Kerala Agricultural University vs T. P. Murali @ Murali Thavara Panen

2024 INSC 658 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.20817 OF 2022

KERALA AGRICULTURAL UNIVERSITY & ANR. …PETITIONER(S)

VERSUS

T.P. MURALI @ MURALI THAVARA PANEN & ANR. …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. Heard Shri R. Basant, senior counsel for the petitioner

and Shri Gaurav Agrawal, senior counsel for the

respondent.

2. Kerala Agricultural University has preferred this Special

Leave Petition challenging the judgment and order dated

Signature Not Verified 26.08.2022 passed by the Division Bench of the High Digitally signed by geeta ahuja Date: 2024.09.04 18:04:14 IST Reason: Court of Kerala in Writ Appeal No. 298 of 2022, T.P. Murali

vs. Kerala Agricultural University. The Division Bench

1 after setting aside the judgment dated 21.12.2021 passed

in Writ Petition (C) No.17803 of 2021, quashed the order

dated 30.07.2021 passed by the Vice Chancellor of the

university terminating the services of the respondent T.P.

Murali.

3. The Division Bench in allowing the writ appeal, though

quashed the termination order passed against the

respondent but refused to direct for his reinstatement as

he had attained the age of superannuation during the

pendency of litigation. Thus, it only directed the university

to decide and disburse the pensionary benefits to the

respondent to which he may be entitled as per the relevant

statues and rules.

4. The respondent T.P. Murali had joined the Kerala

Agricultural University as Assistant Professor on

24.03.1988. After having worked for about 11 years, he

took a long Leave Without Allowance1 of 20 years from

05.09.1999 to 04.09.2019 in four blocks of five years each

to take up employment in Community College,

Pennsylvania, USA.

1 In short ‘LWA’

2

5. The respondent failed to resume his duties on the expiry

of the LWA on 04.09.2019 as he was in USA at that time

and was allegedly suffering from serious ailments. It is

alleged that he had expressed his intention to rejoin duty

via e-mail but still did not rejoin, allegedly for reasons of

his health and, thereafter, due to intervening COVID-19.

He could only return to India by the first Vande Bharat

flight in July, 2020 and requested for rejoining but was not

allowed, rather he was handed over the Memo of Charge

dated 15.07.2020 stating that he had remained on

unauthorized absence w.e.f. 05.09.2019 and has thus

committed statutory violation leading to misconduct. A

formal departmental inquiry was initiated after the reply of

the respondent to the show cause notice/charge memo

was not found to be satisfactory. The Inquiry Committee of

three members vide Exh.P17 concluded that the

respondent violated the LWA conditions by not joining the

duty before the completion of 20 years period of LWA. Upon

consideration of the above Inquiry Report, the Vice

Chancellor vide order dated 30.07.2021 and in exercise of

its delegated power as per the resolution of the Executive

3 Council dated 23.01.2021 allegedly following the

procedure prescribed under the rules, terminated the

services of the respondent w.e.f. 05.09.2019.

6. The respondent challenged the aforesaid termination order

by invoking the writ jurisdiction of the High Court but the

said writ petition was dismissed vide judgment and order

dated 21.12.2021. The learned Single Judge recorded that

the respondent violated the statutory rules by not

resuming his duties immediately upon the expiry of leave

period. His explanation regarding his illness and

intervening COVID-19 was not acceptable, therefore his

overstay on leave was not liable to be condoned. The

respondent failed to place on record if he had drawn salary

for the period of overstay of leave from his employer in

USA.

7. The aforesaid judgment and order of the learned Single

Judge on writ appeal by the respondent has been set aside

by the Division Bench on the ground that the university

has not followed the procedure prescribed under the rules

for holding the disciplinary inquiry and that the

4 respondent was genuinely and bona fidely forbidden from

resuming his duties in time.

8. We have carefully examined the impugned judgment and

order of the Division Bench as well as the other material

papers. On the admitted position, respondent had

proceeded on a long leave of 20 years from 05.09.1999 to

04.09.2019 and had not resumed his duties immediately

on the expiry of the above leave period. The aforesaid leave

period was not liable to be extended in any manner under

the rules. In a situation like this, the rules provide for the

termination of the services of the employee after following

the procedure prescribed under the rules.

9. The relevant service rules are the Kerala Civil Services

(Classification, Control and Appeal) Rules, 1960 and the

Kerala Service Rules and its appendix which permits a

maximum of 20 years of LWA vide Rule 24A read with

Clause 6 of Appendix XIIA concerning grant of LWA. The

aforesaid Rules further provide that immediately on the

expiry of the leave, if the incumbent fails to join, his

services shall be terminated after following the procedure

5 laid down in the Kerala Civil Services (Classification,

Control and Appeal) Rules, 1960.

10. Rule 15 of the said rules provides for the procedure for

imposition of major penalties including termination. It

inter alia provides that before holding a

departmental/regular disciplinary inquiry, the delinquent

would be given a show cause notice as to why a

departmental inquiry may not be held against him on the

charges levelled and it is only after recording of the prima

facie satisfaction that a departmental inquiry is necessary,

the matter could be referred for holding a regular

disciplinary inquiry.

11. Rule 24A and Clause 6 of Appendix XIIA of Kerala Service

Rules and Rule 15 of the Kerala Civil Services

(Classification, Control and Appeal) Rules, 1960 are

reproduced hereinbelow:

“24A. Notwithstanding anything contained in these rules, if an Officer who availed himself of leave without allowances to take up employment abroad or within the country or for joining spouse for a total period of twenty years, whether continuously or in broken periods, does not return to duty immediately on the expiry of the leave, his service shall be terminated after following the procedure laid down in the Kerala Civil Services

6 (Classification, Control and Appeal) Rules, 1960.”

xxx xxx xxx

“Appendix XIIA- RULES FOR THE GRANT OF LEAVE WITHOUT ALLOWANCES FOR TAKING UP EMPLOYMENT ABROAD OR WITHIN INDIA

The following rules shall regulate the grant of leave without allowances to officers for taking up employment abroad or within India. These rules shall not apply in cases of employment in the service of any Public Sector Undertaking, Aided Schools and Private Colleges or self financing Colleges within the State or anybody incorporated or not, which is wholly or substantially owned, controlled or aided by any State Government or the Government of India.

1. …

2. …

3. …

4. …

5. …

6. The maximum period of leave that may be sanctioned to an officer during his entire service shall be limited to 20 years and such leave shall not extent beyond twelve months before their date of superannuation. If the officer who has availed himself of the leave without allowances for a total period of 20 years whether continuously or in broken periods, does not return to duty immediately on the expiry of the leave, his service shall be terminated after following the procedure in Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. This condition shall be incorporated in every order sanctioning such leave.”

xxx xxx xxx

7 “Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960

15. Procedure for imposing major penalties.-

(1) Without prejudice to the provisions of the Public Servants' (Inquiry) Act, 1850 (Central Act XXXVII of 1850), and the Public Servants' (Inquires) Act, 1122 (Act XI of 1122), no order imposing on a Government servant any of the penalties specified in items (v) to (ix) of rule 11 (1) shall be passed except after an inquiry held as far as may be, in the manner hereinafter provided. (2) (a) Whenever a complaint is received, or on consideration of the report of an investigation, or for other reasons, the disciplinary authority or the appointing authority or any other authority empowered by Government in this behalf is satisfied that there is a prima facie case for taking action against a Government Servant, such authority shall frame definite charge or charges which shall be communicated to the Government servant together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The accused Government Servant shall be required to submit within a reasonable time to be specified in that behalf a written statement of his defence and also to state whether he desires to be heard in person. The Government servant may on his request be permitted to peruse or take extracts from the records pertaining to the case for the purpose of preparing his written statement; provided that the disciplinary or other authority referred to above may, for reasons to be recorded in writing, refuse him such access, if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access. After the written statement is received or if no such statement is received within the time allowed, the authority referred to above may, if it is satisfied that a formal enquiry should be held into the conduct of the Government servant, forward the record of the case to the authority or officer referred to in clause

(b) and order that a formal enquiry may be conducted.”

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12. A plain reading of Rule 15(2)(a) of the Kerala Civil Services

(Classification, Control and Appeal) Rules, 1960, which is

applicable for imposing major penalties specifically lays

down that the disciplinary authority or the appointing

authority or any other authority, empowered by

Government in this behalf before holding a regular

disciplinary inquiry, must record its satisfaction that there

is a prima facie case for taking action against the

delinquent employee so as to hold a formal inquiry against

him. In other words, the aforesaid rule in explicit terms

provides for recording a prima facie satisfaction for holding

a disciplinary inquiry against any delinquent employee.

13. In the instant case, no material at any stage has been

brought on record to establish that any such satisfaction

was recorded before appointing an inquiry committee and

passing of the order of termination by the Vice Chancellor

on the basis of the inquiry report. It is for this reason that

the Division Bench has allowed the writ petition after

setting aside the order of the learned Single Judge. We do

not find any flaw with the reasoning adopted by the

9 Division Bench and as such do not deem it necessary to

interfere with the judgment and order impugned herein.

14. It is a cardinal principle of law that if a statute provides for

doing a thing in a particular manner than it should be

done in that fashion only and not otherwise. Therefore,

recording of satisfaction before holding a departmental

inquiry was mandatory.

15. It may be pertinent to mention here that the respondent

had expressed his intention to resume his duties on the

expiry of the leave period, which he could not do on

account of unprecedented circumstances of his bad health

and restriction on travel due to COVID-19. The bona fides

of the respondent in this regard stand fortified by his

e-mails and the medical papers on record.

16. In the above facts and circumstances, we do not find any

merit in the petition and do not deem it necessary to

exercise our discretionary jurisdiction under Article 136 of

the Constitution.

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17. The Special Leave Petition is accordingly dismissed with

observations as above.

...................………………………….. J.

(PAMIDIGHANTAM SRI NARASIMHA)

.............……………………………….. J.

(PANKAJ MITHAL)

NEW DELHI;

SEPTEMBER 04, 2024

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