T.M. Leela v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939** **WP(C).No. 13643 of 2009** ## **PETITIONER:** **T.M.LEELA, W/O.K.A.GOVINDAN, AGED 60 YEARS, HEADMISTRESS (RETIRED),GOVERNMENT MUSLIM LOWER PRIMARY SCHOOL,ERATTUPETTA, RESIDING AT KANDATHINANIKAL, POOVARANI.P.O, KOTTAYAM - 686 577.** **BY ADV.SMT.REKHA VASUDEVAN** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,** **DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **3. THE ASSISTANT EDUCATIONAL OFFICER, ERATTUPETTA, KOTTAYAM.** **4. THE DISTRICT PROJECT OFFICER, S.S.A, KOTTAYAM.** **5. THE DISTRICT COLLECTOR,** **6. THE DEPUTY TAHSILDAR,** **REVENUE RECOVERY OFFICE, PALA, KOTTAYAM.** **R1 TO R6 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts/27/3/2018** ## **WP(C).No. 13643 of 2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 COPY OF THE AGREEMENT DATED 25/2/2003** - **EXT.P2 COPY OF THE LETTER NO.C.6/SSA/03 DATED 27/2/2004 ISSUED BY THE 2ND RESPONDENT** - **EXT.P3 COPY OF THE REPLY DATED 10/3/2004 SUBMITTED TO THE 2ND RESPONDENT** - **EXT.P4 COPY OF THE LETTER NO.C.6.SSA/04 DATED 7/4/2004 ISSUED BY THE 2ND RESPONDENT** - **EXT.P5 COPY OF THE MEMO NO.B-261/03 DATED 23/7/2004 ISSUED BY THE 3RD RESPONDENT** - **EXT.P6 COPY OF THE EXPLANATION DATED 28/7/2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** - **EXT.P7 COPY OF THE LETTER NO.C6/13934/04 DATED 6/12/2004 ISSUED BY THE 2ND RESPONDENT** - **EXT.P8 COPY OF THE LETTER NO.C7/6301/06 DATED 28/9/2007 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT** - **EXT.P9 COPY OF THE LETTER NO.C7.6301/06 DATED 27/11/2007 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT** - **EXT.P10 COPY OF THE LETTER NO.C3-1191/07/KTM/KWC DATED 12/6/2008 ISSUED BY THE KERALA WOMEN'S COMMISSION** - **EXT.P11 COPY OF THE JUDGMENT DATED 19/9/2008 IN WP(C) 16728 OF 2008 OF THIS HONOURABLE COURT** - **EXT.P12 COPY OF THE ORDER NO.B.3/C.W/S.S.A-KOTTAYAM/06-07 DATED 23/10/2008 BY THE 4TH RESPONDENT** - **EXT.P13(a) COPY OF THE DEMAND NOTICE NO.B5-758/09/125 DATED 11/2/2009 BY THE 6TH RESPONDENT** - **EXT.P13(b) COPY OF THE DEMAND NOTICE NO.B5-758/09/125 DATED 11/2/2009 BY THE 6TH RESPONDENT** - **EXT.P14 COPY OF THE REPRESENTATION DATED 8/5/2009 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/ sts/27/3/2018 P.A.TO JUDGE** ## **DEVAN RAMACHANDRAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 13643 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of March, 2018 ## **JUDGMENT** This writ petition has been filed by the petitioner, who says that, she retired as a Headmistress from the Government Muslim Lower Primary School, Erattupetta, on 30.06.2003. She says that prior to her retirement, in her capacity as the Convenor of a Village Education Committee, she had executed an agreement for the construction of a Block Resource Centre, and that even though the construction was commenced, it was not completed before her retirement. According to her, much after she retired, a letter was issued to her by the Deputy Director of Education to complete the construction before 14.04.2004, to which, she says, she replied by a letter stating that she had retired from service and hence cannot be held responsible to continue the construction. 2. The petitioner says that while so, a proceedings dated 23.07.2004, was issued to her informing that the Government have suffered a loss of Rs.4,77,850/- and calling upon her to W.P.(C).No. 13643 of 2009 -:2:- show cause why the said liability should not be recovered from her. The petitioner says that she replied to this disputing the liability and asserting that she cannot be held responsible or liable, since she had retired from service as early as on 30.06.2003. 3. The petitioner submits that even though she retired as early as on 30.06.2003, her DCRG was not released to her, on account of the aforesaid proceedings and that she was constrained to approach this Court by filing W.P.(C) No.16728/2008, which was disposed of by this Court, through Ext.P11 judgment, wherein, taking note of the provisions of Rule 3 Part III KSR, this Court directed the DCRG to be released to her, however, allowing the respondents to take recourse to other measures for recovery of any amount that may be found due from the petitioner. 4. The petitioner says taking advantage of this liberty granted in Ext.P11, the Authorities have now issued Ext.P12 order imposing the liability of Rs.4,77,850/-, followed by W.P.