Siva Dutt. V.K vs Union Of India
2021 Latest Caselaw 13189 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                        WP(C) NO. 10201 OF 2021
PETITIONER

             SIVA DUTT V.K, AGED 53 YEARS,
             S/O. P.VIJAYAN NAIR, SUPERINTENDING ENGINEER,
             INDIAN INSTITUTE OF SCIENCE EDUCATION AND RESEARCH,
             THIRUVANANTHAPURAM, MARUTHUMALA P.O, VITHURA,
             THIRUVANANTHAPURAM-695 551.

             BY ADVS.KALEESWARAM RAJ
                     SRI.VARUN C.VIJAY
                     KUM.THULASI K. RAJ


RESPONDENTS:

    1        UNION OF INDIA, REPRESENTED BY THE SECRETARY TO
             GOVERNMENT, MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
             SASHTRI BHAWAN, 'C' WING, RAJENDRA PRASAD ROAD,
             NEW DELHI-110 001.

    2        INDIAN INSTITUTE OF SCIENCE EDUCATION AND RESEARCH,
             REPRESENTED BY ITS DIRECTOR, THIRUVANANTHAPURAM,
             MARUTHAMALA P.O, VITHURA, THIRUVANANTHAPURAM-695 551.

    3        THE DIRECTOR, INDIAN INSTITUTE OF SCIENCE EDUCATION AND
             RESEARCH, THIRUVANANTHAPURAM, MARUTHUMALA P.O, VITHURA,
             THIRUVANANTHAPURAM-695 551.

    4        THE REGISTRAR, INDIAN INSTITUTE OF SCIENCE AND RESEARCH
             THIRUVANANTHAPURAM, MARUTHUMALA P.O, VITHURA,
             THIRUVANANTHAPURAM-695 551.

    5        THE DEAN (INFRASTRUCTURE AND PLANNING),
             INDIAN INSTITUTE OF SCIENCE AND EDUCATION AND RESEARCH
             THIRUVANANTHAPURAM, MARUTHUMALA P.O, VITHURA,
             THIRUVANANTHAPURAM-695 551.

             BY ADVS.SRI.MILLU DANDAPANI, R2-R5
                     SRI. P. VIJAYAKUMAR - ASGI(R1)

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION               ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 10201 OF 2021
                                    -2-


                              JUDGMENT

Dated this the 24th day of June, 2021

A Superintending Engineer (Civil) of Indian

Institute of Science Education and Research,

Thiruvananthapuram (hereinafter referred to as

'IISER'), has approached this Court being

aggrieved by the fact that his employer has

proposed certain action against him under Rule 19

of the Central Civil Services Conduct Rules ('the

Rules' for short), solely because he had chosen to

approach this Court on an earlier occasion.

2. The petitioner points out to Ext.P12

memorandum issued to him on 18.04.2021, wherein an

allegation has been made that he was on

unauthorized absence from 08.04.2021 onwards and

threatening him with a disciplinary action if he

does not join on or before 19.04.2021. WP(C) NO. 10201 OF 2021

3. The petitioner says that the bedrock of

the allegations in Ext.P12 are based on a wrong

understanding of the true facts; and that in any

event of the matter, any Statutory provision that

gives unbridled powers to the employer to initiate

action merely because an employee initiates legal

recourse against a legitimate cause cannot be

found to be constitutionally or legally valid. He,

therefore, prayed that Rule 19(1) of the Rules be

set aside as being unconstitutional and to declare

that he is entitled to have eligible leave

sanctioned to him, without being proceeded as

threatened through Ext.P12.

4. I have heard Sri.Kaleeswaram Raj - learned

Counsel for the petitioner; Smt.Sumathi Dhandapani

- learned Senior Counsel instructed by Sri.Millu

Dhandapani - learned Standing Counsel for

respondents 2 to 5 and Sri.P.Vijayakumar - learned

Assistant Solicitor General of India appearing for WP(C) NO. 10201 OF 2021

the 1st respondent.

5. Even though various allegations, averments

and assertions are made by both the parties in

this writ petition, it may not be necessary for

this Court to go into them in detail at this stage

on account of certain intervening developments.

