IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WA NO. 298 OF 2022
AGAINST THE JUDGMENT DTD 21/12/2021 IN WP(C) 17803/2021 OF HIGH
COURT OF KERALA
APPELLANT/PETITIONER IN WPC 17803/2021:
T.P. MURALI @ MURALI THAVARA PANEN,
AGED 59 YEARS
S/O.KUNHIKANNAN, MADHAVOM, XXVI/240, GURUVAYOOR P.O.,
THRISSUR-680 101.
BY ADVS.V.M.KRISHNAKUMAR
P.R.REENA
P.S.SIDHARTHAN
MAYA M.
RESPONDENTS/RESPONDENTS IN WPC 17803/2021:
1 KERALA AGRICULTURAL UNIVERSITY,
VELLANIKKARA, KAU POST, THRISSUR, PIN-680656,
REPRESENTED BY ITS REGISTRAR.
2 THE REGISTRAR
KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, KAU POST,
THRISSUR, PIN-680656.
3 PRO-CHANCELLOR
KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, KAU POST,
THRISSUR, PIN-680656.
BY ADVS. SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
UNIVERSITY ADV.S.SREEKUMAR, SR.STANDING COUNSEL
ADV.RENJITH THAMPAN, SR.
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 26.08.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.298 of 2022
2
"CR"
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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Writ.Appeal No. 298 of 2022
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Dated this the 26th day of August, 2022
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 Covid- 19 - 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) W.A.No.298 of 2022 3 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 W.A.No.298 of 2022 4 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 W.A.No.298 of 2022 5 immediately on expiry of his LWA and failure to do so would amount to misconduct leading to punishment including removal from service, after following the procedure prescribed. In support of this argument reference is made to the decisions in U.Mohammed v. State of Kerala, 2007(3) KHC 248; Bini John v. Regional Deputy Director of Collegiate Education, Kochi, 2017 (2) KHC 213 and Government of Kerala v. P.Gopinathan, 2019 (4) KHC 896.
9. Misconduct has not been defined in the KSR or in the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960(the Rules 1960). The fact that the petitioner is bound by the aforesaid Rules is not disputed. His only case is that by virtue of Statute 4 in the Statutes Prescribing the Conditions of Service Relating to the Officers, Teachers and other Employees of the Kerala Agricultural University, 1972, the conditions of service applicable to Government servants contained in the KSR and KS&SR shall, mutatis mutandis apply to university employees, subject to the provisions of the KAU Act, 1971 and its Statutes and Ordinances.
10. The Apex Court in M.M. Malhotra v. Union of India, 2005 (8) SCC 351: AIR 2006 SC 80 has held that the range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the W.A.No.298 of 2022 6 categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of a precise definition. But at the same time though incapable of precise definition, the word "misconduct" receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
11. In Union of India v. Harjeet Sing Sandhu, [2001] 5 SCC 593, in the background of Rule 14 of the Army Rules, it has been held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be "misconduct". In Baldev Singh Gandhi v. State of Kearla, [2002] 3 SCC 667, it has been held that the expression "misconduct" means unlawful be- haviour, misfeasance, wrong conduct, misdemeanor etc.
12. Coming to Rule 24 A in Chapter III and Clauses 3, 6 and 9 of Appendix XII A of KSR Part I, relied on by the respondents in justification of Ext.P19 order reads -
"24A. Notwithstanding anything contained in these rules, if an officer who availed himself of leave without allowance to take up employment abroad or within the country or for joining spouse for a total period of twenty years, W.A.No.298 of 2022 7 whether continuously or in broken periods, does not return to duty immediately on the expiry of the leave, his service shall be terminated after following the procedure laid down in the Kerala Civil Services (Classification, Control and Appeal) Rules,1960."
