SREELATHA P. T. Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petition is filed seeking a direction to the 6th and the 7threspondents to admit the petitioner to duty at once. The petitioner has also sought other consequential reliefs. The brief facts necessary for the disposal of the writ petition are as follows:

(2.) The petitioner is employed as Lower Primary School Teacher in Saraswathi Vilasam Upper Primary School, Muthathy, an aided school under the management of the 7threspondent. The petitioner was granted Leave Without Allowances (LWA) for the period from 10/6/2014 to 9/6/2018 to join the spouse within India, as per Ext.P1 Government Order. The petitioner relying on relevant rules in Appendix XII C Part I KSR, sought for extension of LWA for a further period of 5 years from 10/6/2018 to 9/6/2023. There was no response on the part of the 7th respondent. As there was no approved Manager or approved Headmaster at that point in time, she submitted an application for extension of leave before the 5th respondent. The 5th respondent returned the petitioner's application for extension of leave, noting certain defects. Thereupon, the petitioner submitted Ext.P2 letter before the 2ndrespondent seeking extension of LWA. The 2nd respondent as per Ext.P3 sought a detailed report from the 5th respondent regarding the leave application submitted by the petitioner. The petitioner being aggrieved by the non-sanction of the leave applied for, approached the 1st respondent by submitting a letter dtd. 18/7/2019 and the 2ndrespondent by Ext.P4 letter, submitted a detailed report to the 1st respondent on her application for extension of leave. Thereupon, the 1strespondent issued Ext.P5 communication to the 2ndrespondent directing to produce documents with the recommendation of the controlling officer for proceeding further with the leave application. Thereafter, no information was received by the petitioner and the petitioner submits that her application for extension of leave is pending with the Government. As per Ext.P6, the 7threspondent issued Memo of Charges and Statement of Allegation to the petitioner alleging unauthorized absence from duty. The petitioner submitted Ext.P7 defence statement to the said Memo of Charges and Statement of Allegation. Thereafter, Ext.P8 letter was issued by the 7threspondent to the petitioner intimating that disciplinary proceedings are initiated against her, to which she submitted Ext.P9 reply. In Ext. P9 letter, the petitioner informed the 7threspondent of her willingness to rejoin duty, but the 6th respondent declined permission to the petitioner to rejoin duty. The petitioner vide Exts. P10 and P12, again approached the 6th and 5threspondent respectively, seeking permission to rejoin duty. Thereupon by Ext.P14 reply, the 7threspondent intimated the petitioner that her request to permit her to rejoin duty has been rejected as disciplinary proceedings have already been initiated. The petitioner submits that the action of the 6thand 7th respondents in not admitting the petitioner to duty on 9/6/2023 is illegal and arbitrary. Pendency of disciplinary proceedings if any is not a sufficient ground for not admitting her to duty on expiry of the leave applied for. The petitioner relies on paragraph 53 of the Manual for Disciplinary Proceedings to contend for the position that the absentee who returns to duty could not be denied readmission to duty, until the absentee has been placed under suspension pending disciplinary proceedings or final orders have been passed dismissing or removing him from service. Petitioner also relies on the judgment of this Court in Elsy P. Oomman v. State Of Kerala and Ors. [2011 (1) KLT 491] to contend that in spite of the provisions contained in Rule 56(4) of Chapter XIV A KER, a teacher can be terminated from service only following the provisions as prescribed by Rule 75 of Chapter XIV A KER. Petitioner also relies on Rule 56(1) of Chapter XIV A KER to contend that in the matter of casual leave and other kind of leave, teachers of aided school shall be governed by the rules for teachers of Government schools in the service regulation for the time being in force and therefore, going by Appendix XII A of KSR, dealing with grant of leave without allowances for taking employment abroad or within India and as per Clause 6, if the employee does not return back for duty on expiry of leave, his service shall be terminated, after following the procedures laid down in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. On the strength of the same, the petitioner would contend that in spite of the provision under Rule 56(4) of Chapter XIV A KER, she could be terminated from service only following the provisions as prescribed under Rule 75 of Chapter XIV A KER.

(3.) A detailed counter affidavit has been filed by the 7th respondent Manager wherein it is contended that the petitioner has suppressed certain material facts in the writ petition, especially regarding the leave she has availed even prior to the grant of leave as per Ext.P1. The 7threspondent would contend that from the year 1992 onwards, the petitioner has been availing various kinds of leaves continuously, and from 17/7/2002 onwards, she has availed LWA. The 7threspondent has produced Ext.R7(a) chart detailing the availing of leave by the petitioner and contended that the petitioner has been availing leave from 17/7/1992 onwards and the petitioner has been on continuous leave without allowance from 15/10/2003 onwards, till 9/6/2018. Thereafter from 10/6/2018, she has been unauthorisedly absent from duty. The 7threspondent would further contend that Rule 56(4) of Chapter XIV A KER which is a special provision concerning the aided school teachers and the same would prevail over the general provision regarding Leave Without Allowance to the aided school teachers and therefore the general provision contained in Rule 56(1) would apply subject to the exception enumerated in Rule 56(4). It is also contended that as per G.O.(P) No.87/2022 dtd. 3/8/2022, Rule 6 of Appendix XII C Part I KSR has been amended, reducing the 20-year period to 5 years and therefore, the maximum period of leave which could be availed for joining spouse is 5 years only and therefore, there is no justification for her unauthorised absence. It is also contended that the said amendment was carried out also taking into consideration the direction issued by this Court in Bini John v. Regional Deputy Director of Education, Kochi [2017(2) KHC 213] wherein this Court has condemned the grant of leave for 20 years etc. The learned counsel for the 7threspondent also relies on the judgment of the Division Bench of this Court in Shaji P. Joseph v. State of Kerala and others [2022(1) KHC 203] and also the judgment in S. Vinod v. Kerala State Electricity Board Ltd. 842] in support of his contentions.