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2022 Supreme(Ker) 636
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.Suresh Kumar, C.S. Sudha, JJ.
T.P. Murali @ Murali Thavara Panen – Petitioner
Versus
Kerala Agricultural University And Ors. – Respondents
WA NO. 298 of 2022
Decided On : 26-08-2022
Advocate Appeared:
For the Petitioner: V.M.Krishnakumar, P.R.Reena, P.S.Sidharthan, Maya M.
For the Respondent: Sri.Robson Paul, Sc, S.Sreekumar, Sr.Standing Counsel Adv. Renjith Thampan, Sr.
Point of Law : Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that conclusion which the authority reaches is necessarily correct in the eye of court.
Headnote:
Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 - Rule 15 and 24A Chapter III - Writ appeal - Termination from service - Whether disciplinary authority or appointing authority, i.e., respondents, were satisfied that a prima facie case for taking action against petitioner had been made out - If conclusion, upon consideration of evidence reached by disciplinary authority, is perverse or suffers from patent error on face of record or based on no evidence at all, a writ of certiorari could be issued.(Para 18).
Finding of the court :
Disciplinary authority failed to establish that failure of the petitioner to report for duty immediately on expiry of LWA was willful - No such finding has been given in Ext.P17 report. Though the appellant had taken a specific defence that he was unable to report for duty immediately due to health reasons and due to Covid 19 pandemic, the Disciplinary Committee in report has neither accepted nor rejected the same - In the absence of such a finding, it can only be held that Ext.P12 Memo of Charges does not stand established. That being so it cannot be concluded that the act of the petitioner was irregular amounting to official misconduct or is in violation of the Service Rules.
Results : Writ appeal allowed.
JUDGMENT :
C.S. Sudha, J.
Inability of an employee to report for duty on expiry of Leave Without Allowance (LWA) due to medical complications followed by the onset of Covid19 – would that amount to unauthorized absence entailing dismissal/termination from service as provided under Rule 24A Chapter III of the Kerala Service Rules Part-I (KSR)? What is the meaning of the expression-“service shall be terminated after following the procedure laid down” in the aforesaid Rule? Would failure to join duty immediately on expiry of LWA result in automatic dismissal from service? If on following the procedure contemplated under the Rule, the authorities concerned find the absence to be justified, do they have the power or discretion to condone the absence and permit the officer to join or are the authorities concerned clothed with no powers and consequently have no option but to dismiss the officer concerned? These are the questions that arise for adjudication in this appeal.
2. This is an appeal against the judgment dated 21/12/2021 in W.P.(C) No.17803/2021. The appellant is the petitioner and the respondents herein, the respondents in the writ petition. The parties and the documents will be referred to as described in the writ petition.
3. The petitioner, an Assistant Professor in the Kerala Agricultural University, i.e., the first respondent, proceeded on LWA for a period of 20 years from 05/09/1999 to 04/09/2019. According to the petitioner, who was gainfully employed in USA, he had taken steps in August, 2019 itself to join duty on expiry of his LWA. However, due to health reasons and the onset of Covid pandemic, he was able to report for duty in May 2020 only. The respondents ignoring the several written submissions given by him explaining the reasons for his inability to join duty immediately on expiry of LWA, issued Ext.P19 order terminating him from service relying on Rule 24A in Chapter III Part I KSR, Clause 6 of Appendix XII A of Part I KSR and the Kerala Agricultural University Statutes (KAU Statutes). Aggrieved, the writ petition was filed for quashing Ext.P19 order.
4. The respondents filed counter affidavit contending that the University had no other option but to terminate the services of the petitioner as he failed to join immediately on the expiry of his LWA.
5. The learned Single Judge by the impugned judgment found no illegality or perversity in Ext.P19 decision and hence the writ petition was dismissed. Aggrieved, the petitioner has come up in appeal.
6. Heard Adv.Renjith Thampan, the learned Senior counsel for the appellant/petitioner and Adv. S.Sreekumar, the learned Senior Standing counsel for the respondents.
7. Ext.P12 is the memo of charges dated 15/07/2020 issued to the petitioner, in which the allegation is that the petitioner has “committed the offence of unauthorized absence w.e.f. 05/09/2019 by not rejoining duty after availing LWA for 20 years, the maximum period of leave permissible for employment abroad, with effect from 05/09/1999 to 04/09/2019”. The petitioner was directed to show cause as to why disciplinary action as contemplated under the KAU Statutes should not be taken. He was allowed 15 days’ time to submit his defence in writing and in case his written defence was not received within the time specified, he was told that the matter would be proceeded with on the presumption that that he had no explanation to offer. In the Statement of Allegations, it is alleged that as the petitioner had not returned to duty immediately on the expiry of leave, his services are liable to be terminated after following the procedure in the KAU Statutes. It is also stated that the action of the petitioner is highly irregular, which involved official misconduct and violation of the Service Rules, warranting stringent disciplinary action.
8. According to the respondents, the petitioner was bound to join duty immediately on expiry of his LWA and failure to do so would amount to misconduct leading to punishment including remova
