Kerala High Court
Senior Divisional Manager, Lic Of India vs Mini K.T on 7 October, 2025
WA Nos.67/2018 & 511/2018 1
2025:KER:73591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY,THE 7TH DAY OF OCTOBER 2025/15TH ASWINA, 1947
WA NO. 67 OF 2018
AGAINST THE JUDGMENT DATED 21.12.2017 IN WPC
NO.22007 OF 2012 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 3
1 SENIOR DIVISIONAL MANAGER (DISCIPLINARY
AUTHORITY), LIC OF INDIA,
LIFE INSURANCE CORPORATION OF INDIA,
DIVISIONAL OFFICE, JEEVAN PRAKASH,
P.B.NO.177,
KOZHIKODE-673001.
2 THE ZONAL MANAGER/EXECUTIVE DIRECTOR
PERSONNEL,
LIFE INSURANCE CORPORATION OF INDIA, ZONAL
OFFICE, LIC BUILDING, MOUNT ROAD,
CHENNAI-600002.
3 THE CHAIRMAN,
LIFE INSURANCE CORPORATION OF INDIA, YOGA
KSHEMA, JEEVAN BHIMA MARG, P.B.NO.19953,
MUMBAI-400021, REPRESENTED BY ITS CHAIRMAN.
BY ADV SHRI.R.S.KALKURA
WA Nos.67/2018 & 511/2018 2
2025:KER:73591
RESPONDENTS-PETITIONER AND 4TH RESPONDENT IN W.P
1 MINI K.T.,
D/O. KUNHIANNANDAN NAIR, RESIDING AT A4,
POOJA GARDEN, THRIPUNITHURA, ERNAKULAM-
682301.
2 UNION OF INDIA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS, GOVERNMENT OF INDIA, NEW DELHI-
110001.
BY ADVS.
SRI.AMAL GEORGE
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF
INDIA
SHRI.MANU GEORGE KURUVILLA
SHRI.PARAMESWARAN S.D.
SRI.GEORGE THOMAS (MEVADA)(SR.)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
26.09.2025, ALONG WITH WA.511/2018, THE COURT ON
07.10.2025 DELIVERED THE FOLLOWING:
WA Nos.67/2018 & 511/2018 3
2025:KER:73591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY,THE 7TH DAY OF OCTOBER 2025/15TH ASWINA, 1947
WA NO. 511 OF 2018
AGAINST THE JUDGMENT DATED 21.12.2017 IN WPC
NO.22007 OF 2012 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER
MINI K.T.,
D/O. LATE K. KUNHIANANDAN NAIR, AGED 49
YEARS, FORMERLY RESIDING AT A4, POOJA
GARDEN, P.O. THRIPUNITHURA, ERNAKULAM-
682301. NOW RESIDING AT NAVANEETHAM, NEAR
KSEB SUB STATION, CHEVAYOOUR P.O.,
KOZHIKODE-17
BY ADVS.
SRI.AMAL GEORGE
SHRI.MANU GEORGE KURUVILLA
SHRI.PARAMESWARAN S.D.
SRI.GEORGE THOMAS (MEVADA)(SR.)
RESPONDENTS/RESPONDENTS
1 SENIOR DIVISIONAL MANAGER (DISCIPLINARY
AUTHORITY),
LIFE INSURANCE CORPORATION OF INDIA,
DIVISIONAL OFFICE, JEEVAN PRAKASH,
P.B.NO.177,
KOZHIKODE-673001
WA Nos.67/2018 & 511/2018 4
2025:KER:73591
2 THE ZONAL MANAGER/EXECUTIVE DIRECTOR
(PERSONNEL),
LIFE INSURANCE CORPORATION OF INDIA, ZONAL
OFFICE, LIC BUILDING, MOUNT ROAD, CHENNAI-
600002
3 THE CHAIRMAN, LIFE INSURANCE CORPORATION OF
INDIA,
YOGA KSHEMA JEEVAN BHIMA MARG,
P.B.NO.19953, MUMBAI-400021
4 UNION OF INDIA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS, GOVERMENT OF INDIA, NEW DELHI-
110001
BY ADV SHRI.R.S.KALKURA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
26.09.2025, ALONG WITH WA.67/2018, THE COURT ON
07.10.2025 DELIVERED THE FOLLOWING:
WA Nos.67/2018 & 511/2018 5
2025:KER:73591
JUDGMENT
Syam Kumar V.M., J.
