JUDGMENT
Ar. Lakshmanan, J.
1. The Original Petition, O.P.152 of 1999, was filed by the petitioner Sri P.I. Sankaranarayanan, against the Spices Board to quash Ext.P2 order dated July 21, 1998 of the Chairman of the Spices Board and Ext.P4 order dated December 2, 1998 passed by the Government of India, Ministry of Commerce. Since both the Original Petition and the writ appeal raise common questions and are filed by the same petitioner/appellant against the very same respondents, both matters were taken together for final disposal by consent of both parties.
2. Disciplinary proceedings under Regulation 10 of the Spices Board Services (Classification, Control and Appeal) Regulations was instituted against the petitioner as per Memo dated November 6, 1996. The charges levelled against him in brief is that on his reporting for duty on February 20, 1991 at tbe Regional Office of the Board at Saklespur, Karnataka, he proceeded on leave with effect from February 21, 1991 and thereafter he neither reported back for duty nor submitted any application for leave after the expiry of the leave sanctioned to him upto August 31, 1995. Thus, it was alleged that he overstayed his leave from August 31, -1995 onwards and absented from duty unauthorisedly from September 1, 1995 onwards. It is also the case of the Board that during the said period when he was transferred and posted at the Zonal Office at Calicut, he did not report for duty there also; and by the above act of the petitioner, on wilful absence, overstaying of sanctioned leave and remaining unauthorisedly absent from duty with effect from September 1, 1995 onwards, he exhibited lack of devotion to duty and has conducted himself in a manner unbecoming of an employee of the Board, violating Rule 3(1)(ii) & (iii) of the Central Civil Services (Conduct) Rules, 1964.
3. The petitioner denied the charges levelled against him. A retired District Judge was appointed as the Enquiry Officer to enquire into the charges. The Enquiry Officer, after the enquiry, gave a finding that the petitioner has overstayed his leave from August 31, 1995 onwards and that he can only be treated as unauthorisedly absent from duty from September 1, 1995 onwards and that he, because of his refusal to join duty at the transferred station and post, his overstaying of the sanctioned leave and his unauthorised absence, has not maintained devotion to duty and has acted in a manner which is unbecoming of a Government Servant. The Inquiry Officer has also stated that the charges framed against the petitioner have been proved. A copy of the report of enquiry was sent to the petitioner on November 7, 1997. By memo dated November 24, 1997 he was given an opportunity of making such submission as to why the finding of the Inquiry Officer cannot be accepted and further action taken on the basis of the findings. The petitioner did not submit any representation. The Chairman of the Board, therefore, provisionally came to the conclusion that the petitioner was not a fit person to be retained in the services of the Board and penalty of dismissal from service was proposed to be imposed on him. An opportunity was given to him to make any representation on the penalty proposed. The petitioner did not submit any representation within the time prescribed. Therefore, the Chairman of the Board, after considering the records of the enquiry, came to the conclusion that the petitioner overstayed the sanctioned leave, had been unauthorisedly absent from duty from September 1, 1995 onwards and had refused to report for duty and by the above acts the petitioner had exhibited lack of devotion to duty and had conducted himself in a manner unbecoming of an employee of the Spices Board. Accordingly, the penalty of dismissal from service was imposed on the petitioner under Ext.P2.
4, An appeal was filed by the petitioner against the order of the Chairman of the Spices Board dated July 21, 1998 dismissing the petitioner. The said appeal was disposed of by the Government of India, Ministry of Commerce, by Ext.P4 order dated December 2, 1998. The appellate authority came to conclusion that the petitioner disobeyed the orders of not only the appointing authority but also the appellate authority and that his unauthorised absence further compounded his transgressions and attracted a major penalty! The findings of the appellate authority are:
“a) The orders of dismissal passed by Chairman, Spices Board are not violative of the rules of Natural Justice or the Rules and Regulations of the Spices Board.
b) The Appellant having been posted to Saklespur proceeded on leave immediately after joining and was away for five years.
c) Upon transfer to Calicut, the Appellant did not join duty at that station.
d) The Appellant has remained absent from duty since August 31, 1995 neither seeking permission nor keeping the Chairman, Spices Board informed.
e) In an order dated November 1, 1998 passed in compliance with the orders of the Kerala High Court in WP 7460/92 this Appellate authority had directed the 1 appellant to first join duty, demonstrate his willingness to work and then seek transfer, but the Appellant has failed to abide by these orders.”
