Partly allowed

The Manager, Al-Syed L.P.School v. State of Kerala & 2 Others

Kerala HC1 Mar 2017WP(C)/22470/2009

Case brief

AI extract

What is this about?

In a writ petition concerning the service and reinstatement of a Headmistress suspended under Kerala Education Regulations, the court addressed the treatment of the suspension period and salary liability after criminal charges were quashed.

What did the court decide?

Headmistress entitled to all benefits of reinstatement w.e.f. 01/04/2008 including monetary benefits; no salary recovery from School Manager.

The Manager, Al-Syed L.P.School Vs State of… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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WP(C).No. 22470 of 2009 (C)

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PETITIONER(S):

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THE MANAGER, AL-SYED L.P. SCHOOL, PUTHENTHERUVU, KARUNAGAPPALLY-690 518.

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BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE. ADVS. SRI.JIJI THOMAS, SRI.TONY GEORGE KANNANTHANAM.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT ANNEX, TRIVANDRUM.

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2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.

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3. THE ASSISTANT EDUCATION OFFICER, KARUNAGAPPALLY-690 518.

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4. SMT.K. BUSHARA, THOPPIL VADAKKETHIL, S.R.P. MARKET P.O., KARUNAGAPPALLY-690 539.

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R1 TO R3 BY GOVT. PLEADER SMT.MARY BEENA JOSEPH. R4 BY ADV. SMT.REKHA VASUDEVAN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2017, ALONG WITH WP(C).NO.31846 OF 2015, THE COURT ON 01/03/2017 DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 22470 of 2009 (C)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE ORDER SUSPENSION DATED 30/04/2008 FROM THE PETITIONER TO THE 4TH RESPONDENT.

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EXT.P2 COPY OF THE ORDER DATED 09/05/2008 FROM THE SENIOR SUPDT. IN FULL ADDL. CHARGE OF A.E.O.

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EXT.P3 COPY OF THE REPORT DATED 23/06/2008 ISSUED FROM THE 2ND RESPONDENT.

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EXT.P4 COPY OF THE JUDGMENT DATED 04/03/2009 IN WP(C).NO.6312/2009 OF THIS HONOURABLE COURT.

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EXT.P5 COPY OF THE REPRESENTATION DATED 02/09/2008 FROM THE 4TH RESPONDENT TO THE 2ND RESPONDENT.

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EXT.P6 COPY OF THE REPORT ON THE AUDIT OF ACCOUNTS PERIOD 2004-2005.

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EXT.P7 COPY OF THE D-O- PERIOD 2005-2006.

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EXT.P8 COPY OF THE -DO- PERIOD 2006-2007.

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EXT.P9 COPY OF THE ORDER DATED 13/05/2009 BY THE 2ND RESPONDENT. EXT.P10 COPY OF THE REVIEW PETITION DATED 10/06/2009 FILED BEFORE THE GOVERNMENT (WITHOUT ANNEXURE).

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EXT.P11 COPY OF THE ORDER DATED 24/06/2009 FROM THE 1ST RESPONDENT TO THE PETITIONER.

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EXT.P12 COPY OF THE NOTICE DATED 24/07/2009 BY THE DPI, TRIVANDRUM.

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EXT.P13 COPY OF THE COMMUNICATION DATED 24/07/2009 BY THE 3RD RESPONDENT.

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EXT.P14 COPY OF THE FIR DATED 16/04/2008 ISSUED FROM THE SUB INSPECTOR OF POLICE, KARUNAGAPPALLY.

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EXT.P15 COPY OF THE REPLY DATED 20/12/2008 ISSUED BY THE DEPUTY SECRETARY, ASST. STATE PUBLIC INFORMATION OFFICE.

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RESPONDENT'S EXHIBITS:-

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EXT.R4A COPY OF THE ENQUIRY REPORT NO.E.5267/07 DATED 14/03/2008 OF THE AEO, KARUNAGAPPALLY.

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EXT.R4B COPY OF THE MEMO OF CHARGES DATED 09/11/2007 ISSUED BY MANAGER.

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....2/-

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WP(C).No. 22470 of 2009 (C)

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EXT.R4C COPY OF THE JUDGMENT DATED 26/03/2008 IN WP(C).NO.4933/2008 PASSED BY THIS HONOURABLE COURT.

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EXT.R4D COPY OF THE FINAL REPORT DATED 10/11/2007 IN CRIME NO.949/2007 OF KARUNAGAPPALLY POLICE STATION.

