IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932
SA.No. 805 of 2002() -------------------AS.194/2001 of ADDL.DISTRICT COURT,KOTTAYAM OS.517/1996 of PRL.SUB COURT,KOTTAYAM ....................
## APPELLANTS/APPELLANTS/DEFENDANTS:
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1. H.G.GEEVARUGHENE MAR IVANIOSE, METRO POLITIIAN OF KOTTAYAM DIOCESE, MANAGER, MATHEWS MAR IVANIOSE I.T.C., RESIDING AT MAR KURIAKOSE DAYARA, POTHUPURAM, PAMPADY VILLAGE, KOTTAYAM DISTRICT.
2. K.V.S.PANICKER, PRINCIPAL, MATHEWS MAR IVANIOSE I.T.C., POTHENPURAM, PAMPADY VILLAGE, KOTTAYAM DISTRICT.
BY ADV. MR.JOSE PALLATTUKARAN MR.V.C.JAMES
## RESPONDENT/RESPONDENT/PLAINTIFF:
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SKARIAH P.S., KUDAKASSERIL HOUSE, VADAVATHOOR KARA, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.
ADV. MR.RAJEEV.P.NAIR FOR R1 MR.REJI GEORGE FOR R1
MR.MOHAN PULIKKAL FOR R1 MR.JOE JOSEPH KOCHIKUNNEL FOR R1 MR.PAULCY KURIAN FOR R1
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No. 805 of 2002
## ORDER ON C.M.P.NO.2437/2002 IN S.A.NO.805/2002
DISMISSED.
4.6.2010
SD/- HARUN-UL-RASHID, JUDGE.
// TRUE COPY //
P.A TO JUDGE.
## **HARUN-UL-RASHID, J. -----------------------S.A.No.805 Of 2002 ---------------------Dated this the 4[th] day of June, 2010.**
## **J U D G M E N T**
The defendants in O.S.No.517 of 1996 on the file of the Sub Court, Kottayam are the appellants. The suit was filed for damages. The trial court decreed the suit in part allowing the plaintiff to realise an amount of Rs.42,676/- with interest at the rate of 6% per annum from the date of suit till payment and also proportionate costs from the defendants. The appellate court with modification confirmed the decree and judgment. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit.
2. The plaintiff filed the suit on account of termination of his service by the defendants. Plaintiff was working as an instructor in the first defendant ITC with effect from1.12.1981. Plaintiff’s service was terminated on account of his unauthorized absence from 4.10.1993. The suit was filed contending that the termination of service is illegal and claimed damages. The appellants/defendants contended that the plaintiff by absenting
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himself without any sufficient reasons deserted employment and hence his service was terminated and therefore he is not entitled to the relief sought for in the suit. The trial court after framing necessary issues considered the question as to whether the termination of the service of the plaintiff is illegal and whether the damages claimed is allowable.
3. Both sides adduced evidence in support of their respective contentions. The defendants contended that the plaintiff was absent from 19.8.1983 onwards. Therefore show cause notice was issued to him with a direction to present within three days. Plaintiff sent a reply with medical certificate informing the defendants that he is unable to attend the work. Defendants again issued show cause notice to the plaintiff stating that he is not reporting for duty in spite of notice and therefore his absence will be treated as desertion of employment. In spite of show cause notice, plaintiff did not join duty and therefore his name was removed from the roll with effect from 4.10.1993 for unauthorized absence.
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4. Plaintiff examined PWs 1 and 2 and produced Exts.A1 to A8. Admittedly, plaintiff submitted leave application with a medical certificate for the period from 19.8.1993. Defendants did not accept the leave application and the service of the plaintiff was terminated. The trial court observed that the defendant has not made enquiry about the genuineness of the plaintiff’s leave application and medical certificate submitted along with the application. In the leave application the plaintiff informed the defendants that he was laid up and not in a position to move and his expression of willingness to work after recovery from the illness was not properly responded to by the defendants. In spite of the fact that the leave application was filed and further expressing willingness to join duty after recovery, according to the plaintiff, the defendant directed the plaintiff to be present within two days. The conduct of the parties is appreciated by the trial court and the trial court held that the conduct of the defendant is highly arbitrary and improper. The trial court observed that the defendant should have made further enquiry regarding the genuineness of the medical certificate. The trial
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court also relied on the evidence of PW2, the doctor who issued the medical certificate and held that the evidence of PW2 clearly establish that the plaintiff was laid up due to Rheumatic complaints and therefore he was not in a position even to move. The trial court believed the evidence of PW2. After examining the attending circumstances, the trial court held that the defendant has terminated the service of the plaintiff without any enquiry and without giving an opportunity of hearing to the plaintiff. Admittedly, the plaintiff is a permanent employee of the first defendant institution. The matter was taken up before the lower appellate court. The appellate court also confirmed the decree and judgment with a slight modification regarding the quantum of damages. The trial court as well as the appellate court appreciated the evidence on record and held that the termination of service of the plaintiff is arbitrary and illegal. The findings are purely based on facts. This Court is unable to interfere with the findings of fact in an appeal filed under Section 100 CPC. Learned counsel for the appellant relied on a decision reported in _**Sitaram Kashiram Konda v. Pigment Cakes and Chemicals**_
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_**Mfg. Co.**_ (AIR 1980 SC 16). The Apex Court in the said decision held that if an employee was wrongly dismissed from service court can order reinstatement and also in the alternate order compensation. The Apex Court held that such a suit is maintainable. According to the counsel for the appellant, on a reading of facts in Ext.B2 plaint and Ext.A6 judgment in the earlier suit filed by the plaintiff, there is no alternate prayer for compensation and therefore the present suit claiming damages is not maintainable. Learned counsel for the respondent brought to the notice of this Court, the circumstances under which the earlier suit was filed. The earlier suit was based on the appointment of an instructor in the place of the plaintiff since the plaintiff did not report for duty on 14.9.1993. During that time the plaintiff was in service of the first defendant, the second suit was filed challenging the termination order dated 4.10.1993. According to the learned counsel the scope and ambit of both suits are different and therefore the dictum laid down by the Apex Court has no application at all. On an examination of the facts of this case, I find that the earlier suit was filed challenging
## **S.A.No.805 Of 2002**
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the notice issued by the first defendant calling upon the plaintiff to rejoin duty and the present suit was filed after the termination of service claiming damages. It is very clear that the facts of the said case has no application to the case in hand. It is also pointed out by the counsel for the respondent that the second suit is hit by Order II Rule 2 of the CPC was not raised either before the trial court or before the appellate court. No question of law much less any substantial question of law arises for consideration in the appeal.
In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs.
**HARUN-UL-RASHID, Judge.**
bkn/-