The petitioner therefore, filed the Original Petition to quash Exts. P2 and P4 orders and also to declare that he is entitled to be treated as if he were in service from September 1, 1995 onwards with all consequential benefits like arrears of pay, etc. A further mandamus is also sought for by the petitioner, directing the respondents to admit the petitioner to duty. According to the petitioner, the charges levelled against him are baseless and are against the true facts. It is submitted that on the expiry of the leave on August 31, 1995, the petitioner appeared before the first respondent on September 1, 1995 for joining duty, which date was declared a holiday. September 2, 1995 was a Saturday, which also was a holiday for the Board and September 3, 1995 being a Sunday, the petitioner could report for duty again only on September 4, 1995 and when he appeared before the first respondent seeking permission to join duty, he was not allowed to do so. According to Mr. Divakaran Nair, learned counsel for the petitioner, the petitioner has the statutory right to continue in the post of Assistant Publication Officer in the Spices Board and shifting him to the general category against his wish is illegal and, therefore, under the facts and circumstances of the case, there is no justification in levelling a charge against him that he absented himself from duty without leave from September 1, 1995 onwards. It is also submitted that the petitioner who entered service in the year 1974 and worked as Assistant Publication Officer from 1976, was dismissed from service at the age of 52 after a service of more than 22 years on the ground of not joining duty on the expiry of the leave on August 31, 1995, which allegation is falsified by Ext.P5. Therefore, Mr. Divakaran Nair contended that the dismissal of the petitioner from service is a violation of the fundamental right of the petitioner of life guaranteed under Article 21 of the Constitution of India. It is submitted that in passing Ext.P4 order the appellate authority has not considered the various grounds raised in Ext.P3 appeal memorandum. Sri Divakaran Nair also submitted that the punishment of dismissal from service awarded to the petitioner is disproportionate to the gravity of the charges levelled against the petitioner and on that ground also Exts. P2 and P4 are liable to be quashed. In support of the above contention the learned counsel for the petitioner cited the following decisions.
1. Sumindra Prasad Jain v. Commandant, C.I.S.F. ILR 1996 (1) Ker. 467
2. Ex-Constable E. V. Das v. Commandant, C.I.S.F. ILR 1996 (3) Ker. 788
3. Alil Mollah v. State of West Bengal 1996 5 SCC 369
4. B.C. Chaturvedi v. Union of India (1996-I-LLJ-1231 (SC)
5. Ram Autar Singh v. State Public Service Tribunal (1999- I-LLJ-1312)(SC)
Mr. Divakaran Nair also submitted that in the year 1987 the Cardamom Board and Spices Export Promotion Council were amalgamated and a new institution by name Spices Board was established with a provision that the officers and employees of erst-while Cardamom Board and the Spices Export Promotion Council will be deemed to be the officers of the Spices Board from February 26, 1987 and they shall hold their office or service under the Spices Board with the same designation and with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to them in the service of the Cardamom Board or Spices Export Promotion Council as the case may be. It is, therefore, submitted that the petitioner has the right to continue to hold the post of Assistant Publication Officer in the Publicity Department of the Spices Board and he cannot be removed against his will.
5. The Spices Board has filed a detailed counter affidavit along with Ext.R1 (a) to R1 (za). Mr. T.P. Kelu Nambiar, Senior Advocate appearing on behalf of the Board submitted that the petitioner had committed serious misconduct in relation to the publication of a magazine, for which he was issued a memorandum of charges on November 29, 1988 and on enquiry he was found guilty of the charges. Even though a show cause notice was issued for his removal from service, the then Chairman of the Board, taking into consideration the representation of the petitioner, purely on humanitarian grounds, by order dated November 21, 1989, imposed on the petitioner the penalty of reduction to the lower post of Assistant in the pay scale of Rs. 1400-2600, until found fit after a period of one year from December 1, 1989 to be restored to the higher post of Junior Section Officer. The petitioner did not challenge the said order and continued to function as Assistant for one year. Thereupon, the then Chairman of the Board took a lenient view and again promoted the petitioner as Junior Section Officer and posted him to Saklespur in Karn&taka by order dated February 1, 1991, which was challenged by the petitioner in O.P. No. 1565 of 1991 before this Court and that was dismissed by judgment dated February 13, 1991. On February 20, 1991 the petitioner joined duty as Junior Section Officer at Saklespur and proceeded on leave on February 21, 1991. He filed W.A. No. 482 of 1991 before this Court against the judgment in O. P. 1565 of 1991, which was also dismissed by this Court by Ext. R1(e) judgment dated July 24, 1991. It is seen from the counter affidavit that the petitioner had filed a few other writ petitions, which were also disposed of by this Court. It is the case of the respondent that from February 21, 1991 the petitioner continued to be on leave and while he was on leave, he was given a transfer to the Zonal Office of the Board at Calicut which is nearer to his native place. But the petitioner did not join there and continued to be on leave till August 31, 1995. Even thereafter, he did not file any application for leave and was absent. Petitioner also filed O.P. No. 919 of 1998 challenging the order dated November 1, 1997 of the Government of India taking a new contention that his promotion as Junior Section Officer was against his will and is a category change. Mr. Kelu Nambiar pointed out that the petitioner had no such case in any of the earlier proceedings before the Government of India or in the three original Petitions filed by him before this Court, The various statements made in the Original Petition were denied by the respondent as not fully correct. At the time of hearing our attention was also invited by the learned Senior Counsel for the Board to the following exhibits, viz. Exts. R1(e), R1(q), R1(s), R1(t), R1(u), and R1(y) in support of their contention that the petitioner alone is at fault and that he took an adamant stand that he will join duty only at the Head Office at Cochin and continued to be absent without applying for leave.
6. We have carefully considered the rival submissions made by counsel on both sides and also perused the exhibits filed by both parties. It is not in dispute that the petitioner was accommodated in the post of Lower Division Clerk on sympathetic grounds on the basis of Ext. R1(a) representation filed by him. At the time of his appointment as Lower Division Clerk, the post of Assistant Publication Officer was not in existence as the same was created only in 1976. Mr. Divakaran Nair submitted that talent in the literary field was an essential qualification for the post of Assistant Publication Officer, which is denied by the first respondent as not correct. Likewise, the respondents have denied the statements in paragraph 4 of the Original Petition and stated that Ext.P1 was issued on the basis of Section 6(1)(e) of the Spices Board Act, 1986 and the conditions contained therein was to be in force only till the remuneration and other conditions of service of the employees were duly altered by the Board. It is submitted that subsequently the Board framed the Spices Board Recruitment Rules in 1988, in which the post of Assistant Publication Officer was made a feeder category for promotion to the post of Assistant Superintendent and in accordance with the same the petitioner was promoted as Assistant Superintendent. Therefore, it is submitted that the petitioner cannot rely on Ext.P1 to contend that by virtue of the same he is entitled to continue as Assistant Publication Officer, especially since he accepted the promotion as Assistant Superintendent. It is further submitted that after the petitioner was promoted as Assistant Superintendent, the post of Assistant Publication Officer was also abolished. The post of Assistant Superintendent was, thereafter, redesignated as Junior Section Officer. In view of the above, we find that the allegation that the petitioner was shifted illegally from the Publication Department against his wish is totally false, and that there was no shifting, but it was only promotion to a higher post of Assistant Superintendent. The petitioner readily accepted the same and worked in the post drawing emoluments attached to the said post. Thereafter he was proceeded against for misconduct and reverted as Assistant and after one year promoted again as Junior Section Officer and posted to Saklespur, which was challenged by the petitioner, unsuccessfully, before this Court. The contention of the petitioner that he was forced to take leave cannot be accepted as it is seen from the records that he applied for leave on his own and nobody compelled him to take leave. The petitioner, in fact, conveniently omitted to mention the Original Petitions filed by him, which culminated in Ext. R1(e) judgment in the present Original Petition. Our attention was drawn to the two petitions filed and referred to by the petitioner arid submitted that the petitioner never challenged the validity of his shifting from the Publicity Department, but, on the other hand, what he prayed for was to direct the Spices Board, (a) to promote the petitioner as Publication Officer or Assistant Director (Publications), (b) to revise the petitioner’s pay to the next higher grade with effect from 1982 and (c) to permit the petitioner to continue to discharge the work relating to editing of the Malayalam Magazine. There was no mention of any shifting from the Publicity Department to the General category as sought to be made by the petitioner now in the present Original Petition.
