IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WA.No. 923 of 2009() -------------------- APPELLANT(S): PETITIONERS:- ------------------------------------------- 1. JOSE MATHEW, AGED 42 YEARS, S/O. MATHEW, PEON, ST. SEBATIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. 2. T.V. SEBASTIAN, AGED 50 YEARS, S/O. VARKEY, PEON, ST. SEBATIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): RESPONDENTS:- ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 5. THE HEADMASTER, ST. SEBATIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. 6. THE MANAGER, ST. SEBATIAN'S HIGH SCHOOL, PUNNACKAL, KOZHIKODE DISTRICT. GOVT.PLEADER SMT.T.B.REMANI FOR R1 TO R4. ADV. SRI.B.GOPAKUMAR FOR R5 & 6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON 13/07/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = Writ Appeal No.923 of 2009. = = = = = = = = = = = = = = = Dated this the 13th day of July, 2010. J U D G M E N T Gopinathan, J. Unsuccessful writ petitioners are assailing the judgment of the learned single Judge dated 9-1-2009 in WP(C). No.29397/2007. In contemplation of the disciplinary proceedings for dereliction of duty, the appellants who were working as Peons in a private school, of which the respondents 5 and 6 are the Headmaster and Manager respectively, were kept under suspension with effect from 28-3-2001 by Ext.P1 order dated 28-3-2001 issued by the 4th respondent, the District Educational Officer, Kozhikode. Though, due notices were issued to the appellants, they didn’t care to defend the disciplinary proceedings. Ultimately, the 4th respondent who conducted the enquiry found the appellants guilty and by WA.No.923/2009. -: 2 :- Ext.P4 order dated 5-11-2001, two increments with cumulative effect were ordered to be barred. In culmination of disciplinary proceedings, they were reinstated. It appears that without noticing Ext.P4, the Government by Ext.P5 order dated 6-11-2001 ordered reinstatement of the appellants pending culmination of the disciplinary proceedings. However, the appellants challenged Ext.P4 order before the 3rd respondent, the Deputy Director of Education, Kozhikode. By Ext.P7 dated 22-8-2002, the 3rd respondent also found the appellants guilty of dereliction of duty. But, the penalty imposed was reduced to barring of one increment for one year without cumulative effect. The appellants, on 28-10-2002 moved a representation before the first respondent. By Ext.P8 order dated 28-11-2003, Ext.P7 order was confirmed. It was further ordered that the period under suspension shall be treated as eligible leave. Though, a review petition was moved, the appellants were unsuccessful. In a writ petition as WP(C).No.1773/2004, this Court directed the first respondent to consider the review petition and pass appropriate orders. WA.No.923/2009. -: 3 :- By Ext.P10 order dated 4-7-2007, the first respondent dismissed the request for review. Assailing Exts.P4 and P10, the appellants moved the writ petition, which was dismissed by the learned single Judge, against which this appeal was filed. 2. We have heard the learned counsel appearing for the appellants and the learned Government Pleader Smt.T.B.Remani. Going by Exts.P4, P7 and P10, we find that as found by the learned single Judge, Ext.P10 order suffers no infirmity. On evaluation of evidence collected during the enquiry, the 4th respondent found that there was dereliction of duty. We find no reason to interfere with that finding. The penalty imposed as modified in appeal is a minor penalty. We find no reason to interfere with the order imposing penalty also. The learned counsel for the appellants also didn’t argue much as against the imposition of penalty barring one increment without cumulative effect. The main grievance of the appellants is that the period of suspension ie. from 28-3- 2001 to 5-11-2001 shall be treated as duty and the appellants WA.No.923/2009. -: 4 :- shall be paid salary and all other monetary benefits. It is not disputed that the appellants had not attended duty during the period of suspension. Since the appellants were found guilty for dereliction of duty it cannot be said that the suspension order was with any malafides or that there was lack of bonafides. This is a case which is governed by Rule 56B(1)(5) and (7) of KSR Part I and the appellants are not entitled to treat the period of suspension as a period spent on duty and it is for the competent authority to decide. Probably, the proviso to Rule 56B (7) mandates a notice in case the competent authority orders to treat the period of suspension as leave and no notice was given to the petitioners under the proviso. But, the learned counsel for the appellants couldn't point out any prejudice caused to the appellants for want of notice or by treating the period of suspension as eligible leave, other than the loss of salary. Since the orders of suspension cannot be held illegal, the appellants are not entitled to claim salary as a right. In the above circumstance, we find that Ext.P7 or P10 is not any way vitiated. We find that the request of the appellants was rightly rejected by the WA.No.923/2009. -: 5 :- authorities below and the learned single Judge was right in dismissing the writ petition. The appeal is devoid of merit. In the result, the appeal fails and it is dismissed. However, in the event the appellants have no leave with allowance in their credit to cover the suspension period and have to apply for leave without allowance, we order that the subsistence allowance shall not be recovered. If they apply for leave with allowance, the subsistence allowance, if any, paid shall be deducted. In the event, the appellants are not paid any subsistence allowance, that shall be paid within one month from today irrespective of the fact that the appellants have no leave with allowance in their credit. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-