K.P.Raveendran vs The Deputy Director Of Education
2021 Latest Caselaw 15450 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                       WP(C) NO. 25652 OF 2015
PETITIONER:

           K.P.RAVEENDRAN,
           RETIRED HEADMASTER, MAYYANNUR CENTRAL MAPPILA UP
           SCHOOL, RESIDING AT SARAYU, POST, KEEZHAL,VADAKARA,
           KOZHIKODE DISTRICT.

           BY ADV SRI.R.K.MURALEEDHARAN



RESPONDENTS:

    1      THE DEPUTY DIRECTOR OF EDUCATION
           KOZHIKODE - 673 020.

    2      THE ASSISTANT EDUCATIONAL OFFICER
           THODANNUR, VADAKARA, KOZHIKODE DISTRICT -673 101.

    3      HEADMISTRESS
           MAYYANNUR CENTRAL MAPPILA UP SCHOOL,POST MAYYANNUR,
           VADAKARA,KOZHIKODE DISTRICT - 673 101.

    4      THE ACCOUNTANT GENERAL (A&E)
           OFFICE OF THE ACCOUNTANT GENERAL
           (A&E),THIRUVANANTHAPURAM - 695 001.

           BY ADV SRI.MOHANAN V.T.K.


           SRI. P.M.MANOJ - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 25652 OF 2015
                                    2

                              JUDGMENT

The petitioner is stated to have retired as Headmaster of

"Mayyannur Central Mappila U.P.School", Kozhikode District,

and has approached this Court praying that a sum of

Rs.1,54,135/-, being the amount withheld from his retiral benefits,

be directed to be paid with 18% interest. He also prays that

Ext.P8 order and Ext.P13 communication, along with Exts.P9 and

P10 communications, be set aside since, through these, the

competent Authorities have mulcted liability on him, but without

following any procedure and causing any enquiry.

2. Sri.R.K.Muralidharan - learned counsel appearing for

the petitioner, explained his client's case by showing me that,

initially, Ext.P2 charge memo was issued on 19.11.2013, asking to

show cause why an amount of Rs.88,832/-, being the salary

illegally drawn by a teacher by name T.K.Naseema, be not

recovered from him; along with another amount of Rs.65,303/-,

stated to be the deficit in the accounts of the School. He submitted WP(C) NO. 25652 OF 2015

that against Ext.P2, his client preferred Ext.P3 representation

asserting that he is not responsible for any of the amounts,

particularly because Smt.T.K.Naseema, even if she is guilty of

having drawn salary without working actually, is still serving the

School and therefore, can be proceeded against; and that, through

Ext.P4 issued by the 2nd respondent - Assistant Educational

Officer (AEO), Thodannur, some of the figures shown in Ext.P2

as liability, were deleted, though the balance was threatened to be

recovered, as per the provisions of Note 3 to Rule 3 of Part III of

the Kerala State Service Rules (KSR).

3. The petitioner says that he, therefore, approached this

Court by filing WP(C) No.14741/2013, which culminated in

Ext.P6 judgment, whereby, a learned Judge of this Court directed

that the petitioner's entire retiral benefits be disbursed to him, save

an amount of Rs.1,54,135/-, leaving liberty to the respondents to

conduct a proper enquiry, so as to fix final liability against him.

4. Sri.R.K.Muralidharan submitted that pursuant there-to

the retiral benefits, except the aforementioned amount, have been WP(C) NO. 25652 OF 2015

paid to his client; but that, through Ext.P7, his client has been now

notified by the AEO that he is responsible for an amount of

Rs.5,33,780/-. Sri.R.K.Muralidharan alleges that, apart from the

figures shown in Ext.P2, the AEO has now added various others,

including those which are stated to be the liabilities under the

"Sarva Siksha Abhiyan Project", "Mid-Day Meals Project" and

the advance not repaid to the School Co-operative Society. The

learned counsel argued that Ext.P7 is incompetent in law, because

it has been issued without causing any enquiry against his client

and without following any procedure known to law while fixing

such a liability and therefore, prayed that same be set aside.

5. The learned Senior Government Pleader -

Sri.P.M.Manoj, in response, submitted that a counter affidavit has

been filed on behalf of the 2nd respondent, wherein, it has been

explained how the liability against the petitioner has been fixed.

He submitted that, as is clear from the averments in the counter

affidavit, petitioner was properly notified before fixing the

liability and his version was also considered, along with the audit WP(C) NO. 25652 OF 2015

reports and such other relevant documents, in the manner as has

been done in Ext.P7. He submitted that petitioner was favoured

with a statutory notice as per Rule 3 of Part III KSR, inviting his

statement of defence, if any, and that he was also given an

opportunity of being heard, as also to produce documents, if he

was so interested. He submitted that a personal hearing was thus

conducted on 04.12.2014, in which the Officers of the "Sarva

Siksha Abhiyan Project", "Mid-Day Meals Project" were also

invited and that it is after hearing all their versions that liability

was finally fixed. He, therefore, prayed that this writ petition be

dismissed.

