Allowed

K.Pradeep Kumar v. Assisstant Educational Officer

Kerala HC16 Mar 2016WP(C)/6088/2012

Case brief

AI extract

What is this about?

The Court allowed a teacher's writ petition quashing a disciplinary notice issued without enquiry due to delay and held the four-year suspension invalid. It decreed payment of pay and allowances during the illegal suspension period to be recovered from the school manager.

What did the court decide?

Entire pay and allowances during the suspension period to be paid by the Government and recovered from the Manager within four months.

K.Pradeep Kumar Vs Assisstant Educational Officer — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937

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WP(C).No. 6088 of 2012 (I)

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PETITIONER:

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K.PRADEEP KUMAR ASSISTANT TEACHER, POONATH NELLISSERY, A.U.P. SCHOOL POONATH, KOZHIKODE-673 614.

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BY ADVS.SRI.A.JAYASANKAR

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SRI.C.V.MANUVILSAN SRI.MANU GOVIND

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RESPONDENTS:

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1. ASSISSTANT EDUCATIONAL OFFICER PERAMBRA, KOZHIKODE-673 525.

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2. THE HEADMASTER, POONATH NELLISSERY, A.U.P. SCHOOL, POONATH KOZHIKODE-673 614.

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3. THE MANAGER,

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POONATH NELLISERY, A.U.P. SCHOOL, POONATH KOZHIKODE-673 614.

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BY ADV. SRI.GEORGE POONTHOTTAM BY GOVERNMENT PLEADER SMT. M.J. RAJASREE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2016, ALONG WITH WPC. 2973/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6088 of 2012 (I)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT. P1	:	COPY OF THE SUSPENSION ORDER ISSUED BY THE 3RD RESPONDENT DATED 04/01/2011.
EXT. P2	:	COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 14/01/2011.
EXT. P3	:	COPY OF THE ORDER ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER DATED 05/02/2011.
EXT. P4	:	COPY OF THE JUDGMENT IN W.P.(C) NO.13638 OF 2011.
EXT. P5	:	COPY OF THE G.O(RT)NO.4561/2011/G.EDN. DATED 27/10/2011.
EXT. P6	:	COPY OF THE REPRESENTATION PREFERRED BEFORE THE ASSISTANT EDUCATIONAL OFFICER DATED 17.01.2012.
EXT. P7	:	COPY OF THE CHARGE MEMO DATED 02/01/2012.
EXT. P8	:	COPY OF DETAILED EXPLANATION DATED 06.01.2012.
EXT. P9	:	COPY OF THE COMMUNICATION ISSUED BY THE MANAGER OF THE SCHOOL DATED 24/01/2012.
EXT. P10	:	COPY OF THE DETAILED REPRESENTATION DATED 05.02.2012.
EXT.P11	:	COPY OF THE REPORT SUBMITTED BY THE ASSISSTANT EDUCATIONAL OFFICER, PERAMBRA.

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RESPONDENTS' EXHIBITS:- NIL

//TRUE COPY//

P.A. TO JUDGE

K. VINOD CHANDRAN, J.

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----------------------------------

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W.P(C). Nos.6088 of 2012-I

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2973 of 2015-V

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---------------------------------Dated this the 16^th day of March, 2016

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JUDGMENT

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The writ petitions are filed respectively by a Teacher and the Manager of the School. The issue involved is a disciplinary proceeding taken against the Teacher. For convenience, the parties and documents are referred to from WP(C) No.6088 of 2012, unless otherwise specified.

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The petitioner, a UPSA, was suspended as per Ext.P1 order dated 04.01.2011 by the

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Manager on allegation of misconduct, which, as such, are not relevant for consideration. The

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 2

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Manager, after suspending the petitioner for 15 days, had approached the AEO for extension of the suspension. The AEO by Ext.P2 dated 14.01.2011 declined to grant such extension. Subsequently, the AEO also by Ext.P3 dated 05.02.2011 directed that the pay and allowances due to the petitioner, paid by the Government, would be recovered from the Manager, for reason of the suspension order having been declined extension. Ext.P3 was dated 05.02.2011, which admittedly was not challenged by the Manager.

