Friday, November 2, 2012

OA no 253 / 2009 on 17-08- 2010






Smt. Hemavathi Siddappa,
W/o A. Siddappa,
Age 51 years, Occ. Music Teacher,
Kendriya Vidyalay No.1, Mangalore.             ...                     Applicant

(By Advocate Shri A. Siddappa)


1. The Joint Commissioner,
    (Administrator and Appellate Authority),
    Kendriya Vidyalaya Sangathan,
    No.19, Institution Area,
    Shaheed Jeet Singh Marg,
    New Delhi – 110 016.

2. The Assistant Commissioner,
    Kendriya Vidyalaya Sangathan,
    Regional Office Bangalore,
    St. John's Road,  Opp. Naga Theatre,
    Bangalore – 560 042.

3. The Principal,
    Kendriya Vidyalaya No.1,
    Panambur, Mangalore – 575 010.               ...                                 Respondents

(By Advocate Shri Vishnu Bhat)

Hon'ble Smt. Leena Mehendale, Member (A) :

            The OA is filed under Section 19 of the Administrative Tribunals Act, 1985  to challenge the Appellate Order No.F.13064/02/AP/2009-KVS(Vig.), dated 06.02.2009 (Annexure-A/1) and the original order No.F.54-Estt/2008/KVS{BGR}, dated 13.06.2008 removing her from service (Annexure-A/2).
- 2 -
2.         It is the case of the Respondents that the applicant is in the habit of absenting herself from duty, many times unauthorisedly and in the past the authorities were regularising the same and allowing her to continue. Following is narrated by the respondents:-
(i)                 21.01.2003 to 03.06.2003 – under suspension
(ii)   04.03.2003 – joined at Mangalore
(iii)  22.07.2003 to 25.08.2003 – unauthorised leave
(iv) 29.09.2003 to 30.9.2005 – under suspension for above unauthorised leave
(iv)  01.10.2005 to 01.01.2007 – unauthorised leave which was subseqnently                                                regularised.
(v)   02.01.2007 to 04.05.2007 – unauthorised leave.
3.         The learned counsel for the respondents has also pointed out that the immediate cause of action was that the applicant absented herself from 26.10.2007 to 02.11.2007 (8 days) which period is in conjunction with autumn break.  She joined just on 3.11.2007 and again proceeded on unauthorised leave from 5.11.2007.  As a result, the KVS authorities issued a memo on 7.12.2007 invoking sub-clause (3) of clause (d) of Article 81 of Education Code and asking her to show cause why it should not be treated as voluntary abandonment of her service.  This notice mentions that she has remained absent from 5.11.2007 till the date of this memo.  Against the said memo the claim of the applicant is that her leave application for the period 5.11.2007 to 4.4.2008 was given to the Principal who is the authority to sanction the leave and who, without deciding on it, forwarded the same to the Assistant Commissioner.  The authorities should have given notice underArticle 81(d)(1) before issuing the memo under Article 81(d)(3) which was not done. Since there was no communication on the leave application for 26.10.2007 to 2.11.2007 and further from 7.11.2007 onwards, the applicant could make a presumption that the
- 3 -
leave is sanctioned.
4.                  Learned counsel for the applicant would put the sequence as under:-
During the period of her absence, the applicant was under stress on account of the ill-health of the family members, especially her husband since 2007.  When the Assistant Commissioner, Kendriya Vidyalaya Sangathan, from the Regional Office, Bangalore (Respondent No.2), visited the School, she took an opportunity to request him for a transfer to Hubli, which is her native place and from where she had been away for nearly five years.  However, the respondents who found her request to be an abnormal behaviour directed her to report for medical examination for her mental attitude.  Thereafter even though she was willing to undergo the medical examination at Mangalore, it was insisted by the office that the medical examination must be held at Bangalore.  Her request for medical examination to be held at Hubli was also turned down.  The termination of her lien due to unauthorised absence from 5.11.2007 for more than 15 days is also with bias and gross harshness. Hence, the applicant pleads gross bias and victimisation on the part of the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Bangalore, Respondent No.2,   This bias is further seen from the fact that her normal leave applications made to the Principal in routine course was also getting referred to Respondent No.2, the Assistant Commissioner, even if the Principal had the power to sanction the leave.  The learned counsel for the applicant also relies upon the technical issue that for the leave application from 5.11.2007 to 4.4.2008, no rejection was communicated and hence the applicant presumed that the leave has been sanctioned.

5.                  What the applicant has not brought out in application but rather left it for respondent to bring out was that by their letter dated 27.09.2007, the applicant teacher was referred for medical opinion initially to Govt. Wenlock District Hospital, Mangalore, who,
- 4 -
for want of adequate medical facilities asked the Principal of Kendriya Vidyalaya, Mangalore to send her proposal to the Director of Health & Family Welfare Services, Bangalore and thus there is no bias.  She was subsequently referred to M/s. Mallige Medical Centre, Bangalore, being approved Medical Board for KVS.  The applicant vide her letter dated 24.10.2007 requested that medical examination be held at Dharwad instead of Bangalore.  But, this application was rejected on the ground of administrative exigencies on 13.11.2007 and she was given the last opportunity to appear for examination before 23.11.2007 at Bangalore, which she did not comply.  Meanwhile, she requested for leave from 26.10.2007 to 02.11.2007 in conjunction with Autumn Break which was not accorded and that a communication was sent to her on 07.12.2007 under Article 81(3)(D) also asking her to show cause why her lien should not be temporarily withdrawn.  In the meanwhile, she further applied for leave from 5.11.2007 to 4.4.2008.  But, this application was made by her only after the above said show cause notice dated 7.12.2007 was served.

