IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WP(C).No. 463 of 2009(S) ------------------------ O.A. 845 OF 2006 OF C.A.T., ERNAKULAM PETITIONER(S): --------------- PRASANNA P., D/O.LATE P.K.CHATHU, NOW WORKING AS VICE PRINCIPAL OF KENDRIYA VIDYALAYA, KANNUR RESIDING AT SABARI" KANNUR DIST. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, BANGALORE REGON, ST.JOHNS ROAD,BANGALORE560042. 2. THE COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, 18,INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI. 3. THE VICE-CHAIRMAN, KENDRIYA VIDYALAYA SANGATHAN, NEW DELHI. 4. THE CHAIRMAN, KENDRIYA VIDYALAYA SANGATHAN, NEW DELHI. BY ADV. SRI. V.V. ASOKAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 463 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2009 JUDGMENT Balakrishnan Nair, J. The petitioner was a Vice Principal of Kendriya Vidyalaya, under the respondents. She accompanied the students from her school to Bangalore. While the students were alighting from the train, one of the girl student fell down and sustained serious injuries. The competent authority felt that it was due to her negligence that the accident took place. Disciplinary action was taken against her. She was found guilty and after following the due procedure, she was compulsorily retired from service by Ext.P1 dt.26.11.2002. The said order was passed by the second respondent, Commissioner. She moved the third respondent, Appellate Authority. The said respondent allowed the appeal by Ext.P3 order dt.22.4.2003. The penalty was reduced to one of bar of two increments with cumulative W.P.(C) No. 463 of 2009 2 effect. It was also ordered that the period she was out of service shall be treated as non-duty. 2. She challenged Ext.P3 to the extent it was against her before the Central Administrative Tribunal, Ernakulam by filing O.A. 150 of 2006. The Tribunal allowed the original application and directed the 4th respondent, Chairman, Kendriya Vidyalaya Sangathan to consider her grievance. The said officer passed an order again treating the period she was out of service as non duty. Challenging the said order to the extent it was adverse to her, she again moved the Central Administrative Tribunal by filing O.A.No. 845 of 2006. The said O.A. was dismissed of by Ext.P5 order. This writ petition is filed by the applicant challenging Ext.P5. The only point canvassed before us is that the Tribunal failed to advert to sub rule (4) of Rule 54 of the Fundamental Rules, which provides that subject to sub rules (5) and (7) the competent authority may order to pay some allowance to the incumbent, who has been re-instated in service as a result of reduction in penalty or for some other reason. W.P.(C) No. 463 of 2009 3 3. We notice that the said point has not been raised in the original application or before the Central Administrative Tribunal. But the learned counsel for the petitioner submitted that the petitioner may be given liberty to claim allowances, which she may be entitled to under sub rule (4) of Rule 54. The learned counsel submits that the petitioner is entitled to get allowances which may be at least equivalent to the subsistence allowance payable to her, had she been suspended. 4. We heard the learned counsel for the respondents also. Though sub rule (5) of Rule 54 says that the said period during which she was out of duty will be treated as non duty, it enables the competent authority to order that the said period shall be treated as duty for any specified purpose. We feel that the said aspect is also a matter which requires consideration by the competent authority. Even if the said period is treated as non duty, the period can be treated as duty for certain limited purposes. 5. In view of the materials produced before the Central Administrative Tribunal and the contentions raised, we find nothing wrong in the order passed by the Tribunal. It cannot be blamed for not W.P.(C) No. 463 of 2009 4 considering a point which has not been raised before it. Therefore, we decline to interfere with Ext.P5. But it is ordered that Ext.P5 or this judgment will not bar the rights, if any, of the petitioner under sub rules (4) and (5) of Rule 54 of the Fundamental Rules and she can raise it before the competent authority. In that extent, the said authority shall consider it as expeditiously as possible, unfettered by any observations in Ext.P5 or in this judgment. 6. This writ petition is disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm