Muraleedharan R. K. v. State of Kerala — 1994 DIGILAW 454 (KER)

JUDGMENT 1. The State of Kerala is probably the only State in this country that grants leave without allowances under R.88 of the Kerala State Service Rules and under R.110 thereof. This is upto the period of 15 years, as per Appendix XII-A of the said rules. This is for the purpose of taking up employment abroad or within India. The same provision makes it clear that in the event of such employee not returning to duty immediately on the expiry of the leave, his services shall be terminated after following the procedure laid down in Kerala Civil Service (Classification, Control and Appeal) Rules, 1960. What is required to be followed is the procedure of the 1960 rules. Otherwise the consequences of such benevolent and exceptional provision are crystal clear in the statutory provision itself. 2. The question that is posed in this petition is as regards as to whether the extraordinary powers of this Court under Art.226 of the Constitution of India are required for exercise in the matters of such benevolent provisions and the breaches in regard thereto. In the process, the Court will not act as a stranger but would be concerned with the attitude of the employee in the matter of taking advantage of this benevolent provision and to make the best of the situation available under the statutory provision for himself. Consequently the attitude of the Court with regard to deviations in regard thereto would be in consonance with the spirit in which such exceptional situation is made available to the Government employees. 3. The factual matrix of this petition would require examination and consideration, in the light of the above observations, keeping in mind the necessity of the writ court to be more vigilant in honouring the provision more in spirit than with regard to the aspects that get concerned for consideration. 4. This is the petition by the petitioner who is a son of a teacher who died in harness in the year 1965, as a result of which, obviously on compassionate grounds in 1975 was employed as a Lower Division Clerk in the Education Department in the revenue district of Trivandrum. He joined duty as such on February 1, 1975. The petition shows that commencing on September 5, 1977 he proceeded on leave under the above provision because he left for employment in United Arab Emirates. He joined duty as such on February 1, 1975. The petition shows that commencing on September 5, 1977 he proceeded on leave under the above provision because he left for employment in United Arab Emirates. Ostensibly initially 20 days half pay leave and 70 days leave without pay was applied for. Thereafter the petitioner avers that from September 5, 1977 five years leave without allowance was applied for. In U.A.E. he entered into contract of employment and when it was terminated he returned to the State of Kerala. It must be noted that in regard to this, the averment of the petitioner is that he had to return on termination of contract of service in U.A.E. 5. Perusal of the order (Ext. P-2) would show that it is passed in consequence of the situation that the petitioner failed to report for duty on the expiry of the leave so applied for and has absented from duty unauthorisedly since September 5, 1977, and as a consequence he failed and neglected to do his duties as a public servant. The competent authority dealing with the order (Ext. P-2 dated May 11, 1979) has recorded that the petitioner was requested to be present for the enquiry on November 23, 1978 by a communication that returned with an endorsement that the addressee left India. The order also records further that on. the basis thereof the enquiry was conducted in his absence and it was held that the absence was unauthorised on and from September 5, 1977. The order also records that the notice together with a copy of the enquiry report was also sent on the last known residential address which was also returned undelivered with an endorsement that the petitioner left India. Additionally the order also shows that it was published in the Kerala Gazette No. II, dated March 13, 1979. 6. Thereafter on July 1, 1982, the petitioner after return to his State probably, preferred an appeal urging that he had applied for further extension of leave which application was not replied. By a communication dated January 25, 1983, referring to the above contention in the appeal petition the petitioner was asked by a request to produce evidence to substantiate the above statement, that an application for extension of leave was submitted. 7. The attitude of the petitioner to this request to produce evidence was more than casual when by Ext. By a communication dated January 25, 1983, referring to the above contention in the appeal petition the petitioner was asked by a request to produce evidence to substantiate the above statement, that an application for extension of leave was submitted. 7. The attitude of the petitioner to this request to produce evidence was more than casual when by Ext. P-4 dated February 24, 1983, he replied that all his leave applications may be available in the file kept in the Director of Public Instruction's Office. No evidence was produced. If the petitioner wanted to contend that he had applied for extension of leave on the basis of which his available legal right was founded, mere showing the direction of the Office of the Director of Public Instructions would have to be described as more than casual. The entire contention of the petitioner is based on the basis of his having applied for extension for a period of five years from September 5, 1977. Apart from the question as to whether he was entitled to, in view of the fact of his initial appointment being made on February 1, 1975, the very basis of his application for extension is not a fact to be accepted on the basis of the material on record, especially when the petitioner expects it by stating that it may be available in the file kept in the Director of Public Instruction's Office. The appeal of the petitioner was not entertained as having been presented in 1982, as obviously time barred. 8. His further representation to the Minister of Education, dated November 27, 1985, was also found having no reason for reconsideration in regard thereto and accordingly the petitioner was informed by the communication, dated July 30, 1986 (Ext. P-7). 9. In this context there is a further representation (Ext. P-8) dated January 8, 1988, continued by one (Ext. P-9) sent on May 5, 1988. These representations are also considered on the basis of supporting letter of the M.L.A. dated April 7, 1988, which decision is at Ext. P-10, dated January 24, 1989. This order of the State Government informing the said M.L.A. is a detailed order. It records that the petitioner himself admitted that he had no case either on legal or even on technical grounds. P-10, dated January 24, 1989. This order of the State Government informing the said M.L.A. is a detailed order. It records that the petitioner himself admitted that he had no case either on legal or even on technical grounds. It is further recorded that he had just worked for the Government for 2 years and has been away for more than 11 years. The record also shows that the petitioner preferred further appeal, dated March 25, 1989, again to the Chief Minister and it was also rejected by the intimation (Ext. P-14) dated August 25, 1989 that there are no grounds to reconsider the decision already taken in the matter. On the basis of these facts, in the said document it is observed that the petitioner just waited to complete his probation before going away. On examination of the entire matter the request for reinstatement was not considered. In these background the present petition is filed on December 17, 1990, for reliefs prayed therein. 10. At the outset certain factual aspects that can be established need be stated with reference to the contentions of the petitioner in this petition. Firstly the petitioner joined on the basis of compassionate grounds as the son of a teacher who died in harness. Secondly immediately after he joined his duty on February 1, 1975, initially he applied for 20 days half pay leave and 70 days leave without pay and then it is alleged that he applied for leave without allowance for a period of five years commencing on September 5, 1977. Thirdly, there is no material on record that he had infact applied for such leave without allowance commencing on September 5, 1977. Fourthly, he went abroad (U.A.E.) and accepted a contract .appointment for a period of five years and returned on termination of the said contract in 1982. Fifthly, as recorded, he raised his stand not on legal and technical factors but based his case before the Government seeking mercy and benevolence. Sixthly, he worked on record only for 2 years and was away for more than 11 years as it is recorded in the order of the Government. 11. Learned counsel Shri Abdul Gafoor firstly urged making a grievance as regards the publication in the Government gazette to urge that this was no publication really meant in consonance with the situation. Sixthly, he worked on record only for 2 years and was away for more than 11 years as it is recorded in the order of the Government. 11. Learned counsel Shri Abdul Gafoor firstly urged making a grievance as regards the publication in the Government gazette to urge that this was no publication really meant in consonance with the situation. The mode of publication in various Government statutes is publication in the Government gazette. The learned counsel submitted that it should not be considered as sufficient publication in view of the practical situation of the Government gazette being shrouded in the dust and din of the situation. The learned counsel submitted that normally the publication is always resorted to by publication in the two local dailies having wide circulation in the area. 12. Learned counsel secondly contended that in similar situation, the State has resorted to publication in the local dailies in support he placed reliance on Ext. P-11. The learned counsel also placed reliance on Ext. P-12 in regard to this similar situation for another independent submission wherein the State set aside the order of removal and ordered reinstatement, recording that the employee therein shall not be eligible for any service benefits for the period of absence. 