLT 338],** will not apply to the facts of the case on hand. In the above said decision, this Court was considering the issue regarding an enquiry under Rule 75 of Chapter XIV A of the Rules, which is an enquiry into the charges framed against a WP(C)No.31938/2014 -9- delinquent employee and not the investigation contemplated in Rule 67(8) of Chapter XIV A of the Rules. Rule 67(8) is an investigation intended only for the purpose of looking into the requirement of keeping a teacher under suspension in a situation where a disciplinary enquiry is pending or is under contemplation. Rule 75 comes into picture much later, when the actual enquiry, after framing charges against the employee, is to be proceeded with. This Court considered the procedure laid down in Rule 75 and on facts found that the order in revision does not even record a finding either way and goes on to fix the liability of the Manager. The facts involved in the case on hand is entirely different. This Court is concerned only with the investigation under Rule 67(8) and not an enquiry under Rule 75, which is stated to be pending, though the stage of the enquiry is not discernible from the pleadings in the writ petition. The order of the Education Officer as well as the order in revision clearly state that there are no justifiable reasons for keeping respondents 6 and 7 under suspension. So also, regarding the WP(C)No.31938/2014 -10- recovery of the amounts from the Manager, the Manager was put on notice and it is only thereafter that the proceedings for recovery were initiated. It is not a case where while disposing of a revision against the orders pursuant to an enquiry under Rule 75, the Government issued orders for recovery, as in the case reported in **[2012(2) KLT 338].** The preliminary investigation contemplated under Rule 67(8) cannot hence be equated to an enquiry contemplated under Rule 75 of Chapter XIV A of the Rules. 8. Admittedly, though disciplinary action was initiated against respondents 6 and 7, even as on today, that is after 18 years of the incident, the enquiry has not been completed. The finding recorded by the Educational Officer on the preliminary investigation has been upheld by the order of the 1[st] respondent in revision and it is not for this Court to re-appreciate the materials that were available with the Educational Officer and the 1[st] respondent for entering into a finding that there was no justification for keeping the respondents 6 and 7 under WP(C)No.31938/2014 -11- suspension. The finding for the purpose of the preliminary investigation cannot affect the domestic enquiry against the respondents 6 and 7 contemplated in Rule 75 of Chapter XIV A of the Rules, which is necessarily a more comprehensive enquiry. The challenge against the direction to reinstate the respondents 6 and 7 hence cannot be interfered with. 9. Exhibit P17 is the order issued by the Additional Director of Public Instructions, in compliance with the directions in Exhibit P14 judgment, disposing of the Revision petitions filed by the petitioner. The Additional Director found that the petitioner is liable to remit the salary disbursed to the 6[th] and 7[th] respondents by the Government, during the period they were continued under suspension, in spite of orders to reinstate them. Exhibit P18 is a statement showing the amounts due from the petitioner, forwarded by the 3[rd] respondent to the petitioner. Ext.P24 is the order issued by the 1[st] respondent dismissing the revision petition filed by the petitioner, and directing the 2[nd] respondent to proceed with the realisation of the loss sustained WP(C)No.31938/2014 -12- by the Government from the petitioner by resorting to Revenue Recovery proceedings. The Manager, who has failed to reinstate a teacher/non-teaching staff, in service, in spite of a specific direction by the Educational Officer, on the basis of his preliminary investigation, is bound under Rule 67(8) of Chapter XIV A of the Rules to pay to the Government, the amount that has been disbursed to the teacher/non-teaching staff by the Government. There is no challenge to the Rule in this writ petition. As such, the petitioner cannot shy away from the requirement under Rule 67(8) of Chapter XIV A of the Rules. 10. The Government pleader, contends that there is nothing wrong in fixing the liability on the petitioner, and that Ext.P18 clearly shows the manner in which the quantification of the liability was done. The counsel for the petitioner made a feeble attempt to submit that the quantification is wrong, placing reliance on Ext.P13, wherein according to the counsel, the petitioner is directed to remit a sum of Rs.97,788/ alone, while the recovery is initiated for much larger sum. The above WP(C)No.31938/2014 -13- submission cannot be countenanced in any manner. A reading of Ext.P13 shows that revenue recovery has already been initiated for recovery of the sum of Rs.2,04,563/- being the amounts due for the period from 19.6.2002 to 28.2.2003, and that a further sum of Rs.97,788/- is due for the period from 1.3.2003 till the actual date of reinstatement. Ext.P13 cannot hence be pressed into service to contend that there is a mistake in quantification. In the light of the above, this writ petition fails and is dismissed. The dismissal of the writ petition is without any prejudice to the contentions of the petitioner in the enquiry against the respondents 6 and 7 under Rule 75 of Chapter XIV A of the Rules which is said to be pending. Since the case has been pending for the past 6 years before this Court and the revenue recovery proceedings had been stayed by this Court, the petitioner is granted a period of 6 months from the date of receipt of a copy of this judgment, to pay the amounts demanded under Rule 67(8) of Chapter XIV A of the Rules. The revenue recovery proceedings initiated will be kept in abeyance for the WP(C)No.31938/2014 -14- above said period, to facilitate the payment. In the circumstances of the case, there will be no order as to costs. Sd/- **T.R. RAVI JUDGE** dsn WP(C)No.31938/2014 -15- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE ORDER PASSED BY THE PETITIONER ON 19.06.2002 PLACING THE 6TH RESPONDENT UNDER SUSPENSION.** **EXHIBIT P2. TRUE COPY OF THE ORDER PASSED BY THE PETITIONER ON 19.06.2002 PLACING THE 7TH RESPONDENT UNDER SUSPENSION.** **EXHIBIT P3. TRUE COPY OF THE ORDER DATED 01.07.2002 PASSED BY THE 4TH RESPONDENT DIRECTING REINSTATEMENT OF 6TH RESPONDENT.** **EXHIBIT P4. TRUE COPY OF THE ORDER DATED 01.07.2002 PASSED BY THE 4TH RESPONDENT DIRECTING REINSTATEMENT OF 7TH RESPONDENT.** - **EXHIBIT P5. TRUE COPY OF THE REVISION FILED AGAINST EXT.P3 BY THE PETITIONER.** - **EXHIBIT P6. TRUE COPY OF THE REVISION FILED AGAINST EXT.P4 BY THE PETITIONER.** **EXHIBIT P7. TRUE COPY OF THE REPRESENTATION DATED 08.10.2002 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P8. TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 12.12.2002 WITH TRANSLATION.** **EXHIBIT P9. TRUE COPY OF THE DEMAND NOTICE DATED 24.06.2003 IN FORM NO.1 DEMANDING A SUM OF RS.2,04,563/- ISSUED BY THE DEPUTY TAHSILDAR (RR).** **EXHIBIT P10. TRUE COPY OF THE DEMAND NOTICE DATED 24.06.2003 IN FORM NO.1 DEMANDING A SUM OF RS.2,04,563/ISSUED BY THE DEPUTY TAHSILDAR (RR).** WP(C)No.31938/2014 -16- **EXHIBIT P11. TRUE COPY OF THE ORDER DATED 28.07.2003 ISSUED BY THE PETITIONER TO THE 6TH RESPONDENT.** **EXHIBIT P12. TRUE COPY OF THE ORDER DATED 01.08.2003 ISSUED BY THE PETITIONER TO THE 7TH RESPONDENT.** **EXHIBIT P13. TRUE COPY OF THE NOTICE DATED 27.08.2003 WITH ENGLISH TRANSLATION ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P14. TRUE COPY OF THE JUDGMENT DATED 14.10.2003 IN WP(C)23471/2003.** **EXHIBIT P15. TRUE COPY OF THE ARGUMENT NOTE DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE GOVT.** **EXHIBIT P16. TRUE COPY OF THE GO(RT)NO.823/04/G.EDN. DATED 25.02.2004.** **EXHIBIT P17. TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 31.05.2004.** **EXHIBIT P18. TRUE COPY OF THE COMMUNICATION DATED 20.07.2004 ISSUED BY THE AEO WITH ENGLISH TRANSLATION.** **EXHIBIT P19. TRUE COPY OF THE REVISION PETITION DATED 30.08.14 BY THE PETITIONER BEFORE THE GOVT. U/S.92 OF CHAPTER XIV A KER.** **EXHIBIT P20. TRUE COPY OF THE REVENUE RECOVERY NOTICE IN FORM NO.1 DATED 24.11.2004.** **EXHIBIT P21. TRUE COPY OF THE REVENUE RECOVERY NOTICE IN FORM NO.10 DATED 24.11.2014.** **EXHIBIT P22. TRUE COPY OF THE JUDGMENT IN WP(C)2653/2005 DATED 14.02.2014.** **EXHIBIT P23. TRUE COPY O THE ARGUMENT NOTE DATED 04.07.2014 SUBMITTED BY THE PETITIONER.** **EXHIBIT P24. TRUE COPY OF THE GO(RT)4081/2014/G.EDN. DATED 10.10.2014.**