IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 4675 of 2006(F) ----------------------------------- PETITIONER(S): ------------------------- MATHEW PAUL, AGED 53 YEARS, S/O. PAUL, PALAKKAL HOUSE, MADAKKATHANAM, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADVS.MR.P.K.ASHOKAN MR.V.JOHN SEBASTIAN RALPH SMT.DHANYA P.ASHOKAN RESPONDENT(S): ------------------------ 1. KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION (SIDCO), REPRESENTED BY ITS MANAGING DIRECTOR. 2. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF INDUSTRIES SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADVS. MR.M.A.MANHU, SC, SIDCO R1 BY MR.R.T.PRADEEP R2 BY GOVERNMENT PLEADER ARAVINDA KUMAR BABU T.K THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4675/2006 APPENDIX P1:- COPY OF THE NON OBJECTION CERTIFICATE DTD. 27.5.98 ISSUED BY THE IST RESPONDENT. P2:- COPY OF THE LEAVE APPLICATION DTD.9.1.01. P3:- COPY OF THE LETTER DTD. 10.1.01 ISSUED TO THE IST RESPONDENT. P4:- COPY OF THE LETTER DTD. 30.1.01 ISSUED BY THE IST RESPONDENT P5:- COPY OF THE REPRESENTATION DTD. 31.1.01 ISSUED TO THE IST RESPONDENT. P6:- COPY OF THE REPRESENTATION DTD. 12.3.01. P7:- COPY OF THE SHOW CAUSE NOTICE DTD. 28.5.01 ISSUED BY THE IST RESPONDENT. P8:- COPY OF THE REPLY DTD. 1.7.01 ISSUED TO THE IST RESPONDENT. P9:- COPY OF THE LETTER DTD. 5.4.02 ISSUED BY THE PETITIONER. P10:- COPY OF THE REPLY DTD. 14.5.02 ISSUED BY THE PETITIONER. P11:- COPY OF THE LETTER DTD. 19.12.02 ISSUED BY THE IST RESPONDENT. P12:- COPY OF THE REPLY TO EXT.P11. P13:- COPY OF THE SHOW CAUSE NOTICE DTD. 23.12.04 ISSUED BY THE IST RESPONDENT. P14:- COPY OF THE SHOW CAUSE NOTICE DTD. 15.1.05 ISSUED BY THE IST RESPONDENT. P15:- COPY OF THE PROCEEDINGS DT. 18.8.2005 OF IST RESPONDENT. P16:- COPY OF THE PROCEEDINGS DTD. 16.5.05 OF IST RESPONDENT. P17:- COPY OF THE PROCEEDINGS DTD. 24.12.02 OF IST RESPONDENT. P18:- COPY OF THE PROCEEDINGS DTD. 10.5.05 OF IST RESPONDENT. RESPONDENT'S EXHIBITS R1(1):- COPY OF THE CIRCULAR NO.10432/EPE-1/95/PLG THIRUVANANTHAPURAM DTD. 20.1.96 ISSUED BY PLANNING & ECONOMIC AFFAIRS DEPARTMENT, GOVERNMENT OF KERALA RELATING TO GRANT OF LEAVE WITHOUT ALLOWANCES. R1(2):- COPY OF THE CIRCULAR NO.19666/L1/97/ID DTD. 21.7.97 ISSUED BY THE INDUSTRIES DEPARTMENT, RELATING TO SANCTION/ OR EXTENSION OF LEAVE. W.P.(C) NO.4675/2006 R1(3):- COPY OF THE MEMO OF CHARGES DTD. 30.4.01 AGAINST THE PETITIONER ISSUED BY MANAGING DIRECTOR, KERALA SIDCO, TRIVANDRUM. R1(4):- COPY OF THE ACKNOWLEDGEMENT OF THE REGISTERED LETTER ISSUED BY KERALA SIDCO TRIVANDRUM DTD. 21.5.01 WITH THE ENDORSEMENT REFUSED. R1(5):- COPY OF THE LETTER NO.21574/F2/2001/ID DTD. 4.8.01 ISSUED BY SECRETARY TO GOVERNMENT , INDUSTRIES (F) DEPARTMENT , TRIVANDRUM TO THE MANAGING DIRECTOR, KERALA SIDCO, TRIVANDRUM. R1(6):- COPY OF THE REPORT NO.VIG/17923/2001 DTD. 6.9.01 ISSUED BY KERALA SIDCO, TRIVANDRUM TO THE SECRETARY TO GOVERNMENT, INDUSTRIES (F) DEPARTMENT, TRIVANDRUM. R1(7):- COPY OF THE LETTER NO.21574/F2/2001/ID DTD. 6.11.01 ISSUED BY SECRETARY TO GOVERNMENT, INDUSTRIES (F) DEPARTMENT, TRIVANDRUM TO THE MANAGING DIRECTOR, KERALA SIDCO, TRIVANDRUM. R1(8):- COPY OF THE LETTER NO.VIG/17923/2001 DTD. 15.11.01 ISSUED TO THE PETITIONER BY THE ADMINISTRATIVE OFFICER, KERALA