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2014 DIGILAW 372 (KER)

Vedanayakom v. Government of Kerala

2014-05-23

ANIL K.NARENDRAN

body2014
JUDGMENT : 1. This Writ Petition was originally filed by one G.Vedanayakom, who was the Manager of Gnanodayam L.P.School, Mannamkonam, which is an Aided School under the jurisdiction of the Assistant Educational Officer, Kattakkada, the 5th respondent, seeking a writ of certiorari to quash Exhibit P13 order dated 5.3.2004 issued by the 1st respondent, Exhibits P15 and P16 demand notices dated 29.1.2008 issued by the 7th respondent and also for other consequential reliefs. During the pendency of the Writ Petition, the original writ petitioner died and his legal heirs were impleaded as additional petitioners 2 to 7 as per order dated 10.11.2009 in I.A.No.13646/2009. 2. The 6th respondent was working as a Lower Primary School Assistant in Gnanodayam L.P.School, Mannamkonam. On 2.12.2002, the original writ petitioner (hereinafter referred to as ‘the Manager’) placed her under suspension alleging certain misconducts, in exercise of his powers under R.67(1) of Chapter XIVA of the Kerala Education Rules, 1959 (hereinafter referred to as ‘the KER’). Thereafter, the Manager sought permission of the 5th respondent to continue the period of suspension beyond 15 days, as provided under R.67(8) of Chapter XIVA of the K.E.R. The 5th respondent after conducting a preliminary enquiry approved the action of the Manager in placing the 6th respondent under suspension, by Exhibit P2 order dated 16.12.2002. Later, the 5th respondent by Exhibit P3 order dated 31.12.2002 declined permission to extend the period of suspension of the 6th respondent and the Manager was directed to reinstate her in service forthwith. In the meantime, the Manager had issued Exhibit P4 memo of charges to the 6th respondent, to which she submitted Exhibit P5 reply. 3. Exhibit P3 order of the 5th respondent was under challenge in O.P.No.1732/2003 filed by the Manager and this Court by Exhibit P6 judgment set aside the said order on the ground of violation of principles of natural justice and it was made clear that the quashing of the said order on technical grounds will not preclude the 5th respondent from exercising his right to consider whether continued suspension of the 6th respondent is necessary. It was also made clear that the parties will be bound by the decision of the District Educational Officer, the 4th respondent, on the appeal filed by the 6th respondent. It was also made clear that the parties will be bound by the decision of the District Educational Officer, the 4th respondent, on the appeal filed by the 6th respondent. The 4th respondent by Exhibit P7 order dated 24.3.2003 set aside Exhibit P2 order of the 5th respondent granting approval for the suspension of the 6th respondent and the Manager was directed to reinstate her forthwith. It was followed by Exhibit P8 communication dated 26.5.2003 of the 4th respondent, directing the Manager to reinstate the 6th respondent forthwith, failing which the Manager will be visited with deterrent action under R.7(1) of Chapter III of the K.E.R. 4. Challenging Exhibit P7 order, the Manager filed Exhibit P9 Revision Petition before the Government, the 2nd respondent, under R.92 of Chapter XIV-A of the K.E.R. and the Government by Exhibit P10 order dated 21.11.2003 stayed the operation of Exhibit P7 order till the disposal of Exhibit P9. But, the Director of Public Instruction, the 3rd respondent, by Exhibit P11 communication dated 8.10.2003, directed the Manager to comply with Exhibit P7 order. Aggrieved by Exhibit P11, the Manager submitted Exhibit P12 representation dated 1.11.2003 before the Minister for Education, Kerala. While so, the petitioner was served with Exhibit P13 order of the 2nd respondent dated 5.3.2004, in which the Government upheld Exhibit P7 order of the 4th respondent, directing the Manager to reinstate the 6th respondent forthwith. It was further ordered that, the period during which the 6th respondent was kept out of service shall be treated as duty for all purposes and the salary paid to her during the said period should be recovered from the Manager. The Government found that, the action of the 5th respondent in having approved the suspension of the 6th respondent without any valid reasons is an act in collusion with the Manager for extraneous reasons and hence the 3rd respondent was directed to initiate disciplinary proceedings against the 5th respondent. 5. According to the Manager, seeking reconsideration of Exhibit P13 order, he filed Exhibit P14 Review Petition dated 14.6.2004 before the Government. While so, the 7th respondent issued Exhibits P15 and P16 demand notices dated 29.1.2008 against the Manager, under the Kerala Revenue Recovery Act, 1968, for recovering a sum of Rs.1,11,087/- towards the salary paid to the 6th respondent for the period during which she was illegally kept under suspension. While so, the 7th respondent issued Exhibits P15 and P16 demand notices dated 29.1.2008 against the Manager, under the Kerala Revenue Recovery Act, 1968, for recovering a sum of Rs.1,11,087/- towards the salary paid to the 6th respondent for the period during which she was illegally kept under suspension. It was aggrieved by Exhibits P13, P15 and P16, the Manager has approached this Court in this Writ Petition, seeking various reliefs. 