IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 WP(C).No. 16894 of 2010(S) -------------------------- AGAINST THE ORDER IN OA.361/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. THE CHAIRMAN & MANAGING DIRECTOR, HINDUSTAN ORGANIC CHEMICALS LTD., HARCHANDRAI HOUSE, 81, MAHARSHI KARVE ROAD, MUMBAI - 400 002. 2. THE GENERAL MANAGER, HINDUSTAN ORGANIC CHEMICALS LTD., AMBALAMUGAL, KOCHI - 682 302. BY ADV. SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON RESPONDENT(S): --------------- INDUCHOODAN C.G., S/O.V.K.GOPALAKRISHNA KURUP, THERATHENAL HOUSE, SOUTH EROOR, TRIPUNITHURA. ADV. SRI.A.T.ANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16894/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF LETTER OF THE RESPONDENT DATED 28/06/2008. P2 : COPY OF APPLICATION O.A.NO.361/2009 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P3 : COPY OF REPLY STATEMENT FILED ON BEHALF OF THE SECOND PETITIONER. P4 : COPY OF REJOINDER FILED BY THE RESPONDENT. P5 : COPY OF ADDITIONAL REPLY STATEMENT DATED 08/08/2008 FILED ON BEHALF OF THE SECOND PETITIONER. P6 : COPY OF ADDITIONAL REPLY STATEMENT DATED 09/11/2009 FILED ON BEHALF OF THE SECOND PETITIONER. P7 : COPY OF ADDITIONAL REPLY STATEMENT DATED 20/01/2010 FILED ON BEHALF OF THE SECOND PETITIONER. P8 : COPY OF ORDER DATED 19/03/2010 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.361/2009. ANNEXURE-A : COPY OF ENQUIRY REPORT. ANNEXURE-B : COPY OF THE NOTICE NO.CMD/PNL (362)/DA/2010 DATED 08/07/2010. ANNEXURE-C : COPY OF EXPLANATION DATED 24/07/2010 OF THE RESPONDENT. RESPONDENT'S EXHIBITS R1(a) & (b) : COPY OF LEAVE APPLICATION AS WELL AS THE PERMISSION APPLICATION. R1(c) & (d) : COPY OF SALARY SLIP OF THE RESPONDENT ISSUED BY THE PETITIONERS FOR THE MONTH OF JUNE, 2008 AND JULY 2008. R1(e) : COPY OF SALARY SLIP OF A PREVIOUS MONTH SHOWING DEDUCTION FOR EVEN ONE DAY'S ABSENCE. R1(f) : COPY OF LETTER. R1(g) : COPY OF LETTER ISSUED BY THE PETITIONERS DATED 16/08/2008. R1(h) : COPY OF LETTER R1(i) : COPY OF EXPLANATION R1(j) : COPY OF STAY ORDER. WPC NO.16894/2010 R1(k) : COPY OF ORDER OF THE HONOURABLE HIGH COURT. R1(l) : COPY OF ORDER IN O.A.NO.205/2009. R1(m) :COPY OF REJECTION ORDER. R1(n) : COPY OF ORDER. R1(o) : COPY OF RESIGNATION LETTER. R1(p) & (q) : COPY OF RTI REQUEST LETTER AND REPLY BY THE PETITIONERS. R1(r) : COPY OF ABOVE LIST OF 8 PERSONS, THE DETAILS OF LEAVE APPLICATION OF ONE MR.V.A.HARIDASAN, (CHIEF MANAGER PRODUCTION) R1(s) : COPY OF LETTER ISSUED BY THE AIR INDIA STATING THAT MR.HARIDASAN HAD GONE TO DAMMAM IN SAUDI ARABIA BY AIR INDIA FLIGHT A1-911 ON 10/02/2009 AT 7.55 AM. R1(t) : COPY OF DETAILS REGARDING THE ACCEPTANCE OF THE RESIGNATION SENT BY MR.HARIDASAN. R1(u) : COPY OF THE PASSPORT AND VISA DETAILS OF MR.HARIDASAN. R1(v) : COPY OF THE LIST OF RECOMMENDED EMPLOYEES AND LIST OF PROMOTED EMPLOYEES. R1(w) : COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER BEFORE THE 1ST PETITIONER. R1(x) : COPY OF COVERING LETTER ISSUED BY THE 1ST PETITIONER ALONG WITH THE ENQUIRY REPORT. R1(y) : COPY OF REQUEST DATED 15/07/2010. R1(z) : COPY OF REPLY DATED 24/07/2010. R1(AA) : COPY OF THE CORRECTED CHARGE. R1(AB) : COPY OF INFORMATION RECEIVED REGARDING THE 8 EMPLOYEES. R1(AC) : COPY OF CHARGE SHEET IN CC 10/2006. R1(AD) : COPY OF DEPARTMENTAL ACTION TAKEN AGAINST THE SAID GOPAL. R1(AE) : COPY OF PUNISHMENT ORDER ISSUED TO MR.BABU THOMAS. //TRUE COPY// PA TO JUDGE. jg C.R. C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- WP(C) No.16894 of 2010 --------------------------------- Dated, this the 18th day of January, 2011 J U D G M E N T Ramachandran Nair, J. This Writ Petition is filed challenging the order of the Central Administrative Tribunal directing the petitioners to accept respondent's resignation and give him terminal benefits. 2. We have heard learned Standing Counsel for the petitioners and learned counsel appearing for the respondent. 3. The respondent, while serving as Production Manager, applied for leave on 09/06/2008 to go abroad for a period of one month from 17/06/2008. Even though leave application was submitted on 09/06/2008, the respondent was not given any communication until 17/06/2008, and therefore he left for Saudi Arabia to visit his brother there. The petitioners' case is that the leave application submitted was defective in as much as it was not in the prescribed form and did not contain all the details, and therefore on 23/06/2008 they sent a telegraphic communication of WP(C) No.16894/2010 -2- the same to the respondent. The respondent thereafter submitted another leave application on 28/06/2008 for one year special leave to take up employment abroad. Since no reply was received, the respondent wrote another letter on 14/07/2008 repeating same request with an alternate suggestion to the Company that if leave available in credit or one year long leave cannot be granted, then his request for leave shall be treated as a letter of resignation, so that he will be relieved from duty. The request for leave was rejected by the petitioners on 23/07/2008 and instead of granting an opportunity to the respondent to return and join for duty, the petitioners initiated disciplinary proceedings for unauthorised leave. This was done vide letter dated 14/08/2008. The respondent challenged the disciplinary proceedings before the CAT by filing an OA, which was allowed by the CAT holding that there is no act of indiscipline on the part of the respondent warranting disciplinary action. The Tribunal clearly found that even before the issuance of charge memo, the respondent vide letter dated 14/07/2008 tendered resignation, which according to him, was an option availed by him in the absence of leave being granted by the petitioners, so WP(C) No.16894/2010 -3- that he could be relieved from the service. 4. After hearing both sides and after going through the records and the order of the Tribunal, we do not find any merit in the allegation of the petitioners that the respondent has committed an act of indiscipline warranting action against him. Admittedly the respondent was in service for more than 20 years and he was the Unit Head prior to applying for leave for one month to go abroad. The respondent has a specific case that he was victimised for his disagreement with the Management for outsourcing repair of certain equipments. Learned Standing Counsel for the petitioners has disputed this. However, we do not propose to go into this question because irrespective of whether there is any motive for the petitioners to proceed against the respondent or not, facts clearly establish that the respondent was not involved in any misconduct and he could not be proceeded against for leaving abroad on 17/06/2008 without any express orders granting leave by the petitioners because leave application was submitted well in advance on 09/06/2008. If the petitioners declined the leave application within one week and communicated the same to the respondent any WP(C) No.16894/2010 -4- date prior to 17/06/2008, he obviously would not have gone abroad. In our view, when an application for leave is submitted that too by a Senior Officer of the Company for going abroad for a month, and if no reply is received within a reasonable time, there is nothing wrong in assuming that the Company had no objection in granting the leave. Further it is seen from subsequent developments that when the respondent applied for long leave with a request that if the Company cannot grant leave he may be allowed to resign from the Company. In our view, the option available to the Company was either to grant him leave in terms of the request or to allow him to resign from the service. The Tribunal rightly held that the developments above stated did not give rise to a case for disciplinary action against a senior officer of the Company, who served the Company for a period of more than 20 years without any complaint whatsoever. Learned counsel for the respondent submitted that inspite of the elapse of two years, the post remains vacant and the respondent is willing to rejoin and work with the Company. It is worthwhile for the Management to consider whether the respondent could be WP(C) No.16894/2010 -5- inducted back and allowed to serve the Company because he has served the Company over two decades to the satisfaction of the Management. However, we do not want to issue any direction to the Company in this regard because the same does not arise from the order of the CAT. It is up to the Management to keep in mind the interest of the Company and decide whether an experienced person should be restored to the Office for the benefit of the Company itself. Leaving this option to the Company, we direct the Company, in the alternate, to implement the Tribunal's order without any delay if the respondent cannot be absorbed in service again. This Writ Petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg