IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WA.No. 827 of 2005(C) -------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.35438/2004 DATED 18/02/2005 .................... APPELLANT/ PETITIONER: -------------------------------------- SRI.A.I.JOSE, S/O. ITTICHAN, ARAKKALAN HOUSE, MAMBRA, KARUKUTTY P.O., ERNAKULAM DISTRICT, PIN - 683 576, (RETIRED HSA, MAM HS, KORATY). BY ADV. SRI.K.A.SHAMSUDEEN. RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR, CIVIL STATION, AYYANTHOLE, THRISSUR. 3. THE HEADMASTER, MAM HIGH SCHOOL, KORATTY, THRISSUR DISTRICT, PIN- 680 308. R1 & R2 BY SR. GOVT. PLEADER SRI. BENNY GERVACIS, R3. BY ADV. SRI.V.M.KURIAN, ADV. SRI.A.V.THOMAS, ADV. SRI.K.T.THOMAS, ADV. SRI.MATHEW B. KURIAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, ALONG WITH W.A NO. 829/ 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- W.A. Nos.827 & 829/2005 --------------------------------------- Dated this the 17th day of October, 2008 Judgment Koshy,J. The petitioner in W.P.(C) No.35438 of 2004 attained the age of superannuation on 6.8.2002. By virtue of rule 60 (c) in Part I of the Kerala Service Rules, he was entitled to continue till 31.3.2003, that is, last working day of that academic year. While the teacher was continuing so, on the extended period on 16.9.2002, the manager passed an order placing him under suspension with effect from 20.9.2002. The District Educational Officer granted permission under rule 67 (8) of Chapter XIV-A of the Kerala Education Rules to continue the suspension of the teacher beyond 15 days. The teacher challenged the decision before the Deputy Director of Education. The Deputy Director by order dated 7.3.2003 held that continued suspension of the teacher is not necessary and accordingly the manager was directed to reinstate the teacher and admit him for duty with immediate effect, but, manager was given freedom to continue the disciplinary action as per law. The manager filed a revision petition before the W.A.Nos.827 & 8292005 2 Director of Public Instructions and by order dated 29.3.2003, the Director of Public Instructions disposed of the revision petition and held that there is no question of reinstating the petitioner as the manager stated that the manager has no intention to proceed with the disciplinary action. That order of the Director of Public Instructions was challenged by the teacher before the Government. The Government passed the following order: "....... The representative of the manager reported the intention of the management not to proceed further in the matter and requested to l;uphold the proceedings dated 29.3.2003 of the Director of Public Instruction. The case was examined in detail with reference to the relevant records land the materials furnished by the revision petitioner in his defence. On verification of the evidence produced and based on the assessment of the averments of the parties attended the hearing, it is felt that the charges levelled against the accused are not so grave as to warrant such a treatment meted out to him by the Director of Public Instruction in his proceedings dated 29.3.2003. The decision of the Deputy Director of Education, Thrissur in the matter is a balanced one. But, it seems it would be unfair to prolong the matter further (considering the fact that the revision petitioner has already passed the normal date of superannuation) to give a free hand to the manager to proceed with the disciplinary action against the revision petitioner. W.A.Nos.827 & 8292005 3 In the circumstances the proceedings dated 7.3.2003 of the Deputy Director of Education, Thrissur is upheld. The revision petitioner will be deemed to have been reinstated in service with effect from the date of receipt of the proceedings dated 7.3.2003 of the Deputy Director, Education, Thrissur by the Manger of the school, if it was a working day and if it was not, with effect from the next working day. However, it should not be later than 18.3.2003. The period spent by the revision petitioner under suspension till that date will be treated as eligible leave. The revision petition is disposed of as above." That was challenged by the manager in W.P.(C) No.27578 of 2004 after getting notice in W.P.(C) No.35438 of 2004 filed by the teacher. We are at a loss to understand why the manager filed a writ petition at all as no financial liability was cast on the manager by the Government order. Further, we also note that since the date of deemed continuation of service upto 31.3.2003 was also over, there is no question of the teacher again coming back to the school at the time of filing of the writ petition by the manager. Filing of the writ petition by the manager itself was malafide to harass the retired teacher. Further, manager has stated that there was no intention to continue the proceedings. The revision petition was, therefore, disposed of on 29.3.2003 affirming the order of the D.P.I. At the same time, retirement papers were forwarded treating the W.A.Nos.827 & 8292005 4 date of suspension as the date of retirement based on rule 91 of Chapter XIV-A of the Kerala Education Rules. Rule 91 of Chapter XIV-A reads as follows: "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, rules for the time being in force relating to Government servants in the mater shall mutatis mutandis apply." The relevant rule relating to Government servants is rule 60 (c) of Part I, Kerala Service Rules. Rule 60 (c) of Part I, KSR reads as follows: "The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year ends. They shall be entitled to the benefits of increments and promotion which fall due, before the last day of the month in which they attain the age of 55 years. But they shall not be eligible for increment or promotion during the period of their service beyond such date. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. But in cases where officers coming under this rule are under suspension on the date of superannuation or therafter but W.A.Nos.827 & 8292005 5 before the closing day of the academic year, they shall be retired from service on the date of superannuation or on the date of suspension whichever is later." Before the extended period of superannuation, the management itself decided not to proceed with the disciplinary action. He ought to have been reinstated in service the moment when the management decided not to proceed with the disciplinary proceedings or at least from the date of order of DPI. The revisional order was passed in accordance with the submission of the manager. There is no justification in not reinstating the petitioner at least from the date of the order of DPI. It is true that the management has succeeded in its evil attempt to see that the teacher is not reinstated in service and he has to go from the school after a long tenure of service as a suspended employee. Here, the disciplinary proceedings itself was dropped and management informed the same to the Government while hearing the revision application filed by it. The order of the DPI was affirmed. Therefore, even though no formal order was issued by the manager reinstating the teacher which ought to have been done by the manager immediately on the decision not to proceed with the disciplinary proceedings, he is deemed to have been reinstated in service at W.A.Nos.827 & 8292005 6 least from the date of the order of the DPI. Further, it is not a case that disciplinary proceedings continued. Here, disciplinary proceedings was dropped. In the above circumstances, he is entitled to salary for the period under suspension. The Government only directed to treat/adjust this period of suspension as eligible leave. We see no ground to interfere in the Government order. The action of the management in sending the papers for retirement as if he retired from the original date of suspension is wholly illegal because disciplinary proceedings were dropped. The entire procedure adopted by the manager is only to harass the retired teacher. We are of the opinion that there was no need to interfere in the order of the Government and the petitioner was entitled to get salary and all the benefits as if he continued till 31.3.2003. It is true that pension will not be calculated for the extended period after the date of superannuation, but, he is entitled to salary and necessary supporting papers should be signed by the manager so that payments will be effected. We are constrained by the action of the manager to hold that this is a classic example of harassing a teacher by the manager of an aided school. Therefore, we also order that W.A.Nos.827 & 8292005 7 Rs.10,000/- should be paid as cost to the teacher by the respondent manager. Both writ appeals are allowed with cost. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.Nos.827 & 8292005 8 J.B. KOSHY AND K.P.Balachandran,JJ. ------------------------------------- W.A. Nos.827 & 829/2005 ------------------------------------- Judgment Date:17th October,2008