These Writ Appeals arise from a common judgment dated 21.12.2017 rendered by the learned Single Judge in W.P(C)No. 22007 of 2012. While W.A.No.67 of 2018 is filed by the respondent in the Writ Petition viz., the Life Insurance Corporation of India (herein after referred to as the 'LIC') challenging the direction of the learned Single Judge to reinstate the respondent employee, the other Writ Appeal viz., W.A.No.511 of 2018 has been filed by the respondent employee to the extent the learned Single Judge did not direct her reinstatement with continuity of service and with full back wages. Since both these Writ Appeals relate to the same subject matter and raise common questions for consideration, they are heard and disposed of together vide this common judgment. For convenience in referring to the parties, facts and documents, W.A. No. 67 of 2018 is taken as the lead case.
2. The short facts leading to the subject matter are as follows:-
WA Nos.67/2018 & 511/2018 6
2025:KER:73591 The respondent employee had joined the Calicut office of the LIC on 24.11.1989 as an Assistant. She had rendered service for a period of around 17 years. She has two children, the eldest of whom is a son, who suffered from a cardiac problem. The second child, a daughter born on 14.11.2001, had developed mild autism requiring treatment and constant attention. Since the treatment facilities for autistic children are very limited in Calicut, she had to take her child to Chennai in April, 2007. She had requested for grant of leave for facilitating the treatment and had also requested for transfer to Chennai. She had to remain in Chennai to continue the treatment and for the training of her child till January 2008. Since there was no progress on her transfer request, she had requested for extension of Extraordinary Leave by submitting leave applications. While so, the respondent's husband took up employment in Bahrain, where superior facilities for treating the child were available. The respondent had on 28.01.2008 requested for cancellation of the transfer request to Chennai and for the extension of Extraordinary Leave (EOL) for rendering WA Nos.67/2018 & 511/2018 7 2025:KER:73591 therapeutic support to her child. She later obtained a No Objection Certificate from the 1st appellant for applying for a passport in January 2008, and after obtaining the passport, she submitted a copy of the passport along with a covering letter dated 21.04.2008, stating that she was going abroad to join her husband for facilitating better maternal care, treatment and training of her child. She had also requested for extension of leave. Subsequently, on 21.05.2008, a letter was issued to her by the 1st appellant calling upon her to join duty immediately, to which she sent a reply reiterating her request for child care leave. However, her applications were not considered and disciplinary proceedings were initiated, pursuant to which she was terminated from service vide Ext.P21 order. Aggrieved by the same, she preferred an Appeal, which was also dismissed. The respondent employee thus moved this Court by filing W.P.(C) No.22007 of 2012 seeking the following reliefs:
"i. to call for the records leading up to Ext.P26 and quash Ext.P17 enquiry report, Ext.P21 and P26 orders by the issuance of a writ of certiorari or any other appropriate writ or order or direction.WA Nos.67/2018 & 511/2018 8
2025:KER:73591 ii. or in the alternative, declare that the punishment granted to the petitioner is grossly disproportionate to the alleged misconduct and it is awarded without considering the attenuating and mitigating circumstances.
iii. to declare that child care leave, as envisaged in Ext.P28 G.O. is applicable to all women employees in India in all establishments, including LIC .
iv. issue a writ of mandamus or any other appropriate writ, direction or order directing the 3 rd respondent to consider and pass appropriate orders on Ext.P12 representation submitted by the petitioner and to reinstate her.
v. to issue such other writs or pass such orders as this Hon'ble Court deem fit in the interests of justice."
3. The learned Single Judge, after hearing both sides and considering the counter affidavit filed by the LIC, disposed of the Writ Petition, inter alia holding that the LIC had never raised any objection to the respondent employee's travelling abroad and it knew very well that she was abroad when she was directed to report for duty. Holding that the disciplinary proceedings had been initiated against the WA Nos.67/2018 & 511/2018 9 2025:KER:73591 employee by the LIC as it had no measures to deal with the situation encountered by the employee and further observing that the incapacity of the organisation viz., LIC to deal with the woes of a woman employee cannot be capitalised to penalise her, held that the impugned orders are only to be set aside and that the employee has to be reinstated in service forthwith. As regards back wages claimed by the respondent employee, taking note of the fact that the employee had been requesting Extraordinary Leave without pay, the learned Single Judge did not order back wages. However, it was held that the employee will be entitled to reckon the broken period of service for all other service benefits. Aggrieved by the said judgment of the learned Single Judge, the appellant-LIC has preferred W.A.No.67 of 2018, and aggrieved that the learned Single Judge did not direct payment of full backwages from 23.12.2009, the respondent employee had preferred W.A.No.511 of 2018.
4. Heard Sri.R.S.Kalkura, Advocate for the appellant/LIC and Sri. George Thomas Mevada, Senior Advocate, instructed by Sri.Amal George, Advocate on WA Nos.67/2018 & 511/2018 10 2025:KER:73591 behalf of the respondent employee.
5. The learned Counsel appearing for the appellant-LIC contended that the judgment of the learned Single Judge is erroneous and unsustainable for more than one reason. Firstly, it is submitted that the learned Single Judge erred in approaching the issue at hand as one involving "a unique problem related to working women in Constitutional context of fundamental rights" as stated in the impugned judgment. The point in issue/question for consideration as framed by the learned Single Judge viz., "Can a State or its instrumentality as an employer discriminate a woman employee based on compelling family care giving responsibility?" is also termed as erroneous as it had no bearing on the issue at hand. It is submitted that the question involved was one that falls within the very limited ambit of the violation of the relevant provisions of the Life Insurance Corporation Act, 1956 and the Life Insurance Corporation of India (Staff) Rules, 1960 by the respondent employee for 'unauthorised absence' and the correctness of the disciplinary proceedings taken against her for such WA Nos.67/2018 & 511/2018 11 2025:KER:73591 violation. Admittedly, the respondent employee had left the country without permission. She had been in unauthorised absence for a period of 602 days. She had no case that she had been permitted to leave or that she had been granted leave without pay. The respondent employee had been put on notice with regard to the impending consequences of her remaining absent from duty. However, the respondent employee had consciously chosen not to act upon such notice. The respondent employee had requested Extraordinary Leave only after the original period had expired and after the disciplinary proceedings had been set in motion. Hence, there was no question of considering her request or transferring her to Bahrain as claimed in the Writ Petition. The representations preferred by the respondent employee were clearly an afterthought. There had been no violation of natural justice as alleged. Unauthorised absence being a grave misconduct, the trite and settled law propounded by the Hon'ble Supreme Court in the said respect was overlooked by the learned Single Judge. The learned Single Judge ought to have found that the WA Nos.67/2018 & 511/2018 12 2025:KER:73591 permission granted to the respondent employee to obtain a passport was totally different from a permission for going abroad. The permission granted to the respondent employee to obtain a passport does not ipso facto mean that the employer has granted permission to her to go abroad. There is no statutory right, insofar as an employee of the LIC is concerned, to claim leave as a matter of right or to claim the same for the purpose of taking care of children. The same are provided for and dealt with as per the provisions of the Life Insurance Corporation Act, 1956 and the Life Insurance Corporation of India (Staff) Rules, 1960. The organisational interest and discipline cannot be compromised because the female employee has a fundamental right to give importance to motherhood. All such aspects have already been factored in and taken care of by the Rules. The interest of the employee as far as her motherhood is concerned and the organisational interest have been attempted to be balanced by appropriate Rules, which it was the duty of the respondent to invoke and abide by. Admittedly, the leave sought by the WA Nos.67/2018 & 511/2018 13 2025:KER:73591 respondent employee had been rejected by the LIC and hence the factum of unauthorised absence was proved beyond doubt. Therefore, the standard of proof required under the disciplinary proceedings is discharged and completed and thereby the enquiry proceedings are not vitiated on that account. The organisational interest had been compromised by the respondent employee by taking unauthorised leave without any proper explanation. Rule 43-C of the Central Civil Services (Leave) Rules, 1972 of the Central Government, which provides for leave to a woman employee for taking care of her child, has no application to the provisions of the Staff Rules of 1960. Hence, there was no cause or reason for the learned Single Judge to accept the contention of the respondent employee based on Ext.P30 notification. The disciplinary proceedings initiated against her as well as the decision arrived thereunder, were valid and legal, calling for no interference whatsoever. It is submitted that there was no cause or reason to premise the findings on the International Convention on Civil and Political Rights or on any other international document. It is WA Nos.67/2018 & 511/2018 14 2025:KER:73591 contended that the learned Single Judge had exceeded the jurisdiction conferred under Article 226 while considering the Writ Petition and there was no occasion to judicially review the order rendered by a disciplinary authority based on materials not placed before the learned Single Judge. Placing reliance on the Life Insurance Corporation Act, 1956 and the Life Insurance Corporation of India (Staff) Rules, 1960, it is contended that there is no scope or possibility for reading into the said statutes with international conventions and principles laid down therein. The learned Single Judge erred in doing so. The enquiry proceedings against the respondent employee had been held in full conformity with the principles of natural justice, and the respondent employee was allowed to participate in the enquiry, and the charges against the respondent employee were proved. Therefore, the penalty imposed by the disciplinary authority cannot be subjected to judicial review, and the same was not shockingly disproportionate to the charges levelled against the employee. The learned Single Judge also overlooked the fact that there was material WA Nos.67/2018 & 511/2018 15 2025:KER:73591 suppression on the part of the respondent employee while applying for a No-Objection Certificate for leaving abroad, in which the respondent employee had specifically stated that she was leaving for Bahrain to join her husband. There was no mention whatsoever therein regarding the purported illness of her child or that she needed leave for the purpose now put forth. Further, there was an inordinate delay in filing the Writ Petition, and there was no proper explanation for filing the same. All these aspects, though pleaded and argued, were overlooked by the learned Single Judge, it is submitted. Reliance is also placed by the learned Counsel on the dictum laid down in Karnataka Power Corporation Ltd and another v. K.Thangappan and another [(2006) 4 SCC 322], to contend that mere making of representations to the authority would not justify a belated approach. Reliance is also placed on the dictum laid down in Chennai Metropolitan Water Supply and Sewerage Board & others. v. T.T. Murali Babu [(2014) 4 SCC 108] to contend that unauthorized absence for a long period of time and exhibiting adamantine attitude in not responding to repeated WA Nos.67/2018 & 511/2018 16 2025:KER:73591 communications from the employer, is a misconduct for which punishment of dismissal is not disproportionate to the gravity of the misconduct and the doctrine of proportionality was not remotely attracted. Union of India & others v. J. Ahmed [(1979) 2 SCC 286] is relied on to contend that when a code of conduct has been laid down in the Service Rules applicable, which stipulates the conduct expected from an employee, a conduct that is blameworthy for such an employee as per the same, is a misconduct. Jolly George Varghese & another. v. The Bank of Cochin [(1980) 2 SCC 360] is relied on and it is submitted that lethal blow of Article 21 cannot strike down a provision which is capable of being interpreted following a purposive approach. Pointing to the dictum in Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574] it is contended that absence without permission is a misconduct that could attract removal from service. Basing on the dictum laid down in B.C. Chaturvedi v. Union of India and others [(1995) 6 SCC 749], it is contended that the disciplinary authority is the sole judge of the facts and that there are limits to the power WA Nos.67/2018 & 511/2018 17 2025:KER:73591 of judicial review of a departmental enquiry. It is also contended based on the ratio in Union of India v. Sube Ram and Ors. [(1997) 9 SCC 69] that in the facts and circumstances of the case at hand, this Court does not have jurisdiction to interfere with the findings pursuant to a disciplinary proceedings. Based on the decision in State of M.P. and others v. Nandlal Jaiswal & others [(1986) 4 SCC 566], it is submitted that if there is inordinate delay on the part of the petitioner in filing the Writ Petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of writ jurisdiction. Power to issue appropriate writ under Article 226 is discretionary and High court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic, it is contended. It is thus prayed by the learned Counsel for the appellant that the judgment is fit to be interfered with and that W.A. No.67 of 2018 may be allowed as prayed for. As regards W.A. No. 511 of 2018 filed by the respondent employee is concerned, it is submitted that the same is devoid of merits and it is only WA Nos.67/2018 & 511/2018 18 2025:KER:73591 an afterthought. She had in the Writ Petition not even sought a relief for back wages upon reinstatement. The said Writ Appeal is a chance litigation and it is thus prayed that W.A.No. 511 of 2018 be dismissed with costs to the LIC.
6. Per contra, the learned Counsel appearing for the respondent employee (appellant in W.A.No.511 of 2018) submitted that the finding of the learned Single Judge to reinstate the employee is legally valid and justified and that the same does not need any interference. The limited interference that would be required in the matter, according to the learned Senior Counsel, is regarding the denial of back wages by the learned Single Judge to the respondent employee while ordering the reinstatement. It is contended that the respondent employee had specifically informed the LIC that she was going abroad to join her husband for facilitating/providing better maternal care and treatment to her minor child. She had also requested for extension of dies non period/leave. She had been issued with Ext.P4 notice by the appellant to which she had replied by Ext. P5 stating the true and correct facts and reiterating the request for childcare WA Nos.67/2018 & 511/2018 19 2025:KER:73591 leave besides providing her address at Bahrain for communication. It is submitted that there is absolutely no blameworthy conduct on the part of the respondent employee in not joining duty. She could not rejoin duty because she was doing what every mother would have done, without which the interests and life of her minor child would have been seriously prejudiced. It is submitted that the LIC did not appreciate the value of motherhood and the sympathy and the empathy that it should have to women and children under disability needing special support and care was not exhibited. The impeccable antecedents of the respondent employee spanning 17 years of service was not properly taken into consideration while removing her from service. It is submitted that the punishment meted out to the respondent employee is extremely harsh and oppressive, and totally disproportionate to the charges levelled against her. The meritorious service of the respondent spanning a period of 17 years was not at all considered. It is contended that, since LIC is an instrumentality of State, it owes an unqualified duty to act fairly towards its employees. Reliance WA Nos.67/2018 & 511/2018 20 2025:KER:73591 is placed on the dictum laid down by the Hon'ble Supreme Court in Chairman cum Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others [2009 (15) SCC 620] which laid down the norms of proportionality of punishment vis-a-vis the misconduct established, and it is contended that the limited misconduct alleged to have been established in the case at hand, ie., just going on leave by a mother and staying outside without leave to take care of the sick minor daughter does not constitute an actionable misconduct. It is contended that the LIC could have arranged a transfer of the respondent employee to Chennai or to Bahrain where it had offices and the instruction issued to the respondent employee to come back and join duty at Calicut to the utter detriment of the minor daughter, is an attitude that shocks the conscience and is illegal. It is contended that respondent was only an Assistant in the LIC and her absence could have been easily adjusted even by hiring a temporary hand. None of the documents produced disclose in what way the establishment was impacted because of the absence of the respondent. WA Nos.67/2018 & 511/2018 21
2025:KER:73591 The approach taken by the LIC had been unfortunately vindictive and the conclusions arrived at are totally unsustainable. The major and ultimate punishment of removal from service had been imposed without considering the issues involved and the materials placed, and the respondent employee had been discharging her duties as an employee of the LIC without giving any room for any complaints or objections ever since 24.11.1989. The same had been overlooked while rendering the impugned order of removal from service. The finding of guilt by the inquiry officer is not proper, legal or correct, and the punishment imposed based on the said findings is shockingly disproportionate to the misconduct alleged, and the same is perverse and illegal. The sickness of the child warranting constant attention at the formative age justified absence from duty, and this absence from duty was for protecting the right to life of a helpless child. The attenuating aspect was not properly taken into consideration while imposing the grave punishment of removal from service. The respondent employee has not committed any willful act or breach of WA Nos.67/2018 & 511/2018 22 2025:KER:73591 Rules of the LIC or knowingly done anything detrimental to the interests of the LIC. Hence, the imposition of a major penalty of removal from service is not proper, fair or legally sustainable. As a necessary corollary, the respondent employee ought to have been declared to be in continuous service with back wages and all consequential benefits. Towards buttressing the contentions put forth, reliance is placed on the dictum laid down in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji (AIR 1987 SC 1353) and it is submitted that the learned Single Judge must have taken note that the judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so. Placing reliance on B.C. Chaturvedi (supra), it is contended that if the punishment imposed upon the respondent employee shocks the conscience, and hence the relief can be moulded by this Court. Reliance is placed on the dictum laid on Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011] and it is submitted that the Hon'ble Supreme Court had held that the provisions of the WA Nos.67/2018 & 511/2018 23 2025:KER:73591 Convention on Elimination of All Forms of Discrimination against Women, (CEDAW) is binding and enforceable. The reliance placed by the learned Single Judge in the said respect is thus correct and valid. In Mukul Kumar Choudhuri (supra) wherein the employee remained absent for 6 months without authorisation it was held by the Hon'ble Supreme Court that the order of removal cannot be justified, since no reasonable employer would have imposed extreme punishment of removal in such circumstances. Reliance is also placed on the dictum laid down in Administrator, Union Territory of Dadra, & Nagar Haveli v. Gulabhia M. Lad, [(2010) 5 SCC 775], wherein it was held by the Hon'ble Supreme Court that the exercise of discretion in imposition of punishment by disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment wherein he works. It is contended that none of the said factors had been WA Nos.67/2018 & 511/2018 24 2025:KER:73591 taken into consideration in the matter of the respondent employee before proceeding to impose the highest penalty of removal from service. In Chief Executive Officer, Krishna District Co-operative Central Bank Ltd. and another v. K. Hanumantha Rao & Another [(2017) 2 SCC 528] the Hon'ble Supreme Court had reiterated the observations, in Deputy Commissioner Kendriya Vidyalaya, Sangthan & Ors. v. J. Hussain [(2013) 10 SCC 106] wherein it had been held that when the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It has been held in Bhupinderpal Singh Gill v. State of Punjab and others [2025 SCC OnLine SC 113] that in rare and appropriate cases, to shorten litigation and for exceptional reasons to be recorded in writing, a High Court may substitute the punishment imposed on the delinquent employee. Placing reliance on the dictum laid down by the Hon'ble Supreme Court in K. Umadevi v. Government of Tamil Nadu and others [(2025) 8 SCC 263] which concerned the rejection of maternity leave, sought by a Government Employee, it is WA Nos.67/2018 & 511/2018 25 2025:KER:73591 further submitted that it is open to read into Indian law the relevant provisions contained in international treaties and conventions dealing with maternity benefits. Such international developments, it is submitted, have its impact on Indian law and hence the learned Single Judge was right and legally justified in relying on international conventions while deciding the case in favour of the respondent employee. It is thus contended that there is no reason to interfere with the finding of the learned Single Judge to reinstate the respondent employee and the LIC may be directed to reinstate her with continuity of service and with full backwages from 23/12/2009. He thus prayed for dismissal of the Writ Appeal filed by the LIC and to allow the Writ Appeal filed by the respondent employee seeking reinstatement with back wages, which according to the learned Counsel ought to have logically followed the direction that issued for reinstatement of the respondent employee.
