Sathjith v. State of Kerala and others

W.P(C) No.36780/2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945** ## **WP(C) NO. 36780 OF 2010** ## **PETITIONER:** SATHJITH RESIDING AT KURUMANDAL, PARAVOOR.P.O., KOLLAM. BY ADVS. SRI.R.S.KALKURA SRI.HARISH GOPINATH ## **RESPONDENTS:** 1 STATE OF KERALA REP.BY SECRETARY, GENERAL EDUCATION,, SECRETARIAT, TRIVANDRUM-01. 2 DISTRICT EDUCATIONAL OFFICER KOLLAM-13. 3 DEPUTY TAHSILDAR (RR) KOLLAM-13. 4 ASSISTANT EDUCATIONAL OFFICER KOLLAM-13. 5 V.JAYARAJAN RESIDING AT MUNDUTHALAKKAL, KOTTAPPURAM,, PRAVOOR.P.O., KOLLAM-691 301. ADDL.R6 MANAGER, SNV GIRLS HIGH SCHOOL, PARAVUR, PARAVUR PO, KOLLAM 691301 (ADDL.R6 IMPLEADED AS PER ORDER DATED 9.6.2023 IN IA NO.1/2023 IN WP(C)37680/2010) W.P(C) No.36780/2010 2 BY ADVS. B.SURESH KUMAR BY SR.GOVERNMENT PLEADER SMT.VINITHA.B THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON 14.07.2023 DELIVERED THE FOLLOWING: W.P(C) No.36780/2010 3 ## MOHAMMED NIAS C.P., J ............................................................ W.P(C) No.36780 of 2010 ............................................................. Dated this the 14[th] day of July, 2023 ## JUDGMENT This writ petition is filed by a committee member of SNV Samajam Trust who was elected as a President on 12.5.2003. The Trust is conducting an Aided school by the name SNV Girls High School. As per the scheme, the President of the Samajam is to be appointed as the Manager of the school. Accordingly, the petitioner became the Manager of the school from 12.5.2003 to 10.05.2009 and although a fresh election was conducted on 19.4.2009, there were disputes regarding the election, pending adjudication before the Sub Court, Kollam in O.S.No.783/1994. 2. On 23.6.2010 the petitioner submits that he received a notice demanding a sum of Rs.74,552/- being the arrears of loss sustained by the Government and on verification, it was found that one G. Sobha, a Music teacher of the school, was kept under suspension pending dismissal for a period from 21.8.2006 to 28.4.2007 which was later found to be illegal and therefore, she had to be paid Rs.74,552/- by the Government even when she had not worked, which was considered as a loss to the Government. W.P(C) No.36780/2010 4 The same was sought to be recovered from the Manager through Ext.P2 demand. Though the petitioner had submitted his objections Ext.P4, the respondents were proceeding with revenue recovery proceedings and that led to the writ petition being filed. 3. A counter affidavit has been filed on behalf of the fifth respondent, who was the manager of the school after the term of the petitioner. He contended that It was the writ petitioner who suspended Smt. G. Sobha, HSA (Music) while he was the Manager and neither the Trust nor the school or the present Manager is responsible for the illegal acts committed by the petitioner while he was functioning as a Manager, more particularly in view of the provisions contained in Chapter III Rule 7(4) of the KER as he should be made personally liable for the acts done by him in violation of the provisions of the KER. Earlier, the District Educational Officer by order dated 2.9.2006 had directed the writ petitioner- the then Manager, to reinstate the teacher with effect from the date of suspension. The said order is marked in the proceedings as Ext.R5(a). The DEO, Kollam, had also submitted a report on the petition filed by Smt.G. Sobha and the said report is marked as Ext.R5(b). The Deputy Director of Education, Kollam had by order dated 4.11.2006 dismissed the appeal filed by the Manager by Ext.R5(c) order. Though a revision was filed by the then Manager, the same also ended in a dismissal. Meanwhile, Smt.Sobha had filed WP(C) No.3847/2007 before this Court wherein, by judgment dated 25.6.2007, marked as Ext.R5(d), it was held that the direction to pay the salary and allowances to the teacher W.P(C) No.36780/2010 5 was subject to the result of the revision pending before the Government. However, it was made clear that it will be open to the Government/Department to recover the pay and allowances that were ordered to be paid to Smt. Sobha from the Manager, if it is ultimately found that his actions were illegal and vitiated. 4. Heard Sri.R.S. Kalkura and Sri.Harish Gopinath for the writ petitioner; Sri. B.Suresh Kumar for the fifth respondent and also Smt. Vineetha B., the learned Senior Government Pleader. 5. The learned counsel for the petitioner argues that before mulcting the petitioner with any liability, it has to be found that his actions were illegal and there is no such finding in the present case. It is also his contention that though he had unsuccessfully challenged the orders of the educational authorities that directed to reinstate Smt. G. Sobha, the said acts were for the educational agency and not for his personal benefits. It is also his argument that he was not heard before quantification or fixation of liability and that when it comes to a corporate educational agency, the agency must make good the loss suffered by the Government and then recover from the Manager. 