Y.A. CLETES v. Principal, Fathima Matha National College, Kollam; Manager, Fathima Matha National College, Kollam; Director of Higher Education, Thiruvananthapuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 27TH DAY OF AUGUST 2014/5TH BHADRA, 1936** ## **WP(C).No. 59 of 2005 (F)** **----------------------------------** ## **PETITIONER(S):** - **----------------------** **Y.A.CLETES, S/O.G.ANSAN, LIBRARY ATTENDER (PRESENTLY OUT OF EMPLOYMENT), RESIDING AT MAMBILLY VADAKKATHIL, MUKKAD, KAVANAD P.O., KOLLAM-3.** ## **BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)** **RESPONDENT(S):** - **-------------------------** **1. THE PRINCIPAL, FATHIMA MATHA NATIONAL COLLEGE, KOLLAM.** **2. THE MANAGER, FATHIMA MATHA ANATIONAL COLLEGE, KOLLAM.** **3. DIRECTOR OF HIGHER EDUCATION, THIRUVANANTHAPURAM.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.BABU VARGHESE R3 & R4 BY SRI.SOJAN JAMES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **ANU SIVARAMAN, J. --------------------------------------------W.P.(C). No. 59 of 2005 ----------------------------------------------** Dated this the 15[th] day of March, 2016 ## **JUDGMENT** The prayer in this writ petition is for a declaration that the petitioner was entitled to rejoin duty since his service cannot be legally terminated and for consequential disbursement of monetary benefits. Petitioner has also sought quashing of Ext.P12 termination order issued by the first respondent Principal. 2. It is the case of the petitioner that he had joined the service of the first respondent College as Peon on 01.07.1980. He was promoted as Library Attender from 01.03.1983 and was continuing in service. While so, he became mentally ill. He had applied for casual leave for one day on 15.06.2001. Thereafter, he did not rejoin duty, nor was he available in his residential address. It is stated that on 26.06.2001, Ext.P3 notice was issued by the management to him in his residential address. The petitioner's wife had submitted Ext.P4 reply pointing out that her husband, who was suffering from mental illness had been missing from 14.06.2001 and that he was not traceable. She had sought that no further action may be initiated against him since he was a person undergoing severe **2** ## **W.P.(C). No. 59 of 2005** mental disturbances. 3. Ext.P5 FIR in respect of man missing case was registered on 07.07.2001 and Ext.P8 shows that notices were issued in newspapers regarding the missing of the petitioner. On 07.09.2001, Ext.P6 notice was issued by the first respondent to the petitioner's residential address again seeking that he should rejoin duty immediately. Ext.P7 reply dated 15.09.2001 was submitted by the petitioner's wife pointing out that the petitioner had not been traced out and that the steps for termination of service taken against him may be dropped. Thereafter, a show cause notice, Ext.P9 was published in newspapers dated 17.10.2001 by the second respondent stating that the petitioner was remaining unauthorizedly absent from 15.06.2001 and that immediate steps would be taken to terminate the service with effect from 15.06.2001, if no reply is received. It is the petitioner's case that thereafter no orders were served on him or his wife. The petitioner, when he became fit to rejoin duty, had made Ext.P10 request to rejoin service with Ext.P10 (a) certificate showing his medical condition. When no orders were passed thereon, he had again preferred Ext.P11 request dated 02.11.2004 along with Ext.P11(a) medical certificate to show ## **W.P.(C). No. 59 of 2005** ## **3** that he was fit to rejoin duty. It is submitted that it was only when copy of a counter affidavit was served that the petitioner came to know that an order of termination had been issued by the respondents against him. He had thereafter amended the writ petition and raised a challenge to Ext.P12 termination order as well. 4. I heard the learned counsel for the writ petitioner Sri C. Unnikrishnan and the learned counsel appearing for the respondents. 5. It is the specific case of the learned counsel for the petitioner that Ext.P12 order had never been served on him. As a matter of fact, he came to know of the existence of an order of termination only when the counter affidavit was filed in this writ petition. It is stated that no disciplinary proceedings had been initiated against the petitioner. It is submitted that the action of the respondents in terminating the services of the petitioner on the ground of unauthorised absence without holding any enquiry or entering a finding as to the reason for such absence being wilful is per se illegal and unsustainable. The learned counsel for the petitioner would rely on the decision of this Court in **Radha v. Station Director, AIR. Trivandrum [1984 KLT 1092]** and of the **W.P.(C). No. 59 of 2005** **4** Apex Court in **Krushnakant B. Parmar v. Union of India & Another [2012(1) KLT SN 119 (C-127)]** in support of the contention that even in case of unauthorised absence, an enquiry and finding as to the wilful nature of the absence from work is a pre-requisite of passing an order of termination. 6. The learned counsel for the respondents would, on the other hand, submit that the writ petition itself is not maintainable in view of the alternate remedy provided under Section 60 of the Kerala University Act, 1974. It is submitted that an appeal to the University Appellate Tribunal being provided by the statute, the writ petition as presently filed challenging Ext.P12 is not maintainable. It is further submitted that the petitioner had been awarded a punishment of censure earlier for unauthorised absence and there were several complaints before the Priest of the Church as well as before the Manager with regard to repayment of loans availed by the petitioner on the surety of the co-employees which had not been repaid. It is submitted that the petitioner is therefore a person of questionable character and his termination from service is perfectly legal and valid. 7. It is pertinent to note that the reason stated by the petitioner for his unauthorised absence is borne out by **W.P.(C). No. 59 of 2005** **5** Exts.P4 and P7 replies submitted to the management by his wife as also by the medical certificates and FIR produced in this writ petition. It is the specific case of the petitioner that he was mentally ill to such a degree as to be unaware of the consequences of his actions. The documents produced by the petitioner would show that he was missing from home at least for three months from June to September 2001. That he was mentally ill is also borne out by Exts.P10(a) and P11(a) medical certificates produced by him. These records have been produced before the management as well. It is also clear that though notices were issued to the petitioners in his residential address, no steps were taken by the management to take any disciplinary action as against him. It is only on the basis of the notices issued to his residential address which were duly answered by his wife and on the basis of Ext.P9 “show-cause notice” published in newspapers that he had been terminated from service. The order of termination, according to the petitioner, was never served on him. 8. It has been held repeatedly by this Court as well as the Honourable Supreme Court that even in a case of unauthorised absence, there has to be finding by the competent authority to the effect that the absence from **6** ## **W.P.(C). No. 59 of 2005** service is wilful and that there were no mitigating circumstances for the same. In **Krushnakant B.Parmar v. Union of India & Another [2012(1) KLT SN-119(C-127)]** the full text of which judgment has been made available by the learned counsel for the petitioner, the Apex Court held as follows: “16. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.” **W.P.(C). No. 59 of 2005** **7** 9. It is not in dispute that no disciplinary action had been taken against the petitioner by the respondents in this case. Notices had been served on his residential address which were answered specifically stating that he was mentally ill and missing. In the above circumstances, Ext.P9 showcause notice issued stating that he would be summarily dismissed from service can have no legal backing. The contention raised by the learned counsel for the respondents to the effect that Ext.P12 being an appealable order, the writ petition filed without availing the statutory remedy is not maintainable cannot also be countenanced in view of the specific pleadings raised by the petitioner that Ext.P12 was never served on him and he became aware of the same only when counter affidavit was filed in the instant case. The other allegations raised against the petitioner in the counter affidavit said to have been filed by the management had evidently never been put to him. It is not on any of those grounds that he has been terminated from service. In the circumstances, those contentions and allegations are absolutely irrelevant for the purpose of the instant case. The provisions of the Persons Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with **W.P.(C). No. 59 of 2005** **8** special reference to Section 47 thereof would be specifically attracted in the case of a person who contracts mental illness during the course of his employment as well. For the aforementioned reasons, I find that the termination of service of the petitioner is bad on that ground as well. In the facts and circumstances of the case, I find that Ext.P12 order of termination is illegal and unsustainable. The same is set aside. The petitioner will be entitled to fixation of pension and other terminal benefits as if he had continued in service and retired on 30.09.2006. Since the petitioner had not actually worked for the period from 15.06.2001 to 30.09.2006, the salary for the said period need not be paid to him. Steps for disbursal of other monetary benefits due to the petitioner shall be taken up and completed by the respondents within three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. ## Sd/- **ANU SIVARAMAN,** ## **Judge** lsn