IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 33999 of 2007(V) --------------------------------------- PETITIONERS: --------------------- 1. M.NARAYANIKUTTY, PRINCIPAL (ON LEAVE), COCHIN COLLEGE, KOCHI. 2. P.SURESH PAI, SENIOR SUPERINTENDENT, COCHIN COLLEGE, KOCHI. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 3. THE MANAGER, COCHIN COLLEGE, KOCHI. 4. THE PRINCIPAL-IN-CHARGE, COCHIN COLLEGE, KOCHI. ADV. SRI.A.JAYASANKAR FOR R3,4 SRI.MANU GOVIND FOR R3,4 R1 & R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33999 OF 2007-V APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF LETTER NO.14113/F3/07/H.EDN. DATED 18.8.2007 OF THE 1ST RESPONDENT TO THE 3RD RESPONDENT EXT.P2 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP(C)NO.26478/07 DATED 5.9.2007 EXT.P3 TRUE COPY OF THE LETTER DATED 20.9.2007 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXT.P4 TRUE COPY OF THE LETTER NO.D2/2007 DATED 11.9.2007 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXT.P5 TRUE COPY OF THE LETTER DATED 14.9.2007 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXT.P6 TRUE COPY OF THE LETTER NO.7549/07 DATED 1.10.2007 OF THE 2ND RESPONDENT TO THE SUB TREASURY OFFICER, MATTANCHERRY EXT.P7 TRUE COPY OF THE LETTER NO.7550/07 DATED 11.10.2007 OF THE 2ND RESPONDENT TO THE SUB TREASURY OFFICER, MATTANCHERRY. EXT.P8 TRUE COPY OF THE REPRESENTATION DATED 15.10.2007 SUBMITTED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 17.10.2007 SUBMITTED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT EXT.P10 TRUE COPY OF THE LETTER NO.DD2/2007 DATED 17.10.2007 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXT.P11 TRUE COPY OF THE LETTER DATED 28.10.2007 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT EXT.P12 TRUE COPY OF THE RELEVANT PORTION OF THE G.O.MS NO.5/2002 H.EDN. DATED 15.1.2002 EXT.P13 TRUE COPY OF THE G.O.(MS) NO.33/2002/H.EDN. DATED 11.4.2002 EXT.P14 TRUE COPY OF THE GOVT. LR.NO.20661/A3/2003 DATED 18.8.2003 EXT.P15 TRUE COPY OF THE PENSION COMMUNICATION ORDER NO.130828564 DATED 28.8.2008 ISSUED BY THE ACCOUNTANT GENERAL EXT.P16 TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.120828564 DATED 28.8.2008 ISSUED BY THE ACCOUNTANT GENERAL EXT.P17 TRUE COPY OF THE CERTIFICATE NO.CC/PENSION/2008 DATED 15.9.2008 ISSUED BY THE PRINCIPAL, COCHIN COLLEGE, KOCHI. RESPONDENTS' EXHIBITS: EXT.R2(A) TRUE COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, VACB, ERNAKULAM DATED 20.4.2005. / TRUE COPY / S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 33999 OF 2007 ------------------------------------------------- Dated this the 11th day of June, 2009 JUDGMENT The petitioners are the Principal and Senior Superintendent of Cochin College, Cochin, an aided college, of which the 3rd respondent is the Manager. On allegation that a criminal case has been registered against the petitioners, the Government, by Ext.P1 order directed the 3rd respondent Manager to place the petitioners under suspension. That was challenged by the petitioners before this court in WP(C) No.26478/07. In that writ petition, by Ext.P2 judgment, this court held that the Government cannot before giving the manager an opportunity to take disciplinary action, issue such an order. However, this court directed that Ext.P1 be treated by the manager as a letter conveying the information to the manager that a criminal case has been registered against the petitioners and and that it is for the manager to consider the matter independently and to take a decision without prejudice to the right of the Government to take appropriate action, if the manager does not take appropriate action as contemplated by law, if such action is warranted in the facts of the case. Thereafter in order to consider the question as to WPC : 33999/07 -:2:- whether disciplinary proceedings are to be initiated, the manager addressed the Government to forward a copy of the report submitted by the Director of Vigilance(Investigation)based on which the criminal case has been registered, for which, according to the manager, he is entitled as per Statute 84(2) of Chapter 45 of the Mahatma Gandhi University Statutes, 1997. The Government did not choose to forward the report to the manager. However, by Ext.P4 the 2nd respondent again directed the manager to take action as contained in Ext.P1 letter. Despite further communications also, the Government did not forward the copy of the report of the Director of Vigilance (Investigation) as requested by the manager and therefore the manager did not take any action. The 1st petitioner was on leave from 01.06.07 to 27.11.07. while so when the salary bills of the petitioners were presented for the month of September, 2007, the Deputy Director of Education directed the Sub Treasury Officer, Mattanchery that, as the manager disobeyed the Government direction, leave salary of the former Principal and Superintendent shall be withheld. It was also stated that the action is as per “No.64 of Gandhi University Act” and that detailed letter will be forwarded WPC : 33999/07 -:3:- later. The endorsement in this regard is contained in Exts.P6 and P7 communications from the Deputy Director, Collegiate Education to the Sub Treasury officer, Mattanchery. Thereafter by Ext.P10 the manager was informed that since he has not complied with the direction of the Government, further bills for payment of salary to the petitioners need not be forwarded. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. a writ of certiorari quashing/setting aside the direction in Exts.P.P6, P7 and P10 for withholding the salary of the petitioners. ii. A writ of mandamus to the 2nd respondent to release and disburse the salary due to the petitioners for the month of September 2007 onwards on presentation of Bills by the 4th respondent. iii. A writ of mandamus to the 4th respondent to present the salary bills of the petitioners for the month of September onwards for counter signature of the 2nd respondent.” 