IMPORTANT POINTS
The conduct of a disciplinary enquiry after granting an opportunity to the employee may not change the situation in favour of the employee since based on the indisputable facts, there was only one conclusion possible, which is that the employee had abandoned the service

JUDGMENT :

BECHU KURIAN THOMAS, J.

1. Leave for employment abroad is a concept prevailing in various departments under the Government. It is contemplated as a piece of beneficial action for Government employees. However, occasionally, such beneficial schemes are exploited by some employees. When the situation turns unfavourable, they turn around and claim that they must be treated as continuing in the employment of the Government. No wonder, this court observed in Bini John vs. Regional Deputy Director of Collegiate Education, Kochi, 2017 (2) KHC 213, that such long leaves are putting to peril the efficiency of employment and even the chances of another aspirant who does not have the circumstances to go abroad, all of which call for the requirement of a re-look at the policy.

2. Petitioner while working as a Sub-Engineer in the Kerala State Electricity Board (for short ‘the Board’) was granted leave without allowance for a period of five years for taking up employment abroad. At that time, 5 years was the maximum possible duration for such leaves. The period of five years was from 14.11.2007 to 13.11.2012. He failed to rejoin duty on the day after the expiry of his leave. On noticing the absence of the petitioner and after a period of 7 months from the date of expiry of petitioner’s leave, the Board issued a notice on 12.06.2013, requesting the petitioner to rejoin duty immediately. Thereafter, on 22.06.2013 a show-cause notice was issued seeking an explanation from the petitioner for his failure to rejoin duty. Though there was no reply for the former, an explanation dated 01.08.2013 was submitted for the latter. The explanation was issued from Dubai, stating that his absence from 14.11.2012 to 24.7.2013 may be condoned. Petitioner also sought an extension of his leave without allowance for a further period of five years from 14.11.2012. After eleven months of the above-referred show-cause notice and reply, when the petitioner did not turn up to rejoin duty, a second notice was issued on 11.07.2014 to the petitioner requesting him to show cause why he should not be removed from the service of the Board with effect from the date of unauthorized absence i.e. from 14.11.2012. Even after the aforesaid notice posted to the address given in Dubai as well as that in Thiruvananthapuram, he did not rejoin service. Thereafter by Ext.P5 order dated 28.10.2014, petitioner was removed from the services of the Board with effect from the date of unauthorized absence. Petitioner thus challenges Ext.P5 order.

3. A counter affidavit has been filed by the 2nd respondent pointing out that after the expiry of the leave originally sanctioned, petitioner never rejoined duty nor submitted an application for extension of leave, and the same was applied for the first time only on 01.08.2013, that too, as a reply to the show cause notice dated 22.06.2013. It is further stated that from 14.11.2012, till the date of filing of the writ petition, petitioner had never approached the Board with an offer to rejoin duty, and instead, he continued to remain in Dubai. Respondents further pleaded that even though the notice was sent to the petitioner's residence as well as to his address abroad, he never responded to the same and in such circumstances, the petitioner was removed from service on account of the unauthorized absence.

4. I have heard Sri. Sudhinkumar, learned counsel for the petitioner and Smt. Aneetha A.G. learned Standing Counsel for the Board along with Adv. Smt. Anshala.

5. Adv. Sudhinkumar referred to various dates and submitted that it was not legally valid for the respondents to impose a major penalty of discharge from service for the alleged unauthorized absence of the petitioner. He submitted that there was no enquiry or any charge framed as mandated under the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969 (for short ‘the Regulations’). Learned counsel for the petitioner invited my attention to Reg