Ponnamma Thomas @ Ponnamma Mathew v. District Educational Officer, Thiruvalla; The Deputy Director of Education, Pathanamthitta; State of Kerala; The Manager, N.M High School, Kumbanad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938** **WP(C).No. 35317 of 2010 (L) ----------------------------** ## **PETITIONER(S):** **-------------** **PONNAMMA THOMAS @ PONNAMMA MATHEW, W/O. PROF. SUNNY MATHEWS, FORMER HIGH SCHOOL ASSISTANT, N.M.HIGH SCHOOL, KUMBANAD. PRESENTLY RESIDING, AT 800 BOULEVARD, NEW MILFORD, N J 076464, UNITED STATES OF AMERICA (USA).** **BY ADVS.SRI.ASOK M.CHERIAN SRI.S.KANNAN** **RESPONDENT(S):** - **--------------** **1. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **2. THE DEPUTY DIRECTOR OF EDUCATION, PATHANMTHITTA.** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL, EDUCATIONAL (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **4. THE MANAGER, N.M HIGH SCHOOL, KUMBANAD, PIN-689547.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R4 BY ADVS. SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 35317 of 2010 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **P1: COPY O THE ORDER OF THE R2 SANCTIONING LEAVE WITHOUT ALLOWANCE FOR 5 YEARS FROM 22.3.97.** - **P2: COPY OF THE ORDER OF THE R3, DT 1/8/2002.** **P3: COPY OF THE LETTER OF THE R4 ADDRESSED TO THE R3, DT 13/2/2003.** - **P4: COPY OF THE ORDER OF THE R1, DT 30/3/2004.** - **P5: COPY OF THE ORDE OF THE R4, DT 28/6/2004.** - **P6: COPY OF THE LETTER OF THE R4 DT 30/6/2004 DIRECTING PETITIONER TO REFUND THE AMOUNT OF RS 4226/-.** - **P7: COPY OF THE LETTER OF THE R3, DT 26/7/2008.** - **P8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R3, DT 7/10/2008.** - **P9: COPY OF THE ORDE OF THE R3, DT 12/6/2009.** - **P10: COPY OF THE REPRESENTATION DT 18/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE R3.** - **P11: COPY OF THE LETTER OF THE R3 DT 18/2/2010 ADDRESSED TO THE PETITIONER.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 35317 of 2010 ----------------------------------------------Dated this the 9[th] February, 2017** ## **JUDGMENT** This writ petition is filed with the following prayers: - _“i. to call for the records leading to Exhibits P4, P5, P6, P7, P9 and P11 and quash the same by issuing a writ in the nature of certiorari._ - _ii. to declare that petitioner is entitled to be treated as continued in service of the 4[th] respondent till she retired from service on attaining the age of superannuation, for the purpose of pension and other retirement benefits._ - _iii. to issue a writ in the nature of mandamus directing the respondents to pay the petitioner retirement benefits due to her, treating her as continued in service of the 4[th] respondent, till she retired on attaining the age of superannuation.”_ 2 _._ It is submitted that the petitioner had entered service as High School Assistant under the 4[th] respondent on 7.6.1984. She had availed leave without allowance from 26.3.1997 to 8.8.2002 which was sanctioned. After expiry of the said leave, she had rejoined service on 9.8.2002 and continued upto 31.8.2002. Thereafter, she made an application for half pay leave from 2.9.2002 to 31.1.2003. This leave apparently was 2 _**WP(C).35317/10**_ not sanctioned. Thereafter, she submitted an application for voluntary retirement with effect from 1.2.2003. No orders were issued in this application as well. 3. The petitioner was due to attain her age of superannuation on 9.8.2003 and she would retire from service on 31.3.2004. By Exhibit P4 order dated 30.3.2004, the District Educational Officer informed the petitioner that her half pay leave from 2.9.2002 to 31.1.2003 had not been sanctioned and her application for voluntary retirement was also not accepted by the Deputy Director of Education. It is further stated that the Manager had requested for sanction for forfeiting the claim of the teacher with effect from 1.2.2003, since she had not joined duty after expiry of the leave. Since the date of superannuation of the petitioner was on 31.3.2004, it is stated that her service is deemed to have been forfeited from 1.9.2002 onwards and sanction was accorded to remove her with effect from 1.9.2002. Though the petitioner had taken up the matter in revision before the Government, by Exhibit P9 dated 12.6.2009, the Government found that going by Rule 56, Part III, KSR, 20 years of service is mandatory for applying for voluntary retirement. It is further stated that it is mandatory for _**WP(C).35317/10**_ 3 an employee on leave without allowance for taking up employment abroad or elsewhere to rejoin duty before one year of his date of superannuation. It is stated that since the petitioner did not abide by these conditions, she was removed from service by the Manager and her service was deemed to have been forfeited with effect from 1.9.2002. It is, therefore, stated that since the forfeiture of past service occurred as a consequence of her own action in violation of the service rules, neither the provisions under Rule 75 of Chapter XIVA KER nor the procedures required thereunder need to be observed as it is not applicable in the instant case. 4. Heard learned counsel for the petitioner and the learned counsel appearing for the 5[th] respondent Manager as well as the Senior Government Pleader. 5. It is submitted by learned counsel for the petitioner that the petitioner had more than 13 years of qualifying service, even reckoning the period till availing the leave without allowance on 26.3.1997. The said leave was duly sanctioned and the petitioner had been permitted to rejoin duty on 9.8.2002 and she continued service upto 31.8.2002 as well. It was only thereafter that the period in dispute arose. The 4 _**WP(C).35317/10**_ petitioner's application for half pay leave from 2.9.2002 to 31.l.2003 was not sanctioned. However, she had admittedly not worked during the above period. Even thereafter, she did not rejoin duty on 1.2.2003. The action of the petitioner in proceeding on leave without getting sanction from the Government would apparently amount to a misconduct. However, it is contended that since no orders were communicated to the petitioner rejecting the half pay leave applied for and also rejecting the application put in by her for voluntary retirement, the forfeiture of service from 1.9.2002 by issuing a unilateral order of termination could not have been rendered in terms of the provisions contained in Chapter XIVA, KER. It is, therefore, contended that Exhibits P4, P5 and P9 orders are illegal and unwarranted and violative of principles of natural justice. Therefore, the petitioner would still be entitled to pension reckoning the admitted period of service from 7.6.1984 to 26.3.1997. 6. Learned counsel for the petitioner relies on the decision of the Apex Court in _**Lakshmi Precision Screws Ltd v. Ram Bahagat**_ [(2002)6 SCC 552] to contend that removal of the employee's name from the muster roll has to be with notice to 5 _**WP(C).35317/10**_ him and after giving him an opportunity to explain whether his unauthorised absence amounted to abandonment of service. 7. The learned Senior Government Pleader would submit that the action of the petitioner in leaving the country without having the leave applied for sanctioned would amount to voluntary abandonment of service and would therefore be liable to be reckoned as such. The termination of service by Exhibits P4 and P5 orders would, therefore, be perfectly legal and justifiable. The learned Senior Government Pleader also relies on a decision of this Court in _**Union of India v. Shaji**_ [2016(4) KLT 605] to contend that where an employee abandons service for long spells, the prolonged and persistant absence would justify the termination of service even without following the procedure prescribed for such termination. 8. Learned counsel for the 4[th] respondent contended that the petitioner having left the country without half pay leave sought for by him having been sanctioned and his action in not rejoining duty even after expiry of leave sought for would clearly be abandonment of service and he would not be entitled to continuance in service or for any further benefits. Reliance is also placed on Rule 29, Part III, KSR to contend that once an _**WP(C).35317/10**_ 6 employee abandons service voluntarily, he would forfeit all the benefits of his past service. 9. I have considered the contentions advanced. The petitioner admittedly had continuous service from 7.6.1984 to 25.3.1997. She proceeded with leave without allowance from 26.3.1997 to 8.8.2002 on the strength of competent orders sanctioning such leave. She was permitted to rejoin duty on 9.8.2002 after expiry of the said leave. The service of the petitioner from 7.6.1984 to the date of availing of the first spell of leave is liable to be reckoned as qualifying service for the purpose of pension, if the orders of termination as issued in Exhibits P4 and P5 are held to be bad in law. Therefore, the only question to be considered is as to the legal validity of Exhibits P4 and P5 orders. 10. The petitioner admittedly applied for half pay leave from 2.9.2002 to 31.l.2003. It appears from the materials produced in this case that no orders rejecting the application were forwarded to the petitioner. Her application for voluntary retirement also has apparently been rejected. However, on this aspect also, there is no pleading that the said rejection has been informed to the petitioner. The first order which has been 7 _**WP(C).35317/10**_ served on the petitioner for termination of service is Exhibit P4. Exhibit P4 accorded sanction to the Manager to terminate the services of the petitioner with effect from 1.9.2002. Exhibit P5 is the order of the Manager. Exhibit P5 refers to a letter dated 18.1.2003, which apparently is the request made by the petitioner for voluntary retirement. It also refers to an order of the Deputy Director of Education dated 28.11.2003 and Exhibit P4 order dated 30.3.2004. It states that by Exhibit P4 order, the service of the petitioner is deemed to have been forfeited from 1.9.2002 onwards and she was ordered to be removed from the rolls with effect from the said date. 11. I find that Exhibits P4 and P5 orders are not preceded by any notice to the petitioner. The fact that half pay leave applied by her as well as her application for voluntary retirement has been rejected is not intimated to the petitioner. It can be seen from Exhibit P4 that the conduct of the petitioner in having proceeded on leave without the said leave being sanctioned and in not having rejoined duty even after the period of leave sought for are the allegations relied on to terminate her service from 1.9.2002. There is a further allegation that she had left the country without sanction from 8 _**WP(C).35317/10**_ the Government. These actions alleged against the petitioner would clearly amount to misconduct on her part. The further contention of the leaned counsel appearing for the 4[th] respondent as well as the learned Senior Government Pleader to the effect that her action would amount to abandonment of service cannot be accepted in view of the fact that no orders rejecting the leave or the voluntary retirement sought for had ever been served on the petitioner. The action of the petitioner would therefore only amount to misconduct. The decision of the Division Bench in _**Shaji's case (supra)**_ would also not apply in the instant case, since the issue of deemed abandonment would not arise in a case where the petitioner had applied for leave and the result of such application was never intimated to her. A learned single Judge of this Court in _**Devaky v. State of Kerala**_ [1999(2) KLT SN 12 (Case No.11)] clearly held that even though Rule 56(4) of Chapter XIVA, KER provided that a teacher shall cease to be in service after a continuous absence of five years whether with or without leave, dismissal or removal of a teacher in an aided school can be done only after complying with the procedure prescribed in Rule 75 of Chapter XIVA, KER. 9 _**WP(C).35317/10**_ 12. It is clear from Exhibits P4 and P5 that the orders of sanction granted by the Deputy Director of Education were not preceded by any procedure as contemplated in Rule 75 or even by a notice to the petitioner. Even in case it is contended that the petitioner was not available in the country for defending an action under Rule 75, Chapter XIVA, KER, I am of the opinion that Exhibit P4, which was issued without even attempting to put the petitioner on notice, cannot be countenanced. The Manager as well as the Department appears to proceed on the basis that the petitioner has abandoned the service. This apparently a misconception in view of the fact that she had preferred an application for half pay leave from 2.9.2002 to 31.1.2003 and had sought voluntary retirement with effect from 1.2.2003. If the intention was abandonment, no such application was necessary. It is also not disputed before me that the result of those applications preferred by the petitioner was never made known to her. It appears that no attempt to make decisions on those applications available to the petitioner was also made. In the above view of the matter, I have no hesitation in holding that Exhibits P4 and P5 orders which were issued 10 _**WP(C).35317/10**_ behind back the petitioner, even without attempting to put her on notice are illegal and violative of principles of natural justice and therefore, unsustainable. Exhibits P4, P5 and P10 orders are, therefore, set aside. It is directed that the petitioner will be entitled to pensionary benefits reckoning the service put in by her from 7.6.1984 to 25.3.1997 as qualifying service. Consequential orders shall be issued by the competent among the respondents and the pensionary benefits shall be calculated and disbursed to the petitioner within four months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs10/2_