Anil Khan S vs The University Of Kerala
2021 Latest Caselaw 3205 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

      FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                       WP(C).No.23489 OF 2014(I)


PETITIONER/S:

                ANIL KHAN S
                AGED 47 YEARS
                S/O.SHAHUL HAMEED, TC 43/672,VALIYAVEEDU LANE, HOUSE
                NO.139,KAMALESWARAM, TRIVANDRUM-9

                BY ADVS.
                SRI.P.K.IBRAHIM
                SMT.K.P.AMBIKA
                SRI.G.KIRAN
                SMT.A.A.SHIBI

RESPONDENT/S:

                THE UNIVERSITY OF KERALA
                UNIVERSITY BUILDING, PALAYAM, TRIVANDRUM,
                PIN 695 001, REPRESENTED BY ITS REGISTRAR

                R1 BY SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF
                KERALA
                R1 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA

OTHER PRESENT:

                SC,UTY OF KERALA- SRI.THOMAS ABRAHAM

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.23489 OF 2014(I)

                                     2



                              JUDGMENT

Dated this the 29th day of January 2021

This Court after hearing the argument in detail noticing

the fact that enquiry officer appointed qua service of the

allegation of charges against the petitioner vide enquiry

report dated 18.4.2012 absolved the petitioner of all the

charges and recommended for treating the period of absence

from 2.7.2009 to the date of joining to be regularized by

treating it as leave without allowance. In pursuance to the

pending disciplinary enquiry, the petitioner was permitted to

join as per the order Ext.P7. However, the Syndicate of the

University in its meeting held on 12.2.2013 against Item

No.16.60 resolved to impose minor penalty of censure upon

the petitioner.

2. The counter affidavit filed on behalf of the

University do not deal with any compliance of provisions of

Kerala University First Statutes 1977 as statute No.41

provides that the disciplinary authority shall, where it is not

the inquiring authority to consider the records of the inquiry WP(C).No.23489 OF 2014(I)

and where it is considered necessary to depart from the

findings of the inquiring authority, record its findings on each

charge with reasons thereof. It is in that background the

order dated 21.1.2021 was passed by this Court except by

referring to Rule 41, inadvertently has mentioned as 42; the

same is ordered to be corrected.

3. Additional affidavit on behalf of the University has

been filed by Registrar-in-charge. In paragraph 5, it has been

stated that Syndicate decided to issue a minor penalty of

"censure" to the petitioner as early as on 12.2.2013 whereas

the petitioner approached this Court only in 16.4.2014 and

Ext.P6 report of enquiry reveals that the recommendation of

the enquiry officer was in fact to permit the petitioner to

rejoin duty 'after withholding of two increments with

cumulative effect'.

4. Mr. P.K Ibrahim, learned counsel for the petitioner

submits that though the Syndicate has reduced the

recommendation viz imposition of minor penalty of "censure",

but did not regularize the service of absence, which was not at

all fault of the petitioner. In fact, the petitioner had applied

for a leave for taking employment abroad as per the WP(C).No.23489 OF 2014(I)

Government order dated 16.12.1983. Requested for extension

of LWA for two years with effect from 3.7.2009. The leave

was not sanctioned and reported to be unathorizedly absent

from duty with effect from 2.7.2009. The Syndicate of the

University at its meeting held on 25.1.2007 resolved that all

the employees, who completed 5 years of LWA be called back

due to the exigency of service. Petitioner vide order dated

21.12.2009, was directed to rejoin the duty immediately vide a

memo and in reply thereto, requested, vide communication

dated 30.12.2009, for extension of LWA for two years for

completing the project work he had undertaken.

Subsequently, reported in the University on 30.5.2011 by

seeking permission to rejoin duty with effect from 1.6.2011.

In the meeting held on 1.7.2011, it was resolved to permit all

the employees on LWA, who are willing to rejoin duty as per

rules. The legal opinion was also to permit him to rejoin duty

but the Syndicate vide item No.3.77 dated 26.9.2011 decided

to terminate his service as per rules i.e. as per the provisions

of Kerala University First Statutes, 1977. Vide Annexure P5,

the decision to terminate was reviewed and enquiry was

directed to be conducted. Enquiry officer conducted the WP(C).No.23489 OF 2014(I)

proceedings and found that the total period of leave that can

be granted for the purpose to an employee during one's entire

service is 20 years as per the Government order. No doubt

the syndicate of the University is competent to cancel the

leave but University did not proceed with the action relating

to the disciplinary proceedings like issuing of memo of

charges and statement of allegations which were part of the

provisions for disciplinary proceedings for the unauthorized

absence against the accused, though it was mentioned in the

memo dated 21.12.2009. Petitioner reported in the University

seeking permission to rejoin duty with effect from 1.6.2011.

But there was no disciplinary action pending against the

petitioner as on the date of his reporting for duty. The

petitioner had made a request dated 30.5.2011 for rejoining

duty, even at that period no disciplinary action was pending

against him. It is in that circumstances, the petitioner could

not have been denied the relief of regularization qua forceful

absence.

5. Per contra, Mr. Thomas Abraham, counsel for the

respondent submits that the regularization for a period dated

1.6.2011 to 9.9.2012, including the service benefits ie., salary WP(C).No.23489 OF 2014(I)

and promotion, if not accepted would amount to un-authorized

absence. Ext.P7 memo was issued to the petitioner on

7.9.2012 requiring him to rejoin duty on or before 15.9.2012.

The University instead of accepting the recommendation of

the enquiry officer to bar two increments with cumulative

effect, took a lenient stand and issued only a minor penalty of

censure. The petitioner had availed LWA for a period of 4

years and 9 months and 14 days as on 1.7.2009 and only

eligible for 2 months and 16 days with effect from 3.7.2009.

He was required to rejoin duty in the said communication.

But did not rejoin and therefore cannot seek the regularization

of the period as it has to be treated as unauthorized.

6. In rebuttal, Mr. P.K Ibrahim, learned counsel for the

petitioner submitted that the fact of the matter is that the

syndicate in its meeting dated 26.9.2011, Ext.P3 granted leave

without allowance for a period of two years with effect from

2.7.2009 and request for extension of LWA for a period of two

years was not granted but treated as absent from 2.7.2009.

The aforementioned resolution is not correct as there was no

such order rejecting the leave application of the petitioner

submitted on 30.5.2011. As a matter of fact, the case of the WP(C).No.23489 OF 2014(I)

petitioner is made out from the contents of letter dated

21.12.2009, Ext.R1(a) informing the petitioner that the

petitioner was entitled to leave only up to 17.9.2009 by

calculating the period of 2 months and 16 days with effect

from 2.7.2009. The petitioner had submitted an application

for extension of leave without allowance with effect from

3.7.2009. As the sanctioned leave period expired on 1.7.2009,

he was to actually apply for further extension with effect from

2.7.2009 instead of 3.7.2009.

7. On receipt of the communication Ext.R1(a) dated

21.12.2009, vide Ext.P11 dated 30.12.2009 the petitioner

requested the University to grant him extension of LWA for

two years starting from 2.7.2009. It was further contended

that in order to belie the stand of the respondent, the

petitioner sought information under the RTI Act and on

receipt of the information Ext.P12 dated 2.5.2016, it is

surfaced that certain persons have been granted extension

beyond the period of 5 years. Thus the requirement of

exigency services had not been complied with in letter and

spirit. The respondents have followed adopted pick and

choose policy, thus, the action is vitiated in law. WP(C).No.23489 OF 2014(I)

8. I have heard the learned counsel for the parties and

appraised the paper book. The leave without allowance as

per the contents of letter dated 21.12.2009, Ext.R1(a) expired

on 17.9.2009, petitioner was to submit his application on

2.7.2009 instead of 3.7.2009. The petitioner complied with

direction in pursuance ato contents of letter and requested the

University vide Ext.P11 to be treated as 2.7.2009. No decision

was taken thereon. Petitioner submitted his joining on

30.5.2011 with effect from 1.6.2011, Ext.P2. Vide Ext.P4

dated 26.9.2011 was permitted to join duty pending

disciplinary action. Enquiry officer appointed vide order

dated 28.11.2011, Ext.P5, in its report dated 18.4.2012,

Ext.P6 found that there was no disciplinary action pending as

on the date of reporting for duty and therefore period of

absence from 2.7.2009 to the date of joining was required to

be regularized by treating LWA. There was no order

rejecting his leave. Rule 53(6) of Manual for Disciplinary

Proceedings placed on record through memo dated

21.10.2020, provides that disciplinary action against

individuals who absent without leave and then return to duty

will be taken according to the normal procedure. No absentee WP(C).No.23489 OF 2014(I)

who returns to duty will be denied readmission to duty, unless

he has been, or is due to be placed under suspension pending

disciplinary proceedings, or final orders have already been

issued dismissing or removing him from service. Rule 53(6) of

Manual for Disciplinary Proceedings is reproduced herein

below:

53(6) 'Disciplinary action against individuals who absent without leave and then return to duty will be taken according to the normal procedure. No absentee who returns to duty will be denied readmission to duty, unless he has been, or is due to be placed under suspension pending disciplinary proceedings, or final orders have already been issued dismissing or removing him from service.'

I would be failing in my duties in not extracting the

relevant portion of letter Ext.R1(a) and reply thereto, Ext.P11

dated 30.12.2009.

Ext.R1(a):

The meeting of the syndicate held on 25.01.2007 resolved that all employees who have completed five years of Leave Without allowance be called back due to the exigency of service Shr. Aml Khan S, Selection Grade Assistant who has applied for Leave Without Allowance for two years with effect from 03.07.2009 for seeking employment outside India has availed Leave Without Allowance for a total period of 4 years 9 months and 14 days as on On 1.7.2009. Hence he is eligible for Leave Without Allowance for a further period of 2 months and 16 days with effect from 02.07 2009, which expired an 17.09.2009 He has submitted application for extension of Leave Without Allowance with effect from 03.07.2009. As the sanctioned leave period expired on 01.07.2009, he has WP(C).No.23489 OF 2014(I)

to apply for further extension with effect from 02.07.2009 instead of 3.7.2009.