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As to Ext.P2 rejection of extension of

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suspension, the Manager filed an appeal before the DEO, which in fact ought to have been challenged by a revision before the Government, as available in Rule 92 of Chapter XIV A of the Kerala Educational Rules, 1959 [KER]. Rule 79

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only provides for an appeal against the

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 3

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suspension and not against the rejection of suspension. The Manager also filed a writ petition numbered as WP(C) No.13638 of 2011 against Ext.P2 order, wherein there was a stay granted hence the Teacher was continued on suspension. The writ petition was taken up for hearing and disposed of by Ext.P4 judgment dated 01.07.2011. In the writ petition, Ext.P2 revocation of suspension and Ext.P3 order of liability mulcted on the Manager were challenged. This Court, in Ext.P4 judgment, after considering the entire facts, found that Ext.P7 revision was filed under Section 92 against Ext.P2 order and was pending before the Government. Hence the Government was directed to consider the issue and the writ petition was disposed of further directing that the pay and allowances of the Teacher for the period from

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 4

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the date of Ext.P2 till the date of interim order in the writ petition, ie., 17.05.2011, will be disbursed to the Teacher. The Manager obviously gave up his challenge against Ext.P3 order.

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The Government considered the issue and passed Ext.P5. In Ext.P5 Government revoked the suspension of the Teacher and ordered the Manager to reinstate him in service. It was also specifically observed in Ext.P5 that the Manager would have liberty to continue the disciplinary proceedings against the Teacher in accordance with the procedure established in Rule 75 of Chapter XIV A KER. The Manager having not taken up any proceedings, the Teacher was before the AEO with Ext.P6 representation, seeking conclusion of the proceedings and payment of salary.

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 5

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The teacher was permitted to rejoin duty on 30.11.2011. Subsequently, the Manager issued Ext.P7 charge memo dated 02.01.2012, to which Ext.P8 explanation dated 06.01.2012 was proffered by the petitioner. The Manager, without following the procedure under Chapter XIVA KER, issued an order proposing imposition of punishment under Rule 75 as per Ext.P9 dated 24.01.2012, upon which the teacher approached this Court. On admission, this Court had on 13.03.2012, granted a stay of further action pursuant to Ext.P9. The interim order was not extended and when an application was filed for revival and extension, this Court found by order dated 29.08.2012 that, the

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Teacher/petitioner does not challenge Ext.P5, which permitted continuance of disciplinary proceedings. Ext.P9 was found to be a show-

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 6

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cause notice issued in the disciplinary proceedings. Leaving the petitioner to challenge the punishment, if imposed, the interim order was not extended.

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It is also revealed from the records that subsequently an enquiry was conducted by the AEO and the report was forwarded by covering letter Ext.P11 dated 15.10.12 to the Manager. The enquiry report is also available along with the covering letter and produced as Ext.P11. Two charges, one of unauthorised absence and the other of not having taken steps to regularise such absence was found to against the teacher. Three other charges were found to be not proved.

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Now WP(C)No.2973 of 2015 is referred to and the documents as produced in the other writ petition are shown in brackets. As was noticed

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 7

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earlier, against the order of rejection of suspension (Ext.P2), the petitioner had approached the DEO, the revisional authority and this Court. This Court had directed the revision to be considered by judgment dated 01.07.2014, which was referred to earlier, and the order passed in the revision dated dated 27.10.2011 (Ext.P5) was also referred to. Subsequently, it so transpired that the Manager moved WP(C) No.4986 of 2011, wherein it was alleged that the salary bill of the School managed by the petitioner had been rejected on the ground that the salary of the Teacher under suspension was not regularised. The writ petition was disposed of by Ext.R4(h) judgment dated 30.01.2014.3 In Ext.R4(h), presumably on the submission of the Manager that an appeal was pending, it was directed that if any appeal

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 8

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is preferred by the Manager (sic-petitioner), the same shall be disposed of within a period of three months after affording the petitioner and affected parties an opportunity of being heard.

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On the basis of Ext.R4(h), the Manager approached the DEO, wherein as was noticed earlier, an appeal was preferred, which was not maintainable, going by the provisions of the KER. In deference to the orders passed in WP(C) No.4986 of 2011, the DEO considered the appeal and disposed of the same by Ext.P8 order dated 30.04.2014. It is to be noticed that, by that time, the revision against the very same order (Ext.P2) was finalised by the Government (Ext.P5). No challenge was made therefrom and the Government order dated 27.10.2011(Ext.P5) had reached finality. The said order is

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 9

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produced by the Manager in her Writ Petition, but not seen challenged.

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None brought to the notice of the DEO that the revision before the Government, on the same subject matter had already been disposed of. It is also revealed from Ext.P8, that the Teacher's request for adjournment was rejected and the matter was disposed of without hearing the Teacher and in his absence. When Ext.P8 was passed against the Teacher, the Teacher approached the Government under Section 92, the resultant order in which is produced as Ext.P1 dated 23.12.2014 and challenged in the writ petition of the Manager.

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Ext P1, impugned by the manager,

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indicates that when the Manager filed an appeal against the order of the AEO, rejecting sanction to continue the suspension; before the

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 10

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DEO, the same was rejected as not maintainable. The Government also took note of the allegations proved in the enquiry and found that the absence alleged and proved against the teacher has been directed to be regularised. The Government after hearing the parties also referred to the tug of war existing in the School between the Manager and the Head Master on one side and the Teacher on the other. The efforts taken by the PTA and the peoples representatives also were found to have not evoked any result, for reason of the recalcitrant attitude of the Manager and the Head Master. The DPI was also directed to keep a close watch on the functioning of the School and submit report.

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The Manager is aggrieved with Ext.P1 in

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so far as the entire suspension period was

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 11

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directed to be considered as duty. The learned counsel for the Manager contends that such a direction was not permissible, especially since the disciplinary enquiry was pending and the manner in which the suspension period is treated could have been considered only after conclusion of such proceedings. The primary fallacy in the contention raised by the Manager is that, Ext.P8 order passed by the DEO was non est for two reasons. The DEO lacked jurisdiction to consider the challenge against ther AEO's order passed under Rule 67 Chapter XIVA of KER. A revision alone was maintainable under Rule 92 of Chapter XIV A before the Government. Further the Manager had availed of the revisional remedy and had also obtained a direction from this Court for consideration of such revision. The revision was considered and

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 12

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an order was issued as early as on 27.10.2011. Hence there could not have been any appeal against the same order, again considered by a lower authority.

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The reliance on Ext.R4(h) judgment

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cannot also be countenanced, since the Court merely made an observation that if an appeal is pending, the same would be disposed of within three months. It is trite that this Court cannot confer jurisdiction on an authority, when no such jurisdiction is available as per the statute. Ext.P1 set aside the order of the

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AEO and directed that the pay and allowances of the petitioner be paid and the suspension regularized from the date of his suspension.

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This Court would not interfere with the findings in Ext. P1, since it restores the position existing prior to Ext.P8 order of the

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 13

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DEO.

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Now what remains to be considered is as

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to the pending disciplinary proceedings. The disciplinary proceedings were directed to be continued as per order dated 27.10.2011 of the Government. The proceedings taken, which culminated in Ext.P9 order produced in WP(C) No.6088 of 2012, has also been noticed. At this point, it is relevant to consider as to whether the Manager could have issued Ext.P9 at all. The punishment proposed though not specified in Ext.P9, is under Rule 75, which speaks of major penalties alone. In the event of major penalty, necessarily an enquiry had to be conducted, the procedure for which is clearly laid out in the KER, and the same has to be in accordance with the procedure established in a departmental enquiry by any employer against its employee.

