JUDGMENT : [WP(C) Nos.5182/2019, 24809/2019] These connected writ petitions are filed by the Corporate Manager of an Aided School and a Teacher, who was working in the said school, with respect to the employment of the Teacher, her subsequent suspension and her later dismissal from service. 2. For ease of reference, the facts, as is available, in W.P.(C) No.5182 of 2019 are adopted. The petitioner is the Corporate Manager of an Aided School. The 5 th respondent herein was working as an Upper Primary School Teacher (UPST) in the said school. The dispute is essentially with respect to two spells of leave applied for by the petitioner. As regards the first spell – from 16.07.2003 to 12.11.2003 – for a period of 120 days, there is no dispute. The 5 th respondent sought for the afore leave for going abroad, and the said leave was also sanctioned. The petitioner contends that after the leave period, the 5 th respondent was to rejoin from 13.11.2003, and since the 5 th respondent did not rejoin, proceedings were taken by informing the Manager, as evidenced by Ext.P1 letter dated 17.11.2003. On 01.12.2003, the Manager sent Ext.P2 communication to the 5 th respondent at her address, as noticed in Ext.P2, and the same has been returned by the postal authorities with the endorsement ‘left India.’ The proceedings continued by way of sending a ‘memo of charges’, as evidenced by Ext.P3 again in the same address, which met with the same result as seen from the endorsements made by the postal authorities. The petitioner, in such circumstances, carried out a publication in the Deepika Malayalam Daily dated 04.02.2004, as evidenced by Ext.P4, followed by Ext.P5 memo of charges dated 20.02.2004, issued by the Manager, suspending the 5 th respondent from service. The afore period of suspension was permitted to be continued beyond the permissible period of 15 days pursuant to Ext.P6 proceedings dated 05.03.2004. Later, as evidenced by Ext.P8 letter dated 06.05.2004, an enquiry was conducted by the District Educational Officer (DEO), wherein also the fact that the 5 th respondent was abroad, and the notices sent have been returned with the endorsements 'left India’ has been recorded. Later, as evidenced by Ext.P8 letter dated 06.05.2004, an enquiry was conducted by the District Educational Officer (DEO), wherein also the fact that the 5 th respondent was abroad, and the notices sent have been returned with the endorsements 'left India’ has been recorded. On the basis of the afore, it is found that the 5 th respondent was continuing on unauthorised absence from 13.11.2003, and hence the sanction to proceed under the provisions of Chapter XIV A of the Kerala Education Rules, 1959 (hereinafter referred to as ‘KER’), was extended to the Manager. On the basis of the afore sanction, Ext.P9 show cause notice dated 02.10.2004 was issued, which was again returned with the endorsement as already noticed, on account of which publication was carried out in the newspaper dated 31.10.2004, as evidenced by Ext.P10. Insofar as there was no response, the DEO permitted the petitioner to act accordingly, as evidenced by Ext.P13, and by Ext.P12 dated 23.02.2005, the 5 th respondent was dismissed from service. 3. It may, straight away be noticed that the proceedings under Chapter XIV A of the KER, as noticed earlier as regards the 5 th respondent herein, has come to an end by 23.02.2005, as seen from Ext.P12. The 5 th respondent, thereafter, comes to the picture only pursuant to Ext.P12 in W.P.(C) No.24809 of 2019, in the form of an appeal filed before the Director of Public Instruction, dated 16.01.2017. The afore stood transferred to the Government for consideration and the Government issued Ext.P14 dated 17.01.2019. By the order at Ext.P14, the Director of Public Instruction found that there was a violation of the principles of natural justice embodied under Rule 75 of Chapter XIV A of the KER, and hence setting aside the proceedings taken by the Manager against the petitioner leading to the dismissal from service, as noticed earlier. The 5 th respondent was directed to be reinstated in service by Ext.P14. 4. The petitioner – the Manager – has, in such circumstances, filed W.P.(C) No.5182 of 2019, challenging Ext.P14 issued by the Director of Public Instruction, as above. The 5 th respondent has also filed W.P.(C) No.24809 of 2019, essentially seeking to implement the directions contained in Ext.P14 (producing the same as Ext.P15 in W.P.(C) No.24809 of 2019). 5. I have heard Sri.John Joseph Vettikad, learned counsel for the petitioner, Sri. The 5 th respondent has also filed W.P.