IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 OP.No. 29781 of 2000(U) ----------------------- PETITIONER(S): --------------- M.O.V. SUMITRA, MANAGER, KOTTUR AIDED U.P.SCHOOL, KOTTUR, PO.SREEKANTAPURAM KANNUR DISTRICT. BY ADV. MR.P.RAVINDRAN, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, IRIKKUR, 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY FOR EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SPECIAL DEPUTY TAHSILDAR (RR) TALIPARAMBA, KANNUR DISTRICT. BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J ............................................... O.P.No. 29781 of 2000 ................................................. Dated this the 18th day of November, 2009 J U D G M E N T The petitioner is the Manager of an aided school. He suspended two teachers of the school on different dates pending disciplinary action. The educational authorities did not give permission to continue the suspension beyond 15 days for which the petitioner applied as required under Chapter XIV A of the KER. The petitioner filed two writ petitions namely OP Nos. 91 of 1994 and 2228 of 1994 challenging the orders of the educational authorities. This court granted stay, on the strength of which, the teachers continued under suspension. Afterwards, according to the petitioner the teachers submitted apologies for their misconduct accepting which the Manager decided to drop the disciplinary proceedings against them. This fact was reported to this court. Accordingly, by Ext.P1 judgment dated 28.9.1995, in respect of one employee this court passed the following order: “When the matter came up for hearing today, counsels for the petitioner as well as the respondents submitted that the disciplinary proceedings initiated O.P.No. 29781 of 2000 -2- against the 2nd respondent has been withdrawn and that respondents 1 and 3 will disburse the salary and other benefits due to the second respondent.” 2. In respect of the other employee, by Ext.P5 judgment the original petition was closed as follows: “When the matter came up for hearing counsel for the petitioner - Manager submitted that since second respondent has already retired from service, permission may be given for dropping the disciplinary proceedings initiated against the second respondent. Counsel also submitted in view of the above said circumstances, petitioner is not interested in prosecuting this petition. Accordingly, counsel sought for permission to withdraw the OP. Original Petition is dismissed as withdrawn. It is made clear that all disciplinary proceedings initiated against the second respondent be allowed to be withdrawn.” 3. Thereafter the teachers were reinstated. They were paid salary by the educational authorities also. Subsequently, in respect of in Ext.P1 judgment, the Assistant Educational Officer issued Ext.P3 directing the petitioner to remit the pay and allowances paid to the teacher, invoking powers under Rule 67 (8) of Chapter XIV A of the KER. In respect of other teacher, Ext.P6 order has been issued to the same effect. Petitioner filed two appeals against the same as Exts.P4 and P7 before the Deputy Director of Education. By Ext.P11 order dated 7.8.1999, the Deputy Director informed the petitioner that since the Manager is bound to refund the pay and allowances paid to the O.P.No. 29781 of 2000 -3- teachers for the period of suspension, the petitioner’s appeals deserve no consideration. While so, by Ext.P8, the petitioner was directed to pay an amount of Rs.1,28,752/- towards recovery of the pay and allowances paid to the teachers for the period of suspension beyond 15 days. The petitioner is now challenging Exts.P3, P6 and P11 orders. Originally the O.P. was filed without challenging Ext.P11 order of rejection of the appeals. Subsequently the original petition was amended filing I.A. No. 11689 of 2009 including a prayer for quashing Ext.P11 also. 4. The petitioner challenges the impugned orders on two grounds. The first is that before passing Exts.P6 and P3 orders, the petitioner was not afforded an opportunity of being heard. The second is that in so far as the continued suspension of the teachers were as per orders passed by this court, on being prima facie satisfied that suspension is warranted on the basis of the charges against them, simply because subsequently the disciplinary proceedings were dropped accepting the apologies of the teachers, the educational authorities cannot recover from the petitioner the pay and allowances paid to the teachers for the period of suspension. The counsel for the petitioner pointed out that in Ext.P1 it is specifically directed that the Assistant O.P.No. 29781 of 2000 -4- Educational Officer and District Educational Officer will disburse the salary and other benefits due to the teacher. Although, in Ext.P5 judgment, a similar direction was not there, the educational authorities were aware of the continued suspension as per the orders of the court and therefore they cannot simply say that the suspension was unwarranted and therefore the petitioner is liable to refund the pay and allowances paid to the teacher for the period of suspension. The petitioner therefore submits that the action of the respondents in seeking to recover the pay and allowances paid to the teachers is totally unsustainable and liable to be quashed. 5. A counter affidavit has been filed by the 3rd respondent. According to the 3rd respondent, the educational authority rejected the request of the petitioner to allow him to continue the teachers under suspension being satisfied that the charges against the teachers do not warrant keeping them under continued suspension. Simply because the petitioner obtained interim orders from this court, that does not go to show that the suspensions were actually justified. The Government Pleader would submit that the very fact that teachers were reinstated accepting an apology would go to show that the charges did not O.P.No. 29781 of 2000 -5- warrant keeping the teachers under continued suspension. The Government Pleader therefore would vehemently support the impugned orders. 6. I have considered the rival contentions in detail. 7. The petitioner has specifically contended in the writ petition that before issuing Exts.P3 and P6 orders the petitioner was not afforded an opportunity of being heard. Although in paragraph 4 of the counter affidavit it is stated that it is not true that no opportunity was given to the petitioner for hearing, it is not specifically stated anywhere that the petitioner was actually afforded and opportunity of being heard. 8. Exts.P3 and P6 orders do not refer to any notice to the Manager also. As such the Government pleader was not able to satisfy me that Exts.P3 and P6 orders were preceded by a notice and hearing. The contention of the learned Government Pleader is that Rule 67 of the Chapter XIV A of the KER do not contemplate a hearing. I am of opinion that even if such an opportunity is not provided for in the Rules, such an opportunity should be read into the rules since recovery of an amount of more than Rs.1 lakh is certainly an action affecting the civil rights of the petitioner. An action visiting the petitioner with O.P.No. 29781 of 2000 -6- such serious consequences cannot be taken without complying with the principles of natural justice, the primary requirement of which is a hearing. It is very clear that Exts.P3 and P6 orders have been issued without affording an opportunity of being heard to the petitioner. Exts.P3 and P6 orders are liable to be quashed on that ground alone. 9. Apart from that it is not as if the petitioner had suspended the teachers without any reason whatsoever. Although the educational authorities did not give sanction for continuing the teachers under suspension, this court found a prima facie case for such continued suspension of the teachers. There was no final adjudication of the question of validity of such suspension, in so far as the teachers have tendered apology for their misconducts and they were reinstated in service. At least, in Ext.P1 judgment, there is a direction that the educational authorities would disburse the salary and other benefits due to the teacher. The educational authorities were parties to the writ petition. They did not object to the same. They also did not seek a direction to permit them to recover the amount from the petitioner. Without that, it is too late in the day to contend that the educational authorities are entitled to recover the salary paid O.P.No. 29781 of 2000 -7- to the teacher for the period of suspension. Of course, in Ext.P5 judgment, there is no similar observation. This Court allowed the petitioner to continue the teacher under suspension. Since the teacher had retired from service the petitioner dropped the disciplinary proceedings and therefore the original petition was dismissed as withdrawn. There was also no consideration of the matter on merits. In that writ petition also, the DEO was a party. Before this court, he could have insisted for on a direction to the petitioner to pay the salary for the period of suspension. He did not choose to do so. In the above circumstances, I do not think that Exts.P3 and P6 orders are sustainable. Accordingly they are quashed. The original petition is allowed as above. S. SIRI JAGAN, JUDGE rhs