KENDRIYA VIDYALAYA SANGHATHAN AND ORS. vs THE CENTRAL ADMINISTRATIVE TRIBUNAL AND ORS.

Manojit Bhuyan, J.

1.Heard Mr. M.K. Mazumdar, learned counsel representing the petitioners as well as Mr. S. Dutta, learned counsel representing the respondent no.2,

Smti. Jayanti Deb Roy.

This petition by Kendriya Vidyalaya Sanghathan is directed against the order dated 02.01.2008 passed by the Central Administrative Tribunal,

Guwahati Bench in O.A. No.194/2006.

The respondent no.2 Smti. Jayanti Deb Roy had joined Kendriya Vidyalaya Sanghathan (in short, “the KVSâ€) on 01.08.1980 as a Primary

Teacher and was posted at Tezpur KVS. During the period from 1982 to 2003, she was transferred to KVS Khanapara and KVS Digaru and again

retransferred to Tezpur KVS in the year 2003, where she joined on 21.04.2003. On account of health reasons, she was granted Earned Leave from

16.07.2003 to 26.07.2003. Thereafter, she applied for extra-ordinary leave from 01.09.2003 to 30.09.2003 and had also sought extension from

01.10.2003 to 31.10.2003, both on medical grounds. By sending a Telegram to the KVS authority, she again applied for extra-ordinary leave from

01.11.2003 to 30.11.2003. As borne out of records, no extra-ordinary leave was granted for the period from 01.09.2003 or on any date thereafter.

Rather, she was asked to join duty by communications dated 10.11.2003 and 17.02.2004. As the respondent no.2 remained absent for a period of 15

days or more from 01.09.2003, a Show Cause Notice dated 04.08.2004 was issued by the Assistant Commissioner of KVS asking her to make written

representation as by her conduct in not reporting for duty within the period of 15 calendar days nor having satisfactorily explained the reasons for her

absence amounted to voluntarily abandoning her service and thereby provisionally losing lien on her post. The said Show Cause Notice was issued

contemplating action under Article 81 (D) of the Education Code of Kendriya Vidyalaya Sanghathan. The respondent no.2 had shown cause vide

representation dated 16.08.2004 explaining that she had been suffering from some malignant diseases and was undergoing treatment at Guwahati,

from which she has not recovered completely. She also referred to the applications made seeking extra-ordinary leave with effect from 01.09.2003.

Mention was also made that her husband was suffering from diabetic neuropathy and required constant support in his day-to-day life. It was also

stated that her husband is a Senior State Government servant but without any scope of his posting at Tezpur for want of equivalent post in the

Department he was serving. Records reveal that pursuant to the letter dated 16.08.2004, the respondent was given one more opportunity to join her

duties by 29.10.2004, which she failed to comply with in the forenoon of 29.10.2004. On consideration of the facts and circumstances, the Assistant

Commissioner of KVS, vide Memorandum dated 02.11.2004, confirmed loss of lien on her abandoned post of Primary Teacher. Accordingly, the

respondent no.2 was removed from the service of KVS with effect from the date of her remaining absent from duties i.e. with effect from

01.09.2003. The appeal filed before the Commissioner, Kendriya Vidyalaya Sanghathan at New Delhi also stood rejected vide appellate order dated

01.07.2005, thereby affirming the order of the Disciplinary Authority dated 02.11.2004. As against the aforesaid two orders dated 02.11.2004 and

01.07.2005, the respondent no.2 filed the related O.A. No.194/2006, which was allowed vide order dated 02.01.2008. Aggrieved, the Kendriya

Vidyalaya Sanghathan is before this Court with the present writ petition.

The undisputed factual position is that the respondent no.2 remained absent without sanctioned leave on and from 01.09.2003. A Show Cause

Notice dated 04.08.2004 contemplating action under Article 81(D) was not only issued but she was also given another opportunity to join her duties,

which she failed to so. The order of 02.11.2004 confirming her voluntary abandonment of service and loss of lien was issued by giving due opportunity

to make representation, which representation was duly considered while passing the order. Although by virtue of clause (4) of Article 81(D) of the

Education Code, the respondent no.2 was entitled to make written representation to the Appointing Authority within 10 days thereof, however, she did

not avail the remedy but opted to prefer appeal before the Commissioner, Kendriya Vidyalaya Sanghathan, at New Delhi. Be that as it may, the said

appeal was also heard and disposed of by speaking order dated 01.07.2005.

On a careful perusal of the proceedings that took place pursuant to Show Cause Notice dated 04.08.2004, we find no infirmity in the decision

reached by the KVS authorities in the exercise of their power under Article 81(D) of the Education Code of KVS. The said provision, which is

reproduced at paragraph 7 of the impugned judgment of the Tribunal, prescribes that an employee who has been absent or remains absent without

sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his lien on his post. Exceptions

being, if he returns within 15 calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended,

as the case may be, and satisfies the appointing authority that such absence or inability to return on the expiry of the leave was for reasons beyond his

control. In the event of failing to meet the requirements under the two exceptions, he shall be deemed to have voluntarily abandoned his service and

would thereby provisionally lose his lien on the post. In the instant case, the respondent no.2 remained absent without sanctioned leave with effect

from 01.09.2003. There are no materials to reach a positive finding that the respondent no.2 had, at any time, satisfactorily explained the reasons for

such absence which found acceptance of the authorities concerned. In the absence of any material explaining the reasons for remaining absent since

01.09.2003, this Court is of the considered view that the orders dated 02.11.2004 and 01.07.2005 do not suffer from any infirmity. True, that as on

01.09.2003 the respondent no.2 had put in about 23 years in service and if she wanted to join her husband at Guwahati and was not desirous to

continue to serve as a Primary Teacher at Tezpur KVS, she could have tendered resignation, in which case she could have made herself entitled to

retirement benefits. Although the respondent no.2 had made an application to the Commissioner of KVS on 24.11.2003 stating that if the authority was

not in a position to entertain her prayer of transfer and posting at Guwahati, the same letter be treated as her resignation letter effective from

01.12.2003, it would be suffice to say that under the law the said letter cannot be construed as a resignation letter but more in the character of a

threatened resignation letter. Although the respondent no.2 was advised to apply afresh for resignation without any conditions, the same was not

pursued at any point of time thereafter.

Coming back the issue in hand, we find no good ground to interfere with the order of the Disciplinary Authority dated 02.11.2004 and that of the

Appellate Authority dated 01.07.2005. The issue with regard to the applicability of Article 81(D) did not receive due consideration of the Tribunal in its

legal and proper perspective. As such, the order of the Tribunal dated 02.01.2008 cannot stand the scrutiny of law and is liable to be set aside, which

is accordingly done. For all the reasons aforestated, this writ petition stands allowed. Parties are made to bear their own cost.