T.P. Murali @ Murali Thavara Panen vs Kerala Agricultural University
2022 Latest Caselaw 9682 Ker

                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.
                          ------------------------------------------
                             Writ.Appeal No. 298 of 2022
                     -----------------------------------------------------
                      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

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

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

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

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

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

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

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

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

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

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

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

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

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