IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 29781 of 2000(U)
1. M.O.SUMITHRA
... Petitioner
Vs
1. ASST.EDUCATIONAL OFFICER
... Respondent
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/11/2009
O R D E R
S. SIRI JAGAN, J
...............................................
O.P.No. 29781 of 2000
.................................................
Dated this the 18th day of November, 2009
J U D G M E N T
The petitioner is the Manager of an aided school. He
suspended two teachers of the school on different dates pending
disciplinary action. The educational authorities did not give
permission to continue the suspension beyond 15 days for which
the petitioner applied as required under Chapter XIV A of the
KER. The petitioner filed two writ petitions namely OP Nos. 91
of 1994 and 2228 of 1994 challenging the orders of the
educational authorities. This court granted stay, on the strength
of which, the teachers continued under suspension. Afterwards,
according to the petitioner the teachers submitted apologies for
their misconduct accepting which the Manager decided to drop
the disciplinary proceedings against them. This fact was
reported to this court. Accordingly, by Ext.P1 judgment dated
28.9.1995, in respect of one employee this court passed the
following order:
“When the matter came up for hearing today,
counsels for the petitioner as well as the respondents
submitted that the disciplinary proceedings initiatedO.P.No. 29781 of 2000 -2-
against the 2nd respondent has been withdrawn and that
respondents 1 and 3 will disburse the salary and other
benefits due to the second respondent.”
2. In respect of the other employee, by Ext.P5 judgment
the original petition was closed as follows:
“When the matter came up for hearing counsel for
the petitioner – Manager submitted that since second
respondent has already retired from service, permission
may be given for dropping the disciplinary proceedings
initiated against the second respondent. Counsel also
submitted in view of the above said circumstances,
petitioner is not interested in prosecuting this petition.
Accordingly, counsel sought for permission to withdraw
the OP. Original Petition is dismissed as withdrawn. It is
made clear that all disciplinary proceedings initiated
against the second respondent be allowed to be
withdrawn.”
3. Thereafter the teachers were reinstated. They were
paid salary by the educational authorities also. Subsequently, in
respect of in Ext.P1 judgment, the Assistant Educational Officer
issued Ext.P3 directing the petitioner to remit the pay and
allowances paid to the teacher, invoking powers under Rule 67
(8) of Chapter XIV A of the KER. In respect of other teacher,
Ext.P6 order has been issued to the same effect. Petitioner filed
two appeals against the same as Exts.P4 and P7 before the
Deputy Director of Education. By Ext.P11 order dated 7.8.1999,
the Deputy Director informed the petitioner that since the
Manager is bound to refund the pay and allowances paid to the
O.P.No. 29781 of 2000 -3-
teachers for the period of suspension, the petitioner’s appeals
deserve no consideration. While so, by Ext.P8, the petitioner
was directed to pay an amount of Rs.1,28,752/- towards recovery
of the pay and allowances paid to the teachers for the period of
suspension beyond 15 days. The petitioner is now challenging
Exts.P3, P6 and P11 orders. Originally the O.P. was filed without
challenging Ext.P11 order of rejection of the appeals.
Subsequently the original petition was amended filing I.A. No.
11689 of 2009 including a prayer for quashing Ext.P11 also.
4. The petitioner challenges the impugned orders on two
grounds. The first is that before passing Exts.P6 and P3 orders,
the petitioner was not afforded an opportunity of being heard.
The second is that in so far as the continued suspension of the
teachers were as per orders passed by this court, on being prima
facie satisfied that suspension is warranted on the basis of the
charges against them, simply because subsequently the
disciplinary proceedings were dropped accepting the apologies
of the teachers, the educational authorities cannot recover from
the petitioner the pay and allowances paid to the teachers for the
period of suspension. The counsel for the petitioner pointed out
that in Ext.P1 it is specifically directed that the Assistant
O.P.No. 29781 of 2000 -4-
Educational Officer and District Educational Officer will disburse
the salary and other benefits due to the teacher. Although, in
Ext.P5 judgment, a similar direction was not there, the
educational authorities were aware of the continued suspension
as per the orders of the court and therefore they cannot simply
say that the suspension was unwarranted and therefore the
petitioner is liable to refund the pay and allowances paid to the
teacher for the period of suspension. The petitioner therefore
submits that the action of the respondents in seeking to recover
the pay and allowances paid to the teachers is totally
unsustainable and liable to be quashed.
5. A counter affidavit has been filed by the 3rd respondent.
According to the 3rd respondent, the educational authority
rejected the request of the petitioner to allow him to continue
the teachers under suspension being satisfied that the charges
against the teachers do not warrant keeping them under
continued suspension. Simply because the petitioner obtained
interim orders from this court, that does not go to show that the
suspensions were actually justified. The Government Pleader
would submit that the very fact that teachers were reinstated
accepting an apology would go to show that the charges did not
O.P.No. 29781 of 2000 -5-
warrant keeping the teachers under continued suspension. The
Government Pleader therefore would vehemently support the
impugned orders.
6. I have considered the rival contentions in detail.
7. The petitioner has specifically contended in the writ
petition that before issuing Exts.P3 and P6 orders the petitioner
was not afforded an opportunity of being heard. Although in
paragraph 4 of the counter affidavit it is stated that it is not true
that no opportunity was given to the petitioner for hearing, it is
not specifically stated anywhere that the petitioner was actually
afforded and opportunity of being heard.
8. Exts.P3 and P6 orders do not refer to any notice to the
Manager also. As such the Government pleader was not able to
satisfy me that Exts.P3 and P6 orders were preceded by a notice
and hearing. The contention of the learned Government Pleader
is that Rule 67 of the Chapter XIV A of the KER do not
contemplate a hearing. I am of opinion that even if such an
opportunity is not provided for in the Rules, such an opportunity
should be read into the rules since recovery of an amount of
more than Rs.1 lakh is certainly an action affecting the civil
rights of the petitioner. An action visiting the petitioner with
O.P.No. 29781 of 2000 -6-
such serious consequences cannot be taken without complying
with the principles of natural justice, the primary requirement of
which is a hearing. It is very clear that Exts.P3 and P6 orders
have been issued without affording an opportunity of being
heard to the petitioner. Exts.P3 and P6 orders are liable to be
quashed on that ground alone.
9. Apart from that it is not as if the petitioner had
suspended the teachers without any reason whatsoever.
Although the educational authorities did not give sanction for
continuing the teachers under suspension, this court found a
prima facie case for such continued suspension of the teachers.
There was no final adjudication of the question of validity of such
suspension, in so far as the teachers have tendered apology for
their misconducts and they were reinstated in service. At least,
in Ext.P1 judgment, there is a direction that the educational
authorities would disburse the salary and other benefits due to
the teacher. The educational authorities were parties to the writ
petition. They did not object to the same. They also did not seek
a direction to permit them to recover the amount from the
petitioner. Without that, it is too late in the day to contend that
the educational authorities are entitled to recover the salary paid
O.P.No. 29781 of 2000 -7-
to the teacher for the period of suspension. Of course, in Ext.P5
judgment, there is no similar observation. This Court allowed the
petitioner to continue the teacher under suspension. Since the
teacher had retired from service the petitioner dropped the
disciplinary proceedings and therefore the original petition was
dismissed as withdrawn. There was also no consideration of the
matter on merits. In that writ petition also, the DEO was a party.
Before this court, he could have insisted for on a direction to the
petitioner to pay the salary for the period of suspension. He did
not choose to do so. In the above circumstances, I do not think
that Exts.P3 and P6 orders are sustainable. Accordingly they are
quashed.
The original petition is allowed as above.
S. SIRI JAGAN, JUDGE
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