IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 CRP.No. 256 of 2009(A) --------------------------------- [APPEAL NO.10/2007 OF MAHATMA GANDHI UNIVERSITY APPELLATE TRIBUNAL, THIRUVANANTHAPURAM] .................... PETITIONERS/ RESPONDENTS 1 & 2: ----------------------------------------------------- 1. FR.JAMES AERTHAYIL, MANAGER, ST.JOSEPH'S COLLEGE, MOOLAMATTOM, IDUKKI. 2. FR.THOMAS MALIAKAL, PRINCIPAL, ST.JOSEPH'S COLLEGE, MOOLAMATTOM, IDUKKI. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. SRI.BABY ISSAC ILLICKAL, SRI.ISAAC KURUVILLA ILLIKAL. RESPONDENTS/APPELLANT/RESPONDENTS: ------------------------------------------------------------------ 1. N.K.THOMAS, PULICKAYIL HOUSE, MONIPPALLY P.O., KOTTAYAM-686 636. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE REGISTRAR, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. R1 BY ADV. SRI.MARTIN G.THOTTAN, R2 BY GOVERNMENT PLEADER SRI. K.P. RAMANAND, R3 BY ADV. SRI. T.A. SHAJI, S.C, M.G.UNIVERSITY. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. “C.R.” THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ CRP No.256 of 2009-A ------------------------------------------------------------------------ Dated 9th November 2010 Order Thottathil.B.Radhakrishnan, J. An aided recognised private college, affiliated to the Mahatma Gandhi University, has filed this revision under Section 63(9) of the Mahatma Gandhi University Act, 1985, challenging the decision of the Mahatma Gandhi University Appellate Tribunal, allowing an appeal filed by the 1st respondent herein, who was the Head of the Department of English in that college. 2. The teacher made Ext.M1 application for leave dated 09.10.2006 seeking grant of commuted leave from the first week of November. The reason attributed for the request for commuted leave was medical grounds. As per Ext.M2 dated 01.11.2006, the request for commuted leave was refused. On 02.11.2006, he made Ext.M3(a) application for medical leave supported by Ext.M3(b) CRP 256/09 2 certificate, which is one issued in terms of Rule 117 in Part I K.S.R., which applies by virtue of statute 42 of the Mahatma Gandhi University Statutes, 1997. The application was for 45 days of medical leave and the recommendation of the doctor was that the teacher needs rest from 06.11.2006 to 20.12.2006. After submitting that application on 02.11.2006, the teacher did not attend duty from 06.11.2006 to 20.12.2006. 3. In the allotted column for such purpose in Ext.M3(a) leave application, the Principal has recorded that the application is not recommended, though vivid reasons are not stated therein. 4. The teacher says that on 24.11.2006, he went over to the college, on getting information that the application for medical leave is not being sanctioned. Though he says so, he did not join duty then. We find that the Principal addressed Ext.M4 to the Manager, who is the competent authority to deal with leave applications, stating different reasons why the leave need not be granted. From CRP 256/09 3 Ext.M4, we find that the Principal took the stand that leave need not be sanctioned on account of different grounds. The leave sought for was, according to the Principal, in the midst of the prime period of the course in November- December and it was not advisable to let the Head of the Department of English, be away from the college. The Principal was of the view that there being a ban, at the relevant time, on appointment, even of guest lecturers, the college would not get a substitute. Not only that, he had also cautioned that substitute guest lecturers may not be available in the middle of a term. He also appeared to have been skeptical about the veracity of the certificate issued by the Medical Officer regarding the need for the teacher to go on leave on grounds referable to illness of 'Kattigraham' and 'Vathavikara'. 5. On allegation of unauthorised absence from 06.11.2006 to 20.12.2006, the management issued a show cause notice followed by a memo of charges. This was followed by appointment of an enquiry authority and CRP 256/09 4 consequential enquiry. 6. In the enquiry proceedings, the delinquent teacher participated, but did not tender any oral evidence. The Principal gave evidence. Another teacher and the librarian gave evidence. The enquiry concluded, holding the teacher guilty of the charges levelled against him. Relying on the enquiry report, the disciplinary authority imposed on him the punishment of dismissal from service. 7. The teacher availed his statutory remedy of appeal under the Mahatma Gandhi University Act. The parties were heard by the appellate tribunal. 8. University also filed a counter affidavit, taking the stand that the Principal who took action against the delinquent teacher was not authorised to do so, since he was not appointed as the Principal and he was authorised only to act as a drawing and disbursing officer of the college. The fact of the matter remains that he was put in charge of the office of the Principal. This means that he was bestowed with all responsibilities and duties attached CRP 256/09 5 to that office. 9. The tribunal, adjudicating on the basis of the materials, including the enquiry file, concluded that the disciplinary proceeding against the teacher was motivated and that the quality of the materials on record in the enquiry disclosed that the application for leave was refused on unacceptable grounds on the face of Rules 117 and 118 of Part I K.S.R. The tribunal set aside the order of dismissal and directed reinstatement of the teacher with retrospective effect with all consequential benefits. 