IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 OP.No. 25168 of 2001(U) ----------------------- PETITIONER: ------------ T.ABDUL SAMAD, S/O.AHAMED MUSLIAR, THOTTINGAL HOUSE, KARINGANAD P.O., VILAYUR, PALAKKAD DIST. BY ADV. SRI.P.CHADRASEKHAR RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, GENERAL EDUCATION DEPT., SECRETARIAT, TRIVANDRUM. 2. D.P.I., TRIVANDRUM. 3. THE ADDL. D.P.I., TRIVANDRUM. 4. THE MANAGER, KARINGANAD K.M.A.L.P.SCHOOL, KANRINGANAD P.O., VILAYUR, PATTAMBI, PALAKKAD DT. BY ADV. SRI.ESM.KABEER GOVERNMENT PLEADER SMT.SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.25168/01. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER DTD.15.10.94 BY R2. P2. COPY OF THE PETITON DTD.5.12.94 TO R2. P3. COPY OF THE PETITION DTD.12.7.00 BEFORE R2. P4. COPY OF THE JUDGMENT IN O.P.NO.10981/2001 OF THIS COURT. P5. COPY OF THE ORDER DTD.7.7.01 BY R3. P6. COPY OF THE ORDER DTD.18.7.01 BY R4. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.25168 of 2001 ================== Dated this the 6th day of February, 2008 J U D G M E N T The petitioner was the headmaster of the aided school managed by the 4th respondent. Pending criminal proceedings, he was suspended from service. He was discharged in the criminal case. Again fresh prosecution was initiated in which also he was discharged. In the meanwhile, the petitioner was reinstated in service by Ext.P1 order dated 15.10.1994. Subsequently the petitioner retired from service on 31.3.2001. No disciplinary proceedings followed the suspension. Seeking regularisation of the period of suspension the petitioner filed O.P.No.10981/2001 in which, by Ext.P4 judgment, this court directed the 1st respondent to consider the representation of the petitioner and to pass appropriate orders thereon. For non- compliance with the judgment, a contempt case followed. In the meantime, the third respondent passed Ext.P5 order directing the manager to pass orders regarding regularisation of service of the petitioner during the period of suspension. Pursuant thereto, the manager passed Ext.P6 order whereby the manager directed that o.p.25168/01 2 the period of suspension of the petitioner from 8.5.1988 to 13.11.1994 shall be treated as eligible leave. The petitioner is challenging Exts.P5 and P6 orders. 2. The petitioner raises two contentions. First is that when this court directed the 1st respondent to consider the matter, neither the third respondent nor the manager could have considered the matter. Second is that, assuming that the manager had powers to consider the matter under law, that could have been only after complying with the provisions of Rule 56B of Part I of KSR, which has not been done in this case. 3. Learned Government Pleader submits that in so far as the manager is the appointing and disciplinary authority, only the manager can legally pass orders as to how the suspension period has to be treated, which only has been done by Ext.P6. The learned Government Pleader, therefore, supports Exts.P5 and P6. 4. I have considered the rival contentions in detail. 5. In so far as the manager is the appointing and disciplinary authority, which cannot be disputed in view of the provisions of the KSR, I am of opinion that the manager is the appropriate person to decide the question as to how the period of o.p.25168/01 3 suspension of the petitioner has to be treated. Therefore, I do not find anything wrong in the third respondent directing the manager to pass orders and the manager passing orders. Therefore, Ext.P5 order cannot be faulted. 6. The next question that arises is as to the validity of Ext.P6. Rule 91 of Chapter XIV-A of the KER states that when a teacher who has been dismissed, removed, retired compulsorily or suspended is reinstated in service or would have been reinstated but for his retirement on superannuation while under suspension, the rules for the time being in force relating to a Government servant in the matter shall mutatis mutandis apply. Therefore, provisions of the KSR on the subject are applicable to the petitioner's case. The matter regarding the regularisation of suspension period of a Government servant who has been reinstated in service after suspension is to be regulated by Rule 56B of Part I KSR. The said rules reads thus: “56B.(1) When an officer who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, or has retired from service on superannuation before the conclusion of the disciplinary proceedings against him the Authority Competent to order reinstatement shall consider and make a specific order. (a) regarding the pay and allowance to be paid to the officer o.p.25168/01 4 for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be: and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in rule 55, where an officer under suspension dies before the disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowance for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the Authority Competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the officer shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended. Provided that where such authority is of the opinion that the termination of the proceedings instituted against the officer had been delayed owing to reasons directly attributable to the officer, it may after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the officer shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4) In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3), the officer shall subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the Competent Authority may determine, after giving notice to the officer of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order passed under sub-rule (1) o.p.25168/01 5 before the conclusion of the proceedings against the officer shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the Competent Authority specifically directs that it shall be so treated for any specified purpose: Provided that if the officer so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the officer. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount (not being the whole) of such pay and allowances determined under the proviso to sub-rule (3) or under sub- rule(5) shall not be less than the subsistence allowance and other allowances admissible under rule 55.” (underlining supplied) Two things are very clear from the rule. First is that the petitioner cannot be denied salary to the extent of subsistence allowance allowable. Second is that the question as to how much pay and allowances to which the petitioner is entitled, has to be determined after giving notice to the petitioner of the quantum proposed and after considering the representation to be filed by the petitioner in reply to the notice. A reading of Ext.P6 order would show that such a course has not been resorted to by the o.p.25168/01 6 manager. Ext.P6 order does not say that any notice has been issued to the petitioner or that the petitioner has been heard in the matter. Therefore, clearly Ext.P6 order has been passed in violation of Rule 56B of Part I KSR read with Rule 91 of Chapter XIV-A of the KER. Accordingly, Ext.P6 is quashed and the 4th respondent is directed to pass fresh orders in compliance with the procedure prescribed under rule 56B of the KSR after giving notice to the petitioner with opportunity to file representation. The manager shall complete the above process within a period of two months from the date of receipt of a copy of this judgment. Thereafter, the manager shall forward his order to the AEO within two weeks from the date of passing of the order, on receipt of which, the AEO shall take further proceedings in accordance with the order and disburse the monetary benefits due to the petitioner within a further period of one month from the date of receipt of a copy of the order. The writ petition is disposed of as above. sdk+ S.SIRI JAGAN, JUDGE o.p.25168/01 7 S.SIRI JAGAN, J. =============== O.P.No.25168 of 200-U =============== J U D G M E N T 6th February, 2008