Partly allowed

Mohankumar.M.K v. State of Kerala

Kerala HC2 Nov 2022WP(C)/8073/2019

Case brief

AI extract

What is this about?

This court quashed impugned orders failing to consider the petitioner's first spell of suspension for pension regularization directed by prior judgment. It directed the respondent to reconsider and pass fresh orders.

What did the court decide?

Impugned order quashed; Respondent to reconsider and pass fresh orders within 3 months treating first suspension spell as service for pension.

Mohankumar.M.K Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

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WP(C) NO. 8073 OF 2019

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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 RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 2^ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944

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WP(C) NO. 8073 OF 2019

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PETITIONER/S:

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MOHANKUMAR.M.K S/O.M.K.KUTTIKRISHNAN, HSA, SOCIAL SCIENCE (RETIRED), C.V.M.HIGHER SECONDARY SCHOOL VANDAZHYL, PALAKKAD, RESIDING AT GURUVASAM, MALATHOFAN, MOOLAMCODE.P.O., PALAKKAD DISTRICT. BY ADV GEORGE ABRAHAM

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DY. DIRECTOR OF EDUCATION, PALAKKAD, PIN-678001. 3 DISTRICT EDUCATIONAL OFFICER, PALAKKAD, PIN-678001. 4 THE MANAGER, C.V.M. HIGHER SECONDARY SCHOOL, VANDAZHYL, PALAKKAD DISTRICT, PIN-678706 . BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN SMT. ANIMA M., GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Under challenge in this writ petition is Ext.P17 order dated 19.02.2019

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issued by the 1st respondent, by which the revision petition filed by the

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petitioner stands rejected. The petitioner has also sought a direction to the respondents to treat the period of suspension of the petitioner for the period from 15.07.2002 to 17.10.2005 as duty for all purposes and to sanction the

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pay and allowances and other benefits for the said period.

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For understanding the grievance of the petitioner herein, his case

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has to be narrated in some detail.

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a) The petitioner asserts that he was appointed as UPSA in the

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CVM Higher Secondary School, Vandazhyl on 01.06.1989. While he

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was working as HSA (Social Science) in the said school, he was placed

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under suspension as per Ext.P1 order on 15.07.2002. Based on the

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request made by the Manager, the suspension period was extended

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beyond 15 days as per Ext.P2 order. The reason for placing the

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petitioner under suspension was the registration of a crime against

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him based on a complaint lodged by a minor student alleging various

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offences under the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act.

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b) The petitioner contends that the police, after a thorough investigation, submitted a refer report concluding the allegation was nothing but “mistake of fact”. The petitioner also refers to Ext.P3

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minutes of the staff meeting to substantiate that he was found to be innocent, as the materials suggested that no incident of the nature

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alleged had taken place.

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c) Despite proving his innocence, when the Manager refused to

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reinstate the petitioner, he approached this Court, and pursuant to the

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directions issued by this court by Ext.P5 judgment, an enquiry was

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carried out by the DEO resulting in Ext.P6 order. The petitioner was

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ordered to be reinstated forthwith.

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d) The order passed by the DEO was challenged by the Manager

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and the 1st respondent, by Ext.P7 order dated 20.09.2004, rejected the revision petition and ordered reinstatement.

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e) In terms of the order so issued, the petitioner was reinstated

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in service on 17.10.2005.

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f) While so, on 09.07.2007, the petitioner was again suspended

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by the Manager.

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g) In the meantime, the memo of charges was issued against

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the petitioner by the Manager and the petitioner responded to the same.

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h) It appears that when no action was taken, the petitioner

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again approached this Court and filed W.P.(C) No.896/2010, and pursuant to the directions issued by this Court, the DEO issued Ext.P11 order after hearing the petitioner as well as the Manager

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concerned. The DEO took note of the fact that the Manager wishes to grant pardon to the petitioner and award a minor punishment of censure and also that the manager has no objection in treating the period of suspension as eligible leave. After recording the stand of the

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manager, the period of suspension of the petitioner from 15.07.2002

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to 19.10.2005 was regularized in terms of Chapter XIV A Rule 67 of

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the KER.

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i) Not being happy with Ext.P11 order treating the period of

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suspension as eligible leave, the petitioner preferred a revision

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petition before the 1st respondent.

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j) The 1st respondent considered the revision petition and took

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the view that there was no reason to interfere with the order passed

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by the DEO and the revision petition was rejected.

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k) The said order was challenged by the petitioner before this

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Court by filing W.P.(C) No.4360 of 2013.

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l) By Ext.P13 judgment dated 10.08.2015, this Court, after

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considering the entire facts and circumstances, took the view that

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going by the orders issued by the DEO and the Government, the authorities concerned had not gone into the question as to whether the suspension was necessary in the case of the petitioner herein and whether the petitioner was kept outside on frivolous charges. This

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Court disposed of the writ petition quashing the order issued by the

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DEO, which was confirmed by the Government, and directed the

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Government to pass fresh orders on the question. It would be relevant

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to note that while rendering ExtP13 judgment, this Court specifically adverted to the first spell from 15.07.2002 to 19.10.2005 and the

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second spell of suspension from 9.07.2007 to 21.02.2011.

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m) In terms of the directions issued by this Court, the matter was

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reconsidered by the Government, and Ext.P14 order was passed.

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n) The grievance of the petitioner is that while issuing Ext.P14

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order, the Government has limited the consideration of the question for

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the second spell from 9.07.2007 to 21.02.2011 and no reference was

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made to the 1st spell of suspension.

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o) Being aggrieved, the petitioner preferred Ext.P15

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representation before the Secretary pointing out these facts. The petitioner pointed out that he was placed under suspension on an

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earlier occasion from 15.07.2002 to 20.10.2005 and that while issuing

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Ext.P14 order based on Ext.P13 judgment, the above aspects of the matter were not considered. The petitioner requested that the suspension period of the petitioner from 15.07.2002 to 20.10.2005 be

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also ordered to be regularized as duty as in the case of the second spell

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of suspension from 9.07.2007 to 21.02.2011.

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p) When no action was taken, the petitioner approached this

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Court and filed W.P.(C) No.23739/2018, and pursuant to the same Ext.P17 order was passed on 19.02.2019 by the 1st respondent,

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rejecting the request made by the petitioner. In order to reject the request made by the petitioner for regularization of the first spell of service all that is stated in Ext.P17 reads as follows:

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…………The first spell of suspension was in connection with a criminal offence, and the entire proceedings were finalized without any dispute or complaint regarding procedure. As such, there is no need of revising the decision already taken.

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q) The petitioner contends that the respondents failed to advert

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to the relevant aspects while issuing ExtP17.

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It is in the above backdrop that this writ petition is filed seeking

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the following reliefs:

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a) To issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P17 Order issued by the 1st respondent.

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b) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to treat the period of suspension of the petitioner from 15.7.2002 to 17.10.2005 as duty for all purposes and sanction pay and allowances, including pension and other terminal benefits, for the said period.

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c) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to sanction DCRG, computed pension value, the benefits under pay revision orders, increment due to the petitioner, and all other service benefits, within a time-frame stipulated by this Hon’ble Court.

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Though the writ petition was filed on 15.03.2019, no counter

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affidavit has been filed in this case.

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Dr. George Abraham, the learned counsel appearing for the

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petitioner, submitted that though the petitioner is aggrieved by the fact that

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the DEO, while issuing Ext.P11 order, had recorded that the period of suspension from 15.07.2002 to 19.10.2005 could be regarded as eligible leave in terms of Chapter 14A Rule 67 of the KER, this aspect of the matter

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was not considered by the Government while issuing the impugned order.

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According to the learned counsel, the request of the petitioner at this stage

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is only for reckoning service from 15.07.2002 to 17.10.2005 for the purpose

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of pension and nothing else.

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I have heard the learned Government Pleader as well and have

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considered the submissions advanced.

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The entire controversy revolves around whether any interference is warranted on Exts.P14 and P17 orders. The petitioner suffered two spells

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of suspension. The first one was for the period from 15.7.2002 to 20.10.2005 and the second spell was for the period from 9.7.2007 to 21.2.2011. In this proceeding, we are not concerned with the reasons which

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persuaded the respondents to suspend the petitioner. The only issue is whether the period of suspension for the period from 15.7.2002 to 20.10.2005 is to be regularised as duty purely for the purpose of reckoning

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the above period as service for the purpose of pension.

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In this context, it would be relevant to advert to the operative portion of Ext.P11 order issued by the DEO.

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In the above circumstances, the undersigned is placed to regularise the period of suspension from 15.7.2002 to

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19.10.2005 in respect of Sri. Mohankumar, HSA, and from 9.7.2007 to 21.12.2011 in respect of Sri. Mohankumar, HSA and Sri. D. Santhosh Kumar as eligible leave as per Chapter XIVA Rule 67 of KER. Necessary entries in this regard should be recorded in the Service Book.

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By Ext.P12 order, the Government refused to interfere with the

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orders issued by the DEO. Exts.P11 and P12 orders were challenged before

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this Court and by Ext.P13 judgment, a learned Single Judge of this Court quashed the above orders and directed the Government to pass fresh orders on the above question in the light of the observations made in the

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judgment. Thus, there cannot be any doubt that Exts.P11 and P12 orders stood quashed. It was pursuant to Ext.P13 judgment that Ext.P14 order was

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issued by the Government. While disposing of the matter, the Government limited the consideration for the period from 9.7.2007 to 21.2.2011, which is the second spell of suspension. The Government did not advert to the first

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spell in the said order. It was ordered that the petitioner would be eligible for salary and other allowances as the Manager had illegally suspended him.

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Since there was no whisper in Ext.P14 with regard to the prior period of

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suspension from 15.7.2002 to 20.10.2005, the petitioner preferred Ext.P15

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petition which stands rejected by Ext.P17 order. All that is mentioned in

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Ext.P17 is that the first spell of suspension was in respect of a criminal

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offence and the entire proceedings were finalized without any dispute or complaints with regard to procedure. Holding so, it was held that there is no

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need to revise the decision which has already been taken. In view of Ext.P13 judgment, quashing Exts.P11 and P12, the 1st respondent was expected to advert to the first spell of suspension and to consider whether

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the said period could be reckoned as duty for the purpose of pension and

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other terminal benefits. As the above issue has not been considered in Exts.P14 and P17 orders, those orders are liable to be quashed to the limited extent of considering whether the first spell for the period from 15.7.2002 to

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20.10.2005 can be reckoned for the purpose of calculating pension and other terminal benefits.

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In view of the discussion above, this writ petition is ordered and the following directions are issued:

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a) Ext.P17 order issued by the 1st respondent will stand

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quashed.

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b) The 1st respondent shall reconsider Ext.P15

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representation and Ext.P16 notes of argument and consider

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whether the period of suspension of the petitioner for the

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period from 15.7.2002 to 17.10.2005 can be treated as

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service solely for the purpose of sanctioning of pension and

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other terminal benefits.

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c) Fresh orders shall be passed expeditiously, in any

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event, within a period of three months from the date of

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receipt of a copy of this judgment.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 8073 OF 2019

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APPENDIX OF WP(C) 8073/2019

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PETITIONER(S) EXHIBITS :

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EXHIBIT P1	TRUE COPY OF THE SUSPENSION ORDER DATED 15.7.2002 ISSUED TO THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 29.7.2002 OF THE DISTRICT EDUCATIONAL OFFICER.
EXHIBIT P3	TRUE COPY OF THE MINUTES OF THE STAFF MEETING HELD ON 28.6.2002.
EXHIBIT P4	TRUE COPY OF THE FINAL REPORT FILED BY THE DY.SUPERINTENDENT OF POLICE BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR.
EXHIBIT P5	TRUE COPY OF THE JUDGMENT IN OP(C)NO.7105/2003 DATED 28.2.2003.
EXHIBIT P6	TRUE COPY OF THE ORDER PASSED BY THE DISTRICT EDUCATIONAL OFFICER DATED 22.5.2003.
EXHIBIT P7	TRUE COPY OF THE ORDER, GO(RT)NO.4110/04/G.EDN. DATED 20.9.2004 ISSUED BY THE 1ST RESPONDENT DISMISSING THE REVISION FILED BY THE MANAGER.
EXHIBIT P8	TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER ON 18.5.2006.
EXHIBIT P9	TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION ISSUED AGAINST THE PETITIONER DATED 15.11.2003.
EXHIBIT P10	TRUE COPY OF THE COMMUNICATIONS SENT BY THE MANAGER DATED 26.12.2003 TO THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD.

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EXHIBIT P11 TRUE COPY OF THE ORDER PASSED BY THE DISTRICT EDUCATIONAL OFFICER ON 10.4.2012. EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER GO(RT).NO.6220/12/G. EDN. DATED 31.12.2012. EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC.4360/13. EXHIBIT P14 TRUE COPY OF GO(RT).NO.60/2016/G/EDN. DATED 12.1.2017. EXHIBIT P15 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER ON 6.2.2017. EXHIBIT P16 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER. EXHIBIT P17 TRUE COPY OF GO(RT)NO.638/19/G.EDN. DATED 19.2.2019.

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RESPONDENT(S) EXHIBITS : NIL

Mohankumar.M.K v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mohankumar.M.K v. State of Kerala

Case brief

What is this about?

What did the court decide?

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