P.S. Mani v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944`** ## **`WP(C) NO. 19159 OF 2010`** ## **`PETITIONER/S:`** ``` P.S.MANI, V.M.L.P. SCHOOL, PALAKKAPOTTA, AYALUR.P.O., PALAKKAD DISTRICT. BY ADV GEORGE ABRAHAM ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.` - `2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695001.` - `3 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD - PIN - 678001.` - `4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD - PIN 678001.` - `5 P.VIJAYALAKSHMI, RETIRED TEACHER, "AISWARYA", NEW STREET, AYALUR POST, PALAKKAD DISTRICT, PIN-678510.` - `6 THE ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE, PALAKKAD DISTRICT, PIN - 678506. BY ADVS. BINNY THOMAS GOVERNMENT PLEADER P.A.JACOB TITUS MANI` -2- W.P.(C). No. 19159 of 2010 ## **`OTHER PRESENT:`** ``` SMT.K.G.SAROJINI, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 19159 of 2010 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 19159 of 2010 ============================================================= Dated this the 18[th] day of November, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _“i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibits P8, P9, P11 and P13 orders issued by the respondents;_ _ii) to declare that the petitioner is not liable to pay the amount of Rs.42,501/- to the Government which was sanctioned by the educational authorities to the 5[th] respondent as her due salary and allowances;_ _iii) to grant such other and further reliefs as this Honorable Court may consider just and proper in the facts and circumstances of the case.” (sic)_ 2. The petitioner is the manager of V.M.LP. School, Palakkapotta, Palakkad District. On 18.06.2001 the petitioner placed the 5[th] respondent, the then Headmistress of the school under suspension based on certain complaints received from the P.T.A. The Assistant Educational Officer, Kollengode conducted -4- W.P.(C). No. 19159 of 2010 a preliminary enquiry and directed reinstatement of the 5[th] respondent as per his order dated 29.06.2001 against which the petitioner approached the government and the government permitted to continue the disciplinary action against the 5[th] respondent, but directed to reinstate her back into service as per order dated 16.10.2001. It is the case of the petitioner that the order of the Government asking to reinstate the 5[th] respondent was challenged by the petitioner by filing O.P. 33083 of 2001 and obtained a stay of the reinstatement. Later the matter was disposed of, against which Writ Appeal 371 of 2002 was filed and the Division Bench also granted stay of the reinstatement as per Exhibit P3. But finally the writ appeal was disposed of as per Exhibit P3 (a) order. In the meantime, the 5[th] respondent also filed O.P.No.35981 of 2001 wherein this Court directed her reinstatement. On the basis of the order issued by this Court, the petitioner reinstated the 5[th] respondent back into service as -5- W.P.(C). No. 19159 of 2010 Headmistress and thereafter she took voluntary retirement from service. The pay and allowances given to the 5[th] respondent was sought to be recovered from the petitioner by issuing an order asking him to deposit an amount of Rs.42,501/-. The petitioner filed a revision stating that the Assistant Educational Officer has no authority to issue such an order, but only the District Educational Officer has power. Since the Government has not taken an action for disposal of the statutory revision, the petitioner approached this Court again and this Court as per Exhibit P5 directed the government to consider the revision. The matter was finally considered by the Government on the basis of the directions given by this Court in Ext.P12. Accordingly Ext.P13 order was passed. It is the submission of the petitioner that Ext.P13 order is against the decision of this Court reported in **Abdul Hameed v. State of Kerala and others[2007 (3) KLT 265]** . Challenging the said order, this writ petition is filed. -6- W.P.(C). No. 19159 of 2010 3. Heard the counsel for the petitioner and the Government Pleader. I also heard the counsel appearing for the 5[th] respondent. 4. Admittedly, when there was a reinstatement order, this Court interfered and passed an interim order in a writ petition. Subsequently, when the writ petition was dismissed a writ appeal was also filed and there was an interim order in favour of the petitioner. Moreover, ultimately when this Court issued directions, the petitioner obeyed the same, and reinstated the 5[th] respondent. She joined the school and took voluntary retirement on 31.07.2003. This Court in **Abdul Hameed’s case** (supra) observed as follows: “ _7. A plain reading of the aforesaid Rule would show that while it may superfluously appear that the entitlement of a delinquent teacher to pay and allowances in the situation contemplated in Rule 67(8) is automatic on the statutory authority refusing to approve the suspension or to grant permission to continue the_ -7- W.P.