IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 OP.No. 21158 of 2000(R) --------------------------------- PETITIONER(S): ------------------------ M.O.SEBASTIAN, S/O. OUSEPH, AGED 38 YEARS, DRAUGHTSMAN,MINISTRY OF ELECTRICITY & WATER ELECTRICITY DISTRIBUTION, DIRECTORATE, POST BOX 833, BAHRAIN. BY ADV. MR.PHILIP MATHEW RESPONDENT(S): ------------------------- 1. M/S.TRANSFORMERS AND ELECTRICALS KERALA LIMITED, ANGAMALLY SOUTH P.O., PIN CODE 683 573, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPUAM ADV. MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR R1 BY ADV. MR.SAJI VARGHESE FOR R1 GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.35458/2000 IN OP. NO.21158/2000 DISMISSED 25.02.2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE MEMO NO.PIF/2973/93 DT. 26.8.93 SIGNED BY DEPUTY GENERAL MANAGER. P2:- COPY OF THE MEMO NO.PIF/1178/94 DT. 1.9.94 SIGNED BY DEPUTY GENERAL MANAGER. P3:- COPY OF THE MEMO NO.PR/46/96/1715 DT. 31.12.96 SIGNED BY MANAGER (PERSONNEL & ADMN.). P4:- COPY OF THE GOVERNMENT ORDER NO.(P) NO.169/96/FIN DT. 5.2.96 ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE PETITIOENR'S APPLICATION FOR LEAVE DT. 15.3.99 SUBMITTED TO THE IST RESPONDENT. P6:- COPY OF THE REFERENCE NO.PR/46/99/1383 DT. 30.9.99 SIGNED BY GENERAL MANAGER (PRODUCTION). P7:- COPY OF THE MEMO NO.PR/46/99/1809 DT. 9.11.99 SIGNED BY GENERAL MANAGER (PRODUCTION). P8:- COPY OF THE LETTER DT. 9.12.99 FROM THE PETITIONER TO THE IST RESPONDENT. P9:- COPY OF THE CONSENT LETTER FROM THE E.C. JOSEPH TO THE ENQUIRY OFFICER DT. 10.1.2000. P10:- COPY OF THE LETTER DT. 15.1.2000 ADDRESSED TO THE ENQUIRY OFFICER OF THE SIT RESPONDENT. P11:- COPY OF THE MEMO NO.PR/46/00/300 DT. 1.3.2000 RECEIVED BY THE PETITIONER FROM THE GENERAL MANAGER OF THE IST RESPONDENT. P12:- COPY OF THE ENQUIRY REPORT SUBMTITED BY THE ENQUIRY OFFICER SRI.THOMAS PHILIP TO THE IST RESPONDENT. P13:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT DT. 6.4.2000. P14:- COPY OF THE MEMO NO.PR/46/00/747 DT. 6.6.2000 SIGNED BY GENERAL MANAGER. /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMACHANDRA MENON, J. ====================== O.P. No. 21158 of 2000 ====================== Dated, this the 25th day of February, 2009 J U D G M E N T Sustainability of Exhibit P14 order passed by the first respondent company imposing the punishment of removal from service with effect from 15-9-1999 i.e., from the date of unauthorised absence of the petitioner stated as proved vide Exhibits P12 and P13 is under challenge in this writ petition. 2. The case of the petitioner is that he joined the service of the first respondent company as Foreman, Production & Planning, on 12-6-1980. On completion of 9 years, he got an opportunity to go abroad securing an employment there, which made him to apply for leave without allowance for five years, which was sanctioned by the first respondent as per Exhibit P1 with effect from 15.9.1989; subject to the condition that the petitioner reported for duty immediately on expiry of the leave on O.P. No. 21158 of 2000 -:2:- 14.9.1994, failing which, it would be presumed that petitioner had abandoned the service in the company. By Exhibit P1 it was also made clear that the leave would not be reckoned for the purpose of seniority and for other service benefits. 3. The petitioner sought for extension of leave by another period of five years with effect from 15-9-1994, which, however, was rejected by the first respondent company as per Exhibit P2, stating that, as per rules of the company, the maximum eligible leave to take up employment abroad was only for a period of five years, simultaneously instructing the petitioner to report for duty on 14-9-1994, lest it should be treated as abandonment of service. It is the case of the petitioner that the matter was referred by the first respondent company to the Government/second respondent and pursuant to the instructions given by the second respondent, the first O.P. No. 21158 of 2000 -:3:- respondent company, in supersession of Exhibit P2 memo issued Exhibit P3, granting extension of leave by five years from 15-9-1994, subject to the condition that the petitioner had to report back for duty immediately on expiry of leave on 14-9-1999 and such other terms as specified therein. Almost by the end of the second spell of leave granted by Exhibit P3, the petitioner submitted Exhibit P5 application seeking five years' leave more, placing reliance on the leave rules formulated by the Government. 4. While so, taking note of the fact that petitioner had not reported for duty on expiry of the leave granted vide Exhibit P3, the first respondent issued Exhibit P11 charge sheet ,citing violation of Clause No.12(i) & (viii) of the Standing Orders of the company and asking for the explanation on the misconduct. The explanation submitted by the petitioner was found not satisfactory, which led to issuance of Exhibit P7 deciding to hold a domestic enquiry and appointing an Enquiry Officer. O.P. No. 21158 of 2000 -:4:- 5. In the course of events, Exhibit P8 representation was filed by the petitioner before the General Manager (Production) of the first respondent company pointing out that his personal inconvenience to attend the enquiry incurring a cost of more than Rs.30,000/- and thus, seeking either to drop or to adjourn the enquiry to a later date so as to suit to his requirements. This was followed by Exhibit P10 representation sent by the petitioner directly to the Enquiry Officer. The fact remains that, despite the adjournment of the enquiry by two or three times, the petitioner did not take part in the enquiry and chose to remain abroad, which led to finalisation of the domestic enquiry after declaring him ex-parte. 