Clauses 3, 6 and 9 read-
"APPENDIX - XII A RULES FOR THE GRANT OF LEAVE WITHOUT ALLOWANCES FOR TAKING UP EMPLOYMENT ABROAD OR WITHIN INDIA
1. xxxx xxxx
2. xxxx xxxx
3. No other kind of leave will be sanctioned in combination with or in continuation of, the leave under these rules, except leave under Appendix XII C.
4. xxxx xxxx
5. xxxx xxxx
6. The maximum period of leave that may be sanctioned to an officer during his entire service shall be limited to 20 years and such leave shall not extent beyond twelve months before their date of superannuation. If the officer who has availed himself of the leave without allowances for a total period of 20 years whether continuously or in broken periods, does not return to duty immediately on the expiry of the leave, his service shall be terminated after following the procedure in Kerala Civil Services(Classification, Control and Appeal) Rules, 1960. This condition shall be incorporated in every order sanctioning such leave.
7. xxxx xxxx
8. xxxx xxxx
9. Those Officers who absent themselves unauthorisedly without getting the leave sanctioned under these rules shall be proceeded against and their service terminated after following the procedure laid down in the Kerala Civil Services (Classification, W.A.No.298 of 2022 8 Control and Appeal) Rules 1960. Requests for re-entertainment in Government Service in such cases as well as in cases covered by Rule 6 above, will be summarily rejected." (Emphasis supplied)
13. A reading of Rule 24A and Clause 6 of Appendix XII A makes it evident that failure to join immediately on expiry of leave, does not automatically lead to dismissal/termination of the Officer concerned, but the termination can be only after following the procedure laid down in Rules 1960. As per Clause 9, it is those officers "who absent themselves unauthorizedly" who are liable to be terminated and that too after following the procedure laid down in Rules 1960. What is the procedure contemplated under Rules 1960? The penalties that can be imposed on an Officer are enumerated in Rule 11 of Rules 1960. The penalties in items (i) to (iv) of Rule 11 (1) are classified as minor penalties and those in items
(v) to (ix) as major penalties. The procedure prescribed in Rule 15 has to be followed for imposing major penalties and that of Rule 16 for minor penalties. Termination is certainly a major penalty and therefore the procedure contemplated under Rule 15 has to be followed. Clause (a) to sub-rule (2) to Rule 15 says that the disciplinary authority or the appointing authority or any other authority empowered by the Government to take action in this behalf should be satisfied that there is a prima facie case for taking action against the Officer, only then can he frame a definite charge or charges which shall be communicated to the Officer W.A.No.298 of 2022 9 concerned. Sub-rules (3) to (8) deal with the procedure to be followed in the enquiry. Sub-rule (9) says that at the conclusion of the enquiry, the enquiry authority shall prepare a report on the enquiry, recording its findings on each of the charges together with the reasons therefor. Sub-rule (10) deals with the record of enquiry which inter alia is to include a report setting out the findings on each charge and the reasons therefor. Therefore, a reading of the aforesaid provisions make it clear that a proceeding under Rule 15 is to be initiated by the authority concerned only if it is satisfied that there is a prima facie case for taking action against the Officer concerned. Sub-rules (9) and (10) to Rule 15 make it clear that the reasons for arriving at the findings must also be specified in the enquiry report.
