Kerala High Court
K.P.Suresh Kumar vs State Of Kerala on 25 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 622 OF 2022
AGAINST THE JUDGMENT DTD 29/3/2022 IN WP(C) 15324/2021 OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
K.P.SURESH KUMAR
AGED 53 YEARS
KANDATHIL HOUSE,
SOUTH OF S.V. TEMPLE,
S.V.WARD, KAYAMKULAM,
ALAPPUZHA DISTRICT, PIN-690 502.
BY ADVS.S.P.ARAVINDAKSHAN PILLAY
N.SANTHA
V.VARGHESE
PETER JOSE CHRISTO
S.A.ANAND
K.N.REMYA
L.ANNAPOORNA
VISHNU V.K.
ABHIRAMI K. UDAY
RESPONDENTS/RESPONDENTS 1 TO 7:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION,
THIRUVANANTHAPURAM, PIN-695 014.
3 DEPUTY DIRECTOR OF EDUCATION,
ALAPPUZHA, PIN-688 001.
4 MANAGER,
SREE VITOBA HIGH SCHOOL, KAYAMKULAM,
2
Writ Appeal No.622 of 2022
ALAPPUZHA DISTRICT, PIN-690 502.
5 SREE VITTALA DEVASWOM,
S.V.WARD, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690
502, REPRESENTED BY ITS PRESIDENT, SRI.
G.VITTALADAS.
6 DEPUTY TAHSILDAR,
KARTHIKAPPALLY TALUK,
HARIPPAD, ALAPPUZHA DISTRICT, PIN-690 514.
7 VILLAGE OFFICER,
KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690 502.
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
Writ Appeal No.622 of 2022
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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Writ Appeal No.622 of 2022
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Dated this the 25th day of August, 2022
JUDGMENT
C.S.Sudha, J.
This intra court appeal is against the judgment dated
29/03/2022 in W.P.(C) No.15324/2021. The appellant is the petitioner and
the respondents herein, the respondents in the writ petition. The parties and
the documents will be referred to as described in the writ petition.
2. The writ petition was filed by the petitioner, the former
Manager of Sree Vitoba High School, Kayamkulam, who held the said post
for a period of five years from 19/05/2014 to 13/09/2019. During the said
period, the petitioner had suspended the then Headmistress of the School,
namely, R. Maya, as per Ext.P3 suspension order. The said order, according
to the petitioner was issued in the best interest of the school and one
authorized by the educational agency as is evident from Ext.P4. Ext.P9
revenue recovery notice has been issued to the petitioner for recovery of an
amount of ₹ 2,87,773/- towards the salary and allowances to be paid to the
Headmistress during the period of suspension. The third respondent without
giving notice to the petitioner, has requisitioned the revenue authorities to
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recover the aforesaid amount from the petitioner's personal estate, which has
culminated in Ext.P9 order. No amount is liable to be recovered from the
petitioner. Hence, the writ petition seeking quashing of Ext.P9 order and to
declare that the petitioner has no liability whatsoever in his capacity as
Manager of the School and that if at all any liability is found due to the
Government on account of the suspension order, the same is liable to be
recovered from the educational agency and not from the personal
assets/estate/property of the petitioner or his assets.
3. The third respondent, Deputy Director of Education,
Alappuzha, has filed counter affidavit contending that the petitioner
pursuant to Ext.P3 order had requested for extension of the suspension order
beyond the period of 15 days. The third respondent on conducting a
preliminary investigation as contemplated under sub-rule (8) to Rule 67 of
Chapter XIV A of the Kerala Education Rules (the KER), found no valid
ground to suspend the Headmistress and hence as per Ext.P5 order dated
12/03/2019 directed the petitioner to reinstate the Headmistress in service
w.e.f. 26/02/2019. However, the petitioner was not willing to reinstate the
Headmistress and aggrieved by Ext.P5 order, he filed revision before the
first respondent and simultaneously filed W.P.(C) No.9666/2019 seeking an
early disposal of the revision petition. R. Maya, the Headmistress in turn
Writ Appeal No.622 of 2022
filed W.P.(C) No.8054/2019 seeking implementation of Ext.P5 order. By
Ext.P7 common judgment dated 01/04/2019, the writ petitions were
disposed of directing the first respondent to consider and dispose of the
revision after hearing the affected parties. The Government on 13/05/2019
heard the affected parties and as per Ext.P8 order dated 20/06/2019, rejected
the revision. Pursuant to the said order, the petitioner on 26/06/2019
reinstated the Headmistress in service.
3.1. By virtue of sub-rule (8) to Rule 67 of Chapter XIV A of KER,
the Deputy Director is the competent authority to review the suspension
procedure initiated by the petitioner against the Headmistress beyond the
period of 15 days after conducting a preliminary investigation into the
grounds of suspension and if on investigation, the authority is satisfied that
there is no valid ground for suspension, then the teacher shall forthwith be
reinstated with effect from the date of suspension. However, the petitioner
never complied with the order of reinstatement. Hence, the recovery
proceedings initiated on the basis of Rule 7(4)(c) of Chapter III of KER and
Rule 67(8) of Chapter 14 A of KER, is fully justified, contends the third
respondent.
4. The fourth respondent, the present Manager has filed a counter
affidavit denying the allegation of the petitioner that the suspension order
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had been issued under the directions of the educational agency. On the other
hand, it is contended that it was an act pure and simple by the petitioner in
his capacity as the Manager. Inasmuch as the suspension was highly
arbitrary and grossly illegal, it was interfered with by the third respondent
and Ext.P5 order issued. The petitioner who was bound to reinstate the
Headmistress forthwith, failed to do so. Instead, he proceeded to challenge
Ext.P5 order by filing Ext.P6 revision, which has been rejected as per Ext.P8
order. Neither the educational agency nor the Devaswom, had asked the
petitioner to disobey Ext.P5. The moment the third respondent had directed
reinstatement of the Headmistress, the petitioner ought to have complied
with the same. Instead, he protracted the reinstatement of the Headmistress
and hence he alone is responsible for any loss sustained by the Government.
Neither the Devaswom nor the educational agency had required the
petitioner to disobey the lawful directions of the Department. Any unlawful
or highhanded action of the petitioner in exercise of his jurisdiction or any
act under the guise of competence, is to be answered personally by the
Manager. The Manager, who has subsequently taken charge, cannot be
made liable for the excesses committed by his predecessor-in-office,
contends the fourth respondent.
5. The learned Single Judge by the impugned judgment, dismissed
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the writ petition holding that there is no illegality, impropriety or
jurisdictional error in Ext.P8 or Ext.P9 demand notice. Aggrieved, the
petitioner has come up in appeal.
6. Heard Adv.V.Varghese, the learned counsel for the appellant
and Ms.B.Vinitha, the learned Senior Government Pleader.
7. It is submitted by the learned counsel for the petitioner that
when the petitioner was holding the office of the Manager of the School, he
was constrained to place R. Maya, the then Headmistress of the School
under suspension, as the petitioner had received reliable information from
the teachers of the school that the former was deliberately creating problems
in the functioning of the school by repeatedly convening staff meetings at
short notice during class hours. The entire work and discipline of the school
was being affected by the said conduct of the Headmistress. These staff
meetings were being convened with the hidden agenda of spreading
defamatory rumors about the management and the Manager of the School.
The basis for convening such meetings would be some anonymous letters
addressed to the Headmistress, containing highly defamatory and baseless
allegations against the Manager and the Managing Committee of the
Devaswom, the educational agency. It was under the said circumstance the
petitioner in his capacity as the Manager of the School, had issued Ext.P1
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show-cause notice dated 16/02/2019 calling for an explanation from the
Headmistress regarding the complaint received against her.
7.1. The Headmistress submitted Ext.P2 reply dated 17/02/2019,
which reply was found to be not satisfactory and hence the petitioner had
issued Ext.P3 order of suspension. Ext.P3 dated 26/02/2019 was issued by
the petitioner after the Managing Committee of the Devaswom/the
educational agency, i.e., the fifth respondent, had been apprised of the
misconduct and indiscipline on the part of the Headmistress. The fifth
respondent, in turn by a unanimous decision, entrusted the petitioner to take
proper and strict measures in the matter, which is evident from Ext.P4
minutes of the meeting of the Management Committee of the Devaswom.
By Ext.P5 order dated 12/03/2019, the third respondent had directed the
reinstatement of the Headmistress against which the petitioner had filed
Ext.P6 revision within 3 days, i.e., on 15/03/2019. The petitioner also
moved this Court challenging Ext.P5 order and sought disposal of Ext.P6
revision. The Headmistress in turn had also filed a writ petition seeking
implementation of Ext.P5. By Ext.P7 judgment dated 01/04/2019, this Court
disposed of the two writ petitions holding that in the light of Ext.P5, the
Headmistress would be on deemed suspension and directed the Government
to pass orders on Ext.P6 revision. Though the Management was expecting a
Writ Appeal No.622 of 2022
favourable order on Ext.P6, the Government as per Ext.P8 order dated
20/06/2019, rejected Ext.P6 revision. The petitioner received a copy of
Ext.P8 on 26/06/2019, on which day itself the Headmistress was reinstated
in service. Therefore, the argument is that the petitioner had with bonafide
intention passed Ext.P3 order in the best interest of the school. He did not
reinstate the Headmistress immediately on receipt of Ext.P5 order only
because he was pursuing the statutory remedy available to him, which
cannot be termed as a wilful or deliberate refusal on his part in complying
with Ext.P5 order. It is only when serious irregularities are committed by the
Manager causing monetary loss to the teacher/Government, the provisions of
Rule 7(4)(c) in Chapter III of KER and sub-rule (8) to Rule 67 can be
invoked. Further, as per sub-rule (4) to Rule 3 of Chapter III, the
educational agency is bound by the acts of the Manager and hence if at all
any amount(s) requires to be recovered, the Government can proceed against
the assets and property of the educational agency, namely, the fifth
respondent. It is also pointed out that proceedings for recovery, if necessary,
can also be initiated against the present Manager, the fourth respondent
herein.
8. Per contra, it is submitted by the learned Senior Government
Pleader that it is the petitioner who had disobeyed Ext.P5 order and so it is
Writ Appeal No.622 of 2022
the petitioner alone who can be made liable and necessary recovery effected
from him. According to her, once the educational authority had declined
permission to approve the suspension beyond a period of 15 days, the
petitioner-Manager was bound to reinstate the Headmistress. Having failed
to obey the order of reinstatement, the petitioner cannot escape from the
liability contemplated under Rule 7(4)(c) read with Rule 67(8) in Chapter III
and Chapter XIV A respectively of the KER, submits the learned Senior
Government Pleader.
9. We have considered the submissions made by either side. We
first refer to the relevant provisions applicable in this case. Rule 3 of
Chapter III KER says that management of every aided school may be vested
by the educational agency in a person who shall be referred to as the
Manager, who in turn shall be responsible to the Department for the
management of the institution. Sub-rule (4) says that the educational agency
shall be bound by the acts of the Manager. Rule 7 in Chapter III deals with
action to be taken against the Manager or educational agency in the event of
mismanagement. The relevant provision reads -
"7. Action against Manager or Educational Agency in the event of
mismanagement etc.-
(1) In the event of mismanagement, malpractice, corruption or
maladministration, gross negligence of duty, or disobedience of
Departmental instruction on the part of the Manager or denial of
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appointment to a qualified thrown out teacher who has a rightful claim for
reappointment by virtue of his/her holding the post earlier or denial of
promotion to a teacher who is rightful claimant for promotion by the
manager or conviction of the Manager for an offence involving moral
turpitude it shall be open to the "Director, after giving the Manager a
reasonable opportunity to show cause against the action proposed to be
taken and after due enquiry, to declare him unfit to hold the office of
Manager in the school or in any other aided school and to require the
educational Agency to appoint a suitable person as Manager.
[Note-The enquiry mentioned in this sub-rule shall not be necessary
in the case of conviction for an offence involving moral turpitude by a
court of law].
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) In the case of a Manager who commits serious irregularities
causing monetary loss to teachers/Government, the loss sustained by
teachers/Government shall be recoverable from the Manager under the
provisions of the Revenue Recovery Act for the time being in force as if it is
an arrear of public revenue due on land, in the following cases namely -
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) Suspension of teachers, framing cooked up and / or frivolous
charges, keeping them out of service beyond fifteen days disobeying the
orders of re-instatement of such incumbents passed by the Deputy Director
(Education) or by the Educational officer concerned, as the case may be,
after a preliminary investigation into the grounds of suspension under sub-
rule(8) of rule 67, Chapter XIV-A, depriving such incumbents of their
salary for which they would have been entitled to had they been reinstated
by the Manager in compliance of the orders issued by the officer
concerned." (Emphasis supplied)
Writ Appeal No.622 of 2022
9.1. The jurisdiction of the Manager to suspend a teacher is
contained in S.12 of the Kerala Education Act, 1958 (the Act) and Rule 67
of Chap. XIV A, KER. Sub-section (2) of S.12 provides that no teacher of an
aided school shall be dismissed, removed or reduced in rank by the Manager
without the previous sanction of the officer authorized by the Government in
this behalf, or placed under suspension by the Manager for a continuous
period exceeding 15 days without such previous sanction. Sub-rule (1) of
Rule 67 empowers the Manager to place a teacher under suspension in the
three contingencies mentioned therein, viz., (a) when disciplinary
proceedings against him are contemplated or are pending or (b) when a case
against him in respect of any criminal offence is under investigation or trial
or (c) when the final orders are pending in the disciplinary proceedings if the
authority considers that in the then prevailing circumstances it is necessary,
in public interest that the teacher should be suspended from service. Sub-
rule (8) of R.67 mandates that the Manager shall report the matter of
suspension to the Educational Officer on the same day on which the order of
suspension is passed. The Educational Officer shall thereupon make a
preliminary investigation into the grounds of suspension. Sub-rule (8) of
R.67A reads :
"67. Suspension: (1) The Manager may at any time place a teacher under
suspension-
Writ Appeal No.622 of 2022
xxx xxx xxx
(8) Where the orders of suspension is made by the manager he shall on the
same day report the matter together with reasons for the suspension to the
Educational Officer and where the suspension is in respect of the
Headmaster/Headmistress/Vice-Principal of High school and Training
school such report shall be sent to the Deputy Director (Education) also in
addition to the Educational Officer and in the case of Principal, such
report shall be sent to such other officer authorised by the Government.
The Deputy Director (Education), if the suspension is in respect of
Headmaster/Headmistress/Vice-Principal of a High school or a Training
school and Educational Officer in other cases and such other officer
authorised by the Government in the case of Principal, shall thereupon
make a preliminary investigation into the grounds of suspension. If on such
investigations the authority is satisfied that there was no valid ground for
the suspension he may direct the manager to reinstate the teacher with
effect from the date of suspension and thereupon the teacher shall
forthwith be reinstated by the manager. If the teacher is not actually
reinstated the teacher shall be deemed to have been on duty. It shall then be
open to the Department to disburse the pay and allowances to the teacher
as if he were not suspended and recover the amount so disbursed from the
manager. If on such investigation it is found that there are valid grounds for
such suspension, permission may be given to the manager to place the
teacher under suspension beyond 15 days if necessary. The authority
mentioned above shall pass orders permitting the suspension or otherwise
within said 15 days." (Emphasis supplied)
10. When the Educational Officer has exercised jurisdiction under
sub-rule (8) and directed the Manager to reinstate the teacher in service,
there cannot be any jurisdiction vested in the Manager to exercise his power
of suspension under Rule 67(1) or under Section 12(2) of the Act. Section
Writ Appeal No.622 of 2022
12(2) of the Act and Rule 67(1) empower the Manager to place a teacher
under suspension for a limited period. His power is circumscribed by the
limitation contained in Rule 67. Once the matter is reported to the
Educational Officer and the Educational Officer has declined permission to
place the teacher under suspension beyond fifteen days, the Manager retains
no power either to extend the period of suspension or to continue the order
of suspension or to keep the teacher under suspension till the disposal of the
revision filed by the Manager against the order passed by the Educational
Officer or till final decision in the pending disciplinary proceedings. Such a
jurisdiction is not contemplated at all in the KER. (Valsala v. Corporate
Manager, C.S.I. Schools, 2008 (4) KLT 60).
11. In Vedanayakom v. Government of Kerala, 2014 (3) KLT
678, a learned Single Judge has held that, going by sub-rule (8) of Rule 67,
once the Educational Officer directs the Manager to reinstate the teacher
with effect from the date of suspension and the Manager refuses to do so, the
teacher shall be deemed to have been on duty and it shall be then open to the
Department to disburse the pay and allowances to the teacher as if he/she
was not suspended and recover the amount so disbursed from the Manager.
The pendency of the Revision Petition filed by the Manager under Rule 92
to Chapter XIV-A of the K.E.R. or the order of stay granted by the
Writ Appeal No.622 of 2022
Government in that revision petition staying the order of reinstatement, will
not in any manner disentitle the teacher from getting the pay and allowances
with effect from the date of suspension, once the revisional authority
concurs with the findings of the Educational Officer that the order of
suspension was without any valid reasons. Similarly, neither the pendency of
a Revision Petition nor the order of stay granted by the revisional authority
or a court of law will absolve the Manager from the liability to reimburse to
the Department the pay and allowance disbursed to the teacher for the period
during which he/she was kept under suspension without any valid reason.
