JUDGMENT

Order dated 30.7.2021 of the University removing the petitioner from the service of the University with effect from

5.9.1999 has been challenged.

2. Petitioner joined the Kerala Agricultural University on

24.3.1988. While working as Assistant Professor, after 11 years of service in the University. Petitioner got an opportunity for employment in Community College, Pennsylvania, in USA and was granted the Leave Without Allowance(LWA) for a period of 5 years each for 4 terms from 5.9.1999 to 4.9.2019, Exts.P1 and P1(a). Vide e-mail dated 11.2.2019 informed the Registrar of his intention to rejoin the University and requested that his leave for study propose from 28.9.1989 to 17.2.1994 be considered as study leave with service benefits, Ext.P2. The same very request was repeated vide e- mail dated 17.2.2019. It is submitted that the petitioner by that time was suffering from Parkinson's disease with Dystonia (a neuromuscular movement disorder on the left hemisphere of body) which affected left side body movement. He was undergoing treatment in Penn Medicine, Philadelphia from 2016 onwards as per Medical certificate Ext.P4. Because of medical condition, petitioner had requested the Registrar to permit him to rejoin duty only in May 2020. Vide communication dated 19.11.2019, Ext.P6, petitioner was informed by the Registrar of the University that the request for extension of joining time up to May 2020 could not be considered as per Part I of the KSR, Appendix 12 A. Without challenging the aforementioned order, petitioner sent another communication dated 30.4.2020 by submitting that he had fully recovered from neuromuscular problems and prepared to rejoin KAU by end of May 2020 but due to pandemic situation, no international flights including flights to India, were permitted to operate. Petitioner returned to India on 15.7.2020 by repatriation flights and on 16.7.2020 requested the University to permit him to rejoin duty, Ext.P11. But the University had served a memo of charges dated 15.7.2020, Ext.P12 with the following charges: i. That you, Dr. T.P Murali, Former Assistant Professor, College of Horticulture, Vellanikkara has committed the offence of authorized absence w.e.f 5.9.2019 by not rejoining duty after availing LWA for 20 years, the maximum period of leave permissible for employment abroad w.e.f 5.9.1999 to 4.9.2019.

ii. You are required to show cause why disciplinary action as contemplated under Kerala Agricultural University Statute SRO 293/72 should not be taken against you. You are allowed 15 days from the date of receipt of this communication to submit your written statement of defence. If your written statement is not received within the specified time, the matter will be proceeded with on the presumption that you have no explanation to offer.

A statement of allegation on which the above charges are based is here to attached.

3. The aforementioned charge sheet was duly replied vide Ext.P13 dated 10.8.2020. A hearing with the fact finding committee on 18.9.2020,was sought but entailed into removal.

4. Learned counsel appearing on behalf of the petitioner in support of the contentions raised the following submissions.

As per part I Statute and Ordinance of Kerala Agricultural University bearing SRO No.293 of 72 under Rule 6 thereof, the Registrar is competent to grant extra ordinary leave to the teachers and all other employees. The petitioner had been repeatedly requesting for such leave but the same was never granted. The enquiry report reveals that the enquiry committee could not ascertain the poor health condition claimed by the petitioner as the opinion from the appropriate medical board was required but in the absence of the same, impugned action could not have been taken. Rule 24A of KSR, provides that if the employee does not rejoin duty immediately on expiry of the leave action under the Kerala Civil Service (Classification, Control and Appeal) Rules is required to be taken. As he had suffered Parkinson's di