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2015 DIGILAW 351 (KER)

Baburaj M. S. v. State of Kerala

2015-04-08

A.MUHAMED MUSTAQUE

body2015
JUDGMENT : A. Muhamed Mustaque, J. 1. The petitioner is an Associate Professor working in the Department of Physics under the 4th respondent College. The petitioner has been asked to appear before the valuation camp on 03/03/2014 by the University. The petitioner was given permission by the Principal. However, the petitioner did not appear on 03/03/2014. The petitioner, in stead, appeared on valuation on 24/03/2014 and 25/03/2014. This was admittedly without any permission from the Principal concerned. The petitioner's salary for 24/03/2014 and 25/03/2014 have been deducted from the salary payable to him during the month of April, 2014 based on the marking of absent in the Register by the Principal, The petitioner approached this Court claiming salary for the days for which he worked for the University for examination duty. This Court on 25/03/2015 passed the following interim order: "In the light of Ext. P3, there shall be a direction to the third respondent to release the salary to the petitioner for the days mentioned in Ext. P3." 2. In this matter a counter-affidavit has been filed by the 4th respondent The 4th respondent has also filed RP No. 361/2015 to review the interim order dated 25/03/2015. The main objection by the 4th respondent is based on Rule 27 of the Conditions of Service of Teachers & Members of Non-Teaching Staff First Statutes, 1979, which reads as follows: "27. Absence of duty.- A teacher attending any meeting of any University body or committee in his official capacity or any educational conference, seminar, etc. approved by the college, or superintending or conducting any public examination or engaging in any other activity in which the college is interested or attending a Civil or Criminal Court as a witness in obedience to a summons from a Court or attending a conference or meeting of a committee convened by the Central or State Government shall, be considered to be on duty and be entitled to draw his full salary during his absence: Provided that the previous sanction of the Principal shall be obtained for any absence of duty under this Statute. Explanation 1.- In the case of private colleges which have executed an agreement with the Government for the Direct Payment of salary to the Staff and which continues to subsist, the Educational Conferences, Seminars, etc. Explanation 1.- In the case of private colleges which have executed an agreement with the Government for the Direct Payment of salary to the Staff and which continues to subsist, the Educational Conferences, Seminars, etc. contemplated under this Statute are those which are sponsored by the Central Government, the State Government, the University Grants Commission and any University existing in the State of Kerala. Explanation 2.-An activity in which the college is interested means an activity which sub serves the interests of the teachers and the taught to which the University may accord prior approval in consultation with the Director of Collegiate Education in the case of private colleges coming under the Direct Payment Scheme." The main contention of the 4th respondent is that when the petitioner remains absent unauthorisedly without obtaining permission from the Principal concerned, the petitioner is not entitled to draw full salary during the period of absence. 3. The learned counsel for the petitioner, however, relying on Section 80A of the Kerala University Act, 1974 submits that the consent of the Principal concerned does not require and the petitioner has to honour the direction of the University to do any work in connection with the examination. Section 80A of the Kerala University Act reads as follows: "80A. Duty of teachers, etc. in connection with University Examinations.- (1) It shall be the duty of a teacher or a member of the non-teaching staff of an affiliated college or an officer, teacher or other employer of the University to do any work in connection with an examination conducted by the University which is required by the competent officer or authority of the University to do. (2) If any teacher or member of the non-teaching staff of an affiliated college or any officer, teacher or other employer of the University refuses, without sufficient cause to the satisfaction of (a) in the case of a teacher or a member of the non-teaching staff of an affiliated college, an officer not below the rank of Deputy Director of Collegiate Education authorised by the Government in this behalf; and (b) in the case of an officer, teacher or other employee of the University, the Vice-Chancellor." To do any work in connection with an examination conducted by the University when required to do so by the competent officer or authority of the University, he shall, without prejudice to any other action that may be taken against him, forfeit his pay and allowances for a period of two months commencing on the date of commencement of the examination." Rule 27 of Conditions of Service of Teachers & Members of Non-Teaching Staff First Statutes, 1979 refers to the general provisions relating to the absence of duty. Therein it is provided that the previous sanction of the Principal shall be obtained for any absence of duty. It refers to various reasons on which a teacher can be absented such as in the case of any educational conference, seminar etc. approved by the college, superintending or conducting any public examination etc. Therefore, contention of, the 4th respondent is that superintending or conducting should also fall within the meaning of the University examination. Therefore, the petitioner ought to have obtained previous sanction of the Principal. I am afraid this argument can be accepted in the teeth of Section 80A. The teacher can be engaged for any other public examination conducted by the Government or the State. Section 80A in fact is a special provision relating to the engagement of teacher with the University examination alone. 4. The petitioner responded to the duty as directed by the Controller of Examination. The petitioner is bound to honour the direction of Controller of Examination. If the Principal concerned has any grievance against such direction, it is for the Principal concerned to put up that matter with the University. However, honouring the statutory direction cannot be termed as unauthorised absence from the duty. The petitioner is bound to honour the direction of Controller of Examination. If the Principal concerned has any grievance against such direction, it is for the Principal concerned to put up that matter with the University. However, honouring the statutory direction cannot be termed as unauthorised absence from the duty. If the petitioner fails to honour such direction, as issued by the controller of Examination in terms of Section 80A, the Controller of Examination is vested with power to penalise the petitioner. Nowhere in Section 80A it is contemplated that prior permission of the principal concerned shall be obtained. In the light of the specific provision under Section 80A, which in fact governs the relationship between the teacher and the University, the general provision, which only related to the condition of the service of a particular teacher within the institution cannot have any relevance. In that view of the matter, the writ petition is disposed of in the light of the interim order.