Dismissed

S.K.Nirmala v. the Kerala State Warehousing Corpn.

Kerala HC1 Apr 2016WP(C)/13639/2006

Case brief

AI extract

What is this about?

Petitioner, an employee of the Kerala State Warehousing Corporation, challenged her dismissal for unauthorized absence. The High Court rejected claims of arbitrariness, noting the petitioner failed to seek proper leave and procured post-dated medical certificates while acting as a habitual absentee.

What did the court decide?

The writ petition challenging the dismissal order and rejection of appeal was dismissed.

S.K.Nirmala Vs the Kerala State Warehousing… — Pension and Retirement Benefits | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938

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WP(C).No. 13639 of 2006 (W)

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PETITIONER:

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S.K. NIRMALA, ASSISTANT, KERALA STATE WAREHOUSING CORPORATION, REGIONAL OFFICE, PALAKKAD.

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BY ADVS. SRI.C.P.SUDHAKARA PRASAD (SR.)

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SRI.ELVIN PETER P.J.

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SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL (PRANAVAM) SMT.POOJA SURENDRAN

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RESPONDENTS:

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1. THE KERALA STATE WAREHOUSING CORPORATION P.B.NO.1727, ERNAKULAM, REPRESENTED BY ITS, MANAGING DIRECTOR.

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2. THE CHAIRMAN, KERALA STATE WAREHOUSING CORPORATION, P.B.NO.1727,, ERNAKULAM.

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3. THE GENERAL MANAGER, KERALA STATE WAREHOUSING CORPORATION, P.B.NO.1727,, ERNAKULAM.

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R.1,2,3 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. R1-3 BY ADV. SRI.E.K.NANDAKUMAR R1-3 BY ADV. SRI.K.JOHN MATHAI R1-3 BY ADV. SRI.P.BENNY THOMAS R1-3 BY ADV. P.GOPINATH R1 BY SRI.N.D.PREMACHANDRAN, SC, KSWC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 13639 of 2006 (W)

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APPENDIX

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PETITIONER'S EXHIBITS

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P1: TRUE COPY OF THE LEAVE APPLICATION DATED 30.12.2004 SUBMITTED BY THE PETITIONER ALONG WITH A MEDICAL CERTIFICATE

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P2: - DO - DATED 1.5.2005 -DO-

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P3: TRUE COPY OF THE REPRESENTATION DATED 31.5.2005 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT

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P4: TRUE COPY OF THE COMMUNICATION DATED 24.5.2005 SENT BY THE DISTRICT MEDICAL OFFICER, INDIAN SYSTEMS OF MEDICINES, PALAKKAD TO THE PETITIONER

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P5: TRUE COPY OF THE RECEIPT FOR RS.200/- DATED 8.6.2005

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P6: TRUE COPY OF THE REPORT DATED 9.6.2005 OF THE DISTRICT MEDICAL OFFICER, PALAKKAD

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P7: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER BY THE CHIEF MEDICAL OFFICER, GOVT. AYURVEDA HOSPITAL, KOLLAM DT.7.8.2005

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P7(A) -DO -DODATED 21.8.2005

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P7(B) -DO -DODATED 31.10.2005

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P7(C) -DO -DODATED 10.12.2005

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P7(D) -DO -DODATED 20.01.2006 P7(E) -DO -DODATED 02.03.2006

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P8: TRUE COPY OF THE MEMO OF CHARGES DATED 5.4.2005 ALONG WITH THE STATEMENT OF ALLEGATIONS

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P9: TRUE COPY OF THE REPLY DATED 25.4.2006 SUBMITTED BY THE petitioner TO THE 3RD RESPONDENT

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P10: TRUE COPY OF THE MEMO OF CHARGES DATED 27.6.2005 ALONG WITH THE STATEMENT OF ALLEGATIONS ISSUED TO THE PETITIONER

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P11: TRUE COPY OF THE REPLY DATED 18.7.2005 SENT BY THE PETITIONER TO THE FIRST RESPONDENT

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P12: TRUE COPY OF THE ENQUIRY REPORT DATED 7.1.2006 SUBMITTED BY THE ENQUIRY OFFICER

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P13: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14.3.2006 ISSUED TO THE PETITIONER

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...2

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WP(C).No. 13639 of 2006 (W)

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P14: TRUE COPY OF THE REPRESENTATION DATED 27.3.2006 SUBMITTED BY THE PETITIONER BEFORE THE FIRST REPSONDENT

