IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 OP.No. 22483 of 1999(B) --------------------------------- PETITIONER(S): ------------------------ M.S.SUBRAMANI, S/O. G.MEENAKSHI, SUNDARAM, AGED 38 YEARS, RESIDING AT T.C. 23/770, VALIYASSALAI, STREET, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY CHIEF SECRTARY, GOVT. OF KERALA SECRTARIAT, TRIVANDRUM. 2. SECRETARY, HIGHER EDUCATION, GOVT. OF KERALA, SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR, TECHNICAL EDUCATION, GOVT. OF KERALA, TRIVANDRUM. 4. SUB-TREASUREY OFFICER, KAZHAKUTTOM, GOV. ENGINEERING COLLEGE COUNTER, TRIVANDRUM. 5. THE PRINCIPAL GOVT. ENGINEERING COLLEGE, TRIVANDRUM. GOVERNMENT PLEADER SRI.K.J.MOHAMMED AHZAR FOR R1 TO R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.22483/1999 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE BOND EXECUTED BY THE PETITIONER DT. JUNE 92. P2:- COPY OF THE COMMUNICATION DT. 5.6.93 ISSUED TO THE DIRECTOR IIT BY THE PETITIONER. P3:- COPY OF THE REMINDER SUBMTITED BY THE PETITIONER. P4:- COPY OF THE REPORT DT. 18.6.93 OF THE COUNCILING OF PSYCHATRIC UNIT OF SOMA. P5:- COPY OF THE LETTER DT. 18.6.93 ISSUED BY THE IIT, BOMBAY. P6:- COPY OF THE LETTER DT. 12.8.93 ISSUED BY THE IIT, BOMBAY. P7:- COPY OF THE RELIEVING CERTIFICATE DT. 5.10.93 ISSUED BY THE IIT BOMBAY. P8:- COPY OF THE REPRESENTATION SUBMTITED BY THE PETITIONER DT. 25.10.93. P9:- COPY OF THE SHOW CAUSE NOTICE DT. 5.1.94 TO THE PETITIONER. P10:- COPY OF THE MEMO ISSUED BY RESPONDENT 3 TO THE PETITIONER DT. 3.3.94. P11:- COPY OF THE REPRESENTATION DT. 23.5.94 SUBMTITED BY THE PETITIONER TO THE 2ND RESPONDENT. P12:- COPY OF THE LETTER ISSUED BY R2 TO THE PETITION DT. 16.1.95. P13:- COPY OF THE LETTER DT. 17.10.94 ISSUED BY THE IIST, BOMBAY. P14:- COPY OF THE REPRESENTATION DT. 19.4.95. P15:- COPY OF THE NOTICE DT. 29.7.98, ISSUED BY THE 3RD RESPONDENT. P16:- COPY OF THE REPRESENTATION DT. 4.11.98. P17:- COPY OF THE JUDGMENT DT. 5.2.99 IN OP. NO.2260/99. P18:- COPY OF THE ORDER DT. 2.6.94 OF THE IST RESPONDENT. P19:- COPY OF THE LETTER DT. 29.6.99. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== O.P.No. 22483 of 1999 ================== Dated this the 12th day of January, 2009 J U D G M E N T The petitioner joined the Government Engineering College Thiruvananthapuram, as a lecturer on 17.8.1997. The 1st respondent- Government introduced Quality Improvement Programme (QIP) by which, teachers could obtain post graduate degree in their faculty on deputation basis. During the period of such studies, the Government would pay salary to such lecturers. The petitioner applied for M.Tech. Course in I.I.T. Bombay under the QIP, which was sanctioned and the petitioner was relieved from duty on 19.7.1992 to undergo the course at Bombay. The petitioner joined the course on 26.7.1992. At the time of relieving, the petitioner had executed a bond, Ext.P1, with the Government, in which it was stipulated that in the event the petitioner failing to complete the studies successfully or discontinuing the higher studies without explicit prior permission from the Government, the petitioner would be liable to pay to the Government all moneys paid to the petitioner or spent by the Government by way of deputation allowance. While he was undergoing his studies at Bombay, he met with a road accident within the premises of the IIT on 6.3.1993. He suffered a head injury, for which he was treated in the hospital of the institute. However, on account of the injury and consequent complications the petitioner could not participate in the course for o.p.22483/99 2 sometime. He failed in two papers. Subsequently he developed further complications. He was air-lifted to Thiruvananthapuram, where he was undergoing treatment. As a result of the treatment, he lost two semesters. Therefore, he requested the I.I.T. Bombay for extension of time to complete his studies. By Ext.P5, the petitioner was told that he can discontinue the studies for the present and rejoin the course along with the 1994-95 batch and complete the course. For the purpose of production before the Government, the petitioner requested the I.I.T. Bombay to issue a letter to this effect. Accordingly, the IIT issued Ext.P6 letter to the petitioner. By Ext.P7, a relieving certificate was also issued by the IIT to the effect that he was relieved from the institute on 30.4.1993. Thereafter, the petitioner submitted Ext.P8 request before the 3rd respondent-Director of Technical Education seeking extension of time to complete the course by attending one semester and another semester for completing the project as required. No reply to Ext.P8 has been given to the petitioner. However, by Ext.P9 dated 5.1.1994, the petitioner was directed to showcasue as to why disciplinary proceedings should not be taken against him for getting himself relieved from I.I.T. Bombay on 30.4.1993 without prior permission from the Department. Although the petitioner filed an explanation detailing the circumstances under which he was forced to discontinue his studies, by Ext.P10 dated 3.3.1994 the petitioner was directed to show cause why an amount of Rs.83,893/- paid to the o.p.22483/99 3 petitioner during the period of study together with penalty of Rs.10,000/- should not be recovered from the petitioner for discontinuing the studies without prior permission as provided in Ext.P1 bond. Again the petitioner submitted a detailed explanation, Ext.P11. By Ext.P12, the petitioner was informed that his explanation contradicts his earlier explanation dated 2.3.1994 and therefore, he was directed to file a more detailed report explaining the petitioner's conduct, through the 2nd respondent. While so, the petitioner was permitted to rejoin duty by Ext.P13 letter dated 17.10.1994. When the petitioner was not paid salary, he filed Ext.P16 representation. Since it was not disposed of, he approached this Court by filing O.P.No. 2260/1999, in which by Ext.P17 judgment, the Secretary of the Higher Education Department was directed to consider the petitioner's representation. Therefore, by Ext.P18 the petitioner was informed as follows; “Government have examined the case in detail (sic) the petitioner was also heard in person. The prayers in the representation dated 4.11.98 has the following three alternatives. 1. To write off the dues of Rs.83,893/- 2. To grant permission to undergo a further semester in IIT Bombay. 3. Grant permission for a fresh deputation for QIP. The Deputy Registrar, IIT Bombay as per his letter No.AD/phil/M.Tech/M95/22 dated 31.1.95 has reported that Sri.M.S.Subramony will not be readmitted to the M.Tech. Programme under the QIP Scheme in IIT, Bombay. Hence there is no further chance for a readmission. o.p.22483/99 4 The question of granting permission for a fresh deputation for QIP arises only after the incumbent gets admission. Regarding Government sanction to regularise the unauthorised withdrawal there was no supporting documents except the IIT's relieving letter. He had not produced any further document during the hearing also. Hence there is no scope to exempt him from the bonded liability. In the circumstances Government dispose of the petition rejecting his requests. However, the Director of Technical Education will issue direction to the Principal, Government Engineering College, Thiruvananthapuram and Treasury Officer to disburse the salary of the petitioner immediately and the petitioner informed accordingly. The Director of Technical Education will drop disciplinary action if any initiated against the incumbent and will take appropriate action to regularise the period of his deputation under QIP.” The petitioner is challenging Ext.P18 order in this original petition. 2. The petitioner's contention is that clause (g) of Ext.P1 bond can be invoked only when the petitioner failed to complete the studies successfully or discontinue the studies without prior permission from the Government on his own volition. According to the petitioner, the petitioner's failure to complete the programme was only because of the unfortunate circumstances arising out of an accident and consequent injuries suffered by him for which he was under treatment, which is not a situation contemplated by the bond and therefore, it cannot be taken that he had voluntarily discontinued the studies. According to him, the same was due to circumstances beyond his control and he was still prepared to complete the programme, if extension of time was granted, for which he made Ext.P8 request. According to the petitioner, the respondents never cared even to consider Ext.P8 request. Without considering Ext.P8 request, the respondents cannot o.p.22483/99 5 take a stand that he had voluntarily abandoned the programme. As far as the allegation that the petitioner got relieved from I.I.T. Bombay without prior permission from the Department, the petitioner submits that he could continue the studies only with the permission of the IIT, for which he wrote to the IIT and received Exts.P5, P6, P7 and P13 replies. Without those replies he could not have approached the Government for appropriate orders regarding the completion of the course. Therefore, it cannot be stated that he got relieved from I.I.T. Bombay without prior permission from the Government. It was only under very compelling circumstances he had to request the I.I.T. Bombay for permission to continue his studies for which they directed the petitioner to discontinue the studies and to apply for rejoining the course along with 1994-95 batch. That cannot be treated as a voluntary termination of the course and getting relieved from the course without prior permission from the Government, is the contention raised. 3. The petitioner also submits that to another similarly situated teacher, who also had not completed the course under the QIP within the stipulated time on medical grounds, the Government themselves had granted extension of time. He has specifically pointed out the case of one Sri.Abdul Rasheed, Lecturer in Mechanical Engineering, in paragraph 7 of the original petition. According to the petitioner, although a counter affidavit has been filed, there is no o.p.22483/99 6 mention whatsoever as to why the petitioner could not be given the very same benefit of extension of time for which he had specifically requested by Ext.P8. The petitioner, therefore, seeks the following reliefs: “A) Declare that Exhibit P18 order is grossly illegal and void ab-initio and the Respondents are not entitled to recovery (sic) any amount under the guise of Exhibit P15 from the petitioner; B) Issue a Writ of Certiorari or any other appropriate Writ Order or direction of the nature of Certiorari quashing Exhibit P18 as grossly illegal and void-abinitio; C) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction of the nature of Mandamus directing the Respondents 1 to 3 not to invoke the provision of Exhibit P1 or realise any amount thereunder; D) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction of the nature of Mandamus directing the Respondents 1 to 3 to effect payment of salary to the Petitioner forthwith including the arrears of salary.” 