(C) No.24809 of 2019, essentially seeking to implement the directions contained in Ext.P14 (producing the same as Ext.P15 in W.P.(C) No.24809 of 2019). 5. I have heard Sri.John Joseph Vettikad, learned counsel for the petitioner, Sri. R.Reji, learned counsel for the 5 th respondent, Sri.K.S.Bharathan, learned counsel for the 6 th respondent as well as Sri.T.Jayan, learned Government Pleader, appearing for respondents 1 to 4. 6. The sustainability or otherwise of the findings contained in the order of the Director of Public Instruction at Ext.P14 is the issue arising for consideration in these writ petitions. 7. Sri.Reji, the learned counsel for the 5 th respondent - Teacher - would contend that the proceedings culminating in the dismissal of the said Teacher from service were without following the detailed procedure prescribed under Rule 75 of Chapter XIV A KER, as already noticed by the Director of Public Instruction in the impugned order. It is his submission that at no point of time, the show cause notice was served on the said Teacher prior to the dismissal under the provisions of Chapter XIV A KER. He pointed out that the fact that the 5 th respondent was abroad was known to the Manager as well as the authorities under the Department of Education, as seen endorsed even in the enquiry report referred to earlier. In the light of the afore, he would add that a second application for leave for a period of five years was submitted by the 5 th respondent, as evidenced by Ext.P3 in W.P.(C) No.24809 of 2019 and the said leave application is not seen acted upon by the Manager or by the Department, though the factum of filing such application is evidenced by Ext.P19, in W.P.(C)No.24809 of 2019, letter dated 11.11.2003 of the DEO, addressed to the Manager. True, reference to Ext.P19 would show that the 5 th respondent Teacher had submitted an application dated 27.10.2003 to the DEO for leave for a period of five years. 8. However, it is pointed out by Sri.John Joseph, learned counsel for the petitioner-Manager, that, at no point in time, such an application was served on the Manager. True, reference to Ext.P19 would show that the 5 th respondent Teacher had submitted an application dated 27.10.2003 to the DEO for leave for a period of five years. 8. However, it is pointed out by Sri.John Joseph, learned counsel for the petitioner-Manager, that, at no point in time, such an application was served on the Manager. He would submit that insofar as the petitioner was abroad, the Manager had no other go than to publish the show cause notice prior to the dismissal, etc., in the newspaper and no exception can be had to the afore method. 9. I have considered the afore rival submissions. 10. As already noticed, after the conclusion of the proceedings under Chapter XIV A, on 23.02.2005, by virtue of the order of dismissal, the matter arose for consideration in the form of Ext.P12 appeal filed by the petitioner before the Director of Public Instruction. A perusal of the afore appeal would show that: (i) The petitioner came to know about the proceedings taken against her with reference to the letter dated 01.12.2003, issued by the Corporate Manager, directing the petitioner to report for duty, when the same was collected by one of the neighbours and handed over to her father. (ii) The petitioner admits that she came back to India as early as on 24.07.2006, since the same is evident from the passport, and thereafter, she was continuing without any job in India. (iii) After such return to India, the petitioner admits that she met the Corporate Manager on several occasions for a posting order and the Manager informed her ‘orally’ that she had been terminated. However, she adds that no written communication was given to her. 11. From the afore, the fact that the petitioner was back in India from 2006 onwards, and she has chosen to present Ext.P12 only during January 2017, is clear. The 5 th respondent admits that on various occasions, she had been to the office of the Manager, and the Manager had also informed her that she had been terminated from service. No steps are seen taken by the 5 th respondent to collect the order or to challenge the same. She has chosen to collect the order and to challenge the same only during January 2017. 12. In this connection, the provisions of Rule 82 to Chapter XIV A KER have to be considered. No steps are seen taken by the 5 th respondent to collect the order or to challenge the same. She has chosen to collect the order and to challenge the same only during January 2017. 