MANAGER, S. v. HIGH SCHOOL VS STATE OF KERALA — 1983 DIGILAW 28 (KER)

Judgment :- 1. The relief sought for by the petitioner, who is the Manager of a Private Aided School, is the issue of a writ of certiorari, to quash Ext. P3 order in so far as it directed the second respondent to recover the salary payable to the third respondent for the period he was kept out of duty viz., from 23-2-1965 to 18-6-1970. This involves the interpretation of R.67(8) of Chapter XIV-A of the Kerala Education Rules, (hereinafter referred to as the Rules) and the question as to whether a Manager, who bad been required to reinstate a teacher on pain of the prescribed statutory consequences for disobedience, is entitled to a fresh opportunity before the Government finally decides to direct recovery of the salary due to the teacher from the recalcitrant manager. 2. The facts relevant are the following: The third respondent, who was the Headmaster of the S. V. High School, Kayamkulam, of which the petitioner is the present Manager, was placed under suspension by orders of the Manager dated 23-2-1965. This order was passed in exercise of the powers of the Manager under R.67(7) of Chapter XIV-A of Rules, which provided that the Manager can keep a teacher under suspension only for a period not exceeding fifteen days unless the appropriate authority approves the continuance of suspension for a period beyond fifteen days. The Manager appears to have requested for sanction under R.67(7) of the Rules, but the Regional Deputy Director of Public Instruction did not pass orders within the period of fifteen days. By his order dated 24-3-1965, more than a month after the above initial suspension, he refused to grant permission sought for by the Manager. It is said that the Manager filed a revision petition before the Government and obtained an order of stay on 31-3-1965. This order only stayed the refusal of sanction by the Regional Deputy Director. It did not go further and grant any permission which was necessary to continue the suspension of the third respondent. The revision petition itself was dismissed on 25-6-1965. It is stated in the counter affidavits of the respondents that the Regional Deputy Director of Public Instruction in his order dated 19-7-1965 directed the Manager to reinstate the third respondent, and further directed the District Educational Officer. The revision petition itself was dismissed on 25-6-1965. It is stated in the counter affidavits of the respondents that the Regional Deputy Director of Public Instruction in his order dated 19-7-1965 directed the Manager to reinstate the third respondent, and further directed the District Educational Officer. Mavelikkara, to disburse the pay and allowances due to the third respondent, deeming him to have been reinstated in service as Headmaster of the School with effect from the date of the order of suspension 3. The order of the Government dated 25-6-1965 dismissing the revision petition was challenged by the Manager in O.P.No.1657 of 1965 That petition having been dismissed, the Manager filed writ Appeal No 187 of 1965, which was disposed of on 10-11-1965 by Ext. P1 judgment. The Division Bench observed: "All that is required is to direct the first respondent to conduct and complete the investigation that is contemplated in Para.2 of Ext. P4. We do so. -The investigation will be completed by the first respondent, within two months from today. The status quo will continue till the enquiry is completed." 4. The enquiry was completed by the Regional Deputy Director of Public Instruction, who also proposed the punishment of stoppage of two increments due to the third respondent as per his Memo dated 20-4-1966. The Manager challenged these proceedings in O. P. No. 1734 of 1966 and obtained a stay of further proceedings pursuant thereto. Even this order did not authorise suspension of the 3rd respondent. This Original Petition was disposed of only on 19-11-1969, on the basis of a concession made by the Advocate General, that the department will leave it to the Manager to take appropriate action in the matter in accordance with law. 5. The Manager imposed the penalty of removal from service on the third respondent, without obtaining prior sanction, as provided in R.74 of Chapter XIV-A of the Kerala Education Rules, and persisted in imposing that major punishment inspite of departmental interference on two more occasions. Thereafter, the Manager in his letter dated 12-5-1970 requested the Regional Deputy Director of Public Instruction to grant permission to impose the penalty of permanent reduction in rank of the third respondent as High School Assistant. Such permission was granted by the officer concerned by order dated 27-5-1970 and the third respondent was admitted to duty as High School Assistant, from 1-6-1970. 