Kendriya Vidyalaya Sangathan ... vs Smt. Kavita Srivastava & Another
2017 Latest Caselaw 1756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 3							A.F.R
 

 
Case :- SERVICE BENCH No. - 1070 of 2014
 
Petitioner :- Kendriya Vidyalaya Sangathan through Commissioner New Delhi
 
Respondent :- Smt. Kavita Srivastava & another
 
Counsel for Petitioner :- Rajendra Singh, Abdul Moin
 
Counsel for Respondent :- R.C. Saxena
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Shri Abdul Moin, learned counsel appearing for petitioners, and Shri R.C. Saxena, learned counsel appearing for claimant-respondent.

2. This petition is directed against judgment and order dated 19.09.2013 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as 'Tribunal') in Original Application No.191 of 2007, Kavita Srivastava Vs. Kendriya Vidyalaya Sangathan and others, whereby Tribunal, while allowing aforesaid original application, has quashed removal order dated 21.01.2004 of claimant-respondent, Smt. Kavita Srivastava, and directed for her reinstatement.

3. Brief facts, in backdrop of which, this writ petition has come up for hearing, are that the claimant-respondent, who was initially appointed as PGT (English) in 1993, transferred and posted at Kendriya Vidyalaya, Patna in the year 2000. She was again transferred to Kendriya Vidyalaya, Chowpan in the year 2002. She applied for casual leave and left station after taking permission to leave the Headquarter. It appears that claimant-respondent did not come back to Headquarter and submitted applications for leave on medical grounds. A show cause notice was issued to her on 30.12.2003 asking her to explain within a period of 10 days from the date of receipt of Memorandum, why loss of her lien to the post be not confirmed. However, she did not submit her representation/explanation in response to the show cause notice. Instead she applied for four weeks more time for submitting representation, which was denied and she was removed from services with effect from 23.09.2002, the date from which she remained absent, vide order dated 21.01.2004. The claimant-respondent challenged her removal order dated 21.01.2004 by filing Original Application No.191 of 2007 which has been allowed by Tribunal and removal order has been quashed. Hence, this petition.

4. Sri Moin, learned counsel appearing for Kendriya Vidyalaya Sangthan (hereinafter referred to as "K.V.S.") assailing Tribunal's order dated 19.09.2013 contended that claimant-respondent had neither reported for duty after lapse of one year nor submitted any application. She was directed to appear before Medical Board on 25.11.2003 but did not get herself medically examined and left the office. Competent authority issued Memorandum dated 30.12.2003 under Article 81 (d)(3) of Education Code (hereinafter referred to as 'Code'), communicating her provisional loss of lien on the post held by her and also directed to show cause, why order of provisional loss of lien should not be confirmed, but she did not submit her explanation and sought four weeks time for reply. After lapse of 15 days, claimant-respondent was removed from services in view of provisions of Article 81(d)(1) of Code, but Tribunal failed to appreciate the intent of Article 81 of Code. Tribunal has also failed to consider that there was no violation of Article 14 of Constitution of India.

5. Learned counsel for the claimant-respondent has submitted that there is a clearcut violation of principles of natural justice in the case of claimant-respondent. She should have been given a reasonable opportunity of presenting her case. After giving show cause notice, neither her application seeking four weeks' time to submit explanation was rejected nor her application for leave on medical ground was disbelieved. She also appeared in the office of Assistant Commissioner for medical examination, but no Medical Board was available there. Thus, order of removal was passed arbitrarily and Tribunal has rightly quashed the same.

6. Before coming to rival contentions of parties, we propose to notice the relevant provision of Code i.e. Article 80 of the Code which reads as under:-

"ARTICLE 80, EXTENSION OF THE APPLICATION OF CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 "

(a) All employees of Kendriya Vidyalayas, Regional Offices, ZIET's and the Headquarters of the Sangathan shall be subject to the disciplinary control of the Sangathan and the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as amended from time to time, will apply mutatis mutandis to all members of the staff of the Sangathan except when otherwise decided. (in the above Rules, for the words "Government Servant" wherever they occur, the words "Employee of Kendriya Vidyalaya/Kendriya Vidyalaya Sangatha" shall be substituted).

(b) The posts under the Sangathan and Kendriya Vidyalaya have been classified and Group A,B,C & D posts in the context of Rule 6 of CCS (CCA) Rules, 1965.

(c) The Appointing, Disciplinary, Appellate and Reviewing Authorities for various posts in the KVS (HQ) office, Regional offices, ZIETs and Kendriya Vidyalayas shall be as specified in the KVS (Appointment, Promotion, Seniority etc. )Rules, 1971."