He is directed to report for duty forthwith failing which disciplinary proceedings will be initiated against him for unauthorized absence from duty.

Ext.P11:

While working as a Sel.G Assistant in the University, the University had graciously granted me leave without allowance for a period of two years starting from 1.7.2007 in order to obtain foreign employment within India. This had helped me to make use of opportunity in the private sector. However as my leave period has come to an end without securing satisfactory completion of the job I had undertaken, I had applied for extension of my LWA on 30.6.2009 for a period of two years. Kindly know that should I leave my present job as of now, I stand to loose lot of benefits which are due from this job. In the circumstances I humbly request you, sir, to grant me an extension of LWA for two years starting from 2.7.2009.

9. It is a matter of record that the petitioner was never

placed under suspension. The enquiry officer was appointed

only on 28.11.2011. It is only on 7.9.2012, vide Ext.P7

petitioner was called upon to join duty on or before 15.9.2012

pending disciplinary action by giving a threat that in case he

faled to join, the proceedings of termination of services shall

be initiated. Thus the contents of the letter, Ext.P7 reflects

that some sort of vengeance against the petitioner in as much

as that on perusal of Ext.P12 an information received under

the RTI, reveals that certain persons whose leave had not

been sanctioned and had submitted their application later on, WP(C).No.23489 OF 2014(I)

but, were not proceeded in the manner as the petitioner has

been met with.

10. During the interregnum, it was contended by the

learned counsel for the petitioner that there have been

certain promotions and the petitioner was also deprived of his

livelihood as no salary was paid despite he was willing to join

with effect from 1.6.2011. None of the contents of the reply

or additional affidavit placed on record on behalf of the

respondent reveals that request of the petitioner submitted on

3.7.2009 which was to be actually submitted on 2.7.2009 was

ever rejected nor his request of 30.5.2011 to join was rejected

except that it was decided to hold disciplinary proceedings.

Though the enquiry officer recommended to treat the period

as the leave without allowance, the fact remains that the

petitioner expressed his willingness to join. Neither the

syndicate nor even the enquriy officer noticed the provisions

of Rule 53(6) of Manual of disciplinary proceedings. It

clearly supports the argument of the learned counsel for the

petitioner in seeking regularization of the services as he had

shown his willingness. Accordingly, the impugned action of

the respondent in not treating the regularization with effect WP(C).No.23489 OF 2014(I)

from 1.6.2011 to 9.9.2012 is wholly atrocious, fallacious and

against the disciplinary manual.

The writ petition is allowed. Respondents are directed

to regularize the service of the petitioner with effect from the

aforementioned period and grant him all service benefits.

SD/-

                                          AMIT RAWAL
  sab                                       JUDGE
 WP(C).No.23489 OF 2014(I)




                             APPENDIX
  PETITIONER'S/S EXHIBITS:

  EXHIBIT P1           EXHIBIT P1 COPY OF THE ORDER
                       NO.AD.A.1.3.205/07 DATED 30/6/2007
                       GRANTING LEAVE

  EXHIBIT P2           EXHIBIT P2 COPY OF THE SUBMISSION DATED
                       30/5/2011

  EXHIBIT P3           EXHIBIT P3 COPY OF THE RESOLUTION OF THE
                       SYNDICATE MEETING HELD ON 26/9/2011

  EXHIBIT P4           EXHIBIT P4 COPY OF THE NOTE TO THE
                       SYNDICATE DATED 26/9/2011

  EXHIBIT P5           EXHIBIT P5 COPY OF THE ORDER
                       NO.AD.A1.2/663/2011 DATED 28/11/2011
                       ISSUED BY THE RESPONDENT UNIVERSITY

  EXHIBIT P6           EXHIBIT P6 COPY OF THE ENQUIRY REPORT

NO.DR(ACAD)/EO/1/2012 DATED 18/4/2012

EXHIBIT P7 EXHIBIT P7 COPY OF THE MEMO NO.AD.A1.3.7605/12/12 DATED 7/9/2012 REQUESTING PETITIONER TO REJOINT DUTY

EXHIBIT P8 EXHIBIT P8 COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE SYNDICATE DATED 12/2/2013

EXHIBIT P9 EXHIBIT P9 COPY OF THE REPRESENTATION DATED 16/4/2014 ADDRESSED TO THE RESPONDENT

EXHIBIT P10 EXHIBIT P10 COPY OF THE MEMO NO.AD.A.1.1.1508/2014 DATED 19/6/2014 OF THE UNIVERISTY EXHIBIT P11 A TRUE COPY OF THE APPLICATION DATED 30.12.2009 FOR EXTENSION OF LEAVE AS REQUIRED BY THE UNIVERISTY IN THE COMMUNICATION DATED 21.12.2009.

EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 18.4.2016 UNDER RTI ACT ALONG WITH THE COMMUNICATION DATED 2.5.2016 FURNISHING INFORMATION