IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 5711 of 2011(L) ------------------------- PETITIONER(S): --------------- SMT.OMANA SREE RAM, THE MANAGER, V.H.S.S., KUZHIKKALIDAVAKA, KARIMPINPUZHA P.O., PANGOD, KOLLAM. BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWAR LAL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION (SPECIAL CELL) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. A.G.HAREENDRANATH, NON-VOCATIONAL TEACHER IN ENGLISH, (UNDER ORDER ON SUSPENSION) V.H.S.S., KUZHIKKALIDA VAKA, KARIMPINPUZHA P.O., PANGODE, KOLLAM. R1 & R2 BY G.P. SHRI T.T. MUHAMOOD ADV. SRI.V.K.SATHYANATHAN FOR R3 SMT.V.VIJITHA FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF ORDER DATD 28.11.2009 EXT.P2-TRUE COPY F ENQUIRY REPORT EXT.P3-TRUE COPY OF ORDER DATED 31.12.2009 EXT.P4-TRUE COPY OF APPEAL DT.7.12.2009 EXT.P5-TRUE COPY OF MEMO OF CHARGE DATED 18.1.2010 EXT.P6-TRUE COPY OF LETTER DATED 31.3.2010 EXT.P7-TRUE COPY OF ORDER DATED 30.3.2010 EXT.P8-TRUE COPY OF GO DATED 24.2.2010 EXT.P9-TRUE COPY OF JUDGMENT IN WPC 10373/2010 EXT.P10-TRUE COPY OF JUDGMENT IN WPC 13980/2010 AND 20860/2010 EXT.P11-TRUE COPY OF OBJECTION TO EXT.P4 APPEAL EXT.P12-TRUE COPY OF ORDER DATED 26.1.2011 RESPONDENTS' EXTS: EXT.R3(A)-TRUE COPY OF THE MINUTES OF THE EMETING HELD ON 31.10.2009 EXT.R3(B)-TRUE COPY OF NOTICE OF HEARING DATED 10.5.2010 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5711 of 2011-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of May, 2011. JUDGMENT The petitioner is the Manager of a Vocational Higher Secondary School and the challenge is against Ext.P12 order passed by the second respondent. The issue pertains to the continuance of suspension of the third respondent who is a Non Vocational Teacher in English in the school. 2. The third respondent was suspended from service as per Ext.P1 order dated 28.11.2009. It is the case of the petitioner that the second respondent approved the same as per Ext.P3 communication. In the meanwhile, the third respondent had approached the Director by Ext.P4 representation seeking reinstatement. It appears that during the pendency of Ext.P4, Ext.P5 memo of charges was issued and the petitioner appointed an Advocate as Enquiry Officer, as evident from Ext.P6 communication. While so, the second respondent directed the petitioner to reinstate the third respondent as per Ext.P7 communication. Ext.P8 is the order passed by the Government making applicable the provisions of Chapter XIV-A K.E.R. as far as the disciplinary proceedings against teaching and non teaching staff of aided Vocational Higher Secondary Schools. wpc 5711/2011 2 3. Ext.P9 is the judgment in W.P.(C) No.10373/2010 wherein this Court directed Ext.P4 representation filed by the third respondent, to be considered by the Director, after affording an opportunity of being heard to the third respondent as well as the petitioner herein. 4. Ext.P10 is the judgment in W.P.(C) Nos.13980/2010 and 20860/2010 wherein the validity of Ext.P7 communication issued by the Director was considered by this Court. Therein, this Court set aside Ext.P7 and directed the second respondent to pass orders after hearing the petitioner and the third respondent. It was directed that “the Director of Vocational Higher Secondary Education shall hear both parties and pass appropriate orders within a period of two months from the date of receipt of a copy of the judgment.” 5. It is the case of the petitioner that a hearing was proposed to be held on 30.11.2010 at 11 a.m. But the matter was heard by the Administrative Officer in the office of the second respondent, one Mr. Reji Varghese and the second respondent was not present and he did not hear the parties. Thereafter, the petitioner was served with Ext.P12 order dated 26.1.2011 wherein he was directed to reinstate the third respondent, which is under challenge in this writ petition. 6. The third respondent has filed a detailed counter affidavit. wpc 5711/2011 3 7. It is the contention of the learned counsel for the petitioner that the directions issued by this Court in the judgments referred to earlier, have not been complied with by the second respondent by conducting a proper hearing and the hearing, if at all done by the Administrative Officer, will not be a substitute for a hearing which had to be conducted by the Director. The learned counsel for the third respondent argued that there is no legal infirmity. Evidently, there is no dispute that the hearing was conducted by the Administrative Officer. In that view of the matter, it cannot be said that the directions issued by this Court in the judgments referred to above, have been properly complied with. When the second respondent was directed to hear the parties and pass orders, the second respondent himself should have heard the parties personally, before taking a decision in the light of the various contentions raised and in the light of the various directions issued by this Court. Evidently, he had not the advantage of personally hearing the submission of the parties concerned. It is pointed out that both parties had raised various contentions during the course of hearing. 8. One of the issues raised by the petitioner is the challenge against Ext.P8 Government Order whereby the procedure prescribed under Chapter XIV-A K.E.R. has been directed to be adopted in the matter of conduct of wpc 5711/2011 4 disciplinary proceedings in Vocational Higher Secondary Schools. Evidently, the said order came into effect after the order of suspension was passed. But still, since the disciplinary enquiry did not start at that point of time, I think, in the light of the peculiar facts of this case, the enquiry can be conducted as envisaged therein, since the main allegations against the third respondent is the alleged misbehaviour towards the Manager herself. Therefore, to have an independent and impartial enquiry, it is only proper that a department officer is appointed by the second respondent to conduct the enquiry also. The legal contentions raised by the petitioner against Ext.P8 are left open. 9. Therefore, Ext.P12 order is quashed. There will be a direction to the second respondent to re-hear the parties and take an appropriate decision with regard to the validity of the suspension and the continuance of the same sought by the Manager. He will pass appropriate orders with regard to the appointment of the enquiry officer. Orders will be passed within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) wpc 5711/2011 5 kav/