K.M. Jessi vs State of Kerala

A.K. Jayasankaran Nambiar, J.—The petitioner was appointed as HSA in the 4th respondent''s School on 19.06.1989 against a leave vacancy. She was thereafter appointed on a regular basis as HSA in the same School with effect from 04.06.1990. While working as HSA, the petitioner had availed leave for the period from 01.12.1996 to 30.11.2001. The said leave was sanctioned and, she proceeded on leave with effect from 01.12.1996. The petitioner did not, however, avail the entire period of the leave that she had applied for. She, therefore, rejoined duty on 20.08.1998. Simultaneously, she also represented before the Government for cancellation of the unavailed portion of the leave and permission to rejoin duty. The Government, however, passed an order cancelling the unavailed leave of the petitioner and permitting her to rejoin duty only on 23.01.2009, by Ext. P7 order. In the meanwhile, the petitioner after rejoining duty with effect from 20.08.1998, was promoted as HSST (Malayalam) on 26.08.1998. The said appointment as HSST was also approved by the authorities under the Kerala Education Rules. Thereafter, in 2008, while the petitioner was working as HSST (Malayalam), she applied for leave without allowance for the period from 20.06.2008 to 19.06.2013 for the purpose of joining her spouse who was residing abroad. The application of the petitioner for leave was routed through the 4th respondent Manager, and was forwarded by the 4th respondent Manager to the Regional Deputy Director of Higher Secondary Education as early as on 01.04.1998. The application was, therefore, sent well prior to the date on which the petitioner proceeded on leave. It would appear, however, that this application submitted by the petitioner was returned by the authorities as defective on account of an alleged mistake in an entry pertaining to the previous leave availed by the petitioner. Therefore, the petitioner caused a fresh application to be submitted before the authorities under the Kerala Education Rules. The revised application was dated 17.06.2008 and the Deputy Director of Higher Secondary Education forwarded the revised application to the Government on 18.06.2008. The petitioner, thereafter, on the belief that nothing further remained to be done from her side, proceeded on leave on 20.06.2008.

On 10.07.2009, the petitioner was served with Ext. P2 memo, issued by the 4th respondent, proposing disciplinary proceedings against her for entering on leave without obtaining the formal sanction of the Government. While the petitioner preferred Ext. P3 reply to the said memo, the disciplinary proceedings contemplated by Ext. P2 memo did not proceed as envisaged, and by Ext. P4 communication dated 15.07.2009, the petitioner was informed that the disciplinary proceedings initiated against her had been finalised by issuing a warning to the petitioner against future lapses. In the meanwhile, the petitioner continued to pursue the matter with the respondent authorities for the purposes of getting the leave for the period from 20.06.2008 to 19.06.2013 sanctioned by the Government. No action was forthcoming from the Government in that matter. By Ext. P5 communication dated 16.07.2009, the 5th respondent Principal also recommended the petitioner''s case before the Government and requested the Government to sanction the leave sought for by the petitioner. By Ext. P6 communication, the 4th respondent Manager is also seen to have recommended the case of the petitioner before the Government. Thereafter, Exts.P8 to P10 representations were preferred by the petitioner as well before the respondents, including the Government. In Exts.P8 to P10 representations, the petitioner made a plea before the Government to either sanction the leave that she had applied for or to cancel the remainder of the leave period so that she could rejoin duty. It is the case of the petitioner that even thereafter the Government continued to remain unresponsive to the representations of the petitioner.

By Ext. P12 memo dated 07.02.2011, the petitioner was once again asked to show cause as to why disciplinary proceedings should not be initiated against her for proceeding on leave without obtaining sanction from the Government. While the petitioner preferred Ext. P13 reply to the said show cause notice, she anticipated an adverse action against her from the 4th respondent Manager and hence she approached this Court through the present writ petition seeking inter alia a direction to the 4th respondent not to terminate the services of the petitioner. It is seen that, by an interim order dated 23.02.2011, the respondents were directed not to terminate the service of the petitioner. Thereafter, by yet another interim order dated 18.06.2013, the petitioner was permitted to rejoin duty in the 4th respondents School. Thus, as of today, the factual situation is that the petitioner proceeded on leave for the period from 20.06.2008 to 19.06.2013, the leave applied for by the petitioner was not formally sanctioned by the Government and the petitioner has now rejoined duty pursuant to the interim order passed by this Court, after having availed leave for the entire period applied for by her. The challenge in the writ petition is against Ext. P12 memo issued by the 4th respondent, Ext. P19 order dated 06.06.2013 of the 4th respondent Manager that was passed during the pendency of the writ petition and denying the petitioner permission to rejoin duty on account of the disciplinary proceedings that had already been initiated against her, and Ext. R4(a) direction dated 18.12.2010 of the Regional Deputy Director to the 4th respondent Manager which appears to have been the reason for the issuance of Ext. P12 memo to the petitioner.

