IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 805 of 2002()
1. H.G.GEEVARUGHENE MAR IVANIOSE,
... Petitioner
2. K.V.S.PANICKER, PRINCIPAL, MATHEWS
Vs
1. SKARIAH P.S., KUDAKASSERIL HOUSE,
... Respondent
For Petitioner :SRI.JOSE PALLATTUKARAN
For Respondent :SRI.RAJEEV.P.NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/06/2010
O R D E R
HARUN-UL-RASHID, J.
------------------------
S.A.No.805 Of 2002
----------------------
Dated this the 4th day of June, 2010.
J U D G M E N T
The defendants in O.S.No.517 of 1996 on the file of the Sub
Court, Kottayam are the appellants. The suit was filed for
damages. The trial court decreed the suit in part allowing the
plaintiff to realise an amount of Rs.42,676/- with interest at the
rate of 6% per annum from the date of suit till payment and also
proportionate costs from the defendants. The appellate court
with modification confirmed the decree and judgment. Parties
are hereinafter referred to as the plaintiff and defendants as
arrayed in the suit.
2. The plaintiff filed the suit on account of termination of
his service by the defendants. Plaintiff was working as an
instructor in the first defendant ITC with effect from1.12.1981.
Plaintiff’s service was terminated on account of his unauthorized
absence from 4.10.1993. The suit was filed contending that the
termination of service is illegal and claimed damages. The
appellants/defendants contended that the plaintiff by absenting
S.A.No.805 Of 2002
::2::
himself without any sufficient reasons deserted employment and
hence his service was terminated and therefore he is not entitled
to the relief sought for in the suit. The trial court after framing
necessary issues considered the question as to whether the
termination of the service of the plaintiff is illegal and whether
the damages claimed is allowable.
3. Both sides adduced evidence in support of their
respective contentions. The defendants contended that the
plaintiff was absent from 19.8.1983 onwards. Therefore show
cause notice was issued to him with a direction to present within
three days. Plaintiff sent a reply with medical certificate
informing the defendants that he is unable to attend the work.
Defendants again issued show cause notice to the plaintiff stating
that he is not reporting for duty in spite of notice and therefore
his absence will be treated as desertion of employment. In spite
of show cause notice, plaintiff did not join duty and therefore his
name was removed from the roll with effect from 4.10.1993 for
unauthorized absence.
S.A.No.805 Of 2002
::3::
4. Plaintiff examined PWs 1 and 2 and produced Exts.A1
to A8. Admittedly, plaintiff submitted leave application with a
medical certificate for the period from 19.8.1993. Defendants did
not accept the leave application and the service of the plaintiff
was terminated. The trial court observed that the defendant has
not made enquiry about the genuineness of the plaintiff’s leave
application and medical certificate submitted along with the
application. In the leave application the plaintiff informed the
defendants that he was laid up and not in a position to move and
his expression of willingness to work after recovery from the
illness was not properly responded to by the defendants. In spite
of the fact that the leave application was filed and further
expressing willingness to join duty after recovery, according to
the plaintiff, the defendant directed the plaintiff to be present
within two days. The conduct of the parties is appreciated by the
trial court and the trial court held that the conduct of the
defendant is highly arbitrary and improper. The trial court
observed that the defendant should have made further enquiry
regarding the genuineness of the medical certificate. The trial
S.A.No.805 Of 2002
::4::
court also relied on the evidence of PW2, the doctor who issued
the medical certificate and held that the evidence of PW2 clearly
establish that the plaintiff was laid up due to Rheumatic
complaints and therefore he was not in a position even to move.
The trial court believed the evidence of PW2. After examining the
attending circumstances, the trial court held that the defendant
has terminated the service of the plaintiff without any enquiry
and without giving an opportunity of hearing to the plaintiff.
Admittedly, the plaintiff is a permanent employee of the first
defendant institution. The matter was taken up before the lower
appellate court. The appellate court also confirmed the decree
and judgment with a slight modification regarding the quantum of
damages. The trial court as well as the appellate court
appreciated the evidence on record and held that the termination
of service of the plaintiff is arbitrary and illegal. The findings are
purely based on facts. This Court is unable to interfere with the
findings of fact in an appeal filed under Section 100 CPC.
Learned counsel for the appellant relied on a decision reported in
Sitaram Kashiram Konda v. Pigment Cakes and Chemicals
S.A.No.805 Of 2002
::5::
Mfg. Co. (AIR 1980 SC 16). The Apex Court in the said decision
held that if an employee was wrongly dismissed from service
court can order reinstatement and also in the alternate order
compensation. The Apex Court held that such a suit is
maintainable. According to the counsel for the appellant, on a
reading of facts in Ext.B2 plaint and Ext.A6 judgment in the
earlier suit filed by the plaintiff, there is no alternate prayer for
compensation and therefore the present suit claiming damages is
not maintainable. Learned counsel for the respondent brought to
the notice of this Court, the circumstances under which the
earlier suit was filed. The earlier suit was based on the
appointment of an instructor in the place of the plaintiff since the
plaintiff did not report for duty on 14.9.1993. During that time
the plaintiff was in service of the first defendant, the second suit
was filed challenging the termination order dated 4.10.1993.
According to the learned counsel the scope and ambit of both
suits are different and therefore the dictum laid down by the
Apex Court has no application at all. On an examination of the
facts of this case, I find that the earlier suit was filed challenging
S.A.No.805 Of 2002
::6::
the notice issued by the first defendant calling upon the plaintiff
to rejoin duty and the present suit was filed after the termination
of service claiming damages. It is very clear that the facts of the
said case has no application to the case in hand. It is also
pointed out by the counsel for the respondent that the second
suit is hit by Order II Rule 2 of the CPC was not raised either
before the trial court or before the appellate court. No question
of law much less any substantial question of law arises for
consideration in the appeal.
In the result, the appeal fails and accordingly, dismissed.
There will be no order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-