IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 16178 of 2005(A) -------------------------- PETITIONER: ------------ R. RAVEENDRAN PILLAI, S/O RAGHAVAN PILLAI, UTHRADAM, NEAR AGRO INDUSTRIES, NEDUVATHOOR, NEELESWARAM P.O., VIA. KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SMT.V.P.SEEMANDINI (SR.) SRI.P.RAJKUMAR SMT.T.B.REMANI SMT.S.KARTHIKA RESPONDENTS: ------------- 1. DEPUTY DIRECTOR (SURVEY), PATHANAMTHITTA. 2. DIRECTOR, SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SMT.SMITHA, GOVERNMENT PLEADER FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16178/2005 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER NO.G.O.Rt.147/86/RD DATED 30/01/1986 ISSUED BY R3 TO PETITIONER. P2 : COPY OF APPLICATION DATED NIL SUBMITTED BY PETITIONER BEFORE R1. P3 : COPY OF MEMO OF CHARGES BEARING NO.1118/97/SS3 DATED 08/09/1997 ISSUED BY R1 TO PETITIONER. P3(a) : COPY OF STATEMENT OF ALLEGATIONS ISSUED BY R1 TO PETITIONER ALONG WITH EXT.P3. P4 : COPY OF WRITTEN STATEMENT DATED 18/09/1997 SUBMITTED BY petitioner BEFORE R1. P5 : COPY OF JUDGMENT DATED 29/09/1997 IN O.P. NO.16983/97 OF HONOURABLE HIGH COURT OF KERALA. P6 : COPY OF SHOW CAUSE NOTICE DATED 17/01/1998 IN PROCEEDINGS NO.SY.A1.3206/93 ISSUED BY R2 TO PETITIONER. P7 : COPY OF EXPLANATION DATED 31/01/1998 SUBMITTED BY PETITIONER BEFORE R2. P8 : COPY OF ORDER DATED 23/03/1998 IN PROCEEDINGS NO.SY.A1.3206/93 ISSUED BY R2 TO PETITIONER. P9 : COPY OF JUDGMENT DATED 14/03/2001 IN OP NO.8604/2001-Y OF HONOURABLE HIGH COURT OF KERALA. P10 : COPY OF ORDER G.O.(M.S.) NO.226/2001 DATED 03/12/2001 ISSUED BY R3 TO MR.P.V.JOHN REINSTATING HIM IN SERVICE. P11 : COPY OF APPEAL PETITION DATED 01/04/1998 SUBMITTED BY PETITIONER BEFORE R3. P12 : COPY OF G.O.(Rt.) NO.468/2005/RD DATED 20/01/2005 ISSUED BY R3 TO PETITIONER. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ------------------------- W.P.(C) No. 16178 of 2005 --------------------------------- Dated, this the 22nd day of August, 2008 J U D G M E N T Petitioner is challenging his removal from service vide Ext.P8 order dated 23/03/1998, confirmed in appeal vide Ext.P12 dated 20/01/2005. 2. I have heard learned senior counsel Smt.Seemanthini appearing for petitioner and learned Government Pleader appearing for respondents. 3. Petitioner joined service as Surveyor Assistant Grade II on 16/07/1970. However, after 16 years of service in Government, he applied for leave for five years for taking up employment outside. Leave was sanctioned vide Ext.P1 dated 30/01/1986 permitting petitioner to avail leave for five years from the date of availing leave. Even though order was passed on 30/01/1986, petitioner continued in service and could leave India only on 01/09/1992. However, he left without obtaining advance permission but after applying for leave once again vide Ext.P2. Respondent's case is that leave was not sanctioned by the Government in the second round even though leave application was forwarded by the officer before whom petitioner presented the application for leave, to the WP(C) No.16178/2005 -2- Government. It is their further case that since petitioner had already left India, the application for leave could not be returned to petitioner. However, the leave application was not rejected and communicated to the petitioner. The case of the respondents is that under Rule 9 of Appendix 12A to the KSR, if an employee absents without grant of leave such absence will be treated as unauthorised absence warranting termination from service. However, learned counsel for the petitioner submitted that petitioner left India only after availing leave. According to him leave stood sanctioned vide Ext.P1 and the application made by petitioner in the second round was only for permission for availing leave from 01/09/1992. In view of the grant of leave for five years vide Ext.P1, I am of the view that the above Rule by which petitioner was terminated cannot be applied. Moreover, I notice that this is a case where lapses are more on the part of the higher authorities and Government than on the petitioner because for the alleged unauthorised absence from 01/09/1992, disciplinary action was initiated only on 28/04/2002 by publication in newspaper. Besides this, order was issued nearly five years after initiation of disciplinary proceedings vide Ext.P8 on 23/03/1998. Strangely, WP(C) No.16178/2005 -3- petitioner's request for joining duty on 18/11/1995 was not even considered. There is no explanation offered as to why disciplinary proceedings were protracted for five years and why petitioner was not allowed to join duty on 18/11/1995. In fact when petitioner offered to rejoin duty on 18/11/1995, there was only unauthorised absence of two years and had petitioner been allowed to join service subject to disciplinary proceedings, the punishment would have been lighter. In fact, disciplinary proceedings itself was only for unauthorised absence revealed by records. Therefore, there was no justification for delay in passing final orders on disciplinary proceedings. The appeal filed by the petitioner against the order of removal was disposed of after seven years of filing the appeal, i.e. on 20/01/2005. In between, petitioner reached the age of superannuation on 31/12/2002. Since petitioner was sanctioned leave vide Ext.P1 and the subsequent application is only one for extension of the benefit granted under Ext.P1, I feel, the action taken for removal based on the Rule above referred is not justified. However, I am of the view that petitioner should not have left India before getting the clearance on his application for availing leave from 01/09/1992 and it calls for a minor punishment and the WP(C) No.16178/2005 -4- punishment of removal from service is therefore thoroughly unwarranted and is disproportionate to the nature and gravity of the indiscipline. Since petitioner had 22 years of service in the Government prior to his leaving to abroad, I vacate Exts.P8 & P12 orders with direction to respondents to treat the petitioner as compulsorily retired from service with effect from 01/09/1992 and grant his pension and retirement benefits without any delay. (C.N.RAMACHANDRAN NAIR, JUDGE) jg