IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 22366 of 2009(M) ------------------------- PETITIONER : -------------------- A.P.HARIDAS, HSA, GHSS, VALAD, MANANTHAVADI, WAYANAD DISTRICT, ASARIPARAMBATH HOUSE, AROOR P.O., KAKKATTIL, VADAKARA. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KALPETTA, WAYANAD DISTRICT. *ADDITIONAL RESPONDENT R3 IMPLEADED 3. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. *IMPLEADED AS ADDITIONAL 3RD RESPONDENT AS PER THE ORDER DATED 23/12/2009 IN IA.NO. 16035/09 R1 TO R3 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22366 of 2009(M) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 7-2-2002. EXT.P2 : COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK. EXT.P3 : COPY OF THE JUDGMENT IN SC NO. 374/03 DATED 25-6-2008 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC) I, KALPETTA. EXT.P4 : COPY OF THE ORDER DATED 6-10-08 OF THE 2ND RESPONDENT. EXT.P5 : COPY OF THE REPRESENTATION DATED 27-10-2008. EXT.P6 : COPY OF THE NOTICE DATED 7-4-09 ISSUED BY THE 1ST RESPONDENT. EXT.P7 : TRUE EXTRACT OF THE REPRESENTATION DATED 6-5-2009. EXT.P8 : COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 27-6-2008. EXT.P9 : COPY OF THE ORDER NO. A1/6427/09 DATED 7-12-2009 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE. EXT.P10 : COPY OF THE REQUEST DATED 5-12-09 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P11 : COPY OF THE RELEVANT PAGE OF LAST PAY CERTIFICATE. EXT.P12 : COPY OF THE FORM OF OPTION WITH STATEMENT OF FIXATION OF PAY. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.22366 Of 2009 ----------------------------------------------------- DATED THIS THE 6th DAY OF DECEMBER, 2010 J U D G M E N T The challenge in this Writ Petition is against Exhibit P8 order by which the Deputy Director of Education directed to treat the period of suspension as eligible leave. The total period of suspension is from 7.2.2002 to 19.10.2008. 2. The petitioner while working as a High School Assistant (Social Studies) in the Government Model Higher Secondary School, Vellamunda was placed under suspension as per Exhibit P1 order. Thereafter, the suspension continued in the light of a criminal case charged against him as S.C.No.374/2003. There, he was acquitted as per judgment, Exhibit P3. He was reinstated in service as per Exhibit P4 order. Thereafter the petitioner filed an application as per Exhibit P5 seeking for a direction to release the full pay and allowance for the period 7.2.2002 to 19.10.2008. 3. The learned counsel for the petitioner submitted that Exhibit P8 order is passed without considering the effect of the judgment of the criminal court. It is pointed out that the petitioner was entitled for full pay and allowances as he was W.P.(C)No.22366/09 -2- acquitted of blame going by the judgment of the criminal court. It is further pointed out that in Exhibit P8 nothing has been decided by the Deputy Director of Education and the order is evidently passed in the light of the direction issued by the Director of Public Instructions referred to as item No.7 therein. It is pointed out that the petitioner was not at all heard by the Director of Public Instruction also. In paragraph 7 of the Writ Petition it is explained by the petitioner that he received a notice proposing to conduct a hearing on 16.4.2009 from the 1st respondent, which was declared as a holiday due to the election to the Parliament. Subsequently, a notice was issued proposing a hearing on 27.4.2009. It was addressed to the Government Higher Secondary School,Vellamunca whereas the petitioner was working at Valad Girls Higher Secondary School. A notice was served on him on 5.5.2009, after it was re-directed. Explaining these aspects, he forwarded a letter to the 1st respondent as per Exhibit P7. Mainly it is contended that the authority which reinstated the petitioner will have to take a decision and not by any other higher authority. 4. In the counter affidavit filed by the 1st respondent, W.P.(C)No.22366/09 -3- what is mentioned is that the departmental disciplinary action has not been finalised. It is also stated that the present order, Exhibit P8, is only an interim order. 5. The learned Government Pleader submitted that Rule 56 (B) of the Kerala Service Rules will not apply as far as the prayer made by the petitioner is concerned. 6. The learned counsel for the petitioner places strong reliance on the judgment of the Sessions Court and the decision of the learned Single Judge of this Court in Pathrose v. Kerala Water Authority (2008(3) KLT 635). The learned counsel for the petitioner submitted that Rule 57 of Part I KSR alone will apply to the facts of this case as evidently no disciplinary action was taken against him. The learned Government Pleader submitted that disciplinary proceedings have not been culminated in any final order so far. Evidently, the Deputy Director of Education who is the authority which suspended the petitioner has to go into the entitlement of the petitioner for full pay and allowances under any of the provisions of Part I KSR. He has only placed reliance upon the direction issued by the Director of Public Instructions. Whether Rule 56(B) or 57 of Part I KSR will apply in W.P.(C)No.22366/09 -4- the facts of this case is a matter for examination by the Deputy Director of Education independently and in accordance with the Rules. It is submitted by the learned counsel for the petitioner that he is receiving only half of the pay even after reinstatement and the present state of affairs is causing real trouble to him. 7. In that view of the matter, for passing a considered order after hearing the petitioner, Exhibit P8 is quashed. The learned counsel for the petitioner submitted that the letter said to have been issued by the Director of Public Instructions has not been communicated to the petitioner and therefore, the same cannot have any force. Petitioner will be free to take all contentions before the Deputy Director of Education. Appropriate orders will be passed by the Deputy Director of Education in accordance with law within a period of three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE.) dsn