6. On submission of the enquiry report (Exhibit P12), copy of the same was forwarded by the first respondent to the petitioner asking for his explanation, if any, particularly with regard to the finding of guilt arrived at. In response to this, the petitioner submitted Exhibit P13 reply which was O.P. No. 21158 of 2000 -:5:- considered by the first respondent and after analysing the facts, circumstances and evidence, the disciplinary authority came to the conclusion that conduct of the enquiry was very much valid and proper and that the charge levelled against the delinquent employee was proved. It was observed by the disciplinary authority that the misconduct committed by the delinquent officer was very much serious, particularly when the company was facing grave financial difficulties and facing adverse proceedings pending before the BIFR with shortage of manpower; whereas the petitioner was continuing on unauthorised absence, reaping his virtues abroad and hence that the petitioner was very much liable to be dismissed from the service on the basis of the proven misconduct. However, as stated in Exhibit P14 order, instead of dismissal, the punishment of removal from the service alone was imposed on the petitioner, taking a lenient view. O.P. No. 21158 of 2000 -:6:- 7. The case of the petitioner, placing reliance on Exhibit P4 is that the leave without allowance, which can be sanctioned as provided under Appendix XIIA , part I, KSR, has been enhanced from 15 years to 20 years and hence that the application preferred by the petitioner seeking for further extension of the leave (after the second extension granted vide Exhibit P3) was perfectly in accordance with the provisions of law. It is also contended by the petitioner that the first respondent being a Government company, provisions of the KSR are very much applicable to the said company. 8. The first respondent company has filed counter affidavit vehemently disputing the above averments, asserting that the leave rules stipulated by the Government are not at all applicable to the first respondent company. It is also pointed out that the company is having its own rules and norms to govern the service conditions and that the O.P. No. 21158 of 2000 -:7:- provisions of KSR are totally alien with respect to the service in the company. 9. It is trite law that the first respondent which admittedly is a company incorporated under the relevant provisions of the Companies Act, is a separate legal entity and hence provisions of the KSR are not applicable, though it is a Government company; unless adopted by the Board of Directors. There is no case for the petitioner that the Board of Directors of the first respondent company has adopted the KSR and no reference is made to any such resolution or other relevant proceedings. 10. The contention of the petitioner that the first respondent, if at all having any doubt, ought to have referred the matter for decision of the Government as done earlier is also stated as not correct. The first respondent has asserted in the counter affidavit that there was no such instance making the respondent company to refer any O.P. No. 21158 of 2000 -:8:- application for leave for consideration of the Government and it was the petitioner who, while remaining abroad even after rejection of the second spell of leave vide Exhibit P2, moved the Government. The Government requested the first respondent company to consider the petitioner's application as “a special case”, which in turn, led to Exhibit P3, extending the leave by another five years from 15-9-1994, though, as per the rules of the company, the permissible period of leave for taking up employment abroad was only five years. 11. It is settled law that leave cannot be claimed, as a matter of right, and as such the petitioner could not have continued abroad, even after expiry of the leave granted to him. Over staying beyond the sanctioned extent of leave is a a clear instance of misconduct. The Apex Court has made it clear that the scope of domestic enquiry in such circumstances will stand rather confined to the O.P. No. 21158 of 2000 -:9:- admitted/undisputed facts as no detailed fact adjudication process is necessitated as held in CHAIRMAN & MANAGING DIRECTOR, V.S.P. & OTHERS v. GOPARAJU SRI PRABHAKARA HARI BABU [(2008) 5 SCC 569]. 12. In the instant case, the respondent company after issuing Exhibit P6 charge sheet and on finding that the explanation of the petitioner is not satisfactory, proceeded to hold a domestic enquiry as borne by Exhibit P7 memo, which led to Exhibit P10 enquiry report. It is true that the enquiry happened to be finalised ex-parte; but the allegation of the petitioner that there was violation of the principles of natural justice cannot be held as correct or sustainable in the light of the admitted/undisputed factual position as to a specific circumstances and conditions under which the leave was granted; the admission made by the petitioner that he was continuing abroad even after the expiry of leave granted vide Exhibit P3 and that he would O.P. No. 21158 of 2000 -:10:- have to incur huge expenses for participating in the enquiry. Equally wrong and unsustainable is the contention of the petitioner as to the alleged violation of natural justice for not supplying copies of the deposition of the witnesses and documents, which in fact, has been controverted by the first respondent in paragraph 7 of their counter affidavit, asserting that copies of the deposition of witnesses and documents were very much furnished to the petitioner. The said assertion in the counter affidavit stands intact, in so far as the petitioner has not chosen to file any reply affidavit, to rebut the same. 13. As observed already, the petitioner being an employee of the first respondent company, is not governed by the provisions of KSR and the leave Rules as contained in Appendix XII A, Part I, KSR. For the very same reason, Exhibit P5 Government Order is not at all applicable to him. The petitioner admittedly having not chosen to report for duty on expiry of the leave sanctioned vide Exhibit P3 and O.P. No. 21158 of 2000 -:11:- was admittedly remaining abroad without even participating in the enquiry, the finding and reasoning given by the Enquiry Officer in Exhibit P12 report is not liable to be intercepted in any manner. There is absolutely no violation of any known principles of natural justice. The petitioner, without any regard to the organisational interest, was more eager to stay abroad in pursuit of his fortunes. The punishment of removal from the service ordered by the first respondent can never be considered as disproportionate to the gravity of the proven misconduct and hence, no interference is called for. The writ petition fails and the same is dismissed accordingly. No costs. P.R.RAMACHANDRA MENON, JUDGE. skr