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2016 DIGILAW 105 (KER)

S. Beevi Umma v. Assistant Educational Officer

2016-01-27

K.VINOD CHANDRAN

body2016
JUDGMENT : The petitioner who is a senior citizen and is an individual educational agency as provided in the Kerala Education Rules,1959 (for brevity 'KER'); challenges Exts.P4 and P9 orders passed by the Government. Ext.P4 is a direction to remit Rs.3,53,652/- being loss sustained to Government on account of payment of salary to Sri T Abhilash for the illegal suspension period. Ext.P9 is a revenue recovery notice issued on the said liability. 2. The brief facts to be noticed are that the petitioner is an individual educational agency carrying on the aided school, MPM L.P.S, Killy, Kollode P.O. The petitioner had, by due authorization, under Rule 3 of Chapter III of KER appointed her husband as the Manager of the School. While the petitioner's husband was continuing as the Manager, the 5th respondent, an LPSA was suspended on 03.01.1998. Allegedly on the basis of an enquiry report, the Manager discharged the 5th respondent, who was said to be on probation at that point of time, on 11.02.1999. The AEO refused to approve the discharge and directed reinstatement of the 5th respondent on 28.03.2001. 3. The admitted case is that the Manager had availed of all the statutory remedies and eventually this Court permitted the Manager to continue with the disciplinary proceedings, but, however, specifically directed the reinstatement of the 5th respondent. The Manager was recalcitrant insofar as carrying out the reinstatement and proceedings were initiated under Rule 7 of Chapter III of KER, by which, the Deputy Director disqualified the Manager and the AEO was given charge of the Manager. The AEO reinstated the 5th respondent on 06.02.2003. 4. On 15.02.2003 the petitioner sought approval of appointment of a new Manager. Ext.P3 order was passed on 20.10.2004 rejecting the petitioner's representation, on the ground that there was a liability pending against the Manager, which the educational agency had to satisfy. By Ext.P4 notice dated 02.12.2004 an amount of Rs.3,53,652/- was mulcted on the Manager and the petitioner who was the educational agency was required to satisfy the same. The liability as is seen from Ext.P4 , was with respect to the period in which the 5th respondent was kept under illegal suspension. 5. The learned Counsel for the petitioner takes me through Rule 7 of Chapter III and Rule 67 of Chapter XIV A to distinguish between the status of an educational agency and the Manager. The liability as is seen from Ext.P4 , was with respect to the period in which the 5th respondent was kept under illegal suspension. 5. The learned Counsel for the petitioner takes me through Rule 7 of Chapter III and Rule 67 of Chapter XIV A to distinguish between the status of an educational agency and the Manager. Further reliance is placed on Rule 1 and Rule 3 of Chapter III and subsection (2) of Section 2 of the Kerala Education Act, 1958 to contend that the Manager and the educational agency, being two different individuals, they are two separate legal entities, having distinct status even as per the Act and Rules. One cannot be proceeded against for the default of the other, is the argument. It is also pointed out that Rule 7 of Chapter III and Rule 67 of Chapter XIV A specifically speaks of the proceedings against the Manager; that too only in circumstances, when loss has been caused to the Government. The further contention is with respect to no notice having been issued against the petitioner. The essential contention is that the petitioner being an educational agency, could not have been mulcted with the liability of the Manager and even if liable it can only be with a proper notice and hearing. 6. Admittedly, the petitioner is the educational agency, who as per the provisions of the KER authorized her husband as the Manager. Rule 3(4) of Chapter III specifically makes the educational agency responsible for the acts of the Manager. The statutory provision hence imports the law regarding the principal and an agent and no educational agency can absolve itself from the liability on the ground that the default committed or the loss occasioned was due to the conduct of the Manager. The distinct status as per the Act and Rule is subject to the specific provision of the Rules by which the authorisation is approved by the educational authority. 7. The further contention with respect to no loss having been caused to the Government has to be examined on the basis of the words employed in Rule 7. The distinct status as per the Act and Rule is subject to the specific provision of the Rules by which the authorisation is approved by the educational authority. 