IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 WP(C).No. 10782 of 2009(P) --------------------------------- PETITIONER(S): ------------------- * 1. V.HARIDAS, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 2. B.RADHAKRISHNA PILLAI, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 3. C.SUMATHI, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) 4. N.K.FATHIMA, URDU TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT. * 5. P.PRAMEELA, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 6. C.KUMARI SOUDAMINI, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 7. SREEVIJI.P., ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 8. SRIKALA.A., ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * 9. S.REMABHAI, ASSISTANT TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) svs ..............2/-.... ...2... WPC. NO.10782/2009 * 10. N.MEENA, HINDI TEACHER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT.(DELETED) * P1 TO P3, P5 TO P10 DELETED AS PER ORDER IN I.A. NO.14859/2010 DATED 08/11/2010. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, KOYALMANNAM, PALAKKAD DISTRICT. 2. O.SUJATHA, HEADMISTRESS, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT. 3. THE MANAGER, AIDED SENIOR BASIC SCHOOL, MANJALLOOR, PALAKKAD DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. R1, R4 BY SR. GOVT. PLEADER SRI. M.A. FAYAZ R3 BY ADV. SRI.U.BALAGANGADHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/10/2011, ALONG WITH WPC. NO.31838/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 10782/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT TERMINATING THE SERVICES OF SHRI. P.K. KUNHAMMU. P2: COPY OF JUDGMENT IN WPC. NO.5218/2007 DATED 19/02/2007. P3: COPY OF GOVERNMENT ORDER, G.O.(Rt)NO.2732/2008 DATED 16/06/2008. P4: COPY OF STATEMENT FILED BY PETITIONERS BEFORE THE ASSISTANT EDUCATIONAL OFFICER. P5: COPY OF COMMUNICATION ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 1ST PETITIONER, DATED 03/03/2009. P6: COPY OF REPLY SUBMITTED BY THE PETITIONERS DATED 06/03/09. P7: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 1ST PETITIONER DATED 21/03/2009. P8: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 2ND PETITIONER DATED 21/03/2009. P9: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 3RD PETITIONER DATED 21/03/2009. P10: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 4TH PETITIONER DATED 21/03/2009. P11: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 5TH PETITIONER DATED 21/03/2009. P12: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 6TH PETITIONER DATED 21/03/2009. P13: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 7TH PETITIONER DATED 21/03/2009. P14: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 8TH PETITIONER DATED 21/03/2009. P15: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 9TH PETITIONER DATED 21/03/2009. svs ..........2/-.... ...2... WPC. NO.10782/2009 P16: COPY OF NOTICE ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE 10TH PETITIONER DATED 21/03/2009. P17: COPY OF THE PROCEEDINGS OF THE HEADMISTRESS DATED 24/07/2008 (ORDER NO.1/2006). RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 10782/2009 & 31838/2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of October, 2011. JUDGMENT W.P.(C) No.10782/2009 was initially filed by ten petitioners. The 4th petitioner therein is the petitioner in the other writ petition. In view of the subsequent developments, the names of petitioner 1 to 3 and 5 to 10 have been deleted. Therefore, the 4th petitioner alone remains in the field. The challenge is against the initiation of disciplinary action by the Assistant Educational Officer. 2. The filing of W.P.(C) No.10782/2009 was in the background of an order passed as per Ext.P3 in favour of one Shri P.K. Kunhammu who was claiming for continuance in service upto 31.3.2007. The petitioners in the writ petition had occasion to submit an application jointly before the Assistant Educational Officer to the effect that Shri Kunhammu was attending the school from 16.10.2006 onwards till 30.3.2007. In fact, the Headmistress took a serious view that the petitioners were taking a stand against her decision. 3. W.P.(C) No.31838/2010 is filed by the petitioner challenging Ext.P4 order passed by the Headmistress, whereby the sanctioning of annual wpc10782/09 & 31838/2010 2 increment has been postponed provisionally as per Note 2 to Rule 31 of Part I K.S.R. It is contended that the same is against Ext.P3 order passed by the Deputy Director of Education. 4. A consideration of the issues raised in W.P.(C) No.31838/2010 will resolve the issues raised in both the writ petitions. 