When this matter was earlier considered by me on

21.06.2021, it was brought to my notice by

Smt.Sumathi Dhandapani - learned Senior Counsel,

that since the petitioner had remained on

unauthorized absence from 08.04.2021 till

19.04.2021 - when he rejoined pursuant to Ext.P12,

her clients intend to initiate action against him

appropriately. On that day, I had asked the

learned Senior Counsel whether it would be

possible to treat bygones be bygones and the

petitioner allowed to work without being under the

threat of disciplinary action for his absence

between 08.04.2021 and 19.04.2021, to which the WP(C) NO. 10201 OF 2021

learned Senior Counsel very fairly submitted that

she will come back to this Court with proper

instructions.

6. Today, when this matter was called,

Smt.Sumathi Dhandapani submitted that, taking note

of the sentiment of this Court, her clients have

decided not to take disciplinary action against

the petitioner for his absence between 08.04.2021

and 19.04.2021, though they maintain that this is

unauthorized and that the request of the

petitioner for leave will be suitably considered.

She added that, however, the aforesaid concession

is offered to the petitioner exclusively on the

condition that he will not avail leave or be on

unauthorized absence without following due

procedure in future.

7. Sri.Kaleeswaram Raj - learned Counsel for

the petitioner, accepted the suggestion of

Smt.Sumathi Dhandapani as afore; but added that WP(C) NO. 10201 OF 2021

his client's contentions against Rule 19(1) of the

Rules being valid, it may be left open to be

persuaded by him in future. He then proceeded to

request that since his client's leave application

for the periods of absence is now agreed to be

considered favorably by the employer, all the

benefits for the said period may also be directed

to be paid, including deferred salary. He,

thereafter, assured this Court - offering that it

be recorded as an undertaking - that his client

will not avail any leave or be on unauthorized

absence without obtaining prior permission from

the Controlling Authorities as per the extant

Rules and Regulations relating to employees of the

IIESR.

8. When I consider the afore submissions, it

is clear that nothing remains for adjudication on

merits by this Court at this stage and it is

certainly appreciable that parties have chosen to WP(C) NO. 10201 OF 2021

accede to the suggestion of this Court for an

amiable resolution of issues between them.

In the afore circumstances, I record the

submissions of the learned Senior Counsel as afore

as also that of Sri.Kaleeswaram Raj made on behalf

of the petitioner, and close this writ petition

without any further orders; however, leaving open

all rival contentions, including the vires of Rule

19(1)of the Rules, to be pursued by the petitioner

in this regard in future, if it becomes so

warranted.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 10201 OF 2021

APPENDIX OF WP(C) 10201/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JOINING REPORT OF THE PETITIONER DATED 07.04.2021.

EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR EARNED LEAVE DATED 08.04.2021, SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE MAIL FROM THE 5TH RESPONDENT REJECTING HIS LEAVE APPLICATION.

EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE LEAVE RULES OF THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LEAVE HISTORY OF THE PETITIONER.

EXHIBIT P6 TRUE COPY OF O.M. NO. 14028/2000-

ESTT(L) DATED 27.03.2001 ISSUED BY THE DEPUTY SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.

EXHIBIT P7 TRUE COPY OF EMAIL DATED 03.03.2021 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 09.04.2021 IN W.P.C NO. 9690/2021.

EXHIBIT P9 TRUE COPY OF THE EMAIL DATED 11TH APRIL, 2021 SUBMITTED BY THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE E-MAIL DATED 09.04.2021.

WP(C) NO. 10201 OF 2021

EXHIBIT P11 TRUE COPY OF THE MEMORANDUM NO.

IISER(T)/PICA/GEN/01/2021 DATED 12.04.2021.

EXHIBIT P12 TRUE COPY OF THE MEMORANDUM DATED 18.04.2021 ISSUED BY REGISTRAR OF THE RESPONDENT INSTITUTION.

EXHIBIT P13 TRUE COPY OF THE MEDICAL PRESCRIPTION OF THE MOTHER OF THE PETITIONER.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE