High Court Kerala High Court

M.O.Sebastian vs M/S.Transformers Electricals … on 25 February, 2009

Kerala High Court
M.O.Sebastian vs M/S.Transformers Electricals … on 25 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 21158 of 2000(R)



1. M.O.SEBASTIAN
                      ...  Petitioner

                        Vs

1. M/S.TRANSFORMERS ELECTRICALS KERALA LTD
                       ...       Respondent

                For Petitioner  :SRI.PHILIP MATHEW

                For Respondent  :SRI.M.PATHROSE MATTHAI (SR.)

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :25/02/2009

 O R D E R
            P.R.RAMACHANDRA MENON, J.
            ======================
                  O.P. No. 21158 of 2000
            ======================
         Dated, this the 25th day of February, 2009
                      J U D G M E N T

Sustainability of Exhibit P14 order passed by the first

respondent company imposing the punishment of removal

from service with effect from 15-9-1999 i.e., from the date

of unauthorised absence of the petitioner stated as proved

vide Exhibits P12 and P13 is under challenge in this writ

petition.

2. The case of the petitioner is that he joined the

service of the first respondent company as Foreman,

Production & Planning, on 12-6-1980. On completion of 9

years, he got an opportunity to go abroad securing an

employment there, which made him to apply for leave

without allowance for five years, which was sanctioned by

the first respondent as per Exhibit P1 with effect from

15.9.1989; subject to the condition that the petitioner

reported for duty immediately on expiry of the leave on

O.P. No. 21158 of 2000 -:2:-

14.9.1994, failing which, it would be presumed that

petitioner had abandoned the service in the company. By

Exhibit P1 it was also made clear that the leave would not

be reckoned for the purpose of seniority and for other

service benefits.

3. The petitioner sought for extension of leave by

another period of five years with effect from 15-9-1994,

which, however, was rejected by the first respondent

company as per Exhibit P2, stating that, as per rules of the

company, the maximum eligible leave to take up

employment abroad was only for a period of five years,

simultaneously instructing the petitioner to report for duty

on 14-9-1994, lest it should be treated as abandonment of

service. It is the case of the petitioner that the matter was

referred by the first respondent company to the

Government/second respondent and pursuant to the

instructions given by the second respondent, the first

O.P. No. 21158 of 2000 -:3:-

respondent company, in supersession of Exhibit P2 memo

issued Exhibit P3, granting extension of leave by five years

from 15-9-1994, subject to the condition that the petitioner

had to report back for duty immediately on expiry of leave

on 14-9-1999 and such other terms as specified therein.

Almost by the end of the second spell of leave granted by

Exhibit P3, the petitioner submitted Exhibit P5 application

seeking five years’ leave more, placing reliance on the leave

rules formulated by the Government.

4. While so, taking note of the fact that petitioner

had not reported for duty on expiry of the leave granted

vide Exhibit P3, the first respondent issued Exhibit P11

charge sheet ,citing violation of Clause No.12(i) & (viii) of

the Standing Orders of the company and asking for the

explanation on the misconduct. The explanation submitted

by the petitioner was found not satisfactory, which led to

issuance of Exhibit P7 deciding to hold a domestic enquiry

and appointing an Enquiry Officer.

O.P. No. 21158 of 2000 -:4:-

5. In the course of events, Exhibit P8 representation

was filed by the petitioner before the General Manager

(Production) of the first respondent company pointing out

that his personal inconvenience to attend the enquiry

incurring a cost of more than Rs.30,000/- and thus, seeking

either to drop or to adjourn the enquiry to a later date so as

to suit to his requirements. This was followed by Exhibit

P10 representation sent by the petitioner directly to the

Enquiry Officer. The fact remains that, despite the

adjournment of the enquiry by two or three times, the

petitioner did not take part in the enquiry and chose to

remain abroad, which led to finalisation of the domestic

enquiry after declaring him ex-parte.

6. On submission of the enquiry report (Exhibit P12),

copy of the same was forwarded by the first respondent to

the petitioner asking for his explanation, if any, particularly

with regard to the finding of guilt arrived at. In response to

this, the petitioner submitted Exhibit P13 reply which was

O.P. No. 21158 of 2000 -:5:-

considered by the first respondent and after analysing the

facts, circumstances and evidence, the disciplinary

authority came to the conclusion that conduct of the

enquiry was very much valid and proper and that the

charge levelled against the delinquent employee was

proved. It was observed by the disciplinary authority that

the misconduct committed by the delinquent officer was

very much serious, particularly when the company was

facing grave financial difficulties and facing adverse

proceedings pending before the BIFR with shortage of

manpower; whereas the petitioner was continuing on

unauthorised absence, reaping his virtues abroad and hence

that the petitioner was very much liable to be dismissed

from the service on the basis of the proven misconduct.

However, as stated in Exhibit P14 order, instead of

dismissal, the punishment of removal from the service alone

was imposed on the petitioner, taking a lenient view.