5. The petitioner retired from service as Assistant Teacher on 31.3.2010. Even now, the retirement benefits have not been disbursed to her, in spite of the order of sanction Ext.P1 issued by the Accountant General. The same is due to the non issuance of Non-liability Certificate, by the Headmistress. 6. Ext.P2 is the interim order passed by this in W.P.(C) NO.10782/2009 wherein the proceedings of the Assistant Educational Officer were stayed. It is the allegation of the petitioner that even thereafter the Headmistress was trying to withhold the increments to the teachers concerned. Therefore, the petitioner approached the Deputy Director of Education. The Deputy Director passed Ext.P3 order to the effect that the Headmistress can take steps to review the order postponing the sanctioning of increments and to grant permission for drawl of the same. Thereafter, Ext.P4 order has been passed. 7. The order Ext.P4 shows the following: Therein, the stand taken is wpc10782/09 & 31838/2010 3 that till the disciplinary action taken by the Assistant Educational Officer is concluded against the teachers and till they co-operate with the affairs of the school, sanctioning of increments will be kept in abeyance. 8. Heard learned counsel for the petitioners, learned counsel appearing for the Headmistress and learned Government Pleader. 9. First I will examine whether Ext.P4 order passed by the Headmistress is in violation of the direction in Ext.P3 order. A reading of Ext.P3 order shows that in para 5, the Deputy Director was of the view that in the light of the interim order passed by this Court in W.P.(C) NO.10782/2009 and in view of the fact that the Assistant Educational Officer has informed that no disciplinary action has been taken, the Headmistress will take steps to review the matters, so as to sanction the annual increments in terms of Note 2 to Rule 31 of Part I K.S.R. Rule 31 concerns the withholding of increments and the Note therein enables the competent authority to defer the increments. The said Note reads as follows: “Note 2:- A Competent Authority may order the deferring of the increments of an officer, pending investigation into his conduct or performance of work, in disciplinary cases. Such deferring of increment will not be construed as 'withholding of increments' under the Kerala Civil Services (Classification, Control and wpc10782/09 & 31838/2010 4 Appeal) Rules, 1960.” Evidently, the authority concerned can defer the increments of an officer pending investigation into his conduct or performance of work in disciplinary cases. The Deputy Director, in Ext.P3 order, was of the view that in the light of the order of stay granted in W.P.(C) NO.10782/2009 and in view of the fact that the Assistant Educational Officer has informed that he has not taken disciplinary action, the Headmistress will have to reconsider the matter and to sanction the increments. 10. But what has been done in Ext.P4 is to defer the payment of annual increments. As on today, it is clear that the disciplinary action did not proceed as against the petitioner. The petitioner has already retired from service also. Therefore, there is no question of initiating the disciplinary action, as the master and servant relationship has already ceased. Even though the third respondent has filed a counter affidavit seeking to justify the order, I am of the view that the order Ext.P4 cannot be supported in the light of the specific direction in Ext.P3 by the Deputy Director of Education, to reconsider the order and to grant sanction for drawing increments, which is binding on the Headmistress. 11. In that view of the matter, the writ petitions are allowed. Ext.P4 proceedings in W.P.(C) No.31838/2010 is quashed. The proceedings wpc10782/09 & 31838/2010 5 pursuant to Ext.P10 against the petitioner, produced in W.P.(C) No.10782/2009 has already lapsed, as nothing was proceeded thereafter. The annual increments will be sanctioned and the due benefits will be disbursed to the petitioner along with any other benefits so far not sanctioned or disbursed. 12. Learned Government Pleader submitted that the Headmistress has not so far forwarded the pension papers for appropriate action. Therefore, there will be a direction to the third respondent in W.P.(C) NO.31838/2010 to forward the pension papers as well as NLC/LC, to the first respondent within one month from the date of receipt of a copy of this judgment based on which the due pensionary benefits will be released to the petitioner within a further period of one month thereafter. No costs. (T.R. Ramachandran Nair, Judge.) kav/