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Judgment
P. Sathasivam, J.—Aggrieved by the order of the first Respondent dated 13.3.1995, the Petitioner has filed the above Writ Petition on various grounds. The case of the Petitioner is briefly stated hereunder:
She was appointed as a secondary grade teacher in the Tamilnadu Rubber Corporation Limited of Chittar region on 7.1.1987 in the school run by the Rubber Corporation. She applied for maternity leave for three months from 17.1.1991 to 16.4.1991 and the same was sanctioned by the Respondents herein.
According to her, she could not join in service due to her ill-health and consequently, she applied for continuance of leave from 17.4.1991 to 3.9.1991 and 31.1.1992 in separate leave applications till 30.3.1992. She could not rejoin duty immediately after her maternity leave on 17.4.1991 and she was directed by the second Respondent by letter dated 16.7.1991 to report for duty within five days, failing which, it was stated that the departmental action will be initiated against her.
For the said memo, the Petitioner submitted her explanation and pointed out to the first Respondent that she has submitted her leave applications then and there from 17.1.1991 to 30.3.1992. On 30.10.1992, the first Respondent issued a show cause notice to the Petitioner alleging that the Petitioner absented duty before sending leave applications. She was again called upon to furnish her explanation for absence. She submitted her explanation on 1.1.1993. She also prayed for sanction of leave as applied for and permission to report duty and also for dropping the charges.
For the questionnaire dated 12.8.1993, the Petitioner submitted her reply and denied the charges once again. An enquiry was conducted on 19.7.1994. The Enquiry Officer found that the charges against the Petitioner are proved. She was directed to offer her final explanation. She has also submitted her reply. Thereafter, the first Respondent in his proceedings dated 13.3.1995, accepted the Petitioner''s leave from 17.1.1991 to 30.3.1992, and regularised the same as leave on loss of pay. However, the first Respondent, by his another proceedings dated 13.3.1995, has chosen to dismiss the Petitioner from service for the very same ground of absence without leave from 17.1.1991.
It is further stated that once the leave is regularised, the employee is entitled to join the duty. On the other hand, in the Petitioner''s case according to her, on the very same date, while regularising her leave, she was dismissed from service by the first Respondent, which is opposed to all canons of law. In such circumstances, having no other remedy, the Petitioner filed the present writ petition.
The Divisional Manager, Arasu Rubber Corporation has filed a counter affidavit on behalf of the Respondents. It is stated in the counter that the Corporation is running primary and middle schools for the benefit of the children of its employees. The teachers and staff working in the schools are governed by the service rules of the Respondent Corporation. The service rules provide for casual leave, special casual leave, earned leave with or without medical certificates, sick leave or leave on medical certificate, extraordinary leave without pay and allowance and maternity leave. Availing leave without prior permission will be treated as unauthorised leave, which is punishable under the rules.
It is futher stated in the counter that on 7.1.1987, the Petitioner was appointed as a teacher in the Primary School. She joined the Mylar School and after working for about ten months, she went on medical leave for seven months. When she was working in Kuthiar School, she availed medical leave for half a month in July 1990 and for another one month in November 1990 she went on maternity leave from 17.1.1991 to 16.4.1991. On the expiry of the leave, the Petitioner neither reported for duty nor did she apply for extension of leave. On 22.6.1991, a memo was issued to the Petitioner pointing out her absence from 17.4.1991 and calling upon her to report for duty within five days. Though she received the memo, she did not respond. Thereafter, another memo was issued. On 2.9.1991, she gave a reply stating that in view of ill-health, she is not in a position to join duty. Again on 11.1.1992, she sent a further letter praying for medical leave for 150 days from 3.9.1991 to 30.1.19922. On 12.3.1992, she applied for a further leave of 60 days and she enclosed a medical certificate dated 31.1.1992 recommending 60 days leave from 31.1.1992. On 20.3.1992, she called at the registered office of Corporation at Nagercoil and submitted a letter dated 19.3.1992 together with a fitness certificate offering to report for duty. On 2.4.1992, a memo was issued to the Petitioner pointing out her irregular absence and her failure to report for duty at Chithar division and requiring her to submit her explanation for not reporting to duty. She gave a reply dated 24.4.1992. Since the explanation was not satisfactory, a show cause notice was issued asking her as to why action shall not be taken for failuure to report for duty. She gave a reply dated 1.1.1993. On 11.8.1993, the second Respondent issued a charge sheet to the Petitioner for dereliction of duty and unauthorised absence. She gave a reply dated 28.8.1993. She was asked to appear for an enquiry on 18.7.1994. After submitting the Enquiry Officer surer it and after hearing the objections, once again, orders were passed on 13.3.1995 dismissing her from sevice.
It is further stated that there is no question of Petitioner''s absence being regularised by sanctioning of leave on loss of pay. The entire period of absence was unauthorised one. The Petitioner was only a probationer and she had not completed her probation. With these averments, they prayed for dismissal of the writ petition.
In the light of the above pleadings, I have heard the learned Counsel for Petitioner as well as Respondents.
In the light of the narration of the above pleadings of both parties, it is unnecessary to refer the same once again. There is no dispute that the Petitioner applied for maternity leave initially for three months from 17.1.1991 to 16.4.1991. The same was sanctioned by the Respondents. It is the case of the Petitioner that she could not join the services due to her ill-health. Accordingly, she applied for continuance of leave on various dates in separate application till 30.3.1992. It is brought to my notice by the learned Counsel for Respondents that as per the serrvice rules, availing leave without prior sanction will be treated as unauthorised absence, which is punishable under the rules. Even according to the proceedings of the Respondents, the Petitioner absented on several dates from January 1991, to February 1992.
Before considering the impugned order of the first Respondent dated 13.3.1995 dismissing the Petitioner from service, it is relevant to refer to the proceedings of the Divisional Manager Chittar in Na. Ka. No. 4911/ 89 Ka dated 13.3.1995. The Divisional Manager after referring to the details regarding the absence of the Petitioner on various dates, her applications for leave the particulars regarding sanction of leave the reason for leave, ultimately regularised all those periods and passed the order stating that the Petitioner has to forgo pay during those periods. Since the said order of the Divisional Manager is very relevant the same is extracted hereunder:
A perusal of the said order makes it clear that even though the Petitioner had absented on many days, without prior sanctioning of leave, after considering her claim, ultimately, regularised all those periods. It is further clear that for her absence, without prior sanctioning of leave, she was asked to forgo salary to the said period. Whileso, on the very same date, the very same officer in the very same proceedings, has passed the impugned order dismissing her from service for her unauthorised absence for certain periods.
No doubt, with reference to the said action, the Petitioner was given opportunity to put forth her explanation followed by an enquiry and thereafter, the Divisional Manager has passed the order of dismissal from service. It is not the case of the Respondents that the impugned order came to be passed for different charges. In other words, it is clear from the impugned order that since the Petitioner had absented without prior leave applications and prior sanctioning of leave, her services were terminated.
Learned Counsel for Respondents would state that the Petitioner was in the employment of the Corporation from 7.1.1987 to 13.3.1995 and during this period, she had worked only for 38 months. It is also stated that when she has not offered herself any explanation for such a leave period, the Corporation had no option than to take appropriate action.
I have already extracted the earlier proceedings of the very same officer condoning her absence and regularising the same. Having accepted the explanation offered by the Petitioner for not submitting her leave applications in time and for frequent absence by her from 17.1.1991 to 31.1.1992, it is not open to the Respondents to take any further action as ordered by the Respondents. If the explanation offered by the Petitioner was not acceptable, without regularising the request made by the Petitioner with regard to her absence for the said dates, they could have proceeded against her as per the service rules. Having passed an order on 13.3.1995 regularising her service, without salary for the said period, the order of the very same officer dismissing her from service cannot be sustained.
It is unfortunate that having passed an order on 13.3.1995 accepting her case and regularising those periods, in the counter affidaivit, the very same officer has stated that either "there is no question of Petitioner''s absence being regularised by sanctioning of leave on loss of pay, and in fact the entire period of absence was unauthorised absence." The said statement is directly contrary to the conclusion arrived at by the very same officer in Na. Ka. No. 4911/89 Ka dated 13.3.1995.
Apart from the above factual position, learned Counsel for the Petitioner has also brought to my notice the decision of the Andhra Pradesh High Court in the case of G. Papaiah Vs. Assistant Director, Medical Services, Secunderabad, . In that case, charge No. 2 relates to absence of the Petitioner therein from duty for the period commencing from 16.5.1973 and ending with 25.5.1973. The Major, Officer Commanding in his order dated 18.6.1973, granted ten days EOL from 16.5.1973 to 25.5.1973 (both days inclusive) to the Petitioner to regularise his intentional absence for the period. An argument was made on behalf of the employer that notwithstanding the grant of extraordinary leave to the Petitioner therein, he can be proceeded against for his absence from duty for that period. Rejecting the said contention learned single Judge has concluded as follows:
I am unable to agree with the learned Counsel for the Respondent that notwithstanding the grant of the extraordinary leave to the Petitioner, he can be proceeded against for his absence from duty for that period. Whether it is an extraordinary leave, ordinary leave, leave on pay, leave on half pay, medical leave, or casual leave, nonetheless it is a leave. The kind of nature of leave is not material but the substance of the matter is that the Petitioner was granted leave. When once leave is granted to a public servant, in respect of a particular period, it must be considered that he is permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other authority to proceed against the public servant for absenting from duty for the same period and punish him. The employer, either private or public cannot blow hot and cold. The authorities should have refused to grant leave of any kind to the Petitioner and then proceeded to punish him after due and proper enquiry and after affording reasonable opportunity to him. When once leave has been granted, it cannot be said that the Petitioner had absented himself from duty and there by made himself liable to be punished. Hence, the second charge relating to the absence of the Petitioner from duty from 16th May, 1973 to 25th May, 1973, both days inclusive, is not sustainable. I may add that the very order granting extraordinary leaves states that such leave has been granted to regularise the Petitioner''s intentional absence for the period. The very purpose of granting the leave being to regularise the Petitioner''s intentional absence, it is not open to the Respondent to intiate any proceedings against the Petitioner for his absence from duty for that period. Judged from any angle, the second charge must be quashed and it is not sustainable.
With respect, I am in entire agreement with the view expressed by the learned single Judge. As rightly stated, when once the explanation of the Petitioner is accepted for her absence, and for not securing leave in advance in respect" of a particular period, I am of the view that it is not permissible or open to the employer-Respondents herein to proceed against the Petitioner for absenting from duty for the same period and punish her.
In the light of what is stated above, the impugned order of the first Respondent dated 13.3.1995 in Na. Ka. No. 4811/89/K dated 133.1995 signed by the second Respondent is hereby quashed and the Respondents are directed to reinstate the Petitioner as secondary grade teacher with continuity of service and back wages from 1.4.1992 with all further benefits. The Respondents are directed to comply with this order within four weeks from the date of receipt of a copy of this order.
The Writ Petition is allowed as mentioned above with costs. The Counsel fee is Rs. 1,000/- (Rupees one thousand only). Consequently, no orders are necessary in the above W.M.P.