Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941 WP(C).No.6481 of 2019 PETITIONER: SANGEETH.R.S, S/O. S RAJAN, NANDHANAM, KP 21/824, AKSHARA 15, CHEENIVILA, KALLAYAM P.O, THIRUVANANTHAPURAM 695 043. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K. SOBHA, AGED 60, D/O. KAMALAVENI C, NANDHANAM, KP 21/824, AKSHARA -15 CHEENIVILA, KALLAYAM P.O, THIRUVANANTHAPURAM 695 043. BY ADVS. SRI.HARI.S.NAIR SRI.R.B.RAJESH RESPONDENTS:
1 KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD, KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN 695 033 REPRESENTED BY ITS MANAGING DIRECTOR 2 THE CHIEF GENERAL MANAGER (CHR AND ADMIN) KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM PIN 695 033. 3 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001. BY ADV. SMT.M.A.ZOHRA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.6481 of 2019 2
JUDGMENT
This writ petition is filed challenging Ext.P17 order of termination issued to the petitioner and seeking a declaration that the petitioner was entitled to be deemed to have continued in the service of the first respondent, with all consequential benefits.
2. It is stated that the petitioner had
been appointed as Officer (HR) under the first respondent on 28.8.2013. After completing the period of probation, his appointment was confirmed with effect from 30.3.2014. Petitioner was granted leave for four months from 16.10.2017 to 15.2.2018. He sought for and was granted extension of leave till 15.6.2018. Thereafter, his request for further extension of leave up to 6.10.2019 was turned down by the
first respondent. It is stated that thereafter Ext.P10 show cause notice was issued to the WP(C).No.6481 of 2019 3
petitioner requiring him to show cause as to why his services shall not be terminated. It is submitted that Ext.P11 reply had been submitted
by the petitioner. Thereafter Ext.P12 communication was issued requiring the petitioner to report for duty within fifteen
days of receipt of the notice. The petitioner again submitted Ext.P13 request seeking extension of the time granted. Though Ext.P14 was issued requiring the petitioner to report for duty on 5.2.2019 to the unit from where he had been relieved, the petitioner did not join duty. Thereafter Ext.P15 communication was issued stating that the petitioner's name will be removed from the rolls of the Company with
effect from 6.2.2019. Though petitioner submitted Ext.P16 letter, Ext.P17 Office Memorandum has been issued terminating the
petitioner's services which is under challenge.
3. The learned counsel for the petitioner submits that the termination is vitiated by non affording of an opportunity to the petitioner to WP(C).No.6481 of 2019 4 state his case. Relying on the Ext.P18 Conduct, Discipline and Appeal Rules, 1986 applicable to non-workmen under the first respondent, the learned counsel for the petitioner would submit
that no order imposing any of the major penalties could be passed except after conduct of an enquiry under the Rules. It is further contended that Rule 31 of Ext.P18 Rules, which provides for termination without notice on the employee being unauthorisedly absent for more than seven days, has been struck down by this Court in a decision reported in K.V.Anilkumar v. Kerala State Electronics Development Corporation [2007(3)KHC 547]. It is therefore contended that the petitioner's conduct and the letters issued by him would clearly show that there was no intention to desert or to abandon the service and that the petitioner had sought time to re- join which ought to have been allowed by the respondents. Relying on the decision of the Division Bench of this Court in Vasanthy Mohan v. The Nedungadi Bank [ W.A.Nos.1109 & 1288 of
WP(C).No.6481 of 2019 5 2013] it is also contended that a clause providing for automatic termination was not
sustainable and therefore could not be relied upon, since such rules would confer arbitrary power on the authorities with the result that services of permanent employees can be terminated at any time without any justification and without ulterior motives.
4. A counter affidavit had been placed on record by respondents 1 and 2. It is stated that the petitioner had been repeatedly put on notice that the first respondent was not competent to extend the leave for a period of more than four months and that the Government having rejected the petitioner's request for extension of leave, no extension of time to re- join duty could be allowed. It is stated that
repeated opportunities had been given to the petitioner to rejoin duty even after the Government had rejected the petitioner's request for extension of leave. It is stated that the petitioner had no intention to rejoin duty as is WP(C).No.6481 of 2019 6 clear from his unreasonable demand to be posted in a specific station. It is further submitted that the decision referred to by the petitioner has no application in the instant case. It is contended that the petitioner's case was a clear case of overstayed of leave and that the petitioner had been informed that he is liable to report back for duty failing which his name would be struck off the rolls. It is therefore contended that the leave rules applicable to the employees of the respondents specifically provides that application for leave shall be in
the prescribed form and should be applied in advance to the sanctioning authority. It is stated that in the petitioner's case, the
petitioner's request for leave in excess of four months could not have been considered by the first respondent. The leave application had therefore been forwarded to the Government. It is stated that the management has a discretion to sanction or not to sanction the leave or to sanction leave only for a shorter period and to WP(C).No.6481 of 2019 7 recall the employees before the completion of the period of the sanctioned leave. It is stated that the employees who absents himself without
getting due sanction will be treated as an unauthorised absentee and action to terminate his services was liable to be taken. It is
stated that on expiry of the leave granted, the employee is expected to report for duty immediately. In the instant case, it is stated that though the petitioner had repeatedly been required to rejoin duty, since the period of sanctioned leave had admittedly expired, the petitioner had refused to do so and as such, respondents had no other option than resort to termination as has been done in Ext.P17.
5. The learned counsel for respondents 1 and 2 also relies on the decision of the Apex Court in Dr.Anil Bajaj v. Postgraduate Institute of Medical Education & Research and another [2002(2)SCC 240] to contend that where leave has been granted for a specific period and it is
intimated that his service would stand WP(C).No.6481 of 2019 8 terminated if he does not re-join duty, the Principle of Estoppel would apply and the
petitioner would have no legal right to seek to rejoin service after the time prescribed.
6. I have considered the contentions
advanced. It is admitted that the petitioner had sought for and had been granted leave for the period from 16.10.2017 to 15.2.2018. The leave applied for was leave without pay for joining the spouse abroad. The leave was further extended till 15.6.2018. After the expiry of the period of leave sanctioned, the petitioner did not rejoin duty. It appears that extension of the leave had been sought for by the petitioner. The said request was forwarded to the Government by the first respondent, since the leave rules provided that the first respondent could not have granted leave in excess of four months. The petitioner was informed that his request had been forwarded to the Government but since no orders have been issued sanctioning the enhanced leave as sought for, he was required to rejoin WP(C).No.6481 of 2019 9 duty. However, even after the extended period of
leave, the petitioner did not rejoin duty. By Ext.R1(b) proceedings dated 18.12.2018, the Government rejected the leave application submitted by the petitioner. This was informed
to the petitioner by Ext.R1(c). Thereafter also, the petitioner had been granted opportunities to
rejoin duty. This is clear from Ext.R1(d) notice dated 11.1.2019. The petitioner sought further time. It was only thereafter that Ext.P17 Office Memorandum had been issued striking off the petitioner's name from the
rolls of the Company, since he had not reported for duty.
7. The petitioner who had admittedly
availed leave and had left the country to join his spouse cannot be heard to contend that he has been terminated from service without due procedure. The petitioner had been clearly informed that his application for extension of leave could not be granted by the first respondent and the same had been forwarded to
WP(C).No.6481 of 2019 10 the Government. After the Government rejected the petitioner's application for leave by
Ext.R1(b) proceedings, the petitioner was duly informed and was required to rejoin duty. Ext.P10 show cause notice was also issued to the petitioner requiring him to show cause as to why his service should not be terminated for overstayed of leave. The replies submitted by the petitioner would show that though he had been requesting time to rejoin duty, he had no
actual intention of so rejoining. It is only after repeated intimation to rejoin duty had failed to evoke any positive response that
Ext.P17 order of termination has been rendered against the petitioner.
8. Though the learned counsel for the petitioner places reliance on the decisions of this Court reported in Vasanthy Mohan's Case
(Supra) I am of the opinion that the said decisions are not applicable in the instant case where the petitioner has admittedly overstayed after the leave period and has refused to rejoin WP(C).No.6481 of 2019 11 duty in spite of repeated intimations requiring him to do so.
9. In view of the fact that the petitioner had been granted leave from 16.10.2017 to 15.2.2018 to join his spouse abroad and the leave had been extended only till 15.6.2018 and in the absence of any competent order further
extending the leave, it is clear that the petitioner was on unauthorised absence from 15.6.2018 onwards. Several opportunities have
also been given to the petitioner to rejoin duty which he chose not to do. In the above view of the matter, I am of the opinion that the prayers sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed. SD/- ANU SIVARAMAN JUDGE ACM / 22.6.2019 WP(C).No.6481 of 2019 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
NO. PD/KH/2013/2 DATED 28/08/2013. EXHIBIT P2 TRUE COPY OF THE OFFICE MEMORANDUM NO. PD 20/146299/2014 DATED EXHIBIT P3 TRUE COPY OF GO(RT) NO. 1228/2015/ID DATED 21/11/2015 EXHIBIT P4 TRUE COPY OF THE OFFICE MEMORANDUM NO. PD 20/146299/2015 DATED EXHIBIT P5 TRUE COPY OF THE RELIEVING ORDER NO. KEC/HRD/F-42/146299/15 DATED EXHIBIT P6 TRUE COPY OF THE LEAVE APPLICATION DATED 17/12/2017 EXHIBIT P7 TRUE COPY OF THE OFFICE MEMORANDUM NO. CHR/KCA/LWP/146299/2018 DATED EXHIBIT P8 TRUE COPY OF THE REQUEST LETTER TO THE 1ST RESPONDENT DATED 06/07/2018. EXHIBIT P9 TRUE COPY OF THE LETTER NO. CHR/LWP/146299/2018 DATED 10/08/2018 EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE NO. CHR/KCA/LWP/146299 DATED EXHIBIT P11 TRUE COPY OF THE REPLY LETTER DATED EXHIBIT P12 TRUE COPY OF THE NOTICE NO. CHR/LWP/146299/2018 DATED 27/12/2018.
WP(C).No.6481 of 2019 13 EXHIBIT P13 TRUE COPY OF THE EMAIL REQUEST SENT TO THE 2ND RESPONDENT DATED EXHIBIT P14 TRUE COPY OF THE EMAIL COMMUNICATION RECEIVED BY THE PETITIONER DATED EXHIBIT P15 TRUE COPY OF THE EMAIL COMMUNICATION RECEIVED BY THE PETITIONER DATED EXHIBIT P16 TRUE COPY OF THE EMAIL REPLY SENT TO THE 2ND RESPONDENT DATED 09/02/2019
EXHIBIT P17 TRUE COPY OF THE TERMINATION ORDER
ISSUED BY 1ST RESPONDENT. EXHIBIT P18 TRUE COPY OF THE RELEVANT PAGES OF THE CONDUCT, DISCIPLINE AND APPEAL RULES, 1986 OF THE KELTRON. EXHIBIT P19 TRUE COPY OF THE CERTIFICATE NO. KEC/HRD/F-10/146299/17 DATED RESPONDENT'S EXHIBITS :- EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 11.10.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT RI(b) TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT ON 18.12.2018 EXHIBIT R1(c) TRUE COPY OF THE EMAIL SENT BY THE PETITIONER TO THE RESPONDENT ON 5.1.2019 EXHIBIT R1(d) TRUE COPY OF THE LETTER DATED 11.01.2019 SENT BY THE RESPONDENT CORPORATION TO THE PETITIONER. EXHIBIT R1(e) TRUE COPY OF THE EMAIL DATED 2.2.2019 ISSUED TO THE 1ST RESPONDENT BY THE PETITIONER.