6. I have carefully evaluated the rival contentions of the

parties as above and have also assessed the various materials on

record.

7. As rightly stated by Sri.R.K.Muralidharan, petitioner

was issued with Ext.P2 show cause notice only on 19.11.2013,

which is nearly seven months after he retired from service, on

30.04.2013. Apart from the question as to whether such a show WP(C) NO. 25652 OF 2015

cause notice could have been issued after the petitioner retired

from service, it is also pertinent that Ext.P2 only refers to two

heads of liabilities, namely, the amounts drawn by a certain,

Smt.T.K.Naseema, allegedly without Authority; and the amounts

found to be deficit in the School audit. However, when the

petitioner replied to this through Ext.P3, the AEO deleted a few

minor heads from Ext.P2; but confirmed the rest against him,

thus threatening recovery action. The petitioner, therefore, was

constrained to approach this Court and to obtain Ext.P6

judgment, wherein, a learned Judge of this Court made it clear

that except an amount of Rs.1,54,135/-, the balance will have to

be paid to the petitioner and it is conceded that this has been

done.

8. Therefore, as at present, the sole question is whether

petitioner is entitled to receive back the amount of Rs.1,54,135/-

and whether the subsequent assessment of liability against him

through Ext.P7 can be found valid in law.

9. When one examines Ext.P7, it is clear that the WP(C) NO. 25652 OF 2015

petitioner has been mulcted with three other heads of liabilities,

than what was done through Ext.P2.

10. However, what is absolutely crucial in this case is that

the liabilities, mentioned as item Nos.3, 4 and 5 in Ext.P7, have

never been part of a charge sheet served upon the petitioner and

the respondents only say that he was given a statutory notice

under Rule 3 of Part III KSR before the fixation had been done.

The documents also show how the liability has been fixed, but it

is luculent that no procedure, as is mandated in law for fixation of

liability, has been followed therein. The modus adopted by the

Authority in fixing the liability was that petitioner was given a

show cause notice and was asked to explain in the presence of the

Authorities of "Sarva Siksha Abhiyan Project" and "Mid-Day

Meals Project", while being shown the copies of the Audit reports

of the said Authorities. Thereafter, without following any

mandatory procedure as is known to law, Ext.P7 has been issued

fixing a large liability of Rs.5, 33,780/-.

11. At this juncture, it is also worthwhile to see that even WP(C) NO. 25652 OF 2015

though in Ext.P7 the petitioner was mulcted with a liability of

Rs.3,58,406/- as being the short fall in "Mid-Day Meal Project", it

is clear from Ext.P8, that the Headmistress of the School, after

verifying the records, has found that an amount of Rs.16,696/- is,

in fact, in excess in the accounts of the "Mid-Day Meal Project".

Of course, the learned counsel for the petitioner prays that this

amount be also directed to be repaid to his client.

12. It is, therefore, clear that Ext.P7 has proceeded on

surmises and conjectures, but without following any of the

imperative procedures for an enquiry or fixation of liability

against the petitioner. As I have already said above, among the

five heads of liability in Ext.P7 order, Ext.P2 charge sheet covers

only one and two thereof; and there is, admittedly, no charge sheet

or any such proceedings with respect to the heads of liability

Nos.3,4 and 5 therein.

13. Obviously, therefore, the adjudication of liability by

the AEO through Ext.P7, as far as head Nos.3, 4 and 5 are

concerned, cannot find favour in law and will consequently, have WP(C) NO. 25652 OF 2015

to be set aside.

14. That said, the first head of liabilities in Ext.P7 relates

to the salary drawn by a certain Smt.T.K.Naseema, who is still

working in the School; while the second one relates to the

deficiencies found in the Audit of the accounts of the School.

15. As far as the first head is concerned, petitioner is

completely justified in saying that since Smt.T.K.Naseema is still

working in the School, she can be subjected to any enquiry to

verify whether she had drawn salary without attending the School,

as has been stated in Ext.P7. One issue of great importance in this

regard is that even though, in Ext.P2, there is no allegation that

petitioner had fabricated any records as regards the salary drawn

by Smt.T.K.Naseema, Ext.P7 goes one step forward and alleges

that she is guilty of the same also. This has been done without

causing any enquiry, as is required and without satisfying any of

the requirements as is mandated under the KER.

16. Coming to the allegation of loss of money in the Audit

of accounts of the School, an amount of Rs.65,303/- has been WP(C) NO. 25652 OF 2015

found against the petitioner. However, here again, this is only on

the basis of the Audit report and without affording any

opportunity to the petitioner to rebut these allegations; and in any

event of the matter, since the petitioner had already retired as

early as on 30.04.2013 - much before Ext.P2 charge memo had

been given to him - the question arises as to whether even an

enquiry could have been conducted against him. However, even

if it is found that an enquiry could have been so conducted, the

corollary question is whether it was done or whether Ext.P7 has

proceeded on the basis of unilateral action from the side of the

respondents.

