Kerala High Court
S.K. Nirmala vs The Kerala State Warehousing ... on 30 December, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY,THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938
WP(C).No. 13639 of 2006 (W)
----------------------------
PETITIONER:
-------------------
S.K. NIRMALA, ASSISTANT,
KERALA STATE WAREHOUSING CORPORATION, REGIONAL OFFICE,
PALAKKAD.
BY ADVS. SRI.C.P.SUDHAKARA PRASAD (SR.)
SRI.ELVIN PETER P.J.
SRI.S.RAMESH
SRI.P.N.SANTHOSH
SRI.NAVEEN.T
SRI.T.G.SUNIL (PRANAVAM)
SMT.POOJA SURENDRAN
RESPONDENTS:
----------------------
1. THE KERALA STATE WAREHOUSING CORPORATION
P.B.NO.1727, ERNAKULAM, REPRESENTED BY ITS, MANAGING DIRECTOR.
2. THE CHAIRMAN, KERALA STATE
WAREHOUSING CORPORATION, P.B.NO.1727,, ERNAKULAM.
3. THE GENERAL MANAGER, KERALA STATE
WAREHOUSING CORPORATION, P.B.NO.1727,, ERNAKULAM.
R.1,2,3 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C.
R1-3 BY ADV. SRI.E.K.NANDAKUMAR
R1-3 BY ADV. SRI.K.JOHN MATHAI
R1-3 BY ADV. SRI.P.BENNY THOMAS
R1-3 BY ADV. P.GOPINATH
R1 BY SRI.N.D.PREMACHANDRAN, SC, KSWC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13639 of 2006 (W)
APPENDIX
PETITIONER'S EXHIBITS
P1: TRUE COPY OF THE LEAVE APPLICATION DATED 30.12.2004 SUBMITTED BY
THE PETITIONER ALONG WITH AMEDICAL CERTIFICATE
P2: - DO - DATED 1.5.2005 -DO-
P3: TRUE COPY OF THE REPRESENTATION DATED 31.5.2005 SUBMITTED BY THE
PETITIONER BEFORE THE FIRST RESPONDENT
P4: TRUE COPY OF THE COMMUNICATION DATED 24.5.2005 SENT BY THE
DISTRICT MEDICAL OFFICER, INDIAN SYSTEMS OF MEDICINES, PALAKKAD
TO THE PETITIONER
P5: TRUE COPY OF THE RECEIPT FOR RS.200/- DATED 8.6.2005
P6: TRUE COPY OF THE REPORT DATED 9.6.2005 OF THE DISTRICT MEDICAL
OFFICER, PALAKKAD
P7: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER BY
THE CHIEF MEDICAL OFFICER, GOVT. AYURVEDA HOSPITAL,
KOLLAM DT.7.8.2005
P7(A) -DO -DO- DATED 21.8.2005
P7(B) -DO -DO- DATED 31.10.2005
P7(C) -DO -DO- DATED 10.12.2005
P7(D) -DO -DO- DATED 20.01.2006
P7(E) -DO -DO- DATED 02.03.2006
P8: TRUE COPY OF THE MEMO OF CHARGES DATED 5.4.2005 ALONG WITH THE
STATEMENT OF ALLEGATIONS
P9: TRUE COPY OF THE REPLY DATED 25.4.2006 SUBMITTED BY THE petitioner
TO THE 3RD RESPONDENT
P10: TRUE COPY OF THE MEMO OF CHARGES DATED 27.6.2005 ALONG WITH THE
STATEMENT OF ALLEGATIONS ISSUED TO THE PETITIONER
P11: TRUE COPY OF THE REPLY DATED 18.7.2005 SENT BY THE PETITIONER TO
THE FIRST RESPONDENT
P12: TRUE COPY OF THE ENQUIRY REPORT DATED 7.1.2006 SUBMITTED BY THE
ENQUIRY OFFICER
P13: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14.3.2006 ISSUED TO THE
PETITIONER
...2
WP(C).No. 13639 of 2006 (W)
-2-
P14: TRUE COPY OF THE REPRESENTATION DATED 27.3.2006 SUBMITTED BY THE
PETITIONER BEFORE THE FIRST REPSONDENT
P15: TRUE COPY OF THE ORDER DATED 19.4.2006 PASSED BY THE FIRST
RESPONDENT DISMISSING THE PETITIONER FROM SERVICE
P16: TRUE COPY OF THE ORDER DATED 13.3.2007 OF THE 2ND RESPONDENT
RESPONDENT'S EXHIBITS
R1(A) TRUE COPY OF THE LETTER DATED 01.02.2005
R1(B) TRUE COPY OF THE LETTER NO.G1-813/05 DT.22.02.2005
R1(C1) TRUE COPY OF THE LEAVE APPLICATION DT.25.4.2005
R1(C2) TRUE COPY OF THE MEDICAL CERTIFICATE DT,1.5.2005
R1(D1) TRUE COPY OF THE LEAVE APPLICATION DT.23.8.2004
R1(D2) TRUE COPY OF THE MEDICAL CERTIFICATE DT.23.8.2004
R1(E) TRUE COPY OF THE LETTER DATED 28.7.2005
R1(F) TRUE COPY OF THE LETTER DATED 23.12.2005
R1(G) TRUE COPY OF THE LETTER DATED 24.11.2005
R1(H) TRUE COPY OF THE LETTER DATED 16.05.2006
//TRUE COPY//
P.A. TO JUDGE
JJJ
K. VINOD CHANDRAN, J.
------------------------------------------
W.P.(C) No. 13639 of 2006 (W)
------------------------------------------
Dated this the 1st day of April, 2016
J U D G M E N T
The petitioner challenges Exts.P10, P13 and P15 in the above writ petition. Ext.P10 is a charge sheet dated 27.06.2005 and Ext.P13 is the show cause notice of the disciplinary authority, by which the enquiry report in the disciplinary proceedings was supplied to the petitioner, the delinquent employee, and Ext.P15 is the order of the disciplinary authority dismissing the petitioner from service with effect from 01.01.2005, the date on which the unauthorised absence; which led to the instant enquiry, commenced. Ext.P16 rejection of appeal is also seen challenged herein.
2. The specific charges against the petitioner, as extracted from Ext.P10, the second charge sheet, are W.P.(C) No. 13639/2006 -2- as hereunder:
" a) Unauthorisedly absent from duty w.e.f.
01.01.2005 since you have not obtained prior permission before availing leave.
b) Breach of Clause 20(5) of the Kerala
State Warehousing Corporation
General and Staff Regulations 1963 on
account of your aforesaid act stated in Serial No.(a)
c) Although you were awarded punishment of "reduction to the post of Assistant for a period of three years from the post of Senior Assistant" for unauthorised absence, you have not mended your ways and repeated such misconducts.
d) Submitted leave application dated 25.04.2005 for loss of pay leave from 01.05.2005 to 31.10.2005 producing medical certificate dated 01.05.2005 i.e. you have procured postdated medical certificate and submitted along with leave application and thereby committed breach of clause 20(2) of the Kerala State Warehousing corporation General and Staff Regulations 1963 W.P.(C) No. 13639/2006 -3- under which all employees are bound to serve the Corporation faithfully."
3. The petitioner contends that the petitioner was proceeded against for unauthorised absence, commencing from 01.05.2005, without reference to the various medical certificates produced by her and illegally withholding sanction of the leave applications submitted on the strength of the valid certificates. The petitioner contends that she submitted an application for leave, as indicated at Ext.P1, on 30.12.2004 along with medical certificate also enclosed in Ext.P1, seeking four months' leave from 01.01.2005 to 30.04.2005. Again, by Ext.P2 dated 01.05.2005, a further leave application along with the medical certificate was filed seeking leave for further six months. The petitioner argues that the above leave applications were in order and were supported by medical certificates and hence, W.P.(C) No. 13639/2006 -4- there was no impediment in the management considering the sanction of such leave applications.
4. One of the charges, as extracted herein above, was that the petitioner had submitted a leave application dated 25.04.2005, for loss of pay leave from 01.05.2005 to 31.10.2005; with a medical certificate dated 01.05.2005. Ext.P3 is an application filed by the petitioner herself before the Managing Director, in which, the first reference is an application for leave dated 25.04.2005. The specific admission made in Ext.P3 is that on 25.04.2005, the petitioner was examined by the doctor and advised leave from 01.05.2005 to 31.10.2005.
5. The petitioner, admittedly, was absent from duty with effect from 01.01.2005. There was also no sanction of leave, though the petitioner had applied for it with a medical certificate. The petitioner, as is W.P.(C) No. 13639/2006 -5- indicated from Ext.P8, was charge sheeted earlier for the very same misconduct of unauthorised absence. The petitioner also did not attend the medical examination directed by the management, scheduled on 15.02.2005, before the District Medical Officer, Indian Systems of Medicine, Palakkad. Be that as it may, the petitioner is said to have appeared before the D.M.O. and obtained Ext.P6 certificate dated 09.06.2005; permitting to be continued on leave for a period of one month. Even before the petitioner obtained such certificate, the petitioner, who was on unauthorised absence, was issued with the charge sheet at Ext.P8 and then in supercession of that, Ext. P10. Admittedly, the petitioner after the issuance of the charge sheet, continued her absence, which again was unauthorised.
6. The explanation submitted by the petitioner was found to be unsatisfactory and an enquiry was W.P.(C) No. 13639/2006 -6- ordered. The enquiry report is seen produced at Ext.P10. The Enquiry Officer marked 34 documents through the one witness examined, the Manager of the respondent Corporation, at its Head Office at Ernakulam. The delinquent employee filed three documents and did not examine any witnesses. The delinquent employee was fully participated in the enquiry and had the opportunity to cross examine the witness also. The Enquiry Officer after having recorded the evidence, found that all the charges against the petitioner stood proved.
7. The unauthorised absence from 01.01.2005 stood proved for reason of the petitioner's leave application having not been sanctioned, which, in consequence, led to charge (b) also being found against the petitioner. It was also brought on record that the petitioner had been consistently absenting herself even W.P.(C) No. 13639/2006 -7- before the said spell of unauthorised absence. The petitioner, on the basis of the continued unauthorised absence in the previous year, was proceeded against and was reduced to the post of Assistant for a period of three years from the post of Senior Assistant. The habitual absence without authorisation, which was the next charge, also stood proved.
8. The last charge was the submission of a medical certificate dated 01.05.2005 along with a leave application dated 25.04.2005, which is an admitted fact. The post dated medical certificate was the last charge levelled. The petitioner also took up a contention before the Enquiry Officer that the absence of the petitioner would not cause any difficulty to the Corporation since the Corporation could appoint a person in the leave vacancy. It is evident from the explanation of the petitioner before the Enquiry Officer, W.P.(C) No. 13639/2006 -8- as has been extracted in Ext.P12, that the petitioner had been resorting to unauthorised absence for reason of her transfer to Palakkad when the family of the petitioner was settled at Kollam. There was no explanation offered for the post dated medical certificate.
9. The Enquiry Officer, having found the petitioner guilty of all the charges, submitted a report to the disciplinary authority, who issued show cause notice at Ext.P13. The disciplinary authority, after considering the explanation of the petitioner at Ext.P14, passed Ext.P15 order. The petitioner, by Ext.P15, was dismissed from service, which was confirmed in Ext.P16 by the appellate authority.
10. The petitioner does not allege any procedural irregularity and asserts that the petitioner had been continuing on leave on medical grounds, the W.P.(C) No. 13639/2006 -9- applications of which have been submitted to the Management. The Enquiry Officer and the disciplinary authority having found the unathorised absence of the petitioner to be proved and the said misconduct being the second instance of a disciplinary proceeding initiated against the petitioner, on the very same offense, this Court cannot find any arbitrariness or any illegality in the punishment imposed of dismissal. The petitioner had been a habitual absentee. The petitioner also had procured post dated medical certificate for continuing in such unauthorised absence. The allegations with respect to a post dated certificate having been issued, also stands proved by the admission of the petitioner. The petitioner had not taken any effort to examine the doctor who issued such certificate in the enquiry proceedings. W.P.(C) No. 13639/2006 -10-
11. It is trite that this Court would not sit in appeal over the findings of the disciplinary authority as entered into, on the strength of the evidence recorded at a properly conducted disciplinary enquiry. There can be no illegality or irregularity found in the proceedings continued against the delinquent employee. The findings are also based on evidence, which stands admitted by the delinquent employee. The misconduct of unauthorised absence being a repetitive and continuing act, the dismissal of the employee cannot also be said to be one excessive. It is commensurate with the gravity of the offence.
The writ petition would stand dismissed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 1/4/16