Sree Vidhyadhiraja Homoeopathic ... vs State Of Kerala
2022 Latest Caselaw 6236 Ker

               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

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

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

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

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.

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

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.

W.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

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