4. With the help of a counter affidavit filed on behalf of respondents 1, 2, 3 and 5, the learned Government Pleader opposes the prayers of the petitioner. According to Government Pleader, the respondents have correctly invoked Clause (g) of Ext.P1 bond. She points out that as is clear from the letter from the IIT, Bombay, the petitioner got himself relieved from the course without prior permission from the Government, which itself is sufficient to invoke Clause (g). She particularly points out that although the petitioner was liable for disciplinary proceedings also for his conduct, taking into account the peculiar facts and circumstances of case, those proceedings were dropped and only recovery of the amount paid to the o.p.22483/99 7 petitioner during the course was ordered. The Government Pleader points out that none of the documents which the petitioner now relies upon has been produced before the respondents. 5. I have considered the rival contentions in detail. 6. Even assuming that what the Government Pleader submits is correct, I find that Ext.P8 was never considered by the Director of Technical Education. In the counter affidavit no mention whatsoever is made in respect of Ext.P8. That being so, I must assume that Ext.P8 was duly received. By Ext.P8, the petitioner has specifically requested the Director of Technical Education for extension of time to compete the course at IIT Bombay. The petitioner has specifically averred in paragraph 7 of the original petition that one Sri.Abdul Rasheed, Lecturer in Mechanical Engineering, in the same Department as that of the petitioner, was a student in the IIT Bombay in 1991-92 and that he had been given extension of time on medical ground and availing of that benefit, he completed his course in 1993 beyond the original period prescribed for the course. This specific averment of the petitioner in the original petition is not seen controverted in the counter affidavit at all. If Ext.P8 had been answered immediately on receipt of the same, either favourably or against him, the petitioner could have adopted the course of either joining the course in 1994-95 or seeking permission of the Government for discontinuing the studies, if Ext.P8 request had been rejected. Neither course had been adopted o.p.22483/99 8 by the respondents on Ext.P8. It is not disputed before me that the whole situation arose only because of the unfortunate accident suffered by the petitioner, in which admittedly the petitioner had suffered very serious head injury as a result of which, he had to undergo continued treatment, even for psychological imbalance. As such, I am of opinion that the respondents were not correct in proceeding for recovery of the amounts from the petitioner without replying to Ext.P8 request made by the petitioner for extension of time. In fact he has been discriminated in the matter since a similarly situated lecturer had been extended the benefit of extension of time, which was not considered in the case of the petitioner. Even otherwise the circumstances show that the Petitioner had no intention to discontinue the studies and he had done everything he could to complete the course, for which he had sought extension of time, which request was not even considered. I am of opinion that in the petitioner's case, the respondents had taken a too technical and harsh attitude without taking into account the circumstances under which he was forced to discontinue the studies against his own wish. I am of opinion that the Government can also at times extend sympathy to a person who has put in an unfortunate circumstance on account of an accident resulting in serious injuries. That being so, I am of opinion that the matter requires reconsideration at the hands of the 2nd respondent in the light of the above findings. Accordingly, that part of o.p.22483/99 9 Ext.P8 order whereby the petitioner has been directed to reimburse the amounts paid to him for the period of the course as deputation benefit is quashed. The 2nd respondent is directed to reconsider Ext.P16 representation in the right spirit in accordance with the findings hereinabove with the sympathy that the petitioner deserves on account of the peculiar circumstances under which he was forced to discontinue the studies. Orders in this regard shall be passed within three months from the date of receipt of a certified copy of this judgment. The petitioner shall be afforded an opportunity of being heard. The petitioner shall produce all relevant documents to prove his contentions before the 2nd respondent for consideration, which shall be considered by the 2nd respondent in the right perspective, in tune with the sentiment expressed hereinabove. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.22483/99 10 S.SIRI JAGAN, J. ================ O.P.No. 22483 of 1999-B ================ J U D G M E N T 12th January, 2009