6. A counter affidavit has been filed on behalf of the 1st respondent contending that, as the 6th respondent was placed under suspension without any valid reasons, the 5th respondent by Exhibit P3 order declined permission to extend her period of suspension and the Manager was directed to reinstate her in service forthwith. Subsequent to Exhibit P6 judgment, the 4th respondent by Exhibit P7 order set aside the order of the 5th respondent granting approval for the suspension of the 6th respondent and the Manager was directed to reinstate her forthwith. Challenging the said order, the Manager preferred Exhibit P9 petition and the same ended in dismissal by Exhibit P13 order. Aggrieved by Exhibit P13 order, the Manager filed Exhibit P14 Review Petition before the Government and the same also ended in dismissal by order dated 25.6.2004, stating that he has not raised any new grounds for reconsideration of Exhibit P13 Order. The Manager allowed the 6th respondent to join duty only with effect from 1.4.2004. The service of the 6th respondent was regularised as on duty for the period from 2.12.2002 to 31.3.2004 and she was paid Rs.1,11,087/- towards salary for the said period. As ordered in Exhibit P13, revenue recovery proceedings were initiated against the Manager vide Exhibits P15 and P16 demand notices, for recovering the loss sustained to the Government in paying salary to the 6th respondent for the aforesaid period. According to the 1st respondent Exhibits P13, P15 and P16 are perfectly legal and no interference is called for. 7. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 5, 7 and 8 and also the learned counsel appearing for the 6th respondent. 8. The learned counsel for the petitioners contended that the 6th respondent was placed under suspension for valid reasons and the finding to the contra in Exhibit P13 order is legally unsustainable. 8. The learned counsel for the petitioners contended that the 6th respondent was placed under suspension for valid reasons and the finding to the contra in Exhibit P13 order is legally unsustainable. As the 6th respondent was kept out of service not because of the order of suspension but on account of Exhibit P10 order of stay granted by the Government on 21.11.2003, which was in force till the issuance of Exhibit P13 order dated 5.3.2004, the direction contained in Exhibit P13 order to recover from the Manger the salary paid to her for the period she was kept out of service is legally unsustainable. For that reason, Exhibits P15 and P16 demand notices are also liable to be set aside. 9. Per contra, the learned Senior Government Pleader appearing for respondents 1 to 5, 7 and 8 and the learned counsel appearing for the 6th respondent contended that, Exhibits P13, P15 and P16 are perfectly legal warranting no interference under Art.226 of the Constitution of India. 10. I have considered the rival submissions made at the Bar. The jurisdiction of the Manager to suspend a teacher is contained in S.12 of the Kerala Education Act, 1958 and R.67 of Chapter XIV-A of the K.E.R. Sub-section (2) of S.12 of the Act reads thus; “12. Conditions of service of aided school teachers:- xxx xxx xxx (2) No teacher of an aided school shall be dismissed, removed or reduced in rank by the manager without the previous sanction of the officer authorised by the Government in this behalf, or placed under suspension by the manager for a continuous period exceeding 15 days without such previous sanction.” 11. Rule 67 of Chapter XIV-A of the K.E.R. empowers the Manager to place a teacher under suspension in any of the contingencies enumerated in Clauses (a) to (c) of sub-rule (1). But, sub-rule (8) of R.67 of Chapter XIV-A of the K.E.R. mandates that the Manager shall report the matter of suspension together with reasons for suspension to the Educational Officer on the same day on which the order of suspension was passed. Sub-rule (8) of R.67 reads thus; “67. But, sub-rule (8) of R.67 of Chapter XIV-A of the K.E.R. mandates that the Manager shall report the matter of suspension together with reasons for suspension to the Educational Officer on the same day on which the order of suspension was passed. Sub-rule (8) of R.67 reads thus; “67. Suspension:- xxxx xxxx xxxx (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) also in addition to the Educational Officer. 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.” 12. Going by R.67(8) of Chapter XIV-A of the K.E.R., where an order of suspension is made by the Manager, he shall on the same day report the matter together with reasons to the Educational Officer or the Deputy Director of Education, as the case may be, and such authority shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigation 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 on such investigation 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/she was not suspended and recover the amount so disbursed, from the Manager. On the other hand, 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. 