IMPORTANT POINT
Termination – If a statute provides for doing a thing in a particular manner than it should be done in that fashion only and not otherwise.

JUDGMENT :

PANKAJ MITHAL, J.

1. Heard Shri R. Basant, senior counsel for the petitioner and Shri Gaurav Agrawal, senior counsel for the respondent.

2. Kerala Agricultural University has preferred this Special Leave Petition challenging the judgment and order dated 26.08.2022 passed by the Division Bench of the High Court of Kerala in Writ Appeal No. 298 of 2022, T.P. Murali vs. Kerala Agricultural University. The Division Bench after setting aside the judgment dated 21.12.2021 passed in Writ Petition (C) No.17803 of 2021, quashed the order dated 30.07.2021 passed by the Vice Chancellor of the university terminating the services of the respondent T.P. Murali.

3. The Division Bench in allowing the writ appeal, though quashed the termination order passed against the respondent but refused to direct for his reinstatement as he had attained the age of superannuation during the pendency of litigation. Thus, it only directed the university to decide and disburse the pensionary benefits to the respondent to which he may be entitled as per the relevant statues and rules.

4. The respondent T.P. Murali had joined the Kerala Agricultural University as Assistant Professor on 24.03.1988. After having worked for about 11 years, he took a long Leave Without Allowance¹[In short ‘LWA’] of 20 years from 05.09.1999 to 04.09.2019 in four blocks of five years each to take up employment in Community College, Pennsylvania, USA.

5. The respondent failed to resume his duties on the expiry of the LWA on 04.09.2019 as he was in USA at that time and was allegedly suffering from serious ailments. It is alleged that he had expressed his intention to rejoin duty via e-mail but still did not rejoin, allegedly for reasons of his health and, thereafter, due to intervening COVID-19. He could only return to India by the first Vande Bharat flight in July, 2020 and requested for rejoining but was not allowed, rather he was handed over the Memo of Charge dated 15.07.2020 stating that he had remained on unauthorized absence w.e.f. 05.09.2019 and has thus committed statutory violation leading to misconduct. A formal departmental inquiry was initiated after the reply of the respondent to the show cause notice/charge memo was not found to be satisfactory. The Inquiry Committee of three members vide Exh.P17 concluded that the respondent violated the LWA conditions by not joining the duty before the completion of 20 years period of LWA. Upon consideration of the above Inquiry Report, the Vice Chancellor vide order dated 30.07.2021 and in exercise of its delegated power as per the resolution of the Executive Council dated 23.01.2021 allegedly following the procedure prescribed under the rules, terminated the services of the respondent w.e.f. 05.09.2019.

6. The respondent challenged the aforesaid termination order by invoking the writ jurisdiction of the High Court but the said writ petition was dismissed vide judgment and order dated 21.12.2021. The learned Single Judge recorded that the respondent violated the statutory rules by not resuming his duties immediately upon the expiry of leave period. His explanation regarding his illness and intervening COVID-19 was not acceptable, therefore his overstay on leave was not liable to be condoned. The respondent failed to place on record if he had drawn salary for the period of overstay of leave from his employer in USA.

7. The aforesaid judgment and order of the learned Single Judge on writ appeal by the respondent has been set aside by the Division Bench on the ground that the university has not followed the procedure prescribed under the rules for holding the disciplinary inquiry and that the respondent was genuinely and bona fidely forbidden from resuming his duties in time.

8. We have carefully examined the impugned judgment and order of the Division Bench as well as the other material papers. On the admitted position, respondent had proceeded on a long leave of 20 years from 05.09.1999 to 04.09.2019 and had not resumed his duties i