IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 OP.No. 34117 of 2002(J) ----------------------- PETITIONER: ------------ MRS.MARY MATHEW, 538, 3RD CROSS, 2ND BLOCK, R.T.NAGAR, BANGALORE-32. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENTS: ------------- THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, MAIN CAMPUS, VELLAYANIKKARA, TRICHUR. BY ADV. SRI.RENJITH THAMBAN, SC, AGRL.UNTY. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON 21/02/2008 DELIVERED THE FOLLOWING: O.P.NO.34117/02. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE COMMUNICATION DTD.1.10.93 BY DEAN. P2. COPY OF THE -DO- TO THE REGISTRAR DTD.29.6.94. P3. COPY OF THE COMMUNICATION DTD.29.6.94 TO DEAN. P4. COPY OF THE ORDER DTD.23.2.95. P5. COPY OF THE ORDER DTD.7.3.95. P6. COPY OF THE MEMO OF CHARGES. P7. COPY OF THE REPLY DTD.7.5.96. P8. COPY OF THE SHOW CAUSE NOTICE DTD.7.11.96. P9. COPY OF THE REPLY DTD.30.11.96. P10. COPY OF THE COMMUNICATION DTD.15.1.98 BY DR.R.VIKRAMAN NAIR. P11. COPY OF THE ORDER DTD.1.1.98. P12. COPY OF THE SHOW CAUSE NOTICE DTD.18.7.01. P13. COPY OF THE COMMUNICATION DTED.4.12.98 FROM D.M.O., THRISSUR. P14. COPY OF THE COMMUNICATION DTD.17.12.98 TO RESPONDENT. P15. COPY OF THE EXTRACT OF REPLY TO Ext.P12. P16. COPY OF THE COMMUNICATION DTD.9.11.94 BY DEAN TO THE RESPONDENT. P17. COPY OF THE ORDER DTD.18.5.02 BY THE RESPONDENT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P..No.34117 of 2002 ================== Dated this the 21st day of February, 2008 J U D G M E N T The petitioner joined the services of the Kerala Agricultural University on 23.6.2002 as Assistant Professor (Home Science). She was promoted as Associate Professor on 16.10.1986. She applied for leave without allowances on medical grounds for the period from 1.11.1990 to 31.7.1992, which was sanctioned. She applied for extension of leave on the same ground from 1.8.1992 to 31.7.1983 which was also sanctioned. She again sought extension of leave on medical grounds for the period from 1.8.1993 to 30.7.1994. By Ext.P1, the Dean of the faculty in which the petitioner was working recommended sanctioning of that leave. But the petitioner was not informed as to whether the leave applied for was granted or rejected. By Ext.P2 dated 29.6.1994, the petitioner requested the Registrar of the University to permit her to join duty at Vellayani Agricultural College, after expiry of the leave applied for on 1.8.1994. By Ext.P3 dated 29.6.1994, the petitioner requested the Dean also o.p.34117/02 2 to permit the petitioner to join duty at Vellayani. By Ext.P4 dated 23.2.1995, the Registrar intimated the petitioner that she is reposted in the existing vacancy of Assistant Professor (Home Science) at Krishi Vigyan Kendra, Ambalavayal. In the same, it was also specifically stated that orders regarding sanctioning of extension of LWA applied for/Regularisation of overstayal of leave will be issued later. By Ext.P5 order dated 7.3.1995, the petitioner was informed that the order reposting the petitioner at Ambalavayal is cancelled and orders regarding reposting of the petitioner will be issued separately. In the place of the petitioner, another Assistant Professor viz., P.V.Nandini was posted in the vacancy at Ambalavayal. Thereafter, by Ext.P6 memo of charges, the petitioner was directed to show-cause why disciplinary action should not be taken against her for unauthorised absence from duty from 1.8.1993 and for insubordination. For the first charge the statement of allegation was that the leave applied for by the petitioner from 1.8.1993 to 30.7.1994 was not sanctioned by the University and she was unauthorisedly absenting from duty from 1.8.1993. Regarding insubordination, what was stated in Ext.P6 statement of o.p.34117/02 3 allegations was that, although, as per the University order dated 23.2.2005 (Ext.P4), she was reposted at Ambalavayal, she did not report for duty. In Ext.P6 it is also stated that the petitioner failed to appear before the medical board constituted by the District Medical Officer of Health, Thiruvananthapuram, for medical examination of the petitioner on 25.10.1995 for verifying the physical fitness to continue in service as she was continuing on long leave on medical grounds. The petitioner filed Ext.P7 reply stating that she had not received any communication rejecting her application for leave, that Ext.P4 order by which she was posted at Ambalavayal was cancelled by Ext.P5 order and that she never received any communication directing her to appear before the medial board for medical examination. Again by Ext.P8 show cause notice she was directed to furnish explanation for the very same misconduct in which another University order dated 30.7.1996 was also mentioned stating that as per that reference she was directed to report at Ambalavayal, which she had failed to do. The petitioner again filed Ext.9 reply wherein she had specifically stated that she had not received any order dated 30.7.1996 also. Thereafter by Ext.P10, one o.p.34117/02 4 Dr.R.Vikraman Nair intimated the petitioner that he was appointed as the enquiry officer to enquire into the misconducts alleged against the petitioner and she was directed to appear before him on 28.1.1998 for personal