O.P. No. 21158 of 2000 -:6:-

7. The case of the petitioner, placing reliance on

Exhibit P4 is that the leave without allowance, which can be

sanctioned as provided under Appendix XIIA , part I, KSR,

has been enhanced from 15 years to 20 years and hence

that the application preferred by the petitioner seeking for

further extension of the leave (after the second extension

granted vide Exhibit P3) was perfectly in accordance with

the provisions of law. It is also contended by the petitioner

that the first respondent being a Government company,

provisions of the KSR are very much applicable to the said

company.

8. The first respondent company has filed counter

affidavit vehemently disputing the above averments,

asserting that the leave rules stipulated by the Government

are not at all applicable to the first respondent company. It

is also pointed out that the company is having its own rules

and norms to govern the service conditions and that the

O.P. No. 21158 of 2000 -:7:-

provisions of KSR are totally alien with respect to the

service in the company.

9. It is trite law that the first respondent which

admittedly is a company incorporated under the relevant

provisions of the Companies Act, is a separate legal entity

and hence provisions of the KSR are not applicable, though

it is a Government company; unless adopted by the Board of

Directors. There is no case for the petitioner that the Board

of Directors of the first respondent company has adopted

the KSR and no reference is made to any such resolution or

other relevant proceedings.

10. The contention of the petitioner that the first

respondent, if at all having any doubt, ought to have

referred the matter for decision of the Government as done

earlier is also stated as not correct. The first respondent

has asserted in the counter affidavit that there was no such

instance making the respondent company to refer any

O.P. No. 21158 of 2000 -:8:-

application for leave for consideration of the Government

and it was the petitioner who, while remaining abroad even

after rejection of the second spell of leave vide Exhibit P2,

moved the Government. The Government requested the first

respondent company to consider the petitioner’s application

as “a special case”, which in turn, led to Exhibit P3,

extending the leave by another five years from 15-9-1994,

though, as per the rules of the company, the permissible

period of leave for taking up employment abroad was only

five years.

11. It is settled law that leave cannot be claimed, as a

matter of right, and as such the petitioner could not have

continued abroad, even after expiry of the leave granted to

him. Over staying beyond the sanctioned extent of leave is a

a clear instance of misconduct. The Apex Court has made it

clear that the scope of domestic enquiry in such

circumstances will stand rather confined to the

O.P. No. 21158 of 2000 -:9:-

admitted/undisputed facts as no detailed fact adjudication

process is necessitated as held in CHAIRMAN &

MANAGING DIRECTOR, V.S.P. & OTHERS v.

GOPARAJU SRI PRABHAKARA HARI BABU [(2008) 5

SCC 569].

12. In the instant case, the respondent company after

issuing Exhibit P6 charge sheet and on finding that the

explanation of the petitioner is not satisfactory, proceeded

to hold a domestic enquiry as borne by Exhibit P7 memo,

which led to Exhibit P10 enquiry report. It is true that the

enquiry happened to be finalised ex-parte; but the

allegation of the petitioner that there was violation of the

principles of natural justice cannot be held as correct or

sustainable in the light of the admitted/undisputed factual

position as to a specific circumstances and conditions under

which the leave was granted; the admission made by the

petitioner that he was continuing abroad even after the

expiry of leave granted vide Exhibit P3 and that he would

O.P. No. 21158 of 2000 -:10:-

have to incur huge expenses for participating in the

enquiry. Equally wrong and unsustainable is the contention

of the petitioner as to the alleged violation of natural justice

for not supplying copies of the deposition of the witnesses

and documents, which in fact, has been controverted by the

first respondent in paragraph 7 of their counter affidavit,

asserting that copies of the deposition of witnesses and

documents were very much furnished to the petitioner. The

said assertion in the counter affidavit stands intact, in so far

as the petitioner has not chosen to file any reply affidavit, to

rebut the same.

13. As observed already, the petitioner being an

employee of the first respondent company, is not governed

by the provisions of KSR and the leave Rules as contained in

Appendix XII A, Part I, KSR. For the very same reason,

Exhibit P5 Government Order is not at all applicable to him.

The petitioner admittedly having not chosen to report for

duty on expiry of the leave sanctioned vide Exhibit P3 and

O.P. No. 21158 of 2000 -:11:-

was admittedly remaining abroad without even

participating in the enquiry, the finding and reasoning given

by the Enquiry Officer in Exhibit P12 report is not liable to

be intercepted in any manner. There is absolutely no

violation of any known principles of natural justice. The

petitioner, without any regard to the organisational interest,

was more eager to stay abroad in pursuit of his fortunes.

The punishment of removal from the service ordered by the

first respondent can never be considered as

disproportionate to the gravity of the proven misconduct

and hence, no interference is called for.

The writ petition fails and the same is dismissed

accordingly. No costs.

P.R.RAMACHANDRA MENON,
JUDGE.

skr