2. The petitioners' contention is that there is no default on the part of the manager in complying with the direction, insofar as for complying with the direction the manager would necessarily need a report of the Director of Vigilance(Investigation). Since in spite of requests the same was not forwarded by the Government, the WPC : 33999/07 -:4:- manager could not have validly initiated any disciplinary action against the petitioners is the contention of the petitioners. It is further submitted that even if the manager has wrongly failed to take action, for such inaction the salary of the petitioners cannot be withheld. The further submission is that reliance by the Deputy Director on Section 64 of the Mahatma Gandhi University Act is also misplaced, insofar as Section 64 does not authorise withholding of any salary to any teacher. 3. No counter affidavit has been filed by the Government. The 2nd respondent, Deputy Director, has filed a counter affidavit by which he seeks to support Exts.P6, P7 and P10. The history of the criminal case against the petitioners has been detailed in the counter affidavit and it is stated that since despite the direction of the Government and the directions in Ext.P.P2 judgment of this court, the manager has not taken any proceedings as directed, the Deputy Director is perfectly justified in withholding the salary of the petitioners. 4. I have considered the rival contentions in detail. For withholding the salary of an employee of an aided college he must either be under suspension or he must have been on leave without WPC : 33999/07 -:5:- allowances or unauthorised absence or he must cease to be an employee of the College. Here the respondents have no case that the petitioners have been placed under suspension or the other contingencies have arisen. By Ext.P1 the Government only contemplated disciplinary action pursuant to which the Government directed the manager to suspend them. This court by Ext.P2 judgment held that the Government cannot issue such a direction and therefore Ext.P1 was directed to be considered as a communication regarding the pendency of the criminal case and it was directed that the manager shall independently consider the question as to whether the petitioners should be proceeded against in disciplinary action. If the manager has not complied with the direction of the Government, there are provisions under Section 64 itself for taking appropriate action against the petitioners which the Government has not chosen to do. Other provisions of the Act authorises action against the manager if the manager does not comply with the directions of the Government. If the manager does not comply with the directions of the Government to initiate disciplinary action against the petitioners the Deputy Director does WPC : 33999/07 -:6:- not have any powers to withhold the salary of the petitioners. As rightly pointed out by the learned counsel for the petitioners, the reliance by the Deputy Director on Section 64 of the Mahatma Gandhi University Act is clearly misplaced. Section 64 reads thus: “64. Disciplinary powers of Government over teachers of Private Colleges:- (1) Notwithstanding anything contained in this Act or in the Statutes, Ordinances or Regulations and subject to such rules as may be made by Government in this behalf, the Government or such officer not below the rank of Deputy Director of Collegiate Education, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceedings against a teacher of a private college and to impose upon him all or any of the penalties specified by or under this Act: Provided that before exercising the powers under this sub- section, the Government or the authorised Officer, as the case may be, shall intimate the manager regarding the circumstances requiring disciplinary action against the teacher concerned and give the manager a reasonable opportunity of taking disciplinary action and the Government or the authorised Officer, as the case may be, shall take disciplinary action against the teacher only if the manager fails to take appropriate disciplinary action. (2) The Government or the officer authorised under sub-section (1) as the case may be, may suspend a teacher of a private college when any disciplinary proceedings is proposed to be taken against him under that sub-section or when such disciplinary proceedings are pending.” WPC : 33999/07 -:7:- It only stipulates that if the Deputy Director is authorised in this behalf and if the manager, in spite of the directions from the Government, does not initiate disciplinary proceedings against a teacher or employee, the Deputy Director can initiate disciplinary action. Nothing prevented the Government from taking appropriate action by authorising the Deputy Director to take disciplinary action against the petitioners and in such an event the Deputy Director could have taken disciplinary action against the petitioners. The Government has not even chosen to put the petitioners under suspension. If the petitioners are not under suspension, salary due to them could not have been validly withheld. In any event, Section 64 does not authorise the Deputy Director to withhold the salary due to the petitioners. 5. In the above circumstances I am satisfied that, Exts.P6 and P7 to the extent it directs the Sub Treasury Officer to withhold the payment of the salary of the petitioners and Ext.P10 which directs the manager not to present salary bills of the petitioners are clearly illegal and unsustainable. Accordingly they are quashed. 6. It is submitted that the 1st petitioner has already retired from WPC : 33999/07 -:8:- service on 30.06.08. It is declared that as long as there is no suspension of the petitioners and there is no order by a competent authority withholding the salary of the petitioners, the 2nd respondent has no authority to withhold the salary due to the petitioners. The arrears of salary due to the petitioners shall be disbursed within two months from the date of receipt of a copy of this judgment. For this purpose the 4th respondent shall forward the necessary salary bills to the Deputy Director for endorsement and for forwarding to the Sub Treasury Officer. The 2nd petitioner shall be continued to be paid salary every month, until he is either suspended or a valid order is passed by the competent authority withholding his salary. I further direct that the issue of Exts.P6, P7 and P10 shall not be a ground for withholding the retirement benefits due to the 1st petitioner, which is already authorised by the Accountant General as evidenced by Exts.P15 & P16. The writ petition is allowed to the above extent. S. SIRI JAGAN, JUDGE ttb WPC : 33999/07 -:9:-