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EXT.R4E COPY OF THE REPLY FROM SRI.ABDUL RASHEED, SENIOR SUPERINTENDENT DATED 14/07/2008.

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EXT.R4F COPY OF THE PETITION DATED 28/10/2008 SUBMITTED BY THE PETITIONER BEFORE THE PETITION COMMITTEE OF THE LEGISLATIVE ASSEMBLY FOR MINORITY RIGHT.

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EXT.R4G COPY OF THE REPORT PUBLISHED IN KERALA KAUMUDI DAILY DATED 29/10/2008.

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EXT.R4H COPY OF THE ORDER NO.D1/62001/07/DPI DATED 05/11/2008 ISSUED BY DPI, THIRUVANANTHAPURAM.

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EXT.R4I COPY OF THE LETTER DATED 22/11/2008 ISSUED ON BEHALF OF THE SECRETARY, KERALA GOVERNMENT.

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EXT.R4J COPY OF THE NOTICE DATED 29/11/2008 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (L) DEPARTMENT.

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EXT.R4K COPY OF THE REPORT DATED 25/01/2008 OF NOON FEEDING OFFICER, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.

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EXT.R4L COPY OF THE LETTER DATED 28/12/2007 OF THE SUPERINTENDENT OF POLICE, KOLLAM TO THE CHAIRPERSON, VANITHA COMMISSION.

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EXT.R4M COPY OF THE ORDER NO.F-5267/07 DATED 29/10/2007 OF THE ASST. EDUCATIONAL OFFICER, KARUNAGAPPALLY.

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EXT.R4N COPY OF THE JUDGMENT DATED 22/11/2007 IN WP(C).NO.32770/2007 PASSED BY THIS HONOURABLE COURT.

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EXT.R4O COPY OF THE JUDGMENT DATED 04/01/2008 IN WP(C).NO.407/2008 PASSED BY THIS HONOURABLE COURT.

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EXT.R4P COPY OF THE G.O.(RT) NO.516/08/G.EDN. DATED 28/01/2008 PASSED BY GOVT. OF KERALA, GENERAL EDUCATION (L) DEPARTMENT.

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EXT.R4Q COPY OF THE LETTER DATED 29/08/2008 FROM THE GOVERNMENT OF KERALA, GENERAL EDUCATION (L) DEPARTMENT TO THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.

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....3/-

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WP(C).No. 22470 of 2009 (C)

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EXT.R4R COPY OF THE LETTER DATED 11/11/2008 FROM THE GOVT. OF KERALA, GENERAL EDUCATION DEPARTMENT TO THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.

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EXT.R4S COPY OF THE ENQUIRY REPORT DATED NIL OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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EXT.R4T COPY OF THE INSPECTION REPORT DATED NIL OF THE FINANCE DEPARTMENT, GOVT. OF KERALA.

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EXT.RU COPY OF THE ORDER DATED 11/02/2014 IN CRL.MC. NO.2093/2012 PASSED BY THIS HONOURABLE COURT.

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EXT.R4V COPY OF THE ORDER DATED 11/02/2014 IN CRL.MC. NO.2095/2012 PASSED BY THIS HONOURABLE COURT.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = =

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W.P.(C).Nos.22470 of 2009 & 31846 of 2015

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= = = = = = = = = = = = = = =

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Dated this the 1^st day of March, 2017

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JUDGMENT

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W.P.(C).No.22470 of 2009 is filed by the Manager of an aided

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school challenging Exhibit P9 order of the D.D.E. directing reinstatement of the Headmistress of the school who was suspended by the petitioner as well as Exhibit P11 letter rejecting the revision petition preferred against Exhibit P9. W.P.(C). No.31846 of 2015 is filed by the Headmistress seeking reinstatement w.e.f. 30.04.2008, (the date of suspension), as also seeking regularisation of the period of suspension as duty. Parties and documents are being referred to as in W.P.(C) No.22470/2009 in this judgment for the sake of convenience.

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Heard the learned senior counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 4^th respondent.

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It is admitted by the counsel appearing on all sides that the Headmistress was reinstated in service and rejoined duty on 29.08.2016. The only question that remains for consideration, therefore, is as to how the period of suspension is to be treated.

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W.P.(C).Nos.22470/2009 & con.case

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The learned Senior Counsel appearing for the petitioner would contend that Exhibit P9 order was totally vitiated by extraneous consideration. It is contended that the authority under Rule 67 (8A), Chapter XIV A KER is expected to look into the validity, legality or otherwise of the order issued by the primary educational authority granting permission to retain an employee under suspension beyond 15 days. By Exhibit P4 judgment, this Court had directed the DDE to consider the request made by the teacher for revocation of suspension, specifically referring to Sub Rule 8A of Rule 67 of Chapter XIVA, KER. Exhibit P2 shows the extension of suspension was not granted without any valid ground but only after being convinced after preliminary enquiry that there is prima facie reason for placing under suspension. It is contended that Exhibit P2 could not have been validly set aside for the reasons stated in Exhibit P5 and as shown in Exhibit P9.

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The reasons stated in Exhibit P9 by the Deputy Director ought not and could not have been taken into account since what was being considered was only the validity of otherwise of Exhibit P2 order. Exhibit P9 is not valid and has to be set aside. This Court has held that while exercising power under Rule 67(8A) Chapter XIV-A KER

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W.P.(C).Nos.22470/2009 & con.case

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function is only to find out whether a suspension beyond 15 days is justified and nothing more than that. It is further contended that Exhibit P11 says that the contentions raised in Exhibit P10 revision has already been examined by Government during the hearing on 4.12.2008. But no decision was taken pursuant to that hearing. It further says that there is no need for the Manager to keep the teacher under suspension unendingly. This finding is not correct in the light of the circumstance under which extension of suspension was ordered. It is further submitted that Manager has no objection to the Headmistress being reinstated w.e.f. 30.04.2008 provided no order is issued by the Department inflicting any liability for payment of salary on or recovery thereof from the Manager.

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6.The only issue which remains to be considered in these Writ Petitions is as to the validity of Exhibit P9 order issued by the DDE and upheld in Exhibit P11 so as to decide whether the Manager would be liable to be mulcted with the liability of payment of salary to the teacher. The Headmistress was placed under suspension on 30.04.1998 in exercise of power under Rule 67 (1)(b) of Chapter XIV A KER. The factum of the

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W.P.(C).Nos.22470/2009 & con.case

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suspension has been duly reported to the DEO, who passed orders permitting the retention of the teacher under suspension beyond 15 days.

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7.Sub-rule 8A of Rule 67 of Chapter XIV KER reads as follows:-

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“8A- Notwithstanding anything contained in sub-rule(8) the authority who permitted the suspension beyond 15 days or any higher authority may at any time during the pendency of such suspension, review such permission and if such authority is satisfied that the teacher under suspension has to be reinstated in service for reasons to be recorded in writing cancel the permission already ordered under sub-rule (8) and direct the Manager to reinstate the teacher in service. On such order, the Manager shall reinstate the teacher forthwith falling which the provision in sub-rule (8) will apply in such cases.”

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What is provided in the said sub-rule is a review of permission already granted under Rule 8. Sub-rule 9 of Rule 67 provides that cases where teachers are continuing under suspension for more than six months have to be reviewed and decision taken whether they should continue to be under suspension or not. This provision specifically states that the review contemplated will not apply to cases of suspension in pursuance of criminal proceedings in a court or detention as a prisoner for debt

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W.P.(C).Nos.22470/2009 & con.case

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where sub-rule 3 of Rule 67 or Rule 67A apply. It is clear that a suspension under Rule 67(1)(b) would also therefore be subject to review under Rule 67(9). The issue of revocation of suspension was considered by the Deputy Director in pursuance to the direction contained in Exhibit P4 judgment. The direction contained in Exhibit P4 was to the Deputy Director of Education, Kollam to pass final order on the representation dated 2.09.2008 preferred by the Headmistress, after hearing the Manager, the concerned teacher as well as the persons who had made the complaint against the Headmistress. It was further stated it will be open to the Manager and the Headmistress to raise all available contentions before the Deputy Director who shall pass orders having due regard to the purpose underlying sub-rule 8A of Rule 67 of Chapter XIVA of the KER.

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It is evident that the request made by the suspended Headmistress was also to review the ratification order and to cancel the same, since the order of ratification under Rule 67(8) was biased and unjustified. After detailing the facts in this case,

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W.P.(C).Nos.22470/2009 & con.case

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the Deputy Director in Exhibit P9 states as follows:

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“Smt Lekshmi and Sri.Udayan are not employees of the school Hence the arguments of the Manager for influencing Sri.Udayan and Smt.Lekshmi by the Headmistress are not sustainable and the arguments of the Manager to continue suspension based on the crime is also not sustainable as per Rule 67(2) Chapter XIVA KER.

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In the above circumstance, the Manager of the school is directed to reinstate Smt.Bushara as Headmistress with immediate effect pending finalisation of disciplinary proceedings. The case relating to the school Noon-Meal programme and its allied issues will be examine dseparately. The directions in the judgment dated 4.3.2009 in W.P.(C). No.6312/2009 is hence complied accordingly.”

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Exhibit P9 also states that no charge memo was issued to the manager by the Headmistress.

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9.It is therefore evident that the Deputy Director had not undertaken the exercise of consideration of the legality or otherwise of the order permitting the retention under the suspension of the petitioner passed by the DEO. This is the purport of sub-rule 8A of Rule 67. This exercise has not been undertaken by the Deputy Director at all. The Deputy Director

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W.P.(C).Nos.22470/2009 & con.case

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only considered the short aspect whether there was any necessity for retaining the Headmistress under suspension. One reason stated for the finding that the Headmistress to be reinstated is that the Manager had not issued any memo of charges. The very fact that the suspension was under Rule 67(1)(b) and that there was no pending disciplinary proceedings has merely been lost sight of by the Deputy Director. The further finding that the complainants are not employees of the school and that therefore there is no real chance of the Headmistress influencing them appears to be the only valid reason raised for reaching the conclusion that the suspension need not be continued. These legal aspects were pointed out by the Manager before the Government in Exhibit P10 revision. By Exhibit P11 letter, the petitioner was informed that the revision was dismissed stating that the suspension was not under rule 67 (3) but under 67(1)(b) and that there is no need for the Manager to keep the teacher under suspension indefinitely.

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10.Though the strict legal implication of the order of the Deputy

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W.P.(C).Nos.22470/2009 & con.case

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Director would be that no examination of the legality of the orders permitting the Manager to retain the teacher under suspension had been made, since the Deputy Director was a reviewing authority in terms of Rule 67(9) as well, and since an order in the nature of Exhibit P9 could have been issued by him under the said sub-rule, I am of the opinion that the order of the Deputy Director and the order of the Government rejecting the revision against the same need not be set aside on the ground that this Court had directed a consideration under sub-rule 8A of Rule 67 alone.

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11.However, it is brought to my notice that after the criminal proceedings against the suspended Headmistress had been quashed by this Court, the Manager had reinstated her in service on 29.08.2016. The quashing of the criminal proceedings would result in a situation where the very basis of the suspension of the Headmistress under Rule 67(1)(b) would be lost. In those circumstances, the suspended Headmistress would clearly be entitled to reinstatement in service with effect from the date of initial order of suspension itself with all

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W.P.(C).Nos.22470/2009 & con.case

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attendant benefits. In the instant case, it can be seen that the Manager was justified in keeping the teacher under suspension on the strength of orders issued by competent authorities at least till the date of Exhibit P11 order when his revision against Exhibit P9 had been rejected. The Manager would definitely not be liable to be mulcted with the responsibility to pay salary to the petitioner till the date of Exhibit P11, that is 24.06.2009. Thereafter, this writ petition had been entertained on 07.08.2009 and there was a stay of implementation of Exhibit P9 and P11 during the pendency of this writ petition. In the meanwhile, the teacher was reinstated on 29.08.2016 after the criminal case registered against her was quashed.

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In the factual circumstances of this case, I am of the view that the Department would not be justified in seeking to recover the salary due to the teacher from the Manager since the suspension of the teacher was extended under orders of the competent educational authorities till the date of Ext.P9 order. Thereafter as well it cannot be said that the Manager had

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W.P.(C).Nos.22470/2009 & con.case

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refused to reinstate the Headmistress without any justification whatsoever. I am of the considered opinion that the circumstances necessary for enforcing recovery of salary from the Manager are not available in the instant case. In view of my findings at paragraph 11 of this judgment, W.P.(C).No. 22470 is dismissed, however, making it clear that no amount shall be recovered from the Manager towards the pay and allowances due to the 4^th respondent. W.P.(C).No.31846/2015 is allowed directing that the 3^rd respondent who has been reinstated by the Manager pending the writ petition shall be entitled to all benefits of reinstatement w.e.f.30.04.2008 including monetary benefits treating the entire period as duty. Consequential orders shall be passed by the DEO within a period of one month from the date of receipt of a copy of this judgment. All arrears of pay and allowances shall be calculated and disbursed to the petitioner within a period of three months thereafter.

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sd/- Anu Sivaraman, Judge

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The Manager, Al-Syed L.P.School v. State of Kerala & 2 Others

Case brief

What is this about?

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The Manager, Al-Syed L.P.School v. State of Kerala & 2 Others

Case brief

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What the court decided

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