A counter affidavit has been filed on behalf of the 3rd respondent wherein it is stated that the disciplinary proceedings against the petitioner were recommended by the Government solely on account of the fact that the petitioner had chosen to proceed on leave even prior to the Government sanctioning the leave that she had applied for. The counter affidavit, however, is silent with regard to the steps that were taken by the Government, on the repeated requests of the petitioner to sanction the leave that she had applied for. A reference is however seen made in the counter affidavit to the alleged discrepancy that was noted by the respondents while returning the application for leave filed by the petitioner as defective. It is seen that the reasons shown for returning the application for leave submitted by the petitioner were the subject matter of Ext. P7 order that was subsequently issued by the Government on 23.01.2009.

I have heard Sri. V. Philip Mathew, the learned counsel appearing on behalf of the petitioner as also Smt. Sunitha Vinod, the learned Senior Government Pleader appearing on behalf of the respondents.

On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I note that this is a case where the petitioner had preferred an application for leave for the period from 20.06.2008 to 19.06.2013, well in advance, on 01.04.1998. The leave application was put in through the proper channel for forwarding to the Government. The respondent authorities, however, returned the application as defective by noting certain objections with regard to the mention, in her application, of an earlier period of leave that she had applied for. It would appear that the said objections, pointed out by the Government, where subsequently regularised by the Government itself by Ext. P7 order dated 23.01.2009. No doubt, at the time of returning the application of the petitioner as defective, Ext. P7 order had not been passed by the Government. Notwithstanding that, it needs to be noted that on account of the return of the application submitted by the petitioner as defective, considerable time was lost in resubmitting her application for leave, which was to commence from 20.06.2008. The resubmission of the application to the Deputy Director of Higher Secondary Education materialised only on 17.06.2008 and the Deputy Director in turn forwarded the application to the Government on 18.06.2008. It was obvious, therefore, that the petitioner could not wait for a response from the Government on her leave application before proceeding on leave with effect from 20.06.2008. Considering the necessity that was faced by the petitioner, she proceeded on leave without waiting for any formal sanction of leave from the Government. While this act was in contravention of the rules, and disciplinary proceedings have been initiated against the petitioner for the said lapse, I feel that it is incumbent upon the Government to consider and pass orders on the applications submitted by the petitioner for sanctioning of leave for the period from 20.06.2008 to 19.06.2003, notwithstanding the fact that the leave period has since expired and the petitioner has rejoined duty pursuant to the interim order passed by this Court on 18.06.2013. The Government would have to pass an order, either sanctioning the leave application or stating clearly its reasons for not sanctioning the leave application, so that the treatment to be accorded to the period covered by the leave application, for the purposes of service benefits to the petitioner, can be ascertained. While passing orders on the leave application, the respondent Government shall keep in mind the fact that the initial objections that were noted in the petitioner''s application, while returning it for resubmission, were subsequently regularised by the Government itself vide Ext. P7 order and therefore it would appear that there was really no need for returning the application originally submitted by the petitioner. It was only on account of the delay that was occasioned, pursuant to the return of the application, that the petitioner was put in a situation where she had to proceed on leave without awaiting the formal sanction of leave by the Government. I make this observation only because I feel that the Government must keep this fact in mind while considering whether or not to sanction the leave applied for by the petitioner. The Government shall pass orders on the leave application submitted by the petitioner within a period of two months from the date of receipt of a copy of this judgment and after affording the petitioner an opportunity of being heard. The petitioner is free to rely on any material in support of her contention in the said hearing.

It is seen that by Ext. P19 communication, the petitioner was not permitted to rejoin duty owing to Ext. P12 memo issued to her. Consequent to the filing of the writ petition, the petitioner by virtue of an interim order dated 18.06.2013 was permitted to rejoin duty and is stated to be working as HSST in the School from that date. Under these circumstances, I feel that the disciplinary proceedings initiated against the petitioner by Ext. P12 memo should be kept in abeyance till such time as the Government passes orders on the leave application submitted by the petitioner, as directed in this judgment. The 4th respondent is therefore, directed to keep all further proceedings pursuant to Ext. P12 memo issued to the petitioner in abeyance till such time as formal orders, as directed in this judgment, are passed by the Government on the leave application submitted by the petitioner. The 4th respondent shall thereafter, on a perusal of the orders passed by the Government, take a fresh decision as to whether or not to proceed with the disciplinary proceedings contemplated under Ext. P12 memo issued to the petitioner.

The payment of salary and other service benefits to the petitioner for the period from 18.06.2013 shall depend on the orders to be passed by the Government on the leave application preferred by the petitioner. If the petitioner furnishes an undertaking to the 2nd and 3rd respondents to the effect that she will refund any amount received by way of salary and other emoluments from the Government for the period worked subsequent to 18.06.2013, when she was permitted to rejoin duty by an interim order of this Court, then the said respondents shall effect payment of salary and other benefits due to the petitioner for the period so worked in the 4th respondent''s School. This shall be done within a period of one month from the date of receipt of the undertaking from the petitioner. I make it clear that the entitlement of the petitioner to these amounts shall depend on the outcome of the orders to be passed by the Government as directed in this judgment.

With these directions, the writ petition is disposed.