N.SIVARAMAN Vs. KERALA KALAMANDALAM DEEMED UNIVERSITY

JUDGEMENT

(1.) PETITIONER who is the Head of Department of Chutty in the Kerala Kalamandalam, a deemed university, filed this writ petition seeking quashment of Ext.P4 and for issuance of a writ of mandamus commanding and compelling the respondents to grant him leave to participate in the Nalacharitham festival organized by the Sakthi Theatres, Abu Dhabi as also in 'Utsavam 2013' to be conducted in Dubai from 28.11.2013 to 2.12.2013. The further prayer is for a declaration that the action of the respondents in rejecting the request of the petitioner for grant of leave is highly unjust and illegal. According to the petitioner, he made remarkable achievements in the field of Chutty and he is a recipient of various awards including Suvarna Mudra Award of Janabheri Kathakali Kendram. It is also contended that he had participated in various important cultural events and for that purpose visited various countries. It is the further contention that Sakthi Theatres, Abu Dhabi is a famous organisation working in the Middle East for propagating art and culture and they intended to conduct a festival titled as Nalacharitham Festival at Abu Dhabi from 22.10.2013 to 25.10.2013. In the said festival, a troupe headed by renowned artist Padmasree Kalamandalam Gopi was invited to participate, as is obvious from Ext.P1. The petitioner was also invited to participate in the said festival and therefore, he submitted Ext.P3 application requesting to grant leave from 21.10.2013 to 26.10.2013. The petitioner was also invited to participate in another festival to be conducted from 28.11.2013 to

(2.) 12.2013 at Dubai titled as 'Utsavam 2013'. For participating in that festival also, the petitioner submitted his leave application. The respondents now, issued Ext.P4 communication informing him that the leaved applied for could not be granted. It is the contention of the petitioner that the said request was rejected based on the finding that he is also among the group of persons who resolved not to participate in any programme of the Kerala Kalamandalam except teaching. Admittedly, the petitioner is a member of the Kerala Kalamandalam University Employees Union and that the said Union gave a charter of demand dated 16.8.2013 that carries further caution that in case the demands were not considered immediately, by conducting a meeting they would abstain from all programmes of Kerala Kalamandalam except teaching. It is submitted that in the case of one M.Krishnakumar who is the Head of Department of Kathakali, when he applied for leave from 26.10.2013 to 28.10.2013 for foreign tour, it was granted to him that too, after the submission of charter of demand. In such circumstances, it is contended that the action in taking a decision not to entertain the application submitted by the petitioner would amount to discrimination. It is also contended that the petitioner in his individual capacity had not made any decision or communicated any decision that he would not co -operate with any programme of the Kerala Kalamandalam and therefore, on the ground of being a member of the association which submitted the charter of demand, leave as applied for should not have been denied. It is the further contention of the petitioner that in case he left the country without obtaining proper sanction from the respondents, the respondents might initiate disciplinary action against him and at the same time if leave is not granted to him it would not only affect the petitioner but also would adversely affect the entire team intending to participate in the festival. It is with the aforesaid allegations that the petitioner filed this writ petition with the aforesaid prayers. 2. A counter affidavit has been filed on behalf of the respondents. It is stated therein that as part of ongoing non -co - operation strike virtually declared by the Union in which the petitioner is a member, they refused to participate in the official programmes organised and conducted by the Kerala Kalamandalam from 2.9.2013 onwards. Taking note of the serious situation, the second respondent viz., the Vice Chancellor of the Kerala Kalamandalam Deemed University passed an order refusing permission to such members of the staff who had declared the said strike to go abroad for participating in private programmes while abstaining from participating in official programmes of the Kerala Kalamandalam. It is further contended that the impugned order would not impair any legal right or any constitutional right of the petitioner and therefore the petitioner is not justified in invoking extra ordinary discretionary jurisdiction of this Court. It is also stated therein that the contention of the petitioner regarding discrimination is bereft of any basis in the light of Ext.R1(b). As per Ext.R1(b), the application submitted by Sri.M.Krishnakumar whose name has been mentioned by the petitioner in the writ petition, after 16.8.2013 viz., the date of submission of the charter of demand, for participating in a private programme was rejected. It is the further contention that being a person who deliberately refused to participate in official programmes of the Kerala Kalamandalam as part of ongoing non -co -operation strike and based on the general decision not to grant permission to such members of the said union to participate in private programmes, the petitioner is not entitled to get the leave sanctioned for the aforesaid purpose.

(3.) IN the counter affidavit filed by the respondents it has been specifically stated that the provisions under the Kerala Service Rules are applicable to the employee of Kerala Kalamandalam. This fact is not disputed by the petitioners. In the circumstances, it is only apposite to refer to Rule 65 of Part I of the Kerala Service Rules as per which the leave cannot be claimed by an employee as a matter of right and at the same time, it empowers the authority concerned to refuse or revoke leave of any description. True that in this case, the petitioner applied for leave and admittedly, the leave applications were submitted seeking permission to participate in festivals abroad. The petitioner did not virtually dispute the fact that as a member of Kerala Kalamandalam University Employees' Union he abstained from attending the programme of Kerala Kalamandalam mentioned earlier and also did not dispute the decision of his Union for non -co - operation strike. As noticed earlier, in fact, the petitioner did not participate in the programme held on 3.9.2013 at Adayar Kalakshethra. The petitioner did not have a case that he is prepared to perform his obligation as a teaching staff of Kerala Kalamandalam and participate in the official programmes of Kerala Kalamandalam. The willful abstinence of talented members among the staff like the petitioner from the performance held at Adayar Kalakshethra Chennai and the consequential failure to live in up to the expectations of the admirers and well wishers of Kerala Kalamandalam cannot be said to be without any basis. Certainly, those are matters of concern and the authorities are within their powers and duty bound to avert recurrence of such an incident. The question is whether the respondents are justified in refusing to entertain the application for leave to petitioner to participate in private programmes in the circumstances explained above. I have already noticed the contention of the respondents regarding the applicability of the provisions of Kerala Service Rules to the employees of Kerala Kalamandalam and also of the fact that it is virtually incontestable position. Going by Rule 65 of Part I KSR, leave cannot be claimed as a matter of right and when the exigencies of public service so require the discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Leave cannot claim as of right especially when it is sought for attending private programmes while abstaining from participating in official programmes. Though I fail to understand the stand of the officials of the Kerala Kalamandalam in turning blind eye to the charter of demands, without approaching the same in terms of prescriptions under law, I am of the view that the action on the part of the petitioner and other members of the staff in wilfully abstaining from the official programmes of the Kerala Kalamandalam also cannot be appreciated. I hope and wish that both the official respondents and members of the Union including the petitioner acknowledge and recognise the fact that by all such actions, inactions and non -co - operation, they are virtually bringing down reputation of the great institution established by the great poet with the novel purpose of propagating art and culture. I ween that it would only be appropriate to all parties concerned to put their heads together to resolve the issues so as to raise the prestige of such a great institution. Reliance was placed by the petitioner on Ext.P2 to contend that the respondents are bound to grant leave to the petitioners for participating in the said functions. Ext.P2 cannot be understood as an order conferring any indefeasible right to claim leave to the teaching staff of Kerala Kalamandalam. Clause IV in Ext.P2 order would reveal that the organisers of any such functions who intend to borrow the service of the members of the teaching of Kerala Kalamandalam had to apply directly to the Vice Chancellor and such persons are also bound to state in the said applications the period of leave required, the number of programmes etc. There is no case for the petitioner that prior to the submission of the leave application referred above the concerned organisations which intend to borrow the service of the petitioner had directly applied to the Vice Chancellor in terms of Ext.P2 and they included the petitioner as a member of the foreign programmes after adhering to Ext.P2 and with the permission of Kerala Kalamandalam. As long as the petitioner remains as an employee of Kerala Kalamandalam he cannot be heard to contend that without looking into interest of the said institution applications for grant of leave to attend private programmes should be granted. It is also to be noted that though the learned counsel for the petitioner stated that the petitioner had not expressed unwillingness to participate in official programme in his individual capacity there is no case for the petitioner that he is willing to participate in the official programmes being conducted by the Kerala Kalamandalam. The action on the part of the respondents in refusing to entertain applications for grant of leave to participate in the private programmes from members who are abstaining from attending the official programmes of Kerala Kalamandalam cannot be said to be arbitrary, illegal warranting interference by this court in the circumstances expatiated earlier. In short, I do not find any reason to interfere with the decision in Ext.P4. Ext.R1(b) would reveal that the petitioner cannot be heard to contend that while taking a decision in Ext.P4 he has been discriminated arbitrarily. In fact, a perusal of Ext.P4 and Ext.R1(b) would reveal that a general stand applicable to all was taken in view of the prevailing situation on account of the non -co -operation of the employee pursuant to the submission of charter of demands and it was in tune with the said view taken that the application from the petitioner and Sri.M.Krishnakumar were declined to be granted. For all these reasons, this writ petition is liable to fail and accordingly it is dismissed. It is made clear that the dismissal of the writ petition will not stand in the way of the respondents in granting any such permission to participate in 'Utsavam 2013' which is to be conducted in Dubai from 28.11.2013 to 2.12.2013 based on any consensus if arrived at later, in the matter.