13. Therefore, the power of the Manager, under S.12 of the Act read with R.67 of Chapter XIV-A of the K.E.R., to place a teacher under suspension in any of the contingencies enumerated in Clauses (a) to (c) of sub-rule (1) is circumscribed by the limitations contained in sub-rule (8) of R.67. Though the Manager has the power to place the teacher under suspension in any of those contingencies, sub-rule (8) of R.67 provides sufficient safeguard to the teacher against any abuse of power by the Manager. The provisions of sub-rule (8) of R.67, which are designed to serve a salutary purpose, should be strictly complied with if the Manager chooses to keep the teacher under suspension beyond 15 days. Once the Educational Officer, on being satisfied that there was no valid ground for the suspension of the teacher, directs the Manager to reinstate the teacher with effect from the date of suspension, in exercise of his powers under sub-rule (8) of R.67, the only option available to the Manager is to reinstate the teacher in service forthwith and the Manager retains absolutely no power either to extend the period of suspension or continue to keep the teacher under suspension for any reason whatsoever. 14. 14. Going by sub-rule (8) of R.67, once the Educational Officer directs the Manager to reinstate the teacher with effect from the date of suspension and the Manager refuses to do so, the teacher shall be deemed to have been on duty and it shall be then open to the Department to disburse the pay and allowances to the teacher as if he/she was not suspended and recover the amount so disbursed from the Manager. The pendency of the Revision Petition filed by the Manager under R.92 to Chapter XIV-A of the K.E.R. or the order of stay granted by the Government in that Revision Petition staying the order of reinstatement, will not in any manner disentitle the teacher from getting the pay and allowances with effect from the date of suspension, once the revisional authority concurs with the findings of the Educational Officer that the order of suspension was without any valid reasons. Similarly, neither the pendency of a Revision Petition nor the order of stay granted by the revisional authority or a court of law will absolve the Manager form the liability to reimburse to the Department the pay and allowance disbursed to the teacher for the period during which he/she was kept under suspension without any valid reason. Once the order of suspension is found to be one issued without any valid reason by the Educational Authorities in exercise of their powers under R.67(8) of Chapter XIV-A of the K.E.R. and that finding is confirmed by the Government in exercise of its revisional powers under R.92 of the said Chapter, the Manager cannot be absolved form the liability to reimburse to the Department the pay and allowance disbursed to the teacher for the period during which he/she was kept under suspension illegally. Otherwise, it would defeat the very object of sub-rule (8) of R.67 of Chapter XIV-A of the K.E.R. 15. Otherwise, it would defeat the very object of sub-rule (8) of R.67 of Chapter XIV-A of the K.E.R. 15. In the case on hand, the Manager placed the 6th respondent under suspension on 2.12.2002 alleging certain misconducts and sought permission of the 5th respondent to continue the period of suspension beyond 15 days, as provided under R.67(8) of Chapter XIV-A of the K.E.R. Though the 5th respondent initially approved the action of the Manager in placing the 6th respondent under suspension by Exhibit P2 order dated 16.12.2002, later the 5th respondent issued Exhibit P3 order dated 31.12.2002 declining permission to extend the period of suspension and the Manager was directed to reinstate the teacher in service forthwith. Exhibit P3 order was under challenge in O.P.No.1732/2003 filed by the Manager and this Court by Exhibit P6 judgment dated 26.2.2003 set aside Exhibit P3 order on the ground of violation of principles of natural justice. This Court made it clear that the parties will be bound by the decision of the 4th respondent on the appeal filed by the 6th respondent. 16. The 4th respondent by Exhibit P7 order dated 24.3.2003 set aside Exhibit P2 order of the 5th respondent and the Manager was directed to reinstate the 6th respondent forthwith. Exhibit P7 was followed by Exhibit P8 communication dated 26.5.2003 of the 4th respondent, in which it was made clear that, any violation in complying with the direction in Exhibit P7 will be visited with deterrent action against the Manager under R.7(1) of Chapter III of the K.E.R. Challenging Exhibit P7 order, the Manager filed Exhibit P9 Revision Petition dated 16.6.2003 before the Government, under R.92 of Chapter XIV-A of the K.E.R. and the Government by Exhibit P10 order dated 21.11.2003 stayed the operation of Exhibit P7 order till the disposal of Exhibit P9. But, the Government by Exhibit P13 order dated 5.3.2004, upheld Exhibit P7 order of the 4th respondent and the Manager was directed to reinstate the 6th respondent forthwith. Though, review under R.93 of Chapter XIV-A of the K.E.R. extends only to review original orders and not revisional orders like Exhibit P13 passed under R.92 of Chapter XIV-A of the K.E.R., the Manager preferred Exhibit P14 Review Petition dated 14.6.2004 before the Government. As stated in the counter affidavit filed on behalf of the 1st respondent, Exhibit P14 Review Petition ended in dismissal by Government order dated 25.6.2004. As stated in the counter affidavit filed on behalf of the 1st respondent, Exhibit P14 Review Petition ended in dismissal by Government order dated 25.6.2004. 17. In Exhibit P13, on a scrutiny of the relevant records, the Government concluded that the action of the Manager in placing the 6th respondent under suspension was without any valid ground. It was also noticed by the Government that, Exhibit P2 order of the 5th respondent mentions the statement given by the students who witnessed P.M.Sasidas, an unapproved teacher, assaulting the 6th respondent with a chair while she was taking class in Standard V-A. Therefore, as rightly concluded by the Government, it is only natural that the 6th respondent filed complaint before the Police about the physical assault on her and there is nothing to disbelieve her statement that a copy of the complaint was also submitted to the Headmaster before complaining to the Police. The further allegations made against the 6th respondent were also found as not valid to place the 6th respondent under suspension. It was in such circumstances, the Government in Exhibit P13 order confirmed the findings of the 4th respondent in Exhibit P7 order. 18. In Exhibit P13, it was further ordered that, the period during which the 6th respondent was kept out of service shall be treated as on duty for all purposes and the salary paid to her during the said period should be recovered from the Manager. The fact that the Government by Exhibit P10 order dated 21.11.2003 stayed reinstatement of the 6th respondent during the pendency of Exhibit P9 revision filed by the Manager, which order of stay was in force till the issuance of Exhibit P13 Government order dated 5.3.2004, will not in any manner disentitle the 6th respondent from getting the pay and allowances with effect from the date of suspension, once the Government concurs with the findings of the 4th respondent in Exhibit P7 order that the order of suspension was without valid reason. Neither Exhibit P10 stay order nor any order of stay granted by this Court in O.P.No.1732/2003 during the pendency of that Original Petition will absolve the Manager form the liability to reimburse to the Department the pay and allowance disbursed to the 6th respondent for the period during which she was kept under suspension without any valid reason. 19. Neither Exhibit P10 stay order nor any order of stay granted by this Court in O.P.No.1732/2003 during the pendency of that Original Petition will absolve the Manager form the liability to reimburse to the Department the pay and allowance disbursed to the 6th respondent for the period during which she was kept under suspension without any valid reason. 19. In such circumstances, the findings in Exhibit P13 Government order are perfectly legal and no interference of this Court under Art.226 of the Constitution of India is called for. Once Exhibit P13 order is found to be perfectly legal, the challenge made against Exhibits P15 and P16 demand notices issued under the Revenue Recovery Act can only be rejected. Therefore, I find no grounds to interfere with Exhibit P13, P15 and P16. 20. Moreover, I find that the challenge made in this Writ Petition against Exhibit P13 order is highly belated. It is trite law that, delay and laches is one of the important factors which this Court must bear in mind while exercising the discretionary power under Art.226 of the Constitution of India. It is so held by the Apex Court in Tamil Nadu Housing Board v. M. Meiyappan & Ors., (2010) 14 SCC 309 ). The framers of the Constitution have not prescribed any period of limitation for filing a petition under Art.226 of the Constitution and it is only one of the several rules of self-imposed restraint evolved by the superior Courts that the jurisdiction under Art.226 of the Constitution, which is essentially an equity jurisdiction, should not be exercised in favour of a person who approaches the Court after long lapse of time and no cogent explanation is given for the delay. It is so held by the Apex Court in Bangalore City Co-operative Housing Society Ltd. v. State of Karnataka & Ors., (2012) 3 SCC 727 ). 21. The ratio of the aforesaid decisions is that, even though there is no period of limitation for filing petitions under Art.226 of the Constitution of India, the petitioner should approach this Court without loss of time and if there is delay, then cogent explanation should be offered for the same. 21. The ratio of the aforesaid decisions is that, even though there is no period of limitation for filing petitions under Art.226 of the Constitution of India, the petitioner should approach this Court without loss of time and if there is delay, then cogent explanation should be offered for the same. However, no hard and fast rule can be laid down or a straight-jacket formula can be adopted for deciding whether or not this Court should entertain a belated petition filed under Art.226 of the Constitution and each case has to be decided on its own facts. 22. In the case on hand, the Government by Exhibit P13 order dated 5.3.2004 dismissed Exhibit P9 Revision Petition filed by the Manger under R.92 of Chapter XIV-A of the K.E.R., upholding Exhibit P7 order of the 4th respondent directing him to reinstate the 6th respondent forthwith. Though the power of review under R.93 of Chapter XIV-A of the K.E.R. extends only to review original orders issued by the Government, the Manager preferred Exhibit P14 Review Petition dated 14.6.2004 before the Government seeking review of Exhibit P13 order. Thereafter, after a lapse of nearly 4 years, the Manager approached this Court in this Writ Petition, once he was issued with Exhibits P15 and P16 demand notices, contending that, the recovery proceedings should be kept in abeyance till Exhibit P14 Review Petition is disposed of. In the counter affidavit filed on behalf of the 1st respondent it has been stated that, Exhibit P14 Review Petition was dismissed by Government order dated 25.6.2004. The petitioners have not chosen to file any reply to the statement to that effect in the said counter affidavit. 23. In S.S. Rathore v. State of Madhya Pradesh ( (1989) 4 SCC 582 )the Apex Court held that, the cause of action arise not from the date of the original adverse order but on the date when the order of the higher authority, where a statutory remedy is provided entertaining the appeal or representation, is made and where no such order is made, though the remedy has been availed of, a six months’ period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. But, the Apex Court made it clear that, this principle may not be applicable when the remedy availed of has not been provided by law and that, repeated unsuccessful representations not provided by law are not governed by this principle. Paragraph 20 of the judgment reads thus; “20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months’ period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.” 24. An order passed by the Government in exercise of its revisional powers under R.92 of Chapter XIV-A of the K.E.R. can be challenged only in a Writ Petition filed before this Court under Art.226 of the Constitution of India. Therefore, if the Manager was aggrieved by Exhibit P13 Government order dated 5.3.2004, he should have approached this Court challenging the said order, within a reasonable time. In the Writ Petition filed on 1.4.2008, the Manager failed to offer any convincing explanation for the inordinate delay of nearly 4 years in approaching this Court. The so called Review Petition filed by the Manager also ended in dismissal by Government order dated 25.6.2004. 25. The dismissal of Exhibit P14 Review Petition or issuance of Exhibits P15 and P16 demand notices under the Revenue Recovery Act will not give a fresh cause of action to the Manager to challenge Exhibit P13 Government order. This is for the reason that, the cause of action shall be taken to arise on 5.3.2004, the date on which the Government, in exercise of its revisional powers under R.92 of Chapter XIV-A of the K.E.R., issued Exhibit P13 order rejecting Exhibit P9 revision filed by the Manager. This is for the reason that, the cause of action shall be taken to arise on 5.3.2004, the date on which the Government, in exercise of its revisional powers under R.92 of Chapter XIV-A of the K.E.R., issued Exhibit P13 order rejecting Exhibit P9 revision filed by the Manager. Since the power of review under R.93 of Chapter XIV-A of the K.E.R. extends only to review original orders, the filing of Exhibit P14 Review Petition by the Manager or the order passed by the Government on that petition will not give a fresh cause of action to the Manager as the remedy sought for was not one provided by law. Therefore, the challenge made against Exhibit P13 is liable to be rejected on the ground of delay as well and I hold so. 26. As stated in the counter affidavit filed on behalf of the 1st respondent, the Manager allowed the 6th respondent to join duty only with effect from 1.4.2004. Later, the Manager closed down the school in December, 2006. As the service of the 6th respondent was regularised as on duty for the period from 2.12.2002 to 31.3.2004, the Department paid Rs.1,11,087/-towards her salary for the period during which she was kept under suspension illegally and revenue recovery proceedings were initiated against the Manager, vide Exhibits P15 and P16 demand notices, for recovering the loss sustained to the Government in paying the salary and allowances to the 6th respondent for the aforesaid period. During the pendency of this Writ Petition the Manager died and his legal heirs are impleaded as additional petitioners 2 to 7. 27. On principle, a legal representative continues the persona of the deceased, as held by this Court in Janaki v. State of Kerala & Ors. ( 1976 KLT 182 ) and followed in Devi & Ors. v. State of Kerala ( 1977 KLT 781 ) and Khadeeja v. District Collector ( 2006 (2) KLT 654 ). Therefore, any amount due from the Manager towards the salary and allowances paid to the 6th respondent for the period during which she was kept under suspension illegally, i.e., for the period from 2.12.2002 to 31.3.2004, can be recovered from the properties of the Manager inherited by additional petitioners 2 to 7, who are his legal heirs. In the result, the Writ Petition is dismissed. No order as to costs.