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P15: TRUE COPY OF THE ORDER DATED 19.4.2006 PASSED BY THE FIRST RESPONDENT DISMISSING THE PETITIONER FROM SERVICE

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P16: TRUE COPY OF THE ORDER DATED 13.3.2007 OF THE 2ND RESPONDENT

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RESPONDENT'S EXHIBITS

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R1(A) TRUE COPY OF THE LETTER DATED 01.02.2005

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R1(B) TRUE COPY OF THE LETTER NO.G1-813/05 DT.22.02.2005

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R1(C1) TRUE COPY OF THE LEAVE APPLICATION DT.25.4.2005

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R1(C2) TRUE COPY OF THE MEDICAL CERTIFICATE DT,1.5.2005

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R1(D1) TRUE COPY OF THE LEAVE APPLICATION DT.23.8.2004

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R1(D2) TRUE COPY OF THE MEDICAL CERTIFICATE DT.23.8.2004

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R1(E) TRUE COPY OF THE LETTER DATED 28.7.2005

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R1(F) TRUE COPY OF THE LETTER DATED 23.12.2005

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R1(G) TRUE COPY OF THE LETTER DATED 24.11.2005

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R1(H) TRUE COPY OF THE LETTER DATED 16.05.2006

//TRUE COPY//

P.A. TO JUDGE

JJJ

K. VINOD CHANDRAN, J.

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W.P.(C) No. 13639 of 2006 (W)

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Dated this the 1^st day of April, 2016

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The petitioner challenges Exts.P10, P13 and P15 in

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the above writ petition. Ext.P10 is a charge sheet dated 27.06.2005 and Ext.P13 is the show cause notice of the disciplinary authority, by which the enquiry report in the disciplinary proceedings was supplied to the petitioner, the delinquent employee, and Ext.P15 is the order of the disciplinary authority dismissing the petitioner from service with effect from 01.01.2005, the date on which the unauthorised absence; which led to the instant enquiry, commenced. Ext.P16 rejection of appeal is also seen challenged herein.

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The specific charges against the petitioner, as extracted from Ext.P10, the second charge sheet, are

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W.P.(C) No. 13639/2006

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as hereunder:

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“ a) Unauthorisedly absent from duty w.e.f. 01.01.2005 since you have not obtained prior permission before availing leave.

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b) Breach of Clause 20(5) of the Kerala State Warehousing Corporation General and Staff Regulations 1963 on account of your aforesaid act stated in Serial No.(a)

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c) Although you were awarded punishment of “reduction to the post of Assistant for a period of three years from the post of Senior Assistant” for unauthorised absence, you have not mended your ways and repeated such misconducts.

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d) Submitted leave application dated 25.04.2005 for loss of pay leave from 01.05.2005 to 31.10.2005 producing medical certificate dated 01.05.2005 i.e. you have procured postdated medical certificate and submitted along with leave application and thereby committed breach of clause 20(2) of the Kerala State Warehousing corporation General and Staff Regulations 1963

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W.P.(C) No. 13639/2006

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under which all employees are bound to serve the Corporation faithfully.”

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The petitioner contends that the petitioner was

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proceeded against for unauthorised absence, commencing from 01.05.2005, without reference to the various medical certificates produced by her and illegally withholding sanction of the leave applications submitted on the strength of the valid certificates. The petitioner contends that she submitted an application for leave, as indicated at Ext.P1, on 30.12.2004 along with medical certificate also enclosed in Ext.P1, seeking four months' leave from 01.01.2005 to 30.04.2005. Again, by Ext.P2 dated 01.05.2005, a further leave application along with the medical certificate was filed seeking leave for further six months. The petitioner argues that the above leave applications were in order and were supported by medical certificates and hence,

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W.P.(C) No. 13639/2006

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there was no impediment in the management considering the sanction of such leave applications.

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One of the charges, as extracted herein above, was that the petitioner had submitted a leave application dated 25.04.2005, for loss of pay leave from 01.05.2005 to 31.10.2005; with a medical certificate dated 01.05.2005. Ext.P3 is an application filed by the petitioner herself before the Managing Director, in which, the first reference is an application for leave dated 25.04.2005. The specific admission made in Ext.P3 is that on 25.04.2005, the petitioner was examined by the doctor and advised leave from 01.05.2005 to 31.10.2005.

