IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 14068 of 2007(Y) -------------------------------------- PETITIONER: ------------------- KAMALAKSHI A.K., HEADMISTRESS, V.P.ORIENTAL HIGH SCHOOL, CHOKLI P.O. BY ADVS. MR.B.KRISHNAN, MR.R.PARTHASARATHY. RESPONDENTS: ------------------------ 1. KERALA UPA LOK AYUKTA, TRIVANDRUM. 2. P.P.GOVINDAN, KOLLERI THAZHA KUNIYIL, PANNIYANNOOR-670 679, THALASSERY, KANNUR DISTRICT. 3. DISTRICT EDUCATIONAL OFFICER, THALASSERY. 4. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 6. ASSISTANT PROVIDENT FUND OFFICER, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. R1 & R3 TO R6 BY GOVT. PLEADER SMT. M.R. SREELATHA, R2 BY ADV. SMT.I.SHEELA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14068/2007-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMPLAINT FILED BY THE R.2. TO THE R.1. EXT.P.2: COPY OF THE STATEMENT FILED BY THE WRIT PETITIONER AS R.1. IN EXHIBIT P.1 PROCEEDINGS. EXT.P.3: COPY OF THE ORDER OF R.1. EXT.P.4: COPY OF THE PROCEEDINGS FROM R6 FROM THE OFFICE OF R.5. ENDORSING A COPY TO THE R.3. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE COMMUNICATION NO. C1/24229/97 DTD. 22/09/97 ISSUED BY THE ACCOUNTS OFFICER TO THE HEADMASTER OF V.P. ORIENTAL HIGH SCHOOL, CHOKLI. EXT.R2.B: COPY OF THE COMMUNICATION NO. B3/13212/97 DTD. 28/10/2007 ISSUED BY THE D.E.O, THALASSERY TO HEAD MASTER, VPO HIGH SCHOOL. EXT.R2.C: COPY OF THE LETTER DTD. 15/01/98 ISSUED BY THE HEAD MASTER TO THE R.2. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC,J. ----------------------- W.P.(C).No.14068 OF 2007 ------------------------ Dated this the 3rd day of February, 2009. JUDGMENT Petitioner was appointed to the post of Heamaster in the V.P. Oriental High School, Chokli with effect from 1.4.2002. It is stated that up to 31.3.1997 Smt. P.M. Santha Kumari was the Headmistress and on her retirement, Smt. C.K. Santhakumary was appointed and she held the post till 31.3.2002. It is on her retirement that the petitioner was appointed and took charge. Prior to her appointment, the 2nd respondent, who was the clerk in the school retired from service with effect from 31.8.1997. Though the 2nd respondent retired on 31.8.1999, his provident fund closure was not effected as required under Rule 43 of Chapter XXX KER. Finally the 2nd respondent filed Ext.P1 complaint before the first respondent impleading the petitioner herein, WP(c).No.14068/07 2 being the then Headmistress, as the first respondent in the complaint. On receipt of notice, the petitioner filed Ext.P2 reply. Finally the first respondent passed Ext.P3 order holding that the 2nd respondent is entitled to interest on the provident fund amount till 24.4.2005, when the amount was paid. It was directed that respondents 2 and 3 in the proceedings shall pay the interest and that they will be entitled to recover the amount of interest from the concerned Headmistress who shall be responsible for the delay in payment of the Provident Fund Amount. Following, Ext.P3, Ext.P4 was issued to the petitioner calling upon her to show cause why an amount of Rs.1,54,209 shall not be recovered from her. It is there upon that this writ petition was filed challenging Exts.P3 and P4. 2. The main contentions raised by the counsel for the petitioner are that since she took charge as Headmistress only with effect from 1.4.2002 and that the 2nd respondent having retired on 31.8.1997, the petitioner cannot be WP(c).No.14068/07 3 held responsible for the alleged delay in paying the provident fund dues. It is also stated that on her assuming the post, he made various requests to the 2nd respondent to affix his signature on the application for provident fund closure and that he had declined to do so. Yet another plea that is raised is that the Headmistress of an aided school is not a public servant as defined in Section 2 (o) and (x) of the Kerala Lok Ayukta Act 1999 and therefore the proceedings in so far as she is concerned resulting in Ext.P3 order is without jurisdiction. 3. In the counter affidavit filed by the 6th respondent also it is stated that requests were made by the District Educational Officer and also the petitioner herein requiring the 2nd respondent to affix his signature and make a proper application for closure of the Provident fund. Therefore, it is stated that once the 2nd respondent made a proper application, payment was made on 24.5.2005. The other contention raised is that on 31.8.1997, when the 2nd respondent retired from the post, Smt.P.M. WP(c).No.14068/07 4 Santhakumari was the Headmistress and that she was not made a party to the proceedings. 4. On the other hand the 2nd respondent would argue that admittedly there has been delay in paying his provident fund dues. According to him, though he retired from service on 31.8.1997, admittedly he has paid provident fund dues only in 2005. It is stated that this delay was culpable and it was therefore that he approached the first respondent. It is stated that even in Ext.P3 the first respondent has only directed the respondents 2 and 3 therein to pay the amount and recover the same from who ever is responsible for the delay. It is stated that delay having admittedly occurred, the second respondent is entitled to be compensated for the same. 5. The fact that the delay has occurred in settling the dues of the 2nd respondent is not in dispute. As already noticed though the retirement took place in 1997 payment was made only in 2005. Petitioner's case, which WP(c).No.14068/07 5 is also supported by the 6th respondent, is that the reasons for delay is totally attributable to the 2nd respondent himself in as much as the application made by him for closure of the provident fund was a defective one and despite various requests made, he refused to cure the defect. 6. The 2nd respondent disputes this contention by contending that he has not been issued any communication in this behalf. 7. Be that as it may, the only question which I am called upon to examine in this writ petition is whether the petitioner as Headmistress of the School is responsible for the delay to be saddled with the consequences for the belated payment that was made. On facts, even on reading of Ext.P3 order passed by the Ist respondent and also taking into account the fact that the petitioner took charge only in 2002, I am not in a position to conclude that the petitioner is guilty of any laches in that behalf. If that be so, I cannot hold the petitioner guilty of the delay WP(c).No.14068/07 6 to render her liable for the interest which is now ordered. Therefore, it is declared that the petitioner cannot be made liable for the delay that has occurred in the payment of the provident fund dues. It is clarified that it will be open to the official respondents to make payment as ordered in Ext.P3 and recover the same from who ever is responsible. Consequently Ext.P4 is set aside. Writ petition is allowed as above. (ANTONY DOMINIC) JUDGE vi/