Once the order of suspension is found to be one issued without any valid
reason by the Educational Authorities in exercise of their powers under Rule
67(8) and that finding is confirmed by the Government in exercise of its
revisional powers under Rule 92 of the said Chapter, the Manager cannot be
absolved from the liability to reimburse to the Department the pay and
allowance disbursed to the teacher for the period during which he/she was
kept under suspension illegally. Otherwise, it would defeat the very object of
sub-rule (8) of Rule 67 of Chapter XIV-A of the K.E.R.
12. Further, sub-rule (4) to Rule 7 specifically states that for any
loss sustained by teacher/Government, the same is liable to be recovered
from the Manager under the provisions of the Revenue Recovery Act. The
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provision does not say that the recovery is to be effected from the
educational agency. The provision also makes it clear that only in cases
where the Manager commits serious irregularities causing monetary loss to
teachers/Government, proceedings under Rule 7(4)(c) can be initiated
against the Manager and not otherwise.
13. A Division Bench of this court in judgment dated 16/10/2015 in
W.A.No.863/2015, Corporate Manager, Vicar, St. Augustine R.C.
Church, Thuravoor, Angamaly v. V.F. Sheela, held that only when there
is a deliberate disobedience of the orders passed by the educational
authorities or deliberate violation of the rules, the provisions contained in
Chapter III Rule 7 can be invoked against the Manager. It was so observed
relying on an earlier Division Bench decision in Manager, M.M.H.S. v.
Deputy Director, 1994 (1) KLT 321.
14. Radhakrishnan Nair v. State of Kerala, 2008 KHC 4748
was also a case in which that the Manager was found to have wilfully
disobeyed the orders issued by the authorities and the directions issued by
this Court and had deliberately denied the benefit of promotion to the
petitioner therein. The petitioner therein was held entitled to all the dues
from the date when he was entitled to be promoted and for the reason that
the Manager had illegally denied him such appointment; the petitioner shall
Writ Appeal No.622 of 2022
not be deprived of his entitlement. It was further held that the case disclosed
a clear situation where the power of the authorities under Rule 7(4) required
to be invoked by the Government to recover from the Manager the loss
sustained by the petitioner therein.
15. In the case on hand, the specific case of the petitioner is that
Ext.P3 order of suspension is based on Ext.P4 resolution of the educational
agency. This is disputed by the fourth respondent, the present Manager, who
contends that Ext.P3 order of suspension is a decision taken by the petitioner
and not one approved by the educational agency, as alleged by the petitioner.
As pointed out by the learned Senior Government Pleader, it appears that
Ext.P4 has got nothing to do with Ext.P3. R. Maya was promoted as
Headmistress only on 01/04/2018. Therefore, Ext.P4 decision dated
30/01/2018, obviously cannot relate to the alleged misconduct and
misbehaviour of R. Maya as Headmistress of the school. Hence, the
allegation that Ext.P3 suspension order was issued on the basis of the
unanimous decision of the educational agency, is apparently incorrect.
16. As noticed earlier, it is true that it is not in all cases the
Manager can be held liable. It is only when there is a deliberate
disobedience or when the suspension of the teacher is on the basis of
cooked-up or frivolous charges, the Manager can be proceeded with. In the
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case on hand, there appears to have been no justification for Ext.P3 order
and what justification has been given by the petitioner has been disproved
by the documents and materials on record.
17. Another argument advanced on behalf of the petitioner that he
is presently not holding the post of the Manager and therefore if at all any
recovery proceeding has to be initiated, it can be initiated against the present
incumbent or against the educational agency in the light of Rule 3(4) of
Chapter III KER. This argument cannot also hold good in the light of the
decision in Vijeesh C.V. v. State of Kerala, 2014(4) KHC 716. According
to the learned Single Judge, only to the post of Manager, but also in any
position in an organisation, especially in a Governmental one,
notwithstanding the change of the person at the helm of the affairs, the post
continues in terms of the statutory scheme governing the said position. At
the same time, it cannot be lost sight of the fact that for all omissions and
commissions of a particular person occupying the post, his successors
cannot be made liable on the plea that it being a continuous position every
person who is at the helm of affairs at the time of the detection of the
misconduct, rather than its actual commission, would be liable. Plainly put,
such a conclusion would cause manifest injustice to the innocent, apart from
putting a premium on the dishonesty of the delinquent. It was also held that
Writ Appeal No.622 of 2022
once any misconduct has been detected on the part of the delinquent
employee, he could have been subjected to disciplinary proceedings.
Primarily before the misconduct is detected, or before any action can be
taken thereof, if the said employee happens to get superannuated or leaves
his office, that person, and that person alone, can be proceeded against
subject to the statutory limitations imposed concerning the issue. Under such
circumstances, to hold that even the successor to the delinquent in the post
can be made liable is totally unconscionable. By no stretch of imagination,
can it be said that an incumbent Manager can be made liable for the
misconduct of his predecessor-in-office on the premise that otherwise the
Government would be remediless.
18. It is true that in the decision in Beevi Umma S. v. Assistant
Educational Officer, Trivandrum, 2016(1) KHC 628, it has been held that
the educational agency can also be held liable for the acts of the Manager
and that no educational agency cannot absolve itself from the liability on the
ground that the default committed or loss occasioned was due to the conduct
of the Manager. The said case is one in which the petitioner an individual
educational agency, had by due authorization under Rule 3 Chapter III of
KER appointed her husband as Manager of the School. While the
petitioner's husband was continuing as the Manager, a LPSA was suspended.
Writ Appeal No.622 of 2022
The AEO refused to approve the order passed by the Manager and directed
the reinstatement of the LPSA. The admitted case of the Manager was that
he had availed all the statutory remedies and eventually this Court had
permitted the Manager to continue with the disciplinary proceedings, but
however specifically directed the reinstatement of the 5 th respondent. The
Manager was recalcitrant insofar as carrying out the reinstatement and hence
proceedings were initiated against him under Rule 7 of Chapter III of KER,
by the educational authorities. As per the notice issued to the petitioner, she
was directed to deposit certain amounts, which liability was with respect to
the period during which the LPSA was kept under illegal suspension. By the
time, the recovery proceeding was initiated, the Manager passed away. In
the said circumstances, it was held that the educational agency is also
responsible for the act of the Manager and is bound by the act of the
Manager. The educational agency in the cited case did not disown the act of
suspension by the Manager, who was none other than the husband of the
petitioner, the individual educational agency. In the case on hand, the 5 th
respondent, educational agency, has disowned Ext.P3 order and as held in
Vijeesh C.V. (Supra), it is the petitioner alone who can be held responsible
for the loss caused to the Government.
19. The contention of the petitioner that no notice has been issued
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to the him before the issuance of Ext.P9 notice of revenue recovery, is
replied to by the third respondent who contends that the KER does not
contemplate issuance of any notice before recovery proceedings are initiated
under Rule 7. Sub-rule (8) to Rule 67 quite clearly provides the
consequences that would follow in case the order of the educational
authorities is not complied with. Therefore, a further notice is not necessary,
which the Rules also do not contemplate. The principles of natural justice
embody the rules of fairness, that no person shall be damnified without
informing him of the action proposed to be taken against him and which
may have evil consequences on him. It is also implied that on such notice
being given, the person sought to be proceeded against is entitled, in certain
circumstances, to be heard before any decision on the proposal. These rules
are meant to guide the exercise of powers which will damnify others. There
is a corresponding duty on such persons who are notified to respond to such
notice. In case a person chooses, in spite of notice to him, not to make use of
the opportunity thus offered, be is not entitled thereafter to complain that the
proceedings taken against him are in violation of the principles of natural
justice. Natural justice cannot be converted into unnaturally rigid fetters.
(Manager, FV High School v. State of Kerala, 1983 KLT 151).
20. Further, the rule audi alteram partem is not an absolute rule,
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and in a case where the Court finds that a fair hearing of the affected would
not make any difference in the decision proposed, the decision cannot be
held to be bad merely for the reason that the affected person was not heard
[See Dharampal Satyapal Ltd. v. Deputy Commissioner of Central
Excise. (2015)8 SCC 519]. Moreover, the petitioner has no case that the
amount sought to be recovered from him is not the amount permissible to be
recovered in terms of the statutory provision.
In these circumstances, we do not find any reasons to interfere with
the impugned judgment and so the writ appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
P.B.SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ami/