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The petitioner, admittedly, was absent from duty with effect from 01.01.2005. There was also no sanction of leave, though the petitioner had applied for it with a medical certificate. The petitioner, as is

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W.P.(C) No. 13639/2006

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indicated from Ext.P8, was charge sheeted earlier for the very same misconduct of unauthorised absence. The petitioner also did not attend the medical examination directed by the management, scheduled on 15.02.2005, before the District Medical Officer, Indian Systems of Medicine, Palakkad. Be that as it may, the petitioner is said to have appeared before the D.M.O. and obtained Ext.P6 certificate dated 09.06.2005; permitting to be continued on leave for a period of one month. Even before the petitioner obtained such certificate, the petitioner, who was on unauthorised absence, was issued with the charge sheet at Ext.P8 and then in supercession of that, Ext. P10. Admittedly, the petitioner after the issuance of the charge sheet, continued her absence, which again was unauthorised.

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The explanation submitted by the petitioner was found to be unsatisfactory and an enquiry was

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W.P.(C) No. 13639/2006

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ordered. The enquiry report is seen produced at Ext.P10. The Enquiry Officer marked 34 documents through the one witness examined, the Manager of the respondent Corporation, at its Head Office at Ernakulam. The delinquent employee filed three documents and did not examine any witnesses. The delinquent employee was fully participated in the enquiry and had the opportunity to cross examine the witness also. The Enquiry Officer after having recorded the evidence, found that all the charges against the petitioner stood proved.

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The unauthorised absence from 01.01.2005 stood proved for reason of the petitioner's leave application having not been sanctioned, which, in consequence, led to charge (b) also being found against the petitioner. It was also brought on record that the petitioner had been consistently absenting herself even

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W.P.(C) No. 13639/2006

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before the said spell of unauthorised absence. The petitioner, on the basis of the continued unauthorised absence in the previous year, was proceeded against and was reduced to the post of Assistant for a period of three years from the post of Senior Assistant. The habitual absence without authorisation, which was the next charge, also stood proved.

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The last charge was the submission of a medical certificate dated 01.05.2005 along with a leave application dated 25.04.2005, which is an admitted fact. The post dated medical certificate was the last charge levelled. The petitioner also took up a contention before the Enquiry Officer that the absence of the petitioner would not cause any difficulty to the Corporation since the Corporation could appoint a person in the leave vacancy. It is evident from the explanation of the petitioner before the Enquiry Officer,

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W.P.(C) No. 13639/2006

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as has been extracted in Ext.P12, that the petitioner had been resorting to unauthorised absence for reason of her transfer to Palakkad when the family of the petitioner was settled at Kollam. There was no explanation offered for the post dated medical certificate.

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The Enquiry Officer, having found the petitioner guilty of all the charges, submitted a report to the disciplinary authority, who issued show cause notice at Ext.P13. The disciplinary authority, after considering the explanation of the petitioner at Ext.P14, passed Ext.P15 order. The petitioner, by Ext.P15, was dismissed from service, which was confirmed in Ext.P16 by the appellate authority.

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The petitioner does not allege any procedural irregularity and asserts that the petitioner had been continuing on leave on medical grounds, the

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W.P.(C) No. 13639/2006

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applications of which have been submitted to the Management. The Enquiry Officer and the disciplinary authority having found the unathorised absence of the petitioner to be proved and the said misconduct being the second instance of a disciplinary proceeding initiated against the petitioner, on the very same offense, this Court cannot find any arbitrariness or any illegality in the punishment imposed of dismissal. The petitioner had been a habitual absentee. The petitioner also had procured post dated medical certificate for continuing in such unauthorised absence. The allegations with respect to a post dated certificate having been issued, also stands proved by the admission of the petitioner. The petitioner had not taken any effort to examine the doctor who issued such certificate in the enquiry proceedings.

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W.P.(C) No. 13639/2006

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It is trite that this Court would not sit in appeal over the findings of the disciplinary authority as entered into, on the strength of the evidence recorded at a properly conducted disciplinary enquiry. There can be no illegality or irregularity found in the proceedings continued against the delinquent employee. The findings are also based on evidence, which stands admitted by the delinquent employee. The misconduct of unauthorised absence being a repetitive and continuing act, the dismissal of the employee cannot also be said to be one excessive. It is commensurate with the gravity of the offence.

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The writ petition would stand dismissed. No Costs.

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Sd/-

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K.VINOD CHANDRAN, JUDGE

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jjj 1/4/16

S.K.Nirmala v. the Kerala State Warehousing Corpn.

Case brief

What is this about?

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S.K.Nirmala v. the Kerala State Warehousing Corpn.

Case brief

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