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Kerala High Court · body

2007 DIGILAW 307 (KER)

K. A. Abdul Hameed v. Stale of Kerala

2007-05-30

THOTTATHIL B.RADHAKRISHNAN

body2007
Judgment :- The short issue as to the manner interpreting and applying Rule 67(8) of Chapter XIV A K.E.R. arises for decision in this case. 2. The basic facts are as follows: (a) The petitioner is the Manager of an aided school. He placed the Headmistress of that school under suspension. The Assistant Educational Officer (A.E.O.) declined to approve that suspension order and grant sanction to continue her under suspension. The Government dismissed the petitioner's revision against that decision of the A.E.O. Petitioner challenged that decision before this Court, resulting in Ext.P-1 judgment directing that the enquiry shall he conducted by the District Educational Officer (D.E.O.) and further directing the petitioner to reinstate the Headmistress within a period of one week from the date of Ext. P-1 judgment. Petitioner filed an appeal against Ext. P-1 judgment and, as is discernible from Ext. P-2 judgment in the writ appeal, all proceedings pursuant to Ext . P-1 judgment were stayed by the Division Bench. By Ext. P-2 judgment, this Court negatived the contention of the petitioner that the statutory revision could be heard only by the Secretary or the Minister. However, the enquiry was directed to be proceeded with and though on concession, the delinquent was to keep away from the school for a further period of one month, it was ordered that she should be reinstated without any delay in case she is exonerated in the enquiry. (b) By Ext. P-3 order, the delinquent teacher was exonerated on 6-11-1993. Admittedly, she was reinstated on 17-11-1993. (c) The net result of the aforesaid is that the delinquent teacher continued to be under suspension from 18-6-1992 to 17-11-1993. 3. On the aforesaid fact situation, it appears that, relying on Rule 67(8) of Chapter XIV A K.E.R., the delinquent teacher was given her pay and allowances as if she was not suspended. This resulted in proceedings against the Manager for recovery of such amounts in terms of that Rule. This is under challenge. 4. This Court had granted an interlocutory order of stay of recovery and the same is still in force. 5. The complaint of the petitioner at the initiation oft is lis was that his revision to the Government against the exoneration of the teacher was not disposed of by the Government. As of now, along with the counter-affidavit, Ext. R-1 (a) is produced. 5. The complaint of the petitioner at the initiation oft is lis was that his revision to the Government against the exoneration of the teacher was not disposed of by the Government. As of now, along with the counter-affidavit, Ext. R-1 (a) is produced. By that decision, the Government have refused to interfere with the exoneration of the delinquent teacher. 6. To resolve the issue in hand, namely, as to whether the amounts paid to the teacher, as aforesaid, can be recovered from the petitioner, Rule 67(8) of Chapter XIV A K.E.R needs to be read, which is as follows: "(8) Where the orders of suspension is made by the Manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and where the suspension is in respect of Headmaster of Secondary School and Training School such reports shall be sent to the Deputy Director (Education) if the suspension is in respect of Headmaster of a Secondary School or Training School and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground 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 on such investigation it is found that there are valid grounds for such suspension, permission may be given to the Manager to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days." 7. A plain reading of the aforesaid Rule would show that while it may superfluously appear that the entitlement of a delinquent teacher to pay and allowances in the situation contemplated in Rule 67(8) is automatic on the statutory authority refusing to approve the suspension or to grant permission to continue the delinquent under suspension, the actual release o ['such payment need not always be automatic. This is because an action taken by a statutory authority under Rule 67(8) of Chapter XIV A K.E.R. is also a decision, which can be subjected to statutory remedies, including before the Government. These are also matters, which could gain the attention of the competent courts, including the constitutional courts. Though one would not have to wait for the entire hierarchal measures, to release amounts that may be due to a teacher in terms of Rule 67(8) of Chapter XIV A K.E.R., the actions taken and the results of such procedures before the superior authorities and before the superior courts are relevant to decide as to whether the money paid towards pay and allowances to a teacher is to be recovered from the Manager on the ground that he becomes liable for such recovery in terms of Rule 67(8) of Chapter XIV A K.E.R. The liability that is imposed on the Manager and the recovery that could be made under Rule 67(8) of Chapter XIV A K.E.R. is recovery of money, that is, deprivation of property, which, in the context, is on the ground that the Manager did not obey the direction of the statutory authority to reinstate a person placed under suspension. The jurisdictional content of such a statutory action is the imposition of a penalty. Therefore, the right of the Government to effect recovery from the Manager under Rule 67(8) of Chapter XIV A K.E.R. has to be construed strictly by treating it as imposition of penalty or akin to that. 8. Applying the aforesaid principle of law to the context of this case, as already noticed, until Ext. P-2 judgment was delivered by the Division Bench of this Court, the direction of the learned Single Judge in Ext. P- 1 judgment to reinstate stood stayed. The Division Bench in Ext. P-2 judgment directed the writ petitioner to reinstate the delinquent teacher within a period of one month of completion of the enquiry by the D.E.O., if that results in the exoneration of the delinquent. He had indisputably done that. This is because, following Ext. P-3 order of the D.E.O. issued on 6-11-1993 exonerating the delinquent teacher of the charges, she was reinstated on 17-11-1993. He had indisputably done that. This is because, following Ext. P-3 order of the D.E.O. issued on 6-11-1993 exonerating the delinquent teacher of the charges, she was reinstated on 17-11-1993. Therefore, no statutory responsibility could be fastened on the Manager in the form of a liability referable to Rule 67 (8) of Chapter XIV A K.E.R. Any other approach of interpretation or application of the aforesaid Rule would be arbitrary and unconstitutional. For the foregoing reasons, all actions taken against the writ petitioner in terms of Rule 67(8) of Chapter XIV A KER on account of the suspension of the Headmistress of AMILP School, Padinjarekkara, namely Smt. Aisha Beevi, including the impugned revenue recovery proceedings, are quashed. Writ petition is allowed as above. There will be no order as to costs.