hearing. The petitioner appeared. The petitioner submits that she requested the enquiry officer for documents relied on for the purpose of proving misconducts against the petitioner, which were not either furnished to her or shown to her by the enquiry officer. Thereafter, Ext.P12 show-cause notice dated 18.7.2001 was issued to her stating that, as per the report of the enquiry officer it was found that the petitioner showed undue delay in responding to the communication from the University and she was not keen to rejoin duty. The enquiry officer is stated to have recommended to direct the petitioner to appear before the medical board to certify that she is medically fit to continue in service since there was prolonged absence on medical grounds. It is stated therein that the University has constituted a medical board for examining the petitioner who, on examination, found the petitioner having no significant illness and fit to join duty. From the same the Registrar of the University came to the o.p.34117/02 5 conclusion that the petitioner was unauthorisedly absenting from service on 1.8.1993 and that she was never keen to serve the University. In Ext.P12 it was further stated that the Executive Committee meeting held on 28.8.2000 has decided to impose on the petitioner the punishment of termination of the petitioner from service from 1.8.1993. Accordingly, the petitioner was directed to show cause why her services in the University should not be terminated with effect from 1.8.1993. The petitioner filed Ext.P15 reply stating that the enquiry was not conducted properly, the petitioner was not given opportunity to peruse records or to examine witnesses and nobody appeared on behalf of the University in the enquiry. The petitioner also submits that she did not receive a copy of the enquiry report also. However, by Ext.P17 order, the punishment of termination of service with effect from 1.8.1993 was imposed on the petitioner. The petitioner is challenging Ext.P17 order in this original petition. 2. The contentions of the petitioner are as follows:- The petitioner has sought extension of leave in continuance of her earlier leave on medical grounds, which was sanctioned twice. The petitioner was never informed that the petitioner's o.p.34117/02 6 application for extension of leave is in any way defective or that the same has been rejected. In fact by Ext.P1 the Dean who was the immediate superior of the petitioner had recommended grant of leave and subsequently, by Ext.P4, the petitioner was directed to join as Assistant Professor at Ambalavayal. That order was cancelled by Ext.P5. Thereafter, memo of charges was issued to the petitioner, in which, there is no allegation that the leave applied for by her was not sanctioned. The other allegation was based on Ext.P4 order, which was actually cancelled by Ext.P5 order. The communication referred to in Ext.P6 directing the petitioner to appear before the Medical Board was never served on her. She would submit that the University order dated 30.7.1996 referred to in Ext.P8 was also not served on her. That being so, the enquiry officer could not have validly held that the petitioner had either absented from duty unauthorisedly or that she disobeyed the legal orders of the University. 3. She would further submit that the enquiry itself was conducted in violation of principles of natural justice in so far as no witnesses were examined, no documents were marked, the petitioner was not given any list of documents, or documents, o.p.34117/02 7 she was not given any opportunity to peruse the documents etc. She further submits that the report of the enquiry officer was also not furnished to her. The petitioner further points out that in Ext.P12 show cause notice it is not stated that the petitioner was guilty of the two misconducts alleged against her. According to her, in Ext.P12 show cause notice, what has been stated is that she showed undue delay in responding to the communication from the University and she was not keen to rejoin duty. Therefore, there was no finding of the enquiry officer to the effect that she is guilty of the misconducts alleged against her and therefore, she could not have been punished on the basis of the enquiry report, in which, there is no finding of misconduct alleged in the memo of charges. On the above grounds the petitioner seeks quashing of Ext.P17. 4. It is submitted by the counsel for the petitioner that now that the petitioner has crossed the age of superannuation, it may be declared that the petitioner is deemed to have continued in service till the age of superannuation, with all consequential benefits. 5. Although unsupported by a counter affidavit o.p.34117/02 8 controverting the allegations raised by the petitioner in the original petition, the learned Standing Counsel made a valiant attempt to sustain Ext.P17 order. But he sadly failed in his attempt. 