7. We have heard both sides and have considered the respective contentions put forth. The precedents relied WA Nos.67/2018 & 511/2018 26 2025:KER:73591 on by both sides have also been studied. The principal prayer of the employee in the Writ Petition is to quash Ext. P17 (inquiry report), Ext.P21 (disciplinary proceedings imposing a penalty of removal from service) and Ext.P26 (order of the appellate authority dismissing the appeal and confirming the penalty of removal from service). She had also inter alia sought for ancillary reliefs, including reinstating her in service. The learned Single Judge had in the judgment under challenge, set aside the impugned orders and the respondent employee was directed to be reinstated albeit without back wages. Both sides have come up in appeal against the said judgment. We note that in Ext.P17 inquiry report, it had been concluded that the respondent employee had remained on unauthorized absence from duty with effect from 01.05.2008 despite the letters dated 21.05.2008, 15.07.2008 and 04.08.2008 issued by the Disciplinary Authority rejecting the leave applied for by her and calling upon her to resume duty. It had also been concluded in the inquiry that the respondent employee had left India without permission from the competent authority. WA Nos.67/2018 & 511/2018 27
2025:KER:73591 We do not find that the respondent employee has, except for the explanation that she was away to meet the needs of her daughter who was in need of mother's care and assistance - scope and applicability of which we shall be dealing in detail with further below - put forth any sustainable contention to challenge the factual findings arrived at in the enquiry report regarding her absence from duty on the relevant dates. Her absence from duty and overstaying the leave granted is not only remains uncontroverted but also implicitly admitted. The attempt made by the respondent employee has only been to explain out the said absence. Similarly, the respondent employee has not put forth any tenable contention to challenge the inquiry report on the basis of non compliance with any legal mandates or pre-requisites. She had been put on notice all through the proceedings and had been accommodated on different dates to suit her convenience and had finally been heard in person. There has thus been sufficient compliance of audi alteram partem rule and Ext. P17 report is tight, fit and strong in the said respect. Admittedly, the respondent employee had absented herself WA Nos.67/2018 & 511/2018 28 2025:KER:73591 from duty and had overstayed the period of leave to which she would have been entitled to as per the relevant Rules. Even after she had availed the maximum 'loss of pay' leave and had also been extended dies non, she had remained continually absent. Though she had been specifically instructed to join on duty on 01.05.2008 and was informed that no further extension of leave would be granted, she had not joined duty. The respondent employee had thus, despite the instructions so received, continued her absence without sanctioned leave and had also left India for Bahrain without obtaining due permission from the competent authority in the said respect. It had indeed been specifically communicated to her by the LIC while granting NOC for passport that it does not confer on her any right in the matter of grant of leave or waiver of provisions of the Rules of 1960. The contention put forth by the respondent employee that she had forwarded a copy of the passport to the concerned authority with a letter stating her intention to go abroad, does not substitute the mandate for complying with the norms laid down in the Rules of 1960 in the said respect. We note that as WA Nos.67/2018 & 511/2018 29 2025:KER:73591 regards Ext. P17 there had been sufficient compliance with the natural justice principles during the process of inquiry and that the respondent employee had been afforded repeated opportunities to participate in the same. She had attended the proceedings and had also presented the case herself and had been permitted to submit her written brief. Ext. P17 inquiry report states that the respondent employee had during the enquiry admitted the charges levelled against her and had pleaded that her action was not in any way meant to disobey the orders, but had to be undertaken only since she has no other alternative but to give priority to take care of her handicapped child. In the light of the above, we note that there is no reason to find any illegality with respect to Ext.P17 inquiry report and the question to be considered confines itself to whether the penalty of removal from service that has been imposed on the respondent employee for absence from duty for 602 days vide Ext.P21 which stands confirmed by Ext.P26, is in the facts and circumstances of the respondent employee's case, valid and legally sustainable.
WA Nos.67/2018 & 511/2018 30
2025:KER:73591
8. We note that the learned Single Judge had extensively considered the contentions put forth by both sides with respect to the legality and validity of the punishment imposed. The proportionality of the punishment vis a vis the proved charge in Ext.P17 has been considered in extensu by the learned Single Judge. It had been concluded and explained in detail in the impugned judgment as to why the punishment imposed on the respondent employee was disproportionate and hence unsustainable. The learned Single Judge has substantiated the reasons for terming the punishment of removal from service as disproportionate to the gravity of the offence charged. We now proceed to consider the correctness of the same in the light of the contentions put forth by both sides.
