IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 13357 of 2010(S) -------------------------- OA.420/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. THE COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, 18, INSTITUTION AREA, SHAHEED JEETH SING MARG, NEW DELHI. 2. THE JOINT COMMISSIONER (VIGILANCE) KENDRIYA VIDYALAYA SANGATHAN, 18, INSTITUTION AREA, SHAHEED JEETH SING MARG, NEW DELHI. 3. THE EDUCATIONAL OFFICER (VIGILANCE) KENDRIYA VIDYALAYA SANGATHAN, 18, INSTITUTION AREA, SHAHEED JEETH SING MARG, NEW DELHI. 4. THE ASSISTANT COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, CHENNAI REGION, IIT CAMPUS, CHENNAI. 5. THE ASSISTANT COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, BANGALORE. 6. THE PRINCIPAL, KENDIRYA VIDYALA, PALAPPURAM, OTTAPALAM, PALLAKAD. BY ADV. SRI.V.V.ASOKAN SRI.MAHESH V.MENON RESPONDENT: --------------- INDIRA VINOD, VATIKA, PALAPURAM.P.O, OTTAPALAM, PALAKKAD DISTRICT. ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE FOR R1 SRI.MILLU DANDAPANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF LETTER ISSUED BY RESPONDENT DT.17.8.2000. P2: TRUE COPY OF ORDER OF 5TH PETITIONER DT.31.7.2001. P3: TRUE COPY OF ORDER IN OA NO.389/2003 OF CAT, ERNAKULAM DT.29.10.2004.. P4: TRUE COPY OF JUDGMENT IN WPC NO.10834/2005 DT.6.10.2005. P5: TRUE COPY OF ORDER OF THE APPELLATE AUTHORITY-KENDRIYA VIDYALAYA DT.19.6.2007. P6: TRUE COPY OF OA NO.420/08 FILED BY RESPONDENT DT.15.7.2008. P7: TRUE COPY OF REPLY STATEMENT FILED BY PETITIONER BEFORE THE TRIBUNAL DT.25.8.2008. P8: TRUE COPY OF ORDER OF CAT, ERNAKULAM IN OA 420/08 DT.3.3.2010. TRUE COPY PS TO JUDGE C .N. RAMACHANDRAN NAIR, & BHABANI PRASAD RAY, JJ. -------------------------------------------- W. P. C. No. 13357 of 2010 -------------------------------------------- Dated this the 2nd day of December, 2010 JUDGMENT Ramachandran Nair, J. This is the second round of litigation in the same matter, that is pertaining to unauthorized leave taken by a school teacher, the respondent herein. Respondent's husband, who was a Government employee, was posted in the Indian High Commission at London. In order to join him, respondent first applied for NOC from the petitioners for taking passport to go abroad and live with her husband for three years. Even though NOC was coupled with a request for three years' leave, petitioners unconditionally issued NOC, based on which respondent went to London and lived there. Even though respondent repeatedly sent applications for leave and extension of leave, petitioners did not grant any leave. In fact, some of the applications for leave are accompanied even by medical certificate about sickness, mis- carriage, etc. the respondent had while at London. Respondent's case is that petitioners' notice sent to her declining leave was not received by 2 her on account of change of residence in London. Petitioners took action under Article 81(d) of the Education Code under which respondent would be treated as having abandoned her job on a regular basis as she did not join duty within 15 days of service of notice which happened on 28.8.2000. Respondent of course lived in London for three years and when she reported for duty at the school at Ottappalam under the petitioners' management, she was informed of the proceedings taken against her under Article 81(d) of the Education Code as she having abandoned the job permanently. In the first round of litigation, when the respondent challenged the orders declaring her as out of service, the Central Administrative Tribunal ordered reinstatement. However, petitioners challenged the same in this Court, and a Division Bench of this Court vide judgment in WPC 10834 of 2005 though set aside the order of the Tribunal directing reinstatement, directed the petitioners to reconsider the matter and to complete the proceedings, if any, initiated within four months from the date of judgment. Even though judgment was delivered by the Division Bench on 6.10.2005, final orders are issued by the petitioners only on 3 19.6.2007. Respondent challenged the order in appeal and revision and thereafter before the Central Administrative Tribunal, which by impugned order, ordered reinstatement of the respondent, against which this WPC is filed by the petitioners. We have heard standing counsel appearing for the petitioners and senior counsel, Smt. Sumathy Dandapani, appearing for the respondent. 2. After hearing both sides, and after going through the impugned orders and orders of the tribunal, we find that respondent prior to going abroad on leave had 22 years of service with the petitioners as a teacher in the same school. Even though she was granted NOC to apply for passport and to go abroad on 18.4.1999, she in fact left the country only on 7.8.1999 after applying for leave for six months. Respondent's case is that she applied for long leave periodically and she had no information about denial of leave and the communications said to have been sent by the petitioners did not reach her because she shifted her residence. We notice that Tribunal has gone through the records and found that respondent was not served with any proceedings declaring her service as terminated under the above Article. However, 4 petitioners' case is that since leave was not granted on any of the applications submitted by the respondent, who knew the consequence, which was in fact known to her when she claimed that she had not received any communication from the petitioners. Even though we find force in this contention that respondent had gone abroad without the petitioners granting long time leave, we are of the view that petitioners have given the impression that she will be granted at least leave initially to go abroad and live with her husband for some time. Therefore, in our view, respondent was entitled to leave at least for the period she applied for. When a school teacher applied for NOC for taking passport to go abroad to join her husband coupled with her request for long time leave, it was the duty of the petitioners to inform her that long time leave was not permissible or cannot be granted so that the teacher going on leave to abroad should return within a reasonable period to rejoin duty. Therefore, in our view, the indifference of the petitioners partly led to the attitude of the respondent in not reporting for duty. She cannot therefore be said to have abandoned the job voluntarily. Further, considering the long 5 period of service she had with the petitioners, we feel the extreme punishment of removal imposed for unauthorized leave is excessive and arbitrary. In fact, in the first round of litigation itself, a Division Bench of this Court expressed it's opinion that serious punishment is not called for in the matter. We therefore do not want to interfere with the impugned order of the Tribunal, which ordered reinstatement of the respondent without backwages for over 11 years. We therefore dismiss the WPC. In view of inordinate delay that has happened in reinstatement of the respondent, we direct the petitioners to reinstate the respondent within two months from now. Sd/- (C.N.RAMACHANDRAN NAIR) Judge. Sd/- (BHABANI PRASAD RAY) Judge kk True copy PS to Judge