12. In this connection, the provisions of Rule 82 to Chapter XIV A KER have to be considered. Rule 82 extends the period of two months from the date on which the appellant received a copy of the order to present an appeal. The petitioner maintains that insofar as no order was served, she could entertain an appeal under Rule 82 with reference to the date on which she obtained the order by putting in an application under the Right to Information Act, 2005. At first blush, the afore contention appears attractive. However, I am unable to accept the afore submission since if such submission is accepted, every litigant can sleep over her/his rights and lodge an appeal at his/her sweet will. 13. The provisions of Rule 82, referred to above, have to be considered with reference to the factual scenario as borne out of Ext.P12 appeal filed by the 5 th respondent. Insofar as the 5 th respondent admits that she was in India from 24.07.2006 and since she had already met the Manager on several occasions and has also come to know about the dismissal from service, I am of the opinion that the presentation of Ext.P12 appeal on 16.01.2017 was hopelessly barred by limitation. True, as contended by Sri.Reji, no ground regarding limitation was raised by the Manager before the Director of Public Instruction, when he issued the impugned order at Ext.P14. However, insofar as the question of limitation is one, which goes to the root of the matter, the petitioner – Manager – is entitled to raise the same in subsequent stages by way of filing the captioned writ petition. 14. In such circumstances, I am of the opinion that Ext.P12 appeal filed by the 5 th respondent ought not to have been interfered with by the Director of Public Instruction. 15. I also take note of the provisions of Rule 56(4) of Chapter XIV A, which reads as under: “(4) A Teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.” 16. 15. I also take note of the provisions of Rule 56(4) of Chapter XIV A, which reads as under: “(4) A Teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.” 16. The fact that the petitioner was continuing on leave – whether sanctioned or not – is admitted by both sides. The said period of absence from duty beyond a period of five years from 13.11.2003, is also not in dispute. When that be so, even without recourse to the provisions of the statute under which the suspension, dismissal, etc., have been issued, I am of the opinion that the petitioner would be deemed to have come out of service by virtue of the operation of the afore provision. In this connection, I take note of the judgment of this Court in Shaji P. Joseph v. State of Kerala and Others [ 2022 (1) KHC 203 ] , wherein a Division Bench of this Court has referred to the provisions of Rule 56(4) Chapter XVI A of the Kerala Education Rules, to hold that in cases governed by the afore provision, the Teacher cannot claim the benefits flowing out of the provisions of the KSR. 17. I also take note of various judgments cited by Sri.Reji. He relied on Mohammed Shameer v. T. P. Abdul Majeed [ 2022 (2) KHC 642 ] in support of the contention that the show cause notice, etc. ought to have been published in the newspaper having sufficient circulation. However, I notice that the petitioner is not entitled to raise the afore contention, insofar as, I have already found that the appeal filed by her was not maintainable. He would rely on Union of India and Others v. Dinanath Shantaram Karekar and Others [ (1998) 7 SCC 569 ] in support of his contention that, when the charge sheet is returned with the endorsement ‘not found’, there is no actual service. The afore contention also does not arise for consideration in view of the findings already rendered. Similarly, the reliance on Shyla V. v. Secretary to Government, General Education Department, Tvm. and Others [ 2010 (1) KLT 990 ] to show that the Manager was biased against the petitioner would also have to fall to the ground on account of the findings with reference to limitation rendered earlier. 18. Similarly, the reliance on Shyla V. v. Secretary to Government, General Education Department, Tvm. and Others [ 2010 (1) KLT 990 ] to show that the Manager was biased against the petitioner would also have to fall to the ground on account of the findings with reference to limitation rendered earlier. 18. In such circumstances, I am of the opinion that W.P.(C) No.5182 of 2019 is only to be allowed and W.P.(C) No.24809 of 2019 is only to be rejected. Resultantly, these writ petitions would stand disposed by allowing W.P.(C) No.5182 of 2019 by setting aside Ext.P14 issued by the Director of Public Instruction. Consequently, W.P.(C) No.24809 of 2019 would stand dismissed.