Dismissed

Madana Mohanan.K v. the Manager , Gopal Memorial Vocational

Kerala HC23 Nov 2012WP(C)/24604/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the termination of services of a vocational lecturer. The court held that the petitioner failed to prove submission of a leave application and distinguished the present case from precedent where the manager acted on a recommended leave application.

What did the court decide?

The writ petition challenging the termination order was dismissed.

Madana Mohanan.K Vs the Manager , Gopal Memorial… — Service and Employment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 23RD DAY OF NOVEMBER 2012/2ND AGRAHAYANA 1934

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WP(C).No. 24604 of 2010 ()

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PETITIONER(S):

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MADANA MOHANAN.K., AGED 41 YEARS, S/O. KUTTIKRISHNAN, VADAKKETHARA HOUSE, ANJUMOORTHI.P.O., MANGALA, PALAKKAD.

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENT(S):

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1. THE MANAGER , GOPAL MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, THIRUVALATHUR.P.O., KODUMBU, PALAKKAD-678551.

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2. THE PRINCIPAL,GOPAL MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, THIRUVALATHUR.P.O. KODUMBU, PALAKKAD-678551.

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3. THE ASSISTANT DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, KUTTIPPURAM-679571.

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4. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION,THIRUVANANTHAPURAM- 695 001

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5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001

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R1 & R2 BY ADVS. SRI.S.EASWARAN

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SRI.M.A.AUGUSTINE

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BY GOVERNMENT PLEADER SMT.MADHUBEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2012, THE COURT ON 23/11/2012 DELIVERED THE FOLLOWING:

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MJL

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WP(C).No. 24604 of 2010 ()

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	:	TRUE COPY OF THE MEMO OF CHARGES ALONG WITH A STATEMENT OF ALLEGATIONS DATED 18-12-2008 ISSUED BY THE MANAGER TO THE PETITIONER.
EXT.P2	:	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 20-6-2009 ISSUED BY THE MANAGER TO THE PETITIONER
EXT.P3	:	TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 19-1-2009
EXT.P4	:	TRUE COPY OF THE ORDER OF THE MANAGER DATED 30-06-2010 TERMINATING THE SERVICES OF THE PETITIONER.
EXT.P5	:	TRUE COPY OF LETTER DATED 15-6-2010 ISSUED BY THE 4TH RESPONDENT GRANTING PERMISSION TO THE 1ST RESPONDENT TO TAKE DISCIPLINARY ACTION AGAINST THE PETITIONER.
EXT.P6	:	TRUE COPY OF ORDER DATED 19-8-2010 ISSUED BY THE 4TH RESPONDENT.

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RESPONDENT'S EXHIBITS:

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EXT- R1(a)	:	TRUE COPY OF THE PETITION DATED 17-10-2008 SUBMITTED BEFORE THE RESPONDENTS NO.1 & 2 IN THE ABOVE CASE BY THE STAFF OF GOPAL MEMORIAL VHSS, THIRUVALTHUR.
EXT-R1(b)	:	TRUE COPY OF THE MEMO DATED 24-10-2008 ISSUED BY THE RESPONDENT NO.1 TO THE PETITIONER.
EXT-R1(c)	:	TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY THE KPETITIONER ON RECEIPT OF EXT.R1 (b)
EXT-R1(d)	:	TRUE COPY OF THE PETITION DATED 24-10-2008 SENT BY THE RESPONDENT NO.1 TO THE RESPONDENT NO.3
EXT-R1(e)	:	TRUE COPY OF THE COMMUNICATION DATED 25-10-2008 MADE BY THE RESPONDENT NO.2 TO THE RESPONDENT NO.1

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MJL

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WP(C).No. 24604 of 2010 ()

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EXT - R1(f) : TRUE COPY OF THE LETTER SENT BY THE RESPONDENT NO.1 TO THE PETITIONER. EXT-R1(g) : TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY THE PETITIONER ON RECEIPT OF EXT.R1(f) EXT-R1(h) : TRUE COPY OF THE COMMUNICATION DATED 15-6-2010 MADE BY THE RESPONDENT NO.4 TO RESPONDENT NO.1 EXT.R1(i) : TRUE COPY OF THE PROCEEDINS DATED 19-08-10 PASSED BY THE RESPONDENT NO.4

/TRUE COPY/

P A TO JUDGE

MJL

A.M.SHAFFIQUE, J.

---------------------------------------------------W.P.(C) No. 24604 of 2010

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--------------------------------------------------Dated this the 23^rd November, 2012

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J U D G M E N T

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The petitioner challenges the proceedings of the first respondent terminating his service while he was working as Vocational Lecture in Refrigeration and Air-conditioning in the first respondent school on the finding that he was unauthorisedly absent.

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Petitioner has been working in the school since 6.9.1993 . He was granted leave without allowance for five years from 15.10.2003 to 14.10.2008. According to him, he submitted a leave application five months prior to the expiry of the leave period for grant of further leave for five years. It is his case that without considering his leave application, the first respondent initiated disciplinary action by issuing a memo of charges dated 18.12.2008 as Ext.P1 in which it is alleged that his absence from duty from 15.10.2003 without applying for extention of leave amounts to unauthorised absence from service and dereliction of duty which require disciplinary action under Rules in K.E.R and Appendix XII-A (9) of KSR. The

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W.P.(C) No. 24604 of 2010

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statement of allegations was also annexed along with the memo of charges on similar lines.