6.         Even overlooking to her past history of absention the respondent authorities who have focussed on her absence from 5.11.2007 and found to be more than 15 days and that too unauthorised, have communicated to her the provisional loss of her lien on the post of Music Teacher and have asked to show cause as to why the provisional loss of lien should not be confirmed.  The applicant preferred an application for Voluntary Retirement on 15.4.2008, which was not allowed and the said decision was also communicated vide order dated 13.5.2008 .

7.         Under these circumstances, the Kendriya Vidyalaya Sanghathan authorities have passed the impugned order dated 13.06.2008 to remove her from service with effect from 5.11.2007 which is the date of continuous unauthorised absence without any application.
- 5 -
But, the Appellate Authority, while rejecting the appeal has given two grounds, viz., (a) that the appeal has been preferred through her spouce vide his letter dated 10.11.2008 and (b) the appeal period of 45 days counting from 13.6.2008 have expired as the applicant has taken nearly five months for making the appeal.

8.         We heard both counsels at length.  We find that, it was intimated to the applicant  on 7.12.2007 that her leave application was rejected and she was asked to show cause for her unauthorised absence after which she once again gave her leave application for the period 5.11.2007 to 4.4.2008.  This clearly shows her habit of absenting herself, presuming and demanding that the leave be granted and feigning ignorance to the fact that leave must be got sanctioned before availing it.  The learned counsel has also pointed out that KVS is a huge organisation running nearly 980 centres throughout the country divided among 18 regions and for maintaining proper discipline and decorum as also the standards of teaching a rule has been formulated which allows the Disciplinary Authority to dispense with the services of any employee who remains unauthorisedly absent for more than 15 days (Article 81-D of the KVS Rules).  The said article has been specifically provided and has the effect of dispensing with the regular disciplinary proceedings as far as the KVS employees are concerned.  The details of this procedure has been laid down in 81(d) (1),(2),(3),(4) and so on.  Any employee who remains absent without sanctioned leave is, according to these Rules, deemed to have voluntarily abandoned the service.  While the learned counsel for the applicant has tried to argue that the applicant has never volunteered to be relieved from the service, the respondents argue that her remaining absent without duly sanctioned leave is sufficient to construe the same act as voluntarily abandonment of service within the meaning of Article 81(d) of the Rules.  Finding her to be so absent from the period 5.11.2007 to 4.4.2008 (during which time a mere application for leave has been submitted on 4.11.2007 which falls short of getting it sanctioned), the respondents could not regularise her any more as was done in the past. The applicant has not done anything for joining back the duty.  Thereafter all the due procedure has been followed, viz., giving her notice that her lien is provisionally discontinued, asking her to show cause by way of an opportunity and finally confirming the loss of lien which is equivalent to terminating her services.  As far as the plea of bias by citing the incidence of asking the applicant for medical examination is concerned, we find from the official records that there are enough grounds for directing the same in the first place.  It appears from the school records shown to us by respondents that not merely was the applicant in the habit of absenting herself for reasons of illhealth of her husband and family stress, but she was also more irritable while on duty and this showed in her conduct with the students and colleagues.

9.         On the question of validity of Art.81(d) the learned counsel for the respondents has also produced the judgment of the High Court of Delhi in Writ Petition No.4485/2002, Union of India Vs. Commissioner of KVS & Ors. In which the judgment and order of CAT, Principal Bench in OA No.3251/01 was in question.  The Hon'ble High Court, while deciding the matter has observed as below:
"A reading of the aforesaid Article 81(d) leaves no manner of doubt that it does not suffer from any of the vices on the basis of which it has been attacked by the learned counsel for the petitioner.  We are not impressed by the submission of the learned counsel for the petitioner that the aforesaid Article 81(d) of the Education Code is violative of the equality clause.  There is nothing in Article 81(d) of the Education code which makes it unjust, unfair and unreasonable. ........."

10.       Thus, we find the following grounds to uphold the action of the respondents:

(1)               The applicant had the habit of remaining absent unauthorisedly on many previous occasions and the school authorities have been considerate on several previous ocasions and have regularised her absence.
(2)               There seems to be no bias in directing the applicant for medical examination at Mangalore in the first place for getting examined her mental condition. This has resulted from her frequent absentism and irritable behaviour while on duty.
(3)               The provisions made under the KVS rules and especially Article 81(d) do not suffer any lacunae and do not violate the principles of natural justice as the lien is provisionally terminated in the first place and only after giving opportunity to the applicant it is thereafter finally terminated if necessary. The procedure was properly followed.
12.       We therefore, consider it that the OA does not merit any consideration as far as  relieving the applicant from the service of the respondents.  However, looking at the domestic stress that she, as a working lady had to undergo, we would direct her to once again approach the authorities with a request to consider her application for voluntary retirement and be allowed to retire rather than be terminated.  We would like to make it clear that looking at the past history of her absentism, but also looking at her past history of her domestic stress, it is left to the discretion of the KVS authorities whether to consider her application and this Tribunal would not like to mould their decision in any direction.
13.       The OA is disposed of with the above directions.

                        (LEENA MEHENDALE)                              (B.VENKATESWARA RAO)
                                MEMBER (A)                                                    MEMBER (J)


No comments:

Post a Comment