IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 12312 of 2010(L) -------------------------- PETITIONER : -------------------- ELSY P.OOMMAN, UPSA, P.H.S, PADAGIRI, RESIDING AT HOUSE NO.46, ELLAI AMMAL KOVIL ROAD, PUDUSSERY, PALAKKAD. BY ADV. SRI. U. BALAGANGADHARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCTIONAL OFFICER, PALAKKAD. 3. THE MANAGER, P.H.S. PADAGIRI, PALAKKAD. 4. THE HEADMASTER, P.H.S, PADAGIRI, PALAKKAD. 5. TEACHER-IN-CHARGE, P.H.S, PADAGIRI, PALAKKAD. R1 & R2 BY GOVT.PLEADER SRI. SANDESH RAJ R3 BY ADVS. SRI.P.M.BENZIR SRI.G.G.MANOJ SRI.JAICE JACOB R4 & R5 BY ADV. SRI.C.PUSHPODARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 12312 of 2010(L) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE G.O. RT.NO.4/92/GE DATED 7.1.1992. EXT.P2 : COPY OF THE G.O.RT NO.2097/94/GE DATED 22.6.1994. EXT.P3 : COPY OF THE G.O.(RT) NO.131/97/GE DATED 14.1.97. EXT.P4 : COPY OF THE G.O.(RT) NO.4159/2001/GE DATED 7.11.2001. EXT.P5 : COPY OF THE G.O.(RT) NO.4891/06/G.EDN DATED 10.11.2006. EXT.P6 : COPY OF THE G.O.(RT) NO.4119/09/G.E DATED 3.10.2009. EXT.P7 : COPY OF THE LETTER OF THE PETITIONER TO THE 4TH RESPONDENT DATED 11.3.2010. EXT.P8 : COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT-MANAGER TO THE 4TH RESPONDENT – HM. EXT.P9 : COPY OF THE PETITIONER SUBMITTED A REQUEST TO THE 2ND RESPONDENT – DEO ON 22.3.2010. EXT.P10 : COPY OF THE LETTER OF THE 2ND RESPONDENT – DEO DATED 25.3.2010. EXT.P11 : COPY OF THE COMMUNICATION DATED 27.3.2010 OF THE TEACHER IN CHARGE. RESPONDENT'S EXHIBITS: EXT.R3(a) : COPY OF THE CIRCULAR NO.1/95/G.EDN. DATED 28/04/1995 ISSUED BY THE GOVERNMENT. EXT.R3(b) : PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 20/03/2010 ISSUED BY THE MANAGER TO THE PETITIONER. EXT.R3(c) : PHOTOCOPY OF THE APPEAL DATED 8/5/2010 SUBMITTED BY THE MANAGER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. //TRUE COPY// P.A. TO JUDGE Mn (CR) C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - W.P.(C) No. 12312 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010 J U D G M E N T The petitioner is an Upper Primary School Assistant in P.H.S Padagiri, at Palakkad. She had applied for Leave Without Allowances to join her spouse and same was granted as per Ext.P1. The same was extended from time to time, as is obvious from Exts.P2 to P6 orders. The leave thus availed by the petitioner was due to expire on 21.3.2010. Prior to the expiry of the leave without allowance granted as per Ext.P6 the petitioner had submitted Ext.P7 dated 11.3.2010. As per Ext.P7 the petitioner sought permission to rejoin duty. On receipt of Ext.P7 the 3rd respondent issued Ext.P8 letter dated 22.3.2010. to the 4th respondent whereby the 4th respondent was directed not to allow the petitioner to rejoin duty from 22.3.2010. It is also stated therein that disciplinary proceedings had already been initiated against the petitioner as she had left the school before obtaining sanction of leave. A further direction was issued thereunder to record the said matters in the attendance register. On receipt of Ext.P8, the Wpc 12312/2010 2 petitioner had approached the second respondent through Ext.P9 dated 22.3.2010. In Ext.P9 the petitioner has specifically stated that Government have sanctioned the Leave Without Allowance to her till 21.3.2010 and she was disallowed to rejoin duty when she reported for rejoining duty on 22.3.2010. In the said circumstances, she had requested the second respondent to issue appropriate instructions to the Manager to allow her to rejoin duty. Ext.P10 is the order passed by the second respondent on Ext.P9. As per Ext.P10 order dated 25.3.2010 the second respondent directed the 4th respondent to permit the petitioner to rejoin duty with effect from 22.3.2010 and to report the fact immediately. The 3rd respondent was also served with a copy of Ext.P10. Despite the receipt of Ext.P10 which carried the aforesaid specific directions the petitioner was not permitted to rejoin duty. Feeling aggrieved by the said action on the part of the 3rd and 4th respondent, the petitioner has preferred Ext.P11 before the second respondent. Despite the receipt of Ext.P11 no steps as contemplated under the provisions of Kerala Education Rules have been taken by the second respondent. This writ petition has been filed in the said circumstances. Wpc 12312/2010 3 2. On 7.4.2010 this court issued notice to the respondents. Pursuant to the receipt of notice from this court Government have issued Ext.P12 dated 24.5.2010. 3. In the context of the contentions it is relevant to extract the directions in Ext.P12 issued by the Government. It reads thus:- “I am to invite your attention to the reference cited. The action of the Headmistress of your school in having rejected the request of Smt.Elsy P. Oomman for rejoining duty on the grounds that disciplinary action was initiated against her for leaving the school before getting the leave sanctioned, is irregular. Even if, she had absented from duty without leave, she cannot be denied re-admission to duty, as per Para 53(6) of the Manual of Disciplinary Proceedings. The action of the school authorities refusing to rejoin the petitioner on duty is also violative of the guidelines issued in the circular No.13/2003/Fin. dated 17.1.2003. As such, you are directed to permit the teacher to rejoin service on the reopening day of the academic year 2010-2011, pending disciplinary action.” (Emphasis supplied) Obviously, as per Ext.P12, Government have specifically directed the 3rd respondent to permit the teacher to rejoin service on the re-opening day of the academic year 2010-2011 pending disciplinary action. It is made clear that para 53(6)of the Manual of Disciplinary Proceedings enjoins re-admission Wpc 12312/2010 4 to duty, even in case of persons who had absented from duty without leave. The grievances of the petitioner is that even thereafter, the petitioner was not permitted to rejoin duty. 4. It is thus evident from the contentions raised by the petitioner that as per Exts.P1 to P6, the petitioner was granted leave without allowance by the first respondent. Exts.P1 to P6 would further show that leave without allowance was granted to the petitioner up to 21.3.2010. Therefore, the petitioner was to rejoin duty only on 22.3.2010 Indisputably, the petitioner had reported before the 4th respondent for rejoining duty on 22.3.2010. The 4th respondent did not allow the petitioner to rejoin duty based on the direction from the 3rd respondent as per Ext.P8. 5. The 3rd respondent has filed a counter affidavit in this writ petition. A scanning of the contentions in the counter affidavit would reveal that the Manager did not dispute the fact that as per Exts.P1 to P6, the petitioner was granted leave without allowances. The contention of the 3rd respondent is that the petitioner had entered on leave without allowance before it was actually sanctioned by the Government. That apart, according to the 3rd respondent, the petitioner had Wpc 12312/2010 5 ceased to be in service by virtue of the provisions under Rule 56(4) of Chapter XIV A of Kerala Education Rules. Therefore, according to the Manager, a teacher ceased to be in service cannot be permitted to rejoin duty. The 3rd respondent has yet another contention based on Ext.R3(a) Circular. The relevant portion of Ext.R3(a) reads thus:- The rules in force enjoin that the applicants should enter on leave without allowances to take up employment abroad/join spouse only after the leave is sanctioned by the competent authority. The departmental officers are instructed to ensure that the above rules are strictly adhered to by those applying for the leave. In cases of violations, necessary instructions may be issued to the Managers concerned to initiate prompt disciplinary action against those who unauthorisedly leave office before getting the leave sanctioned. In such cases the incumbents will not be allowed by the Managers to rejoin duty before completion of the disciplinary action already initiated. According to the 3rd respondent disciplinary action was initiated against the petitioner in terms of Ext.R3(a). Further, it is contended that pursuant to the directions in Ext.P10 he had approached the Deputy Director of Education through Ext.R3(c) and no action was taken thereon. Ext.R3(c) contained his grievances and objections against Ext.P10. In short, the contention of the 3rd respondent is that Ext.R3(a) Wpc 12312/2010 6 contemplates initiation of disciplinary proceedings against a teacher who availed leave without allowance before getting the same sanctioned and that in terms of Ext.R3(a) he had initiated action against the petitioner as per Ext.R3(b). However, the contentions thus raised by the petitioner and the contentions based on the provisions under 56(4)of Chapter XIV A of Kerala Education Rules(for short 'KER'), cannot co- exist. If the petitioner is ceased to be in service, then how could the 3rd respondent initiate any action against the teacher. There cannot be any doubt with regard to the position of law that once an employee ceases to be in service he falls beyond the disciplinary jurisdiction of any authority. In fact, paragraph 7 of the Counter Affidavit would reveal that the contention of the third respondent is only to the effect that the service of the petitioner would be liable to be terminated in view of clause 6 of Appendix XII C of Part I KSR 6. This court had an occasion to consider the scope of Rule 56(4) of Chapter XIV A of KER in 1999(2) KLT SN 11. It was a case wherein the concerned teacher was terminated from service on the ground of absence from duty for a continuous period of 5 years without leave, by invoking Wpc 12312/2010 7 provisions under Rule 56(4) of Chapter XIV A of KER. After referring to the related provisions under KER, this court found that dismissal or removal of teacher of an aided school could be done only with previous sanction from the concerned officer and for that all the prescribed procedures under Rule 75 of Chapter XIV A of KER had to be followed. The question whether a teacher absented from duty for a period of 5 years without leave, would cease to be in service, by virtue of the aforesaid provisions was considered in that case and it found that the termination of the concerned teacher was invalid. In essence, the dictum laid down by this court in the aforesaid decision is that despite the provisions of Rule56(4) of Chapter XIV A the Manager is bound to follow the procedures laid down in Rule 75 of Chapter XIV A before passing an order of termination. In this case, There is nothing on record to show that disciplinary action was initiated against the petitioner under Rule 75 of Chapter XIV A. Rule 56(1) of Chapter XIV A assumes relevance in this context and the same reads thus:- In the matter of casual leave and all other kinds of leave, the teachers of aided schools shall be governed by the Rules for teachers of government schools in the Service Regulations for the time being in force. Wpc 12312/2010 8 Rule 56(4) reads thus:- A teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave. 7. It is evident from Rule 56(1) that it is the leave rules that are applicable to the teachers of Government schools in the service regulations that are applicable to the teacher of aided schools. There cannot be any doubt that Appendix XII-C is the relevant provision which is applicable in case of this nature. In fact the said provision has been referred to in Exts.P4 to P6. Instead of Appendix XII-C and Appendix XII-A was misquoted in Exts P2 and P3. In view of the facts obtained in this case, what is applicable can only be Appendix XII-C as admittedly, the petitioner had applied for LWA for joining her spouse. It is pertinent to note that even according to the 3rd respondent it is the relevant provision that is applicable as is obvious from the contentions raised in paragraph 7 of the Counter Affidavit. Appendix XII-C Clause (6) of KER is also relevant of this context. It reads thus:- The maximum period of leave that may sanctioned to officers under these rules, including the leave sanctioned under Appendix XII A, if any, during their Wpc 12312/2010 9 entire service shall be limited to twenty years [and such leave shall not extend beyond twelve months before their date of superannuation.] If the officers who have availed of the leave without allowances for a total period of fifteen years, whether continuously or in broken periods, do not return to duty immediately on the expiry of the leave, their service shall be terminated after following the procedure laid down in Kerala Civil Services(Classification, Control and Appeal) Rules, 1960. The aforesaid provision permits initiation of disciplinary proceedings against the officers who had availed leave without allowance for a total period of 15 years, whether continuously or broken periods and do not return to duty immediately on the expiry of the leave. The said rule provides for termination of service of such employees after following the procedures laid down in KCS(CCA) Rules 1960. In this particular case, the petitioner is an aided school teacher and therefore, disciplinary proceedings has to be initiated against the petitioner not in terms of KCS(CCA) Rules whilst only in accordance with the rule 75 of Chapter XIV A of the KER. The question is whether the 3rd respondent has initiated disciplinary proceedings against the petitioner in terms of Rule 75 of Chapter XIV-A of KER. Incidentally, another question also calls for consideration that is, even if Wpc 12312/2010 10 disciplinary proceedings were initiated against the petitioner whether permission should have been declined to rejoin duty especially, in the light of Exts.P1 to P12. Government have made clear in Ext.P12 that even in the case of a person who remains absent from duty without leave such person has to be readmitted in service in terms of paragraph 53(6) of the Manual for disciplinary proceedings. No doubt the case of the petitioner stands on a firmer footing. Indisputably, the petitioner was granted leave without allowance by the Government as can be seen from Exts.P1 to P6. In terms of Rule 56(1), Appendix XII-C and other related provisions that governs the teachers of the Government School are applicable to the aided school teachers. Therefore, merely because of the fact that the petitioner had been absent from duty continuously for more than 5 years with leave(on the strength of Exts.P1 to P6) could not have been assigned as a reason for treating that the petitioner has ceased to be in service relying on the provisions under Rule 56(4) of Chapter XIV A. In the light of Rule 56(1) holding a teacher as ceased to be in service after a continuous period of 5 years with leave in terms of Rule 56(4) of Chapter XIA-A would definitely make the other Wpc 12312/2010 11 provisions redundant. A harmonious consideration is required in view of the relevant provisions extracted above. Therefore, I am of the view that in spite of the provisions under Rule 56(4), a teacher can be terminated from the service only after following the provisions as prescribed under Rule 75 of Chapter XIV A of KER. I am fortified in my view by the decision of this Court reported in 1999(2) KLT SN 11. 8. As already noticed in this case, the contention of the 3rd respondent is that disciplinary proceedings has already been initiated against the petitioner as per Ext.R3(b). According to me the said contention also cannot be countenanced. A bare perusal of Ext.R3(b) itself would reveal that it is nothing but a show cause notice. It is a settled decision of law that the disciplinary proceedings can be said to have been initiated only if a memo of charges is issued to the concerned employee. No material is produced before this Court to show that memo of charges has been issued to the petitioner. At any rate, issuance of Ext.R3(b) show cause notice cannot be construed as initiation of disciplinary proceedings in the eye of law. That apart, in this case, as rightly held by the Government in terms of Paragraph 53(6) of Wpc 12312/2010 12 the Manual for disciplinary proceedings, even in a case whether disciplinary action had actually been initiated, that could not have been assigned as a reason to decline permission to the petitioner to rejoin duty. In the aforesaid aspect, I am of the view that 3rd respondent is bound to permit the petitioner to rejoin duty especially in the light of Ext.P10 and P12. Accordingly, there will be a direction to the 3rd respondent to permit the petitioner to rejoin duty forthwith. It is declared that the period from 22.3.2010 till admission of the petitioner on duty shall not be treated as unauthorized absence. If any disciplinary proceedings had actually been initiated or permissible to be initiated under law, against the petitioner, this judgment will not stand in the way of continuation or initiation of any such action, in accordance with law. This writ petition is disposed of accordingly. Sd/- C.T. RAVIKUMAR, JUDGE jma //true copy// P.A to Judge