IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 6603 of 2004(J) ------------------------- PETITIONER(S): --------------- GEORGE FERNANDEZ. J., S/O. JOSEPH, LOWER DIVISION CLERK, RETIRED FROM CFBT SCHOOL KOTTIYAM, RESIDING AT GEORGE VILASAM KUREEPUZHA P.O., PERINAD, KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): --------------- 1. THE CORPORATE MANAGER, CATHOLIC SCHOOLS BISHOPS HOUSE, KOLLAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 3. THE DEPUTY DIRECTOR (EDUCATION) KOLLAM. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 5. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE FOR R1 GOVT. PLEADER SRI.ANTONY MUKKATH- R2 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.6603 OF 2004 APPENDIX PETITIONER's EXHIBITS: Ext.P1: True copy of application for leave dated 25.2.1976 submitted by petitioner. Ext.P1(a): True copy of application for leave dated 21.5.1977 submitted by petitioner. Ext.P1(b): True copy of application for leave dated 1.8.1979 submitted by petitioner. Ext.P1(c): True copy of application for leave dated 1.8.1980 submitted by petitioner. Ext.P1(d): True copy of application for leave dated 1.3.1981 submitted by petitioner. Ext.P1(e): True copy of application for leave dated 1.2.1982 submitted by petitioner. Ext.P1(f): True copy of application for leave dated 17.7.1983 submitted by petitioner. Ext.P1(g): True copy of application for leave dated 15.8.1984 submitted by petitioner. Ext.P2: True copy of letter No.B3-13452/84/L.Dis.dated 4.4.1986 by 2nd respondent. Ext.P3: True copy of letter dated 9.4.1990 issued by 3rd respondent. Ext.P4: True copy of letter dated 25.3.1993 issued by 3rd respondent. Ext.P5: True copy of representation dated 19.2.1997 submitted by petitioner to the Hon'ble Minister for Education. Ext.P6: True copy of letter No.25318/N2/97/G.Edn.dated 19.1.2000 issued by the Government. Ext.P7: True copy of letter No.D1/18053/95 dated 13.3.2001 issued by the 3rd respondent. Ext.P8: True copy of letter No.PB4/8335/2000 dated 31.5.2001 issued by the 4th respondent. Ext.P9: True copy of letter No.40652/N2/2001/G.Edn. Dated 5.2.2002 issued by the Government. Ext.P10: True copy of letter dated 10.10.2002 issued by 3rd respondent. Ext.P11: True copy of letter dated 12.11.2002 issued by 4th respondent. Ext.P12: True copy of letter dated 4.12.2003 issued by the Government. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 6603 OF 2004 -------------------------------------------- Dated this the 17th day of February, 2010 JUDGMENT The petitioner was a Lower Division Clerk under the first respondent. He joined service of the first respondent on 3.8.1960 and continued as such till 28.2.1976. According to the petitioner, he applied for leave without allowances and stayed on leave without allowances for the purpose of taking employment abroad. Ext.P1 series are the applications submitted by the petitioner for getting leave without allowances on different dates for different periods. According to the petitioner, though he had submitted proper applications for leave without allowances, at no point of time, he was informed that the applications were rejected except in the case of the applications covering the period from 1.9.1984 to 31.12.1985. In respect of the said period from 1.9.1984 to 31.12.1985, the petitioner was informed as per Ext.P2 that his application was rejected. Immediately thereafter, the petitioner applied for voluntary retirement with effect from 1.1.1986. The said application was forwarded to the third respondent. However, no action was taken thereon. Subsequently, as per Ext.P3, the District Education Officer sought for W.P.(C) NO.6603 of 2004 2 clarification from the first respondent. It is evident from Ext.P3 that the clarification sought for was on the point whether the petitioner was removed from service after initiating disciplinary action in terms of the provisions under the Kerala Education Rules. Further, the first respondent was directed to forward copy of the order, if any, issued with the approval of the competent authority, removing the petitioner from service. Thereafter, as per Ext.P4 letter, the third respondent made a recommendation to the fourth respondent that the request of the petitioner for pensionery benefits after treating him as voluntarily retired from service on 1.1.1986 deserves sympathetic consideration. As per Ext.P6 dated 19.1.2000, the fifth respondent directed the fourth respondent to examine the request of the petitioner afresh and forward necessary concrete proposals for granting him the pensionery benefits. The subsequent communications as evident from Exts.P7 and P9 would reveal that the Government took the stand that no disciplinary action as contemplated under the Kerala Education Rules was initiated against the petitioner on account of his long unauthorised absence and in the said circumstances, the question of sanctioning pensionery benefits could be decided after regularising the service of the petitioner from 29.2.1976 to 30.9.1986. As per Ext.P11, the fourth respondent forwarded the leave application submitted by the petitioner during the period of his absence from 29.2.1976 to 30.9.1986. It carried a recommendation for W.P.(C) NO.6603 of 2004 3 treating the period of his absence as leave without allowances. Ext.P11 is the application submitted by the petitioner for enabling such consideration by the Government. However, as per Ext.P12, the application for regularisation for the period of absence for the above period was rejected by the Government citing the reason that the petitioner was terminated from service with effect from 1.3.1976 for unauthorised long absence. It is challenging Ext.P12 that this Writ Petition has been filed. 2. According to the petitioner, he had submitted Ext.P1 series of applications for the purpose of availing leave without allowances for taking employment abroad. The specific case of the petitioner is that despite the receipt of such applications, he was not intimated the rejection of these applications. The petitioner's case is that only when he submitted an application for extension of period from 1.9.1984 to 31.12.1985 that he was intimated as per Ext.P2 that his application was rejected. The further case is that immediately on receipt of Ext.P2, he submitted an application for voluntary retirement from service on 1.1.1986 and no action was taken thereon. In this Writ Petition, a counter affidavit has been filed by the fifth respondent. As per the averments in the counter affidavit, the first respondent did not take any action for terminating the service of the petitioner despite his long unauthorised absence. Further, it is averred that the petitioner left India unauthorisedly even without waiting to see his W.P.(C) NO.6603 of 2004 4 application for leave without allowances was granted or not by the competent authority. It is a settled position that mere putting of an application for leave without allowances will not enable the concerned employee to go on leave and if he had abstained from continuing duty after putting such an application, it is at his/her peril and it can be construed only as unauthorised absence. The specific case of the respondents is that even with respect to the rejection of his first application, he was duly intimated. However, the petitioner did not join duty. Be that as it may, the question is, whether the petitioner, who is unauthorisedly absent till 30.9.1986 was proceeded against by the competent authorities viz., the first respondent, in accordance with law. In the case of the persons who are unauthorisedly absent from duty, the provisions under the kerala Education Rules permits initiation of disciplinary proceedings. In short, even if a person unauthorisedly absents from duty, he can be terminated from service only after following the procedures prescribed under the Kerala Education Rules for that purpose. In this context, it is apposite to note that the respondents have no case that the petitioner has abandoned the service. In other words, according to the respondents, the petitioner is unauthorisedly absent. If that be the case, necessarily termination of the petitioner from service can be effected only after following the procedures prescribed under the Kerala Education Rules. The specific stand taken by the fifth respondent is that the W.P.(C) NO.6603 of 2004 5 first respondent-management had failed to take appropriate action against the petitioner for terminating his service. Ext.P9 would reveal that the said stand has been reiterated The finding of the Government in Ext.P9 assumes relevance in this context. It reads thus: “I am directed to invite your attention to the reference cited and to inform you that the action of the management in not taking proper action is highly irregular”. It is not forthcoming from any of the documents produced by the petitioner or by the respondents as to from where the information that the petitioner was terminated from service with effect from 1.3.1976 was obtained. No such orders have been produced by the respondents. In fact, there is no whisper about any proceedings that culminated in such order. Therefore, the said finding in Ext.P12 to the effect that the petitioner was terminated from service with effect from 1.3.1976 for unauthorised long absence cannot be accepted in the light of the specific finding in Exts.P6 and P9. In this context, finding in Ext.P12 is worthy to be extracted. It reads thus: “I am to invite your attention to the reference cited and to inform you that this is a case where the petitioner was terminated from service with effect from 1.3.1976 for unauthorised long absence and after having terminated his service, the Management of the school permitted him to have voluntary retirement with effect from 1.1.1986.” If the petitioner was actually terminated from service, the question of W.P.(C) NO.6603 of 2004 6 permitting him to retire voluntarily would not have been and could not have been taken. Thus, it is obvious that the Government have actually taken conflicting stands as is evident from Exts.P6, P9 and P12. However, it is evident from the documents that it is a fact that the petitioner was not terminated from service and if at all terminated from service, it was not after following the prescribed procedures, that too, with the approval of the competent authorities. No documents which would enable me to take a contra view were produced in this case. In fact, that is a crucial aspect which is to be taken into account first for the purpose of deciding the entitlement of the petitioner for pensionery benefits. Only after considering the question of regularisation of unauthorised absence, the question of granting pensionery benefits could be taken up. Therefore, I am of the opinion that the fifth respondent shall consider the issue afresh especially the question whether the petitioner was terminated from service after following the prescribed procedures under the Kerala Education Rules. Needless to say that the entitlement of the petitioner for pensionery benefits depends upon the decision on that question. To enable the fifth respondent to consider that question, Ext.P12 is set aside. Accordingly, there shall be a direction to the fifth respondent to consider the said question as directed above with notice to the petitioner and the first respondent expeditiously, at any rate, within a period of three months from the date of receipt of a copy W.P.(C) NO.6603 of 2004 7 of this judgment. In case it is ultimately found that the petitioner's service was terminated according to law, then the fifth respondent shall consider the question whether the petitioner's unauthorised absence could be regularised. Depending on the decision thereon, the entitlement of the petitioner for pensionery benefits shall be considered and decided expeditiously. This Writ Petition is disposed of, accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.6603 of 2004 8 C.T. RAVIKUMAR, J. CRL. M.C. NO. O R D E R 3rd June, 2009