IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 24442 of 2006(I) -------------------------- PETITIONER(S): --------------- PATRICK CHACKO, NON VOCATIONAL TEACHER IN ENGLISH, POMPEI ST.MARY'S V.H.S.S., KATTOOR, THRISSUR DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE MANAGER, POMPEI ST.MARY'S V.H.S.S., KATTOOR, THRISSUR DISTRICT. 4. THE PRINCIPAL, POMPEI ST.MARY'S V.H.S.S., KATTOOR, THRISSUR DISTRICT. ADV. SRI.M.P.ASHOK KUMAR FOR R3 SRI.P.K.ANIL FOR R4 SRI. ANTONY MUKKATH GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011 ALONG WITH W.P.(C)NO.4819 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24442 of 2006(I) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF APPOINTMENT ORDER DATED 6.2.2002 OF THE PETITIONER. EXT.P2: COPY OF ORDER DATED 21.5.2004 ISSUED BY R2. EXT.P3: COPY OF RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER. EXT.P4: COPY OF ORDER DATED 30TH MARCH, 1989 ISSUED BY THE GOVERNMENT. EXT.P5; COPY OF APPLICATION FOR LEAVE DATED 27TH JULY, 2006 SUBMITTED BY THE PETITIONER ALONG WITH THE ENCLOSURES. EXT.P6; COPY OF COMMUNICATION DT 7.8.2006 FROM THE PETITIONER TO R3. EXT.P7: COPY OF MEMO DATED 11.9.2006 ISSUED BY R3. RESPONDENTS' EXHIBITS: NIL. TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) Nos.24442/06 & 4819 of 2007 ---------------------------------------------- Dated this the 2nd day of September, 2011 JUDGMENT W.P.(C)No.4819/2007 is filed by the Manager of an aided School in which the petitioner in W.P.(C) No.24442/2006 was a Non-Vocational Teacher in the subject of English. The petitioner in W.P.(C)No.24442/2006 is the 4th respondent in the other writ petition. In this judgment I shall refer to the parties as the Manager, Teacher and the Government for the purpose of easy reference. The teacher filed an application for Leave Without Allowances for going abroad. He himself filled up the entire application form including the portions to be filled up by the Manager. He stated therein that the leave has been recommended by the Manager. The Principal recommended the leave. Since sanctioning of Leave Without Allowances for five years to the only English Teacher during the fag end of the academic year would adversely affect the interest of the students, the Manager refused to recommend the same. Pursuant to direction from this Court, the Manager forwarded the W.P.(C)No.24442/06 & 4819/07 2 application to the 2nd respondent without his recommendation along with his objections. Pursuant to interim direction in W.P. (C)No.24442/2006, the Government passed Ext.P4 order in W.P.(C)No.4819/2007, the relevant portion of which reads as follows: “ xxxx xxxx xxxx xxxx xxxx xxxx 5) As per the existing rules, no Government Servant is allowed to leave the country before getting the leave sanctioned. Disciplinary proceedings should be initiated those who do not obey the same. Moreover, on going through the documents submitted together with the leave application the declaration and NOC are still seen not authenticated by the Manager. If eventhough the leave application is received in time, Government will not be in a position to sanction the same without the consent of the Manager. Eventhough the counsel for the Manager had assumed that he will co-operate with the hearing, he had not turned up on both days. 6) It is very clear that Sri. Patrick Chacko had submitted the application for leave well in advance ie, for the leave he availed on 6-10-2006, he had submitted the application on 27-7-2006 and the Principal had recommended the same on that day itself. The Manager had pointed out the defects in the application vide his letter dated 25-9-06 addressed to the Director, Vocational Higher Secondary Education. The Manager should have rectified the defects in the school itself and forward the application in time to Head of Department. In the meanwhile the teacher had approached the Court and this is why he had explained the matter in a way pointing out the defects and without recommending the same. Hence the Head of Department had to return the same for retransmission with the Service Book and connected documents through Assistant Director. Hence the sole responsibility of the non- sanctioning of the leave in time vests with the Manager and punishing an incumbent for no fault of W.P.(C)No.24442/06 & 4819/07 3 him is not just. 7) In the above circumstances the Director, Vocational Higher Secondary Education is hereby directed to obtain the NOC and Lien Certificate of Sri. Patrick Chacko, Non Vocational Teacher in English, Pompei St. Mary's Vocational Higher Secondary School, Kattoor Trissur from the Manger and submit the same for sanctioning the leave and after sanctioning the leave in question. The teacher will be warned for leaving the country without getting the leave sanctioned by Government, taking a lenient stand in view of the fact that he had applied for leave in time and that he had to report for a job abroad with in a time limit.” The Manager is challenging that order in W.P.(C) No.4819/2007. W.P.(C)No.24442/2006 is filed seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P7 and quashing the same. ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the 3rd and 4th respondents to forward Ext.P5 application to the 1st respondent and a further direction to the 1st respondent to consider Ext.P5 in accordance with law forthwith. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the disciplinary proceedings initiated against the petitioner vide Ext.P7 is without any authority of law and the same is illegal and arbitrary”. Since both writ petitions are relating to the same subject matter, they are considered and disposed of by this common judgment. 2. The contention of the Manager is that the W.P.(C)No.24442/06 & 4819/07 4 Government cannot force the Manager or direct the Manager to recommend Leave Without Allowances for going abroad by a teacher, if the Manager is of the opinion that, that would be detrimental to the interest of the School and the students. He would also contend that under the provisions of the Kerala Education Rules, the Government has no power to deal with disciplinary matters of teachers of aided schools and therefore, the finding in Ext.P4 that the teacher will be warned for leaving the country without getting leave sanctioned by the Government, is an encroachment into powers of the Manager to take disciplinary action. Therefore, according to the Manager, on both counts, Ext.P4 is liable to be set aside. 