K. Balakrishna Pillai Kuzhinjayyathu Puthen Veedu v. Director of Collegiate Education, Thiruvananthapuram; Deputy Director of Collegiate Education, Thiruvananthapuram; Registrar, Kerala University, Thiruvananthapuram; Secretary, NSS College Central Committee, Changanacherry; Principal, NSS College, Panthalur, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** **CRP(UTY).No. 37 of 2015** **AGAINST THE JUDGMENT IN UNIVERSITY APPEAL NO.2 OF 2011 OF KERALA UNIVERSITY APPELLATE TRIBUNAL DATED 18-10-2014** ## **PETITIONER:** **K.BALAKRISHNA PILLAI KUZHINJAYYATHU PUTHEN VEEDU, PUTHANAMBALAM P.O. IVERKALA WEST NORTH, KUNNATHUR, KOLLAM.** **BY ADV. SRI.K.SUBASH CHANDRA BOSE** ## **RESPONDENTS:** **1 THE DIREICTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM-695 001** **2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM-695 001.** **3 THE REGISTRAR KERALA UNIVERSITY, THIRUVANANTHAPURAM-695 001.** **4 THE SECRETARY N.S.S.COLLEGE CENTRAL COMMITTEE, CHANGANACHERRY KOTTAYAM-686102 5 THE PRINCIPAL N.S.S. COLLEGE, PANTHALAM, PATHANAMTHITTA-689 501 BY ADVS. SRI.BECHU KURIAN THOMAS(B/O) SRI.P.GOPAL GP SRI N.B.SUNIL NATH SRI.B.MURALEEDHARAN SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** **THIS CRP (UNIVERSITY ACT) HAVING BEEN FINALLY HEARD ON 04.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP(UTY).No. 37 of 2015 2** ## **ORDER** ## **Arun, J** The Revision Petition is filed challenging the judgment of the Kerala University Appellate Tribunal, by which the Tribunal upheld the decision of the N.S.S.College's Central Committee, removing the appellant from its service. The short facts leading to the order under challenge are as follows: The revision petitioner had joined service as a last grade servant in the N.S.S.Women’s College, Karamana on 11.10.1982. Thereafter, he was promoted as Attender on 4.6.1986. On 1.7.1996 the post of Attender held by the revision petitioner was redesignated as Laboratory Assistant and he was transferred to the N.S.S.College, Pandalam. The revision petitioner discharged his duties as Laboratory Assistant at the N.S.S.College, Pandalam till 5.8.2005 and thereafter absented from duty, unauthorisedly. **CRP(UTY).No. 37 of 2015 3** Notice dated 31.8.2005 issued by the Principal of the College requiring the petitioner to join duty was returned undelivered. The revision petitioner submitted an application for leave along with medical certificate dated 19.5.2005. That application was returned by the Principal under a letter dated 20.9.2005, for the reason that the leave application was not in proper form. Later, show cause notice and memo of charges was issued to the revision petitioner, which were also not accepted. The charge levelled against the revision petitioner was that he had unauthorisedly absented from duty from 5.8.2005, which amounted to dereliction of duty constituting a misconduct. Thereupon, an Enquiry Officer was appointed. The requisite notices issued to the revision petitioner by the Enquiry Officer were also not responded to. Hence, the Enquiry Officer proceeded against the revision petitioner _ex parte_ and in the enquiry the petitioner was found guilty of the charges of unauthorised absence and dereliction of duty levelled against him. On receipt of the Enquiry Report, **CRP(UTY).No. 37 of 2015 4** the Management issued notice proposing the punishment to be imposed and required the revision petitioner to submit his objection, if any. When that notice also did not evoke any response, the petitioner was imposed with the punishment of removal from service with effect from 5.8.2005. After imposition of punishment, the revision petitioner approached the Principal of the College on 7.9.2009 seeking permission to re-join duty, which was rejected by the Principal. In the meanwhile, the revision petitioner challenged the disciplinary action taken against him by filing WP(C) No.6725 of 2007 before this Court. That Writ Petition was disposed by judgment dated 25.3.2011 directing the revision petitioner to approach the University Appellate Tribunal for redressal of his grievances. Thereupon, the order of dismissal was challenged before the Tribunal by filing an appeal and the same resulted in the impugned judgment being rendered by the Tribunal. 2. Before the Tribunal the appellant ## **CRP(UTY).No. 37 of 2015 5** examined PW1, the Psychiatrist who had treated him and Ext X1 series of Medical Certificates and prescriptions were marked through PW1. The revision petitioner also produced Exts A1 to A8 documents. On the side of the Management, the file pertaining to the enquiry conducted against the revision petitioner was marked as Ext R1. The Tribunal after a detailed consideration of the evidence tendered and the arguments advanced dismissed the appeal, disbelieving the contention of the revision petitioner that he was under treatment for mental illness from 5.8.2005 till 7.9.2009. The Tribunal further found that unauthorised absence of an employee for a long duration of time is a grave misconduct and hence the punishment of removal from service cannot be said to be disproportionate. 3. Even though the learned counsel for the revision petitioner made strenuous attempt to convince this court that the enquiry conducted against the revision petitioner was bad for violation of the principles of natural justice and fair play, we are unable to accept **CRP(UTY).No. 37 of 2015 6** that contention, since, from the discussion in the impugned order, we find that the Management as well as the Enquiry Officer had issued notices to the revision petitioner at all requisite points of time thereby complying with the principles of natural justice and that it was the revision petitioner, who had repeatedly refused to accept the notice. As such, the finding in the impugned order that enquiry was conducted, and punishment imposed after giving sufficient opportunity to the petitioner is liable to be affirmed. 4. The only other question remaining for consideration is whether the punishment of removal from service imposed on the petitioner is so shockingly disproportionate to the alleged misconduct that it warrants interference by this Court in exercise of the power of judicial review. It is an undisputed fact that from 11.10.1982, the date on which the revision petitioner entered service, till 5.8.2005, the date from which the revision petitioner unauthorisedly absented from duty, he had worked continuously to the **CRP(UTY).No. 37 of 2015 7** satisfaction of the management. It is also an undisputed fact that the revision petitioner had unauthorisedly absented from duty from 5.8.2005 till his dismissal. Hence, the ancillary question which arises for consideration is whether the unauthorised absence of the petitioner should visit him with the extreme penalty of dismissal from service, especially taking into consideration, though not accepted in its entirety, the explanation offered by the revision petitioner for his absence. In order to find an answer to this question, it would be apposite to make a reference to Ext X1 series medical records, produced in this revision petition as Annexure-1. A reading of Annexure-1 reveals that the petitioner had undergone psychiatric treatment as inpatient at the J.B.Mental Health Centre, Punalur from 22.12.2001 to 28.12.2001. In the discharge note dated 28.12.2001, the Doctor has noted that the revision petitioner was treated for affective disorder and had showed moderate improvement and was being discharged on medicines. **CRP(UTY).No. 37 of 2015 8** The medical records further reveals that the revision petitioner had consulted the psychiatrist on 7.1.2002, 9.11.2002, 12.4.2003, 28.3.2005, 20.6.2005, 8.9.2009, 15.11.2010, 19.4.2011 and 20.7.2013. Of course, as noticed by the Tribunal, the visits on 28.3.2005 and 5.9.2009 was for the purpose of obtaining Medical Certificates. The scrutiny of the Medical records would show that the Doctor had actually conducted a medical check-up before issuing the Medical Certificates. In such circumstances, even though it is not possible to accept the contention of the revision petitioner that from 5.8.2005 to 7.9.2009 he was suffering from mental illness of such gravity, that he was not able to take a reasoned decision, the fact that the petitioner had suffered from intermittent bouts of affective mood disorder cannot be ruled out. That being the case, we are of the opinion that the extreme punishment of removal from service on the charge of unauthorised absence, is shockingly disproportionate. In **Reghubir Singh v Haryana Roadways [(2014)10 SCC 301]** , **CRP(UTY).No. 37 of 2015 9** the appellant, a conductor with the Haryana Roadways was charged with misappropriation of amounts collected from tickets and not depositing the cash in time. A criminal case was also registered against the appellant on the same allegation. On being released on bail, the appellant was given an oral assurance by the respondent roadways that he would be reinstated on his acquittal. The appellant, on his acquittal reported for duty, but was informed by the employer that his service had already been terminated for his unauthorised absence. The Apex Court, while allowing the appeal, held as follows: “The principle of doctrine of proportionality is a well-recognised one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The said doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.” 5. Applying the doctrine of proportionality, the **CRP(UTY).No. 37 of 2015 10** Apex court found that the order of termination of the appellant, even if justified, is disproportionate to the gravity of misconduct. The above view expressed by the Hon'ble Supreme Court clearly indicates that, though the scope of judicial review with respect to proportionality of punishment imposed by an employer is limited, there can be interference if the punishment is shocking to the conscience of the court _qua_ the alleged misconduct, in the sense that the punishment was in defiance of logic or moral standards. 6. Sri.P.Gopal, the learned counsel appearing for the Management contended that the prolonged unauthorised absence of the revision petitioner itself was a grave misconduct and therefore the punishment of dismissal was not disproportionate to the gravity of misconduct committed by the revision petitioner and hence the doctrine of proportionality was not even remotely attracted in this case. In support of the argument, the learned counsel relied on the decision in ## **Chennai Metropolitan Water Supply and Sewerage** **CRP(UTY).No. 37 of 2015 11** **Board and others v T.T Murali Babu [(2014)4 SCC 108]** . Murali Babu was a Junior Engineer in the Chennai Metropolitan Water Supply and Sewerage Board. He remained continuously absent from duty from 28.8.1995 without any intimation to the employer and did not respond to the repeated memorandum/reminders requiring him to explain his unauthorised absence and to re-join duty. Disciplinary proceedings were initiated against Murali Babu and punishment of dismissal was imposed by the disciplinary authority on 16.4.1998, observing that belated submission of medical certificates on 1.4.1997 irresistibly leads to the conclusion that Murali Babu was unauthorisedly absent from 28.8.1995. In a Writ Petition filed by Murali Babu challenging his dismissal, a Single Judge held that even if the employee had absented from duty, there was no past misconduct of desertion/absence and, therefore, the punishment of dismissal from service for the first time desertion/absenteeism was too harsh and ## **CRP(UTY).No. 37 of 2015 12** disproportionate and deserve to be interfered with. The Division Bench affirmed the finding of the Single Judge, against which an appeal was preferred before the Hon'ble Supreme Court, by the employer. Considering the fact that there was a delay of 4 years on the part of Murali Babu in approaching the Court, especially in view of the fact that he was holding the post of junior engineer, which required him to maintain discipline, act with responsibility, sincerity and to serve the institution with honesty, the Apex Court held that the punishment of dismissal was not shockingly disproportionate to the misconduct committed by the employer and allowed the appeal filed by the employer, setting aside the judgments of the High Court. 7. As far as the instant case is concerned, there is evidence to the effect that the revision petitioner has a prolonged history of mental illness, even though the gravity of the illness or its continuance during the entire period of unauthorised absence has not been proved. Further, the revision petitioner was **CRP(UTY).No. 37 of 2015 13** serving as a Laboratory Assistant, which is a post just above that of Last Grade Servant. This, coupled with the fact that the petitioner had rendered satisfactory service for a period of almost 23 years, would in our view render the punishment of removal from service on the proven charge of unauthorised absence disproportionate to the misconduct. As a result of the dismissal, revision petitioner would even be denied of the retirement benefits for the period of 23 years he had actually worked, which is highly illegal and unjustified. The University Appellate Tribunal seems to have been swayed by the oral testimony of PW1, the psychiatrist who had treated revision petitioner. PW1 deposed that on 28.3.2005 and 5.9.2009 he had not treated the revision petitioner and had only issued medical certificates. Ext X1 file having been produced, the Tribunal ought to have examined the file before completely discarding the contention of the revision petitioner that he was suffering from mental illness. In the circumstances, while maintaining the other findings **CRP(UTY).No. 37 of 2015 14** in the impugned order, the punishment of termination of service is modified as compulsory retirement, thereby entitling the revision petitioner retirement benefits for the period he had actually worked i.e from 11.10.1982 to 5.8.2005. The revision petition is partly allowed by modifying the punishment of dismissal from service to compulsory retirement w.e.f 5.8.2005. The eligible retirement benefits due to the revision petitioner shall be disbursed to him expeditiously and at any rate within a period of three months from the date of receipt of a copy of this order. **K.VINOD CHANDRAN, JUDGE** **V.G.ARUN, JUDGE** cms **CRP(UTY).No. 37 of 2015 15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE MEDICAL RECORDS PRODUCED AS EXHIBIT X1 BEFORE THE TRIBUNAL.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms