FR K J JOSE Vs. MANAGER

JUDGEMENT

(1.) The petitioner, an aided school teacher, applied for 255 days' leave on personal grounds, from 19-7-76 to 30-3-77. The application was forwarded to the D.E.O., but that officer wanted to know the real reason for the leave before it was granted. The petitioner was not inclined to disclose it, and leave was not granted. On 30-10-76 the Manager directed him to report for duty, but the petitioner stayed away from the school for the whole of the 255 days. He wanted to rejoin duty on 31-3-77 but was not permitted to do so as the Manager was thinking of disciplinary action against him for unauthorised absence. In the meanwhile, the petitioner approached the Educational authorities complaining that he was being illegally kept out of employment; and as per Ext. P1 dated 26-4-79 the State Government directed the manager to permit the teacher to rejoin duty, as he had not been kept under suspension. The Manager accordingly reinstated him on 4-6-79.

(2.) The question then arose as to how the petitioner's period of absence / non employment from 19-7-76 to 3-6-79 was to be treated; and by Ext. P4 order dated 11-3-81, Government directed that:-

(3.) What are the rights of an employee kept out of office by his employer, when the employer's action is subsequently found to be unjustified by a competent authority There seem to be two or three theories competing for supremacy in this area. One is the theory of full and complete restitution: the person against whom a wrong is committed should be granted all the dues which would have been his, had the wrong been not committed. A second theory is that salary and allowances are payable for rendering service in an office, and that when an employee has not rendered such service for a period, he cannot invariably claim full salary and allowances as compensation even if the fault was not his, but was that of the employer. Ordinarily, be could claim only damages; and whether the quantum of damages could be equivalent to full salary and allowances would depend on many considerations, and not on any inflexible rule. There is also the well known principle that where a public authority dismisses an employee in violation of the mandatory requirements of a statutory rule governing the matter, the employee will be entitled to reinstatement and full back-wages, notwithstanding the rule against specific enforcement of a contract of service. The principle seems to be that a legal person like a statutory body could act only in accordance with law, and all its actions contrary to law are non est: an illegal termination of service of one of its employees is something the law will not recognise. Views have also been expressed that instead of going by abstract principles, the attempt of the court should be to do justice by taking into account all the relevant facts and circumstances. So far as public employment is concerned, there is a view that the public coffers should not be held fully liable for every mistake committed by one officer in dealing with a subordinate of his: to stretch the theory of fault-liability to such an extent would be against public interest, it has been suggested. Yet, where constitutional protections like those under Art.311 are overlooked, courts generally insist on full restitution. In the realm of pure master-and-servant relationship, improper or illegal termination of a contract of employment is normally followed by grant of damages only, depending upon the nature of the employment, the express or implied terms of the contract, the conduct of the parties and other circumstances. But where there are statutory rules governing the relationship, different considerations may arise.