3. The learned counsel for the teacher would contend that Ext.P4 is perfectly valid and proper. According to him, the rules do not prohibit the grant of leave to him and as such there is no reason for the Manager to object to the grant of leave to the petitioner. It is because of the delay in the matter of forwarding the application to the appropriate authorities, the teacher was forced to leave the country without getting the leave sanctioned and therefore, the teacher cannot be found fault with for leaving the country W.P.(C)No.24442/06 & 4819/07 5 without getting the leave sanctioned, is the contention raised. 4. I have considered the rival contentions in detail. It is settled law that the leave is not a matter of right. Grant of leave depends on the facts and circumstances of each case. Here, the teacher wanted to go abroad. There is no provision anywhere in the KER which mandates the Manager to recommend leave, if he is of opinion that the grant of leave to the teacher is detrimental to the interest of the School and the students. The Manager has given very valid reasons for not recommending the leave, to the effect that the only English teacher will have to be relieved at the fag end of the academic year which would naturally affect the studies of the students of the School. In the above circumstances, there was no justification for the Government to direct the Manager to submit the leave application with his recommendation. 5. Admittedly, Ext.P5 in W.P.(C)No.4819/2007 is the circular issued by the Government containing instructions regarding grant of Leave Without Allowances. The same reads thus: “CIRCULAR Sub:- General Education - Govt./Aided School Employees - application for LWA-Processing of- Instruction-Reg. W.P.(C)No.24442/06 & 4819/07 6 Government have noticed inordinate delay on the part of Teachers, Mangers, Educational Officers in forwarding the applications for Leave Without Allowance/extension of Leave Without Allowance of Government Aided School teachers, Ministerial Staff causing much inconvenience to Government in sanctioning the same at the appropriate time, thereby putting hardship to the incumbents. In the above circumstances the following instructions are issued for the speedy and timely processing of application for Leave Without Allowance under provisions of KSRs. 1. The employees should submit the leave application at least three months in advance so as to enable Government to process the application and take a decision before the commencement of leave applied for. The application should invariably contain te dated signature of the applicant. 2. The reason for the leave applied for should be specified. Leave will not be granted on vague grounds. 3. In case of Aided Schools the Manager of the school should forward the application to the Educational Officers concerned within one week with his specific remarks/recommendation after affixing the dated signature. 4. The Educational Officers should process and forward the same with his specific recommendation/remarks bearing his dated signature to Government within a week from the date of receipt of the leave application. 5. Immediately after getting the leave, the Administrative Department should process the application and take decision in consultation with Finance Department, wherever necessary within one month from the date of receipt. 6. The incumbent shall not enter into LWA without getting it sanctioned. Entering into LWA without proper sanction will be viewed seriously and stringent action will be taken against such incumbent, as per the general instructions issued in the matter by the Finance Department from time to time.”. Admittedly, the teacher left India without getting the leave sanctioned. As such, the teacher's absence can be regarded W.P.(C)No.24442/06 & 4819/07 7 only as unauthorised absence. The Manager is certainly entitled to take disciplinary action for such unauthorised absence. As per the provisions of the KER, insofar as the disciplinary authority is the Manager, the Government cannot suo motu usurp the powers to take disciplinary action and say that the teacher will be warned for leaving the country without getting the leave sanctioned. It is submitted before me by the learned counsel for the teacher that the teacher is still abroad. That means, his intention is to work abroad and to get pension in India, which itself is unreasonable, according to me. I hold that all what the Manager is liable to do is only to forward the leave application of the teacher to the 2nd respondent for on way transmission to the Government with his comments either recommending or objecting to the same. The Manager has already done that with his objection to the grant of the leave. That is sufficient compliance with the rules. Therefore, the Manager cannot be found fault with in respect of the same and the Government cannot direct the Manager to resubmit the application with his recommendation. It is for the Government to consider whether without the recommendation of the Manager, the leave should be sanctioned or not. The W.P.(C)No.24442/06 & 4819/07 8 Government also cannot let off the teacher with a warning as done in Ext.P4 insofar as under the KER the disciplinary authority of a teacher of an aided school is the Manager. It would be open to the Manager to initiate disciplinary action, if he is of opinion that the teacher is on unauthorised absence without leave. In the above circumstances, I am satisfied that Ext.P4 is unsustainable and against the provisions of the KER. Accordingly, Ext.P4 order in W.P.(C)No.4819/2007 is quashed. Insofar as the Manager has already forwarded the leave application prayer numbers (i) and (ii) of W.P.(C) No.24442/2006 has become infructuous. In view of my decision in W.P.(C)No.4819/2007, prayer number (iii) also cannot be granted. Therefore W.P.(C)No.24442/2006 is dismissed. The writ petitions are disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.24442/06 & 4819/07 9 W.P.(C)No.24442/06 & 4819/07 10