Procedural fairness requires a fresh hearing when there is undue delay and a lack of evidence consideration.

J U D G M E N T

The petitioner is stated to be the former Manager of St.Johns Syrian Higher Secondary School, Vadakara. One Smt.Bindumol P. Abraham, was a teacher who was working in the School managed by the petitioner. She was placed under suspension from 29.07.2010 to 07.10.2011. The salary to the afore teacher for the afore period was also paid and pursuant to the directions of this Court in Ext.P1, the payment of salary to the teacher was also made absolute. At the same time in Ext.P1, the liberty was extended with reference to the action “proposed” against the then Manager of the School, strictly in accordance with the provisions of the Kerala Education Rules. The directions in Ext.P1 to the extent was interpreted by the Authorities in the Education Department, as entitling them to proceed against the petitioner herein, was challenged by the Manager before a Division Bench of this Court. By Ext.P3 judgment dated 16.02.2021, the Division Bench clarified that there was no such peremptory direction to proceed against the petitioner. Therefore, the petitioner was permitted to treat the proceedings issued against him as a show cause notice and to file an appropriate reply.

2. On the basis of the afore, the petitioner submitted Ext.P4 objection to which Ext.P5 communication was issued by the Deputy Director of Education, directing the petitioner to appear for a personal hearing on 30.06.2021. The petitioner has submitted Ext.P6 hearing note, followed by Ext.P7 additional hearing note. However, the impugned order at Ext.P8 has been issued on 18.03.2023, seeking to make the petitioner liable for an amount of Rs.4,11,295/- representing the salary paid to the afore Smt.Bindumol P. Abraham. It is seeking to challenge Ext.P8 that the petitioner is before this Court.

3. Heard Sri.Brijesh Mohan, the learned counsel for the petitioner, as well as Smt.Sylaja S.L., the learned Government Pleader.

4. As regards the order at Ext.P8, in my opinion, there are more than one infirmity. Firstly, the hearing was scheduled to be conducted on 30.06.2021 as evidenced by Ext.P5. The petitioner has also responded by producing/filing Exts.P6 and P7. The order at Ext.P8 came to be issued more than two years later. Therefore, in my opinion, if such delay was there, a fresh hearing notice ought to have been issued to the petitioner, and the petitioner heard in person. Secondly, a reading of Ext.P8 shows that there is no discussion with reference to the contents of Exts.P4, P6 or P7 while issuing the order at Ext.P8. For the afore reasons, I am of the opinion that Ext.P8 requires to be set aside directing fresh consideration.

5. Sri.Brijesh, the learned counsel for the petitioner, would also seek to rely on the averments in the reply affidavit of the petitioner filed to the counter affidavit of the State to contend that the petitioner, being the Manager, had no other go than to abide by the directions issued by the various authorities, including the stay orders issued by this Court, and that is why salary was paid to the afore Smt.Bindumol P. Abraham. This Court also notices the judgment at Ext.P1, wherein also the payment made to the afore Smt.Bindumol P. Abraham was made absolute. These aspects also have not been addressed to or considered by the 1^st respondent herein, though such details were forming part of the departmental files. To that extent also, the order at Ext.P8 requires to be set aside. Sri.Brijesh, also states that the educational agency also ought to have been brought on record with reference to the principles laid down by this Court in Beevi Umma S. v. Assistant Educational Officer, Trivandrum [ 2016 (1) KHC 628 ]

In such circumstances, this writ petition