IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 30011 OF 2021
PETITIONER:
SREE VIDHYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE
MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM - 695
020, REP. BY ITS MANAGER DR.R.AJAYKUMAR.
BY ADVS.
N.NANDAKUMARA MENON (SR.)
P.K.MANOJKUMAR
P.M.SANEER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, AYUSH
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM -
695
2 PRINCIPAL & CONTROLLING OFFICER
GOVT. HOMOEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM,
THIRUVANANTHAPURAM - 695 001.
3 DR.SHYLAJA K.NAIR
W/O.DR.D.RAJASEKHARAN, SREE VINAYAKOM, TC 54/165-2,
PRA 118A, PAPPANAMCODE, THIRUVANANTHAPURAM- 695 018.
BY ADV PIRAPPANCODE V.S.SUDHIR
SMT PARVATHY K-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.P.(C)No. 30011 of 2021
JUDGMENT
Dated this the 3rd day of June, 2022.
Sree Vidhyadhiraja Homoeopathic Medical College, which is operating under a Direct Payment Agreement (DPA) with the Government of Kerala, has approached this Court impugning Ext.P7 order, whereby, certain amounts found eligible to the 3rd respondent - who had been earlier placed under suspension, but exonerated subsequently - have been directed to be "recouped" and recovered from them. They assail Ext.P7 on various grounds but primarily that there is no legal sanction - either statutory or otherwise - to order "recouping" of any amounts paid legitimately to the 3rd respondent.
2. Sri.N.Nandakumara Menon - learned Senior 3 W.P.(C)No. 30011 of 2021 Counsel, instructed by Sri.P.M.Saneer, appearing for the petitioner, argued that Ext.P7 falls foul of every statutory stipulation because there is nothing in any of the provisions of law which permits "recouping" of amounts paid under lawful judicial orders to the 3 rd respondent. He then argued that even if it is assumed - without admitting, that 3rd respondent was unfairly kept under suspension and then paid salary consequent to the judicial orders, this would not amount to any indiscretion on the part of his client because, as is evident from Ext.P2, the learned University Appellate Tribunal has issued the order with the Government on the party array as the 2nd respondent.
3. The learned Senior Counsel, thus predicated that even assuming that the suspension and disciplinary action against the 3rd respondent was irregular, as has 4 W.P.(C)No. 30011 of 2021 been found by the various judicial Forums, it cannot be used to the detriment of his client, particularly since such amounts, in any case, ought to have been paid by the Government had she not been subjected to such proceedings. The learned Senior Counsel thus prayed that Ext.P7 be set aside.
4. In response, the learned Senior Government Pleader - Smt.Parvathy K., argued in support of Ext.P7 saying that under the "DPA", the Government has the power to take necessary action against the Management for illegal and unlawful actions. She submitted that it is on the account of the malafide and unlawful action of the Management, that 3rd respondent was placed under suspension and thereafter asked to be regularized in service by the competent judicial Forums, including through Ext.P2 order. She argued that, therefore, the 5 W.P.(C)No. 30011 of 2021 Government was well within its powers to have issued Ext.P7 and prayed that this writ petition be dismissed.
5. I have considered the afore syllogistical contentions on its merits very intently.
6. Several issues arise in this writ petition, namely, as to whether Government has the statutory right to have issued an order akin to Ext.P7 directing amounts to be "recouped" from the petitioner Management; if such amounts would have been directed to be reimbursed by them, particularly when the 3 rd respondent was, in any event, entitled to such amounts had she not been paced under suspension; and if the petitioner had been validly notified and heard before the said order had been issued. As regards the question relating to the legal capacity of the Government to seek reimbursement of amounts paid by them to the 3 rd 6 W.P.(C)No. 30011 of 2021 respondent, admittedly, there is no statutory provision empowering them to do so, but the argument of Smt.Parvathy K. - learned Government Pleader, is that the "DPA" provides for such provisions. Even if this is accepted to be true, the further question would arise whether the amounts paid to the 3rd respondent are ones that could have been asked to be reimbursed by the Management, particularly when it is conceded that, had she been not placed under suspension and proceeded against disciplinarily she would have been fully eligible to the said amounts.
7. In the afore perspective, it is only those amounts which may have had to be paid by the Government in excess - namely, by way of penalties or compensation or interest - which could have been, at the best, be ordered to be "recouped" from the petitioner. 7 W.P.(C)No. 30011 of 2021
8. That said, Ext.P7 is conspicuously absent as to whether a show cause notice had been issued to the petitioner management before it had been issued. This is crucial because, had the petitioner been notified that the Government intends to recover the amounts paid to the 3rd respondent pursuant to the judicial orders, they would have certainly be in a position to answer it through cogent and reliable methods, but Ext.P7 discloses that no such opportunity had been given to them. For this reason also, I am certainly of the view that the entire matter will require to be reconsidered by the Government, taking note of the afore observations.
In the afore circumstances, I order this writ petition and set aside Ext.P7 to extent to which it has ordered "recouping" of the amounts paid to the 3rd respondent consequent to judicial orders. The Government will 8 W.P.(C)No. 30011 of 2021 certainly be at liberty to initiate fresh action in terms of law, after following due procedure, however, adverting to the afore specific contentions of the petitioner, particularly, that there is no legal sanction for issuing an order like Ext.P7 and that, in any case, no amounts can be "recouped" from them especially, when the same was paid to the 3rd respondent legitimately and which she would have been entitled to, had she been not placed under suspension and subjected to disciplinary action, which has now been found to be incorrect.
Sd/-
DEVAN RAMACHANDRAN JUDGE Raj/03.06.2022.
9W.P.(C)No. 30011 of 2021 APPENDIX OF WP(C) 30011/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE SECRETARY TO GOVERNMENT AND THE SAMAJAM, DATED 21/06/2003.
Exhibit P2 A TRUE COPY OF THE UNIVERSITY APPELLATE TRIBUNAL JUDGMENT IN APPEAL NO.2/2017, DATED 08/01/2020.
Exhibit P3 A TRUE COPY OF THE COMMUNICATION LETTER NO.B2/18/2020/SVHMC DATED 16/03/2020, ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 08/12/2020 IN WPC NO.25027/2020 OF THIS HONORABLE COURT.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 25/08/2021 COC NO.806/2021 OF THIS HONORABLE COURT.
Exhibit P6 A TRUE COPY OF THE ORDER NO.SVVS/74/21, DATED 13/08/2021 ISSUED BY THE PETITIONER.
Exhibit P7 A TRUE COPY OF ORDER GO(RT) NO.472/2021/AYUSH 26/11/2021 ISSUED BY THE 1ST RESPONDENT WITH TYPED COPY.
RESPONDENT EXHIBITS 10 W.P.(C)No. 30011 of 2021 Exhibit R3(A) TRUE COPY OF THE INTERIM ORDER DATED 22/12/2021 IN CON.CASE(C)NO. 1988/2021