IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 13409 of 2004(U) --------------------------------------- PETITIONER(S): ----------------------- P.K. KRISHNASWAMY, RESIDING AT `KRISHNASREE', UMA NAGAR, KODUNTHIRAPULLY.P.O., PALAKKAD - 678 004. BY ADV. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON SMT.M.R.VALSA, SRI.SREEKANTH.K.R, SMT.G.GEETHISHA. RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 4. THE DISTRICT COLLECTOR, PALAKKAD. 5. THE DEPUTY TAHSILDAR (R.R), PALAKKAD. 6. P.CHANDRASEKHARAN, FULL TIME MENIAL (RETIRED), SARVAJANA HIGH SCHOOL, PUTHUCODE, PALAKKAD. R1 TO R5 BY GOVT. PLEADER MR.K. SANIL KUMAR. R6 BY ADV. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13409/2004-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 08/04/1996. EXT.P2: COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DATED 12/09/1997. EXT.P3: COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DATED 10/09/2002. EXT.P4: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 16/05/1992. EXT.P5: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 04/01/2003. EXT.P6: COPY OF THE DEMAND NOTICE ISSUED BY THE FIFTH RESPONDENT DATED 20/03/2004. EXT.P7: COPY OF THE DEMAND NOTICE ISSUED BY THE FIFTH RESPONDENT DATED 20/03/2004. EXT.P8: COPY OF THE OBJECTION PREFERRED BY THE PETITION TO THE FOURTH RESPONDENT DATED 02/04/2004. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 13409 OF 2004 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 17th day of September, 2010 JUDGMENT The petitioner, former manager of the concerned school, is mainly challenging Exts. P6 and P7 recovery proceedings (seeking to realize the amount/salary stated as paid to the 6th respondent during the period of the said respondent). 2. The sequence of events as described in the Writ Petition shows that, the 6th respondent, while working as the full time menial was placed under suspension for the period from 23.08.1998 till 29.11.1996, in connection with some misconduct. Subsequently, the Government passed Ext. P1 order holding that the suspension of the said employee beyond a period of one year was not sustainable under any circumstances and accordingly, the 6th respondent was ordered to be reinstated with effect from the date of expiry of one year of suspension. It was also observed in Ext. P1 that the pay and allowances which happened to be paid to the 6th respondent after the said one year of suspension, were liable to be recovered from the petitioner, who was the manager of the school. W.P. (C) No. 13409 of 2004 : 2 : 3. After passing Ext. P1, it appears that departmental enquiry was directed to be finalized as per the direction given by this Court in OP 9108 of 1996. On completion of the enquiry, it was found that, the charges levelled against the 6th respondent were wrong and unsustainable. Accordingly, the said respondent was absolved of the misconduct levelled against him and it was ordered that the period spent by the 6th respondent on suspension from 23.8.94 to 29.1196 would be regularized, treating the said period as duty. Appropriate direction was also given to pay arrears of salary to the incumbent and to have the due amount recovered from the Manager, based on Ext. P1 Government Order. 4. When further coercive steps were taken for effecting recovery from the petitioner as per Exts. P6 and P7, the petitioner approached this Court by filing the present Writ Petition, also with some incidental reliefs/prayers. The first respondent has filed a counter affidavit stating that the idea and understanding of the petitioner in support of the contentions raised in the Writ Petition is not correct or sustainable. With reference to Rule 67 (8) of Chapter XIV A KER, it is contended that, there is no specific condition that the recovery could be effected from 'maintenance grant'. The learned counsel for the petitioner submits that the issue raised in the Writ Petition now stands confined W.P. (C) No. 13409 of 2004 : 3 : only to the course being pursued by the respondents without giving credit to any amount already recovered/set off from the 'maintenance grant' payable to the petitioner, against the amount actually to be satisfied in respect of the liability involving the 6th respondent. It is also pointed out that the 6th respondent subsequently retired from the service, on attaining the age of superannuation and that he has already been paid all the benefits by the Government/Department. It is further brought to the notice of this Court that the 'maintenance grant' payable to the petitioner, who was running the 'aided school', was not disbursed in the years 1996-'97 to 2002-'03 presumably for the reason that it was ordered to be set off in respect of the liability involving the 6th respondent as ordered by the Government in Ext. P1. This being the position, the petitioner is liable to satisfy only the balance amount, if any, after setting off the 'maintenance grant' payable to the petitioner, submits the learned counsel for the petitioner. 5. A copy of the common judgment dated 20th November 2009 passed by the Division Bench of this Court in W.A Nos. 328 and 417 of 2008 is also placed for consideration. The aforesaid appeal was preferred by the petitioner, being aggrieved of the common verdict passed by a learned Single Judge in O.P. Nos. 23143 & 34481 of 2002. The original petition preferred by the petitioner/Manager challenging the W.P. (C) No. 13409 of 2004 : 4 : disciplinary proceedings was dismissed with cost; while the other Writ Petition filed by the 6th respondent in respect of the concerned cause of action was allowed with cost. The Writ Petition was mainly filed challenging order imposing the cost. After considering the contentions raised from either side, interference was declined and both the Writ Appeals were dismissed, making it clear that, the respondents were at liberty to have realised the cost. However, taking note of the specific contentions of the appellant that the maintenance grant payable in respect of the years 1996-'97 to 2002-'03 was actually not disbursed to the appellant, it was observed in paragraph 4 as follows: “4. The above said annexure would show that the Government have declined to pay maintenance grant for the years 1996-'97 to 2002-'03 by reason of the amounts recoverable from the appellant. It is ordered that if any amount payable to the appellant by way of maintenance grant is adjusted or withheld by the State Government, the Government shall give credit for that amount, while computing the amount recoverable from him”. By virtue of the above, the matter stands finalized. It goes without saying that, since the 'maintenance grant' is not disbursed till date from 1996 -'97 (which is not sought to be controverted from the part of the respondent State by filing any counter affidavit in this regard), only the balance amount, if any, can be recovered from the petitioner.. W.P. (C) No. 13409 of 2004 : 5 : 6. In the above circumstances, the first respondent shall issue a specific demand notice to the petitioner, if any further liability is there to be satisfied, pointing out the quantum of 'maintenance grant' withheld by the Government in respect of the different years. This shall be done within two weeks from the date of receipt of a copy of this judgment. The petitioner shall satisfy the same within a period of one month from the date of receipt of such communication. It will be open for the concerned respondent to pursue further steps for realization of the due amount; if any default is made in this regard. The Writ Petition is disposed of as above. P. R. RAMACHANDRA MENON, JUDGE kmd