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 14

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Every facet of such an enquiry, including the compliance of principles of natural justice; affording the delinquent a fair chance of defending himself would be attracted. No such enquiry having been conducted prior to Ext.P9, Ext.P9 is not sustainable. The same is set aside.

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Now the issue arises as to whether the Manager could rely on Ext.P11 produced in WP(C) No.6088 of 2012 and continue the proceedings. Though Ext.P9 show cause,was issued, evidently the Manager had requested the AEO to conduct an enquiry, which was conducted and Ext.P11 report was also filed before the Manager. The Manager obviously did not take any steps after Ext.P11 enquiry report was submitted on 15.10.2012. The question now is as to whether the enquiry could be directed to be continued even at this stage.

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 15

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The liberty to continue the enquiry was granted by the Government by order dated 27.10.2011.

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The proceedings were taken up, but however an illegal notice was issued, proposing punishment under Rule 75, without any enquiry having been conducted. In the writ petition filed by the Teacher initially a stay was granted, but the same was vacated by order dated 21.08.2012. Even before such vacation of the order, the enquiry report was before the Manager, ie. as per Ext.P11. The Manager, despite the stay having been vacated, chose not to conclude the proceedings.

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At this point, there would be absolutely no reason why the Manager should be permitted to continue the proceedings. By own default, the Manager had not continued the proceedings and after an expiry of about four years, cannot

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 16

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be permitted to continue the proceedings with respect to an allegation raised as early as on 04.01.2011. The Teacher has also been reinstated in service. This Court in taking such view is fortified by the decision of the Hon'ble Supreme court in 1998(4) SCC 154 State of A.P. Vs N.Radhakishan, where it was held that delay in conclusion of disciplinary proceedings vitiates the proceedings. True the Court held that there can be no predetermined principles and the issue has to be considered on the facts and circumstances arising in each case. In the facts and circumstances arising herein this Court is of the opinion that this is a fit case where the proceedings can be held to be vitiated. For the reasons stated above, this Court does not find any reason to interfere with Ext.P1 order produced in WP(C)

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 17

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No 2973 of 2015, which is one under Section 92 KER. The Government, having set aside the non est order of the DEO, had directed that the petitioner’s suspension period be considered as duty. This is also perfectly justified.

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It is significant that even as early as on 05.02.2011 by Ext.P3 produced in WP(C) No.6088 of 2012, the Manager was mulcted with the liability of pay and allowances to be paid to the petitioner during the illegal suspension period. The Manager had kept the petitioner under suspension on charges, the continuance of which was interfered with by the educational authorities. The enquiry too was held and except for two charges all others were found to have been not proved. The allegations proved was also of unauthorised absence in a training programme for two days, and the refusal to take

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 18

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steps to regularise the said absence. The other charges were found to have been not proved. If the Manager had taken steps and brought the proceedings to its logical conclusion, then the reckoning of the period of suspension could have been left to be considered by the Government under the Kerala Service Rules, 1959. The Manager had failed to take further proceedings on the enquiry report submitted by the AEO and there cannot be a direction to consider the report at this stage. Then again the suspension period has been found to be illegal for reason of the suspension having not been permitted to be extended beyond the initial period of 15 days. The pay and allowances during the suspension period also has been mulcted on the Manager as per Ext.P3 order produced in WP(C) No.6088 of 2012 of the

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W.P(C). Nos.6088 of 2012-I & 2973 of 2015-V 19

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AEO, which was not challenged. The continuance of suspension without sanction is found to be downright illegal.

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Hence, WP(C) No.6088 of 2012 would stand allowed, directing that the entire pay and allowances during the suspension period would be given by the Government within a period of four months from the date of receipt of the certified copy of this judgment, and the same would be recovered from the Manager, under Rule 7 Chapter III KER.

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WP(C) No.2973 of 2015 would stand dismissed.

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Parties to suffer their respective costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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//True Copy//

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P.A. to Judge.

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sp/19/03/16

K.Pradeep Kumar v. Assisstant Educational Officer

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K.Pradeep Kumar v. Assisstant Educational Officer

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