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The petitioner caused a reply to be given through his wife which was considered by the first respondent and by Ext.P2 show-cause dated 20.6.2009 he was called upon to show- cause why he should not be dismissed from service. Ext.P3 is the reply in which the petitioner inter alia contended that he has submitted an application for extension of leave for another five years on 27.5.2008 and that it was handed over to the Manager of the School who thereafter handed over it to the staff by name Renjith. It is contended that he bona fide believed that his application for leave would have been recommended by the school and forwarded to the Government for necessary action.

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It is his further contention that without taking into consideration the fact that the petitioner had applied for extension of leave Ext.P4 order was passed dismissing the petitioner from service with effect from 15.10.2008 under Rule 9 of Appendix XII-A of Part I KSR. The said decision was approved by the Director Vocational Higher Secondary as

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W.P.(C) No. 24604 of 2010

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evident from Ext.P6. The petitioner challenges the aforesaid action.

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The first respondent has filed a counter affidavit inter alia contending that though the management made several attempts to make temporary appointment in the leave vacancy of the petitioner, nobody was willing to join for such short period. Hence it was found that the absence of petitioner was adversely affecting the institution and the students. The management also received a representation, complaining of the leave vacancy. It is further stated that by memo dated 24.10.2008, petitioner was called upon to join duty . Ext.R1(b) is the said memo and Ext.R1(c) is the acknowledgement. These matters were informed by the Manager to the Assistant Director by Ext. R1(d) dated 24.10.2008. Ext.R1(e) is the letter from the Principal requiring the Manager to take immediate steps to fill up the post arising in the leave vacancy of the petitioner. Under these circumstances the memo of charges were issued along with the statement of allegation. It is further stated that the explanation given by the petitioner was considered and a letter was issued calling upon him to

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W.P.(C) No. 24604 of 2010

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rejoin duty. Ext.R1(f) is the said letter and Ext. R1(g) is the acknowledgment. Still when the petitioner did not make any attempt to rejoin duty, a decision was taken to terminate his services. The respondent also denied the fact that the application for leave was handed over to the Manager. According to them the decision to terminate the service of the petitioner was taken following the principles of natural justice and other procedures and therefore there is no reason to interfere with the said decision. The 4^th respondent has also filed a counter affidavit.

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It is argued by the learned counsel for the petitioner that the Manager has not followed the procedure prescribed under the Rules. Specific reference is made to the judgment of the learned single judge in Deepa v. State of Kerala (2010 (4) KLT 795) in order to contend that the Manager cannot suo motu taken any action against the petitioner. They can only consider the leave application and recommend or refuse the leave and forward the same to the educational authorities. It is his contention that the leave application was given five months prior to the date of expiry of the leave period which is evident

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W.P.(C) No. 24604 of 2010

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from Ext.P2 wherein it is stated that “ since it was found that availability of qualified hands for appointment against leave vacancy is very remote, the managing committee of the school has resolved that your application for extension of LWA for a further period of five years from 15/10/2008 deserves no recommendation”. This according to the petitioner clearly indicates that leave application was available with the management which according to them, they considered and refused.

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The first question therefore to be considered in this writ petition is whether the petitioner had applied for leave within the prescribed period as contended by him. If he had applied for leave prior to the expiry of the leave period, the management ought to have considered the leave application and should have either recommended or refused the said request as per the Rules prescribed. When the management had contended that the leave application was not received it is for the petitioner to prove such submission of leave application with cogent materials. No such material is produced and the petitioner only relies upon the aforesaid statement in Ext.P2.

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W.P.(C) No. 24604 of 2010

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In Ext.P3 reply given by the petitioner to the manager in reply to the memo of charges they had referred to the letter dated 27.5.2008 and had also enclosed such an application for leave. Apparently the managing committee had considered the explanation given by the petitioner along with the leave application and had taken a decision which is communicated by him in the show cause notice dated 20/6/2009. This by itself does not mean that the petitioner had submitted leave application on 27.5.2008 which is categorically denied by the first respondent. Hence I am of the view that the contention of the petitioner that he had submitted leave application dated 27.5.2008 cannot be sustained.

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The next question is whether the procedure under the Rules had been followed. It is not in dispute that the Manager is the authority to initiate action against the teachers of an aided school and the decision is only to be approved by the educational authorities as can be seen from Ext.R1(h). Permission was given by the Director of Vocational Higher Secondary School Education to the manager to initiate action against the petitioner and the action taken had been approved

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W.P.(C) No. 24604 of 2010

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by Ext. R1(j). Though it is contended that the manager had not followed the procedure, I do not think that any rule exists which prevents the manager from taking disciplinary action with the consent of the Director and the action taken had already been approved.

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The judgment in Deepa's case (supra) has no application to the case on hand since this is a case in which the allegation was unauthorised absence and that he had not submitted any leave application in time. It is not a case where the Manager has considered the leave application and then passed an order either recommending or rejecting. Hence the principles stated in para 18 of the above judgment will not apply to the facts of the present case.

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In the light of what is stated above, I do not think that any ground exists to interfere with the orders passed by the Manager and the educational authorities.

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Hence the writ petition is dismissed.

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A.M.SHAFFIQUE, JUDGE.

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rka

Madana Mohanan.K v. the Manager , Gopal Memorial Vocational

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Madana Mohanan.K v. the Manager , Gopal Memorial Vocational

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