| SooperKanoon Citation | sooperkanoon.com/908017 |
| Subject | Contempt of Courts |
| Court | Kerala High Court |
| Decided On | Nov-04-2010 |
| Case Number | W.P(C) No. 15657 of 2004 |
| Judge | S. SIRI JAGAN, J. |
| Acts | Contempt of Courts Act; Revenue Recovery Act |
| Appellant | The Manager |
| Respondent | State of Kerala |
| Advocates: | SMT.V.P.SEEMANDINI, Adv. |
S. Siri Jagan, J.
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W.P(C) No. 15657 of 2004
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Dated this, the 4th day of November, 2010.
J U D G M E N T
1. The petitioner in this writ petition is the manager of an aided school. He is aggrieved by Ext. P5 order of the Government, whereby salary paid to a physical education teacher by name Sri. Jolly John was directed to be recovered from the manager on the ground that the appointment of the teacher was against the Kerala Education Rules. Ext. P5 order was followed by Ext. P6 notice, whereby the petitioner was directed to refund to the Government the salary paid to that teacher. The situation arises in the following factual matrix.
2. The said teacher, Sri. Jolly John, was originally appointed in temporary vacancies for the period from 1.8.1989 to 14.10.1989 and 4.8.1992 to 2.11.1992. These appointments were not approved and non-approval was not a matter in further litigation also. While so, an existing physical education teacher of the school retired from service in the year 1992-93. On 7.6.1993, in that alleged vacancy, the manager appointed Mr. Jolly John. But, in the staff fixation order for 1993-94, the said post was abolished. Consequently, the educational authorities refused to grant approval for such appointment. The manager filed an appeal against the order refusing approval for the appointment, which was rejected. The teacher, Sri. Jolly John, filed O.P.No. 4161/1994 challenging the orders. In that, Sri. Jolly John filed C.M.P. No. 7608/1994 seeking a direction to the A.E.O., Chavakkad to issue necessary direction to the headmaster of the school to claim and disburse the salary due to the said Mr. Jolly John as physical education teacher from 1.8.1989 to 4.10.1989 and 4.8.1992 to 2.11.1992 and from 7.6.1993 onwards. This Court by Ext. P1 order dated 9.6.1994 granted the interim direction as prayed for. The petitioner manager was not a party to that writ petition. The respondents therein, who were the State of Kerala and the Education officers, filed W.A. No. 887/1994 against the said interim order. Refusing to entertain the appeal and reserving the right of the appellants to seek necessary orders in the original petition in respect of payment of salary after the date of the impugned order, ie. to say after 9.6.1996, that writ appeal was dismissed. Pursuant to the said order, by order no. C-3172/94 dated 8.9.1994, which is appended along with Ext. P4 judgment in the writ appeal, the A.E.O accorded sanction to draw the salary of Sri. Jolly John till final judgment in the original petition. In view of conflict of judicial opinion on the true meaning and import of Rule 6B of Chapter XXIII of KER, which is the relevant rule applicable, the said original petition was referred for consideration by a Full Bench of this Court and by Ext. P3 judgment, the Full Bench decided against the teacher. On the question of salary paid to the teacher, there was a direction that the salary paid to the teacher cannot be recovered from the teacher. But, it was clarified that the Government shall be entitled to recover the salary so paid, if permissible under law, from the manager who had appointed the teacher or illegally allowed the incumbent to continue in position. Pursuant to the said direction, the Government considered the matter and passed Ext. P5 order directing recovery of salary paid to the teacher from the manager, who is the petitioner herein. Pursuant thereto, Ext. P6 notice has been issued to the petitioner for refund of the salary so paid to the teacher. In this connection, for completion of facts, it must also be noted that in the writ petition, liberty was given to the teacher to seek the concession given to 54 other similarly placed physical education teachers by filing a representation before the Government, which was directed to be considered by the Government, within 3 months of the date of receipt of the same. The teacher Sri. Jolly John filed Ext. P4 representation in that regard to Government. On that petition, Ext. P11 order was passed directing the AEO to approve the appointment of Sri. Jolly John and to admit the teacher to duty forthwith, as physical education teacher prospectively from the date of Government Order dated 4.10.2004. It is also not disputed before me that the said order was on the basis of orders passed by the Government in respect of two other batches of similarly placed physical education teachers numbering 54 and 46, who were also allowed to rejoin duty in accordance with similar Government Orders earlier. The petitioner is challenging Exts.P5 and P6 orders in this writ petition.
3. The contention of the petitioner is that the petitioner cannot be saddled with the liability to pay the salary paid to the teacher, since it is not on account of any action on the part of the petitioner that the salary happened to be paid to the teacher. Simply because the petitioner appointed the teacher, the respondents are not bound to pay salary to the teacher. Only if the educational authorities approve the appointment of the teacher, salary is liable to be paid to the teacher. In this case, approval was rejected. Appeal filed by the manager was also rejected. Therefore, the respondents were not bound to pay any salary to the teacher on account of any action on the part of the petitioner. It is only because of Ext. P1 interim order of this Court in a writ petition filed by the teacher, that too, without impleading the manager as a party, that the respondents were forced to pay salary to the teacher. In fact, the respondents themselves challenged that order in a writ appeal, which was also rejected. In Ext. P2 order in the writ appeal, the respondents were permitted to seek necessary orders in the original petition in respect of payment of salary after 9.6.1994. The respondents did not take any steps in respect of that also. As such, according to the petitioner, it is not on account of any fault attributable to the petitioner that the salary happened to be paid to the teacher, which does not come within the purview of Rule 7(4) of Chapter III of K.E.R also. Therefore, orders directing recovery of the salary paid to the teacher is patently illegal and unsustainable, is the contention raised.
4. No counter affidavit has been filed in this case. But the learned Government Pleader would vehemently argue in support of the impugned orders. He would contend that this Court has, in Ext. P3 judgment of the Full Bench, categorically held that the appointment of the teacher, Sri. Jolly John, is against the rules. It is because the manager appointed the teacher against the rules, the respondents were forced to pay salary to the teacher. The learned Government Pleader points out that in Ext. P1 order, there was no stay of the original order refusing approval for the appointment of the teacher and the order in an appeal rejecting the appeal. Only a direction was issued to the headmaster of the school to claim and disburse salary due to the petitioner, which did not prevent the manager from terminating the services of the teacher in accordance with orders refusing approval for appointment. Therefore, there was nothing standing in the way of the petitioner terminating the services of the teacher, despite Ext. P1 order. Having not done so, at least continued payment of salary, is only on account of the fault of the petitioner in not terminating the services of the teacher in accordance with orders of the educational authorities. Therefore, according to the respondent, the petitioner is liable to refund the salary paid to the teacher.
5. I have considered the rival contentions in detail.
6. At the outset, I must note that at the relevant time, the law was in a nebulous state and there was a conflicting judicial opinion regarding the interpretation of Rule 6(b) of Chapter XXIII of the K.E.R. It is because of the divergent of judicial opinion that the matter came to be referred to a Full Bench of this Court and the legal position had to be finally clarified by the Full Bench.
7. It is true that in Ext. P1 order, there was no stay of termination of the services of the teacher in question. That teacher had claimed salary for the period from 1.8.1989 to 14.10.1989 and 4.8.1992 to 2.11.1992 also in the C.M.P. seeking an interim direction, validity of appointment for which period was not an issue in O.P. No. 4161/1994 at all. But, this Court was unaware of that situation and nobody including the respondents cared to bring that to the attention of the learned Single Judge who passed Ext. P1 interim order and the Full Bench who passed Ext. P3 judgment. It appears that the respondents also treated Ext. P1 as a stay of termination of service of the teacher and instead of directing the manager to terminate the service of the teacher, they filed an appeal and by Ext. P2 order, while dismissing the same, the respondents were given liberty to take up the matter in the original petition regarding payment of salary subsequent to the date of Ext. P1 interim order. That also the respondents did not appear to have done. As such, I am convinced that the petitioner did not have a culpable mind in continuing the teacher in service. Naturally, when confronted with an order like Ext. P1, no manager would dare to take an action terminating the service of a teacher who has been directed to be paid salary, even if legally, there may not have been any impediment for the petitioner to terminate the service of the teacher by Ext. P1 for fear of action under the Contempt of Courts Act. It must also be noted that the respondents also did not find it necessary to direct the petitioner to terminate the services of the teacher. That shows that the respondents also was under the impression that in view of Ext. P1 order, the service of the teacher could not have been terminated except at the risk of proceedings under the Contempt of Courts Act.
8. Even apart from the same, legally also, the amount cannot be recovered from the petitioner. The recovery of amounts paid to a teacher for illegal appointment by a manager from the manager is governed by Rule 7(4) of Chapter III of KER. That Rule reads thus:
"7. Action against Manager or Educational Agency in the event of mismanagement etc.:-
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(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, to the following cases namely-
(a) Denial of appointment to a qualified thrown out teacher who has a rightful claim for re-appointment by virtue of his/her holding the post earlier under rule 51A Chapter XIV-A.
(b) Denial of promotion to a teacher to any higher grade of pay under rules 43, 43B or 43C, as the case may be, or Chapter XIVA or denial of promotion to the senior-most rightful claimant to the post of Headmaster under rules 44 or 45 or 45A, as the case may be, of Chapter XIV-A, when the post becomes vacant disobeying the directions from the department and/or Government, causing denial of all monetary benefits which he/she would have got had the promotion been effected as per rules in time.
(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.
(d) Making of irregular appointments and getting them approved by the Educational Officers concerned by furnishing false information declaration by the Managers regarding the claimants, under rule 51A. Chapter XIVA.
(5) After having effected such enquiry, the amount of loss sustained by the teacher concerned shall be paid to him, if not already paid."
(Emphasis supplied)
Out of the 4 cases mentioned therein, if at all applicable, that is only clause (d). Even under clause (d), the manager would be liable only for making irregular appointment and getting them approved by the educational officer concerned by furnishing false information or declaration regarding claimants under rule 51A Chapter XIV-A. Here, the respondents have no case that the petitioner had got the appointment of Sri. Jolly John approved by the educational officers by furnishing false information or declaration regarding claimants under Rule 51A of Chapter XIV-A. As such, it is not a case where the respondents can have invoked Rule 7(4) of Chapter III of KER. Therefore, legally also, I do not think that the respondents could have ordered recovery of the salary paid to the teacher from the manager.
9. Of course, the learned Government Pleader points out that in Ext. P3 judgment of the Full Bench, the Government was given liberty to recover the salary paid to the teacher from the management. The said clarification contaied in paragraph 41 of the judgment reads thus:
"However, it is clarified that it shall be entitled to recover, if permissible under law, from the Managements that had appointed the teachers or illegally allowed the incumbents to continue in position."
The argument of the learned Government Pleader is that permission was given to recover the salary from the manager who had appointed the teacher or illegally allowed the incumbent to continue in position. Here, according to the learned Government Pleader, the manager appointed the teacher and illegally allowed the teacher to continue in position and therefore going by Ext. P3, the Government was justified in recovering the amount from the petitioner.
10. I am not able to agree with the learned Government Pleader. As I have already held the said said, permission is clarified by the words "if permissible under law." Therefore, the learned Government Pleader should show me a legal provision by which the Government can legally recover the amount from the petitioner. Interpreting Rule 7(4) of Chapter III of KER, I have already held that this is not a case covered by any of the provisions of Rule 7(4). Therefore, there is no legal provision permitting the respondents to recover salary paid to the teacher in this case from the petitioner. The learned Government Pleader also points out that in the operative portion of the judgment, the full bench has held thus :
"The teachers who are found to have performed their duties are entitled to the salary for the relevant period subject to the condition that the Government may recover it from the Managements. This, by itself, would not, however, entitle the petitioners to claim the continuance of the post or their service. The final decision in this behalf shall depend upon the order on their representations."
I am of opinion that that portion cannot be read in isolation from paragraph 41 containing the sentence quoted earlier, which contains the words "if permissible under law." Even otherwise, if law does not permit, the petitioner cannot be made liable to pay amount which he is not otherwise liable to pay.
In the above circumstances, I am satisfied that the salary paid to the teacher cannot be recovered from the petitioner under law. Consequently, Exts.P5 and P6 are quashed. The writ petition is allowed as above.