IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 23741 of 2005(B) -------------------------- PETITIONER(S): --------------- 1. M.T.MOHAMMED, AGED 58 YEARS,S/O.LATE KOYA, ARABIC TEACHER (RETD.),A.M.L.P.SCHOOL, PALACODE RESIDING AT MATTUMATHODI HOUSE, P.O. MANNARMALA-679 325,MALAPPURAM). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT. GENERAL EDUCATION DEPT., SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. THE ASSISTANT EDUCATIONAL OFFICER, OTTAPPALAM, PALAKKAD DISTRICT. GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.1.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 23741/05. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER OF THE MANAGER DTD.10.10.99. P2. COPY OF THE GOVT. ORDER DTD.19.10.2002. P3. COPY OF THE LETTER OF THE GOVT. DTD.19.10.2002. P4. COPY OF THE LETTER OF THE GOVT. DTD.21.5.2004. P5. COPY OF THE GOVT. ORDER DTD.8.4.86. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 23741 of 2005 ================== Dated this the 8th day of January, 2010 J U D G M E N T In this writ petition, the facts stated by the petitioner are as follows: The petitioner retired as an Arabic teacher from A.M.L.P. School, Palacode, which is an aided school. During his period of service, disciplinary proceedings were initiated against him, which resulted in his being found guilty of certain misconducts (Neither the petitioner nor the respondents have chosen to state what those misconducts are nor are the same available from the materials on record). The manager proposed the punishment of dismissal from service for the proved misconducts, which was not acceded to by the departmental authorities. He later proposed another penalty, which was also not sanctioned and ultimately, the manger proposed the penalty of withholding of two increments of the petitioner permanently. That proposal was forwarded to the 3rd respondent-Assistant Educational Officer. Pursuant to the direction of this Court in O.P.No.300/1999 to pass orders on the proposal, the 3rd respondent approved the said punishment. The petitioner's statutory appeal against the same was rejected by the 2nd respondent. According to the petitioner, the petitioner filed a revision petition against that order. The 1st respondent passed an order dated 4.7.2001 upholding the orders of the lower authorities. The petitioner contends that he filed O.P.No. 24775/2001, in which, this Court, by judgment dated w.p.c.23741/05 2 6.9.2001, quashed the order dated 4.7.2001 and directed the Government to consider the revision petition filed by the petitioner afresh after hearing the petitioner. The Government passed Ext.P2 order, the operative portion of which reads thus: “5. Government have examined the case in detail. The penalty imposed on Shri.M.T.Mohammed is reviewed since he was kept under suspension for about 3 years, the charges were not much serious enough and no financial irregularity was involved in this case, taking a very lenient view on humanitarian ground Government are pleased to order that the period of suspension from 2.1.1995 to 4.12.1997 will be treated as duty as per sub rule (5) & (9) of Rule 56(B) of Part I K.S.Rs. limiting the Pay and Allowances equal to the subsistence allowance already drawn.” The petitioner is challenging that order in this writ petition. 2. The petitioner's contention is that in the matter of treating suspension period on reinstatement of an aided school teacher after suspension, Rule 56B of Part I of KSR read with Rule 91 of Chapter XIV-A of KER applies. The Government has passed Ext.P5 order amending the manual of disciplinary proceedings, wherein it has been held that in cases of minor penalties, the salary and allowances shall be limited to 80%, less subsistence allowance admissible under the rules. Therefore, according to the petitioner, Ext.P2 order denying the petitioner full pay and allowances for the period of suspension is against the provisions of the KSR, read with Ext.P5. The petitioner, therefore, seeks the following reliefs: “(a) call for the records relating to Exhibits P3 and P4 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) call for the records relating to Exhibit P2 and quash the last w.p.c.23741/05 3 line 'limiting the pay and allowances equal to the subsistence allowances already drawn' by the issue of a writ of certiorari or other appropriate writ or order. (c) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to grant full salary and allowances for the period of suspension from 2.1.1995 to 4.12.1997 forthwith.” 3. I have heard the learned counsel for the petitioner and the learned Government Pleader . 4. At the outset I must note that this writ petition is bad for non-joinder of parties. The petitioner was a teacher in an aided school. His employer was the manager. Power to impose punishment on a teacher in an aided school rests with the manager, subject, of course, to the supervisory control of the educational authorities. But that does not mean that the manager has no say in the matter in so far as it is the manager who is to suspend a teacher, impose the punishment on him and order his reinstatement. Being the employer, the manager does have a say on the question of treating the suspension period on reinstatement. In fact, in the first instance, it is the manager who has to pass orders as to how the period of suspension is to be treated. Since the petitioner has not chosen to implead the manager, this writ petition is bad for non-joinder of parties. 5. Secondly, the petitioner has drafted this writ petition as if he had challenged the punishment imposed on him by filing O.P.No. 24775/2001. But this does not appear to be correct. In Ext.P2, the history of the case is narrated as follows in paragraphs 2 and 3: w.p.c.23741/05 4 “2. The history of the case is as follows:- The petitioner was placed under suspension on 2.1.1995 pending disciplinary action and formal enquiry for charges of misconduct. Preliminary enquiry and the formal enquiry conducted by the Assistant Educational Officer, Ottappalam as per Rule 67(8) Chapter XIVA. K.E.R. and found that the petitioner was guilty of charges. Based on the charges, the Manager sought permission to impose a penalty of dismissal from service as per Rule 65(VI) of Chapter XIV A. K.E.R. The petitioner filed Writ Appeal No.1527/96 and the High Court directed the Assistant Educational Officer to pass order on the request of the Manager. As there as no provision in K.E.Rs. for reduction of pay to a lower Grade the request was rejected by the Assistant Educational Officer and District Educational Officer. But they did not find reason to reinstate the petitioner before finalisation of disciplinary action as the offence committed was punishable. Against this the petitioner filed O.P.2914/97. The petitioner was re-instated in service as per G.O(Rt) 3417/97/G.Edn. dated 1.10.97. This was challenged by the Manager in O.P.19115/97. But as per directions from the Court, the Manager re-instated the petitioner and was asked to finalise disciplinary action against the petitioner. Against this the petitioner filed O.P.No. 300/99. By then the Manager finalised the disciplinary action and ordered to withhold 2 increment of the petitioner. The Hon. High Court in O.P.19115/97 upheld this punishment and directed the Assistant Educational Officer to approve the same. 3. The petitioner filed another O.P.24775/01 before the Hon. High Court in which the court has passed orders on 6.9.01 quashing Ext.P6 order, letter No.19423/S2/01/Ge. Edn. dated 4.7.2001 and directed Government to consider afresh Ext.P5 representation dated 12.4.2001 after conducting a hearing in the matter. Accordingly Government have examined Ext.P5 representation in detail and suspension period of the petitioner was ordered to be treated as eligible as per the G.O. read as first paper above.” (underlining supplied) From the same, it is abundantly clear that this Court had in O.P.No. 19115/1997 upheld the punishment of withholding of two increments imposed on the petitioner and directed the Assistant Educational Officer to approve the same. The petitioner has no case that the petitioner had challenged that judgment further. Therefore, the punishment of barring of two increments imposed on the petitioner has become final. A reading of paragraph 3 quoted above from Ext.P2, w.p.c.23741/05 5 shows that O.P.No.24775/2001 was filed by the petitioner challenging the order of the Government, wherein the suspension period was directed to be treated as eligible leave. Therefore, the averment of the petitioner in the writ petition that he challenged the punishment imposed on him by filing O.P.No. 24775/2001 is clearly false. 6. When this Court had in O.P.No.19115/1997 upheld the punishment of barring of two increments, which has become final, the Government had no power to interfere with the same, which appears to be what has been done in Ext.P2 going by the wording used in Ext.P2. But the Government Pleader would contend that Ext.P2 order was not intended to interfere with the punishment imposed on the petitioner but the same was only an order on the question as to how the period of suspension of the petitioner should be treated, although the counter affidavit also subscribes to the view that the O.P.No.24775/2001 was filed against the order of punishment. Whatever that be, when this Court upheld the punishment imposed on the petitioner, the Government or any other authority, than an appellate court, could not interfere with the same. I am not inclined to consider this writ petition on merits since the petitioner has not come before this Court with clean hands. After having suffered a judgment by this Court upholding the punishment imposed on him, he has come before this Court stating that he challenged the punishment in O.P.No.24775/2001, which original petition was in fact one filed w.p.c.23741/05 6 challenging the order of the Government treating his suspension period as eligible leave. Therefore, I am of opinion that the petitioner is a person who has rendered himself unfit for exercise by this Court of its discretionary powers under Article 226 of the Constitution of India. 7. Apart from that, I am of opinion that Ext.P5 cannot govern the issue. Under Rule 56B, of Part I, the KSR confers a discretion on the authority competent to reinstate the employee to order full pay and allowances, if he is of opinion that the suspension was wholly unjustified. The Manual of Disciplinary Proceedings and Ext.P5 amending the same cannot amend Rule 56B. In private employment, where the Kerala Payment of Subsistence Allowance Act applies, an employee suspended pending enquiry is entitled to balance salary only if he is exonerated from the charges. Once the employee is found guilty, whatever be the punishment imposed, he is not entitled to salary other than the subsistence allowance paid to him. I am unable to persuade myself to hold that in Government service, where the employee is being paid from public funds, a person found guilty of misconduct should be paid salary in full or part, other than the subsistence allowance, without a finding that the suspension was wholly unjustified. When the guilt is found, then the suspension can only be held to be wholly justified. If that be so, there is no logic in wasting public money on an employee found guilty of misconduct, merely because the punishment imposed on him is minor. In any w.p.c.23741/05 7 case, that is a discretion vested with the person empowered to reinstate the employee, which in this case is the manager and not the Government. The Government can only exercise revisional powers against orders of the Manager and does not have original jurisdiction in the matter. For all the above reasons, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner, who is guilty of suppression of material facts and misleading this Court. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge