VARKEY Vs. HEAD MASTER

JUDGEMENT

(1.) Petitioner in this original petition was a private school teacher, who retired from sendee on 6-8-1969. According to him, be joined the service as a primary school teacher in the Panippara L. P school in the year 1937 and retired after 32 years of service. His complaint in the original petition is that in spite of bis retirement. from service as early as on 6-8-1969, he was not given his pensionary and other terminal benefits due to him despite repeated reminders to the educational authorities including the Director of Public Instruction. Since no orders have been passed considering the claim of the petitioner for pensionary benefits, he has sent Ext. P1 lawyer's notice dated 11-7-1988, where in on his behalf, a request was made to the Headmaster, Government High School, Pattikkad, the Asst. Educational Officer, Trichur East, the Dy. Director of Education, Trichur, the Director of Public Instruction, Trivandrum and to As Accountant General, Kerala State. As per Ext. Pi notice, he reiterated his request for pensionary benefits with interest and damages. On receipt of the same, the Asst. Educational Officer as per Ext. P2 dated 16-8-1988 informed his Advocate that the petitioner had retired from service is the year 1969, and in the year 1971, the L. P. section attached to the high school was bifurcated and there is no other records available in respect of the petitioner and his service particulars in the Government L. P. School at Pattikkad. The Advocate was further informed that the High School at Pattikkad is under the control of the District Educational Officer, Trichur and hence the Asst. Educational Officer requested the petitioner to contact the District Educational Officer, Trichur and the Headmaster, Government High School, Pattikkad for further information in that regard. On receipt of Ext. P1 notice, the Accountant General, Kerala State informed the Advocate of the petitioner that he did not receive the pension papers of the petitioner in his office. He had further informed that the service book and pension papers are awaked from the Dy, Director of Education, Trichur for verifying the admissibility of the claim of the 'petitioner. This is evidenced by Ext. P 4 communication dated 29-7-1988. There after, the Dy. Director of Education also as per Ext, P 3 letter dated 30-8-1988 informed the Advocate of the petitioner that the matter is under correspondence with the Headmaster, Government High School, Pattikkad and necessary arrangements have been made to examine the admissionabity of the request of the petitioner. Thereafter, as per Ext. P5 communication dated 29-4-1989, the Director of Public Instruction, Trivandrum informed the Advocate of the petitioner that the petitioner was convicted by the court for inflicting grievous hart under S.320 read with S.34 of the Indian Penal Code and accordingly, he was removed from service with effect from 28-1-1969, i. e. from the date of his suspension. The Director of Public Instruction also informed that the petitioner is not eligible for pensionary benefits under the provisions of the Kerala Service Rules. The petitioner challenges the validity of Ext. P5 in this proceedings and prays for quashing the said order and also the proceeding leading to the removal of the petitioner from service sad the resultant denial of pensionary benefits. He has also prayed for a declaration that the removal of the petitioner from service and resultant denial of benefits as illegal and arbitrary. He further prays that a direction may be issued to the respondents to disburse the pension and other terminal benefits due to the petitioner with 12% interest with effect from 6-8-1969 and for consequential reliefs.

(2.) On behalf of the 5th respondent, a counter affidavit has been filed on 16-10-1989, wherein the respondent has stated that as per the available service particulars, the petitioner has got continuous service in Government schools from 26-7-1949 to 28-1-1969 and prior to that, some aided school services as disclosed from the service certificates is pasted in page -No.1 of the service book But the petitioner was removed from service with effect from 28-1-1969 following his conviction by a criminal court for inflicting grievous hurt under S.320 read with S.34 I.P.C. Therefore, according to the respondent, the petitioner is not entitled to get any pensionary benefits under the provisions of the Kerala Service Rules The statement made by the petitioner that he has retired from service on 6 8-1969 was also denied by the respondent. Instead, the petitioner was removed from service with effect from 28-1-1969. The counter affidavit further proceeds that as per the rules, removal from service forfelts past services and therefore no denial of natural justice is involved in the case of the petitioner. as wrongly alleged by him in the original petition in removing the petitioner from service, the past services put in by him were forfeited and thereby be becomes ineligible for pension under the existing rules, and therefore the petitioner is not entitled to get any pensionary benefits with or without any interest.

(3.) An additional counter affidavit also has been filed by the 5th respondent on first of November, 1989, wherein the 5th respondent has further stated that the petitioner was an accused in C. C. No. 68/68 on the file of the District Magistrate (Judicial), Trichur and he was convicted by the said Magistrate for the offence under S.320 read with S.34 IPC. The appeal filed by the petitioner before the Sessions Court. Trichur as Crl. A. 6/1969 was also ultimately dismissed. Consequent to which, the 5th respondent Director of Public Instruction as per his order dated 12-10-1972 removed the petitioner from service with effect from 28-10-1969. A copy of the said order also has been produced in the case as Ext. R5(a) The counter affidavit further states that the petitioner has not questioned the validity of Ext. R 5(a) so far and therefore the petitioner cannot now challenging the removal order, as it is barred by limitation.