13. The learned counsel also urged that in such a situation when a special privilege is created by the statutory provisions referred to above to enable the Government employees to accept employment abroad, the penalty of removal in such a situation would be unduly harsh in the situation. 14. These submissions have an addition in the sense that it is contended by the counsel that the order of removal (Ext. P-2) is not passed by the competent authority. 15. The notice is necessary under ordinary law in order to put the person proceeded against on an alert in advance. The occasions for such notices are contemplated under various statutes as a prior intimation of the initiation of the proceedings against the concerned person. Normally the personal service is the rule, failing which rule by affixing a copy of the notice on the property which is the subject matter of the action is the alternative mode, leaving yet a third mode of affixing on the last known address. Normally the personal service is the rule, failing which rule by affixing a copy of the notice on the property which is the subject matter of the action is the alternative mode, leaving yet a third mode of affixing on the last known address. These modes contemplated the presence of the person to be served within the territorial jurisdiction of the Court and situations where the exact location of the person is not known. Certain provisions also speak about publication in the official gazette which is also taken as sufficient proof. However, on the facts of the present case there is no dispute that the petitioner was not within the territorial limits of this country and have left for U.A.E. Practically no useful purpose would have been attained even by publication in the local dailies. At any rate considering the aspects enumerated by me hereinbefore, this aspect of publication in the official gazette would not be considered as fatal to the situation. 16. As regards the submission of the learned counsel, the publication in similar situation in the local dailies, in the light of the above reasoning perusal of the documents Exts. P-11 and P-12 reveals differences in the factual material. Additionally such illustrations would not be considered enough as similar situations in similar positions. The contents of Ext. P-11 show that the employee therein was represented by a counsel although the employee did not turn up for the enquiry. At any rate as stated above it is not possible to accept the contention of the learned counsel, because the provision is in the nature of a privilege and facility statutorily created and it would not be possible to consider the question of reinstatement on the basis of some parity with regard to the instances wherein the State Government has shown some regard for compassionate grounds urged in regard thereto. 17. The submission of the learned counsel as regards the penalty of removal being very stringent the submission gets answered in the very language of the statutory provisions. Reference to clause (6) of Appendix XII A would show that in the event of an employee not returning to duty immediately on the expiry of the leave the consequences cannot be otherwise than of termination. Reference to clause (6) of Appendix XII A would show that in the event of an employee not returning to duty immediately on the expiry of the leave the consequences cannot be otherwise than of termination. What is necessary is that for such a course the procedure laid down in Kerala Service Rules (Classification, Control and Appeal) Rules, 1960 is required to be followed. This shows that for such an occasion it is not a question of consideration of different modes of penalties but the officer is left with no other alternative in the situation. The submission that the order of removal is not passed by the competent authority also cannot be accepted in view of the fact that it is an admitted position that the petitioner was appointed as a Lower Division Clerk and the order is of the Director of Public Instructions. 18. Apart from these contentions raised by the learned counsel, a postscript becomes necessary. As stated at the outset, this leave without allowance which can be enjoyed by the Government servant for a period of 15 years is an exceptional situation which the Government servants have to accept with all its rigours. The provision is made for the benefit and if there are situations that the employees who enter the Government service on compassionate grounds, somehow managed to work for a period of 2 years, leave for foreign country without even normal and minor courtesy of intimating the department, atleast the courts cannot have an attitude which will induce them to exercise extraordinary powers under Art.226 of the Constitution of India. In my judgment, the attitude and concession issued by the State to the citizen, and in this case the petitioner before me, has been enjoyed to the extent of its abuse by the petitioner. At least extraordinary powers under Art.226 of the Constitution of India cannot be availed of in such situations. It is also clear that from 1977 the petitioner has no connection with the Government service of the State. For all the above reasons the petition stands dismissed. In the circumstances there shall be no order as to costs.