7. Thus, Article 80 of Code provides for extension of application of CCS (CCA) Rules, 1965 in respect of employees of Kendriya Vidyalayas, Regional Officer, ZIETs and the Headquarters of the Sangathan unless otherwise provided. As per CCS (CCA) Rule, 1965 there is a procedure provided for imposing minor/major penalties. The Principle of natural justice that no man should be condemned unheard is applicable in this case also. A Constitution Bench in Union of India and another Vs. Tulsi Ram Patel AIR 1985 SC page 1416 has held that "unless specifically excluded by statute, observance of principle of natural justice i.e. twin principles, namely no one shall be condemned unheard and no one shall be a Judge of his own cause, is necessary before condemning a person for something".

8. In the present case, claimant-respondent was treated as having voluntarily abandoned her services and lien to the post.

9. The normal procedure for initiation of a departmental proceeding for unauthorized absence has been provided under Article 81 (D) of the Code, which may be quoted as below:

"(D) VOLUNTARY ABANDONMENT OF SERVICE

1. If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave ojriginally granted or subsequently extended, he shall provisionally lose his lien on his post unless :-

a)he returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended, as the case may be; and

b)satisfies the Appointing Authority that his absence or his inability to return on the expiry of the leave, as the case may be, was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid, shall be deemed to have voluntarily abandoned his service and would, thereby, provisionally lose lien on his post.

2. An employee, who has provisionally lost lien on his post in terms of the aforesaid provisions, shall not be entitled to the pay and allowances or any other benefit after he has provisionally lost lien on his post.-

The payment of such pay and allowances will be regulated by such directions as the Appointing Authority may issue while ordering reinstatement of the employee in terms of sub-clause 6) of this Article.

3. In cases falling under sub-clause (1) of this Article, an order recording the factum of voluntary abandonment of service by the employee and provisional loss of his lien on the post, shall be made and communicated to the employee concerned at the address recorded in his service book and/or his last known address, to show cause why the provisional order above mentioned may not be confirmed (Appendix - XIII).

4. The employee may make a written representation to the Appointing Authority, within ten days of the receipt of the order made under sub-clause (3).

5. The Appointing Authority may, on receipt of the representation, if any, and on perusal of materials available on record as also those submitted by the employee, grant, at his discretion, an oral hearing to the employee concerned to represent his case.

6. If the Appointing Authority is satisfied after such hearing that the employee concerned has voluntarily abandoned his service in terms of the provisions of sub-clause (1) of this Article, he shall pass an order confirming the loss of employee's lien on his post, and in that event, the employee concerned shall be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan with effect from the date of his remaining absent. In case, the Appointing Authority is satisfied that the provisions of sub-clause (1) of clause (d) of this Article are not attracted in the facts and circumstances of the case, he may order reinstatement of employee to the post last held by him, subject to such directions as he may give regarding the pay and allowances for the period of absence.

10. It is not disputed that claimant-respondent, after serving for some time in petitioner's organization was transferred to Sitapur and thereafter to Patna. The dispute arose when she was transferred to Patna. Admittedly, she remained absent for a long duration. As such a show cause notice was issued on 30.12.2003 to claimant-respondent under Article 81(D) of the Code, as to why provisional loss of lien on the post due to her absence be not confirmed. The said notice was received by her on 10.01.2004. She sought four weeks time for submission of her representation in response to the show cause notice. Having got no reply within time stipulated, an order dated 21.01.2004 was passed removing claimant-respondent from her services w.e.f. 23.09.2002, the date from which the claimant-respondent was absent. It is alleged that without granting time to submit her explanation and without disbelieving her application for medical leave, order for her removal was passed on 21.01.2004, which tantamounts to denial of natural justice. It is not disputed that claimant-respondent had applied for medical leave. She was called for examination before Medical Board in the office of Assistant Commissioner. She also visited office of Assistant Commissioner, but since Medical Board was not available, she waited for some time and thereafter left the place, which has been treated as default on the part of petitioner for non compliance of order of examination by Medical Board.

11. It is not disputed that her application for medical leave was not rejected by petitioner and she was called for medical examination, which shows that factum of her illness was not disbelieved. She attended office for Medical Board, but petitioners failed to arrange Medical Board. Since there was a total fault on the part of petitioners, we failed to understand as to how petitioners could be held justified in resorting to termination treating applicant-respondent to have abandoned service under Article 81(D), when she admittedly sought leave on medical grounds, her application was not rejected and her illness was not disbelieved. On the contrary, she was required to appear before Medical Board which she complied but on the date fixed petitioners itself failed to arrange Medical Board. In these circumstances, order of termination passed by petitioners was patently illegal showing total non application of mind as also petitioners are taking advantage of their own wrong. Tribunal, therefore, has rightly set aside order of removal dated 21.01.2004 and impugned judgment of Tribunal dated 19.09.2013 challenged in writ petition cannot be said to be erroneous in any manner and there is no manifest error apparent on the face of record warranting interference in this writ petition.

12. The writ petition is dismissed.

13. Interim order, if any, stands vacated.

Order Date :- 3.7.2017

MVS Chauhan-Arvind/-