(C).No. 13643 of 2009 -:3:- Exts.P13(a) and P13(b) demand notices, under the Revenue Recovery Act. The petitioner impugns these orders primarily on the contention that Ext.P2 has been issued without hearing her and without taking into account her objections regarding imposition of liability against her, since she had retired as early as in 2003. 5. I have heard Smt.Rekha Vasudevan, the learned counsel appearing for the petitioner and the learned Government Pleader, Sri. E.S. Ashraf. 6. Even though there are various allegations and averments in the writ petition, I notice that the focal issue is whether Ext.P12 order has been issued after affording an opportunity of being heard to the petitioner. The answer to this, as is evident from the said order as also the counter affidavit filed on behalf of the official respondents, appears to be in negative. At least, I cannot find any mention in the order impugned or in the counter affidavit, that the petitioner was afforded an opportunity of being heard. That apart, the W.P.(C).No. 13643 of 2009 -:4:- petitioner's specific objection against initiation of proceedings against her on the ground that she had retired as early as in the year 2003, does not appear to have been adverted to. 7. Smt.Rekha Vasudevan, learned counsel appearing for the petitioner also relies on the judgment of the Hon'ble Supreme Court reported in **State of Punjab & others v. Rafiq V.Mashi (White Waster) & others** [(2015) 4 SCC 334] and avouches that no action could have been taken against the petitioner after her retirement and that too more than a year or two later. She says that the present action initiated through Ext.P12 order and proceeded through Ext.P13(a) and P13(b) notices, are irregular and illegal. 8. The learned Government Pleader appearing for the respondents says that Ext.P2 order was issued as per the directions contained in Ext.P11 judgment. According to him, this Court has granted liberty to the Authority to initiate action against the petitioner and to recover amounts from her by means of law. W.P.(C).No. 13643 of 2009 -:5:- 9. I have considered the submissions of the learned counsel appearing for the petitioner as well as the learned Government Pleader. 10. It is no doubt true that in Ext.P11 this Court had granted liberty to the respondents to take recourse to “any other measures for recovery of any amount due from the petitioner”. Obviously, the intention of this Court was to permit recovery, in the manner sanctioned in law, but only after amounts were found due from the petitioner. Recovery otherwise than in the manner in Ext.P11 is therefore, impermissible. A reading of Ext.P12 does not say how the concerned Authority has concluded that the petitioner is liable for the amounts shown therein and as to how she can be proceeded against, in spite of the fact that she had retired much earlier. The ratio of the Hon'ble Supreme Court in **Rafiq V.Mashi** 's case (supra) was also not adverted to. 11. In such circumstances, I am firmly of the view that Ext.P12 cannot obtain favour in law and therefore, I quash the W.P.(C).No. 13643 of 2009 -:6:- same, but without restricting the Authorities to reconsider the case against the petitioner, if they are so desirous of doing so, in terms of law. If any such reconsideration is thought required against the petitioner herein, the 4[th] respondentDistrict Project Officer, S.S.A, Kottayam, will be at liberty to issue further orders adverting specifically to the contentions of the petitioner recorded herein and to the ratio of the Hon'ble Supreme Court in **Rafiq V.Mashi** 's case (supra), but only after affording an opportunity of being heard to the petitioner or her authorised representative, in terms of law. 12. I am cognizant of the submissions of Smt.Rekha Vasudevan, that her client is now 75 years of age and that she would not be in a position to effectively represent herself or to place her case before the Authority in the manner she could have done, when she was much younger. This shall also be one of the factors that will weigh with the competent Authority, if they choose to initiate any further action against her and any such proceedings will be commenced only if it is so necessary W.P.(C).No. 13643 of 2009 -:7:- to do so and after concluding that the petitioner is liable to be proceeded against, even as per the ratio in **Rafiq V.Mashi** 's case (supra). In the result, this Writ Petition is ordered as above and I quash Ext.P12 order, Exts.P13(a) and P13(b) demand notices, reserving the liberty given to the respondents as aforesaid. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ttb/19.03