7. We shall now refer to the exhibits cited by Mr. Kelu Nambiar. We have already referred to Ext. R1(e), the judgment of this Court in W.A. No. 486 of 1991 dated July 24, 1991, which, in our opinion, is the answer to the allegation of the petitioner with regard to category change. We have already referred to Ext. P5 dated September 4, 1995. Our attention was drawn to Ext. R1(y) to show that the petitioner was informed earlier on June 30, 1995 that his place of posting was at Calicut and therefore the question of his joining duty at the Head Office did not arise. It is useful to reproduce the same.
“No. Al/2(41)/76/882 Dated August 17, 1995.
Memorandum
Sub: Request for joining duty by Shri P.I. Sahkaranarayanan, Junior Section Officer -reg
Ref: His request dated August 14, 1995.
Shri P.I. Sankaranarayanan, Junior Section Officer is informed that as his place of posting is at Calicut, the question of his joining duty in Head Office does not arise. He was informed about this earlier also vide this Office Order dated June 30, 1995. Under the circumstances, his submitting a ‘Duty Joining Report’ in Head Office is considered improper and he is warned against such practices in future.
Sd/-
(V.K.K. Nair)
Secretary.
To Shri P.I. Sankaranarayanan
(Junior Section Officer, Spices Board)
Navamana, Vennala,
Cochin – 682 028.
Copy to: 1) the Jt. Director, Spices Board, Saklespur.
2) Accounts Section
3) O/c.”
A reading of the above will clearly establish that the case put forward by the petitioner based on Ext.P5 that he reported for duty at Cochin on September 4, 1995 and that he was not allowed to join duty etc. are false. Ext.R1(s) is the letter sent by the petitioner to the Chairman of the Spices Board dated August 24, 1992 whereby he requested permission to join duty at Cochin on August 31, 1992. Ext.R1(t) dated September 1, 1992 sent by the Deputy Director (Administration) of the Board to the petitioner will reveal that the petitioner was informed that his request for permission to join duty at the Head Office had not been acceded to by the Board. Ext.R1(u) letter dated March 17, 1993 sent by the petitioner to the Chairman of the Board by which he again sought permission to join duty in the Publicity Department in the Head Office of the Board also would go to show that he was well aware of the rejection of his earlier requests for such permission had been rejected by the Board.
8. From the above it is evident that the petitioner has come to his Court with unclean hands and he has suppressed important and material facts from the purview of this Court which has been brought to light by the respondents by filing the counter affidavit supported by necessary documents. In our opinion, there is no merit in any of the grounds raised by the petitioner in the Original Petition. Ext.P2 order is not in any way illegal or irregular or improper. As already noticed, the petitioner was apprised several times of the fact that his place of posting was at Calicut and hence he could not join duty at Cochin. Therefore, the contention of the petitioner that he reported for duty at Cochin on September 4, 1995 but was not allowed to join duty is totally without merits and is intended to mislead this Court into thinking that the petitioner was entitled to join at Cochin, but was prevented by the officials of the Board from doing so. Simply because the petitioner reported for duty at Cochin instead of his place of posting at Calicut, he cannot claim that he has not unauthorisedly absented from duty. An employee like the petitioner cannot, on expiry of the leave availed of by him, insist that he will join duty only at the place of his choice. In any event, as on September 1, 1995, the post at Calicut to which he was posted was lying vacant and there was no impediment in his joining there.
9. The contention raised by the learned counsel for the petitioner that the punishment of dismissal from service is disproportionate to the misconduct proved against him, in our opinion, does not merit acceptance. It is seen from the records that the petitioner had been proceeded against and found guilty of serious misconduct. Even though the punishment of dismissal from service was proposed, on a consideration of the representation submitted by the petitioner sympathetically by the then Chairman of the Board, the punishment of reversion to the cadre of Lower Division Clerk was imposed on him. It is also to be noted that even after the initiation of disciplinary proceedings which is the subject matter of these proceedings, the petitioner was not prepared to mend his ways and join duty at the place of his posting. Instead, he took an adamant stand that he will join duty only in the Head Office of the Board at Cochin. The recalcitrant attitude of the petitioner makes him eminently deserving the punishment of dismissal from service. In fact, the Board has given the petitioner sufficient opportunity to mend his ways and make himself useful to the Board. But the petitioner took an adamant and indisciplined attitude and was waging a legal battle against the Board by filing several writ petitions in this Court. Such a recalcitrant employee, in our considered opinion is not entitled to any leniency in the matter of punishment for proved misconduct, which is, in any event, serious in nature. Both the Original Authority and the Appellate Authority have considered the matter on merit. In view of our conclusion that the petitioner deserved the punishment of dismissal from service, by reason of the misconduct proved against him, there is no need to refer to the decisions cited by Mr. Divakaran Nair on the contention that the punishment is disproportionate to the charges levelled against the petitioner.