14. Before Ext.P12 Memo of Charges was issued to the petitioner, it is not clear from the materials on record as to whether the disciplinary authority or the appointing authority, i.e., the respondents, were satisfied that a prima facie case for taking action against the petitioner had been made out. No materials are on record to show that this prima facie satisfaction was arrived at, before proceedings were initiated against the petitioner. The allegation of the petitioner, that his medical condition followed by the Covid pandemic situation made it impossible for him to travel from USA to Kerala, is not seen disbelieved or rejected in Exbt.P17 report of enquiry. Further, nobody can dispute the fact that there was a complete ban imposed by the Government due to the onset of Covid- W.A.No.298 of 2022 10
19. The petitioner's allegation that he had returned to Kerala by the first available Vandematharam flight and thereafter he had to undergo institutional quarantine, is also not seen rejected or disbelieved in the report. Therefore, the question is, was the petitioner' s failure to report for duty immediately the next day of the expiry of the LWA 'unauthorized'? The Disciplinary Committee itself does not seem to be sure of the same, which is clear from the findings of the Enquiry Committee recorded at (g) and (j) of the Ext.P17 report which reads -
"g. Additionally, the genuineness of the poor health conditions that is being claimed by Dr. T.P. Murali, needs to be ascertained by seeking the opinion of an appropriate Medical Board in India. j. Dr.T.P.Murali had sent a Medical Certificate issued on 18.09.2020 through email dated 9 Oct.2020 to the Enquiry Committee while Dr.T.P.Murali was in India. The genuineness of this Medical certificate need to be ascertained by the competent authority, ideally a Medical Board, as it was issued by a doctor based in USA while the patient was in India."
15. Therefore without ascertaining the genuineness of the medical certificates relied on by the petitioner, a conclusion could not have been arrived at by the enquiry committee. Further, there is no specific finding in Ext.P17 report to the effect that as the medical certificates relied on by the petitioner are not genuine, they have been rejected and therefore the failure of the petitioner to join immediately on expiry of LWA constitutes unauthorised absence. Such a finding is conspicuously absent in Ext.P17 report.
W.A.No.298 of 2022 11
16. What is unauthorised absence has been explained in Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd, AIR 1989 SC 1854. The Apex court explained the same in the context of Clause (c) of Regulation 16.14 of Jammu and Kashmir Industries Employees Service Rules as per which the services of an employee can be terminated by the Company if he remains on unauthorised absence. It provides that the services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice and the management is empowered to take a decision without resorting to further enquiries. It has been held that an officer who "remains on unauthorised absence" means an employee who has no respect for discipline and absents himself repeatedly and without any justification or the one who remains absent for a sufficiently long period. The object and purport of the regulation is to maintain efficiency in the service of the company.
17. In Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 explaining R.3(1)(ii) and R.3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, dealing with the duty to maintain integrity, devotion to duty and to do nothing unbecoming of a Government servant, it has been held that the question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling W.A.No.298 of 2022 12 circumstances. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
18. As regards the scope of judicial review in the context of disciplinary proceedings, the Apex Court in M. V. Bijlani v. Union of India, (2006) 5 SCC 88 has held that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e., beyond all reasonable doubt, it cannot be lost sight that the enquiry officer performs a quasi-judicial function, W.A.No.298 of 2022 13 who upon analysing the documents must arrive at a conclusion that there is a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact and he cannot also refuse to consider the relevant facts.
19. In B.C. Chaturvedi V. Union of India, (1995) 6 SCC 749 it has been held that judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court / Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice have been complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receive support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court / Tribunal in its power of judicial review does not act as appellate authority W.A.No.298 of 2022 14 to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court / Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court / Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
20. In Union of India v. H.C. Goel, AIR 1964 SC 364 it has been held that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
21. In the case on hand, the disciplinary authority failed to establish that the failure of the petitioner to report for duty immediately on expiry of LWA was wilful. 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 the 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 W.A.No.298 of 2022 15 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.
22. Therefore, Ext.P19 order terminating the services of the petitioner based on Ext.P17 report wherein there is no finding that his absence was wilful or unauthorised cannot be justified and deserves to be set aside. Hence, we do so.
In the result, the writ appeal is allowed and the impugned judgment is set aside. As it is submitted that the petitioner has already attained the age of superannuation, his reinstatement in service is not possible. The respondents will therefore consider, decide and disburse the service and pensionary benefits to which the petitioner is entitled to as per the relevant Statutes and Rules applicable, as if he has rejoined duty on the expiry of the leave. This exercise shall be completed within a period of three months from the date of receipt of a copy of this judgment.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
P.B.SURESH KUMAR JUDGE Sd/-
C.S.SUDHA JUDGE ami/jms