6. The learned Standing Counsel did all what he could do in the matter to sustain Ext.P17 order. But in the absence of a counter affidavit, especially in view of the contradictory case of the University which is revealed in the documents produced by the petitioner, I am inclined to allow the original petition. First of all, nowhere in the communication issued to the petitioner it is stated that the petitioner's application for extension of leave had ever been rejected. Unlike in the case of leave without allowances for going abroad for employment or to join spouse, medical leave cannot be availed of after sanctioning of the same for obvious reasons. Therefore, without issuing a communication to the petitioner that her leave applied for had been rejected, I do not think that the University can sustain a charge that she is unauthorisedly absent. Such a communication is not referred to anywhere in the documents before me. Secondly, in Ext.P6 statement of allegations, the statement regarding the allegation o.p.34117/02 9 of insubordination is that she did not obey the order dated 23.2.1995 reposting her at Krishi Vigyan Kendra, at Ambalavayal. Ext.P4 is that order. In that order, while directing reposting the petitioner as Assistant Professor (not as Associate Professor) it was also stated that orders regarding sanctioning and extension of LWA applied for/regularisation of overstayal will be issued later. But by Ext.P5 order, Ext.P4 order has been cancelled. Therefore, it is beyond comprehension as to how a cancelled order can be obeyed by the petitioner. It is important to note here that in Ext.P4 it is specifically stated that orders regarding sanction of extension of LWA applied for/regularisation of overstayal will be issued later. Having said so in Ext.P4, without passing an order to the effect that the extension of leave applied for has been cancelled, I do not think that any charge of unauthorised absence would survive. The petitioner specifically stated in her reply to the memo of charges that she has never received any order directing her to report before the medical board for medical examination on 25.10.1995. Such a communication is not referred to anywhere in the documents before me. In Ext.P8, another University order is referred to, o.p.34117/02 10 stated to be dated 30.7.1996, directing the petitioner to rejoin duty. That order is also not in evidence anywhere. Further, it defies logic as to why, after issuing memo of charges, the petitioner was directed to report for duty. The report of the enquiry officer is not before me. The petitioner categorically asserts that she has not received the same. The respondents have not chosen to produce the same before me. It is not even known as to whether the enquiry officer has found the petitioner guilty of any of the two misconducts. On the other hand, what is stated in Ext.P12 show cause notice is as follows: “According to the Enquiry Officer you showed undue delay in responding to the communications from University and that you were not keen in rejoining duty. The Enquiry Officer has recommended to direct you to appear before Medical Board to certify that you are medically fit to continue in service since you were on prolonged absence on medial ground. As requested by the University, the Director Medical Officer (Health), Thrissur has constituted a Medical Board for the purpose. The Chairman of the Medical Board has certified that you have no significant illness and found fit to join duty. From the above facts it is evident that you had been unauthorisedly absenting from service w.e.f. 01.08.1993. It is found that you have never keen to serve the University. Your lapses of undue delay in responding to University communications and lack of commitment to rejoin duty are very serious matters.” The above does not show that the enquiry officer has found the petitioner guilty of the two misconducts alleged against her. Without a finding of guilt by the enquiry officer and if the enquiry o.p.34117/02 11 officer has not found the petitioner guilty without an order passed with notice to the petitioner, by the disciplinary authority, disagreeing with the findings of the enquiry officer and finding her guilty of the misconducts, no punishment could have been imposed on her. But that is what has been done in Ext.P17 order. 7. For all the above reasons, clearly the entire disciplinary proceedings against the petitioner are vitiated by not only violation of principles of natural justice, but by all vices which can be attributed to a disciplinary proceeding. Therefore, I quash Ext.P17 order. 8. However, now that the petitioner has attained the age of superannuation, no order directing reinstatement of petitioner can be passed. In the above circumstances, I declare that the petitioner is deemed to have continued in service till she attained the age of superannuation. However, I am not inclined to direct payment of arrears of salary to the petitioner. However, the petitioner shall be given all retirement benefits due to her as if she validly retired from service on her age of superannuation, counting her service for the period during which she was kept out of service for fixation of salary and retirement benefits. Orders in o.p.34117/02 12 this regard shall be passed and arrears of pension shall be disbursed to the petitioner within a period of one month from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.34117/02 13 S.SIRI JAGAN, J. =============== O.P..No.34117 of 2002-J =============== J U D G M E N T 21st February, 2008