17. When I examine Ext.P7 from this angle, it is clear that

no enquiry, as is warranted under the KER, has been conducted

and as I have already said above, petitioner was only asked to

give a statement in the presence of the Officers of the "Sarva

Siksha Abhiyan" and "Mid-Day Meal" Projects; though the

Auditors with respect to the accounts of the School were not

available nor were their statements taken. The AEO simply WP(C) NO. 25652 OF 2015

followed the Audit report obtained by him with respect to the

School and then proceeded to hold the petitioner liable for the

same, but without causing any enquiry as per law.

18. I must also record that at the time when this matter was

admitted by this Court on 20.08.2015, an interim order had been

granted saying all recovery as per Ext.P8 order; and the records

revealed that said order is still in force, clearly indicating that no

further recovery has been able to be made against the petitioner

by the respondents.

In the afore circumstances and for the reasons above, I

cannot find favour with Ext.P7 and am of the certain view that

same must fail from the well-established principles of

Administrative law, particularly those relating to the enquiries

against retired employees.

In the afore circumstances, this writ petition is allowed and

Ext.P7 is set aside; with a consequential direction that no recovery

pursuant to Ext.P8 will be made against the petitioner.

Resultant to the directions above, the amount withheld from WP(C) NO. 25652 OF 2015

the petitioner, namely Rs.1,54,135/- will be paid to him within a

period of one month from the date of receipt of a copy of this

judgment; failing which, it will carry interest at the rate of 9%

per annum from the date on which it became due, until it is

actually paid.

As regards the claim of the petitioner for payment of the

amount of Rs.16,696/-, based on Ext.P16 letter of the

Headmistress and for 18% interest on the amount of Rs.1,54,135/-,

I am afraid that I cannot accede to the same because Ext.P16 letter

of the Headmistress has not been properly tested in law and

because the delay in payment of an amount of Rs.1,54,135/- has

been on account of the pendency of this writ petition. I, however,

leave liberty to the petitioner to invoke any other remedy that

may be available to him for these purposes as per law.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/23/07/2021 WP(C) NO. 25652 OF 2015

APPENDIX OF WP(C) 25652/2015

PETITIONER'S EXHIBITS

EXT.P-1: A TRUE COPY OF THE JUDGEMENT IN WPC NO.14741 OF 2013 DATED 3.12.2013

EXT.P-2: A TRUE COPY OF THE CHARGE SHEET DATED 19.11.2013

EXT.P-3: A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 7.01.2014

EXT.P-4: A TRUE COPY OF THE REPLY BY THE 2ND RESPONDENT DATED 15.01.2014

EXT.P-5: A TRUE COPY OF THE ORDER DATED 14.5.2014

EXT.P-6: A TRUE COPY OF THE COMMON JUDGEMENT IN COC 208/2014 AND RP 2657/14 DATED 7.7.2014

EXT.P-7: A TRUE COPY OF THE ORDER DATED 8.12.2014 ISSUED BY THE 2ND RESPONDENT

EXT.P-8: A TRUE COPY OF THE ORDER DATED 19.2.2015 OF THE 2ND RESPONDENT

EXT.P-9: A TRUE COPY OF THE GRATUITY PAYMENT ORDER DATED 27.3.2015 ALONG WITH THE DETAILS OF RECOVERY INTIMATION DATED 26.3.2015 TO THE SUB TREASURY OFFICER.

EXT.P-10: A TRUE COPY OF THE COMMUNICATION TO THE 2ND RESPONDENT WITH COPY TO THE PETITIONER

EXT.P-11: A TRUE COPY OF THE JUDGEMENT IN COC 1417 OF

EXT.P-12: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 6.4.2015

EXT.P-13: A TRUE COPY OF THE REPLY DATED 18.5.2015 BY THE 2ND RESPONDENT

EXT.P-14: A TRUE COPY OF THE COVERING LETTER OF THE 3RD WP(C) NO. 25652 OF 2015

RESPONDENT TO THE 2ND RESPONDENT DATED 9.10.2014 ALONG WITH THE STATEMENT

EXT.P-15: A TRUE COPY OF THE AFFIDAVIT IN STAMP PAPER EXECUTED BY NASEEMA T.K

EXT.P-16: A TRUE COPY OF THE COMMUNICATION OF 3RD RESPONDENT TO THE PETITIONER DATED 27.6.2013

EXT.P-17: A TRUE COPY OF THE REPRESENTATION ALONG WITH THE POSTAL RECEIPT SUBMITTED TO THE 3RD RESPONDENT DATED 19.5.2015

//TRUE COPY//

P.A. TO JUDDGE