21 Aug 2023 9:15 AM GMT
The Kerala High Court recently held that an employee who has been in unauthorized absence from service and against whom disciplinary proceedings have already been formally initiated cannot be allowed to rejoin the duty.Justice Viju Abraham added that disciplinary proceedings are considered initiated only upon the issuance of the memo of charges and in such cases, it might impact the...
The Kerala High Court recently held that an employee who has been in unauthorized absence from service and against whom disciplinary proceedings have already been formally initiated cannot be allowed to rejoin the duty.
Justice Viju Abraham added that disciplinary proceedings are considered initiated only upon the issuance of the memo of charges and in such cases, it might impact the eligibility of the employee for immediate reinstatement.
“Therefore, I am of the view that the request of the petitioner to permit her to rejoin duty, pending disciplinary proceedings cannot be accepted.”
The petitioner was an aided teacher who was granted leave without allowance from 2014 to 2018 to join her spouse. Thereafter, she sought for extension of leave without allowance for five more years till 2023. The petitioner received no response from the authorities regarding the leave applications submitted by her.
The Manager of the school issued a memo of charges and a statement of allegations against the petitioner for unauthorized absence from duty. She was intimated that disciplinary proceedings were initiated against her. The petitioner wanted to rejoin the duty but she was denied permission as disciplinary proceedings had already been initiated.
The counsel for the petitioner argued that the pendency of disciplinary proceedings was not a sufficient ground for not admitting her to duty on expiry of the leave applied for. The counsel relied on Elsy P. Oomman v. State of Kerala (2011) to state that a teacher can be terminated from service only following the procedure for imposing major penalties in Rule 75 of Chapter XIV A of the Kerala Education Rules (KER), in spite of the existence of Rule 56(4) chapter XIV A of KER.
Rule 56(4) states that the teacher shall cease to be in service after a continuous absence of five years, with or without leave.
On the other hand, counsel for the respondents submitted that the petitioner was availing different kinds of leave since 1992 and since 2018 she was on unauthorized absence from duty. The counsel relied upon Bini John v. Regional Deputy Director of Education, Kochi (2017) where the Court condemned the grant of leave for 20 years. It was also averred referring to Rule 56(4) as a special provision and would prevail over general provisions of leave.
The Court held that in Elsy P. Oomman (supra), the teacher was allowed reinstatement in service because a memo of charges was not issued against her. The Court found that disciplinary proceedings were not initiated in that case. It held thus:
“In Elsy P. Oomman's case (Supra), the Court directed to reinstate the petitioner therein in service, taking note of the fact that no Memo of Charges was issued to the concerned employee and therefore based on the settled position of law that disciplinary proceedings could be said to have been initiated only on issuance of the Memo of Charges, held that no disciplinary proceeding is stated to have been taken against the petitioner therein.”
The Court found that the decision in Elsy P. Oomman (supra), was based on an earlier decision in Devaky v. State of Kerala (1999). In Devaky (supra), the Court held that in spite of Rule 56(4), an aided school teacher could be terminated from service only after following the provisions prescribed in Rule 75. However, in Devaky (supra), the teacher was not allowed to rejoin duty. The Court found declining of reinstatement in Devaky's case (supra) was not noticed while deciding Elsy P. Oomman's case (Supra).
In Devaky (supra), the Court also took of the fact long leave of teachers must be discouraged as it will harm not just the school, but also the students. The Court observed thus:
“Even though the Court entered a finding to that effect in the said judgment, took note of the fact that the teachers therein have been continuously taking leave for long and in doing so, they have not only harmed the institution but also the students, and the Court further observed that the kind of practice of taking long leave for 10 years and 15 years should be discouraged and long leave must be sanctioned only in genuine and deserving cases and not on mere asking and held that the teachers who were on leave without allowance cannot make any claim to join the school as teaching staff by seeking extension of leave or in any other manner.”
The Court held that the decision cited by counsel for the petitioner Elsy P. Oomman (supra) was not applicable in the facts of the present case as memo of charges and statement of allegation have already been served on the petitioner.
Thus, the Court found that the petitioner who was on unauthorized absence cannot be allowed to rejoin duty during the pendency of the disciplinary proceedings.
Case title: Sreelatha P. T. V State of Kerala
Citation: 2023 LiveLaw (Ker) 419
Case number: WPC 19562 Of 2023
Counsel for the Petitioner: Advocate Murali Pallath
Counsel for the respondents: Advocate M. Sasindran, Senior Government Pleader Sunilkumar Kuriakose
Click Here To Read/Download The Judgment