6. Such permission was granted by the officer concerned by order dated 27-5-1970 and the third respondent was admitted to duty as High School Assistant, from 1-6-1970. 6. We are not concerned in these proceedings with the further vicissitudes of the proceedings in this case, except two facts that only a minor penalty of stoppage of increment for six months without cumulative effect was imposed by the Manager and that the manager proposed reinstatement of the third respondent as Headmaster with effect from 23-2-1965. This welcome change in the attitude of the Manager was probably due to the the change in the person of the Manager in the meantime. The Regional Deputy Director in his letter dated 9-1-1973 accepted the proposal. This letter is produced as Ext. R3(b) along with the counter affidavit of the third respondent. 7. After his reinstatement as the Headmaster, the third respondent filed an appeal before the Government against the direction contained in Ext R3(b) order that "the period of suspension may be treated as eligible leave" This appeal and the consequential orders ultimately led to G.O.Rt. No. 2574/75/G. Edn. dated 4-8-1975, wherein it was held that "the entire period during which the third respondent was kept out of service would be treated as duty for all other service purposes except for full salary and that he would be given incremental benefits with notional fixation from the respective due dates and with the monetary benefits from the date on which he rejoined duty." This meant that the third respondent was required not to draw salary for the period of more than five years, during which be was kept out of duty. He filed O. P. No. 5146 of 1975 against this order. The Original Petition having been dismissed, the third respondent filed W. A. No. 35 of 1976; and the same was allowed by judgment dated 13-7-1975 holding that the relevant rule which applied to the case was not R.56 of the Kerala Service Rules, but R.67(8) of Chapter XIV-A of the Kerala Education Rules. It was pursuant to this judgment that Ext. P3 order has now been passed by the Government. The Government finds in Para.3 of the order, that "In this case Shri Shenoy was ordered to be reinstated by the Regional Deputy Director of Public Instruction and the Government confirmed the order of the Regional Deputy Director of Public Instruction. It was pursuant to this judgment that Ext. P3 order has now been passed by the Government. The Government finds in Para.3 of the order, that "In this case Shri Shenoy was ordered to be reinstated by the Regional Deputy Director of Public Instruction and the Government confirmed the order of the Regional Deputy Director of Public Instruction. But the Manager did not actually reinstate him. Government consider that in the light of R.67(8) of Chapter XIV(A), K.E.R. Shri Shenoy should be deemed to have been on duty, during the period from 23-2-1965 to the date of his reinstatement in the school i.e., 18-7-1970. Government therefore order that he will be paid the full pay and allowances minus the subsistence allowance already drawn for the period he was kept out of service i. e, from 23-2-1965 to 18-6-1970." In Para.4 of the order, it was further directed that "the Director of Public Instruction will pursue action to recover from the Manager of the school the amount due to Shri Shenoy by way of full pay and allowances for the period specified in para 3 above, as laid down in R.67(8) of Chapter XIV-A KER." 8. The counsel for the petitioner contends that Ext. P3 order is unsustainable for various reasons. He states firstly that the order of stay passed by the Government on 31-3-1965 in his revision petition against the order of the Regional Deputy Director of Public Instruction dated 24-3-1965 refusing to grant permission to continue the third respondent under suspension beyond fifteen days had the effect of sanction contemplated in R.67(7) of Chapter XIV-A of the Kerala Education Rules, that this state of affairs continued even. on the date of disposal of W. A. No. 187 of 1965 filed by him, and the observation in the judgment in Ext. PI that the status quo will continue till the enquiry was completed was a further affirmation that the suspension of the third respondent was validly to continue till after the enquiry was over. He then contends that the delay in finalising the matter after the enquiry, was at least partly due to the order of the Regional Deputy Director of Public Instruction imposing the penalty himself directly, instead of leaving it to the Manager to impose the punishment. Lastly it was contended that the order Ext. He then contends that the delay in finalising the matter after the enquiry, was at least partly due to the order of the Regional Deputy Director of Public Instruction imposing the penalty himself directly, instead of leaving it to the Manager to impose the punishment. Lastly it was