7. The further contention with respect to no loss having been caused to the Government has to be examined on the basis of the words employed in Rule 7. Sub rule (4) of Rule 7 specifically speaks of a Manager, who commits serious irregularities causing monitory loss to teachers or government and in such circumstance, the loss sustained by the teachers or government would be recoverable from the Manager under the provisions of the Revenue Recovery Act. Clause (c) of Rule 7(4) specifically speaks of suspension of teachers framing cooked up and/or frivolous charges, keeping them out of service beyond fifteen days, disobeying the orders of re-instatement of such incumbents passed by the Deputy Director of Education. Hence it is very clear that though approval is said to have been obtained for the suspension of the 5th between 03.01.1998 and 28.03.2001, the 5th respondent was kept out of service on the basis of a disciplinary proceeding which never culminated due to the default of the Manager. 8. The reinstatement ordered by the educational authorities was confirmed by this Court and the Manager was conferred with powers to continue the disciplinary proceeding. This could not be done since the Manager, thought it fit, to even defy the orders of this Court and kept the teacher out of service. It was in that context that the managership was conferred on the AEO, after take over and the teacher reinstated in service. The AEO did not continue the disciplinary proceeding and the only presumption is that the charges were cooked up and/or frivolous, as is indicated in Clause (c) of sub rule (4) of Rule 7. 9. The enquiry proceedings and the order of discharge was specifically set aside by the AEO, which was consistently upheld by all the statutory authorities and this Court. This Court in O.P. No. 32815/2001 left the remedy of taking up further proceedings to the Manager, but, however, approved the order of reinstatement. The Manager, by his recalcitrant attitude, refused to reinstate the 5th respondent, and kept him out of employment which eventually ended in the disqualification of the Manager itself. This Court in O.P. No. 32815/2001 left the remedy of taking up further proceedings to the Manager, but, however, approved the order of reinstatement. The Manager, by his recalcitrant attitude, refused to reinstate the 5th respondent, and kept him out of employment which eventually ended in the disqualification of the Manager itself. The educational agency, as has been found above, is responsible for the act of the Manager and is bound by the acts of the Manager. Hence it cannot be said that the educational agency cannot be proceeded against under Rule 7. 10. It is also clear from the reading of the rule that it is not the loss to Government alone that can be proceeded against, by the Government under Rule 7. If a teacher has been kept out of employment illegally, and eventually the period is regularised then, necessarily the Government cannot be mulcted with the liability since the teacher has not worked in the aided school and pay and allowances would be the liability of the Government only if such service was rendered by the employee of the aided school. Though the Government had not suffered any loss, the Government having compensated the teacher, for his illegal suspension and discharge, what is sought to be recovered is the loss caused to the teacher. The loss caused to the teacher is with respect to the suspension between 03.01.1998 and 28.03.2001 as also the refusal to reinstate between 28.03.2001 and 06.02.2003, on which later date the 5th respondent was reinstated. The contention of the Manager with respect to absolution from liability cannot at all be sustained. The illegal suspension of the teacher and the act of having kept the teacher out of service are all covered under clause (c) of sub-rule (4) of Rule 7 of Chapter III of KER. 11. The Manager had challenged the proceedings in a writ petition which was dismissed for non prosecution and for the reason of the death of the petitioner. The recovery proceedings had to be taken definetly, with due notice to the educational agency especially when the Manager has expired. The educational authority shall compute the loss caused to the Government/teacher as directed hereinabove and issue notice to the petitioner and consider the same in accordance with law and only after that the approval of the application for authorization of the Manager, filed by the petitioner be considered. The educational authority shall compute the loss caused to the Government/teacher as directed hereinabove and issue notice to the petitioner and consider the same in accordance with law and only after that the approval of the application for authorization of the Manager, filed by the petitioner be considered. However if the petitioner without demur pays up the amounts shown in Ext P4 and Ext P9 within a period of one month from today the application for approval of authorisation of a new manager shall be considered within three months from the date of such satisfaction. Writ Petition would stand dismissed with the observations and reservation as above. Parties left to suffer their costs.