IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WA.No. 208 of 2008() -------------------- AGAINST THE JUDGEMENT IN OP.12080/2003 Dated 01/08/2007 .................... APPELLANT: PETITIONER IN THE OP ------------------------------- E.SAINUDHEEN, NIZAM MANZIL, KOLLAYIL P.O., MADATHARA, KOLLAM. BY ADV. SRI.DEVAN RAMACHANDRAN SMT.T.G.SEETHAL RESPONDENTS: RESPONDENTS IN THE O.P ----------------------------------- 1. THE JOINT COMMISSIONER - I, COMMERCIAL TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY IT'S SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY G.P.SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.A.NO.208 OF 2008 -------------------------------------------------------------- Dated this the 24th day of March, 2008. JUDGMENT Balakrishnan Nair, J: The petitioner was a Peon working under the respondents. He was granted leave without allowance for five years by Ext.P1 order from 1.3.1982 to take up employment abroad. Though the said leave expired in 1987, thereafter, he never joined duty. He claims, he was sending applications from time to time for extension of the leave, but there was no reply. In the meantime, he was afflicted with serious illness and underwent treatment in Jaslok Hospital, Mumbai between 1987 and 1989. When the petitioner submitted Ext.P2 representation dated 17.2.2001 seeking permission to re-join duty, the 1st respondent issued Ext.P3 communication dated 17.8.2001 directing him to appear before his office. Thereafter, he has been served with Ext.P4 charge memo dated 27.3.2002 alleging unauthorised absence from 1987. The petitioner submitted Ext.P5 reply. An enquiry officer was appointed by Ext.P6 order dated 16.4.2002 to enquire into the charges against the petitioner. The said officer held a personal hearing on W.A.NO.208/2008 . 2 22.4.2002 and the petitioner's statement was recorded. Thereafter, the said officer submitted Ext.P8 undated enquiry report. The report was sent to the petitioner along with Ext.P7 show cause dated 24.4.2002 calling upon him to show cause why he should not be dismissed from service. He was also asked to appear in person on 29.4.2002 for a personal hearing. But, instead of appearing on the said date, the petitioner filed Ext.P9 representation seeking time up to 8.5.2002 for submitting his explanation. But, the disciplinary authority rejected the said request and passed Ext.P10 order removing him from service from the date of his unauthorised absence ie., 28.2.1987. The petitioner filed appeal before the Government. The appeal was dismissed by Ext.P11 affirming the order of the disciplinary authority. Challenging Exts.P10 and P11, this writ appeal is filed. 2. The main ground urged is that the enquiry officer did not conduct an enquiry before submitting Ext.P8 report. He was not given a fair opportunity to submit explanation to Ext.P8. Both these grounds were urged before the learned Single Judge. The learned Single Judge held that going by the statement of the petitioner recorded by the enquiry officer it was evident that the W.A.NO.208/2008 . 3 petitioner was unauthorisedly absent. Since there is admitted unauthorised absence, the enquiry officer rightly found him guilty, it was held by the learned Single Judge. Regarding the denial of further time for submission of explanation, the learned Single Judge held that since the petitioner was going to retire from service on 30.4.2002, the disciplinary authority rightly rejected the prayer for extension of time and passed the dismissal order. The above findings are attacked by the learned counsel for the appellant. 3. We notice that, from the facts it is manifest that, the petitioner was unauthorisedly absent from 1987 onwards. The only defence put forward by him is that he has applied for extension of leave in time. But, submission of applications for extension of leave will not amount to grant of leave. Therefore, his absence is admittedly unauthorised. The petitioner was given a chance to show cause and also given a further chance for personal hearing. For that he was asked to appear before the disciplinary authority on 29.4.2002. He did not avail that opportunity. Having regard to the dearth of time, the disciplinary authority did not extend the time for submission of the reply as sought for by the petitioner. We find nothing wrong with the said action of the W.A.NO.208/2008 . 4 disciplinary authority having regard to the special facts of the case. The petitioner, who was serving a foreign master, wants to draw pensionary benefits from the State Government. He was rightly dismissed for his admitted misconduct. People's money cannot be wasted to feed a disloyal Government servant, who remained unauthorisedly absent from 1987 to 2001.So, we are in agreement with the view expressed by the learned Single Judge. We agree with the reasons and conclusions in the judgment under appeal. Accordingly, the writ appeal is dismissed. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl W.A.NO.208/2008 . 5