SIDCO, TRIVANDRUM. R1(9):- COPY OF THE LETTER NO.37959/F2/2001/ID DTD. 21.12.01 ISSUED BY THE SECRETARY, INDUSTRIES (F) DEPARTMENT, TRIVANDRUM WITH COPY OF THE LETTER TO THE HONOURABLE CHIEF MINISTER TO THE MANAGING DIRECTOR, KERALA SIDCO. R1(10):- COPY OF THE LETTER DTD. 18.1.02 ISSUED BY THE PETITIONER SHOWING CHANGE OF ADDRESS TO THE MANAGING DIRECTOR, KERALA SIDCO. R1(11):- COPY OF THE LETTER NO.VIG /17293/2001 DTD. 11.6.02 ISSUED BY KERALA SIDCO, TO THE SECRETARY TO GOVERNMENT, INDUSTRIES (F) DEPARTMENT, TRIVANDRUM RELATING TO THE REQUEST OF THE VOLUNTARY RETIREMENT OF THE PETITIONER. R1(12):- COPY OF THE LETTER NO.37959/F2/2001/ID DTD. 15.11.02 ISSUED BY SECRETARY, INDUSTRIES (F) DEPARTMENT , TRIVANDRUM TO THE MANAGING DIRECTOR, KERALA SIDCO TO INITIATE ACTION TO TERMINATE THE SERVICE OF THE PETITIONER. R1(13):- COPY OF THE LETTER NO.4285/F2/2003/ID DTD. 10.2.03 FORWARDED BY DEPUTY SECRETARY, INDUSTRIES (F) DEPARTMENT, TRIVANDRUM TO THE MANAGING DIRECTOR, KERALA SIDCO, TRIVANDRUM, FORWARDING COPY OF THE REPRESENTATION BY THE PETITIONER REQUESTING TO DROP THE PROCEEDINGS. R1(14):- COPY OF THE REPORT VIG/17923/01 DTD. 9.4.03 FURNISHED BY THE MANAGING DIRECTOR, KERALA SIDCO, TO THE SECRETARY TO GOVERNMENT, INDUSTRIES(F) DEPARTMENT, TRIVANDRUM. R1(15:- COPY OF THE NOTICE PUBLISHED IN INDIAN EXPRESS DAILY DTD. 1.3.05 BY THE WEBSITE OF SIDCO. TRUE COPY P.S. TO JUDGE tss V.K.MOHANAN, J. ---------------------------------------- WPC. No.4675 of 2006 ---------------------------------------- Dated, the 5th day of August, 2009 JUDGMENT The petitioner, who was working as Senior Accountant in the Ist respondent corporation, had applied for Leave without allowance for a period of 5 years to take up employment in U.S.A. The said request was rejected on 13.1.2001 and therefore he applied for eligible leave. According to the petitioner, the said application was neither rejected nor sanctioned. The petitioner left India on 13.3.2001. In the meanwhile, show cause notice was issued to him which ultimately culminated in Ext.P18 by which the petitioner's service was terminated on the ground of unauthorised absence. Thus, the petitioner challenged Ext.P18 order in this writ petition. 2. A statement has been filed for and on behalf of the Ist respondent. Along with the statement the Ist respondent has produced certain documents on the basis of which it is stated that the petitioner was unauthorizedly absent against which action was taken which culminated in Ext.P18 order. 3. I have gone through the contentions and the averments taken in the writ petition and also perused the materials on record. WPC 4675/06 -:2:- It is beyond dispute that the petitioner had applied for leave without allowance for 5 years from 1.2.2001 to 31.1.2006 to go abroad, as per his leave application dated 9.1.2001. The first respondent Corporation as per its letter dated 30.1.2001 rejected that request, especially, when the corporation was facing with acute shortage of staff. Subsequently, the petitioner requested to permit him to avail the eligible leave for 8 months and he had also informed the corporation that due to the circumstances mentioned in the letter, he was constrained to leave India on 13.3.2001 on the presumption that his leave would be granted in due course. From the above, it is clear that the petitioner left India without getting sanction from the authorities and without getting the leave duly sanctioned. Such action of the petitioner is a grave misconduct and as per the Government Circular 10432/BPE-1/95/Plg dt. 20.1.96, persons who absent themselves without getting the leave duly sanctioned should be treated as on unauthorized absence and action should be taken to terminate their service. Therefore, proceedings was initiated and issued show cause notice dated 31.5.2001. As per the explanation dated 1.7.2001, the petitioner submitted that he left the country under the presumption that his leave would be granted in due course, but according to the corporation, the said explanation WPC 4675/06 -:3:- was not satisfactory. In the meanwhile, the government called for a report as per its letter dated 4.8.2001 on the basis of a representation from the petitioner requesting him to grant 5 years leave without allowance. Accordingly, the Corporation sent report to the Government. The Government was also not prepared to entertain the request. Therefore, the petitioner applied for voluntary retirement with effect from 1.2.2001. The Government was not prepared to accept that request also and directed the Corporation to initiate action against him to terminate his service. Thus, on the basis of the instruction of the government, the corporation issued notice dated 19.12.2002 to the petitioner to show cause why his service in the corporation should not be terminated with effect from 13.3.2001. Thereafter, the petitioner filed representation before the Minister for Industries, Government of Kerala, with a request to direct the corporation to drop the proposed action. The Government, vide letter No. 4285/F2/ID dt. 5.11.2004 directed the Corporation to terminate the service of the petitioner as per direction in Government letter No.37957/F2/01/ID dt. 15.11.2002. Thereafter, again a registered notice dated 23.12.2005 was issued to the petitioner by registered post giving him one month's time to furnish written explanation on the decision of SIDCO to terminate his WPC 4675/06 -:4:- service. As the explanation received from the petitioner was found not satisfactory, and on the basis of letter issued by the Government, SIDCO issued order terminating the service of the petitioner with effect from 13.3.2001 for unauthorised absence. 4. From the facts mentioned above, it is beyond dispute that rather the petitioner admits that he had gone abroad without the permission of the Authority concerned and without getting leave as requested by him. Thus, though notice was issued including show cause notice calling for explanation for the unauthorized absence, no explanation was offered, whereas, it appears that though such charges were admitted, an attempt was made to justify the unauthorized absence as an authorized one and made a representation to the Hon'ble Minister for Industries to direct the SIDCO to drop action against him. No materials were furnished and no case is made out to interfere with Ext.P18 order. In the result, there is no merit in the writ petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- WPC 4675/06 -:5:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..