Dismissed

A.K.Soosan v. the Manager & Secretary

Kerala HC4 Jun 2019CRP(UTY)/673/2014

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging a teacher's termination. The petitioners argued lack of notice on leave refusal and violation of natural justice. The Court held that the leave extension was a management prerogative and the enquiry, though ex parte, complied with natural justice. The punishment was upheld as not disproportionate. The petition was dismissed.

What did the court decide?

No order as to costs. The petition is dismissed.

A.K.Soosan Vs the Manager & Secretary — Education and Admissions | Kerala HC (2019)

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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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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941

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CRP(UTY).No.673 of 2014

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AGAINST THE ORDER IN U.A.No.18/2010 OF M.G.UNIVERSITY APPELLATE TRIBUNAL, TRIVANDRUM DATED 20-04-2013

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PETITIONER:

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A.K.SOOSAN, AMBATTU HOUSE, IRINGOLE,PERUMBAVOOR.P.O.,VIA ALUVA,ERNAKULAM DIST.

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BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.BENNY VARGHESE

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RESPONDENTS:

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1 THE MANAGER & SECRETARY MAR ATHANASIUS COLLEGE,KOTHAMANGALAM, PIN-682 305

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2 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR,PRIYADARSHINI HILLS.P.O.,KOTTAYAM-686 560

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3 THE PRINCIPAL SECRETARY TO GOVERNEMENT HIGHER EDUCATION (D) DEPARTMENT, THIRUVANANTHAPURTAM, PIN-695 001

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4 THE DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION,THIRUVANANTHAPURAM, PIN- 695 001

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5 P.J.DAVIS, ADVOCATE, HIGH COURT OF KERALA HIGH COURT ADVOCATE'S ASSOCIATION,HIGH COURT BUILDINGS,ERNAKULAM(THE ENQUIRY OFFICER), PIN-682 031

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BY ADVS. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.GEORGE JACOB SRI N.MANU SR GP

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CRP(UTY).No.673 of 2014 2

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THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP(UTY).No.673 of 2014 3

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JUDGMENT

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Arun, J

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The revision petitioner was initially appointed as Lecturer in Botany in the Mar Athanasius College, Kothamangalam in a leave vacancy and later to a substantive post on 11.09.1998. While continuing in the post, revision petitioner applied for leave without allowance from 04.10.2000 to 01.10.2002, to join her husband who was working abroad. The leave was granted, and the period of leave extended twice, from 02.10.2002 to 03.09.2004 and 01.10.2004 to 30.09.2007, at the request of the revision petitioner.

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Even though the revision petitioner again applied for extension of leave for a further period of three years, the management extended the period only by three months from 01.10.2007. Hence, the petitioner was bound to re-join duty on 01.1.2008,

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CRP(UTY).No.673 of 2014 4

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which she did not and thereupon the management issued a notice requiring the revision petitioner to rejoin duty on 08.02.2008. It was specifically mentioned in the notice that the revision petitioner would not be granted any further extension of time. Despite the notice, the revision petitioner did not rejoin duty and therefore the management initiated disciplinary proceedings against her. On receipt of notice from the Enquiry Officer appointed by the management, the revision petitioner requested to adjourn the enquiry by three months so that she could return to India and participate in the enquiry. Acceding to the request, the Enquiry Officer adjourned the enquiry by three months, but the revision petitioner did not participate in the enquiry even thereafter. Hence the enquiry was proceeded ex parte and in the enquiry the revision petitioner was found guilty of the charges levelled against her. Even though a show cause notice was issued to the revision petitioner along with the enquiry report, she

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did not submit an explanation. Based on the findings in the enquiry report and considering the gravity of the misconduct, the petitioner was imposed the punishment of termination from service with effect from 01.01.2008, as per order dated 04.06.2008.

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The revision petitioner challenged her termination in the appeal filed before the Mahatma Gandhi University Appellate Tribunal. The main ground of challenge was that the petitioner was not put on notice regarding the refusal of the management to extend her leave by three years from 01.10.2007. It was also contended that the enquiry was conducted without following the principles of natural justice and fair play and that in any view of the matter the punishment imposed was disproportionate to the alleged misconduct. After detailed consideration of the contentions, both factual and legal, the Tribunal upheld the order of termination and the Tribunal also clarified that the termination shall not be a disqualification for her

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CRP(UTY).No.673 of 2014 6

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future employment in any of the institutions maintained by or affiliated to the Mahatma Gandhi University.

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In this revision petition also, the primary contention is regarding lack of intimation regarding refusal of the revision petitioner’s request for extension of leave by the management and violation of the principles of natural justice in the enquiry proceedings. The ground regarding disproportionate punishment is also seriously urged. It is an undisputed fact that after entering into the regular service of the college on 02.06.1997, the petitioner had availed leave without allowance from 04.10.2000 and had continued on leave till 30.9.2007, as permitted by the management. Therefore, the management was fully justified in having refused to extend the revision petitioner's leave by a further period of three years. Even while refusing the request, the

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management was gracious enough to extend the leave by three months, so that the petitioner had sufficient time to return to India and re-join duty. That extended period having ended on 31.01.2008 and the petitioner having failed to re-join duty, the management again extended the period for rejoining till 08.02.2008. It was only when the revision petitioner refused to re-join duty even during the extended period that the management initiated disciplinary proceedings against her.

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The contention that the revision petitioner

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did not receive any communication from the management regarding its refusal to extend her leave by three years from 30.09.2007 is not available to the petitioner for the reason that the petitioner's mother had submitted an application before the management on her behalf seeking extension of leave on medical grounds. Moreover, as rightly found by the Tribunal, merely because the revision petitioner had submitted an application for

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extension of leave, she could not have presumed that her request was granted, in the absence of her reply from the management. Grant or extension of leave being the prerogative of the management, it is the duty of the employee to find out as to whether the request for grant/extension of leave was allowed and if not, to re-join duty. Admittedly, after the expiry of the sanctioned leave the petitioner did not re-join duty. Having failed to do so, in spite of sufficient time being granted, the revision petitioner cannot be heard to contend that she was not aware of the fact that the management had not granted her extension of leave, as sought.

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The revision petitioner does not have a

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case that the notice issued by the enquiry officer was not served on her. On the other hand, the contention seems to be that she had sought for adjournment of the enquiry by three months. As a matter of fact the enquiry officer had considered

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the request and had adjourned the enquiry by three months. Having failed to participate in the enquiry even after such adjournment, it is not open for the revision petitioner to challenge the enquiry on the ground of violation of the principles of natural justice.

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The only other ground urged is regarding the proportionality of the punishment imposed. It is contended that the proven charge being only of unauthorised absence from duty, the punishment of termination from service is grossly disproportionate. As noticed earlier, after completing only two years of service the revision petitioner had availed leave without allowance and had continued on leave for more than seven years. According to us, the management had committed a mistake in having extended the period of leave from time to time at the request of the petitioner, because the ultimate sufferers are the students, who are denied the services of their teacher. The

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failure on the part of the revision petitioner to rejoin duty even after receipt of notice in that regard is indeed a grave misconduct, especially in the case of a teacher. Hence the punishment of dismissal from service is not so shockingly disproportionate, that it warrants interference by this court. For the reasons mentioned above we find no sustainable ground of challenge and consequently the revision petition is dismissed. No order as to costs.

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K.VINOD CHANDRAN, JUDGE

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V.G.ARUN, JUDGE

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A.K.Soosan v. the Manager & Secretary

Case brief

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A.K.Soosan v. the Manager & Secretary

Case brief

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