contended that the order Ext. P5 in so far as it directs recovery of the salary and allowances payable to the third respondent for the period he was kept out of duty by the petitioner was made without hearing him and is therefore violative of the principles of natural justice. At the time of the argument, counsel for the petitioner submitted that he will be satisfied if the petitioner is given a further opportunity before the direction in Para.4 of Ext. P-3 for recovery from the petitioner is given effect to. 9. In the nature of this case, it does not appear to me that the petitioner is entitled to the relief sought for by him for any of the reasons mentioned by him. The relevant dates speak for themselves. The suspension was on 23-2-1965 and an application was made under the proviso to sub-rule(7) of R.67 of Chapter XIV-A to the Regional Deputy Director of Public Instruction for placing the third respondent under suspension fora continuous period exceeding fifteen days. It is not in dispute that no order was communicated to the petitioner within the period of fifteen days. Continuance of the third respondent under suspension beyond the period of fifteen days without obtaining an order as contemplated in the proviso to sub-rule (7) of R.67 was unauthorised. The order refusing to grant permission sought for was passed by the Regional Deputy Director of Public Instruction on 24-3-65, more than a month after the date of suspension, at which time there was no order of suspension with sanction necessary to validate his continuance under suspension beyond the period of fifteen days. It is therefore as if the third respondent was not under suspension on the date on which the Regional Deputy Director of Public Instruction refused sanction under the proviso to R.67(7). This position continued even after 31-3-1965, on which date, it is alleged, that the Government passed an order staying the order of the Regional Deputy Director of Public Instruction dated 24-3-65 refusing sanction to continue the third respondent under suspension. This position continued even after 31-3-1965, on which date, it is alleged, that the Government passed an order staying the order of the Regional Deputy Director of Public Instruction dated 24-3-65 refusing sanction to continue the third respondent under suspension. This order of stay has not been produced in these proceedings. I asked the counsel for the petitioner as to whether that order contained any further direction enabling the petitioner to continue the third respondent under suspension, to which the answer was that the order did not contain any such further direction. The position which obtained on 31-3-1965 as also on 10-11-1965 was that the third respondent could not be considered as validly under suspension. As noticed earlier, the revision petition itself was dismissed on 25-6-1965. Even assuming that the effect of the order of Government dated 31-3-1965 was to enable the third respondent to be kept under suspension, the dismissal of the revision petition itself on 25-6-1965 had obliterated that order. It is long thereafter that Ext. P1 judgment was rendered on 10-11-1965. It is idle for the petitioner therefore to contend, that the status quo as on 10-11-1965 comprehended the continuance of the third respondent validly under suspension, on an assumption that the Government Order dated 31-3-1965 had the effect of enabling the third respondent to be kept under suspension. 10. It is not disputed that after the dismissal of the revision petition by the Government by order dated 25-6-1965, the Regional Deputy Director of Public Instruction had issued an order dated 19-7-1965 directing reinstatement of and payment of pay and allowances to the third respondent. This direction can be related only to the power under R.67(8) to the effect that, "if on such investigations, the authority is satisfied that there was no valid grounds for the suspension, he may direct the manager to reinstate the teacher with effect from the date of suspension; and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated, the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended, and recover the amount so disbursed from the manager". If the teacher is not actually reinstated, the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended, and recover the amount so disbursed from the manager". The direction of the Regional Deputy Director of Public Instruction referred to above, contains directions relating to payment of salary from the date of initial suspension viz, 23-2-1965. There was no scope for any mistake that disobedience of that order would be visited with the consequential order, that the pay and allowances should be disbursed by the Department and that amount should be recovered from the manager. The petitioner chose to disobey that order, apparently with clear knowledge of its consequences. 11. The second contention of the petitioner that the delay after the completion of the enquiry till the third respondent was reinstated, was at least partly due to the order of the Regional Deputy Director of Public Instruction directly imposing the punishment and which was challenged in O. P. No. 1734 of 1966 looses all its significance in view of the punishment ultimately imposed by the manager, viz., stoppage of increment for six months without cumulative effect. In the context of this, there was no need nor any justification to keep the third respondent out of duty for a period of more than four years even after the termination of the proceedings. O. P. No. 1734 of 1966 was pending before this Court till 12-11-1969, but nothing prevented the petitioner from reinstating the third respondent during the pendency of those proceedings. What he wanted obviously was to vindicate his right to choose the penalty which be shall impose as a primary disciplinary authority. This could have been done without keeping the teacher out of duty, particularly since there was no valid order enabling the teacher to be kept under suspension or kept out of duty in any manner. In these circumstances, it is impossible to apportion the liability for the delay between the manager and the departmental authorities. The consequence is that the petitioner had not obtained any order in any manner nullifying the effect of the direction issued by the Regional Deputy Director of Public Instruction dated 19-7-1965 regarding the reinstatement of the third respondent with effect from 23-2-1965. The consequence is that the petitioner had not obtained any order in any manner nullifying the effect of the direction issued by the Regional Deputy Director of Public Instruction dated 19-7-1965 regarding the reinstatement of the third respondent with effect from 23-2-1965. As a matter of fact, the manager has in his letter referred to in Ext, R3(b) letter dated 9-1-1973 suggested "to reinstate Shri. G. Madhava Shenoi as Headmaster from the date of suspension" and that suggestion was accepted. In the nature of these circumstances, it cannot be held that the petitioner was not in any manner responsible for keeping the third respondent out of duty for the period from 23-2-1965 to 18-6-1970. 12. The petitioner invokes the principles of natural justice against the direction contained in Para.4 of Ext. P3 order, directing that the pay and allowances to be paid to the third respondent for the period from 23-2-1965 to 18-6-1970 will be recovered from him. If the direction was issued without any antecedent notice to the petitioner, I would have bad no hesitation in accepting this contention. But, it would be seen that the Regional Deputy Director of Public Instruction had issued an order on 19-7-1965 long before Ext. P1 Judgment dated 10-11-1965. relating to the reinstatement of the third respondent and the pay and allowances due to him. This cannot but be in exercise of powers under R.67(8) of Chapter XIV-A. I am not aware of any principles of natural justice, which requires that a person, against whom an order is proposed with notice to him and who was apparently aware of the consequences of disobedience, does not comply with the terms thereof, should be given further notice at every stage when the proposal is sought to be implemented against him. The principles of natural justice embody the rules of fairness, that no person shall be damnified without informing him of the action proposed to be taken against him and which may have evil consequences on him. It is also implied that on such notice being given, the person sought to be proceeded against is entitled, in certain circumstances, to be heard before any decision on the proposal. These rules are meant to guide the exercise of powers which will damnify others. There is a corresponding duty on such persons who are notified to respond to such notice. These rules are meant to guide the exercise of powers which will damnify others. There is a corresponding duty on such persons who are notified to respond to such notice. In case a person chooses, in spite of notice to him, not to make use of the opportunity thus offered, be is not entitled thereafter to complain that the proceedings taken against him are in violation of the principles of natural justice. Natural justice cannot be converted into unnaturally rigid fetters. In the present case, the petitioner having been notified sufficiently early of the proposal, and he not having made use of the opportunity thus offered, is not entitled now to seek invalidation of the consequential direction, and ask for a further opportunity before that direction is implemented against him. The petition, therefore, fails, and is hence dismissed. But in the circumstances there will be no order as to costs. Dismissed.