9. The learned counsel for the LIC had stoutly objected to and challenged the reasoning provided by the learned Single Judge for concluding that in the facts and circumstances revealed by documents produced, the penalty imposed was grossly disproportionate and merited interference. He has also disputed the legal sustainability of WA Nos.67/2018 & 511/2018 31 2025:KER:73591 placing reliance on Constitutional principles and the invocation of precepts in various international Conventions including the Convention on Elimination of All Forms of Discrimination against Women, (CEDAW), as has been done by the learned Single Judge so as to plug the perceived lacuna in the relevant Rules governing the respondent employee. It has been contended before us, that the penalty was proportionate and that the precepts of international law cannot confine or impact the norms contained in Rules. It is submitted that even going by the dictum laid down in Vishaka's case (supra), the norms in International Conventions would apply only to legislative enactments.
10. We must say that in the situation at hand, we are not impressed by the contention that punishment was proportionate to the charges proved. We note that the learned Single Judge was precisely right and had validly concluded that the LIC had turned a Nelson's eye to the trials and tribulations of a mother who had a differently abled daughter to be taken care of. The abundance of material WA Nos.67/2018 & 511/2018 32 2025:KER:73591 available in the matter wherein the respondent employee had been beseeching the LIC to consider her circumstances had fallen on deaf ears. Not only is the punishment disproportionate there has been arbitrariness on the part of the concerned officers of LIC in mechanically following the Rules without considering the requests made and explanation put forth by the respondent employee. We are emboldened to conclude so going by the dictum laid down by the Hon'ble Supreme Court in Shalini Dharmani v. State of Himachal Pradesh & Ors. (2024 SCC Online SC 653) wherein while considering Rule 43-C of the Central Civil Services (Leave) Rules, 1972, which provides for grant of Child Care Leave for a woman government servant having minor child for a maximum period of 730 days during entire service, held as follows:
"The participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution, besides Article 19(1)(g). The State as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force. The provision of Child Care Leave to women sub-serves the WA Nos.67/2018 & 511/2018 33 2025:KER:73591 significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force. This consideration applies a fortiori in the case of a mother who has a child with special needs. Such a case is exemplified in the case of the petitioner herself. We are conscious of the fact that the petition does trench on certain aspects of policy. Equally, the policies of the State have to be consistent and must be synchronise with constitutional protections and safeguards." ( Emphasis supplied.) We are also persuaded to conclude so in view of the admitted fact that the respondent employee had an unblemished record of rendering service to the LIC for a period of a long 17 years. The same ought to have weighed in with the disciplinary authority while issuing Ext. P21. The doctrine of proportionality thus steps in and as correctly opined by the learned Single Judge, the LIC as a State instrumentality, ought not have exhibited a vindictive attitude and imposed the highest of the punishment viz., removal from service upon its employee who had rendered yeoman service to the LIC since 1989 and had consistently explained and brought her predicament to its notice through repeated WA Nos.67/2018 & 511/2018 34 2025:KER:73591 communications. That she had been compelled to attend to her minor autistic daughter needing constant attention and training was brushed aside while issuing Ext.P21 Order leave alone the question of balancing and weighing the charge proved with the penalty to be imposed. Ext.P21 while proceeding to impose the penalty of removal had not even chosen it relevant to consider and discuss the material facts, consideration of which was imperative for arriving at the penalty. Ext.P26 Order while confirming the same which has been issued by the Chairman in charge of the LIC has been rendered without any application of mind and in a mechanical manner. The removal of the respondent employee from service for the alleged absence is thus not proportionate to her guilt as found in Ext.P17 inquiry report and the learned Single Judge was right in holding that the penalty imposed is disproportionate.
11. The norms to be followed while applying the principle of proportionality are no longer re integra. The Hon'ble Supreme Court in Modern Dental College and Research Centre v. State of Madhya Pradesh [2016 (3) WA Nos.67/2018 & 511/2018 35 2025:KER:73591 KLT SN 38 (C.No.32) SC] has held that the principle of proportionality is inherently embedded in Indian Constitution under the realm of reasonable restrictions and that the same can be traced to Article 19. The Hon'ble Supreme Court in State of Rajasthan v. Heem Singh [(2021) 12 SCC 569)] observed that service jurisprudence recognises proportionality as a legal principle in allowing the authority of the Court to interfere when the finding or the penalty are disproportionate to the weight of evidence or misconduct. We note that in Mukul Kumar Choudhuri (supra), the Hon'ble Supreme Court while considering the legal correctness of removal of an employee from service for unauthorised absence for six months had discussed in detail the precedents on the doctrine of proportionality and held as follows:
"The doctrine of proportionality, is thus, a well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner WA Nos.67/2018 & 511/2018 36 2025:KER:73591 which is out of proportion to the fault. Award of punishment which is grossly in access of the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration the measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one, where the misconduct of the delinquent was unauthorized absence from duty for six months, but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desire to disobey the order of higher authority or violate any of the Company's Rules and Regulations, but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation, which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh, but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority to for reconsideration on the question of punishment, but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of WA Nos.67/2018 & 511/2018 37 2025:KER:73591 justice would be met if the respondent no. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. "(Emphasis supplied) The Hon'ble Supreme Court had thus, in the facts and circumstances of the said case, concluded that such removal as not only unduly harsh but grossly in excess to the allegations. It was held therein by the Hon'ble Supreme Court that the doctrine of proportionality would be met by imposing a lesser punishment of denial of back wages by way of punishment for proved misconduct rather than removal from service. We deem that the facts and circumstances of the case at hand too merit a consideration in similar lines. Coming to the question of substitution by the High Court of punishment granted by the disciplinary authority, it is relevant to reproduce the dictum laid down by the Hon'ble Supreme Court in Lucknow Kshetriya Gramin Bank & Anr. v. Rajendra Singh [(2013) 12 SCC 372] which reads as follows:
"Indubitably, the well-ingrained principle of law is that it is the disciplinary authority, or the WA Nos.67/2018 & 511/2018 38 2025:KER:73591 appellate authority, in appeal, which is to decide the nature of punishment to be given to a delinquent employee, keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the disciplinary authority. In Apparel Export Promotion Council v. A.K. Chopra," [(1999)1 SCC 759] this principle was explained in the following manner:
22. .....The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. ... The High Court should not have substituted its own discretion for that of the authority, What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone."WA Nos.67/2018 & 511/2018 39
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12. Applying the dictum that follows from the above precedents discussed, we deem it fit to partly allow W.A.No.67 of 2018 and set aside the impugned judgment to the limited extent it quashes Ext.P17 enquiry report. The impugned judgment to the extent it quashes Ext. P21 and Ext P26 orders are hereby affirmed. The direction to reinstate the respondent employee is affirmed and towards deciding the punishment pursuant to Ext.P17 enquiry report afresh, in deference to the dictum in Lucknow Kshetriya Gramin Bank (supra), we hereby relegate the matter back to the Disciplinary Authority for the limited purpose of passing fresh orders regarding penalty other than termination, dismissal, removal from service or compulsory retirement,to be imposed on the respondent employee.The Disciplinary Authority shall while so deciding, be guided by the dictum laid down by the Hon'ble Supreme Court in Mukul Kumar Choudhuri(supra) reproduced herein above wherein the Hon'ble Supreme Court had held that imposing a lesser punishment of denial of back wages rather than removal from service would meet the needs of doctrine of WA Nos.67/2018 & 511/2018 40 2025:KER:73591 proportionality. As regards, W.A.No.511 of 2018 filed by the respondent employee seeking reinstatement with back wages, we find merit in the findings of the learned Single Judge that since the respondent employee was seeking extra ordinary leave without pay, there can be no question of ordering back wages. Similarly, she had not even specifically sought a relief for back wages upon reinstatement in the Writ Petition and no such claim can be putforth for the period during which she had not admittedly worked. The contention that the said Writ Appeal is only an after thought is valid. Moreover, in the light of our finding that Ext. P17 inquiry report is valid and proper, the prayer for back wages is unsustainable. Consequently W.A. No. 511 of 2018 fails and is only to be dismissed.
In the light of the above discussion, it follows that W.A. No. 67 of 2018 is allowed in part as above and W.A. No. 511 of 2018 is dismissed.
No costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI JUDGE Sd/-
SYAM KUMAR V.M. JUDGE smm WA Nos.67/2018 & 511/2018 41 2025:KER:73591 APPENDIX OF WA 511/2018 PETITIONERS EXHIBITS ANNEXURE 1 COPY OF THE OFFICE MEMORANDUM DATED 06.06.2014 ISSUED BY THE GOVERNMENT OF INDIA ANNEXURE 2 COPY OF THE COMMUNICATION DATED 23.09.2014 ISSUED BY THE GOVERNMENT OF INDIA ANNEXURE 3 COPY OF THE OFFICE MEMORANDUM DATED 17.11.2014 ISSUED BY THE GOVERNMENT OF INDIA WA Nos.67/2018 & 511/2018 42 2025:KER:73591