10. The case on hand is the case of an employee who has abandoned his service. It is true that under common law, as held by the Supreme Court in Buckingham & Carnatic Co. Ltd. v. Venkatiah (1963-I-LLJ-638) an inference that an employee has abandoned or relinquished service, is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. In the instant case, the intention of the petitioner to abandon his service has been very clearly proved by voluminous documents produced by the respondent Board. In the decision in G. T. Lad v. Chemicals & Fibres India Ltd. (1979-I-LLJ-257), the Supreme Court held that whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case. The Supreme Court in the above decision has referred to its earlier decision reported in (1963- II-LLJ-638) (supra). It has been clearly established in this case that the abandonment of service by the petitioner is total and complete. The petitioner has given up his duties and has exhibited an intention not to resume the same, inspite of sufficient opportunities given to him by the respondent Board. Therefore, it can be very easily construed that there has been voluntary abandonment of service in the present case, which we were able to determine in the light of the documents produced in this case and in the light of the surrounding circumstances.
11. In view of the above, we are of the opinion that the petitioner is not entitled to any of the reliefs sought for in the Original Petition. The Original Petition is accordingly dismissed. However, taking a lenient view we award no costs, even though the petitioner made the respondent to spend money on vexatious litigation.
12. The Writ Appeal W.A. No. 1626 of 1988 is directed against the judgment of C.S. rAJAN J. in O.P. No. 919 of 1998 dated July 21, 1998. The said Original Petition was filed seeking to quash Exts. P1, P3 and P8 to the extent of the petitioners rights to be retained as an Assistant Publication Officer was interfered with. It was contended that the respondent Board was not empowered to -change the category of employment of the petitioner against his will or to his disadvantage and, therefore, the petitioner was entitled to emoluments and other service benefits from the date of Ext.P7. A detailed counter affidavit has been filed by Board in the Original Petition as well as in C.M.P. No. 4359 of 1998 along with annexures. The Board submitted that the petitioner never wanted to decline the promotion given to him, but his request under Ext.P2 was only for a revision of his pay with retrospective effect. It is also stated that the grievances projected by the petitioner are baseless and imaginary and that the only post to which the petitioner was qualified for promotion as per the recruitment rules was that of Junior Section Officer, which was given to him and he accepted the same, worked in the post and drew the emoluments attached to the post. It is submitted that the petitioner cannot draw the salary of a Junior Section Officer and insist that he will work only as Assistant Publication Officer. The contentions raised in the counter affidavit filed in O.P. No. 152 of 1999 have also been reiterated in the counter affidavit in O.P. No. 919 of 1998. It is also
submitted that as the petitioner does not have any specialised or technical qualification, whatsoever, and as his job was not of a specialised nature, the contention regarding the change of the nature of work of the petitioner is devoid of any merit.
13. The learned single Judge, on an elaborate consideration of the matter, dismissed the writ petition as devoid of merits. We are of the opinion that the respondent Board cannot create posts or grades to suit a particular employee. The petitioner was given promotion in accordance with the rules, which he accepted. Having accepted the promotion, he cannot claim that he will work only in the channel of his choice alone. We, therefore, reject the contention of the appellant/petitioner regarding violation of fundamental right as absolutely unfounded. As already noticed, the appellant did not seek permission to join duty at his place of posting under Ext.P7 in O.P. No. 919 of 1998. As already noticed, he was very adamant that he would join duty only at the Head Office of the Board at Cochin, with scant respect for authority. The action of the respondent Board is, therefore, perfectly correct and valid and we find that the appellant/petitioner is not entitled to any of the reliefs prayed for in the Original Petition as also in the writ appeal. This apart, in view of the dismissal of the writ petition, O.P. No. 152 of 1999, the prayer in O.P. No. 919 of 1998, reiterated in W.A. No. 1626 of 1998 have also become infructuous.
In view of the above W.A. No. 1626 of 1998 is also liable to be dismissed, and we do so. There will be no order as to costs.