IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16894 of 2010(S)
1. THE CHAIRMAN & MANAGING DIRECTOR,
... Petitioner
2. THE GENERAL MANAGER,
Vs
1. INDUCHOODAN C.G.,
... Respondent
For Petitioner :SRI.E.K.MADHAVAN
For Respondent :SRI.A.T.ANILKUMAR
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY
Dated :18/01/2011
O R D E R
C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ.C.R.
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WP(C) No.16894 of 2010
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Dated, this the 18th day of January, 2011
J U D G M E N T
Ramachandran Nair, J.
This Writ Petition is filed challenging the order of the Central
Administrative Tribunal directing the petitioners to accept
respondent’s resignation and give him terminal benefits.
2. We have heard learned Standing Counsel for the
petitioners and learned counsel appearing for the respondent.
3. The respondent, while serving as Production Manager,
applied for leave on 09/06/2008 to go abroad for a period of one
month from 17/06/2008. Even though leave application was
submitted on 09/06/2008, the respondent was not given any
communication until 17/06/2008, and therefore he left for Saudi
Arabia to visit his brother there. The petitioners’ case is that the
leave application submitted was defective in as much as it was not
in the prescribed form and did not contain all the details, and
therefore on 23/06/2008 they sent a telegraphic communication of
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the same to the respondent. The respondent thereafter submitted
another leave application on 28/06/2008 for one year special leave
to take up employment abroad. Since no reply was received, the
respondent wrote another letter on 14/07/2008 repeating same
request with an alternate suggestion to the Company that if leave
available in credit or one year long leave cannot be granted, then his
request for leave shall be treated as a letter of resignation, so that
he will be relieved from duty. The request for leave was rejected by
the petitioners on 23/07/2008 and instead of granting an
opportunity to the respondent to return and join for duty, the
petitioners initiated disciplinary proceedings for unauthorised leave.
This was done vide letter dated 14/08/2008. The respondent
challenged the disciplinary proceedings before the CAT by filing an
OA, which was allowed by the CAT holding that there is no act of
indiscipline on the part of the respondent warranting disciplinary
action. The Tribunal clearly found that even before the issuance of
charge memo, the respondent vide letter dated 14/07/2008
tendered resignation, which according to him, was an option availed
by him in the absence of leave being granted by the petitioners, so
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that he could be relieved from the service.
4. After hearing both sides and after going through the
records and the order of the Tribunal, we do not find any merit in
the allegation of the petitioners that the respondent has committed
an act of indiscipline warranting action against him. Admittedly the
respondent was in service for more than 20 years and he was the
Unit Head prior to applying for leave for one month to go abroad.
The respondent has a specific case that he was victimised for his
disagreement with the Management for outsourcing repair of certain
equipments. Learned Standing Counsel for the petitioners has
disputed this. However, we do not propose to go into this question
because irrespective of whether there is any motive for the
petitioners to proceed against the respondent or not, facts clearly
establish that the respondent was not involved in any misconduct
and he could not be proceeded against for leaving abroad on
17/06/2008 without any express orders granting leave by the
petitioners because leave application was submitted well in advance
on 09/06/2008. If the petitioners declined the leave application
within one week and communicated the same to the respondent any
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date prior to 17/06/2008, he obviously would not have gone
abroad. In our view, when an application for leave is submitted that
too by a Senior Officer of the Company for going abroad for a
month, and if no reply is received within a reasonable time, there is
nothing wrong in assuming that the Company had no objection in
granting the leave. Further it is seen from subsequent developments
that when the respondent applied for long leave with a request that
if the Company cannot grant leave he may be allowed to resign from
the Company. In our view, the option available to the Company was
either to grant him leave in terms of the request or to allow him to
resign from the service. The Tribunal rightly held that the
developments above stated did not give rise to a case for
disciplinary action against a senior officer of the Company, who
served the Company for a period of more than 20 years without any
complaint whatsoever.
Learned counsel for the respondent submitted that inspite of
the elapse of two years, the post remains vacant and the respondent
is willing to rejoin and work with the Company. It is worthwhile for
the Management to consider whether the respondent could be
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inducted back and allowed to serve the Company because he has
served the Company over two decades to the satisfaction of the
Management. However, we do not want to issue any direction to the
Company in this regard because the same does not arise from the
order of the CAT. It is up to the Management to keep in mind the
interest of the Company and decide whether an experienced person
should be restored to the Office for the benefit of the Company
itself. Leaving this option to the Company, we direct the Company,
in the alternate, to implement the Tribunal’s order without any delay
if the respondent cannot be absorbed in service again.
This Writ Petition is disposed of as above.
(C.N.RAMACHANDRAN NAIR, JUDGE)
(BHABANI PRASAD RAY, JUDGE)
jg