Employee Facing Disciplinary Action For Unauthorised Absence Cannot Rejoin Duty Under Kerala Education Rules- Kerala HC Clarifies

A Kerala High Court Bench of Justice Viju Abraham has clarified that an employee against whom disciplinary proceedings have been initiated for unauthorized absence from service cannot be allowed to rejoin duty under the Kerala Education Rules.

In this case, the question to be decided was whether the petitioner could be allowed to rejoin duty, pending disciplinary proceedings.

The Court observed that "when an employee has abandoned the service by a unilateral action is no longer in the rolls of the establishment for the purpose of requiring disciplinary proceedings against him. Therefore, I am of the view that the request of the petitioner to permit her to rejoin duty, pending disciplinary proceedings cannot be accepted."

Counsel Murali Pallath appeared for the petitioner, while Counsel M Sasindran appeared for the respondents.

The petitioner, employed as an aided teacher, was given leave without allowance from 2014 to 2018 to be with her spouse. Later, she requested a five-year extension of leave without allowance until 2023. She received no response from authorities about her leave applications. The school's manager issued a memo of charges and allegations against her for unauthorized absence, initiating disciplinary proceedings. Despite her intention to resume duty, she was denied permission due to ongoing disciplinary action.

The petitioner's counsel argued that pending disciplinary proceedings were insufficient grounds to deny her return to work after her leave expired. By referring to the case of Elsy P. Oomman v. State of Kerala (2011), it was highlighted that termination should follow the major penalty procedure in Rule 75 of Chapter XIV A of the Kerala Education Rules (KER), even though Rule 56(4) of Chapter XIV A of KER stated that continuous absence of five years, with or without leave, would result in the teacher ceasing to be in service.

On the other hand, respondents' counsel stated that the petitioner had been taking various types of leave since 1992 and had been in unauthorized absence since 2018. The case of Bini John v. Regional Deputy Director of Education, Kochi (2017), was cited where the Court criticized granting leave for 20 years. The counsel also referred to Rule 56(4) as a specific provision prevailing over general leave provisions.

The Court observed that the Devaky v. State of Kerala case was relied upon in the Elsy P. Oomman v. State of Kerala case. In the Devaky case, the Court held that in spite of Rule 56(4), an aided school teacher could be terminated from service only after following the provisions prescribed in Rule 75. However, the teacher was not allowed to rejoin duty.

The Court found declining of reinstatement in the Devaky case was not noticed while deciding Elsy P. Oomman's case.

In that context, it was said that, "Even though the Court entered a finding to that effect in the said judgment, took note of the fact that the teachers therein have been continuously taking leave for long and in doing so, they have not only harmed the institution but also the students, and the Court further observed that the kind of practice of taking long leave for 10 years and 15 years should be discouraged and long leave must be sanctioned only in genuine and deserving cases and not on mere asking and held that the teachers who were on leave without allowance cannot make any claim to join the school as teaching staff by seeking extension of leave or in any other manner."

In light of the same, the Court took the considered view that the reliefs sought by the petitioner could not be granted.

Cause Title: Sreelatha PT v. State of Kerala & Ors.

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