6. The learned counsel for the Manager Sri. Suresh Kumar argues that Ext.P1 bye-laws also stipulate that the Manager has to obey the provisions of the KER and going by Ext.R5(d) judgment, which has become final, the Manager had no choice but to make the payment demanded by W.P(C) No.36780/2010 6 the Government for he was the sole person responsible for creating such a situation. The writ petitioner continued to be the Manager till 9.5.2009. The suspension of the teacher in question was on 21.8.2006 and there was an order directing reinstatement on 28.4.2007 itself. 7. The learned Government Pleader Smt.Vineetha B. argues that the petitioner cannot be heard to contend that he is not personally liable after flouting the orders of the educational authorities as he is bound by the provisions of the KER. The consequences for disobedience to the orders of the educational authorities are mentioned in the KER itself. According to her, the issue is covered against the writ petitioner by the judgments of this Court in Manager, M.M.H.S. v. Deputy Director [1994 (1) KLT 321], N. Radhakrishnan Nair v. State of Kerala [2008 KHC 4748] , Vijeesh C.V. v. State of Kerala and others [2014 (4) KHC 716] and Beevi Umma S. v. Assistant Educational Officer, Trivandrum [2016 (1) KHC 628], 8. After hearing the learned counsel on all sides, I am of the firm view that the writ petitioner is not entitled to be given any relief. It is not in dispute that the writ petitioner was the Manager at the relevant time when the teacher in question was suspended. The orders of the educational authorities directing to reinstate her were issued to the writ petitioner. It is also not in dispute that orders for reinstatement were unsuccessfully challenged upto the revisional stage. It is also not in dispute that Et.R5(d) judgment has become final. W.P(C) No.36780/2010 7 9. As regards the argument of the learned counsel for the petitioner that it is the educational agency that is to pay in such cases and then try to recover from the Manager, it has to be held that the said contention is expressly against the provisions of Rule 7(4) Chapter III of the KER. No one else can be held responsible other than a Manager who was obliged to implement the directions of the educational authorities. The orders of the educational authorities read with the provisions of the KER admits of no doubt. The judgments relied on by the learned Government Pleader also crystallize the principles of law. The contentions of the learned counsel for the petitioner that he had acted for and on behalf of the agency, that, he cannot be proceeded against personally, that his revision was pending challenging the order of the lower authorities directing reinstatement, that recovery proceedings cannot be against the Manager but against the agency and the agency if required can recover from the Manager, that he was not heard before quantifying the amount, are all contentions squarely covered against him by the judgment in Writ Appeal No.622/2022 of this Court dated 25.8.2022. In the instant case also, the provisions in the KER, in particular, Chapter III Rule 7(4) as well as sub-rule (8) of Rule 67 of Chapter 14A clearly show the Manager had no option but to comply with the orders of the authorities which admittedly he did not, though he was statutorily bound to do so. In such circumstances, the recovery against the Manager from his personal assets cannot be said to be wrong in any manner. 10. In the light of the principles of law stated in the judgments above W.P(C) No.36780/2010 8 read with the provisions of the KER, there cannot be any doubt that the demand by the Government is fully justified. None of the grounds raised in the writ petition merit consideration. The provisions in the KER empower the Government to proceed against the Manager and his personal assets in case of violation of the provisions of the KER on the directions of the educational authorities. The question as to whether he can be made personally liable is no longer res integra. In such circumstances, I hold that Ext.P2 demand is fully legal and the writ petition deserves dismissal and I do so. However, as a measure of indulgence, it is directed that if the petitioner makes the payment as demanded in Ext.P2 within four weeks from today, there will not be any liability to pay interest. However, if the petitioner fails to make the payment within four weeks as aforesaid, the Government will be free to recover the amounts that are actually due from the petitioner by proceeding with the recovery proceedings already initiated. Subject to the above, the writ petition is dismissed. SD/- MOHAMMED NIAS C.P., JUDGE okb/ W.P(C) No.36780/2010 9 ## **APPENDIX OF WP(C)NO.36780 OF 2010** ## **PETITIONER'S EXHIBITS** EXHIBIT P1 TRUE COPY OF THE THE SCHEME EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE EXHIBIT P3 TRUE COPY OF THE LETTER BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT DATED 8.1.2010 EXHIBIT P4 TRUE COPY OF THE OBJRCTION SENT BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE COMPLAINT FILED TO THE 2ND RESPONDENT DATED 15.06.2010 ## **RESPONDENTS EXHIBITS** EXHIBIT R5(a) TRUE COPY OF THE THE ORDER DATED 2.9.2006 PASSED BY THE DDISTRICT EDUCATIONAL OFFICER, KOLLAM EXHIBIT R5(b) TRUE COPY OF THE RECEIPT DATED NIL SUBMITTED BY THE DISTRICT EDUCATIONAL OFFICER, KOLLAM ON THE PETITION FILED BY G.SOBHA, HSA, (MUSIC) EXHIBIT R4(c) TRUE COPY OF THE ORDER DATED 4.11.2006 PASSED BY THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM EXHIBIT R5(d) TRUE COPY OF THE JUDGMENT DATED 25.6.2007 IN WP(C)NO.3847/2007 PASSED BY THIS HON'BLE COURT.