10. In support of this revision by the management, the learned senior counsel argued that the disciplinary authority having accepted the findings of the enquiry authority, the fact of the matter remains, even without any dispute, that the teacher was absent from 06.11.2006 to 20.12.2006 and that no leave was granted to him on his Ext.M3(a) application for medical leave. It was further argued that the impugned decision of the tribunal is vitiated, warranting interference in terms of Section 63(9) of CRP 256/09 6 the Mahatma Gandhi University Act, 1985. Making reference to the decision of the Apex Court in Mithilesh Singh v. Union of India (2003(3) SCC 309), it was argued that absence from duty without proper intimation is a grave offence, warranting removal from service and making of an application for leave cannot be construed to be of any consequence or substitute for giving proper intimation. Reliance was also placed on the decision in Madhya Pradesh State Electricity Board v. S.K.Yadav (2009) 2 SCC 50) to say that mere request for leave should not be followed by a presumption that it would be granted or that it shall be taken as granted, unless refused within a reasonable time. The learned senior counsel for the management, referring to the materials and the quality of the findings of the enquiry authority, in contradistinction to that referred by the appellate tribunal, argued that the tribunal had come to its own conclusions as if it is a court of appeal, which is wholly impermissible in the scheme of CRP 256/09 7 disciplinary proceedings and judicial review regarding that. 11. The learned counsel appearing for the teacher argued that on the face of Rules 117 and 118 of Part I.K.S.R., if he were to doubt the veracity of Ext.M3(b) certification by the competent authority in terms of Rule 117 in the proper format, which is provided as part of that Rule itself, it was obligatory on the part of the Principal to have called for a medical opinion from a superior medical officer. He, accordingly, argued that there was no rhyme or reason for the so-called rejection of the application for medical leave and hence the absence from service cannot be treated as unauthorised. It is also argued that though Ext.M3(a) application was presented on 02.11.2006 seeking leave from 06.11.2006, there was no ground to assume that it would not be granted because it was not rejected before 06.11.2006. On this premise, he further argued that the totality of the facts and circumstances does not generate the factual situation sufficient enough to hold that the teacher had unauthorisedly absented himself from CRP 256/09 8 duty. He also pointed out that the punishment of dismissal was too harsh and in fact, inhuman, having regard to the allegations and also the context in which the leave was sought for. 12. We have gone through the entire enquiry file as produced before the appellate tribunal. It contains the leave application and the decisions thereon. The deposition of the Principal, as part of the enquiry, is also available in the file. 13. As already noticed, the delinquent teacher did not offer any oral evidence before the enquiry authority. The fact that Ext.M1 application was made on 09.10.2006 was for commuted leave on medical grounds, is a fact, apparent on the face of the record. By Ext.M2, the Principal informed the teacher that having regard to the different factors like ban on appointment of guest lecturers and the difficulty in appointing suitable guest lecturers for short span during midterm etc., leave cannot be granted. CRP 256/09 9 14. However, adverting to Ext.M4, by which the Principal forwarded Ext.M3(a) leave application to the Manager, it can be seen that while refusing to accede to Ext.M1 request for commuted leave, the Principal had asked the teacher to apply with a medical certificate from a doctor, working in a standard reputed hospital after thorough check up. Ext.M3(b) is issued by the competent authority, in terms of the statutory rule i.e., Rule 117 of Part I K.S.R. That certificate is in the format prescribed by thatt Rules. The doctor, who issued the certificate, is not shown to be incompetent. In the common course of natural events, human conduct and official duties, this court has to presume that such certification was made by the competent Government doctor in the Government Ayurveda Hospital after due examination of the patient. There is nothing on record indicating to the contrary, to rebut that presumption. It is in this context that reference to Rule 118 of Part I K.S.R. made on behalf of the teacher, becomes relevant. That Rule provides that if there is any doubt for the leave CRP 256/09 10 sanctioning authority about the credibility or reliability of the medical certificate produced by the applicant, the said person can be referred to the higher authority for medical opinion and even if that opinion is also not acceptable, he could be sent to the Medical Board constituted by the Director of Health Services. 15. The Rules governing grant of medical leave essentially maintain a balance between public interest and public need of the establishment on the one hand, as also on the other hand, the requirement of the individual from the human angle and the necessary protective measures required for life. Those Rules say that no certification need be given for leave if the Medical Officer is of the view that the officer who seeks leave is not likely to return to service at all. Those Rules also provide that the mere possession of a medical certificate is insufficient to proceed on leave and grant of medical leave is itself a matter to be decided upon by the sanctioning authority and it cannot be taken as granted. Those Rules further provide that if after the CRP 256/09 11 treatment, the officer is fit to join duty, he can do so, only with appropriate certification as to fitness. The Rules also stand with the prescription that even the grant of medical leave or the availing of medical leave is not a matter of right. It depends upon it being granted by the competent authority. This means that the power to refuse is always there. 16. While the Principal could be criticised for not having acted on Ext.M3(b) certification without taking recourse to Rule 118 of Part I K.S.R., the fact of the matter remains that it is not impermissible for the sanctioning authority to refuse leave on medical grounds. In Ext.M4, forwarded by the Principal to the Manager, different reasons touching the need of the institution and the students and other relevant factors that would govern the situation of a Head of the Department going on leave for nearly 45 days during midterm, are stated. 17. On the totality of the facts and circumstances of the case, we are of the view that the evidence of the CRP 256/09 12 Principal before the Enquiry Authority would also show that though the Principal doubted the veracity of the certificate as one having been obtained by misrepresenting the facts to the Ayurveda doctor, he had the specific reason that leave cannot be granted because it was the prime time of academics in the college. Added to this, there is really no material from the side of the delinquent teacher that his sickness was such that he could not come over to the college and impart instructions to the students. We also do not find any material as to any course of treatment, medication, hospitalisation or post-hospitalisation nursing, which the delinquent teacher had undergone after 06.11.2006. We take note of this situation, only to indicate that it is not one of those cases where the establishment could be criticised to the hilt, for not having granted the medical leave. 18. We may also note that even in terms of Rule 65 of Part I K.S.R., leave cannot be claimed as a matter of right. That Rule applies to the teacher in question, as well. CRP 256/09 13 19. Statute 73 in Part D of the Mahatma Gandhi University Statutes, 1997 provides the penalties which may, for good and sufficient reasons, be imposed on teachers of private colleges. The procedures for imposing minor and major penalties are also provided in Part D. The teacher in question, had he continued in service, would have superannuated on 31.03.2009. The order of dismissal which was impugned before the tribunal was issued by the employer on 01.10.2007. Though that order of dismissal is stated to be with effect from 06.11.2006, its operation could have been only prospective from the date, on which it was served on the delinquent teacher. But, at this point of time, in November 2010, we need to decide, even if we were to reverse the findings of the tribunal, as to whether there are good and sufficient reasons in terms of Section 73 of the Mahatma Gandhi University Statutes, 1997, to sustain the order of dismissal. 20. Having found that the reversal of the findings of the enquiry authority and the disciplinary CRP 256/09 14 authority by the Appellate Tribunal does not stand, we set aside those findings. 21. The question that remains to be decided now is as to whether any interference should be made with the punishment imposed. On the totality of the facts and circumstances of the case and having particular regard to the fact that even the delinquent teacher had mentioned medical grounds as the need for leave in Ext.M1 application for commuted leave, we are of the view that the punishment imposed is wholly disproportionate and shockingly incongruous to what is contemplated by the provisions contained in Section 73 of the Mahatma Gandhi University Statutes, 1997. Being inclined to set aside the punishment imposed, we record the request of the Management for a remit to reconsider the punishment imposed. But, the teacher, having already passed the age of superannuation, we deem it appropriate to consider by ourselves, the punishment that a management would have reasonably imposed on reasonable assessment of the CRP 256/09 15 facts, evidence and all attendant factors in the case. We have heard the learned senior counsel for the management and also the learned counsel for the teacher on this aspect. They have taken us to the different aspects and materials in this regard. We also find that there could have been bickerings at that point of time between the teacher and the other components of the establishment. This is what the file shows. Having bestowed our anxious consideration, we are of the view that the penalty of withholding of two increments immediately preceding the date of superannuation i.e., 31.03.2009, with sufferance of consequences as regards that, in terms of clause (ii) read with (iii)(b) and the explanation thereunder of statute 73 of the Mahatma Gandhi University Statutes, 1997 would do complete justice between parties. In the result, the impugned order of the Appellate Tribunal is set aside and the findings of the Enquiry Authority and the order of the disciplinary authority will stand with the modification that the punishment CRP 256/09 16 imposed on the teacher (respondent No.1) shall be modified as withholding of two increments immediately preceding the date of superannuation i.e., 31.03.2009 with sufferance of consequences as regards that, in terms of clause (ii) read with iii(b) and the explanation thereunder of statute 73 of the Mahatma Gandhi University Statutes, 1997. There will be no order as to costs. The revision petition is ordered accordingly. Thottathil B.Radhakrishnan, Judge P.Bhavadasan, Judge sta CRP 256/09 17