(C). No. 19159 of 2010 _delinquent under suspension, the actual release of such payment need not always be automatic. This is because an action taken by a statutory authority under R.67(8) of Chapter XIV A K.E.R. is also a decision, which can be subjected to statutory remedies, including before the Government. These are also matters, which could gain the attention of the competent courts, including the constitutional courts. Though one would not have to wait for the entire hierarchal measures, to release amounts that may be due to a teacher in terms of R.67(8) of Chapter XIV A K.E.R., the actions taken and the results of such procedures before the superior authorities and before the superior Courts are relevant to decide as to whether the money paid towards pay and allowances to a teacher is to be recovered from the Manager on the ground that he becomes liable for such recovery in terms of R.67(8) of Chapter XIV A K.E.R. The liability that is imposed on the Manager and the recovery that could be made under R.67(8) of Chapter XIV A K.E.R. is recovery of money, that is, deprivation of property, which, in the context, is on the ground that the Manager did not obey the direction of the statutory authority to reinstate a person placed under suspension. The jurisdictional content of such a statutory action is the imposition of a penalty. Therefore, the right of the Government to effect recovery from the Manager under R.67(8) of Chapter XIV A K.E.R. has to be construed strictly by treating it as imposition of penalty or akin to that._ -8- W.P.(C). No. 19159 of 2010 _8. Applying the aforesaid principle of law to the context of this case, as already noticed, until Ext.P2 judgment was delivered by the Division Bench of this Court, the direction of the learned single Judge in Ext.P1 judgment to reinstate stood stayed. The Division Bench in Ext.P2 judgment directed the Writ Petitioner to reinstate the delinquent teacher within a period of one month of completion of the enquiry by the DEO, if that results in the exoneration of the delinquent. He had indisputably done that. This is because, following Ext.P3 order of the DEO issued on 6-11-1993 exonerating the delinquent teacher of the charges, she was reinstated on 17-11-1993. Therefore, no statutory responsibility could be fastened on the Manager in the form of a liability referable to R.67 (8) of Chapter XIV A K.E.R. Any other approach of interpretation or application of the aforesaid Rule would be arbitrary and unconstitutional._ _For the foregoing reasons, all actions taken against the Writ Petitioner in terms of R.67(8) of Chapter XIV A K.E.R. on account of the suspension of the Headmistress of A.M.L.P. School, Padinjarekkara, namely Smt.Aisha Beevi, including the impugned revenue recovery proceedings, are quashed. Writ Petition is allowed as above. There will be no order as to costs.”_ 5. The Government Pleader submitted that the dictum laid down in the above judgment is not applicable in the facts ad circumstances of the case. But it is the fact that the petitioner -9- W.P.(C). No. 19159 of 2010 already obeyed the directions and it is also the fact that there were interim orders in favour of the petitioners, because of the penedncy of the writ petitions and the writ appeal. This writ petition was admitted by this Court on 21.06.2010 and there was an interim order staying Ext.P13. The interim order is in force even now. Considering the facts and circumstances of the case and also considering the dictum laid down in **Abdul Hameed’s case** (supra) and also considering the factual situation in this case, I think the recovery from the petitioner need not be continued. Therefore, Ext.P13 can be quashed. Therefore, this writ petition is allowed. Ext.P13 is quashed. **sd/-** **P.V.KUNHIKRISHNAN JUDGE** das -10- W.P.(C). No. 19159 of 2010 ## **`APPENDIX OF WP(C) 19159/2010`** ## `PETITIONER EXHIBITS` - `EXHIBIT P1 TRUE COPY OF ORDER PASSED BY THE ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE DATED 18-12-2002` - `EXHIBIT P2 TRUE COPY OF PROCEEDINGS OF THE MANAGER OF THE SCHOOL DATED 2-1-2003.` - `EXHIBIT P3 TRUE COPY OF INTERIM ORDER PASSED BY THE HON'BLE DIVISION BENCH IN C.M.P.3186/02 IN WRIT APPEAL NO.371/02.` - `EXHIBIT P3 (a) TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO.371/02.` - `EXHIBIT P4 TRUE COPY OF STATUTORY REVISION FILED BY PETITIONER DATED 15-11-2003 BEFORE THE GOVERNMENT.` - `EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 7-1-2005 IN W.P.(C)NO.34558/04.` - `EXHIBIT P6 TRUE COPY OF DEMAND PRIOR TO THE ATTACHMENT OF LAND ALONG WITH DEMAND NOTICE UNDER SECTION 7.` - `EXHIBIT P7 TRUE COPY OF OBJECTION FILED BY PETITIONER DATED 22-9-2005 BEFORE THE DEPUTY TAHSILDAR (REVENUE RECOVERY), CHITTOOR.` - `EXHIBIT P8 TRUE COPY OF THE LETTER DATED 28-6-2008 SENT BY THE DISTRICT EDUCATIONAL OFFICER.` - `EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 3-10-2008` - `EXHIBIT P10 TRUE COPY OF THE PETITIONER'S REPLY TO EXHIBIT P9.` - `EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT EDUCATION OFFICER DATED 1010-2008.` - `EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WP(C)31385/2008 DT. 10.12.2008` - `EXHIBIT P13 A COPY OF THE G.O.(RT)1922/10. GEN.EDN.DT.5.5.2010` -11- W.P.(C). No. 19159 of 2010 ``` RESPONDENT EXHIBITS Exhibit R5(a)TRUE COPY OF THE JUDGMENT DT. 2.12.2001 IN OP 33083/01. Exhibit R5(b)TRUE COPY OF JUDGMENT DT. 2-12-2002 IN OP 35981/01. ```