BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/07/2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.(MD)No.3105 of 2006 V.Sekar, represented by Power of Attorney N.Vasanthakumar. ..Petitioner Vs Madurai Kamaraj University, represented by its Registrar, Madurai. ..Respondent. Prayer Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records relating to the respondent university in their letter Ref.No.Esst.II/T4/2005, dated 26.5.2005 and to quash the same. !For Petitioner ... Mr.V.Singan for M/s.G.R.Swaminathan ^For Respondent ... M/s.R.Janakiramulu :ORDER
The petitioner has invoked the writ jurisdiction of this Court with a
prayer for issuance of a writ in the nature of Certiorari to quash the order,
dated 26.05.2005,terminating the service w.e.f.01.07.2001.
2. The facts which are not disputed are that while the petitioner was
working as Professor with the Madurai Kamaraj University in the year 2001, the
petitioner applied for study leave for research project.
3. The petitioner was sanctioned sabbatical leave from 01.07.2001 to
31.12.2001. The petitioner did not report back for duty on expiry of the leave,
but joined as Visiting Professor in Marshall University, U.S.A.
4. Keeping in view the assignment, his request for retaining the lien on
the post held by him was accepted. The University agreed to retain the lien
for two years. from 01.07.2001 to 30.06.2003.
5. The petitioner was informed that as the petitioner had joined new
employer, he was liable to refund a sum of Rs.1,69,338/- which was sanctioned to
him towards the sabbatical leave salary from 01.07.2001 to 31.12.2001.
6. The lien was retained with effect from 01.07.2001, and vide order dated
03.08.2002 it was made clear to the petitioner that his sabbatical leave stood
cancelled.
7. The petitioner again made a request for granting one year leave, but,
also authorised the University to deduct a sum of Rs.1,69,338/- from his
Provident Fund Account, to refund the leave salary.
8. In response to the letter written by the petitioner, the University
vide letter, dated 13.08.2004 informed the petitioner that his lien could not
be extended any further. The petitioner was directed to join the University
immediately failing which his services were liable to be terminated under the
rules. The petitioner did not join but again made a request for extension of
leave.
9. The petitioner was issued with a show-cause notice on 15.10.2004
calling for his explanation, as to why he be not be removed from the service of
University, for having failed to join duty during the lien period.
10. In response to the show-cause notice, the petitioner again reiterated,
that he was entitled to avail leave upto five years as done in other cases,
whereas the petitioner had availed leave only for a period of three years.
11. After the receipt of letter from the petitioner, which was not even
signed by him, the impugned order was passed terminating the service of the
petitioner w.e.f.01.07.2001.
12. The learned counsel for the petitioner vehemently contended that the
impugned order of termination cannot be sustained, as the University had no
power to terminate the service of the petitioner, as under the Madurai Kamaraj
University Act, 1965, the Syndicate of the University has only the power to
suspend and dismiss the university lecturers, university Readers, University
Professors and the Teachers. There is no power vested with the syndicate to
terminate the service of an employee.
13. It is also the contention of the learned counsel for the petitioner
that once the petitioner had offered to resign/seek voluntary retirement,there
is no jurisdiction with the University to terminate the service of the
petitioner.
14. The contentions raised by learned counsel for the petitioner, cannot
be accepted, the offer of resignation/voluntary retirement, cannot bar an
employer to dismiss/terminate the service of an employee. Similarly, the power
to dismiss under statute will include power to terminate being lesser
punishment.
15. However the petition deserve to succeed for the reasons hereinafter
recorded.
16. The admitted facts are that leave sanctioned to the petitioner was
cancelled in the year 2002 and the order was accepted by the petitioner, and a
request was made for retaining the lien. The Petitioner even agreed to repay
the leave salary by authorising the University to deduct it from his Provident
Fund Account.
17. The employee can maintain lien on the post, under the rules/ or under
the orders of the employer.
18. On expiry of the period of lien, it can only be terminated, and not
the service.
19. The order impugned therefore at best be taken as an order of
termination of lien, as admittedly, the petitioner is working with the another
employer and the period of lien stands expired.
20. After the expiry of lien, the employee cannot claim to join back in
service.
21. The petitioner could not be treated to be an employee of the
University as he would deem to have left service of the University with their
permission to join the another employer when his request to return lien was
accepted. On expiry of lien period, his relationship with the University stood
terminated.
22. The order of termination therefore can be only treated as termination
of lien and the petitioner will be entitled to all the benefits, to which he is
entitled for the service rendered by him from the date of joining till
01.07.2011. The University can deduct a sum of Rs.1,69,338/-(Rupees one lakh
sixty nine thousand three hundred and thirty eight only) from the retiral
benefits due to the petitioner, under the authority given by petitioner while
requesting for extension of lien period.
23. The Writ Petition is disposed of in above terms. No costs.
vsn
To
The Registrar,
Madurai Kamaraj University,
Madurai.