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.
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O.P. No. 21158 of 2000
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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