IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 OP.No. 1735 of 2003(F) ---------------------- PETITIONER: ------------ T.RAMACHANDRAN, L.P.SCHOOL ASSISTANT, GOVERNMENT L.P. SCHOOL, EZHUKUDIKKAL, P.O. EDAKULAM, KOYILANDY, KOZHIKODE DISTRICT BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.C.P.SIVADASAN NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM 3. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. ASSISTANT EDUCATIONAL OFFICER, KOYILANDY. 5. ASSISTANT EDUCATIONAL OFFICER, MELADI 6. P.K.NARAYANAN, RETIRED HEADMASTER, ALP SCHOOL, NARAKODE, KEEZHARIYOOR, KOYILANDY, KOZHIKODE. BY SHRI.T.T.MAHMOOD, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON 12/02/2008 DELIVERED THE FOLLOWING: O.P.NO. 1735/2003 ORDER ON CMP NO.3135/2003 IN O.P.NO. 1735/2003 DISMISSED. 12/02/2008 SD/- (S.SIRI JAGAN, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE ORDER NO.A.3778/96 DATED 09/12/1996 ISSUED BY THE 5TH RESPONDENT. P2 : COPY OF THE PROCEEDINGS NO.33660/86 DATED 24/02/1987 ISSUED BY THE 3RD RESPONDENT. P3 : COPY OF THE PROCEEDING DATED 04/03/1987 OF THE HEADMASTER OF NARAKODE ALP SCHOOL, KEEZHARIYOOR. P4 : COPY OF THE ORDER BEARING NO.G.O.(RT) 2892/02/GE DATED TVM. 02/09/2002 ISSUED BY THE 1ST RESPONDENT. P5 : COPY OF THE PROCEEDING NO.E/2681/95 DATED 18/09/2002 ISSUED BY 5TH RESPONDENT. P6 : COPY OF THE ORDER BEARING NO.B.6302/2003 DATED 29/10/2002 ISSUED BY THE 4TH RESPONDENT. P7 : COPY OF THE REPRESENTATION DATED 18/11/2002 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. // TRUE COPY // PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P. No.1735 OF 2003 ---------------------------------------- Dated this the 12th day of February, 2008 JUDGMENT The petitioner joined service of the ALP School, Narakode in Kozhikode District as an unqualified teacher on 9.6.1982 which appointment was approved by the 5th respondent by Ext.P1 order. Later on, the petitioner acquired the necessary qualification for continuing as a teacher. But by Ext.P2 order, the petitioner was appointed as a protected teacher at G.W.L.P. School, Velliyode in Kozhikode District, pursuant to which he ceased to be a staff of the Narakode ALP School. Later on when the student - strength of the Narakode ALP School increased warranting additional divisions, the petitioner was called back to the School and the petitioner rejoined that School. While the petitioner was so continuing, allegations were raised that the petitioner was unauthorisedly permitted to continue in service in the School during 1994-95 by inflating the student - strength artificially. The petitioner submits that by order No.K.Dis.76/95/KKD dated 1.4.1996, the 2nd respondent directed the 6th respondent herein O.P. No.1735/2003 2 to refund an amount of Rs.46,822/- on the finding that the Headmaster was responsible for inflating the student - strength and permitting the petitioner to continue in the School. The petitioner submits that he has never been served with a copy of that order. However, the 6th respondent filed an appeal against the said order of the 2nd respondent before the 1st respondent, in which Ext.P4 order was passed by the 1st respondent apportioning the liability for payment of the said amount of Rs.46,822/- between the Headmaster and the petitioner in the ratio of 50:50. Based on the same, EXts.P5 and P6 orders were also passed by which the recovery of an amount of Rs.23,411/- was ordered from the salary of the petitioner. The petitioner challenges Exts.P4, P5 and P6 orders in this original petition. 2. The petitioner’s contention is that the petitioner is not in any way liable for the inflated student - strength and he was not a party to the alleged fraud committed by the 6th respondent - Headmaster and therefore he could not have been made liable for payment of any amount. He would further submit that even if the petitioner was retrenched for want of sufficient student - strength, since he was entitled to O.P. No.1735/2003 3 protection, he would have been entitled to salary for the said period as a protected teacher and therefore he would not benefit in any manner by being party to such a fraud. He also submits that before passing Ext.P4 order he was not served with any notice or hearing and therefore Ext.P4 order is violative of principles of natural justice also. 3. The 1st respondent has filed a counter affidavit, in which they seek to justify the impugned orders. According to the 1st respondent, the petitioner continued in the School without a sanctioned post only because of bogus admissions during 1994-95 and therefore he was not entitled to continue in that School for the year. Therefore according to them, the petitioner was party to the fraud for which he must also be saddled with the liability to refund 50% of the salary received by him during the said period. 4. I have considered the rival contentions in detail. At the out set, I must note that respondents 1 to 5 have no case that before passing Ext.P4 order, the petitioner was given any notice or hearing. When it is proposed to saddle the petitioner with liability to pay such a large amount that could not have been done without affording the petitioner an opportunity of O.P. No.1735/2003 4 being heard, which has not evidently been done in this case. There is no averment in the counter affidavit that such an opportunity was given to the petitioner also. Therefore Ext.P4 order and consequentially EXts.P5 and P6 orders are liable to be quashed on that ground alone. 5. I am also inclined to consider the matter on merits. I am of opinion that regardless of whether the petitioner would have had a place in the particular School for 1994-95 or not, he would have been entitled to the same salary either as a teacher of that School or as a protected teacher in another School. Therefore the petitioner does not gain anything financially by being a party to the fraud allegedly perpetrated by the 6th respondent - Headmaster. No other motive for the petitioner is also suggested even in the impugned order. As such, the petitioner could not have been saddled with the liability to pay any part of the salary received by the petitioner on account of the alleged fraud stated to have been committed in the matter of bogus admissions of students. Therefore on merits also, the petitioner could not have been saddled with the liability to pay 50% of the amounts as done in Exts.P4,P5 and P6 orders. Accordingly, Exts.P4 to the extent it saddles O.P. No.1735/2003 5 the petitioner with liability to refund 50% of the salary received by him for the period in question and Exts.P5 and P6 orders are quashed. 6. The learned Government pleader submits that liberty may be reserved to respondents 1 to 5 to recover the balance 50% also from the 6th respondent Headmaster. I am not expressing any opinion on that. It is up to respondents 1 to 6 to take appropriate steps in the matter, if they are so entitled to. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P. No.1735/2003 6